Docket: T-2257-14
Citation:
2016 FC 34
Ottawa, Ontario, January 8, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SHAMSHINDER
SINGH SIDHU
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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
I.
Introduction
[1]
Shamshinder Singh Sidhu has brought an
application for judicial review pursuant to s 18.1 of the Federal Courts Act,
RSC 1985, c F-7 of a decision of the Director General, Marine Transportation
and Security, made on behalf of the Minister of Transport [Minister], to cancel
his security clearance.
[2]
For the reasons that follow, I have concluded
that the Minister’s decision was both reasonable and procedurally fair. The
application for judicial review is dismissed.
II.
Background
[3]
Mr. Sidhu is a casual longshore worker at the
Port of Metro Vancouver. In 2008, he was granted a marine transportation
security clearance which permitted him to work in restricted areas of the port.
Mr. Sidhu’s security clearance was renewed by Transport Canada in 2013, and was
expected to remain valid until March 4, 2018.
[4]
On April 9, 2014, Transport Canada received a
Law Enforcement Record Check [LERC] report from the Royal Canadian Mounted
Police [RCMP]. The LERC report contained the following information concerning
Mr. Sidhu: (i) he had no known criminal convictions; (ii) in May 2008, he was
seen at a bar shaking hands with a member of the Hells Angels, a well-known
criminal organization; (iii) in July 2008, he was arrested for aggravated
assault after he left the scene of a fight, but he was never charged; (iv) in
April 2011, he was identified as a passenger in a car registered to an
associate of the Hells Angels; (v) in May 2011, he was arrested, but not
charged, with threatening to “shoot up” a bar in
Surrey, and he displayed violent behaviour towards the police while he was in
custody; (vi) in July 2011, he was arrested for mischief after he broke a
window, and he had “violent outbursts” while in
custody leading the police to suspect that he may have consumed drugs; (vii) he
was with Subject A during one of the incidents, and he was with Subject B
during another incident – Subject A had been convicted for possession of a
restricted firearm, and Subject B had been convicted of 19 offences including
robbery, sexual assault, and criminal harassment.
[5]
By letter dated April 15, 2014, Transport Canada
informed Mr. Sidhu of its concerns regarding his suitability for a security
clearance arising from the incidents described in the LERC report. Transport
Canada invited Mr. Sidhu to provide information and submissions in response.
[6]
Mr. Sidhu responded to Transport Canada by
letter dated April 24, 2014. He explained that he was not affiliated with
members of the Hells Angels, and that he shook hands with one of their members
in May 2008, only because they had met on a previous occasion and he did not
want to appear rude. With respect to the incident in July 2008, Mr. Sidhu said
that he was trying to help his cousin who was being beaten by ten men at a gas
station. He said that he was roughly handled by the police, even though he had
not attempted to flee and had not resisted arrest. Mr. Sidhu said that he could
not recall being stopped while a passenger in a car in April 2011. He said that
the incident in May 2011 resulted from a misunderstanding between his friend
and the bar manager, and that he was outside calling his wife when threats were
allegedly uttered. Finally, he said that he had accidently fallen into the
window in July 2011. He admitted to being intoxicated, and said that this was
because he was suffering from emotional trauma. He insisted that he did not
take drugs, and that he had never threatened the police while he was in
custody. He noted that he had apologized and paid for the damage he caused to
the window.
[7]
On July 22, 2014, Transport Canada’s Security
Clearance Advisory Body [Advisory Body] recommended to the Minister that Mr.
Sidhu’s security clearance be cancelled. The Advisory Body based its decision
on the RCMP’s LERC report, which confirmed five encounters with law enforcement
between 2008 and 2011 involving threats of violence, his association with
members of the Hells Angels, and his links to individuals involved in criminal
activity. The Advisory Body found that the information provided by Mr. Sidhu in
his written submissions was not sufficient to dispel its concerns regarding his
judgment, trustworthiness and reliability.
[8]
In a decision dated September 26, 2014, the
Minister accepted the Advisory Body’s recommendation and cancelled Mr. Sidhu’s
security clearance. Mr. Sidhu was informed of the Minister’s decision by letter
dated September 29, 2014.
III.
Issues
[9]
The issues raised in this application for
judicial review are whether the Minister’s decision was reasonable and whether
it was procedurally fair.
IV.
