Date:  20190703

Files:  566-02-12859 to 12861

 Citation:  2019 FPSLREB 64

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

Jerome Murphy

Grievor

and

Deputy head

(Canada Border Services Agency)

Employer

Indexed as

Murphy v. Deputy Head (Canada Border Services Agency)

In the matter of individual grievances referred to adjudication

Before:  James Knopp, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Pamela Sihota, Counsel, Public Service Alliance of Canada

For the Employer:  Caroline Engmann, Counsel, Treasury Board

Heard at Ottawa, Ontario,

March 18 to 22, 2019.

REASONS FOR DECISION

I. Introduction

[1]  Jerome Murphy (“the grievor”) worked as a senior program advisor for the Canada Border Services Agency (CBSA or “the employer”) classified at the FP-06 group and level at the time his grievances were filed.

[2]  While backpacking in Europe and Morocco in 1990 as a young man, before entering the public service, he was caught trying to smuggle hashish out of Morocco and was detained, charged, convicted, fined, and jailed for four months in that country.

[3]  The grievor joined the public service in 1991. In his initial personnel security assessment questionnaire, and on each of the five occasions his security level was renewed over the course of his 23-year career, when he was posed the question, “Have you ever been convicted of a criminal offence for which you have not been granted a pardon?” he checked the box indicating “No”.

[4]  Over time, the grievor obtained a Top Secret security clearance, which, in 2013, was due to expire, so a routine personnel security screening process was initiated to renew it. Records checks performed as part of this process revealed his Moroccan criminal conviction and incarceration.

[5]  As a result of the discovery of this adverse information, the grievor was summoned for a security interview, which took place in November 2014. He continued to withhold the existence of his criminal conviction throughout the interview until the interviewer finally confronted him with it. Only then did he admit to the conviction and provide a full explanation.

[6]  On January 14, 2015, the grievor’s reliability status was suspended, and on February 20, 2015, it was revoked. Reliability status is a condition of employment with the CBSA, so his employment was terminated. Both the suspension and revocation letters refer to him intentionally withholding information on his Moroccan drug conviction.

[7]  The suspension and revocation letters also refer to additional information obtained from the grievor in the security interview. The comments in the letters pertain to his drug use while employed by the CBSA and to his involvement in the illicit sex trade during his travels abroad.

[8]  The grievances against the suspension and revocation of the reliability status were filed on January 22, 2015, and March 12, 2015, respectively. They were denied at every level of the grievance process. This matter was brought before me for adjudication from March 18 to 22, 2019, in Ottawa, Ontario.

[9]  On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

[10]  The grievances are dismissed for the reasons which follow.

II. Summary of the evidence

[11]  The grievor began his career with the CBSA in 1991 at Pearson Airport in Toronto, Ontario, at which time the organization was known as Citizenship and Immigration Canada. He began as a port-of-entry examining officer, stationed in the immigration secondary area.

[12]  Over the years, he accepted several tours of duty, of varying durations, in North America and overseas, primarily processing visa applications. He began to specialize in intelligence activity, and from time to time, he was stationed abroad in positions in which he would frequently liaise with Canadian and international law enforcement agencies on human trafficking, fraudulent visa applications, stolen and forged passports, and smuggling activity.

[13]  Throughout his career, he has had access to many different databases containing sensitive and classified information. As the potential for his exposure to this type of information increased, his security status was enhanced, to the point where he was eventually cleared to the Top Secret level.

[14]  In October 2011, the grievor was stationed in Istanbul, Turkey, as an intelligence liaison officer. While working there, his Top Secret security clearance was due to expire, so in 2013, a routine process was initiated to renew it.

[15]  Kenneth McCarthy was the director of personnel security and professional standards at the time. He testified to the process involved in updating a Top Secret security clearance, part of which includes a law enforcement records check (LERC).

[16]  The Royal Canadian Mounted Police (RCMP) conducted the LERC by searching several law enforcement databases of a municipal, regional, national, and international nature. In a letter to the CBSA dated November 1, 2013, the RCMP indicated the following about the grievor:

... [he] was convicted outside Canada (RABAT) for a criminal offence related to drugs.

On October 24^th 2013, Morocco’s National Security office confirmed that the applicant has a criminal record for possession of narcotics in 1990. The applicant was incarcerated for a period of 4 months for possession and received a 500dh fine (Moroccan Dirham dollars which is approximately 63 Canadian dollars).

[17]  Mr. McCarthy referred to the applicable policies and procedures triggered by the receipt of this information, which departmental security personnel refer to as “adverse information”. In addition, he testified as to how the CBSA’s approach to security screening had changed in the years preceding this event as a result of several high‑profile corruption cases involving CBSA officials.

[18]  Following a Treasury Board submission in 2012, an enhanced process by the name of the “High Integrity Personnel Security Screening Standard” (HIPSSS) was put in place at the CBSA.

[19]  The HIPSSS process clearly articulates the procedure to follow when adverse information of this nature is obtained, and it involves reviewing the individual’s reliability status. The character traits under assessment are honesty, integrity, and trustworthiness, commonly referred to by departmental security as the “HIT factors”. Assessing them includes what is known as an “integrity interview” or, more commonly, a “security interview”.

[20]  CBSA policy on the treatment of adverse information consisting of a criminal record is contained in section 5 of its Standard on Security Screening, as follows:

The existence of a criminal record can, but may not be, sufficient grounds to deny or revoke a security status or clearance. A criminal record is to be considered in light of matters such as the type of criminal activity, the duties to be performed, the nature and frequency of the offence, and the passage of time.

[Emphasis in the original]

[21]  The following section, on “Adverse Information”, states the following:

Adverse information can, but may not be, sufficient grounds to deny or revoke a security status or clearance. When uncovered, such information is to be used as the basis for further investigation, including a security interview.

When adverse information reflects a recent or recurring pattern of questionable judgment that may negatively affect the performance of duties or that may lead to an inability or unwillingness to safeguard sensitive information, assets or facilities, a review for cause of the security status or clearance previously granted to the individual must be conducted.

...

[22]  Mr. McCarthy introduced the relevant documents from the grievor’s security file. In the security screening questionnaire accompanying his initial application for employment, and in every subsequent update, he ticked the box indicating “No” to the question pertaining to the existence of a criminal conviction for which a pardon has not been granted.

[23]  CBSA policy, in the Directive on CBSA Personnel Security Screening, under “Roles and Responsibilities” (s. 6.7. “Employees”), states, “Employees are responsible for ... Informing their manager of any issues affecting their Reliability Status or Security Clearance: Arrest or Criminal conviction ...”.

[24]  In an email dated September 12, 2013, the question was posed as to whether the grievor should be repatriated immediately from Istanbul. Ultimately, repatriation did not take place.

