Docket: T-1810-13
Citation:
2014 FC 1098
Ottawa, Ontario, November 20, 2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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CHARLES HENRY SALMON
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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. Salmon, 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 as a ramp agent with Servisair at the Lester B. Pearson International Airport.
[2]
The Director General made this decision on
behalf of the Minister of Transport, pursuant to the Minister’s discretion
under section 4.8 of the Aeronautics Act, RSC 1985, c A-2, and in
accordance with the Transportation Security Clearance Program Policy [TSCPP].
Overview
[3]
The applicant argues that he was denied
procedural fairness because the information disclosed to him regarding the
review of his security clearance, including allegations of his
involvement in drug possession and trafficking, failed to provide relevant
dates and, more importantly, failed to disclose the identity of an alleged
associate, referred to as Subject “A”, who was a key player in the importation
of drugs at the Airport. The applicant assumed that Subject “A” was a different
person. The applicant argues that the majority of the incidents considered by
the Transportation Security Clearance Advisory Body [Advisory Body] and the Director
General were related to his association with Subject “A”. The applicant submits
that when these incidents and allegations are excluded, there are insufficient
grounds to justify the decision to revoke his security clearance. The applicant
also argues more generally that, although there is a broad discretion to grant
or cancel security clearances pursuant to the Aeronautics Act, this
discretion must be exercised with a view to the purpose of the Act and the TSCPP,
and that the grounds relied on by the Director General had no bearing on
aviation security.
[4]
The respondent submits that the duty of
procedural fairness was met and the decision is reasonable. The applicant was
advised of the allegations, had an opportunity to respond and did so. The
Advisory Body, which considered the allegations and the applicant’s submissions
and made a recommendation to the Director General, was aware that the applicant
had mistakenly assumed Subject “A” was a different person and, as a result,
focussed on other incidents, which were not related to the applicant’s
association with Subject “A”. The respondent submits that these other incidents
were more than sufficient to justify the exercise of discretion to revoke his
security clearance. The discretion to grant or revoke a security clearance is
wide and the link to civil aviation security may be satisfied in a wide range
of ways, including concerns about the individual’s potential future risk.
[5]
I find, for the more detailed reasons
that follow, that there was no breach of the duty of procedural fairness owed
in the circumstances and the decision is reasonable. Although, I appreciate
that the stakes are high for the applicant, given that he has been employed for
over 10 years at Pearson International Airport and depends on the security
clearance for his employment, there were several incidents and sufficient
information, even excluding any consideration of the applicant’s association
with Subject “A”, to support the Director General’s reasonable belief 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.
Background
[6]
The applicant works as a ramp agent with
Servisair at the Pearson International Airport. He has held this position since
2004. In 2005, Transport Canada granted Mr. Salmon a transportation security
clearance, which it renewed in 2009 for a five year period.
[7]
In 2013, as a result of an agreement between
Transport Canada and the Royal Canadian Mounted Police [RCMP], Transport Canada implemented new enhanced
background checks. Transport Canada received a Law Enforcement Record Check
[LERC] dated June 10, 2013 from the RCMP, which included previously unavailable
information and raised concerns about Mr. Salmon’s suitability to retain his
security clearance.
[8]
This information included Mr. Salmon’s
involvement with drug possession and the importation of drugs. On May 7, 2007
the YYZ (Toronto) Airport Intelligence Unit received information from a
reliable human source indicating that Mr. Salmon and an individual referred to
as Subject “A” attended Pearson International Airport on their days off to
retrieve controlled substances from international flights. On May 14, 2007, ten
bricks of cocaine were seized from a suitcase that Canada Boarder Services Agency
[CBSA] had earlier observed Subject “A” offloading from a container in Terminal
3 at Pearson International Airport. Mr. Salmon was not scheduled to work that
day but was present and had accessed the restricted area doors at Terminal 3
after the seizure took place.
[9]
On October 27, 2008 the Toronto Police Service
[TPS] observed Mr. Salmon conducting a drug deal in his own neighbourhood,
which the TPS had observed him do on several previous occasions. When the TPS
approached Mr. Salmon, he fled into an apartment. Mr. Salmon was arrested and a
search of the apartment led to the seizure of quantities of marijuana. Mr.
