Docket: T-1256-16
Citation:
2017 FC 271
Ottawa, Ontario, March 10, 2017
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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OSMAN MOHAMED
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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 dated July 12, 2016, [Decision] made by the Director General of
Aviation Security acting as the delegate of the Minister of Transport
[Minister] to cancel the transportation security clearance [TSC] of Mr. Mohamed
at the Lester B. Pearson International Airport.
[2]
For the reasons that follow, I find there was no
procedural unfairness by the Minister and the Decision is reasonable.
Considering the broad discretion given to the Minister by Parliament, the
Decision falls within the range of possible, acceptable outcomes defensible on
the facts and law. The application will be dismissed.
II.
Background Facts
[3]
Mr. Mohamed worked for Servisair Inc. as a
Customer Service Specialist handling baggage. In that capacity, he required
access to the restricted areas of the airport. To receive such access, he had
to periodically obtain a TSC, after which he was given the necessary approval
and access privileges via a restricted area identity card [RAIC]. The
Transportation Security Clearance Program Policy [TSCPP] requires that a new
security clearance application must be submitted, and a renewal of the TSC and
RAIC obtained, at least once every five years.
[4]
Mr. Mohamed first received a RAIC in 2004; it
was renewed in 2009. At the time of the 2009 renewal, Transport Canada was
aware through a Canadian Police Information Centre [CPIC] check that Mr.
Mohamed had been charged with uttering threats, but that the charges were
withdrawn. Transport Canada did not have access to any details regarding the
withdrawn charge and Mr. Mohamed’s TSC was renewed.
[5]
Later that year, Transport Canada entered into a
memorandum of understanding with the Royal Canadian Mounted Police [RCMP] to
have the RCMP conduct enhanced background checks, across a variety of law
enforcement databases, for security clearance applicants.
[6]
On June 27, 2014, Mr. Mohamed was again required
to renew his TSC and RAIC. He prepared and submitted the necessary paperwork.
The RCMP then conducted a bulk query of the relevant databases on July 8, 2014.
That query provided information indicating a more in-depth review of the
databases and a formal report was required.
[7]
On September 8, 2015, the RCMP provided
Transport Canada with a Law Enforcement Records Check [LERC] report, which
provided details of three incidents involving Mr. Mohamed and the police. In
two of the incidents, criminal charges were laid but ultimately were withdrawn.
In the third incident, no charge was laid after Mr. Mohamed attended at the
police station and provided a videotaped statement. Transport Canada also
received a CPIC check for Mr. Mohamed on September 15, 2015 that revealed no
criminal convictions were on file against Mr. Mohamed. While these background
checks were carried out, Mr. Mohamed’s security clearance remained in place.
[8]
As a result of the background check information,
a letter was sent on September 18, 2015, to Mr. Mohamed by the Chief of
Security Screening Programs at Transport Canada. The letter outlined the
details of the LERC report. It also indicated to Mr. Mohamed that the
information raised concerns as to his suitability to retain his security
clearance and invited him to provide additional information outlining the
circumstances of the three incidents as well as to provide any other relevant
information or explanation including any extenuating circumstances. Mr. Mohamed
was advised that the Transportation Security Clearance Advisory Body [Advisory
Body] would review the information and make a recommendation to the Minister.
The letter provided him with the website address where he could review the TSCPP
and it drew to his attention specifically section 1.4, which contains the
various grounds on which the Advisory Body might make a recommendation to the
Minister. At the end of the letter Mr. Mohamed was provided with a name and
telephone number for a person to contact should he wish to discuss the matter
further.
III.
The LERC Information
[9]
The LERC report outlined three separate
incidents:
-
in July 2006, Mr. Mohamed attempted to purchase
two Xbox 360 consoles and multiple video games at EB Games for a total cost of
$1,250. The store clerk was suspicious of the Visa card Mr. Mohamed used, and
upon making inquiries discovered that it was a fraudulent card. Mr. Mohamed
provided his driver’s licence to the clerk but left before the police arrived,
leaving his licence behind. The police located Mr. Mohamed and he advised them
that he had found the credit card (which was in his name) at the airport. Mr.