[25]  A security interview with the grievor was scheduled following his return to Canada in August 2014.

[26]  One of the policy considerations with respect to adverse information involves giving the individual a chance to explain the circumstances giving rise to it. The Standard on Security Screening, under the heading “Security Interview to Resolve Doubt”, reads as follows:

A security interview, in addition to being a standard component of enhanced security screening, can also be used as a means to resolve doubt or to address adverse information that is uncovered during security screening. A security interview provides an opportunity for the screening official and the individual to discuss any matters of concern and gives the individual the opportunity to explain the situation before a decision is rendered.

Individuals are to be provided with a statement summarizing the information available to enable them to be reasonably informed of the adverse or missing information ....

[Emphasis in the original]

[27]  Mr. McCarthy testified that the grievor was not told beforehand about the adverse information from Morocco, because an important indication of the individual’s honesty, integrity, and trustworthiness is to provide an unsolicited account of the circumstances giving rise to the adverse information.

[28]  The Standard on Security Screening states the following on assessing adverse information:

In arriving at a security screening decision, officials are expected to provide a fair and objective evaluation that respects the rights of the individual.

Adverse information concerning an individual is assessed with respect to the following:

• Its nature and seriousness;

• How recent it is;

• The surrounding circumstances, including frequency of the incident(s), the individual’s willingness to participate, the individual’s maturity at the time of the incident(s), the degree of rehabilitation since the incident(s), the potential for pressure, coercion, exploitation or duress; and

• Its implications for the individual’s reliability and whether the individual has been open about the information and has resolved, or appears likely to resolve, the concerns to which it gives rise.

When considering the significance of personal circumstances or behaviour that could lead to vulnerability, officials will not allow their own personal and cultural bias to affect their judgement. An individual’s personal circumstances or behaviour are only of security significance if they cause vulnerability to pressure or improper influence, or if they could cause the individual to commit a security breach.

[29]  Mr. McCarthy added that the purpose of the interview was more holistic than simply examining the circumstances that gave rise to the adverse information. In essence, the integrity interview was designed to form a crucial part of a complete reassessment of the individual’s reliability status. As such, it was designed to address the full range of elements underlying the HIT factors, including hobbies, interests, creditworthiness, finances, associations, dependencies, illegal or unethical activity, criminality, and real or perceived conflicts of interest.

[30]  An individual’s reliability status is a fundamental condition of employment with the CBSA. Should it be revoked, employment must be terminated. The severity of the consequences necessitates a high degree of procedural fairness. After carefully analyzing and assessing the results of the integrity interview, the interviewer prepares an investigation report (“the Report”) that at most may only make a recommendation to the CBSA’s Security Review Committee (SRC) to suspend the individual’s reliability status.

[31]  The SRC then holds a meeting to discuss the Report’s contents and the investigator’s recommendation. Then, the SRC makes a recommendation to the departmental security officer (DSO) as to whether suspending the person’s reliability status is warranted. The DSO makes his or her decision on the basis of the SRC’s recommendation.

[32]  If the DSO suspends the person’s reliability status, then he or she must afford the individual an opportunity to make submissions. The Report upon which the DSO’s decision is based is included in a disclosure package. Then, after submissions are received and the DSO has considered them, the DSO decides whether to revoke the individual’s reliability status.

[33]  At the time of the relevant events, William Sawchuk was a senior advisor/senior investigator in the CBSA’s Departmental Security division. He has extensive experience with security screening and internal investigations. In 2003, while with Transport Canada, he began dealing with adverse information pertaining to employees and with its impact on an employee’s reliability status and security clearance. In 2008, he was seconded to the Canadian Security and Intelligence Service for five years as a special liaison officer to Transport Canada with respect to security screening issues. Then, in 2013, he joined the CBSA as a senior analyst in its security screening section and was soon conducting what are referred to as internal “review-for-cause” investigations.

[34]  The grievor’s case falls in the category of a review-for-cause investigation, the purpose of which is to review whether there are sufficient grounds to suspend or revoke reliability status.

[35]  Mr. Sawchuk was assigned the grievor’s file and reviewed the information in it before scheduling an integrity interview with him on November 25, 2014. The “Security Interview Notification” sent to him opened with the following paragraph:

The Security Review & Investigation Section has determined that your Reliability Status and/or Security Clearance is subject to a Review for Cause in accordance with the Treasury Board’s, Policy on Government [Security] (PGS) as a result of concerns which have come to our attention. As part of this review, an interview has been deemed necessary. The purpose of this interview is to provide you an opportunity to provide information in a forthright and honest manner with respect to the concerns that have arisen and to answer all questions truthfully. Please be advised that failure to do so will not preclude this administrative investigation from proceeding. Should you choose not to comply with the prescribed requirements, we will be forced to render a decision without your input. This may result with a suspension of your Reliability Status, which is a condition of employment as a Government of Canada (GoC) employee. Accordingly, your presence is required ....

[36]  The grievor testified to having what he called “an inkling” that his arrest and detention in Morocco had given rise to the need for the Review for Cause. He hoped it was not so because he did not want to disclose the details of the incident. He was told he was entitled to have an observer present in the interview, but he testified that he did not want to have anyone present in case the Moroccan incident came up. He testified to not wanting anyone to know about it, and to having no intention of proactively disclosing it.

[37]  The interview was recorded, but no written transcript was made. It lasted close to three hours and involved only the grievor and Mr. Sawchuk.

[38]  Before the interview, Mr. Sawchuk described the reliability status reassessment process and explained the CBSA’s authority to conduct the interview. He stressed the importance of being open, honest, and forthcoming during the interview.

[39]  The preamble to the interview contains a number of statements designed to encourage honesty, including the following:

...

6. Do you agree that you will be open, honest and forthright here today?

7. Do you understand that in order to properly assess your reliability we may be taking [sic] about sensitive and/or personal issues here today?

8. Do you understand the need to disclose details about yourself and/or your associates?

9. Are you absolutely aware of your responsibility to raise all issues pertaining to your security clearance regardless of whether or not a specific question pertaining to a particular area is asked?

10.  Are you aware of the necessity to be open and truthful during this interview?

...

[40]  The grievor answered “yes” to all these preliminary questions.

[41]  A CD containing a recording of the interview was introduced as an exhibit at the hearing. The recording was played aloud in the hearing room. This took just under three hours.

[42]  When Mr. Sawchuk first asked the grievor about his trip to Morocco, the grievor replied he had been “[j]ust travelling around; on the hippie trail; that sort of thing.”

[43]  A few minutes later in the interview, the grievor was asked a second time about his activities and travel in Morocco, and he replied, “I stayed in cheap hotels all over the country, 20 or 25 different towns and villages and cities.”

