Canada (Minister of Transport, Infrastructure and Communities) v. Jagjit Singh Farwaha

Canada (Minister of Transport, Infrastructure and Communities) v. Jagjit Singh Farwaha
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-03-03
Neutral citation
2014 FCA 56
File numbers
A-431-12
Notes
Reported Decision
Decision Content
Date: 20140303
Docket:
A-431-12
Citation: 2014 FCA 56
CORAM:
TRUDEL J.A.
STRATAS J.A.
MAINVILLE J.A.
BETWEEN:
CANADA (MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES)
Appellant
and
JAGJIT SINGH FARWAHA
Respondent
Heard at Vancouver, British Columbia, on May 13, 2013.
Judgment delivered at Ottawa, Ontario, on March 3, 2014.
REASONS FOR JUDGMENT BY: STRATAS J.A.
CONCURRED IN BY:
TRUDEL J.A.
CONCURRING REASONS BY: MAINVILLE J.A.
Date: 20140303
Docket:
A-431-12
Citation: 2014 FCA 56
CORAM:
TRUDEL J.A.
STRATAS J.A.
MAINVILLE J.A.
BETWEEN:
CANADA (MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES)
Appellant
and
JAGJIT SINGH FARWAHA
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1] The Minister appeals from the judgment dated September 6, 2012 of the Federal Court (per Justice Martineau) in file T-1383-11.
[2] The Federal Court quashed the Minister’s decision to uphold the cancellation of a security clearance granted to Mr. Farwaha under the Marine Transportation Security Regulations, SOR/2004-144 (“Security Regulations”). The Federal Court found the Minister’s decision to be unreasonable.
[3] Broadly speaking, the Federal Court concluded that the evidence before the Minister was not strong enough to warrant the cancellation of the security clearance. The Federal Court’s main justification for that conclusion was its interpretation of the provision that sets out the grounds upon which a security clearance can be cancelled, namely section 509 of the Security Regulations.
[4] The Federal Court also found that in making the decision the Minister failed to give to Mr. Farwaha certain procedures that he legitimately expected would be followed. It also found the Minister’s reasons to be inadequate.
[5] I reach conclusions different from those of the Federal Court. Among other things, the Federal Court erred in its interpretation of section 509 of the Security Regulations. The Minister’s decision fell within the ambit of the section, properly interpreted. Further, based on this record, the Minister’s decision was reasonable. As well, the ground of legitimate expectations that Mr. Farwaha asserts does not arise in this case.
[6] Therefore, for the reasons that follow, I would allow the appeal with costs.
A. The basic facts
[7] Mr. Farwaha is a dock worker at the Port of Vancouver. Dock workers require a security clearance under the Security Regulations to work in certain areas of the Port of Vancouver and to perform certain tasks. Those without security clearance can still work elsewhere at the Port of Vancouver.
[8] As a practical matter, having a security clearance matters. Without a security clearance, the work opportunities are fewer. This can detrimentally affect the worker’s seniority within the union, income and pension.
[9] The Minister granted Mr. Farwaha a security clearance. But twelve months later, the Minister cancelled Mr. Farwaha’s security clearance, relying upon certain information from the RCMP.
[10] Given the detrimental effects upon him, Mr. Farwaha requested that the Minister reconsider the cancellation. On reconsideration, the Minister confirmed his earlier decision to cancel Mr. Farwaha’s security clearance.
[11] In the Federal Court, Mr. Farwaha applied for judicial review of the Minister’s reconsideration decision. He asked that the reconsideration decision be quashed and his security clearance restored. The Federal Court granted the application for judicial review.
B. The legislation and the detailed facts regarding how the legislation applied in this case
[12] The Security Regulations and similar regulations for airports are the product of a review of security following the attacks on the World Trade Center in New York on September 11, 2001.
[13] The Security Regulations establish the Marine Transportation Security Clearance Program. The Program addresses threats to the security of Canada’s international marine ports. Terrorism and organized crime are among the potential security threats: Reference re Marine Transportation Security Regulations, 2009 FCA 234 at paragraph 64. Needless to say, these threats can cause catastrophic harm, both economic and human.