Mohamed was arrested and charged with one count of attempting fraud and one
count of possessing a credit card obtained by crime. The report indicated the
charges did not appear to have proceeded for reasons unknown to the RCMP.
-
in July 2007, a complainant called the Toronto
Police after he said he saw Mr. Mohamed holding someone, referred to as the
victim, by the collar. When the complainant asked what was going on, Mr.
Mohamed allegedly said that the victim had disrespected him. The complainant
and Mr. Mohamed got into an argument and Mr. Mohamed threatened to shoot the
complainant; the complainant taunted Mr. Mohamed to go ahead. Mr. Mohamed
allegedly left the lobby and returned with his hands behind his back appearing
to be holding something. Mr. Mohamed then called the complainant outside. The
complainant instead returned to his apartment and notified police, who located
Mr. Mohamed in the parking lot and arrested him. No weapon was located and the
complainant suffered no injuries. The victim, who turned out to be the son of
the complainant, refused to provide a statement. Mr. Mohamed was charged with
one count of uttering threats to cause bodily harm. This charge was withdrawn
in 2008 for reasons unknown to the RCMP.
-
in January 2009, Toronto Police received
information from a theft recovery officer at a Tennessee company reporting that
a laptop, stolen in Memphis, had tracking software which indicated that it was
being used in Toronto at Mr. Mohamed’s residence. Police attended at the
residence and spoke with Mr. Mohamed’s sister, who gave police the laptop and
stated that Mr. Mohamed obtained the laptop at the airport. Mr. Mohamed
subsequently attended at the police station to provide a videotaped statement.
The Tennessee company was notified by the police that the laptop had been
recovered. The police were advised to return the laptop to the rightful owner.
No charges were pursued by police for reasons unknown to the RCMP.
IV.
Mr. Mohamed’s Submissions to the Advisory Body
[10]
On September 24, 2015 Mr. Mohamed emailed
Transport Canada with his response to the LERC report explaining his side of
the story.
[11]
With respect to the credit card, he said he
found it in a payphone at the airport, and noticed it had his first and last
name; he thought he had lost it. He put it in his wallet, intending to contact
the bank but the bank was closed when his shift ended. He went to EB games,
which is located 2 blocks from his house. He said he was unaware he had taken
the wrong credit card from his wallet, and when the clerk accused him of
fraudulent activities he offered to use debit or a different card. He decided
to leave because he was caught off guard and was nervous because he was unaware
of what he had done wrong. Later that evening, the police attended at his home
and after he explained what had happened he was given a slip promising to appear
in court. He completed workshops for educating youth and cleaned offices and
bathrooms at a local community centre.
[12]
Regarding the apartment building incident, Mr.
Mohamed explained that the alleged victim had assaulted Mr. Mohamed’s cousin
and had bullied and beaten up Mr. Mohamed’s cousin for a long period of time.
He stated his cousin had lost one of one of his molars and had been robbed of
his mobile phone by the victim. He denied ever making a threat to anyone and
said he never left the scene while waiting in the parking lot for the police to
arrive. He said he was arrested because he did not call the authorities before
the complainant did. He said he had several witnesses to corroborate his story and
that neither the victim nor complainant was hurt while Mr. Mohamed had
scratches on his neck, chest and face. He also pointed out that no weapon was
involved and said the charges were dropped because the complainant discovered
his son, the victim, had assaulted and robbed Mr. Mohamed’s cousin. He added
that the phone was returned, the charges were dropped and he received an
apology from both the victim and the complainant.
[13]
As to the final incident involving the laptop,
Mr. Mohamed said that a friend had given it to him and asked him to fix it up
to help him with programs in university. Mr. Mohamed had majored in computer
networking and technical support, so he agreed to help. When his sister told
him the police had seized the laptop, he went to the police station and gave a
statement. He said his friend who gave him the laptop got it from the friend’s father,
who owned several businesses in Memphis. The friend’s father had purchased the
laptop and sent it to his son, who in turn asked Mr. Mohamed to format it and
reinstall a clean operating system with antivirus software.
[14]
Mr. Mohamed concluded his submissions by saying
he was appalled the matters had surfaced and could contribute against his
future opportunities. He took pride both in his work and in being a good
citizen who is not a violent person. He said he would never do anything to
cause harm to someone or disturb civil aviation, and although he had made
mistakes in the past he believed he had learned from them and had proven
himself to be a good person and employee. He provided his telephone number and
indicated they should not hesitate to contact him by phone or email for any
additional information.
