Docket: T-2051-15
Citation:
2016 FC 1187
Ottawa, Ontario, October 24, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ERICA BONNICK
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Applicant
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and
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ATTORNEY
GENEARL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Ms. Erica Bonnick was employed
with Airport Terminal Services at Lester B Pearson International Airport. Her
continued employment was contingent upon her receiving a Transportation
Security Clearance [TSC] from Transport Canada, a clearance she had applied for
in January 2014.
[2]
In a decision dated October 29, 2015, the
Director General, Aviation Security at Transport Canada, acting as the delegate
of the Minister of Transport [Minister], refused Ms. Bonnick’s TSC. In the
decision, the Minister identified information concerning Ms. Bonnick’s
association with two individuals with lengthy criminal records who are members
of street gangs involved in serious criminal activities. The decision noted
that Ms. Bonnick’s association with these individuals raised concerns regarding
her judgment, trustworthiness and reliability.
[3]
Ms. Bonnick seeks judicial review of the refusal
decision, asking that the Court quash the decision and return the matter for
redetermination. Specifically, Ms. Bonnick argues that: (1) key findings
underpinning the decision have no rational basis in evidence, that her
submissions were not fully considered and that the decision-maker failed to
address the historical and transient nature of her contact with the individuals
of concern, rendering the decision unreasonable; and (2) there was a breach of
procedural fairness as she was not provided an opportunity to address the
allegations of ongoing association; allegations that played a role in the
refusal decision.
[4]
In deciding this application, I will address the
two issues raised:
A.
Was the decision to refuse to grant the TSC
reasonable?
B.
Was there a breach of the duty of procedural
fairness?
[5]
For the reasons that follow, I have determined
that the decision was reasonable and that there was no breach of procedural
fairness. The application will be dismissed.
II.
Background
A.
The TSC Process
[6]
Section 4.8 of the Aeronautics Act, RSC,
1985, c A-2 [Aeronautics Act] provides that the Minister of Transport
may “grant or refuse to grant a security clearance to
any person or suspend or cancel a security clearance”.
[7]
Section 165 of the Canadian Aviation Security
Regulations, SOR/2011-318 [Regulations] provides that any person requiring
access, as part of their employment, to a restricted area within an aerodrome
must have been issued a Restricted Area Identity Card [RIAC] or possess another
document authorizing access. Section 146 of the Regulations sets out the
requirements for the issuance of a RAIC. Those requirements include having been
granted a TSC.
[8]
The TSC process is governed by the
Transportation Security Clearance Program [TSCP], a program that Transport
Canada implemented to provide guidance concerning the issuance, suspending,
refusing and cancelling of TSCs. The Program’s objective is to prevent the
uncontrolled entry into a restricted area of a listed airport by any individual
in enumerated circumstances. Those circumstances include a situation where the
Minister reasonably believes, on a balance of probabilities, the individual may
be prone or induced to commit, or to assist or abet any person to commit an act
that may unlawfully interfere with civil aviation.
[9]
In processing a TSC application, comprehensive
background checks are completed. Where a concern is identified as to the
applicant’s suitability an Advisory Body reviews the information and makes a
recommendation to the Minister. In advance of the Advisory Body review, the
applicant is provided the information regarding the identified concerns and
invited to respond.
B.
Ms. Bonnick’s Application
[10]
Ms. Bonnick submitted her application for a TSC
in January 2014. In conducting background checks pursuant to the TSCP,
Transport Canada was provided with Ms. Bonnick’s Law Enforcement Record Check
Report [LREC]. The report described an incident in 2004 and another in 2011
linking Ms. Bonnick to two individuals known to police. The report disclosed
that the first individual had a lengthy criminal record and was a member of a
street gang. The report disclosed that the second individual was also a member
of a street gang and had been charged with various crimes but not convicted.
[11]
Transport Canada wrote to Ms. Bonnick in
February 2015 advising her of the concerns and disclosing the information
contained in the LREC report. She was encouraged to provide additional information
outlining the circumstances surrounding the incidents and any other relevant
information including identifying any extenuating circumstances.
