Docket: T-579-15
Citation:
2016 FC 52
Vancouver, British Columbia, January 18, 2016
PRESENT: The
Honourable Mr. Justice Shore
|
IN
THE MATTER OF THE MARINE TRANSPORTATION SECURITY ACT
|
|
BETWEEN:
|
|
SANDEEP SINGH
KAILLEY
|
|
Applicant
|
|
and
|
|
CANADA (MINISTER
OF TRANSPORT)
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Background
[1]
The Applicant, Sandeep Singh Kailley (age 27) is
a Canadian citizen. The Applicant is a longshore worker who sought to obtain a
Marine Transportation Security Clearance for his employment at the Port of
Vancouver Fraser [Port]. His security clearance application was rejected, in a
decision dated March 6, 2015, by Transport Canada. The Applicant is
seeking judicial review of this decision.
[2]
The Applicant is a hard working individual and
is well-liked by his co-workers and management at the Port. As well as being a
longshore worker, the Applicant started an apprenticeship to become an
electrician in 2011; and, in 2014, the Applicant obtained his certification. In
an attempt to heighten his income earning potential and job opportunities, the
Applicant applied for a Marine Transportation Security Clearance [MTSC] in
February 2013 through the Marine Transportation Security Clearance Program at
Transport Canada [MTSC Application].
[3]
In response to the Applicant’s MTSC Application,
Transport Canada sought and received a Limited Law Enforcement Record Check
report from the Royal Canadian Mounted Police [RCMP] on February 25, 2013;
and, on June 23, 2014, Transport Canada received a full Law Enforcement Record
Check report from the RCMP [LERC Report].
[4]
The LERC Report stated that the Applicant had no
known criminal record; and, he was not, at the moment of the report being
conducted, facing any criminal charges. Nonetheless, the LERC Report contained
allegations that the Applicant may have been associated with drug traffickers
in the past. Furthermore, the LERC Report indicated that the Applicant had been
identified by his neighbour, a victim of a stabbing, as being the perpetrator
of the assault. Subsequently, the Applicant was charged with one count of
aggravated assault and one count of possession of a weapon for a dangerous
purpose.
[5]
The LERC Report also contained allegations that
in November 2013, the Applicant threatened the victim of a stabbing if the victim
testified in Court. The Crown prosecutor was made aware of the threat, by the
victim, and notified the RCMP. Ultimately, the assault and weapon charges were
stayed; and, the charges for uttering threats did not proceed.
[6]
In light of these allegations, Transport Canada
sent a letter on July 8, 2014, to the Applicant notifying him of the
aforesaid allegations contained in the LERC Report; and, encouraged the
Applicant to provide information and explanations with regard to the
allegations [TC’s Letter of Concerns].
[7]
The Applicant made a disclosure request, on
July 22, 2014, to Transport Canada for particulars of the allegations that
Transport Canada made, as well as, all the documents and information in
possession of Transport Canada which give rise to Transport Canada’s concerns
as to the Applicant’s suitability to retain a security clearance. Transport
Canada responded to the request in September 2013 in a disclosure that included
the LERC Report.
[8]
The Applicant, by way of his counsel, responded
to Transport Canada’s letter by way of a letter dated October 20, 2014
[Applicant’s Response Letter]. In the letter, the Applicant’s counsel provided
explanations to the allegations and concluded that a consideration of the
Applicant’s circumstances pursuant to section 509 of the Marine
Transportation Security Regulations, SOR/2004-144 [MTSR] should lead
Transport Canada to conclude that the Applicant does not pose any threat to the
security of marine transportation; and, he should be permitted to receive his
MTSC. This letter was not accompanied by a sworn affidavit undersigned by the
Applicant to attest to the truthfulness of the contents of the letter.
[9]
On November 5, 2014, Transport Canada
obtained a “Canadian Police Information Centre”
Report confirming the information contained in the LERC Report, namely, that
the Applicant, as of November 2013, did not have any convictions; and, that he
had been charged for aggravated assault, possession of a weapon for a dangerous
purpose, and, uttering threats, but there was a stay of proceeding on those
charges.
II.
Impugned Decision
[10]
On December 9, 2014, the Security Clearance
Advisory Body, at Transport Canada, recommended that the Applicant’s MTSC
Application be rejected. On March 4, 2015, a representative of the
Minister of Transport, after reviewing TC’s Letter of Concerns, the Applicant’s
submissions, the Advisory Body recommendations and the MTSR, refused to grant
the Applicant a MTSC:
The information related to the applicant’s
suspected association to drug traffickers, as well as his recent charges
related to serious violence and uttering threats, raised concerns regarding his
judgment, trustworthiness and reliability. […] A review of the information on
the file led me to have reasonable grounds to suspect that the applicant is in
a position in which there is a risk that she [sic] 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. I also have reasonable
grounds to suspect that the applicant has been involved in, or contributes or
has contributed to, an act of serious violence against persons or property. I
considered the statement provided by the applicant; however, the information
presented was not sufficient to address my concerns.