Salmon was also found in personal possession of different international
currencies, including $10,000 in Korean currency. He was charged with possession
for the purpose of trafficking, possession of cannabis and possession of property
obtained by crime. The charges were later stayed.
[10]
The RCMP’s Project “OTAG”, launched in 2010,
focussed on the importation of drugs by corrupt employees at Pearson International Airport. The investigation identified several corrupt baggage handlers,
groomers, station attendants and other service providers who together
facilitated the exportation of methamphetamine to the United States, the importation of hashish from Jamaica and the importation of KHAT from England. Five Airport employees were arrested and charged with numerous offences. Mr.
Salmon was not arrested and charged due to the unlikelihood of a successful
prosecution. However, investigators suspected him of being involved in the drug
importation ring.
[11]
The RCMP identified Mr. Salmon as an associate
of Subject “A”. According to a CPIC Driver’s licence check, Mr. Salmon had the
same address as Subject “A”, who was believed to be the group leader of the
corrupt baggage handlers linked to the drug smuggling through Pearson International
Airport and a well-established access point for moving drugs through the
Airport (referred to as a “door”). Mr. Salmon claimed to live at the address
from September 2009 to December 2011 and Subject “A” lived at the same address
since March 2010 (i.e. 20 months).
[12]
The LERC also revealed that Mr. Salmon had been
charged by the TPS with the assault of his former spouse on August 15, 2008.
The charge was withdrawn and Mr. Salmon entered into a 12-month peace bond.
This event does not appear to have had any bearing on the decision to revoke
his clearance.
[13]
On June 18, 2013, Ms. Nadya Dupuis, Chief of
Security Screening Programs at Transport Canada, wrote to Mr. Salmon, outlining
the incidents noted above and informing him that his security clearance was
under review by the Advisory Body. Ms. Dupuis referred Mr. Salmon to the TSCPP online
and encouraged him to provide any additional information regarding his
association with Subject “A”, criminal charges, criminal activity and
incidents, or any other relevant information or explanation, including
extenuating circumstances, noting that this information would be considered in
making a decision about his clearance.
[14]
On June 21, 2013, Mr. Salmon contacted Transport
Canada by phone and stated that the allegations were hearsay. He was advised
to follow up by letter.
[15]
On June 27, 2013, counsel for Mr. Salmon
responded on his behalf by email to the June 18 letter. The email indicates:
•
With respect to the cocaine seizure on May 14,
2007, Mr. Salmon no longer has a specific recollection of the day. However, he
submits that his attendance in the restricted area despite not being scheduled
to work may have been to cover a co-worker’s shift. Mr. Salmon states that he
had no involvement in the drug seizure.
•
The domestic assault charge was withdrawn and Mr.
Salmon entered a peace bond which is not an admission of any criminal activity.
•
With respect to the October 27, 2008 arrest and
drug seizure, the charges were stayed. Mr. Salmon states he was not involved in
a drug deal and there is no evidence to support the allegations that he was in
possession of any of the marijuana or that he possessed Korean currency.
•
With respect to the RCMP investigation, Mr.
Salmon states he was not identified as having any involvement in that
investigation and no charges were laid against him. The association between Mr.
Salmon and the person he assumes is Subject “A” is not criminal, but, instead,
a work relationship in which Subject “A” merely permitted Mr. Salmon to
register his car at Subject “A”’s address in order to benefit from cheaper car
insurance. The two never lived together and Mr. Salmon has no knowledge of and
no involvement in any criminal activity conducted by Subject “A”.
•
More generally, Mr. Salmon states that he was
not involved in any criminal activity.
[16]
An email exchange dated July 2, 2013 between
Transport Canada and the RCMP notes that Mr. Salmon incorrectly identified
Subject “A”. Transport Canada raises the possibility of procedural fairness
issues due to Mr. Salmon’s misidentification. The email questions whether
Transport Canada could either confirm the address he and Subject “A” were said
to have cohabited at or advise that the address is not the Brantford address
that counsel for Mr. Salmon assumed it was. The RCMP responded that, in order
to protect third party information and avoid the possibility of Mr. Salmon
linking the information to a specific person, the
information could not be divulged.
