2014 FCA 56, 2014 FCA 56

A-431-12 2014 FCA 56 Canada (Minister of Transport, Infrastructure and Communities) ( Appellant ) v. Jagjit Singh Farwaha ( Respondent ) Indexed as: Canada (Transport, Infrastructure and Communities) v. Farwaha Federal Court of Appeal, Trudel, Stratas and Mainville JJ.A.—Vancouver, May 13, 2013; Ottawa, March 3, 2014.

Transportation — Appeal from Federal Court decision allowing judicial review quashing appellant Minister’s decision to uphold cancellation of security clearance granted to respondent under Marine Transportation Security Regulations (Security Regulations), s. 509 — Respondent requiring security clearance to work in Port of Vancouver — Not possible for Minister to grant security clearance under s. 509 unless information provided by applicant “sufficient”, “verifiable”, “reliable” — Minister cancelling security clearance based upon information that respondent associated with Hells Angels, involved in criminal activities — Respondent asking Minister to reconsider cancellation pursuant to Security Regulations, s. 517 — During reconsideration process, respondent interviewed by Office of Reconsideration — Program Review Board subsequently reviewing matter — Minister ultimately adopting Program Review Board’s recommendation to cancel respondent’s security clearance — Federal Court finding Minister improperly relying upon unverified, unreliable evidence; respondent having legitimate expectation that Office of Reconsideration would be involved — Whether to restore decision confirming cancellation of respondent’s security clearance — Minister granting security clearance pursuant to s. 509 only when sure that, on basis of reliable, verifiable information, individual posing no risk — However, possible for information leading to suspension of previously granted security clearances to come from any source — Requirements of verifiability, reliability not applying to this sort of evidence — Minister’s determination under s. 509 including consideration of whether “reasonable grounds to suspect” factors listed therein present — “Totality of the circumstances”, inferences drawn therefrom meeting standard of “reasonable grounds to suspect” — Minister allowed to consider, base decision on much wider range of information than under “reasonable and probable grounds” standard — Facts herein supporting Minister’s conclusion — Minister’s decision consistent with purposes of Security Regulations — Procedural fairness not breached — Respondent provided with opportunity to respond, given sufficient access to information — Appeal allowed — Per Mainville J.A. (concurring): Security Regulations, ss. 515(5) , 517(4) requiring Minister to rely on verifiable, reliable information when cancelling security clearance, when reconsidering that decision — Deterrence, security screening best served when determination of security risk based on verifiable, reliable information — Requiring information to be verifiable, reliable facilitating social, political acceptability of security measures — Minister having large discretion to assess whether information meeting those requirements — Not necessary for information to be proven in order to be verifiable, reliable — As to procedural fairness, role of Office of Reconsideration in reconsidering cancellation of security clearance not trivial — Government of Canada breaching commitment with respect to involvement of Office of Reconsideration — Nevertheless, futile in this case to return matter for new determination in light of additional information provided to Minister.

Constitutional Law — Charter of Rights — Criminal Process — Federal Court quashing appellant Minister’s decision upholding cancellation of security clearance granted to respondent under Marine Transportation Security Regulations , s. 509 — Respondent requiring security clearance to work in Port of Vancouver — Minister cancelling security clearance based upon information that respondent associated with Hells Angels, involved in criminal activities —Minister’s decision not offending presumption of innocence — Finding respondent should not hold security clearance in no way finding respondent guilty of a criminal offence.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Federal Court quashing appellant Minister’s decision upholding cancellation of security clearance granted to respondent under Marine Transportation Security Regulations , s. 509 — Respondent requiring security clearance to work in Port of Vancouver — Minister cancelling security clearance based upon information that respondent associated with Hells Angels, involved in criminal activities —High level of psychological stress, deprivation of right to security not established — Protection against security threats to Port outweighing psychological interests of individual worker.

This was an appeal from a decision of the Federal Court allowing an application for judicial review to quash the appellant Minister’s decision to uphold the cancellation of a security clearance granted to the respondent pursuant to

section 509 of the Marine Transportation Security Regulations (Security Regulations). The respondent was a dock worker at the Port of Vancouver who had been granted a security clearance under the Security Regulations to work in certain areas of the Port. Under

section 509, the Minister cannot grant a security clearance unless the information provided by the applicant and resulting from any checks and verifications is “sufficient”, “verifiable” and “reliable.” After the respondent was granted a security clearance, the Minister sought further information about the respondent’s criminal record and background. An RCMP report disclosed new information regarding the respondent’s potential associations with the Hells Angels, as well as allegations of criminal activity. In light of this information, the Minister began to consider whether the respondent’s security clearance should be cancelled under

section 515 of the Security Regulations. The respondent was invited to respond to this information, which he did. The respondent made submissions on the need for the Minister to act only on the basis of verifiable and reliable information. Thereafter, the Minister accepted a recommendation to cancel the respondent’s security clearance. The respondent asked the Minister to reconsider the cancellation pursuant to

section 517 of the Security Regulations. During this process, the respondent was interviewed by the Office of Reconsideration, one of the bodies assisting the Minister. An RCMP report provided further details regarding the respondent’s alleged criminal activities. The respondent was informed of this report and was told that the Program Review Board, another body advising the Minister, would now review the matter.

The Minister adopted the Program Review Board’s recommendation that the cancellation of the respondent’s security clearance should be confirmed and adopted the Program Review Board’s reasons in support of its recommendation. The Federal Court concluded that the evidence before the Minister was not strong enough to warrant the cancellation of the security clearance. It found that the Minister had improperly relied upon evidence that was unverified and unreliable, and that the respondent had

a legitimate expectation that the Office of Reconsideration would be involved and would supply advice to the Minister that was independent of the Minister’s own advisors. At issue was whether the decision confirming the cancellation of the respondent’s security clearance should be restored. Held , the appeal should be allowed. Per Stratas J.A. (Trudel J.A. concurring): The thrust of

section 509 is that a security clearance should only be granted to an individual when the Minister is sure, on the basis of reliable and verifiable information, that the individual poses no risk to marine security. Colloquially expressed, there must be no doubt on the matter. This high standard is necessary to prevent the grave consequences that might ensue if the individual commits injurious or destructive acts in sensitive port areas.

However, the information leading to suspension of previously-granted security clearances can come from any source, not just from information supplied by the applicant or from checks and verifications. Nowhere do the Security Regulations say that the requirements of verifiability and reliability apply to this sort of evidence. The requirements and verifiability and reliability apply only to the sort of evidence supplied during the initial granting process, i.e., information supplied by the applicant or from checks and verifications.

Subsection 515(1) allows the Minister to suspend a security clearance when there is any “information that could change the Minister’s determination made under

section 509.” Cancellation can happen when the Minister “determines under

section 509 that the holder may pose a risk to marine transportation security”. Just like the suspension provision, only the “determination” portion of

section 509—the portion that comes after the quality of the evidence needed to justify the grant of a security clearance—is to be considered. Under

section 509, the Minister is “to determine, by [conducting] an evaluation of the … factors” under paragraphs (

a) through ( e ). In the case of factors (

b) and ( c ), the factors relevant here, the Minister’s determination under

section 509 must include a consideration of whether there are “reasonable grounds to suspect” the factor is present. Under subsection 517(4), the Minister decides the reconsideration “in accordance with [all of]

section 509”. This is broader than the cancellation decision, where the Minister “determines under

section 509”. The broader wording in the case of reconsideration decisions is to accommodate the fact that the applicant may offer new information in the reconsideration process in the hope of having the clearance re-granted. “Reliable and verifiable” information of the sort the respondent said the Minister should have had is not required by the Security Regulations.

While fanciful musings, speculations or hunches do not meet the standard of “reasonable grounds to suspect”, the “totality of the circumstances” and inferences drawn therefrom, including information supplied by others, apparent circumstances and associations among individuals can. To satisfy the “reasonable grounds to suspect” standard, verifiable and reliable proof connecting an individual to an incident—proof of the sort required to secure a conviction or even a search warrant—is not necessary.

