Judgments

Decision Information

Decision Content

A-470-86
Robert Thomson (Applicant)
v.
The Queen (Respondent)
INDEXED AS: THOMSON V. CANADA
Court of Appeal, Hugessen, Stone and Desjardins JJ.—Ottawa, February 2, 3, 4 and March 7, 1988.
Security intelligence — Successful candidate for public service position denied security clearance at "Secret" level by Deputy Minister — Complaint to Security Intelligence Review Committee — Committee recommending grant of security clearance — Deputy Minister maintaining denial — Nature of "recommendations" under s. 52(2) Canadian Security Intelli gence Service Act — Discussion of statutory scheme "Recommendations" not merely advisory — Once complaint filed issue whether clearance rightfully denied taken from deputy head and given to Committee — Deputy head bound to act upon Committee's recommendation — Application dis missed as Deputy Minister's decision to maintain refusal not reviewable under s. 28 Federal Court Act.
Public service — Selection process — Employment offer conditional on receiving security clearance — Deputy Minister denying security clearance at "Secret" level based on assess ment by Canadian Security Intelligence Service — Investiga tion revealing disclosure of classified information by applicant
— Complaint to Security Intelligence Review Committee — Latter recommending required security clearance be granted
— Deputy Minister maintaining refusal — Deputy Minister having duty to act upon Committee's recommendation — Filing of complaint under Act ousting any discretion Deputy Minister may still hold under Cabinet Directive No. 35 to determine public servant's reliability — Decision of Deputy Minister to maintain refusal not, however, reviewable under s. 28 Federal Court Act.
Federal Court jurisdiction — Appeal Division — Security intelligence — Deputy Minister denying security clearance regarding offer of public service employment — Complaint to Security Intelligence Review Committee — Committee recom mending security clearance be granted — Deputy Minister's decision to maintain refusal not reviewable under s. 28 Federal Court Act — Administrative act, not decision made on judicial or quasi-judicial basis, required to implement Committee's recommendation — Proper relief mandamus — Deputy Min-
ister's duty arising because of binding recommendation made in accordance with Canadian Security Intelligence Service Act.
Construction of statutes — Canadian Security Intelligence Service Act — Deputy head refusing to act upon Security Intelligence Review Committee's recommendation that security clearance for public service employment be granted — Nature of Committee's "recommendations" under s. 52(2) of Act — Word to be construed having regard to entire statutory scheme relating to investigation of "complaint" under s. 42 of Act — Admissibility of legislative history to determine Parliament's intention — Detailed statutory scheme indicative of Parlia ment's intention not to confer on word "recommendations" literal sense of advisory — Incidence of consequential and related amendments — Deputy head having duty to act upon Committee's recommendation.
In 1984, the applicant was offered the position of Project Planning Officer in the International Affairs Directorate of Agriculture Canada on the condition that he obtain a security clearance at the "Secret" level. The applicant informed the Departmental Security Officer that he had resigned from CIDA in 1974 when suspected of having leaked a classified document. The Security Officer requested the RCMP to con duct a field investigation. Upon the coming into force of the Canadian Security Intelligence Service Act, the investigation was turned over to the Canadian Security Intelligence Service (CSIS). CSIS recommended that the applicant not be placed in a position where he would have access to assets classified in the national interest. That assessment was based on information to the effect that the applicant had, inter alia, revealed the contents of a classified telex to a Member of Parliament and offered to provide classified information to agents of foreign governments. On the basis of the CSIS recommendation, the Deputy Minister denied the security clearance. The applicant made a complaint to the Security Intelligence Review Commit tee as contemplated by section 42 of the Act. Following investi gation into the complaint, the Review Committee recommend ed that the Deputy Minister grant security clearance at the "Secret" level. The Deputy Minister maintained the denial notwithstanding the Committee's recommendation. The appli cant seeks to have the decision of the Deputy Minister set aside pursuant to section 28 of the Federal Court Act.
The applicant submits that having regard to the scheme and purpose of the Act, the Deputy Minister was bound to act upon the recommendation of the Committee and that he erred in law by denying the security clearance. The respondent argues that this Court is without jurisdiction under section 28 because the decision to deny clearance was made pursuant to the Royal prerogative as expressed in Cabinet Directive No. 35 of 1963, dealing with "Security in the Public Service of Canada", and that the Act in no way impinges upon the Deputy Minister's authority to decide the matter in accordance with the Directive.
The first issue is whether the Deputy Minister is required to act in accordance with the Review Committee's "recommenda- tion". This issue involves a determination of the nature of the
"recommendation". In the affirmative it must be determined whether the Deputy Minister's decision is one that is reviewable under section 28.
Held, the application should be dismissed.
The word "recommendations" in subsection 52(2) of the Act must be construed having regard to the entire statutory scheme relating to the investigation of a "complaint" by an individual denied employment in the Public Service by reason of the denial of a security clearance. The nature of the scheme indicates 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. The expression of that intention can be found in statements made before the House of Commons and the Parliamentary Committee to the effect that the proposed statute would give the complainant "a recourse" and would exchange "the present mandate, estab lished by a Cabinet directive ... for a legislated mandate". Certain statutory provisions, such as the need to provide all parties concerned with a summary of the information available to the Committee (section 46), the need for prior notice (sec- tion 47), the opportunity for all concerned to present evidence and be heard by counsel (subsection 48(2)), the summoning of witnesses and the production of documents (section 50), and the extent of access granted to the Review Committee to sensitive information (section 39), all indicate an intention that the Committee be given the ability to examine the entire basis on which a denial rests to ensure such redress as its investiga tion may indicate. By adopting such a detailed scheme which includes the obligation for a formal report in which "findings" and any "recommendations" are to be stated, Parliament did not intend that the "recommendations" be merely advisory or suggestive. Courts have been unwilling to interpret the word "recommendations" in such a literal sense if the particular statutory scheme in which it appears points to a different conclusion. Moreover, the consequential and related amend ments to the Canadian Human Rights Act, the Citizenship Act and the Immigration Act, 1976 indicate that Parliament did not use the word "recommendations" in its literal sense; in all those cases, Parliament authorized the Review Committee to make "findings" or "conclusions" which the ultimate decision maker is authorized to "consider".
The Act does not address itself directly to the manner in which the initial decision is made. It enters the picture only when a "complaint" has been filed. At that point, the question whether a clearance was rightfully denied is taken away from the deputy head and turned over to the Review Committee which acts in accordance with the procedures set out in the Act. The Act gives the deputy head the opportunity to defend his decision and CSIS, to defend its advice to the deputy head. The entire basis for the denial is thus opened to investigation including any subjective assessment of the complainant's relia bility that may be required.
