Docket: T-1596-15
Citation:
2016 FC 722
Ottawa, Ontario, June 24, 2016
PRESENT: THE
CHIEF JUSTICE
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BETWEEN:
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JANETTE YUEN
SHAN WU
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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
[1]
There are some situations in which the security
of the travelling public takes precedence over the interests of a person in
retaining his or her employment. This is so even where the person may have taken
considerable steps to distance himself or herself from the source of the risk
to the travelling public.
[2]
The factual matrix underpinning this Application
is a demonstration of one such situation.
[3]
The Applicant, Ms. Wu, lost her security
clearance and then her job after certain facts came to light regarding her
previous marriage to a Full Patch member of the Hells Angels and regarding their
ongoing contact in relation to their two children.
[4]
In this proceeding, Ms. Wu seeks an order
setting aside the decision to cancel that security clearance (the “Decision”),
on the grounds that the Decision was both unreasonable and procedurally unfair.
[5]
For the reasons that follow, I have concluded
that the Decision was neither unreasonable nor procedurally fair. Accordingly,
this Application will be dismissed.
I.
Background
[6]
Ms. Wu commenced employment with Airport
Terminal Services (“ATS”) at the Vancouver International Airport (“VIA”)
in 2008. At that time, she obtained the requisite security clearance and her
Restricted Area Identity Card (“RAIC”), which was effective for a five year
period. In 2013, she applied for and was granted a new RAIC.
[7]
In January 2015, Ms. Wu received a letter from
the Chief, Security Screening Programs at Transport Canada (“TC”), informing
her that her security clearance was being reviewed as a result of certain information
that TC had received from the RCMP, in the form of a Law Enforcement Record
Check (“LERC”) report.
[8]
Among other things, that letter from TC informed
Ms. Wu that TC had learned the following facts:
i.
her former spouse is a Full Patch member of the
Hells Angels (OMG) East End Chapter, Kelowna, BC (“Hells Angels”);
ii.
police records indicate that this individual has
had “gang affiliation” since 2002 and has a
criminal record with no convictions that includes eight charges, with the most
serious being Assault (2 counts), Assault with a Weapon, Assault Causing Bodily
Harm, Uttering Threats (3 counts) and Possession of a Scheduled Substance; and
iii.
this individual continues to be a close
associate of Ms. Wu.
[9]
In addition, the letter from TC suggested that
the Transportation Security Clearance Advisory Body (the “Advisory Body”)
would be convened to formulate a recommendation to the Minister of Transport (the
“Minister”) concerning Ms. Wu’s security clearance. The letter concluded
by encouraging Ms. Wu to provide any information or explanation, including with
respect to any extenuating circumstances, within 20 days.
[10]
After Ms. Wu provided information to TC, and was
subsequently afforded an additional opportunity to provide further information,
the Advisory Body recommended cancelling her security clearance based on the
LERC report. Among other things, the Advisory Body stated that Ms. Wu did
not provide sufficient information to dispel its concerns.
[11]
Prior to that recommendation being made by the
Advisory Body, TC declined Ms. Wu’s request for an in-person meeting, “if necessary”.
II.
Relevant Legislation
[12]
The legislative regime pertaining to
transportation security clearances at airports is established by the Aeronautics
Act, RSC 1985, c A-2 (the “Act”) and the Canadian Aviation Security
Regulations, 2012, SOR/2011-318 (the “Regulations”).
[13]
Section 4.8 of the Act states: “The Minister may, for the purposes of the Act, grant or
refuse to grant a security clearance to any person or suspend or cancel a
security clearance.”
[14]
Pursuant to section 165 of the Regulations, a
person must not enter or remain in a restricted area of an aerodrome (i.e., an
airport) unless the person has been issued an RAIC or is in possession of
another document of entitlement for the restricted area.
[15]
Pursuant to section 146 of the Regulations, the
operator of an aerodrome must not issue a RAIC to a person unless the person,
among other things, has a security clearance.
[16]
In exercising the discretion conferred by
section 4.8 of the Act, the Minister relies on the policy set forth in the
Transportation Security Clearance Program (“TSCP”).
[17]
In section I.1 of the TSCP, its aim is stated to
be “the prevention of unlawful acts of interference
with civil aviation by the granting of clearances to persons who meet the
standards set out in this Program.” The TSCP is further discussed in
these reasons below.
III.
