Docket: T-1911-15
Citation:
2016 FC 1286
Ottawa, Ontario, November 22, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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CAROL FRANCES
BRITZ
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Applicant
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and
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CANADA
(ATTORNEY GENERAL)
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review by
Carol Frances Britz [the Applicant] under II.45 of the Transportation
Security Clearance Program Policy [the Policy], challenging a
decision of the Director General of Aviation Security [Director General], made
on October 13, 2015, on behalf of the Minister of Transport [the Minister] and
acting on the advice of the Transportation Security Clearance Advisory Body
[Advisory Body], in which the Applicant’s security clearance was cancelled [the
Decision], pursuant to paragraph I.4(4) of the Policy, s. 4.8 of the Aeronautics
Act, RSC, 1985, c A-2 [the Act] and the Canadian Aviation
Security Regulations, 2012, SOR/2011-318 [the Regulations].
[2]
Judicial review is granted and redetermination
ordered. The decision is unreasonable because it is not justified on either the
facts or the law as it must be to comply with governing jurisprudence. The
Minister made an unreasonable ‘either/or’
decision, which is unintelligible in that it does not permit the Applicant or
this reviewing Court to determine the basis for the cancellation of the
Applicant’s Security Clearance. Even if the Minister’s Decision was not based
on this unreasonable ‘either/or’ finding, it is
still unreasonable because there is no basis in the evidence to justify a
finding the Applicant may be prone to commit the relevant unlawful acts. In
addition, the Court is not satisfied that the Applicant’s submissions were
considered by the Minister.
II.
Facts
[3]
The Applicant is a 49-year-old flight attendant
working with Air Canada at the Calgary International Airport. She was initially
granted a Security Clearance in 2004, which was valid until September 12, 2018.
It required renewal every 5 years. She does not have any criminal convictions.
She had a spotless record with Air Canada.
[4]
On September 4, 2014, the Applicant applied to
renew her Security Clearance.
[5]
On February 5, 2015, a Law Enforcement Record
Check [LERC] report was prepared by the RCMP. This report was sent to the
Director of Security Screening Programs. The report noted that the Applicant
had no criminal convictions. The report also noted that the Applicant
interacted on a daily basis with an associate, referred to by the RCMP only as “Subject A,” who associates with the Hells Angels in
Calgary.
[6]
Both parties agree “Subject
A” is the Applicant’s husband, Gerald MacMullin [Husband or MacMullin].
[7]
The Applicant has lived with her Husband since
1989; they were married in May 2011.
[8]
The RCMP’s LERC report stated:
1. The
Applicant has no known criminal convictions; however she interacts on a daily
basis with a very close associate whom [sic] associates with members of
the Hells Angels of Calgary, Alberta.
a. The
Hells Angels is identified as a one percent outlaw motorcycle gang. “One
percenters” are considered to be any group of motorcycle enthusiasts who
voluntarily made a commitment to band together and to abide by their
organization’s rules which are enforced by violence, who engage in activities
that bring them and their club into repeated and serious conflict with society
and the law.
2. [The
Applicant’s Husband]
a. Is a
very close associate of the Applicant with whom she interacts on a daily basis.
b. Between
2009 and 2012:
i. a
vehicle registered to [Husband] was observed by the RCMP at the funeral of a
Hell’s [sic] Angels “Hangaround” (individuals associating closely with
the Hell’s [sic] Angels)
ii. a
vehicle registered to [Husband] was observed by the RCMP at the Hell’s [sic]
Angels Southland clubhouse in Calgary, Alberta during the 1st anniversary
festivities of the Southland Chapter.
iii. [Husband]
was observed by the RCMP driving to and entering the residence of a well-known
cocaine and firearm trafficker.
iv. [Husband]
was observed by the RCMP getting into a vehicle with a well-known cocaine and
firearm trafficker.
v. [Husband]
was observed by the RCMP leaving a location with a member of the Hell’s [sic]
Angels.
vi. a
member of the RCMP observed a “Nomads’ support” hat and a memorial picture of a
deceased Hell’s Angel [sic] member hanging in [Husband’s] garage.
vii. a
vehicle registered to [Husband] was observed by the RCMP amongst other vehicles
owned by members of several motorcycle gangs including Hell’s [sic]
Angels at a gathering at a local bar in Calgary, Alberta.
viii. [Husband]
was observed by the RCMP wearing 81 Nomads Support gear in Red Deer, Alberta.
• Note: Since July 1997, a
Hells Angels Nomads chapter exists within the Province of Alberta. Members of
Nomads Chapters are generally older and seasoned members and they are not bound
by any geographic borders. They can travel and do business anywhere, whereas a
member of one chapter entering another’s must report in and abide by their
wishes.
[9]
On February 17, 2015, Transport Canada Security
Screening Programs sent the Applicant a Procedural Fairness Letter [PFL]
advising that her Security Clearance would be reviewed by the Advisory Body.
The PFL repeated the contents of the LERC report (the contents of which can be
found above at paragraph 8 of these Reasons).
[10]
The PFL encouraged the Applicant to provide “additional information, outlining the circumstances
surrounding the above noted association, as well as to provide any other
relevant information or explanation, including any extenuating circumstances
[…]”. It also provided the name and number of a contact person with whom
the Applicant could speak should she wish to discuss the matter further.
[11]
In bold typeface, the PFL stated:
Please consult the Transportation
Security Clearance Program Policy which is available on our website at
http://www.tc.gc.ca/eng/aviationsecurity/tscp-menu.htm.
[emphasis in original]
[12]
The PFL also stated:
The various grounds, on which the Advisory
Body may make a recommendation, can be found in section 1.4 of the Policy.
[13]
On March 10, 2015, the Applicant sent a response
letter to the PFL through her counsel [Response Letter]. In her Response
Letter, she explained the following:
Mr. MacMullin is not now, nor has he ever
been, a member or associate of the Hells Angels. He is a service manager for
Gasoline Alley Harley Davidson (“GAHD”), a motorcycle business, which has been
in operation for over 25 years. GAHD has been rated the number one Harley
Davidson dealership in Canada with Mr. MacMullin being the number one service
manager in Canada.
Mr. MacMullin’s customers are varied and include
doctors, lawyers, RCMP officers and members of the Hells Angels. The extent of
his relationship with the Hells Angels is that of agent for GAHD. It is trite
to say that the Hells Angels are renowned motorcycle enthusiasts and it’s clear
that Mr. MacMullin, as agent for GAHD, would be in close proximity to Hells
Angels members.
