Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385
Her Majesty The Queen, as represented
by the Department of Agriculture, and
the Deputy Minister of Agriculture Appellant
v.
Robert Thomson Respondent
and
Security Intelligence Review Committee Intervener
Indexed as: Thomson v. Canada (Deputy Minister of Agriculture)
File No.: 22020.
1991: October 28; 1992: February 13.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.
on appeal from the federal court of appeal
Public Service -- Security clearance -- Successful candidate denied requisite security clearance -- Security Intelligence Review Committee recommending security clearance -- Deputy Minister refusing to follow Committee's recommendation -- Whether Deputy Minister required to follow Committee's recommendation -- Canadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 42, 52(1), (2).
Statutes -- Interpretation -- Public Service -- Security clearance -- Successful candidate denied requisite security clearance -- Security Intelligence Review Committee recommending security clearance -- Deputy Minister refusing to follow Committee's recommendation -- Meaning of word "recommendations" in Canadian Security Intelligence Service Act.
Administrative law -- Natural justice -- Right to be heard -- Public Service -- Security clearance -- Successful candidate denied requisite security clearance -- Security Intelligence Review Committee recommending security clearance -- Deputy Minister refusing to follow Committee's recommendation -- Candidate not given hearing by Deputy Minister -- Whether denial of natural justice.
Respondent was offered a public service position in 1984, subject to his obtaining security clearance. The Canadian Security Intelligence Service conducted an investigation and advised the department against granting the requisite security clearance. The department's Deputy Minister considered the CSIS report, and after consulting with the Privy Counsel Office, denied the security clearance and rescinded the job offer. The respondent then filed a complaint with the Security Intelligence Review Committee pursuant to s. 42 of the Canadian Security Intelligence Service Act. The Committee conducted an investigation, held two meetings where the parties were present and/or represented by counsel, and issued a report pursuant to s. 52 which recommended that respondent be granted the security clearance. The Deputy Minister nevertheless decided to maintain his denial of the security clearance.
The respondent first commenced an action in the Federal Court of Appeal, pursuant to s. 28 of the Federal Court Act, to have the Deputy Minister's decision to deny the security clearance set aside. The court held that, while the Deputy Minister was bound by the Review Committee's recommendation, the court did not have jurisdiction under s. 28 to review and set aside his decision. The respondent then sought certiorari to set aside the Deputy Minister's decision and mandamus to require the Deputy Minister to grant him security clearance. The judge denied the application. He concluded that "recommendations", according to the ordinary meaning of the word, was not binding. The Federal Court of Appeal reversed that decision, set aside the Deputy Minister's decision to deny security clearance and ordered him to grant it.
At issue here is whether a Deputy Minister is bound to follow the "recommendations" of the Security Intelligence Review Committee, and more particularly, the meaning to be given the word "recommendations" in s. 52(2) of the Canadian Security Intelligence Service Act.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.: In order to interpret "recommendations" in s. 52(2), the Canadian Security and Intelligence Service Act must be read as a whole in order to ascertain its aim and object. When the words used in the statute are clear and unambiguous, no other step is needed to identify the Parliament's intention.
The simple term "recommendations" should be given its ordinary meaning. "Recommendations" ordinarily means the offering of advice and should not be taken to mean a binding decision. There is nothing in either the section or the Act as a whole which indicates that the word "recommendations" should have anything other than its usual meaning.
The Committee's recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensure the accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion to consider. It is no more than that. The wording of this section would be strained by giving the statute any wider scope. The Deputy Minister bears the onerous responsibility not only for the granting of security clearance but also for the ongoing security in his or her department. Accordingly, the final decision as to security clearance should be left to the Deputy Minister, notwithstanding the recommendations of the Committee.
The word "recommendations" is used in other provisions of the Act. Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an Act. In s. 52(1) "recommendations" has its ordinary and plain meaning of advising or counselling. Parliament could not have intended the word "recommendations" in s. 52(2) to receive a different interpretation.
Finally, the Deputy Minister had evidence upon which he could reasonably have concluded that the respondent's security clearance should have been denied.
Per L'Heureux‑Dubé J. (dissenting): The Deputy Minister was bound to follow the "recommendations" of the Security Intelligence Review Committee.
To determine the meaning of any particular statutory provision, the act must be read as a whole in order to ascertain its aim and object. Heed must be paid to the language used, the context of both the specific provision and the law itself, and the purpose or intent of the legislation. Although Parliament's intent can sometimes be discerned by the "plain meaning" of a statutory provision, "plain meaning" itself depends on the context of the provision and the overall scheme of the act. The meaning of specific terms must also be reconciled with the intent of Parliament.
Reference to context and intent is important since the word "recommendations" does not lend itself automatically to a single, rigid definition. Dictionary definitions are all merely suggested meanings; the true meaning of the word must necessarily flow from its context within the entire statute. Thus, while "recommendations" often connotes advice or information which the recipient may disregard, the term might also refer to directions or orders which are binding.
The words in the Act must also be given a meaning consistent with both its French and English texts. Section 52(2) of the French text of the Canadian Security and Intelligence Service Act refers to "recommandations". The words "commandement" and "ordre" are dictionary synonyms for "recommandation".
Context refers both to the provisions immediately surrounding the provision under examination and to the overall scheme of the statute. Nothing necessarily compels that a permissive meaning be attributed to the term "recommendations". Other provisions in the Act, moreover, are consistent with the less restrictive interpretation.
The section 42 mechanism for review of denials of security clearance suggests something more than an advisory role for the Committee. The Deputy Minister's adversarial role in the Committee's hearing also indicates that the Committee's recommendations are more than suggestive. A fundamental tenet of natural justice is contradicted if the deputy minister can, following a hearing to which he or she has been a party and without any other reasons than those he or she expressed at the hearings, reverse the decision that resulted from the hearing.
Finally, a judge's fundamental consideration in statutory interpretation is the purpose of legislation. In setting up the review mechanism under s. 42, Parliament must have intended to provide a system of redress for parties who were unjustly deprived of employment due to erroneous or flawed CSIS reports. Parliament could not have intended to create a situation where a civil servant could be denied employment or promotion without any chance of righting a wrong done to him or her, especially given the context of today's labour relations.
Only where a candidate has proved to the Committee that the CSIS report contains spurious or unfounded allegations and the Committee recommends that the clearance be granted must the Deputy Minister accept the candidate. Although the Deputy Minister must bear ultimate responsibility for security even if acting on another body's directives, this situation is not unique.
Even if the Deputy Minister had the discretion to deny a security clearance notwithstanding the Committee's report, the appeal should be dismissed on the grounds that he did not exercise that discretion properly. The Deputy Minister's decision disregarded the Review Committee's recommendations on the strength of the original CSIS report. Since the Review Committee's findings served to correct and revise the CSIS report, the Deputy Minister should have relied almost exclusively on them rather than on the erroneous CSIS allegations.
The Deputy Minister also failed to respect the requirements of natural justice, since he neither gave the respondent reasons for his decision nor a chance to be heard.
Cases Cited
By Cory J.
Distinguished: Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504; referred to: Lee v. Attorney General of Canada, [1981] 2 S.C.R. 90; Attorney General of Canada v. Murby, [1981] 1 F.C. 713; R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643.
