T-502-90
Kwan Lihuen (Applicant)
v.
Her Majesty the Queen, as represented by the
Canadian Security Intelligence Service, the Direc
tor of Canadian Security Intelligence Service
(Respondents)
INDEXED AS: LIHUEN V. CANADA (CANADIAN SECURITY
INTELLIGENCE SERVICE) (T.D.)
Trial Division, Joyal J.—Vancouver, October 1
and 4, 1990.
Security intelligence — Application to quash decision by
Director of Canadian Security Intelligence Service (CSIS) to
remove applicant's security clearance resulting in dismissal
from CSIS, and for reinstatement of security clearance —
Applicant, Chinese translator, had security clearance at "top
secret" level — Director refusing to adopt Security Intelli
gence Review Committee's recommendation to rescind decision
withdrawing security clearance — Fearing reinstatement could
jeopardize national security — Thomson v. Canada, [1988] 3
F.C. 108 (C.A.), holding Committee's recommendation binding
on Director, followed notwithstanding motion for leave to
appeal pending before Supreme Court of Canada — Security
clearance to be reinstated — Reinstatement not so prejudicial
to Crown as to justify stay of execution of order since security
clearance of little practical consequence unless holder exercis
ing duties requiring clearance, not applicant's position at this
time.
Judges and courts — Stare decisis — Director of Canadian
Security Intelligence Service refusing to adopt Security Intel
ligence Review Committee's recommendation to rescind deci
sion removing applicant's security clearance resulting in auto
matic dismissal from Service — Trial Division bound by
Thomson v. Canada, 11988J 3 F.C. 108 (C.A.) holding Com
mittee's recommendations binding on Director, notwithstand
ing motion for leave to appeal pending before Supreme Court
of Canada.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Security Intelligence Service Act, S.C. 1984,
c. 21.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Thomson v. Canada, [1988] 3 F.C. 108; (1988), 50
D.L.R. (4th) 454; 31 Admin. L.R. 14; 84 N.R. 169
(C.A.).
REFERRED TO:
Thomson v. Canada (Deputy Minister of Agriculture),
[1990] 2 F.C. 820 (C.A.); Rex v. Christ's Hospital
Governors. Ex parte Dunn, [1917] 1 K.B. 19 (H.C.);
Myer Queenstown Garden Plaza Pty. Ltd. and Myer
Shopping Centres Pty. Ltd. v. Corporation of the City of
Port Adelaide and the Attorney-General (1975), 11
S.A.S.R. 504 (S.C.).
COUNSEL:
Ian C. Hay for applicant.
H. J. Wruck for respondents.
SOLICITORS:
Joe, Chen, Jang, Leung & Barbour, Vancou-
ver, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JOYAL J.: This is an application to set aside a
decision made by the Director of the Canadian
Security Intelligence Service (CSIS), removing the
applicant's security clearance as an employee of
CSIS. At all material times, the applicant had
been employed by the CSIS as a Chinese transla
tor and enjoyed security clearance at the "top
secret" level.
The formal decision by the CSIS Director in
that regard was originally made on December 3,
1988 following an internal investigation of the
conduct of the applicant. It is admitted that loss of
an employee's security clearance in the CSIS
means an automatic loss of employment.
Under a complaints procedure set out in the
Canadian Security Intelligence Service Act, S.C.
1984, c. 21, the applicant filed a complaint with
the Security Intelligence Review Committee
(SIRC) and, after several days of hearing, SIRC
issued a report favourable to the applicant. The
report, forwarded to the applicant on October 23,
1989, recommended "that the decision to with-
draw Mr. Kwan's security clearance be rescinded
and that his clearance be reinstated".
The Director of CSIS refused to act on that
recommendation and on November 17, 1989, he so
informed the applicant. This meant that the dis
missal notice issued a year earlier was confirmed
and that formal separation procedures would be
taken.
