Union of Canadian Correctional Officers/Syndicat des Agents Correctionnels du Canada Confédération des Syndicats Nationaux CSN (UCCO-SACC-CSN) v. Canada (Attorney General)

Union of Canadian Correctional Officers/Syndicat des Agents Correctionnels du Canada Confédération des Syndicats Nationaux CSN (UCCO-SACC-CSN) v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-11-23
Neutral citation
2016 FC 1289
File numbers
T-699-15
Notes
Reported Decision
Decision Content
­­­Date: 20161123
Docket: T-699-15
Citation: 2016 FC 1289
[ENGLISH TRANSLATION]
Montréal, Quebec, November 23, 2016­
PRESENT: The Honourable Madam Justice St-Louis
BETWEEN:
UNION OF CANADIAN CORRECTIONAL OFFICERS - SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA - CSN (UCCO-SACC-CSN)
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
PRIVACY COMMISSIONER OF CANADA
Intervener
JUDGMENT AND REASONS
I. Introduction [1] On October 20, 2014, the Standard on Security Screening [the Standard], adopted by the Treasury Board, came into effect and replaced the Personnel Security Standard [PSS], which had been in effect since 1994.
[2] The Standard sets out, in particular, the three security screening levels for federal public service employees, that is, reliability status, “secret” security clearance and “top secret” security clearance, as well as the activities and practices associated with each of these levels.
[3] Under the Standard, although security screening activities vary based on the reliability status or the security clearance sought, all of the levels now require a financial inquiry [the Inquiry] of the individual for whom the reliability status or security clearance is sought. For the Inquiry, individuals must first consent to having their credit report sent to their employer, and the employer will then obtain the report from the appropriate private agency and analyze its results. Before the Standard was adopted, Inquiries were only obligatorily conducted for “top secret” clearances.
[4] On February 9, 2015, Commissioner’s Directive 564-1 – Individual Security Screening [the Directive] came into effect. It extends the Inquiry to the security screening for renewing the reliability status of Correctional Service of Canada [CSC] employees, because the intent of the screening is to evaluate the honesty and trustworthiness of an individual. Thus, because correctional officers at the CXI and CXII levels must have reliability status, they become subject to the Inquiry and must consequently consent to having their employer, CSC, obtain their credit report.
[5] The applicant, Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN [the Union], represents all CSC correctional officers at the CXI and CXII levels. It characterizes the new requirement as a [translation] “search and seizure” and uses the term [translation] “Search” to refer to it, a term that will be repeated in this judgment. The applicant objects to this Search being imposed on its members. It is asking the Court to declare that the part concerning financial inquiries in Appendix B of the Standard and paragraph 3(d) of the Directive are contrary to section 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c 11 [the Charter]. It is also seeking a declaration that paragraph 3(d) of the Directive breaches section 4 of the Privacy Act, RSC, 1985, c P‑21 [the Act]. Those provisions are attached hereto.
[6] The respondent, the Attorney General of Canada [AGC], first responds that the contested provisions of the Standard and the Directive, while they constitute a Search, do not necessarily infringe on a right to privacy under section 8 of the Charter because they are reasonable. The AGC also contends that the impugned provisions of the Directive do not violate section 4 of the Act because the information collected from the credit reports relates directly to the activity of security screening.
[7] The intervener, the Privacy Commissioner of Canada [the Commissioner], is not taking a position on the issue of compliance with section 4 of the Act in light of the specific facts of this case. However, he outlines what he considers to be the appropriate analytical framework for the implementation of section 4, and argues in this regard that the words relates directly create a necessity test. He also discusses certain relevant considerations in connection with the implementation of section 4 in this case, that is, the nature and the scope of the personal information contained in credit reports and the nature of the relationship between credit reports and assessing an employee’s trustworthiness, and he argues that correctional officers have a reasonable expectation of privacy. Lastly, without taking a position, he also outlines certain considerations that the Court should, in his opinion, consider in its analysis of sections 8 and 1 of the Charter.
[8] For the following reasons, the Court will dismiss this application for judicial review.
[9] In short, regarding section 8 of the Charter, the Court is of the opinion that the decisions of the Treasury Board and CSC to adopt the contested provisions of the Standard and the Directive are reasonable and do not violate section 8 given the state’s objective, the nature of the prison environment, the type of possible threats, the responsibilities of correctional officers, the manner in which the information is obtained, the nature of the information disclosed, the possibility of providing explanations prior to a decision and the avenues of recourse available in the event of a denial of reliability status.
