Docket: T-917-16
Citation:
2017 FC 1127
[ENGLISH
TRANSLATION]
Ottawa,
Ontario, December 8, 2017
PRESENT: The Honourable Madam Justice Roussel
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BETWEEN:
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E.S.
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
The applicant, E.S., is seeking a judicial
review of a decision issued by the Canadian Human Rights Commission
[Commission] on May 4, 2016, dismissing his complaint against the Royal
Canadian Mounted Police [RCMP] under paragraph 44(3)(b) of the Canadian
Human Rights Act, RSC 1985, c. H-6 [CHRA]. In his complaint, following a
decision by the RCMP to end the processing of his application for employment, the
applicant alleges that he was a victim of discrimination on the grounds of a
conviction for which a pardon was granted, in violation of section 7 of the
CHRA. Based on the report by the investigator assigned to examine the applicant’s
complaint and observations by the parties in response to the report, the
Commission found that the applicant was not refused employment because of a
conviction for which a pardon had been granted, but instead because the
employment process revealed that the applicant had not been honest regarding
his criminal record.
[2]
The applicant argued, among other things, that
he did not lie about his criminal record, as the RCMP application form stated
that he was not obliged to answer the questions regarding convictions for which
he had received a criminal record suspension. The respondent argued that the
Commission’s decision was reasonable.
[3]
For the following reasons, the Court is of the
opinion that the Commission’s decision does not meet the tests of
justification, transparency, and intelligibility required for a decision to be
deemed reasonable. The application for judicial review is therefore allowed.
II.
Context
[4]
On September 14, 2011, the applicant applied to
become a regular member of the RCMP. The selection process included an initial
job application, a series of aptitude tests, an applicant questionnaire, an
interview, a polygraph test, a criminal history check, fingerprinting, and a
field investigation.
[5]
The checks conducted by the RCMP as part of the
recruitment process revealed that, over the years, the applicant had been
unable to remain employed for long periods and show professional stability.
They also revealed that the applicant had been involved in several files with [translation] “police
in various judicial districts”. The fingerprint check revealed that the
applicant had received a criminal record suspension on August 16, 2011.
[6]
Under subsections 6(2) and 6(3) of the Criminal
Records Act, RSC 1985, c. C-47 [CRA], the RCMP requested and obtained
authorization from the Minister of Public Safety and Emergency Preparedness
[Minister of Public Safety] to disclose the applicant’s criminal record. The
RCMP learned that the applicant was apparently convicted on seven (7) charges
and found not guilty on two (2) other charges.
[7]
In conversations with the RCMP investigator
during the hiring process, the applicant denied three (3) times that he had
been the subject of a police investigation and that he had been convicted of a
criminal offence.
[8]
On February 27, 2014, the RCMP advised the
applicant in a letter that it was ending the processing of his application for
employment due to the results of the evaluation of his record. It indicated
that the evaluation examined the [translation]
“various personal competencies and capacities that
constitute reliable indicators of a temperament conducive to becoming a peace
officer with the RCMP”. The decision was confirmed on March 3, 2014,
despite the applicant’s request for a review.
[9]
On March 5, 2014, the applicant filed a
complaint against the RCMP with the Commission for discrimination on the
grounds of a conviction for which a pardon was received. Among other things, he
alleged that the suspension of his criminal record eliminated the consequences
of the conviction in question, which should no longer tarnish his reputation.
He also asserted that the person who examined his request for a review made discriminatory
statements about him, citing his pardon to refuse to recommend his case.
[10]
During the Commission’s investigation, the
applicant, the eligibility reviewer responsible for the applicant’s hiring file
at the RCMP, and the Non-Commissioned Officer responsible for the RCMP National
Recruiting Processing Centre were questioned.
[11]
On February 8, 2016, the Commission investigator
submitted her investigation report to the applicant for his feedback. She
recommended that the Commission dismiss the complaint on the grounds that the
evidence did not support the allegation that the RCMP refused to hire the
applicant because of a conviction for which a pardon had been granted. She
asserted that the evidence gathered during the investigation showed instead
that the applicant’s candidacy was rejected for reasons of attendance and
because the complainant lied during the hiring process. Finally, she found that
it was reasonable for the RCMP to consider all information available regarding
the integrity and honesty of applicants given the position of trust held by
members of a police force.
