Docket: T-2006-15
Citation:
2016 FC 891
Vancouver,
British Columbia, August 2, 2016
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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ROBINDER SINGH SIDHU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT
AND REASONS
[1]
This is an application made by Mr. Robinder
Singh Sidhu for the judicial review of a decision of Ms. Brenda Hensler-Hobbs,
Director General, Aviation Security for Transport Canada [Minister’s delegate]
acting on behalf of the Minister of Transport [Minister], dated November 3,
2015, cancelling the applicant’s application for a security clearance at the
Vancouver International Airport [Airport].
[2]
The applicant began working at the Airport with
Canadian Airlines in 1989. He continued with the company after it was taken
over by Air Canada, until 2014. During these years of employment, the applicant
possessed a security clearance and corresponding Restricted Area Identity Card
[RAIC].
[3]
The applicant was arrested on June 16, 2014, as
part of a larger investigation into an alleged smuggling operation at the
Airport. He was interviewed by the police and released without charge. However,
on or about June 20, 2014, Transport Canada, Transportation Security Screening
Program [Transport Canada] received a Law Enforcement Records Check report,
dated June 19, 2014 [the June LERC Report], from the Royal Canadian Mounted
Police Security Intelligence Background Section [RCMP SIBS].
[4]
The June LERC Report stated that:
•
The
applicant was arrested and interviewed by the RCMP on June 16, 2014 for his
involvement in a smuggling event;
•
The
RCMP had collected evidence that on September 3, 2013, the applicant used his
RAIC access at the Airport to participate in the illegal importation of a drug
shipment;
•
During
his warned statement, the applicant admitted his guilt with respect to the
September 3, 2013 smuggling event and indicated that he believed the boxes
contained steroids;
•
A
smuggling charge against the applicant was being recommended to the Crown by
the RCMP.
[5]
On June 24, 2014, the applicant received a
letter from Transport Canada advising him that his security clearance had been
suspended pending review due to his arrest and admissions made during his
warned statement. At that time, the applicant was employed as a lead station
attendant dealing with cargo.
[6]
On July 22, 2014, the Transportation Security
Clearance Advisory Board [Advisory Board] recommended upholding the suspension
of the applicant’s clearance until the outstanding criminal charges had been
dealt with by the Courts. On July 31, 2014, the applicant received a letter
confirming this recommendation. On January 6, 2015, the applicant’s counsel
advised Transport Canada that charges were not being laid against the applicant
and requested that the applicant’s security clearance suspension be reviewed in
a timely manner.
[7]
On or about January 22, 2015, Transport Canada
received a second LERC report [January 22 LERC Report] from the RCMP SIBS which
stated:
•
In
May 2014, and 18 month joint investigation by the RCMP, Canadian Border Services
Agency [CBSA], and the Vancouver Police Department came to an end with the
seizure of 37 kilograms of heroin, with an estimated street value of $9
million;
•
The
drugs were found hidden within shipped goods arriving from South Asia into
Canada through the Airport;
•
Three
individuals were arrested and charged with possession for the purpose of
trafficking, including an Air Canada employee, not the applicant, who had
circumvented security measures, making this an organized crime internal
conspiracy;
•
On
June 16, 2014, the applicant, an Air Canada Cargo employee, was arrested and
interviewed by the RCMP for his involvement in the smuggling operation;
•
The
RCMP collected evidence that on September 3, 2013, the applicant used his RAIC
to participate in the importation of heroin;
•
During
his warned statement, the applicant admitted his guilt with respect to the
smuggling event, stating that he believed the boxes he had moved contained
steroids.
[8]
On August 25, 2015, the Advisory Board
recommended that the Minister cancel the applicant’s security clearance. A
review of the applicant’s file “led the Advisory Board
to believe, on a balance of probabilities, that the applicant 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”. The Minister’s delegate
concurred with this recommendation and made on behalf of the Minister the
impugned decision on November 3, 2015, and which was communicated to the
applicant by a letter dated November 10, 2015.
[9]
The present case does not raise any particular
issue of law and turns on a pure question of fact, or of mixed fact and law.