[12]
Ms. Bonnick submitted two email responses to the
February 2015 letter. The emails are substantially the same. She advised that
the 2004 incident arose because she was driving her then boyfriend’s car and
that she was unaware of the extent of his criminal past. With respect to the
2011 incident, she states that she was simply one of four people in the car and
that she did not know the driver who was her friend’s boyfriend and the person
of interest to the police. She also notes that: “Today
I am much wiser…I do not keep the company of anyone mentioned in this letter”.
[13]
In June 2015, the Advisory Body found it had
reason to believe, on a balance of probabilities, that Ms. Bonnick may be prone
or induced to commit an act, assist or abet an individual to commit an act that
may unlawfully interfere with civil aviation on the basis of her reported
association with the two individuals involved in criminal activities and
gangs. The Board stated: “Due to the applicant’s
history of association to individuals involved in criminal activities and gangs
on two (2) occasions, separated by a 7 year period, the Advisory Body was led
to believe that she had continuously been associating with these individuals
throughout the period.” The Board further noted that Ms. Bonnick’s
submission did not provide sufficient information to dispel their concerns and
the Board recommended refusal of the TSC.
III.
Decision under Review
[14]
On October 29, 2015, the Minister concurred with
the Advisory Body’s recommendation and refused Ms. Bonnick’s application. The
reasons for the decision state:
The information concerning the applicant’s
association to two (2) individuals with lengthy criminal records and who are
members of street gangs involved in serious criminal activities raised concerns
regarding her judgement, trustworthiness and reliability. I note that on two
(2) occasions, one in 2004 and one in 2011, the applicant was observed by
police to be in the company of individuals who are members of street gangs and
who have a combined 35 criminal convictions and charges related to violence,
weapons, robbery and disrespect for authority. I note that the applicant stated
in 2004 that the individual of concern was her boyfriend at the time. I further
note that the applicant’s associations are not casual and are to individuals
who are members of street gangs. After reviewing all of the information on
file, I have 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.
I also note the applicant’s submission did not contain sufficient information
to address my concerns.
IV.
Preliminary Issue
[15]
The respondent submits that Ms. Bonnick has
placed evidence before this Court that was not before the original decision-maker.
The respondent argues that this new evidence does not fall within one of the
recognized exceptions for the admission of new evidence on judicial review and
is also irrelevant.
[16]
The evidence in question is found at paragraphs
8 and 9 of Ms. Bonnick’s affidavit and comprises three sentences. Specifically,
the evidence states that Ms. Bonnick is the primary caretaker and provider for
two young children, asserts that the refusal decision has had a substantial
impact on Ms. Bonnick and her family, describes changes made to her living
situation and arrangements and states that Airport Terminal Services is
prepared to revisit her employment should the TSC decision be set aside.
[17]
Ms. Bonnick’s counsel argues that this is not
new evidence but rather information that is implicitly and explicitly referred
to in the record before the Court. This may be the case as it relates to Ms.
Bonnick being a mother and her loss of employment as a result of the refusal
decision; however the evidence goes beyond this. The evidence describes the
impact of her lost employment on her living arrangements and the possibility of
being rehired. This is all new information.
[18]
I am not persuaded that the new information
falls within any of the three exceptions identified in Bernard v Canada
(Revenue Agency), 2015 FCA 263 at paras 19-27 nor has Ms. Bonnick’s counsel
argued that the evidence should be recognized as an additional exception on the
basis that the list of exceptions is not closed (Bernard at para 19). I
am also of the view that the evidence is not relevant to the issues raised in
this application. The impact of the decision on Ms. Bonnick’s employment or her
personal life, issues clearly of importance to her, have no bearing on the
question of aviation security (Doan v Canada (Attorney General), 2016 FC
138 at para 28). The evidence will be disregarded in considering the merits of
this application. I have however taken this information into account when
addressing the question of costs.
V.
Standard of Review
[19]
The discretionary decision of the Minister to
refuse Ms. Bonnick’s security clearance is to be reviewed on a reasonableness
standard (Christie v Canada (Attorney General), 2015 FC 210 [Christie]
at para 16).
[20]
The jurisprudence has recognized that: (1) the
Minister’s decision under section 4.8 of the Aeronautics Act to grant or
refuse a security clearance is a highly discretionary decision; (2) the
Minister’s margin of appreciation in the exercise of that discretion is high (Philipos
v Canada (Attorney General), 2016 FCA 79 at para 30 citing Canada (Minister
of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56); and
(3) in considering whether a decision is reasonable the court must address
whether the decision is transparent, justifiable and intelligible (Dunsmuir
v New Brunswick, 2009 SCC 8 [Dunsmuir] at para 47).