That being said, Mrs. Britz and Mr.
MacMullin intend to cooperate fully with your inquiry and can provide the
following answers to your specific concerns:
1. A
vehicle registered to Subject “A” was observed by the RCMP at the funeral of
Hells Angels “Hangaround” (individual associating closely with the Hells
Angels).
Mr. MacMullin is often invited to the
funerals of long-term customers. On one or more occasions, a long-term customer
who was a member of the Hells Angels passed away. On those occasions, Mr.
MacMullin was invited to that customer’s funerals [sic] attended the
same to offer his condolences to the friends and family of the deceased.
2. A
vehicle registered to Subject “A” was observed by the RCMP at the Hells Angels
Southland clubhouse in Calgary, Alberta during the 1st anniversary
festivities of the Southland Chapter.
GAHD often lends out equipment such
as barbecues to customers for social events. If Mr. MacMullin was at a Hells
Angels clubhouse, it was for the sole purpose of providing GAHD services to
customers for a social event.
3. Subject
“A” was observed by the RCMP driving to and entering the residence of a
well-known cocaine and firearm trafficker.
Mr. MacMullin is unaware of which of
his customers is the aforesaid cocaine and firearm trafficker. As an agent of
GAHD, Mr. MacMullin visits many homes without the ability to know whether the
home owner is engaged in criminal activities.
4. Subject
“A” was observed getting into a vehicle with a well-known cocaine and firearm
trafficker.
As above, Mr. MacMullin is unaware of
which of his customer [sic] is the cocaine and firearm trafficker
referred to. Mr. MacMullin has interacted with many of his customers in their
vehicles without the ability to know whether said customers are engaged in
criminal activities.
5. Subject
“A” was observed by the RCMP leaving a location with a member of the Hells
Angels.
As Hells Angels members are customers
of GAHD, it’s clear that, on occasion, Mr. MacMullin will be leaving locations
with them.
6. A
member of the RCMP observed a “Nomads support” hat and a memorial picture of a
deceased Hells Angels member hanging in Subject “A’s” garage.
Mr. MacMullin has many memorial
pictures in his garage of customers, family, staff members, and friends. The
“Nomads support” hat was given to Mr. MacMullin as a gift from his customer.
7. A
vehicle registered to Subject “A” was observed by the RCMP amongst other
vehicles owned by members of several motorcycle gangs including Hells Angels at
a gathering at a local bar in Calgary, Alberta.
Mr. MacMullin advises that when a
Hells Angels customer of his dies, wakes are often held at bars. In those
instances, Mr. MacMullin will make appearance at the wake to offer his
condolences to family and friends of the deceased.
8. Subject
“A” was observed by the RCMP wearing 81 Nomads Support gear in Red Deer,
Alberta.
The gear was given to Mr. MacMullin
as a gift from his customer.
In reference to the relevant subsections of
section 1.4 of the Transportation Security Clearance Program Policy, the
information provided above as well as further inquiry should relieve the
Transportation Security Clearance Advisory Body of its suspicions that Mr.
MacMullin is involved in activities directed toward or in support of the threat
or use of acts of serious violence against persons or property as well as
suspicions that Mr. MacMullin is a member of the Hell’s [sic] Angels.
Both Mrs. Britz and Mr. MacMullin are
hardworking professional [sic] who have enjoyed long lasting and
fruitful careers. A quick glance at Mrs. Britz’s file will reveal a spotless
record. In an effort to demonstrate Mr. MacMullin’s character, we have
attached reference letters from the RCMP and GAHD.
[14]
In addition, the Applicant attached two
reference letters for her Husband. The first reference letter was from an RCMP
Sergeant who wrote in regards to the Husband’s professionalism and general
character. The RCMP Sergeant confirmed the Applicant’s Husband had overseen the
servicing of most of the Harley Davidsons used by the RCMP in the K Division
Integrated Traffic Services since 2008.
[15]
The second reference letter was from the General
Manager of the Husband’s employer, Gasoline Alley Harley Davidson [GAHD], who confirmed
that the dealership also services Harley Davidson motorcycles belonging to the
RCMP and the Alberta Sheriff’s Department. The General Manager’s reference
letter stated that Mr. MacMullin had formed long-standing relationships with
many long-term customers and, like other GAHD employees, he attends at funerals
of customers “from all walks of life.”
[16]
Aside from this Response Letter, neither the
Applicant nor the Minister shared any additional information and neither
contacted the other.
[17]
The Advisory Body met and recommended
cancellation of the Applicant’s security clearance on July 21, 2015. The
Advisory Body’s Summary of Discussion states:
SUMMARY OF DISCUSSION: BRITZ, Carol Frances
1808-0194897
• The issue is whether to allow Ms. Britz, a Flight Attendant
with Air Canada at Calgary International Airport, to retain her transportation
security clearance (TSC), or to cancel it in light of new information received
by Transport Canada.
• Transport Canada, Security Screening
Programs, initially granted the applicant a security clearance in 2004, renewed
every 5 years and is currently valid until September 12, 2018.
• Criminal record checks indicate that
the applicant has no criminal convictions.
• Security Screening Programs received
a report from the RCMP SIBS, dated February 5, 2015, detailing the applicant’s
association to an individual (her husband) who associates with the Hells Angels
and a known cocaine and firearms trafficker.
• The Advisory Body noted the
applicant’s lawyer mentioned that the applicant’s husband is a service manager
for Gasoline Alley Harley Davidson (GAHD), a motorcycle business, and that his
customers are varied and include members of the Hells Angels. The lawyer also
mentioned that the relationship with the Hells Angels is that of agent for
GAHD.
• The Advisory Body noted that the
applicant’s husband has taken the relationship to the next level by attending a
funeral of a Hells Angels “Hangaround”, leaving a location with a member of the
Hells Angels and also a vehicle registered to him, was observed at the Hells
Angels Southland clubhouse in Calgary during the 1st anniversary
festivities of the Southland Chapter.
• The Advisory Body noted the
applicant’s husband was observed by RCMP and a “Nomads’ support” hat and a
memorial picture of a deceased Hells Angels member was seen displayed in his
garage.
• The Advisory Body was of the opinion
that an individual would not get invited to a funeral or club house or even be
given support wear unless there would be a high level of trust, which led them
to question the applicant [sic] husband’s level of involvement with the
Hells Angels.