By L'Heureux‑Dubé J. (dissenting)
Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Cloutier v. The Queen, [1979] 2 S.C.R. 709; Quebec Railway, Light, Heat and Power Co. v. Vandry, [1920] A.C. 662; City of Victoria v. Bishop of Vancouver Island, [1921] 2 A.C. 384; Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436; R. v. Sommerville, [1974] S.C.R. 387; Julius v. Bishop of Oxford (1880), 5 A.C. 214; Hands v. Law Society of Upper Canada (1890), 17 O.A.R. 41; Bridge v. The Queen, [1953] 1 S.C.R. 8; Labour Relations Board of Saskatchewan v. The Queen, [1956] S.C.R. 82; Cité de Côte‑St‑Luc v. Canada Iron Foundries Ltd, [1970] C.A. 62; Reference as to the constitutional validity of certain sections of The Fisheries Act, 1914, [1928] S.C.R. 457; R. v. S.(S.), [1990] 2 S.C.R. 254; Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504; The King v. Christ's Hospital Governors, [1917] 1 K.B. 19; The Queen v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653.
Statutes and Regulations Cited
Cabinet Directive No. 35, August 9, 1978.
Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C., 1985, c. C‑23), ss. 5(i), 41, 42, 52(1), (2).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Financial Administration Act, R.S.C. 1970, c. F-10.
Official Languages Act, R.S.C. 1970, c. O‑2, ss. 8(1), (2)(d).
Public Service Employment Act, R.S.C. 1970, c. P-32.
Authors Cited
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Qué.: Yvon Blais, 1991.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985.
Petit Robert 1. Paris: Le Robert, 1984, "recommandation".
APPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 820, setting aside a judgment of the Federal Court, Trial Division, [1989] 1 F.C. 86, dismissing an application for writs of certiorari and mandamus after the dismissal, for want of jurisdiction, of an application to the Federal Court of Appeal under s. 28 of the Federal Court Act, [1988] 3 F.C. 108, 31 Admin. L.R. 14. Appeal allowed, L'Heureux‑Dubé J. dissenting.
I. G. Whitelhall, Q.C., and B. S. Russell, for the appellant.
Sean T. McGee and Steven J. Welchner, for the respondent.
Simon Noël and Sylvie Roussel, for the intervener Security Intelligence Review Committee.
//Cory J.//
The judgment of La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ. was delivered by
Cory J. -- The prime issue on this appeal is whether a deputy minister is bound to follow the "recommendations" of the Security Intelligence Review Committee.
Factual Background
In 1984, Robert Thomson, the respondent, was offered a position with the International Affairs Directorate of Agriculture Canada. The offer was subject to the granting of security clearance to the respondent. The Canadian Security Intelligence Service ("CSIS") conducted an investigation. CSIS then reported to the Department of Agriculture. It advised that the respondent was not an individual in whom the Canadian government could repose full confidence or who should be in a position where he would have access to documents and matters that were classified for reasons of national interest. The conclusion was based upon the following findings by CSIS:
-that you may have revealed the classified contents of a message from the Canadian Ambassador in Santiago to the Department of External Affairs in Ottawa in 1973;
-that you revealed the contents of a classified telex to a Member of Parliament in 1973 and that you at first denied knowing the Member of Parliament;
-that you refused to name the person with whom you said you had discussed the contents of the classified telex ...;
-that by your own admission you transmitted letters in a clandestine fashion to a recipient in Guyana;
-that you have maintained contact, in a clandestine manner, with officials and/or agents of foreign governments and offered to provide classified information on at least one known occasion to them.
The Deputy Minister considered the CSIS report. After consulting with the Privy Counsel Office, he denied security clearance to the respondent and rescinded the job offer. The respondent then filed a complaint with the Security Intelligence Review Committee (the "Committee"). This was done pursuant to s. 42 of the Canadian Security Intelligence Service Act, S.C. 1984, c. 21, (the "Act"). The Committee conducted an investigation. The Committee then held hearings on August 13, October 9 and November 7, 1985. Throughout the hearings the respondent was present with counsel. The Deputy Minister and the Committee were each represented by separate counsel. Pursuant to s. 52 of the Act, the Committee then issued a report which recommended the granting of security clearance to the respondent. The essential aspects of the report were as follows:
We find that, with one exception, the allegations concerning Mr. Thomson's activities since 1973 are not supported by the evidence. The exception is that Mr. Thomson was not forthright in his interview with the CSIS investigator when he was questioned in 1985 about the unauthorized release of telexes in 1973.
...
It remains that Mr. Thomson admitted to the unauthorized release of classified information .... This release was not, it should be noted, to a foreign power, but to a Canadian M.P. It was, nevertheless, a serious breach of trust, and the question which must be answered is: would Mr. Thomson do such a thing in the future if circumstances led to his becoming, once again, emotionally engaged?
The answer to that question must be entirely subjective. We believe that since the incidents took place some twelve years ago when Mr. Thomson was both less experienced and less mature, his actions then cannot, in the absence of other evidence, lead to the conclusion that, in similar circumstances, he would act in the same way now or in the future. There was no other evidence which would have led us to that conclusion.
We find, therefore, that Mr. Thomson would be unlikely to release classified information if he were once again employed in a position with access to such material.
Recommendation
We recommend that the Deputy Minister of Agriculture Canada grant Mr. Thomson a Secret security clearance so that he may continue his career in the position offered to him in 1984.
Despite the recommendation, the Deputy Minister decided to maintain his decision to deny security clearance. It was his opinion that he should not grant security clearance until his doubts as to the reliability of the respondent had been resolved. Neither the report of CSIS nor that of the Committee had resolved these doubts.
Decisions in the Courts Below
Federal Court of Appeal, [1988] 3 F.C. 108
The respondent first commenced an action in the Federal Court of Appeal, pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to have the Deputy Minister's decision set aside. Stone J.A. writing for the court recognized that the interpretation of the word "recommendations" as it appears in s. 52(2) of the Act was crucial. He concluded that the word was not used in its literal sense. It was his opinion that the Deputy Minister was not entitled to "re‑make" a decision he had already rendered after the matter had become the subject of a "complaint" and of a "recommendation". Stone J.A. concluded that the Deputy Minister was bound by the recommendation. However, it was his view that the court did not have jurisdiction under s. 28 of the Federal Court Act to review and set aside the decision of the Deputy Minister denying security clearance.
Federal Court, Trial Division, [1989] 1 F.C. 86
The respondent next applied for relief by way of certiorari to set aside the Deputy Minister's decision to deny the security clearance and by way of mandamus to require the Deputy Minister to grant security clearance to him. Dubé J. concluded that the word "recommendations" in the Act retained its ordinary meaning. That is to say that it was not a binding decision or conclusion but simply a recommendation to the Deputy Minister. He found that there was no obligation cast upon the Deputy Minister to follow the Committee's recommendation. Accordingly, Dubé J. denied the application. In his opinion, the Deputy Minister had acted fairly and, therefore, the Court would not interfere with the Deputy Minister's discretionary decision.
Federal Court of Appeal, [1990] 2 F.C. 820
The Federal Court of Appeal reversed the decision of the trial judge, set aside the Deputy Minister's decision to deny security clearance and ordered him to grant the required security clearance to Mr. Thomson.
