Thomson v. Canada (Deputy Minister of Agriculture)

Thomson v. Canada (Deputy Minister of Agriculture)
Collection
Supreme Court Judgments
Date
1992-02-13
Report
[1992] 1 SCR 385
Case number
22020
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William
On appeal from
Federal Court of Appeal
Subjects
Administrative law
State
Statutes
Notes
SCC Case Information: 22020
Decision Content
Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385
Her Majesty The Queen, as represented
by the Department of Agriculture, and
the Deputy Minister of Agriculture Appellant
v.
Robert Thomson Respondent
and
Security Intelligence Review Committee Intervener
Indexed as: Thomson v. Canada (Deputy Minister of Agriculture)
File No.: 22020.
1991: October 28; 1992: February 13.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.
on appeal from the federal court of appeal
Public Service -- Security clearance -- Successful candidate denied requisite security clearance -- Security Intelligence Review Committee recommending security clearance -- Deputy Minister refusing to follow Committee's recommendation -- Whether Deputy Minister required to follow Committee's recommendation -- Canadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 42, 52(1), (2).
Statutes -- Interpretation -- Public Service -- Security clearance -- Successful candidate denied requisite security clearance -- Security Intelligence Review Committee recommending security clearance -- Deputy Minister refusing to follow Committee's recommendation -- Meaning of word "recommendations" in Canadian Security Intelligence Service Act .
Administrative law -- Natural justice -- Right to be heard -- Public Service -- Security clearance -- Successful candidate denied requisite security clearance -- Security Intelligence Review Committee recommending security clearance -- Deputy Minister refusing to follow Committee's recommendation -- Candidate not given hearing by Deputy Minister -- Whether denial of natural justice.
Respondent was offered a public service position in 1984, subject to his obtaining security clearance. The Canadian Security Intelligence Service conducted an investigation and advised the department against granting the requisite security clearance. The department's Deputy Minister considered the CSIS report, and after consulting with the Privy Counsel Office, denied the security clearance and rescinded the job offer. The respondent then filed a complaint with the Security Intelligence Review Committee pursuant to s. 42 of the Canadian Security Intelligence Service Act . The Committee conducted an investigation, held two meetings where the parties were present and/or represented by counsel, and issued a report pursuant to s. 52 which recommended that respondent be granted the security clearance. The Deputy Minister nevertheless decided to maintain his denial of the security clearance.
The respondent first commenced an action in the Federal Court of Appeal, pursuant to s. 28 of the Federal Court Act , to have the Deputy Minister's decision to deny the security clearance set aside. The court held that, while the Deputy Minister was bound by the Review Committee's recommendation, the court did not have jurisdiction under s. 28 to review and set aside his decision. The respondent then sought certiorari to set aside the Deputy Minister's decision and mandamus to require the Deputy Minister to grant him security clearance. The judge denied the application. He concluded that "recommendations", according to the ordinary meaning of the word, was not binding. The Federal Court of Appeal reversed that decision, set aside the Deputy Minister's decision to deny security clearance and ordered him to grant it.
At issue here is whether a Deputy Minister is bound to follow the "recommendations" of the Security Intelligence Review Committee, and more particularly, the meaning to be given the word "recommendations" in s. 52(2) of the Canadian Security Intelligence Service Act .
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.: In order to interpret "recommendations" in s. 52(2) , the Canadian Security and Intelligence Service Act must be read as a whole in order to ascertain its aim and object. When the words used in the statute are clear and unambiguous, no other step is needed to identify the Parliament's intention.
The simple term "recommendations" should be given its ordinary meaning. "Recommendations" ordinarily means the offering of advice and should not be taken to mean a binding decision. There is nothing in either the section or the Act as a whole which indicates that the word "recommendations" should have anything other than its usual meaning.
The Committee's recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensure the accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion to consider. It is no more than that. The wording of this section would be strained by giving the statute any wider scope. The Deputy Minister bears the onerous responsibility not only for the granting of security clearance but also for the ongoing security in his or her department. Accordingly, the final decision as to security clearance should be left to the Deputy Minister, notwithstanding the recommendations of the Committee.
The word "recommendations" is used in other provisions of the Act. Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an Act. In s. 52(1) "recommendations" has its ordinary and plain meaning of advising or counselling. Parliament could not have intended the word "recommendations" in s. 52(2) to receive a different interpretation.
