Date: 20071115
Docket: T-903-06
Citation: 2007 FC 1175
BETWEEN:
JEAN-RENÉ RIVET
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
TRANSPORT CANADA,
SAFETY AND SECURITY
Respondent
REASONS FOR
JUDGMENT
Pinard J.
[1]
This
is an application for judicial review of a decision of the Minister of
Transport, Infrastructure and Communities (the Minister), following the
recommendation of the Advisory Body of Transport Canada (the
Advisory Body) to cancel the applicant’s transportation security clearance
(TSC).
Facts
[2]
The
applicant has been a pilot since 1973 and an airline pilot since 1979. In April
2000 he began to work for Air Transat. For work purposes, he had to have
access to secure areas at the Montréal-Pierre Elliott Trudeau
International Airport. Therefore,
he held a TSC that was valid until the end of 2009. On March 23, 2005, he
signed a security clearance application to renew his TSC.
[3]
Under
subsection 4.3(1) of the Aeronautics Act, R.S.C. (1985), c. A-2 (the
Act), the clearance program is administered by the Director of Intelligence,
Transport Canada. The
Director conducted a security check on the applicant with the Royal Canadian
Mounted Police (RCMP). This check revealed that he had previously been charged
with two counts of fraud and one count of public mischief. The first charge of
fraud was for an amount over $5,000, the second for an amount under $5,000.
[4]
The
applicant was accused of having made false statements regarding an amount
exceeding $26,000 when he was working as an accountant and with having kept the
money owed by an electrical company to the government for taxes. He also
falsely reported to the police that his all‑terrain vehicle (ATV) had
been stolen in December 1998, and his insurance company reimbursed him
immediately. Some years later, during an investigation related to the charge of
fraud over $5,000, the police discovered the ATV in his garage. This discovery
led to two other charges against the applicant: fraud under $5,000 and public
mischief.
[5]
On
June 23, 2005, the applicant received a letter from Transport Canada informing
him that his file would be submitted to the Advisory Body, which would review
it and make a recommendation to the Minister as to the risk he posed to airport
security. The letter indicated that the applicant could consult the Transportation
Security Clearance Program Policy that was available [translation] “on-line” to familiarize
himself with the process that had been commenced. Last, the letter informed the
applicant that he could provide additional information or explanations to
support his position.
[6]
On
August 3, 2005, the applicant provided Transport Canada with
explanations for the charges of fraud under $5,000 and public mischief but did
not provide any information about the fraud committed while he was working for
his former employer. On September 30, 2005, the applicant pleaded guilty
to the three charges. He was given a 23-month conditional sentence. On November
21, 2005, the Advisory Body decided to delay issuing its recommendation about
the applicant pending further information regarding his criminal file. On
March 10, 2006, the RCMP informed Transport Canada that the
applicant had been sentenced on the three charges.
[7]
Consequently,
on March 28, 2006, after completing its review of the applicant’s case, the
Advisory Body recommended to the Minister that his TSC be cancelled. The
Advisory Body noted in its recommendation that the applicant had been found
guilty of fraud over $5,000 while working in a position of trust for his former
employer and that his criminal activities had continued while he held a TSC. On
March 29, 2006, the Minister adopted the Advisory Body’s recommendation, and
the decision was communicated to the applicant on March 31, 2006. He received
the notice of cancellation of his TSC on April 7, 2006. On May 30, 2006, the
applicant filed this application for judicial review.
Issues
[8]
This
case raises the following issues:
- Is the
Advisory Body’s decision to cancel the applicant’s TSC an error of fact or
law?
- Does the
process that the Minister followed in making his decision comply with the
principles of procedural fairness?
[9]
To
reply to these questions, it is important to first clarify the relevant
legislative and regulatory context and to determine the appropriate standard of
review.
Legislative and
Regulatory Context
[11]
A
directive entitled “Airport Restricted Area Access Clearance Security
Measures” is incorporated by reference in section 4 of the Canadian
Aviation Security Regulations, SOR/2000‑111, which provides that only
persons who hold a TSC can obtain a restricted area pass for the aerodromes
listed in Annex A, which includes the Montréal-Pierre Elliott Trudeau
International Airport. The policy entitled “Transportation Security
Clearance Program” (the Program) governs how TSCs are issued.
Standard of review
[12]
To
determine the appropriate standard of review for judicial review of the
decision in question, four factors must be analyzed: (1) the existence of a
privative clause; (2) the expertise of the tribunal; (3) the purpose of the
legislation and (4) the nature of the question (Dr. Q v. College of
Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).
[13]
First,
there is no privative clause here and no right of appeal; however, clause II.45
of the Program provides that an application for review may be directed to the
Federal Court. It must also be noted that section 4.8 of the Act gives the
Minister broad discretion. It reads as follows: “The Minister may, for the
purposes of this Act, grant or refuse to grant a security clearance to any
person or suspend or cancel a security clearance.”
[14]
The
specialization of the decision-maker and the expertise of the members of the
committee must also be noted. The committee was composed of five members: the
Director of Intelligence, the Director of Intelligence for the CBSA, the Chief
of Intelligence and Security Screening Programs, a legal advisor and a
Transport Canada safety inspector.