[44]  A few minutes later, Mr. Sawchuk asked him a third time about Morocco, “Did you enjoy your time in Morocco?” And the grievor answered with words to the effect of, “Well, I expected better weather.”

[45]  When he was asked, “Did you encounter any security issues?”, the grievor replied, “Well, in Morocco, you get targeted as a tourist, it can be a stressful place to travel.”

[46]  In response to the question, “Was your safety a concern?”, the grievor replied, “Yeah, I was cornered a couple of times in carpet shops.”

[47]  When Mr. Sawchuk asked, “Anything that you felt was a concern? Police? Security? Safety?”, the grievor replied, “No.”

[48]  After a discussion about the grievor’s use of CBSA laptops and the potentially sensitive information in databases, the interview turned to issues of his interactions with women while he was abroad.

[49]  The grievor admitted to having been in nightclubs featuring adult entertainment and said “there was a lot of nudity”. He referred to these types of establishments as “girly clubs” in which prostitution was “the only point”, and he told Mr. Sawchuk he had been approached and propositioned a couple of times. The grievor emphasized he had refused such advances; he did not solicit any sexual activity and added that he did not particularly like those types of establishments.

[50]  The grievor spoke of how he “tended to get involved with girls who were not really professional prostitutes; you would develop a relationship, a friendship, with a girl, and hang out for a couple of days.” He said he would do some research beforehand and visit online dating sites, sometimes to arrange meetings in advance.

[51]  The grievor explained how in Bangkok, Thailand, some of the “country girls” would come into the city to meet with foreign men, adding “it was financial for them as well.” In the interview, he told Mr. Sawchuk he had been in Bangkok five or six times and that not every time, but most of those times, he was with a female.

[52]  When Mr. Sawchuk expressed his concern that some of the women might have been minors, the grievor said he was “100% sure they were not” and he “would not hesitate to ask for ID.”

[53]  When Mr. Sawchuk asked if the grievor had “exchanged cash for the services of a female”, the grievor responded with words to the effect that after two or three days together, he would give a parting gift of $200 to $250 (Canadian dollars). When he was asked how often and in what countries he would exchange cash for female company, he responded, “about 15 times in total, in Thailand, the Philippines, and Colombia.”

[54]  The interview turned to questions about illicit drug use, and the grievor admitted to having consumed marijuana, hash, and mushrooms. He started using marijuana in his second year at university and continued after he began working with the federal government, in 1991, 1992, and 1993. He said he was “winding down, going to parties.” He was part of what he described as an “artsy” social circle in Toronto, and he would go to their parties a couple of times a month and smoke marijuana.

[55]  At this point in the interview, Mr. Sawchuk asked the following questions (some of which were scripted from his interview template, and some of which were not) and received the following answers:

Mr. Sawchuk: “Have you ever engaged or been involved in any inappropriate activities or unlawful activity, whether lawful or questionable, like illegal drugs, fraud, smuggling, soliciting, or the illegal sex trade, providing government information?”

The grievor: “Just that lifestyle issue we talked about.” 

Mr. Sawchuk: “Never engaged, in any form, in these or other activities?”

The grievor: “No.”

Mr. Sawchuk: “Have you ever been questioned or investigated or had any interaction at all by a police or intelligence agency, such as RCMP, INTERPOL, CSIS, any foreign agency, either in Canada or abroad?”

The grievor: “No.”

Mr. Sawchuk: “Questioned? Detained? Looked into? Anything at all.”

The grievor: “No.”

Mr. Sawchuk: “During your travels, While you were ever taken aside, any airport, seaport, land crossing, and taken in for secondary questioning?”

The grievor: “No.”

Mr. Sawchuk: “No immigration issue, any smuggling activities, Morocco is known for that, Turkey is known for that. Were you ever suspected, or were you traveling with anyone who was suspected, anything at all.”

The grievor: “No.”

Mr. Sawchuk: “While you travelled abroad, personal, professional, any reason whatsoever, was there ever any issue, or anything ... I know I asked you this question already, any interaction with police or law enforcement, what about any other type of agency, it doesn’t matter what it is, I’m just throwing this out there, any concern about your actions or activities, anything at all.”

The grievor: “No.”

Mr. Sawchuk: “Have you ever been involved in any aspect of production or handling or anything involving illegal drugs. Distributing, possessing, other than what we’ve talked about during your university days or just a bit afterwards, has there ever been any issue where you handled, possessed, stored, distributed, smuggled, trafficked, anything involving illegal drugs whatsoever?”

The grievor: “No.”

Mr. Sawchuk: “While you travelled abroad, did you obtain any illegal drugs out there?”

The grievor: “It happened in Spain a couple of times.” 

Mr. Sawchuk: “What type?”

The grievor: “Hash.” 

Mr. Sawchuk: “Do you know where it came from?”

The grievor: “Probably from Morocco, that was the word, where it came from.”

Mr. Sawchuk: “So, in light of the fact that you have never had any police involvement, you’ve never been charged with anything, correct?”

The grievor: “Correct.”

Mr. Sawchuk: “Talking about in Canada or abroad?”

The grievor: “Correct.”

Mr. Sawchuk: “In light of the fact, you’ve never been jailed or in detention, in any form?”

The grievor: “No.”

[56]  Mr. Sawchuk then covered some other issues such as tax filings and database usage, and then asked a few scripted questions from his template, as follows:

Mr. Sawchuk: “Other than what we discussed, are there any issues involving yourself or anyone you associate with that you’d like to raise, which who is close to you that you would like to raise which you consider to be an actual or potential cause for security concern?”

The grievor: “No.”

Mr. Sawchuk: “Anything you want to revisit? Anything we’ve talked about so far that you want to add to? Clarify?”

The grievor: “No.”

Mr. Sawchuk: “Is there anything you would want to like to disclose that could potentially have a negative effect on your ability to maintain your reliability status?

The grievor: “No.”

Mr. Sawchuk: “Again, as I stated at the beginning of the interview, this is the opportunity for you to come forward with anything you deem could be potentially of concern to us, something that could potentially negatively affect your ability to keep your reliability status, which is a minimum requirement to maintain your position in government. Now is the time. Anything at all you want to talk about.”

The grievor: “I don’t have anything, no. Twenty-five years of pretty good conduct.”

Mr. Sawchuk: “Do you feel you have been honest, open, and forthcoming throughout this interview?”

The grievor: “Yes.”

Mr. Sawchuk: “One-hundred per cent?”

The grievor: “Yes.”

[57]  Mr. Sawchuk then revealed to the grievor the adverse information, specifically referencing Morocco, and the grievor said, “Well, there was an occurrence. Well, I got myself in a very difficult spot there. I ended up getting detained.”