Finally, the Deputy Minister had evidence upon which he could reasonably have concluded that the respondent's security clearance should have been denied.
Per L'Heureux‑Dubé J. (dissenting): The Deputy Minister was bound to follow the "recommendations" of the Security Intelligence Review Committee.
To determine the meaning of any particular statutory provision, the act must be read as a whole in order to ascertain its aim and object. Heed must be paid to the language used, the context of both the specific provision and the law itself, and the purpose or intent of the legislation. Although Parliament's intent can sometimes be discerned by the "plain meaning" of a statutory provision, "plain meaning" itself depends on the context of the provision and the overall scheme of the act. The meaning of specific terms must also be reconciled with the intent of Parliament.
Reference to context and intent is important since the word "recommendations" does not lend itself automatically to a single, rigid definition. Dictionary definitions are all merely suggested meanings; the true meaning of the word must necessarily flow from its context within the entire statute. Thus, while "recommendations" often connotes advice or information which the recipient may disregard, the term might also refer to directions or orders which are binding.
The words in the Act must also be given a meaning consistent with both its French and English texts. Section 52(2) of the French text of the Canadian Security and Intelligence Service Act refers to "recommandations". The words "commandement" and "ordre" are dictionary synonyms for "recommandation".
Context refers both to the provisions immediately surrounding the provision under examination and to the overall scheme of the statute. Nothing necessarily compels that a permissive meaning be attributed to the term "recommendations". Other provisions in the Act, moreover, are consistent with the less restrictive interpretation.
The section 42 mechanism for review of denials of security clearance suggests something more than an advisory role for the Committee. The Deputy Minister's adversarial role in the Committee's hearing also indicates that the Committee's recommendations are more than suggestive. A fundamental tenet of natural justice is contradicted if the deputy minister can, following a hearing to which he or she has been a party and without any other reasons than those he or she expressed at the hearings, reverse the decision that resulted from the hearing.
Finally, a judge's fundamental consideration in statutory interpretation is the purpose of legislation. In setting up the review mechanism under s. 42 , Parliament must have intended to provide a system of redress for parties who were unjustly deprived of employment due to erroneous or flawed CSIS reports. Parliament could not have intended to create a situation where a civil servant could be denied employment or promotion without any chance of righting a wrong done to him or her, especially given the context of today's labour relations.
Only where a candidate has proved to the Committee that the CSIS report contains spurious or unfounded allegations and the Committee recommends that the clearance be granted must the Deputy Minister accept the candidate. Although the Deputy Minister must bear ultimate responsibility for security even if acting on another body's directives, this situation is not unique.
Even if the Deputy Minister had the discretion to deny a security clearance notwithstanding the Committee's report, the appeal should be dismissed on the grounds that he did not exercise that discretion properly. The Deputy Minister's decision disregarded the Review Committee's recommendations on the strength of the original CSIS report. Since the Review Committee's findings served to correct and revise the CSIS report, the Deputy Minister should have relied almost exclusively on them rather than on the erroneous CSIS allegations.
The Deputy Minister also failed to respect the requirements of natural justice, since he neither gave the respondent reasons for his decision nor a chance to be heard.
Cases Cited
By Cory J.
Distinguished: Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504; referred to: Lee v. Attorney General of Canada, [1981] 2 S.C.R. 90; Attorney General of Canada v. Murby, [1981] 1 F.C. 713; R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643.
By L'Heureux‑Dubé J. (dissenting)
Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Cloutier v. The Queen, [1979] 2 S.C.R. 709; Quebec Railway, Light, Heat and Power Co. v. Vandry, [1920] A.C. 662; City of Victoria v. Bishop of Vancouver Island, [1921] 2 A.C. 384; Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436; R. v. Sommerville, [1974] S.C.R. 387; Julius v. Bishop of Oxford (1880), 5 A.C. 214; Hands v. Law Society of Upper Canada (1890), 17 O.A.R. 41; Bridge v. The Queen, [1953] 1 S.C.R. 8; Labour Relations Board of Saskatchewan v. The Queen, [1956] S.C.R. 82; Cité de Côte‑St‑Luc v. Canada Iron Foundries Ltd, [1970] C.A. 62; Reference as to the constitutional validity of certain sections of The Fisheries Act, 1914, [1928] S.C.R. 457; R. v. S.(S.), [1990] 2 S.C.R. 254; Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504; The King v. Christ's Hospital Governors, [1917] 1 K.B. 19; The Queen v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653.