The law and jurisprudence on “reasonable grounds to suspect” allows the Minister to consider and base his decision on a much wider range of information than one could consider under a “reasonable and probable grounds” standard. A fairly broad range of acceptable and defensible options was available to the Minister. The facts were capable of supporting the Minister’s conclusion that there were reasonable grounds to suspect that the respondent had engaged in the conduct described in paragraphs 509(

b) and 509(

c) and, thus, that he posed a risk to the security of marine transportation. The Minister’s decision was consistent with the purposes of the Security Regulations, and was transparent, intelligible and justified and was supportable on the basis of the record placed before it. There was no breach of procedural fairness warranting the quashing of the Minister’s decision. Any procedural defect was not of the material sort that would justify a quashing of the Minister’s decision and remittal back to him. At all stages of the process, the Minister provided the respondent an opportunity to make his case.

Although the Minister was subject to an obligation to preserve the confidentiality of some aspects of the sensitive materials in his hands, he gave the respondent sufficient access to information to know the case against him and to make a meaningful response to it. The Minister’s decision did not offend the principle that all persons are presumed innocent until proven guilty under paragraph 11(

d) of the Canadian Charter of Rights and Freedoms . A finding that the respondent should not hold a security clearance at the Port in no way finds the respondent guilty of a criminal offence. Nor did the evidentiary record establish the high level of psychological stress necessary to establish a deprivation of the right to security of the person in

section 7 of the Charter. The principles of fundamental justice embody a balancing between the interests of the state and individuals. Here, the need to protect against security threats to the Port must outweigh the psychological interests of any one individual worker at the Port. Per Mainville J.A. (concurring): Both subsections 515(5) and 517(4) of the Security Regulations specifically and unambiguously require the Minister to rely on information which is verifiable and reliable when cancelling a security clearance and when reconsidering that decision.

It is clear from these provisions that the decision to grant or to refuse a security clearance, the decision to cancel a security clearance, and any reconsideration of such decisions, must be made under or in accordance with

section 509 of the Security Regulations. The purpose of deterring persons who are security risks from applying for security clearance in the first place, and to screen out those applicants who pose unacceptably high security risks and who apply regardless is best served when the determination of the security risk is based on verifiable and reliable information.

Requiring that the information relied upon to make security determinations be verifiable and reliable facilitates the social and political acceptability of the security measures for the employees targeted by the regulations, their labour associations and the Canadian public generally. The Minister must consider the verifiability and reliability of the information before him, but has a large discretion to assess whether that information meets those requirements, and the Minister’s exercise of that discretion must be reviewed judicially under a standard of reasonableness.

The Federal Court erred when it implied that the information provided must be proven in order to be verifiable and reliable. As to the issue of procedural fairness, the Governor in Council made a clear commitment that the process leading to a reconsideration of the cancellation of a security clearance under subsection 517(4) of the Security Regulations would be subject to a review of the relevant information by the independent Office of Reconsideration, staffed with independent advisors, leading to a recommendation by that office to the Minister. The role of that office is not trivial.

That process was not followed in the present case. There was a clear breach of the Government of Canada’s commitment with respect to the involvement of the independent Office of Reconsideration in determinations made under the reconsideration mechanism set out in subsection 517(4). Nevertheless, it was futile in this case to return the matter for a new determination in light of the additional information provided to the Minister. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11 .

Criminal Code, R.S.C., 1985, c. C-46, s. 254(2). Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, s. 99(1)(f). Federal Courts Rules, SOR/98-106, r. 317. Marine Transportation Security Regulations, SOR/2004-144, ss. 506, 507, 508, 509, 515, 517. Regulations Amending the Marine Transportation Security Regulations, SOR/2006-269. CASES CITED applied: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559. considered: Reference re Marine Transportation Security Regulations, 2009 FCA 234, 202 C.R.R. (2d) 156; R. v. Mann, 2004 SCC 52, [2004] 3S.C.R. 59; Catalyst Paper Corp. v.

North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Halifax (Regional Municipality) v. NovaScotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2S.C.R. 504. referred to: R. v. Lindsay, 2009 ONCA 532, 97 O.R. (3d) 567; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (AttorneyGeneral) v. Abraham, 2012 FCA 266, [2013] 1 C.T.C. 69; Canada (Attorney General) v. Canadian Human Rights Commission, 2013FCA 75, 76 C.H.R.R. D/353; Mills v.

Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, 237 O.A.C. 71;McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; British Columbia v. Imperial Tobacco CanadaLtd., 2005 SCC 49, [2005] 2 S.C.R. 473; British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873; AlmonEquipment Limited v. Canada (Attorney General), 2012 FCA 318; R. v. Jacques, (SCC), [1996] 3 S.C.R. 312, (1996),139 D.L.R. (4th) 223; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Monney, (SCC), [1999] 1 S.C.R.652, (1999), 171 D.L.R. (4th) 1; Montréal (City) v.

Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427; Newfoundland andLabrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Telus CommunicationsInc. v. Telecommunications Workers Union, 2005 FCA 262, 257 D.L.R. (4th) 19; Kozak v. Canada (Minister of Citizenship andImmigration), 2006 FCA 124, [2006] 4 F.C.R. 377; Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 S.C.R. 202, (1994), 115 Nfld. & P.E.I.R. 334; Blencoe v. British Columbia (Human Rights Commission),2000 SCC 44, [2000] 2 S.C.R. 307; Rodriguez v.

British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519,(1993), 107 D.L.R. (4th) 342; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571; Russo v. Canada (Transport), 2011FC 764, 39 Admin. L.R. (5th) 171; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332;Thomson v. Canada (Deputy Minister of Agriculture), (SCC), [1992] 1 S.C.R. 385, (1992), 89 D.L.R. (4th) 218. AUTHORS CITED Regulatory Impact Analysis Statement, SOR/2004-144, C. Gaz. 2004.II.916. Regulatory Impact Analysis Statement, SOR/2006-269, C. Gaz. 2006.II.1742.

APPEAL from a decision of the Federal Court (September 6, 2012, T-1383-11) allowing an application for judicial review to quash theappellant’s decision to uphold the cancellation of a security clearance granted to the respondent under the Marine TransportationSecurity Regulations. Appeal allowed. APPEARANCES Lorne Lachance and Malcolm Palmer for appellant. Craig Bavis and Allison Tremblay for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Victory Square Law Office LLP, Vancouver, for respondent.

The following are the reasons for judgment rendered in English by [1] Stratas J.A.: The Minister appeals from the judgment dated September 6, 2012 of the Federal Court (per Justice Martineau) in fileT-1383-11. [2] The Federal Court quashed the Minister’s decision to uphold the cancellation of a security clearance granted to Mr. Farwahaunder the Marine Transportation Security Regulations, SOR/2004-144 (Security Regulations).

The Federal Court found the Minister’sdecision to be unreasonable. [3] Broadly speaking, the Federal Court concluded that the evidence before the Minister was not strong enough to warrant thecancellation of the security clearance. The Federal Court’s main justification for that conclusion was its

interpretation of the provision

that sets out the grounds upon which a security clearance can be cancelled, namely

section 509 of the Security Regulations . [ 4 ] The Federal Court also found that in making the decision the Minister failed to give to Mr. Farwaha certain procedures that he legitimately expected would be followed. It also found the Minister’s reasons to be inadequate. [ 5 ] I reach conclusions different from those of the Federal Court. Among other things, the Federal Court erred in its

interpretation of

section 509 of the Security Regulations . The Minister’s decision fell within the ambit of the section, properly interpreted. Further, based on this record, the Minister’s decision was reasonable. As well, the ground of legitimate expectations that Mr. Farwaha asserts does not arise in this case. [ 6 ] Therefore, for the reasons that follow, I would allow the appeal with costs. A. The basic facts [ 7 ] Mr. Farwaha is a dock worker at the Port of Vancouver. Dock workers require a security clearance under the Security Regulations to work in certain areas of the Port of Vancouver and to perform certain tasks.

