A-98-79
Attorney General of Canada (Applicant)
v.
Paul Murby, Lorne Butchart and J. David Lee,
sitting as an Appeal Board under section 21 of the
Public Service Employment Act, R.S.C. 1970, c.
P-32 and Ronda Lee (Respondents)
Court of Appeal, Heald and Le Dab JJ. and Kerr
D.J.—Ottawa, November 20, 1979 and January
14, 1980.
Judicial review — Public Service — Application to review
and set aside decision of Appeal Board allowing respondent
Lee's appeals against certain appointments — Although Lee
was successful candidate, she was not appointed to fill posi
tions because she was refused required security clearance —
Whether or not R.C.M.P. Commissioner's decision respecting
security clearances is subject to review on appeal under s. 21 of
the Public Service Employment Act — Application allowed —
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 6, 8,
10, 21 — Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, ss. 90(2), 112(1),(2) — Public Service Employment
Regulations, C.R.C. 1978, Vol. XIV, c. /337, as amended, s.
7(4) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28.
This is an application to review and set aside the respondent
Board's decision to allow the respondent Lee's appeals against
certain appointments. Lee was the successful candidate in two
competitions in which security clearance was a qualification.
Because she was denied the required security clearance, she
was not appointed to fill existing vacancies. Lee's appeals to the
respondent Board were allowed. The applicant submits that the
Commissioner's decision respecting security clearances is not
subject to review on appeal under section 21 of the Public
Service Employment Act. Section 112 of the Public Service
Staff Relations Act provides that the employer shall not be
required to do anything contrary to a security directive.
Held, the application is allowed. Whether or not the Com
missioner of the R.C.M.P. followed proper procedure in decid
ing to withhold security clearance is not a matter that the
Board was entitled to inquire into. The Board's mandate was to
determine whether the appointments of the second and third
persons on each list were according to the merit principle as
required by section 10 of the Public Service Employment Act
and as modified by section 112(1) of the Public Service Staff
Relations Act. Because of the application of section 112(1), the
Board is precluded from going behind the failure of the Com
missioner to grant a security clearance. The jurisdiction of the
Board to determine whether the merit principle in making
appointments has been adhered to is restricted to a• consider
ation of all of the qualifications listed in the competition other
than the security clearance qualification.
Per Le Dain J.: The Board has asserted the power to review
the "reasonableness" of the Deputy Head's refusal of a security
clearance. An Appeal Board acting under section 21 of the
Public Service Employment Act does not have that authority.
It is not certain that what the Appeal Board sought to do is
clearly precluded by the terms of section 112 of the Public
Service Staff Relations Act which is concerned with a con
struction of legislation that would require the employer to do
something that would be contrary to a security directive.
Section 21 of the Public Service Employment Act bears on
what may or may not be done by the Commission. 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 to it by the Commission. The
decision of a deputy head with respect to security clearance is
not an evaluation of a candidate's relative merit.
Brown v. Appeals Branch, Public Service Commission
[1975] F.C. 345, referred to.
APPLICATION for judicial review.
COUNSEL:
W. J. A. Hobson, Q.C. for applicant.
No one appearing for respondents P. Murby,
L. Butchart and J. D. Lee.
M. W. Wright, Q.C. for respondent Ronda
Lee.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent
Ronda Lee.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the decision of the respondent
Board made on January 29, 1979, allowing the
appeals of the respondent Ronda Lee against cer
tain appointments made as a result of competitions
for positions within the Royal Canadian Mounted
Police (hereinafter R.C.M. Police).
The respondent Ronda Lee, was a successful
candidate in respect of two competitions conducted
pursuant to the Public Service Employment Act,
R.S.C. 1970, c. P-32, and the Regulations made
thereunder. Both were closed competitions estab-
lished pursuant to the provisions of the Public
Service Employment Regulations, C.R.C. 1978,
Vol. XIV, c. 1337, as amended and were designed
to create eligible lists from which appointments
were to be made to fill immediate vacancies. As a
result of these two competitions, two eligible lists
were established and each list contained the names
of four candidates in order of merit. The name of
the respondent, Ronda Lee, appeared first on each
of these lists. The competition poster for each
competition set out the duties of the position and
the qualifications required of the successful candi
date. One of the qualifications required in each
case was "Top Secret Security Clearance".