[14] In the Reference re Marine Transportation Security Regulations, supra at paragraph 66, Evans J.A. summarized the purposes behind the Security Regulations as follows:
Canada’s long coast line and many ports, its substantial economic dependence on international trade in goods transported by sea in and out of Canada and, to a lesser degree, on cruise line business, its ability to fund security measures, and its proximity to the United States, are all factors that provide a rational explanation of why Canada has instituted the present security clearance system.
[15] Broadly speaking, the Security Regulations offer “protection from threats to public safety and the economy from the activities of terrorist groups and organized crime”: Reference re Marine Transportation Security Regulations, supra at paragraph 67.
[16] Marine ports play a large role in Canada’s economy. A single breach of security could result in an incident shutting down Canada’s international marine transportation system, resulting in losses of hundreds of millions of dollars a day, to say nothing of the ripple effect upon economic sectors that depend on the ports. Most of all, many could die or could be injured or maimed by the incident. See the Regulations’ Regulatory Impact Analysis Statement, Canada Gazette, Part II, vol. 138, no. 11 at pages 920-926.
[17] For this reason, marine ports have in place physical security measures, such as fencing, lighting, patrols, and x-ray and radiation screening. But a single insider at a marine port can subvert these measures: Reference re Marine Transportation Security Regulations, supra at paragraph 23.
[18] The Security Regulations aim to reduce the risks individuals pose to marine ports. They achieve this by requiring those who work in security-sensitive areas to obtain a Marine Transportation Security Clearance from the Minister. The Minister grants a security clearance to those who do not pose an unacceptable risk to marine transportation. Those who “pose an unacceptable security risk to marine transportation” are screened out: Reference re Marine Transportation Security Regulations, supra at paragraph 11.
[19] As will be seen, to some extent the Security Regulations focus on criminal organizations and organized crime. The concern is that those with ties to criminal organizations and organized crime might be intimidated or coerced into performing illegal acts or subverting security measures at marine ports. There are links between terrorists and organized crime: Reference re Marine Transportation Security Regulations, supra at paragraph 64. Indeed, organizations involved in organized crime may offer their services to terrorists by aiding them in, for example, smuggling weapons, explosives or operatives into Canada in containers: Reference re Marine Transportation Security Regulations, supra at paragraph 64.
[20] I turn now to the specific provisions in the Security Regulations that address the foregoing concerns. These provisions applied in Mr. Farwaha’s case.
[21] An applicant for security clearance, such as Mr. Farwaha, must provide detailed information on a form supplied by the Minister: sections 506 and 507 of the Security Regulations. Owing to the concern associated with the security at marine ports, the information is most detailed.
[22] The applicant must provide identifying information such as names, date of birth, gender, height, weight, colours of eyes and hair, birth certificate (if born in Canada), place of birth, port and date of entry, citizenship or permanent residence or evidence of other immigration status (if born out of Canada), passport number (if any), fingerprints and facial image. Other required information includes addresses of all locations at which the applicant has lived in the previous five years, the names and addresses of employers and post-secondary educational institutions attended in the last five years, details of travel outside Canada and the United States of more than 90 days and identifying information and present addresses of the applicant’s present and former spouses and common-law partners.
[23] Section 508 of the Security Regulations describes subsequent checks and verification of the information undertaken by the Minister in order to determine whether the applicant is a risk to the security of marine transportation. These include: a criminal record check; a check of law enforcement files, including intelligence gathered for law enforcement purposes; a Canadian Security Intelligence Service (CSIS) indices check and, if necessary, a CSIS security assessment; and a check of the applicant’s citizenship and immigration status.
[24] Under section 509 of the Security Regulations, the Minister determines whether the applicant’s information and the information resulting from the checks and verifications is sufficient for a decision to be made regarding whether to grant a security clearance.
[25] Section 509 of the Security Regulations is the authority upon which Mr. Farwaha received his security clearance in 2008. (As we shall see, it also supplies the grounds upon which a security clearance can be later suspended or cancelled.) Under section 509, the Minister cannot grant a security clearance unless he is of the opinion that the information provided by the applicant and resulting from any checks and verifications is “sufficient,” “verifiable” and “reliable.”
