T-2056-87
Ronald W. Swan and International Association of
Machinists and Aerospace Workers (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, the
Minister of Transport and the Attorney General
of Canada (Defendants)
INDEXED AS: SWAN V. CANADA (T.D.)
Trial Division, Reed J.—Ottawa, November 27,
1989 and February 9, 1990.
Air law — Validity of security clearance program carried
out by CSIS on non-government employees working in
restricted access areas at Canadian airports — Program
established by Minister of Transport under ss. 4(2) and 4(3)
Aerodrome Security Regulations adopted pursuant to s.
3.7(2)(c) Aeronautics Act — Ss. 4(2) and 4(3) invalid as
unauthorized subdelegation — S. 3.7(2)(c) not granting Gover
nor in Council authority to subdelegate power to establish
security measures — Security clearance program therefore
ultra vires — S. 3.7(4) Aeronautics Act not conferring on
Minister authority to establish security measures by policy
directive.
Security intelligence — Security clearance program carried
out by CSIS at request of Department of Transport on non-
government employees working in restricted access areas at
Canadian airports — Authority of CSIS under s. 13(1) Secu
rity Intelligence Service Act to carry out investigation —
Authority extending to persons not government employees or
prospective government employees, or linked by contract or
prospective contract with government — Program invalid as
established pursuant to unauthorized subdelegation of
authority.
Constitutional law — Charter of Rights — Life, liberty and
security — Security clearance program carried out by CSIS on
non-government employees working in restricted access areas
at Canadian airports — Whether program contrary to Charter
— Employees' "right to work" interests not characterized as
"life, liberty and security of person" — Security of person not
including right to be free from investigations.
Constitutional law — Charter of Rights — Criminal process
— Search and seizure — Security clearance program carried
out by CSIS on non-government employees working in
restricted access areas at Canadian airports — Investigatory
activities not search and seizure — Fingerprinting not unrea
sonable search and seizure — Concomitantly saved by Charter
s. 1.
The union representing some 15,000 persons employed by
airlines and service companies challenged the validity of the
security clearance program carried out by the Canadian Secu
rity Intelligence Service (CSIS) at the request of the Depart
ment of Transport, on non-government employees working in
restricted access areas at certain Canadian airports. The pro
gram was established by the Minister of Transport pursuant to
the authority purportedly conferred by subsections 4(2) and
4(3) of the Aerodrome Security Regulations. For security
clearance purposes, government and non-government
employees are required to provide personal history information,
a set of fingerprints and a document signifying consent to a
security assessment. The clearance procedure involves three
checks: criminal records, credit bureau and a review by CSIS of
its own files. This may be followed by a field investigation
involving interviews with employers, co-workers, friends, rela
tives and neighbours.
The action raised five issues: (1) whether CSIS has authority
to conduct these investigations; (2) whether the program is
ultra vires as established under regulatory provisions which
constitute an unauthorized subdelegation of authority; (3)
whether the program is ultra vires the powers of the Minister
as set out in the Aeronautics Act; (4) whether the program is
contrary to the Charter; (5) whether the program, if within the
authority of the Minister, is void for uncertainty and
discrimination.
Held, the relief sought by the plaintiffs should be granted.
(1) Authority of CSIS to carry out investigation
Subsection 13(1) of the Security Intelligence Service Act
which states that the Service may provide security assessments
to departments of the government, is clear and unambiguous. It
gives CSIS the authority to conduct investigations and assess
ments when requested to do so by a department of the Canadi-
an government in so far as the security clearances are required
for a bona fide and properly authorized departmental purpose.
Subsection 13(1) cannot be read in a restrictive manner: the
authority it confers on CSIS extends to individuals who are not
government employees or prospective government employees, or
linked by contract or prospective contract with the government.
(2) Aerodrome Security Regulations—Unauthorized Sub-
delegation
Under paragraph 3.7(2)(c) of the Aeronautics Act, the Gov
ernor in Council may make regulations "requiring any operator
of an aerodrome to carry out ... such security measures as may
be prescribed by the regulations or such security measures
necessary for those purposes as may be approved by the Minis
ter in accordance with the regulations". Subsection 4(2) of the
Regulations provides that the "Minister may approve security
measures relating" to a number of enumerated subject-matters,
including restricted access areas. Subsection 4(3) gives the
Minister authority to "approve any other security measures he
considers necessary".
Subsections 4(2) and (3) constitute an unauthorized subdele-
gation. Paragraph 3.7(2)(c) of the Act does not authorize the
Governor in Council to subdelegate to the Minister the power
to establish security measures. The phrase "in accordance with
the regulations" in paragraph 3.7(2)(c) refers to the Minister's
authority to approve security measures for the purposes of that
paragraph only within the context of a regulatory framework
set out by the Governor in Council. The words "for those
purposes" must be read as a condition on the Minister's author
ity. They refer to the purposes of the regulations; they do not
refer to the preambular part of subsection 3.7(2).
Subsections 4(2) and (3) of the Aerodrome Security Regu
lations being ultra vires the powers conferred on the Governor
in Council by paragraph 3.7(2)(c), it follows that the security
clearance program is also ultra vires.
(3) Aeronautics Act—Ministerial Authority
Subsection 3.7(4) of the Aeronautics Act does not authorize
the Minister to establish by policy directive what the statute
contemplates will be prescribed by the Governor in Council by
regulation. It confers authority on the Minister to carry out
security measures which have been prescribed by regulation
and any ancillary measures which the Minister considers neces
sary for the purposes of the regulations.
The French version of subsection 3.7(4) does not contain the
words "for those purposes". It merely refers to the fact that the
measures which the Minister may establish can be either
additional to or in lieu of those imposed upon the operator of an
aerodrome by paragraph 3.7(2)(c). However, a review of the
legislative history clearly shows that it was contemplated that
the Governor in Council would establish, by regulation, the
general rules in accordance with which the security measures
will be imposed. Then, operators of aerodromes, or owners and
operators of aircraft may be required to implement those
security measures. Alternatively, the Minister is authorized by
subsection 3.7(4) to implement the security mesures established
by regulation.
(4) Canadian Charter of Rights and Freedoms
No argument could be based on either section 7 or 8 of the
Charter. The plaintiffs' interest in the present case does not fall
within "life", "liberty" or "security of the person". The case at
bar was to be distinguished from those wherein the "right to
liberty" flowed from the right of geographic movement. The
scheme in question does not restrict anyone's liberty of move
ment. Rather, the plaintiffs' situation fell within the "right to
work" cases in which it has been held that pure economic rights
or the "right to work" are not protected by section 7.
Nor does the plaintiffs' interest fall within "security of the
person". The plaintiffs' situation cannot be characterized as
"state imposed psychological trauma". "Security of the person"
does not include a right to be free from investigations of the
type under challenge, even assuming that the concept encom
passes a right to privacy.
The investigatory activities carried out by CSIS are not
"searches and seizures" under Charter section 8. Investigatory
activities do not constitute an invasion of constitutionally pro
tected privacy when those activities involve no forceful interfer
ence with the person or property of the individual concerned.
The requirement that fingerprints be taken does not consti
tute an unreasonable search and seizure. It is the type of
requirement which falls within the exemption set out in
section 1 of the Charter.
(5) Ministerial Policy
The submission that the Minister's policy document should
be subject to the same kind of scrutiny subordinate legislation
would ordinarily receive and that as a consequence the security
clearance program could be challenged on the grounds of
vagueness, uncertainty, and discrimination, although compell
ing, was academic since the Act provides that security meas
ures are to be prescribed by regulation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Aerodrome Security Regulations, SOR/87-452, s.
4 ( 1 ),( 2 ),( 3 ).
Aeronautics Act, R.S.C. 1970, c. A-3 (as am. by S.C.
1973-74, c. 20, s. 1; 1974-75-76, c. 100, s. 1; 1985, c.
28, s. 1), ss. 3.4(2), 3.7(2)(c),(4).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 7, 8.
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 2, 12, 13, 14, 15, 16, 34, 42.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Beare, [1988] 2 S.C.R. 387; (1988), 55 D.L.R.
(4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C.
(3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205.
DISTINGUISHED:
Re Mia and Medical Services Commission of British
Columbia (1985), 17 D.L.R. (4th) 385; 61 B.C.L.R. 273;
15 Admin. L.R. 265; 16 C.R.R. 233 (S.C.); Wilson v.
British Columbia (Medical Services Commission)
(1988), 53 D.L.R. (4th) 171 (B.C.C.A.); R. v. Morgen-
taler, [1988] 1 S.C.R. 30; (1988), 63 O.R. (2d) 281; 44
D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62 C.R. (3d) 1; 31
C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R.
137; 14 C.R.R. 13; 58 N.R. 1; R. v. Dyment, [1988] 2
S.C.R. 417; (1988), 73 Nfld. & P.E.I.R. 13; 55 D.L.R.
(4th) 503; 229 A.P.R. 13; 45 C.C.C. (3d) 244; 66 C.R.
(3d) 348; 10 M.V.R. (2d) 1; 89 N.R. 249.
