Docket: T-2605-14
Citation:
2015 FC 1098
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, September 22, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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REGIS JOSEPH
NICOLAS CHARLEBOIS
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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]
This is an application for judicial review to set
aside the decision of the Minister of Transport (Minister) to revoke the
applicant’s security clearance.
[2]
The impugned decision was rendered under the supposed
authority of section 4.8 of the Aeronautics Act, RSC, 1985, c A-2 (Act),
which sets out the following:
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4.8. The Minister
may, for the purposes of this Act, grant or refuse to grant a security
clearance to any person or suspend or cancel a security clearance.
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4.8. Le ministre
peut, pour l’application de la présente loi, accorder, refuser, suspendre ou
annuler une habilitation de sécurité.
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[3]
The applicant is a pre-flight mechanics
technician. For his work at the Mirabel airport, he has access to restricted areas.
He has worked for the company L-3 MAS since September 25, 1997, and has
been granted a valid security clearance for the past eleven years. On November 29,
2013, the applicant applied for a renewal of his security clearance. Checks
were done with the Canadian Security Intelligence Service and the Royal
Canadian Mounted Police (RCMP).
[4]
In a letter dated June 2, 2014, the applicant
was informed by Transport Canada about the content of the information gathered
by the police authorities raising some concerns about his connection to persons
with ties to a criminal biker gang. In particular, the letter describes three
incidents of interest:
[translation]
• On February 1, 2011, three subjects travelling
in the applicant’s vehicle went to and entered a home in Mont‑Laurier where
there was drug trafficking. Sûreté du Québec officers seized an amount of $1,350
from one of the subjects, but none of the subjects had any narcotics in their
possession. The applicant was not present;
•
On April 5, 2013, a Blainville municipal police
officer stopped the applicant’s vehicle for a highway code violation. The
applicant was one of the three passengers;
• On April 15, 2013, two (if not three)
subjects of interest were spotted by a Sûreté du Québec officer in Mont-Laurier
leaving a restaurant in the applicant’s vehicle, and the applicant was not present.
The subjects have criminal records, including associations with the Hell’s
Angels group.
[5]
The applicant was asked to provide comments and
any useful explanations regarding that information. In a letter dated June 16,
2014, his counsel specified that the applicant had, on a few occasions, lent
his vehicle to his former neighbour. She wrote the following:
[translation]
It seems as though Mr. Charlebois left his
vehicle in Ms. Lopez’s possession on each of the dates listed in your letter dated
June 6. He confirmed that he was at work during all of the incidents, including
the one on April 5, 2013. He can provide documentary evidence on this matter if
required.
Counsel also
stated that the applicant was not aware that the neighbour in question was in any
way involved in criminal activities, and that he would cease all communication
with her. Those explanations did not satisfy the Minister (or his delegate),
hence this application for judicial review.
[6]
First, the applicant argues that he has a right
to know the case to be met and that he must be given a meaningful opportunity
to make representations. He points out that, even though he was informed of the
concerns raised in the checks done with the RCMP, the Minister did not give him
a meaningful opportunity to rebut the negative information. He criticizes the
Minister for not assigning any credibility to his counsel’s reply, since a higher
standard of procedural fairness applies in cases where an existing security
clearance is not renewed (Lorenzen v Canada (Transport), 2014 FC 273
(CanLII) at para 19 (Lorenzen); DiMartino v Canada (Minister of
Transport), 2005 FC 635 (CanLII) at paras 22, 23, 24 and 33). Finally, the
applicant states that he offered to provide proof of his presence at work on
April 5, 2013, to Transport Canada, but that it did not act on that offer.
[7]
The respondent acknowledges that in cases where a
security clearance is revoked or not renewed, procedural fairness requires that
the applicant be informed of the Minister’s concerns and have the opportunity
to make his case. However, the opportunity to make written submissions
satisfies the procedural fairness requirements, including for decisions to
cancel a security clearance that has already been obtained (Lorenzen, at
para 51; Rivet v Canada (Attorney General), 2007 FC 1175 (CanLII) at
para 25). In this case, the respondent points out that the applicant was
informed of the reason for the review of his file. The respondent notes that
the letter from Transport Canada contained specific details from the report
received from the RCMP, including the dates and locations of the three
incidents cited. The respondent points out that it was up to the applicant to
respond in a way that made it possible to address the police’s concerns
regarding his associations with individuals involved in organized crime.
