Docket: T-2553-14
Citation:
2016 FC 213
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 17, 2016
PRESENT: The Honourable Mr.
Justice Martineau
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BETWEEN:
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JEANPHILIPPE
VARIN
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Applicant
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and
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PUBLIC WORKS
AND GOVERNMENT SERVICES CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is contesting a decision by the
Assistant Deputy Minister, Departmental Oversight from Public Works and
Government Services Canada (PWGSC or the employer), Barbara Glover (Assistant
Deputy Minister), made on November 18, 2014, under section 208 of the Public
Service Labour Relations Act, S.C. 2003, c. 22, s. 2, that rejected at the
final level his grievance contesting the revocation of his reliability status.
[2]
The grievor’s reliability status is an
essential condition of employment to hold a position at PWGSC and in the core
public administration. The Personnel Security Standard—implemented by
the Treasury Board of Canada under paragraphs 7(1)(e), 11.1(1)(b) and
11.1(1)(j) of the Financial Administration Act, R.S.C., 1985, c. F11—was
applicable at the time. The Personnel Security Standard provides for two
types of security investigation for staff of applicable departments under the Financial
Administration Act—an assessment of reliability; and an assessment of
loyalty and reliability related to loyalty. An assessment of reliability leads
to a reliability status being granted (either “basic”
or “enhanced”) and an assessment of loyalty
leads to a security clearance being granted (“confidential,”
“secret” or “top secret”).
[3]
In this case, the Assistant Deputy Minister approved
the decision made on April 28, 2014, by Karl Shepherd, Departmental
Security Officer (DSO) to revoke the applicant’s reliability status, which led
to the termination of his employment. The Assistant Deputy Minister reported
that she was satisfied that the process for reviewing the applicant’s
reliability status was followed and that the decision to revoke the applicant’s
reliability status is based on factual, relevant and valid factors. The
applicant is now claiming that the rejection of his grievance is not an
acceptable outcome based on the evidence on file and the applicable law, and
that the process of reviewing his reliability status was not fair and
equitable.
[4]
The parties do not dispute the relevant facts,
even though they draw different conclusions from them.
[5]
Since May 2006, the applicant has held various
positions in the federal public service.
[6]
On August 10, 2009, the applicant assaulted his
former common-law spouse (Y) with a kitchen knife and faced various criminal
charges (attempted murder, forcible confinement and uttering threats to cause
death or bodily harm). On February 11, 2010, a verdict of not criminally
responsible on account of mental disorder was handed down by the court.
Pursuant to the provisions of section 672.47 of the Criminal Code,
R.S.C., 1985, c. C46, a mental disorder review board imposed certain
conditions on the applicant, namely not to be in the physical presence of Y and
her family members, and not to communicate directly or indirectly with Y. On
March 31, 2010, the board modified those conditions, allowing the applicant to
communicate with Y if she initiated the contact. On April 19, 2011, the board
granted the applicant absolute discharge.
[7]
At the time of the incident on August 10, 2009,
the applicant held reliability status and a “top secret” security clearance.
Following the incident, in September 2009, the Department of Foreign Affairs
and International Trade (DFAIT) temporarily suspended the applicant’s
reliability status. In January 2011, DFAIT reactivated the applicant’s
reliability status and “top secret” security clearance. DFAIT also renewed the
applicant’s reliability status on March 24, 2011. In July 2011, the
applicant participated in a security interview with the Canadian Security
Intelligence Service, during which he had to respond to questions concerning
the incident on August 10, 2009. On September 22, 2011, the applicant’s
security clearance was also renewed.
[8]
On March 27, 2014, the applicant was offered a
position as Senior Forensic Accountant in Gatineau by PWGSC’s Forensic
Accounting Management Group. He was expected to begin employment on April 14,
2014, but the employer decided to review his reliability status after having
been informed, on March 27, 2014, or soon after, that the applicant had
initiated an [translation] “unwanted”
email to Y. Y is an attorney with the Department of Justice working for PWGSC
Legal Services in Gatineau, thus in the same building as employees of PWGSC’s Forensic
Accounting Management Group.