The decision under review
[17]
The Advisory Body met on August 28, 2013 to
review the information and Mr. Salmon’s submissions in response. The Record
of Discussion reveals that the Advisory Body considered the incidents and
conduct outlined in Ms. Dupuis’s letter of June 18, 2013 and additional
considerations.
[18]
The Advisory Body noted that with respect to the
RCMP investigation, evidence had been gathered through the interception of
communications, signalling that the matter was serious and there were
sufficient grounds to obtain the warrant for interception.
[19]
The Advisory Body noted the direct link between
Mr. Salmon’s possible activities and aviation security at Pearson International Airport.
[20]
The Advisory Body also noted that, although Mr.
Salmon had not been convicted of any criminal offence, the threshold for
conviction is beyond a reasonable doubt, while the threshold of the TSC Program
is based on a reasonable belief, on a balance of probabilities.
[21]
It acknowledged that Mr. Salmon incorrectly
identified Subject “A” in his submissions and that this identity could not be
disclosed. The Advisory Body noted that Mr. Salmon claimed he never lived with
this person but used the address to lower his car insurance and found that this
admission is potentially that of committing an offence, such as insurance
fraud. It found that this raised concerns about Mr. Salmon’s judgment and
respect for the law.
[22]
The Advisory Body also addressed some of the
statements made by counsel for Mr. Salmon. With respect to the Korean currency
found on Mr. Salmon, the Advisory Board noted “discrepancies” regarding the
money, but did not find this to be relevant. With respect to the October 28,
2008 incident, it noted that, although there was no evidence supporting
allegations that Mr. Salmon was in possession of any of the marijuana located
in the apartment, he was nonetheless present and surrounded by an amount of
marijuana that far exceeded what would be reasonable for personal consumption.
Moreover, the TPS had observed Mr. Salmon conducting a number of drug
transactions. The Advisory Body, therefore, found it reasonable to believe that
Mr. Salmon was involved in drug trafficking.
[23]
The Advisory Body concluded that a review of the
file led them to have reason to believe, on a balance of probabilities, that Mr.
Salmon 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.
Although, Mr. Salmon had provided a written statement, when considering all the
relevant and available information, and in particular the incident of October
27, 2008 and Mr. Salmon’s suspected involvement in the importation and
exportation of drugs through Pearson International Airport, this statement was
not sufficient to dispel their concerns. It recommended that Mr. Salmon’s security
clearance be cancelled.
[24]
On October 2, 2013, the Director General
accepted the Advisory Body’s recommendation and cancelled Mr. Salmon’s security
clearance. The Director General indicates that the cancellation was based on a
review of the file, including the concerns outlined in the June 18, 2013
letter, the written statement by counsel for Mr. Salmon, the recommendation of
the Advisory Body and her consideration of the TSCPP. In particular, the
Director General highlights the incident of October 27, 2008 and Mr. Salmon’s
suspected involvement in the importation and exportation of drugs through Pearson International Airport, as revealed in the RCMP investigation.
[25]
The letter from the Director General to Mr. Salmon,
dated October 4, 2013, repeats this decision and her reasons.
The relevant provisions of the Aeronautics Act and
the TSCPP are set out in Annex A
The Issues
[26]
The applicant submits that the Minister did not
meet the duty of procedural fairness owed in the circumstances and, in
addition, that the decision was not reasonable because the exercise of
discretion was not based on sufficient grounds to justify the cancellation of
his security clearance.
Standard of Review
[27]
Questions of procedural fairness are reviewable
on a standard of correctness. This is well established, including in the
context of the cancellation or refusal of a security clearance (see for example:
Russo v Canada (Transport), 2011 FC 764 at para 22, 406 FTR 49 (Eng) [Russo];
Peles v Canada (Attorney General), 2013 FC 294 at para 9, 228 ACWS (3d)
314; Pouliot v Canada (Transport), 2012 FC 347 at para 7, 216 ACWS (3d)
527 [Pouliot]).
[28]
The decision to revoke the security clearance is an exercise of
discretion based on an assessment of the facts and is reviewable on a standard
of reasonableness.
[29]
Where the standard of reasonableness applies,
the role of the Court is to determine whether the decision “falls within ‘a range of possible, acceptable outcomes which
are defensible in respect of the facts and law’ (Dunsmuir, at para 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.” (Canada (Minister of
Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59, [2009] 1 S.C.R. 339, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[30]
The role of the Court is not to reweigh the evidence
or remake the decision.