It follows that the Deputy Minister's refusal was based upon a misconstruction of subsection 52(2). He was wrong in exercis ing a discretion that he claimed to still hold under Cabinet Directive No. 35. The deputy head is not entitled to "re-make"
a decision he has already rendered after the matter has become the subject of a "complaint" and of a "recommendation".
However, the decision of the Deputy Minister to deny secu rity clearance does not fall within the jurisdiction conferred on this Court by section 28. Only a purely administrative act, rather than a decision made on a judicial or quasi-judicial basis, is required to implement the Committee's recommenda tion. The appropriate relief would be mandamus under section 18 of the Federal Court Act compelling the performance of a statutory duty. That duty arises here because of the existence of a binding recommendation duly made in accordance with the Act by Parliament's instrumentality, the Review Committee.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.3(1) (as added by S.C. 1980-81-82-83, c. Ill, s. 4).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b),(d).
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 36.1(7) (as added by S.C. 1984, c. 21, s. 73).
Canadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 2, 13(1), 29, 30(2)(a), 34, 37, 38(c)(î), 39(1), (2),(3), 42, 45, 46, 47, 48, 49, 50, 52, 73, 74, 75, 79, 80, 81, 82, 83, 84, 85.
Citizenship Act, S.C. 1974-75-76, c. 108, s. 17.1(5) (as added by S.C. 1984, c. 21,s. 75).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 18.
Financial Administration Act, R.S.C. 1970, c. F-10, ss. 5(1)(e), 7(7).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 39(8)(a) (as added by S.C. 1984, c. 21, s. 80), 82.1(6)(a) (as added idem, s. 84).
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 5(a), 6(1), 8.
Public Service Security Inquiry Regulations, SOR/75-196.
Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function under Para graph 38(c) of the Canadian Security Intelligence Ser vice Act, March 9, 1985, RR. 1, 17-29.
CASES JUDICIALLY CONSIDERED APPLIED:
Reg. v. Barnet London Borough Council, Ex parte Nilish Shah, [1983] 2 W.L.R. 16 (H.L.); Carrington v. Therm- A-Stor Ltd., [1983] 1 W.L.R. 138 (C.A.); Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346 (C.A.); Christ's Hospital Governors, Rex v. Ex parte Dunn, [1917] 1 K.B. 19; Myer Queenstown Garden Plaza
Pty. Ltd. and Myer Shopping Centres Pty. Ltd. v. Corpo ration of the City of Port Adelaide and the Attorney- General (1975), 11 S.A.S.R. 504 (S.C.).
REFERRED TO:
Canadian National Railway Co. v. Canada (Canadian
Human Rights Commission), [ 1987] 1 S.C.R. 1114.
AUTHORS CITED:
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report: Freedom and Security under the Law, Vol. 2, August 1981. Ottawa: Minister of Supply and Services, 1981.
Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, Issue no. 15 (April 17, 1984), at p. 6 and Issue no. 28, at p. 58.
Canada, House of Commons Debates, Vol. 23, 1st Sess., 32nd Parl. 32 Eliz. II, 1983, at p. 26073.
Canada, House of Commons Debates, Vol. II, 2nd Sess.,
32nd Parl. 33 Eliz. II, 1984, at pp. 1272, 1273, 1275. Driedger, E. A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
David J. Jewitt and Sean McGee for applicant.
L. P. Chambers, Q.C. and Yves Joly for respondent.
Simon Noël for Canadian Security Intelli gence Review Committee.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant. Deputy Attorney General of Canada for respondent.
Noël, Décary, Aubry & Associés, Hull (Quebec), for Canadian Security Intelligence Review Committee.
The following are the reasons for judgment rendered in English by
STONE J.: This is an application under section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] to review and set aside a decision of the Deputy Minister of Agriculture dated June 4, 1986 denying the applicant a security clearance for the purposes of employment as a Project Plan ning Officer in the International Affairs Director ate of Agriculture Canada. The Security Intelli-
gence Review Committee, established under the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 ("the Act"), requested and was grant ed standing by this Court to participate in the argument on points relating to its jurisdiction and procedure. I shall refer to it throughout as the "intervenant".
BACKGROUND
The Employment Opportunity
The situation which led to the decision that we are asked to review arose in this way. In June of 1984, the applicant was the successful candidate for the position in question, and as a result it was offered to him upon terms contained in a letter from Agriculture Canada dated June 25 of that year, one of which reads:
Due to the confidential nature of the duties of this position, a security clearance at the SECRET level is required. Your effec tive date is October 1, 1984 but this date cannot be confirmed until the security clearance is received. [Case, page 6.]
The Security Investigation
In consequence of that requirement, a security investigation was initiated by Agriculture Canada. To assist, the applicant completed a "Personal History Form", dated June 25, 1984, which con tained information of a personal nature including details of his occupation during the previous ten- year period. Question 12 on the form read:
12. Have you ever been dismissed or asked to resign from any position?
and called for a "yes" or "no" answer, together with particulars in the case of a "yes" answer. To that question the applicant gave a "yes" answer and added the words: "CIDA, January 1974". On the same day, Mr. D. H. O'Grady, Departmental Security Officer at Agriculture Canada, referred the matter to the Royal Canadian Mounted Police for a "records check" at the "SECRET" level (Case, page 163).
The same or following day, the applicant called on Mr. O'Grady and indicated a desire to change the answer he had given to question 12. As Mr.
O'Grady put it in his evidence before the interve- nant, "Mr. Thomson came in and explained to me that he would like to add to that particular ques tion, make a change in it, in other words; and he explained that back in 1974 he had, for lack of a better expression, a problem with CIDA and he had been asked to resign" (Case, page 49). Mr. O'Grady went on to explain that the applicant "was very forthright in telling me exactly what had taken place with CIDA at the time, I don't want to put words in his mouth, but it seems to me he told me that he was suspected of leaking a particular document while he was with CIDA, a fact which he denied but nonetheless rather than cause problems for his family and whatever might come of it, he resigned his position" (Case, pages 49-50). The applicant then supplemented his answer to question 12 with the words: "For details, please contact me at" two different telephone numbers. As a consequence of this information, Mr. O'Grady sent a fresh request to the Royal Canadian Mounted Police asking that a field investigation instead of a records check be con ducted at the "TOP SECRET" level. As was acknowledged by Mr. O'Grady in his evidence before the intervenant, this latter requirement was erroneous. He also explained, however, that the error did not change "the implication of the inves tigation" (Case, page 52) because it is "the gravity of the document that you are attempting to pro tect" in deciding whether to make a "SECRET" or a "TOP SECRET" check (Case, page 55).
In response to a request from Agriculture Canada, the applicant actually reported to work on October 1, 1984, notwithstanding that the security investigation had yet to be completed, but was sent home on October 16, and told not to return until the security issues had been resolved.