The case law is clear on the broad discretion conferred on the Minister to
refuse, suspend, or cancel a security clearance, and which is contemplated by
section 4.8 of the Aeronautics Act, RSC 1985, c A-2 and the various
relevant provisions of the Canadian Aviation Security Regulations, 2012,
SOR/2011-318 [Regulations] (see Wu v Canada (Attorney General), 2016 FC
722).
[10]
The present application must fail. I find that
the Decision to cancel the applicant's clearance falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. I basically endorse the arguments made by the respondent in her memorandum
of fact and law and which were reasserted at the hearing by her counsel.
[11]
At the opening of the hearing, applicant’s
counsel indicated to the Court that the issue of procedural fairness raised in
the applicant’s memorandum of fact and law should now be included in the
grounds of attack respecting the reasonableness of the impugned decision. Be
that as it may, it is clear to the Court, after a careful examination of the
totality of the record, that the applicant was afforded procedural fairness. He
knew the case he had to meet and was given an opportunity to make submissions.
Indeed, on April 7, 2015, the applicant received a letter from Christopher
McQuarrie, Chief of Security Screening Programs, stating Transport Canada’s
concerns, and specifically referring to the allegations that led to the
applicant’s arrest – namely, that he moved boxes while at work to assist a drug
importation conspiracy. The letter also encouraged the applicant to provide
additional information or explanation, including any extenuating circumstances,
within 20 days of receipt of the letter. Effectively, on April 28, 2015, the
applicant provided an affidavit and supporting materials and submissions in
response to concerns raised by Transport Canada.
[12]
The applicant submits that the reasons invoked
for the cancellation of the certificate are not adequate. This claim is
unsubstantiated. The Decision must be read in conjunction with the evidence and
elements of justification which are found in the record and which support the
overall conclusion of the Minister. Moreover, the reasons for cancelling the
clearance security certificate are clear and intelligible and there is a
rational basis for the Decision. Be that as it may, the applicant further
submits that the evidence on record is either contradictory or inconclusive and
does not establish willful participation or intent to. This is so because his
affidavit clearly contradicts earlier declarations he apparently made to the
police. The applicant also submits that the Minister’s delegate made a number
of material errors, such as associating him with three “persons
of concern” (he only knew Subject “A” which was a co-worker at the
Airport), and in finding that he had a telephone conversation with Subject “A”
after he had moved the boxes as a “favour”.
While he admits having had an earlier association with Subject “A”, he
explained to the Advisory Board that it had only to do with football sport
pools. Indeed, Subject “A”, his father-in-law and his brother-in-law were all
participants in these pools. The applicant explained that Subject “A” did not
regularly attend his home. The only times he could recall coming by at his
place were to drop some frozen prawns that he had caught. The applicant also
explained that “[i]t was fairly common for my
co-workers to want to trade shifts to accommodate their schedules” and
also that “[i]t’s not uncommon for boxes and crates to
be left outside door 31”, and that it “did not
seem unusual” that Subject “A” had called him “telling
me that there were boxes outside the warehouse in the area known as door 31 and
that I should get them inside”.
[13]
I have specifically considered the arguments
made by the applicant on the merits of the impugned decision and I find that
they are either unfounded or not material.
[14]
The general allegation made by the applicant
that the Minister did not take into account the content of the applicant’s
affidavit is not supported by the record and must be dismissed. The Record of
Decision noted that the information concerning the applicant’s involvement in
and/or association to individuals involved in a drug smuggling incident raised
concerns regarding his judgment, trustworthiness and reliability. It also noted
that the June 2014 joint investigation by the RCMP Federal Serious and Organized
Crime Unit, CBSA, and Vancouver Police Department seized 37 kilograms of
heroin, and that the amount of drugs suggested that the incident was related to
organized crime. The Record of Decision went on to state that two individuals
with whom the applicant associates were charged with possession for the purpose
of trafficking, while another associate is a convicted criminal who has been
incarcerated and is linked to this importation conspiracy. The applicant
admitted guilt to the police in being involved with the incident, although he
claimed that he thought the boxes contained steroids, which is nonetheless an
illegal substance. The applicant had multiple conversations and meetings with
an individual involved in the drug smuggling incident immediately before and
after the day of seizure, and the applicant was evasive and not forthcoming
with police while being questioned.