Was there a breach of procedural fairness?
The applicant’s position
[31]
The applicant submits that the duty of fairness
is determined by context and that jurisprudence has established that, where an
existing security clearance is cancelled, the duty is greater than where a
clearance is initially denied. The duty of procedural fairness requires that
the applicant know the facts alleged against him and has a right to make
representations about those facts. The applicant submits that, given the
decision’s impact on Mr. Salmon – that is, to terminate 10 years of employment
at Pearson International Airport – the right to make representations includes a
meaningful opportunity to be heard and a meaningful opportunity to change the
Director General’s mind (Knight v Indian head school division no 19, [1990]
1 SCR 653 at pages 669-687, 69 DLR (4th) 489).
[32]
The applicant submits that the respondent breached the duty of
procedural fairness. First, he was prevented from fully knowing the case to be
met and having a meaningful opportunity to make representations because he was
given insufficient notice of background evidence relied on to justify the cancellation
of his security clearance.
[33]
This missing information included the identity of Subject “A” and the
relevant dates he allegedly accessed the restricted area. Without this
information, the applicant submits that he was denied a meaningful opportunity to
directly address these allegations by providing exculpatory information. He
argues that the email exchange between Transport Canada and the RCMP is an
acknowledgment by Transport Canada that the failure to identify Subject “A” was
a violation of procedural fairness.
[34]
The applicant also argues that he was not provided with the specific
dates on which he is alleged to have attended Pearson International Airport to retrieve controlled substances from
international flights, as revealed to the RCMP on May 7, 2007 by a reliable
human source. He was also not given the specific date on which he allegedly
used his restricted access card to enter restricted areas of Pearson International Airport when he was not
scheduled to work, based on information received by YYZ Airport intelligence.
He claims that he was made aware of this event only after he made his application
for judicial review.
[35]
Second, the applicant argues that the Advisory
Body breached its duty of procedural fairness by considering the possible
insurance fraud and not providing him an opportunity to respond.
[36]
Third, the applicant argues that the Advisory Body failed to investigate
his exculpatory statements about covering another employee’s shift as a reason
for being in Pearson International Airport’s restricted areas on a day off.
[37]
The applicant also argues that procedural fairness required the Advisory
Body and Director General to identify their “remaining concerns” and provide
him with an opportunity to respond to these concerns.
[38]
The applicant submits that the majority of the incidents or allegations
relied on related to his association with Subject “A”, whose identity was not
disclosed, thereby denying him a meaningful opportunity to address and disabuse
the Advisory Body and Director General of their concerns. The applicant argues
that once this information which breached the duty of procedural fairness is
excluded, there is little left for the Director General to base the decision
upon.
The Respondent’s Position
[39]
The respondent agrees that the duty of procedural fairness depends on
the context and in cases involving the cancellation of security clearances, it
is more than minimal. The respondent submits, however, that it does not require
a high level of procedural safeguards (Rivet v Canada (Attorney General), 2007 FC 1175
at para 25, 325 FTR 178 (Eng) [Rivet]).
In these circumstances, the Advisory Body and Director General met the duty
owed.
[40]
With respect to the identity of Subject “A”, the respondent submits that
the applicant failed to demonstrate how this information was material to the
decision. Procedural fairness only requires sufficient disclosure of the case
to meet (Clue v Canada (Attorney General), 2011 FC 323 at para 17, 200 ACWS (3d) 4 [Clue]; May v Ferndale
Institution, 2005 SCC 82 at para 92, [2005] 3 S.C.R. 809). The record does not
suggest that the Advisory Body’s recommendation to cancel the applicant’s
security clearance hinged on Subject “A”’s identity or association with Mr.
Salmon. Rather, the respondent submits that the focus of its discussion, recommendation
and the Director General’s decision was based on the applicant’s conduct,
particularly the drug-related incident on October 27, 2008 which had no
connection to Subject “A”, as well as the information gained from a reliable
human source and the RCMP regarding the applicant’s involvement in a drug
trafficking ring at the Airport, where Subject “A”’s role as leader and his
identity were both immaterial. Given the privacy concerns related to the
release of this information about Subject “A”, the applicant was not given this
immaterial information. The respondent notes that the email exchange between
Transport Canada and the RCMP reveals their awareness of the applicant’s
misidentification of Subject “A” and that the Advisory Body’s discussion
specifically noted this and chose not rely on this information in making its
recommendation.
