Date:
20130321
Docket:
T-1030-12
Citation:
2013 FC 294
Ottawa, Ontario,
March 21, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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DINO PELES
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review challenging a decision by the Director
General of Aviation Security [the Director], on behalf of the Minister of
Transport, Infrastructure and Communities [Transport Canada], to cancel the
applicant’s transportation security clearance [TSC], thereby preventing his
continued employment at the Lester B. Pearson International Airport.
I. Background
[2]
For
purposes related to his employment at the Lester B. Pearson International Airport, the applicant was granted an airport security clearance in 2006 and it
was renewed in 2011. Each security clearance is valid for five years.
[3]
On
November 22, 2011, after the applicant’s security clearance was renewed,
Transport Canada sent the applicant a letter informing him that the TSC
Advisory Body [the Advisory Body] would be reviewing his security clearance
because adverse information had been made available that raised concerns as to
his suitability to retain a clearance. Officers of the Peel Regional Police
Service found the applicant in the passenger seat of a vehicle on June 6, 2009,
with $2,500 in cash in two clear plastic bags, as well as 471 grams of
marijuana, which has a street value of approximately $4,710. The applicant was
subsequently charged with possession of a controlled substance for the purpose
of trafficking.
[4]
Transport
Canada also had information of an incident on February 19, 2010, where Peel
Regional Police Service officers observed the applicant getting out of his
vehicle to get into the passenger seat of another vehicle, and after speaking
with the applicant and the driver of the other vehicle, the officers observed a
clear plastic bag filled with what appeared to be marijuana. Further searches
by the police revealed two cell phones on the applicant and approximately 14
grams of marijuana. The applicant was subsequently charged with possession of a
controlled substance for the purpose of trafficking. The letter noted that on
March 10, 2011, the charge was withdrawn.
[5]
The
letter invited the applicant to provide additional information outlining the
circumstances of the information noted in the letter and provide any other
relevant information or explanation to Transport Canada, including any
extenuating circumstances.
[6]
On
January 12, 2012, the applicant’s lawyer provided a one-page letter to
Transport Canada, explaining that the charges laid against the applicant in
June 2009 were withdrawn by the Crown on October 7, 2011. As for the charges of
February 19, 2010, the lawyer stated that the applicant had accepted a
diversion and the charges were withdrawn. The lawyer enclosed copies of the
Court Information for the charges and stated that his client had no prior
criminal record.
[7]
On
April 27, 2012, the Director sent the applicant a letter informing him that the
Minister of Transport, Infrastructure and Communities [the Minister] had
cancelled the applicant’s security clearance, based on the information outlined
in the aforesaid letter of November 22, 2011, the letter and documents provided
by the applicant’s lawyer on January 12, 2012, the Advisory Body’s
recommendation to cancel his clearance, and the TSC Program Policy. The
Director believed that, on a balance of probabilities, the applicant “may be
prone or induced to commit an act, or to assist or abet another person to
commit an act, that may unlawfully interfere with civil aviation”.
II. Issues
[8]
The
present application for judicial review raised the following issues:
A. Was
there a breach of procedural fairness in the process leading up to the impugned
decision?
B. Did
the Advisory Body err in finding that the applicant’s security clearance should
be cancelled?
III. Standard
of review
[9]
The
applicable standard of review with respect to whether the applicant’s right to
procedural fairness has been breached is correctness (Clue v Canada
(Attorney General), 2011 FC 323 at para 14 [Clue]; Rivet v Canada
(Attorney General), 2007 FC 1775 at para 16).
[10]
The
administrative decision to cancel an airport security clearance is reviewed on
the standard of reasonableness (Fradette v Canada (Attorney General),
2010 FC 884 at para 17; Clue, above, at para 14).
IV. Analysis
[11]
As
a preliminary objection, the respondent submits that the applicant’s affidavit,
sworn August 23, 2012, subsequent to the decision of the Minister that
cancelled the applicant’s security clearance and not before the Minister at the
time of the decision, is inadmissible (Ontario Assn of Architects v Assn of
Architectural Technologists of Ontario), 2002 FCA 218 at para 30, leave to
appeal refused, [2002] SCCA 316).