[26] Section 509 reads as follows:
509. The Minister may grant a security clearance if, in the opinion of the Minister, the information provided by the applicant and that resulting from the checks and verifications is verifiable and reliable and is sufficient for the Minister to determine, by an evaluation of the following factors, to what extent the applicant poses a risk to the security of marine transportation:
(a) the relevance of any criminal convictions to the security of marine transportation, including a consideration of the type, circumstances and seriousness of the offence, the number and frequency of convictions, the length of time between offences, the date of the last offence and the sentence or disposition;
(b) whether it is known or there are reasonable grounds to suspect that the applicant
(i) is or has been involved in, or contributes or has contributed to, activities directed toward or in support of the misuse of the transportation infrastructure to commit criminal offences or the use of acts of violence against persons or property, taking into account the relevance of those activities to the security of marine transportation,
(ii) is or has been a member of a terrorist group within the meaning of subsection 83.01(1) of the Criminal Code, or is or has been involved in, or contributes or has contributed to, the activities of such a group,
(iii) is or has been a member of a criminal organization as defined in subsection 467.1(1) of the Criminal Code, or participates or has participated in, or contributes or has contributed to, the activities of such a group as referred to in subsection 467.11(1) of the Criminal Code taking into account the relevance of these factors to the security of marine transportation,
(iv) is or has been a member of an organization that is known to be involved in or to contribute to — or in respect of which there are reasonable grounds to suspect involvement in or contribution to — activities directed toward or in support of the threat of or the use of, acts of violence against persons or property, or is or has been involved in, or is contributing to or has contributed to, the activities of such a group, taking into account the relevance of those factors to the security of marine transportation, or
(v) is or has been associated with an individual who is known to be involved in or to contribute to — or in respect of whom there are reasonable grounds to suspect involvement in or contribution to — activities referred to in subparagraph (i), or is a member of an organization or group referred to in any of subparagraphs (ii) to (iv), taking into account the relevance of those factors to the security of marine transportation;
(c) whether there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security;
(d) whether the applicant has had a restricted area pass for a marine facility, port or aerodrome removed for cause; and
(e) whether the applicant has filed fraudulent, false or misleading information relating to their application for a security clearance.
509. Le ministre peut accorder une habilitation de sécurité si, de l’avis du ministre, les renseignements fournis par le demandeur et ceux obtenus par les vérifications sont vérifiables et fiables et s’ils sont suffisants pour lui permettre d’établir, par une évaluation des facteurs ci-après, dans quelle mesure le demandeur pose un risque pour la sûreté du transport maritime :
a) la pertinence de toute condamnation criminelle du demandeur par rapport à la sûreté du transport maritime, y compris la prise en compte du type, de la gravité et des circonstances de l’infraction, le nombre et la fréquence des condamnations, le temps écoulé entre les infractions, la date de la dernière infraction et la peine ou la décision;
b) s’il est connu ou qu’il y a des motifs raisonnables de soupçonner que le demandeur :
(i) participe ou contribue, ou a participé ou a contribué, à des activités visant ou soutenant une utilisation malveillante de l’infrastructure de transport afin de commettre des crimes ou l’exécution d’actes de violence contre des personnes ou des biens et la pertinence de ces activités, compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime,
(ii) est ou a été membre d’un groupe terroriste au sens du paragraphe 83.01(1) du Code criminel, ou participe ou contribue, ou a participé ou a contribué, à des activités d’un tel groupe,
(iii) est ou a été membre d’une organisation criminelle au sens du paragraphe 467.1(1) du Code criminel ou participe ou contribue, ou a participé ou a contribué, aux activités d’un tel groupe tel qu’il est mentionné au paragraphe 467.11(1) du Code criminel, compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime,
(iv) est ou a été un membre d’une organisation qui est connue pour sa participation ou sa contribution — ou à l’égard de laquelle il y a des motifs raisonnables de soupçonner sa participation ou sa contribution — à des activités qui visent ou favorisent la menace ou l’exécution d’actes de violence contre des personnes ou des biens, ou participe ou contribue, ou a participé ou a contribué, aux activités d’une telle organisation, compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime,
(v) est ou a été associé à un individu qui est connu pour sa participation ou sa contribution — ou à l’égard duquel il y a des motifs raisonnables de soupçonner sa participation ou sa contribution — à des activités visées au sous-alinéa (i), ou est membre d’un groupe ou d’une organisation visés à l’un des sous-alinéas (ii) à (iv), compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime;
c) s’il y a des motifs raisonnables de soupçonner que le demandeur est dans une position où il risque d’être suborné afin de commettre un acte ou d’aider ou d’encourager toute personne à commettre un acte qui pourrait poser un risque pour la sûreté du transport maritime;
d) le demandeur s’est vu retirer pour motifs valables un laissez-passer de zone réglementée pour une installation maritime, un port ou un aérodrome;
e) le demandeur a présenté une demande comportant des renseignements frauduleux, faux ou trompeurs en vue d’obtenir une habilitation de sécurité.
