Date: 20100908
Docket: T-1095-09
Citation:
2010 FC 884
Ottawa, Ontario, September 8,
2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
DANY
FRADETTE
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant has been a manager with HMS Host International since 1998 and works
out of Pierre Elliott Trudeau Airport in Montréal. In order to
perform his duties, he needs access to restricted areas of the airport and in order
to gain this access he needs security clearance to obtain a pass.
[2]
The
applicant filed an application for judicial review of a decision of the
Minister of Transport, Infrastructure and Communities (the Minister), dated June
4, 2009, in which the Minister cancelled the applicant’s security clearance. The
decision was based on the applicant’s criminal record, which reveals that the
applicant was convicted of fraud on two occasions.
Background
[3]
In February
1992, the applicant was convicted of fraud under $1,000. In 2006, he was
convicted of fraud over $5,000. It has been established that the applicant
never tried to conceal his criminal record from the respondent.
[4]
When the
applicant began his employment in 1998, the Minister issued him a security
clearance in spite of the 1992 conviction. This security clearance was renewed
in 2004. Security clearances must be renewed every five years and, in January
2009, the applicant once again applied for a renewal of his security clearance.
A verification of the applicant’s criminal record revealed a second conviction
for fraud, this one for fraud over $5,000.
[5]
On March
3, 2009, Mary Ann Mattioli, Director of Security Screening Programs, advised
the applicant that the security screening had revealed the existence of the
above-mentioned offences and that this information had [translation] “raised doubts about his
being able to obtain security clearance”. Ms. Mattioli informed the applicant
that his file would be referred to the Transportation Security Clearance Advisory
Body (the Advisory Body), which would provide a recommendation to the Minister.
The applicant was also invited to submit additional written information to the
Advisory Body.
[6]
On March
4, 2009, the applicant wrote to Transport Canada. In his letter he explained the context
of his second conviction and added that the did not pose a threat to security:
[translation]
I received a notice warning me that my
security pass for P.E.T. Airport had been revoked due to my criminal record and
I hope that with my explanations about this record, you will understand that I
do not pose any threat to the airport or to my immediate employers, and I thank
you for taking the time to look into my case.
I will summarize and explain the
situation. I have been accused of things for which I was not responsible and
the position I held at the time made me a prime target for this accusation, and
in order to prevent a lot of problems for other people, and above all on my
lawyer’s advice, I opted to plead guilty, and this was all to prevent problems
this could have caused for other people, testifying, appearing in court etc… But
because of my lawyer’s bad advice I was charged anyway and unfortunately after
that I have had a criminal record.
I was sentenced on Sept. 8, 2004, and the
judgment was only handed down on February 9, 2006, which was a long time to
wait but this seems normal in the justice system. I served my sentence in the
community i.e. 9 months without disturbing the peace. I can provide documents
attesting to this upon request. It has now been 3 years since that ended, and I
have not been accused of anything since then. I made a mistake and learned a
lot from that mistake. All this time I have continued to work at the airport
without causing any problems, either for my employer or for the airport’s
security, by complying with airport security standards. I love my work and my
work environment at the airport, and I have now been working for 10 years as a
manager for HMS HOST.
[7]
On April
7, 2009, the Advisory Body recommended that the Minister cancel the applicant’s
security clearance on the basis of his two convictions for fraud. The recommendation
indicates that the information provided by the applicant was not sufficient for
the Advisory Body to recommend that security clearance be granted. This
recommendation was accepted by the Minister’s delegate on May 19, 2009, and the
applicant was informed of the Minister’s decision in a letter dated June 4, 2009,
signed by the Director of Security Screening Programs. The letter states that
the applicant’s security clearance was cancelled on the basis of the Advisory
Body’s recommendation.
Proceedings
[8]
On July 7,
2009, the applicant filed an application for judicial review of the Minister’s
decision to cancel his security clearance. However, this application was never
followed by the filing of the applicant’s record, as is required under Rule 309
of the Federal Courts Rules SOR/98-106. No affidavit was filed either,
in spite of orders to this effect.
[9]
The
respondent is asking the Court to dismiss the application for judicial review
on the sole basis that the applicant’s record is incomplete. Alternatively, the
respondent is asking that the Court not allow the applicant to introduce any
new evidence or arguments which do not appear in the application for judicial
review proceeding. At the hearing, I took the respondent’s objections under
advisement and allowed the applicant, who was representing himself, to submit
his arguments.
[10]
Having
regard to the objection about the status of his record, the applicant stated
that he did not fully understand the requirement to file a record with the Court
and explained that he was under the impression that the filing of his
application for judicial review was all that was required of him.
[11]
Regarding the
merits of his application for judicial review, the applicant argued that he
failed to understand why his security clearance had been cancelled given the
fact that when he received his first security clearance in 1998 and when it was
renewed in 2004, he had a previous conviction for fraud under $1,000, which did
not prevent him from being granted clearance. The applicant added that the
offences for which he had been convicted had nothing to do with aviation security
or with his work and that he did not pose a threat to security. The applicant
explained that he was asking the Court to set aside the Minister’s decision and
to grant him security clearance.