Following the preparation and publication of the
two eligible lists, the respondent was advised by
the R.C.M. Police she was being denied "Top
Secret Security Clearance". Accordingly, she was
not appointed to fill the existing vacancies. The
persons occupying positions 2 and 3 on each list
were appointed. The respondent, Ronda Lee,
appealed these decisions to the respondent Board
pursuant to section 21 of the Public Service
Employment Act.'
At the hearing before the Appeal Board, this
applicant submitted that the Appeal Board was
without jurisdiction to inquire into the reasons
' Section 21 of the Public Service Employment Act reads as
follows:
21. Where a person is appointed or is about to be appoint
ed under this Act and the selection of the person for appoint
ment was made from within the Public Service
(a) by closed competition, every unsuccessful candidate, or
(b) without competition, every person whose opportunity
for advancement, in the opinion of the Commission, has
been prejudicially affected,
may, within such period as the Commission prescribes,
appeal against the appointment to a board established by the
Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their repre
sentatives, are given an opportunity of being heard, and upon
being notified of the board's decision on the inquiry the
Commission shall,
(c) if the appointment has been made, confirm or revoke
the appointment, or
(d) if the appointment has not been made, make or not
make the appointment,
accordingly as the decision of the board requires.
behind the Department's failure to grant to the
respondent, Ronda Lee, the required level of secu
rity clearance, and thus offered no evidence as to
the circumstances surrounding that decision other
than the following documentary evidence:
(a) A copy of Cabinet Directive No. 35, dated
December 18, 1963; and
(b) A letter from the Commissioner of the
R.C.M. Police dated January 9, 1979, to the
Commanding Officer, R.C.M. Police, Vancou-
ver, in which he stated: "Following procedures
outlined in Cabinet Directive Number 35, I have
come to the conclusion that Ronda Lynn Lee
will not be granted a security clearance".
In its decision dated January 29, 1979, the
Appeal Board allowed the appeal of Ronda Lee in
respect of the appointments made in the two
competitions.
By this section 28 application, the applicant
seeks to have that decision of the Appeal Board set
aside.
This Court has held that a Minister's power of
management would include and always has includ
ed the right to stipulate what qualifications he
required of any person being appointed to a posi
tion in his department 2 . However, the power to
make such an appointment has long been removed
from the Minister, generally speaking and is pres
ently conferred on the Public Service Commission
by section 8 of the Public Service Employment
Act. Furthermore, pursuant to section 6 of the
Public Service Employment Act, the Commission
may authorize the deputy head of a branch of the
Public Service to exercise this power of appoint
ment. In the case at bar, it is common ground that
the Deputy Head (the Commissioner of the
R.C.M. Police) made the appointments pursuant
to the delegated power set out in said section 6.
I agree with the Appeal Board that in this case
the Department (i.e., the R.C.M. Police) deter
mined that the duties of the positions to be filled
could not be efficiently carried out by persons who
were not granted a "Top Secret Security Clear
ance" and as a result, a security clearance was one
2 See: Brown v. Appeals Branch, Public Service Commission
[1975] F.C. 345, at p. 350 and at p. 357.
of the required qualifications for the positions in
question.
Accordingly, in the absence of contrary author
ity, statutory or otherwise, it is my view that the
Appeal Board might well have jurisdiction to
review the security clearance qualification along
with all of the other qualifications stipulated in the
competitions in an inquiry under section 21 of the
Public Service Employment Act, supra, in order to
satisfy itself that the requirement set out in section
10 of the Public Service Employment Act that the
selection shall be according to merit has been
satisfied. However, in view of the conclusion I have
reached, it is not necessary to decide this matter.
