Docket: T-1800-13
Citation:
2014 FC 1081
Ottawa, Ontario, November 14,
2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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HORATIUS VITOLIS BROWN
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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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JUDGMENT AND REASONS
[1]
The applicant, Mr Brown, seeks judicial review
of the decision of Erin O’Gorman, Director General of Aviation Security
[Director General], on behalf of the Minister of Transport [Transport Canada],
which cancelled his Transportation Security Clearance [TSC], thereby preventing
his continued employment with Servisair at the Lester B. Pearson International
Airport.
[2]
The decision was made pursuant to the Minister’s
discretion under section 4.8 of the Aeronautics Act, RSC 1985, c A-2
[the Act], and in accordance with the Transportation Security Clearance Program
Policy [TSCPP].
Overview
[3]
The applicant argues that the decision was
unreasonable because the Director General erred in her consideration of the
facts and his explanations, and misconstrued the evidence. In addition, he
submits that he was denied procedural fairness because he was not provided a
hearing or the names of the individuals with whom he was allegedly associated,
which prevented him from making a full response. The applicant also suggests
that he was targeted in the investigations described in the Law Enforcement
Record Check [LERC] report considered by the Advisory Board and the Director
General.
[4]
The applicant argues that the decision is based
on unproven information that consists of a series of incidents and on
speculation that he may have been associated with individuals who have not been
identified by name and who may have been involved in drug importation and
exportation at Pearson Airport.
[5]
The applicant made extensive oral submissions to
the Court, offering possible explanations that were not provided to the
Advisory Body or Director General, challenging the information in the LERC
report and seeking to explain the nature of his work with Servisair. He
highlights the impact of the decision on him, noting that the loss of his
Security Clearance has resulted in the loss of his Restricted Access Identity
Card [RAIC] and the termination of his job at Pearson Airport, which he has
held for over a decade. Ideally, the applicant seeks to have this Court re-instate
his security clearance. However, as noted at the hearing, this is not the role
of the Court.
[6]
The respondent submits that the decision was
reasonable based on the significant evidence before the Advisory Body and the
Director General, and that the applicant was afforded full procedural fairness.
The respondent also submits that there is no evidence to support the
applicant’s allegation of bias.
[7]
Although I have sympathy for the applicant’s
situation, the role of the Court is to determine whether the decision under
review is reasonable and whether the process in reaching that decision was
procedurally fair. As noted at the oral hearing, the Court may only rely on the
record – that is, on the information that was before the decision-maker – to
determine whether the decision was reasonable.
[8]
The record before the decision-maker provides
more than sufficient grounds to justify the decision reached. The decision was
also reached in a procedurally fair manner; the applicant was provided with all
the details of the allegations in the possession of Transport Canada and given
an opportunity to make submissions in response, which were considered by the
Advisory Body and the Director General.
[9]
For the more detailed reasons that follow, the
application for judicial review is dismissed.
Preliminary Issue
[10]
As noted by the respondent, the “Attorney
General of Canada” should replace “Transport Canada Safety and Security
Aviation Security” as the named respondent in this matter.
Background
[11]
The applicant has worked as a ramp agent for
Servisair at Lester B. Pearson Airport in Toronto, Ontario since October 2000.
He was initially granted a TSC in 2001, which was renewed every five years.
The LERC Report
[12]
On June 3, 2013 Transport Canada received a LERC
report from the Royal Canadian Mounted Police [RCMP], which identified the
applicant as being involved in an organized crime group made up of baggage
handlers at the airport that facilitates the importation of drugs into Canada.
[13]
The LERC report was based on several sources
including: intelligence reports from the Toronto Airport Drug Enforcement Unit
[TADEU] and YYZ Airport Intelligence Unit; police reports from RCMP, Peel
Regional Police, Toronto Police Service and the Canada Border Services Agency [CBSA];
police and CBSA surveillance; three RCMP Projects (Project OVRIDJAG, Project
ONTANA and Project OTAG); confidential human sources; and court documents.
[14]
The LERC report indicates that the RCMP
investigations (specifically, Projects OTAG and ONTANA) gathered evidence
through surveillance, drug seizures and other investigative techniques. The
investigations identified several baggage handlers, groomers, station
attendants and other service providers who, together, facilitated the
importation and exportation of substances into Canada and other countries.
These investigations led to multiple warrants and arrests.
