Docket: T-340-16
Citation:
2017 FC 556
Ottawa, Ontario, June 7, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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ARUN RANDHAWA
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Applicant
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and
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CANADA
(MINISTER OF TRANSPORT)
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is a judicial review application of a
decision of the Minister of Transport [Minister], dated January 21, 2016,
denying, on reconsideration, the Applicant’s application for a marine
transportation security clearance [Security Clearance] made under the Marine
Transportation Security Regulations, SOR/2004-144 (the “Regulations”) on the ground that there are reasonable
grounds to suspect that the Applicant is in a position in which there is a risk
that he be suborned to commit an act or to assist or abet any person to commit
an act that might constitute a risk to marine transportation. According to the
Minister, this risk exists due to the Applicant’s association to two
individuals who are executive members of a criminal organisation well known to
police and known to assist in the smuggling of cocaine between the United
States and Canada and to have ties with other criminal groups such as the Hells
Angels and the Japanese mafia. These two individuals happen to be the
Applicant’s brothers.
[2]
The Applicant claims that the Minister’s
decision is unreasonable as there is no evidence upon which the Minister could have
found a reasonable suspicion that he is at risk of subornation. He contends in
this regard that given the evidence on the current status of his “associates”, the nature of his relationship with them
and his personal character, this association alone cannot be considered a
sufficient, objectively discernable factor to justify a reasonable suspicion
that he may pose a risk to marine transportation because of a risk that he may
be suborned.
II.
Background
[3]
In March 2013, the Applicant was hired as a
casual longshore worker by the British Columbia Maritime Employer’s Association
at the Port of Vancouver. In order for someone working on the premises of the
Port of Vancouver to access the Port’s restricted areas or perform certain
tasks, a Security Clearance is needed.
[4]
A few days after having been hired, the
Applicant applied for a Security Clearance. On June 23, 2014, Transport Canada
received a Law Enforcement Record Check [LERC report] from the Royal Canadian
Mounted Police [RCMP]. The LERC report stated that the Applicant had no known
criminal convictions but was identified as an active member of an Indo-Canadian
organized crime group. It also listed the law enforcement authorities’
encounters, over an eight-year period, with either the Applicant or two of his “very close associates”.
[5]
The LERC report indicated that one of those two
associates (Subject A) was believed to be an executive member of an
Indo-Canadian organized crime group involved in cross border narcotics
smuggling and that this group had been used to assist in the transportation of
cocaine from the United States [US] into Canada. The LERC report also indicated
that there was information indicating that such group was involved directly and
indirectly with the Hells Angels, the Japanese Mafia, and Chinese criminals.
The LERC report also stated that the Applicant’s other “very
close associate” (Subject B) was caught in the US with 107 kilos of
cocaine in 2008, pleaded guilty to cocaine possession and conspiracy and was
sentenced to a 60-month jail term and three (3) years of supervised release.
[6]
The Applicant was informed in a letter dated
July 10, 2014 (the “Fairness letter”) that
Transport Canada had received adverse information raising concerns regarding
his suitability to obtain a Security Clearance and that his application was
being reviewed accordingly. The information referred to in the Fairness letter
essentially mirrored that found in the LERC report. The Applicant was
encouraged to provide additional information regarding the incidents and
associations referred to in the letter, which he did on August 27, 2014.
[7]
In his response, the Applicant denied ever being
a member of any criminal organization or organized crime group and indicated
that based on the information provided in the Fairness letter, he assumed that
the two individuals referred to as “Subject A”
and “Subject B” were his brothers. He indicated
that this would be the only basis upon which he associates with them regularly,
emphasizing that he did not condone, encourage or benefit from any of their
activities. The Applicant also claimed to be committed to a pro-social life and
highlighted that he had successfully completed other security clearance
applications that enabled him to obtain a Nexus card as well as licenses for
non-restricted firearms. He denied having any knowledge of most of the
incidents listed in the Fairness letter aside from the fact that he called the
police in May 2012 to report that one of his brothers was missing.