[27] On January 17, 2008, Mr. Farwaha applied for a security clearance. It was granted.
[28] However, the facts surrounding this approval form part of the backdrop against which the Minister’s decision must be viewed.
[29] In early 2008, the Security Regulations were about to apply to the Port of Vancouver. The Port urged workers to apply for security clearances. It asked them to apply before February 20, 2008 so that their security clearances would be in place by the time the Security Regulations came into force.
[30] However, there was a complication. Certain longshore workers who were members of some chapters of the International Longshore and Warehouse Union protested the implementation of the security program set out in the Security Regulations. As part of the protest, they urged workers not to apply for security clearances.
[31] This posed a threat to the Port. If a sufficient number of workers did not possess a security clearance in time, the Port would not be able to function fully. Severe financial consequences would ensue.
[32] In response to the protest, the British Columbia Maritime Employers Association applied to the Canada Industrial Relations Board for a declaration that the workers were engaged in an unlawful strike. The Association succeeded. However, little time remained before the Security Regulations were in force. As a result, the applications were processed quickly.
[33] Mr. Farwaha’s application for the security clearance was processed during this unsettled time. His application disclosed the existence of a criminal record, namely a 2002 conviction for attempted obstruction of justice. However, there was nothing in his application suggesting any connection to organized crime, a ground of refusal under paragraph 509(b) of the Security Regulations.
[34] In this context, the Minister granted Mr. Farwaha’s security clearance in June 2008. However, the Minister sought further information about Mr. Farwaha’s criminal record and background.
[35] This information came in the form of a report from the Officer in charge of the RCMP’s Federal Operation Criminal Intelligence Support Unit.
[36] That report disclosed new information regarding Mr. Farwaha’s potential associations with the Hells Angels, as well as allegations of violent criminal activity. An excerpt appearing at pages 178-179 of the Appeal Book is as follows:
On October 1, 1999 Surrey RCMP received a complaint that Mr. FARWAHA and two other individuals forced their way into the residence of the victims and stated they were part of the “Hells Angels”. The suspects demanded all of the resident’s money. FARWAHA and another suspect assaulted a resident to unconsciousness, which resulted in a concussion, facial lacerations, “cauliflower ears” and extensive bruising.
During this assault, a suspect other that [sic] FARWAHA assaulted another resident, who was also threatened. This resident eventually agreed to give all her money ($30,000.00) to the 3 suspects.
…
According to Surrey RCMP, the suspect’s association to the Hells Angels Motorcycle Club is credible. No further information available on that matter.
[37] Following this incident, Mr. Farwaha was charged with being in a dwelling house without lawful excuse, extortion, robbery, uttering threats to cause death or bodily harm, and assault causing bodily harm. However, these charges were stayed, apparently because (according to the report), “the victims did not cooperate with the judicial process.”