[15]
A Security Screening Officer at Transport Canada
acknowledged Mr. Mohamed’s email. She replied that she did not have any
questions but she was not a decision maker and it was his opportunity to
provide any and all relevant information. She indicated he may also provide
written character references if he would like.
[16]
Mr. Mohamed made no further submissions; nor did
he provide any character references. On March 1, 2016, the Advisory Body met to
review his file.
V.
The Advisory Body Recommendation
[17]
The Advisory Body noted the three incidents. On
the first, it appears to have accepted that Mr. Mohamed did use the fraudulent
card, and did not comment on Mr. Mohamed’s submissions.
[18]
Regarding the incident in the apartment lobby,
the Advisory Body found that in his submissions Mr. Mohamed admitted to taking
the initiative to go to the complainant’s apartment and he acted aggressively
enough to cause the complainant to believe that Mr. Mohamed was aggressive,
acted with premeditation and caused the complainant to call the police,
believing he had a weapon.
[19]
Regarding the third incident, the Advisory Body
noted the Applicant’s submission, but questioned why his friend’s father, who
owned several businesses, would have his son’s friend fix a computer instead of
a professional.
[20]
The Advisory Body noted that at the time of
these incidents, Mr. Mohamed was in possession of a TSC. While the incidents
were dated, it found they raised serious concerns regarding Mr. Mohamed’s
judgment, trustworthiness and reliability. The Advisory Body therefore
concluded, on the balance of probabilities, that Mr. Mohamed may be prone to
commit an act, or assist or abet any person to commit an act that may
unlawfully interfere with civil aviation. While it considered Mr. Mohamed’s
submissions, those submissions “did not provide
sufficient information to dispel the Advisory Body’s concerns”.
VI.
The Decision under Review
[21]
On June 28, 2016, the Minister made the decision
to cancel Mr. Mohamed’s TSC. The Minister’s reasons were slightly different
from the Advisory Body meeting notes. She identified the issue as being whether
to allow Mr. Mohamed to retain his TSC or cancel it in light of the information
received by Transport Canada. She indicated her decision was based on a review
of the file, including the concerns drawn to Mr. Mohamed’s attention in the
initial letter, his written submissions, the recommendation of the Advisory
Body and the TSCPP. She outlined each incident very briefly as follows:
I note in July 2006, the applicant attempted
to purchase electronics with the fraudulent credit card, and left the store
before police could arrive.
I also note in July 2007, the Applicant was
involved in an altercation with another individual, where the individual was so
fearful of what he might do that they called the police.
I further note in January 2009, the
Applicant was involved in an incident regarding a stolen laptop.
[22]
The Minister noted that although the incidents
were dated they did raise serious concerns regarding his judgment,
trustworthiness and reliability. She concluded that after an in-depth review of
the information on file she reasonably believed, on a balance of probabilities,
that he 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.
[23]
The conclusion of the Minister was that she
concurred with the Advisory Body’s recommendation to cancel Mr. Mohamed’s TSC.
She indicated she considered the statement provided by Mr. Mohamed, however the
information presented was not sufficient to address her concerns.
VII.
Issues
[24]
The issues to be determined are:
A)
Was the Decision arrived at in a manner which
was procedurally unfair?
B)
Is the decision reasonable?
[25]
Issues of procedural fairness involving
cancellation of a security clearance are reviewable on a standard of
correctness. Where an existing security clearance is not being renewed, the
standard of procedural fairness is higher than when there is no existing right
being affected, however it is still on the lower end of the spectrum. The
required level of procedural fairness is limited to the right to know the facts
alleged against an applicant and the right to make representations about those
facts: Pouliot v Canada (Transport), 2012 FC 347 at paras 7 and 9-10 [Pouliot].
[26]
In determining whether the decision was
reasonable, the Minister is entitled to a large degree of deference; the
consideration of whether to cancel a TSC is highly specialized and the Advisory
Body and Minister have developed expertise in rendering such decisions: Varadi
v Canada (Attorney General), 2017 FC 155 at para 24 [Varadi].