[10] Concerning section 4 of the Act, the Court finds that this section does not contain a necessity test, that it is reasonable to conclude that there is a direct relationship between, first, the Inquiry and obtaining a credit report, and, second, security screening activities, and that CSC’s decision to adopt the contested decision of the Directive is consequently reasonable.
II. Legislative context [11] Section 7 of the Financial Administration Act, RSC, 1985, c F‑11 [FAA], sets out that the Treasury Board may act for the Queen’s Privy Council for Canada on certain matters, including those relating to general administrative policy in the federal public administration and human resources management in the federal public administration. These matters involve, namely, the determination of terms and conditions of employment (paragraphs 7(1)(a) and (e) of the FAA, attached hereto).
[12] Pursuant to section 7 of the FAA, the Treasury Board issues policies, including the Policy on Government Security [the Policy]. According to the wording of section 3 of the Policy, attached hereto, the Policy is rooted in the contextual premise that government security is the assurance that information, assets and services are protected against compromise and individuals are protected against workplace violence. Thus, there is a need to ensure that those having access to government information, assets and services are trustworthy, reliable and loyal. Furthermore, according to section 5, attached hereto, the objectives of the Policy are to ensure that deputy heads effectively manage security activities within departments and contribute to effective government-wide security management.
[13] Lastly, section 6 of the Policy, also attached hereto, states, inter alia, that deputy heads of all departments are responsible for appointing a departmental security officer and for ensuring that all individuals who will have access to government information and assets are security screened at the appropriate level and are treated in a fair and unbiased manner.
[14] Obtaining and maintaining a valid reliability status or security clearance is a condition of employment, contract, appointment or assignment within the Government of Canada, including CSC, and employees must consent to it. It requires the collection of personal information on individuals, which is done after they have provided their informed consent. In the case at bar, correctional officers express that consent by signing the Personnel Screening, Consent and Authorization Form [the Form].
[15] Over the years, the Treasury Board has adopted various standards enacting security screening activities, including the Standard, which came into effect on October 20, 2014. The Standard applies to all departments defined in section 2 of the FAA and all federal agencies included in Schedules IV and V of the FAA, and they must all implement it by October 20, 2017. CSC is included in that list.
[16] The objectives of the Standard are to ensure that security screening in the government is effective, efficient, rigorous, consistent and fair and to enable greater transferability of security screening between departments and agencies (section 5 of the Standard). The Standard states that security screening can be standard or enhanced, and describes the associated screening activities.
[17] According to the Standard, the purpose of the Inquiry is to assess whether an individual poses a security risk on the basis of financial pressure or a history of poor financial responsibility (section 7).
[18] In 2015, the Directive came into effect. It incorporates the Standard’s requirements for CSC and states, in paragraph 3(d), that one of the responsibilities of the departmental security officer is to ensure that credit checks are conducted at the national level.
[19] For the purposes of this case, this means that all correctional officer members of the Union must, since April 1, 2015, consent to having CSC obtain their credit report, from which data will be analyzed in the security screening associated with the renewal of their reliability status. It should be immediately noted that pursuant to paragraph 4(h) of the Directive, attached hereto, CSC managers will “provide the individual with an opportunity to explain any adverse information”.
III. Position of the parties A. The Union [20] The Union essentially submits (1) that the adoption of the Standard and the Directive is subject to the standard of reasonableness; (2) that the relevant provisions of the Standard and the Directive are unreasonable and violate section 8 of the Charter; (3) that their adoption is not saved by section 1 of the Charter; and (4) that its members’ credit reports do not relate directly to CSC’s programs and activities and that as a result, the relevant provisions of the Directive violate section 4 of the Act.
[21] The Union indicates that there is an error in part IV of its memorandum, for the order sought, when it refers to paragraph 2(d) of the Directive and not paragraph 3(d) of the Directive. The Court agrees that that is a clerical error and accepts the correction.
[22] In support of its submissions, the Union submits a total of five affidavits: the affidavit of Kevin Grabowsky, its national president; the affidavit of Laurent Vaillancourt, a correctional officer at level 2 (CXII) and member of the Union; the affidavit of Manon Leblanc, a correctional officer at level 1 (CXI); the affidavit of Dwaynes Soles, a correctional officer at level 2 (CXII); and the affidavit of David Mellor, a correctional officer at level 1 (CXI).