With the coming into force of the Act, the field investigation was turned over to the Canadian Security Intelligence Service ("CSIS") established under Part I thereof and referred to therein as "the Service". This type of investigation called for a screening interview which was carried out by two
representatives of CSIS on January 11, 1985. Mr. O'Grady was also present.
Denial of Security Clearance
In due course, on March 26, 1985, Agriculture Canada received a report in the matter from CSIS, recommending that the applicant not be placed in a position where he would have access to assets classified in the national interest (Case, page 16). The same day, three officers of Agricul ture Canada, including Mr. O'Grady, met "to discuss the options available to the Department in resolving this case", and determined that the only option available was to deny the security clearance (Case, page 16). Before formally denying the clearance, the Deputy Minister referred the CSIS report to the Assistant Secretary to the Cabinet, Security and Intelligence, and requested his com ments on the decision to deny a security clearance in accordance with Cabinet Directive No. 35, paragraph 14 (Case, page 16). A short while later, the Deputy Minister received a telex message from an official in the Privy Council Office expressing agreement with that decision. In the sequel, the Deputy Minister conveyed his decision to the applicant by letter of April 23, 1985, in which he said:
As a result of an investigation carried out by the Canadian Security Intelligence Service, I must advise you that a security clearance with this Department has been denied. Consequently, our offer of employment of June 25, 1984 which was condition al upon your obtaining a security clearance is now rescinded.
Pursuant to Section 42 of the Canadian Security Intelligence Service Act, Statutes of Canada 1984, Chapter 21, you have the right to lodge a complaint within thirty (30) days of receipt of this letter. This complaint should be addressed to the Secu rity Intelligence Review Committee, Privy Council Office. [Case, page 21.]
The Complaint
As a result of that denial, the applicant made a "complaint" to the intervenant as contemplated by section 42 of the Act, notice of receipt of which was conveyed by the intervenant to the Deputy Minister. The significance of that act can only be truly appreciated by examining the legislation in some detail.
THE SCHEME OF THE ACT
The Act was assented to on June 28, 1984. In Part I, provision is made for the establishment of
CSIS, for appointment of a Director thereof, and for its management, duties and functions. The following definition of "security assessment" is contained in section 2:
2. In this Act,
"security assessment" means an appraisal of the loyalty to Canada and, so far as it relates thereto, the reliability of an individual;
Among the duties and functions of CSIS is that of providing security assessments in accordance with subsection 13(1):
13. (1) The Service may provide security assessments to departments of the Government of Canada.
Part III of the Act deals with REVIEW, appar ently in two different senses. By paragraph 30(2)(a), an official called the "Inspector Gener al" is authorized to monitor compliance by CSIS with its operational policies, to review its opera tional activities and to submit required certificates. The other sense emerges from the provisions which relate to the duties of the intervenant. Its estab lishment and composition is provided for in section 34:
34. (1) There is hereby established a committee, to be known as the Security Intelligence Review Committee, consist ing of a Chairman and not less than two and not more than four other members, all of whom shall be appointed by the Governor in Council from among members of the Queen's Privy Council for Canada who are not members of the Senate or the House of Commons, after consultation by the Prime Minister of Canada with the Leader of the Opposition in the House of Commons and the leader in the House of Commons of each party having at least twelve members in that House.
(2) Each member of the Review Committee shall be appointed to hold office during good behaviour for a term not exceeding five years.
(3) A member of the Review Committee is eligible to be re-appointed for a term not exceeding five years.
(4) Each member of the Review Committee is entitled to be paid, for each day that the member performs duties and functions under this Act, such remuneration as is fixed by the Governor in Council and shall be paid reasonable travel and living expenses incurred by the member in the performance of those duties and functions.
Every member of the intervenant is required by section 37 to take "the oath of secrecy" in the
form set out in the Schedule.'
The investigation of a complaint of the kind which was lodged by the applicant is provided for in subparagraph 38(c)(i):
38. The functions of the Review Committee are
(c) to conduct investigations in relation to
(i) complaints made to the Committee under sections 41 and 42 of this Act,
The intervenant is granted broad powers pursuant to subsection 39 (1) to determine its procedures, and is given access to sensitive information pursu ant to subsection 39(2) which reads as follows:
39....
(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (3), the Review Committee is entitled
(a) to have access to any information under the control of the Service or of the Inspector General that relates to the performance of the duties and functions of the Committee and to receive from the Inspector General, Director and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions; and
(b) during any investigation referred to in paragraph 38(c), to have access to any information under the control of the deputy head concerned that is relevant to the investigation.
(3) No information described in subsection (2), other than a confidence of the Queen's Privy Council for Canada in respect of which subsection 36.3(1) of the Canada Evidence Act applies, may be withheld from the Committee on any grounds.
Sections 41-46 of the Act provide for "Com- plaints". I refer particularly to sections 42, 45 and 46:
42. (1) Where, by reason only of the denial of a security clearance required by the Government of Canada, a decision is made by a deputy head to deny employment to an individual or to dismiss, demote or transfer an individual or to deny a promotion or transfer to an individual, the deputy head shall send, within ten days after the decision is made, a notice informing the individual of the denial of the security clearance.
(2) Where, by reason only of the denial of a security clear ance required by the Government of Canada to be given in respect of an individual, a decision is made to deny the individual or any other person a contract to provide goods or services to the Government of Canada, the deputy head con
' I, , swear that I will not, without due authority,
disclose or make known to any person any information acquired by me by reason of the duties performed by me on behalf of or under the direction of the Canadian Security Intelligence Ser vice or by reason of any office or employment held by me pursuant to the Canadian Security Intelligence Service Act. So help me God.
cerned shall send, within ten days after the decision is made, a notice informing the individual and, where applicable, the other person of the denial of the security clearance.
(3) The Review Committee shall receive and investigate a complaint from
(a) any individual referred to in subsection (1) who has been denied a security clearance; or
(b) any person who has been denied a contract to provide goods or services to the Government of Canada by reason only of the denial of a security clearance in respect of that person or any individual.
(4) A complaint under subsection (3) shall be made within thirty days after receipt of the notice referred to in subsection (1) or (2) or within such longer period as the Review Commit tee allows.
45. A complaint under this Part shall be made to the Review Committee in writing unless the Committee authorizes otherwise.
46. The Review Committee shall, as soon as practicable after receiving a complaint made under section 42, send to the complainant a statement summarizing such information avail able 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 and shall send a copy of the statement to the Director and the deputy head concerned.
The definition of "deputy head" appearing in sec tion 29 of the Act, plainly embraces the Deputy Minister.
The procedure laid down by the Act for the investigation of a complaint and the powers and duties of the intervenant in connection therewith, are set forth in sections 47-50:
47. Before commencing an investigation of a complaint referred to in paragraph 38(c) other than an investigation under section 41, the Review Committee shall notify the Direc tor, and where applicable, the deputy head concerned of its intention to carry out the investigation and shall inform the Director and the deputy head of the substance of the complaint.