(Applicant’s Record, p 65)
[11]
The Applicant is seeking judicial review of the
decision by the Minister of Transport.
III.
Issues
[12]
The Court considers the following issues to be
central to this application for judicial review:
1.
Is the Minister’s decision to reject the Applicant’s
Marine Transportation Security clearance application reasonable?
2.
Did the Minister fail to meet the requirements
of procedural fairness?
IV.
Legislation
|
Minister’s Decision
|
Décision du ministre
|
|
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:
|
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 :
|
|
…
|
[…]
|
|
(b) whether it is known or there are reasonable grounds to
suspect that the applicant
|
b) s’il
est connu ou qu’il y a des motifs raisonnables de soupçonner que le demandeur
:
|
|
(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,
|
(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,
|
|
(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,
|
(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,
|
|
(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,
|
(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,
|
|
(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
|
(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,
|
|
(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;
|
(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;
|
|
(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;
|
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;
|
|
[Emphasis added.]
|
[Je souligne.]
|
V.
Parties Submissions
[13]
The Applicant submits that the Minister’s
decision is unreasonable as the Minister’s concerns are not sufficient to lead
to a reasonable suspicion that the Applicant poses a risk to the security of
marine transportation. The Minister should have given greater weight to the
unchallenged evidence submitted by the Applicant as opposed to the police
report, which contains unverifiable and unreliable evidence in the form of
hearsay.
[14]
Furthermore, the Applicant submits that the
Minister failed to meet the requirements of procedural fairness as the Minister
failed to consider the Applicant’s submissions; and, by failing to disclose a
copy of the additional police database check to the Applicant, after he
submitted his Response Letter. The Applicant was not afforded the opportunity
to make submission regarding the additional police check. Moreover, the
Minister wrongfully applied the broader “Aviation
Program” requirements in assessing the Applicant’s MTSC Application as opposed
to the narrower “Marine Program” requirements,
which is regulated by section 509 of the MTSR.
[15]
Conversely, the Respondent submits that the
Minister’s decision to reject the sought security clearance is reasonable in
light of the material before the Minister. Contrary to the Applicant, the
Respondent submits that the Minister should be given a broad discretion to
reject a security clearance as the Minister does not have to be satisfied, on
the balance of probabilities, that an individual will commit a harmful act;
but, rather, that an individual may commit a harmful act. Given the particulars
of this case, it was reasonable for the Minister to find that the Applicant
may, on the balance of probabilities, pose a threat to marine security.
[16]
The Respondent submits that the Applicant was
afforded procedural fairness as he knew precisely what allegations formed the
basis for the Minister’s decision; and, was given an opportunity to respond.
VI.
Standard of Review
[17]
The standard of review of reasonableness is
applicable wherein mixed fact and law determinations as well as fact
determinations are reached by the Minister as to whether a security clearance
shall be granted (Canada (Minister of Transport, Infrastructure and
Communities) v Jagjit Singh Farwaha, 2014 FCA 56 at paras 80-87 [Farwaha]).
[18]
The standard of review of correctness is
applicable to an alleged breach of procedural fairness (Canada (Citizenship
and Immigration) v Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12 at para 43).
VII.
Analysis
A.
Preliminary remarks
[19]
The Applicant submits that the Minister may only
refuse to grant a MTSC if the Minister determines that there are reasonable
grounds to suspect that a person poses a risk according to the criteria set out
in section 509 of the MTSR. Thus, the Minister must have reasonable cause to
suspect, based on a constellation of objectively discernible facts, that the
Applicant is involved in violence, or is associated with the persons described,
or meets another of the criteria enumerated at section 509 of the MTSR; and,
that the association or involvement is relevant to the security of marine
transportation.
[20]
As explained below, the Applicant is suggesting
a test that is in patent contradiction with the purpose of the security
clearance program, the MTSR, and, decisions from the Federal Court of Appeal,
and this Court, regarding marine transportation security. Contrary to the
submission of the Applicant, the onus is on the Applicant, and not the
Minister, to demonstrate that he may not pose a risk to the security of marine
transportation.