Counsel for the applicant made the following
submission to us in support of his position that the
Commissioner's decision respecting security clear
ances is not subject to review on appeal under
section 21:
15. Cabinet Directive number 35 and the statement dated
January 9, 1979 made by the Commissioner of the Royal
Canadian Mounted Police are given legal force and effect by
Section 112 of the Public Service Staff Relations Act and by
virtue of that section nothing in that or any other Act, includ
ing the Public Service Employment Act, is to be construed as
requiring Her Majesty the Queen as represented by the Trea
sury Board to do or refrain from doing anything contrary to
that Directive or Statement. If Her Majesty the Queen as
represented by the Treasury Board cannot employ a person
contrary to the Directive or Statement, it must necessarily
follow that the Respondent cannot properly challenge her elimi
nation from the competitions on the basis that she was not
granted the required security clearance.
Section 112 of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, reads as follows:
112. (1) Nothing in this or any other Act shall be construed
to require the employer to do or refrain from doing anything
contrary to any instruction, direction or regulation given or
made by or on behalf of the Government of Canada in the
interest of the safety or security of Canada or any state allied
or associated with Canada.
(2) For the purposes of subsection (1), any order made by
the Governor in Council is conclusive proof of the matters
stated therein in relation to the giving or making of any
instruction, direction or regulation by or on behalf of the
Government of Canada in the interest of the safety or security
of Canada or any state allied or associated with Canada.
In order to fully understand the situation, it is
necessary, in my view, to consider the contents of
Cabinet Directive No. 35 which is attached as
Appendix "A" to these reasons. A perusal of
Directive No. 35 makes it clear in my view, that it
is an "instruction" or a "direction" given on behalf
of the Government of Canada in the interest of the
safety or security of Canada, within the meaning
of section 112(1) quoted supra and as such,
applies to the provisions of the Public Service
Employment Act.
Paragraph 1 of the Directive reads as follows:
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.
Paragraph 9 provides:
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.
Paragraph 13 provides:
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.
Paragraph 25(iv) provides:
25....
(iv) Responsibility for granting clearances
The deputy head of a department or agency will be respon
sible for granting or withholding a security clearance and will
assume a continuing responsibility for a person's access to
Top Secret, Secret and Confidential information.
It is clear from these excerpts that Directive No.
35 makes security the responsibility and the con
tinuing responsibility of each department and
agency and makes the deputy head responsible for
granting or withholding a security clearance. The
procedures by which security clearances may be
granted or withheld are detailed in paragraphs 9 to
20 inclusive.
In the case at bar, the respondent Lee did not
receive the required security clearance. Whether
or not the Commissioner of the R.C.M. Police
followed proper procedures in deciding to withhold
security clearance from the respondent Lee is not a
matter that the Board was entitled to inquire into.
It seems to me that the Board's mandate was to
determine whether the appointments of the second
and third persons on each list were according to
the merit principle as required by section 10 of the
Public Service Employment Act and as modified
by the provisions of section 112(1) of the Public
Service Staff Relations Act, supra. Accordingly,
in my view, because of the application of section
112(1), the Board is precluded from going behind
the failure of the Commissioner to grant a security
clearance. The matter of the compliance by the
Commissioner with the procedures set out in
Directive No. 35 might form the basis for a claim
for relief in another forum in another cause of
action but it could not be canvassed by the Board
in these proceedings. The jurisdiction of the Board
under the provisions of the Public Service
Employment Act to determine whether the merit
principle in making appointments has been
adhered to is, in my view, in this case, restricted to
a consideration of all of the qualifications listed in
the competition other than the security clearance
qualification. Therefore, when the Board took the
position that it was entitled to inquire into the
reasons as to why the security clearance was
denied this respondent, it failed, in my opinion, to
properly apply the provisions of section 112(1) of
the Public Service Staff Relations Act, supra to
the facts of this case.
