Docket: T-1759-14
Citation:
2015 FC 698
Ottawa, Ontario, June 2, 2015
PRESENT: The
Honourable Madam Justice Gleason
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BETWEEN:
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EMILIA KACZOR
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Applicant
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and
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CANADA
(MINISTER OF TRANSPORT)
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Respondent
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JUDGMENT AND REASONS
[1]
In this application for judicial review, the
applicant, Emilia Kaczor, seeks to set aside the July 21, 2014 decision of the
Minister of Transport’s delegate refusing her application for a transportation
security clearance [TSC] at the Calgary International Airport. Ms Kaczor claims
that as a result of this decision she will no longer be able to work as a
flight attendant with Enerjet in Calgary.
[2]
Ms Kaczor argues that the decision denying her
application for a TSC should be set aside because her procedural fairness
rights were violated by the decision-maker and because the decision is
unreasonable. For the reasons set out below, I have determined that neither of
these arguments has merit and that this application will accordingly be
dismissed.
I.
Were Ms Kaczor’s Procedural Fairness Rights
Breached?
[3]
In terms of Ms. Kaczor’s procedural fairness
claims, two issues arise, namely, determination of the scope of her procedural
fairness entitlements and assessment of whether those entitlements were
respected. Each of these points is discussed below.
A.
The Nature of the Duties Owed to Ms Kaczor
[4]
As concerns the nature of the duties owed to Ms
Kaczor, the jurisprudence recognises that a TSC applicant’s procedural fairness
entitlements vary depending on whether the applicant is seeking a TSC for the
first time or is seeking the renewal or facing a revocation of an existing TSC.
[5]
In situations of initial applications, several
cases have held that all an applicant is entitled to, by way of procedural
fairness, is that his or her application be considered and, if dismissed, that
there be a reasonable basis for so doing as in such circumstances an applicant
has no pre-existing rights that are being impacted.
[6]
In Pouliot v Minister of Transport, Infrastructure
and Communities, 2012 FC 347, [2012] FCJ No 427 [Pouliot], Justice
Rennie explained at para 13 the reasons for the minimal requirements of
procedural fairness in the context of an initial application for a TSC in the
following terms:
Where what is at issue is a simple
application for clearance or a permit made by a person who has no existing
right to that clearance or permit, the requirements imposed by the duty to act
fairly are minimal. The Minister must render a decision that was not based on
an erroneous finding of fact made in a perverse or capricious manner or without
regard to the material before him.
[7]
Similarly in Motta v Canada (Attorney
General), [2000] FCJ No 27 at para 13, Justice Pinard noted that where “the Minister’s refusal to grant access clearance does not
involve the withdrawal of any of the plaintiff’s rights […] the requirements
imposed by the duty to act fairly are minimal and that, after allowing the
plaintiff to submit his application in writing as he did, the Minister only had
to render a decision that was not based on an erroneous finding of fact made in
a perverse or capricious manner or without regard for the material before it”.
[8]
Conversely, in situations where an existing
security clearance is either being revoked or not renewed, applicants have been
afforded a higher degree of procedural fairness that entitles them to be
informed of the reasons their TSC is potentially in jeopardy and to an
opportunity to make submissions before an adverse decision is made. Such
individuals are entitled to a greater degree of procedural fairness because in
such circumstances their right to earn a livelihood is likely to be impacted.
[9]
For example, in Dimartino v Canada (Minister
of Transport), 2005 FC 635, 272 FTR 250, Justice Gauthier held that the
duty of fairness in situations of a revocation or non-renewal of a TSC does not
require a formal hearing but does require that applicants “be afforded a meaningful opportunity to present their views
at one point before the final decision is made. To do so, they must know the
case they have to meet” (at para 36). Likewise, in Rivet v Canada
(Attorney General), 2007 FC 1175, Justice Pinard noted that “the procedural safeguards available to the applicant [in
situations where an existing security clearance is being revoked or not
renewed] are limited to the right to know the facts alleged against [the
applicant] and the right to make representations about those facts” (at
para 25).
