T-890-88
Robert Thomson (Applicant)
v.
Her Majesty the Queen, as represented by the
Department of Agriculture, the Deputy Minister
of Agriculture (Respondents)
INDEXED AS: THOMSON V. CANADA (DEPUTY MINISTER OF
AGRICULTURE)
Trial Division, Dubé J.—Ottawa, May 25 and
June 15, 1988.
Security intelligence — Whether Deputy Minister bound by
recommendations of Security Intelligence Review Committee
under Act s. 52(2)— Deputy Minister acting against Commit
tee recommendation to grant security clearance — Parliament
never intended recommendations of Committee to be binding
— Role of Committee to review investigations of security
agency and present finding of facts and recommendations to
deputy head — Final decision rests with deputy head and
Minister.
Federal Court jurisdiction — Appeal division not author
ized by s. 28 to set aside decision of Deputy Minister to deny
security clearance and declare he is bound by recommendation
of Security Intelligence Review Committee — Purely adminis
trative act, rather than judicial or quasi-judicial decision
required for implementation of recommendation — Certiorari
to quash decision of public official who acts beyond jurisdic
tion or mandamus to compel performance of statutory duty
must be sought in Trial Division — Trial Division not bound
by pronouncements by Appeal Division on matters within
jurisdiction of Trial Division.
Judges and courts — Federal Court of Appeal holding
Deputy Minister bound to grant security clearance but dis
missing judicial review application for want of jurisdiction —
Application to Trial Division for certiorari and mandamus —
Trial Judge in invidious position of having to review reasons
for judgment of Federal Court of Appeal — Whether matter
res judicata or subject to estoppel — F.C.A. decision obiter
dictum — Court not obliged to follow decision made without
jurisdiction — F.C.A. decision herein deserving respectful
consideration.
This is an application for certiorari to set aside a decision
made by the Deputy Minister of Agriculture denying the
applicant a security clearance and for mandamus requiring him
to grant the clearance.
The Security Intelligence Review Committee recommended
that the Deputy Minister grant the security clearance, but he
declined to do so. The matter was taken before the Federal
Court of Appeal, which held that the Deputy Minister was
bound to follow the Committee's recommendation, but dis
missed the application in that the Court did not have jurisdic
tion under section 28 to set the Deputy Minister's decision
aside.
Held, the motion should be denied.
Res judicata or the doctrine of issue estoppel do not apply
since the questions of certiorari and mandamus have not been
decided by the Court of Appeal, as it had no jurisdiction to do
so. The Court is not bound by the obiter dictum of the Court of
Appeal on a matter in which the Court pronounced itself
without jurisdiction.
If Parliament had intended the Deputy Minister to be bound
by the Committee's recommendations, .the word "decision"
would have been used. Cabinet directives state that the deputy
heads shall not delegate the decision to grant or deny clear
ances and must assume responsibility therefor. That the grant
ing of a security clearance is a matter of management authority
within the responsibility of the deputy head has been affirmed
by the Supreme Court of Canada. The Canadian Security
Intelligence Service Act, read together with the Financial
Administration Act, makes it clear that the Governor in Coun
cil has the power to suspend or dismiss employees on the basis
of security assessments. This is inconsistent with an interpreta
tion that the Security Intelligence Review Committee would
have the power to block or reverse the decision. The role of the
Committee is to review the investigations of the security
agency. The final decision rests with the deputy head and the
Minister, as confirmed by the current security policy. As there
is no duty upon the Minister to follow the Committee's recom
mendation, mandamus will not be ordered.
As the Deputy Minister had his own reasons for denying
clearance to the applicant and after considering the report his
doubts remained, it cannot be held that he acted on no evidence
or that he could not, on the evidence before him, come to the
conclusion he reached. The Court will not interfere with the
proper exercise of the Deputy Minister's discretion.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Security Intelligence Service Act, S.C. 1984,
c. 21, ss. 34(1), 38, 41, 42(1), 52(2).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 18, 28.
Financial Administration Act, R.S.C. 1970, c. F-10,
ss. 7(7),(7.1) (as am. by S.C. 1984, c. 21, s. 78), 7(8).