[8]
Thereafter, a body advising the Minister, known
as the Advisory Body, studied the matter and on September 16, 2014, recommended
that the Applicant’s Security Clearance application be denied “based on a police report that identifies the applicant as an
active member of, and very closely associated to two (2) individuals that are
executive members of, an Indo-Canadian Organized Crime Group that is known to
assist in the smuggling of narcotics (cocaine) between the United States and
Canada”. The Advisory Body was of the view that an in-depth review of
the file raised “reasonable grounds to suspect that the
applicant is in a position in which there is a risk that he may be suborned to
commit an act, or to assist or abet any person to commit an act, that might
constitute a risk to marine transportation security”.
[9]
On November 18, 2014, the Minister endorsed the
Advisory Body’s recommendation and denied the Applicant’s Security Clearance
application. Then, as permitted by paragraph 517(1) of the Regulations, the
Applicant requested that the Minister reconsider his decision. In support of
his request, the Applicant submitted eight (8) reference letters in addition to
his counsel’s submissions. Again, a body advising the Minister, known as the
Office of Reconsideration, studied the matter along with an independent
security advisor appointed pursuant to paragraph 517(5) of the Regulations.
[10]
On September 16, 2015, the independent security
advisor sent her report to the Office of Reconsideration, recommending that the
Minister reconsider the decision to deny the Applicant’s Security Clearance
application. The independent security advisor found that:
a)
There is no direct, reliable evidence in the
Applicant’s file to establish that he is a member of a gang, active or
otherwise;
b)
The claim that the Applicant has “a very close association and associates himself on a daily
basis with members of a gang” can only be a reference to the Applicant
living in the same family home as the brothers who are identified as “Subject A and B” and is not supported by objectively
discernable facts;
c)
There is no factual support for the claim that
the Applicant’s brothers are Executive Members of the gang;
d)
The Applicant is credible and his explanations
to date are reasonable and they are not contradicted by objectively discernible
evidence on the case file;
e)
The Applicant has no criminal convictions or
brushes with the law;
f)
The Applicant’s accomplishments lend credence to
his submissions that his focus has been solely on education, career, community
service and a future family;
g)
The reference letters submitted support the
conclusion that the Applicant is reliable, trustworthy and possesses good
judgment and that there are no reasonable grounds to suspect that the Applicant
is vulnerable to being suborned for a purpose that might constitute a risk to
the security of marine transportation.
[11]
The Office of Reconsideration did not agree with
the recommendation of the independent security advisor. As a result, it
recommended to the Minister that the initial decision to refuse the Applicant’s
Security Clearance application be maintained. Although it agreed with the
independent security advisor that there was not enough evidence to conclude
that the Applicant is an active member of a criminal organization, the Office
of Reconsideration remained concerned over the “minimal
contact” the Applicant entertains with his two brothers. It concluded as
follows:
“Overall, the applicant has been vocal about
his ambitions and his lifestyle, which he claims, differs from his brothers’.
However, his silence on certain issues is worrisome. He has not tried to dispel
the Minister’s concerns by explaining how he will ensure he would not follow
his brothers’ steps, on the contrary, he admitted to still seeing the one who
got out of jail. We also found that he was not forthcoming when addressing the
incarceration of his younger brother.”
[12]
In a letter dated January 21, 2016, the Minister
informed the Applicant that there was still enough information before him to
conclude that there were reasonable grounds to suspect that, as per paragraph
509(c) of the Regulations, the Applicant is in a position in which there is a
risk that he be suborned to commit an act or to assist or abet any person to
commit an act that might constitute a risk to marine transportation, due to:
a)
The Applicant’s very close association to
individuals who are Executive Members of an Indo-Canadian crime group;
b)
The fact that this crime group is well known to
the police, known to assist in the smuggling of narcotics, namely cocaine,
between the US and Canada and known to have ties with other groups such as the
Hells Angels and the Japanese Mafia; and
c)
The fact that one of the individuals who the
Applicant associates with was caught with 107 kilograms of cocaine in the US
and was sentenced to 60 months of prison and three years of supervised release.
[13]
As a result, the Minister confirmed his previous
decision denying the Applicant’s Security Clearance application.
III.
Issue and Standard of Review
[14]
The sole issue to be determined in this case is
whether the Minister’s suspicion that the Applicant is at risk of subornation
because of his association with his two brothers is supportable on the basis of
the evidence that was before the Minister.