In my view, section 112(1) protects the employ
er against being required to do anything contrary
to the provisions of Directive No. 35. As will be
seen from those portions of Directive No. 35
quoted supra, the deputy head has a continuing
responsibility for granting or withholding a secu
rity clearance and where, in his judgment there is
a reasonable doubt, the granting of a security
clearance will be delayed until that doubt has been
resolved to the satisfaction of the deputy head.
From his letter of January 9, 1979, it is clear that
in this case, that doubt was not resolved to the
satisfaction of the Deputy Head. Therefore, to
employ the respondent in such circumstances
would produce a result contrary to the provisions
of Directive No. 35 which would necessarily con
travene the provisions of said section 112(1).
For these reasons I have concluded that the
decision of the respondent Board must be set aside.
There are, however, disturbing aspects to the
factual situation in this case. There is nothing in
the record before us to indicate in any way that the
respondent, Ronda Lee, is a security risk. She was
advised by letter dated December 8, 1978 from
Superintendent Maidens, Officer I.C. Administra
tion and Personnel, R.C.M. Police, Vancouver,
that she was not going to receive the required
security clearance. This was confirmed by the
Commissioner's letter of January 9, 1979 referred
to supra. In her appeal letter of December 14,
1978, she states that she requested the reason for
refusal but "... was refused any information."
Paragraph 15 of Directive No. 35 sets out the
procedure in cases where the person requesting
security clearance is already employed in the
public service. That paragraph provides that "..
the assistance of the employee himself shall be
sought in an attempt to resolve the doubt ...". The
paragraph further provides that "A senior officer
... shall ... interview the subject and inform him,
to the fullest extent that is possible without jeop
ardizing important and sensitive sources of secu
rity information, of the reasons for doubt, and
shall give the employee an opportunity to resolve it
to the satisfaction of the responsible department or
agency." On the record before us, there is no
evidence that the respondent, Ronda Lee, was
interviewed or was given an opportunity to resolve
the problem. The provisions of Directive No. 35
and the provisions of the document dated Decem-
ber 27, 1963 entitled "Memorandum for Deputy
Ministers and Heads of Agency" sent by R. G.
Robertson, Cabinet Secretary (Case, pages 46 and
47) make it clear, in my view, that it is the intent
of Directive No. 35 that the employee be informed
of the reasons for doubt on security grounds in so
far as is possible without endangering important
sources of security information and to allow the
employee an opportunity to resolve that doubt
before the security clearance is withheld. These
procedures do not appear to have been followed in
the case of the respondent, Ronda Lee. However,
as I have stated earlier in these reasons, the matter
of the compliance or non-compliance by the Com
missioner with the procedures set out in Directive
No. 35, while possibly forming the basis for relief
to be sought elsewhere, was not capable of review
by the Board in the proceedings before it pursuant
to section 21 of the Public Service Employment
Act.
Accordingly, I would allow the section 28
application and set aside the decision and order of
the Board dated January 29, 1979.
APPENDIX "A"
THIS DOCUMENT IS THE PROPERTY OF THE GOVERNMENT OF
CANADA
December 18th, 1963.
CABINET DIRECTIVE NO. 35
Security in the Public Service of Canada
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.
2. Employees in the public service of Canada, including mem
bers of the Armed Services and the Royal Canadian Mounted
Police, who are required to have access to classified information
in the performance of their duties, must be persons in whose
reliability and loyalty to his country the Government of Canada
can repose full confidence. It has been clearly demonstrated
that such confidence cannot be placed in persons whose loyalty
to Canada and our system of government is diluted by loyalty
to any Communist, Fascist, or other legal or illegal political
organization whose purposes are inimical to the processes of
parliamentary democracy. It is therefore an essential of
Canadian security policy that persons described in paragraph 3
below must not, when known, be permitted to enter the public
service, and must not if discovered within the public service be
permitted to have access to classified information. If such a
person is in a position where he has access to classified informa
tion, he must at least be transferred to a less sensitive position
in the public service. It may also be necessary, where it appears
to the Minister concerned to be in the public interest, to dismiss
him from the public service, subject to the conditions set out at
paragraph 17 below.