• The Advisory Body noted the
applicant’s husband was also observed by RCMP on different occasions, either
entering the residence of a well-known cocaine and firearms trafficker or
getting into a vehicle with a well-known cocaine and firearms trafficker.
• The Advisory Body noted the
vulnerability to airport security that is created by security clearance holders
having spouses associated to individuals who have links with organized crime or
persons with serious criminal records.
• A review of the file led the
Advisory Body to have reason to believe, on a balance of probabilities, that
she 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.
• The Advisory Body considered the
written submission provided by the applicant’s counsel; however, the submission
did not provide sufficient information to dispel the Advisory Body’s concerns.
[18]
All five voting members of the Advisory Board,
which included two members from Transport Canada's Security Screening Programs,
one member from Transportation Security and one member each from Transport
Canada's Aviation Security Operations and Marine Security Operation, signed the
following recommendation:
JUSTIFICATION/JUSTIFICATION/COMMENTS/
COMMENTAIRES:
The Advisory Body recommends cancelling the
applicant’s transportation security clearance based on the applicant’s very
close association to an individual (her husband) who associates with the Hells
Angels and a known cocaine and firearms trafficker. A review of the information
on file led the Advisory Body 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.
Furthermore, the applicant’s submission did not provide sufficient information
to dispel the Advisory Body’s concerns.
[19]
On October 13, 2015, the Minister (through his
delegate) rendered a Decision cancelling the Applicant’s Security Clearance.
The Decision largely - though not entirely - adopted the Summary of Discussion
and Recommendation of the Advisory Body as set out above at paragraph 17, as
its reasons:
The information regarding your very close
association to an individual (your husband) who associates with the Hells
Angels and a known cocaine and firearms trafficker raised concerns regarding
your judgment, trustworthiness and reliability. I note your husband works as a
manager for Gasoline Alley Harley Davidson and his customers include members of
the Hells Angels. I also note that your husband attended a funeral of a Hells
Angels “Hangaround”, went to a Hells Angels club house, and was observed by
police leaving a location with a member of the Hells Angels indicating a
relationship closer than mere business ties. I also note a “Nomad’s support”
hat and a memorial picture of a deceased Hells Angels were observed in your
husband’s garage. I further note your husband was observed by police entering
a residence of a well-known cocaine and firearms trafficker and also getting
into a vehicle with him. The ongoing and frequent interactions between your
husband and the Hells Angels, led me to believe that there would be a high
level of trust between him and the Hells Angels. I note the vulnerability to
airport security that is created by security clearance holders having spouses
associated to individuals who have links with organized crime or persons with
serious criminal records. A review of the information on file led me to
believe, on a balance of probabilities, that you 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. I considered the statement provided by your
counsel; however, the information presented was not sufficient to address my
concerns. For these reasons, on behalf of the Minister of Transport, I have
cancelled your security clearance.
[emphasis added]
[20]
This is an application for judicial review of
the Minister’s decision. The Applicant filed an affidavit in support of this
application which contains both argument and evidence not before the Minister.
The Minister asks that large portions be struck as inadmissible.
III.
Issues
[21]
In my view, the following issues arise:
1.
Whether all or some part of the Applicant’s
affidavit is inadmissible, and
2.
Whether the Minister’s decision to revoke the
Applicant’s Security Clearance is reasonable.
IV.
Admissibility of the Applicant’s Affidavit
[22] New evidence is not generally admissible on judicial review. While
there are limited exceptions, judicial review generally proceeds on the basis
of the record that was before the decision-maker, with some exceptions. As the
Federal Court of Appeal stated in Association of Universities and Colleges
of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012
FCA 22:
[18] Now before the Court
is an application for judicial review from this decision on the merits. In such
proceedings, this Court has only limited powers under the Federal Courts Act
to review the Copyright Board’s decision. This Court can only review the
overall legality of what the Board has done, not delve into or re-decide the
merits of what the Board has done.
[19] Because of this
demarcation of roles between this Court and the Copyright Board, this Court
cannot allow itself to become a forum for fact-finding on the merits of the
matter. Accordingly, as a general rule, the evidentiary record before this
Court on judicial review is restricted to the evidentiary record that was
before the Board. In other words, evidence that was not before the Board and
that goes to the merits of the matter before the Board is not admissible in an
application for judicial review in this Court. As was said by this Court in Gitxsan
Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages
144-45 (C.A.), “[t]he essential purpose of judicial review is the review of
decisions, not the determination, by trial de novo, of questions that
were not adequately canvassed in evidence at the tribunal or trial court.” See
also Kallies v. Canada, 2001 FCA 376 at paragraph 3; Bekker v. Canada,
2004 FCA 186 at paragraph 11.
[20] There are a few
recognized exceptions to the general rule against this Court receiving evidence
in an application for judicial review, and the list of exceptions may not be
closed. These exceptions exist only in situations where the receipt of evidence
by this Court is not inconsistent with the differing roles of the judicial
review court and the administrative decision-maker (described in paragraphs
17-18, above). In fact, many of these exceptions tend to facilitate or advance
the role of the judicial review court without offending the role of the
administrative decision-maker. Three such exceptions are as follows:
(a) Sometimes this Court will
receive an affidavit that provides general background in circumstances where
that information might assist it in understanding the issues relevant to the
judicial review: see, e.g., Estate of Corinne Kelley v. Canada,
2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General),
2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board)
(1999), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the
affidavit does not go further and provide evidence relevant to the merits of
the matter decided by the administrative decision-maker, invading the role of
the latter as fact-finder and merits-decider. In this case, the applicants
invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are
necessary to bring to the attention of the judicial review court procedural
defects that cannot be found in the evidentiary record of the administrative
decision-maker, so that the judicial review court can fulfil its role of
reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v.
Keeprite Products Ltd.
(1980) 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was
bribing an administrative decision-maker, evidence of the bribe could be placed
before this Court in support of a bias argument.
(c) Sometimes an affidavit is
received on judicial review in order to highlight the complete absence of
evidence before the administrative decision-maker when it made a particular
finding: Keeprite, supra.
[23]
The Respondent takes exception to several parts
of the Affidavit, setting out the objected to evidence. The Minister’s
objections are italicized, and my comments on each follow the Minister’s
objection:
A. The Applicant’s assertion of her belief that she has never
been suspected of a crime. In my view, this is a fact which could have been
put into the Response Letter. Though it is of little probative value, it does
not qualify under the background exception.