The Key Statutory Provisions
The Canadian Security Intelligence Service Act, S.C. 1984, c. 21, s. 52 (now R.S.C., 1985, c. C‑23) provides:
52. ...
(2) On completion of an investigation in relation to a complaint under section 42, the Review Committee shall provide the Minister, the Director, the deputy head concerned and the complainant with a report containing any recommendations that the Committee considers appropriate, and those findings of the investigation that the Committee considers it fit to report to the complainant.
A reading of the section makes it clear that this case will turn upon the meaning given to the word "recommendations".
Background
A. The Prerogative Power and Cabinet Directive No. 35
So long as forms of government have existed they have engendered confidential conversations, confidential documents and confidential materials. All forms of government must have trust in their employees and officers to preserve that degree of security which a government requires to operate effectively. Democracies tend to be more open than other forms of governments. Although some governments are more open than others, it nonetheless remains true that all governments must maintain some degree of security and confidentiality in order to function. The most open democracy still requires a high degree of security and confidentiality with regard to many matters including, for example, the defence of the realm or trade negotiations. The degree of security required will vary with the position and role of the government employee. The higher the position, the greater will be the access to sensitive information, and the greater the need for security.
Originally, it was the monarch that appointed and managed the public service. The power of appointment was historically a royal prerogative. The ever expanding role of public service led to the passage of legislation in the 1960s establishing the Treasury Board, the Public Service Commission and the Public Service Staff Relation Board. The role of these bodies was to manage and control the federal public service. Nonetheless, the power to grant or deny security clearances as a condition of appointment remained part of the royal prerogative or more appropriately, in our times, a function of management controlled by the Crown.
This principle was recognized in Lee v. Attorney General of Canada, [1981] 2 S.C.R. 90. That case specifically approved the reasons of Le Dain J.A. (as he then was) in the Federal Court of Appeal decision of Attorney General of Canada v. Murby, [1981] 1 F.C. 713. There it was found that the authority to require security clearance as a condition of appointment and the authority to determine whether such clearance should be granted were part of the management authority. It was held that these functions had not been excluded or reassigned by the Public Service Employment Act, R.S.C. 1970, c. P-32.
Furthermore, the Federal Court of Appeal noted that Cabinet Directive No. 35 ("C.D. 35") was a directive from the government concerning the exercise of this component of the management authority. It was confirmed that the deputy head or Deputy Minister bore the responsibility for making the decision as to security clearance in any particular case. Le Dain J. concluded that the prerogative power to grant security clearance was delegated to the Deputy Minister in accordance with the requirements of C.D. 35. That directive was superseded in 1987 by a similar one entitled "Security Policy of the Government of Canada" issued by the Treasury Board of Canada, under the authority of the Financial Administration Act, R.S.C. 1970, c. F-10.
Cabinet Directive No. 35 is not, of course, legislative in nature. Rather, it is an internal directive which instructs civil servants as to the manner in which the royal prerogative is to be exercised. Specifically, the directive requires that a security clearance is mandatory for anyone who will have access to classified material. It outlines the procedures for obtaining information about individuals from appropriate sources. Two paragraphs in C.D. 35 are of particular significance:
13.... If ... there is in the judgment of the deputy minister ... a reasonable doubt as to the degree of confidence which can be reposed in the subject, the granting of a security clearance will be delayed until the doubt has been resolved to the satisfaction of the deputy minister....
25.... The deputy head of department or agency will be responsible for granting or withholding a security clearance and will assume a continuing responsibility for a person's access to Top Secret, Secret and Confidential information.
It can thus be seen that before the Act came into existence, there was a system in place which ensured the security of the government.
B. The Canadian Security Intelligence Service Act
In 1984, the Canadian Security Intelligence Service Act was passed. It provided a statutory means for dealing with security matters in the public service. Part I of the Act established the Canadian Security Intelligence Service (CSIS). Part II provided for the judicial control of its operation. Part III applied to the control and review of CSIS through the Security Intelligence Review Committee. The Committee was given broad powers to investigate complaints by those individuals who were refused employment based on a denial of a security clearance.
The investigation pertaining to the denial of a security clearance may include a full hearing. At such a hearing, all parties are entitled to be represented by counsel, to call and examine witnesses and to make representations. Upon completion of the investigation, the Committee must provide the CSIS Director, the deputy head concerned, the Solicitor General of Canada and the complainant with a report "containing any recommendations that the Committee considers appropriate, and those findings of the investigation that the Committee considers it fit to report to the complainant".
This then is the background against which s. 52(2) of the Act should be considered. Consideration must now be given to the fundamental question of whether the "recommendations" of the Committee are binding upon the Deputy Minister.
Statutory Limitations on the Prerogative Power
It is beyond doubt that the prerogative power of the Crown can be abolished or limited by statute. Once a statute occupies the ground formerly occupied by the prerogative power, the Crown must comply with the terms of the statute. See, for example, Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 11. Thus, if the "recommendations" of the Committee, referred to in s. 52(2), are interpreted as a decision binding upon the Deputy Minister, then the Act will limit the prerogative powers formerly exercised by the Deputy Minister.
The Interpretation of s. 52(2)
Positions of the Parties
The respondent and the intervening Committee contend that the Act introduces a three level system for dealing with security clearances. This system, as they see it, is based upon an interpretation of "recommendations" as a "binding decision". Their arguments proceed in this way. First, the Deputy Minister is solely responsible for granting or denying security clearance in accordance with C.D. 35, using the information received from CSIS. Second, if an individual lodges a complaint with the Committee, the Committee then conducts an investigation and reports its recommendations. Third, the Deputy Minister must give effect to the recommendations made by the Review Committee. In circumstances where the Deputy Minister considers fresh information which was not examined by the Review Committee, then the Deputy Minister may return to step one of the process and refuse a security clearance. At that point, the same three‑step process would again be set in motion.
On the other hand, the appellant submits that the Act does not relieve Deputy Ministers of their responsibility to grant or to deny security clearances. The appellant contends that the "recommendations" of the Committee are advisory only. Moreover, it is argued that the purpose of the investigation is to disclose to the complainant the reasons for denial of clearance and to provide the complainant with an opportunity to be heard.
Meaning of "Recommendations"
All parties are in agreement that in order to interpret "recommendations" in s. 52(2), the Canadian Security Intelligence Service Act must be read as a whole in order to ascertain its aim and object. As well, it is accepted that when the words used in the statute are clear and unambiguous, no other step is needed to identify the intention of Parliament. See, for example, R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, at p. 630.
The respondent argues that the word "recommendations" should not automatically be given its ordinary meaning. Rather, it should be interpreted in the context of the statute. Great reliance is placed on the Australian case Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504. In that case, it was found that in the context of a statute empowering the Governor to make regulations "on the recommendation" of a municipal authority or council, that the Governor's regulations must closely conform with the recommended draft. The Myer case is readily distinguishable from the case at hand. The wording of the legislation challenged in that case made it very clear that the "recommendation" had to be followed. The statute in the Myer case specifically contemplated some action being taken by one party "on the recommendation of" another party. By contrast, s. 52(2) does not concern itself with any action by a deputy head "on the recommendation" of the Committee.