Decision under Review
[18]
In August 2015, after reviewing Ms. Wu’s file,
including the information provided by her and the recommendation of the
Advisory Body, the Director General, Aviation Security at TC, Ms. Brenda
Hensler-Hobbs, informed Ms. Wu that the Minister had cancelled her security
clearance.
[19]
After briefly stating the facts summarized at
paragraph 27 below, Ms. Hensler-Hobbs concluded that she had reason to
believe, on a balance of probabilities, that Ms. Wu may be prone or induced to
commit an act, or to assist or abet an individual to commit an act, that may
unlawfully interfere with civil aviation.
IV.
Issues
[20]
Ms. Wu has raised the following two issues in
this application:
i.
Was the Decision reasonable?
ii.
Was the Decision made in a procedurally unfair
manner?
V.
Standard of Review
[21]
It is common ground between the parties that the
standard of review applicable to the first issue raised on this Application is
reasonableness, and that the issue of whether the Decision was made in a
procedurally unfair manner is reviewable on a standard of correctness.
[22]
I agree.
[23]
Although there appears to be some debate within
the Federal Court of Appeal as to whether questions of procedural fairness must
always be reviewed on a standard of correctness, the controlling authorities
continue to hold that such questions must be reviewed on that standard, with
some deference being given to the decision-maker’s choice of procedure (Henri
v Canada (Attorney General), 2016 FCA 38 (“Henri”) at para
16; Walsh v Canada (Attorney General), 2016 FCA 157 at para 9; Forest
Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245
at para 81).
VI.
Analysis
A.
Was the Decision unreasonable?
[24]
Ms. Wu submits that the Decision was unreasonable
for reasons that can be grouped into the following three categories: (i) the
Minister failed to take various matters into consideration or to give them
adequate weight; (ii) there is no evidence to support certain findings reached
by the Minister; and (iii) there is nothing to suggest that the information she
provided was considered in the course of the Decision.
(1)
Alleged failure to consider various matters
[25]
Ms. Wu maintains that the Minister failed to
take into consideration or give adequate weight to a number of relevant matters
in reaching the Decision, namely: the fact that her ongoing relationship with
her ex-spouse is not voluntary, but is pursuant to a court order concerning the
custody of their children; the fact that she contacted the police on two
occasions when he allegedly threatened her; the steps she took to distance
herself from her him after discovering his involvement with the Hells Angels;
her good performance during her many years of employment with ATS; and her
current marriage to a Deputy Sheriff who lives and works in Washington State.
[26]
In my view, the absence of any discussion of
these matters in the Decision does not render the Decision unreasonable. In
brief, none of them is so fundamentally at odds with the factual findings that
were expressed or with the ultimate conclusion reached as to have required
being specifically addressed in the Decision. That conclusion was that Ms. Wu
may be prone or induced to commit an act, or may assist or abet an individual
to commit an act, that may unlawfully interfere with civil aviation. Even if the
matters identified above were individually or collectively viewed in a light
most favourable to Ms. Wu, the matters in question do not go to the heart of,
or even significantly undermine, the basis for that conclusion. It was
therefore reasonably open to the Minister’s delegate, Ms. Hensler-Hobbs, to
choose not to deal with those matters (Cepeda-Guttierrez v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1425, at paras16-17 (“Cepeda-Guttierrez”);
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para 16 (“Newfoundland
Nurses”)).
[27]
The conclusion reached by the Minister’s
delegate was based on four principal grounds, namely:
i.
Ms. Wu has ongoing interactions with her
ex-spouse, who is a Full Patch member of the Hells Angels, as a result of their
joint-custody agreement involving their two young children;
ii.
her ex-spouse has associated himself with gangs
since “as early as 2002,” four years prior to
the end of their marriage;
iii.
in the latter part of their marriage, she was
aware that her ex-spouse was pursuing membership with the Hells Angels, and it
is reasonable to believe that she was aware of his involvement in the criminal
lifestyle years before their eventual separation – which raises serious
apprehensions related to her judgment; and
iv.
the Hells Angels are known to use intimidation,
violence and manipulation to achieve their criminal goals, Ms. Wu’s ex-spouse
has clearly used these tactics historically with her and others, and he may
therefore use these tactics again in the future against her to achieve the
goals of the Hells Angels, given her access to the restricted area of the VIA.
[28]
Ms. Wu does not take issue with the statements
that the Hells Angels are known to use intimidation, violence and manipulation
to achieve their criminal goals; and that her spouse has clearly used such
tactics with her in the past.