[27]
A decision is reasonable if the decision-making
process is justified, transparent and intelligible, resulting in a
determination that falls within the range of possible, acceptable outcomes
which are defensible on the facts and law: Dunsmuir v New Brunswick, 2008
SCC 9 at para 47 [Dunsmuir].
VIII.
Positions of the Parties
A.
Was the Decision arrived at in a procedurally
unfair manner?
[28]
Counsel for Mr. Mohamed alleges the reasons
provided were inadequate, containing nothing more than bald and conclusory
statements, resulting in a breach of procedural fairness. Overall, Mr. Mohamed
says the Decision was unfair, as well as unreasonable, because the reasons do
not address why his submissions to the Advisory Body were rejected and the
Decision contains poorly copied and pasted text of two disjointed and unrelated
points made by the Advisory Body.
[29]
The Minister denies there was any procedural
unfairness in general. The Minister also points out that because there were
reasons, the Decision cannot be procedurally unfair on that ground: the
adequacy of the reasons is reviewable on a standard of reasonableness.
B.
Analysis
[30]
Mr. Mohamed’s criticism of the adequacy of the
reasons does not raise a matter of procedural unfairness. Only an absence of
reasons can be considered procedurally unfair. In that respect, the Supreme
Court has described a review of reasons as an organic exercise where the
reasons must be read together with the outcome in determining whether the
result falls within a range of possible outcomes: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14 and 22.
[31]
In the September 18, 2015 letter from Transport
Canada Mr. Mohamed was provided with much information:
-
the complete information contained in the LERC
report;
-
the right to make submissions, which he did;
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the website address where he could review the
TSCPP and to which he was specifically directed to section 1.4, containing the various
grounds upon which the Advisory Body might make a recommendation;
-
general instructions that he should outline
circumstances and provide any other relevant information or explanation, and
that the information to be reviewed would include the “criminal
charges for Uttering Threats to Cause Bodily Harm that were withdrawn”;
and
-
a telephone number at which he could contact a
person to discuss the matter.
[32]
Mr. Mohamed was given the opportunity to present
his views before the decision was reached. He was provided with the facts
alleged against him. His submissions were received and considered by the
decision maker. As a result of this, Mr. Mohamed knew the case he was to meet.
He provided his views prior to the decision and he had the opportunity,
although he did not take it, to provide further information such as character
references. All in all, Mr. Mohamed’s procedural rights as set out in the
jurisprudence and summarized in Pouliot were met.
C.
Was the Decision reasonable?
[33]
Mr. Mohamed submits the Decision does not fall
within the range of reasonable outcomes, as there was no evidence to conclude
that there is any correlation between the three incidents and his access to
restricted areas of the airport. The incidents, which were minor and dated many
years ago, have no causal connection to civil aviation therefore they should
not raise any concern as to aviation security. Relying on paragraph II.35(2)(a)
of the TSCPP, Mr. Mohamed also points out that he was not associating with a
criminal organization and there were no weapons involved in his conduct. He has
not been involved in importing contraband through the airport and there was no
dishonesty on his part. He also points out that there was no nexus between the
three incidents and his job as a baggage handler at the airport.
[34]
Mr. Mohamed also says the reasons do not show
him “how” or “why”
the Minister came to the conclusion that he was a risk to aviation security.
His submissions clarified his lack of culpability by highlighting the
withdrawal of the charges in two cases and the lack of charges laid in the
third instance. Counsel for Mr. Mohamed says the Advisory Board ignored the
explanations. For example, Mr. Mohamed denied there was ever any physical
assault in the apartment building and said he received apologies from the
complainant and the “victim”, but that was not
taken into account.
[35]
The Minister submits the Decision was reasonable,
as section 4.8 of the Aeronautics Act, RSC 1985, c A-2, provides a broad
discretion that allows the Minister to take into account any factor considered
relevant. Receiving a TSC is a privilege, not a right. When balancing the
public interest in aviation security against Mr. Mohamed’s privilege of access
to a restricted airport area the scales must tip in favour of the public
interest. The fact that the Minister’s broad discretion is forward-looking is
inherently speculative as he or she determines, on a balance of probabilities,
whether the applicant for a TSC or renewal of one “may
be prone or induced” to commit an act that may unlawfully interfere with
civil aviation. To arrive at that determination, the Minister assesses
propensities, character, trustworthiness and the judgment of an applicant,
keeping in mind the public interest in safety. The Minister says that Mr.
