Date: 20130827
Docket: T-1231-12
Citation: 2013
FC 904
Ottawa, Ontario,
August 27, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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MICHAEL ANTHONY SYLVESTER
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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]
The applicant
seeks to set aside a decision by Transport Canada on June 7, 2012 which denied
him the transportation security clearance necessary to be employed at Toronto’s Billy Bishop International Airport.
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Transportation
Security Clearance Program
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Programme
d'habilitation de sécurité en matière de transport
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Redress
II.45
When a security clearance is cancelled or an application
for a security clearance is refused an application for review may be directed
to the Federal Court of Canada - Trial Division within thirty (30) days of
the receipt of the notice of cancellation or refusal.
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Redressement
II.45
Lorsqu'une
habilitation est révoquée ou qu'une demande d'habilitation est refusée une
demande d'examen peut être adressée à la Cour fédérale du Canada, Division de
première instance, dans les trente (30) jours suivant la réception de l'avis
de révocation ou de refus en supposant que la personne visée ne soit pas
décrite dans l'alinéa (a).
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[2]
For the
reasons that follow, the application is dismissed.
Facts
[3]
Under
the
Aeronautics Act, RSC 1985, c A-2, the Minister of Transport is
responsible for developing policies and regulations
to promote the security of Canada’s aviation system. This department’s current aviation security programs
include the National
Civil Aviation Security Program [NCASP], which articulates the efforts of
Transport Canada and other entities to help prevent acts of unlawful
interference and keep air travel secure. One element of the NCASP is the Transportation
Security Clearance Program [TSCP]. This program prevents access into restricted
areas of listed airports by any individual whom the Minister reasonably believes, on a balance of probabilities, may be
prone or induced to commit an act that may unlawfully interfere with civil
aviation. Section 4.8 of the Aeronautics Act authorizes the Minister to
grant or refuse to grant a transportation security clearance in order to gain
access to such areas.
[4]
Mr.
Sylvester submitted
an application for transportation security clearance on May 5, 2011 in order to
work as a ramp attendant for Porter Airlines. Officials at the TSCP’s Security
Screenings Program [SSP] requested a records check from the RCMP. In January
2012, the RCMP responded with a written report stating that on September 22,
1999, Mr. Sylvester was charged with three counts of theft after contacting an
undercover police officer to sell what he described as stolen clothes. A second
individual provided further items of clothing on August 23, 1999 and indicated
that a “Mike Sylvester” had stolen them with him while working as a ramp
attendant for Canadian Airlines. The applicant met with the undercover agent on
August 25, 1999 and collected payment for this second batch of items. The
report further stated that on August 30, 1999, Mr. Sylvester arranged to meet
an undercover officer to sell him a Sony PlayStation and several boxes of nail
polish and that investigation revealed that these items had been stolen from
Canadian Airlines by the applicant and another person while the applicant was
employed there as a ramp attendant.
[5]
The RCMP
report noted that the information had been validated by the respective agency
and could be shared with the applicant should Transport Canada deem it necessary.
[6]
The theft charges
were withdrawn for unknown reasons on April 17, 2002.
[7]
On March 13,
2012, the Chief of the SSP wrote to Mr. Sylvester to advise him that the SSP
had received information which raised concerns about his ability to hold a
transportation security clearance and that his application would therefore be
referred to the Advisory Body. She laid out the allegations in the RCMP report
and encouraged him to provide any additional information on the incidents,
including surrounding or extenuating circumstances, and to contact the SSP
branch if he had any questions about his clearance. Mr. Sylvester responded
with a letter asserting that he had no involvement in the 1999 thefts and
providing a court transcript indicating that the reason for the withdrawal of
charges was credibility concerns with one witness.
[8]
On May 9,
2012, the Advisory Body met and considered Mr. Sylvester’s application. It
concluded that the police report was strong and credible evidence of his
involvement in the 1999 thefts and that it suggested that he might be prone to
commit an act unlawfully interfering with civil aviation. It found that his
written explanation and supporting documents amounted to mere bald denials and
did not provide enough information to warrant recommending to the Minister that
he receive a clearance. A Ministerial delegate wrote to Mr. Sylvester on June
7, 2012 to advise him that his application had been denied.
Standard of
review and duty of fairness
[9]
The applicant
was unrepresented and provided no Memorandum of Fact and Law. The respondent
nevertheless fully described the standard of review and the content of the duty
of fairness in its Memorandum, which was further supplemented by the Court’s
explanations during the hearing.
[10]
The standard
of review of the Minister’s exercise of discretion on questions of fact
pursuant to section 4.8 of the Aeronautics Act has been found to be one
of reasonableness. This includes the involvement of the Advisory Body charged
with making security clearance recommendations. See Clue v Canada (AG), 2011 FC 323 [Clue] at para 14; Russo v Canada (Minister of Transport,
Infrastructure and Communities), 2011 FC 764 at para 20; and Fradette v Canada (AG), 2010 FC 884 at para 17.