[29]
The fact that Ms. Wu’s ongoing interaction with
her ex-spouse may not be voluntary, and may be limited by the terms of their
custody agreement, does not negate or contradict the fact that he will continue
to have regular and ongoing opportunities to intimidate her and to attempt to
induce her in the manner described in the Decision. The explicit concern
identified in the Decision was that Ms. Wu’s ex-spouse may use the same tactics
that he has used against her in the past, to achieve the goals of the Hells Angels.
It is implicit in the Decision that this risk was considered to arise, at least
in part, due to the opportunities that would be afforded to Ms. Wu’s ex-spouse
as a result of their ongoing communications, regardless of whether they happen
to be voluntary or pursuant to a custody order. A second basis that supported
the Minister’s concern in this regard was the evidence of the intimidating
manner in which Ms. Wu’s spouse has behaved towards her in the past, which is
discussed further below.
[30]
Turning to the reports that Ms. Wu made to the
police when her ex-spouse allegedly threatened her, she asserts that this
evidence demonstrates that she will contact law enforcement authorities if he
were to ever threaten her again, particularly if he were to do so to facilitate
the aims of the Hells Angels.
[31]
However, it is readily apparent from the
certified record that was before the Minister that Ms. Wu has been threatened
or intimidated by her ex-spouse on more than just the two occasions that she
reported to the police. In particular, in an affidavit filed by her in her
custody proceeding before the Supreme Court of British Columbia, she stated
that: she has “felt bullied and abused by” her
ex-spouse and his new spouse; she wanted very limited communication with him “due to his intimidation tactics and verbal abuse;”
she does not want him to know where she works or what she does because she is “concerned that he will harass [her or her] work colleagues
and friends;” she feels “extremely harassed by”
him; and does not want him to have her phone number because she is “concerned about his harassment.” Given this evidence,
it was not unreasonable for the Minister to refrain from referring to the two
instances in which Ms. Wu did in fact contact the police in respect of her
ex-spouse’s behaviour towards her. Notwithstanding those two instances, the
fact remains that her spouse has a significant history of threatening and
intimidating behaviour towards her, he will have ongoing opportunities to
continue to behave in that manner towards her, and she herself is concerned
about this.
[32]
Regarding the steps that she took to distance
herself from her ex-spouse, Ms. Wu maintains that she ended their relationship
when she became aware of his involvement with the Hells Angels.
[33]
The evidence on this point was simply the following
passage from an e-mail that she sent to TC:
It was during the latter part of our
marriage I found out [that my ex-spouse] was pursuing the [Hells Angels]. I
protested this decision with great disgust and conveyed my disapproval. [He]
understood my distaste but chose to become a Full Patch Member. It was shortly
after my daughter was born that I left the relationship for the best interest
of my children and myself.
[34]
During the hearing of this Application, Ms. Wu’s
counsel conceded that this passage does not in fact make it clear that she left
her ex-spouse immediately upon learning of his involvement with the Hells
Angels, or relatively soon thereafter. It is entirely possible that she
remained with him for a period of time. Unfortunately, the evidentiary record
is unclear on this point.
[35]
Ms. Wu had the opportunity to provide clear and
unequivocal evidence to support her position in this regard. She failed to do
so. In this context, and considering that the burden was on her to demonstrate
that she was not in fact a “close associate” of
her ex-spouse, it was not unreasonable for the Minister’s delegate to choose not
to explicitly deal with the steps that she took to distance herself from her
ex-spouse after discovering his involvement with the Hells Angels. This is
particularly so given the ongoing contact that she has with her ex-spouse, his
history of intimidating her, and his continued involvement with the Hells
Angels.
[36]
In any event, those steps did not go to the
basis for the conclusion reached by the Minister’s delegate, to the effect that
it was reasonable to believe that Ms. Wu had known about her ex-husband’s
criminal lifestyle years before their eventual separation, and that this raised
serious apprehensions related to her judgment. Those steps also did not go to
the basis for the ultimate conclusion that the Minister’s delegate had reason
to believe, on a balance of probabilities, that Ms. Wu 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.
[37]
Concerning Ms. Wu’s employment record, the fact
that she may have had a good history of performance with ATS during her many years
of employment is not particularly relevant to the assessment that the Minister
had to make. That assessment was whether Ms. Wu might be prone or induced in
the manner described in the Decision, if intimidated, manipulated or threatened
by her ex-spouse in a new way that involves her workplace, in the future. In
the absence of any evidence that Ms. Wu has successfully resisted attempts in
the past by her ex‑spouse to use her access to the restricted area for
illegitimate reasons, her good past performance record during a period when his
intimidation tactics did not involve her work has little bearing on that
assessment.