[58]  Mr. Sawchuk asked, “Why didn’t you reveal that earlier?”, to which the grievor responded, “Well, I guess it’s a matter of survival sort of thinking, and a gamble that it wouldn’t have come up.”

[59]  The grievor went on to explain how he had heard from fellow travellers in Spain about an easy way to finance further travel, namely, purchasing and reselling hashish from Morocco. He purchased 1.5 kg of hashish for approximately $1000 (Canadian). When he tried to leave the country with the drugs to go to the Canary Islands to try and sell them, he was arrested and detained at an airport by Moroccan officials.

[60]  At this point in the grievor’s narrative, on the recording, one can discern an audible sound of a sharp intake of breath, after which the grievor can be heard to say, “Sorry, having a bit of an emotional reaction, I have stored a lot of this away for many years, hoping it would never come up.”

[61]  The grievor is heard to state to Mr. Sawchuk words to the effect of, “I am still not sure if I was convicted or what really happened there. I wasn’t necessarily aware. I was never clear about the realities; the proceedings were in French and Arabic, not English.”

[62]  After obtaining details about the Moroccan incident, Mr. Sawchuk returned to the issues surrounding the grievor’s drug use. He admitted to Mr. Sawchuk that he had continued to smoke marijuana occasionally up to approximately 2008.

[63]  After Mr. Sawchuk confronted him with the existence of the Moroccan drug conviction, the grievor also revealed that as recently as a couple of weeks before the interview, he had been in contact with his friend, Mr. S.C., from whom he had obtained marijuana in the past. The two were contemplating a trip to Montreal, and the grievor stated that he had wondered, “[i]f they might find something to smoke.” He added he had been curious because he had not smoked marijuana for several years, but felt conflicted as to whether to re-enter that lifestyle.

[64]  After the interview, Mr. Sawchuk prepared the Report recommending suspending the grievor’s reliability status.

[65]  The Report contained several pages’ worth of discussion on the grievor’s relationships with women while travelling abroad and included the following paragraphs:

26. [The grievor] admitted he attended what he termed “girly clubs that are in Bangkok” which were in fact clubs where prostitution or “female companionship” as he termed it, was prevalent. [The grievor] claimed he did not view his frequent presence at these clubs as a potential security risk or any possible compromise to his work functions. He claimed he went there out of curiosity.

27. [The grievor] admitted to attending prostitution/sex trade/adult establishments in Bangkok, Manilla [sic] and one strip club in Miami.

...

37. When asked if he had ever exchanged cash for the services of female companionship, [the grievor] stated he would provide the girls with gifts but would more commonly pay cash for their services. [The grievor] claimed that when he was with a girl for two or three days, he would typically pay on average $250.00 CDN for their services on each occasion.

...

42 [The grievor] then made the following statement in defense [sic] of his involvement with prostitution: “you could argue whether or not you can define any of it as prostitution”.

[66]  The Report also contained paragraphs about the grievor’s drug use, including the following:

82. When asked if he was a regular user of illegal drugs, [the grievor] claimed he wasn’t but did admit to using it “off and on”. He clarified that he never used illegal drugs during his postings in Miami, Taiwan, Turkey, etc. He admitted to using illegal drugs in Canada, Morocco and Spain.

83. [The grievor] revealed that he regularly obtained and consumed small amounts from [Mr. S.C.] when he had the opportunity. He also revealed that he would often approach [Mr. S.C.] and inquire about obtaining marijuana. [The grievor] admitted to giving money to [Mr. S.C.] for the purchase of drugs.

84. [The grievor] denied currently having any illegal drugs in his possession. He did however admit to discussing, with [Mr. S.C.] as recently as “a couple of weeks” ago (approximately mid-November 2014) about the possibility of obtaining marijuana the next time they get together either in Ottawa or Montreal.

85. [The grievor] said he inquired about obtaining marijuana from [Mr. S.C.] because “I was kind of curious as I haven’t done it in several years”. He also said “I was kind of torn as to whether or not I should get back into that”.

[67]  The Report described the grievor deliberately withholding information about his Moroccan drug conviction, as follows:

82. The Writer confronted [the grievor] about his history of false declarations on his security screening forms about not being convicted of a criminal offense [sic] for which he has not received a pardon since he first applied with the Government of Canada in 1991 (on five occasions from 1991 to 2013). The Writer also raised the issue of his deceit and failure to disclose during his Indoctrination interview that was conducted with CBSA security in 2007. [The grievor]’s response to this was that he truly was unaware of what legally transpired in Morocco and that different countries have different laws.

83. The Writer provided [the grievor] with one last opportunity to be forthcoming and to disclose anything else that he had not previously mentioned. [The grievor] replied “no – I think that’s the thing I was trying to keep hidden from you”.

[68]  The Report contained the following conclusions:

91. [The grievor] was less than open, honest and forthcoming at certain points throughout the interview, specifically about his illegal drug use. Furthermore, he repeatedly lied when responding to a number of very specific questions to which the Writer knew the answers regarding his travel and criminal activities in Morocco.

92. [The grievor] eventually admitted that he was consciously trying to conceal his criminal past from the Writer and would not have self-disclosed any of his past and on-going issues with illegal drugs or his arrest and incarceration in Morocco. Conversely, he appeared very open about his exploits in the illegal sex trade in various countries. At times he stated in a rather ‘matter-of-fact’ and open manner, appearing to imply that it was a normal and acceptable activity. [The grievor] also at times defended his participation with and solicitation of women in the foreign sex trade and argued whether ‘prostitution’ was in fact the correct word to describe what these women were involved in.

93. [The grievor] ultimately acknowledged to having consumed, purchased, sold and attempted to smuggle illegal drugs in multiple countries, and also admitted to contacting a friend upon his return to Ottawa from his posting in Turkey for the purpose of obtaining marijuana as recently as two weeks before his Review for Cause security interview. Furthermore, he admitted to having last consumed marijuana in 2009 and not in 1993 as he initially claimed. Given these facts, one can reasonably conclude that [the grievor] has displayed a long term pattern of consuming illegal drugs when the opportunity presents itself and has never fully abandoned his lifestyle involving illegal drugs as he claimed earlier in the interview. [The grievor] appears to maintain an attraction and susceptibility towards illegal drug activities.

94. [The grievor] has kept his criminal past a secret and has repeatedly lied about his drug conviction on his security screening forms since he became employed with the Government of Canada in 1991, a span of over twenty‑three years. Furthermore, he lied during his CBSA Indoctrination interview in October 2007 prior to being granted a TOP SECRET with Special Access security clearance, a vital requirement to work abroad as a foreign representative of the CBSA and the Government of Canada. Specifically, during the Indoctrination interview, [the grievor] replied “No” to the question ‘Have there been any civil or criminal proceedings (omit those you have received a pardon for) brought against you?’ [The grievor] has submitted his government security screening forms on five occasions since 1991 and he has repeatedly falsely declared “No” to the question ‘Have you ever been convicted of a criminal offense for which you have not received a pardon?’