[9]
On March 27, 2014, the applicant sent the
following email to Y:
[translation]
Hello,
I hope you’re doing well. I was wondering if
you would be interested in working on financial integrity/fraud/financial crime
cases?
Thanks,
JeanPhilippe
[10]
Y immediately informed her manager about this [translation] “unwanted” email. At the
request of the Assistant Deputy Minister, the DSO initiated an investigation,
asking two Corporate Security Directorate employees, Mario Jutras and Brent
Kereliuk, to begin a procedure to establish the facts of the situation. Mr.
Jutras met with Y to discuss the assault, the criminal charges against the
applicant, and the applicable court decisions. Mr. Jutras and Mr. Kereliuk took
steps to obtain the applicant’s entire security file, which was incomplete and
did not mention the incident on August 10, 2009, or the court decisions on the
applicant’s case. Having received the results of the factfinding process, the
Assistant Deputy Minister asked that a review of the applicant’s reliability
status be conducted. The DSO asked Mr. Jutras to conduct the investigation. On
April 11, 2014, Mr. Jutras met with the applicant to inform him that his
reliability status was suspended and had to be reviewed because of adverse
information that had been obtained about him.
[11]
On April 14, 2014, the applicant participated in
a first interview with Mr. Jutras, which was recorded. The applicant chose not
to be represented by an attorney or union representative. Mr. Jutras informed
the applicant that it was important to be honest and that the truth of his
responses was crucial and would be used to assess his reliability (Transcript
of the interview on April 14, 2014, at page 6).
[12]
During the interview, which lasted nearly three
hours, Mr. Jutras asked the applicant about the contact he may have had with Y
between the incident on August 10, 2009, and April 2014. More
specifically, Mr. Jutras asked the applicant more than five times whether he
had communicated—in any way—with Y since 2012 (or 2013), and, each time, the
applicant said that he had not (“Justification for Decision for the Assessment
of Reliability for JeanPhilippe Varin” at page 3). The applicant currently
does not deny that he communicated with Y a number of times, including a few
brief telephone conversations and several dozen emails. They also met in person
a few times.
[13]
During the last third of the interview on April
14, 2014, Mr. Jutras confronted the applicant about the fact that the employer
had information that contradicted his version of the facts and that the
applicant had failed to disclose that very relevant information. The applicant
ended up admitting that he might have had other contact with Y since 2011 and
that he had sent Y an email on March 27, 2014. However, he explained that, in
his mind, that email was part of the occasional exchanges he had had with Y on
professional matters since 2011.
[14]
Following that interview, the Assistant Deputy
Minister decided that there was no need to implement additional security
measures to protect Y. However, the Assistant Deputy Minister decided that a
second interview was required as part of the review of the applicant’s
reliability status. The second interview took place on April 24, 2014, and was
once again conducted by Mr. Jutras. At the beginning of that interview,
Mr. Jutras said that the purpose of the interview was to [translation] “clarify,
confirm and give the opportunity [to the applicant] to explain the
circumstances surrounding the information collected about him,” i.e.,
his version. Mr. Jutras also informed the applicant that [translation] “your
honesty and [the] truth of your responses are crucial to this interview, and
your responses will be used to assess your reliability.”
[15]
During the second interview on April 24, 2014,
the applicant admitted that he had been evasive and had failed to mention
relevant information during the first interview on the frequency and nature of
his communications with Y. The applicant explained that he had intentionally
omitted that information because he wanted to protect Y. He did not know
whether she had shared all their communications with her new spouse, and he was
worried about the consequences that could have for her (Transcript of the
interview on April 24, 2014, at pages 7 and 8).
[16]
After listening to the recordings of the
interviews himself, the DSO decided to revoke the applicant’s reliability
status. The applicant was given a letter explaining the employer’s reasons for
doing so. The relevant excerpts read as follows:
[translation]
Recently, Public Works and Government
Services Canada was required to complete a review of your reliability status,
in accordance with section 2.1 of the Personnel Security Standard.
Note that during our assessment, we found concerning information in terms of
security.