It is from that decision that the applicant seeks
relief from this Court by way of certiorari and
mandamus quashing the Director's decision and
requiring him to reinstate the applicant's security
clearance retroactive to November 3, 1988. At the
hearing of the application, however, the applicant's
counsel conceded that the Court could not order
that the applicant be reinstated in his employment
with CSIS. In fact, that issue was now the subject
of an action instituted by the applicant in this
Court on November 3, 1989 (File T-2444-89)
claiming damages from the Crown for wrongful
dismissal. No other proceeding has been taken in
that case save for the applicant's statement of
claim and notice of change of solicitor.
APPLICANT'S POSITION
The main and, indeed, the only ground raised by
the applicant for an order of reinstatement of his
security clearance is that a "recommendation" by
SIRC on a security clearance complaint is binding
on the Director of CSIS. This is the view adopted
by the Federal Court of Appeal in the well-known
case of Thomson v. Canada, [1988] 3 F.C. 108,
restated by the same Court in Thomson v. Canada
(Deputy Minister of Agriculture), [1990] 2 F.C.
820.
Stone J.A. delivered the original judgment of
the Court in this case. After reviewing all the
terms and conditions of the enabling statute and
after referring to a number of cases dealing with
statute interpretation, including the English case
of Rex v. Christ's Hospital Governors. Ex parte
Dunn, [1917] 1 K.B. 19 (H.C.) and the Australian
case of Myer Queenstown Garden Plaza Pty. Ltd.
and Myer Shopping Centres Pty. Ltd. v. Corpora
tion of the City of Port Adelaide and the Attor-
ney-General (1975), 11 S.A.S.R. 504 (S.C.), His
Lordship found that the power of the SIRC to
"recommend" pursuant to section 52 of the Act is,
on its proper construction, a power to make a
decision binding on the employer. At pages 136-
137 of this judgment, he said:
In my view, the word "recommendations" in subsection
52(2) of the Act must be construed with an eye to the entire
statutory scheme for the investigation of a "complaint" by an
individual denied employment in the public service by reason of
the denial of a security clearance. Certain features of that
scheme impress me as indicating an intention of Parliament to
provide the complainant with redress rather than with merely
an opportunity of stating his case and of learning the basis for
the denial. They include the care that was taken to establish
eligibility for appointment to membership of the intervenant,
the manner of selecting and tenure of office of those appointed
(section 34); the requirement that each member subscribe to an
oath of secrecy (section 37); the requirement that an adverse
decision exist before the intervenant may commence an investi
gation (subsection 42(1)); the need for providing all concerned
with a statement, or a copy thereof, "summarizing such infor
mation available to the Committee as will enable the complai
nant to be as fully informed as possible of the circumstances
giving rise to the denial of the security clearance" (section 46);
the requirement that both the Director and the deputy head be
informed of the complaint before it is investigated (section 47);
the opportunity made available to all concerned "to make
representations to the Review Committee, to present evidence
and to be heard personally or by counsel" (subsection 48(2));
the broad powers of the intervenant to summon and enforce the
appearance of witnesses, and to compel the giving of evidence
on oath and the production of "such documents and things as
the Committee deems requisite to the full investigation and
consideration of the complaint in the same manner and to the
same extent as a superior court of record", to administer oaths,
and to receive and accept evidence or other information, wheth
er on oath or by affidavit or otherwise (section 50); the extent
of access granted the intervenant to information "notwithstand-
ing any other Act of Parliament or any privilege under the law
of evidence", and the proscription against withholding of such
information "on any grounds" unless it be a confidence of the
Queen's Privy Council for Canada to which subsection 36.3(1)
of the Canada Evidence Act applies [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.
Applicant's counsel urges me to find that on the
strength of the Thomson decision, the Director of
CSIS is under a duty to reinstate the applicant in
his security clearance.
CROWN'S POSITION
Counsel for the Crown makes no attempt to
traverse the Thomson precedent. His argument is
limited to requesting the Court to stay the appli
cant's motion on the grounds that the Thomson
case is pending before the Supreme Court of
Canada on a motion for leave to appeal and that it
would be in the public's interest and of no evident
prejudice to the applicant if the matter be stayed
until the Supreme Court has ruled on the issue one
way or the other.