[15]
However, the applicant notes that the impugned
decision suggests that the applicant associated with three individuals, while
the applicant says his association was limited to Subject “A”. The applicant
suggests that such erroneous association renders the whole decision
unreasonable. I do not agree. It is apparent that the Minister’s delegate was
simply referring to these associations by reason of their shared involvement in
the importation scheme. Further, it is plain from a reading of the reasons on
record that this was not a decision that turned on the associations kept by the
applicant.
[16]
The applicant also takes issue with the
statement that he had conversations with an individual involved in the drug
smuggling incident after the day of the seizure. He suggests there “was never any evidence that Mr. Sidhu was in contact with
Subject ‘A’ after moving the boxes”. This is simply incorrect. As set
out in the January 22 LERC Report:
Police asked you if, when you had placed the
boxes back in the secure area, you had to call Subject “A” and tell him the
boxes were back? You responded “he may have called me”.
[17]
I would add here that the sort of line-by-line
review of the decision proposed by the applicant is not the appropriate manner
to engage in a reasonableness review. It is not the role of this Court to
substitute itself to the Minister and reassess the totality of the evidence.
What is of central importance in evaluating the decision here at issue is the
general finding for the purpose of the Act and Regulations that was made by the
Minister’s delegate. She was not tasked with deciding on any standard whether
the applicant had in fact knowingly participated in the drug importation
scheme. Though the applicant denied in his affidavit that he confessed to the
police, it was not unreasonable for the Minister’s delegate to accept that, as
reported by the police, the applicant had confessed to involvement in the
smuggling, though he had been under the impression the boxes contained steroids
– which are also an illegal substance.
[18]
The standard of proof that must be met in order
for Transport Canada to revoke a security clearance is outlined in the Federal Court’s
decision in Clue v Canada (Attorney General), 2011 FC 323 at para 20:
[…] For purposes of revocation of a TSC the
standard of proof is much lower and requires only a reasonable belief, on a
balance of probabilities, that a person may be prone or induced to commit and
act (or to assist such an act) that may unlawfully interfere with civil
aviation. This provision involves an assessment of a person’s character or
propensities (“prone or induced to”) and it does not require evidence of the
actual commission of an unlawful act: see Fontaine, above, at para 78, 81 and
83. What the Director is called upon to do is to examine a person’s behaviour
to determine if, on balance, it supports a reasonable belief that a person may
in the future be inclined to act unlawfully in the context of aeronautical
safety. […]
[19]
Finally, I note that the case law makes it clear
that the Minister is entitled to rely on information received from the RCMP for
the purposes of determining whether to cancel a security clearance (Henri v
Canada (Attorney General), 2014 FC 1141 at para 41; affirmed 2016 FCA 38).
Although the applicant provided a lengthy contradictory and new explanation for
his involvement in the heroin importation scheme, the Record of Discussion of
the Advisory Body characterizes the explanations provided by the applicant as
highly convenient and a “spin story”. These
conclusions and inferences are not unreasonable. The fact remains that the
applicant did assist criminals in the importation of drugs. Given that reality,
when tasked with the forward looking assessment of risk called for by the
statutory scheme, it was certainly reasonable for the Minister’s delegate to
conclude that the applicant may be prone or induced to commit an act that
interferes with civil aviation. And, at the very least, even if we accept for
the sake of argument that the applicant was only doing a “favour” for a co-worker, what he effectively did was
contrary to the security policies and clearly supported the cancellation of his
clearance certificate because he was unreliable and lacking judgment. Overall,
the decision to cancel the applicant’s clearance falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[20]
In the case at bar, the applicant submits that,
irrespective of the result, no costs should be awarded to the winning party,
while the respondent seeks costs in the amount of $2000 in case of dismissal.
Costs normally follow the result of the case. I find no special reason to
exercise my discretion not to allow costs in favour of the respondent. The
claimed amount of $2000 is reasonable in the circumstances.
[21]
For all these reasons, the present application
shall be dismissed with costs of $2000 in favour of the respondent.
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