(1) The standard of review is reasonableness [23] The Union initially contended, in its memorandum, that the correctness standard should apply, but it modified its position at the hearing and agrees with the respondent and the intervener on this point. Thus, the Union accepts that the Standard and the Directive are subject to the reasonableness standard.
(2) The provisions of the Standard and the Directive for checking the credit reports of all employees violate section 8 of the Charter [24] The Union submits that section 8 of the Charter applies in this case because that provision ensures privacy and the protection of personal information, because requiring correctional officers to consent to a credit report check in order to obtain or renew their reliability status constitutes a Search, and because the Search must be presumed to be unreasonable, which thus imposes on the state the burden of establishing that it is reasonable. However, according to the Union, the state has not satisfied this burden in this case.
[25] The AGC does not object to the application of section 8 of the Charter, but argues that it is not a Search or an unreasonable intrusion. It therefore seems appropriate for the Court to reiterate only the last component of the Union’s argument, effectively the only issue in dispute.
[26] The Union admits that the Treasury Board may, pursuant to section 7 of the Act, determine the conditions of employment of federal public servants and adopt a standard. It also admits that CSC has the power to adopt a directive. However, it argues that that standard and that directive must comply with the Charter, which is not the case here.
[27] The Union first notes that warrantless Searches are always presumptively unreasonable (Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para 56 [Goodwin]) and that the state has the onus of establishing that the search was reasonable, which can only be done by establishing the following three elements: (1) the Search was authorized by the law; (2) the law itself is reasonable; and (3) the Search was not conducted in an unreasonable manner. In this case, the Union argues that the state has not established the second element, that is, that the Standard and the Directive are not unreasonable.
[28] To determine the reasonableness of the Standard and the Directive, the Union refers the Court to Reference re Marine Transportation Security Regulations, 2009 FCA 234 [Reference] and to the following contextual criteria: (1) the strength of the individual privacy interests at stake; (2) the manner in which the Search is conducted; (3) the pressing nature of the public interest served by the statutory scheme authorizing the Search; and (4) to what extent the information sought is likely to further that interest.
[29] Regarding the strength of the individual privacy interests at stake, the Union notes that the details of an individual’s financial situation represents precisely the type of information for which individuals should be able to determine when, how and to what extent it is communicated. The reasonable expectation of privacy is thus very important for such interests.
[30] Regarding the manner in which the Search is conducted, which refers to how the information is collected, the Union admits that the checking of credit reports is not the most intrusive measure. However, it is somewhat more intrusive than asking an individual to provide the information him- or herself. The Union also points out that managers in various institutions can be called upon to question correctional officers to obtain explanations for some of the information collected, and that those managers would then have access to their employees’ financial information.
[31] Regarding the pressing nature of the public interest served by the statutory scheme, the Union notes the objective of the Standard, which is to contribute to national security, is valid and important.
[32] However, with respect to the last of the four factors identified, the Union doubts that the information sought is likely to further the purpose of contributing to national security. Instead, it contends that CSC did not present any evidence that financial pressure or a history of financial responsibility has already given rise to incidents that compromised national security, or that that factor has represented a particular risk. The Union adds that CSC has not established the benefits of the Inquiry in the overall assessment of the honesty and trustworthiness of officers, that it has failed to explain how this new measure would establish elements that are not covered by other existing measures, and that it has not established a correlation between the information in credit reports and the number of corrupt employees.
[33] The Union points out that none of the approximate 200 inquiries that have been conducted each month since 2015 has led to the non-renewal of the reliability status of a correctional officer because of information discovered in the officer’s credit report. The Union infers from this that the collection of information seems to have minimal impact on the final result.
[34] In summary, the Union argues that the systematic checking of the credit reports of members of the Union constitutes an unreasonable Search, contrary to section 8 of the Charter.
(3) The violation of section 8 of the Charter is not saved by section 1 of the Charter [35] Finding that the Search is unreasonable, the Union turns to section 1 of the Charter, attached hereto, and argues in this regard that the violation of section 8 is not justified. It submits that the AGC must demonstrate, on a balance of probabilities, that a credit check is a pressing and substantial objective and that the means chosen to achieve that objective are proportional.