[38] The Hells Angels are a well-known criminal organization: see, e.g., R. v. Lindsay, 2009 ONCA 532, (2009), 97 O.R. (3d) 567 (C.A.). It is an organization that threatens and engages in acts of violence against persons or property. Reasonable grounds to believe that a person is a member of such an organization is a factor to be considered in denying a security clearance or cancelling one that has been granted.
[39] With the information in the RCMP’s report in hand, the Minister began to consider whether Mr. Farwaha’s security clearance should be cancelled under section 515 of the Security Regulations. Under section 515, the Minister can cancel a previously-granted security clearance based on the factors set out in section 509.
[40] Section 515 reads as follows:
515. (1) The Minister may suspend a security clearance on receipt of information that could change the Minister’s determination made under section 509.
(2) Immediately after suspending a security clearance, the Minister shall advise the holder in writing of the suspension.
(3) The notice shall set out the basis for the suspension and shall fix a period of time for the holder to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.
(4) The Minister may reinstate the security clearance if the Minister determines under section 509 that the holder does not pose a risk to marine transportation security.
(5) The Minister may cancel the security clearance if the Minister determines under section 509 that the holder may pose a risk to marine transportation security or that the security clearance is no longer required. The Minister shall advise the holder in writing of any cancellation.
(6) The Minister shall not cancel a security clearance until the written representations have been received and considered or before the time period fixed in the notice has expired, whichever comes first.
515. (1) Le ministre peut suspendre une habilitation de sécurité lorsqu’il reçoit des renseignements qui pourraient modifier sa décision prise en application de l’article 509.
(2) Immédiatement après avoir suspendu l’habilitation de sécurité, le ministre en avise par écrit le titulaire.
(3) L’avis indique les motifs de la suspension et le délai dans lequel le titulaire peut présenter par écrit au ministre des observations, lequel délai commence le jour au cours duquel l’avis est signifié ou acheminé et ne peut être inférieur à 20 jours suivant ce jour.
(4) Le ministre peut rétablir l’habilitation de sécurité s’il établit, en application de l’article 509, que le titulaire de l’habilitation ne pose pas de risque pour la sûreté du transport maritime.
(5) Le ministre peut annuler l’habilitation de sécurité s’il établit, en application de l’article 509, que le titulaire de l’habilitation de sécurité peut poser un risque pour la sûreté du transport maritime ou que l’habilitation n’est plus exigée. Il avise par écrit le titulaire dans le cas d’une annulation.
(6) Le ministre ne peut annuler l’habilitation de sécurité avant la réception et la prise en considération des observations écrites ou avant que ne soit écoulé le délai indiqué dans l’avis, selon le premier de ces événements à survenir.
[41] Owing to the importance of the security clearance to the worker, section 515 gives the worker certain procedural rights. After the worker exercises these procedural rights, the Minister considers all of the information before him and may, in his discretion, cancel the security clearance.
[42] Following section 515, by letter dated November 17, 2008 the Minister informed Mr. Farwaha that “[i]nformation has been made available that raises doubts about [his] suitability to retain a security clearance.” The Minister specifically mentioned Mr. Farwaha’s alleged association with the Hells Angels. He was invited to respond. Mr. Farwaha asked for and was granted an extension of time to respond.
[43] On March 18, 2009, Mr. Farwaha did respond, making submissions on the need for the Minister to act only on the basis of verifiable and reliable information, evidence and submissions on Mr. Farwaha’s alleged association with the Hells Angels, and evidence and submissions on his previous criminal conviction for obstruction and his clear record thereafter. Mr. Farwaha also emphasized the importance to him of the security clearance.
[44] Thereafter, a body advising the Minister, known as the Advisory Body, studied the matter. It recommended to the Minister that Mr. Farwaha’s security clearance be cancelled. In his decision letter of June 25, 2009, the Minister described the Advisory Body’s recommendation as follows:
The Advisory Body was unanimous in its recommendation to cancel the applicant’s security clearance based on the credible information linking him to the Hell’s [sic] Angels Motorcycle Club. The Advisory Body noted that the RCMP maintains the applicant’s association to the Hell’s [sic]Angels Motorcycle Club is credible. The Advisory Body was able to determine that there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that he may be suborned to commit an act or to assist or to abet any person to commit an act that might constitute a risk to marine transportation security. His written explanation and supporting documentation did not provide sufficient information that would compel the Advisory Body to recommend issuing a clearance.