48. (1) Every investigation of a complaint under this Part by the Review Committee shall be conducted in private.
(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.
49. In the course of an investigation of a complaint under this Part, the Review Committee shall, where appropriate, ask the Canadian Human Rights Commission for its opinion or comments with respect to the complaint.
50. The Review Committee has, in relation to the investiga tion of any complaint under this Part, power
(a) to summon and enforce the appearance of persons before the Committee and to compel them to give oral or written evidence on oath and to produce 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 or record;
(b) to administer oaths; and
(c) to receive and accept such evidence and other informa tion, whether on oath or by affidavit or otherwise, as the Committee sees fit, whether or not such evidence or informa tion is or would be admissible in a court of law.
Finally, section 52 of the Act requires the intervenant, on completion of its investigation, to make a report in the following terms:
52. (1) The Review Committee shall,
(a) on completion of an investigation in relation to a com plaint under section 41, provide the Minister and the Direc tor with a report containing the findings of the investigation and any recommendations that the Committee considers appropriate; and
(b) at the same time as or after a report is provided pursuant to paragraph (a), report the findings of the investigation to the complainant and may, if it thinks fit, report to the complainant any recommendations referred to in that paragraph.
(2) On completion of an investigation in relation to a com plaint 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.
Part V of the Act contains a number of transi tional provisions as well as several consequential and related amendments to other statutes includ ing the Canadian Human Rights Act [S.C. 1976- 77, c. 33], the Citizenship Act [S.C. 1974-75-76, c. 108] and the Immigration Act, 1976 [S.C. 1976- 77, c. 52], as appears in sections 73-74, 75 and 79-85 respectively.
THE INTERVENANT'S INVESTIGATION
Soon after receiving the "complaint", the intervenant set about to investigate the matter. To that end, it drew the attention of the Deputy
Minister to its Rules of Procedure 2 and reminded him of his "right to make representations ... either in writing or orally during the hearing" (Case, page 39). It also requested information of him in order to send to the applicant the statement required by section 46 of the Act. The full text of the section 46 statement is entitled "Statement of Circumstances Giving Rise to the Denial of a Security Clearance to Robert Thomson by the Deputy Head of Agriculture Canada", and reads:
The Review Committee has ascertained that after an investiga tion, including a personal interview with you, csts provided Agriculture Canada with a security assessment recommending that you be denied a security clearance on the basis of, among other things, the following information:
— 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 (subsequently shown to be a fake 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.
Upon being so informed, the deputy head decided that your reliability was not such as to warrant your being entrusted with classified information. Consequently, your security clearance was denied. [Case, page 40.]
THE INTERVENANT'S HEARING
The hearing before the intervenant commenced on August 13, 1985, continued on October 9 and concluded November 7 of that year. Apart from a
2 Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function under Paragraph 38(c) of the Canadian Security Intelligence Service Act, were adopt ed by the intervenant on March 9, 1985. Rule 1 defines a "party" to mean, inter alia, a complainant under section 42 of the Act as well as the Director and the deputy head concerned. The Rules lay down a detailed procedure relating to complaints under section 42 of the Act (Rules 17-29), and appear to be designed to ensure that all procedural safeguards set out in the Act are afforded to all parties concerned with the investigation of a section 42 complaint, and the proper making of the report required by subsection 52(2).
partial transcript of Mr. O'Grady's testimony (to which I have already referred), the only source of information of what actually transpired at the hearing is to be found in the report of April 9, 1986, which the intervenant submitted to the Deputy Minister by letter of the same date (Case, pages 81-97) pursuant to subsection 52(2) of the Act.
The report reveals that the intervenant consisted of two members, that the applicant was present with his counsel, and that Agriculture Canada and the intervenant were represented by separate coun sel. The "Introduction" to the report contains the following statement:
The respondent, the Deputy Minister of Agriculture Canada, was represented by Mr. Patrick O'Grady, the Departmental Security Officer. Mr. O'Grady testified that the Deputy Minis ter had taken a decision to deny the complainant a security clearance solely on the basis of the report and recommendations provided to him by csis following its investigation of Mr. Thomson.
Consequently, during the oral hearing phase of the Commit tee's investigation, the respondent was represented by counsel for csis, and testimony in support of the decision to deny a security clearance to Mr. Thomson was provided exclusively by csis. [Case, page 83.]
The intervenant went on to indicate the extent of its investigation:
During the investigation, which included three days of oral hearings, we examined the events and allegations set out below in the light both of "threats to the security of Canada" as defined in section 2 of the Act, and of the terms "loyalty" and "reliability" as they are referred to in the Act. [Case, page 85.]
Each of the allegations made against the appli cant, as delineated in the section 46 statement, were then taken up under separate headings, viz. "telex leaks", "dishonesty", "CIDA information",
"clandestine communications", "Grenada", "clandestine meeting" and "clandestine contacts". The Committee's examination of each is followed by a statement commenting on its merits in the light of the evidence adduced. Only with respect to the "telex leaks" and "dishonesty" did the interve- nant comment in any way unfavourably to the applicant. As to the "telex leaks", the evidence disclosed that an authentic telex, as well as a fake telex from the Canadian Ambassador in Santiago, Chile, were leaked to a member of Parliament, leading the intervenant to find (Case, page 86):
We believe that the actions taken by Mr. Thomson in 1973 were wrong. However, since these events took place 12 years ago, they do not, alone, provide sufficient grounds to deny Mr. Thomson a security clearance now.
As to the "dishonesty" allegation, the intervenant noted that during the screening interview of Janu- ary 11, 1985, the applicant had denied leaking the authentic telex but not the "fake" telex (which had had the effect of identifying him as the person who had leaked the authentic telex). It was only when the CSIS investigators confronted the appli cant with this evidence that he admitted his involvement. In this regard, the intervenant stated (Case, page 88):
We found this aspect of the investigation particularly difficult. Certainly, as a matter of course, employees seeking a security clearance should be expected to be honest with those officials charged with carrying out the required investigation. Yet, perhaps it should not be surprising that individuals who have committed acts which they believe might leave them open to criminal prosecution would hesitate to admit such acts. In any event, in this case, while acknowledging that Mr. Thomson was not forthright during the interview, we conclude that this does not, of itself, show him to be chronically untruthful.
Toward the end of the report are found summa ries of the position taken both by Agriculture Canada and by the applicant. The intervenant accepted the following testimony of one of the CSIS investigators as best representing the respondent's case:
... I'm only concerned about whether or not the affinity he shows for causes or persons are such that, if the interests of the Canadian government became a counterpoint to what he believed in more strongly, then those assets would be in jeop ardy. That is my concern, not what he believes . .. what I am concerned is that, given this totality of circumstances, I am not satisfied that, if the situation arose again, he would not do the same thing. If he considered the cause that he was espousing at that particular moment in time was more important than the Government of Canada's interest in the documentation that he was being asked to safeguard, that he would not do the same thing again.