Statutes and Regulations Cited
Cabinet Directive No. 35, August 9, 1978.
Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C., 1985, c. C‑23 ), ss. 5 (i), 41 , 42 , 52(1) , (2) .
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Financial Administration Act, R.S.C. 1970, c. F-10.
Official Languages Act, R.S.C. 1970, c. O‑2, ss. 8(1), (2)(d).
Public Service Employment Act, R.S.C. 1970, c. P-32.
Authors Cited
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Qué.: Yvon Blais, 1991.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985.
Petit Robert 1. Paris: Le Robert, 1984, "recommandation".
APPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 820, setting aside a judgment of the Federal Court, Trial Division, [1989] 1 F.C. 86, dismissing an application for writs of certiorari and mandamus after the dismissal, for want of jurisdiction, of an application to the Federal Court of Appeal under s. 28 of the Federal Court Act , [1988] 3 F.C. 108, 31 Admin. L.R. 14. Appeal allowed, L'Heureux‑Dubé J. dissenting.
I. G. Whitelhall, Q.C., and B. S. Russell, for the appellant.
Sean T. McGee and Steven J. Welchner, for the respondent.
Simon Noël and Sylvie Roussel, for the intervener Security Intelligence Review Committee.
//Cory J.//
The judgment of La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ. was delivered by
Cory J. -- The prime issue on this appeal is whether a deputy minister is bound to follow the "recommendations" of the Security Intelligence Review Committee.
Factual Background
In 1984, Robert Thomson, the respondent, was offered a position with the International Affairs Directorate of Agriculture Canada. The offer was subject to the granting of security clearance to the respondent. The Canadian Security Intelligence Service ("CSIS") conducted an investigation. CSIS then reported to the Department of Agriculture. It advised that the respondent was not an individual in whom the Canadian government could repose full confidence or who should be in a position where he would have access to documents and matters that were classified for reasons of national interest. The conclusion was based upon the following findings by CSIS:
-that you may have revealed the classified contents of a message from the Canadian Ambassador in Santiago to the Department of External Affairs in Ottawa in 1973;
-that you revealed the contents of a classified telex to a Member of Parliament in 1973 and that you at first denied knowing the Member of Parliament;
-that you refused to name the person with whom you said you had discussed the contents of the classified telex ...;
-that by your own admission you transmitted letters in a clandestine fashion to a recipient in Guyana;
-that you have maintained contact, in a clandestine manner, with officials and/or agents of foreign governments and offered to provide classified information on at least one known occasion to them.
The Deputy Minister considered the CSIS report. After consulting with the Privy Counsel Office, he denied security clearance to the respondent and rescinded the job offer. The respondent then filed a complaint with the Security Intelligence Review Committee (the "Committee"). This was done pursuant to s. 42 of the Canadian Security Intelligence Service Act, S.C. 1984, c. 21, (the "Act"). The Committee conducted an investigation. The Committee then held hearings on August 13, October 9 and November 7, 1985. Throughout the hearings the respondent was present with counsel. The Deputy Minister and the Committee were each represented by separate counsel. Pursuant to s. 52 of the Act, the Committee then issued a report which recommended the granting of security clearance to the respondent. The essential aspects of the report were as follows:
We find that, with one exception, the allegations concerning Mr. Thomson's activities since 1973 are not supported by the evidence. The exception is that Mr. Thomson was not forthright in his interview with the CSIS investigator when he was questioned in 1985 about the unauthorized release of telexes in 1973.
...
It remains that Mr. Thomson admitted to the unauthorized release of classified information .... This release was not, it should be noted, to a foreign power, but to a Canadian M.P. It was, nevertheless, a serious breach of trust, and the question which must be answered is: would Mr. Thomson do such a thing in the future if circumstances led to his becoming, once again, emotionally engaged?
The answer to that question must be entirely subjective. We believe that since the incidents took place some twelve years ago when Mr. Thomson was both less experienced and less mature, his actions then cannot, in the absence of other evidence, lead to the conclusion that, in similar circumstances, he would act in the same way now or in the future. There was no other evidence which would have led us to that conclusion.