[15]
The LERC report lists 11 individuals with whom
the applicant was alleged to be associated who were also suspected, charged or
convicted of being involved in drug-related activity, including Subject “A” who
pleaded guilty and was sentenced to 23 months in jail for importing drugs.
[16]
The report notes that the investigations did not
reveal sufficient evidence to charge the applicant, but that the RCMP maintains
that he represents a well-established and successful “door” at the airport
(i.e. a person who provides access) and continues to facilitate the movement of
drugs with the assistance of co-workers.
[17]
The report describes 21 incidents or events
dating from 2005 to 2013. The report notes that, although the applicant was
never criminally charged, he was the “common denominator” in many of the failed
importation attempts. These incidents include several drug seizures where the
applicant was present or in the area of the flight when not scheduled to work;
information from a reliable human source that the applicant and three others
attended the airport on their days off to retrieve controlled substances from
international flights; an airport intelligence report that identified the applicant
as part of a group who were believed to be smuggling narcotics out of the
airport and were at the airport on their scheduled days off and accessing
secure doors using their RAIC; information that a supervisor with Servisair was
manipulating shifts to permit the applicant to work certain flights; and, more
recently, the January 2013 seizure of 12 kg of cocaine at a time the applicant
was working overtime managing the bags from that flight.
The Letter From Transport Canada
[18]
On June 18, 2013, Ms N. Dupuis, Chief of
Security Screening Programs at Transport Canada, wrote to the applicant,
repeating almost word-for-word the information provided in the LERC report and
informing him that, as a result of this information, his security clearance was
under review by the Transportation Security Clearance Advisory Body.
[19]
Ms Dupuis also referred to an additional
incident that occurred in October 2011, while CBSA was conducting a luggage
examination of a “high risk” flight in Terminal 3. At around 2:40 am, three
hours after his shift had ended, the applicant was seen quickly leaving on a
tug (i.e., the vehicle that pulls baggage carts). The applicant admitted to YYZ
Intelligence that he had returned to the airport after his shift and remained
for almost 4 hours to work on his laptop. He denied ever working with or
knowing anyone who had lost their RAIC or job for participating in criminal
endeavours. He stated that the only reason an employee would constantly show up
to the airport to offload bags when they were not scheduled would be to remove
contraband and that they should be dealt with to the full extent of the law and
lose their RAIC.
[20]
Ms Dupuis referred the applicant to the TSCPP
online and encouraged him to provide any additional information outlining the
circumstances surrounding the incidents and associations, as well as any other
relevant information or explanation or any extenuating circumstances within 20
days, noting that any information provided would be carefully considered in
making the decision in respect of his security clearance.
[21]
The applicant then contacted Transport Canada by
phone, on July 2, 2013. The Transport Canada Note to File indicates that he
expressed disbelief and denied ever having done anything illegal in his life or
knowing anyone involved in illegal activity at the airport. He noted that if he
had known of people being involved in such activity, he would have reported
it. He asked where he could get the information from all the listed sources in
the letter. He explained that he had been a lead station attendant, worked
overtime, had contacts with many people and assisted CBSA whenever required. He
added that he would never be able to remember the events of the older dates,
which would make it difficult to defend himself.
[22]
Transport Canada advised him to submit any
supporting documents he wished and reminded him of the deadline.
The Applicant’s Response to Transport Canada
[23]
The applicant’s lawyer submitted a response
addressing each event set out in the June 18, 2013 letter from
Transport Canada.
[24]
The response notes the applicant’s commendable
work performance with Servisair, that he worked 60 hour weeks and that he did
not have a close relationship with anyone at the airport.
[25]
The response denies the applicant’s involvement
in each of the incidents. With respect to the cocaine seizure on August 7,
2009, the applicant denies knowledge and questions why he would be under
investigation, suggesting that this is because of his colour, background or
origin.
[26]
He asserts that he is being targeted as a
suspect in investigations of Caribbean flights because of his Jamaican
background, but that there is nothing to link him to the allegations, other
than that he worked at the airport as a lead agent and in the company of
employees arrested and/or charged with drug-related offences, none of whom were
known to him to be involved in such activities. He also cites his high
visibility at the airport, due to his frequent 60 hour work weeks, as a
possible cause for being targeted. He submits that the allegations against him
are speculative and unfounded.
[27]
The response concludes by reiterating the
applicant’s denials of involvement with any illegal activity or association
with anyone involved. The applicant adds that, in the past, he contacted the
police to report suspicious activities.