REFERRED TO:
Brant Dairy Co. Ltd. et al. v. Milk Commission of
Ontario et al., [1973] S.C.R. 131; (1972), 30 D.L.R. (3d)
559; Canadian Institute of Public Real Estate Compa
nies et al. v. Corporation of the City of Toronto, [1979] 2
S.C.R. 2; (1979), 7 M.P.L.R. 39; 8 O.M.B.R. 385; 25
N.R. 108; Vic Restaurant v. The City of Montreal,
[1959] S.C.R. 58; (1959), 17 D.L.R. (2d) 81; Air
Canada v. City of Dorval, [1985] 1 S.C.R. 861; (1985),
19 D.L.R. (4th) 401; 13 Admin. L.R. 42; 59 N.R. 177; R.
v. Sandler, [1971] 3 O.R. 614; (1971), 21 D.L.R. (3d)
286 (H.C.); Re One Hundred and Eleven Group Enter
prises Ltd. and City of Toronto et al. (1974), 6 O.R. (2d)
210; 52 D.L.R. (3d) 338 (Div. Ct.); Montréal (City of) v.
Arcade Amusements Inc. et al., [1985] 1 S.C.R. 368;
(1985), 14 D.L.R. (4th) 161; 29 M.P.L.R. 220; 58 N.R.
339; City of Sillery v. Canadian Petrofina Limited et al.,
[1970] S.C.R. 533; R. v. Big M Drug Mart Ltd. et al.,
[1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R.
(4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97;
18 C.C.C. (3d) 385; 13 C.R.R. 64; 85 C.L.L.C. 14,023;
58 N.R. 81.
AUTHORS CITED
Canada. Debates of the Senate, vol. III, 1st Sess., 30th
Parl., May 18, 1976.
Canada. House of Commons. Standing Committee on
Transport and Communications. Minutes of Proceed
ings and Evidence, Issue No. 17 (July 26, 1973).
Canada. House of Commons Debates, vol. III, 1st Sess.,
29th Parl. 22 Eliz. II, 1973, at pages 3446-3447.
Canada. House of Commons Debates, vol. II, 2nd Sess.,
32nd Parl., 33 Eliz. II, 1984, at pages 1272-1274.
Canada. Security Intelligence Review Committee.
Annual Report 1988-1989. Ottawa: Minister of
Supply and Services Canada, 1989.
Canada. Security Intelligence Review Committee.
Annual Report 1987-1988. Ottawa: Minister of
Supply and Services Canada, 1988.
de Smith, S. A. Judicial Review of Administrative
Action, 3rd ed. London: Stevens & Sons Ltd., 1973.
COUNSEL:
Andrew J. Raven and Phillip G. Hunt for
plaintiffs.
Duff F. Friesen, Q.C. for defendants.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
REED J.: The plaintiffs challenge the validity of
the investigative process being used by the Depart
ment of Transport to check the security reliability
of non-government employees, working in restrict
ed access areas, in airports. Part of that investiga
tive process (security clearance program) is car
ried out by the Canadian Security Intelligence
Service (CSIS).
The plaintiffs challenge the validity of the pro
gram on five grounds: (1) CSIS does not have
authority to conduct investigations into the lives of
the employees concerned because it has been given
no legislative mandate to do so; (2) subsections
4(2) and (3) of the Aerodrome Security Regula
tions, SOR/87-452, constitute an unauthorized
subdelegatk n of authority and it is pursuant to
that authority that the program has been estab
lished; (3) the security clearance program is ultra
vires the powers of the Minister as set out in the
Aeronautics Act, R.S.C. 1970, c. A-3 as amended
by S.C. 1985, c. 28; (4) if the security clearance
program is within the authority of the Minister, he
has exercised it by setting up an unauthorized
subdelegation or has established legislative type
rules which are void for uncertainty and dis
criminatory; (5) the security clearance program as
being applied is contrary to the Canadian Charter
of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)].
Security Clearance Program
The security clearance program was announced
on September 16, 1987. It was implemented two
weeks later on September 30, 1987. The program
was established in order to improve security meas
ures at some Canadian airports. The program
applies at ten Canadian international airports and
at twenty-two domestic airports.'
The security measures in place in Canadian
airports prior to September 30, 1987 required that
certain areas be designated "restricted access
areas". This designation is applied to most areas
beyond the passenger check-in counter and par
ticularly to areas where access to aircraft or to
items carried on board aircraft can be obtained.
Personnel working in the restricted access areas
are required to wear passes in a visible fashion on
the exterior of their clothing. The pass identifies
the person by photograph and name as well as
containing other identifying information. This pass
system has been in place in the relevant Canadian
airports since 1972. It is my understanding that
the establishment of such a system was recom
mended by ICAO (the International Civil Avia
tion Organization) in 1971. 2
Persons working in restricted access areas
include federal government employees, foreign na
tionals who work for either foreign governments or
foreign airlines, and individuals, in the position of
the plaintiff Swan, who are Canadian citizens
working for non-government employers. There are
approximately 80,000 persons employed at the
airports to whom the program applies, e.g., Lester
B. Pearson (23,000); Vancouver (13,000); Dorval
(8,000). Such individuals include airline flight
crews, individuals employed to screen passengers
and baggages, airline passenger agents, baggage
handlers, cleaners, mechanics, technicians and
other service personnel such as aircraft refuellers
and catering personnel. The plaintiff, the Interna
tional Association of Machinists and Aerospace
1 The main security threat to aeroplanes prior to 1985 was
from political hijacking. Between 1985 and 1987 terrorist
activities took a different approach; acts of sabotage increased.
This resulted in a number of explosions aboard aircraft, many
of them occurring when the aircraft was in flight. Two of these
incidents, both occurring in 1985, involved known or suspected
sabotage emanating from Canada.
2 The 1987 (3rd ed.) of the 1971 ICAO Manual which is in
evidence, as appendix 2 to the agreed statement of facts,
recommends such a restricted access area pass system.
Workers, is the certified bargaining agent for
approximately 15,000 persons who are employed
by the airlines and service companies.
As of September 30, 1987, upon commencement
of the security clearance program which is chal
lenged in this case it became necessary for all
individuals, except foreign nationals working for a
foreign government or a foreign airline, to be
"security cleared" before they could obtain a pass
to work in the restricted access areas. For this
purpose an individual is required to provide certain
personal history information, a set of fingerprints,
and a document signifying consent to a security
assessment being carried out by CSIS. The infor
mation is sent by the relevant airport pass control
office to an official in the Department of Trans-
port—the Director of Intelligence, Personnel Secu
rity and Security Training (referred to in some of
the documentation as ABB). He, or more likely
someone in his office, checks the information for
completeness and legibility and then sends it to
CSIS.
A security assessment is done by CSIS and a
recommendation made to the Department of
Transport respecting the individual's security reli
ability. The security investigation, which CSIS
carries out at the request of the Department of
Transport, is of the type carried out to screen
federal government employees whose jobs involve
access to sensitive information or government
assets. The investigation is carried out pursuant to
a policy set out in a document entitled "Security
Policy of the Government of Canada". I quote
some of the initial paragraphs of that document:
.1.1 Objective and Scope
This policy prescribes a security system that will effectively
safeguard classified information and other assets sensitive in
the national interest, and protect other sensitive information
and sensitive and valuable assets.
.1.3 Application
This policy applies to all departments and other institutions
and portions of the Public Service of Canada listed in Schedule
I, Parts I and II of the Public Service Staff Relations Act,
including the Canadian Armed Forces, the Royal Canadian
Mounted Police and the Canadian Security Intelligence
Service.
Security screening services and certain other institutions that
need access to classified information and other assets sensitive
to the national interest are also governed by the requirements
of this policy that apply to the national interest. Coverage is
arranged through agreements between the President of the
Treasury Board and the Ministers responsible for these institu
tions. Agreements shall include a statement of the measures to
implement safeguards in the national interest within the institu
tions concerned. Effective January 1, 1987, only institutions
subject to such agreements shall have the access to information,
other assets and services described above.
Except as otherwise noted, all appointments, assignments and
contracts for goods and services are subject to the provisions of
the policy.
.1.4 Authorities and cancellations
This policy is issued under the authority of the Financial
Administration Act, by which the Treasury Board may act on
all matters relating to administrative and personnel policy in
the Public Service of Canada, and of a decision of Cabinet in
January, 1986 regarding security measures. Treasury Board
minute 802143 applies.
The policy replaces the 1956 Privy Council Office document
entitled "Security of Information in the Public Service of
Canada"; Cabinet Directive 35 of 1%3, relating to security
screening; Chapter 440.8 EDP: Security; and section .6 of
Chapter 435, Telecommunications administration, of the Trea
sury Board Administrative policy manual. It also replaces the
policies published in Treasury Board Circulars 1986-26, 1987-
10 and 1987-31.
The government security policy establishes three
levels of security clearance.' The level of clearance
required for any given employee depends on the
nature of that employee's job. The more sensitive
the information or assets to which the civil servant
will have access, the higher the level of security
clearance required. The first, and lowest, level of
clearance was chosen by government officials as
appropriate to be applied to both government and
non-government employees working in the restrict
ed access areas of the airports.