[36] The means chosen are proportional if (1) there is a rational connection between the means adopted and the objective; (2) the law impairs the right guaranteed by the Charter as little as possible; and (3) there is proportionality between the deleterious effects and the beneficial effects of the law (R v Oakes, [1986] 1 SCR 103).
[37] Regarding the first point, the Union acknowledges that the objective of the contested measure is to protect national security by ensuring that dishonest or untrustworthy individuals do not have access to restricted assets or facilities or privileged information of the government, in particular as employees. At the same time, it admits that that objective is pressing and substantial and includes the existence of a rational connection between the checking of employees’ credit and the objective (paragraphs 55 and 56 of the Applicant’s Memorandum).
[38] However, concerning the second point, the Union argues that the measure does not impair the Charter right as little as possible because the scope of the Standard is excessive and the category of persons concerned is too broad. The government could have achieved its objective by restricting the categories of persons for which [translation] “that type of check is necessary” (paragraph 58 of the Applicant’s Memorandum).
[39] Regarding the third point, the Union maintains that the deleterious effects from checking the credit reports outweigh the benefits. In fact, there seems to be minimal benefits with respect to the objective of the Search, namely, because a reliability status has never been revoked because of adverse information in a credit report, while the measure has caused increased stress among Union members.
(4) The provisions providing for credit report checks set out in the Standard and the Directive are contrary to section 4 of the Act [40] The Union argues, lastly, that the contested measures violate section 4 of the Act, which limits the information that a government institution may collect on an individual to that which relates directly to an operating program or activity of the institution.
[41] The Union cites the Larousse en ligne French dictionary’s definition of “direct” [[translation] “direct”]: “qui est en relation immédiate avec quelque chose d’autre, qui y est étroitement lié” [[translation] “that which immediately relates to something, that which is closely connected”] and refers the Court to section 5 of Quebec’s Act respecting the Protection of Personal Information in the Private Sector, CQLR, c P-39.1, which states that the information collected must be necessary.
[42] The Union submits that there is no direct relationship between its members’ credit reports and CSC’s activities. To support its statement, the Union points out that its members do not manage money or budgets as part of their jobs and that, for that reason, their personal financial practices in no way demonstrate their trustworthiness or ability to act as correctional officers.
[43] In that respect, at the hearing, the Union tried to minimize the scope of certain passages of its memorandum by stating that they were not admissions that a credit check could be justified in the assessment of the clearance level for certain positions, or even that a credit report could be related to the assessment of an individual’s trustworthiness and honesty. The Court will revisit this aspect in its analysis.
[44] The Union refers to the four-part test used by this Court to determine whether the use of surveillance cameras was acceptable in Eastmond v Canadian Pacific Railway, 2004 FC 852 [Eastmond]. According to the test, to determine whether the purpose for which the personal information is collected is reasonable, there must be an assessment of (1) whether the measure is demonstrably necessary to meet a specific need; (2) whether it is likely to be effective in meeting that need; (3) whether the loss of privacy is proportional to the benefit gained; and (4) whether there is a less privacy-invasive way of achieving the same end.
[45] The Union submits that the contested measures do not meet this test. First, the measure is not necessary to meet a specific need at CSC because there is no evidence that employees who experience some difficulty in managing their personal finances are less honest or represent a heightened risk for CSC. Furthermore, there are no cases where economic vulnerability factors have played a role in an incident in which an inmate has bribed a correctional officer, and the scale of any corruption problems has not been demonstrated.
[46] Second, the Union argues that this measure does not meet the effectiveness criterion with respect to the objective, namely, because since April 2015, no correctional officers have been denied the renewal of their reliability status after information, even adverse, was obtained from their credit report.
[47] Third, because there are minimal benefits to this measure, the deleterious effects become disproportionate to a loss of privacy.
[48] Fourth, the Union argues that there are alternate ways to assess the trustworthiness of its members without having to make a credit report inquiry.
B. The AGC [49] The AGC essentially submits that the Standard and the Directive constitute reasonable [translation] “decisions”. Concerning section 8 of the Charter, the AGC contends that they essentially represent a proportionate balancing of the objectives of the legislative scheme and the value of privacy. Regarding section 4 of the Act, he advances that the partial information collected, in the credit report, relates directly to security screening activities carried out by CSC.