The contention of the respondent should not, in my view, be accepted. The simple term "recommendations" should be given its ordinary meaning. "Recommendations" ordinarily means the offering of advice and should not be taken to mean a binding decision. I agree with the conclusion of Dubé J. of the Trial Division who noted, at p. 92, that:
The grammatical, natural and ordinary meaning of the word "recommendation" is not synonymous with "decision". The verb "to recommend" is defined in the Oxford English Dictionary as "to communicate or report, to inform". In Webster's Third New International Dictionary it is defined as "to mention or introduce as being worthy of acceptance, use, or trial; to make a recommendatory statement; to present with approval; to advise, counsel".
There is nothing in either the section or the Act as a whole which indicates that the word "recommendations" should have anything other than its usual meaning. The Committee's recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensure the accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion to consider. It is no more than that. The wording of this section would be strained by giving the statute any wider scope. It should never be forgotten that it is the Deputy Minister who is responsible, not simply for the granting of security clearance, but for the ongoing security in his department. It is an onerous responsibility that is cast upon the Deputy Minister. Accordingly, it is reasonable and appropriate that the final decision as to security clearance is left to the Deputy Minister, notwithstanding the recommendations of the Committee. The conclusion that the words in the statute are clear and unambiguous is sufficient to dispose of the appeal. Nevertheless, I should make a brief reference to two of the other issues raised.
Harmonious Interpretation of "Recommendations" within the Sections and the Act.
There is another basis for concluding that "recommendations" should be given its usual meaning in s. 52(2).
The word is used in other provisions of the Act. Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act. Section 52(1) directs the Committee to provide the Minister and Director of CSIS with a report containing the findings with regard to s. 41 investigations and any "recommendations" that the Committee considers appropriate. A section 41 investigation stems from a complaint to the Committee "with respect to any act or thing done by" CSIS.
It would be obviously inappropriate to interpret "recommendations" in s. 52(1) as a binding decision. This is so, since it would result in the Committee encroaching on the management powers of CSIS. Clearly in s. 52(1) "recommendations" has its ordinary and plain meaning of advising or counselling. Parliament could not have intended the word "recommendations" in the subsequent subsection of the same section to receive a different interpretation. The word must have the same meaning in both subsections.
Was there Evidence Upon Which the Deputy Minister Could Conclude that the Respondent's Security Clearance Should be Denied
It is the respondent's position that the Deputy Minister had no evidence upon which he could reasonably have concluded that the respondent's security clearance should have been denied. I cannot accept this submission. It must be remembered that the Committee emphasized that its own conclusions were "entirely subjective". The Committee found that the respondent had in fact admitted to the unauthorized release of classified information while working for the Canadian International Development Agency. The Committee also determined that the respondent had lied to the CSIS investigators about the telex incidents. Thus, there was evidence upon which the Deputy Minister could conclude that the respondent's security clearance should be denied.
It is clear that the Deputy Minister, did, in fact, rely upon this evidence to support a clearance refusal. In a letter dated June 4, 1986, the Deputy Minister wrote to Mr. Thomson's solicitor and advised him that "the decision to deny security clearance is maintained". The letter also mentioned the report of the Review Committee. It can be readily inferred from this letter that the Deputy Minister maintained the clearance refusal only after considering the report. Further the Deputy Minister in his affidavit of September 5, 1986, explained, his reasons for continuing to deny security clearance. In paragraphs 17-19 of that affidavit he deposed that the refusal was based on "the said report from the Canadian Security Intelligence Service, even as commented upon or explained in the said report from the Security Intelligence Review Committee". This clearly indicates that the Deputy Minister made his decision only after considering the evidence of the Review Committee.
The Requirements of Natural Justice
This Court has repeatedly recognized the general common law principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653). It follows that the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party's own position. When all the surrounding circumstances are taken into account it is clear that the Deputy Minister fully satisfied these requirements.
Prior to the Review Committee hearing, Mr. Thomson had been apprised of the objections of the Deputy Minister in a document titled "Statement of Circumstances Giving Rise to the Denial of a Security Clearance to Robert Thomson by the Deputy Head of Agriculture Canada". This document listed the objections considered by the Deputy Minister in his clearance denial. Mr. Thomson was given a full opportunity to respond to the allegations against him at his hearing before the Review Committee. Despite his own explanations and the submissions made on his behalf, the Review Committee accepted that three of the five reasons for refusal in the above document were in fact well founded. It is thus apparent that Mr. Thomson was given proper notice and a full hearing in regard to the allegations which formed the basis of the Deputy Minister's decision. The requirements of natural justice have been satisfied.
Summary
The word "recommendations" in the context of s. 52(2) should receive its plain and ordinary meaning. It should not be taken to mean a final or binding decision. Consequently, s. 52(2) does not detract from the Deputy Minister's authority to make the ultimate decision regarding security clearance. This conclusion flows from the wording of s. 52(2). It is supported by the compelling policy reasons for ensuring government security, a duty which is the responsibility of each deputy head.
Further, the Deputy Minister clearly had evidence upon which he could base his conclusion that security clearance should not be granted. In those circumstances, a court should not interfere with that decision.
Disposition
In the result, I would allow the appeal and deny the applications for certiorari and mandamus.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'Heureux-Dubé J. (dissenting) -- I have read the reasons of my colleague Justice Cory and, with respect, I can agree neither with them nor with his conclusion. In my opinion, the Deputy Minister was bound to follow the "recommendations" of the Security Intelligence Review Committee (the "Committee") in the circumstances of the case at bar, largely for the reasons set forth by Stone J.A. for the unanimous Federal Court of Appeal, [1988] 3 F.C. 108.
The main issue in this case, as my colleague points out, is the interpretation of s. 52(2) of the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (the "Act") and, specifically, whether a Deputy Minister may ignore the recommendations of the Committee which has reviewed the security clearance of an applicant.
I agree with my colleague Cory J. that, to determine the meaning of any particular statutory provision, the act "must be read as a whole in order to ascertain its aim and object". While judges long ago might have thought that it was possible to confine their examination to the words of a particular provision alone, today it is well established that, in statutory interpretation, heed must be paid to the language used, the context of both the specific provision and the law itself, and the purpose or intent of the legislation. The current approach is aptly explained by Côté in The Interpretation of Legislation in Canada (2nd ed. 1991) at pp. 324:
Interpretation founded on text alone is unacceptable, if only because words have no meaning in themselves. Meaning flows at least partly from context, of which the statute's purpose is an integral element. Not only does the strictly literal approach ask more of language than it can offer, but it also overestimates the foresight and skill of the drafter. The separation of powers should not necessarily exclude collaboration between them. Drafters are not clairvoyant, they cannot anticipate all circumstances to which their texts will apply. Courts should do more than simply criticize, and the drafter should be able to count on their positive cooperation in fulfilling the goals of legislation. Lord Denning said that the judge, because of the special nature of his role, cannot change the fabric from which the law is woven, but he should have the right to iron out the creases.
The well known passage by Driedger in Construction of Statutes (2nd ed. 1983) at p. 87, cited with approval by Chief Justice Dickson in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, emphasises these points:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Emphasis added.]