Those without security clearance can still work elsewhere at the Port of Vancouver. [ 8 ] As a practical matter, having a security clearance matters. Without a security clearance, the work opportunities are fewer. This can detrimentally affect the worker’s seniority within the union, income and pension. [ 9 ] The Minister granted Mr. Farwaha a security clearance. But 12 months later, the Minister cancelled Mr. Farwaha’s security clearance, relying upon certain information from the RCMP. [ 10 ] Given the detrimental effects upon him, Mr. Farwaha requested that the Minister reconsider the cancellation.

On reconsideration, the Minister confirmed his earlier decision to cancel Mr. Farwaha’s security clearance. [ 11 ] In the Federal Court, Mr. Farwaha applied for judicial review of the Minister’s reconsideration decision. He asked that the reconsideration decision be quashed and his security clearance restored. The Federal Court granted the application for judicial review. B.

The legislation and the detailed facts regarding how the legislation applied in this case [ 12 ] The Security Regulations and similar regulations for airports are the product of a review of security following the attacks on the World Trade Center in New York on September 11, 2001. [ 13 ] The Security Regulations establish the Marine Transportation Security Clearance Program. The Program addresses threats to the security of Canada’s international marine ports.

Terrorism and organized crime are among the potential security threats: Reference re Marine Transportation Security Regulations , 2009 FCA 234 , 202 C.R.R. (2d) 156, at paragraph 64 .

Needless to say, these threats can cause catastrophic harm, both economic and human. [ 14 ] In the Reference re Marine Transportation Security Regulations , above, at paragraph 66 , Evans J.A. summarized the purposes behind the Security Regulations as follows: Canada’s long coast line and many ports, its substantial economic dependence on international trade in goods transported by sea in and out of Canada and, to a lesser degree, on cruise line business, its ability to fund security measures, and its proximity to the United States, are all factors that provide a rational explanation of why Canada has instituted the present security clearance system. [ 15 ] Broadly speaking, the Security Regulations offer “protection from threats to public safety and the economy from the activities of terrorist groups and organized crime”: Reference re Marine Transportation Security Regulations , above, at paragraph 67 . [ 16 ] Marine ports play a large role in Canada’s economy.

A single breach of security could result in an incident shutting down Canada’s international marine transportation system, resulting in losses of hundreds of millions of dollars a day, to say nothing of the ripple effect upon economic sectors that depend on the ports. Most of all, many could die or could be injured or maimed by the incident. See the Regulations’ Regulatory Impact Analysis Statement, Canada Gazette ,

Part II, Vol. 138, No. 11 [June 2, 2004], at pages 920– 926. [ 17 ] For this reason, marine ports have in place physical security measures, such as fencing, lighting, patrols, and x-ray and radiation screening. But a single insider at a marine port can subvert these measures: Reference re Marine Transportation Security Regulations , above, at paragraph 23 . [ 18 ] The Security Regulations aim to reduce the risks individuals pose to marine ports. They achieve this by requiring those who work in security-sensitive areas to obtain a Marine Transportation Security Clearance from the Minister.

The Minister grants a security clearance to those who do not pose an unacceptable risk to marine transportation. Those who “pose an unacceptable security risk to marine transportation” are screened out: Reference re Marine Transportation Security Regulations , above, at paragraph 11 . [ 19 ] As will be seen, to some extent the Security Regulations focus on criminal organizations and organized crime. The concern is that those with ties to criminal organizations and organized crime might be intimidated or coerced into performing illegal acts or subverting security measures at marine ports.

There are links between terrorists and organized crime: Reference re Marine Transportation Security Regulations , above, at paragraph 64 . Indeed, organizations involved in organized crime may offer their services to terrorists by aiding them in, for example, smuggling weapons, explosives or operatives into Canada in containers: Reference re Marine Transportation Security Regulations , above, at paragraph 64 . [ 20 ] I turn now to the specific provisions in the Security Regulations that address the foregoing concerns. These provisions applied in Mr. Farwaha’s case.

[ 21 ] An applicant for security clearance, such as Mr. Farwaha, must provide detailed information on a form supplied by the Minister: sections 506 and 507 of the Security Regulations .

Owing to the concern associated with the security at marine ports, the information is most detailed. [ 22 ] The applicant must provide identifying information such as names, date of birth, gender, height, weight, colours of eyes and hair, birth certificate (if born in Canada), place of birth, port and date of entry, citizenship or permanent residence or evidence of other immigration status (if born out of Canada), passport number (if any), fingerprints and facial image.

Other required information includes addresses of all locations at which the applicant has lived in the previous 5 years, the names and addresses of employers and post- secondary educational institutions attended in the last 5 years, details of travel outside Canada and the United States of more than 90 days and identifying information and present addresses of the applicant’s present and former spouses and common-law partners. [ 23 ]

Section 508 of the Security Regulations describes subsequent checks and verification of the information undertaken by the Minister in order to determine whether the applicant is a risk to the security of marine transportation. These include: a criminal record check; a check of law enforcement files, including intelligence gathered for law enforcement purposes; a Canadian Security Intelligence Service (CSIS) indices check and, if necessary, a CSIS security assessment; and a check of the applicant’s citizenship and immigration status. [ 24 ] Under

section 509 of the Security Regulations , the Minister determines whether the applicant’s information and the information resulting from the checks and verifications are sufficient for a decision to be made regarding whether to grant a security clearance. [ 25 ]

Section 509 of the Security Regulations is the authority upon which Mr. Farwaha received his security clearance in 2008. (As we shall see, it also supplies the grounds upon which a security clearance can be later suspended or cancelled.) Under

section 509, the Minister cannot grant a security clearance unless he is of the opinion that the information provided by the applicant and resulting from any checks and verifications is “sufficient”, “verifiable” and “reliable.” [ 26 ]

Section 509 reads as follows: 509. The Minister may grant a security clearance if, in the opinion of the Minister, the information provided by the applicant and that resulting from the checks and verifications is verifiable and reliable and is sufficient for the Minister to determine, by an evaluation of the following factors, to what extent the applicant poses a risk to the security of marine transportation: (

a) the relevance of any criminal convictions to the security of marine transportation, including a consideration of the type, circumstances and seriousness of the offence, the number and frequency of convictions, the length of time between offences, the date of the last offence and the sentence or disposition; (

b) whether it is known or there are reasonable grounds to suspect that the applicant (

i) is or has been involved in, or contributes or has contributed to, activities directed toward or in support of the misuse of the transportation infrastructure to commit criminal offences or the use of acts of violence against persons or property, taking into account the relevance of those activities to the security of marine transportation, (ii) is or has been a member of a terrorist group within the meaning of subsection 83.01(1) of the Criminal Code , or is or has been involved in, or contributes or has contributed to, the activities of such a group, (iii) is or has been a member of a criminal organization as defined in subsection 467.1(1) of the Criminal Code , or participates or has participated in, or contributes or has contributed to, the activities of such a group as referred to in subsection 467.11(1) of the Criminal Code taking into account the relevance of these factors to the security of marine transportation, (iv) is or has been a member of an organization that is known to be involved in or to contribute to — or in respect of which there are reasonable grounds to suspect involvement in or contribution to — activities directed toward or in support of the threat of or the use of, acts of violence against persons or property, or is or has been involved in, or is contributing to or has contributed to, the activities of such a group, taking into account the relevance of those factors to the security of marine transportation, or (

v) is or has been associated with an individual who is known to be involved in or to contribute to — or in respect of whom there are reasonable grounds to suspect involvement in or contribution to — activities referred to in subparagraph (i), or is a member of an organization or group referred to in any of subparagraphs (ii) to (iv), taking into account the relevance of those factors to the security of marine transportation; (

c) whether there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit

an act or to assist or abet any person to commit

an act that might constitute a risk to marine transportation security; (

d) whether the applicant has had a restricted area pass for a marine facility, port or aerodrome removed for cause; and (

e) whether the applicant has filed fraudulent, false or misleading information relating to their application for a security clearance. [ 27 ] On January 17, 2008, Mr. Farwaha applied for a security clearance. It was granted. [ 28 ] However, the facts surrounding this approval form part of the backdrop against which the Minister’s decision must be viewed. [ 29 ] In early 2008, the Security Regulations were about to apply to the Port of Vancouver. The Port urged workers to apply for security clearances.

