Docket: T-2571-14
Citation:
2016 FC 935
Ottawa, Ontario, August 15, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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AYAAN MOHAMMED
FARAH
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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
I.
Overview
[1]
This is an application for judicial review of a
decision by the delegate of the Minister of Transport dated November 25, 2014 [Decision]
to cancel the transportation security clearance of Ms. Farah at the Lester B.
Pearson International Airport [airport]. Because of that decision, Ms. Farah’s Restricted
Area Identity Card [RAIC] was revoked. She was also placed on suspension by her
employer US Airways without pay or benefits as she requires a RAIC to perform
her job.
[2]
The objective of the security clearance process
is “to prevent the uncontrolled entry into a restricted
area of a listed airport” by persons that, in this case, “the Minister reasonably believes, on a balance of
probabilities, may be prone or induced to assist or abet any person to commit
an act that may unlawfully interfere with civil aviation”
(Transportation Security Clearance Program, [TSCP] Objective). The basis for
that belief in this case was a finding that Ms. Farah associated with known
criminals. Ms. Farah denies such association and alleges the Respondent revoked
her security clearance at the airport without proper justification while
relying on unverified and unreliable evidence.
[3]
This case looks at whether the Minister
appropriately balanced the interests of Ms. Farah and the public given the
facts of the case.
[4]
Relevant excerpts of legislation referred to in
this judgment may be found in the Annex attached.
[5]
For the reasons that follow, I have determined
the cancellation of Ms. Farah’s security clearance, leading to revocation of
her RAIC, was both procedurally unfair and substantively unreasonable. It must
be set aside.
II.
Preliminary Motion – Supplementary Affidavits
[6]
By motion dated May 5, 2015, Ms. Farah sought to
file two supplementary affidavits. By Order of Prothonotary Kevin R. Aalto on June
9, 2015, Ms. Farah was permitted to file the affidavits as part of her record
while reserving the issue of their admissibility to me as the hearing judge.
[7]
One of the affidavits, made by Ms. Farah, is
about the contract she signed and the process involved when she applied for and
received her security clearances at the airport in 2006 and 2013. The other
affidavit is from her father. It provides additional information about an
incident where Ms. Farah’s car was observed at a funeral with two gang affiliated
members in it. It also outlines Somalian culture and Islamic tradition
regarding attending funerals of community members.
A.
Positions of the Parties
[8]
Ms. Farah submits that the affidavits should be
admitted because they are relevant and their admission will not prejudice the
Respondent. She says she could not make a full and fair response to the
Decision in her initial evidence and the new affidavits address critical issues
and facts which she could not anticipate until receiving the Respondent’s
affidavit. She submits she should reasonably be given the opportunity to
respond.
[9]
The Respondent submits that the new evidence is
inadmissible and irrelevant and therefore fails to satisfy the two preliminary
criteria under Rule 312. With respect to the father’s affidavit, the Respondent
submits that the evidence was available and should have been offered in
response to a letter from Transport Canada on February 3, 2014, which was sent
nine months before the Decision. The Respondent also notes that the affidavit is
not sufficiently probative to be admitted as, amongst other things, the affiant
is not sure of the dates nor whether he attended the funeral in question.
[10]
With respect to Ms. Farah’s additional
affidavit, the Respondent states that the information surrounding the contract
signed with the airport authority at the time Ms. Farah was issued her RAIC is
not relevant to whether the Minister’s delegate made a reasonable decision to
cancel her security clearance. The Respondent notes Ms. Farah raised the terms
and conditions of her RAIC for the first time as part of this motion. In both
cases the Respondent submits the information was not before the decision-maker
and so should be rejected. Ms. Farah was represented by counsel at the relevant
times when the information in the affidavits could have been offered in
response to queries made to her. The Respondent states this is not an
exceptional case and the information will not assist the Court in making a
final determination on the merits.
B.
Analysis
[11]
It is a matter of the Court’s discretion as to
whether or not new or supplementary evidence is admitted under Rule 312. In Forest
Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 88, Mr.