The Decision under Review
[28]
The Advisory Body met on August 28, 2013 to
review the allegations and the applicant’s submissions before making a
recommendation to the Director General.
[29]
The Advisory Body noted that criminal record
checks indicate that the applicant has no criminal record or charges.
[30]
The Advisory Body referred to the LERC report,
which provided information regarding the applicant’s suspected involvement in
the importation and exportation of drugs through the airport and his association
with 11 other individuals also implicated, including one who had pled guilty to
importing hashish and was sentenced to 23 months in jail.
[31]
The Advisory Body noted that this information
was provided by multiple reliable sources. In addition, several police
agencies, acting independently, determined that the applicant was involved in
the importation and exportation of drugs through the airport. Both RCMP
investigations related to the importation and exportation of drugs through the
airport in 2007 and 2010 (Projects ONTANA and OTAG) identified the applicant as
the common denominator. Although no charges were laid against the applicant,
the RCMP, Toronto Drug Enforcement Unit, believed that he represents a
well-established “door” at the airport and continues to facilitate the movement
of drugs through the airport.
[32]
The Advisory Body noted that the applicant was
in the vicinity of drug seizures on many occasions over a prolonged period of
time and that on several occasions he had used his RAIC to access the restricted
area of the airport when he was not scheduled to work. Additionally, different
sources, including reliable human sources working with the RCMP and YYZ Airport
Intelligence, had indicated that the applicant was actively involved in
facilitating the illegal importation of controlled substances to Canada. In
particular, one source had reported overhearing the applicant stating “The money is still there, they [CBSA] will find what they
find, but we will bring stuff in on every flight.”
[33]
The Advisory Body also noted the relevance of
importing and exporting drugs through the airport to unlawful acts of
interference with civil aviation.
[34]
The Advisory Body considered the applicant’s
submissions which denied knowledge of any criminal activity within or outside
the airport and that he stated that he contacted the police in the past to
report suspicious activities at work. However, due to the applicant’s presence
during several drug seizures, as well as the fact that charges had been laid
against other airport workers, the Advisory Body did not find the applicant’s
statements that he was unaware of any illegal activity at the airport to be
believable.
[35]
Its record of discussion states:
“Although Mr. Brown’s counsel provided a
written statement, when considering the numerous incidents, the fact that
multiple police agencies, in a number of independent investigations which
gathered evidence from multiple sources including intercepting communications,
as well as reliable human sources, came to the same conclusion that the
applicant was involved in the drug importation and exportation at Lester B.
Pearson International Airport, his statement was not sufficient to dispel
concerns.”
[36]
It then concluded, based on a review of the file
and reflecting the wording of the TSCPP, that it had reason to believe, on a
balance of probabilities, that the applicant may be prone or induced to commit
an act, or assist or abet an individual to commit an act that may unlawfully
interfere with civil aviation.
[37]
The Director General accepted the Advisory
Body’s recommendation and cancelled the applicant’s security clearance. The
Director General’s decision letter sent to the applicant indicates that the
cancellation was based on a review of the file, including the concerns outlined
in the June 18, 2013 letter, the written submissions by counsel for the
applicant, the recommendation of the Advisory Body and a consideration of the
TSCPP. The Director General highlights the multiple reliable sources that came
to the same conclusion that the applicant was involved in the importation and
exportation of drugs through the airport and that these incidents directly link
to aviation security.
[38]
The Director General concluded her decision
noting “Although your counsel provided a written
statement, when considering the direct link of these incidents to aviation
security, the statement was not sufficient to address my concerns”.
Issues
[39]
The applicant set out several issues, but they
are, more generally: the applicable standard of review; whether the decision to
refuse the Applicant’s security clearance is reasonable; and whether the
decision was made in a procedurally fair manner.
Standard of Review
[40]
The applicant argues that the decision is wrong and
reflects an error of law and that the Court should, therefore, judicially
review the matter on the standard of correctness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] SCR 190 [Dunsmuir]).
[41]
The respondent points out that the appropriate
standard of review of the decision, which is based on an assessment of the
facts and the law, is reasonableness. This standard has been confirmed in many
cases dealing with the cancellations or refusals of TSCs (Clue v Canada
(Attorney General), 2011 FC 323, 200 ACWS (3d) 4 [Clue]; Thep-Outhainthany v Canada (Attorney General), 2013 FC 59, 224 ACWS (3d) 538 [Thep-Outhainthany]; Lorenzen v Canada (Transport), 2014 FC
273, 239 ACWS (3d) 10 [Lorenzen]), based on the public importance of
aviation security and the discretionary, specialized nature of security
clearance decision-making.