The procedure, followed by CSIS for this level
of investigation, initially involves three checks. The
first is a criminal records check. CSIS sends a
copy of the individual's fingerprints to the RCMP
and that agency ascertains whether the person has
ever been convicted of any offence or charged with
3 The government security policy refers to three types of
reliability assessments (basic reliability check; enhance reliabil
ity check; security clearance). The last of these, security clear
ance, is itself divided into three categories of assessment.
any offence which had been withdrawn or dis
missed. Information with respect to these is sent
back to CSIS by the RCMP together with the
copy of the individual's fingerprints which had
been provided to the RCMP by CSIS. The prints
are retained, by CSIS, on the individual's CSIS
file for as long as security checks on that individu
al are required. The security clearance assessment
is updated every five years during the life of
employment. When an individual leaves employ
ment for which security clearance is required,
CSIS keeps the prints for a further period of two
years and then destroys them. CSIS, when doing
its criminal records check, also obtains information
as to whether the individual has a pardoned crimi
nal record.
The second type of check done by CSIS is to
review its own files (an "indices check"). CSIS
checks to see if the individual is named in its
records. The information in those records relates to
activities that are considered to be threats to the
security of Canada. The concept "threat to the
security of Canada" is defined in section 2 of the
Canadian Security Intelligence Service Act [S.C.
1984, c. 21]. One definition of that concept is
"activities within or relating to Canada directed
toward or in support of the threat or use of acts of
serious violence against persons or property for the
purpose of achieving a political objective".
The third type of check which CSIS carries out
is a Credit Bureau check. The results of the Credit
Bureau check could cause CSIS to conduct a more
thorough investigation of the individual's back
ground. This might include inquiries, for example,
to determine: whether the individual had a history
of bad debts; whether a person's bankruptcy was
due to financial irresponsibility; whether or not the
indebtedness was aggravated or caused by gam
bling, alcohol, drug abuse, or other factors indicat
ing poor judgment or financial irresponsibility;
whether the individual had a history or pattern of
living beyond that person's means; whether or not
the credit bureau results indicated deceit or decep
tion in obtaining credit; and whether or not the
individual enjoyed unexplained affluence.
If the three checks described above raise con
cerns in the mind of the CSIS officer doing the
security assessment, then, a field investigation is
done. This will likely involve interviewing co-work
ers, employers, ex-employers, friends, relatives and
neighbours of the individual.
The decision to recommend a denial of security
clearance is, at heart, as it probably must be, a
judgment decision made on the basis of a number
of factors which the CSIS officer weighs. Mr.
Pearcy, Deputy Director General, Government
Screening, Securities Screening Branch of CSIS
gave evidence:
Well, there are many factors about an individual's behaviour
that we will consider before we provide our security assessment
and providing a security clearance recommendation. The rele
vant factors would include a disregard for the law, a violation
of security regulations, the unauthorized disclosure of classified
information, dishonesty, mental or emotional disorders, exces
sive indebtedness or reoccurring financial difficulties or unex
plained wealth, alcohol or illicit substance abuse; just any
number of things about a person's behaviour that may give rise
to security concern.
CSIS never makes a recommendation against
granting security clearance without doing a field
investigation and, as a matter of policy, giving the
individual an interview so that he or she has an
opportunity to address the concerns which are
leading CSIS to recommend denial of the clear
ance. In addition, once a recommendation for
denial is determined to be appropriate, that assess
ment is sent for review to legal counsel and to the
Director of the Security Service. A denial of clear
ance is never recommended without the Director's
personal approval. The recommendation respecting
security clearance, or denial of clearance, is then
sent back to the requesting Department—in this
case Transport Canada. If the recommendation is
positive an official of the Department of Transport
stamps the appropriate document and the airport
pass office is notified that a pass may be issued. If
the recommendation is negative a number of offi
cials, or their delegates, who comprise the Trans
port Canada Security Clearance Review Board
review the documentation and make a decision on
whether or not to recommend that a pass be
issued. The individual concerned does not appear
before that Board nor is he notified of its proceed
ings. The Board makes its recommendation to the
Deputy Head of the Department of Transport and
he makes the final decision as to whether clearance
will be granted.
As has already been noted, the security inves
tigative process was devised for federal govern
ment employees or persons contracting with the
government whose jobs require that they have
access to sensitive classified government informa
tion or assets. There are, however, some differ
ences with respect to the personal history informa
tion required from a present or prospective federal
government employee and that required from
someone seeking an airport restricted access area
pass. The former are required to provide ten years
of personal history information while the latter are
required to provide only five; the former are
required to provide identification information con
cerning all immediate relatives over age 16 (18),
while the latter are only required to provide such
information about a spouse. These more limited
requirements arose because the Department of
Transport had originally contemplated establishing
its own security clearance system for the restricted
access areas. The more limited personal history
forms were created for that purpose and they were
retained after the decision had been taken to use
the government security clearance system rather
than one established by the Department of
Transport.
Officials within the Department of Transport
(and other departments) decided that one system
of security clearance should apply to both govern
ment and non-government employees working in
the restricted access areas. I quote from the tran
script of the evidence of Mr. Pearcy:
A:...
The argument at the time, both by representatives of the
Service and the Treasury Board's Secretariat, was that no there
should only be one security policy for the Government of
Canada in respect to security clearances required by people
who had access to classified information or installations critical
to the national interest.
So the airport policy was changed from what it was original
ly envisaged as a mere check of our records and made to
comply with the security policy for the Government of Canada.
Q: So a decision was made to utilize the Government Secu
rity Policy in the application of the security screening that was
applicable at the airports, even where non-government
employees were involved?
A: Yes.
Q: Now, who made that decision? Where will I find that? Is
that recorded anywhere?
A: The decision was taken at a meeting I would say in the
fall of 1987. A meeting I wasn't at but I know attended by a
senior representative of the Service, a representative of the
Treasury Board Secretariat, Department of Transport, and, I
think Privy Council Office.
Now, if you mean is there an official document recording
that decision, I know of no official document.
It is clear that if an individual does not obtain a
security clearance the consequences for him or her
are severe. He or she cannot work in the areas
concerned. This would, in many cases, result in a
loss of employment. Mr. Milmine, a witness who
appeared before me, had worked as a baggage
handler for 28 years when the clearance program
was instituted. Had he not been able to obtain a
pass (and there was no evidence that he had not)
the consequences would have been severe. The
consequences which flow from failure to obtain a
clearance also relate to the "consent", given by the
employees, allowing CSIS to do a security investi
gation with respect to them. While such "consent"
may be real for prospective employees, it surely
will be less so for those who are already employed
and who would lose their jobs if no pass was
obtained.
Foreign nationals, other than landed immi
grants, working in the restricted access areas are
not subject to this type of security investigation.
According to the agreed statement of facts, infor
mation which could form the basis of such an
investigation would not be available from all for
eign governments. Foreign nationals are "vouched
for" by their employer. Also, since they require an
"employment authorization" to work in Canada,
some background checks may have been carried
out at the behest of the Department of Employ
ment and Immigration. These could have arisen
because, upon application for an employment
authorization, foreign nationals are interviewed by
a Canadian visa officer abroad and are required to
provide personal history information, including
information as to whether they have ever been
convicted of a criminal offence. If the visa officer
becomes suspicious of the person, a CSIS immi
gration officer is contacted to do further investiga
tion. In addition, nationals of certain "high risk"
countries are more or less automatically screened
by CSIS before an employment authorization is
granted. And, lastly, counsel for the defendants
notes that, upon arrival in this country, foreign
nationals are interviewed by an immigration offi
cer at the border.
Authority of CSIS
The plaintiffs' first argument is that CSIS has
no statutory authority to carry out the investiga
tion. It is argued that there is no authority flowing
from subsection 13(1) of the Canadian Security
Intelligence Service Act, S.C. 1984, c. 21 in this
regard. The relevant sections are as follows:
12. The Service shall collect, by investigation or otherwise,
to the extent that it is strictly necessary, and analyze and retain
information and intelligence respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada and, in relation thereto, shall report to and
advise the Government of Canada.
13. (1) The Service may provide security assessments to
departments of the Government of Canada.
(2) The Service may, with the approval of the Minister,
enter into an arrangement with
(a) the government of a province or any department thereof,
or
(b) any police force in a province, with the approval of the
Minister responsible for policing in the province,
authorizing the Service to provide security assessments.
14. The Service may
(a) advise any Minister of the Crown on matters relating to
the security of Canada, or
(b) provide any Minister of the Crown with information
relating to security matters or criminal activities,
that is relevant to the exercise of any power or the performance
of any duty or function by that Minister under the Citizenship
Act or the Immigration Act. 1976.
15. The Service may conduct such investigations as are
required for the purpose of providing security assessments
pursuant to section 13 or advice pursuant to section 14.
16. (1) Subject to this section, the Service may, in relation
to the defence of Canada or the conduct of the international
affairs of Canada, assist the Minister of National Defence or
the Secretary of State for External Affairs, within Canada, in
the collection of information or intelligence relating to the
capabilities, intentions or activities of
(a) any foreign state or group of foreign states; or
(b) any person other than
(i) a Canadian citizen,
(ii) a permanent resident within the meaning of the
Immigration Act, 1976, or
(iii) a corporation incorporated by or under an Act of
Parliament or of the legislature of a province.
42. (1) Where, by reason only of the denial of a security
clearance required by the Government of Canada, a decision is
made by a deputy head to deny employment to an individual or
to dismiss, demote or transfer an individual or to deny a
promotion or transfer to an individual, the deputy head shall
send, within ten days after the decision is made, a notice
informing the individual of the denial of the security clearance.