[21]
In Reference re Marine Transportation
Security Regulations, 2009 FCA 234 [Reference re Marine], Justice
John M. Evans summarized the purpose of the Canadian security clearance program
with regard to marine transportation:
[66] […] Canada’s long coast line and
many ports, its substantial economic dependence on international trade in goods
transported by sea in and out of Canada and, to a lesser degree, on cruise line
business, its ability to fund security measures, and its proximity to the
United States, are all factors that provide a rational explanation of why
Canada has instituted the present security clearance system.
[67] These considerations also indicate
the substantial and pressing nature of the public interest that the Regulations
are designed to advance: protection from threats to public safety and the
economy from the activities of terrorist groups and organized crime.
[Emphasis added.]
[22]
In assessing the Minister’s decision to reject
the Applicant’s MTSC Application, the Court must take into consideration the
pressing nature of the public interest to the Canadian economy and the security
of Canadians.
B.
Was the Minister’s decision to reject the MTSC
Application reasonable?
[23]
The Minister has a broad power and discretion to
grant or cancel security certificates (Rossi v Canada (Attorney General),
2015 FC 961 at para 31 [Rossi]). Both the French and the English
versions of section 509 of the MTSC do not impose on the Minister an obligation
to grant a security clearance; but rather, they both state that the Minister may
grant a security clearance.
|
Minister’s Decision
|
Décision du ministre
|
|
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:
|
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 :
|
|
[Emphasis added.]
|
[Je souligne.]
|
[24]
The Minister may only grant a MTSC if the
Minister is of the opinion that: i) the information provided by the applicant
and that resulting from the checks and verifications is verifiable and
reliable; and, ii) there is sufficient verifiable and reliable information
allowing the Minister to determine, based on the factors as set out at section
509 of the MTSR that the Applicant may not pose a risk to the security of
marine transportation.
[25]
If the Minister is of the opinion that there is
not sufficient quality information, provided by the Applicant or resulting from
the checks and verification, the Minister is under no obligation to proceed to
the second portion of the test (Farwaha, above at paras 67-68).
[26]
Consequently, in order to decide whether it was
reasonable for the Minister to refuse to grant the Applicant a marine security
clearance, the Court must first decide whether there was sufficient quality
information. If so, then the Court must examine the Minister’s decision pursuant
to the factors at section 509 of the MTSR.
(1)
Was there sufficient quality information?
[27]
The Advisory Board, and subsequently the
Minister, relied primarily on the LERC Report and the Applicant’s criminal
record to determine that there are reasonable grounds to suspect that the
Applicant is in a position where there is a risk that he 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; and, that there are
reasonable grounds to suspect that the Applicant has been involved in, or
contributes or has contributed to, an act of violence against persons or
property.
[28]
The Applicant submits that the Court should give
minimal weight to the LERC Report as the LERC Report only states allegations
that are hearsay in nature. As a result, the Applicant suggested that the Court
must give more weight to the justifications provided by the Applicant in his
Response Letter, than to the LERC Report, because of its inherent problems of
hearsay and the summary nature of the LERC Report.
[29]
This argument must be rejected. This Court has
held that information obtained from the RCMP is sufficient for the purposes of
the checking process of a security clearance (Fontaine v Canada (Transport),
2007 FC 1160 at para 75 [Fontaine]). Moreover, this Court has held that
the Minister may rely exclusively on a LERC Report or RCMP report to assess
whether an applicant should be granted a security clearance (Brown v Canada
(Attorney General), 2014 FC 1081 at para 65; Henri v Canada (Attorney
General), 2014 FC 1141 at para 40).
[30]
The Minister was provided a LERC Report
containing allegations that the Applicant may have been associated with drug
traffickers and may have committed an act of violence against a person. Furthermore,
the Minister was also provided a Response Letter by the Applicant with regard
to the allegations in the LERC Report. Given the foregoing, the Minister was
provided sufficient, reliable, and verifiable information to determine whether
the Applicant may pose a risk to marine security by an evaluation of the
factors at section 509 of the MTSR.
(2)
May the Applicant pose a risk to the security of
marine transportation?
[31]
As stated previously, the Applicant’s MTSC
Application was rejected for the two following reasons. Based on a review of
the MTSR, the Applicant’s Response Letter and the LERC Report, the Minister
held that:
1)
There are reasonable grounds to suspect that the
Applicant is in a position in which there is a risk that he 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; and,
2)
There are reasonable grounds to suspect that the
Applicant has been involved in, or contributes or has contributed to, an act of
serious violence against persons or property.
[32]
The Minister found that the information
presented in the Applicant’s Response Letter was not sufficient to address her
concerns about the risk that the Applicant may pose to the security of marine
transportation.