Justice Stratas identifies two preliminary requirements that must be met before
the Court can exercise this discretion:
1. The evidence must be admissible
on an application for judicial review. Subject to some exceptions, if it is not
in the record that was before the decision-maker, it will not be considered.
2. The evidence must be relevant to
an issue that is properly before the reviewing court.
[12]
Here, the new affidavits fail to pass the
principles articulated by Mr. Justice Stratas in Bernard v Canada (Customs
and Revenue Agency), 2015 FCA 263 [Bernard]. Generally, evidence
that could have been placed before the decision-maker but was not is not
admissible, because the Court is evaluating the legality of the decision under
review, not conducting a new hearing on the merits. There are three recognized
exceptions to this general rule:
1. background information to understand the history of the case but
that does not provide new evidence;
2. an affidavit drawing attention to the lack of evidence in the record
before the decision-maker; and
3. evidence not available at the time of the decision and which is
relevant to an issue of natural justice, procedural fairness, improper purpose
or fraud.
[13]
While the list of exceptions is not closed, the
affidavits in this matter do not contain the kind of information that might
create or uncover another exception. The allegation that Ms. Farah had
associated with known criminals was first communicated to Ms. Farah by letter
dated February 3, 2014.
[14]
Neither affidavit contains “simple background information” which would assist the
Court to understand the nature or history of the case. Rather, in breach of the
general rule, they offer new evidence for the record. Similarly, they do not
show a key finding of fact made by the Respondent was unsupported by any
evidence at all. The evidence tendered in the affidavits was available prior to
the Decision being rendered.
[15]
I find the affidavits do not come within any
exceptions to the general rule that evidence not before the decision-maker is
not admissible on a judicial review. It therefore is unnecessary to consider
the second preliminary requirement of whether the evidence is relevant. I note,
though, that much of what is contained in the affidavit of Ms. Farah’s father
is already on the record through her letter of July 3, 2014 to Transport
Canada.
[16]
For the foregoing reasons, Ms. Farah’s motion to
admit the supplementary affidavits is denied.
III.
Background Facts
A.
The Information Underlying the Decision
[17]
Ms. Farah was employed at the airport on or
about July 10, 2006 as a Customer Service Agent with US Airways. Following a
successful background check she received full security clearance and was issued
a RAIC. From May 2010 until June 2012 she was on furlough from her employment
as a result of job reductions. On returning to her employment in June 2012, a
fresh security review was conducted which ultimately led to these proceedings.
[18]
On her return to work in June 2012, Ms. Farah
initially received a medium level security clearance. In January 2013, she
received full security clearance and was issued a new RAIC. Until the time of
the Decision to cancel it, her security clearance had been valid until July 18,
2017.
[19]
On or about January 9, 2014, Transport Canada
received a Law Enforcement Records Check [LERC] report from the RCMP’s Security
Intelligence Background Section as part of the standard security clearance
review. It indicated Ms. Farah was the registered owner of a vehicle that the
Toronto Police had observed leaving the cemetery of a gang member’s funeral in
September 2012. Although Ms. Farah was not in the vehicle, two of the occupants
(Subjects “B” and “C”)
were known to the police as criminals.
[20]
Ms. Farah was also observed with an individual
(Subject “A”) in 2011 who was a known member of
the “Dixon Crew”, a street gang of primarily
Somali males based in Toronto’s west end. Subject “A”
had been charged with or convicted of eleven serious offences between 2001 and
2011, which offences ranged from drug trafficking to home invasions to
counterfeit money. Subject “A” was said to be
involved in firearms trafficking and to have admitted at the time to being a
very close associate to Ms. Farah.
[21]
Given Ms. Farah’s security level, Transport
Canada advised her on February 3, 2014, by letter, of the concerns that arose
as a result of this information. Two allegations were made:
In 2011, you were observed by police on one
(1) occasion with Subject “A”, who admitted at the time being a very close
associate of yours. The current status of your association is unknown.