CASES JUDICIALLY CONSIDERED
APPLIED:
Angle v. M.N.R., [1975] 2 S.C.R. 248; (1974), 47 D.L.R.
(3d) 544; Carl Zeiss Stiftung v. Rayner & Keeler Ltd.
(No. 2), [1967] 1 A.C. 853 (H.L.); The Queen v. J.B. &
Sons Co. Ltd., [1970] S.C.R. 220; Nowegijick v. The
Queen, [1983] 1 S.C.R. 29; Lee v. Attorney General of
Canada, [1981] 2 S.C.R. 90; Ashbridge Investments Ltd.
v. Minister of Housing and Local Government, [1965] 3
All E.R. 371 (C.A.); Canadian National Railway Co. v.
Canada (Canadian Human Rights Commission), [1987]
1 S.C.R. 1114.
AUTHORS CITED
Driedger, Elmer A., Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
David J. Jewitt and Sean T. McGee for
applicant.
I. G. Whitehall, Q.C. and B. S. Russell for
respondents.
SOLICITORS:
Nelligan Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
DUBS J.: This application is for a writ of certio-
rari to set aside a decision made by the Deputy
Minister of Agriculture on June 4, 1986, denying
the applicant a security clearance for employment
within the Department of Agriculture and for a
writ of mandamus requiring the Deputy Minister
to grant the clearance in accordance with subsec
tion 52(2) of the Canadian Security Intelligence
Service Act ("the Act").' The subsection reads as
follows:
52. .
(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. [My emphasis.]
On April 9, 1986, the Security Intelligence
Review Committee ("S.I.R.C.") recommended
that the Deputy Minister grant the applicant the
security clearance in question. The latter decided
not to do so. The matter was taken before the
' S.C. 1984, c. 21.
Federal Court of Appeal [[1988] 3 F.C. 108]
under section 28 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10]. It was fully debated
during three days and the Court unanimously dis
missed the application. In his reasons for judgment
Stone J., on behalf of the Court, extensively
outlined the facts, canvassed the jurisprudence and
concluded as follows [at pages 139-140]:
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 accord
ance with that recommendation. 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 author
ize 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 recommendation. If I am correct in so
viewing the recommendation, 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 Division with exclusive
original jurisdiction to grant certain relief including relief by
way of certiorari or mandamus, and it is well established that
certiorari lies to quash a decision of a public official who acts
beyond his jurisdiction and that mandamus lies to compel the
performance of a statutory 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 instru
mentality, 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 clear
ance 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.
Pursuant to that judgment, the applicant is now
before the Trial Division under section 18 of the
Federal Court Act to seek the certiorari and the
mandamus referred to in the above reasons for
judgment.
The applicant did not appeal the Federal Court
of Appeal judgment, presumably because he was
satisfied with the disposition of the matter, even if
his application was dismissed. On the other hand,
the respondents do not agree that the Deputy
Minister is bound to grant the security clearance
recommended by the intervenant, but they cannot
appeal the judgment as it stands in their favour in
the sense that it dismissed the applicant's motion. I
therefore find myself in the invidious position of
having to review the Federal Court of Appeal's
reasons for judgment to find out whether or not I
am bound by "the disposition" to the effect that
"the Deputy Minister is bound to grant the secu
rity clearance recommended by the intervenant".
In any event, that is what the respondents invite
me to do.
The respondents submit that this matter is not
res judicata or subject to the related doctrine of
estoppel because the Federal Court of Appeal
found that it was without jurisdiction: therefore, it
is not a competent Court to determine whether or
not the remedies of mandamus and certiorari pro
vided by section 18 of the Federal Court Act ought
to be granted in the instant case.
In Angle v. M.N.R. 2 the Supreme Court of
Canada dealt with the finality of judgments and
the issues of res judicata and estoppel. The Court
referred (at pages 254 S.C.R.; 555 D.L.R.) to
Lord Guest in Carl Zeiss Stiftung v. Rayner &
Keeler Ltd. (No. 2)' who defined the requirements
of the issue estoppel as follows:
... (1) that the same question has been decided; (2) that the
judicial decision which is said to create the estoppel was final;
and, (3) that the parties to the judicial decision or their privies
were the same persons as the parties to the proceedings in
which the estoppel is raised or their privies ....