(2) Where, by reason only of the denial of a security clear
ance required by the Government of Canada to be given in
respect of an individual, a decision is made to deny the
individual or any other person a contract to provide goods or
services to the Government of Canada, the deputy head con
cerned shall send, within ten days after the decision is made, a
notice informing the individual and, where applicable, the other
person of the denial of the security clearance.
(3) The Review Committee shall receive and investigate a
complaint from
(a) any individual referred to in subsection (1) who has been
denied a security clearance; or
(b) any person who has been denied a contract to provide
goods or services to the Government of Canada by reason
only of the denial of a security clearance in respect of that
person or any individual.
Counsel for the plaintiffs argues that subsection
13(1) only authorizes CSIS to make security
assessments for a department of the Government
of Canada with respect to employees or prospec
tive employees of that department or with respect
to individuals (or persons working for individuals)
who contract with that department. It is argued
that this interpretation follows from: (1) the pur
pose and context in which the Act was passed—
particularly as expressed in the debates, by the
responsible Minister, in the House of Commons;
(2) the general scheme of the Act, including provi-
sions where specific departments are singled out
for mention; (3) the provisions of section 42 relat
ing to review procedures.
It is difficult to accept that the purpose of the
Act was to allow CSIS to do security clearances
only on those persons who are employees or pros
pective employees of the government or who are
linked contractually in an analogous fashion. On
its face subsection 13 (1) is not limited in these
terms.
The debates to which reference was made, in my
view, do not assist the plaintiffs. Even if reference
to them is appropriate for the purposes relied
upon, the comments therein relate to "security
intelligence activities" not "security assessments"
or security clearances. I quote some of the
passages:
We want to restrict the mandate of our Security Service in
order to define more clearly, and in greater detail, the scope of
our security intelligence activities. We want to indicate the
exact powers the Service will be authorized to use, and we want
to specify the conditions and limits of use of those powers. We
want these conditions to be defined within a detailed frame
work that will ensure full respect for the law, and we intend to
establish a non-governmental and fully independent committee
that will monitor the justification of security intelligence activi
ties and report regularly to the Solicitor General of Canada and
to Parliament.
The purpose of this Bill is therefore, to a large extent, to
provide a new set of guarantees and controls that do no exist at
the present time, in order to protect the rights of Canadians
against undue interference.
It became clear early in the decade that interested Canadians
want the Solicitor General to know exactly what the security
intelligence service is doing at all times and to be responsible
down to the detail of every warrant issued by the court for
intrusive investigative action against a suspected threat to the
security of Canada. The public and the Senate committee made
it clear that only in this way is there adequate accountability
for the service.
The new organization must at least be told, in the form of
clear and unambiguous legislation, what it is supposed to do.
That is why the proposed mandate is such an important part of
Bill C-9. This mandate will be a definition by Parliament of the
scope and limits of security intelligence activities. For
employees of the Security Intelligence Service, it will be the
definitive guide to their duties and also constitute a clear point
of reference for assessing the efficiency and accuracy of secu
rity intelligence activities.
There must be no doubt that Canadians are assured the basic
right to engage in political dissent, and to advocate radical
change in social practices, government policies or political
institutions, without being subject to surveillance for so doing.
The McDonald Commission describes the exercise of this right
as "the lifeblood of a vibrant democracy", and we could not
tolerate any system that threatened to interfere with this right.
... to avoid any possibility of misleading interpretation, no
matter [sic] how remote, we have clearly indicated in the Bill
that no one can be investigated by the Service only because he
or she has taken part in activities related to lawful advocacy,
protest or dissent.
I should also point out that the mandate, as reworded in the
Bill before you, limits all security investigations to those that
are "strictly necessary", in the interests of national security.
This is a clear signal that the mandate is to be interpreted
narrowly. Only if it is demonstrably necessary for national
security will an investigation be supported by this mandate.
[Underlining added.]
(Canada, House of Commons Debates, vol. II,
1984, at pages 1272-1274 (February 10, 1984).)
Security intelligence activities of the kind
addressed in the debates are not, in my view, the
same as security clearance investigations which are
undertaken only with the knowledge and "con-
sent" of the person being assessed. A security
clearance assessment, as noted above, is a checking
of the existing files (criminal records, the CSIS
files and the Credit Bureau files), rather than the
gathering of security intelligence information. It
may be that a field investigation, when one is
carried out, is of a hybrid nature but I doubt that
that activity was what was contemplated in the
House of Commons Debates quoted above. In any
event, whether or not security clearance activities
were contemplated in the debates is not relevant
since I find the wording of subsection 13(1) to be
free of ambiguity. The very terms of the debates
indicate that the authority which CSIS was to be
granted would be expressed in the "form of clear
and unambiguous legislation". The text of subsec
tion 13 (1) is quite clear and unambiguous. It is not
on its face limited in the way counsel suggests.
Counsel argues that the general scheme of the
Act indicates that subsection 13(1) only applies to
present or prospective government employees or to
persons linked by contract or prospective contract
with the government because when a broader cate
gory of authority is intended, it is expressly set out.
For example, paragraph 14(b) accords CSIS au
thority to provide information to those Ministers
who have responsibilities under the Citizenship
Act [S.C. 1974-75-76, c. 108] or under the Immi
gration Act, 1976 [S.C. 1976-77, c. 52]. And
section 16 expressly prohibits CSIS from providing
information, respecting Canadian citizens, to the
Minister of National Defence or to the Secretary
of State for External Affairs. Neither of these
provisions, in my view, assist the plaintiffs' argu
ment. Section 14 does not relate to security clear
ances. Paragraph 14(a) relates to advising any
Minister of the Crown on matters relating to
security ("The Service may advise any Minister of
the Crown") and paragraph 14(b) authorizes the
provision of information relating to security mat
ters or criminal activities to the Minister con
cerned ("The Service may provide any Minister
... with information relating to"). Section 16
authorizes the Service to "assist ... in the collec
tion of information" (underlining added) at the
behest of specific Ministers without restriction that
the information relate to security purposes. Section
13, as has already been noted, deals with a differ
ent type of activity. It provides that "The Service
may provide security assessments" (underlining
added). Sections 13, 14 and 16 all relate to differ
ent activities. To use the limitations, which exist in
sections 14 and 16, as an interpretive limitation on
section 13 is not, in my view, a convincing method
of statutory interpretation.
Counsel for the plaintiffs' third argument is that
subsection 13(1) was intended to be read in the
restrictive way because the review mechanism, set
out in section 42, only covers individuals who are
government employees or prospective government
employees or who are linked by contract or pros
pective contract with a government department.
Such individuals have a right to have the denial of
a security clearance reviewed by the Security
Intelligence Review Committee (SIRC). That
Committee is established by section 34 of the
Canadian Security Intelligence Service Act and is
composed of members who are independent of
CSIS and independent of government depart
ments.
There is no doubt that section 42 is limited as
described. Reviews by SIRC are only possible for
employees, prospective employees and persons
linked by contract or prospective contract with the
government. But it is reading too much into sub
section 13(1) to assert that, because of the limited
scope of section 42, subsection 13(1) must be
similarly limited. I do not think section 42 can be
used in that manner.
With respect to the section 42 review provisions,
the Security Intelligence Review Committee in its
1988-1989 Annual Report, at pages 65-66, noted
that there was a deficiency with respect to the
scope of review available under section 42:
Security Clearances
Without a security clearance, many employment opportuni-
ties—both in the public and private sectors—are effectively
lost. The CSIS Act allows only some affected persons to
complain to the Committee (s. 42).
First, the person must have been denied employment, dis
missed, demoted or transferred, or denied a promotion or a
transfer in government or else be refused a contract to supply
goods and services to government for the same reason. As we
noted in our 1987-88 Annual Report (page 56), the present
wording means that when a person is fired or not hired by a
contractor in order to remove an obstacle to doing business with
government, he or she has no effective redress. In addition,
where certain activities require the use of federal facilities, such
as airports, which are denied to individuals lacking a security
clearance, some persons will be unemployable. They too have
no right to complain to the Committee.
We believe that the right to complain to the Review Committee
should be available to anyone who is denied a security clear
ance. There should not be categories of Canadians or landed
immigrants who do not have the right to complain to SIRC
when they are denied a security clearance, while others have
the right to a full investigation by the Committee. It is a fact of
life in the modern world that the denial of a security clearance
usually has an immediate effect on an individual's employment;
it always has a long term effect on the individual's employment
potential.
In any event, above and beyond the serious effects on employ
ment, no Canadian or landed immigrant should be put in the
position of having his or her loyalty questioned to such an
extent that a security clearance is refused without having an
automatic right to request an investigation by the Review
Committee.
The amendments we propose would provide the right to an
investigation by the Review Committee to any Canadian or
landed immigrant denied a security clearance at the level
required.
16. We recommend that subsections 42(1) and (2) be
repealed and replaced by:
"42(1) When a security clearance, required by the Govern
ment of Canada for an individual for any purpose, is denied
or is granted at a lower level than that required or is
downgraded to a lower level than that required, the deputy
head or other person making that decision shall send, within
ten days after the decision is made, a notice informing the
individual of the denial of a security clearance at the
required level, and of the individual's right under this section
to complain to the Security Intelligence Review Committee."