[10]
Here, Ms Kaczor argues that her entitlements
fall into the latter category and that she was therefore entitled to the higher
degree of procedural fairness because she was employed by Enerjet as a flight
attendant and lost her ability to work in that capacity due to the refusal of
the TSC. More specifically, her duties required she be afforded access to
certain restricted areas at the Calgary International Airport. In order to gain
access to these areas she was required to obtain a Restricted Area Identity
Card [RAIC] from the Airport Authority. To obtain the RAIC, it was necessary
that Ms Kaczor first be issued a TSC. Thus, she is correct in asserting that
she required a TSC to perform her work as a flight attendant.
[11]
While her application for a TSC was pending, Ms
Kazcor was employed as a flight attendant by Enerjet and was issued a temporary
pass by the Calgary Airport Authority, which afforded her the right to access
restricted areas in the airport. Once her TSC application was refused, the
Calgary Airport Authority revoked Ms Kaczor’s temporary pass, and she was no
longer able to gain access to the restricted areas. From the materials before
the Court, it is not clear whether this impediment, in turn, led to her
dismissal by Enerjet, but it is clear that the refusal of the TSC made it
impossible for Ms Kazor to continue to perform the full range of duties of a
flight attendant at Enerjet.
[12]
The respondent argues that because Ms Kaczor had
never been issued a TSC, she is entitled only to the minimal procedural
fairness rights available to initial applicants. I disagree and believe that in
the circumstances of this case Ms Kazor was entitled to the higher degree of
procedural fairness as she was not a mere job applicant and had been issued a
temporary permit (albeit by the Airport Authority and not the Minister of
Transport) that afforded her access to restricted areas in the airport in order
to perform her job. Her situation is therefore akin to that of applicants who
face the revocation or non-renewal of a TSC as her ability to continue to
perform her job duties for her employer has been impacted by the refusal of the
TSC. Thus, Ms Kaczor was entitled to be advised of the concerns with respect to
her TSC application and to an opportunity to address those concerns before her
TSC was revoked.
B.
Were Ms Kaczor’s Procedural Fairness
Entitlements Respected?
[13]
Having determined the scope of Ms Kaczor’s
entitlements in terms of procedural fairness, I turn now to examination of
whether those entitlements were respected.
[14]
In her TSC application form, Ms Kaczor consented
to Transport Canada’s conducting all necessary verifications, including obtaining
a security clearance, to assess her suitability for a TSC. Transport Canada
requested a security clearance from the RCMP. The RCMP indicated in reply that,
while Ms Kaczor did not have a criminal record, she had previously been
associated with members of two criminal gangs, the Independent Soldiers and the
Hells Angels. In the report the RCMP sent to Transport Canada, the RCMP wrote
as follows:
2. Some of the individuals associating with
the applicant, here below, are known members of the Independent Soldiers:
a. In December 2007, the applicant
was observed by Calgary Criminal Intelligence Unit (CCIU) officers at the
Tantra Lounge in company of individuals.
b. In June 2008, a Calgary Police
Service (CPS) officer spoke with the applicant who indicated that she was
residing with an individual who she named.
c. In June 2008, the applicant was
observed by a CPS officer arriving at the Tantra Nightclub in the company of an
individual.
d. In March 2009, an individual was
observed by a CPS officer driving a vehicle registered to the applicant.
e. In June 2010, the applicant was
with a group of individuals when spoken to by CPS officers.
i. The Independent Soldiers (IS)
organized crime group are no longer operating as a cohesive group but were
believed to be involved in all aspects of the drug trade including production,
trafficking, and brokering of cocaine, MDMA, methamphetamine, heroin, ecstasy
and marihuana. The group is cellular in nature, and has been known to be
involved in drug trafficking in Kamloops, Kelowna, Prince George, Metro
Vancouver, Calgary, and Edmonton. Many members of the Vancouver cell continue
to associate with one another. They are also involved in weapons offences and
they have an alliance with the West Point Chapter of the Hells Angels.