95. Ultimately, [the grievor’s] actions and wilful intent to deceive are highly concerning, and bring his honesty, integrity and trustworthiness into question. Furthermore, [the grievor’s] judgement is highly questionable and therefore poses an unacceptable risk to the Agency.

[Sic throughout]

[69]  The Report was submitted to the CBSA’s SRC, which on December 22, 2015, recommended suspending the grievor’s reliability status.

[70]  Pierre Giguere, the CBSA’s DSO, accepted the recommendation. On January 14, 2015, he suspended the grievor’s reliability status and offered him 14 days within which to provide any relevant information and to explain the adverse information before Mr. Giguere made the final decision with respect to revoking or reinstating the grievor’s reliability status.

[71]  The grievor responded on January 27, 2015, with a brief letter that began with, “I have great feelings of regret and shame for the risk the Agency has incurred from my actions.” He indicated, “Although the investigator’s report is biased and contains inaccuracies, I acknowledge and take responsibility for the core issues that form the basis of the suspension.”

[72]  With respect to the Moroccan incident, the grievor added as follows:

...

In reference to omitting details concerning the occurrence in Morocco, I have always been uncertain as to whether I was convicted of a criminal offense [sic] or was incarcerated pending payment of a fine to the Moroccan Regis de Tabac. Basic legal rights, including being duly informed of the process, were not available to me. Then, after receiving a Government of Canada security clearance based on what I believed to be a thorough background and security check, I gained more confidence that the problem might not have been an issue.

...

[73]  In the letter, the grievor stated he wanted to keep his job: “I believe that my manager and I could manage any risk that my ongoing employment could pose, by restricting travel, among other things, for example.”

[74]  The SRC met for a second time, on February 15, 2015, to consider the grievor’s rebuttal. It acknowledged his remorse over the Moroccan conviction but noted the following: “[The grievor]’s rebuttal did not alleviate concerns around his dishonesty and dangerous behaviour (e.g; drugs and prostitution).”

[75]  Four members of the SRC recommended revoking the grievor’s reliability status, and one member recommended reinstating it. On February 20, 2015, the DSO revoked his reliability status, and his employment was terminated the same day. In the revocation letter, the DSO noted as follows:

...

While I appreciate the explanations you provided, I remain very concerned about your use of illegal drugs and that you continue to actively make inquiries into procuring marijuana for personal use. I am also concerned about your interest in soliciting the services of a prostitute or persons involved in the foreign sex trade during your travels abroad and your failure to acknowledge the risks that these activities place on you and the Agency. Finally, I am most concerned about your failure to be completely forthright, honest and truthful in your interviews with my security officials.

...

[76]  The grievor testified at length about his relationships with women during his travels. As in the security interview, he maintained that he has never solicited sex from a prostitute. Rather, he used online dating sites to arrange meetings with women when he travelled to their countries. On two different occasions in Bangkok, he met a woman at a bar, and they agreed to spend several days together. On both occasions, as it happened, sexual intimacy developed, but it was not, as the grievor put it, “bargained” for; it just happened. Also, on both occasions, he extended a parting gift of cash, in the amount of $200 or $250 (Canadian dollars). He insisted this did not amount to active participation in prostitution and the foreign sex trade, as the Investigator seems to have characterized it in the Report, and as the DSO referred to it in the reliability status suspension and revocation letters.

[77]  The grievor testified to limited drug use while he was employed by the CBSA, but he disagreed with the Investigator’s contention that he was a “frequent” user.

[78]  The grievor admitted having deliberately withheld, over the course of his entire career, the existence of the Moroccan drug conviction. He maintained he was still unclear as to what transpired there because of the language issue. He testified to having met with officials from the Canadian embassy while imprisoned in Rabat, but he admitted he did not seek clarification from them about what had transpired in the Moroccan courtroom. As a matter of fact, he has never made any inquiries with any agency as to what happened because he has always tried to keep this information hidden.

III. Summary of the arguments

A. For the employer

[79]  The employer argued that this case is purely about security issues. The actions taken have nothing whatsoever to do with the disciplinary realm. The adverse information arose while updating a Top Secret security clearance, and the employer’s treatment of such information is not disciplinary in nature.

[80]  Treasury Board policy instruments relating to security screening articulate some of the underlying principles. The following is from section 3.1 of the Policy on Government Security:

Security begins by establishing trust in interactions between government and Canadians and within government. In its interactions with the public when required, the government has a need to determine the identity of the individuals or institutions. Within government, there is a need to ensure that those having access to government information, assets and services are trustworthy, reliable and loyal. Consequently, a broad scope of government activities, ranging from safeguarding information and assets to delivering services, benefits and entitlements to responding to incidents and emergencies, rely upon this trust.

[81]  The essence of this case is whether it was a legitimate course of action, given all the circumstances, to suspend and ultimately revoke the grievor’s reliability status.

[82]  The case of Varn v. Canada (Attorney General), 2017 FC 1132 at paras. 46 to 48, sets out the test as follows:

[46]  The main issue for consideration in this application is whether the decision of the DSO is unreasonable. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 15-16 [Newfoundland Nurses], the Supreme Court of Canada held that a decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. As long as the decision-maker’s reasons allow the reviewing court to understand why it made its decision and permit the court to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria of “justification, transparency and intelligibility” are met (see also Dunsmuir at para 47).

[47]  In the context of security screening, assessments of risk involve the sensitive consideration of facts and careful fact-finding, tasks that normally entail a broad range of acceptable and defensible decision-making (see Farwha at page 94). Assessments of risk are forward-looking and predictive. By nature, these are matters not of exactitude and scientific calculation but rather matters of nuance and judgment.

[48]  Given the CBSA’s mandate for providing integrated border services that support national security and public safety, the decision-maker is entitled to err on the side of public safety, as in the contexts of aviation and marine security screening. This means that in balancing the interests of the individual affected and public safety, the interests of the public take precedence (see Randhawa v. Canada (Transport), 2017 FC 556 at para 18; Thep-Outhainthany v Canada (Attorney General), 2013 FC 59 at para 17; Salmon at para 83).

[Sic throughout]

[83]  The employer submits that the two main points to take from Mr. Sawchuk’s interview of the grievor are the pattern of dishonesty over a long period and the pattern of behaviour pertaining to drug use and prostitution. He was afforded ample opportunity to rebut the prostitution claims but did not; instead, he took a defensive stance. These patterns of behaviour raised serious and legitimate doubts about his honesty, integrity, and trustworthiness, which are the basis for analysis of an individual’s reliability status. Deficiencies in the HIT factors pose current, unmanageable and legitimate risks to the organization.