[12]
On March 7, 2016, the applicant sent the
Commission his observations regarding the report. On February 23, 2016, and on
March 18, 2016, the RCMP confirmed its position to the Commission that the
applicant’s complaint should be dismissed.
[13]
On May 4, 2016, the Commission dismissed the
applicant’s complaint against the RCMP. Citing the investigator’s report, the
Commission noted:
[translation]
There is an important distinction between, on the one hand, a
refusal to hire a person who has a criminal record for which a suspension has
been ordered and, on the other hand, a refusal to hire that person because he
or she was not honest when asked questions about his or her criminal record, which
not only includes a criminal record for which a suspension was ordered, but
also other criminal activities.
It concluded that the applicant’s case fell
into the second category, which is not referred to in the CHRA.
[14]
The Commission also added, in response to an
argument raised by the applicant, that the CHRA does not allow it to examine
the process used by the RCMP to obtain disclosure of information regarding the
applicant’s criminal record from the Minister of Public Safety to determine
whether the RCMP was negligent in obtaining such information.
[15]
The applicant argues that the Commission’s
decision must be set aside because it is based on discriminatory and incomplete
information that is protected by the CHRA and the CRA. He also cites the biased
nature of the decision and accuses the RCMP of lacking diligence regarding
information that is protected under the CRA.
[16]
Like the respondent, the Court feels that the
key issue in this case is whether the Commission’s decision to dismiss the
applicant’s complaint under paragraph 44(3)(b) of the CHRA was reasonable.
III.
Standard of review
[17]
When determining whether a complaint is to be
referred to the Canadian Human Rights Tribunal [Tribunal], the Commission acts
as an administrative and screening body. Its role is to determine whether,
based on the provisions of the CHRA and all the facts, there is sufficient
evidence to justify referring the complaint to the Tribunal. Although the
Commission has discretion in this regard, it is not its job to determine if the
complaint is made out (Cooper v Canada (Canadian Human Rights
Commission), [1996] 3 S.C.R. 854, at para 53; Syndicat des employés de
production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission),
[1989] 2 S.C.R. 879 at p 899; Wong v Canada (Public Works and Government
Services), 2017 FC 633, at para 27; Ritchie v Canada (Attorney General),
2016 FC 527, at para 35-36 [Ritchie], citing Alkoka v Canada
(Attorney General), 2013 FC 1102, at para 40, which cites Canadian
Union of Public Employees (Airline Division) v Air Canada, 2013 FC
184, at para 60).
[18]
It is well-established that the Commission’s
decision to dismiss a complaint under paragraph 44(3)(b) of the CHRA raises
questions of mixed fact and law. It is therefore subject to review under the
standard of reasonableness. This standard includes a high degree of deference
and “is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, at para 47
[Dunsmuir]; Miakanda-Batsika v Bell Canada, 2016 FCA 278, at para
19; Sketchley v Canada (Attorney General), 2005 FCA 404, at para 47 [Sketchley];
Ritchie, at para 27-28; Mansley v Canada (Attorney General), 2016
FC 389, at para 18 [Mansley]; Lubaki v Bank of Montreal Financial
Group, 2014 FC 865, at para 37 [Lubaki]; Lamolinaire v Bell
Canada, 2012 FC 789, at paras 22, 27).
[19]
The standard of review applicable to issues of
procedural fairness is the standard of correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 43; Mission Institution v
Khela, 2014 SCC 24, at para 79). The issue is not so much whether the
decision was correct, but instead whether the process used by the
decision-maker was fair (Makoundi v Canada (Attorney General), 2014 FC
1177, at paras 33–35).
IV.
Analysis
A.