... I said the bottom line with all this information is whether or not the causes that he espouses are higher in his own mind than his loyalty to the Canadian government. [Case, page 95.]
The applicant's response is recited by the intervenant:
I am older, more self-confident, I would be better able to deal with it within the Agency. At CIA, I was insecure. I was in a junior position. I didn't think there was anything I could do about it. Now, I would express my outrage at higher levels in the Department, or even in the government. [Case, page 96.]
THE INTERVENANT'S FINDINGS AND RECOMMENDATION
Finally, the findings and recommendation of the intervenant are set forth as follows, at pages 15-16 of the report:
Findings
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 forth right in his interview with the csis investigator when he was questioned in 1985 about the unauthorized release of telexes in 1973.
There is no doubt that throughout the period from 1973 until the present, Mr. Thomson associated with officials and agents of Caribbean and Latin American governments. We believe that the positions he held during those years made this inevi table, and the evidence presented has not shown that these relationships were inimical in any way to Canada's security interests. Nor was there evidence to show that Mr. Thomson released or sought to release classified material to any unau thorized person. Indeed, for most of the period in question, Mr. Thomson could not have done so since he did not have access to such information. Finally, we consider the thesis that Mr. Thomson took part in an intelligence "meet" at the Ottawa bus station, to be without foundation.
It remains that Mr. Thomson admitted to the unauthorized release of classified information in 1973 on two separate (it seemed) occasions. 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 evi dence, 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. [Case, pages 96-97.]
Notwithstanding this recommendation, the Deputy Minister informed the applicant by letter of June 4, 1986 "that the decision to deny security clearance is maintained" (Case, page 102). In so doing, he appears to have proceeded on the basis
that he was not legally bound by that recommen dation (Case, page 98).
THE ISSUES
In his memorandum of points of argument, the applicant alleges four different errors of law on the part of the Deputy Minister. It is not necessary to recite them although it will become desirable to examine their underlying basis in discussing the issues which I think require this Court's attention. Put shortly, this basis is that, having regard to the scheme of the Act and to its overall purpose, the Deputy Minister was obliged to act upon the find ings and recommendation of the intervenant and, accordingly, that he erred in law by denying a security clearance. A fifth submission, based upon an alleged violation of the "freedom of expression" and "freedom of association" guaranteed by para graphs 2(b) and (d) respectively of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)], was not pursued. The respondent, on the other hand, takes the basic positions that this Court is without jurisdiction under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, because the decision to deny the security clearance was made pursuant to the Royal prerogative as expressed in Cabinet Directive No. 35 and that the recommendation in question is not binding in any event.
In my view, the central issues raised before us on this appeal may be stated as follows:
(a) If the decision to deny the security clear ance was made in exercise of the Royal preroga tive as expressed in Cabinet Directive No. 35, does this Court possess jurisdiction under sec tion 28 of the Federal Court Act to review and set that decision aside?
(b) Is the Deputy Minister of Agriculture obliged to grant the security clearance pursuant to the "recommendation" contained in the report of the intervenant?
(c) If the Deputy Minister is obliged to grant the security clearance in accordance with that "recommendation", does this Court possess jurisdiction under section 28 of the Federal
Court Act to review and set aside his refusal to do so on a basis that would require him to implement that recommendation?
DISCUSSION
Jurisdiction
Subsection 28 (1) of the Federal Court Act reads:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
The defined term "federal board, commission or other tribunal" appears in section 2 of that statute:
2....
"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of the Parliament of Canada, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of The British North America Act, 1867;
Counsel for the respondent asserts that the power to appoint and stipulate the terms and conditions of appointment to a position with the Department of Agriculture, is governed by the Royal prerogative.' I am satisfied that these powers include any determination of a need for
2 The exclusive power vested in the Public Service Commis sion to make appointments to the Public Service under the Public Service Employment Act, R.S.C. 1970, c. P-32, may be vested in a deputy head of a Department by delegation of the Commission (see paragraph 5(a), subsection 6(1) and section 8). In the case of the Department of Agriculture, such delega tion appears to have been made. See Staffing Manual, Vol. 11, Delegation of Staffing Authority, etc. (Case, p. 140). and see also paragraph 5(1)(e) of the Financial Administration Act, R.S.C. 1970, c. F-10.
security clearance as a prerequisite to employment and that, traditionally, the granting or withholding thereof was a matter falling within the Royal prerogative. Counsel further submits that this tra ditional position has not been affected in any way by the Act and, particularly, that the relevant powers of the intervenant under the Act have no bearing whatever upon that position. This depend ence upon the continued application of the Royal prerogative as expressed in Cabinet Directive No. 35 requires a close examination of the document.
That Directive was adopted in 1963, although its lineage traces back somewhat earlier in time. 4 It is entitled "Security in the Public Service of Canada" and is divided under three major head ings, namely, "POLICY", "PROCEDURE" and "METHODS". Until 1978, it remained a confiden tial document but was declassified in that year during the course of public hearings and became an exhibit before the Commission of Inquiry Con cerning Certain Activities of the Royal Canadian Mounted Police (see Second Report, Vol. 2, Free dom and Security under the Law, August 1981, at page 783). Counsel for the respondent drew our attention to the following paragraphs of this Direc tive as having a special bearing on the issues before the Court:
4 Cabinet Directives touching upon the question of security as regards appointments to the public service are as follows: Cabinet Directive No. 4, March 5, 1948, Cabinet Directive No. 4A, April 6, 1948, Cabinet Directive No. 24, October 16, 1952, Cabinet Directive No. 29, December 21, 1955, and Cabinet Directive No. 35, December 27, 1963. A Booklet published by the Privy Council Office in November 1956 and the Public Service Security Inquiry Regulations of March 27 1975 [SOR/ 75-196] adopted pursuant to subsection 7(7) of the Financial Administration Act R.S.C. 1970 c. F-10, also appear to be relevant.
On June 18, 1986, the Treasury Board issued a "Security Policy of the Government of Canada", replacing the policy set out in the November 1956 Booklet and Cabinet Directive No. 35 relating to security screening. Although aspects of this latter document were relied on by both the intervenant and the respondent to support their respective submissions, I do not think they are of much assistance in view of the fact that this new policy was adopted subsequent to the enactment of the Act and, no doubt, with an eye to whatever interpretation its framers may have chosen to place on the provisions which this Court is required to interpret.