The remainder of section 42 would require minor consequential
amendments.
A similar recommendation had been made by the
Security Intelligence Review Committee in its
Annual Report of the previous year, 1987-1988, at
page 56.
Counsel for the defendants argues that subsec
tion 13 (1) is clear and unambiguous and that it
authorizes CSIS to conduct security clearances
when requested to do so by a department of the
Government of Canada. He argues that this
breadth of authority is necessary because it is
sometimes important to provide clearance assess
ments with respect to individuals who have access
to sensitive materials or government assets but
who are not employees, prospective employees or
linked by contract or prospective contract to a
government department.
In my view, subsection 13 (1) is clear and unam
biguous. It does give CSIS the broader authority
claimed. In so far as a security clearance is
required for a bona fide and properly authorized
departmental purpose, CSIS has authority to carry
out the investigation and assessment required for
the clearance. This is so, even when the individual
for whom the security clearance is being sought is
not an employee, prospective employee or linked
by contract or prospective contract with the
government.
Aerodrome Security Regulations—Unauthorized
Subdelegation
The security clearance program which is under
challenge is set out in a document entitled "Air-
port Restricted Area Access Clearance Program".
That document purports to have been issued pur
suant to the Minister's authority flowing from
subsections 4(2) and 4(3) of the Aerodrome Secu
rity Regulations. Those subsections purport to
have been issued pursuant to paragraph 3.7(2)(c)
of the Aeronautics Act, R.S.C. 1970, c. A-3, as
amended by S.C. 1985, c. 28, s. 1.
Paragraph 3.7(2)(c) of the Aeronautics Act
provides:
3.7...
(2) For the purposes of protecting passengers, crew mem
bers, aircraft and aerodromes and other aviation facilities,
preventing unlawful interference with civil aviation and ensur
ing that appropriate action is taken where that interference
occurs or is likely to occur, the Governor in Council may make
regulations
(c) requiring any operator of an aerodrome or person
carrying on any activity at an aerodrome to establish,
maintain and carry out, at the aerodrome and at aviation
facilities at the aerodrome or elsewhere under his control,
such security measures as may be prescribed by the regula
tions or such security measures necessary for those pur
poses as may be approved by the Minister in accordance
with the regulations. [Underlining added.]
The relevant provisions of the Aerodrome Security
Regulations (SOR/87-452, issued July 30, 1987)
provide:
4. (1) Every aerodrome operator shall establish, maintain
and carry out at the aerodrome the security measures approved
by the Minister in respect of the level of security threat that
exists at that aerodrome.
(2) The Minister may approve security measures in respect
of an aerodrome relating to
(a) the establishment of restricted areas and the equipment,
facilities and procedures used to prevent unauthorized access
to restricted areas, including
(i) the location of the restricted areas,
(ii) barriers,
(iii) access control systems,
(iv) restricted area pass and personnel identification sys
tems and any security clearance procedures related
thereto,
(v) restricted area vehicle pass and identification systems,
(vi) the location and wording of signs identifying restrict
ed areas, and
(vii) the procedures used within a restricted area to pre
vent persons who have not been screened from having
access to persons who have been screened;
(3) The Minister may approve any other security measures
he considers necessary for the purposes of preventing unlawful
interference with civil aviation and ensuring that appropriate
action is taken where that interference occurs or is likely to
occur. [Underlining added.]
The plaintiffs argue that subsections (2) and (3)
of section 4 of the Aerodrome Security Regula
tions, in so far as they purport to confer authority
on the Minister to approve security measures, are
invalid. It is argued that those subsections consti
tute an unauthorized subdelegation: they do no
more than identify subject matters with respect to
which the Minister may approve security meas
ures. It is argued that this is an unauthorized
subdelegation because the Governor in Council is
not granted such subdelegating authority by the
Act. Paragraph 3.7(2)(c) authorizes the Governor
in Council to itself make regulations concerning
security measures not to subdelegate that author
ity to the Minister. Reference was made to de
Smith, Judicial Review of Administrative Action,
3rd ed. (London: Stevens & Sons Ltd., 1973) at
pages 263-269; Brant Dairy Co. Ltd. et al. v. Milk
Commission of Ontario et al., [1973] S.C.R. 131,
at pages 146-147; Canadian Institute of Public
Real Estate Companies et al. v. Corporation of
the City of Toronto, [1979] 2 S.C.R. 2; Vic Res
taurant v. The City of Montreal, [1959] S.C.R.
58, at pages 82 and 99-100; and Air Canada v.
City of Dorval, [1985] 1 S.C.R. 861.
I agree with this argument. Paragraph 3.7(2)(c)
confers authority on the Governor in Council. He
is empowered to impose on operators of aero-
dromes or on persons carrying on activities at
aerodromes the duty to undertake certain obliga
tions. The obligations that may be imposed are
that those persons must carry out such security
measures as are prescribed by the regulations and
certain security measures as may be approved by
the Minister "in accordance with the regulations".
If the intention had been to authorize the Gover
nor in Council, by paragraph 3.7(2)(c), to pre
scribe the purposes for which the Minister might
establish security measures, I think the wording
would have been clearer. For example, it would
have been expressly stated that "the Minister may
establish security measures by way of policy direc
tive for such purposes as are prescribed by regula
tion" or "the Minister may approve security meas
ures for such purposes as are prescribed by
regulations". See, for example, in this regard, sub
section 3.4(2) of the Act which subsection does
confer on the Governor in Council authority to
subdelegate to the Minister.
Paragraph 3.7(2)(c) does not confer authority
on the Minister but it refers to authority which the
Minister is presumed to have. That reference is to
"such security measures necessary for those pur
poses as may be approved by the Minister in
accordance with the regulations". I read this
description as meaning that the Minister has au
thority to approve security measures for the pur
poses of paragraph 3.7(2)(c) only within the con
text of a regulatory framework set out by the
Governor in Council. I do not read the reference as
referring to some more unbridled authority which
belongs to the Minister. I think counsel for the
plaintiffs' argument that paragraph 3.7(2)(c) con
templates a framework of regulation, within which
the Minister is to exercise his authority, is correct.
I read the words "for those purposes" in the phrase
"measures necessary for those purposes" as a con
dition on the Minister's authority. In my view the
phrase refers to the purposes of the regulations. I
do not read the phrase "for those purposes" as a
reference back to the preambular part of subsec
tion 3.7(2). The phrase would be redundant if
interpreted in that fashion.
Accordingly, in my view, subsections 4(2) and
(3) of the Aerodrome Security Regulations, SOR/
87-452 are ultra vires the authority granted to the
Governor in Council by paragraph 3.7(2)(c) of the
Act. This may be enough to dispose of the dispute
in this case because the Airport Restricted Access
Area Clearance Program was issued pursuant to
subsections 4(2) and 4(3). The consequence flow
ing from the invalidity of subsections 4(2) and
4(3) may be that any action taken pursuant to an
authority purportedly conferred by those provi
sions is also ultra vires. Nevertheless, I will consid
er the other arguments which have been presented.
Aeronautics Act—Ministerial Authority
Even if subsections 4(2) and 4(3) of the Aero-
drome Security Regulations are ultra vires, the
question arises as to whether the Minister,
independently of any authority purportedly given
to him by those provisions, can require compliance
with the terms of the clearance policy. That is,
does the Minister have administrative or legislative
authority flowing from the provisions of the Act
itself which enables him to impose on the plaintiffs
the requirements of the security clearance pro
gram? As I understand the argument in this
regard, it is based on subsection 3.7(4) of the
Aeronautics Act. It is necessary to set out both the
French and the English versions of subsection
3.7(4) since, on first reading, they seem to differ:
3.7...
(4) For the purposes described in subsection (2), the
Minister may establish, maintain and carry out, at aerodromes,
on aircraft and in respect of any aviation facility or service, in
lieu of or in addition to the security measures required by
regulations made under subsection (2), such security measures
as may be prescribed by regulations of the Governor in Council
or such security measures as the Minister considers necessary
for those purposes.
Subsection 3.7(4) confers authority on the Min
ister. It is necessary to consider the scope and
nature of that authority. The authority conferred
is an authority to establish or carry out certain
types of security measures, it is not an authority to
prescribe (by regulation, or other legislative type
instrument), measures to be imposed by others or
by the Minister himself. A hasty reading of sub
section 3.7(4), particularly the French version,
seems to accord the Minister authority to establish
security measures by administrative action equal
in scope to those which might be prescribed by the
Governor in Council by règulation. Such a result
does not, however, accord well with the other
provisions of the Act. For example, subsection
3.3(1) allows the Minister to subdelegate to mem-
bers of the RCMP or to any other person any of
his powers under the Act. It is hard to conclude
that such a broad subdelegation of authority would
have been prescribed if the Minister's powers
under subsection 3.7(4) were equal in scope to the
regulation making powers of the Governor in
Council.