In September 2012, Toronto Police reported
observing a vehicle leaving a gang member’s funeral from a cemetery. You were
the registered owner of the vehicle but were not present at the time. Other
individuals were identified inside the vehicle including Subject “B” and
Subject “C”.
[22]
The letter invited Ms. Farah to make comments. A
contact number was provided should she have any questions. On February 12, 2014
a note to file by the Advisory Body records a telephone call from Ms. Farah. It
records that she “stated she was confused as to what
the letter was all about.” She went on to state she had “no relations or associations to anyone who is involved in
criminal activity and the incident in 2011 may be a case of mistaken identity”
as she does not know anyone who would meet the description of Subject “A”. Ms. Farah also stated her cousin had presented
herself as Ms. Farah on occasion when receiving speeding tickets.
[23]
Through a letter from her counsel to Transport
Canada on February 25, 2014, Ms. Farah indicated again that she did not know
anyone who meets the description of Subject “A”.
She sought further information including “the date,
location and the name or description for Subject “A””. She also provided
details of a 2008 Honda Civic car that was registered in her name but stated it
was in the possession of, and driven by, her cousin. She included the license
plate number for that car.
[24]
On April 10, 2014, Transport Canada made an
email inquiry of the RCMP seeking to confirm the details of the vehicle
mentioned in the LERC. Regarding the statement “that
Subject “A” admitted in 2011, of being very closely associated to the applicant,”
Transport Canada requested “any further information
related to the method by which this information was received by the Police.”
[25]
On June 11, 2014, Transport Canada received a
response from the RCMP with respect to both Subject “A”
and the vehicle. In answer to the query regarding “the
method by which this information was received by the Police” the RCMP
response was:
Police had direct interaction with the
Applicant and subject “A” at which time both were together.
[26]
The information provided by Ms. Farah that she
owned a 2008 Honda Civic resulted in this reply:
The vehicle . . . was a 2003 Saturn 4door
sedan brown (BLST073) which was confirmed . . . registered to the applicant and
was observed by York Police. The vehicle mentioned by the applicant (2008 HONDA
CIVIC 4D GRY) is also registered to her.
[27]
On June 13, 2014, Transport Canada sent Ms.
Farah’s counsel a letter containing these further details. The letter indicated
that they had not been provided with names or details of the third parties or
sources because of the provisions of the Privacy Act and so could not
provide them to Ms. Farah. Ms. Farah was asked to submit any other relevant
information or documentation within twenty days of receipt of the letter. She
was also provided again with the name and telephone number of a contact person
should she wish to discuss the matter.
[28]
On July 3, 2014, Ms. Farah personally emailed
Transport Canada with additional written representations. She stated her father
was the primary driver of the car that had been at the funeral and she did not
see the relevance of the individuals being tied to her as she was not in the
car. She said the following with respect to the allegations concerning the
police, Subject “A” and the car at the funeral:
Toronto Police is falsely accusing me of
having ties to gangsters. I am a law-abiding citizen with no criminal
convictions.
The alleged association I have to this
individual is also unknown to me. For one, I have no recollection of this occurrence
or even for that matter, as the individual is also unnamed in the report, I do
not know who this individual happens to be. Furthermore, I have no idea as to
what is meant by “direct interaction.”
The fact remains, the events transpired over
2 years ago without any laws being broken or without charges being laid. In the
end, as I was not the driver of the vehicle and not at the scene, I ask that
the police clear my name of any involvement in this matter.
B.
The Process Leading to the Decision and the Decision
[29]
After the background facts were gathered as
outlined above, Ms. Farah’s security clearance was considered by the
Transportation Security Clearance Advisory Body [Advisory Body] on September
16, 2014. The Advisory Body consisted of 5 voting members and 5 non-voting
members all of whom possess a background in security screening or security
operations. The Advisory Body makes recommendations to the Director General,
Aviation Security, regarding security clearances. They recommended that Ms.