3. The persons referred to in paragraph 2 above are:
(a) a person who is a member of a communist or fascist party
or an organization affiliated with a communist or fascist
party and having a similar nature and purpose;
(b) a person who by his words or his actions shows himself to
support a communist or fascist party or an organization
affiliated with a communist of [sic] fascist party and having
a similar nature and purpose;
(c) a person who, having reasonable grounds to understand
its true nature and purpose, is a member of or supports by his
words or his actions an organization which has as its real
objective the furtherance of communist or fascist aims and
policies (commonly known as a front group);
(d) a person who is a secret agent of or an informer for a
foreign power, or who deliberately assists any such agent or
informer;
(e) a person who by his words or his actions shows himself to
support any organization which publicly or privately advo
cates or practices the use of force to alter the form of
government.
4. It must be borne in mind that there may be reason to doubt
the loyalty of a person who at some previous time was a person
as described in paragraph 3 above, even though this doubt may
not be confirmed by recent information about him.
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 black
mail or coercion. Such features may be greed, debt, illicit
sexual behaviour, drunkenness, drug addiction, mental
imbalance, or such other aspect of character as might seri
ously 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 reliability, 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.
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 classified information, may
afford their incumbents opportunities 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 judgement, it
must always be borne in mind that, while the interests of the
national security must take precedence where there is a reason
able 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.
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.
ll. 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 infor
mation 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.
15. Where a person is already employed in the public service,
and a doubt has been raised as to his suitability to have access
to classified information, the security officer of the department
or agency must take such action as is necessary to preserve
security and may take the courses of action referred to in
paragraph 14 with a view to resolving that doubt. Should these
actions fail to resolve the doubt, or appear to the department or
agency to be inexpedient under the circumstances, the assis
tance of the employee himself shall be sought in an attempt to
resolve the doubt. A senior officer appointed by the deputy
minister or head of agency shall, after appropriate consultation
with the investigative agency or other source of the information
which raised the doubt, interview the subject and inform him,
to the fullest extent that is possible without jeopardizing impor
tant and sensitive sources of security information, of the rea
sons for doubt, and shall give the employee an opportunity to
resolve it to the satisfaction of, the responsible department or
agency.
16. Should none of the courses set out in paragraph 15 above
result in a satisfactory resolution of doubt concerning a govern
ment employee, the responsible department or agency shall
withhold a security clearance, shall take such action as is
necessary to preserve security and shall consult the Secretariat
of the Security Panel with a view to their assisting the depart
ment or agency in determining tentatively:
(a) whether the subject might safely and usefully be appoint
ed to a less sensitive position in the department or agency or
elsewhere in the public service, with his knowledge and
consent to the fullest degree possible under the circum
stances;
(b) if appointment elsewhere is not possible, whether he
should be asked to resign his position in the department or
agency; or
(c) if he refuses to resign, whether it should be recommended
to the Minister responsible that the person be dismissed from
the public service.
17. Should the department decide that a recommendation for
dismissal should be made, no action shall be taken on such
recommendation until:
(a) the deputy minister or head of agency has personally
made a complete review of the case, and has himself inter
viewed the employee in question, in a further attempt to
resolve any reasonable doubt as to his trustworthiness;
(b) the employee has been advised, to the fullest extent
possible without jeopardizing important and sensitive sources
of security information, why doubt continues to be felt
concerning his loyalty or reliability, and has been given a
further opportunity to submit any information or consider
ations that he thinks ought to be taken into account on his
behalf by the deputy minister or head of agency; and failing
a satisfactory resolution,
(c) the advice of a board of review drawn from the members
of the Security Panel has been sought on the basis of all the
information available. (The board of review shall consist of
the Chairman and at least two members of the Security
Panel, with the proviso that no member who is directly
concerned with the case shall sit as a member of the board.)