[15]
It is well-settled now that a decision denying a
Security Clearance application is to be reviewed against the standard of
reasonableness as such a decision involves fact finding and determining mixed
questions of fact and law where the facts play a dominant role (Canada
(Minister of Transport, Infrastructure and Communities) v Jagjit Singh Farwaha,
2014 FCA 56 [Farwaha], at paras 84 to 86). Therefore, as pointed out by the
Respondent, the issue in this case is not whether the Court, after having
reweighed the evidence, would have reached the same decision as the Minister
but whether the Minister’s decision falls within a range of possible,
acceptable outcomes, as dictated by the Supreme Court of Canada in Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47 [Dunsmuir].
[16]
In Farwaha, at para 92, the Federal Court
of Appeal set out the following factors as being relevant in considering the “breath of the range of reasonableness available to the
Minister” in deciding whether to grant, refuse, suspend or cancel a
Security Clearance application:
a)
The Minister’s decision is a matter of great
importance to applicants as it affects the nature of their work, their finances
and their prospects for advancement;
b)
The decision concerns security matters where
wrong decisions can lead to grave consequences;
c)
Security assessments involve some policy
appreciation and sensitive weighing of facts; and
d)
The Minister’s decision requires assessments of
risk based on whether reasonable grounds for suspicion exist.
[17]
The Federal Court of Appeal provided these
additional comments regarding the last of these four factors:
a)
Assessments of risk and whether reasonable
grounds for suspicion exist are standards that involve the sensitive
consideration of facts and careful fact-finding, tasks that normally entail a
broad range of acceptable and defensible decision-making (Farwaha, at
para 94);
b)
Assessments of risk are forward-looking and
predictive; by nature, these are matters not of exactitude and scientific
calculation but of nuance and judgment (Farwaha, at para 94);
c)
Contrary to the “reasonable
and probable grounds” standard, the “reasonable
grounds to suspect” standard is a lesser, looser, judgmental standard
based identifying “possibilities”, not finding “probabilities” (Farwaha, at para 96);
d)
While fanciful musings, speculations or hunches
do not meet the standard of “reasonable grounds to
suspect”, the “totality of the circumstances”
and inferences drawn therefrom, including information supplied by others,
apparent circumstances and associations among individuals can (Farwaha,
at para 97); and
e)
To satisfy that standard, verifiable and
reliable proof connecting an individual to an incident, as would be required to
secure a conviction or even a search warrant, is not necessary; instead, “objectively discernable facts” will suffice (Farwaha,
at para 97).
[18]
I would add to this that in assessing the
security risks, the Minister, given the substantial importance of marine
transportation safety (Farwaha, at para 16), is entitled, as he is the
context of aviation safety, to err on the side of public safety (Britz v
Canada (Attorney General), 2016 FC 1286, at para 35; Sargeant v Canada
(Attorney General), 2016 FC 893, at para 28; Thep-Outhainthany v Canada
(Attorney General), 2013 FC 59, 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).
IV.
Analysis
[19]
As I have just indicated, marine transportation
safety has been held to be a matter of substantial importance. This is
particularly the case since the attacks on the World Trade Center in New-York
on September 11, 2001. As a matter of fact, the Regulations are the product of
a security review prompted by these tragic events. So are similar enactments
for airport security (Farwaha, at para 12).
[20]
This oft-cited quote from the Reference re
Marine Transportation Security Regulations, 2009 FCA 234 [Reference MTSR],
at para 66, summarizes the broad purpose behind the Regulations:
“Canada’s long coast line and many ports,
its substantial economic dependence on international trade in goods transported
by sea in and out of Canada and, to a lesser degree, on cruise line business,
its ability to fund security measures, and its proximity to the United States,
are all factors that provide a rational explanation of why Canada has
instituted the present security clearance system.”
[21]
The Regulations focus on security threats to
public safety and the economy emanating from terrorism and organised crime (Reference
MTSR, at para 67; Farwaha, at para 19). Farwaha offers an
in-depth description of the goals the Regulations are meant to achieve and the
problems they are designed to remedy:
[16] Marine ports play a large role in
Canada’s economy. A single breach of security could result in an incident
shutting down Canada’s international marine transportation system, resulting in
losses of hundreds of millions of dollars a day, to say nothing of the ripple
effect upon economic sectors that depend on the ports. Most of all, many could
die or could be injured or maimed by the incident. See the Regulations’
Regulatory Impact Analysis Statement, Canada Gazette, Part II, vol. 138,
no. 11 at pages 920-926.