3. Subjects mentioned in this report:
a. Subject “A”:
i. Was with the applicant in many of
the above reported incidents
ii. Is a very close associate of the
applicant
iii. Has no known Criminal
Convictions
iv. Is presently accused for
Possession for the Purpose of Trafficking X 9, Fraud X2, Possession of Property
Obtained by Crime X7, Forgery X8 and False Pretense
v. Is known to be a Hells Angels
associate
b. Subject “B”:
i. Was with the applicant in one of
the above reported incidents
ii. Was convicted of several (29)
charges between 1997 and 2010 including Possession of Scheduled I Substance,
Possession of a Firearm or Ammunition Contrary to Prohibition Order, Assault,
Possession of a Credit Card, Obstruct Peace Officer, Possession of Break in
Instrument, Robbery, Carry Concealed Weapon and Possession of Property Obtained
by Crime; some of these convictions included jail term the longest being six
months
iii. Was charged of several offences
between 2005 and 2010 including Traffic in Scheduled Substance, Assault,
Obstruct Police Officer, Possession of Counterfeit Money and Exporting
Counterfeit Money; these charges were either stayed or withdrawn
iv. He is presently accused for
Possession for the Purpose of Trafficking, Possession of Substance, and the
Possession of Property Obtained by Crime and Unauthorized Possession of a
Firearm.
[15]
Following receipt of this report from the RCMP,
Transport Canada wrote to Ms Kaczor, advising her that “during
the verification process, adverse information was made available that [raised]
concerns as to [her] suitability to obtain a [TSC]”. The letter then
went on to provide Ms Kaczor all the particulars contained in the RCMP’s
report.
[16]
Ms Kaczor replied to the Transport Canada’s
letter, stating that during the periods in question she had worked at the
Tantra nightclub, where she was required to socialize with patrons, but had not
been involved in any illegal activities or affiliations. She also noted that
she had moved frequently and had previously had several roommates, but stated that
she had never knowingly lived with anyone that had a criminal conviction or who
was involved in criminal activity. She went on to continue that while she could
only surmise as to the identity of the individuals discussed in Transport
Canada’s letter, she “had no contact with any of the
referenced subjects since the referenced incident dates”. She also noted
that as of the date of her application for the TSC she did not have or want to
have any association with those involved in criminal activity and commented on
the favourable changes she had made in her life, including her work with
Enerjet, for which the TSC was required.
[17]
Following receipt of her reply, the Transport
Canada Security Clearance Program Advisory Body recommended rejection of Ms
Kaczor’s TSC application, due to her “multiple
associations to known members of organised crime” which “raised concerns regarding her judgment, trustworthiness and
reliability”. The recommendation went on to note that insufficient time
had passed since the criminal associations to demonstrate a change in Ms
Kaczor’s behaviours and associations, that her reply letter did not provide
sufficient information to allay the Advisory Body’s concerns and that the
Advisory Body concluded that she might have been “prone
or induced to commit an act, or assist or abet” someone else to commit
an act that might interfere with civil aviation.
[18]
The Minister’s delegate accepted the Advisory
Body’s recommendation and rejected Ms Kaczor’s TSC application for much the
same reasons invoked by the Advisory Body.
[19]
Ms Kaczor argues that she was denied procedural
fairness in this process for three reasons: first, she claims she needed to
know the identity of Subjects “A” and “B” to have been in a position to properly respond to
Transport Canada’s concerns; second, she argues she needed more particulars
about the concerns to properly formulate a reply; and, finally, she says that
she ought to have been specifically told in Transport Canada’s letter to her
that there were concerns with her judgment, trustworthiness and reliability.
[20]
I find no merit in these assertions.
[21]
With respect to the identity of the individuals,
Ms Kaczor’s reply indicates that she knew who they were as she stated that she
had not had contact with the subjects since the referenced dates. Had she not
known who the individuals were, she could not have made this statement.