Crown counsel argues that in the matter of a
stay of proceedings, regard should be had for the
fundamental requirements of public security. The
Director of CSIS, he says, is obviously in a quand
ary over the whole issue. In his affidavit in sup
port, the Director outlines numerous grounds aris
ing from his Service's internal investigation as well
as from those arising from further evidence
adduced at the SIRC enquiry to amply justify his
refusal to adhere to the SIRC recommendation
and to maintain the applicant's revocation.
Counsel suggests that on the basis of the affida
vit, the Director totally disagrees with the SIRC
recommendation. The Director fears that reinstat
ing the applicant, which might have the effect of
automatically reinstating the applicant in his posi
tion in the security service, could well jeopardize
the national security of Canada.
Crown counsel suggests as an alternative that, if
the Court should feel bound by the Thomson
decision and obliged to act upon it, the Court
might very well consider granting a stay of the
judgment pending the ultimate disposition of the
Thomson case.
FINDINGS
I should first of all observe that the issue before
me contains some incongruous features. The appli-
cant has been dismissed from CSIS and absent his
reinstatement as an employee of that Service, a
security clearance would be of doubtful value to
him. The other feature is that obviously the appli
cant has lost the confidence of his Director. Were
he to be reinstated in his position as a Chinese
translator, he would presumably be denied access
to any classified information and would not be
permitted to deal with any sensitive information.
The compatibility of that restricted role with the
intense security mode of the CSIS is, in my
respectful view, very doubtful.
The further observation is that in the Thomson
case the position offered to the employee was as
Project Planning Officer in the International
Affairs Directorate in Agriculture Canada, a posi
tion for which a "secret" level security clearance
was required as the duties of that office would
entail from time to time access to confidential
documents. Security clearance was not a condition
since qua non for employment in the Public Ser
vice of Canada but limited to that particular
office.
In the case of the applicant, however, the situa
tion might raise greater concern. As a member of
the security service itself, and for which top level
security clearance is a condition of employment,
the applicant would be directly involved in classi
fied information and would be carrying out his
duties within the narrow perimeter of a service
where security consciousness is so strong that, as
the applicant himself aptly put it, one breathes it.
One might conclude that in such circumstances, a
security assessment or re-assessment might be sub
ject to more stringent standards.
Those, however, are mere observations on my
part. On the strength of the Thomson case, I
cannot make a distinction between one class of
employee and another. The judgment of Stone
J.A. makes no such distinction and neither, for
that matter, does the SIRC decision. The simple
principle propounded by the Court of Appeal is
that a "recommendation" by SIRC is, in law, a
decision binding on the CSIS Director. I am equal
ly bound by the Court of Appeal's ruling and I
must necessarily apply it to the case before me.
CONCLUSION
In brief terms and on the strength of the Thom-
son decision, an order will issue to the Director to
reinstate the applicant at the level of security
clearance he enjoyed immediately prior to the
removal of it. I should not believe that this rein
statement be of such prejudice to the Crown as to
justify a stay in those proceedings or a stay in the
execution of the order.
A particular security clearance, in my view, is of
little practical consequence unless the holder is
exercising duties and functions where such clear
ance is a requirement. Such is not the position of
the applicant at this stage. In his action for wrong
ful dismissal pending before this Court, his claim
is for damages and not for reintegration in his
employment. Obviously, if the decision in the
Thomson case should stand, the applicant's claim
for damages would be stronger. It is admitted by
the Crown in that respect that the loss of the
applicant's security clearance was the only ground
for his loss of employment.
There is also the possibility that on the strength
of the Thomson case, the applicant would amend
his statement of claim to include reinstatement in
his employment. That is, however, another bridge
which will have to be faced or crossed at some
future date. If, in the course of that action or at
any time, the Crown should have cause to grieve
on grounds of public interest and national security
or otherwise, it may always take such proceedings
as it deems appropriate.
The applicant is entitled to his costs.
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.