[17] For this reason, marine ports have
in place physical security measures, such as fencing, lighting, patrols, and
x-ray and radiation screening. But a single insider at a marine port can
subvert these measures: Reference re Marine Transportation Security
Regulations, supra at paragraph 23.
[18] The Security Regulations
aim to reduce the risks individuals pose to marine ports. They achieve this by
requiring those who work in security-sensitive areas to obtain a Marine
Transportation Security Clearance from the Minister. The Minister grants a
security clearance to those who do not pose an unacceptable risk to marine
transportation. Those who “pose an unacceptable security risk to marine
transportation” are screened out: Reference re Marine Transportation
Security Regulations, supra at paragraph 11.
[19] As will be seen, to some extent
the Security Regulations focus on criminal organizations and organized
crime. The concern is that those with ties to criminal organizations and
organized crime might be intimidated or coerced into performing illegal acts or
subverting security measures at marine ports. There are links between
terrorists and organized crime: Reference re Marine Transportation Security
Regulations, supra at paragraph 64. Indeed, organizations involved in organized
crime may offer their services to terrorists by aiding them in, for example,
smuggling weapons, explosives or operatives into Canada in containers: Reference
re Marine Transportation Security Regulations, supra at paragraph 64.
[22]
In pursuance of these goals, section 508 of the
Regulations requires the Minister, upon receipt of a Security Clearance
application, to conduct a number of checks and verifications in order to
determine whether the applicant poses a risk to the security of marine
transportation. These checks and verifications include a criminal record check,
a check of law enforcement files, including intelligence gathered for law
enforcement purposes, and a Canadian Security Intelligence Service indices
check.
[23]
Once that information is gathered, the Minister,
according to section 509, may then grant a Security Clearance if, in his
opinion, the information provided by the applicant and that resulting from the
checks and verifications conducted under section 508 is verifiable and reliable
and is sufficient to determine to what extent the applicant poses a risk to the
security of marine transportation. That determination is made through an
assessment of the factors listed at paragraphs 509(a) to (e). Among those
factors, the following two are relevant to the present case:
(b) whether it is known or there are
reasonable grounds to suspect that the applicant
(v) is or has been associated with an
individual who is known to be involved in or to contribute to — or in respect
of whom there are reasonable grounds to suspect involvement in or contribution
to — activities referred to in subparagraph (i), or is a member of an
organization or group referred to in any of subparagraphs (ii) to (iv), taking
into account the relevance of those factors to the security of marine
transportation;
(c) whether there are reasonable grounds to
suspect that the applicant is in a position in which there is a risk that they
be suborned to commit an act or to assist or abet any person to commit an act
that might constitute a risk to marine transportation security;
[24]
The organisations or groups referred to in
subparagraph 509(c)(v) are terrorist groups within the meaning of subsection
83.01(1) of the Criminal Code, criminal organizations as defined in
subsection 467.1(1) of the Criminal Code or referred to in subsection 467.11(1)
of the Criminal Code, or organizations “known to
be involved in or to contribute to - or in respect of which there are
reasonable grounds to suspect involvement in or contribution to - activities
directed toward or in support of the threat of or the use of, acts of violence
against persons or property”.
[25]
Here, the suspicion of the Applicant presenting
a risk of being suborned to commit an act or to assist or abet any person to
commit an act that might constitute a risk to marine transportation security,
lies with his association to his two brothers who, according to the information
that was before the Minister, are members of a crime group well-known to the
police and known to assist in the smuggling of narcotics between Canada and the
United States and to have ties with other criminal organizations.