It asked them to apply before February 20, 2008 so that their security clearances would be in place by the time the Security Regulations came into force. [ 30 ] However, there was a complication. Certain longshore workers who were members of some chapters of the International

Longshore and Warehouse Union protested the implementation of the security program set out in the Security Regulations . As part of the protest, they urged workers not to apply for security clearances. [ 31 ] This posed a threat to the Port. If a sufficient number of workers did not possess a security clearance in time, the Port would not be able to function fully. Severe financial consequences would ensue. [ 32 ] In response to the protest, the British Columbia Maritime Employers Association applied to the Canada Industrial Relations Board for a declaration that the workers were engaged in an unlawful strike.

The Association succeeded. However, little time remained before the Security Regulations were in force. As a result, the applications were processed quickly. [ 33 ] Mr. Farwaha’s application for the security clearance was processed during this unsettled time. His application disclosed the existence of a criminal record, namely a 2002 conviction for attempted obstruction of justice. However, there was nothing in his application suggesting any connection to organized crime, a ground of refusal under paragraph 509 (

b) of the Security Regulations . [ 34 ] In this context, the Minister granted Mr. Farwaha’s security clearance in June 2008. However, the Minister sought further information about Mr. Farwaha’s criminal record and background. [ 35 ] This information came in the form of a report from the officer in charge of the RCMP’s Federal Operation Criminal Intelligence Support Unit. [ 36 ] That report disclosed new information regarding Mr. Farwaha’s potential associations with the Hells Angels, as well as allegations of violent criminal activity.

An excerpt appearing at pages 178–179 of the appeal book is as follows: On October 1, 1999 Surrey RCMP received a complaint that Mr. FARWAHA and two other individuals forced their way into the residence of the victims and stated they were part of the “Hells Angels”. The suspects demanded all of the resident’s money. FARWAHA and another suspect assaulted a resident to unconsciousness, which resulted in a concussion, facial lacerations, “cauliflower ears” and extensive bruising. During this assault, a suspect other that [ sic ] FARWAHA assaulted another resident, who was also threatened.

This resident eventually agreed to give all her money ($30,000.00) to the 3 suspects. … According to Surrey RCMP, the suspect’s association to the Hells Angels Motorcycle Club is credible. No further information available on that matter. [ 37 ] Following this incident, Mr. Farwaha was charged with being in a dwelling house without lawful excuse, extortion, robbery, uttering threats to cause death or bodily harm, and assault causing bodily harm.

However, these charges were stayed, apparently because (according to the report) “the victims did not cooperate with the judicial process”. [ 38 ] The Hells Angels are a well-known criminal organization: see, e.g. R. v. Lindsay , 2009 ONCA 532 , 97 O.R. (3d) 567. It is an organization that threatens and engages in acts of violence against persons or property.

Reasonable grounds to believe that a person is a member of such an organization is a factor to be considered in denying a security clearance or cancelling one that has been granted. [ 39 ] With the information in the RCMP’s report in hand, the Minister began to consider whether Mr. Farwaha’s security clearance should be cancelled under

section 515 of the Security Regulations . Under

section 515, the Minister can cancel a previously-granted security clearance based on the factors set out in

section 509 . [ 40 ]

Section 515 reads as follows: 515.

(1) The Minister may suspend a security clearance on receipt of information that could change the Minister’s determination made under

section 509 .

(2) Immediately after suspending a security clearance, the Minister shall advise the holder in writing of the suspension.

(3) The notice shall set out the basis for the suspension and shall fix a period of time for the holder to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.

(4) The Minister may reinstate the security clearance if the Minister determines under

section 509 that the holder does not pose a risk to marine transportation security.

(5) The Minister may cancel the security clearance if the Minister determines under

section 509 that the holder may pose a risk to marine transportation security or that the security clearance is no longer required. The Minister shall advise the holder in writing of any cancellation.

(6) The Minister shall not cancel a security clearance until the written representations have been received and considered or before the time period fixed in the notice has expired, whichever comes first. [ 41 ] Owing to the importance of the security clearance to the worker,

section 515 gives the worker certain procedural rights. After the worker exercises these procedural rights, the Minister considers all of the information before him and may, in his discretion, cancel the security clearance. [ 42 ] Following

section 515, by letter dated November 17, 2008, the Minister informed Mr. Farwaha that “[i]nformation has been made available that raises doubts about [his] suitability to retain a security clearance”. The Minister specifically mentioned Mr.

Farwaha’s alleged association with the Hells Angels. He was invited to respond. Mr. Farwaha asked for and was granted an extension of time to respond. [ 43 ] On March 18, 2009, Mr. Farwaha did respond, making submissions on the need for the Minister to act only on the basis of verifiable and reliable information, evidence and submissions on Mr. Farwaha’s alleged association with the Hells Angels, and evidence and submissions on his previous criminal conviction for obstruction and his clear record thereafter. Mr.

Farwaha also emphasized the importance to him of the security clearance. [ 44 ] Thereafter, a body advising the Minister, known as the advisory body, studied the matter. It recommended to the Minister that Mr. Farwaha’s security clearance be cancelled. In his decision letter of June 25, 2009, the Minister described the advisory body’s recommendation as follows: The Advisory Body was unanimous in its recommendation to cancel the applicant’s security clearance based on the credible information linking him to the Hell’s [ sic ] Angels Motorcycle Club.

The Advisory Body noted that the RCMP maintains the applicant’s association to the Hell’s [ sic ] Angels Motorcycle Club is credible. The Advisory Body was able to determine that there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that he may be suborned to commit

an act or to assist or to abet any person to commit

an act that might constitute a risk to marine transportation security. His written explanation and supporting documentation did not provide sufficient information that would compel the Advisory Body to recommend issuing a clearance. [ 45 ] In his decision letter of June 25, 2009, the Minister accepted the advisory body’s recommendation and cancelled Mr. Farwaha’s security clearance “based on the information in [the] file”. Mr. Farwaha’s March 18, 2009 response was one of the documents in the Minister’s file. [ 46 ] Under

section 517 of the Security Regulations , the worker can ask the Minister to reconsider a decision to cancel a security clearance. On August 4, 2009, Mr. Farwaha exercised that option and asked the Minister to reconsider the cancellation. [ 47 ] The reconsideration provision,

section 517, provides as follows: 517.

(1) An applicant or a holder may request that the Minister reconsider a decision to refuse to grant or to cancel a security clearance within 30 days after the day of the service or sending of the notice advising them of the decision.

(2) The request shall be in writing and shall set out the following: (

a) the decision that is the subject of the request; (

b) the grounds for the request, including any new information that the applicant or holder wishes the Minister to consider; and (

c) the name, address, and telephone and facsimile numbers of the applicant or holder.

(3) On receipt of a request made in accordance with this section, the Minister, in order to determine the matter in a fair, informal and expeditious manner, shall give the applicant or holder (

a) where the situation warrants, the opportunity to make representations orally or in any other manner; and (

b) in any other case, a reasonable opportunity to make written representations.

(4) After representations have been made or a reasonable opportunity to do so has been provided, the Minister shall reconsider the decision in accordance with

section 509 and shall subsequently confirm or change the decision.

(5) The Minister may engage the services of persons with appropriate expertise in security matters to advise the Minister.