Mohamed is simply asking the Court to re-weigh the evidence and second-guess
the Minister.
D.
Analysis
(1)
Date of the incidents, age of Mr. Mohamed at the
time and charges withdrawn
[36]
While Mr. Mohamed says the Minister failed to
take into account the dated nature of the incidents, his young age and the fact
that there were no charges, that claim is not borne out by the evidence on the
record. Mr. Mohamed’s submissions were in the record and were specifically
acknowledged by the Advisory Body as well as the Minister. The LERC report
shows the two criminal charges were withdrawn and no charge was laid with
respect to the laptop. As to whether Mr. Mohamed was innocently in possession
of the laptop that had been reported stolen, as suggested by counsel at the
hearing, the Minister was entitled to take a different view, since the LERC
report indicated it had been reported stolen.
[37]
Mr. Mohamed’s youth at the time of the incidents
and his clean record in the intervening years was relied upon as a significant
factor in critiquing the Decision. He essentially invites me to re-weigh the
evidence and substitute my analysis for that of both the Advisory Body and the
Minister. In security clearance cases, the very broad discretion given to the
Minister and the low threshold that the Minister need only find that a person may
be induced or prone to unlawfully interfere with civil aviation warrants a
significant degree of deference: Varadi at para 24.
[38]
The Advisory Body noted that when the incidents
occurred, Mr. Mohamed was in possession of a valid TSC. It also considered
whether enough time had elapsed to demonstrate a change in his behaviour but
determined that it had not. The Minister decided that the incidents, although dated,
raised serious concerns regarding Mr. Mohamed’s judgment, trustworthiness and
reliability. The Minister may rely on the incidents in question even though
they are dated and the criminal charges did not proceed: Mangat v Canada
(Attorney General), 2016 FC 907 at para 58 [Mangat].
[39]
It is also the case that the evidence which
underlies a withdrawn charge may be sufficient to found a good-faith opinion as
to present or future conduct in the exercise of the Minister’s discretion: Thep-Outhainthany
v Canada (Attorney General), 2013 FC 59 at para 19.
[40]
The record shows that the dated nature of the
incidents and Mr. Mohamed’s young age were taken into account. The expertise of
the Advisory Body and the Minister should not be subject to second-guessing by
the Court on these facts, which support that the determination falls within the
range of possible, acceptable outcomes.
(2)
No correlation to aviation security
[41]
Mr. Mohamed argues there is no correlation
between the incidents and whether he should continue to be permitted access to
the restricted area of an airport. He says that none of the incidents involve
the kinds of activity that would indicate airport security is at risk.
[42]
In Mitchell v Canada (Attorney General),
2016 FCA 241 [Mitchell], Madam Justice Dawson addressed this correlation
argument. Mr. Mitchell had been involved in an escalating pattern of sexual
misconduct involving children. He argued that there was no correlation between
his misconduct and maintaining access to restricted areas of airports. In dismissing
the argument, Madam Justice Dawson noted that the determination of whether a
decision was reasonable depends on the context of the decision and the context
was informed by a number of factors. Those factors included not only the broad
discretion granted to the Minister but also the fact that the Minister is only
required to hold a reasonable belief, on a balance of probabilities, that a
person may be prone or induced to commit an act that may unlawfully interfere
with civil aviation as well as the inherently forward-looking predictive nature
of a risk assessment: Mitchell at para 7.
[43]
In effect, the task of the Minister is
predictive. The determination of whether to cancel or renew Mr. Mohamed’s TSC
is based on a forward-looking assessment of his character and propensities.
Review of past incidents is a common way to judge a person’s future potential
activities. A specific correlation is not required between the past activity
and possible future conduct. That is why there is a process in which the facts
are considered, a recommendation is made and a final determination occurs after
input from the person applying for the TSC. Where the past event bears a direct
correlation to aviation security, the decision will often be obvious. In other
cases, the process of review, input and determination assists the Minister in
assessing past conduct as well as any mitigating or aggravating circumstances
to come to a conclusion on the scope of the threat to aviation security. This
is necessarily a very fact-specific exercise and no general rule would be
appropriate about the specific sorts of conduct that can or cannot give rise to
a reasonable belief that a person poses an aviation security risk.