Preliminary Issues
(1)
Applicant’s Record
[20]
First, the respondent raises the non-compliance
with the technical rules set out in sections 70 and 309 of the Federal Court
Rules, SOR/98-106 [Rules], noting primarily the laconic nature of the
memorandum of fact and law contained in the applicant’s record. He argues that
the applicant has not discharged his burden of demonstrating how the Commission’s
decision was unreasonable, that his allegations are vague and imprecise and,
finally, that his allegations of a lack of procedural fairness are not
supported by any specific and concrete facts or any claim put forth to support
his claims.
[21]
It is true that the applicant’s record contains
discrepancies. The applicant’s memorandum of fact and law is not consistent
with Rule 70. The applicant’s claims are contained on one (1) and a half pages
in the form of statements, issues and requested orders and the facts on which
he relied are found in the applicant’s two (2)-page sworn affidavit dated July
8, 2016.
[22]
However, under Rule 72(2)(b), the Court can
accept the filing of a document even if it does not comply. In the case at
hand, the applicant is representing himself and does not seem to have a good
understanding of the Rules of this Court. Based on a generous reading of the
applicant’s affidavit and written submissions and based on his oral submissions
at the hearing (Duverger v 2553-4330 Québec Inc. (Aéropro), 2015 FC
1071, at paras 19, 23), the Court can nonetheless understand the arguments used
by the applicant to challenge the Commission’s decision. The applicant’s claims
are summarized as follows:
A.
He did not lie, as the form that he completed as
part of the hiring process stated that he was not obliged to answer the
questions regarding convictions for which he had received a criminal record
suspension.
B.
The investigator’s report contained information
that was protected under the CRA and incorrect information.
C.
The Commission’s decision lacked impartiality,
as the investigator did not conduct her own analysis in her report.
[23]
Since the respondent’s memorandum responds to
the applicant’s arguments, the Court intends to address the merits of the
dispute, despite the laconic nature of the applicant’s written submissions.
(2)
Admissibility of the affidavits and attachments
[24]
It is well-established that a judicial review of
a decision must be based on the evidentiary record that was before the
decision-maker. There are some exceptions to that rule, namely: (1) when
the evidence contains general information that is likely to help the Court
understand the issues related to the judicial review; (2) when the information
serves to demonstrate procedural defects that could not be identified in any
other way before the decision-maker; and (3) when the evidence reveals the
total lack of evidence available to the decision-maker in reaching a conclusion
(Bernard v Canada (Revenue Agency), 2015 FCA 263, at paras 13–14; Delios
v Canada (Attorney General), 2015 FCA 117, at paras 42–43; Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22, at paras 19–20 [Association of
Universities and Colleges of Canada]).
[25]
In the case at hand, each of the parties
produced documents in support of their records that are not listed in the
certificate filed by the Commission under Rule 318(1)(a).
[26]
Although no objections were raised by the
parties, the Court invited them, following the hearing, to submit observations
on the admissibility of those documents based on the general rule, but also
because of an order issued on November 10, 2016, by Prothonotary Richard Morneau,
upholding the Commission’s objection to the request to transmit documents
presented by the applicant under Rule 317.
[27]
In fact, on July 12, 2016, the respondent asked
the Commission to send a copy of [translation]
“the entire record regarding the complaint . . . that led
to the decision on May 4, 2016” to this Court’s registry and to the
parties. On August 2, 2016, by means of a certificate, the Commission sent a
certified copy of the documents that were before it when it issued its
decision. It consisted of the following documents:
a. Summary of the complaint and complaint form, dated March 5,
2014
b. Investigator’s
report, dated February 8, 2016
c. Written
submissions by the RCMP, dated February 23, 2016
d. Written
submissions by the applicant, dated March 7, 2016
e. RCMP
response to the applicant’s written submissions, dated March 18, 2016
[28]
The Commission objected to the scope of the
application filed by the respondent on the grounds that it did not contain
enough details to show that disclosure would be relevant for the purposes of
the application for judicial review and that, in general, [translation] “when
the applicant challenges the Commission’s decision, the relevant documents are
those that were before the Commission when it made its decision”.
[29]
On August 4, 2016, the respondent sought
directions from the Court under Rule 318(3) to challenge the Commission’s
objection, alleging that, when the Commission provides only brief reasons, the
investigator’s report is part of the Commission’s reasoning. According to the respondent,
the documents obtained by the investigator and presented by the parties in
support of the report are relevant to the findings of the report and must
therefore be included in the documents transmitted under Rule 318(1).