[42]
As I noted at the hearing, where the standard of
reasonableness applies, the role of the Court on judicial review is not to make
its own decision, but to determine whether the Minister’s decision “falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47; see also Thep-Outhainthany, above, at para 18
and Lorenzen, above, at para 14, both of which dealt with security
clearance decisions).
[43]
The Court may not re-weigh the evidence or make
its own decision. If the decision is found not to be reasonable, it would be
referred back to the Minister for reconsideration.
[44]
With respect to the applicant’s submissions that
he was denied an opportunity to properly present his case and to respond to
details contained in the LERC report, the standard of review for alleged
breaches of procedural fairness is the standard of correctness.
Relevant statutory provisions
[45]
The relevant provisions are set out at Annex A.
[46]
For ease of reference, the key provision of the
TSCPP at issue, section I.4.4 provides:
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.
Is the decision to revoke the
applicant’s TSC reasonable?
The applicant’s position
[47]
The applicant argues that the Director General
failed to give proper consideration and weight to the evidence before her,
ignoring his explanations about his lack of knowledge of incidents of drug
smuggling at the airport, his denials of involvement, his lack of criminal
record and his explanation for being at the airport outside of working hours.
[48]
The applicant submits that his statements were
made under oath and are true, and that there is no reason to doubt their
truthfulness. He adds that where the veracity of testimony is not in question,
the testimony cannot be ignored or rejected (citing Maldonado v Minister of
Employment and Immigration, [1980] 2 FC 302, 1 ACWS (3d) 167 (FCCA);
Permaul v Canada (Minister of Employment & Immigration) (1983), 23
ACWS (2d) 496, 53 NR 323). The applicant argues that the Director General
reached conclusions that were contrary to his evidence, which he submits is
uncontested, and that this was tantamount to ignoring relevant evidence on the
record.
[49]
The applicant further argues that the Advisory
Body should have considered the evidence in light of the fact that he had never
been criminally charged or convicted of any crime on or off the airport
grounds. It also unreasonably found that he was associated with individuals who
were charged and convicted of criminal acts based only on circumstantial
observations and because they worked in the same place.
[50]
As noted in the overview, the applicant made
additional submissions and possible explanations at the oral hearing, which
were not provided to Transport Canada.
[51]
Specifically, the applicant challenges the
information in the LERC report. He submits that the allegations are vague and
do not point to any direct involvement by him in the movement of baggage
containing drugs. He states that the schedule must be flexible to accommodate
changes in arrival and departure times, that he worked whatever flights were
assigned and that he does not know who the other individuals are, given that
they have only been identified by letters. He questions why the security
cameras, which could verify his comings and goings in parts of the airport,
were not working on the dates of several incidents noted in the report. He also
questions why, if he was suspected of such involvement, he was never charged,
never interviewed by police and his security clearance was previously renewed.
[52]
He also seeks to explain his history of
employment with Servisair, his willingness to work overtime, how it is not
possible to manipulate shifts or crews to work on a particular flight, that he
worked primarily in Terminal 3 and as needed in other terminals and could, as a
result, be in the vicinity or area of certain flights, and similar information
regarding the overall operations of ramp agents and other airport workers. He also
notes that he had been a union representative and a health and safety
representative as possible explanations for being at the airport when not
scheduled to work.
[53]
He continues to deny any involvement in the
importation of drugs or with those who may be involved. The applicant submits
that the vague allegations of associations with others, being in the general
vicinity of drug seizures and other incidents, which he denies, and the test
that he “may be” prone to interfere with aviation safety is simply not enough
to result in a consequence so harsh as the revocation of his security
clearance.
The Respondent’s Position
[54]
The respondent submits that the decision was
reasonable noting the broad discretion of the Minister provided by section 4.8
of the Act when determining whether to cancel a TSC. This broad discretion is
necessary to ensure the objective of both the Act and the TSCPP – preventing
illegal acts of intervention to civil aviation so as to ensure air safety and
security in Canada.