We find, therefore, that Mr. Thomson would be unlikely to release classified information if he were once again employed in a position with access to such material.
Recommendation
We recommend that the Deputy Minister of Agriculture Canada grant Mr. Thomson a Secret security clearance so that he may continue his career in the position offered to him in 1984.
Despite the recommendation, the Deputy Minister decided to maintain his decision to deny security clearance. It was his opinion that he should not grant security clearance until his doubts as to the reliability of the respondent had been resolved. Neither the report of CSIS nor that of the Committee had resolved these doubts.
Decisions in the Courts Below
Federal Court of Appeal, [1988] 3 F.C. 108
The respondent first commenced an action in the Federal Court of Appeal, pursuant to s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to have the Deputy Minister's decision set aside. Stone J.A. writing for the court recognized that the interpretation of the word "recommendations" as it appears in s. 52(2) of the Act was crucial. He concluded that the word was not used in its literal sense. It was his opinion that the Deputy Minister was not entitled to "re‑make" a decision he had already rendered after the matter had become the subject of a "complaint" and of a "recommendation". Stone J.A. concluded that the Deputy Minister was bound by the recommendation. However, it was his view that the court did not have jurisdiction under s. 28 of the Federal Court Act to review and set aside the decision of the Deputy Minister denying security clearance.
Federal Court, Trial Division, [1989] 1 F.C. 86
The respondent next applied for relief by way of certiorari to set aside the Deputy Minister's decision to deny the security clearance and by way of mandamus to require the Deputy Minister to grant security clearance to him. Dubé J. concluded that the word "recommendations" in the Act retained its ordinary meaning. That is to say that it was not a binding decision or conclusion but simply a recommendation to the Deputy Minister. He found that there was no obligation cast upon the Deputy Minister to follow the Committee's recommendation. Accordingly, Dubé J. denied the application. In his opinion, the Deputy Minister had acted fairly and, therefore, the Court would not interfere with the Deputy Minister's discretionary decision.
Federal Court of Appeal, [1990] 2 F.C. 820
The Federal Court of Appeal reversed the decision of the trial judge, set aside the Deputy Minister's decision to deny security clearance and ordered him to grant the required security clearance to Mr. Thomson.
The Key Statutory Provisions
The Canadian Security Intelligence Service Act, S.C. 1984, c. 21, s. 52 (now R.S.C., 1985, c. C‑23 ) provides:
52. ...
(2) On completion of an investigation in relation to a complaint under section 42, the Review Committee shall provide the Minister, the Director, the deputy head concerned and the complainant with a report containing any recommendations that the Committee considers appropriate, and those findings of the investigation that the Committee considers it fit to report to the complainant.
A reading of the section makes it clear that this case will turn upon the meaning given to the word "recommendations".
Background
A. The Prerogative Power and Cabinet Directive No. 35
So long as forms of government have existed they have engendered confidential conversations, confidential documents and confidential materials. All forms of government must have trust in their employees and officers to preserve that degree of security which a government requires to operate effectively. Democracies tend to be more open than other forms of governments. Although some governments are more open than others, it nonetheless remains true that all governments must maintain some degree of security and confidentiality in order to function. The most open democracy still requires a high degree of security and confidentiality with regard to many matters including, for example, the defence of the realm or trade negotiations. The degree of security required will vary with the position and role of the government employee. The higher the position, the greater will be the access to sensitive information, and the greater the need for security.
Originally, it was the monarch that appointed and managed the public service. The power of appointment was historically a royal prerogative. The ever expanding role of public service led to the passage of legislation in the 1960s establishing the Treasury Board, the Public Service Commission and the Public Service Staff Relation Board. The role of these bodies was to manage and control the federal public service. Nonetheless, the power to grant or deny security clearances as a condition of appointment remained part of the royal prerogative or more appropriately, in our times, a function of management controlled by the Crown.
This principle was recognized in Lee v. Attorney General of Canada, [1981] 2 S.C.R. 90. That case specifically approved the reasons of Le Dain J.A. (as he then was) in the Federal Court of Appeal decision of Attorney General of Canada v. Murby, [1981] 1 F.C. 713. There it was found that the authority to require security clearance as a condition of appointment and the authority to determine whether such clearance should be granted were part of the management authority. It was held that these functions had not been excluded or reassigned by the Public Service Employment Act, R.S.C. 1970, c. P-32.