[26]
The Applicant claims that association alone is
not sufficient to raise reasonable grounds of suspicion of subornation unless
the association raises concerns that the applicant might be intimidated or
coerced into performing illegal acts or subverting security measures at marine
ports. He contends that the totality of circumstances in this case provides no
basis, premised on objectively discernable facts, to suspect that there is an
unacceptable risk of subornation resulting from his association to his two
brothers. He says that he had no contact with his elder brother while that
brother was incarcerated in the United States between 2008 and 2012 and that he
has had minimal contact with him since his release. With respect to his younger
brother, the Applicant contends that he moved out of the family home in 2012 or
2013 and that he has maintained minimal contact with him after that and no
contact since this brother returned to jail in the summer of 2015.
[27]
According to the Applicant, the Minister’s
decision comes down to one of guilt by association, which is repugnant at law.
He claims that this is even more so in this case since his association with his
brothers is not an association by choice. He says that he did not choose his
family and that there is nothing he can do, legally, to dissociate himself from
his brothers. He adds that there is clear evidence that he is a person of
impeccable character, moral judgment and trustworthiness which does not make
him susceptible to subornation from a family member or anyone else.
[28]
As pointed out by the Applicant, innocent
associations will normally not warrant the denial of a security clearance (Reference
MTSR, at para 37-38). The Applicant contends that he never denied being
aware that his brothers were engaged in, or accused of being engaged, in
criminal activity. However, he submits that his association with them is
exactly the type of “innocent association” which
will normally not trigger a reasonable suspicion of risk of subornation.
[29]
Despite the Applicant’s counsel able argument, I
am not satisfied that the Applicant’s association with his brothers falls
within the category of “innocent associations”
as contemplated by Reference MTSR and that the Minister’s finding that
this association raises a reasonable suspicion of subornation is unreasonable.
While the Federal Court of Appeal specifically indicated in Reference MTSR
that when an applicant is unaware of a family member’s involvement in a
criminal organization such relationship would be an innocent one, it did not
include in this category situations in which the applicant knew of his
relatives’ criminal endeavours. Here, the Applicant says that he never denied
that his brothers have been engaged in, or accused of being engaged in,
criminal activities. He simply contends that one cannot pick one’s family.
While such assertion is true, unfortunately, it does not save him in the
circumstances of this case.
[30]
As the Respondent points out, a section 509
assessment is not only concerned with a review of the applicant’s character but
also with the extent to which the applicant poses a risk to the security of
marine transportation through the possibility of future intimidation or
coercion (my emphasis). In other words, such assessment is “forward-looking and predictive” (Farwaha, at
para 94). The fact that the apprehended risk of intimidation or coercion has
not materialized at the time the assessment is made is therefore irrelevant.
[31]
In such context, I find that the Applicant’s
association with his brothers provided the Minister, in the totality of
circumstances, with a rational basis for holding a reasonable suspicion of
subornation and potential risk to marine transport security as:
a)
Both brothers have been incarcerated in the last
10 years for trafficking in narcotics;
b)
Their alleged involvement with an Indo-Canadian
organized crime group specialized in the trafficking of cocaine between Canada
and the United States is not in dispute;
c)
They both lived with the Applicant, in the
family home, before being incarcerated;
d)
Albeit minimal, the Applicant does maintain
contact with the older brother while the younger brother is incarcerated;
e)
The Applicant was concerned when his older
brother went missing;
f)
The younger brother continued to live in the
family home after his arrest up until his parents denied providing any further
surety given his behavior while on bail; and,
g)
Both brothers had access to the Applicant’s car
and he to theirs and while driving one of his brother’s car in 2010, the
Applicant was stopped by the RCMP/British Columbia Combined Forces Special
Enforcement Unit, a unit that does not conduct routine traffic stops but rather
targets, investigates, prosecutes, disrupts and dismantles the organized crime
groups and individuals that pose the highest risk to public safety due to their
involvement in gang violence.
[32]
In addition, the record shows that the Office of
Reconsideration expressed concerns over the Applicant’s ignorance of the details
of his brothers’ arrests. As the Respondent points out, this reasonably
suggests either naivety or willful blindness on the part of the Applicant,
especially regarding the older brother who spent 60 months in jail in the
United States for possession of more than 100 kilograms of cocaine. In other
words, the Applicant may not have been as forthcoming as he claims to have been
in respect to his brothers’ arrests, which raises additional concerns.