[84]  The grievor withheld material information he knew would reflect negatively upon him. What information will he withhold in the future? Trust is an essential component of the employment contract, as demonstrated as follows in Horne v. Parks Canada Agency, 2014 PSLRB 30 at para. 203: “The employer is entitled to be able to trust an employee.”

[85]  With respect to considering an employee’s rehabilitative potential, a useful framework for analysis in the context of honesty and trustworthiness issues occurred in Oliver v. Canada Customs and Revenue Agency, 2003 PSSRB 43 at para. 103. Although that was a disciplinary case, the discussion of rehabilitative potential is cogent, as follows:

103 The recognition of culpability or some responsibility for his or her actions is a critical factor in assessing the appropriateness of discipline. This is because the rehabilitative potential of the grievor is built on a foundation of trust, and trust starts with the truth. If a grievor has misled his employer, failed to cooperate with the legitimate investigation of allegations of conflict of interest, and refuses to admit any responsibility in the face of evidence showing wrongdoing, then re-establishing the trust necessary for an employment relationship is impossible....

B. For the grievor

[86]  The grievor argued the employer’s decision to suspend and revoke his reliability status was without cause, given his 23½ years of exemplary service and a clean disciplinary record.

[87]  Of the three grounds relied on to suspend and revoke the grievor’s reliability status, the least compelling by far was the contention that he was somehow involved in the illicit sex trade. There is no evidence of it. He provided a full and frank account of his personal life both on the witness stand and in the interview room. He has not consorted and does not consort with prostitutes.

[88]  Mr. Sawchuk made faulty assumptions about the grievor’s activities and made an unjustified leap in logic in arriving at his conclusions. Mr. Sawchuk’s report was the only basis upon which the SRC could make its recommendation and the only basis upon which the DSO could make his decisions. As far as prostitution issues are concerned, the Report is completely wrong.

[89]  The grievor also argued that Mr. Sawchuk’s report exaggerated the issue of his marijuana usage. Granted, possessing marijuana was illegal at the time, which is not good behaviour for an employee of a law enforcement agency and should have been worthy of some form of discipline, but it should not have formed part of the basis for revoking his reliability status. The risks posed to the CBSA by the occasional use of marijuana in the distant past were never adequately explained to the grievor.

[90]  The essential matter is the concealment of the Moroccan drug conviction, which the grievor argued should have been dealt with as a disciplinary issue. It then would likely not have led to his termination. He made a poor decision, but with a clean disciplinary record over decades of exemplary service, and given his excellent rehabilitative potential, he should have remained a productive employee.

[91]  The employer knew about the adverse information for over a year before the interview took place. If the dishonesty that that adverse information represented was such a vital security concern, why was he not immediately repatriated from Turkey and interviewed right away? He argued that the reason was that the employer knew that a criminal record from the distant past posed no genuine security risk.

[92]  The grievor submitted the case of Heyser v. Deputy Head (Department of Employment and Social Development, 2015 PSLREB 70, in which the grievor had falsified a medical certificate but the employer had allowed her to continue working for a year. Similarly, the grievor was permitted to not only remain at work but also to occupy an important position in a foreign posting involving a high degree of sensitivity. He argued that that should be a clear indication that the employer had few security concerns with the receipt of the adverse information.

[93]  A revocation needs to be based on genuine concerns about reliability. In Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37, no evidence of unreliability was found, and the same is true in the present circumstances. In this case, there is no evidence as to how the grievor posed a risk to the CBSA’s security.

[94]  In summary, the grievor contends that the matter should have been dealt with as a disciplinary issue, and as such, the revocation of his reliability status was not a legitimate course of action for the employer to have taken.

IV. Decision and reasons

[95]  This case cannot be characterized as disciplinary in nature. It is purely a security matter. The adverse information surfaced in the course of the renewal of a Top Secret security clearance, and everything flowed from that. It would have been highly irregular, under these circumstances, for the CBSA to have proceeded by way of the disciplinary regime. Whether termination would have resulted had it been dealt with under the disciplinary regime is not relevant. Although both the Grant and Heyser cases are clearly disciplinary in nature (entirely unlike this case, which must be viewed only as involving security-related concerns), both Grant and Heyser define the test for a current, unmanageable, and legitimate risk. The grievor’s reliability status was suspended and later revoked because of legitimate concerns that he posed a current, unmanageable and ongoing risk to the operations of the organization.

[96]  It is not fatal to the employer’s case that a significant period of time elapsed during which the employer was aware of the existence of the grievor’s undisclosed drug conviction, yet they continued to allow him to work in an area of high sensitivity. Witnesses for the employer made it abundantly clear that the Moroccan conviction was of concern and most certainly gave rise to the need for a review of reliability status. It was, however, the grievor’s continuing refusal in the interview to disclose the Moroccan drug conviction, despite many leading questions and invitations to do so (along with other information revealed in the security interview) that formed the basis for the decision to suspend and ultimately revoke the grievor’s reliability status.

[97]  The cause for suspending and revoking someone’s reliability status must be reasonable. The Supreme Court of Canada provided a lasting and useful definition of reasonableness in the context of administrative law in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47. Although the definition arose in the context of judicial review, it is still useful when describing the parameters of a reasonable decision, as follows:

[47] ... In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[98]  I find the grievor failed to disclose the existence of his Moroccan drug conviction for very dubious reasons. When Mr. Sawchuk asked him why he had not disclosed this earlier, the grievor’s reply speaks to his capacity for duplicitous behaviour. He said, “Well, I guess it’s a matter of survival sort of thinking, and a gamble that it wouldn’t have come up.” I find the grievor’s capacity for dishonest behaviour to present a legitimate current and ongoing risk to the security interests of the CBSA. For the following reasons, I find the suspension and revocation of his reliability status to have been the proper course of action.

[99]  In the Personnel Security Standard, “Appendix B - Guidance on Use of Information for Reliability Checks”, the standard against which reliability must be measured is articulated as follows:

...

3. In checking reliability, the question to be answered is whether the individual can be relied upon not to abuse the trust that might be accorded. In other words, is there reasonable cause to believe that the individual may steal valuables, exploit assets and information for personal gain, fail to safeguard information and assets entrusted to him or her, or exhibit behaviour that would reflect negatively on their reliability. Such decisions are to involve an assessment of any risks attached to making the appointment or assignment, and, based on the level of reliability required and the nature of the duties to be performed, a judgement of whether such risks are acceptable or not.

...