Or, as Justice Pratte wrote in Cloutier v. The Queen, [1979] 2 S.C.R. 709, at p. 719:
A legislative provision should not be interpreted in isolation; its true meaning cannot be determined without giving consideration to the object of the statute in which it is contained and to the related provisions taken as a whole. Otherwise, there is a danger of arriving at an absurd conclusion.
Here, the crux of the case is the meaning of the word "recommendations" in s. 52(2) of the Act, which reads as follows:
52. ...
(2) On completion of an investigation in relation to a complaint under section 42, the Review Committee shall provide the Minister, the Director, the deputy head concerned and the complainant with a report containing any recommendations that the Committee considers appropriate, and those findings of the investigation that the Committee considers it fit to report to the complainant. [Emphasis added.]
For my colleague Cory J., the Committee's report under this section cannot be binding because the term "recommendations" usually connotes advice, and because, in his view, there is nothing in the provision or in the Act which indicates that the word should have anything other than its ordinary meaning. In my opinion, however, the context of the Act and the intention of the legislation which can be deciphered from the whole statute, as well as the plain meaning of the words used, do not lead to my colleague's conclusion but to a contrary one.
Plain Meaning
In interpreting the plain meaning of a statute, the search for the one, true literal or dictionary definition is no longer paramount. According to Côté, supra, at p. 243:
Contemporary authorities have unequivocally rejected the idea that a statute's context can be ignored, and its interpretation founded on no more than the wording of the legislation.
See Quebec Railway, Light, Heat and Power Co. v. Vandry, [1920] A.C. 662, at p. 672; City of Victoria v. Bishop of Vancouver Island, [1921] 2 A.C. 384, at p. 387; Attorney‑General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436, at p. 461; R. v. Sommerville, [1974] S.C.R. 387, at p. 395.
The limitations inherent in interpretation with reference to the text of a particular statutory provision alone are by now well known. As Driedger, supra, explains at p. 3:
Words, when read by themselves in the abstract can hardly be said to have meanings. A dictionary may give many definitions of a word, but it cannot have meaning unless it is connected with other words or things so as to express an idea. [Emphasis in original.]
Côté expands on this idea at p. 221:
The need to determine the word's meaning within the context of the statute remains. Dictionaries provide meanings for a number of standard and recurring situations. Even the best of them will only tersely indicate the context in which a particular meaning is used. The range of meanings in a dictionary is necessarily limited. It cannot be sufficiently repeated "how much context and purpose relate to meaning".
Accordingly, although the intent of Parliament can sometimes be discerned by the "plain meaning" of a statutory provision, "plain meaning" itself depends on the context of the provision and the overall scheme of the act. As Driedger notes at p. 89:
The general principles, as we have seen, are that if the words are clear and unambiguous they must be followed; but if they are not, then a meaning must be chosen or found. But the Act must be read as a whole first, for only then can it be said that the words are or are not clear and unambiguous.
Finally, the meaning of specific terms must also be reconciled with the intent of Parliament, as Driedger reiterates at p. 83:
It is clear that today, the words of an Act are always to be read in the light of the object of the Act.
The classic example of the application of these principles arises in the context of legislation containing permissive or directory language. The expressions "may" or "it shall be lawful", for instance, have often been held by the courts to exclude the possibility of discretion; Côté, supra, p. 199 and generally at pp. 199-202. In Julius v. Bishop of Oxford (1880), 5 A.C. 214, the House of Lords held that the meaning of the term "it shall be lawful" must be inferred from the context of the statutory provision, rather than from the "plain and unambiguous" ordinary meaning of the expression. As the Lord Chancellor wrote at pp. 222‑23:
The words "it shall be lawful" are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. [Emphasis added.]
Similarly, the Ontario Court of Appeal held in Hands v. Law Society of Upper Canada (1890), 17 O.A.R. 41, at p. 50, that the presumption that "shall" was mandatory and "may" was facultative was not dispositive:
I see nothing in this case, or in any other case, to warrant our holding that whenever the Legislature has created a tribunal to try offences or exercise such powers of deprivation as are given in the case before us, and empowers that tribunal to compel the attendance of witnesses and to examine them on oath, that it can be left to discretion to exercise such powers or not.
It has been suggested that our Interpretation Acts have stamped unalterable meanings on such words as "shall" and "may". I can hardly think that the Legislature intended any change in the law.
This approach was adopted by this Court in Bridge v. The Queen, [1953] 1 S.C.R. 8, at pp. 12‑13:
... it is first submitted that as the permissive word "may" is used in section 5 of the by‑law Council have left it to the City Clerk to decide whether permits shall be issued at all; but the by‑law must, of course, be read and construed as a whole and it is obvious from other provisions that the Clerk must issue permits in the manner laid down in the by‑law.
The Court emphasized in Labour Relations Board of Saskatchewan v. The Queen, [1956] S.C.R. 82, that looking beyond permissive language to the intent of the legislator is particularly important in the context of statutory provisions which give effect to legal rights. According to Locke J. at pp. 86‑87:
The language of s. 5, in so far as it affects this aspect of the matter, reads: -‑
5. The board shall have power to make orders: -‑
..........
(i) rescinding or amending any order or decision of the board.
While this language is permissive in form, it imposed, in my opinion, a duty upon the Board to exercise this power when called upon to do so by a party interested and having the right to make the application .... Enabling words are always compulsory where they are words to effectuate a legal right .... [Emphasis added.]
The Quebec Court of Appeal followed this example in Cité de Côte‑St‑Luc v. Canada Iron Foundries Ltd., [1970] C.A. 62. At page 65, Tremblay C.J. stressed the dangers of conferring discretion in certain circumstances:
[translation] There would have to be a text of great clarity to lead me to conclude that the legislature was imprudent enough to confer on municipal councils the discretionary power to accept or refuse a review at their whim. What a risk of favouritism and persecution.
For other cases in which this Court has interpreted permissive or mandatory expressions, see also Reference as to the constitutional validity of certain sections of The Fisheries Act, 1914, [1928] S.C.R. 457, at pp. 476‑77, and, more recently, R. v. S.(S.), [1990] 2 S.C.R. 254, per Dickson C.J., at pp. 274‑75.
In this case, reference to context and intent is important since, in my view, the word "recommendations" does not lend itself automatically to a single, rigid definition. As Dubé J. noted below, at p. 92, the meaning of the verb "to recommend" in the Oxford English Dictionary and Webster's Third New International Dictionary runs the gamut from "to communicate or report" to "to advise, counsel". Moreover, as Côté and Driedger point out, these dictionary definitions are all merely suggested meanings; the true meaning of the word must necessarily flow from its context within the entire statute. Thus, while "recommendations" often connote advice or information which the recipient may disregard, the term might also refer to directions or orders which are binding.