[30]
Given this impasse, a deadline was set for
filing written submissions on the issue.
[31]
Thus, in its written submissions, the Commission
argued, among other things, that when an applicant challenges a Commission
decision, the documents relevant to the application are those that were before
the Commission when it made its decision. Documents that were created or
considered by Commission employees, but that were not presented before the
Commission itself, are not generally relevant. Although there are exceptions to
that general rule, the respondent did not submit any grounds to justify
disclosure of such documents. The Commission also brought to the Court’s
attention the sensitive nature of the documents submitted by the RCMP as part
of the investigation.
[32]
In response, the respondent reiterated that
documents relevant to a challenge of a Commission decision are not just those
that were before the Commission when it made its decision, but also those that
were created or considered by Commission employees, but not presented to it.
Regarding the risk of disclosing personal or protected information, the
respondent claimed that that was not a reason to justify refusing to include
such documents in the Commission’s certified record and instead suggested that
the documents be disclosed in redacted versions.
[33]
The applicant did not file any submissions.
[34]
In a decision dated November 10, 2016,
Prothonotary Morneau upheld the Commission’s objection on the grounds that the
purpose of Rule 317 is to limit the disclosure of evidence in documents that
were not in the hands of the decision-maker at the time of the decision. He
cited Access Information Agency Inc v Canada (Attorney General), 2007
FCA 224, at para 21 and Lukács v Canada (Transportation Agency), 2016 FCA
103, at para 5. Although he acknowledged that, in a broad sense, beyond the
application of Rule 317, the documents obtained by a Commission investigator
may be an underlying part of the investigator’s report and may be relevant to
the report’s findings, Prothonotary Morneau cited an excerpt from Lubaki,
above, at para 4 to support the general principle that investigation
documents are not relevant if they were not before the decision-maker.
[35]
Three (3) weeks later, the respondent filed the
affidavit from Stéphane Gagné under Rule 307. That affidavit included exhibits
A to G. Exhibit A consists of excerpts from the RCMP “Administration
Manual” regarding pre-employment interviews and polygraphs, the record
check and security clearance, and the conditions for eligibility for employment
when there are criminal activities or offences. Exhibits B, C, D, E and F
include correspondence between the Commission and the RCMP as part of the
processing of the complaint and the Commission’s investigation. Finally,
Exhibit G contains the following documents, among others:
- The
hiring questionnaire completed by the applicant
- An
RCMP “Continuation Report”
- The
expert polygraph report prepared following the pre-employment polygraph
- The
“Security Clearance Form 330-60E”;
- The
[translation] “Pre-employment
polygraph acknowledgement” and the “Continuation Report”
- Emails
and correspondence exchanged with the applicant
[36]
The affidavit and its exhibits were then
included in the respondent’s record.
[37]
Given that none of these documents were part of
the Commission’s certified record, the Court requested written observations
following the hearing regarding the admissibility of Mr. Gagné’s affidavit
and its attachments. The Court also asked the parties to share their
observations with it regarding the admissibility of certain attachments to the
applicant’s affidavit for the same reasons. This included two (2) emails
exchanged with the RCMP advising the applicant that his candidacy would not be
recommended (P-1) and that his request for a review was refused (P-2), as well
as copies of letters from the Commission (P-4, P-5, P-6 and P-7).
[38]
In submissions to the Court, the respondent
again argued that the investigator is considered to be an extension of the
Commission, that she is part of the federal office that is the Commission, that
the exhibits filed in support of the affidavit were available to the Commission
itself and that, accordingly, the affidavit and the exhibits are admissible.
The respondent also added that it is a sworn statement that is not challenged,
as Mr. Gagné was not cross-examined regarding his affidavit.
[39]
Regarding the applicant’s affidavit and its exhibits,
the respondent argued that the same reasoning should apply. He mentioned,
however, that he did not know whether the applicant provided the information
mentioned in paragraphs 3, 4, 5, 6, and 11 and in Exhibit P-1 to the
Commission. As for paragraphs 13 to 18 of the affidavit, the respondent
acknowledged that the allegations raise breaches of procedural fairness, which
would be admissible according to Association of Universities and Colleges of
Canada, above.
