Docket: T-1273-15
Citation:
2016 FC 138
Vancouver, British Columbia, February 4, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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DIEP HO THI
DOAN
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Diep Ho Thi Doan, seeks judicial
review under s 18.1 of the Federal Courts Act, R.S.C., 1985 c. F-7, of
the decision of a delegate of the Minister of Transport (Transport Canada)
dated June 29, 2015, refusing the Applicant a Transportation Security Clearance
(TSC) at the Vancouver International Airport pursuant to s 4.8 of the Aeronautics
Act, R.S.C., 1985, c. A-2. For the reasons that follow, the application is
dismissed.
II.
Background
[2]
Ms. Doan has been employed as a passenger
service agent at the Vancouver International Airport since February 2014. When
she began the job, she was issued a temporary security pass so that she could
perform her duties within the restricted areas of the airport. She applied to
Transport Canada for a TSC.
[3]
On August 20, 2014, Transport Canada received a
Law Enforcement Record Check Report (LERC Report) from the Royal Canadian
Mounted Police (RCMP) containing adverse information about the Applicant. While
the report noted that the Applicant had no known Canadian criminal convictions,
she had come into contact with members of the Vancouver Police Department on
several occasions.
[4]
The first contact occurred in July 2002 when the
Applicant was arrested with the other occupants of a residence in which a
marijuana grow operation was being conducted. Although she was released without
charges, two of the other occupants were charged and convicted of possession of
a controlled substance for the purpose of trafficking and production of a
controlled substance.
[5]
In July 2003, Vancouver police entered a
restaurant which the Applicant was managing during the owner’s absence. Upon
entry, 12 persons were observed to be engaged in illegal gambling. The premises
had been the location of several shootings and arrests in previous years. The
Applicant received a warning but was not charged on this occasion.
[6]
The Applicant was stopped for speeding in
October 2004. At the time, she was in the company of a known drug trafficker
and associate of an organized crime group. Her license was suspended under the
provincial highway traffic legislation.
[7]
On September 11, 2014, the Applicant received a
letter from Transport Canada advising of the receipt of adverse information
regarding her suitability for security clearance. It informed Ms. Doan that her
application would be reviewed because of this information. The letter outlined
the information in the same detail Transport Canada received from the RCMP but
without references to the statutory provisions. The letter encouraged the
Applicant “to provide additional information, outlining
the circumstances surrounding the above-noted incidents and associations as
well as to provide any other relevant information or explanation, including any
extenuating circumstances”. The letter provided her with information
about the Transportation Security Clearance Program (TSCP) and gave her contact
information, which included a direct telephone number to a Transport Canada
representative.
[8]
Five months later, on February 16, 2015, the
Applicant emailed Transport Canada. She wrote that the incidents occurred more
than 12 years ago, and stated that “I really can’t
remember much”. Ms. Doan noted that she had confirmed that she had no
criminal record in 2010 and that she had inquired but was unable to obtain the
record of her suspension in 2004. The Applicant asked for another chance to
prove herself.
[9]
Transport Canada replied on the same date
confirming receipt of the Applicant’s submission. She was again encouraged to “provide any and all relevant information” and to
carefully review the letter and the TSCP policies found on the Transport Canada
website. They also informed the Applicant that she could provide written
character references.
[10]
On March 3, 2015, the Transportation Security
Clearance Advisory Body reviewed the Applicant’s file and recommended that the
security clearance application be refused based on the information contained in
the LERC Report. The Advisory Body noted that the Applicant’s submissions did
not provide sufficient information to dispel their belief, on a balance of
probabilities, that she may be prone or induced to commit an act or assist or
abet any person to commit an act that may unlawfully interfere with civil
aviation.
[11]
On June 25, 2015, the Director General of
Aviation Security (the Minister’s Delegate) on behalf of the Minister of
Transport, concurred with the Advisory Body’s recommendation and refused Ms.
Doan’s application for a TSC. A letter informing the Applicant of this decision
was sent to her on June 29, 2015. The following day she was informed that her
employment would be terminated as she could not access the secure areas of the
airport. Since that time, Ms. Doan has been on unpaid leave pending the outcome
of this matter.