Farah’s security clearance be cancelled “based on the
police report detailing the applicant’s close association to an individual who
is known by police to be a long-standing member of the “Dixon Crew” and who has
a lengthy criminal record, as well as her association to two (2) individuals
with criminal records.”
[30]
Although the Record of Recommendation by the Advisory
Body is succinct, the Record of Discussion shows the Board considered Ms.
Farah’s written statements, including her denial of any knowledge of Subject “A” and her statement that she had given or loaned to
her father the vehicle that was seen at the funeral. Although not noted, it
also contained the Note to File where Ms. Farah stated her cousin had
impersonated her when driving her car. The Advisory Body concluded that “on a balance of probabilities 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.” This wording complies with
the objective of the TSCP guidelines to prevent such persons from accessing
restricted areas of airports.
[31]
In October 2014, Ms. Farah’s employer called to
let her know that her full security clearance had been re-instated and she
should pick up her new RAIC.
[32]
On November 18, 2014, the Advisory Body recommendation
was forwarded to the Director General, Aviation Security, for decision together
with five other case files. On November 21, 2014, the Decision was rendered.
With respect to Ms. Farah’s statement that she did not know the identity of Subject
“A”, the Director General adopted the Advisory
Body Recommendation and the wording found in the Record of Discussion that said:
I find it unlikely that an individual would
have no recollection of a direct interaction with police and, due to her very
close association with Subject A, I believe the applicant either knew or was
wilfully blind to Subject A’s activities.
and
Furthermore, the written explanation
provided by the applicant and her counsel did not provide sufficient
information to dispel my concerns.
[33]
The Decision was then communicated by letter
dated November 25, 2014, to Ms. Farah advising her that the Minister of
Transport had cancelled her clearance based on review of her file. The letter
set forth the text of the Decision and concluded with the statement that Ms.
Farah had the right to seek review of the decision in this Court within 30
days.
[34]
Ms. Farah’s employer wrote to her on December 4,
2014 indicating she would be suspended without pay or benefits because her RAIC
was cancelled.
[35]
The Notice of Application was filed in this
Court on December 18, 2014.
C.
Relevant Statutory Provisions
[36]
Airport security falls under section 4.8 of the
Aeronautics Act, R.S., 1985, c.A-2. It provides that the Minister of
Transport may grant or refuse to grant a security clearance to any person or
suspend or cancel a security clearance. The regulations made under the
Aeronautics Act include the Canadian Aviation Security Regulations, 2012,
SOR/2011-318 [Regulations]. Section 165 of the Regulations requires anyone who,
as part of their employment, requires access to a restricted area to hold a
RAIC. A RAIC is issued pursuant to section 146 by or under the authority of the
operator of the airport. In practice, RAICs are activated by CATSA (Canadian
Air Transport Security Authority) but only once the Minister informs them that
the person has a security clearance.
[37]
To implement his authority the Minister relies
on guidelines in the TSCP. The TSCP provides that the Advisory Body shall
review information supplied by an applicant and make recommendations to the
Minister concerning cancellation of clearances.
[38]
In formulating the recommendation to the
Minister, various background checks are performed including a finger-print
based criminal record check with the RCMP, a CSIS indices check and a check of
the relevant files of law enforcement agencies. If concerns arise during the
initial review, the security applicant is provided with a letter outlining the
concerns and advising them they may make written representations to address the
concerns. All the information is then reviewed by the Advisory Body and a
recommendation is made to the Minister. The Minister in turn has delegated
security clearance decisions to the Director General of Aviation Security.
[39]
In making the recommendation to cancel a
security clearance, the TSCP provides in Part II.35 that the Advisory Body may
consider any factor that is relevant to the determination of whether the
individual’s presence in the restricted area of the airport would be
inconsistent with the aim and objective of the program. Certain enumerated
factors include whether the person has been convicted or otherwise found guilty
in Canada or elsewhere of an indictable offence or is likely to become involved
in activities threatening or using serious violence against property or
persons. All the factors involve serious levels of criminality.
IV.
Issues and Analysis
A.