Furthermore, the Federal Court of Appeal noted that Cabinet Directive No. 35 ("C.D. 35") was a directive from the government concerning the exercise of this component of the management authority. It was confirmed that the deputy head or Deputy Minister bore the responsibility for making the decision as to security clearance in any particular case. Le Dain J. concluded that the prerogative power to grant security clearance was delegated to the Deputy Minister in accordance with the requirements of C.D. 35. That directive was superseded in 1987 by a similar one entitled "Security Policy of the Government of Canada" issued by the Treasury Board of Canada, under the authority of the Financial Administration Act, R.S.C. 1970, c. F-10.
Cabinet Directive No. 35 is not, of course, legislative in nature. Rather, it is an internal directive which instructs civil servants as to the manner in which the royal prerogative is to be exercised. Specifically, the directive requires that a security clearance is mandatory for anyone who will have access to classified material. It outlines the procedures for obtaining information about individuals from appropriate sources. Two paragraphs in C.D. 35 are of particular significance:
13.... If ... there is in the judgment of the deputy minister ... a reasonable doubt as to the degree of confidence which can be reposed in the subject, the granting of a security clearance will be delayed until the doubt has been resolved to the satisfaction of the deputy minister....
25.... The deputy head of department or agency will be responsible for granting or withholding a security clearance and will assume a continuing responsibility for a person's access to Top Secret, Secret and Confidential information.
It can thus be seen that before the Act came into existence, there was a system in place which ensured the security of the government.
B. The Canadian Security Intelligence Service Act
In 1984, the Canadian Security Intelligence Service Act was passed. It provided a statutory means for dealing with security matters in the public service. Part I of the Act established the Canadian Security Intelligence Service (CSIS). Part II provided for the judicial control of its operation. Part III applied to the control and review of CSIS through the Security Intelligence Review Committee. The Committee was given broad powers to investigate complaints by those individuals who were refused employment based on a denial of a security clearance.
The investigation pertaining to the denial of a security clearance may include a full hearing. At such a hearing, all parties are entitled to be represented by counsel, to call and examine witnesses and to make representations. Upon completion of the investigation, the Committee must provide the CSIS Director, the deputy head concerned, the Solicitor General of Canada and the complainant with a report "containing any recommendations that the Committee considers appropriate, and those findings of the investigation that the Committee considers it fit to report to the complainant".
This then is the background against which s. 52(2) of the Act should be considered. Consideration must now be given to the fundamental question of whether the "recommendations" of the Committee are binding upon the Deputy Minister.
Statutory Limitations on the Prerogative Power
It is beyond doubt that the prerogative power of the Crown can be abolished or limited by statute. Once a statute occupies the ground formerly occupied by the prerogative power, the Crown must comply with the terms of the statute. See, for example, Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 11. Thus, if the "recommendations" of the Committee, referred to in s. 52(2) , are interpreted as a decision binding upon the Deputy Minister, then the Act will limit the prerogative powers formerly exercised by the Deputy Minister.
The Interpretation of s. 52(2)
Positions of the Parties
The respondent and the intervening Committee contend that the Act introduces a three level system for dealing with security clearances. This system, as they see it, is based upon an interpretation of "recommendations" as a "binding decision". Their arguments proceed in this way. First, the Deputy Minister is solely responsible for granting or denying security clearance in accordance with C.D. 35, using the information received from CSIS. Second, if an individual lodges a complaint with the Committee, the Committee then conducts an investigation and reports its recommendations. Third, the Deputy Minister must give effect to the recommendations made by the Review Committee. In circumstances where the Deputy Minister considers fresh information which was not examined by the Review Committee, then the Deputy Minister may return to step one of the process and refuse a security clearance. At that point, the same three‑step process would again be set in motion.
On the other hand, the appellant submits that the Act does not relieve Deputy Ministers of their responsibility to grant or to deny security clearances. The appellant contends that the "recommendations" of the Committee are advisory only. Moreover, it is argued that the purpose of the investigation is to disclose to the complainant the reasons for denial of clearance and to provide the complainant with an opportunity to be heard.