(6) The Minister shall advise the applicant or holder in writing of the decision made following the reconsideration. [ 48 ] The Minister has access to certain advisory bodies to assist him in making security determinations, including reconsiderations of cancellations. In this case, the Minister made use of certain advisory bodies during the reconsideration. [ 49 ] As will be seen, in the Federal Court and in this Court, Mr. Farwaha submitted that he was led to expect that the Minister would follow a particular consultative process and not the one the Minister actually followed.

The specific facts relating to this will be canvassed in more detail below in the context of the procedural fairness issues in this case. [ 50 ] During the reconsideration process in this case, the Minister obtained further information concerning Mr. Farwaha’s suitability for a security clearance. In particular, Mr. Farwaha was interviewed by the Office of Reconsideration, one of the bodies assisting the Minister. That interview did not assist Mr. Farwaha. The Office concluded that some of Mr. Farwaha’s answers concerning the home invasion incident, described above, were evasive. Further, Mr.

Farwaha did not deny that he hung out with a “rough crowd”, he had attended at the home in question, and an argument broke out at that time. He simply denied that he was involved in the argument, that there was any violence, or that he was involved with the Hells Angels. [ 51 ] As well, the Minister obtained information from the RCMP’s Security Intelligence Background Section. In a report dated December 1, 2010, the RCMP provided additional and specific details about the home invasion incident, Mr. Farwaha’s conviction for obstruction of justice, and Mr. Farwaha’s association with the Hells Angels.

In particular, the December 1, 2010 report discloses that the Surrey RCMP “felt strongly enough about their information they had about [Mr. Farwaha’s] association with the Hell’s [ sic ] Angels that they requested that the Court consider it as an aggravating factor” in the home invasion charges against Mr. Farwaha. [ 52 ] The December 1, 2010 report also disclosed a further troubling incident:

On Jan. 3, 2002, while making patrols, police observed two individuals trying to break into a vehicle. Police determined that one individual owned the vehicle and was simply trying to gain access inside his car, as his door locks had been damaged. However, the owner of the vehicle was wearing a shirt which indicated his support for the “East End.” The “East End” is known to be a

chapter of the Hell’s [ sic ] Angels. FARWAHA, the applicant was the second individual present with the owner of the vehicle. [ 53 ] On December 24, 2010, Mr. Farwaha was advised about the report. He was told that a further body advising the Minister, the Program Review Board, would now review the matter. Mr. Farwaha was invited to provide information and submissions. Mr. Farwaha responded on January 11, 2011, offering little in the way of new information and submitting that the Minister could not cancel Mr. Farwaha’s security clearance without better information.

He also raised questions about procedural matters. I shall deal with these below in the context of the procedural fairness issues in this case. [ 54 ] Soon afterward, the RCMP delivered to the Minister’s officials another report dated February 15, 2011. This report contained further information about Mr. Farwaha’s conviction for obstruction of justice and the incident to which it related. [ 55 ] Mr. Farwaha was said to have handed a firearm to an individual who used it to shoot a person. That individual later pleaded guilty to manslaughter.

He was a “significant drug trafficker” and had connections to the Hells Angels. The obstruction charge against Mr. Farwaha concerned the disposal of the firearm and Mr. Farwaha pleaded guilty to that charge. [ 56 ] The February 15, 2011 report disclosed other matters of concern. Another person involved in the incident leading to Mr. Farwaha’s conviction for obstruction was a member of the Hells Angels, and others involved had long criminal records including convictions for serious offences such as kidnapping, robbery, forcible confinement, theft, break and enter and assault.

Information, said to be reliable but unconfirmed, suggested Mr. Farwaha had discussed selling drugs with one of the individuals, who was later convicted of trafficking in cocaine and heroin. Finally, the RCMP advised that in 2004 the “Vancouver police received reliable information that Mr. Farwaha was recruiting drug dealers to sell crack cocaine for him in the downtown area”. [ 57 ] On March 11, 2011, the Minister’s officials forwarded the February 15, 2011 report to Mr. Farwaha for response. On March 30, 2011, Mr. Farwaha responded, providing written submissions. [ 58 ] It is fair to say that Mr.

Farwaha’s March 30, 2011 response was based on the view that the Minister could consider only verifiable and reliable evidence to cancel a security clearance. In Mr. Farwaha’s view, the Minister had no such evidence. Mr. Farwaha’s March 30, 2011 response provided very little new information, mainly resting upon a flat denial of many of the allegations in the February 15, 2011 report. In this sense, it was similar to his earlier January 11, 2011 response. [ 59 ] By decision letter dated July 21, 2011, the Minister confirmed his earlier decision to cancel Mr. Farwaha’s security clearance under subsection 517(4) .

This confirmatory decision was said to be “based on the information in [the] file”. The contents of the file became known during the prosecution of Mr. Farwaha’s application for judicial review by virtue of a rule 317 [ Federal Courts Rules , SOR/98-106] request made by Mr. Farwaha. The Minister produced his file. Mr. Farwaha’s March 30, 2011 response was in the file. [ 60 ] In his decision letter of July 21, 2011, the Minister adopted the Program Review Board’s recommendation that the cancellation of Mr.

Farwaha’s security clearance should be confirmed and adopted the Program Review Board’s reasons in support of its recommendation. In its recommendation, the Program Review Board stated there were “reasonable grounds to suspect” that: • “[Mr. Farwaha] is or has been involved in acts of violence against persons or property”; • might “be suborned to commit

an act or to assist or abet any person to commit

an act that might constitute a risk to marine transportation security”; and • “is or has been associated with an individual who is known to be involved in or is known to be a member of a criminal organization”. Collectively, these are grounds upon which the Minister may cancel a security clearance under paragraphs 509 (

b) and 509(

c) of the Security Regulations . C. The Federal Court’s judgment [ 61 ] As mentioned above, Mr. Farwaha applied for judicial review in the Federal Court. The Federal Court granted the application on two main grounds:

(1) Substantive grounds. The Minister improperly relied upon evidence that was unverified and unreliable. The Minister ignored evidence and explanations provided by Mr. Farwaha, in particular those contained in Mr. Farwaha’s final submissions letter dated March 30, 2011. The Minister also did not give adequate reasons.

(2) Procedural grounds . In response to representations made, Mr. Farwaha had a legitimate expectation that a special office known as the Office of Reconsideration would be involved and would supply advice to the Minister that was independent of the Minister’s own advisors. [ 62 ] The Federal Court quashed the Minister’s decision and remitted the matter to him for reconsideration. The Federal Court directed the Minister to reconsider the matter without relying upon unparticularized and unsupported allegations. The Federal Court also directed the Minister to consider the evidence and submissions made by Mr.

Farwaha. [ 63 ] The Minister appeals to this Court. He seeks the restoration of his decision confirming the cancellation of Mr. Farwaha’s security clearance. D. Analysis

(1) The substantive grounds: Mr. Farwaha’s first submission [ 64 ] On appeal to this Court, Mr. Farwaha first submits that the Minister, in declining to reinstate the security clearance, was specifically obligated under

section 509 of the Security Regulations , to rely only upon verifiable and reliable evidence. He submits that the Court must review whether the Minister met that statutory obligation on the basis of correctness. The Minister failed to comply with that obligation and, thus, the decision must be quashed. [ 65 ] This submission centrally affects the manner in which this Court should analyse this case. It is useful to deal with it first. [ 66 ] I reject Mr. Farwaha’s submission. In doing so, I shall address three matters. – I – [ 67 ]

Section 509 of the Security Regulations provides that the Minister can only grant a security clearance if, among other things, “the information provided by the applicant and that resulting from checks and verifications is verifiable and reliable”. This sort of information is provided during the process leading up to the granting of a security clearance. [ 68 ] If that quality of information is not present, the Minister need not go any further. He need not consider the factors listed under paragraphs (

a) to (

e) in

section 509 . [ 69 ] This makes sense. The thrust of

section 509 is that a security clearance should only be granted to an individual when the Minister is sure, on the basis of reliable and verifiable information, that the individual poses no risk to marine security. Colloquially expressed, there must be no doubt on the matter. This high standard is necessary to prevent the grave consequences that might ensue if the individual commits injurious or destructive acts in sensitive port areas. [ 70 ] Turning to suspensions of previously-granted security clearances, as a practical matter the situation is different.