Section 2.1 of the Personnel Security
Standard states that, in arriving at a reliability screening decision,
officials are expected to provide a fair and objective assessment that respects
the rights of the individual. Unless the information is exemptible under the
Privacy Act, individuals must be given an opportunity to explain adverse
information before a decision is reached. On April 14 and 24, 2014, you had the
opportunity to explain the concerning information that had been found.
Please note that we carefully examined your
file and have completed our security review. Consequently, pursuant to section
5 of the Personnel Security Standard, we have decided to revoke
your reliability status. This decision was made because of the initial concerning
information in terms of security in addition to supplementary
information collected during the security interview:
• You were evasive in your responses.
• You lacked transparency when you had the opportunity to
clarify certain facts.
• You changed your version of certain facts during the second
interview.
With regard to your employment, this
decision will be forwarded to your manager and the appropriate Department
officials.
. . .
[Emphasis added]
[17]
On or around April 29, 2014, the applicant
received a letter informing him of his administrative termination, signed by
the Assistant Deputy Minister. On May 7, 2014, the applicant filed a grievance
disputing the respondent’s administrative decision to revoke his reliability
status. On July 17, 2014, a labour relations officer from The Professional
Institute of the Public Service of Canada made a submission to the final level
of the grievance procedure on behalf of the applicant. Written submissions were
also presented to the Assistant Deputy Minister.
[18]
On November 18, 2014, the Assistant Deputy
Minister handed down a decision at the final level of the grievance procedure,
rejecting the applicant’s grievance. Her conclusions are as follows:
[translation]
With regard to the decision by the
Departmental Security Officer to revoke your reliability status, it has been
confirmed to me that this decision is based on a fair and objective review of
the information obtained during the two doubt interviews the Security Group had
with you. It has also been confirmed that the decision to revoke your
reliability status is based on the fact that you were evasive in your
responses: you lacked transparency when you had the opportunity to clarify
certain facts and you changed certain facts during the second interview.
In light of the above, I am satisfied that
the process for reviewing your reliability status was followed and that the
decision to revoke your reliability status is based on factual, relevant and
valid factors.
Consequently, I see no reason to intervene
on your behalf and I reject your grievance and the requested corrective
measures.
[19]
The evaluation of the lawfulness of the
department’s decision under review, which involves the confirmation of the
revocation of the applicant’s security clearance, is reviewable on the reasonableness
standard (Myers v. Canada (Attorney General), 2007 FC 947 at paragraph 16
[Myers]; Koulatchenko v. Financial Transactions and Reports Analysis
Centre of Canada, 2014 FC 206 at paragraph 30 [Koulatchenko]).
Furthermore, issues of procedural fairness (or natural justice) are reviewed on
the standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraph 47; Koulatchenko at paragraph 30). In this case, it is not
disputed that an official has the right to know the information on which a
decision to revoke his or her reliability status is based and to explain
adverse information before a decision is reached (Myers, supra,
at paragraph 39). The revocation of a reliability status involves certain
procedural safeguards greater than the minimum level (Myers, supra,
at paragraphs 38–39), and when it is a matter of revoking an existing security
clearance, instead of the initial granting of one, a higher level of procedural
fairness is called for (Meyler v. Canada (Attorney General), 2015 FC 357
at paragraph 26; Koulatchenko, supra, at paragraphs 88 and 92).
[20]
Today, the applicant is arguing that it was
unreasonable to conclude that the incident on March 27, 2014, can be a reason
justifying the revocation of his reliability status given that, when he sent
the email to Y, he had been granted absolute discharge, and the steps taken to
review his reliability status did not reveal any information suggesting that
the applicant now poses a risk to Y’s safety. With regard to the applicant’s
lack of transparency and repeated lies during the first security interview, the
applicant admits, in hindsight, that he might have lacked judgment, but he
argues that an employee should not be assessed against a standard of perfection
during a reliability status review. Moreover, the applicant contends that the
impact of a decision to revoke an employee’s reliability status on their
ability to maintain employment should be taken into consideration in the
analysis to determine whether or not the decision is reasonable.