[41]
The respondent disputes the applicant’s claim that missing information
prevented him from addressing the allegations against him given that, in his
submissions, he responds to each one. Not knowing the identity of Subject “A”
or specific dates did not prevent Mr. Salmon from explaining that he might have
been covering a fellow employee’s shift on a day off, for example, or arguing
that he was not charged following the RCMP’s investigation.
[42]
The respondent further submits that, although the applicant now argues
the importance of knowing Subject “A”’s identity and specific dates, he never
sought further particulars following the letter from Ms. Dupuis. Moreover, the information
received from the reliable human source was general in nature and can be
considered in the context of all the other information about the applicant’s
potential involvement with drug trafficking at Pearson International Airport.
[43]
With respect to the applicant’s argument that he
should have had an opportunity to respond to the allegation of possible
insurance fraud, the respondent submits that the Minister was entitled to draw
inference from the applicant’s admission (Pouliot at para 14, above,).
[44]
The respondent points to Lorenzen v Canada
(Transport), 2014 FC 273 at
para 51, 239 ACWS (3d) 10 [Lorenzen], and submits that the Advisory Body and the Director General
have no obligation to do further research or to explore the applicant’s vague,
possible explanations about covering a co-worker’s shift or to
provide a second opportunity to respond to any remaining concerns.
[45]
The applicant was given his full and fair opportunity to respond to the
allegations against him, make submissions and have those submissions considered
carefully.
There was no breach of procedural fairness
[46]
The parties agree that the scope or extent of the duty of procedural
fairness varies and depends on the context and that the duty owed in the
context of revoking an existing security clearance is higher than in the
context of refusing an application for a security clearance. Although it may be
higher than the bare minimum, I agree with the respondent that the duty owed in
these circumstances is still not high.
[47]
As noted by Justice Rennie in Pouliot,
above, at para 10:
[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.
Justice Rennie
added at para 14, “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.”
[48]
In this case, the letter from Ms. Dupuis at Transport Canada advised the applicant of the incidents, allegations and conduct that raised concerns and led
to the review of his security clearance. The letter also referred him to the TSCPP
and invited him to provide additional information and explanations.
[49]
The applicant submits that the majority of the concerns were related to
his association with Subject “A”, to such an extent that the decision hinged on
this association and that he was denied information about the identity of
Subject “A” and, consequently, was denied a meaningful opportunity to respond.
I do not agree that the decision hinged on the applicant’s association with
Subject “A”. In addition, the letter provided the applicant with sufficient
information about the concerns and allegations to permit him to respond.
[50]
Although the applicant misidentified Subject “A”, the letter from Ms.
Dupuis provided the applicant with information that should have permitted him
to know who Subject “A” was. The letter referred to the May 7, 2007 information
from a reliable human source about the applicant’s link to Subject “A”. In
addition, the May 14, 2007 seizure by CBSA referred to Subject “A” and the
applicant working on that same day. The letter also provided details of the
more recent RCMP Project “OTAG” investigation which led to several arrests of
Airport employees for drug offences and conspiracy. The letter indicates that
Subject “A” was identified by both YYZ Airport Intelligence Unit and the RCMP
as the ring-leader. The applicant would likely have been aware of who had been
implicated in the investigation.
[51]
The applicant should also have recalled the identity of the
person whose address he provided for his driver’s licence,
given that he was provided with the specific dates that he had lived at the
address (from September 2009 to December 2011) and the dates when Subject “A”
also lived there (since March 2010).
[52]
Perhaps Transport Canada could have advised the applicant that he had
made an incorrect assumption about Subject “A”, but their failure to do so,
based on concerns about breaching privacy rights and/or impacting an
investigation, does not constitute a breach of procedural fairness given the
extent of the information that was provided and given that there were several
allegations unrelated to Subject “A” to support the decision.