The information leading to suspension of previously-granted security clearances can come from any source, not just from information supplied by the applicant or from checks and verifications. For example, CSIS might supply the Minister with information that creates a doubt concerning an individual’s suitability to hold a security clearance. Nowhere do the Security Regulations say that the requirements of verifiability and reliability apply to this sort of evidence.

Again, the requirements and verifiability and reliability apply only to the sort of evidence supplied during the initial granting process, i.e., information supplied by the applicant or from checks and verifications. [ 71 ] Subsection 515(1) allows the Minister to suspend a security clearance when there is any “information that could change the Minister’s determination made under

section 509 .” The reference to

section 509 does not import all of that section. Specifically, it does not import the requirement that the information be reliable or verifiable. Subsection 515(1) only references the “determination” portion of

section 509. [ 72 ] Were it otherwise, the purposes of the Security Regulations would be undercut. Having received information from CSIS creating a doubt over the individual’s suitability to hold a security clearance, the Minister would have to wait for better information, information that might never come. Meanwhile, the individual would continue to have unrestricted access to sensitive port areas while the Minister hopes to receive better quality information.

This exposes sensitive port areas to unacceptable risk, the avoidance of which is the entire point of the Security Regulations. [ 73 ] Turning to lifting suspensions or cancelling security clearances, the Minister has these powers under subsection 515(5). A suspension can be lifted when the Minister “determines under

section 509 that the holder does not pose a risk to marine transportation security” [at subsection 515(4)]. Cancellation can happen when he “determines under

section 509 that the holder may pose a risk to marine transportation security”. Just like the suspension provision, only the “determination” portion of

section 509 —the portion that comes after the quality of the evidence needed to justify the grant of a security clearance—is to be considered. [ 74 ] How is that determination under

section 509 conducted? Under

section 509, the Minister is “to determine, by [conducting] an evaluation of the … factors” under paragraphs (

a) through ( e ). [ 75 ] In the case of factors (

b) and ( c ), the factors relevant here, the Minister’s determination under

section 509 must include a consideration of whether there are “reasonable grounds to suspect” the factor is present. As we shall see at paragraphs 95–97 below, “reasonable grounds to suspect” is a concept known to our law in a number of areas. Cases show that a reasonable suspicion need not be formed on the basis of verifiable evidence. Instead, all that is required is the lesser standard of “objectively discernible facts”: R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59, at paragraph 43 . [ 76 ] After the Minister cancels a security clearance, the affected individual may ask for the Minister to reconsider the cancellation under

section 517 in the hopes of getting the security clearance re-granted. The individual may offer submissions and “any new information that the applicant or holder wishes the Minister to consider”: paragraph 517(2) (

b) of the Security Regulations . [ 77 ] Under subsection 517(4), the Minister decides the reconsideration “in accordance with [all of]

section 509”. This is broader than the cancellation decision, where the Minister “determines under

section 509”. The broader wording in the case of reconsideration decisions is to accommodate the fact that the applicant may offer new information in the reconsideration process in the hope of having the clearance re-granted—any new information must be “reliable and verifiable” in order for the Minister to rely on it. This is consistent with the philosophy mentioned above—a security clearance should only be re-granted to an individual when the Minister is sure, on the basis of reliable and verifiable information, that the individual poses no risk to marine security. [ 78 ] This

interpretation of the plain wording of the Security Regulations is supported by the purposes underlying

section 509 and the overall purposes of the Security Regulations identified by this Court in the Reference re Marine Transportation Security Regulations . When the Minister receives information that creates a doubt about the individual’s continued suitability, he should be able to suspend the individual’s security clearance right away. And where there are “reasonable grounds to suspect”—i.e., a doubt based on discernable facts, not just hunches or speculations—that an individual holding a security clearance should not continue to access sensitive port areas

under paragraphs 509(

b) and ( c ), the Minister should be able to keep the suspension in place, cancel the security clearance, refuse to reconsider a cancellation, or any of these things. The Minister should not be in a position of doubting the person’s suitability on the basis of facts good enough to ground a “reason to suspect”, but restrained from doing anything about it because the information received is not “verifiable”. The importance of Canada’s sensitive port areas demands no less. [ 79 ] This is not to say that the Minister can act on the basis of fanciful musings, speculations or hunches.

As I shall explain below, “reasonable grounds to suspect” does provide a meaningful standard against arbitrary cancellation of a security certificate. But “reliable and verifiable information” of the sort Mr. Farwaha says the Minister should have had is simply not required by the Security Regulations . – II – [ 80 ] Turning to the determination of the standard of review, Mr. Farwaha has parsed the Minister’s decision into two components. First, the Minister was to satisfy himself that the evidence was reliable and verifiable. Second, overall, the Minister was to decide whether Mr.

Farwaha should receive his security clearance back. The former part of the decision, says Mr. Farwaha, must be reviewed on the basis of correctness. The Federal Court agreed with Mr. Farwaha. [ 81 ] In my view, this is an artificial and unacceptable parsing of the Minister’s task in this case. Overall, the Minister was to decide whether Mr. Farwaha’s security clearance should be cancelled. That is how the Minister approached his decision.

The standards applied by the Minister to the matter before him—including the Minister’s assessments of the quality and weight to be given to the evidence— are part and parcel of the overall decision he made. For the purposes of assessing the standard of review, the Minister’s decision should be assessed in its totality. [ 82 ] I am supported in this approach by the Supreme Court’s decision in Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559. There, the Supreme Court was concerned with a visa officer’s decision.

In making the decision, the visa officer—like the Minister in this case—applied legislative standards to the facts of the case. The Supreme Court did not parse the visa officer’s decision into two sub-decisions, one concerning legislative

interpretation and the other concerning the application of the legislation to the facts of the case. Instead, the Supreme Court reviewed the visa officer’s decision in its totality. It applied the well-known considerations in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 and concluded that the decision, based largely on factual appreciation, should be reviewed on the basis of reasonableness. [ 83 ] Accordingly, in this case, we must review the Minister’s reconsideration decision in its totality, not in the manner urged upon us by Mr.

Farwaha. – III – [ 84 ] In my view, the Minister’s reconsideration decision involves the application of legal standards to the evidence in this case.

This involves fact-finding and determining issues of mixed fact and law where the facts play a dominant role in the decision. [ 85 ] Security policy may also play an important role and so it is appropriate that the Minister be given a margin of appreciation in assessing the facts and determining whether those facts disclose a security risk: Reference re Marine Transportation Security Regulations , above, at paragraph 53 . [ 86 ] Therefore, in these circumstances, the Minister’s decision must be reviewed on the basis of reasonableness, not correctness. [ 87 ] It follows from the foregoing that the Federal Court erred.

The standard of review is reasonableness, not correctness for part of the decision.

(2) The substantive grounds: conducting reasonableness review [ 88 ] It is now well-accepted that a reasonable decision falls within a range of acceptability and defensibility on the facts and the law: Dunsmuir , above. It is also now well-accepted that the range of acceptable and defensible options takes its colour from the context, widening or narrowing depending on the nature of the question and other circumstances: see Canada (Attorney General) v. Abraham , 2012 FCA 266 , [2013] 1 C.T.C. 69, at paragraphs 37–50 ; Canada (Attorney General) v. Canadian Human Rights Commission , 2013 FCA 75 , 76 C.H.R.R.