[21]
The applicant also notes that the intentional
omission of relevant details on the communications and relations he may have
had with Y since 2009 can be explained by the fact that this information was
highly personal and sensitive, and he had not had the opportunity to prepare to
answer those questions. He notes that he corrected that lack of transparency in
the second interview, and that the respondent should not conclude on the basis
of him changing his version of the facts that there is a risk of the applicant
being dishonest or lacking professional integrity in the context of his
employment. The applicant thus contends that the respondent did not take into
consideration the positive factors in his case, factors that indicate that the
applicant had been deemed trustworthy in the past and that his security
clearance and reliability status were maintained in 2011. Moreover, the
applicant argues that Mr. Jutras, who conducted the security interviews, was of
the opinion that the decision to revoke the applicant’s reliability status was
unjustified (email from Mr. Jutras to Mr. Shepherd dated April 28, 2014,
Applicant’s file).
[22]
There is no cause to intervene in this case. I
do not think that it is my role today to put myself in the position of the
employer and redo the investigation into the applicant’s reliability status. It
is sufficient that the procedure followed was fair and equitable, and that the
decisionmaker considered the applicant’s explanations and all of the relevant
facts, which is the case here. The employer’s rationale for the disputed
decision is clear and intelligible. It is supported by the evidence on file. I
do not find it to be arbitrary or erratic, or unreasonable in any other way. In
this case, there is a logical and rational connection between the reliability
conditions the position of Senior Forensic Accountant requires at PWGSC’s
Special Surveys Division and the serious concerns the employer might have had
after the two interviews to assess the reliability of the applicant, who lacked
integrity and honesty during the process for reviewing his reliability status.
Even if another outcome might have been possible, I consider the outcome the
employer chose in this case, which was upheld at the final level of the
grievance procedure by the Assistant Deputy Minister, to be reasonable given
the uncontradicted evidence on file and the applicable law.
[23]
In this case, pursuant to the Policy on
Government Security, implemented under the Financial Administration Act,
the employer must ensure that those having access to government information,
assets and services are trustworthy, reliable and loyal. To that end, section
2.7.1 of the Personnel Security Standard stipulates: “On the basis of the information collected, the manager
determines whether the person has been reliable in previous employment and is honest and
trustworthy” [Emphasis added]. Appendix B of the Personnel
Security Standard also indicates that it must be determined whether the
individual can be relied upon not to abuse the trust that might be accorded
and, based on the level of reliability required and the nature of the duties to
be performed, whether such risks are acceptable or not. In this case, the work
of a Senior Forensic Accountant requires extensive professional autonomy, which
necessitates that the respondent has a high level of trust in the incumbent’s
integrity. The applicant acts as an investigator and is called upon to act as
an expert witness, which means that he must testify honestly, without being
misleading or changing the versions of a testimony.
[24]
The applicant also contends that the respondent
violated the rules of procedural fairness by failing to inform him prior to the
interview on April 14, 2014, about the security concerns that led to his
reliability status being reviewed, which caused him damage and violated his
legitimate expectations and right to provide explanations. I conclude that the
review procedure was fair and objective under the circumstances. I also reject
any claim by the applicant that a breach of procedural fairness resulted from
the fact that, during the first interview, Mr. Jutras did not immediately
inform the applicant that the employer was concerned about the fact that the
applicant had sent an unsolicited email to Y on March 27, 2014. Moreover, the
applicant had every possible opportunity during the two interviews with the
employer and the process of reviewing his reliability status to explain the
omissions or lies the employer was accusing him of. Lastly, there is no
evidence on file that the DSO and Assistant Deputy Minister violated procedural
fairness.
[25]
Regardless, even if there were a violation of
procedural fairness—which is not the case here—there would be no practical
purpose of returning the case to the decisionmaker (Mobil Oil Canada Ltd.
v. CanadaNewfoundland Offshore Petroleum Board, 1994 CanLII 114
(SCC) at paragraphs 52–55). In this instance, the facts cannot be changed that
the applicant was evasive in his responses during the interview, that he lacked
transparency when he had the opportunity to clarify certain facts and that he
changed the version of certain facts during the second interview. Therefore, it
is very likely that the employer’s decision to revoke the applicant’s
reliability status would not be different if the case were resubmitted to the
Assistant Deputy Minister for reassessment.
[26]
For all of these reasons, the application for
judicial review is dismissed. Given the results, the respondent is entitled to
costs.
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