[100]  This case is not about theft or the misuse of assets or information. It is about behaviour that would reflect negatively on reliability and thus pose a risk to the security interests of the organization. The grievor’s dishonesty reflected very negatively on his reliability. Given the nature of the duties that the CBSA expected him to perform, his willingness to lie in order to further or to protect his own interests creates an unacceptable risk.

[101]  A brief observation is in order about the procedural fairness issue inherent in choosing not to follow departmental policy on disclosing the adverse information to the individual in question before he or she is interviewed about it. Although I appreciate Mr. McCarthy’s explanation that non-disclosure provides a more expansive opportunity for the individual to be forthcoming, I also appreciate the grievor’s contention that that practice is “Kafka-esque”. In Franz Kafka’s The Trial, the protagonist is summoned to a trial but is never told about the nature of his alleged criminality, which gives rise to paranoia and suspicion about the true motives underlying the trial process.

[102]  In this case, I fully appreciate the grievor’s position because proceeding in such a manner may appear to be unfair. However, I also fully appreciate the need for the CBSA’s policy to the effect that receiving adverse information requires a full reassessment of reliability status.

[103]  Although it may seem distasteful and perhaps somewhat unfair, I must agree with Mr. McCarthy that under the present circumstances, with a total of five prior security screening questionnaires on file, each indicating no criminal convictions, the CBSA was justified in withholding that information until the grievor was given ample opportunity to disclose it in course of the security interview.

A. Suspension of reliability status

[104]  The DSO’s decision to suspend the grievor’s reliability status followed the SRC’s review. The DSO is not bound to accept the SRC’s recommendations, but the SRC review is an important step and is based entirely upon the Report. The Investigator was apparently present at the SRC review and might have been available to answer questions or address specific points, but the Report is the driving force behind the SRC’s recommendation.

[105]   Mr. Sawchuk’s report listed three areas of concern with the grievor: his involvement in the illicit sex trade while traveling abroad, his illegal possession and use of marijuana, and his dishonesty with respect to the Moroccan conviction.

[106]  I find Mr. Sawchuk’s characterization of the grievor’s relationships with women while he travelled abroad to have almost completely missed the mark. The grievor was candid about his use of online dating sites and his female companionship while abroad. However, to be properly characterized as active participation in the illicit sex trade, more detail about what actually happened with these women would have been required.

[107]  Mr. Sawchuk asked no questions about the nature of the grievor’s relationships. He did not even ask the grievor whether he had had sex with the women. Once he learned that money changed hands, it seems that Mr. Sawchuk immediately leapt to the conclusion that the grievor solicited the services of prostitutes. This was a serious allegation which was simply never substantiated.

[108]  Mr. Sawchuk’s report repeatedly refers to the grievor paying cash for “the services of female companions”, without any qualification. That type of sentence clearly implies that the “services” in question were purely sexual.

[109]  At no point in the interview was there ever a discussion about what prostitution consists of, namely, the payment of a specific amount of money in exchange for the provision of specifically agreed-upon sexual services. The grievor vigorously denied engaging in such activity, but somehow, the Investigator’s assumptions coloured how the Report was written so that by the time the information came before the SRC and the DSO, the Report gave the clear impression that the grievor routinely and actively participated in the illicit sex trade.

[110]  Therefore, that particular aspect of the Report was not a legitimate basis for suspending or revoking the grievor’s reliability status.

[111]  With respect to the grievor’s consumption of marijuana, I find the Report accurately observes the following:

...

93.  One can reasonably conclude that [the grievor] has displayed a long term pattern of consuming illegal drugs when the opportunity presents itself and has never fully abandoned his lifestyle involving illegal drugs as he claimed earlier in the interview. [The grievor] appears to maintain an attraction and susceptibility towards illegal drug activities.

...

[112]  Willing participation in any illegal activity is problematic for a law enforcement officer, from whom a higher standard of behaviour is required. This behaviour constitutes an ongoing and unmanageable risk to the security interests of the organization.

[113]  It is not up to the individual law enforcement officer to pick and choose which laws are important enough to obey. Granted, possession of marijuana was a relatively minor offence in 2014 and is not illegal today. The security risk that arises, though, has everything to do with the CBSA’s legitimate concern about other forms of illegal activity, minor or otherwise, the grievor may choose to condone or participate in. This is an ongoing and unmanageable risk to the security interests of the CBSA and I find it was a legitimate basis for the suspension and the revocation of reliability status.

[114]  The question may be posed, in the abstract, whether or not this one factor would have carried sufficient weight to suspend or revoke.  Likely, it would not have, but I need not address that hypothetical question here.  Suffice to say the grievor’s marijuana usage, and his reluctance to be completely forthcoming about it when invited to do so in the interview, is undoubtedly one factor which was properly taken into account.

[115]  The weightiest variable in this equation, however, is the grievor’s failure to divulge his arrest, detention, and criminal record for drug possession in Morocco. In fact, every time he was required to update his security clearance, he checked the box indicating “No” beside the question which asked, to paraphrase, “Have you ever been convicted of a criminal offence for which a pardon has not been granted?”

[116]  In the Report, Mr. Sawchuk correctly observes that the grievor did himself no favours by withholding this information during the security interview, despite Mr. Sawchuk’s several very leading questions about the grievor’s travels in Morocco and his direct questions about arrest and detention. The SRC legitimately drew a negative inference about the grievor’s honesty, reliability, and trustworthiness on the basis of Mr. Sawchuk’s accurate depiction as to what transpired in the interview.

[117]  The grievor’s tendency to lie to protect his own interests creates an ongoing and unmanageable risk to the organization. The decision to suspend his status was legitimate given all the circumstances of the case. His grievance pertaining to suspension of reliability status fails on this basis.

B. Revocation of reliability status

[118]  This grievance pertains to the decision to revoke the grievor’s reliability status, which involved an important procedural step. The grievor was given 14 days to provide any relevant information for the DSO’s consideration and to explain the adverse information before a decision on revocation was rendered.

[119]  The grievor provided a letter dated January 27, 2015, in which he acknowledges “... the risk the Agency has incurred from my actions.” He correctly observes that the Report “... is biased and contains inaccuracies”, but he does not identify or correct them in his letter. Nor does he point out the Investigator’s obvious bias pertaining to the grievor’s relationships with women. He does not mention the prostitution allegations at all. Rather, he quite candidly admits, “... I acknowledge and take responsibility for the core issues that form the basis of the suspension.”

[120]  Unfortunately, the grievor still chooses to be less than fully accountable. One of the reasons he routinely provides for not disclosing the Morocco events is, as the grievor stated in his interview with Mr. Sawchuk, that he was “unsure of what actually transpired over there.” In his January 27, 2015, letter, the grievor states as follows:

...