POLICY
1. Security in the public service of Canada is essentially a part of good personnel administration, and therefore it is the respon sibility of each department and agency. The security of classi fied information in the possession of a department or agency may be placed in jeopardy either by persons who may be disloyal to Canada and her system of government or by •persons who are unreliable because of defects in their character.
5. In addition to loyalty, reliability is essential in any person who is to be given access to classified information. A person may be unreliable for a number of reasons that do not relate to loyalty. To provide as much assurance of reliability as possible persons described in paragraph 6 below may not be permitted to have access to classified information, unless after careful consideration of the circumstances, including the value of their services, it is judged that the risk involved appears to be justified.
6. The persons referred to in paragraph 5 above are:
a) a person who is unreliable, not because he is disloyal, but because of features of his character which may lead to indiscretion or dishonesty, or make him vulnerable to blackmail or coercion. Such features may be greed, debt, illicit sexual behaviour, drunkenness drug addic tion, mental imbalance, or such other aspect of charac ter as might seriously affect his reliability;
b) a person who, through family or other close continuing relationship with persons who are persons as described in paragraphs 3(a) to (e) above, is likely to be induced, either knowingly or unknowingly, to act in a manner prejudicial to the safety and interest of Canada. It is not the kind of relationship, whether by blood, marriage or friendship, which is of primary concern. It is the degree of and circumstances surrounding such relationship, and most particularly the degree of influence that might be exerted, which should dictate a judgement as to reliabili ty, a judgement which must be taken with the utmost care; and
c) a person who, though in no sense disloyal or unreliable, is bound by close ties of blood or affection to persons living within the borders of such foreign nations as may cause him to be subjected to intolerable pressures. [Emphasis added.]
7. In addition it must be recognized that there may be a serious risk to security in employing or permitting to be employed persons such as those described in paragraphs 3 or 6 above:
a) In certain positions in industrial firms and related estab lishments involved in or engaged upon the production or study of classified defence equipment which requires security protection; or
b) in positions in government organizations engaged in work of a nature vital to the national security which, although they do not normally involve access to classi fied information, may afford their incumbents oppor tunities to gain unauthorized access to such information.
8. To carry out their responsibility for the safekeeping of the secrets of the Government of Canada and her allies, depart ments and agencies must first obtain sufficient information about a person to be given access to these secrets in order that a reasonable judgement might be made as to his or her loyalty and reliability. In making this administrative judgment, it must always be borne in mind that, while the interests of the national security must take precedence where there is a reasonable doubt, the safeguarding of the interests of the individual is also essential to the preservation of the society we seek to protect. Information bearing on the security status of an employee will be treated as confidential. [Emphasis added.]
PROCEDURE
9. The following procedures by which this policy is to be implemented are designed to provide that the most careful screening possible be given, particularly to persons who will have access to highly classified information. It is the continuing responsibility of each government department and agency to ensure that its security remains unimpaired.
10. Information about persons who are being considered for access to classified information must be obtained at least from the persons themselves, from referees named by the persons, and from investigations conducted by authorized investigative agencies. Departments and agencies will inform persons who are being considered for access to classified information of the reasons for seeking background information about them, and to explain to them the dangers to themselves as well as to the national security in their attempting to conceal any information which may have a bearing on the degree of confidence that can be reposed in them.
11. The functions of an investigative agency are to conduct promptly and efficiently such investigations as are requested by departments or agencies to assist them in determining the loyalty and reliability of the subject of investigation; and to inform departments and agencies of the results of their investi gations in the form of factual reports in which the sources have been carefully evaluated as to the reliability of the information they have provided.
12. On the basis of these reports and such other pertinent information as has been obtained from the person concerned, from the character references which he has given, and from such other sources of information as may have been utilized, the employing department or agency will arrive at a considered judgement of the person's loyalty and reliability, and of the degree of confidence that can be reposed in him to carry out safely and efficiently the duties to be performed.
13. If a favourable determination is made, the department or agency may grant a security clearance to the level required for the efficient performance of the duties of the position con-
cerned. If, on the other hand, there is in the judgement of the deputy minister of the department or the head of agency concerned 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 or the head of agency.
14. Where an applicant for employment in the public service, as opposed to a person already employed, is being considered for appointment to a position requiring access to classified information and doubt has arisen as to his suitability for such access, the following courses of action may be taken with a view to resolving that doubt:
a) further specific investigation may be requested of an authorized investigative agency; or
b) the department or agency may at any time seek the advice of the interdepartmental Security Panel.
METHODS
21. Security screening of applicants to the public service will be initiated by the Civil Service Commission, or by depart ments and agencies in the case of persons not employed under the Civil Service Act. Where persons already employed in a department or agency are to be given access to classified information, security screening will be initiated by the depart ment or agency concerned.
25. Within the policies and procedures set out above, a security assessment and clearance will be made by the following means. These represent security criteria and methods which are con sistent with present investigative services available interdepart- mentally; they are minimum standards and do not limit in any way the right of the armed forces to conduct field checks, through their own resources, of personnel employed with or on behalf of the Department of National Defence.
(iv) Responsibility for granting clearances 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.
The respondent's attacks on the existence of jurisdiction under section 28 of the Federal Court Act may be summarized as follows:
(a) the Deputy Minister cannot be regarded as a "federal board, commission or other tribunal" exercising jurisdiction or powers conferred by or under an Act of Parliament, as that term is defined in section 2 thereof, because in decid ing to deny the security clearance he exercised
powers derived from the Royal prerogative as expressed in Cabinet Directive No. 35;
(b) assuming the Deputy Minister was a "federal board, commission or other tribunal", his deci sion was an administrative rather than a judi cial one that was neither required to be made on "a judicial or quasi-judicial basis" nor "by law", in that it was required to be made and was in fact made in exercise of the Royal prerogative as expressed in Cabinet Directive No. 35.
Finally, in the event that the decision of the Deputy Minister should be found to be reviewable under section 28 of the Federal Court Act, the respondent contends that the Deputy Minister did not (a) fail to observe a principle of natural justice or otherwise act beyond or refuse to exercise his jurisdiction, (b) err in law in making his decision, or (c) base his decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before him. With respect to each, counsel for the respond ent once again points to Cabinet Directive No. 35, stressing particularly the "reliability" factor which the Deputy Minister considered to be decisive, as shown by paragraphs 18 and 19 of his affidavit of September 5, 1986:
18. In exercise of my responsibility vested in me pursuant to subparagraph 25 (iv) of the said Cabinet Directive No. 35 for granting or withholding a security clearance to a person in my Department it was incumbent upon me to make such a decision in Mr. Thomson's case. By paragraphs 5 and 6 of the said Cabinet Directive No. 35 it was essential that I carefully consider, in addition to factors of loyalty, whether Mr. Thom- son was reliable or exhibited aspects of character as might seriously affect his reliability, and by paragraph 12 thereof I was directed to arrive at a considered judgment as to Mr. Thomson's loyalty and reliability and as to the degree of confidence that could be reposed in him to carry out safely and efficiently the duties to be performed on the basis of informa tion obtained from all available sources.