Accordingly, in Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504, a court found that a governor was obliged to make regulations "on the recommendation" of a municipal authority, without departing substantially from the authority's directions. Wells J. wrote at p. 547, paraphrasing counsel's argument with which he ultimately agreed:
Why should the legislature have gone to such lengths to ensure that the views of the public about proposed regulations should be thoroughly canvassed and that those regulations should conform with the provisions and objects of the authorized development plan, if no more was to be required of the Governor than that he should not act without consulting the Council, that he should not act in direct opposition to its advice, and that he should act simply on its instigation? Why invite and consider objections from the relevant public, and attempt, in advance, to ensure compliance with the authorized development plan, if such painstaking vigilance is to be set at naught by an interpretation of s. 36 that enables the Governor to depart substantially from the recommended draft? Should not the regulations, when made, therefore, conform closely with the recommended draft?
While I agree with Cory J. that Myer might be distinguished from the instant case because the meaning of the phrase "on the recommendation" may be different from that of the word "recommendations", Myer is still instructive with respect to the importance of the context of a statutory provision. It suggests that a very elaborate scheme for hearings provided by law shows a legislative intent to give the resulting report binding force, which in turn may imply that certain terms have something other than their "ordinary" meaning.
Similarly, in The King v. Christ's Hospital Governors, [1917] 1 K.B. 19, Darling J. wrote at p. 23:
The word "recommendation" is not there used in its ordinary sense as when one says "I recommend you to do so and so," or as when a doctor says to his patient "I recommend you to take a change of air." Although put in the form of a recommendation, the clause really empowers those bodies to say "We nominate such and such a person, and you must appoint him an almoner; we cannot put him there ourselves; you are the governors of the institution and you have the means of including him in the list". I think that what was in the minds of those who framed the scheme was something equivalent to a congé d'élire, which, though in words a permission or invitation to elect, is really a command to do it. So here a nomination is called a "recommendation". The most definite language has not been used, but, as I have said, I think the word "recommendation" is used not in the mild sense, but as really meaning a nomination.
The context of Christ's Hospital Governors again differs from that of the case at bar, and yet the interpretation, which emphasizes the intention of the legislature, supports the conclusion that the correct meaning of the word "recommendation" may not be discerned with reference to the strict language of s. 52(2) alone.
As well, I am bound to attribute the words in the Act a meaning which is consistent with both its French and English texts according to s. 8 of the Official Languages Act, R.S.C. 1970, c. O‑2. It reads in part:
8. (1) In construing an enactment, both its versions in the official languages are equally authentic.
(2) In applying subsection (1) to the construction of an enactment,
...
(d) if the two versions of the enactment differ in a manner not coming within paragraph (c), preference shall be given to the version thereof that, according to the true spirit, intent and meaning of the enactment, best ensures the attainment of its objects. [Emphasis added.]
In dealing with s. 8 in The Queen v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865, at p. 872, this Court said:
... the narrower meaning of one of the two versions should not be preferred where such meaning would clearly run contrary to the intent of the legislation and would consequently tend to defeat rather than assist the attainment of its objects.
Section 52(2) of the French text of the Act refers to "recommendations". In Le Petit Robert 1, the words "commandement" and "ordre" are listed as synonyms for "recommandation".
Context
Context refers both to the provisions immediately surrounding the provision under examination and to the overall scheme of the statute. As Côté explains at pp. 236‑37:
First of all it includes the legal environment of the provision, the other provisions of the statute, the related statutes, etc. This is the narrow view of context. But "context" goes much further: it includes all ideas related to the wording that Parliament can reasonably consider to be sufficiently common knowledge as to obviate mention in the enactment. This may include the circumstances which led to the enactment, the aim and purpose of Parliament, the legislator's value system and linguistic habits, etc.
Turning first to the immediate context of s. 52(2), I find nothing that would necessarily compel me to attribute a permissive meaning to the term "recommendations". My colleague maintains that the same word should have exactly the same meaning throughout a statute. Since s. 41 empowers the Committee to review "any act or thing" done by the Canadian Intelligence Security Service ("CSIS") and give recommendations, he contends that giving the Committee's recommendations binding force would allow it to usurp the management powers of CSIS.
However, I must again emphasize the importance of not limiting ourselves to hard and fast rules lending to literal interpretation. As Driedger points out at p. 93:
There is another draftsman's guide to good drafting and hence also a reader's guide, namely, the same words should have the same meaning, and, conversely, different words should have different meanings. But this too is only an initial guide and not a rule. [Emphasis added.]
Other provisions in the Act, moreover, are consistent with the less restrictive interpretation of "recommendations". As Stone J.A. pointed out in the first Federal Court of Appeal decision in this case ([1988] 3 F.C. 108), in which he held, at p. 138, that the Deputy Minister was bound to follow the Committee's recommendations but that the Federal Court did not have the jurisdiction to set the decision aside:
... other provisions of the Act rather suggest that Parliament did not use the word "recommendations" in its literal sense. Thus, among the "consequential and related amendments" are provisions for the referral of a security question to investigation by the intervenant in accordance with the procedures I have already reviewed, and for the making of a report upon the completion of an investigation pursuant to the Canadian Human Rights Act, (subsection 36.1(7)), ... or the Citizenship Act (subsection 17.1(5) ...) or the Immigration Act, 1976 (paragraphs 39(8)(a) ... and 82.1(6)(a) ...). It is significant, I think, that in none of these cases did Parliament authorize the intervenant to make any "recommendations" but merely "findings" or "conclusions" which the ultimate decision‑maker is authorized to "consider".
It appears, then, that the legislation distinguishes between the binding force of the conclusions which the Committee could make with respect to investigations involving CSIS, and other investigations perhaps involving matters outside its expertise. While the effect of recommendations made concerning complaints under s. 41 of the Act is not at issue in this appeal, I am not prepared to assume that it would be outrageous to attribute to them a great weight or even a binding force. Accordingly, I do not think the use of the term "recommendations" in s. 52(1) mandates the literal interpretation of the same word in s. 52(2).
Turning then to the overall scheme of the Act, the mechanism for review of denials of security clearance set up by s. 42 of the Act is so elaborate that it suggests something more than an advisory role for the Committee. Stone J. began by detailing, at pp. 136‑37, the extensive powers and obligations which the Committee has when undertaking investigations under s. 42:
In my view, the word "recommendations" in subsection 52(2) of the Act must be construed with an eye to the entire statutory scheme for the investigation of a "complaint" by an individual denied employment in the public service by reason of the denial of a security clearance. Certain features of that scheme impress me as indicating an intention of Parliament to provide the complainant with redress rather than with merely an opportunity of stating his case and of learning the basis for the denial. They include the care that was taken to establish eligibility for appointment to membership of the intervenant, the manner of selecting and tenure of office of those appointed (section 34); the requirement that each member subscribe to an oath of secrecy (section 37); the requirement that an adverse decision exist before the intervenant may commence an investigation (subsection 42(1)); the need for providing all concerned with a statement, or a copy thereof, "summarizing such information available to the Committee as will enable the complainant to be as fully informed as possible of the circumstances giving rise to the denial of the security clearance" (section 46); the requirement that both the Director and the deputy head be informed of the complaint before it is investigated (section 47); the opportunity made available to all concerned "to make representations to the Review Committee, to present evidence and to be heard personally or by counsel" (subsection 48(2)); the broad powers of the intervenant to summon and enforce the appearance of witnesses, and to compel the giving of evidence on oath and the production of "such documents and things as the Committee deems requisite to the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record", to administer oaths, and to receive and accept evidence or other information, whether on oath or by affidavit or otherwise (section 50); the extent of access granted the intervenant to information "notwithstanding any other Act of Parliament or any privilege under the law of evidence", and the proscription against withholding of such information "on any grounds" unless it be a confidence of the Queen's Privy Council for Canada to which subsection 36.3(1) of the Canada Evidence Act applies ... (subsections 39(2) and (3)). [Emphasis added.]