Legislative Provisions
[10]
Section 509 of the Marine Transportation
Security Regulations, SOR/2004-144 [Regulations] lists the grounds upon
which the Minister may cancel a security clearance:
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509 The Minister may grant a
transportation security clearance if, in the opinion of the Minister, the
information provided by the applicant and that resulting from the checks and
verifications is verifiable and reliable and is sufficient for the Minister
to determine, by an evaluation of the following factors, to what extent the
applicant poses a risk to the security of marine transportation:
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509 Le
ministre peut accorder une habilitation de sécurité en matière de transport
si, de l’avis du ministre, les renseignements fournis par le demandeur et
ceux obtenus par les vérifications sont vérifiables et fiables et s’ils sont
suffisants pour lui permettre d’établir, par une évaluation des facteurs
ci-après, dans quelle mesure le demandeur pose un risque pour la sûreté du
transport maritime:
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(a) the relevance of any criminal convictions to the security of
marine transportation, including a consideration of the type, circumstances
and seriousness of the offence, the number and frequency of convictions, the
length of time between offences, the date of the last offence and the
sentence or disposition;
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a) la pertinence de toute condamnation criminelle du demandeur par
rapport à la sûreté du transport maritime, y compris la prise en compte du
type, de la gravité et des circonstances de l’infraction, le nombre et la
fréquence des condamnations, le temps écoulé entre les infractions, la date
de la dernière infraction et la peine ou la décision;
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(b) whether it is known or there are reasonable grounds to suspect
that the applicant
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b) s’il est connu ou qu’il y a des motifs raisonnables de
soupçonner que le demandeur :
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(i) is or has been involved in, or contributes or has contributed
to, activities directed toward or in support of the misuse of the
transportation infrastructure to commit criminal offences or the use of acts
of violence against persons or property, taking into account the relevance of
those activities to the security of marine transportation,
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(i) participe ou contribue, ou a participé ou a contribué, à des
activités visant ou soutenant une utilisation malveillante de
l’infrastructure de transport afin de commettre des crimes ou l’exécution
d’actes de violence contre des personnes ou des biens et la pertinence de ces
activités, compte tenu de la pertinence de ces facteurs par rapport à la
sûreté du transport maritime,
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(ii) is or has been a member of a terrorist group within the
meaning of subsection 83.01(1) of the Criminal Code, or is or has been
involved in, or contributes or has contributed to, the activities of such a
group,
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(ii) est ou a été membre d’un groupe terroriste au sens du
paragraphe 83.01(1) du Code criminel, ou participe ou contribue, ou a
participé ou a contribué, à des activités d’un tel groupe,
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(iii) is or has been a member of a criminal organization as
defined in subsection 467.1(1) of the Criminal Code, or participates
or has participated in, or contributes or has contributed to, the activities
of such a group as referred to in subsection 467.11(1) of the Criminal
Code taking into account the relevance of these factors to the security
of marine transportation,
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(iii) est ou a été membre d’une organisation criminelle au sens du
paragraphe 467.1(1) du Code criminel ou participe ou contribue, ou a
participé ou a contribué, aux activités d’un tel groupe tel qu’il est
mentionné au paragraphe 467.11(1) du Code criminel, compte tenu de la
pertinence de ces facteurs par rapport à la sûreté du transport maritime,
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(iv) is or has been a member of an organization that is known to
be involved in or to contribute to – or in respect of which there are
reasonable grounds to suspect involvement in or contribution to – activities
directed toward or in support of the threat of or the use of, acts of
violence against persons or property, or is or has been involved in, or is
contributing to or has contributed to, the activities of such a group, taking
into account the relevance of those factors to the security of marine
transportation, or
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(iv) est ou a été un membre d’une organisation qui est connue pour
sa participation ou sa contribution – ou à l’égard de laquelle il y a des
motifs raisonnables de soupçonner sa participation ou sa contribution – à des
activités qui visent ou favorisent la menace ou l’exécution d’actes de
violence contre des personnes ou des biens, ou participe ou contribue, ou a
participé ou a contribué, aux activités d’une telle organisation, compte tenu
de la pertinence de ces facteurs par rapport à la sûreté du transport
maritime,
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(v) is or has been associated with an individual who is known to
be involved in or to contribute to – or in respect of whom there are
reasonable grounds to suspect involvement in or contribution to – activities
referred to in subparagraph (i), or is a member of an organization or group
referred to in any of subparagraphs (ii) to (iv), taking into account the
relevance of those factors to the security of marine transportation;
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(v) est ou a été associé à un individu qui est connu pour sa
participation ou sa contribution – ou à l’égard duquel il y a des motifs
raisonnables de soupçonner sa participation ou sa contribution – à des
activités visées au sous-alinéa (i), ou est membre d’un groupe ou d’une
organisation visés à l’un des sous-alinéas (ii) à (iv), compte tenu de la
pertinence de ces facteurs par rapport à la sûreté du transport maritime;
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(c) whether there are reasonable grounds to suspect that the
applicant is in a position in which there is a risk that they be suborned to
commit an act or to assist or abet any person to commit an act that might
constitute a risk to marine transportation security;
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c) s’il y a des motifs raisonnables de soupçonner que le demandeur
est dans une position où il risque d’être suborné afin de commettre un acte
ou d’aider ou d’encourager toute personne à commettre un acte qui pourrait
poser un risque pour la sûreté du transport maritime;
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…
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…
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V.