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.
19. The numbers of all persons who for security reasons are
removed from eligible lists by the Civil Service Commission, or
are in one way or another refused access to classified informa
tion by departments or agencies for security reasons, will be
sent quarterly to the Secretary of the Security Panel in order
that the Panel may from time to time review the number of
persons or the type of cases involved, and assess the extent of
the security problem in the public service. The figures provided
should be broken down in the following general categories:
persons dismissed, persons permitted to resign, persons trans
ferred to non-sensitive posts, persons denied access to classified
information, persons denied employment. In addition the fig
ures should indicate whether the action was taken on grounds
of disloyalty or unreliability. Figures should not include persons
who are no longer given access to classified information
because of a change in duties or other similar administrative
reasons.
20. It is the responsibility of each deputy head, or head of an
agency, to nominate a competent senior official, preferably the
Senior Personnel Officer, to act as security officer, and to
notify the Secretary of the Security Panel of the appointment
and of any subsequent change. The official so nominated shall
be cleared for security in accordance with the procedures set
out in paragraph 25(i) below. The person so named will be
responsible to the deputy head or head of an agency for
ensuring that all regulations relative to security are carried out
within the department or agency. It will also be the responsibil
ity of the departmental security officer to maintain close liaison
with the government agencies responsible for security policy
and procedures. It is important that wherever possible security
officers should be persons who may be expected to continue
their work over a long period of time, since effective security is
difficult to maintain without considerable experience in a spe
cialized field.
METHODS
21. Security screening of applicants to the public service will be
initiated by the Civil Service Commission, or by departments
and agencies in the case of persons not employed under the
Civil Service Act. Where persons already employed in a depart
ment or agency are to be given access to classified information,
security screening will be initiated by the department or agency
concerned.
22. When it appears necessary on security grounds for the Civil
Service Commission to reject an applicant, or a candidate for a
position involving access to classified information who is
already in the public employ, the Commission will when appro
priate consult with the interested department in order to reach
a joint agreement as to what action may finally be taken,
bearing in mind the fact that the ultimate responsibility for
security rests with the department.
23. When it appoints to a department a new employee who has
been the subject of a security screening, the Civil Service
Commission will send forward to the department all the perti
nent information and documentation relating to the security
screening.
24. A person to be appointed to a permanent position in the
public service will not normally be made the subject of security
screening for this reason alone. But whenever a person to be
appointed to such a position is, in the opinion of the deputy
minister or head of agency concerned, likely to be required
eventually to have access to classified information, that person
shall before being given a permanent appointment, be made the
subject of a fingerprint and file check if this has not already
been done.
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:
(i) Persons to have access to Top Secret information
Before a person is employed in a position requiring access to
Top Secret information he must be the subject of an investi
gation in the field by an appropriate investigative agency, his
name must be checked against the subversive records of the
R.C.M. Police, and he must be the subject of a fingerprint
check by the R.C.M. Police. These procedures are
mandatory.
(ii) Persons to have access to Secret information
(a) Before a person is employed in a position requiring access
to Secret information his name must be checked against the
subversive records of the R.C.M. Police, and he must be the
subject of a fingerprint check by the R.C.M. Police. Both
these procedures are mandatory.
(b) When the Chairman of the Civil Service Commission or
the deputy head of a department or agency, or a security
officer appointed by them, considers that information pro
vided by the means set out in paragraph 25(ii)(a) may be
clarified by an investigation in the field, or that such an
investigation is necessary to satisfy him as to an applicant's
or employee's loyalty and reliability, he may request that an
inquiry be made of a person's background by a field investi
gation to be carried out by an appropriate investigative
agency. Where it appears that requests from a department or
agency dealing with the R.C.M. Police as the investigative
agency exceed what seems to be a normal requirement, the
R.C.M. Police may ask the Security Panel to allot priorities.