As has been noted, the English and French
versions of subsection 3.7(4) differ. They are both
equally authoritative. The English version of the
subsection contains the phrase "for those pur
poses" in an analogous fashion to paragraph
3.7(2)(c). This phrase conditions the powers of the
Minister, under subsection 3.7(4) as it does in
paragraph 3.7(2)(c). I do not think that the
phrase, in either provision, refers to the preambu-
lar purposes i.e., protecting passengers, crew mem
bers, aircraft, etc. In the case of subsection 3.7(4),
this is particularly apparent because that subsec
tion starts by conditioning the whole of what fol
lows by reference to the preambular purposes of
subsection 3.7(2). A second reference would be
redundant. I read the phrase "necessary for those
purposes" as meaning that the Minister has au
thority to establish measures necessary for the
purposes of carrying out the security measures
which have been prescribed by regulation.
The French version of course does not contain
that condition. It merely refers to the fact that the
measures which the Minister may establish can be
either additional to or in lieu of those imposed
upon the operator of an aerodrome by paragraph
3.7(2)(c). In this regard, a review of the legislative
history makes it clear, in my view, that what is
contemplated is that the Governor in Council will
establish by regulation the general rules in accord
ance with which the security measures will be
imposed. Then, operators of aerodromes, or owners
and operators of aircraft, as the case might be,
may be required to implement those security meas
ures. Alternatively, subsection 3.7(4) authorizes
the Minister to implement the security measures
established by regulation.
Until 1973 there were no regulations dealing
with aerodrome or air carrier security. The
Aeronautics Act was amended in July of 1973 (An
Act to Amend the Aeronautics Act, S.C. 1973-74,
c. 20, s. 1.) Section 5.1 was added to the Act.
Section 5.1 is the precursor to section 3.7. Section
5.1 applied only to owners and operators of air
craft (not to aerodrome operators):
5.1 (1) For the protection of passengers, crews and aircraft,
the Governor in Council may make regulations requiring the
owners or operators of aircraft registered in Canada to estab
lish, maintain and carry out, at aerodromes and on aircraft,
such security measures as may be prescribed by the regulations
for the observation, inspection and search of persons, personal
belongings, baggage, goods and cargo.
(2) For the protection of passengers, crews and aircraft, the
Minister may, in respect of flights from aerodromes in Canada,
establish, maintain and carry out, at aerodromes and on air
craft, in lieu of or in addition to the security measures required
pursuant to subsection (1), such security measures as may be
prescribed by regulations of the Governor in Council for the
observation, inspection and search of persons, personal belong
ings, baggage goods and cargo.
These amendments were added, by Bill C-128,
to authorize the searching of persons and baggage
before either was allowed aboard aircraft. The
comments of members of the opposition on second
reading of Bill C-128 are interesting. They indi
cate a concern that, while the Bill should be
adopted, it is important that an infringement of
this kind, on the privacy of Canadian citizens,
should be authorized only by statute (Canada,
House of Commons Debates, vol. III, 1973 at
pages 3446-3447).
The Fifth Report of the Commons Standing
Committee on Transport and Communications
contains the report of the study of Bill C-128. It
indicates that the Committee members were great
ly concerned with the costs of the security meas
ures and how they would be recovered. Thus, the
legislative provisions allowed the Governor in
Council to make regulations requiring aircraft
owners and operators to establish, maintain and
carry out security measures, i.e., force them to do
so at their own expense. However, should the
operators not comply, or should their measures
prove to be unsatisfactory to the Minister, the
Minister could be empowered to carry out the
proper security measures himself. This is made
clear by the debates in the Senate and in the
Commons with respect to a later amendment to
the Act, Bill S-34. In June 1976, a further amend
ment to the Aeronautics Act was made by that Bill
[S.C. 1974-75-76, c. 100] and subsections 5.1(1)
and (2), quoted above, were repealed and replaced
with provisions similar in scope but which provi
sions also placed obligations on operators and
owners of aircraft registered outside of Canada
(the present paragraph 3.7(2)(b)). See in this
regard Senate Debates of May 18, 1976 at page
2131.
Subsequent to the 1973 and 1976 amendments,
the provisions concerning security measures
remained intact until June 28, 1985. At that time
the present wording of section 3.7 was adopted.
The changes made broadened the scope of obliga
tions so that aerodrome operators and persons
working at airports could be required to implement
security measures. Also, the qualification limiting
those measures to "the observation, inspection and
search of persons, personal belongings, baggage,
goods and cargo" was removed. But there is no
indication that it was intended by the changed
wording to accord to the Minister authority to
establish security measures by policy directive.
In my view, subsection 3.7(4) authorizes the
Minister to carry out security measures which
have been established by regulation and any ancil
lary measures which the Minister considers neces
sary for the purposes of the regulations but it does
not authorize the Minister to establish by policy
directive what the statute contemplates will be
prescribed by the Governor in Council by
regulation.
Ministerial Policy—Void for Uncertainty—Dis-
criminatory—Ultra Vires?
The Airport Restricted Area Access Clearance
Program, which was established by the Minister,
became effective on September 30, 1987. As has
been noted, it is stated to have been issued pursu-
ant to the Aerodrome Security Regulations. The
relevant portions of that document state:
1. A study of airline and airport security, completed in Sep-
tember 1985, recommended that any person who has a require
ment to access the restricted areas of an airport, or an aircraft,
be checked against security and criminal indices. It was also
recommended that foreign nationals be vouched for by an
official of the company they represent.
2. The Aerodrome Security Regulations authorize the Minister
of Transport to approve security measures in respect of an
aerodrome relating to the location of restricted areas, restricted
area passes, personnel identification systems and any security
clearance procedures related thereto. The requirements of the
Airport Restricted Area Access Clearance Program (ARRACP)
as set out in this document are approved security measures for
the purpose of the Aerodrome Security Regulations.
POLICY
5. All persons issued a permanent airport restricted area pass
(i.e. a pass issued other than on a "temporary" or "visitor"
basis) shall undergo criminal records checks and security
indices checks as a condition of issuance.
PROCEDURES
10. All requests for "Airport Restricted Area Access Clear
ance" will be initiated by the Airport (General) Manager or the
Regional Director General Airports and processed only through
the: Director, Intelligence, COMSEC and Security Training
(ABB) Transport Canada...
I 1. The issue and renewal of permanent airport restricted area
passes shall be as follows:
a) New Applicants—shall not be issued a permanent pass
until the Airport Restricted Area Access Clearance is grant
ed by ABB. New applicants may be issued a restricted area
pass on a temporary basis provided they are subject to
security controls.
b) Renewal of Permanent Pass—the existing permanent
passes may be renewed provided the holder has completed
the required documentation to permit the security checks by
ABB. Renewed passes are subject to revocation, pending the
results of the criminal and security indices checks.
c) anyone who refuses to complete the necessary docmenta-
tion [sic] shall not be issued a permanent restricted area
pass.
12. Foreign nationals assigned duties at Canadian airports by
foreign companies or governments may be issued a permanent
pass providing the application is supplemented by a letter
signed by a senior official of the company or government,
vouching for the foreign national. The application will be
supplemented by a copy of Immigration form 1102, 1208, 1263
or 1264, which contains the terms and conditions of entry and
stay in Canada, the period of validity and may include authori
zation to work.
13. A person's Airport Restricted Area Access Clearance shall
be updated at least once every five years, or more frequently for
cause, when approved by ABB. Managers/supervisors are
required to report promptly to ABB, any action on the part of an
employee which could impact on his/her suitability to hold an
airport restricted area pass.
ROLE AND RESPONSIBILITIES
15. The roles and responsibilities will be shared as follows:
a. Director, Security Policy, Planning and Legislative Pro
grams (ABA)
Develops and amends all policies, standards and legislation
relating to the airport restricted area pass system and related
security clearance procedures.
b. Director, Intelligence, COMSEC and Security Training
(ABB)
Develops and amends procedures, coordinates and controls
the security screening program. Communicates with the na
tional agencies to fulfill [sic] investigative requirements.
Following examination of the information obtained concern
ing an individual and any required consultation with the
appropriate manager, determines whether there are any risks
attached to granting the person an Airport Restricted Area
Access Clearance. Recommendations to deny an Airport
Restricted Area Access Clearance will be referred to the
Transport Canada Security Clearance Review Board. The
Review Board will examine all available information and
either grant the Airport Restricted Area Access Clearance or
will recommend to the Deputy Minister that it be denied.
ABB informs the Regional Director General Airports or the
AP(G)M of the results, as applicable.
c. Regional Director General Airports and Airport (Gener-
al) Manager
Initiates and implements the Airport Restricted Area Access
Clearance Program, identifies the airport positions which
require such security clearance under the program, and
ensures requirements are noted on each staffing action
request prior to submission to RMPA. Obtains the required
documentation from those persons requiring access to
restricted areas, assists and/or provides input in order to
resolve unusual cases, and actions the decision rendered by
ABB, AB or the Deputy Minister. In cases where an airport
restricted area access clearance is denied or revoked, advises
the employee of his/her right to appeal, reassigns the
employee to other duties on a temporary basis, makes every
reasonable effort to find alternate employment at the Airport
or with the Department in the same location, seeks the advice
and guidance of the RMPA.
FORMS
17. All applicants for permanent restricted area passes are
required to produce a completed Application for Airport
Restricted Area Pass, form ... complete the "Personal History
Form - Airport Personnel" ... provide fingerprint impressions
... and sign Treasury Board form "Consent to Disclosure of
Personal Information", ... Such disclosures are governed by
the provisions of the Privacy Act. One copy of each form is
required by ABB to conduct the security checks...