Issues
[40]
Ms. Farah has alleged a lack of procedural
fairness in the process that cancelled her security clearance and challenges
the Decision as being unreasonable. In addition, Ms. Farah says her section 7
rights under the Canadian Charter of Rights and Freedoms found in Part I
of The Constitution Act, 1982, being Schedule B to the Canada Act
1982 (UK), 1982, c 11, [Charter] have been breached.
B.
Standard of Review
[41]
A full analysis of the appropriate standard of
review is not required if it has already been determined by prior jurisprudence:
Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57 [Dunsmuir].
The parties agree, and I concur, that for the revocation of a security
clearance, the standard of review is reasonableness: see Brown v
Canada (Attorney General) 2014 FC 1081, Kaczor v Canada (Minister of
Transport) 2015 FC 698 and Clue v Canada (Attorney General) 2011 FC
323.
[42]
There is also no dispute between the parties
that the standard of review for issues of procedural fairness is correctness. I
also agree this is the standard. The same three cases referred to above have
each have previously determined that correctness applies to questions of procedural
fairness in reviewing security clearance revocations.
[43]
Ms. Farah has also raised an issue with respect
to whether her rights under section 7 of the Charter were breached by
the Respondent. As I have determined there is no evidence that Ms. Farah’s Charter
rights were breached, I will deal with that issue first.
C.
Were Ms. Farah’s Charter Rights Breached?
[44]
Although not argued at the hearing of this
matter, Ms. Farah in her written submissions alleged that the Respondent
breached her Charter rights. Paragraph 36 of Ms. Farah’s memorandum of
fact and law puts the heart of her argument this way:
[I]t is evident that, an individual could
objectively suffer serious psychological stress where that person cannot ever
dispute or escape the shadow of criminal accusations that were never pursued in
court or substantiated.
[45]
While “serious
state-imposed psychological stress” may breach section 7 of the Charter,
not all forms of psychological prejudice, if caused by government, lead to
automatic section 7 violations: Blencoe v British Columbia (Human Rights
Commission), 2000 SCC 44 at paragraph 57.
[46]
The question here is not as generic as whether “an individual” could suffer such harm. The question
is whether this Applicant has suffered serious psychological stress that
was caused by government action.
[47]
There is no evidence in the record or before the
Court that Ms. Farah has suffered any psychological stress—serious or
otherwise. While it is entirely possible that the events experienced by Ms.
Farah have proven stressful to her and, perhaps, even psychologically
stressful, in order to reach the level of a Charter breach there must be
evidence before the Court of a high level of psychological stress. There simply
is no such evidence and therefore nothing upon which I could determine Ms.
Farah’s Charter rights were breached. Accordingly, this issue will not
be addressed further.
D.
Was the Decision Procedurally Fair?
(1)
Submissions of the Parties
[48]
Ms. Farah alleges that the Decision was
procedurally unfair because the Minister failed to provide her with sufficient
disclosure, did not fully consider her submissions and did not provide adequate
reasons, particularly given the level of procedural fairness Ms. Farah says was
required. She also alleges that she should have been provided with an
opportunity to appear in person before the tribunal. It is important,
therefore, to ascertain the nature of procedural fairness owed to Ms. Farah in
these circumstances.
[49]
Counsel for Ms. Farah submitted that her
credibility was in issue as the Minister and Advisory Body disbelieved her
statement that she does not know any criminals. He submits, relying on Singh
v Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, that
she was entitled to an oral hearing because of the centrality of the credibility
assessment and the serious consequences to her of the decision.
[50]
Counsel also referred to Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 837, where
the Supreme Court enunciated five factors affecting the content of the duty of
fairness in administrative decisions. Counsel argued that the factors lead to a
higher degree of procedural fairness given the importance of the decision to
Ms. Farah’s job, the fact that there was a withdrawal of an existing clearance
that had twice been issued and the choice of procedure being no oral hearing
and insufficient disclosure.