[50] The AGC submits three affidavits: the affidavit of Charles Taillefer, Director, Policy Development and Performance Measurement, Security and Identity Management, at the Treasury Board of Canada Secretariat; the affidavit of Nick Fabiano, Director General, CSC Security; and the affidavit of Dorothy Sicard, Manager, Personnel Security Screening, CSC Departmental Security.
[51] The AGC is first concerned about rectifying the facts presented by the Union to provide the Court with the appropriate factual background, which is at the heart of the analysis the Court must conduct. The AGC therefore describes the purpose of security investigations, the historical background of security screening, the evolution of threats to security in Canada since 1994, the implementation of a technological working environment, the development of the 2014 Standard, the content of the 2014 Standard, details on CSC and on the work of its employees (including correctional officers), details on the prison population and the content of credit reports.
[52] According to the AGC, the Court must determine four issues: (1) the applicable standard of review; (2) whether CSC’s decision to adopt the Directive implementing the Standard is reasonable regarding the credit report checks, with respect to section 4 of the Act; (3) whether the Treasury Board’s decision to adopt the Standard and that of CSC to adopt the Directive implementing it are reasonable regarding the credit report checks, with respect to the right to privacy in section 8 of the Charter, that is, whether they are the result of a proportionate balancing of the importance of ensuring the security of government operations through security screening and the right to privacy of correctional officers; and (4) whether section 1 of the Charter is engaged.
[53] The Court will follow the Union’s order of presentation for ease of reading, that is, (1) the applicable standard of review; (2) section 8 of the Charter; (3) section 1 of the Charter; and (4) section 4 of the Act.
(1) The standard of review is reasonableness [54] The AGC submits, like the Union, that the standard of “reasonableness” should apply in this case because the Standard and the Directive constitute discretionary decisions adopted by the Treasury Board and CSC, and the Treasury Board and CSC have particular expertise in the area of the information that is required to determine the trustworthiness of public servants.
[55] The AGC emphasizes the consequences of choosing this standard of review and, in particular, the fact that the Court must show deference, that it must recognize the expertise of the Treasury Board and CSC in the area of the information that is required to determine the trustworthiness of public servants and that it cannot substitute its own decision for that of the Treasury Board and CSC.
(2) The Standard and the Directive are reasonable with respect to the credit checks pursuant to section 8 of the Charter [56] The AGC does not contest that it constitutes a Search or that section 8 of the Charter applies, but argues that it is not an unreasonable Search. In fact, the AGC contends that the Standard and the Directive are not unreasonable because they represent a proportionate balancing of the objectives of the legislative scheme and the value of privacy.
[57] According to the AGC, the analysis to be conducted when the Charter value that is engaged is privacy is akin to that which is aimed at determining the reasonableness of a statute authorizing a Search under section 8 of the Charter. This analysis consists in balancing the state’s legitimate interest in achieving legislative objectives with its effect on individual personal rights.
[58] Thus, having admitted that it constitutes a Search, the AGC argues that the factors to be examined regarding the value of privacy that supports section 8 of the Charter are similar to those examined in support of section 4 of the Act. They are (a) the nature and the purpose of the legislative scheme, including the administrative context, objective and finality of the public interest; (b) the manner in which the credit report was obtained; (c) the degree of intrusiveness; and (d) the review subsequent to a decision (Goodwin at paras 55 to 57; Reference at paras 50 to 53). The AGC also examines (e) the balancing of competing interests and states that the decisions involved are the result of a reasonable balancing that takes all of these factors into account.
(a) The nature and purpose of the statutory scheme, including the administrative context, objective and finality of the public interest [59] The AGC notes certain contextual factors such as those related to the adoption of the Standard by the Treasury Board, security screening, the working environment of correctional officers, the risks of fraud, corruption, threats and manipulation that they face and access to databases. Thus, given the controlled and regulated environment, correctional officers should expect to be under increased surveillance.
(b) The manner in which credit reports are obtained [60] The Form used by CSC includes a warning informing its signatories of why they agree to provide their information, what the information will be used for, the location in which the information will be stored and when the information will expire. Thus, correctional officers are informed that CSC will obtain their credit report, and that they may contact the credit reporting agency to obtain their credit report beforehand and ask that any erroneous information be corrected or add explanations, if applicable.
[61] According to the AGC, this approach is a lot less intrusive than a Search or a third party collection without prior consent.