B. The Applicant’s assertion that cancellation of her Security
Clearance effectively ends her career as a flight attendant. In my view,
this also could have been put into the Response Letter. Additionally, this
evidence is not necessary as that consequence would be obvious to the Minister
as it is to the Court.
C. The Applicant’s assertion that some of the locations where
her Husband was observed were unclear to her, thereby failing to give her a
meaningful opportunity to present her response [Kaczor v. Canada
(Transport), 2015 FC 698] and depriving her of procedural fairness. I
note that in many cases, responses were given in the Response Letter to
similarly undetailed allegations and the Applicant did, in fact, provide a
response to this RCMP observation. Her concern as to specificity could have
been raised in the Response Letter and, furthermore, the Applicant did not
request further particulars despite the invitation contained in the PFL to
contact and discuss her concerns with Transport Canada staff.
D. The Applicant’s assertion that certain Nomads gear and hats,
etc., were available on the internet. In my view, this is a matter that
could easily have been added to the Response Letter but for whatever reason was
not. In any event, the Applicant had advised that the gear was given to her
Husband as “a gift from his customer.” If that was not from a Hells Angels
member, the time to say so was in the Response Letter.
E. The Applicant’s assertion that she had no reason to think
that her Husband had any connection with the Hells Angels, or any other
criminals, that went beyond his business connection with GAHD customers. In
my view, this could readily have been added to the Response Letter, but was
not.
F. The Applicant’s addition of another reference letter, from a
different RCMP officer, concerning the Husband’s professionalism and general
character. In my view, this letter could have been added to the two
reference letters which she did file with her Response and which were to the
same effect.
[24]
In a word, therefore, I find the objections
valid.
[25]
Much of the Affidavit contains complaints
concerning alleged lack of notice leading to breach of procedural fairness and
errors related to various conclusions set out in the Decision. In my view,
these are all arguments relating to errors in the Minister’s decision, which
belong in the Applicant’s memorandum.
[26]
I wish to add that the Affidavit, even if
admitted, would add little, if anything, to the Applicant’s case. The only
possible exceptions are paragraphs 74 and 75, which deal with the fact the
Minister did not seek additional information after receiving the Response
Letter. With respect, this is not a valid issue of procedural fairness; it is
the Applicant who had the onus to establish her claim for the renewal of her
Security Clearance.
[27]
The Affidavit is therefore inadmissible and as a
consequence, I may not consider it.
V.
Relevant Provisions
[28]
The granting or cancellation of Security
Clearance is governed by the Act and the Regulations: Henri v
Canada (Attorney General), 2016 FCA 38, leave to appeal refused, 36944 (15
September 2016) [Henri].
[29]
The applicable provisions from the Act
and Regulations are set out in the Appendix to these reasons. In
summary, the Act gives the Minister the authority to, among other
things, cancel a Security Clearance for the purposes of the Act.
Pursuant to the Regulations, only those with a valid Security Clearance
may be issued a Restricted Area Identity Card [RAIC]. The RAIC grants access to
restricted areas of the airport.
[30]
It is a given that the Applicant, a flight
attendant with Air Canada, requires a RAIC to do her job.
[31]
Ministerial discretion to grant or cancel a RAIC
under s. 4.8 of the Act is exercised pursuant to the Policy. The
most relevant sections of the Policy, namely sections I.4 (and in
particular I.4(4)) and I.8, are set out below; other relevant sections are
included in the Appendix.
Transportation
Security Clearance Program Policy – Aviation (excerpt) /
Programme d'habilitation de sécurité
en matière de transport aérien (excerpt)
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Objective
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Objectif
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I.4 The
objective of this Program is to prevent the uncontrolled entry into a
restricted area of a listed airport by any individual who
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I.4
L'objectif de ce programme est de prévenir l'entrée non contrôlée dans les
zones réglementées d'un aéroport énuméré dans le cas de toute personne:
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1. is known
or suspected to be involved in activities directed toward or in support of
the threat or use of acts of serious violence against persons or property;
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1. connue ou
soupçonnée d'être mêlée à des activités relatives à une menace ou à des actes
de violence commis contre les personnes ou les biens;
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2. is known
or suspected to be a member of an organization which is known or suspected to
be involved in activities directed toward or in support of the threat or use
of acts of serious violence against people or property;
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2. connue ou
soupçonnée d'être membre d'un organisme connu ou soupçonné d'être relié à des
activités de menace ou à des actes de violence commis contre les personnes ou
les biens;
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3. is
suspected of being closely associated with an individual who is known or
suspected of
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3.
soupçonnée d'être étroitement associée à une personne connue ou soupçonnée
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- being involved in activities referred to in paragraph (1);
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- de participer aux activités mentionnées à l'alinéa (1);
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- being a member of an organization referred to in paragraph
(2); or
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- d'être membre d'un organisme cité à l'alinéa (2); ou
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- being a member of an organization referred to in subsection
(5) hereunder.
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- être membre d'un organisme cité à l'alinéa (5).
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4. the Minister reasonably
believes, on a balance of probabilities, may be prone or induced to
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4. qui, selon le ministre et les
probabilités, est sujette ou peut être incitée à:
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- commit an act that may
unlawfully interfere with civil aviation; or
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- commettre un acte d'intervention
illicite pour l'aviation civile; ou
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- assist or abet any person
to commit an act that may unlawfully interfere with civil aviation.
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- aider ou à inciter toute autre
personne à commettre un acte d'intervention illicite pour l'aviation civile.
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[emphasis added]
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[soulignements ajoutés]
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5. is known or suspected to be or
to have been a member of or a participant in activities of criminal
organizations as defined in Sections 467.1 and 467.11 (1) of the Criminal
Code of Canada;
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5. est connu ou soupçonné d'être ou
d'avoir été membre d'une organisation criminelle ou d'avoir pris part à des
activités d'organisations criminelles, tel que défini aux articles 467.1 et
467.11 (1) du Code criminel du Canada;
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6. is a member of a terrorist group
as defined in Section 83.01 (1)(a) of the Criminal Code of Canada.
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6. est membre d'un groupe
terroriste, tel que défini à l'alinéa 83.01(1)(a) du Code criminel du Canada.
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The Advisory Body
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L'organisme consultatif
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I.8 An Advisory Body shall review
applicant's information and make recommendations to the Minister concerning
the granting, refusal, cancellation or suspension of clearances.