[12]
Ms. Doan is a single mother with a 7-year-old
son and a second child born in November 2015.
III.
Decision under Review
[13]
The Record of Decision and the notice provided
to Ms. Doan stipulate that the Decision made by the Minister’s delegate was
based on a review of the Applicant’s file, the information outlined in
Transport Canada’s letter to Ms. Doan dated September 11, 2014, the
Applicant’s written submissions, the recommendation of the Transportation
Security Clearance Advisory Body, and the TSCP Policy.
[14]
The Minister’s delegate provided the following
explanation for the decision:
The information regarding your involvement
in, or very close association to an individual involved in a grow-op at your
residence, your involvement with illegal gambling and your association to Asian
Based Criminals or the Independent Soldiers raised concerns regarding your
judgement, trustworthiness and reliability. I note that in July 2002, a three
(3) room grow-op was found in the basement of your residence, where a
significant amount of marijuana, 12.74 kgs, was seized. The drugs seized
amounted to a street value of $520,000. I also noted that in July 2003,
inspectors from the Vancouver Police Department found you managing a restaurant
where 12 people were involved with illegal gambling, and where several
shootings and arrests had taken place over the years. I further noted in
October 2001 [sic], you were found in a car with a passenger who is a
known drug trafficker and who is an associate to the Independent Soldiers.
After reviewing all of the information on file, I have reason to believe, on a
balance of probabilities, that you 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 considered the statement provided by you; however, the
information presented was not sufficient to address my concerns. For these
reasons, on behalf of the Minister of Transport, I have refused your security
clearance.
IV.
Issues
[15]
The sole issue in this application is whether
Transport Canada breached the Applicant’s right to procedural fairness. The
parties agree, and I accept that the standard of review for this issue in the
context of transportation security clearances is correctness: Weekes v Canada (Attorney General), 2015 FC 853 at para 9 [Weekes]; Meyler
v Canada (Attorney General), 2015 FC 357 at para 26 [Meyler]; Peles
v Canada (Attorney General), 2013 FC 294, at para 9.
V.
Arguments and Analysis
[16]
The Applicant argues that because she was
already employed and using a temporary pass she was entitled to a higher degree
of fairness than a mere job applicant. In support of this proposition she
relies on Salmon v Canada (Attorney General), 2014 FC 1098, in which
Madam Justice Kane stated the following at paragraph 45:
The parties agree that the scope or extent
of the duty of procedural fairness varies and depends on the context and that
the duty owed in the context of revoking an existing security clearance is
higher than in the context of refusing an application for security clearance.
Although it may be higher than the bare minimum, I agree with the respondent
that the duty owed in the circumstances is still not high.
[17]
The parties have agreed that the duty of
procedural fairness in this context is more than minimal but does not require a
high level of procedural safeguards. They are limited to the right to know the
facts alleged against the applicant and the right to make representations about
those facts: Salmon, above, at para 46.
[18]
It is not clear to me, however, that the duty is
any higher when the individual concerned has merely been given a temporary
security pass while an application to Transport Canada for clearance is
pending. The jurisprudence which recognizes a slightly higher duty of fairness
in the context of revocation of an existing clearance appears to deal with
individuals who have held that status for some time.
[19]
The Applicant argues that she was denied a
meaningful opportunity to address directly the allegations against her set out
in the letter dated September 11, 2014. Her argument is that because she made
it clear that she could not recall the details of the incidents outlined in the
letter, Transport Canada was obligated to provide Ms. Doan with further
information about the dates, times, locations, and nature of criminal activity.
Without this additional information, the Applicant asserts that she was unaware
of the case she had to meet.
[20]
To support this position the Applicant draws an
analogy to the facts in Meyler (above). In that case, Ms. Meyler
was denied a TSC because she was implicated in an ongoing RCMP investigation.
For this reason, and because Ms. Meyler had been identified by a police
informant, very little information was disclosed by Transport Canada or the
RCMP. On those facts, Justice Rennie found that Ms. Meyler was unable to
respond to the case against her as she knew neither the time, date, nor the
precise activity that gave rise to the revocation.