[40]
The applicant did not follow up on the direction
from this Court.
[41]
As the Court has already set out above, a
judicial review must be examined based on the evidentiary record that was
before the administrative decision-maker, unless it is shown that the new
evidence falls within one of the exceptions to the general rule.
[42]
In the case at hand, the Commission stated
several times during the proceedings that only the documents listed in the
certificate filed under Rule 318(1) were before it when it made its decision.
Although jurisprudence recognizes that the investigator’s report may constitute
the Commission’s reasons when it adopts the investigator’s recommendations or
when it provides very brief reasons (Phipps v Canada Post Corporation,
2016 FCA 117, at para 6 [Phipps]; Sketchley, at para 37; Mansley,
at para 8; Lubaki, at para 57), the fact nonetheless remains that the
documents submitted to the investigator were not before the Commission, even
though they were available to the Commission. As the respondent did not allege
any of the exceptions that would allow for a departure from the general rule,
the reasonableness of the decision must be assessed in light of the information
that was before the Commission.
[43]
Moreover, as the respondent did not appeal the
decision from November 10, 2016, the Court feels that that decision cannot be
set aside without new grounds.
[44]
For the above reasons, attachments A, B, C, D,
E, F, and G of Mr. Gagné’s affidavit are inadmissible. The same is true for
Exhibits P-1, P-2, P-4, P-5, P-6, and P-7 included with the applicant’s
affidavit. Those documents were therefore not considered for the purposes of
this case.
[45]
The Court also does not intend to consider the
document included in the applicant’s record entitled: “2011
Audit Report of the Privacy Commissioner of Canada”. Not only is that
document not part of the Commission’s certified record, but the applicant did
not demonstrate how the document is relevant to his application.
B.
Reasonableness of the decision
[46]
As mentioned above, the applicant essentially
claims that the Commission’s decision and the investigator’s report are based
on discriminatory information that is protected under the CRA, as the true
reason for the refusal to hire is allegedly the existence of a criminal record
for which a criminal record suspension was granted, not his lack of honesty. He
also accuses the investigator and the Commission of having concluded that he
lied during the hiring process when the instructions on the RCMP application
form stated that he was not obliged to answer the questions regarding
convictions for which he had received a criminal record suspension. He argues
that, under the CRA, receipt of a suspension eliminates the existence of a
criminal record.
[47]
The respondent counters that the Commission’s
decision is based on the true reason for refusing to hire the applicant, the
negative and incorrect responses he gave to questions regarding his past on the
hiring questionnaire and in the ensuing investigation. Although the applicant
was not obliged to provide information regarding his convictions that were
suspended, he nonetheless had to show integrity, transparency and honesty in
his responses, which he did not do. The respondent argued that a criminal record
suspension does not allow a rehabilitated person to deny the existence of past
convictions. In that regard, he cited the Supreme Court in Therrien (Re),
2001 SCC 35, at paras 116 and 127 [Therrien], which states that a pardon
does not retroactively wipe out a criminal conviction, but simply ensures that
future consequences of it are minimized. Not only could the applicant not deny
the existence of a conviction, he had to answer the questions honestly.
[48]
As mentioned previously, it is well-established
that, when the Commission adopts the investigator’s recommendations and
provides only brief reasons, the investigation report constitutes the
Commission’s reasons for the purposes of a decision under subsection 44(3) of
the CHRA (Phipps, at para 6; Sketchley, at para 37; Mansley,
at para 8; Lubaki, at para 57).