[53]
There is no support for the applicant’s assertion that the decision hinged
on this association, i.e., that this was the determinative factor. However, the
references to the association with Subject “A” in the discussion suggest that
it was part of the cumulative considerations of the Advisory Body. The Advisory
Body may consider such associations 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 v Canada
(Transport), 2007 FC 1160 at para 7, 313 FTR 309 (Eng) [Fontaine]; Canada
(Transport, Infrastructure and Communities) v Farwaha, 2014 FCA 56 at
para 101, 238 ACWS (3d) 282 [Farwaha]).
[54]
The Federal Court of Appeal noted in Farwaha
(above, at para 94), in the context of the Marine Transportation Security
Regulations, SOR/2004-144, that the assessment of reasonable grounds for
suspicion involves nuance and judgment:
[94] However, assessments of risk
and whether reasonable grounds for suspicion exist are standards that involve
the sensitive consideration of facts and careful fact-finding, tasks that
normally entail a broad range of acceptable and defensible decision-making.
Assessments of risk are forward-looking and predictive. By nature, these are
matters not of exactitude and scientific calculation but rather matters of
nuance and judgment.
[55]
With respect to the applicant’s submission that he was unaware of
relevant dates, including when he is alleged to have used his security pass to
access a restricted area on a day he was not working, the applicant was advised
of at least one specific date, that of the seizure by CBSA of cocaine from the
Airport. The June 18 letter from Transport Canada makes clear that
this date is May 14, 2007, when CBSA officers observed the offloading of a
suitcase containing bricks of cocaine and when the applicant “who [was] also not scheduled to work, [was]
present, and had accessed the restricted area doors…”
[56]
I also agree with the respondent that if the applicant thought the
information regarding Subject “A”’s identity and relevant dates was missing, he
could and should have requested particulars from the Advisory Body. The applicant argues that his telephone call to Transport Canada was such a request. However, the record does not support that such a request was
made, only that the applicant asserted that the allegations were hearsay. In
addition, following this call, his counsel responded by detailed email to the
letter but did not ask for further particulars. Since he did not do so,
as in Rivet, “he cannot
complain about the defect of the Advisory Body’s notice… nor can he argue that
there was lack of procedural fairness” (Rivet,
above, para 28).
[57]
With respect to the Advisory Body’s
consideration of the applicant’s possible commission of insurance fraud, it was
entitled to draw inferences about the applicant’s character and judgment from
this admission and was not required to offer him a further opportunity to make
representations.
[58]
As Justice Rennie noted in Pouliot, above,
at para 14:
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.
[59]
As noted by the respondent, the Advisory Body’s
duty of procedural fairness does not include an obligation to investigate the
applicant’s explanation about possibly covering a co-worker’s shift. The
applicant was aware of the seriousness of the allegations and could have sought
to establish this explanation beyond his assertion that he ‘may have’ covered a
shift for another. As noted by Justice Russell in Lorenzen,
above, at para 51:
…Neither the AB nor the Minister’s Delegate
had an obligation to do further research or provide further particulars. See Clue,
above, at para 17. They provided the Applicant with details of what was before
them, which the Applicant concedes was sufficient evidence to deny the TSC. The
Decision only involves a finding that the Applicant ‘may be prone or induced’
to commit or assist an act that ‘may unlawfully interfere with civil aviation.’
This is not the same thing as proof that something has occurred. The Minister
simply has to reasonably believe ‘on a balance of probabilities’ that the
Applicant ‘may be prone or induced.’ See Clue, above, at para 20.
[60]
In addition, neither the Advisory Body or the Director General had a
duty to give the applicant a second opportunity to respond to concerns that
remained after considering his submissions upon making its decision (Lorenzen,
above, paras 51-52). Procedural fairness does not require an ongoing
opportunity to respond to the remaining concerns of the decision-maker.
[61]
Although, the applicant emphasizes that he was not given a meaningful
opportunity to respond and disabuse the Advisory Body and the Director General
of their concerns, the applicant had the opportunity to make submissions and
did so. That this opportunity was not meaningful in the applicant’s view appears
to be measured by the fact that the Advisory Body and the Director General did
not accept his explanations and assertions. 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 policy. Her decision focuses
on the October 2007 drug-related incidents and the applicant’s suspected
involvement in drug importation at Pearson International Airport. The applicant’s submissions 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 the applicant’s
explanation or position.
