Docket: T-787-11
Citation: 2012 FC 347
Ottawa, Ontario, March 23, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JASON ROBERT EDWARD POULIOT
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Applicant
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and
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MINISTER OF TRANSPORT, INFRASTRUCTURE
AND COMMUNITIES
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks to set aside an April 11, 2011 decision by Transport Canada (Safety and
Security/Security Program Support) which denied him the transportation security
clearance which would have allowed him to work as a cargo handler for Federal
Express in a secure area of Toronto’s Lester B. Pearson International Airport. For
the reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Jason Robert Edward Pouliot, is employed by Federal Express (FedEx).
He sought promotion to the position of cargo handler at FedEx’s operations at Toronto’s Lester B. Pearson
International Airport. This
position required transportation security clearance from Transport Canada. Pouliot
applied for that clearance pursuant to section 4.8 of the Aeronautics Act,
RSC, 1985, c A-2 (Aeronautics Act).
[3]
The
application for security clearance involves a criminal records check. Through
this check Transport Canada became aware of an incident involving the
applicant that occurred on August 1, 2007. The applicant drove another
individual, Leo Peralta (Peralta) to a CIBC branch in Toronto, Ontario. While the
applicant remained in the parked car Peralta entered the bank and handed the
teller a hold-up note which demanded cash and indicated he was armed. Peralta
was given $2000 in cash by the teller and then re-entered the car and the two
drove off. The applicant was arrested and charged in connection to this
incident. The charges were later withdrawn.
[4]
On
February 25, 2011, Transport Canada sent the applicant a letter indicating
that the request for security clearance had been referred to the Advisory Board
for consideration. The letter summarized the facts regarding the August 1,
2007 incident as found in the police report it had received. The letter
referred the applicant to the Transport Canada Security Clearance Policy and
provided the link to an online copy of the policy. The letter invited the
applicant to respond and provide any additional information or extenuating
circumstances in relation to that incident.
[5]
The
applicant responded stating that he was completely unaware that Peralta was
going to rob the bank, that he did not participate in any way and that he never
received any money from the robbery. The applicant expressed his regret for
ever having trusted Peralta and emphasized his desire to continue his career
with FedEx.
[6]
The
applicant was informed, by letter dated April 11, 2011, that the request for security
clearance had been denied. The letter stated in part:
This is further to your application for a
transportation security clearance at the Lester B. Pearson International Airport and our letter dated February 25, 2011,
regarding the review of your application. Please be advised that the Minister
of Transport, Infrastructure and Communities, has refused your clearance based
on the information in your file and the following recommendation from the
Advisory Body:
The Advisory Body was unanimous in its recommendation
to refuse the applicant a transportation security clearance. An in-depth review
of the file, including the police report detailing the incident that led to his
recent criminal charge for Robbery, which was subsequently withdrawn, led the Advisory
Body to suspect that he is closely associated to an individual who is known or
suspected of being involved in acts of serious violence against persons or
property. The Advisory Body also reasonably believed, on a balance of
probabilities that he may be prone or induced to commit an act or assist or
abet any person to commit an act that may unlawfully interfere with civil
aviation. His written explanation did not provide sufficient information that
would compel the Advisory Body to recommend issuing a clearance.
Standard of Review and Issue
[7]
The
only issue submitted before the Court in this case was whether the applicant
was denied procedural fairness. Questions of procedural fairness are
reviewable on a correctness standard of review: Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
[8]
I
agree with the respondent that the applicant was not denied procedural fairness
and the application must be dismissed.
[9]
The
content of the duty of procedural fairness is largely informed by context, as
outlined in Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. Previous cases of this
Court have found that the level of fairness owed in this context is minimal. Where
what is at issue is a simple application for clearance or a permit made by a
person who has no existing right to that clearance or permit, the requirements
imposed by the duty to act fairly are minimal. The Minister must render a
decision that was not based on an erroneous finding of fact made in a perverse
or capricious manner or without regard for the material before him: see Motta
v Canada (Attorney
General),
[2000] FCJ No 27 at para 13.
[10]
In
cases in which an existing security clearance was either being revoked or not
renewed, the standard has been found to be slightly higher, but still on the
lower end of the spectrum. In Rivet v Canada (Attorney
General),
2007 FC 1175 at para 25, the Court held:
With these factors in mind, I agree with
the respondent that the duty of procedural fairness in this case is more than
minimal but does not require a high level of procedural safeguards (see, for
example, DiMartino v. Minister of Transport, 2005 FC 635, [2005] F.C.J.
No. 876 (F.C.) (QL), at paragraph 20). Thus, the procedural safeguards
available to the applicant in this case are limited to the right to know the
facts alleged against him and the right to make representations about those
facts. These procedural guarantees do not include the right to a hearing.
[11]
Thus,
as the respondent submits, even if Transport Canada were held to the higher of
the two standards of fairness articulated in this context, that standard was
clearly met: the applicant was informed of the facts alleged against him (his
involvement in the bank robbery) and was afforded the opportunity to make representations
about those facts and his suitability to receive a security clearance.
[12]
The
applicant submits that he was owed more than this, specifically, that Transport
Canada was obligated to inform him of the particular grounds upon which he may
be denied security clearance. In particular, the applicant contends that he
ought to have been advised that his susceptibility to influence by others and
his continued association with Peralta were both in issue. A similar argument
was put before Justice James Russell in Russo v Canada (Transport), 2011 FC 764
and was rejected. Justice Russell stated at paragraph 56:
The Applicant appears to be suggesting
that he should have been pre-warned of concerns that arose as part of the
investigative process so that he could have been in a position to refute
conclusions that were drawn only after the investigation took place and all of
the information was assessed. This is not a procedural fairness issue in my
view. The Applicant was fully aware of what a security check involved, and he
was even told at the interview with the Security Advisors what the purpose of
the process was and that there were concerns related to his criminal record.
The Applicant gave a full and forthright account on the issue of his conviction
for producing a Schedule II substance and his continued involvement with
marijuana use.
[13]
Similarly
in this case, Transport Canada informed the applicant that it was
concerned about granting security clearance in light of the August 1, 2007
incident and asked the applicant to present any information or explanation to
convince Transport Canada to grant the clearance.
[14]
The
considerations of susceptibility to influence and his association with others
are both indicated in the Transport Canada policy, although not in the February
25, 2011 letter. The letter expressly invites the applicant to consult the
policy. What the applicant seeks in this case is to require, as a component of
procedural fairness, an opportunity to refute or respond to the conclusions
reasonably arising from his conduct. To require that Transport Canada identify
in advance, as an aspect of advising the applicant of the case he had to meet,
which of the potential factors it might consider to be determinative of the security
clearance review would be to impose a higher standard of fairness than is owed
in this context and is unsupported by the jurisprudence cited above. It is
sufficient that the applicant be put on notice of the range of factors,
considerations and criteria that Transport Canada may consider in making its
decision as to his suitability to obtain a security clearance. As a result,
the application must be dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed.
"Donald
J. Rennie"
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