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I.8 Un Organisme consultatif sera
tenu d'étudier les renseignements des demandeurs et de formuler des
recommandations au ministre concernant l'octroi, le refus, l'annulation ou la
suspension d'une habilitation.
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Cancellation or Refusal
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Annulation ou refus
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II.35
1. The Advisory Body may recommend
to the Minister the cancellation or refusal of a security clearance to any
individual if the Advisory Body has determined that the individual’s presence
in the restricted area of a listed airport would be inconsistent with the aim
and objective of this Program.
|
II.35
1. L'Organisme consultatif peut
recommander au ministre de refuser ou d'annuler l'habilitation d'une personne
s'il est déterminé que la présence de ladite personne dans la zone
réglementée d'un aéroport énuméré est contraire aux buts et objectifs du
présent programme.
|
|
2. In making the determination
referred to in subsection (1), the Advisory Body may consider any factor that
is relevant, including whether the individual:
|
2. Au moment de faire la
détermination citée au sous-alinéa (1), l'Organisme consultatif peut
considérer tout facteur pertinent, y compris:
|
|
1. has been convicted or otherwise
found guilty in Canada or elsewhere of an offence including, but not limited
to:
|
1. si la personne a été condamnée ou
autrement trouvé coupable au Canada ou à l'étranger pour les infractions suivantes:
|
|
1. any indictable offence
punishable by imprisonment for more then 10 years,
|
1. tout acte criminel sujet à une
peine d'emprisonnement de 10 ans ou plus;
|
|
2. trafficking, possession for the
purpose of trafficking or exporting or importing under the Controlled Drugs
and Substances Act,
|
2. le trafic, la possession dans le
but d'en faire le trafic, ou l'exportation ou l'importation dans le cadre de
la Loi sur les drogues et substances contrôlées;
|
|
3. any offences contained in Part
VII of the Criminal Code - Disorderly Houses, Gaming and Betting,
|
3. tout acte criminel cité dans la
partie VII du Code criminel intitulée « Maison de désordre, jeux et paris »;
|
|
4. any contravention of a provision
set out in section 160 of the Customs Act,
|
4. tout acte contrevenant à une
disposition de l'article 160 de la Loi sur les douanes;
|
|
5. any offences under the Security
Of Information Act; or
|
5. tout acte stipulé dans la Loi sur
les secrets officiels; ou
|
|
6. any offences under Part III of
the Immigration and Refugee Protection Act;
|
6. tout acte stipulé dans la partie
III de la Lois sur l'immigration et la protection des réfugiés.
|
|
3. [sic] is likely to become
involved in activities directed toward or in support of the threat or use of
acts of serious violence against property or persons.
|
3. si elle possède une mauvaise
réputation en matière de crédit et qu'elle occupe un poste de confiance; ou
|
|
[Blank/En
blanc]
|
4. qu'il est probable qu'elle
participe à des activités directes ou en appui à une menace ou qu'elle se livre
à des actes de violence sérieuse contre la propriété ou des personnes.
|
VI.
Standard of Review
[32]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the jurisprudence
has already determined in a satisfactory manner the degree of deference to be
accorded with regard to a particular category of question.” The standard
of review for assessing an administrative decision to cancel or withhold an
airport Security Clearance has been determined to be reasonableness: Clue v
Canada (Attorney General), 2011 FC 323 at para 14 [Clue]; Henri,
above at para 16; Mitchell v Canada (Attorney General), 2016 FCA 241at
para 5.
[33]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
VII.
Jurisprudence on cancellation of such security
clearances
[34]
It is established that the Advisory Body and the
Minister have specialized expertise and that the Minister’s decisions are
entitled to a high degree of deference: Lavoie v Canada (Attorney General),
2007 FC 435 at para 17; Fontaine v Transport Canada Safety and Security,
2007 FC 1160 [Fontaine]. The Minister is entitled to err on the side of
public safety: Brown v Canada (Attorney General), 2014 FC 1081 at para
71; Yee Tam v Canada (Transport), 2016 FC 105 at para 16. Further,
access to restricted areas in Canadian airports is a privilege, not a right: Fontaine,
above at para 78; Clue, above at para 20. As noted already, the
Applicant has the onus of establishing his or her entitlement to a Security
Clearance.
[35]
I agree with and accept my colleague Justice
LeBlanc’s recent summary of the Court’s jurisprudence generally, as set out in Sargeant
v Canada (Attorney General), 2016 FC 893 [Sargeant]:
26 In security clearance cases, this
Court has stated three important principles.
27 First, section 4.8 of the Act
confers on the Minister a broad discretion to grant, suspend or cancel a
security clearance, which empowers him to take into account any relevant factor
(Thep-Outhainthany v Canada (Attorney General), 2013 FC 59, at para 19,
425 FTR 247 [Thep-Outhainthany]; Brown v Canada (Attorney General),
2014 FC 1081, at para 62 [Brown].
28 Second, aviation safety being an
issue of substantial importance and access to restricted areas being a
privilege, not a right, the Minister, in exercising his discretion under
section 4.8, is entitled to err on the side of public safety which means that
in balancing the interests of the individual affected and public safety, the
interests of the public take precedence (Thep-Outhainthany v Canada, at
para 17; Fontaine v Canada (Transport), 2007 FC 1160, at paras 53, 59,
313 FTR 309 [Fontaine]; Clue v Canada (Attorney General), 2011 FC
323, at paragraph 14). Rivet v Canada (Attorney General), 2007 FC 1175,
at para 15, 325 FTR 178).
29 Third, in such matters the focus
is on the propensity of airport employees to engage in conduct that could
affect aviation safety which requires a broad and forward-looking perspective.
In other words, the Minister "is not required to believe on a balance of
probabilities that an individual "will" commit an act that
"will" lawfully interfere with civil aviation or "will"
assist or abet any person to commit an act that "would" unlawfully
interfere with civil aviation, only that he or she "may"" (MacDonnell
v Canada (Attorney General), 2013 FC 719, at para 29, 435 FTR 202 [MacDonnell];
Brown, at para 70). As such, the denial or cancellation of a security
clearance "requires only a reasonable belief, on a balance of
probabilities, that a person may be prone to or induced to commit an act that
may interfere with civil aviation" (Thep-Outhainthany, above at
para 20). Any conduct which causes to question a person's judgment, reliability
and trustworthiness is therefore sufficient ground to refuse or cancel a
security clearance (Brown, at para 78; Mitchell v Canada (Attorney
General), 2015 FC 1117, at paras 35, 38 [Mitchell]).