Analysis
[11]
The Minister’s decision to cancel Mr. Sidhu’s
security clearance is subject to review by this Court against the standard of
reasonableness (Brown v Canada (Attorney General), 2014 FC 1081 at para
41 [Brown]; Canada (Minister of Transport, Infrastructure and
Communities) v Farwaha, 2014 FCA 56 at para 86 [Farwaha]). The
Minister’s decision is highly discretionary. This Court will intervene only if
the decision falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
[12]
An alleged breach of procedural fairness is
subject to review by this Court against the standard of correctness (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Mission
Institution v Khela, 2014 SCC 24 at para 79).
[13]
Mr. Sidhu argues that the Minister’s decision
was procedurally unfair because his written submissions were not properly
considered. He concedes that the Minister followed the correct procedure under
s 515 of the Regulations by giving him an opportunity to respond to concerns
regarding his suitability for a security clearance. However, he complains about
the lack of substantive analysis in the reasons provided, or any explanation
why the LERC report was preferred over his submissions.
[14]
I agree with Mr. Sidhu that the Minister’s
reasons were terse, and would have benefited from a more comprehensive analysis
of Mr. Sidhu’s submissions. However, in my view Mr. Sidhu is essentially
challenging the weight the Minister placed on his submissions, and her
preference for the information contained in the LERC report. This issue
concerns the reasonableness of the Minister’s decision, rather than the
procedure that was followed, and is best addressed in that context.
[15]
The regulatory scheme is intended to screen out
applicants who present unacceptably high security risks to marine
transportation security (Canada (Attorney General) v ILWU, Locals 500, 502,
514 & 517, 2009 FCA 234 at para 11 [Regulations Reference]). The
Regulations focus on security threats emanating from terrorism or organized
crime.
[16]
The Minister may refuse to issue a security
clearance where there are “reasonable grounds to
suspect” that an applicant poses a security risk to marine
transportation (Regulations Reference at para 2). This low standard is
forward-looking and predictive, and is based on assessing possibilities rather
than probabilities. To satisfy the “reasonable grounds to suspect standard,”
the Minister may rely on a wide range of information. Contrary to Mr. Sidhu’s
submissions, the information need not be verifiable and reliable to the
standard required to establish a conviction. There is a broad range of
acceptable and defensible decisions (Farwaha at paras 94-98).
[17]
Mr. Sidhu argues that the Minister’s decision
was unreasonable because it was based on unproven information that comprised a
series of incidents, coupled with speculation that he may have been associated
with unidentified individuals who are members of the Hells Angels. He says the
allegations made against him in the LERC report were neither relevant nor
sufficient to raise reasonable grounds to suspect that he may interfere with
the security of marine transportation.
[18]
Mr. Sidhu points out that he has no criminal
convictions and he was never charged following the incidents described in the
LERC report. He argues that the Minister applied the wrong test to determine
whether he was “associated” with members of the
Hells Angels or individuals involved in criminal activity. In the words of his
counsel, “a handshake does not an association make.”
[19]
Counsel for the Minister acknowledges that each
incident, viewed in isolation, may not have justified the cancellation of Mr.
Sidhu’s security clearance. However, the cumulative effect of five encounters
with law enforcement over three years, credible reports of threatening
behaviour, some criminal behaviour (e.g., participating in a fight,
breaking a window), and repeated encounters with known criminals, was more than
sufficient to raise serious concerns regarding Mr. Sidhu’s judgment,
trustworthiness and reliability. These considerations are relevant in the
context of marine safety, and in particular to an assessment of whether Mr.
Sidhu may be “suborned to commit an act or to assist or
abet any person to commit an act that might constitute a risk to marine
transportation security” (Regulations, s 509(c)).
[20]
It is true that Mr. Sidhu has no known criminal
convictions. However, criminal convictions are not the benchmark to justify the
Minister’s revocation of a security clearance (Brown at para 68).
Criminal association for the purposes of s 509 of the Regulations must be “relevant to threats to the security of marine transportation
from terrorists and criminal organizations” (Regulations Reference
at para 38). Innocent association will not normally warrant the denial of a
security clearance, but in this case there is no dispute that Mr. Sidhu knew
the individual with whom he shook hands was a member of the Hells Angels. Mr.
Sidhu said that he could not recall the incident where he was stopped while a
passenger in a car owned by an associate of the Hells Angels, and he said
nothing at all about his alleged associations with Subject A and Subject B.
These assertions in the LERC report were effectively uncontested.
[21]
I am satisfied that it was reasonable for the
Minister to rely on the incidents described in the RCMP’s LERC report and the
Advisory Body’s recommendation to cancel Mr. Sidhu’s security clearance. A LERC
report is considered to be reliable (Rossi v Canada (Attorney General),
2015 FC 961 at para 26). Moreover, the decisions of persons who are experienced
in matters concerning marine transportation security are entitled to deference
from this Court. Based on the record before this Court, the Minister’s decision
to cancel Mr. Sidhu’s security clearance falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
VI.
Conclusion
[22]
For the foregoing reasons, the application for
judicial review is dismissed.
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