[12]
While
additional evidence may be admitted in limited circumstances, I agree with the
respondent that this is not such a case. The evidence of the applicant, filed
late, did not relate to questions of procedural fairness or jurisdiction, and was
available prior to the Minister’s decision, yet not relied upon before the
Minister, without any explanation.
[13]
I
find that the applicant’s affidavit is not admissible.
A. Was There a Breach
of Procedural Fairness in the Process Leading up to the Impugned Decision?
[14]
The
applicant submits that he was unable to submit character evidence “at an
earlier stage” for purposes of the Minister’s review.
[15]
The
applicant’s right to procedural fairness in the process leading up to the
impugned decision extended to (1) knowing the case he had to meet; and (2)
being given a meaningful opportunity to make representations (DiMartino v
Canada (Minister of Transport), 2005 FC 635 at para 36; Pouliot v Canada
(Minister of Transport, Infrastructure and Communities), 2012 FC 347 at
para 11).
[16]
The
applicant was advised by Transport Canada of the information the Advisory Body
would consider, and was given an opportunity to make representations, which his
lawyer did on his behalf on January 12, 2012 (Russo v Canada (Minister of
Transport, Infrastructure and Communities), 2011 FC 764 at paras 56-63).
[17]
There
was no breach of procedural fairness.
B. Did
the Advisory Body Err in Finding that the Applicant’s Security Clearance Should
be Cancelled?
[18]
The
applicant submits that the Minister’s decision was not reasonable, because the
charges against him were withdrawn with respect to both incidents of June 5,
2009 and February 19, 2010.
[19]
The
applicant further argues that his record of employment has been impeccable, his
education is specifically tailored to airport-related jobs, and that if his TSC
is not restored it will negatively impact both his and his mother’s quality of
life, as she is financially dependent on the applicant.
[20]
However,
while cancellation of the applicant’s security clearance prohibits him from
working in some areas of the airport, he can work in non-secure areas or
outside the airport.
[21]
It
is not necessary that a criminal conviction be made in respect of underlying
criminal charges in order for allegations to be relevant to the Advisory Body’s
decision to cancel the applicant’s security clearance. The analysis of Justice
Robert Barnes in Clue, above, at para 20, is pertinent:
Mr. Clue's complaint that the allegations against
him could not be relied upon by the Director because they had not been proven
against him in a criminal proceeding is without merit. The decision not to
prosecute Mr. Clue for the handgun incident is explained in the record as a
lack of evidence sufficient to meet a criminal standard of proof. For purposes
of revocation of a TSC [Transportation Security Clearance] the standard of
proof is much lower and requires only a reasonable belief, on a balance of
probabilities, that a person may be prone or induced to commit and act (or
to assist such an act) that may unlawfully interfere with civil aviation. This
provision involves an assessment of a person's character or propensities
("prone or induced to") and it does not require evidence of the
actual commission of an unlawful act: see Fontaine, above, at para 78,
81 and 83. What the Director is called upon to do is to examine a person's
behaviour to determine if, on balance, it supports a reasonable belief that a
person may in the future be inclined to act unlawfully in the context of
aeronautical safety...
[Emphasis added]
[22]
The
applicant made no effort to challenge the underlying facts for the charges made
against him, involving significant quantities of cash and drugs, even though he
was given the opportunity to do so by the Advisory Body. Counsel for the applicant
argues that the Minister should have checked with the prosecutor to ascertain
why the charges against the applicant were withdrawn. It begs the question why
the applicant did not offer any evidence to Transport Canada to explain why the charges were withdrawn, if such evidence could have been
persuasive. The decision of the Advisory Body was therefore reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
applicant’s application for judicial review is dismissed.
"Michael D.
Manson"
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