[44]
Without agreeing that there is a lack of
correlation between the past incidents and future aviation security I also note
that the determination by the Minister took into account the past activities of
Mr. Mohamed in considering whether, on a balance of probabilities, he may
pose a possible future risk to aviation security. This Court owes a significant
degree of deference to the expert opinion of the Minister. There is no evidence
that the opinion was unreasonable on the basis of this allegation by Mr.
Mohamed. The Minister believed that Mr. Mohamed could pose a risk because his previous
conduct demonstrated a lack of reliability, judgment and trustworthiness and
because he had not restrained his conduct out of consideration of the position
of trust he held as the holder of a TSC. This is an intelligible chain of
analysis linking the Minister’s findings of fact on Mr. Mohamed’s conduct to
the conclusion on his risk to aviation security.
(3)
Were Mr. Mohamed’s submissions taken into
account?
[45]
Mr. Mohamed suggests his submissions were not
considered. That is not the case. The Advisory Body and the Minister each
specifically referred to considering the submissions. On review, the Decision
does not contradict the explanations given by Mr. Mohamed. The Decision notes
that in the first incident, he attempted to make a purchase with a fraudulent
credit card and then left the premises before police arrived. The Decision does
not state that Mr. Mohamed uttered threats, but points out that in the second
incident, the altercation with the complainant was clearly serious enough, and
the complainant was fearful enough, that the complainant called the police. The
third incident is only described as “regarding a stolen
laptop”, which is accurate. If anything, the Decision tends to accept
the thrust of Mr. Mohamed’s explanations, which did not actually deny the
essence of the three incidents. The Minister simply did not agree with Mr.
Mohamed on whether inferences about Mr. Mohamed’s character should have been
drawn from the incidents in light of his explanations. The Minister is not
required to accept that Mr. Mohamed’s interpretation of his explanations show
he may not be prone or induced to commit an act that may unlawfully interfere
with civil aviation.
E.
Conclusion: the Decision was reasonable
[46]
Mr. Mohamed has now lost the only job he has
held in his adult life. He believes that he has done nothing deserving of
punishment other than a brief instance of community service; a view, based on
the face of the record, that is apparently shared by the authorities
responsible for investigating and prosecuting crime. He can object that the
Decision is unfair and ask, “does the punishment fit
the crime?” While I have sympathy for Mr. Mohamed’s situation, my task
is to determine whether the Decision is reasonable, not whether I might have decided
differently.
[47]
As set out in my analysis, having reviewed the
record, I am persuaded that the Decision is reasonable. In addition to being
described as “very broad”, the Minister’s
discretion has been referred to as “unfettered”,
enabling the Minister to consider any facts. The requirement is not that an
applicant for a TSC “will” commit an act that “will” interfere with civil aviation but rather that
an applicant “may” do so: Mangat at paras
53 and 57.
[48]
The Minister found that Mr. Mohamed’s
involvement in the incidents raised serious concerns about his judgment,
trustworthiness and reliability; attributes required to be trusted in airport
restricted areas. The outcome was based on a review of the file, including the
letter to Mr. Mohamed on September 18, 2015, and his written submissions in
reply. Although the reasons are brief, when they are considered in the context
of the record, which includes the LERC report, the Advisory Body recommendation
and Mr. Mohamed’s submissions, they indicate the grounds upon which the
Decision was reached. That Mr. Mohamed’s submissions did not overcome the other
factors does not make the Decision unreasonable.
[49]
The analysis in the Decision meets the Dunsmuir
criteria. It balances the length of time since the incidents with their
seriousness and the accompanying breach of trust that Mr. Mohamed involved
himself in incidents indicating a lack of judgment even though he had been
entrusted with a TSC. The Decision allows Mr. Mohamed to understand why his TSC
was not renewed.
[50]
The application is therefore dismissed. Costs
are awarded to the Respondent as a fixed lump sum in the amount of $750.00
payable by the Applicant.
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