In my view, the first test has not been met. The
only decision made by the Federal Court of
Appeal in this matter which binds me is the one
appearing on the face of its judgment, namely that
"the section 28 application is dismissed". Having
2 [1975] 2 S.C.R. 248; (1974), 47 D.L.R. (3d) 544.
3 [1967] 1 A.C. 853 (H.L.), at p. 935.
no jurisdiction to hear the other matters placed
before it, that Court could not decide on matters
that may only be decided by the Trial Division,
namely whether the writs of certiorari and man-
damus ought to be awarded to the applicant.
The ratio decidendi behind the Court of Appeal
judgment is that the decision of the Deputy Minis
ter under appeal is purely an administrative deci
sion. The other question as to whether or not the
"recommendation" of the Security Intelligence
Review Committee is binding upon the Deputy
Minister could only be, for the Court of Appeal in
that instance, an obiter dictum.
The Supreme Court of Canada in The Queen v.
J.B. & Sons Co. Ltd. 4 heard an appeal from the
Exchequer Court of Canada. The latter Court had
allowed a petition of writ solely because it con
sidered itself bound to take the view that "judg-
ments of Courts of equal or coordinate jurisdiction
should be followed in the absence of strong reasons
to the contrary". Thus, Cattanach J. who personal
ly held a different opinion still chose to follow the
decision of Landreville J. of the Supreme Court of
Ontario. Pigeon J. said that Cattanach J. was not
obliged to follow the first decision which was made
without jurisdiction (at page 236):
Having come to the conclusion that the judgment of Landre-
ville J. was pronounced without jurisdiction, it follows that this
case should be decided without reference thereto. In my opin
ion, Cattanach J. was correct in his opinion as to what the
proper conclusion should be on that view of the matter.
Of course, the situation is different here because
the Federal Court of Appeal is more than a court
of equal or coordinate jurisdiction. Still the princi
ple stands and since the Federal Court of Appeal
has pronounced itself without jurisdiction to grant
a mandamus or certiorari in the instant case, the
decision to grant those two remedies can only be
made by this Court. Of course, the learned reasons
for judgment of the Federal Court of Appeal are
persuasive and deserve paramount and respectful
consideration.
[1970] S.C.R. 220.
The fundamental question to be resolved is
whether the word "recommendations" appearing
in subsection 52(2) of the Act means, in effect,
"binding decision". 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".
The Chief Justice of the Supreme Court of
Canada in Canadian National Railway Co. v.
Canada (Canadian Human Rights Commission) 5 ,
spoke about the interpretation of words in statutes
and at page 1134 referred to Elmer A. Driedger,
Construction of Statutes (2nd ed. Toronto: Butter-
worths, 1983, at page 87) as follows:
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 quote is reproduced in the reasons for
judgment of the Federal Court of Appeal. There is
also a presumption that words in a statute are
strictly and correctly used. Although, their gram
matical and ordinary sense must be harmonized
with the purposes of the statute, this does not
allow the Court to depart from the grammatical
and ordinary meaning unless an absurdity would
otherwise result.
Was it the intention of Parliament to grant to
S.I.R.C. the power to impose upon the Deputy
Minister (and the Minister, who is finally respon
sible to Parliament) the obligation to hire people
whom they do not trust for security reasons? If the
person involved should later commit a serious
breach of security, who will take the responsibility
for it? At first blush, it would seem to me that if
Parliament intended to clothe S.I.R.C. with that
extraordinary power, it would have said so. The
word "decision" would have been used.
5 [1987] 1 S.C.R. 1114.
Cabinet Directive Number 35 dealing with secu
rity in the Public Service of Canada, in force at
the material time, (it was revised in September
1987) provides in section 1 that "security in the
public service of Canada is essentially a part of
good personnel administration and therefore it is
the responsibility of each department and agency".