DENIAL/REVOCATION
25. Adverse information on applicants for or holders of airport
restricted area passes is reviewed by the ,Transport Canada
Security Clearance Review Board for subsequent decision on
denial or revocation by the Deputy Minister Transport Canada.
REDRESS
26. Employees of the federal government, candidates for
employment with the federal government and contractors to the
federal government who are not satisfied with the decision
rendered by the Deputy Minister may appeal to the Security
Intelligence Review Committee (slaC) in accordance with s. 42
of the Canadian Security Intelligence Act. [This text of para
graph 26 is the version as amended August 30, 1988.] [Under-
lining added.]
The plaintiffs are offended by the Airport
Restricted Area Access Clearance Program
because most of the essential elements which they
find troublesome are nowhere expressly stated:
they are required to give their fingerprints; a
standard of security clearance developed for other
purposes is being applied to them; CSIS has been
asked to do the security investigations and poten
tially may interview their employer, ex-employers,
friends and neighbours; the RCMP is asked to do
an assessment; CSIS retains their fingerprints on
its files (during the life of their employment). All
of these requirements are being imposed without
any express articulation in either the statute, the
regulations or the Minister's policy document.
In addition, the plaintiffs complain that funda
mental aspects of the investigative process can be
changed at will. The changes that could be made,
without even changing the Minister's policy docu
ment, include: the standards which are required to
be met to obtain security clearance; whether or not
to use the government security policy as a stand-
ard; if the government policy is used, which level
of security clearance will be chosen as applicable;
the involvement of CSIS; the disposition of the
copies of their fingerprints and on which files they
are kept; the extent to which a person is accorded
a right to know why a security clearance is denied;
whether or not a person who is denied a security
clearance (when they are not a government
employee or a prospective government employee)
will be given an opportunity to respond to the
reasons being given; and if such a right of review is
given, what body or group of individuals will do
that review.
The plaintiffs argue that, had the investigation
procedures been set out in regulations, they would
have received, at least, some pre-enactment scruti
ny. The plaintiffs note that the government issued
a Citizens Code of Regulatory Fairness, on March
6, 1986, which states, in part:
When a government regulates, it limits the freedom of the
individual. In a democratic country, it follows that the citizen
should have a full opportunity to be informed about and
participate in regulatory decisions. Moreover, the citizen is
entitled to know the government's explicit policy and criteria
for exercising regulatory power in order to have a basis for
"regulating the regulators" and judging the regulatory
performance of the government.
2. The government will encourage and facilitate a full opportu
nity for consultation and participation by Canadians in the
federal regulatory process.
3. The government will provide Canadians with adequate early
notice of possible regulatory initiatives.
6. The rules, sanctions, processes, and actions of regulatory
authorities will be securely founded in law. [Underlining
added.]
The Citizens Code of Regulatory Fairness does
not, of course, have the force of law. It is a
hortatory statement only. It is of little comfort to
the plaintiffs.
The defendants' respond to the plaintiffs' refer
ences to the Code, and to the argument that, if the
investigative procedures had been set out in a
legislative enactment (either statute or regulation),
they would have received more scrutiny, by stating
that the Minister is, at all times, willing to consid-
er suggestions for changes to the Airport Restrict
ed Area Access Security Clearance Program.
Counsel for the plaintiffs argues that the minis
terial policy document constitutes an unauthorized
subdelegation and is void for being vague and
uncertain. As has already been noted, there are no
standards established setting out what criteria are
to be used to determine the security reliability of
individuals granted or denied restricted access area
passes; no where is the role of CSIS described; the
basic elements of the policy could be changed at
will. These are all left in the hands of the various
government officials. It is also argued that there is
a discriminatory aspect to the policy because gov
ernment employees have a right to a review of a
denial of security clearance, by SIRC, and non-
government employees do not. Also foreign nation
als are not required to undergo the clearance
procedures which are applied to citizens and
landed immigrants.
In addition, it is argued that the policy docu
ment sets up a procedure which is defective
because it allows a decision to be taken denying a
person security clearance (and therefore a loss of
employment) without the procedural safeguards
required by natural justice. With respect to this
last, counsel for the defendants argues that the
plaintiffs' concern, that there are insufficient pro
cedural safeguards to ensure natural justice, is
premature. He notes that this is not a case where
there has been, in fact, any denial of natural
justice and, that if such were to occur, then, the
individual concerned could seek review pursuant to
the section 28 of the Federal Court Act, R.S.C.,
1985, c. F-7 to have the decision struck down.
As I understand counsel's argument, it is that
the Minister's policy document should be con
sidered as analogous to a by-law and subjected to
the same kind of scrutiny that that type of subordi
nate legislation would ordinarily receive. Refer
ence was made to R. v. Sandler, [1971] 3 O.R.
614 (H.C.), Re One Hundred and Eleven Group
Enterprises Ltd. and City of Toronto et al. (1974),
6. O.R. (2d) 210 (Div. Ct.), Montréal (City of) v.
Arcade Amusements Inc. et al., [1985] 1 S.C.R.
368 and City of Sillery v. Canadian Petrofina
Limited et al., [1970] S.C.R. 533. It is argued
that, if the provisions of the policy document were
set out in regulations, they could be challenged as
being void for vagueness and uncertainty, as being
discriminatory, and as setting up a review proce
dure which pays insufficient attention to consider
ation of natural justice.
I find the plaintiffs' argument compelling. At
the very least it seems to me that if a minister is
given authority, equal to the Governor in Council,
to establish by policy directive what the Governor
in Council can do by regulation then the Minister's
policy document should be subject to the same
scrutiny as would occur in the case of regulations.
As I understand the jurisprudence, however, it is
that such considerations apply only if the authority
conferred on a Minister is legislative in nature;
they do not apply when that authority is adminis
trative. I have been referred to no authority that
allows administrative authority to be scrutinized in
the way counsel for the plaintiffs suggests (apart
from the doctrine of reasonable expectations which
does not apply in this case). Since, as has already
been noted, I do not interpret the Aeronautics Act
as conferring on the Minister authority to establish
by policy directive security measures of the kind in
issue in this case, I am relieved of the necessity of
deciding this issue. It is my view that the relevant
provisions of the Act clearly contemplate that the
general principles of the various security measures
to be imposed would be prescribed by regulation.
Accordingly, it is not necessary to consider this
argument further.
Canadian Charter of Rights and Freedoms
Counsel argues that subsections 3.7(2) and (4)
of the Aeronautics Act or the relevant sections of
the Aerodrome Security Regulations or the Air
port Restricted Area - Access Clearance Program
are invalid as being contrary to sections 7 and 8 of
the Charter:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable
search or seizure.
It is clear from cases such as R. v. Big M Drug
Mart Ltd. et al., [1985] 1 S.C.R. 295 and others
that one is to take a purposive approach when
interpreting the Charter and that the concept
"fundamental justice" in section 7 includes both
procedural and substantive due process. There is
no disagreement between counsel in this regard.
I have no difficulty accepting the argument that
the program in question would not meet the test of
"fundamental justice" if it were subject to section
7 of the Charter. The program's essential elements
are not set out; it is vague and leaves substantial
scope for arbitrary conduct; it contains no express
safeguards to ensure procedural due process.
Nevertheless, it is difficult to found an argument
on either section 7 or section 8 of the Charter. It is
difficult to find that a Charter "interest" has been
abrogated. It is difficult to base an argument on
section 7 because it is difficult to characterize the
interests of the employees as falling within "life"
or "liberty" or "security of the person". It is
difficult to mount a section 8 argument because it
seems inappropriate to characterize the investiga
tive activity being carried out by CSIS as a
"search or seizure".
With respect to the section 7 argument, counsel
invites me to characterize the plaintiffs' interest in
this case as "liberty" on the same basis as that
used in Re Mia and Medical Services Commission
of British Columbia (1985), 17 D.L.R. (4th) 385
(B.C.S.C.) and Wilson v. British Columbia
(Medical Services Commission) (1988), 53 D.L.R.
(4th) 171 (B.C.C.A.). Those cases dealt with
actions taken by the Medical Services Commission
pursuant to its authority to "directly operate and
administer" the provincial medical care insurance
plan. In order to collect fees under the provincial
medical care insurance plan a doctor had to obtain
a billing number. In order to encourage physicians
to practise in the less popular areas of the province
the Commission refused to give billing numbers to
new practitioners, in an area, if it determined that
there was an oversupply of physicians in that
region. In the Mia case, Chief Justice McEachern
said, at pages 411-412:
Some authors have suggested that "liberty" in s. 7 is only
concerned with actual physical liberty from captivity and not
human conduct or activity; that it does not relate to economic
matters; or that its meaning can be restricted in various ways.
I am aware that, generally speaking, American courts have
been reluctant to interfere in the legislative settlement of
economic problems. I accept that as a general rule, but I am
not concerned with duly enacted legislation in this case, and
even if I were there are....
Rights we have enjoyed for centuries include the right to
pursue a calling or profession for which we are qualified, and to
move freely throughout the realm for that purpose. [Underlin-
ing added.]