[55]
The respondent notes that the Federal Court has
consistently held that this objective is of substantial importance, with the
interests of the general public taking precedence over those of persons whose
clearance is revoked (Fontaine v Canada (Transport), 2007 FC 1160
at para 30, 313 FTR 309 (Eng) [Fontaine];
Rivet v Canada (Attorney General), 2007 FC 1175 at paras 15 and 20, 325
FTR 178 (Eng) [Rivet]). As such, access to a
restricted area is to be considered a privilege, not a right (Fontaine,
above, at para 59).
[56]
The respondent notes that the TSCPP contains
certain specific factors that the Minister may consider, including a person’s
involvement in criminal activities or suspicion of being closely associated
with persons involved in criminal activities. In addition, the Minister may
also take into account any other factor considered relevant (Fontaine,
above, at para 78).
[57]
The respondent notes the test in the TSCPP and
that the standard of proof is relatively low compared to the criminal
requirement that guilt must be proven beyond a reasonable doubt.
[58]
The LERC report was based on information from
multiple police agencies, acting independently, and was informed by evidence
gathered through surveillance, several police intelligence reports, multiple
confidential human sources and two major investigation projects. The Advisory
Body and the Director General were entitled to rely on this information.
[59]
The respondent also notes that several of the
alleged associates were charged in connection with the illegal activities noted
in the LERC report. This information on its own would be sufficient to justify
a reasonable concern regarding the applicant’s suitability to retain a security
clearance. The Court has previously found that associations with individuals
who could have a negative influence constitute a sufficient basis for the
Minister’s reasonable belief that an individual might be prone or induced to
commit an act that may unlawfully interfere with civil aviation (Fontaine,
above, at paras 83-84).
[60]
The respondent disputes the applicant’s
contention that the Advisory Board and the Director General ignored his
evidence. Both the Advisory Body and the Director General specifically noted
and considered the applicant’s submissions, but found them to be insufficient
to dispel their concerns. Clear reasons were given for rejecting the
submissions including that the applicant’s denials lacked credibility given his
frequent presence at the airport during several drug seizures and the fact that
charges had been laid against some of the other co-workers.
[61]
With respect to the additional oral submissions
made by the applicant to the Court, the respondent notes that the Court may
only consider the reasonableness of the decision based on the record that was
before the decision-maker. Many of the oral submissions elaborate on that
record and others are completely new and were not provided by the applicant in
response to the letter from Transport Canada.
The decision was reasonable
[62]
Section 4.8 of the Aeronautics Act gives the Minister, and
the Director General on his or her behalf, wide discretion to “grant or refuse to grant a security clearance
to any person or suspend or cancel a security clearance” and to take into
account any relevant factor in doing so.
[63]
The
decision was based on the Director General’s reasonable belief on a balance of
probabilities that the applicant “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”, which is the standard set
out in the TSCPP.
[64]
The applicant
argued that this low standard should not justify the harsh consequences of
losing his security clearance. While I understand his position and agree that
the consequences are serious, the TSCPP is clear and the case law from this
Court has confirmed that the standard is somewhat lower than simply the balance
of probabilities given the words “may be prone” and “may unlawfully interfere”.
[65]
The Director General based her decision on the
evidence from the LERC report, which she was entitled to rely upon, related to
Mr Brown’s association with those involved in the importation and exportation
of drugs at the airport and the evidence that Mr Brown was involved, and could
be a key player, in these activities. The LERC report was detailed and based on
information from multiple law enforcement sources and at least two different
human sources who provided information to different law enforcement agencies.
[66]
The applicant raised possible explanations in his
oral submissions, but many of these were not presented in his submissions to
the Advisory Body.
[67]
The results of the RCMP investigations, the
information from the airport intelligence units and the CBSA seizures provided
justification for the Advisory Body and Director General’s belief.
[68]
Although the applicant has no criminal record
and was not charged with any offences arising from the investigation over the
last 10 years, criminal convictions are not the benchmark to justify the
revocation of a security clearance.
[69]
As noted by Justice Rennie in Thep-Outhainthany,
above, at para 20:
Secondly, the absence of a criminal conviction
cannot be determinative given the different standards of proof which prevail in
the two discrete legal contexts. A criminal conviction is sustained on proof
beyond a reasonable doubt. Denial of a security clearance requires only a
reasonable belief, on a balance of probabilities, that a person may be prone to
or induced to commit an act that may interfere with civil aviation.