[38]
Similarly, the mere fact that Ms. Wu is now
married to a Deputy Sheriff who has devoted 22 years of his life to law
enforcement also had little bearing on that assessment.
[39]
In conclusion, for the reasons set forth above,
it was reasonably open to the Minister’s delegate to refrain from specifically
addressing the various matters discussed above, which Ms. Wu submits ought
to have been addressed in the Decision.
(2)
The alleged absence of evidence supporting
the Decision
[40]
Ms. Wu submits that the Decision was not
supported by the evidence. In particular, she states that there was no evidence
to support the conclusion that she was aware of her ex-spouse’s involvement in
a criminal lifestyle years before their eventual separation. In addition she
asserts that there was no evidence to support the statement that her ex-spouse
had used intimidation, violence and manipulation tactics against others (apart
from her) in the past. She further maintains that there was no evidence to
support the conclusion that her ex-spouse, whose past threatening behaviour had
been confined to their family relationship, would extend that behaviour to her
place of employment.
[41]
I disagree.
[42]
With respect to her awareness of her ex-spouse’s
involvement in a criminal lifestyle, the Minister’s delegate stated the
following in the Decision:
I also note that the applicant’s ex-husband
had been associating himself with gangs as early as 2002, four (4) years prior
to the end of her marriage to him. I further note that in the later part of
that marriage, the applicant states that she was aware that her ex‑husband
was pursuing membership with the Hells Angels. I note that it is reasonable to
believe that the applicant was aware of her ex-husband’s involvement in the
criminal lifestyle years before their eventual separation, which raised serious
apprehensions related to the applicant’s judgment.
[43]
The information provided in the first sentence
in the quote immediately above came from the LERC report, and from Ms. Wu’s
response to the initial letter she received from TC, in which she stated that
she separated from her ex-spouse on June 1, 2006. Specifically, the LERC report
stated that the police had identified Ms. Wu’s ex-spouse as being a Full Patch
member of the Hells Angels and that police records indicated gang affiliation
by him since 2002. This information, together with the other information from
the LERC report that is summarized at paragraph 8 above, was shared with Ms. Wu
in the initial letter that TC sent to her to advise her that her security
clearance was being reviewed. The information contained in the second sentence
of the quote came from Ms. Wu herself.
[44]
In the absence of any further information from
Ms. Wu regarding what she knew and when, one is simply left to draw inferences
based on common sense and common experience. In my view, it was entirely
reasonable for the Minister’s delegate to state that it was reasonable to
believe that the applicant was aware of her ex-husband’s involvement in the
criminal lifestyle years before their eventual separation. This was a very
plausible inference to be drawn from the factual matrix at hand (Thep-Outhainthany
v Canada (Attorney General), 2013 FC 59 (“Thep-Outhainthany”)
at para 26).
[45]
Ms. Wu was specifically invited, in the initial
letter sent by TC, to provide additional information, “outlining
the circumstances surrounding the above noted incidents and association,
as well as to provide any other relevant information or explanation,
including any extenuating circumstances” (emphasis added). She
failed to do so. She also failed to avail herself of a second opportunity to do
so, which was communicated to her orally on April 7, 2015.
[46]
The burden was not on the Minister to further justify
the very plausible inference to be drawn from the information available. It was
on Ms. Wu to provide any additional information that might eliminate the basis
for any concerns regarding her association with her ex-spouse and what she knew
about his involvement in a criminal lifestyle, prior to their separation (Lorenzen
v Canada (Minister of Transport), 2014 FC 273, at paras 51-52). While I
acknowledge that the initial letter she received from TC did not elaborate on
what it meant by “gang affiliation,” the
implication was very clear that TC was concerned about her ex-spouse’s criminal
lifestyle dating back to 2002.
[47]
The fact that it was not clear from that letter
or the LERC report whether the various charges they mentioned were laid prior
to when Ms. Wu separated from her ex-spouse does not negate the fact that she
was informed that police records indicated gang affiliation by him since 2002.
Unfortunately for Ms. Wu, she failed to avail herself of her opportunity to
explain what she knew about that gang affiliation and when she knew it.