VIII.
Discussion and Analysis
[36]
This Decision must be set aside because it is
unreasonable. It is unreasonable for several reasons considered as a whole.
The finding that the Applicant “may be prone or induced”
Discussion of “prone” and “induced”
[37]
To begin this discussion it is necessary to
consider the meaning of “prone” and “induced”. The Minister cancelled the Applicant’s
Security Clearance stating:
A review of the information on file led me
to believe, on a balance of probabilities, that you 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.
[emphasis added]
[38]
In making this finding, the Minister repeated
word for word the language found in paragraph I.4(4) of the Policy,
which states:
Objective
I.4 The objective of this Program is to
prevent the uncontrolled entry into a restricted area of a listed airport by
any individual who
[…]
4. the Minister reasonably believes, on a
balance of probabilities, may be prone or induced to
• commit an act
that may unlawfully interfere with civil aviation; or
• assist or abet
any person to commit an act that may unlawfully interfere with civil aviation.
[emphasis
added]
[39]
The underlined words in paragraph I.4(4) of the Policy
are worded disjunctively; one may be either “prone”
to do certain unlawful acts, or one may be “induced”
to do certain unlawful act, or both.
[40]
Accordingly, as I read it, the Policy’s
wording describes three different findings which the Minister may make. First,
an individual may be found to be an individual who may be prone to commit
or assist or abet an unlawful act. Secondly, an individual may be found to be
an individual who may be induced to commit or assist or abet an unlawful
act. Third, an individual may be found to be an individual who both may be
prone and induced to commit or assist or abet an unlawful act.
[41]
These three alternative findings are separate. A
fourth option for the Minister, of course, would be to renew the licence but as
he did not, I will not consider that option further.
[42]
Therefore, to cancel a Security Clearance, the
Minister, acting reasonably i.e., in a manner which is defensible in accordance
with the law per Dunsmuir, is required to decide this case on one of
these three possible bases.
[43]
It is important to determine the meaning of
prone and induced. The first step is this analysis is to consider if the words “prone” and “induced”
have the same meaning. In my view, they do not.
[44]
As a matter of interpretative first principles,
I am unable to find that ‘prone’ and ‘induced’ have the same meaning; to do so would offend
the presumption of consistent expression. As stated by the Supreme Court of
Canada in Agraira v Canada (Public Safety and Emergency Preparedness),
2013 SCC 36 [Agraira]:
81 First,
according to the presumption of consistent expression, when different terms
are used in a single piece of legislation, they must be understood to have
different meanings. If Parliament has chosen to use different terms, it
must have done so intentionally in order to indicate different meanings.
[emphasis added]
[45]
And see Saporsantos Leobrera v Canada
(Citizenship and Immigration), 2010 FC 587:
(b) The
presumption of consistent expression
[…]
51 Although it
has already been established that "dependent child" does not apply to
the IRPA, the Court also finds that the use of the "dependent child"
to interpret "child" is contrary to the presumption of consistent
expression. In Sullivan on the Construction of Statutes (5th edition, Markham,
Ont.: LexisNexis Canada, 2008), Ruth Sullivan explains this presumption in the
following terms (at pages 214-215):
It is
presumed that the legislature uses language carefully and consistently so that
within a statute or other legislative instrument the same words have the
same meaning and different words have different meanings. Another way of
understanding this presumption is to say that the legislature is presumed to
[page312] avoid stylistic variation. Once a particular way of expressing a
meaning has been adopted, it makes sense to infer that where a different
form of expression is used, a different meaning is intended.
[emphasis added]
[46]
The distinction between one who may be prone and
one who may be induced to commit unlawful acts is also supported by their
differing dictionary definitions:
Prone
•
Having an inclination to do something: Collins
Dictionary, 2016, sub verdo “prone”
<http://www.collinsdictionary.com/dictionary/english/prone_1>;
•
Likely to do, have or suffer from something: Mirriam
–Webster Online Dictionary, 2015, sub verdo “prone”
<http://www.merriam-webster.com/dictionary/prone>;
•
(prone to/to do something) Likely or liable to
suffer from, do, or experience something unpleasant or regrettable: Oxford
Dictionaries, 2016, sub verdo “prone”
<http://www.oxforddictionaries.com/definition/english/prone>.
Induced
•
(transitive verb) 1. (often foll. By an
infinitive) to persuade or use influence on; 2. To cause or bring about: Collins
Dictionary. 2016, sub verdo “induce”
<http://www.collinsdictionary.com/dictionary/english/induce>;
•
(simple definition) 1. to cause (someone
or something) to do something; 2. to cause (something) to happen or
exist; (full definition, transitive verb) 1(a). to move by persuasion or
influence; 1(b). to call forth or bring about by influence or stimulation;
2(a). effect, cause; 2(b). to cause the formation of; 3. To determine by
induction; specifically: to infer from particulars: Mirriam –Webster
Online Dictionary, 2015, sub verdo “induce”
<http://www.merriam-webster.com/dictionary/induce>;
•
(verb with object) 1. Succeed in
persuading or leading (someone) to do something; 2. Bring about or give rise
to: Oxford Dictionaries, 2016, sub verdo “induce”
<https://en.oxforddictionaries.com/definition/induce>.
[47]
In my view, on a proper analysis, an
individual's personal inclinations, their likely conduct and individual characteristics
are the primary focus in considering the issue of whether one is prone to
commit unlawful acts. However, determining whether one may be induced to
commit unlawful acts involves an assessment of additional factors in addition
to one's personal inclinations and likely conduct. Whether one may be induced
will generally involve consideration of a third party, i.e., someone else who
is inducing or leading the individual to wrongful conduct. Therefore, an
individual's associations, along with other considerations including personal
inclinations and likely conduct, are relevant in assessing whether one may be induced
to commit unlawful acts. In short, whether one may be prone focusses on the
individual applying for the Security Clearance; whether one may be induced
looks at the individual as well as the impact of a third party on that
individual. The two are qualitatively different.