(c) Degree of intrusiveness [62] The AGC submits that credit reports are held by third parties that collect information on the credit history of millions of individuals, and that they contain information for third parties. Thus, correctional officers should expect the information therein to be shared with third parties. Furthermore, according to the AGC, the reports contain less information than is claimed by the Union. They do not contain banking transactions, transaction statements or credit scores. In addition to biographical data, the reports essentially reveal the individual’s available credit, used credit and payment history.
[63] The AGC argues that credit reports are requested and reviewed only by security division staff at CSC headquarters in Ottawa and states that institution managers never have access to credit reports at the interview level.
(d) Post-decision review [64] Lastly, the AGC argues that correctional officers have recourse to explain any adverse information in their credit report and to contest any decision to revoke their reliability status. The availability of such recourse supports the finding of reasonableness.
(e) Balancing of interests [65] The AGC argues that CSC put in place a regime that strikes a proper balance between the value of privacy protected by section 8 of the Charter and the legitimate objectives of the government’s legislative scheme.
[66] The Standard’s objective is not only to ensure national security, but also to provide reasonable assurance that individuals can be trusted to safeguard government information, assets and facilities and to reliably fulfil their duties.
[67] The Inquiry set out in the Standard was added further to the determination that the trustworthiness of public servants, without a credit report, was not adapted to the realities and threats we face today. According to the evidence, greed is one of the main sources of motivation inciting employees to commit a security violation.
[68] The fact that correctional officers do not have access to sums of money as part of their work is irrelevant. They perform their work in an environment where they could be influenced or forced to disclose sensitive information, move contraband in institutions or engage in other reprehensible conduct for financial gain likely to present a security risk.
[69] The Inquiry and how CSC uses the resulting information constitute reasonable measures that minimally affect the privacy of correctional officers, because (1) there is no mention in the credit reports that CSC obtained a copy thereof, so credit scores are not affected; (2) credit reports obtained by CSC do not have a risk assessment concerning the credit score; (3) credit reports identify only information concerning debt repayments; (4) credit reports are documents that are readily available to those who request them; (5) credit reports are kept in a secure environment; and (6) correctional officers have the opportunity to explain any adverse information.
(3) The measure is justified by section 1 of the Charter [70] The AGC argues that even if the Court finds that the Standard and the Directive breach section 8 of the Charter, the measure they put in place is saved by section 1 of the Charter. Obtaining credit reports actually pursues an important, rational objective, infringing the Charter right minimally and proportionately.
(4) CSC’s decision to adopt the Directive implementing the Standard is reasonable with respect to credit report checks under section 4 of the Act (a) Preliminary issue [71] The AGC submits that this judicial review is premature because there is another appropriate recourse for contesting a breach of section 4 of the Act: not an application for judicial review, but a complaint to the Commissioner pursuant to paragraph 29(1)(h) of the Act (attached hereto). The AGC points out that such complaint is already before the Commissioner. Even though he has not yet rendered a decision, this is another adequate recourse (Strickland v Canada (Attorney General), 2015 SCC 37 [Strickland]) for obtaining findings and recommendations.
[72] At the hearing, the AGC clarified his position. Relying on, in particular, Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49 [Auditor General], he contends in essence that Parliament did not intend to render the rights justiciable, that the Commissioner has the desired power and can make a report to Parliament, and that recourse to the Court is limited to the refusal of access set out in section 41 of the Act (attached hereto).
(b) The relevant provisions of the Standard and the Directive regarding the credit report checks are reasonable and do not breach section 4 of the Act [73] In the alternative, if the Court decides to hear the case pursuant to section 4 of the Act, the AGC argues that the information collected clearly relates directly to security screening because that information contributes to assessing an individual’s vulnerability, verifying the elements of his or her conduct, identifying indicators of other problems that impact security and ensuring that correctional officers are trustworthy and honest.
[74] The AGC submits that the decisions at issue are not unreasonable because of an alleged breach of section 4 of the Act, which, together with section 5 of the Act (attached hereto), provides for two conditions for obtaining personal information, that is (1) the information collected relates directly to an operating program or activity of the institution; and (2) the information is collected directly from the correctional officer or the correctional officer has consented to it being collected.
[75] Regarding the first condition, the AGC submits that the words relates directly do not give rise to a difficulty of interpretation and do not mean necessary. In this respect, he advances that the information collected by CSC using credit reports “relates directly” to security screening. In fact, there is, in the opinion of the AGC, a direct relationship between obtaining a correctional officer’s credit report and the review of his or her trustworthiness because even if officers do not have access to sums of money, they nevertheless work in a highly secure environment where they are exposed to corruption.