[33]
The Applicant submits that the Minister’s
decision was unreasonable as the allegations against him, with regard to an act
of serious violence against a person, are not sufficient grounds to suspect
that he could pose a risk to marine security or that he poses a subornation
risk. Secondly, the Applicant submits that association to drug traffickers is
not a factor that the Minister can consider, under 509 of the MTSR, as drug
traffickers are not “organizations” about which
one can reasonably assume the use of violence. There is no link between an
alleged association with drug traffickers and the MTSR. Thirdly, a review of a
person’s suitability to hold an MTSC is not a general character review but a
review of the specified factors under section 509 of the MTSR, thus, in her
assessment, the Minister should not have taken into consideration the
Applicant’s judgment, reliability and trustworthiness. Fourthly, there was no
proof that the Applicant poses a risk of subornation. Fifthly, the Minister
should have taken all the evidence into consideration, and, failed to give
sufficient weight to the evidence submitted by the Applicant.
[34]
The LERC Report indicated allegations that the
Applicant was associated with drug traffickers, faced criminal charges for a violent
criminal offence (later stayed), and there was an allegation that he uttered
threats to the victim of a stabbing if the victim testified in Court.
[35]
This Court has stated in Fontaine, above
at para 83, that association with individuals who might have a negative
influence on a security clearance applicant can be sufficient grounds to reject
a security clearance application. It is implicit that in his determination as
to whether an individual may be suborned to commit an act, or assist, or abet
any person to commit an act that might constitute a risk to marine
transportation security, the Minister shall assess a person’s character or
propensities.
[36]
Regarding the allegations that the Applicant’s
car was loaned to individuals related to drug trafficking, the Applicant
submits that he was not aware of any connection to the drug trade of any person
to whom he loaned his car; and, that it was unreasonable for the Minister to
find that the Applicant is associated with persons involved in the drug trade.
The Minister had no obligation to demonstrate, on the balance of probabilities,
that the Applicant was associated with drug traffickers; the Minister only has
to demonstrate that he has a reasonable ground to suspect that the Applicant may
pose a risk to the security of marine transportation. Thus, the Minister does
not have to demonstrate standard, verifiable and reliable proof of connecting
an individual to an incident; rather, objectively discernable facts will
suffice (Farwaha, above at paras 96-97).
[37]
The Applicant submits that drug traffickers are
not organizations about which one can reasonably assume the use of violence;
and, there is no link between an alleged association with drug traffickers and
the MTSR. The Applicant provided no evidence to support his claim that drug
traffickers are not organizations about which one can reasonably assume to have
the potential for use of violence. Secondly, this Court has recognized that
there is a connection between association with drug traffickers and a possible
risk of subornment that may impact marine transport security (Russo v Canada
(Transport), 2011 FC 764 at para 84 [Russo]).
[38]
The Applicant also submits that the Minister did
not take into consideration all the evidence, namely, that the Minister did not
give sufficient weight to the Applicant’s Response Letter. The Court finds that
the Minister considered the Applicant’s Response Letter but found that it was
not sufficient to address her concerns. The role of this Court is not to
reweigh evidence and substitute its own opinion to the one of the Minister;
rather, the role of this Court is to determine whether the Minister’s decision
was reasonable (Lorenzen v Canada (Transport), 2014 FC 273 at para 52).
[39]
Finally, the Applicant submits that there is no
weighing of public policy involved; and, that the Minister’s decision is of
great importance to the Applicant and his ability to earn a living. Quite the
opposite is accurate. The security clearance program under the MTSR addresses
important public interest concerns:
[13] The Security Regulations
establish the Marine Transportation Security Clearance Program. The Program
addresses threats to the security of Canada's international marine ports.
Terrorism and organized crime are among the potential security threats: Reference
re Marine Transportation Security Regulations, 2009 FCA 234 at paragraph
64. Needless to say, these threats can cause catastrophic harm, both economic
and human.
(Farwaha, above at para 13)
[67] These considerations also indicate
the substantial and pressing nature of the public interest that the Regulations
are designed to advance: protection from threats to public safety and the
economy from the activities of terrorist groups and organized crime.
(Reference re Marine, above at para
67)
[40]
As to the significance of the decision in regard
to the Applicant, they are minor: the Applicant will not be imprisoned, he will
not lose his job, he will keep working for the same employer (see Rossi,
above at para 32).