[48]
Contrary to Ms. Wu’s submissions, in the absence
of any specific evidence from her, beyond what is reproduced at paragraph 33 above,
I do not see the Decision as impugning in any way her credibility on the issue
of what she knew about her ex-spouse’s involvement in a criminal lifestyle
prior to their separation.
[49]
Turning to the statement in the Decision that
her ex-spouse had used intimidation, violence and manipulation tactics against
others (in addition to her) in the past, Ms. Wu submits that this appears to have
been based entirely on her ex-spouse’s police record, which did not include any
convictions. She notes that her ex-spouse has never been convicted of anything
and therefore nothing has ever been proven in court. She adds that the
usefulness of a criminal charge without even the most basic summary of the
underlying allegations is minimal at best.
[50]
I disagree.
[51]
Section 4.8 of the Act confers broad discretion
upon the Minister to suspend or cancel a security clearance (Li v Canada
(Minister of Transport), 2016 FC 206, at para 14 (“Li”)). That broad
discretion attracts significant deference. In exercising that discretion, the
Minister is guided by the TSCP, the objective of which is to prevent the
uncontrolled entry into a restricted area of a listed airport by any individual
who, among other things, the Minister reasonably believes, on a
balance of probabilities, may be prone or induced to commit an act, or to
assist or abet any person to commit an act, that may unlawfully interfere
with civil aviation. In my view, this is another way of stating that the
Minister must have reasonable grounds for such belief, and the evidence for
those grounds must be demonstrated on a balance of probabilities. In any event,
the Minister is not required to believe that a risk is more probable than not
to occur. The applicable risk threshold is much lower (Kaczor v Canada
(Minister of Transport), 2015 FC 698 at para 32 (“Kaczor”).
[52]
This interpretation is also supported by section
II.29(2) of the TSCP, which provides that where information is made available
that raises doubts as to the appropriateness of the holder of a security
clearance retaining that clearance, the Director, Security Screening Programs
may suspend the holder’s security clearance upon notice to that person and to
the operator of the aerodrome in question. Such doubts can reasonably arise
based on evidence of the character or propensity of the older of a security
certificate, or of a person with who that certificate holder has a close
relationship (Kaczor, above, at para 30).
[53]
Within the foregoing forward-looking statutory
and policy framework, the Minister may suspend or cancel a security clearance for
a range of purposes that include the promotion of aviation security (Kaczor,
above, at para 29). In this context, the security interests of the general
public take precedence over the interests of a security clearance holder in
retaining that clearance and, indeed his or her employment in a restricted area
of an airport. Stated differently, the Minister is entitled to err on the side
of public safety (Brown v Canada (Attorney General), 2014 FC 1081 (“Brown”)
at para 71).
[54]
Moreover, access to the restricted area of an
airport is a privilege, not a right (Thep-Outhainthany, above, at para
17).
[55]
In exercising the broad discretion conferred by
the Act and contemplated by the TSCP, the Minister may take into account any
factor that the Minister considers relevant, including police records that list
charges for criminal offences that did not result in convictions (Kaczor,
above, at para 30; Brown, above, at paras 68-71; Thep-Outhainthany,
above, at paras 19-20. See also Canada (Minister of Transport,
Infrastructure and Communities) v Jagjit Singh Farwaha, 2014 FCA 56 at
paras 97-99). This is so irrespective of whether the person charged is the
person whose security certificate is cancelled or is a third party with whom
the holder of the security certificate is closely associated (Brown,
above, at paras 70-74; Kaczor, above, at para 30). Indeed, the Minister
may also rely solely on evidence of a current or past relationship with gangs,
such as the Hells Angels (Kaczor, above, at para 33; Li, above,
at para 15).
[56]
Considering the foregoing, I am satisfied that the
police record of Ms. Wu’s spouse did in fact provide a reasonable evidentiary
basis for the Minister’s delegate to reasonably believe, on a balance of
probabilities, that he had used intimidation, violence and manipulation tactics
historically with third parties, outside of his relationship with Ms. Wu. This
is so, notwithstanding that the various charges listed in that record appear to
have been stayed, and, in any event, did not result in any convictions. I note
in passing that this fact was explicitly recognized in the Advisory Body’s
Record of Discussion, which forms part of the decision record on this
application (Mitchell v Canada (Attorney General), 2015 FC 1117 at para
28).
[57]
The police record provided such a reasonable basis
because the charges in question included several charges for violence related
offences and for uttering threats. For the purposes of the Act and the TSCP,
this is sound evidence that Ms. Wu’s ex-spouse has used intimidation, violence
and manipulation tactics historically with third parties, outside of his
relationship with Ms. Wu.