D/353, at paragraphs 13–14 and Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) , 2008 ONCA 436 , 237 O.A.C. 71, at paragraph 22 ; and see, to the same effect, most recently, McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895, at paragraphs 37–41 . [ 89 ] In short, as the Supreme Court said in Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5, at paragraphs 17–18 and 23 and Halifax (Regional Municipality) v.

Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 S.C.R. 364, at paragraph 44 , the range of acceptable and rational solutions depends on “all relevant factors” surrounding the decision- making. [ 90 ] Part of the context that affects the breadth of the range of reasonableness are two principles lying at the heart of the Court’s jurisdiction to review administrative decisions, namely parliamentary supremacy and the rule of law: see Dunsmuir , above, at paragraphs 27–31 and on the specific content of the rule of law see British Columbia v.

Imperial Tobacco Canada Ltd. , 2005 SCC 49 , [2005] 2 S.C.R. 473 and British Columbia (Attorney General) v. Christie , 2007 SCC 21 , [2007] 1 S.C.R. 873. [ 91 ] Some of the cases in paragraph 88, above, give us guidance on the breadth of the ranges in a particular case. In some cases, Parliament has given a decision maker a broad discretion or a policy mandate—all things being equal, this broadens the range of options the decision maker legitimately has.

In other cases, Parliament may have constrained the decision maker’s discretion by specifying a recipe of factors to be considered—all things being equal, this narrows the range of options the decision-maker legitimately has. In still other cases, the nature of the matter and the importance of the matter for affected individuals may more centrally implicate the courts’ duty to vindicate the rule of law, narrowing the range of options available to the decision maker.

[92] In considering the breadth of the range of reasonableness available to the Minister in this case, I have considered the following: • The Minister’s decision is a matter of great importance to Mr. Farwaha, affecting the nature of his work, his finances, and hisprospects for advancement. • The decision concerns security matters. Wrong decisions can lead to grave consequences. • Security assessments involve some policy appreciation and sensitive weighings of facts. • The Minister’s decision in this case requires assessments of risk based on whether reasonable grounds for suspicion exist.

I wish to further address this last factor. [93] On one view of the matter, the specification of a standard in the legislation—assessments of risk and “whether reasonablegrounds for suspicion exist”—constrains the range of options available to the Minister. The Minister can confirm the cancellation of asecurity clearance only when those standards are met, not whenever the Minister “thinks it appropriate”: see, e.g. the statutory recipe andits narrowing effect on the ranges discussed in Almon Equipment Limited v.

Canada (Attorney General), 2012 FCA 318. [94] However, assessments of risk and whether reasonable grounds for suspicion exist are standards that involve the sensitiveconsideration of facts and careful fact-finding, tasks that normally entail a broad range of acceptable and defensible decision-making.Assessments of risk are forward-looking and predictive. By nature, these are matters not of exactitude and scientific calculation butrather matters of nuance and judgment. [95] As for “reasonable grounds to suspect”, I note that this is a concept that is well-known in law and jurisprudence.

Conceptsunderstood in law and jurisprudence can affect the breadth of the ranges of acceptability and defensibility, though care must be taken notto import uncritically concepts developed in different contexts: Canadian Human Rights Commission, above. In Canadian Human RightsCommission, a tribunal’s range of options concerning a human rights discrimination complaint was constrained by existing courtjurisprudence on anti-discrimination law. [96] Law and jurisprudence show that “reasonable grounds to suspect” is not “reasonable and probable grounds”, a higher standardthat is well-defined and concrete in our law.

It is a lesser, looser, judgmental standard based identifying “possibilities”, not finding“probabilities”. Examples in law and jurisprudence include when roadside breath samples should be provided (see subsection 254(2) ofthe Criminal Code, R.S.C., 1985, c. C-46), inspections under paragraph 99(1)(

f) of the Customs Act, R.S.C., 1985 (2nd Supp.), c. 1 (seeR. v. Jacques, (SCC), [1996] 3 S.C.R. 312), and investigative detentions (see Mann, above). [97] While fanciful musings, speculations or hunches do not meet the standard of “reasonable grounds to suspect”, the “totality of thecircumstances” and inferences drawn therefrom, including information supplied by others, apparent circumstances and associationsamong individuals can.

To satisfy the “reasonable grounds to suspect” standard, verifiable and reliable proof connecting an individual toan incident—proof of the sort required to secure a conviction or even a search warrant —is not necessary. See e.g. Mann, above; R. v.Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Monney, (SCC), [1999] 1 S.C.R. 652.

Instead, “objectivelydiscernable facts” will suffice: Mann, at paragraph 43. [98] This law and jurisprudence on “reasonable grounds to suspect” allows the Minister to consider and base his decision on a muchwider range of information than one could consider under a “reasonable and probable grounds” standard. [99] On balance, I conclude that a fairly broad range of acceptable and defensible options was available to the Minister.

Further, in myview, the facts set out in paragraphs 33, 36–38, 44, 50–52 and 54–56, above, were capable of supporting the Minister’s conclusion thatthere were reasonable grounds to suspect that Mr. Farwaha had engaged in the conduct described in paragraphs 509(

b) and 509(

c) and,thus, that Mr. Farwaha posed a risk to the security of marine transportation. [100] One way of assessing whether a decision is reasonable—a “badge of reasonableness”, so to speak—is to assess whether it isconsistent with the purposes of the provision authorizing the decision and the purposes of the overall legislation: see Montréal (City) v.Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paragraphs 42 and 47. I canvassed the purposes of the SecurityRegulations, at paragraphs 12–19, above. [101] The Minister’s decision is consistent with these purposes.

There is a basis for the Minister holding a reasonable suspicion that Mr.Farwaha has been associating with the Hells Angels and others who are involved in criminal activities and that he has been involved inother criminal incidents, including incidents where there has been violence and threats of violence. There is a basis for the Ministerholding a reasonable suspicion that Mr. Farwaha might be suborned into acts that would threaten the security of the Port. These mattersare covered by paragraphs 509(

b) and 509(

c) and raise the very sorts of security concerns the Act is meant to address. [102] The tenor of the Federal Court’s decision was to second-guess the Minister on matters of fact-finding, requiring him to insist onstandards of evidence much higher than that required by the section. To similar effect was the tenor of Mr. Farwaha’s submissions. Thisdoes not apply a sufficiently deferential approach to the Minister’s decision under the legislative standards governing that decision. [103] The Federal Court and Mr.

Farwaha also found fault with the Minister for not taking into account all of the material before himand, in particular, Mr. Farwaha’s final submissions dated March 30, 2011. Closely related to this is the adequacy of the Minister’sreasons for decision. [104] In my view, the Minister’s reasons were adequate. The reasons for decision include the decision letter and the record upon whichthe Minister made his decision. When the record of this case is reviewed—and much of it is set out above—the grounds for theMinister’s decision are apparent.

It is also trite that the Minister’s reasons need not explicitly deal with every argument and submissionmade. Above, I have noted that all of Mr. Farwaha’s letters containing evidence and submissions were in the Minister’s file and theMinister stated that he considered the materials in the file: see paragraph 59, above. I would add that Mr. Farwaha’s March 30, 2011

submission, said to have been ignored by the Minister, added nothing new to the previous information Mr. Farwaha supplied: see paragraph 58, above. [ 105 ] Overall, the Minister’s decision exhibits transparency, intelligibility and justification and is supportable on the basis of the record placed before it. See Dunsmuir , above, at paragraph 48 and see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708. [ 106 ] For the foregoing reasons, I conclude that the Minister’s decision was reasonable.

(3) The procedural grounds [ 107 ] The Federal Court held that Mr. Farwaha had a legitimate expectation that a special office known as the Office of Reconsideration would be involved and would supply advice to the Minister that was independent of the Minister’s own advisors. As this was not done, Mr. Farwaha was not afforded procedural fairness. [ 108 ] In support of that conclusion, the Federal Court relied upon information set out on a website regarding how the Minister’s reconsideration process works.