(iii) Persons to have access to Confidential information
Before a person is employed in a position requiring access to
Confidential information, his name must be checked against
the subversive records of the R.C.M. Police, and he must be
the subject of a fingerprint check by the R.C.M. Police. Both
of these procedures are mandatory.
(iv) Responsibility for granting clearances
The deputy head of a department or agency will be respon
sible 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.
26. In addition, departments and agencies are reminded that
personal consultation with the references listed by the employee
in his Personal History Form may provide useful supplemen
tary information about his character. References should there
fore be consulted personally when it appears that a useful
purpose would be served by so doing.
27. Comparable procedures set forth in paragraph 25, except
those relating to fingerprinting, apply equally to persons
employed in defence industry (and certain services related to
defence) who may be required to have access to classified
information which is the property of the Government of
Canada or for the security of which the government is respon
sible. In defence industry (and certain services related to
defence) the procedures will be administered by the Depart
ment of Defence Production in accordance with a separate
directive relating to security in defence industry.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the decision of the
Appeal Board must be set aside. The Board has
asserted the power to review the "reasonableness"
of the Deputy Head's refusal of a security clear
ance, to require the Deputy Head to justify that
refusal before the Board, and failing such justifica
tion, to conclude that the refusal was not a reason
able one and that for this reason the merit princi
ple has not been observed in the selection process.
In my opinion an Appeal Board acting under
section 21 of the Public Service Employment Act
does not have that authority, and accordingly the
Appeal Board in this case exceeded its jurisdiction.
With respect, I am not certain that what the
Appeal Board sought to do is clearly precluded by
the terms of section 112 of the Public Service
Staff Relations Act, which, while it refers to any
"other Act", is concerned with a construction of
legislation that would require the employer to do
or refrain from doing something that would be
contrary to a security directive. The reference to
section 112 in subsection 90(2) of the same Act,
which provides that an employee is not entitled to
present a grievance "relating to any action taken
pursuant to an instruction, direction or regulation
given or made as described in section 112", indi
cates, I think, the kind of thing that is contemplat
ed by section 112. Section 21 of the Public Service
Employment Act bears on what may or may not
be done by the Commission, which has the power
to make appointments. I doubt that a construction
of the Appeal Board's jurisdiction to include the
power to review a decision refusing a security
clearance is encompassed by section 112 of the
Public Service Staff Relations Act. Such a review
might have the result of preventing an appoint
ment by the Commission but it could not have the
effect of obliging a deputy head to grant a security
clearance in a particular case. Without such a
security clearance a candidate could not be
appointed to a position.
This, I think, leads us to the heart of the issue.
Although the requirement of a security clearance
was listed in the announcement of the positions in
this case as one of the "qualifications", it is not in
my opinion a qualification that must be evaluated
or assessed by the Commission in accordance with
the merit principle, pursuant to the provisions of
sections 10 and 12 of the Public Service Employ
ment Act. 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
authority 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 concerning the exercise of
this authority. It is the deputy head who is respon
sible for taking the initiative and making the deci
sion as to security clearance in a particular case.
The nature of the decision is that if, after making
the necessary investigation, there is unresolved
doubt as to whether a person should have access to
classified information, that doubt is to be resolved
in effect against the person in question and a
security clearance is to be refused. A decision of
that kind has nothing to do with the merit that is
contemplated by sections 10 and 12 of the Public
Service Employment Act and subsection 7(4) of
the Public Service Employment Regulations,
SOR/67-129 as amended by SOR/69-592, which
provide that the Commission (or the deputy head
exercising the delegated authority of the Commis
sion under section 6 of the Act, as distinct from his
management authority) shall assess the relative
merit of candidates according to a selection pro
cess and selection standards determined by the
Commission. The decision of a deputy head with
respect to security clearance is not an evaluation of
a candidate's relative merit. There are no degrees
of merit in respect of security reliability. It is
sufficient that there be unresolved doubt with
respect to a particular candidate to require a refus
al of security clearance.