[21]
In my view, this case is distinguishable from Meyler.
The letter to Ms. Doan from Transport Canada describes the events in
question with sufficient detail to alert any reasonable person to the specific
incidents and associations of concern. Both “subjects”
with whom Ms. Doan had associated were tied to specific incidents and law
enforcement concerns. Moreover, in Meyler, the applicant was unaware
that she was the target of a police investigation. In this case, Ms. Doan was
arrested, warned or sanctioned by the police after each event listed in the
letter.
[22]
The Applicant had every opportunity to deny or
explain why the allegations contained in the letter should not be considered a
threat to aviation security. This was not the case in Meyler. In that
matter, as Justice Rennie carefully explained in paragraphs 30 and 31, there
were material omissions in the information communicated to the applicant that
had been provided to Transport Canada in the LERC report.
[23]
In this case, Ms. Doan’s response to the letter
was that she “can’t remember much” about the
events in question. She did not deny that they occurred or that the
associations ever existed, and she failed to request additional details from
Transport Canada. She was given a second opportunity to respond to the concerns
and was informed that she could submit character references. She did neither.
[24]
The Applicant also relies on the decision of Mr.
Justice Annis in Weekes (above). Weekes is a case similar to Meyler
in that the applicant had held a clearance for a considerable length of time
before its revocation and the allegations against him were not particularized.
While the applicant did nothing in that case in response to the fairness letter
he received, Justice Annis considered that it was unlikely that the response to
any request would be positive. As I have noted, the information provided by
Transport Canada in this instance was adequate, and I have no reason to draw an
inference that any request by Ms. Doan for additional information would have
been fruitless, as was the case in Meyler.
[25]
In the result, I am satisfied that there was no
breach of procedural fairness.
[26]
While this is sufficient to dispose of this
application, I note that the Applicant makes several submissions that appear to
challenge the reasonableness of Transport Canada’s decision. The Applicant
asserts that there is no indication that Transport Canada considered her
comments or the profound impact refusing to grant a TSC would have on both her
employment and her eligibility for maternity benefits. She claims that the
Delegate’s comment that the Applicant’s response was insufficient to address
his concerns is “insufficient and opaque”,
citing the findings of Justice Harrington in Ho v Canada (Attorney General),
2013 FC 865, at para 28.
[27]
I agree with the Respondent that the
circumstances in Ho are significantly different from the facts in this
case. In Ho, Justice Harrington found that the applicant provided Transport
Canada with a reasonable explanation in response to their concerns about his
possible involvement in money laundering. The Court held that to note merely
that the applicant’s explanation was insufficient was unreasonable under the
circumstances, and referred the matter back for reconsideration. The Applicant
provided no comparable explanation in this case.
[28]
Further, the Applicant has provided no legal
justification to support her assertion that Transport Canada should have
considered the impact of their decision on her employment or her eligibility
for maternity benefits. Neither of those considerations, while undoubtedly
important to the Applicant, bears on the question of aviation security.
[29]
The length of time between the events of concern
to Transport Canada and the application for security clearance may be a factor
to take into consideration in determining whether there is any risk to aviation
security. Nevertheless, the passage of time is not in itself sufficient to
obviate the concerns if the Applicant provides no explanation to discount their
seriousness or demonstrate that the Applicant has turned a page in her life and
is no longer associated with persons engaged in criminal activity.
VI.
Conclusion
[30]
This application for judicial review is
dismissed. Transport Canada met the standard of procedural fairness. Transport
Canada sufficiently informed the Applicant of the allegations that were the
cause of their concern. She was advised to review the TSCP policy which
outlines the range of factors, considerations, and criteria that Transport
Canada may consider in making their decision as to the Applicant’s suitability
to obtain a security clearance. She had two opportunities to make whatever
submissions and advance whatever evidence she could to establish that she was
not prone or likely to be induced to commit or assist in an act that may
unlawfully interfere with civil aviation. The fact that her memory of events
has faded is understandable, but it is not an adequate ground for finding a
breach of procedural fairness.
[31]
The Respondent is seeking costs in this matter.
In the Applicant’s present circumstances, I will exercise my discretion not to
award them against her.
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