[45] In his decision letter of June 25, 2009, the Minister accepted the Advisory Body’s recommendation and cancelled Mr. Farwaha’s security clearance “based on the information in [the] file.” Mr. Farwaha’s March 18, 2009 response was one of the documents in the Minister’s file.
[46] Under section 517 of the Security Regulations, the worker can ask the Minister to reconsider a decision to cancel a security clearance. On August 4, 2009, Mr. Farwaha exercised that option and asked the Minister to reconsider the cancellation.
[47] The reconsideration provision, section 517, provides as follows:
517. (1) An applicant or a holder may request that the Minister reconsider a decision to refuse to grant or to cancel a security clearance within 30 days after the day of the service or sending of the notice advising them of the decision.
(2) The request shall be in writing and shall set out the following:
(a) the decision that is the subject of the request;
(b) the grounds for the request, including any new information that the applicant or holder wishes the Minister to consider; and
(c) the name, address, and telephone and facsimile numbers of the applicant or holder.
(3) On receipt of a request made in accordance with this section, the Minister, in order to determine the matter in a fair, informal and expeditious manner, shall give the applicant or holder
(a) where the situation warrants, the opportunity to make representations orally or in any other manner; and
(b) in any other case, a reasonable opportunity to make written representations.
(4) After representations have been made or a reasonable opportunity to do so has been provided, the Minister shall reconsider the decision in accordance with section 509 and shall subsequently confirm or change the decision.
(5) The Minister may engage the services of persons with appropriate expertise in security matters to advise the Minister.
(6) The Minister shall advise the applicant or holder in writing of the decision made following the reconsideration.
517. (1) Tout demandeur ou tout titulaire peut demander au ministre de réexaminer une décision de refuser ou d’annuler une habilitation de sécurité dans les 30 jours suivant le jour de la signification ou de l’envoi de l’avis l’informant de la décision.
(2) La demande est présentée par écrit et comprend ce qui suit :
a) la décision qui fait l’objet de la demande;
b) les motifs de la demande, y compris tout nouveau renseignement qu’il désire que le ministre examine;
c) le nom, l’adresse et les numéros de téléphone et de télécopieur du demandeur ou du titulaire.
(3) Sur réception de la demande présentée conformément au présent article, le ministre accorde au demandeur ou au titulaire, de manière à trancher les questions de façon équitable, informelle et rapide, la possibilité :
a) lorsque les circonstances le justifient, de présenter des observations oralement ou de toute autre manière;
b) dans tout autre cas, de lui présenter par écrit des observations.
(4) Après que des observations ont été présentées ou que la possibilité de le faire a été accordée, le ministre réexamine la décision conformément à l’article 509 et, par la suite, confirme ou modifie la décision.
(5) Le ministre peut retenir les services de personnes qui possèdent la compétence pertinente en matière de sûreté pour le conseiller.
(6) Le ministre avise par écrit le demandeur ou le titulaire de sa décision à la suite du réexamen.
[48] The Minister has access to certain advisory bodies to assist him in making security determinations, including reconsiderations of cancellations. In this case, the Minister made use of certain advisory bodies during the reconsideration.
[49] As will be seen, in the Federal Court and in this Court, Mr. Farwaha submitted that he was led to expect that the Minister would follow a particular consultative process and not the one the Minister actually followed. The specific facts relating to this will be canvassed in more detail below in the context of the procedural fairness issues in this case.
[50] During the reconsideration process in this case, the Minister obtained further information concerning Mr. Farwaha’s suitability for a security clearance. In particular, Mr. Farwaha was interviewed by the Office of Reconsideration, one of the bodies assisting the Minister. That interview did not assist Mr. Farwaha. The Office concluded that some of Mr. Farwaha’s answers concerning the home invasion incident, described above, were evasive. Further, Mr. Farwaha did not deny that he hung out with a “rough crowd,” he had attended at the home in question, and an argument broke out at that time. He simply denied that he was involved in the argument, that there was any violence, or that he was involved with the Hells Angels.