Meaning of "Recommendations"
All parties are in agreement that in order to interpret "recommendations" in s. 52(2) , the Canadian Security Intelligence Service Act must be read as a whole in order to ascertain its aim and object. As well, it is accepted that when the words used in the statute are clear and unambiguous, no other step is needed to identify the intention of Parliament. See, for example, R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, at p. 630.
The respondent argues that the word "recommendations" should not automatically be given its ordinary meaning. Rather, it should be interpreted in the context of the statute. Great reliance is placed on the Australian case Myer Queenstown Garden Plaza Pty. Ltd. v. City of Port Adelaide (1975), 11 S.A.S.R. 504. In that case, it was found that in the context of a statute empowering the Governor to make regulations "on the recommendation" of a municipal authority or council, that the Governor's regulations must closely conform with the recommended draft. The Myer case is readily distinguishable from the case at hand. The wording of the legislation challenged in that case made it very clear that the "recommendation" had to be followed. The statute in the Myer case specifically contemplated some action being taken by one party "on the recommendation of" another party. By contrast, s. 52(2) does not concern itself with any action by a deputy head "on the recommendation" of the Committee.
The contention of the respondent should not, in my view, be accepted. The simple term "recommendations" should be given its ordinary meaning. "Recommendations" ordinarily means the offering of advice and should not be taken to mean a binding decision. I agree with the conclusion of Dubé J. of the Trial Division who noted, at p. 92, that:
The grammatical, natural and ordinary meaning of the word "recommendation" is not synonymous with "decision". The verb "to recommend" is defined in the Oxford English Dictionary as "to communicate or report, to inform". In Webster's Third New International Dictionary it is defined as "to mention or introduce as being worthy of acceptance, use, or trial; to make a recommendatory statement; to present with approval; to advise, counsel".
There is nothing in either the section or the Act as a whole which indicates that the word "recommendations" should have anything other than its usual meaning. The Committee's recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensure the accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion to consider. It is no more than that. The wording of this section would be strained by giving the statute any wider scope. It should never be forgotten that it is the Deputy Minister who is responsible, not simply for the granting of security clearance, but for the ongoing security in his department. It is an onerous responsibility that is cast upon the Deputy Minister. Accordingly, it is reasonable and appropriate that the final decision as to security clearance is left to the Deputy Minister, notwithstanding the recommendations of the Committee. The conclusion that the words in the statute are clear and unambiguous is sufficient to dispose of the appeal. Nevertheless, I should make a brief reference to two of the other issues raised.
Harmonious Interpretation of "Recommendations" within the Sections and the Act.
There is another basis for concluding that "recommendations" should be given its usual meaning in s. 52(2) .
The word is used in other provisions of the Act. Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act. Section 52(1) directs the Committee to provide the Minister and Director of CSIS with a report containing the findings with regard to s. 41 investigations and any "recommendations" that the Committee considers appropriate. A section 41 investigation stems from a complaint to the Committee "with respect to any act or thing done by" CSIS.
It would be obviously inappropriate to interpret "recommendations" in s. 52(1) as a binding decision. This is so, since it would result in the Committee encroaching on the management powers of CSIS. Clearly in s. 52(1) "recommendations" has its ordinary and plain meaning of advising or counselling. Parliament could not have intended the word "recommendations" in the subsequent subsection of the same section to receive a different interpretation. The word must have the same meaning in both subsections.
Was there Evidence Upon Which the Deputy Minister Could Conclude that the Respondent's Security Clearance Should be Denied
It is the respondent's position that the Deputy Minister had no evidence upon which he could reasonably have concluded that the respondent's security clearance should have been denied. I cannot accept this submission. It must be remembered that the Committee emphasized that its own conclusions were "entirely subjective". The Committee found that the respondent had in fact admitted to the unauthorized release of classified information while working for the Canadian International Development Agency. The Committee also determined that the respondent had lied to the CSIS investigators about the telex incidents. Thus, there was evidence upon which the Deputy Minister could conclude that the respondent's security clearance should be denied.
It is clear that the Deputy Minister, did, in fact, rely upon this evidence to support a clearance refusal. In a letter dated June 4, 1986, the Deputy Minister wrote to Mr. Thomson's solicitor and advised him that "the decision to deny security clearance is maintained". The letter also mentioned the report of the Review Committee. It can be readily inferred from this letter that the Deputy Minister maintained the clearance refusal only after considering the report. Further the Deputy Minister in his affidavit of September 5, 1986, explained, his reasons for continuing to deny security clearance. In paragraphs 17-19 of that affidavit he deposed that the refusal was based on "the said report from the Canadian Security Intelligence Service, even as commented upon or explained in the said report from the Security Intelligence Review Committee". This clearly indicates that the Deputy Minister made his decision only after considering the evidence of the Review Committee.