Section 9 deals with procedures and provides that
"it is the continuing responsibility of each govern
ment department and agency to ensure that its
security remains unimpaired". The "investigative
agency" was the RCMP and is now the Canadian
Security Intelligence Service, since the Act was
assented on June 28, 1984. Section 13 provides
that if there is in the judgment of the Deputy
Minister of a department or the head of an agency
"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". Section 18
reads as follows:
18. In arriving at a final decision as to whether to recommend
to the Governor in Council that an employee be dismissed on
grounds of security, the Minister responsible will take into
account all of the relevant information and advice that has been
provided, but the minister is not bound to act on such advice.
[My underlining.]
As to the weight to be given to Cabinet Direc
tive Number 35, or to any administrative policy,
the Supreme Court of Canada in Nowegijick v.
The Queen 6 said as follows at page 37:
Administrative policy and interpretation are not determina-
tive but are entitled to weight and can be an "important factor"
in case of doubt about the meaning of legislation ....
As mentioned earlier, Cabinet Directive
Number 35 which dates back to 1963 has been
replaced by a new Directive entitled "Security
Policy of the Government of Canada" in Septem-
ber 1987 (after the coming into force of the
Canadian Security Intelligence Service Act). The
new Directive (at subsection 1.5) still provides that
deputy heads "have full authority for the adminis
tration of all aspects of their institution's security",
but they are still accountable to the Treasury
Board in reference to security practices. In screen
6 [1983] 1 S.C.R. 29.
ing personnel for reliability and security, deputy
heads must do certain things "and accept responsi
bility for the decision". They must also "provide
notice to individuals, as required by the Canadian
Security Intelligence Service Act and this Policy".
Subsection 6.3 deals with security clearances
and provides that "deputy heads shall grant or
deny a security clearance, taking into account
advice from the investigative body and the Depart
mental Security Officer ... The authority to deny,
revoke or suspend a security clearance rests with
the deputy head and shall not be delegated".
Subsection 8.2 deals with redress. It provides
that a person whose security clearance had been
removed may have recourse to the formal review
process of S.I.R.C. as specified in the Act. Para
graph 8.2.2, dealing with security clearance, pro
vides that S.I.R.C. is responsible for the formal
review process for redress concerning denial of a
security clearance.
The new Directive does not state that the recom
mendations of S.I.R.C. are binding upon the
Deputy Minister.
The Supreme Court of Canada in Lee v. Attor
ney General of Canada' dealt with Cabinet Direc
tive Number 35 (before the enactment of the
Canadian Security Intelligence Service Act).
Martland J. had this to say at page 96:
The authority to require a security clearance as a condition of
appointment and the authority to determine whether such a
clearance should be granted are part of the management au
thority that has not been excluded by the Public Service
Employment Act or assigned by it to the Commission. The
Cabinet Directive is a directive from the Government concern
ing the exercise of this authority. It is the deputy head who is
responsible for taking the initiative and making the decision as
to security clearance in a particular case. [My underlining.]
One would think that if Parliament intended to
overrule that decision of the highest court and to
7 [1981] 2 S.C.R. 90.
subject the decision of the deputy head to that of
S.I.R.C., it would have used a more potent word
than "recommendations" in subsection 52(2).
Moreover, when Parliament prescribed the func
tions of the S.I.R.C. in section 38 of the Act, it
provided that S.I.R.C. would conduct investiga
tions in relation to complaints made to S.I.R.C.
under sections 41 and 42, but did not provide that
S.I.R.C. would issue decisions binding upon
deputy heads. Clearly, it could have done so
explicitly under paragraph 38(c).
The Canadian Security Intelligence Service Act
amended several other Acts, including subsection
7(7) of the Financial Administration Act [R.S.C.
1970, c. F-10 (as am. by S.C. 1984, c. 21, s. 78)].
The former subsection 7(7) provided that nothing
in this Act or any other Act shall be construed to
limit or affect the right or power of the Governor
in Council in the interest of the safety or security
of Canada to suspend any person employed in the
Public Service or to dismiss any such person. The
new subsection reads as follows:
7....
(7) Subject to subsection (7.1), nothing in this or any other
Act shall be construed to limit or affect the right or power of
the Governor in Council to suspend or dismiss any person
employed in the public service on the basis of a security
assessment.