[8]
With respect to adherence to the principles of
procedural fairness, the applicable standard of review is correctness (Russo
v Canada (Transport, Infrastructure and Communities), 2011 FC 764
(CanLII) at para 22; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 (CanLII) at para 43). There was no failure to comply with procedural
fairness in this case. The applicant was informed of the three incidents that
concerned Transport Canada. Specific details (locations, dates, the subjects
identified and the nature of the connection suspicions) were provided in the
letter from Transport Canada. The applicant was asked to provide explanations or
additional information in this regard. In fact, the applicant made his case, while
the Minister had no obligation to request that the applicant make additional
submissions.
[9]
Second, the applicant claims that he addressed
each of the concerns expressed in the letter dated June 2, 2014, and as a
result, that the ministerial decision is otherwise unreasonable. To the
contrary, the respondent asserts that the decision-maker has broad discretion
under section 4.8 of the Act, that the decision-maker may take into
account any factor he or she considers relevant (Fontaine v Canada
(Transport), 2007 FC 1160 (CanLII) at para 78), and that it is
exclusively up to the Minister to determine the weight to give to the various
pieces of evidence before him.
[10]
The onus was on the applicant to address the concerns
of the Minister’s delegate—which he did not do to his satisfaction. The
applicant challenges the Minister’s finding, which is essentially a factual one.
However, the impugned decision seems reasonable to me, so this application must
fail (Sylvester v Canada (Attorney General), 2013 FC 904 (CanLII) (Sylvester)
at para 10; Clue v Canada (Attorney General), 2011 FC 323 (CanLII) at
para 14). It is not in dispute that the applicant’s car was used by subjects identified
with a criminal biker gang (Hell’s Angels).
[11]
Note that
according to the uncontradicted evidence in the record, the applicant works at
the Mirabel airport, that is, a location of some interest for organized crime. The
Minister must ensure that these locations are not used for organized crime. The
Transportation Security Clearance Program Policy (Policy) states the following:
Objective
The objective
of this Program is to prevent the uncontrolled entry into a restricted area of
a listed airport by any individual who;
1. is known or suspected to be involved in activities directed
toward or in support of the threat or use of acts of serious violence against
persons or property;
2. is
known or suspected to be a member of an organization which is known or
suspected to be involved in activities directed towards or in support of the
threat or use of acts of serious violence against people or property;
3. is
suspected of being closely associated with an individual who is known or
suspected of;
• being involved in activities referred to in paragraph (a);
• being a member of an organization
referred to in paragraph (b); or
• being a member of an organization
referred to in subsection (e) hereunder.
4. the
Minister reasonably believes, on a balance of probabilities, may be prone or
induced to;
• commit an act that may be unlawfully
interfere with civil aviation; or
•
assist or abet any person to commit an act that
may unlawfully interfere with civil aviation.
5. is
know or suspected to be or to have been a member of or a participant in
activities of criminal organizations as defined in Subsection 467.1 and 467.11
(1) of the Criminal Code of Canada;
6. is a
member of a terrorist group as defined in Section 83.01 (1)(a) of the Criminal
Code of Canada.
The Program is in place to determine whether
a person poses a risk to transportation security.
[12]
Justice Russell noted the following in Lorenzen
(para 31):
Air safety is an issue of substantial
importance and access to restricted areas is a privilege, not a right. The
Minister’s broad discretion is guided by the TSCP Policy [Policy], which does
not require proof of any unlawful act or past activity, or a belief that an
applicant will do something. It simply requires that the Minister, in
the circumstances, have a reasonable belief that the person may be prone
or induced to do some acts.
[13]
In this case, the reasons for the impugned
decision are clear and intelligible. In the absence of objective evidence corroborating
the applicant’s statements that he lent his vehicle to a neighbour or that he
was at work, it was reasonably open to the decision-maker to find that the
applicant’s explanations were not sufficient to depart from the inferences drawn
from the RCMP report. It is clear that the impugned decision is based on the
evidence in the record, including the information described in the letter dated
June 2, 2014, the written statement provided by counsel for the applicant (dated
June 16, 2014), the recommendation by the Transportation Security Clearance
Advisory Body and the Policy. The three incidents described in the letter dated
June 2, 2014, are apt to raise serious concerns about the applicant’s
judgment, reliability and trustworthiness. As a result, it was not unreasonable
to find that in light of the information presented in the RCMP report, there was
reason to believe, on a balance of probabilities, that the applicant [translation] “[is]
prone or induced to commit an act, or to assist or abet another person to
commit an act, that may unlawfully interfere with civil aviation.”
[14]
Because no reviewable error was committed by the
Minister or his delegate, this application for judicial review will be
dismissed with costs.
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