[48]
This interpretation of the Policy accords
with Sargeant, although the distinction between being prone and induced
was not at issue in that case. In Sargeant the problem for the applicant
was his personal involvement in smuggling a large quantity of marijuana
and US currency into the United States. In Sargeant, the applicant was
arrested, along with another, in possession of 26 pounds of marijuana and
$353,430 in United States currency. The applicant in Sargeant
stated to US police that he knew he was smuggling marijuana and was to be paid
$200 by someone else to complete the job. During the interview, the other
individual also admitted to smuggling the marijuana and currency and stated
that he hired the applicant for $200 to assist him with the smuggling.
[49]
The Minister in Sargeant made the same
disjunctive finding as made in the case at bar. However, unlike the case
at bar, the Minister in Sargeant not only had grounds to find the
applicant may personally be prone i.e., inclined to unlawful activity
(he admitted to have acted unlawfully before), but in addition, the Minister
also had grounds to conclude that the applicant might be induced into
unlawful activity (as in fact the applicant had been before). Therefore, the
Minister’s finding was reasonable.
No evidence
the Applicant may be prone to commit unlawful activities
[50]
In my view, the proper analysis of whether the
Applicant “may be prone” asks whether this
individual Applicant has an inclination to, or is likely or inclined to commit
the unlawful acts the Policy aims to prevent. The Minister’s finding that the
Applicant “may be prone” is not supported by the
facts. It is not defensible in terms of the facts because there is no evidence
to support that finding.
[51]
Contrary to the finding of the Minister, not
only is there no evidence to support a finding that the Applicant is prone to
such illegal acts, the evidence is to the contrary: the Applicant has no such
inclination. The Applicant has a spotless personnel file, having served Air
Canada many years – at least a decade – as a flight attendant. She has no
criminal record. In my view, there is no evidence of any inclination or weakness
or susceptibility or likelihood on her part to commit, assist or abet the
unlawful activity aimed at by the Policy.
[52]
The Minister could not reasonably find that the
Applicant may be prone to commit or assist or abet such activities on this
record. That being the case, such a finding is unreasonable per Dunsmuir.
The Minister acted unreasonably in
making an ‘either/or’ finding
[53]
The Policy is written in a disjunctive form
in paragraph I. 4(4). In my respectful view, in order to cancel a Security
Clearance, a Minister acting reasonably may only make one of three possible
findings. As stated earlier, these three possible findings are: 1) that the
Applicant may be prone to commit or assist or abet unlawful activities; 2) that
the Applicant may be induced to commit or assist or abet unlawful activities;
or, 3) that the Applicant may be both prone and induced to commit or assist or
abet unlawful activities. Clearly, a finding made under either or both branches
of I.4(4), would supply a reasonable basis for the Minister to cancel a
Security Clearance.
[54]
What the Minister acting reasonably may not do
is to find disjunctively, as the Minister did here, that the Applicant may either
be prone to or induced to commit unlawful activities without actually
deciding the basis for his Decision to cancel.
[55]
Here, the Minister did not decide one way i.e.,
prone, or the other i.e., induced. In addition, the Minister did not find that
the Applicant may be both prone and induced. In my respectful view, in
failing to decide on one of the three possible bases for cancellation allowed
by the Policy in this respect, the Minister failed his duty to decide in
accordance with law. The Minister had no authority to cancel the Applicant's
clearance without deciding the basis for that cancellation.
[56]
Essentially, the Minister’s disjunctive finding
is an equivocation, not a decision. No reasons for this equivocal finding are
provided. In my respectful view, the Minister was obliged to do more than make
equivocal ‘maybe this or maybe that’ findings as done here.
[57]
The unintelligibility of the Minister’s
equivocal finding may be demonstrated in the following manner. Consider section
I.4 of the Policy, which includes 6 paragraphs, each identifying a
different class of persons whose security certificates may be cancelled. The
Minister could no more cancel a security certificate on the basis of a finding
that ‘this individual falls into either ‘class 1, or class 2, or class 3, or
classes 4, or 5, or 6’ without coming to ground on any of them, than the
Minister could cancel a certificate based on finding the Applicant fell under
either one of three possible categories in para I.4(4) without identifying which
is the basis for the Decision.
[58]
Moreover, the finding that the Applicant may be prone
to commit, or in the alternative, that she may be induced to
commit such unlawful acts is also objectionable and unreasonable because
neither the Applicant nor this Court are able to ascertain which of the three
alternative findings formed the basis of the Minister’s decision to cancel her
Security Clearance. This puts the Applicant and reviewing Court in an almost,
if not completely, impossible position of attempting to determine what is being
reviewed on judicial review: is the review on one ground, on the second ground,
or on both? Should the Applicant deal with all three possibilities, or with
only two, or with just one and, if only one, which one should she choose? This
lack of clarity leads me to conclude that the Minister must act with greater
precision particularly given the potential consequences for an applicant,
namely, the termination of what might be very lengthy and loyal service.
[59]
If the Decision was based on a finding that the
Applicant may be prone, the Decision must be set aside as made without
evidence, as explained above. Similarly, the Decision could not be reasonably
based on a finding that the Applicant may be both prone and induced, because a
finding the Applicant may be prone is not supported by the evidence. However,
if the Decision was based on a finding that the Applicant may be induced, then
other issues are engaged; while the Minister might have hypothetically acted
reasonably had the finding been one of ‘may be induced,’ the difficulty is that
no such finding was actually made.
[60]
Therefore, in my view, the Minister’s finding
was unreasonable.
Lack of Intelligibility and Transparency
[61]
In addition, I am not persuaded that the
Minister appreciated and duly considered the Applicant’s submissions in
arriving at a conclusion in this case. Thus, even if the Minister may make a
decisions on an ‘either/or’ basis without actually deciding one way or the
other (which I do not accept), I would still grant judicial review.
[62]
A failure to duly consider the submissions of
the parties is a matter going to the reasonableness of the decision: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland Nurses]; Ho v Canada (Attorney General),
2013 FC 865 [Ho]; Doan v Canada (Attorney General), 2016 FC 138. In
Ho, as my colleague Justice Harrington at para 28, states: “Dunsmuir, above, teaches us that a reasonable
decision is one which is transparent. To say that Mr. Ho’s explanations did not
contain sufficient information to address concerns is in and of itself
insufficient and opaque. From Newfoundland Nurses we learn that a
decision may be justified by an analysis of the record. However, in this case
there is no indication that Mr. Ho’s explanations were actually considered. In
these circumstances, it is not up to the Court to substitute its own opinion.