[51]
The Respondent submits that while there is a
slightly higher degree of procedural fairness required when a security
clearance is cancelled, it still falls at the lower end of the spectrum. The
Respondent also says, citing Henri v Canada (Attorney General), 2014 FC
1141 in support, that there is no entitlement to a hearing.
[52]
As to whether the written submissions of Ms.
Farah were taken into account, the Respondent points to the Decision itself,
which makes explicit reference to the submissions and why they were not
accepted.
(2)
Analysis
[53]
Two of the procedural fairness issues raised by
Ms. Farah can be immediately resolved. Firstly, in Pouliot v Canada
(Transport), 2012 FC 347 at paragraph 10, Mr. Justice Rennie
confirmed that the level of procedural fairness in matters involving revocation
of a security clearance is slightly higher than the initial issuance of a
clearance but is still on the lower end of the spectrum. He then confirmed that
there is no right to a hearing in revocation matters. Secondly, in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board)
2011 SCC 62 at paragraph 14, Madam Justice Abella established that inadequacy
of reasons is not a matter of procedural fairness, but is part of a
reasonableness review. The reasons must be read together with the outcome to
determine whether the decision falls within a range of possible outcomes.
[54]
Finally, Ms. Farah’s submissions were clearly
considered. The Decision refers to the letters submitted by her or her counsel
and the explanations provided.
[55]
In my view however, Ms. Farah did not receive
adequate disclosure after Transport Canada misstated to the RCMP Ms. Farah’s
request for particulars concerning Subject “A”.
[56]
Ms. Farah was simply not provided with enough
information to allow her to make any kind of meaningful response. The best she
could do given the paucity of information was to deny knowing Subject “A” and state she had no idea what a “direct interaction” meant.
[57]
Ms. Farah stated throughout the process, from
beginning to end, that she did not believe she knew anyone who met the
description of Subject “A”, nor did she know any
criminals. To help her refute the bald allegations made against her about
Subject “A”, Ms. Farah’s counsel on February 25,
2014, wrote to Transport Canada and asked for further information about Subject
“A” including “the date,
location and the name or description”. The Respondent states that as a
result of the letter, steps were taken to provide information to Ms. Farah and
an inquiry was made to the RCMP to obtain more information concerning Subject “A”. Unfortunately, that step did not accurately pass
along the request.
[58]
On April 10, 2014, by email to the RCMP,
Transport Canada asked “for any further information
related to the method by which this information was received by Police”. Ms. Farah’s counsel had requested information to assist her in
identifying Subject “A”, specifically, “the date, location and the name or description”.
Transport Canada’s re-statement of the request fundamentally changed the
question.
[59]
The response received by Transport Canada from
the RCMP was “Police had direct interaction with the
Applicant and subject “A” at which time both were together.” It did not
address the date, location, description or name of Subject “A” nor whether they could be disclosed.
[60]
The initial misstated request by Transport
Canada was compounded in their written reply to Ms. Farah’s counsel. The letter
on June 13, 2014 stated that information had been provided in accordance with
the Privacy Act and, “[a]s such since we were
not provided with names or details associated to third party individuals or
sources, we are unable to provide any further details to you.” But that
statement is somewhat misleading as, the request not having been made, there
was no privacy issue raised by the RCMP in reply. In
fact, information about the “direct interaction”
was held up by the RCMP while they sought authorization from York Police. If
Ms. Farah’s questions had been properly posed to the police then they might
have relied on the Privacy Act, but they also might have provided more
details.
[61]
Counsel for Ms. Farah submits that the cases
dealing with cancellation of security clearances are very fact specific. He
says that vagueness in the reasons leads him to conclude that there is possibly
a “smell test” involved. I agree that the cases
are fact specific. Most cases contain significant factual detail because the
Applicant for the clearance usually has direct involvement in criminal matters
or, at a minimum, a clear, ongoing relationship with a person engaged in
serious criminal activity. As Mr. Justice Rennie put it in Meyler v Canada
(Attorney General), 2015 FC 357 [Meyler], in those cases the
basis of the security concerns is readily apparent.