Based on this scheme, Stone J.A. concluded at pp. 137‑38, that the Committee's recommendations must be something more than mere suggestions, since otherwise Parliament need not have established such a complex mechanism for investigation of complaints:
In my view, the nature of this scheme indicates a desire by Parliament to provide a means of making full redress available to a complainant. It seems to me that a far less elaborate scheme would have sufficed had Parliament merely intended to provide means whereby a complainant might state his case to a third party and be made aware of the basis for denial of the clearance. The adoption of a detailed scheme by Parliament, which includes the obligation for a formal report in which "findings" and any "recommendations" are to be stated, suggests that this latter word was used other than in its literal sense. Secondly, the details of that scheme, including, for example, its emphasis on the need for prior notice, opportunity to be heard, summoning of witnesses, production of documents, access to sensitive information, etc., rather suggests an intention that the intervenant [the Committee] have the ability to examine the whole basis on which a denial rests to ensure such redress as its investigation may indicate. I can find no other acceptable explanation for arming it with such extensive powers. Given the lengths to which and the care with which Parliament dealt with this matter under the Act, I seriously doubt that it intended any "recommendations" to be merely advisory or suggestive. To view the scheme differently would be somewhat akin to saying that Parliament, like the mountains, though labouring mightily, brought forth a mouse.
The elaboration within the Act of the Deputy Minister's role in investigations provides another reason to conclude that the Committee's recommendations are more than suggestive. The Deputy Minister is a party to an adversarial process before the Committee. He has a full opportunity to state his case and defend his decision not to grant a security clearance, whether it was based on the CSIS report or other considerations. To conclude that, following the Committee hearings to which he has been a party, he may, without any other reasons than those he expressed at the hearings, reverse a decision which goes against his personal judgment, contradicts one of the fundamental tenets of natural justice. I agree with the respondent when he argues that: "It would be an absurd result for such a party to have a right at the end of the process to say that it is in fact the final decision‑maker on the very issue being litigated".
Purpose of the Legislation
Finally, a judge's fundamental consideration in statutory interpretation is the purpose of legislation. Côté writes at p. 249:
The function of all interpretation is to discover the meaning conveyed by the enactment, either explicitly or implicitly. If it has been written that courts must not add words to a law unless they are already implicit, it can be asserted, a contrario, that courts must also clarify what can be inferred from the context of the legal expression. A judge would be neglecting his duty were he to say: "I can see clearly what the statute intends, but its formulation is not appropriate".
Appellant's counsel argues that the almost exclusive purpose of the Committee is the internal regulation of CSIS. The Committee's recommendations to a Deputy Minister carry some persuasive force in terms of the final decision he or she will make, but he suggests that they function primarily as a commentary on the behaviour of CSIS's agents. In his view, since the Act does not explicitly relieve Deputy Ministers of their duty to ensure reliability and loyalty in their employees, no transfer of this power to the Committee may be inferred.
In my opinion, however, in setting up the review mechanism under s. 42, Parliament must have intended to provide a system of redress for parties who were unjustly deprived of employment due to erroneous or flawed CSIS reports. It would be illogical for Parliament to create the Committee and invest it with such extensive powers if, in the end, its conclusions could be ignored and complainants left in no better a position than they would have enjoyed had their complaints been unfounded. A Committee hearing involves a complete investigation of the complainant's character and history. It is difficult to see why an individual who had been denied a security clearance because of a CSIS report would go ahead with a complaint, if he or she had no assurance that a positive recommendation by the Security Committee would have any result whatsoever.
Besides, a decision that a deputy minister could deny a security clearance, despite a report refuting CSIS allegations and a positive recommendation by the Committee, means that a complainant would be the only civil servant who could be denied employment or promotion without any chance of righting a wrong done to him, as admitted by counsel for the appellant during the oral hearing before this Court. When asked whether a complainant would indeed have no remedy or recourse according to his interpretation of the Act, he replied:
He has no redress in the sense that he can compel or submit argument which would result in a legal right that he be granted a security clearance. He has the redress in the sense my lord Mr Justice La Forest has put, that he now has the opportunity to know why he was denied a security [clearance].
In the context of today's labour relations, it is hard to believe that Parliament would have had the intent to limit complainants' rights in the way that this admission suggests.
Finally, I must disagree with my colleague Cory J.'s view that the final decision as to the security clearance must be left to the Deputy Minister, since the Deputy Minister is responsible for ongoing security in his or her department.
Given the actual hiring process, the Deputy Minister has full discretion to eliminate anyone whom he or she does not like at the initial selection stage, without giving any reasons whatsoever. In fact, the provisions of Cabinet Directive No. 35 require Deputy Ministers, in the hiring process, to satisfy themselves that successful candidates are acceptable security risks. Deputy Ministers also have the ability to deny security clearances to candidates based on the CSIS reports they receive. It is only where a candidate has proved to the Committee that the CSIS report contains spurious or unfounded allegations, as in this case, and the Committee recommends that the clearance be granted, that the Deputy Minister must accept the candidate. As Stone J.A. wrote at pp. 138‑39:
Obviously, the purpose of the Act goes well beyond that of protecting the individual interest in obtaining a security clearance, for it is primarily directed toward protecting the national interest in matters of security generally. On the other hand, the "complaints" procedure under Part III appears to take that objective into account by ensuring, especially by the composition and powers of the intervenant and the requirement for secrecy, that this interest not be sacrificed. The Act evidently reflects a careful balancing of the two interests. It does not address itself directly to the manner in which the initial decision to deny a clearance is to be made, entering the picture only subsequent to that decision and then only after a "complaint" has been lodged. At that point, in my view, the question whether a clearance was rightfully denied is taken away from a deputy head, and is thereafter committed to the determination of the intervenant acting in accordance with the procedures laid down by the Act including the full opportunity of the deputy head to defend his decision and of CSIS to defend its advice to the deputy head. I am satisfied that the entire basis for the denial is thus opened to investigation including any subjective assessment of the complainant's reliability that may be required. As I see it, a deputy head is not entitled, so to speak, to "re‑make" a decision he has already rendered after the matter has become the subject of a "complaint" and a "recommendation". [Emphasis added.]
I agree with Stone J.A. that the Deputy Minister loses the discretion to refuse a security clearance where the initial decision to withhold it was based on an erroneous CSIS report. To conclude otherwise would imply that a candidate's employment chances might be irreparably damaged by the misconduct or mistake of the investigating agency, and that he can have no hope of redress. As for the spectre of the Deputy Minister's ultimate responsibility, this would certainly not be the only situation in which an official would be held accountable for a problem which resulted from acting on another body's directives.
Exercise of Discretion
In view of this analysis, once the Review Committee has conducted its investigation, a deputy minister does not retain discretion to deny a security clearance against its recommendations. However, even if the Deputy Minister did have such discretion, I would still be of the opinion that the appeal should be dismissed on the grounds that he did not exercise that discretion properly in this case.