[11]
On issues of
procedural fairness, the standard of review is correctness (see Clue). Previous
cases of this court have determined that the level of fairness in cases dealing
with the denial or revocation of security clearance should be limited to the
right to know the facts alleged against the applicant and the right to make representations
about those facts, without any guarantee of a right to a hearing. See Pouliot
v Canada, 2012 FC 347 at para 10, citing Rivet v Canada, 2007 FC 1175 at para 25.
[12]
There was
some issue raised by the applicant during the hearing that he was not aware
that he was required to provide more detailed answers to the letter of March
13, 2012. I have difficulty accepting this submission inasmuch as the letter
specifically requested additional information concerning the very numerous and
detailed incidents mentioned therein, including any surrounding or extenuating
circumstances. Moreover, during oral argument there was no indication given
that the applicant could add any further information of consequence to his
response in his reply letter beyond that he knew nothing about the situation
because he was not involved in the incidents in question.
[13]
I conclude
that the applicant was treated in accordance with the standard of fairness
applicable to the decision-making process refusing his security clearance.
Issue
of reasonableness
[14]
The applicant
submits that the decision was not reasonable in as much as he was not convicted
and the criminal charges were not proceeded with due to credibility issues
involving the Crown’s case.
[15]
The decision
was made pursuant to section 4.8 of the Aeronautics Act, which grants a
broad discretion to the Minister:
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4.8 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.
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4.8 Le ministre peut, pour l'application de la
présente loi, accorder, refuser, suspendre ou annuler une habilitation de
sécurité.
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[16]
The TSCP
policy specifies factors that the Minister may consider in refusing clearance
including evidence in this case when exercising his discretion under paragraph
1.4 of the TSCP policy:
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Objective
I.4
The objective of this Program is to prevent the
uncontrolled entry into a restricted area of a listed airport by any
individual who
[. . .]
4. the Minister reasonably believes, on a balance of
probabilities, may be prone or induced to
- commit an act that may unlawfully interfere with
civil aviation; or
- assist or abet any person to commit an act that may
unlawfully interfere with civil aviation.
[. . .]
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Objectif
I.4
L'objectif de ce programme est de prévenir l'entrée non
contrôlée dans les zones réglementées d'un aéroport énuméré dans le cas de
toute personne:
[. . .]
4. qui, selon le ministre et les probabilités, est
sujette ou peut être incitée à:
- commettre un acte d'intervention illicite pour
l'aviation civile; ou
- aider ou à inciter toute autre personne à commettre
un acte d'intervention illicite pour l'aviation civile.
[. . .]
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[17]
In applying
the standard of reasonableness, the issues are those of justification,
transparency and intelligibility in the decision-making process and whether the
decision falls within the range of acceptable outcomes that are defensible on
the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
[18]
In addition,
it has been determined that in exercising a discretion conferred by section 4.8
of the Aeronautics Act “the Minister may take any factor he considers
relevant into account”. See Fontaine v Canada, 2007 FC 1160 at para 78,
where the Court also concluded that, where safety is an issue of substantial
importance, access to restricted areas is a privilege, not a right. The factors
which can be considered include criminal charges which do not result in a
conviction; the fact that charges are stayed has been found not to be
determinative. See Thep-Outhainthany v Canada (AG), 2013 FC 59 at para
19.
[19]
The fact that
in the present case the charges were not proceeded upon because of credibility
issues does not preclude the Minister from refusing a security clearance. In
criminal matters, the onus on the Crown is higher, requiring proof beyond a
reasonable doubt for conviction. In this matter, the onus on the Minister
requires only a reasonable belief on a balance of probabilities. In addition,
the standard is considerably lower, requiring a conclusion only that the
applicant may be prone or induced to commit an act that may
interfere with civil aviation.
[20]
This decision
was based upon numerous specific incidents involving the applicant in
circumstances where crimes had been committed, with accompanying inculpatory
statements by a co-accused under police supervision which were significant not
only because of the detail provided on the extent of the criminal activity, but
also because they related to previous conduct at an airport.
[21]
It was not
unreasonable therefore for Transport Canada to require more of an explanation
beyond a broad denial given the risks involved in air transportation security.
[22]
The respondent
has justified its decision with intelligible and reasonable reasons, and although
not satisfactory to the applicant, who considers the dismissal of the charges
on credibility grounds sufficient, the decision is nevertheless within the
range of acceptable outcomes that are defensible on the facts and law.
[23]
Accordingly
the application is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed.
“Peter Annis”
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