[62]
Even with a slightly higher level of procedural
fairness, there is a minimal amount of meaningful information that must be
disclosed in order to ensure natural justice occurs and a meaningful response
can be made. The nature and amount of information will always vary with the
context. In this case Ms. Farah’s record speaks for itself. She has no criminal
convictions or investigations. She may have had one direct encounter in 2011
with a known criminal but she has denied knowing any criminals. In September,
2012 her second car, but not Ms. Farah, attended a gangster’s funeral with
Subject “B” and “C”
inside. These sparse allegations are unique in the annals of security clearance
revocation cases.
[63]
Ms. Farah sought further information but did not
receive any part of what she had requested. She was interested in the date,
location, name or description. Was there any information that Ms. Farah did not
know that could have allowed her to make sense of the allegations and provide a
meaningful response? Any one or more of the following could have been of
assistance in understanding the alleged interaction with Subject “A”:
i.
The gender of Subject “A”.
ii.
The approximate age or age range of Subject “A”.
iii.
The nationality of Subject “A”.
iv.
The city or province or country in which she and
Subject “A” were seen together.
v.
When the direct interaction occurred: morning,
afternoon, evening or late evening?
vi.
Could it be narrowed down to one of the four
seasons of the year?
vii.
Was the “direct
interaction” indoors or outdoors?
viii. The specific date of the direct interaction and who was present.
[64]
Ms. Farah’s fact situation is very similar to
that found in Meyler,
where Mr. Justice Rennie dealt with an applicant facing an unspecified association
with an unidentified individual named Subject “A”
who was the group leader of a drug importation ring at Lester B. Pearson
International Airport. When looking at the issue of disclosure, Mr. Justice
Rennie said that if Meyler was one of those rare cases where no
information could be disclosed without compromising a source, “the decision letter must include, in the interests of
procedural fairness, evidence that the decision maker addressed his or her mind
to the extent to which information could be disclosed without compromising the
source. Therefore to the extent that disclosure can be made without identifying
an informer or source, information should be disclosed if necessary to satisfy
the requirements of natural justice.” That did not occur in this case. Ms.
Farah’s efforts to obtain details were frustrated by the misstated request and
the improper blanket reliance on the Privacy Act.
[65]
I adopt the observations of Mr. Justice Evans in
Reference re Marine Transportation Security Regulations (CA), 2009 FCA
234 at paragraph 38, that an applicant’s association with a person may be
entirely innocent, “whether or not the applicant was
aware of the person’s criminal or terrorist activities” and “innocent associations will not normally warrant the denial
of a security clearance”. It is important to strive to make that
distinction with full and complete information at hand wherever possible.
Without sufficient disclosure for her to identify Subject “A”, Ms. Farah could not meaningfully explain the
nature of a relationship that may have been formed with no knowledge of the
criminal activities of Subject “A” or that may
not have existed at all. Instead, she was forced to give a blanket denial of
having any criminal associates.
[66]
By not properly considering what additional
information could have been made available to Ms. Farah to assist her in making
a meaningful response, the Advisory Body and the Director General acted in a
manner that was procedurally unfair. As a result, Ms. Farah was denied natural
justice.
E.
Was the Decision Reasonable?
[67]
Notwithstanding my finding that the process was
procedurally unfair, I also wish to comment on the reasonableness of the
Decision as, in this case, the line between a reasonable decision and a
procedurally unfair one is not as clear as it otherwise might be.
[68]
The Supreme Court has stated that reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. To be reasonable the
decision itself must fall within the range of acceptable outcomes, defensible
on the facts and law: Dunsmuir at paragraph 47.
[69]
Ms. Farah has no criminal convictions and,
unlike the applicant in Meyler, was never personally the subject of any
investigation—particularly one into the importation of drugs at the airport.