[49]
In the case at hand, it seems from both the
Commission’s decision and the investigation report that the basis for
dismissing the complaints was the investigator’s findings that the applicant
allegedly lied several times during the hiring process. In the analysis section
entitled “Findings”, which includes five (5)
paragraphs, the investigator noted that the applicant’s candidacy was not
retained by the RCMP due to his lack of attendance and because he lied several
times during the hiring process. She noted that, by denying several times that
he was the subject of criminal investigations, including two criminal
prosecutions in which he was found not guilty and that were not protected by
the record suspension, the applicant allegedly lied to the RCMP. She then noted
that, given the nature of the offences committed by the applicant, the RCMP [translation] “could
not ignore them” given its standard of honesty and integrity. She
therefore found that it was reasonable for the RCMP to have doubts about the
applicant’s honesty and integrity because he [translation]
“lied more than once during the internal investigation”
and because he “denied three times that he had been the
subject of a police investigation and was convicted of a criminal offence”.
[50]
For the following reasons, the Court feels that
the Commission’s decision was not transparent, intelligible, or justified given
the evidence presented by the RCMP and reported by the investigator in her
report.
[51]
First, the Court notes an inconsistency in the
investigator’s report regarding the finding that the applicant allegedly lied
to the RCMP.
[52]
The investigator first noted that Candidates are
told that the questions on the hiring form are related to honesty, integrity,
and ethics and that they are informed through every stage of the hiring process
that [translation] “deceit, dishonesty, or non-disclosure in any part of the
application process may result in elimination from the process or any future
employment with the RCMP”.
[53]
She then noted that candidates are advised that
they are not obliged to provide information regarding offences for which they
have received a criminal record suspension. In this regard, she quoted the
instructions given to candidates for positions as regular members on the RCMP
hiring form:
[translation]
NOTICE REGARDING THE CANDIDATE QUESTIONNAIRE
– You are not obliged to provide any information in the applicant questionnaire
that relates to a conviction for which a pardon has been received. [sic]
[54]
The Court does not question the Commission’s
finding that honesty and integrity are fundamental values that individuals must
have if they want to become members of a police force. However, the Court feels
that, in her findings regarding the applicant’s lies, the investigator should
have addressed the inconsistency arising from the RCMP’s evidence regarding candidates’
obligations to provide honest answers on the one hand, and their right to not
be obliged to provide information regarding criminal offences for which they
have received a criminal record suspension on the other hand. Based on the
report, it is also impossible to determine the questions to which the applicant
allegedly gave untrue answers, or which offences were the subject of the
criminal record suspension and which were not. Indeed, in paragraphs 13 and 30
of the report, there is confusion between the offences for which the applicant
was apparently acquitted and those for which he apparently obtained the
criminal record suspension.
[55]
The investigation report also does not reveal
whether the investigator questioned the reasonableness of the RCMP’s finding
that the applicant had [translation]
“lied” on his application form when that
document clearly stated that he was not obliged to provide information regarding
criminal offences for which he had received a criminal record suspension. That
gap in the investigation report is even more important in light of section 8 of
the CRA, which states that no person shall use or authorize the use of an
application form that contains a question that, by its terms, requires the
applicant to disclose a conviction in respect of which a record suspension has
been ordered and has not been revoked or ceased to have effect.
[56]
Regarding the respondent’s argument based on Therrien,
the Court does not intend to rule on the application of the principles set out
in that case, as it is of the opinion that the decision lacks transparency,
intelligibility, and justification.
[57]
Secondly, the Court notes another inconsistency
in the report regarding the application of the policy for the eligibility of candidates
for a position as a regular member of the RCMP.
[58]
The investigator mentioned in paragraph 27 of
her report that the RCMP has no specific guidelines or policies regarding
candidates who have obtained a criminal record suspension and that it simply
follows the guidelines set out in the CRA. However, the investigator cited the
RCMP eligibility policy set out in section 1.1.3 of its Administration Manual
and, in that regard, provided an excerpt from that section at paragraph 15 of
the report. According to that policy, subsequent processing of an application
by a candidate who has been convicted of a criminal offence cannot be
recommended unless that conviction has been pardoned in Canada.
[59]
At paragraph 37 of her report, the investigator
then noted the RCMP’s position that [translation]
“based on the policy regarding criminal offences, [the
applicant] was not eligible for a position as a regular member”. Yet,
the investigator had noted at the start of the report that the applicant had
obtained a criminal record suspension in 2011.