The scope of an appeal under section 21 of the
Public Service Employment Act has had to be
determined judicially in the light of the other
provisions of the Act, and in particular, the central
provision of section 10. It has been held by this
Court that the task of the Appeal Board under
section 21 is to determine whether the selection
process as a whole has been conducted in accord
ance with the merit principle, but not to substitute
its opinion for that of a selection board on the
merit of a particular candidate. In the present case
the selection process contemplated by section 10
was carried out by selection boards which made
their reports and established eligibility lists reflect
ing their assessment of relative merit. It was that
process that was subject to review by the Appeal
Board. The additional "qualification" or require
ment of a security clearance was not, and could
not be, evaluated or assessed by the selection
boards and was not, for the reasons I have indicat
ed, part of the selection process contemplated by
section 10. As such, it could not in my opinion be
subject to review by an Appeal Board under sec
tion 21. I do not exclude the possibility that an
Appeal Board might be justified in treating an
assessment of relative merit by a selection board as
illusory or a nullity because the exclusion of a
particular candidate had been predetermined by a
clear abuse of the power to require and refuse a
security clearance. But that is clearly not the case
here. If an Appeal Board has any right to consider
a refusal of security clearance in a particular case
it certainly does not have the right to review the
"reasonableness" of the decision and to require the
deputy head to justify it in the hearing before the
Board. Apart from the general principles govern
ing the scope of an appeal of this kind there are
obvious reasons relating to security that would
make such a power of review wholly inappropriate
and unacceptable. I express no opinion as to
whether, on the record before us, there was com
pliance by the Deputy Head with the procedural
requirements of the Cabinet Directive or what
other recourse the respondent candidate might
have on the facts alleged by her.
For these reasons I would allow the section 28
application and set aside the decision of the
Appeal Board.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: The facts and issues are outlined in
the respective reasons of Heald J. and Le Dain J.,
and I need not repeat any of them, except for
convenience. I agree with them that this section 28
application should be allowed and the decision of
the Appeal Board be set aside.
The positions for which the respondent Ronda
Lee was a candidate, positions in the Criminal
Index Section of the R.C.M. Police in Vancouver,
required security clearance, as persons in those
positions would have access to information in the
R.C.M. Police files relating to known or suspected
criminal activities. "Top Secret Security Clear
ance" was listed among the qualifications for the
positions. One of the definitions of the word
"qualification" in The Shorter Oxford English
Dictionary, 3rd ed., is:
... a necessary condition, which must be fulfilled before a
certain right can be acquired, an office held, or the like.
It appears to me that in this case security clear
ance was a condition precedent for an appointment
of an otherwise successful candidate who had been
rated by the selection board (rating board) on the
basis of merit. Security clearance was not a factor
in that rating process, and none of the candidates
was rated by the selection boards on security. In
my opinion, the nature and functions of a selection
board are not such as to include the inquiry and
investigation that may be appropriate in a case
such as this for a decision as to security.
Following the rating of the candidates by the
selection boards and the establishment of eligible
lists, it was the responsibility of the Commissioner
of the R.C.M. Police to determine whether Ronda
Lee should be granted a security clearance, and in
a letter dated January 9, 1979, he stated:
Following procedures outlined in Cabinet Directive No. 35, 1
have come to the conclusion that Ronda Lynn Lee will not be
granted a security clearance.
In his letter the Commissioner asserted that
procedures outlined in Cabinet Directive No. 35
had been followed. In any case, it is my opinion
that in his capacity as such Commissioner he had a
responsibility, in making a decision as to security,
to exercise a fair, honest and bona fide judgment.
We do not know, nor did the Appeal Board,
what information the Commissioner had, but on
the record before us it is my opinion that this is not
a case in which there is any showing that he did
not exercise his responsibility properly, or in which
there was an onus on him to justify or establish the
reasonableness of his decision to the Appeal Board.
In my opinion, there was no sound basis for the
Board's allowance of Ronda Lee's appeals, and its
decision should be set aside.
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.