[70]
The Director General’s decision focuses on the
propensity of airport employees to engage in conduct that could affect aviation
safety. This requires a broad and forward-looking perspective. As noted by
Justice Harrington in MacDonnell v Canada (Attorney General), 2013 FC
719 at para 29, 435 FTR 202 (Eng):
The Policy is forward looking; in other words,
a prediction. The Policy does not require the Minister to believe on a balance
of probabilities that an individual “will” commit an act that “will” lawfully
interfere with civil aviation or “will” assist or abet any person to commit an
act that “would” unlawfully interfere with civil aviation, only that he or she
“may”.
[71]
In addition, the Minister is entitled to err on
the side of public safety. In Rivet, above, at para 15, Justice Pinard
notes that in the balancing of the interests of the individual affected and
public safety, the interests of the public take precedence:
Moreover, both the purpose of the Act and the
nature of the question deal with protecting the public by preventing acts of
unlawful interference in civil aviation. Although the Minister’s decision
directly affects the applicant’s rights and interests, it is the interests of
the general public that are at stake and that take precedence over the applicant’s
ability to have his TSC to be able to work as a pilot. The purpose of the Act
emanates from a larger problem that encompasses the interests of society as a
whole, not just those of the applicant.
[72]
With respect to the applicant’s submissions that he was
not directly involved (or involved at all) in illegal activities and that he
would never jeopardise aviation safety, the case law has established that
direct involvement is not required. In Thep-Outhainthany,
the applicant’s husband was involved in a dial-a-dope scheme, but the
applicant, an airport worker, denied any involvement (above,
at para 27). However, the Court noted that the applicant’s access to a
restricted area of an airport could attract the attention of her husband or his
criminal associates and found the connection between trafficking drugs at the
community level and aviation security.
[73]
Other cases also support the proposition that the conduct at issue need
not be a direct interference with aviation security (see for example Pouliot v Canada (Transport), 2012 FC
347, 216 ACWS (3d) 527 [Pouliot]; Russo
v Canada (Transport), 2011 FC 764, 406 FTR 49 (Eng);
Rivet, above; and Canada (Transport, Infrastructure and Communities)
v Farwaha, 2014 FCA 56, 238
ACWS (3d) 282 [Farwaha]).
[74]
The Advisory Body may consider associations with others as relevant to
whether an individual would be prone to commit or to assist or abet an individual to commit an act
that might unlawfully interfere with
civil aviation such that his or her security clearance should be revoked
(see Fontaine, above, at para 7; Farwaha, above, at para 101).
[75]
With respect to the applicant’s submissions that his statements
were made under oath and his evidence was not contradicted, this is not the
case. The Advisory Body clearly stated that it did not believe the applicant’s
denials based on the evidence before it.
[76]
The Advisory Body and the Director General
considered all the evidence before them, including the LERC report and the
applicant’s submissions in response to the letter from Transport Canada, which
reiterated the information included in the LERC report as well as the
applicant’s denials of involvement that were mentioned in the Note to File. The
Advisory Body and the Director General were entitled to give the appropriate
weight to this evidence and did so. The evidence was sufficient to support the
reasonable belief on a balance of probabilities that the applicant may
be prone to commit an act that may interfere with civil aviation. The
Advisory Body and the Director General provide clear reasons for their
decision. The decision is reasonable.
Was the applicant denied procedural
fairness?
The Applicant’s position
[77]
The applicant submits that he was denied
procedural fairness because: i) he was denied an oral hearing; ii) he was
denied the names of his alleged co-conspirators; and iii) the investigation may
have targeted him. In the applicant’s written submissions he suggests bias on
the part of the Advisory Body and the Director General.
[78]
The applicant argues that because of the serious
consequences of the decision – he has lost his job and his ability to support
his large family – he should have been given every procedural safeguard in
accordance with the principals of fundamental justice (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th)
193). The Minister failed to do so by denying him a hearing to respond to the
allegations.
[79]
In addition, the limited information provided to
him regarding the identity of his alleged co-conspirators, which were identified
only by letter, prevented him from fully responding to the allegations.
[80]
In his written submissions, the applicant
further alleges that the Advisory Body and the Director General were biased. In
his oral submissions, the applicant instead suggests that he was targeted for
reasons unknown to him in the investigations by the RCMP and CBSA and that the
“reliable human sources” may have had a conflict with him.