[21]
In addressing Ms. Bonnick’s submissions alleging
a breach of procedural fairness the correctness standard of review will be
applied (Christie at para 17). The level of fairness in such cases is “limited to the right to know the facts alleged against [the
applicant] and the right to make representations about those facts” (Sylvester
v Canada (Attorney General), 2013 FC 904 at para 11, citing Pouliot v
Canada, 2012 FC 347 and Rivet v Canada (Attorney General), 2007 FC
1175 at para 25).
VI.
Analysis
A.
Was the decision to refuse to grant the TSC
reasonable?
[22]
Ms. Bonnick argues that the Minister’s decision
is unreasonable citing three errors:
i.
the absence of a rational basis in the evidence
to support two key findings. First the Advisory Body’s statement that Ms.
Bonnick’s history of association with individuals involved in criminal
activities and gangs on two separate occasions separated by a seven year period
led the Advisory Body to believe “that she had
continuously been associated with these individuals throughout the period”
and second, the Minister’s conclusion that Ms. Bonnick’s “associations are not casual”;
ii.
relying on the decision of this Court in Ho v
Canada (Attorney General), 2013 FC 865 [Ho], the failure to address
Ms. Bonnick’s submissions as contained in the two email responses she provided
to Transport Canada; and
iii.
the failure to explain how Ms. Bonnick’s past
associations support a reasonable belief, on a forward looking basis, that she
may be a risk to aviation security.
(1)
No Rational Basis
[23]
The factual findings made in support of the
Minister’s decision were reasonably available to the Minister. The evidence
demonstrates that Ms. Bonnick was involved in a relationship in 2004 with an
individual who possessed a lengthy criminal record spanning 15 years. That
record discloses offences involving violence and the possession and use of
weapons. In addition, her then boyfriend is described as a known member of a
street gang and that street gang’s main criminal activity involved the
distribution of crack cocaine.
[24]
Seven years later, Ms. Bonnick was again found
in a car that was observed in the driveway of a residence known to be
frequented by individuals involved in the drug trade. When that car was stopped
Ms. Bonnick was found to be a passenger in the car with three other
individuals. The police report noted the driver had been charged with serious
offences involving weapons and was also a member of a street gang involved in
criminal activity involving weapons and drugs.
[25]
Ms. Bonnick argues that her age should excuse
the associations. However, she was an adult in 2004 and 2011. The individual of
interest in the 2004 incident was admittedly her boyfriend. The individual of
interest in the 2011 incident, while not someone she admitted knowing was the
boyfriend of her friend and she was riding in a car he was driving with her
friend and one other person. She did not dispute the association.
[26]
It was based on this evidence that the Advisory
Body was led to believe that Ms. Bonnick’s association had been continuous and
that the associations were not casual.
[27]
While Ms. Bonnick disagrees with the conclusions
reached, and there may well have been other reasonable conclusions to be drawn
from the evidence, neither her disagreement nor the identification of other
reasonable interpretations of the evidence render the findings unreasonable.
(2)
Failure to consider submissions
[28]
Ms. Bonnick notes that the Minister’s sole
reference to her email submissions to Transport Canada was an acknowledgement
that they were considered and a statement to the effect that the submissions
were insufficient to address the concerns. Ms. Bonnick argues that this was
insufficient. She submits the Advisory Board and the Minister had a duty to
consider that she had stated she was unaware of the extent of her former boyfriend’s
criminal past; she did not know the individual of interest in the 2011
incident; and that she does not keep the company of either of these
individuals. Relying on the decision of Justice Sean Harrington in Ho,
she submits that, where there is no evidence this information was considered,
the decision can be found to have been unreasonable.
[29]
In Ho, the applicant provided what
Justice Harrington described as “two detailed letters,
with enclosures” in response to the information of concern. In providing
the information, the applicant invited the Advisory Board to review certain
other information, an invitation Justice Harrington found the Board did not
accept. It was in these circumstances that Justice Harrington concluded it
unreasonable for the Minister to conclude, without more, that the explanations
did not contain sufficient information to address the concerns. I agree with
the respondent that this is simply not the case here.