[41]
The security of Canadian marine transportation
is a serious matter and a high standard is required in order to assure that a
security clearance is granted to an individual that poses no risk to the
security of marine transportation:
[69] This makes sense. The thrust of
section 509 is that a security clearance should only be granted to an
individual when the Minister is sure, on the basis of reliable and verifiable
information, that the individual poses no risk to marine security.
Colloquially expressed, there must be no doubt on the matter. This high
standard is necessary to prevent the grave consequences that might ensue if the
individual commits injurious or destructive acts in sensitive port areas.
[Emphasis added.]
(Farwaha, above at para 69)
[42]
The Minister, based on the LERC Report, had
doubts that the Applicant poses no risk to marine security; as a result, in
light of the foregoing, it was reasonable for the Minister to refuse to grant
the sought security clearance.
C.
Did the Minister fail to meet the requirements
of procedural fairness?
[43]
The Applicant submits that the Minister breached
procedural fairness by omitting to consider the Applicant’s Response Letter;
and, that the Applicant was not afforded an opportunity to make submissions on
the additional police database check performed after the Applicant’s Response Letter
was submitted.
[44]
The level of procedural fairness required with
respect to the denial of an initial application for security clearance is
minimal, specifically where an Applicant does not lose his job as a result of
the refusal (Russo, above at paras 59, 69).
[45]
The first argument must be rejected. The
Minister stated having taken into consideration the Applicant’s submissions but
found that it was not sufficient to address her concerns. The Applicant may not
be satisfied with the reason given by the Minister, but, adequacy of reasons is
not, in and of itself, a stand-alone basis for quashing a decision (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708, 2011 SCC 62 at para 14 [Newfoundland Nurses]). The Court
considers that the reasons provided by the Minister are sufficient to enable
the Court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes (Newfoundland
Nurses, above at para 16. Also, paragraphs 103, 104, and 105 of the Farwaha
decision above are pertinent in this regard.)
[46]
The second argument must also be rejected. In
assessing a security clearance application, section 508 of the MTSR provides
that the Minister shall conduct certain checks and verification:
|
Checks and Verifications
|
Vérifications
|
|
508 On receipt of a fully completed
application for a transportation security clearance, the Minister shall
conduct the following checks and verifications for the purpose of assessing
whether an applicant poses a risk to the security of marine transportation:
|
508 Sur
réception d’une demande d’habilitation de sécurité en matière de transport
dûment remplie, le ministre effectue les vérifications ci-après pour établir
si le demandeur ne pose pas de risque pour la sûreté du transport maritime :
|
|
(a) a criminal record check;
|
a) une
vérification pour savoir s’il a un casier judiciaire;
|
|
(b) a check of the relevant files of law enforcement
agencies, including intelligence gathered for law enforcement purposes;
|
b) une
vérification des dossiers pertinents des organismes chargés de faire
respecter la Loi, y compris les renseignements recueillis dans le cadre de
l’application de la Loi;
|
|
(c) a Canadian Security Intelligence Service indices check
and, if necessary, a Canadian Security Intelligence Service security
assessment; and
|
c) une
vérification des fichiers du Service canadien du renseignement de sécurité
et, au besoin, une évaluation de sécurité effectuée par le Service;
|
|
(d) a check of the applicant’s immigration and citizenship
status.
|
d) une
vérification de son statut d’immigrant et de citoyen.
|
[47]
The Applicant was fully aware of the case to be
met as he was informed in the TC’s Letter of Concerns of the various
allegations against him. The additional police database check did not provide
any new allegations or facts that the Applicant had not been made aware of in
TC’s Letter of Concerns. In Russo, above at para 56, Justice James
Russell rejected a very similar argument and found that there was no breach of
procedural fairness by the Minister:
[56] In my view, the record shows that
the Applicant was made fully aware that his criminal record raised concerns
regarding whether he was a security risk. He was given every opportunity to explain
why this record should not be considered as a threat to marine security. There
was no failure to disclose documentation because the only documents relied upon
by the decision maker were those related to the Applicant's criminal record, of
which he was fully aware. The Applicant appears to be suggesting that he should
have been pre-warned of concerns that arose as part of the investigative
process so that he could have been in a position to refute conclusions that
were drawn only after the investigation took place and all of the information
was assessed. This is not a procedural fairness issue in my view.
[48]
The Applicant was fully aware of the allegations
against him in the LERC Report; he was provided an opportunity to answer those
concerns, which he seized by submitting a Response Letter. Given that the
additional police database check did not provide any new facts or allegations
against the Applicant, there was no breach of procedural fairness.
VIII.
Conclusion
[49]
Consequently, the application for judicial review
must be dismissed, with costs, set at $2000 as agreed to by both parties.
Email this Content