This is so even though it appears from the jurisprudence that at the times
relevant to Ms. Farah’s matter there was an extensive investigation undertaken
by a vast array of enforcement agencies, including most Toronto area police
forces, CBSA, airport drug enforcement and intelligence units and three RCMP
projects all operating in concert to investigate an organized crime group
facilitating the importation of drugs into Canada via Pearson airport: see
generally Brown v Canada (Attorney General), 2014 FC 1081.
[70]
Ms. Farah steadfastly maintained from the
beginning that she did not know who Subject “A”
was and that she did not associate with criminals. The conclusion drawn by the
Director General, adopting the language of the Advisory Body Recommendation
was, “I find it unlikely that an individual would have
no recollection of a direct interaction with police”. The clear
implication is that Ms. Farah was not telling the truth. The resulting
conclusion was that “due to her very close association
with Subject “A”, I believe the Applicant either knew or was wilfully blind to
Subject A’s activities.”
[71]
Inherent in the conclusion is that the police officer
with whom there was a “direct interaction” was in
uniform. If so, then there was no need to provide so little information in the
allegation as there was no source to protect. If the police officer was not in
uniform or identifiable as a police officer, then it makes sense that Ms. Farah
would have no recollection of an interaction.
[72]
The Advisory Body and the Director
General considered the right question – why was Ms. Farah unable to recollect a
direct interaction with the police? It should have prompted them to more
closely scrutinize the evidence. There are two possible reasons apparent on the
face of the record. One, the police may not have been in uniform and did not
identify themselves. Two, as recorded in the Note to File, Ms. Farah’s cousin,
who had previously impersonated her when receiving speeding tickets, may have
been the person with Subject “A”.
[73]
Ms. Farah’s denials, while common
place with people accused of possible wrongdoing, should have nonetheless
caused the decision-makers to make sure the evidence upon which they were
relying supported the statement that she was “unlikely” to “have no
recollection of a direct interaction with police”. The question of whether the police were in fact identifiable is crucial
under the circumstances. Also, how the police were able to identify that the
person with Subject "A" was indeed Ms. Farah should have been examined given
his criminality and her cousin’s prior impersonation of Ms. Farah. Without
verifying the information they were relying upon, the Advisory Body and the
Director General risked making the decision based on erroneous findings of fact.
[74]
In Lavoie v Canada (Attorney General),
2007 FC 435, Mr. Justice Beaudry at paragraph 18 explained the security
clearance review process this way:
The purpose of the legislation is to ensure
security for civil aviation and to protect the public. The Director and the
Advisory Body must assess the evidence and analyze both public
documents and those submitted by the person concerned. This factor also
commands a high level of deference.
(my emphasis)
[75]
Neither the Advisory Body nor the Director
General appears to have turned their minds to the possibility that the police
were undercover or in plain clothes. There is no indication in the Advisory
Body Record of Discussion or Recommendation or in the Decision of any analysis
of the LERC or assessment of the subsequent information from the RCMP. There is
reference to an in-depth “review” of the
information but no indication that it involved more than noting the
information. No confirmation was sought from the RCMP that the police officer
who had the direct interaction was in uniform or otherwise identifiable as
police and, if so, by what means. The clear assumption was that the police
person was known to Ms. Farah to be a member of the police. Both the Advisory
Body and the Director General proceeded to use the “fact”
of direct police interaction as the definitive reason for finding Ms. Farah’s
denials were not credible. If the police were not identifiable as police,
however, it is reasonable to expect Ms. Farah would have no recollection of a
single event that occurred over two years prior.
[76]
Given the gravity of the consequences to Ms.
Farah, the Advisory Body ought to have carefully considered the documents they
reviewed, but failed to so. The Director General also has an obligation to
ensure that the critical facts upon which she relies are very clear. Without an
analysis of the important evidence that police interacted with Ms. Farah, the
conclusion in the Decision is not intelligible or transparent. It does not meet
the Dunsmuir criteria and is therefore unreasonable.
V.
Conclusion
[77]
The application is allowed and the Decision will
be set aside. The parties agreed at the outset of the hearing that costs of
$2,000 would be appropriate. Ms. Farah as the successful party is entitled to
that amount for her costs.
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