[58]
In any event, I find that the Decision, when
read as a whole and in light of all of the evidence that was before the
Minister’s delegate, was reasonable, regardless of whether the police record
provided a reasonable basis for the particular statement that Ms. Wu’s spouse
had used intimidation, violence and manipulation tactics historically with
third parties, outside his relationship with Ms. Wu. This is because the
particular concern identified in the Decision was that Ms. Wu’s ex-spouse may
use such tactics against her to achieve the goals of the Hells Angels,
given her access to the restricted area of the VIA. There was ample evidence in
the record that he had in fact done so.
[59]
With respect to the conclusion that Ms. Wu’s
ex-spouse might extend his past tactics of intimidation and threats to her
workplace, Ms. Wu asserts that it was unreasonable for the Minister’s delegate
to assume that behaviour which occurred in the context of a domestic
relationship would be extended to her employment. She adds that there was no
evidence to suggest the likelihood of this occurring.
[60]
However, there was such evidence, namely,
the information contained in the affidavit that she filed in her custody
proceedings. As discussed at paragraph 31 above, Ms. Wu stated in that
affidavit, which she provided to TC, that she does not want her ex-spouse to
know where she works or what she does, because she was “concerned
that he will harass [her or her] work colleagues and friends.”
[61]
In any event, I am satisfied that it was
reasonable for the Minister’s delegate to infer from the fact that Ms. Wu’s
ex-spouse had engaged in intimidation and manipulation tactics with her in the
past, albeit in the context of their domestic relationship, that there was a
risk that he might use these tactics in the future, to further objectives of
the Hells Angels in the restricted area of the VIA.
[62]
In summary, for the reasons set forth above, I
am satisfied that there was sufficient evidence to support the conclusions set
forth in the Decision, including with respect to the matters discussed above.
(3)
Alleged failure to consider the materials
submitted
[63]
Finally, Ms. Wu submits that there was no
evidence to suggest that the materials she provided were considered by the
Minister’s delegate in reaching the Decision.
[64]
In support of this position, Ms. Wu repeats
arguments that have been addressed elsewhere in these reasons and need not be
revisited.
[65]
In further support of her position on this
point, Ms. Wu relies on Ho v Canada (Attorney General), 2013 FC 865.
However that case is distinguishable on the basis that the applicant had
provided information that went to the heart of the concerns expressed by the
Minister’s delegate, but was not addressed in the decision to cancel the
applicant’s transportation security clearance. There was no such information
provided by Ms. Wu in this case.
(4)
Conclusion regarding the reasonableness of
the Decision
[66]
For all of the reasons set forth in sections
VI.A.(1) – (3) above, I am satisfied that the Decision was not unreasonable.
Indeed, it feel well within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” and
was appropriately justified, transparent and intelligible (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, at para 47).
[67]
Contrary to Ms. Wu’s assertion, the Decision
does indeed explain why it was made, and permits this Court to determine
whether it fell within the range of acceptable outcomes (Newfoundland Nurses,
above, at para 16).
B.
Was the Decision procedurally unfair?
[68]
Ms. Wu submits that she was denied procedural
fairness because the Decision was made without due regard to the material.
[69]
However, making a decision without due regard
for the material on the record is a distinct ground of review from procedural
fairness, and that ground of review is reviewable on a standard of
reasonableness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12, at paras 45-46).
[70]
Unless there are no reasons at all, the adequacy
of reasons provided in a decision is a matter that is reviewable on a standard of
reasonableness (Newfoundland Nurses, above, at paras 20-22). For the
reasons that I have given, the Decision was reasonable.
The procedural fairness to which Ms. Wu was
entitled consisted of the right to be informed of the reason why her security
clearance was being reviewed and the right to have an opportunity to make
submissions prior to any adverse decision being made (Doan v The Attorney
General of Canada, 2016 FC 138, at para 17; Kaczor, above, at paras
8-9). She was accorded, and she availed herself of, those rights. She was not
entitled to the additional right to make representations in person.
VII.
Conclusion
[71]
For the reasons set forth above, Ms. Wu’s
application is dismissed.
[72]
There will be no order as to costs.
[73]
The Respondent’s request that the style of cause
be amended to reflect that the proper respondent is the Attorney General of
Canada, and not the “Minister of Transport,” is
granted.
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