19. On the basis of the said report from the Canadian Security Intelligence Service, even as commented upon or explained in the said report from the Security Intelligence Review Commit tee it appeared to me that Mr. Thomson exhibited traits of character indicative of adhering to honesty and forthrightness
only to the degree that it furthered or was in accord with his interests, causes or beliefs: in other words, that he appeared to put his own interests, causes or beliefs ahead of his loyalty to his employer, as well as to Canada, raising reasonable doubts in my mind that he could be trusted with confidential information and otherwise be relied upon to carry on his duties of employ ment loyally and efficiently in his employer's, as well as Canada's interests. [Case, pages 122-123.]
It seems to me that we should first answer the question raised in the second of the three issues which I have defined above before deciding wheth er this Court has jurisdiction in the sense raised by either the first or third issue. If the answer to that question be "no", it would be necessary to consider whether this Court has jurisdiction to review the decision. If, on the other hand, the answer be "yes", it would be necessary to decide whether the Deputy Minister's decision may be made the sub ject of a judgment of this Court under section 28 of the Federal Court Act.
Nature of Intervenant's Recommendation
The applicant contends that the Deputy Minis ter is bound to implement the recommendation. This view of Parliamentary intention was fully supported by the intervenant whose submissions illustrate the argument most graphically. Counsel for the intervenant argues that, with the coming into force of the Act, there now exists a three-level system for dealing with a security clearance for the purpose of employment with the Government of Canada. Initially, it is for the Deputy Minister alone to decide whether to grant or to deny a security clearance in accordance with Cabinet Directive No. 35, and for that purpose the Deputy Minister may obtain from CSIS a "security assess ment" pursuant to subsection 13(1) of the Act. The second level consists of the intervenant's inves tigation triggered by the lodging of a "complaint" pursuant to section 42 of the Act by an individual denied a security clearance. The final level calls merely for the deputy head to give effect to any recommendation made by the intervenant in conse quence of its investigation. At this level, it is argued, there remains no room for the Deputy Minister to deny the clearance on a ground relied upon by him in the first place.
Counsel for the respondent takes a directly opposite view of the Act and of its underlying purpose. He argues that it does no more than provide an individual who has been denied employ ment, by reason of the denial of a security clear ance, with an opportunity of presenting his case to an independent committee and of learning the grounds upon which the clearance was denied. Subsection 52(2) of the Act, he contends, merely requires the intervenant to "provide the Minister, the Director, the deputy head concerned and the complainant with a report containing any recom mendations that the Committee considers appro priate" (the Minister in question being the Solici tor General of Canada), and in no way impinges upon the Deputy Minister's authority to decide the matter in accordance with Cabinet Directive No. 35. Indeed, he argues, this must be so espe cially where the decision concerns "reliability", a matter which can only be assessed by the person having the responsibility of deciding whether or not to employ the individual in question.
I agree that the outcome of this application must very much depend upon the interpretation to be given the word "recommendations" in subsec tion 52(2) of the Act. That interpretation, it seems to me, ought not to be made simply by ripping that word away from its statutory context and by adopting a literal meaning e.g. advising, counsel ling or suggesting a particular course of action. In his work Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983, the late E. A. Driedger expressed the "modern principle" of statutory construction in this way, at page 87:
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.
That view was very recently cited with approval by the Supreme Court of Canada in Canadian Na tional Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, per Dickson C.J., at page 1134.
It is not to say that judges may interpret a statute according to their own view as to policy, but, as Lord Scarman said in Reg. v. Barnet
London Borough Council, Ex parte Nilish Shah, [1983] 2 W.L.R. 16 (H.L.), at page 30:
They may, of course, adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy.
At the same time, in seeking out the intention of Parliament I take heed of the advice expressed by Sir John Donaldson M.R. in Carrington v. Therm- A-Stor Ltd., [1983] 1 W.L.R. 138 (C.A.), at page 142:
However, the concept that Parliament "must have intended" a particular result is not without its dangers. If regard is had solely to the apparent mischief and the need for a remedy, it is only too easy for a judge to persuade himself that Parliament must have intended to provide the remedy which he would himself have decreed if he had had legislative power. In fact Parliament may not have taken the same view of what is a mischief, may have decided as a matter of policy not to legislate for a legal remedy or may simply have failed to realise that the situation could ever arise. This is not to say that statutes are to be construed in blinkers or with narrow and legalistic literalness, but only that effect should be given to the intentions of Parliament as expressed in the statute, applying the normal canons of construction for resolving ambiguities or any lack of clarity.
Counsel for the applicant and for the interve- nant argue that we should look to the debates of the House of Commons and to certain evidence given before a Parliamentary Committee for assistance in discovering the "mischief' or "evil" that the Act was designed to correct. Such a use was made of Parliamentary debates by this Court in Lor- Wes Contracting Ltd. v. The Queen, [ 1986] 1 F.C. 346 (C.A.), per MacGuigan J., at page 355:
While the rule still remains that legislative history is not admissible to show the intention of the Legislature directly, the Supreme Court of Canada has nevertheless increasingly looked to legislative history for related purposes, not only in constitu tional cases (Re Anti-Inflation Act, [1976] 2 S.C.R. 373, Re Objection by Quebec to a Resolution to amend the Constitu tion, [1982] 2 S.C.R. 793), but also in relation to the interpre tation of statutes generally. So in R. v. Vasil, [1981] 1 S.C.R. 469, the Court referred to Hansard in order to determine that Canada adopted not only the text of the British Royal Commis sion's draft criminal code of 1879 but also its reasons. The present rule would thus appear to be that Hansard may be used, like the report of a commission of enquiry, in order to expose and examine the mischief, evil or condition to which the Legislature was directing its attention: Morguard Properties Ltd., supra, at pages 498-499 S.C.R.; 269-270 N.R.
The measure here in question came before the House of Commons in the form of Bill C-9 when it received first reading on January 18, 1984, the responsible Minister being the then Solicitor Gen eral of Canada, the Honourable Robert Kaplan. An earlier version, introduced by the Solicitor General on May 18, 1983 as Bill C-157, also became the subject of Parliamentary examination but was superseded by the new Bill. Although the organization of the old Bill was somewhat differ ent to that of Bill C-9, the clauses dealing with "complaints" and the powers and duties of the intervenant with respect thereto, were retained without material change and ultimately passed into law. One major feature, however, was not present in either Bill. It is the right of a complai nant, deputy head and the Director pursuant to subsection 48(2), to "present evidence and to be heard personally or by counsel" by the intervenant.