[76] Thus, credit reports are relevant because they make it possible to assess four aspects of an individual (paragraph 61 of the Respondent’s Memorandum), and the AGC contends that the evidence demonstrates that there is a direct relationship between reviewing a correctional officer’s credit report and assessing his or her trustworthiness.
[77] The AGC also argues that correctional officers are informed of what they are consenting to when they sign the Form and that they are thus providing informed consent, which can be set aside only on basis of error, fear or injury.
[78] The AGC rejects the parallel with section 5 of the Act respecting the Protection of Personal Information in the Private Sector (attached hereto) raised by the Union because that section uses the word necessary and consequently integrates a necessity test. The AGC also rejects the parallel with Eastmond because that dispute concerned the installation of cameras without the employees’ consent, which is not the issue here, and because the wording of the statute at the centre of that case was different from that of section 4 of the Act.
[79] At the hearing, the AGC specified that credit reports do not indicate credit scores, that there is no trace of the checks in the reports, that there is no cash flow element and that credit reports are an instrument used for evaluating the factor or the likelihood of vulnerability.
C. The Commissioner ‑ Intervener [80] The Commissioner argues that the Court must determine whether the requirement of a credit report check is consistent with section 4 of the Act and section 8 of the Charter. After a concise statement of facts, the Commissioner first addresses the preliminary issue of the premature recourse raised by the AGC by submitting that the Union may raise a violation of section 4 of the Act in the application for judicial review. The Commissioner then examines the framework of analysis and the relevant considerations for the implementation of section 4 of the Act and ends with the reasonable expectation of privacy of correctional officers and the infringement of section 8 of the Charter, a point that he, however, does not take a position on. The Court will follow the following order in the presentation of the arguments of the intervener: (1) the reasonable expectation of privacy of correctional officers and section 8 of the Charter; and (2) the framework of analysis for section 4 of the Act.
(1) Correctional officers have a reasonable expectation of privacy with respect to their credit report [81] The Commissioner submits that correctional officers have a reasonable expectation of privacy with respect to their credit report and cites the criteria set out in R v Edwards, [1996] 1 SCR 128 at para 31. Those criteria support the finding that there is a legitimate expectation of privacy because personal information is protected by federal and provincial privacy legislation in both the private and public sectors. Individuals subject to the Standard and the Directive cannot knowingly choose to not provide their consent to disclose their credit report without running the risk of losing their job. As stated above, the Commissioner does not, however, take a position on the issue of a reasonable expectation of privacy under section 8 of the Charter.
(2) Section 4 of the Act imposes a framework of analysis (a) Preliminary issue [82] The Commissioner objects to the AGC’s position with respect to the prematurity of the recourse of the Union. The Commissioner concedes that the Court may refuse to hear the application for judicial review if the Union failed to pursue an adequate alternative remedy (Buenaventura Jr v Telecommunications Workers Union (TWU), 2012 FCA 69 at para 24), but argues that there is no such adequate remedy in this case.
[83] The Commissioner raises five arguments in support of his position, that is, (1) the Commissioner’s authority under the Act is limited to providing non-binding findings and recommendations on complaints (H.J. Heinz Co. of Canada Ltd. v Canada (Attorney General), 2006 SCC 13 at paras 35‑37); (2) once the Commissioner has published his findings, the Act does not provide for any subsequent recourse, and the complainant must thus file an application for judicial review before this Court to obtain a binding decision; (3) this Court is the most effective forum providing the most expeditious procedural avenue for processing the issues raised in this application; (4) there is no risk of contradictory decisions in this case because the Commissioner’s findings are not binding; and (5) it is appropriate in the circumstances for the Court to decide this issue.
[84] The Commissioner rejects the arguments proposed by the AGC and the parallel drawn with Auditor General and Strickland. According to the Commissioner, those decisions were made in an extremely specific context that cannot be imported in this case.
(b) The appropriate framework of analysis for the implementation of section 4 of the Act [85] The notion of relates directly in section 4 of the Act is not defined in the Act and, according to the Commissioner, this notion must be interpreted considering that the objective of section 4 of the Act is to limit the amount of personal information collected by government institutions.
[86] Th