Was the decision reasonable?
The applicant’s
position
[62]
The applicant submits that the decision was
unreasonable based on several grounds.
[63]
First, Mr. Salmon submits that the decision was arbitrary. The purpose
and objective of the TSCPP is to prevent unlawful acts of interference with
civil aviation. He asserts that the charges of domestic assault, “petty” drug
possession in the community and possibly insurance fraud do not relate in any
way to this purpose and have no connection to civil aviation. He submits that
the Advisory Body’s speculative proposition that he potentially engaged in
insurance fraud and that this conduct raises concerns respecting his judgment
and respect for the law is an overreach of the purposes and objectives of the
TSCPP.
[64]
He acknowledges that the Federal Court’s jurisprudence establishes the
burden of proof for judicial review applications of security clearances as less
than the civil standard and that the Minister need only believe that an
individual may be prone to commit or assist in the commission of an act that
may unlawfully interfere with civil aviation (Ho v Canada, 2013 FC 865 at paras 7-8, 438 FTR 98 (Eng) [Ho]; Clue, above, at para
20). He submits, however, that the Director General still did not have
sufficient grounds to form a reasonable suspicion. The Director General must
act on the basis of reasonable grounds and must have objectively discernable
facts and cannot act on speculation or hunches (R v Mann, 2004 SCC 52,
[2004] 3 S.C.R. 59). The decision was not made on the basis of objectively
discernable facts and is, therefore, unreasonable.
[65]
He argues that the Advisory Body did not have enough evidence to support
the possibility of his association with Subject “A”, pointing to: the lack of
specific dates where they were seen together; the lack of evidence that his
presence at the Airport on May 14, 2007 was connected with Subject “A”, given
that no action was taken by the police or Transport Canada; his denial and his
exculpatory explanation of covering another’s shift; and, his submissions that
reveal that he did not know who Subject “A” was.
[66]
The applicant also notes that the drug charges laid by TPS were
stayed and that the Advisory Body had no evidence connecting these allegations
with the allegations of importing and exporting. He adds that the
RCMP investigation did not result in any charges against him.
[67]
The applicant submits that the evidence available to the Advisory Body
is not sufficient to support its factual findings. There was no evidence that
he and Subject “A” had ever resided together nor was there evidence of the days
they were alleged to have access to restricted areas of the Airport together in
order to retrieve controlled substances.
[68]
The applicant also argues that the allegations were inconsistent by
referring to the information from the reliable human source that he accessed
the restricted areas on his “days off” and the more specific allegation that he
had only accessed the restricted area on his day off once. He argues that no
other specific dates were provided and that he provided a reasonable
explanation – that of covering another employee’s shift.
[69]
The applicant further submits that there was no evidence of his
involvement in drug-related activity at Pearson International Airport and no evidence of his involvement with drug
dealing in his community. Moreover, there is no evidence that these allegations
were related to civil aviation.
[70]
Similarly, he argues that there was no evidence supporting allegations
of insurance fraud or that they related to civil aviation.
The respondent’s position
[71]
The respondent submits that the decision was reasonable. All the
information, taken together, supports the Minister’s conclusion to cancel the
applicant’s security clearance. This is so even if the allegations related to
the applicant’s association with Subject “A” are not considered. The decision
was not arbitrary and is based on more than sufficient grounds. The findings of
fact of the Advisory Body and Director General arise from the information and
evidence.
The decision
is reasonable
[72]
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.
[73]
The
Director General requires only a reasonable belief on a balance of
probabilities that an individual “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” (subsection 1.4(4) TSCPP).
[74]
The Director General based her decision on Mr.
Salmon’s conduct, regardless of his association with Subject “A”. The reliable human
source information, the RCMP investigation and the TPS observations of his drug
deals were more than sufficient to support the Advisory Body and Director General’s
belief. The applicant’s conduct in providing a false address to benefit from
lower insurance was also a relevant consideration in assessing his judgment and
character.
[75]
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”.
This has been characterized as something less than a balance of
probabilities (Ho, above; Clue, above).
[76]
As noted, the Minister and the Director General on behalf of the
Minister, has very broad discretion in relation to decisions regarding security
clearances. Air safety is of substantial public importance and takes precedence
over the interests of individuals.