[30]
Ms. Bonnick did not provide a detailed
explanation in response to the concerns. Instead, she provided two emails that
were each four paragraphs in length, containing substantially the same
information. The information she provided did not contradict the information
that was of concern, past associations with gang members, associations that, by
definition give rise to a security risk (Kaczor v Canada (Minister of
Citizenship and Immigration), 2015 FC 698 [Kaczor] at para 33
referring to Fontaine v Canada (Attorney General), 2007 FC 1160).
[31]
The decision letter acknowledged Ms. Bonnick’s
submissions, referenced those submissions when noting that the individual of
concern in the 2004 incident was her boyfriend and concluded they lacked
sufficient information to address the concerns. The Minister did not err by
failing to individually address Ms. Bonnick’s bald declarations.
(3)
Forward looking risk
[32]
Ms. Bonnick argues that the Minister’s failure
to articulate why her past associations generated a forward looking security
risk undermined the transparency and justifiability and intelligibility of the
decision. Again, I disagree.
[33]
The mere passage of time or the absence of
criminal conduct on the part of an applicant does not eliminate forward looking
risk based on past associations, a point made by Justice Gleason in Kaczor
(paras 32-33).
[34]
In Christie, the applicant had been
involved in incidents dating back to 2007 and had also never been convicted of
a crime. In addressing the issue of past association Justice Peter Annis stated
at paragraph 25:
While it may seem harsh to the applicant who
has conducted himself appropriately since his involvement or association with
criminal elements ending in 2007, the Minister is entitled to rely upon these
events given the ministerial discretion to refuse to give security clearances
based on the low threshold of whether a person may be prone or induced
to unlawfully interfere with civil aviation. The Court cannot substitute its
opinion for persons who are experienced in these matters. Similar decisions
have been upheld by the Federal Court on numerous occasions in the past.
[emphasis in original]
[35]
I agree with Justice Annis’s assessment. The
Minister is granted a wide discretion under section 4.8 of the Aeronautics
Act. In the exercise of that discretion, past conduct must of necessity be
relied upon in assessing future risk. Future risk in turn is not only to be
assessed based on the risk of the applicant personally interfering with
aviation security but also based on the risk of the applicant assisting others
to do so.
[36]
The decision satisfies the requirements of
justification, transparency and intelligibility and falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir at para 47).
(4)
Was there a breach of the duty of procedural
fairness?
[37]
Ms. Bonnick submits that she was owed an
elevated level of procedural fairness in light of the impact of the decision on
her employment. She argues that the TSC was denied on the basis of a belief
that she had been continually associated with the individuals of interest throughout
the 2004 to 2011 period, a belief she was not provided an opportunity to
respond to. I disagree.
[38]
The content of the duty of fairness in the
security clearance context has been found to be minimal (Pouliot v Canada
(Minister of Transport, Infrastructure and Communities), 2012 FC 347 [Pouliot]
at para 9). While it has been recognized that the revocation or failure to
renew an existing security clearance may attract a slightly higher standard,
that standard remains on the lower end of the spectrum (Pouliot at para
10). Procedural fairness does not include an opportunity to respond to or
refute conclusions drawn as a result of the conduct of an individual disclosed
by the information under consideration, information that in this case included
Ms. Bonnick’s own submissions (Pouliot at para 14).
[39]
Ms. Bonnick was fully informed of the Transport
Canada concerns and provided a fair opportunity to respond. There was no breach
of procedural fairness.
VII.
Conclusion
[40]
In this case, the onus was on Ms. Bonnick to
address the concerns raised, which she had the opportunity to do following the
February 2015 letter, but failed to do in her responses sent in March 2015 (Charlebois
v Canada (Attorney General), 2015 FC 1098 at para 10). I am unable to
conclude that the decision was unreasonable or that there was any breach of
procedural fairness. The application is dismissed.
[41]
Ms. Bonnick argues that costs are not
appropriate in this case. She submits that the application was brought in good
faith, notes her current circumstances and that she has relied on pro bono
representation to place her arguments before the Court. The respondent is
seeking costs.
[42]
In light of Ms. Bonnick’s circumstances and
recognizing the discretionary nature of a cost award, I will not award costs.
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