The matter must be referred back for reconsideration.” That said, a
failure of this aspect of a decision-maker’s duty also implicates the
procedural fairness of the decision: O’Grady v Bell Canada, 2015 FC
1135; Brosnan v Bank of Montreal, 2015 FC 925 [Brosnan].
In this case, it does not matter which because both directions lead to judicial
review.
[63]
Reasons are sufficient if they allow a reviewing
court to understand why the tribunal made its decision and determine if it is
within the range of acceptable outcomes set out in Dunsmuir: Newfoundland
Nurses, above at para 16.
[64]
In the case at bar, the material parts of the
Decision are taken almost word for word from the Summary of Discussion and
Recommendation of the Advisory Body. I agree the Minister may adopt the finding
of this specialized body. However, the Minister must hear and consider both the
Applicant’s case and the Advisory Body’s case. It is a core duty of administrative
decision-makers to hear both sides.
[65]
It is trite that not every issue raised by the
Applicant needs to be separately or specifically assessed by a decision-maker: Newfoundland
Nurses at para 16; Construction Labour Relations v Driver Iron Inc, 2012
SCC 65 at para 3. The issue here is that the Minister failed to adequately
hear and consider the Applicant’s submissions. This is best assessed by
reference to what was said by both the Minister and the Advisory Body and by
the Applicant.
[66]
The Minister gave notice of 8 observations
reported by the RCMP in the PFL. The Applicant responded to each with varying
degrees of detail; these responses can be seen in the excerpt provided above at
paragraph 13. While all 8 RCMP observations are carefully and specifically
addressed in the Decision, the only reference to the substance of the Applicant’s
Response is as follows:
I note your husband works as a manager for
Gasoline Alley Harley Davidson and his customers include members of the Hells
Angels.
[67]
I am not persuaded that the Minister considered
the Applicant’s submissions. This lack of consideration is evident in light of
the almost total absence of any mention of the Applicant’s submissions in the
Minister’s reasons:
•
There is no mention of the Applicant’s categorical
and uncontested denial of the Husband’s current or prior membership in the
Hells Angels;
•
There is no mention of GAHD’s ranking as the
number one Harley Davidson dealership in the country;
•
There is no reference made to the submission
that the Husband is the number one service manager in Canada, which speaks to
the importance of his job;
•
There is no reference to the various clientele
with which the Husband interacts, including not only local police but the RCMP
itself; the Minister only refers to the fact that the Husband’s customers are
members of Hells Angels;
•
The submission that the extent of the Husband’s
interactions with Hells Angels is as agent for GAHD is not referred to by the
Minister, although mentioned in the Advisory Body material.
[68]
This almost complete omission of the Applicant's
submissions in the Minister's reasons gives rise to both transparency and
intelligibility issues and implicates procedural fairness concerns.
[69]
I am further concerned by the Minister's failure
to refer to either of the two reference letters concerning her Husband, which
are substantively summarized above at paragraphs 14 and 15 of these Reasons. I
reiterate there is no need to refer to every piece of evidence. However, in my
view, these letters are material. Despite their materiality, the Minister says
nothing about either.
[70]
In essence, the Minister and Advisory Body
material evinces inadequate awareness or appreciation of the Applicant's
submissions, namely that her Husband had an important business relationship
with Hells Angels customers as agent for his employer, GAHD, in his capacity as
number one service agent in Canada working for the largest Harley Davidson
dealership in the country and that, in fact, his dealership also supplied
Harley Davidson motorcycles to both the RCMP and to the Alberta Sheriff's
Department. Instead, on this the Minister (in addition to a relatively
meaningless boilerplate
) says only:
I note your husband works as a manager for
Gasoline Alley Harley Davidson and his customers include members of the Hells
Angels.
[71] In my view, that summary of the Applicant's Response is inadequate
and is also inaccurate. The Minister's implication that the Hells Angels are
the only type of customers serviced by GAHD suggests a failure to engage with
the explanations and substantive submissions put forward, submissions that go
to the "heart of the complaint under
adjudication," as per Brosnan, above at para 28.
[72]
In my respectful view, the Minister's reasons
are impermissibly one-sided and fail to identify or address the critical
relationship advanced by the Applicant. In this sense, the Decision in the case
at bar is analogous to Ho, where the Court found the Minister's decision
did not meet the transparency standard outlined by Dunsmuir, thereby
requiring judicial review.
[73]
The Court appreciates it has a duty to review
the Decision in the context of the record and that, in some cases, the Court
may supply matters found in the record that are not explicit in the decision.: Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54 (“The board’s decision
should be approached as an organic whole, without a line-by-line treasure hunt
for error”); Driver Iron, above at para 3 (“The Board did not have to explicitly address all possible
shades of meaning of these provisions”).
[74]
The only reasonable basis on which the Minister
might have made a Decision to cancel on the facts of this case would be if the
Minister had concluded that the Husband’s dealing with the Hells Angels put the
Applicant’s employment in such jeopardy that the Applicant fell into the “may be … induced” category. I stress this option
could only arise if, contrary to my finding above, a disjunctive ‘either/or’ finding is reasonably permitted. The Court
is presented with three difficulties in allowing the decision to stand on this
basis. First, that is not what the Minister decided. The Decision did not
conclude that the Applicant may be induced. Instead, the Minister made a
disjunctive ‘either/or’ finding that the Applicant may be either prone or
induced. Second, a disjunctive finding is per se unreasonable for the
reasons set out above. And finally, to reach the result that the Applicant may
be induced by her Husband, the Minister must, of necessity, have rejected each
of the eight responses plus the two reference letters provided. While I may, in
some circumstances, supply reasons and ‘connect the
dots,’ that would entail writing reasons for why the Minister rejected
virtually all the Applicant’s responses while knowing only the end result. I
am unable to write the reasons the Minister did not write for that conclusion.
[75]
I should add that there was no argument that the
Applicant’s Charter rights were violated by the Policy, although
references were made in argument to Neale v Canada (Attorney General),
2016 FC 655 and to Reference re Marine Transportation Security Regulations,
2009 FCA 234.
IX.
Conclusion
[76]
I conclude that the Decision fails to meet the
test of reasonableness established by the Supreme Court of Canada in Dunsmuir.
It is unreasonable because it does not fall within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law. The
Decision must therefore be set aside and re-determined.
X.
Costs
[77]
Costs should follow the event and therefore the
Applicant is entitled to costs of this application. The parties shall have 15
days to make submissions on an appropriate lump sum cost award if they are
unable to agree.
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