[77]
In Rivet, above, at para 15, Justice
Pinard notes that in the balancing of interests, those of the public take
precedence:
[15] 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.
[78]
Contrary to the applicant’s position, the decision to revoke the
applicant’s security clearance was not arbitrary. The allegations of
involvement in drug possession and trafficking in his community and drug
importation at the Airport, as well as the conduct related to insurance fraud
are clearly linked to the TSCPP and civil aviation.
[79]
The allegations speak to the applicant’s trustworthiness and respect for
the law, which, in turn, affects an assessment of his future propensity and the
possibility of his committing or aiding and abetting another to commit an act
that may unlawfully interfere with civil aviation.
[80]
There is no requirement that the individual be directly involved in acts
that interfere with civil aviation. That would be very limiting and would not
serve the objectives of the policy.
[81]
In Thep-Outhainthany v Canada (Attorney General), 2013 FC 59, 224 ACWS (3d) 538 [Thep-Outhainthany],
where the applicant’s husband was involved in dial-a-dope scheme and the
applicant denied any involvement, the Court notes the connection between
trafficking drugs at the community level and aviation security. Specifically, Justice
Rennie notes at para 27:
Cocaine and heroin are imported into Canada and the applicant’s access to a restricted area of an Airport could attract the attention of
her husband or his criminal associates.” In the present case, it is the
applicant himself, an Airport employee, who is alleged to be trafficking drugs,
and this is a more direct connection with unlawful interference with civil
aviation.
[82]
Other cases also support the proposition that the conduct at issue need
not be directly interfere with aviation security; in Pouliot, above, the
applicant, a get-away driver, denied knowledge of a scheme to rob a bank; in Russo,
above, the applicant had a previous drug record and now only purchased
marijuana; in Rivet, above, the applicant was charged with two counts of
fraud; and in Farwaha, above, the applicant was associated with members
of a known criminal organization. Yet in all these circumstances, the link with
civil aviation was recognized.
[83]
Moreover, since the inquiry requires an assessment of a person’s
character or propensities and relates to a privilege accorded to an individual
rather than his or her liberty, there is no need for evidence of actual
commission of an unlawful act (Dolinski v Canada (Attorney General), 2013
FC 1030, 233 ACWS (3d) 532; Clue, above).
[84]
As noted by Justice Rennie in Thep-Outhainthany,
above, at paras 19-20:
[19] In exercising his discretion
under this section the Minister may consider any factor that he considers
relevant: Fontaine, para 78. This includes criminal charges that
do not result in a conviction and evidence about a person’s character or
propensities: Clue at para 20. The fact that the charges were
stayed against the applicant is not determinative. Prosecutions proceed,
or do not proceed, for a variety of reasons; hence the absence of a conviction
is not determinative. In my view, a proper analogy can be made to
inadmissibility proceedings under the Immigration and Refugee Protection Act,
SC 2001, c 27. The mere fact of criminal charges is not probative but a
Court can look at the underlying circumstances. In Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607 at paragraph 35, Justice
Anne MacTavish wrote:
In my view, a distinction must be
drawn between reliance on the fact that someone has been charged with a
criminal offense, and reliance on the evidence that underlies the charges in
question. The fact that someone has been charged with an offense proves
nothing: it is simply an allegation. In contrast, the evidence underlying the
charge may indeed be sufficient to provide the foundation for a good-faith
opinion that an individual poses a present or future danger to others in Canada.
[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.
[85]
The Advisory Body was entitled to rely on evidence provided by
the TPS regarding the applicant’s involvement in drug deals in his own
neighbourhood on October 27, 2008. Even though the charges were stayed, the TPS
had observed the applicant engaged in drug deals on previous occasions which
supported the suspicion that he was involved in drug trafficking and
possession. In addition, the amounts of drugs involved cannot be considered as
“petty” as the applicant characterized it. This 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.
[86]
Similarly, the information gathered from the RCMP investigation,
which identified the applicant as a suspect, also supported the reasonable
belief. Although no charges were laid, the Minister and Director General can
consider any factor in assessing security clearance suitability; there need not
be criminal charges or convictions.
[87]
The decision is justified, transparent and
intelligible and falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.
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