In the English case of Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997, the House of Lords ordered the Minister to send a case to the review committee set up by Parliament to investigate complaints. It held that, although the Minister could reject complaints which were frivolous or groundless, he could not use his discretion to defeat the purposes of the legislation. In the words of Lord Reid at p. 1030:
Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.
The CSIS Review Committee was established for various reasons. Its most important role is probably that of a watchdog agency over the Service, and its reports serve to alert the public of CSIS's misdoings and errors. But the Committee also functions as the only means of redress available to a candidate whose employment has been blocked by a flawed CSIS report. It is doubtful that Parliament would have set up this elaborate structure for review if a deputy minister could lightly disregard its findings and rely upon the original and mistaken CSIS report to make his or her decision.
In this case, however, the Deputy Minister admits that he made his decision to disregard the Committee's recommendations primarily on the strength of the original CSIS report. Cory J. contends that the letter sent by J.-J. Noreau to Mr. Jewitt on June 4, 1986 shows that the Deputy Minister considered the recommendations of the Review Committee before he made his decision to uphold the denial of the security clearance. In his view, the affidavit sworn by the Deputy Minister dated September 5, 1986 confirms that he based his final decision on both the initial CSIS report and the Review Committee report.
In my opinion, however, neither the letter nor the affidavit show that the Deputy Minister exercised his discretion properly under the test in Padfield, supra. The very brief letter reads as follows:
Dear Mr Jewitt:
I refer to your letter of May 16, 1986, concerning the recommendation made in the Security Intelligence Review Committee's report of April 9, 1985, pursuant to your client's complaint under section 42 of the Canadian Security Intelligence Service Act.
I wish to advise that the decision to deny security clearance is maintained.
Yours sincerely,
Jean-Jacques Noreau
Accordingly, the Deputy Minister in no way indicated in the letter why or on what basis he decided to defy the recommendations. In fact, his allusion to the Review Committee's report in the context is simply confusing, since the respondent would have expected a decision to grant the security clearance in light of its recommendations.
As for the affidavit, in paragraph 19 of his statement, Mr. Noreau attested that he decided to refuse the clearance after considering the "report from the Canadian Security Intelligence Service, even as commented upon or explained in the said report from the Security Intelligence Review Committee" and in paragraph 20, he said: "There was nothing in either the report by the Canadian Security Intelligence Service or in the report by the Security Intelligence Review Committee to resolve my doubts" (emphasis added). These statements indicate to me that, at best, the Deputy Minister placed an equal value on the CSIS report and the Review Committee recommendations. In fact, since the Committee's findings served to correct and revise the CSIS report, the Deputy Minister should have relied almost exclusively on them, rather than the erroneous CSIS allegations.
The Deputy Minister was also obliged to act in accordance with the principles of natural justice. As Le Dain J. wrote in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 659:
The issue then is what did procedural fairness require of the Director in exercising his authority, pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however, informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. [Emphasis added.]
See also Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311.
In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, the majority of this Court held that a school board had a duty to comply with the rules of procedural fairness in dismissing an employee because of the final and specific nature of the decision, the nature of the employer‑employee relationship, and the effect of the decision on the individual's rights. With respect to this last point, we held at p. 677:
Various courts have recognized that the loss of employment against the office holder's will is a significant decision that could justify imposing a duty to act fairly on the administrative decision‑making body.
Aside from the serious impact that dismissal usually has upon an individual, the Court found, at p. 674, that there were practical reasons for requiring procedural fairness, even if this meant abandoning old classifications between the office held at pleasure and other types of employment:
The justification for granting to the holder of an office at pleasure the right to procedural fairness is that, whether or not just cause is necessary to terminate the employment, fairness dictates that the administrative body making the decision be cognizant of all relevant circumstances surrounding the employment and its termination .... One person capable of providing the administrative body with important insights into the situation is the office holder himself .... To grant [the right to be heard] to the holder of an office at pleasure would not import into the termination decision the necessity to show just cause, but would only require the administrative body to give the office holder reasons for the dismissal and an opportunity to be heard.
My colleague Cory J. maintains that the requirements of procedural fairness set out in Cardinal, supra, were met in this case because the respondent was apprised of the original reasons for the denial of the security clearance in the document issued by the Review Committee before its hearing entitled "Statement of Circumstances Giving Rise to the Denial of a Security Clearance to Robert Thomson by the Deputy Head of Agriculture Canada". As well, the respondent got a full opportunity to respond to the CSIS allegations in the hearing before the Review Committee. Thus, in Cory J.'s opinion, the respondent got both notice and fair hearing.
I cannot agree. The facts in the present case closely parallel those in Cardinal, which stands for the principle that the ultimate decision-maker must give the subject of his or her decision a chance to be heard, and the reasons for the final decision. In that case, based on the report that he received from another institution about transferred prisoners' participation in a riot, the Director of Kent Institution made a segregation order. This order was reviewed by the Segregation Review Board, which recommended that the order be lifted. The Director refused, without giving the prisoners either a further opportunity to make representations or informing them of the basis for his decision to override the recommendations. In striking down the order, Le Dain J. wrote for the unanimous Court at p. 659, following the passage which I quoted, supra:
With great respect, I do not think it is an answer to the requirement of notice and hearing by the Director ... that the appellants knew as a result of their appearance before the Segregation Review Board why they had been placed in segregation. They were entitled to know why the Director did not intend to act in accordance with the recommendation of the Board and to have an opportunity before him to state their case for release into the general population of the institution. [Emphasis added.]
Similarly, in the case at bar, the Deputy Minister initially denied the security clearance based on information from a third party, CSIS. This decision was appealed to the Review Committee, which recommended that it be reversed. The Deputy Minister refused, without giving the respondent a further opportunity to make representations or informing him in a meaningful way of the reasons for his decision. He stated at paragraph 20 of his affidavit of September 5, 1986, that he saw "no point" in meeting with the respondent because he had already made representations to the Review Committee.
But the Deputy Minister's belief, however sincerely held, that the respondent would not be able to add anything or persuade him is not sufficient to satisfy the requirements of natural justice. The Deputy Minister still had a duty to give the respondent some opportunity to respond. Furthermore, as I have already noted, the letter he sent to the respondent's lawyer (over a year after the Committee issued its recommendations, and only on the persistent demands of Mr. Jewitt) was inadequate in terms of informing the respondent of the basis of his decision.
The Deputy Minister's decision to withhold the security clearance must accordingly be set aside. As the Court concluded in Cardinal at p. 661:
... the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
For these reasons I am of the opinion that by his failure to afford the appellants a fair hearing on the question whether he should act in accordance with the recommendation of the Segregation Review Board that they be released from administrative segregation into the general population of the institution, the Director rendered the continued segregation of the appellants unlawful [Emphasis added.]
Conclusion
For these reasons, I would dismiss the appeal with costs.
Appeal allowed, L'Heureux‑Dubé J. dissenting.
Solicitor for the appellant: John C. Tait, Ottawa.
Solicitors for the respondent: Nelligan/Power, Ottawa.
Solicitors for the intervener: Noël, Berthiaume, Aubry, Hull.