[16]
Given
all of this context, I am of the view that the Minister’s decision to cancel
the applicant’s TSC should be reviewed against the patently unreasonable
standard, except where procedural fairness is concerned, in which case the
standard is correctness.
Error of fact or law
[17]
The
applicant alleges that the Minister’s decision cancelling his TSC is arbitrary
and unreasonable because the Minister did not take into account the conditional
sentence that he was given or that his fraud conviction had nothing to do with
his TSC or his employment as a pilot. The applicant adds that since his
conviction is not linked to violent crime or terrorism, it does not fall within
the objectives of the Program.
[18]
Last,
the applicant submits that the Minister’s decision contravenes section 18.2 of
the Charter of Human Rights and Freedoms, R.S.Q. c. C-12 [Quebec
Charter], which states that a person cannot be penalized in his employment
because he was convicted of a criminal offence if the offence is in no way
connected with his employment.
[20]
It
is important to point out that a law is arbitrary where it bears no relation
to, or is inconsistent with, the objective that lies
behind it (Chaoulli
v. Quebec (Attorney General), [2005] 1
S.C.R. 791). In this case, the Program’s objective is to prevent illegal acts
of intervention in civil aviation to ensure the protection of the public,
which, in my view, validates the decision in question to cancel the applicant’s
TSC. The Advisory Body had the very specific function of determining whether
the applicant represented a risk to air security.
[21]
It
should also be noted that the Quebec Charter affects only those matters
that come under Quebec’s legislative authority and does not apply to decisions
by the Minister acting within his federal jurisdiction (section 55; see also La
Reine and Marie-Blanche Breton, [1967] S.C.R. 503, and Henri Brun and Guy
Tremblay, Droit constitutionnel, 4th ed., Éditions Yvon Blais).
[22]
Despite
the fact that the applicant was granted a conditional sentence, the Minister’s
role was to determine whether he was a risk to air security. Considering that
the applicant had committed fraud while he was in a position of trust in
another employment, it was not unreasonable to conclude that he could pose a
risk to air security. The applicant had the opportunity to tell the Advisory
Body about his fraud charges and chose not to do so in a full and frank manner.
He is thus the author of his own misfortune. It is also important to note that
the applicant did not lose his licence or his right to be a pilot. The Minister
only revoked his TSC. Even though the applicant will probably encounter
difficulties, it has not been established that he could not possibly find another
position at another airport.
Procedural Fairness
[23]
As
I mentioned above, the appropriate standard of review for questions of natural
justice is correctness. However, the content of the requirement of procedural
fairness nonetheless varies according to the context of each case (Knight v.
Indian Head School Division No. 19, [1990] 1 S.C.R. 653). This principle is
particularly apt where Parliament, as in this case, has given the tribunal
discretion to develop its own procedure.
[24]
The
Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, at paragraphs 23 to 27, set out a
non-exhaustive list of five factors that can be considered in determining the
content of the duty of fairness: (1) the nature of the decision being made and the
process followed in making it; (2) the nature of the statutory scheme and the
terms of the statute pursuant to which the body operates; (3) the importance of
the decision to the individuals affected; (4) the legitimate expectations of the
person challenging the decision; and (5) the choices of procedure made by the
agency itself.
[25]
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.
[26]
Here,
it is clear that the applicant received notice of the Advisory Board’s
investigation and that he was invited to make representations before the
decision was made. Although the applicant maintains that the notice dated June
23, 2005, could have been more complete regarding the criminal charges against
him, it should be noted that at the time he received the notice, he had been
found guilty of two counts of fraud, one over $5,000, as well as one count of
public mischief. He therefore knew the case he had to meet and the scope of the
investigation. Be that as it may, he could have requested clarification and/or
given more detailed explanations about all the charges that had been laid
against him. On this point, as the respondent submits, it is instructive to
recall the information provided by the applicant in response to the notice of
June 23, 2005:
[translation]
Regarding the fraud, that dates back to
1998, my ATV was stolen and I reported the theft to the local police. I found
the ATV several weeks later and I never told the police and I was paid by the
insurance company. In 2002, the police came to see me and I handed over the
ATV, and by doing so, I reimbursed the insurance company for the claim.
[27]
The
police visit that the applicant referred to took place when they were executing
a search warrant concerning the charge of fraud over $5,000. Accordingly, the
applicant could not disregard the possibility that the fraud charge mentioned
in the notice of June 23, 2005, referred to acts committed when he was an
accountant. Despite the opportunity that was afforded him to provide
explanations about his entire criminal record, the applicant chose not to do
so. Under the circumstances, since the applicant is relying on a deliberate
omission on his part, he cannot argue that he was denied his right to be heard.
[28]
In
short, since the applicant did not ask for clarification and failed to provide
full explanations about all the charges against him, he cannot complain, as he
does, about a defect in the Advisory Body’s notice of investigation nor can he
argue that there was a lack of procedural fairness.
Conclusion
[29]
For
all these reasons, the intervention of this Court is not warranted, and the
application for judicial review must be dismissed with costs.
“Yvon Pinard”
Ottawa, Ontario
November
15, 2007
Certified
true translation
Mary
Jo Egan, LLB
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