[60]
The Court is of the opinion that it would be
inaccurate to claim that the applicant was “not
eligible” for a position as a regular member if he had received a criminal
record suspension, thus the importance of clarifying which offences were
included in the record suspensions and which ones were not.
[61]
The Court agrees that the Commission’s decision
to dismiss the applicant’s complaint is discretionary and requires considerable
deference. However, as stated by the Federal Court of Appeal in Keith v
Canada (Correctional Service), 2012 FCA 117, at para 45, when the
Commission dismisses a complaint, it is a final decision that definitively ends
the processing of the complaint and “a more probing
review should be carried out”. In the case at hand, for the reasons
above, the Court is of the opinion that the investigation report and therefore
the Commission’s decision lack transparency, intelligibility and justification
and do not meet the standard of reasonableness as set out in Dunsmuir.
[62]
Given the Court’s finding, there is therefore no
need to rule on the other grounds raised by the applicant.
C.
Confidentiality order
[63]
After filing his notice of application on June
9, 2016, the applicant filed a written motion to obtain a confidentiality
order. That motion was dismissed by Prothonotary Morneau on July 11, 2016, on
the grounds that a personal interest in keeping his affairs private did not
constitute legal grounds for obtaining a confidentiality order and that, in
this case, the evidence presented by the applicant did not present any serious
risk.
[64]
Despite that order, in his memorandum dated
February 3, 2017, the applicant was still seeking a confidentiality order from
the Court regarding certain information in the record. The findings that he is
seeking are as follows:
[translation]
ORDER that all documents containing the
identity, age, sex, address or status of the applicant be kept confidential,
including the Court docket, so the applicant cannot be identified [sic];
ORDER that all documents already protected
by federal legislation not be accessible and that they be kept confidential in
accordance with the security level pre-determined by the Government of Canada [sic];
ORDER that the Canadian Human Rights
Commission destroy all information obtained from the RCMP that is protected by
the Criminal Records Act [sic].
[65]
For his part, the respondent noted that the
applicant cannot make a disguised appeal of the order from July 11, 2016, in
which is confidentiality motion was dismissed. He also noted that information
protected under the CRA and contained in the Court record were redacted. Citing
Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, at
para 53 [Sierra Club] and MJ v Canada (Public Safety and
Emergency Preparedness), 2011 FC 786, the respondent nonetheless agreed to
have the style of cause, the reasons for decision and the entries in the Court
ledger amended and replaced by the applicant’s initials to allow for an appropriate
balance between the open court principle and the protection of the applicant’s
private information.
[66]
The open court principle is well-recognized in
jurisprudence (Sierra Club, at paras 53–57; Canadian Broadcasting
Corporation v New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais
v Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835).
[67]
Nonetheless, since the order on July 11, 2016,
documents containing sensitive information have been placed in the Court
record.
[68]
First, the Commission’s investigation report
submitted by the applicant refers to various criminal convictions which may
have been the subject of suspensions under the CRA.
[69]
As well, Exhibit G from the affidavit by
Stéphane Gagné, deemed inadmissible, contains the following documents:
- The
hiring questionnaire completed by the applicant
- An
RCMP “Continuation Report”
- The
expert polygraph report prepared following the pre-employment polygraph
- The
“Security Clearance Form 330-60E”;
- The
[translation] “Pre-employment
polygraph acknowledgement” and the “Continuation Report”
- Emails
and correspondence exchanged with the applicant
[70]
The purpose of the criminal record suspension
set out in section 2.3 of the CRA is to minimize the consequences of a criminal
record.
[71]
Consequently, the Court orders that the
unredacted investigator’s report contained in the Commission’s record and in
the applicant’s record be sealed. Those copies of the Commission’s report shall
be replaced by the redacted copy provided by the respondent. The court also orders
that Exhibit G from Stéphane Gagné’s affidavit be sealed. These documents shall
be kept in a separate file and shall only be accessible with authorization.
[72]
Considering the spirit of the CRA and the
respondent’s consent, the record must also be anonymized. The Court allows the
applicant to be referred to by his initials for the purposes of the judgment
and orders that information that could identify him be removed from the Court’s
index of proceedings.
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