[22]
As concerns the particulars provided, Transport
Canada’s letter set out a substantial amount of detail regarding the identity
of the individuals with whom Ms Kaczor was suspected of associating and also
clearly underlined that it was the fact of these associations that gave rise to
concerns regarding her suitability for a TSC. More specifically, in the letter,
she was advised that:
- She had lived
with one of the individuals who was suspected of criminal affiliation in
2008 and that the Calgary police had questioned her in 2008 after she
confirmed whom she was living with;
- She was spoken
to by the police again in 2010 when she was with a group of individuals
suspected of being involved with the Independent Soldiers;
- She lent her car
in 2009 to one of these individuals; and
- She was observed
arriving at the Tantra nightclub in December 2007 in the company of
suspected members of the Independent Soldiers.
[23]
In my view, these details were sufficient for Ms
Kaczor to have been in position to reply to the concerns and to have denied the
assertions (if they were untrue) or to have provided an explanation for them.
Indeed, in her reply she did attempt to explain what had occurred and tried to
downplay the significance of her association with the individuals in question,
by claiming that the associations arose from her work at the Tantra nightclub
and were well in her past by the time she applied for the TSC.
[24]
In some respects, this case is similar to MacDonnell
v Canada (Attorney General), 2013 FC 719, 435 FTR 202 [MacDonnell].
There, Transport Canada wrote a letter to the applicant that set out
particulars of suspected drug dealing between the applicant and five unnamed
individuals. In MacDonnell, like here, the applicant argued that it was
procedurally unfair for the names of these individuals to have been withheld,
but there was evidence that the applicant knew the identity of some of them
(and, indeed, had lived with one of them). Justice Harrington concluded that
there was no procedural unfairness as it was not necessary for the names of the
individuals to have been provided to the applicant for him to have known what
he was being reproached with and accordingly to have been in a position to
defend himself.
[25]
Likewise, in this case, Ms Kaczor was provided
particulars of the dates she lived with one of the suspected gang members, the
dates she was suspected of having lent her car to another of them and the dates
she was questioned by police either in the gang members’ presence or about
them. It is inconceivable that these particulars were insufficient for Ms
Kaczor to have appreciated who the individuals in question were, and, indeed,
she does not claim in the affidavit she filed in support of this application
that she did not know who Subject “A” and “B” were. In addition, as in MacDonnell, Ms
Kaczor was provided with particulars of her conduct that gave rise to the
concerns, namely, that she was suspected of affiliating with members of the
Independent Soldiers and the Hells Angels.
[26]
As for the allegation that Ms Kaczor was not
aware that Transport Canada was assessing her for her trustworthiness,
suitability and reliability, in my view it should have been obvious to her that
these issues are related to her suitability for a TSC as this is self-evident.
In addition, as noted in Pouliot, it is not necessary for Transport
Canada to advise TSC applicants of the particular grounds under the relevant
Transport Canada policy that might be invoked to deny a TSC. In this regard at
para 14, of Pouliot Justice Rennie noted as follows:
The considerations of susceptibility to
influence and his association with others are both indicated in the Transport
Canada policy, although not in the February 25, 2011 letter. The letter
expressly invites the applicant to consult the policy. 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 […]
[27]
Thus, Ms Kaczor was provided with sufficient
details regarding the concerns with her TSC application and with an opportunity
to address those concerns. Her rights to procedural fairness were therefore
respected in this case and her first ground of review accordingly fails.
II.
Was the Delegate’s Decision Reasonable?
[28]
As concerns the second ground raised by Ms
Kaczor, it is undisputed that the standard applicable to the review of the
decision of the ministerial delegate in this case is reasonableness (see e.g. Clue
v Canada (Attorney General), 2011 FC 323, 200 ACWS (3d) 4 [Clue]
at para 14 and MacDonnell at para 29). The hallmarks of a reasonable
decision are that it be justified, transparent and intelligible and that the
result reached fall within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[29]
Section 4.8 of the Aeronautics Act, RSC
1985, c A-2, the provision under which TSCs are granted, affords broad
discretion to the Minister to grant or refuse a TSC, providing that “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”. Those purposes include promotion of aviation
security (see e.g. Fontaine v Canada (Attorney General),
2007 FC 1160, 313 FTR 309 at para 26 [Fontaine]).
[30]
In exercising his or her discretion under
Section 4.8 of the Aeronautics Act, the Minister (or the ministerial
delegate) may refuse or revoke a TSC where there are reasonable grounds to
believe that an applicant may be prone or induced to commit or assist an act
that may unlawfully interfere with civil aviation, which involves an assessment
of the person’s character or propensities (see e.g. Clue at para 15).