There are, I think, statements in the debates of the House of Commons and in proceedings of the Parliamentary Committee, that shed some light on the mischief or evil that was intended to be remed ied with the adoption of the Act. "The purpose of this Bill", said the Solicitor General, was "to a large extent, to provide a new set of guarantees and controls ... in order to protect the rights of Canadians against undue interference." 5 He also indicated that the Act would "(exchange) the present mandate, established by a Cabinet direc tive ... for a legislated mandate that can be changed only by Parliament" and thus represented "a giant step forward in protecting the rights of Canadians." 6 The Solicitor General added that the investigation of the complaints against refusal of a security clearance "is something new" and that this "should also be considered a great step for ward for civil liberties."' He characterized the procedures first proposed in Bill C-157 for investi gation of complaints as furnishing an individual denied a security clearance and employment with "the opportunity to get the records corrected and have justice done with respect to his or her case."
5 House of Commons Debates, Vol. II, 2nd Sess., 32nd Parl. 33 Eliz. II, February 10, 1984, at p. 1272.
6 Ibid., at p. 1273.
7 Ibid., at p. 1275.
8 House of Commons Debates, Vol. 23, 1st Sess., 32nd Parl. 32 Eliz. II, June 6, 1983, at p. 26073.
In his evidence before the Parliamentary Commit tee, the Solicitor General indicated that the pro posed statute would give the complainant in such a situation "a recourse". 9
Counsel for the respondent emphasizes the pres ence of the word "recommendations" in subsection 52(2) in arguing that the Deputy Minister is not bound by the intervenant's recommendation. He argues for the literal approach to statutory con struction. On the other hand, courts have been unwilling to interpret the word "recommendation" in that way if the particular statutory scheme in which it appears points to a different conclusion. Thus, in Christ's Hospital Governors, Rex v. Ex parte Dunn, [1917] 1 K.B. 19, Darling J. took that approach in stating at page 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 recommenda tion, 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 includ ing 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 "recommen- dation" is used not in the mild sense, but as really meaning a nomination.
Again, the Australian case of Myer Queenstown Garden Plaza Pty. Ltd. and Myer Shopping Cen tres Pty. Ltd. v. Corporation of the City of Port Adelaide and the Attorney-General (1975), 11 S.A.S.R. 504 (S.C.), furnishes another illustration of what I mean. The task facing the Court in that case was the interpretation to be given the word "recommendation" in the context of a statute empowering the Governor to make regulations "on the recommendation" of a municipal authority or council. It was argued that the word allowed the Governor to depart substantially from the recom mendation once received, but the Court thought
9 Canada, House of Commons, Standing Committee on Jus tice and Legal Affairs, Evidence, Issue no. 15 (April 17, 1984), at p. 6 and Issue no. 28, at p. 58.
otherwise. In so deciding, it took account of the framework provided in the statute for the adoption of a recommendation, which included (in section 38) a method whereby public objections could be raised against adoption and the availability of "an opportunity to appear personnally, or by counsel, solicitor or agent before the Authority or the council and to be heard in support of such objec tions". At page 547, Wells J. noted:
Mr. Johnston pointed to the machinery prescribed by s. 38 and posed this question: 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 opposi tion to its advice, and that he should act simply on its instiga tion? 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?
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 fea tures of that scheme impress me as indicating an intention of Parliament to provide the complainant with redress rather than with merely an opportu nity 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 representa tions to the Review Committee, to present evi dence and to be heard personally or by counsel" (subsection 48(2)); the broad powers of the intervenant to summon and enforce the appear ance 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 evi dence 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 informa tion "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 [R.S.C. 1970, c. E-10 (as added by S.C. 1980-81-82-83, c. 111, s. 4)] (subsections 39(2) and (3)).
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, sug gests 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 sug gests an intention that the intervenant have the ability to examine the whole basis on which a denial rests to ensure such redress as its investiga tion 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. Thirdly, 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 amend ments" 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) [as added by S.C. 1984, c. 21, s. 73]), or the Citizenship Act (subsection 17.1(5) [as added idem, s. 75]) or the Immigration Act, 1976 (para- graphs 39(8)(a) [as am. idem, s. 80] and 82.1(6)(a) [as added idem, s. 84] ). It is signifi cant, 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".
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 thereaf ter committed to the determination of the interve- nant 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 "recommenda- tion".
At the same time, it must be recognized that the existence of a new circumstance not known to a deputy head at the time of denial of a security clearance that becomes the subject of a "com- plaint" or that arises after an investigation is completed, might possibly permit the deputy head to deny a clearance a second time even in the face of a positive recommendation. The point is not before us for decision although it was alluded to by the applicant in argument. It may very well be that a deputy head would then become entitled to deny a clearance on account of the new circumstance and, if so, that the individual concerned would be entitled to lodge a fresh "complaint" and thereby obtain the protection which the Act was designed to afford. If that should be the proper conclusion, it would mean that a "recommendation" binds only in so far as it results from the investigation of the basis of a decision complained against rather than from some entirely different basis that was not originally considered by the deputy head.
Jurisdiction Revisited
If I am correct that the Deputy Minister is bound by the recommendation in question, I must now take up the third issue which I have defined above, namely, whether this Court has jurisdiction under section 28 of the Federal Court Act to review and set aside the decision whereby he refused to act in accordance with that recommen dation. His refusal was obviously based upon a misconstruction of subsection 52(2), for he clearly felt free to exercise a discretion that he claimed to still hold under Cabinet Directive No. 35. In my opinion, the decision under attack does not fall within the jurisdiction conferred on this Court by section 28, because that section does not authorize us to grant the relief sought, namely, the setting aside of the second decision and declaring that the Deputy Minister is bound to follow the recommen dation. If I am correct in so viewing the recom mendation, only a purely administrative act, rather than a decision made on a judicial or quasi-judicial basis, is required for its implementation. Section 18 of the Federal Court Act vests the Trial Divi-
sion with exclusive original jurisdiction to grant certain relief including relief by way of certiorari or mandamus, and it is well established that cer- tiorari lies to quash a decision of a public official who acts beyond his jurisdiction and that man- damus lies to compel the performance of a statu tory duty. As I see it, that duty arises here because of the existence of a binding recommendation duly made in accordance with the Act by Parliament's instrumentality, the intervenant. In my view, a refusal or neglect to follow that recommendation is not something this Court can deal with by any judgment it is authorized to pronounce under section 28.
DISPOSITION
In summary,
(a) the Deputy Minister is bound to grant the security clearance recommended by the intervenant;
(b) this Court is without jurisdiction under section 28 of the Federal Court Act to review and set aside the June 4, 1986 decision of the Deputy Minister denying that clearance.
I would dismiss this application.
HUGESSEN J.: I agree. DESJARDINS J.: I agree.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.