It is clear from that decision that the right to
liberty found by the Court did not flow from a
right to work or to engage in a certain type of
employment but rather the right of geographical
movement, guaranteed interprovincially by
section 6 of the Charter, which right of movement
was inhibited by the British Columbia Commis
sion's billing system.
In the Wilson case, at page 182, the Court
characterized the issue as follows:
... whether "liberty" in s. 7 is broad enough to encompass the
opportunity of a qualified and licensed doctor to practise
medicine in British Columbia without restraint as to place, time
or purpose, even though there is an incidental economic compo
nent to the right being asserted. [Underlining added.]
A review of the jurisprudence follows on pages
183-187 and the Court concludes at pages
186-187:
To summarize: "Liberty" within the measuring of s. 7 is not
confined to mere freedom from bodily restraint. It does not,
however, extend to protect property or pure economic rights. It
may embrace individual freedom of movement, including the
right to choose one's occupation and where to pursue it, subject
to the right of the state to impose, in accordance with the
principles of fundamental justice, legitimate and reasonable
restrictions on the activities of individuals.
The trial judge has characterized the issue as "right to work"
(a purely economic question), when he should have directed his
attention to a more important aspect of liberty, the right to
pursue a livelihood or profession (a matter concerning one's
dignity and sense of self worth).
The government has said, in effect, that they cannot practise
without a practitioner number, and that any number that is
granted will restrict their movements. A geographic restriction
will determine their place of residence, and a locum tenens
number will provide only a temporary opportunity to practise
and will necessitate movement from place to place, and from
office to office. [Underlining added.]
In my view, these cases do not help the plain
tiffs. The scheme which exists in this case does not
constrain anyone's liberty of movement. There is
no restriction of geographic movement. The plain
tiffs' situation falls more readily into the "right to
work" cases, discussed in the above jurisprudence,
in which it has been held that pure economic rights
or the "right to work" do not fall under section 7.
Counsel argues that the concept "security of the
person" in section 7 includes a right to privacy and
that the plaintiffs' rights in this sense have been
violated. Reference was made to the decisions in
R. v. Morgentaler, [1988] 1 S.C.R. 30 and Singh
et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177 and R. v. Dyment,
[1988] 2 S.C.R. 417. The Morgentaler case, of
course, dealt with the imposition of criminal sanc
tions for performing an abortion. The decisions of
Mr. Justice Lamer and Chief Justice Dickson are
summarized in the headnote with respect to the
type of interests which fall under section 7 [at
pages 32-33]:
State interference with bodily integrity and serious state-
imposed psychological stress, at least in the criminal law con
text, constitutes a breach of security of the person ... Forcing a
woman, by threat of criminal sanction, to carry a foetus to term
unless she meets certain criteria unrelated to her own priorities
and aspirations, is a profound interference with a woman's body
and thus an infringement of security of the person.
The decisions of Mr. Justice Beetz and Mr. Justice
Estey are summarized as follows [at page 34]:
"Security of the person" within the meaning of s. 7 of the
Charter must include a right of access to medical treatment for
a condition representing a danger to life or health without fear
of criminal sanction. If an act of Parliament forces a pregnant
woman whose life or health is in danger to choose between, on
the one hand, the commission of a crime to obtain effective and
timely medical treatment and, on the other hand, inadequate
treatment or no treatment at all, her right to security of the
person has been violated.
In the Singh case the interest involved was the
physical threat of individuals who might be
returned to countries where there life and physical
security would be in danger.
I cannot characterize the interest which plain
tiffs have as coming within the scope of either the
Morgentaler or Singh decisions. Certainly, their
situation cannot be characterized as a "state
imposed psychological trauma" (see page 55 of the
Morgentaler decision). The plaintiffs are clearly
offended that CSIS officials are being authorized
to collect considerable information concerning
their personal lives and that such officials might
interview their neighbours and friends. I do not
think, however, that it can be said that "security of
the person" includes a right to be free from such
investigations, even if that concept includes, as
counsel argues, a right to privacy. The jurispru
dence, at least up until now, has not gone that far.
The Dyment case dealt with a section 8 Charter
argument. It concerned a situation in which a
doctor had taken a blood sample from an uncon
scious patient and given it to a police officer. Mr.
Justice La Forest, at pages 426 to 430 said:
... the effect of the common law right against unreasonable
searches and seizures was the protection of individual privacy.
Viewed in this light, it should not be cause for surprise that a
constitutionally enshrined right against unreasonable search
and seizure should be construed in terms of that underlying
purpose unrestrained now by the technical tools originally
devised for securing that purpose. However that may be, this
Court in Hunter v. Southam Inc. clearly held, in Dickson J.'s
words, that the purpose of s. 8 "is ... to protect individuals
from unjustified state intrusions upon their privacy" (supra, p.
160) and that it should be interpreted broadly to achieve that
end, uninhibited by the historical accoutrements that gave it
birth. [Underlining added.]
The foregoing approach is altogether fitting for a constitu
tional document enshrined at the time when, Westin tells us,
society has come to realize that privacy is at the heart of liberty
in a modern state; see Alan F. Westin, Privacy and Freedom
(1970), pp. 349-50. Grounded in man's physical and moral
autonomy, privacy is essential for the well-being of the
individual. For this reason alone, it is worthy of constitutional
protection, but it also has profound significance for the public
order. The restraints imposed on government to pry into the
lives of the citizen go to the essence of a democratic state.
Claims to privacy must, of course, be balanced against other
societal needs, and in particular law enforcement, and that is
what s. 8 is intended to achieve. As Dickson J. put it in Hunter
v. Southam Inc., supra, at pp. 159-60:
The guarantee of security from unreasonable search and
seizure only protects a reasonable expectation. This limita
tion on the right guaranteed by s. 8, whether it is expressed
negatively as freedom from "unreasonable" search and sei
zure, or positively as an entitlement to a "reasonable" expec
tation of privacy, indicates that an assessment must be made
as to whether in a particular situation the public's interest in
being left alone by government must give way to the govern
ment's interest in intruding on the individual's privacy in
order to advance its goals, notably those of law enforcement.
Finally, there is privacy in relation to information. This too is
based on the notion of the dignity and integrity of the individu
al. As the Task Force put it (p. 13): "This notion of privacy
derives from the assumption that all information about a person
is in a fundamental way his own, for him to communicate or
retain for himself as he sees fit." In modern society, especially,
retention of information about oneself is extremely important.
We may, for one reason or another, wish or be compelled to
reveal such information, but situations abound where the
reasonable expectations of the individual that the information
shall remain confidential to the persons to whom, and restricted
to the purposes for which it is divulged, must be protected.
Governments at all levels have in recent years recognized this
and have devised rules and regulations to restrict the uses of
information collected by them to those for which it was
obtained; see, for example, the Privacy Act, S.C. 1980-81-82-
83,c. Ill.
One further general point must be made, and that is that if
the privacy of the individual is to be protected, we cannot
afford to wait to vindicate it only after it has been violated.
This is inherent in the notion of being secure against unreason
able searches and seizures. Invasions of privacy must be pre
vented, and where privacy is outweighed by other societal
claims, there must be clear rules setting forth the conditions in
which it can be violated....
I do not read these comments as going so far as
to categorize investigatory activities by the police
as an invasion of constitutionally protected privacy
when that activity involves no forceful interference
with the person or property of the individual con
cerned (or of other individuals). I do not think that
the investigatory activities which are being carried
on in this case can be classified as either searches
or seizures under section 8 or as falling within
section 7 as part of a concept of a right to privacy
(assuming a right to privacy is encompassed by the
concept "security of the person" in that section).
Counsel argues, however, that the taking of
fingerprints from the plaintiffs was an unreason
able search and seizure. An analogy can be drawn
to the taking of the blood sample from the patient
in the Dyment case. He argues that this "search
and seizure" cannot be seen as consensual given
the circumstances under which the prints were
taken. The Supreme Court dealt with the taking of
fingerprints, as a possible search and seizure, in R.
v. Beare, [1988] 2 S.C.R. 387. At page 414, Mr.
Justice La Forest stated:
Section 8 guarantees the right to be secure against unreason
able search and seizure. Assuming fingerprinting can be looked
upon as a search (a view which has been rejected in those cases
that have considered it: see R. v. McGregor (1983), 3 C.C.C.
(3d) 200 (Ont. H.C.), and Re M. H. and The Queen (No. 2)
(1984), 17 C.C.C. (3d) 443 (Alta. Q.B.); affd without written
reasons (1985), 21 C.C.C. (3d) 384 (Alta. C.A.), leave to
appeal to this Court granted September 19, 1985, [1985] 2
S.C.R. ix), it seems clear that fingerprinting would not be
unreasonable in the present cases for the same reasons that it
does not violate the principles of fundamental justice.
In my view, even if the taking of the fingerprints
in the present case were not consensual, I still
could not find the requirement that they be given
an unreasonable one. I do not think it would be an
unreasonable search and seizure. Concomitantly, I
think it is clearly the type of requirement which
could be characterized as a reasonable limit pre
scribed by law as can be demonstrably justified in
a free and democratic society. It would therefore
fall within the exemption set out in section 1 of the
Canadian Charter of Rights and Freedoms.
For the reasons given an order will issue grant
ing the plaintiffs the relief sought.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.