[12]
The
respondent, for his part, argued that it was the 2009 decision which was at
issue and that the circumstances in 2009 were different from those which
existed in 1998 and 2004; the security screening in 2009 had, for the first
time, revealed the applicant’s second conviction for fraud in 2006. Thus, the
applicant’s situation in 2009 was different than it had been in 1998 and 2004: he
had been convicted of a second fraud offence and this offence was more serious
than the one he had been convicted of in 1992. The respondent argues that, in
light of the applicant’s criminal record, the Minister acted within the
parameters of the discretionary power conferred upon him and that his decision
was reasonable.
Analysis
[13]
In the circumstances
of the present case, I do not find it necessary to make any determinations on
the respondent’s objections with regard to the applicant’s failure to file
either a record or an affidavit in the Court record since, on the merits, the
applicant has not demonstrated that the Minister committed any error that would
warrant the Court intervening and setting aside the decision to cancel the
applicant’s security clearance.
The Statutory and Regulatory Framework
[14]
The
Minister is responsible, under the provisions of the Aeronautics Act, R.S.C.
1985, c. A-2 (Act), for promoting safety in Canadian aerodromes, which includes
controlling access to restricted areas of certain airports. Under the Act and
the Canadian Aviation Security Regulations, SOR/2000-111 (Regulations),
the Minister’s role specifically includes the regulation and granting of
security clearance for individuals seeking access to restricted areas in
certain designated airports, of which Pierre
Elliott Trudeau Airport is one. In this
regard, section 4.8 of the Act invests the Minister with the power to “grant or
refuse to grant a security clearance to any person or suspend or cancel a
security clearance”.
[15]
Under
subsection 36(1) of the Regulations, the operator of a designated airport must
establish, maintain and carry out the stated security measures, specifically
those relating to the requirement of an identity card to access restricted
areas. The Regulations also provide for the requirement of a security clearance
for anyone to obtain a pass to gain access to restricted areas
.
[16]
For the
purposes of exercising his power with regard to security clearances, the
Minister adopted the “Transportation Security Clearance Program” (Clearance
Program), which sets out the procedures to be followed in the processing of
security clearance applications. The Clearance Program is administered by the
Director of Security Screening Programs for Transport Canada. This person reviews applications and
does the appropriate background checks, including verifying whether the person
applying for clearance has a criminal record. When the Director believes that
there is sufficient information to recommend the refusal of the security
clearance, he or she convenes the Advisory Body, which is composed of the
Director and two other members and which is responsible for undertaking a
complete review of the file and making a recommendation to the Minister.
Subsection II.35 1 of the Clearance Program provides that “[t]he Advisory Body
may recommend to the Minister the cancellation or refusal of a security
clearance to any individual if the Advisory Body has determined that the
individual’s presence in the restricted area of a listed airport would be
inconsistent with the aim and objective of this Program”. Following the
Advisory Body’s recommendation, the Minister then exercises the discretionary
power conferred upon him or her under section 4.8 of the Act.
Standard of Review
[17]
The case
law prior to Dunsmuir v. New Brunswick, 2008 SCC 9, had established that the applicable standard
of review for a decision of the Minister under section 4.8 of the Act was
patent unreasonableness (Lavoie v. Canada (Attorney General), 2007 FC
435; Fontaine v. Canada (Transport Canada Safety and
Security),
2007 FC 1160; Singh v. Canada (Attorney General), 2006 FC 802). In light of Dunsmuir,
the standard of review must now be reasonableness.
[18]
In the
case at bar, I am of the view that the Minister’s decision was within the
parameters of his discretionary power and that, in light of the applicant’s
criminal record, it was entirely reasonable. The applicant finds himself in an
unfortunate situation, given the consequences of the cancellation of his
security clearance with regard to his employment, but the fact that he
disagrees with the Minister’s decision does not mean the decision is
unreasonable.
[19]
The
applicant stated that he did not understand why the Minister cancelled his
security clearance when his situation in 2009 was similar to what it was when
he was granted his first security clearance, since at that time he already had
a fraud conviction on his criminal record. With respect, the applicant’s record
was not the same in 2009: a second conviction for a fraud-related offence, even
more serious than the 1992 conviction, had been added to his record. The
applicant claims that these offences are not related to his work and that he
does not pose a security risk. This may be true; however, in the absence of any
evidence that the process of verification breached the rules of natural justice
or procedural fairness or that the decision was unreasonable, the Court shall
not intervene. The Court cannot substitute itself for either the Minister or
those who are delegated authority to assess clearance applications and conduct
security checks. In this case, there is no evidence of unreasonableness or of a
breach of procedural fairness and I find the Minister’s decision to be entirely
reasonable.
[20]
For these
reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the application for judicial review be dismissed.
“Marie-Josée
Bédard”
Certified true
translation
Sebastian
Desbarats, Translator
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