October 1, 2015 -
The Federal Court of Canada has refused to stop the implementation of the Canadian government’s new security screening system. The screening process for all of Canada’s public servants includes fingerprinting employees, along with mandatory credit checks and sweeping Internet profiling.
In March, Canada’s Treasury Board Secretariat, which is responsible for the federal civil service, confirmed that the government’s new standard on security screening for all employees would change. Government departments have until October 2017 to implement the new security standard, which replaces the current 20-year-old standard.
The Professional Institute of the Public Service of Canada (PIPSC) had sought an injunction to halt the security screening procedures. PIPSC, the government union that represents 35,000 scientists and other professionals, was upset about the amount of data that the government would collected for the “basic reliability status” required for any public service job. The union filed the injunction is to stop public servants from the “irreparable harm” of turning over all kinds of personal and sensitive information. As of 2014, it was estimated that there were 257,138 federal civil servants in Canada.
Under old security measures, fingerprinting, along with credit and criminal checks, were only conducted if a prospective employee was dealing with national security or financial transactions. But with the new security screening standard, these checks are now a blanket requirement for all job applicants.
Along with a criminal check, the new basic reliability status also requires a law enforcement inquiry. This entails gathering data from police databases, including convictions under the Youth Criminal Justice Act, and any records of peace bonds, restraining orders and mental health incidents, whether they resulted in charges or not. Basic reliability status will also require an Internet profile of current and prospective civil servants to gain insight into their ideology, associations and character.
The union said that credit and criminal checks, along with fingerprinting and public Internet searches are invasive and unnecessary for most ordinary employees that do not work in intelligence, finance or security. The union argued that screening measures force employees to reveal details about their lifestyle and personal choices, which in turn violate “reasonable” expectations of privacy.
The union also fears that such information will be used at the discretion of managers to determine whether a “best qualified” employee is the “best fit” for a job. Recent rule changes allow managers to favor the “best fit” over the “best qualified”.
As reported by the Ottawa Citizen, the Federal Court found the union raised a “serious issue” but failed to prove the key tests needed for an injunction. The court said the union did not provide “concrete evidence” of “irreparable harm” and offered only “speculative assertions” that the public interest would be harmed by proceeding.
“The applicants have raised one or more serious issues but have not established with any non-speculative evidence that any one of its members will suffer irreparable harm in the interim period,” the decision stated, according to the newspaper.
The court found that the government would face “irreparable harm” if it had to halt the process and that delay would not be in the public interest in ensuring Canada’s national security. The court also noted that: “There is also a public interest in maintaining international relations and in maintaining the trust and confidence of Canadians in the government employees who administer and deliver programs and services and have access to a wide range of information from and about citizens,” and that “[t]he public has an interest in ensuring that government employees who handle their information are properly screened.”
PIPSC is appealing the decision. The union’s injunction had been filed to protect employees in the interim, as PIPSC had also launched more comprehensive legal action against the federal government, arguing that the new security screening process is unconstitutional, violates the Privacy Act, and contravenes key principles of administrative law. That more comprehensive case has not yet been heard.
BiometricUpdate.com also previously reported that a number of unions, including PIPSC, have filed grievances against the government on behalf of a number of employees that allege that the new security procedures will result in an “impermissible breach of privacy” in violation of collective agreement clauses that oblige the employer to respect Canada’s Privacy Act.
The grievances also allege that the new rules breech section seven of Canada’s Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. PIPSC is also grieving the failure of the government to consult the union prior to introducing and implementing the new screening standard.