The restricting subsection (7.1) reads as follows:
(7.1) Where a person has made a complaint with respect to
a security assessment to the Security Intelligence Review Com
mittee established by subsection 34(1) of the Canadian Secu
rity Intelligence Service Act, that person shall not be dismissed
pursuant to subsection 7 until after the completion of the
investigation in relation to that complaint.
Subsection 7(8) of the Financial Administration
Act reads as follows:
7....
(8) For the purpose of subsection (7), any order made by the
Governor in Council is conclusive proof of the matters stated
therein in relation to the suspension or dismissal of any person
in the interest of the safety or security of Canada or any state
allied or associated with Canada.
Reading together those provisions of the Act
and of the Financial Administration Act reinforces
the view that the right or power of the Governor in
Council to suspend or dismiss an employee on the
basis of security assessment (which matters are
also the subject of the subsection 42(1) complaint
procedures) remains unaffected, except that such a
person cannot be dismissed until completion by
S.I.R.C. of its investigation of a complaint respect
ing such suspension or dismissal. This language is
not consistent with an interpretation that S.I.R.C.
would have the power to block or reverse the
suspension or dismissal.
Parliament could have provided that the right or
power of the Governor in Council was subject to
the "recommendations" of S.I.R.C. but chose not
to do so.
In my view, Parliament never intended the
"recommendations" of S.I.R.C. to be binding upon
the deputy heads. The deputy head himself does
not carry out the necessary investigation but has it
done by the proper security agency, at first the
RCMP and now, the Canadian Security Intelli
gence Service. The role of S.I.R.C. is to review the
investigations of the security agency. S.I.R.C. may
compel witnesses to attend, may provide remedies,
may complete investigations and finally present a
finding of facts and "recommendations" to the
deputy head. The final decision remains with the
deputy head and the Minister himself, as con
firmed by the present Security Policy revised after
the enactment of the Canadian Security Intelli
gence Service Act.
Furthermore, the plural word "recommenda-
tions" would lead one to believe that Parliament
expected the Committee to make several "recom-
mendations" with reference to a complainant, as
opposed to one single final binding decision order
ing his reinstatement.
In conclusion, there being no duty upon the
Minister to follow the recommendation of
S.I.R.C., the Deputy Minister was free to use his
own discretion. Where there is no duty, mandamus
will not be issued.
If the Deputy Minister abused his discretion and
did not act fairly towards the applicant, then this
Court would grant a writ of certiorari and set
aside the decision under attack.
The Court could set aside the Deputy Minister's
decision if it were shown that he had frivolously
disregarded the recommendation of S.I.R.C. and
had acted on his own without any evidence or
without jurisdiction. The instances upon which the
Court may interfere with such decisions are
outlined by Lord Denning in Ashbridge Invest
ments Ltd. v. Minister of Housing and Local
Government 8 (at page 374):
... the court can interfere with the Minister's decision if he has
acted on no evidence; or if he has come to a conclusion to
which, on the evidence, he could not reasonably come; or if he
has given a wrong interpretation to the words of the statute; or
if he has taken into consideration matters which he ought not
have taken into account, or vice versa; or has otherwise gone
wrong in law. It is identical with the position when the court
has power to interfere with the decision of a lower tribunal
which has erred in point of law.
It is common ground that the Deputy Minister
had his own security reasons for refusing the clear
ance to the applicant. Initially, they were based
upon the previous inquiry carried out by the proper
security agency and the Privy Council Office had
expressed agreement with that decision. Obviously,
the Deputy Minister considered the report of
S.I.R.C. but still harboured a reasonable doubt as
to the degree of confidence which may be reposed
in the applicant. His doubts were not removed by
the findings and recommendation of S.I.R.C.
It cannot be held that the Deputy Minister acted
on no evidence, or that he could not, on the
evidence before him, reasonably come to the con
clusion which he reached. There is no indication
that he was wrong in law. As to procedural fair
ness, there is no evidence that the proper proce
dure was not followed under the Act. In short, this
Court cannot interfere with the proper exercise of
the Deputy Minister's discretion in this matter.
Consequently, the motion is denied with costs.
8 [1965] 3 All E.R. 371 (C.A.).
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.