These propensities may reasonably be determined to provide the basis to refuse
or revoke a TSC where the applicant has faced criminal charges that did not
result in a conviction or where the applicant has been associated with
those considered to be a security threat.
[31]
For example, in Clue, Justice Barnes
upheld the refusal of a TSC to an applicant who had been charged with (but not
convicted of) being in possession of stolen property and who was suspected of
having placed a gun aboard an aircraft in circumstances where there was
insufficient proof to lay charges against the applicant. In Fontaine,
Justice Shore upheld a decision to refuse a TSC based on an individual’s
affiliation with known members of a criminal organization. In both cases, the
proof fell well below the level required for a criminal conviction.
[32]
In the present case, I believe that there was
sufficient information before the Minister’s delegate for the delegate to have
reasonably concluded that Ms Kaczor might have been prone or induced to commit
or assist an act that may unlawfully interfere with civil aviation. This, as
Justice Barnes noted in Clue at para 20, is a low standard of proof. The
delegate was not required to have proof on the criminal standard that the Ms
Kaczor had a close relationship with the individuals referred to above, that
she was aware of their criminality, that she continued to associate with them
or that she would commit an act or assist in the commission of an act that may
unlawfully interfere with civil aviation. Rather, all that was required was a
reasonable basis for belief that Ms Kaczor might have been prone or induced to
commit or assist an act that may unlawfully interfere with civil aviation.
[33]
In my view, the Minister’s delegate was entitled
to find on the basis of the evidence before her that Ms Kaczor might have been
such a potential security threat on the basis of her past relationship with
members of the Independent Soldiers and Hells Angels. Such relationships, by
definition, give rise to a security risk, as Justice Shore found in Fontaine.
The mere passage of time since the last of the events with which Ms Kaczor was
reproached did not mandate an opposite conclusion, especially in light of the
explanation that Ms Kaczor provided.
[34]
In her letter responding to Transport Canada, Ms
Kaczor did not dispute her past associations and provided explanations that
were at odds with the information in her TSC application. More specifically, in
her application she made no mention of having worked in the nightclub industry
or at the Tantra lounge when asked to list her prior employment. However, in
her letter to Transport Canada, Ms Kaczor claimed she had worked at the Tantra
lounge. She also stated in her letter that she had moved around a lot and had a
number of different roommates but this is not consistent with the information
provided in her application, in which she only listed three previous addresses.
[35]
Moreover, in her letter to Transport Canada, Ms
Kaczor provided no explanation for several of the instances of her known
interactions with Independent Soldier members. For example, she did not explain
why one was seen using her car, why she could not recall with whom she was
living in June of 2008 or why she arrived at Tantra nightclub with members of
the Independent Soldiers if she only interacted with them through her
employment there.
[36]
Based on this, there were reasonable grounds for
legitimate concern about Ms Kaczor’s trustworthiness, suitability and
reliability. It is therefore not possible to say that the reasons in this case
lack justification, transparency and intelligibility or that the decision does
not fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law. In short, there was more than ample basis for
the delegate to have been reasonably concerned about the security risk that Ms
Kazcor might pose in light of her prior associations and failure to account for
them. Thus, the decision to refuse her a TSC is reasonable.
III.
Conclusion
[37]
This application for judicial review will
therefore be dismissed. The parties concurred that costs should follow the
event and agreed that they should be fixed in the lump sum amount of $700.00. I
concur that this amount is appropriate in this case and therefore award costs
to the respondent in the amount of $700.00.
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