The Requirements of Natural Justice
This Court has repeatedly recognized the general common law principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653). It follows that the Deputy Minister was under a duty to comply with the principles of procedural fairness in the context of security clearance decision-making. Generally speaking, fairness requires that a party must have an adequate opportunity of knowing the case that must be met, of answering it and putting forward the party's own position. When all the surrounding circumstances are taken into account it is clear that the Deputy Minister fully satisfied these requirements.
Prior to the Review Committee hearing, Mr. Thomson had been apprised of the objections of the Deputy Minister in a document titled "Statement of Circumstances Giving Rise to the Denial of a Security Clearance to Robert Thomson by the Deputy Head of Agriculture Canada". This document listed the objections considered by the Deputy Minister in his clearance denial. Mr. Thomson was given a full opportunity to respond to the allegations against him at his hearing before the Review Committee. Despite his own explanations and the submissions made on his behalf, the Review Committee accepted that three of the five reasons for refusal in the above document were in fact well founded. It is thus apparent that Mr. Thomson was given proper notice and a full hearing in regard to the allegations which formed the basis of the Deputy Minister's decision. The requirements of natural justice have been satisfied.
Summary
The word "recommendations" in the context of s. 52(2) should receive its plain and ordinary meaning. It should not be taken to mean a final or binding decision. Consequently, s. 52(2) does not detract from the Deputy Minister's authority to make the ultimate decision regarding security clearance. This conclusion flows from the wording of s. 52(2). It is supported by the compelling policy reasons for ensuring government security, a duty which is the responsibility of each deputy head.
Further, the Deputy Minister clearly had evidence upon which he could base his conclusion that security clearance should not be granted. In those circumstances, a court should not interfere with that decision.
Disposition
In the result, I would allow the appeal and deny the applications for certiorari and mandamus.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'Heureux-Dubé J. (dissenting) -- I have read the reasons of my colleague Justice Cory and, with respect, I can agree neither with them nor with his conclusion. In my opinion, the Deputy Minister was bound to follow the "recommendations" of the Security Intelligence Review Committee (the "Committee") in the circumstances of the case at bar, largely for the reasons set forth by Stone J.A. for the unanimous Federal Court of Appeal, [1988] 3 F.C. 108.
The main issue in this case, as my colleague points out, is the interpretation of s. 52(2) of the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (the "Act") and, specifically, whether a Deputy Minister may ignore the recommendations of the Committee which has reviewed the security clearance of an applicant.
I agree with my colleague Cory J. that, to determine the meaning of any particular statutory provision, the act "must be read as a whole in order to ascertain its aim and object". While judges long ago might have thought that it was possible to confine their examination to the words of a particular provision alone, today it is well established that, in statutory interpretation, heed must be paid to the language used, the context of both the specific provision and the law itself, and the purpose or intent of the legislation. The current approach is aptly explained by Côté in The Interpretation of Legislation in Canada (2nd ed. 1991) at pp. 324:
Interpretation founded on text alone is unacceptable, if only because words have no meaning in themselves. Meaning flows at least partly from context, of which the statute's purpose is an integral element. Not only does the strictly literal approach ask more of language than it can offer, but it also overestimates the foresight and skill of the drafter. The separation of powers should not necessarily exclude collaboration between them. Drafters are not clairvoyant, they cannot anticipate all circumstances to which their texts will apply. Courts should do more than simply criticize, and the drafter should be able to count on their positive cooperation in fulfilling the goals of legislation. Lord Denning said that the judge, because of the special nature of his role, cannot change the fabric from which the law is woven, but he should have the right to iron out the creases.
The well known passage by Driedger in Construction of Statutes (2nd ed. 1983) at p. 87, cited with approval by Chief Justice Dickson in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, emphasises these points:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Emphasis added.]
Or, as Justice Pratte wrote in Cloutier v. The Queen, [1979] 2 S.C.R. 709, at p. 719:
A legislative provision should not be interpreted in isolation; i