On that website, the Office of Reconsideration was described as an “interim, short-term solution for the reconsideration process”. [ 109 ] In my view, this may not qualify as the sort of “clear, unambiguous and unqualified” promise that is necessary for the procedural doctrine of legitimate expectations to apply: Canada (Attorney General) v. Mavi , 2011 SCC 30 , [2011] 2 S.C.R. 504, at paragraph 68 ; Agraira , above. The website made it clear that the process, relatively new, was in flux. The office was “interim” and “short-term”.

There were no guarantees. [ 110 ] However, the Security Regulations were accompanied by a lengthy and detailed Regulatory Impact Analysis Statement: Canada Gazette ,

Part II, Vol. 140, No. 23 [November 15, 2006], at pages 1742–1757. The Regulatory Impact Analysis Statement dealt specifically and extensively with the Office of Reconsideration, describing its role and function. It was to be “completely independent”, would be assisted by “independent advisors”, and, after “review[ing] [any] applications for reconsideration”, would give “a recommendation to the Minister to either confirm or reconsider the original decision on the file” (at page 1754). [ 111 ] These words must be interpreted against the context leading up to the enactment of the Security Regulations .

As noted in Reference re Marine Transportation Security Regulations , above, the introduction of security clearances in Canadian ports had been the subject of much controversy and had been hotly debated and challenged by many labour organizations representing affected employees, leading to labour unrest and judicial challenges. Seen in this context, the words of the Regulatory Impact Analysis Statement must be seen as a “clear, unambiguous and unqualified” promise within the meaning of the above authorities, triggering the doctrine of legitimate expectations.

In these circumstances, the Minister must keep his promise. [ 112 ] That being said, in my view I do not find a breach of procedural fairness warranting the quashing of the Minister’s decision. I offer two reasons. [ 113 ] First, it is true that Mr. Farwaha was given an assurance at one point that the Office of Reconsideration would be involved: see note to file dated July 20, 2009 (appeal book, page 157). However, in later correspondence, the Minister’s officials clarified the matter. By letter dated December 24, 2010, the Minister advised Mr.

Farwaha that the Program Review Board—not the Office of Reconsideration—would conduct a review. In his January 11, 2011 response, Mr. Farwaha queried the jurisdiction of the Program Review Board’s involvement. By letter dated March 11, 2011, the Minister’s officials clarified the roles of the Program Review Board and the Office of Reconsideration. From the March 11, 2011 letter, Mr. Farwaha should have understood that the office was not going to be involved in the manner he was told earlier or in the manner contemplated by the Regulatory Impact Analysis Statement.

In the circumstances, the March 11, 2011 letter called for response. But there was no response: in his final submissions letter of March 30, 2011, Mr. Farwaha did not raise the issue again. It must be taken from this that at least from March 30, 2011, Mr. Farwaha no longer had a concern about how the Office of Reconsideration was being involved in the matter. To the extent that the lack of involvement of the Office of Reconsideration was a procedural defect, Mr. Farwaha waived that defect and could not raise it on judicial review: see, e.g. Telus Communications Inc. v.

Telecommunications Workers Union , 2005 FCA 262 , 257 D.L.R. (4th) 19, at paragraphs 43–49 ; Kozak v. Canada (Minister of Citizenship and Immigration) , 2006 FCA 124 , [2006] 4 F.C.R. 377, at paragraph 66 . [ 114 ] Second, the Office of Reconsideration was, in fact, involved as an independent body at one point in the process and the Minister had the benefit of the office’s views when making his final decision. This is shown by the sequence of events that took place. On August 4, 2009, Mr. Farwaha submitted his application for reconsideration of the Minister’s cancellation.

The Office of Reconsideration (in the words of the Regulatory Impact Analysis Statement) “review[ed] the applications for reconsideration” and decided whether to make “a recommendation to the Minister to either confirm or reconsider the original decision on the file.” It prepared a report recommending that the Minister reconsider his cancellation of Mr. Farwaha’s security clearance. In the office’s view, the RCMP information supplied to the Minister was not “verifiable and reliable” because it was not “corroborated or supported in any way”.

With the assistance of the office’s report, the Minister then embarked on his own consideration of the matter. [ 115 ] As part of that process, the Minister’s officials followed up with police authorities to secure additional information. Though this additional information was sent to Mr. Farwaha for review and comment, it was not submitted to the Office of Reconsideration: see appeal book, pages 73 and 123. Rather, it was sent for assessment and recommendation to an internal departmental committee known as the Program Review Board.

The Minister was entitled to seek advice from it: subsection 517(5) of the Security Regulations . The Program Review Board recommended the cancellation of Mr. Farwaha’s security clearance. The Minister accepted that recommendation. In doing so, the Minister did consider the office’s report, albeit a report that did not examine the additional information. The report was in the Minister’s file that was produced in response to the rule 317 request: see appeal book, pages 97–100 and see paragraph 59, above. [ 116 ] Mr.

Farwaha also complains that his final submissions letter dated March 30, 2011 was not before the Minister when he decided to confirm the cancellation of his security clearance. As I have explained in paragraph 59, above, this letter appears to have been in the file that was placed before the Minister. In any event, as I noted at paragraph 58, above, this letter did not add any materially new

evidence and submissions to the Minister’s existing file. Mr. Farwaha also complains that two letters of reference submitted to theMinister did not appear in the material produced in response to the rule 317 request and, thus, were not considered by the Minister.However, these letters only confirm that he was a good worker with no discipline record. Finally, Mr. Farwaha complains that a briefingnote prepared by the Program Review Board for the Minister mistakenly stated that Mr. Farwaha did not respond to additional RCMPmaterials in late 2010 and 2011, when in fact he did: see appeal book, page 65.

However, that response offered little information otherthan flat denials of the sort made in previous submissions. It was also included in the material produced in response to the rule 317request so it was in fact before the Minister. [117] To the extent there was any procedural defect caused by these matters, it is not of the material sort that would justify a quashingof the Minister’s decision and remittal back to him: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 S.C.R. 202, (1994), 115 Nfld. & P.E.I.R. 334.

In these circumstances, remittal back to the Minister wouldbe futile. [118] At all stages of the process, the Minister provided Mr. Farwaha an opportunity to make his case. Although the Minister wassubject to an obligation to preserve the confidentiality of some aspects of the sensitive materials in his hands, he gave Mr. Farwahasufficient access to information to know the case against him and to make a meaningful response to it. Overall, the process was fair.

(4) Other issues [119] In his memorandum of fact and law, Mr. Farwaha submitted that the Federal Court should have considered his submission thatthe Minister’s decision failed to comply with sections 7 and 11 of the Canadian Charter of Rights and Freedoms [being

Part I of theConstitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter)]. The shortresponse is that the Federal Court did not need to consider Mr. Farwaha’s Charter submissions as it granted his application on othergrounds. [120] Mr. Farwaha’s submission in the Federal Court was that the Minister infringed the principle in

section 7 and paragraph 11(

d) ofthe Charter that all persons are presumed innocent until proven guilty by relying on stayed or withdrawn criminal charges to supportcancelling Mr. Farwaha’s security clearance. Further, he submitted that the right to security of the person in

section 7 of the Charterprotects against “serious state-induced psychological stress”. [121] In no way does the Minister’s decision offend the principle that all persons are presumed innocent until proven guilty. TheMinister did not form the view that Mr. Farwaha was guilty of the conduct alleged in the criminal charges. Rather, the Minister relied onfacts concerning the incident that led to the charges, and also relied on other facts, in assessing whether there were “reasonable groundsto suspect” that Mr. Farwaha posed a threat to the security of the Port. A finding that Mr.

Farwaha should not hold a security clearance atthe Port in no way finds Mr. Farwaha guilty of a criminal offence. [122] Finally, the evidentiary record in this case does not establish the high level of psychological stress necessary to establish adeprivation of the right to security of the person in

section 7: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,[2000] 2 S.C.R. 307. Even if the evidentiary record established a deprivation of the right to secur

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