In reference to omitting details concerning the occurrence in Morocco, I have always been uncertain as to whether I was convicted of a criminal offense [sic] or was incarcerated pending payment of a fine to the Moroccan Regis de Tabac. Basic legal rights, including being duly informed of the process, were not available to me. Then, after receiving a Government of Canada security clearance based on what I believed to be a thorough background and security check, I gained more confidence that the problem might not have been an issue.

...

[121]  Mr. Giguere testified to his reaction to the grievor’s rebuttal letter. He said the grievor’s candid admissions to the core issues, namely, drugs, prostitution, and repeatedly not disclosing the Moroccan incident, were sufficient to confirm the risk he posed to the CBSA by virtue of his character traits. With respect to the HIT factors, the grievor had shown himself to be dishonest and untrustworthy and that he lacked integrity.

[122]  With respect to the last component, integrity, Mr. Giguere explained his personal definition of this term as “doing the right thing even though you know nobody is watching.” This is a good interpretation of the word “integrity”. Only the grievor knew about the Moroccan incident; any reasonable person would know that it was a material fact that needed to be disclosed.

[123]  Mr. Giguere testified to the likely implications should the grievor have chosen to openly declare his Moroccan criminal conviction at the time he first applied to the public service, in 1991. He stated, “He would not have been hired. He would have been considered too great a risk.”

[124]  Mr. Giguere explained that thus, the grievor displayed a lack of integrity by wilfully withholding material information, to avoid jeopardizing his career, noting, “He was only hoping it would never come out.”  Mr. Giguere testified to the CBSA’s need to be able to trust its employees to ensure service delivery.

[125]  Mr. Giguere also drew attention to the latter paragraphs of the grievor’s letter, in which he promises “... all risky behaviour will not occur again”, and that the risk can be managed “by restricting travel”. That offered little comfort to Mr. Giguere and served only to reinforce his conviction that the grievor was fully aware of the significant risks his behaviour posed to the CBSA.

[126]  The SRC recommended the revocation by a vote of four members to one. It noted as follows in its recommendations:

...

• In his rebuttal, [the grievor] demonstrated remorse, explained that he did not fully understand the legal implications of what happened to him in Morocco in 1990, he has had a high performing career, and that he should be given a second chance to regain management’s trust.

• [the grievor]’s rebuttal did not alleviate concerns around his dishonesty and dangerous behaviour (e.g; drugs and prostitution).

...

[127]  I find that even had the grievor provided a much more detailed account of his romantic exploits while abroad, it would not have carried sufficient weight to dissuade the SRC or the DSO from their conviction that he posed too great a risk to the CBSA because of his lack of honesty, trustworthiness, and integrity. The SRC’s final recommendation is brief and to the point: “The issue of concern is not the 1990 drug conviction, nor [the grievor]’s seemingly excellent record since then, but rather, his dishonesty at the security interview and his current high risk behaviour.”

[128]  The grievor presented additional evidence after the revocation and his termination in what he referred to as his “angry letter” of May 5, 2015. In it, he finally addresses the investigative bias in the prostitution issue and provides a more fulsome explanation of his occasional marijuana use. He also revisits the Moroccan incident in the following terms:

...

11. Concerning the problem I had in Morocco over 25 years ago, I received no due process in that case and was never informed of the legal disposition. If in fact it has been confirmed that I was convicted I now realize that my responses to questions on security forms were incorrect but I did not knowingly respond falsely....

...

[129]  The grievor testified to having presented those arguments at his grievance hearings, unsuccessfully. He repeated them in his testimony at the hearing. He is to be commended for his honesty in admitting, under oath, his determination to keep the Moroccan conviction hidden from his employer and his decision to knowingly withhold it despite his inkling that this was the very reason for the security interview. It must have been difficult for him to provide such evidence at a public hearing.

[130]  However, his admission is a double-edged sword because in so doing, the grievor has removed any doubt about the risk he poses to the employer’s operations. Although he was truthful on the witness stand about his motivation to keep the Moroccan incident hidden, he revealed a willingness to lie about a material fact to further his own interests.

[131]  I will consider two other aspects to the grievor not disclosing the Moroccan incident. First, just how material was that fact? When the adverse information came to light, he was working in an official capacity in a country in which drug smuggling is a serious problem. Dated as it was, the Moroccan conviction was most certainly a material fact in 2014.

[132]  It was even more material when it was current information. In 1991, had he revealed the information on his first security clearance questionnaire, Mr. Giguere made it clear the grievor would not have been hired because he posed too great a risk. The grievor knew this as well because he admitted withholding this information so as not to jeopardize his career prospects.

[133]  The one remaining element of the grievor’s testimony about the Moroccan incident is the only aspect of his story that affects his credibility as a witness, but it has a significant effect because of the implications with respect to his reliability.

[134]  Faryna v. Chorny, [1952] 2 D.L.R. 354, provides useful guidelines on assessing witness credibility:

... The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions....

[135]  The grievor claims not to have fully understood what happened in Morocco.

[136]  Let us place any practical and informed person “... in that place and in those conditions.” Let us suppose that the practical and informed person is currently travelling in Morocco but is running out of money. One way to finance his or her continued travel vacation is to buy hashish cheaply in Morocco and sell it dearly in the Canary Islands. The problem is getting the drugs out of Morocco first! Knowing possession of the drugs is illegal, the practical and informed person hides them under his or her clothing.

[137]  The practical and informed person will not be surprised when, after a pat-down search reveals the hidden drugs, the drugs are confiscated, and the person goes directly to jail. Eventually, he or she is formally escorted into a courtroom where certain proceedings take place, some of which obviously pertain to the practical and informed person. A fine is paid, and after four months in prison, the doors swing wide.

[138]  Notwithstanding that the proceedings are in an unknown language, the practical and informed person no doubt has a clear understanding of what has just happened: he or she has just been detained, arrested, convicted, and jailed for drug smuggling.

[139]  Whatever validity this excuse for non-disclosure might enjoy gets whisked away by the grievor’s admission that despite meeting in prison with Canadian embassy officials (who were likely quite well placed to remove any nagging doubts as to what might have transpired in that Moroccan courtroom), no questions were ever asked of them. He testified to never having formally followed up on his curiosity about the validity of the Moroccan proceedings.

[140]  There was no need to ask any questions because there was never any doubt as to what happened in Morocco. This excuse damages the grievor’s credibility, and I find it is disingenuous to use it as a reason for not providing full, true, and plain disclosure.

[141]  The decisions to suspend and then to revoke the grievor’s reliability status were legitimate, given all of the circumstances of the case. The termination of his employment was justified.

[142]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

 

V. Order

[143]  The grievances are dismissed.

July 3, 2019.

James Knopp,

a panel of the Federal Public Sector Labour Relations and Employment Board