Docket: T-1932-15
Citation:
2016 FC 977
Ottawa, Ontario, August 29, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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DAYTON GEORGE
CLARKE
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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]
Mr. Clarke asks the Court to set aside a
decision of the Minister of Transport dated November 15, 2015, cancelling his
Transportation Security Clearance [TSC] at Pearson International Airport. He
has held a TSC since 2007, and requires it in order to be able to perform his
employment as a station attendant for Air Canada.
[2]
It is not disputed that Mr. Clarke has no
criminal record and that he has never been charged with any offence in Canada
or Jamaica, where he previously resided.
[3]
On December 17, 2014, Transport Canada, Security
Screening Programs received a RCMP Law Enforcement Records Check report [LERC
Report] [the Initial LERC Report] regarding Mr. Clarke’s suspected involvement
in drug smuggling at Pearson Airport. A few days later the RCMP sent a revised
LERC Report to Transport Canada [the Second LERC Report] and a request to use
it rather than the Initial LERC Report and to shred the Initial LERC Report.
[4]
Transport Canada was puzzled by the request and
emailed the RCMP asking it if they meant to “remove the
statement ‘during the past 7 years’ in paragraph 1” and asking what the
meaning of this change was. The RCMP responded saying that “it looks weird but the RCMP Unit that provided the
information wanted it that way.” As explanation, the response stated:
The investigations did not cover the whole 7
years. It spanned over ‘several years’ sometime in the past 7 years. They did
not want the applicant to know exactly when he was under investigation, so the
year span was purposely generalized.
The first sentence
of the first numbered paragraph in the Second LERC Report reads: “Over several years, during the past 7 years, Toronto Airport
Detachment Drug Enforcement Unit (TADEU) conducted various investigations in
which the applicant was one of the primary subjects of investigation and
intelligence.”
[5]
The Record indicates that the Second LERC Report
was the only one considered by the Advisory Body established under the
Transportation Security Clearance Program [TSCP] and the decision-maker of the
impugned decision.
[6]
On February 12, 2015, officials of Transport
Canada wrote a letter to Mr. Clarke to advise him of the concerns raised in the
Second LERC Report and to warn him of the possibility that his security
clearance would be reviewed by the Advisory Body, and that it was at risk of
being revoked. He was directed to provide further information to the Advisory
Body “outlining the circumstances surrounding the above
noted associations and incidents, as well as to provide any other relevant
information or explanation, including any extenuating circumstances within 20
days of receipt of this letter.”
[7]
This letter outlines the incidents of concern
and sets out that TADEU believes that Mr. Clarke is “a
‘door’ at the airport, facilitating the movement of drugs with the assistance of
co-workers.” It details three separate investigations and Mr. Clarke’s
association with two individuals identified as “Subject
A” and “Subject B.”
[8]
Mr. Clarke responded by letter dated March 25,
2015 stating that the “accusations are baseless and
inaccurate.”
[9]
After review of the Second LERC Report and Mr.
Clarke’s response, the Advisory Body recommended that the Minister cancel his
security clearance. The Minister’s delegate rendered the final decision and
issued her decision on October 29, 2015, cancelling his security clearance.
[10]
Mr. Clarke submits that the decision under
review was procedurally unfair because (1) the Minister destroyed relevant
documentary evidence, (2) failed to provide him with sufficient disclosure, and
(3) failed to provide him with sufficient reasons for the decision. He further
submits that the decision is unreasonable based on the evidence before the
decision-maker.
[11]
There is no dispute that Mr. Clarke was entitled
to receive procedural fairness.
[12]
There is no dispute that the Initial LERC Report
was shredded by the Minister. Mr. Clarke submits that this was a “highly relevant” and indeed a “critical” document because it initiated the process
of reviewing his security clearance. He argues that its “destruction considerably and irretrievably prejudiced [his]
ability to respond to the serious allegations leveled against him.” I
am not persuaded of that.
[13]
The Second LERC Report, not the Initial LERC
Report, was the document reviewed and considered by the Advisory Body and the
decision-maker. Further, the difference between the two amounts to no more
than a very few words regarding the time frame of the investigations referenced
in those reports.
[14]
Mr. Clarke further submits that he was not
provided with sufficient disclosure, and notes specifically that the Minister
did not disclose “any of the documents which were in
its possession other than two photographs.” He notes that the 11
undisclosed documents were placed before the Advisory Body and submits that “this non-disclosure and obfuscation significantly hampered
[his] ability to meaningfully respond to the allegations against him.”
[15]
I agree with the Minister that the jurisprudence
of this Court establishes that the duty of procedural fairness owed to Mr.
Clarke does not go so far as to require that all of the documents collected
must be disclosed. Rather, the duty requires that the Minister inform Mr.
Clarke of the facts alleged against him and his right to make representations.
In short, he is entitled to know the case against him, but not necessarily the
means by which that case may be established.
[16]
The fairness letter sent to Mr. Clarke was
almost a verbatim copy of the Second LERC Report contents; it can hardly have
been more detailed.
[17]
Here, there is no evidence that Mr. Clarke did
not know the case against him; indeed, he responded to the fairness letter in
some detail. Furthermore, once he was in possession of the Second LERC Report
and the other 10 undisclosed documents, he provided no evidence that there was
other information or a different response that he would have provided to the
Advisory Body. Instead, all the Court has is his affidavit attesting that it
would have offered him an opportunity to “make a
meaningful response” or “assisted me in
identifying what it was I was doing on those particular occasions” and
similar general observations. In order to succeed in this submission more in
the way of more specific and detailed response was required of Mr. Clarke.
This is especially the case since he never stated in his response that the
information provided was too general or lacking in detail sufficient for him to
respond.
[18]
I am not persuaded that the reasons provided for
the decision are insufficient such that Mr. Clarke does not know why his
security clearance was revoked or whether to review the decision. The reasons
provided by the Minister are fulsome and more than meet the legal requirement
in cases such as this.
[19]
The last attack on the decision is its
reasonableness. Mr. Clarke’s activities over a number of years and over a
number of occasions and with numerous persons raised a reasonable suspicion
that he was a “door” at Pearson Airport.
Further, in these observations he is associating with multiple individuals who
were engaged in criminal activities. The fact that he has no criminal record
himself and has never been charged with a crime does little to offset this evidence
because the criminal test is so much higher than that which applies when
revoking security clearance. The latter test is whether “the Minister reasonably believes, on the balance of
probabilities [that an individual] may be prone or induced to unlawfully
interfere with civil aviation; or assist or abet any person to commit an act
that may unlawfully interfere with civil aviation” [emphasis added].
This Court has affirmed that allegations of drug crime and associations with
organized crime are threats to aviation: See Thep-Outhainthany v Canada
(Attorney General), 2013 FC 59, [2013] FCJ No 44 and Salmon v Canada
(Attorney General), 2014 FC 1098, 92 Admin LR (5th) 123.
[20]
For these reasons, this application must be
dismissed.
[21]
Counsel proposed that costs of $2,500 be awarded
to the successful party.
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