[51] As well, the Minister obtained information from the RCMP’s Security Intelligence Background Section. In a report dated December 1, 2010, the RCMP provided additional and specific details about the home invasion incident, Mr. Farwaha’s conviction for obstruction of justice, and Mr. Farwaha’s association with the Hells Angels. In particular, the December 1, 2010 report discloses that the Surrey RCMP “felt strongly enough about their information they had about [Mr. Farwaha’s] association with the Hell’s [sic] Angels that they requested that the Court consider it as an aggravating factor” in the home invasion charges against Mr. Farwaha.
[52] The December 1, 2010 report also disclosed a further troubling incident:
On Jan. 3, 2002, while making patrols, police observed two individuals trying to break into a vehicle. Police determined that one individual owned the vehicle and was simply trying to gain access inside his car, as his door locks had been damaged. However, the owner of the vehicle was wearing a shirt which indicated his support for the “East End.” The “East End” is known to be a chapter of the Hell’s [sic] Angels. FARWAHA, the applicant was the second individual present with the owner of the vehicle.
[53] On December 24, 2010, Mr. Farwaha was advised about the report. He was told that a further body advising the Minister, the Program Review Board, would now review the matter. Mr Farwaha was invited to provide information and submissions. Mr. Farwaha responded on January 11, 2011, offering little in the way of new information and submitting that the Minister could not cancel Mr. Farwaha’s security clearance without better information. He also raised questions about procedural matters. I shall deal with these below in the context of the procedural fairness issues in this case.
[54] Soon afterward, the RCMP delivered to the Minister’s officials another report dated February 15, 2011. This report contained further information about Mr Farwaha’s conviction for obstruction of justice and the incident to which it related.
[55] Mr. Farwaha was said to have handed a firearm to an individual who used it to shoot a person. That individual later pleaded guilty to manslaughter. He was a “significant drug trafficker” and had connections to the Hells Angels. The obstruction charge against Mr. Farwaha concerned the disposal of the firearm and Mr. Farwaha pleaded guilty to that charge.
[56] The February 15, 2011 report disclosed other matters of concern. Another person involved in the incident leading to Mr. Farwaha’s conviction for obstruction was a member of the Hells Angels, and others involved had long criminal records including convictions for serious offences such as kidnapping, robbery, forcible confinement, theft, break and enter and assault. Information, said to be reliable but unconfirmed, suggested Mr. Farwaha had discussed selling drugs with one of the individuals, who was later convicted of trafficking in cocaine and heroin. Finally, the RCMP advised that in 2004 the “Vancouver police received reliable information that Mr. Farwaha was recruiting drug dealers to sell crack cocaine for him in the downtown area.”
[57] On March 11, 2011, the Minister’s officials forwarded the February 15, 2011 report to Mr. Farwaha for response. On March 30, 2011, Mr. Farwaha responded, providing writing submissions.
[58] It is fair to say that Mr. Farwaha’s March 30, 2011 response was based on the view that the Minister could consider only verifiable and reliable evidence to cancel a security clearance. In Mr. Farwaha’s view, the Minister had no such evidence. Mr. Farwaha’s March 30, 2011 response provided very little new information, mainly resting upon a flat denial of many of the allegations in the February 15, 2011 report. In this sense, it was similar to his earlier January 11, 2011 response.
[59] By decision letter dated July 21, 2011, the Minister confirmed his earlier decision to cancel Mr. Farwaha’s security clearance under subsection 517(4). This confirmatory decision was said to be “based on the information in [the] file.” The contents of the file became known during the prosecution of Mr. Farwaha’s application for judicial review by virtue of a Rule 317 request made by Mr. Farwaha. The Minister produced his file. Mr. Farwaha’s March 30, 2011 response was in the file.