The Respondent’s Position
[81]
The respondent submits that the procedural
safeguards available in these circumstances are limited to the right to know
the allegations and the right to make representations in response (Peles v Canada (Attorney General), 2013 FC 294 at paras 15-16, 228 ACWS (3d) 314). There is no
right to a hearing (Pouliot, above, at paras 9-10).
[82]
The applicant was fully informed of the allegations
and incidents to be considered by the Advisory Body and the Director General in
the June 18, 2013 letter. All the information available to Transport Canada was
shared with the applicant. Transport Canada did not have information about the
names of the coworkers identified only by letter. The applicant had the
opportunity to make representations and to provide evidence, and his lawyer
responded to the June 18, 2013 letter on his behalf.
[83]
The respondent notes that allegations of bias
are serious allegations, the threshold for establishing them is high, and that
there is simply no evidence on the record that would support these allegations.
There was no breach of procedural fairness
[84]
The scope of the duty of procedural fairness
varies and depends on the context. The duty owed in the context of revoking an
existing security clearance is higher than in the context of refusing an
initial application for a security clearance, however, it still remains at the
lower end of the spectrum or scale.
[85]
As noted by Justice Pinard in Rivet,
above, at para 25, “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.”
[86]
The June 18, 2013 letter from Ms Dupuis at Transport Canada advised the
applicant of the incidents and allegations with the same level of detail as the
LERC report. The letter provided him with sufficient information about the
concerns and allegations to permit him to respond. Ms Dupuis invited him to
provide additional information and explanations. His telephone call to
Transport Canada upon receipt of the letter was detailed in a Note to File and
was part of the information considered by the Advisory Body and Director
General.
[87]
The Director General noted that she reviewed the file and considered the
submissions of the applicant’s counsel, the recommendations of the Advisory
Body and the TSCPP. Her decision focused on the evidence disclosed in the LERC
report. The applicant’s submissions – which amounted to denials and assertions
that his presence at the airport when not otherwise scheduled was due to working
overtime – did not alleviate the Director General’s concerns. As noted in Lorenzen,
above, at para 52, the Minister’s Delegate does not have to
accept an applicant’s explanation or position.
[88]
Allegations of bias are serious allegations and are not to be made
lightly. In the present case, although the applicant used the term “bias”, it
was used without a full appreciation of what such an allegation entails and
likely arises from his disagreement with the decision, the harsh consequences,
his continued denials of involvement and his frustration because he cannot turn
back the clock and make more compelling submissions to the Advisory Body or the
Director General.
[89]
The Minister and the Director General have a broad discretion to ensure
aviation security. There is absolutely no hint that the applicant’s race or
background had any bearing on the decision – rather, the decision was based on
the well-documented and extensive evidence provided to the Advisory Body and
the Director General.
[90]
Nor did the applicant point to any evidence that
the investigations noted in the LERC report targeted the applicant for unknown
or bad faith reasons. Moreover, if such evidence existed, it should have been
raised at the time submissions were made to the Advisory Body.
[91]
In conclusion, there was no breach of procedural
fairness.
Conclusion
[92]
The Court appreciates that the consequences of
the decision to revoke Mr Brown’s security clearance are very serious and that he
has made significant efforts before this Court to have this decision reconsidered.
As noted above, he offered explanations that were not made to the Advisory
Body. That is not to say that the Advisory Body or Director General would have
necessarily accepted these explanations, given the detailed information from
the LERC report which they gave significant weight to and which they reasonably
regarded as reliable. The issue before the Court is whether the decision of the
Director General, based on the recommendation of the Advisory Body, is
reasonable. That determination is based on the information on the record
provided to the Advisory Body and the Director General. On that record, as
explained above, the decision is reasonable and should not be disturbed.
[93]
The respondent noted that in Lorenzen, above,
where the applicant also denied any involvement in the alleged activities,
Justice Russell stated, at para 53:
It may be that what the Applicant says about
herself is true. The Court has no means of assessing that. But that is not the
issue. The issue is whether, given the allegations and evidence before the
Minister’s Delegate, the Decision that the Applicant may be prone or induced to
commit an act that may unlawfully interfere with civil aviation was reasonable.
I cannot say it wasn’t.
[94]
The same is true in the present case; it is not
the Court’s role to determine whether the applicant was or was not involved in
the activities alleged. The Court’s role is to determine if the decision was
reasonable and procedurally fair. It was both.
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