[60] In his decision letter of July 21, 2011, the Minister adopted the Program Review Board’s recommendation that the cancellation of Mr. Farwaha’s security clearance should be confirmed and adopted the Program Review Board’s reasons in support of its recommendation. In its recommendation, the Program Review Board stated there were “reasonable grounds to suspect” that:
• “[Mr. Farwaha] is or has been involved in acts of violence against persons or property”;
• might “be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security”; and
• “is or has been associated with an individual who is known to be involved in or is known to be a member of a criminal organization.”
Collectively, these are grounds upon which the Minister may cancel a security clearance under paragraphs 509(b) and 509(c) of the Security Regulations.
C. The Federal Court’s judgment
[61] As mentioned above, Mr. Farwaha applied for judicial review in the Federal Court. The Federal Court granted the application on two main grounds:
(1) Substantive grounds. The Minister improperly relied upon evidence that was unverified and unreliable. The Minister ignored evidence and explanations provided by Mr. Farwaha, in particular those contained in Mr. Farwaha’s final submissions letter dated March 30, 2011. The Minister also did not give adequate reasons.
(2) Procedural grounds. In response to representations made, Mr. Farwaha had a legitimate expectation that a special office known as the Office of Reconsideration would be involved and would supply advice to the Minister that was independent of the Minister’s own advisors.
[62] The Federal Court quashed the Minister’s decision and remitted the matter to him for reconsideration. The Federal Court directed the Minister to reconsider the matter without relying upon unparticularized and unsupported allegations. The Federal Court also directed the Minister to consider the evidence and submissions made by Mr. Farwaha.
[63] The Minister appeals to this Court. He seeks the restoration of his decision confirming the cancellation of Mr. Farwaha’s security clearance.
D. Analysis
(1) The substantive grounds: Mr. Farwaha’s first submission
[64] On appeal to this Court, Mr. Farwaha first submits that the Minister, in declining to reinstate the security clearance, was specifically obligated under section 509 of the Security Regulations, to rely only upon verifiable and reliable evidence. He submits that the Court must review whether the Minister met that statutory obligation on the basis of correctness. The Minister failed to comply with that obligation and, thus, the decision must be quashed.
[65] This submission centrally affects the manner in which this Court should analyze this case. It is useful to deal with it first.
[66] I reject Mr. Farwaha’s submission. In doing so, I shall address three matters.
– I –
[67] Section 509 of the Security Regulations provides that the Minister can only grant a security clearance if, among other things, “the information provided by the applicant and that resulting from checks and verifications” is “verifiable and reliable.” This sort of information is provided during the process leading up to the granting of a security clearance.
[68] If that quality of information is not present, the Minister need not go any further. He need not consider the factors listed under paragraphs (a) to (e) in section 509.
[69] This makes sense. The thrust of section 509 is that a security clearance should only be granted to an individual when the Minister is sure, on the basis of reliable and verifiable information, that the individual poses no risk to marine security. Colloquially expressed, there must be no doubt on the matter. This high standard is necessary to prevent the grave consequences that might ensue if the individual commits injurious or destructive acts in sensitive port areas.
[70] Turning to suspensions of previously-granted security clearances, as a practical matter the situation is different. The information leading to suspension of previously-granted security clearances can come from any source, not just from information supplied by the applicant or from checks and verifications. For example, CSIS might supply the Minister with information that creates a doubt concerning an individual’s suitability to hold a security clearance. Nowhere do the Security Regulations say that the requirements of verifiability and reliability apply to this sort of evidence. Again, the requirements and verifiability and reliability apply only to the sort of evidence supplied during the initial granting process, i.e., information supplied by the applicant or from checks and verifications.
[71] Subsection 515(1) allows the Minister to suspend a security clearance when there is any “information that could change the Minister’s determination made under section 509.” The reference to section 509 does not import all of that section. Specifically, it does not import the requirement that the information be reliable or verifiable. Subsection 515(1) only references the “determination” portion of section 509.
[72] Were it otherwise, the purposes of the Security Regulations would be undercut. Having received information from CSIS creating a doubt over the individual’s suitability to hold a security clearance, the Minister would have to wait for better information, information that might never come. Meanwhile, the individual would continue to have unrestricted access to sensitive port areas while the Minister hopes to receive bet