[33]
This Court has recognized on many occasions that
it is reasonable to conclude that there is a risk to marine or air transport
security because of a person’s associations (Russo v Canada (Minister of
Transport, Infrastructure and Communities), 2011 FC 764, at para 84; Farwaha,
at para 97; Sidhu v Canada (Citizenship and Immigration), 2016 FC 34, at
para 20; Brown v Canada [Attorney General], 2014 FC 1081, at para 74; Fontaine
v Canada (Transport Canada Safety and Security), 2007 FC 1160, at para 7; Neale
v Canada (Attorney General), 2016 FC 655, at para 70).
[34]
Recently, in Wu v Canada (Attorney General),
2016 FC 722 [Wu], the applicant’s airport security clearance was cancelled
based on her continued association with her ex-husband who was a full patch
member of the Hell’s Angels. The evidence before the Minister was that the sole
basis of that association was a court order concerning the custody of their
children and, that therefore, such association was not voluntary. The evidence
showed that the applicant had taken considerable steps to distance herself from
her ex-husband. However, it also showed that in the latter part of their
marriage, Ms. Wu was aware that her ex-husband was pursuing membership with the
Hell’s Angels and presumably, as is the case here, that he was involved in a
criminal lifestyle (Wu, at para 27).
[35]
The Chief Justice found that the decision to
cancel Ms. Wu's security clearance was reasonable in the circumstances of the
case. He held that the fact Ms. Wu's ongoing interaction with her ex-spouse may
not be voluntary, and may be limited by the terms of the custody order, it did
not negate or contradict the fact that her ex-husband will continue to have
regular and ongoing opportunities to intimidate her and to attempt to induce
her (Wu, at para 29).
[36]
The Applicant claims that contrary to Wu,
there is no evidence here that there has been any attempt by his brothers to
intimidate or induce him. However, as I indicated previously, risk assessments
under section 509 of the Regulations, as is the case in the airport security
context, are forward-looking and predictive. As pointed out by the Respondent,
the relationship between brothers, because of its special nature, bears more
scrutiny than a relationship between acquaintances. Here, despite not condoning
his brothers’ lifestyles, the Applicant does maintain some contact with them.
[37]
Given the seriousness of the brothers’ criminal
activities and the relevance of these activities to the security of marine
transportation, I am of the view that the Minister could reasonably form the
view, in a forward-looking and predictive perspective, that because of his
association to his brothers, there were reasonable grounds to suspect that
there is a risk that the Applicant is in a position in which there is a risk
that he be suborned to commit an act or to assist or abet any person to commit
an act that might constitute a risk to marine transportation.
[38]
According to Farwaha, the thrust of
section 509 is that a security clearance should only be granted when the
Minister is sure, on the basis of reliable and verifiable information, that the
Security Clearance applicant poses no risk to marine security, which means that
“there must be no doubt on the matter” (Farwaha,
at para 69). Again, the Minister is entitled to err on the side of safety given
the “catastrophic harm, both economic and human”
threats to marine and air transportation security can cause (Farwaha, at
para 13). Here, I find that the Minister could reasonably entertain a doubt on
the matter and that this doubt is sustainable on objectively discernable facts.
[39]
Finally, the Applicant takes issue with the fact
that both the Office of Reconsideration and the Minister did not share the
independent security advisor’s conclusions. First, neither the Office of
Reconsideration nor the Minister was bound by the independent security advisor’s
report. According to paragraph 517(5) of the Regulations, the independent
security advisor is just that: an advisor. Second, as noted by the Office of
Reconsideration, one of the independent security advisor’s key findings, the
one that there was no objectively discernable evidence that the Applicant’s
brothers were members, let alone executive members, of an Indo-Canadian
organized crime group, could reasonably be questioned as the Applicant never
denied that his brothers were members of this group, his counsel even stating
that the Applicant believed that the alleged members of the organized crime
group mentioned in the Fairness Letter were family members. In any event, the
Minister was entitled to prefer the LERC report to the report of the independent
security advisor (Singh Kailley v Canada (Transport), 2016 FC 52, at
para 29 [Kailley]).
[40]
I note too that in Farwaha, the Office of
Reconsideration, an advisory body meant to provide independent advice to the
Minister (Farwaha, at para 110), recommended that the Minister
reconsider his cancellation of the applicant’s Security Clearance (Farwaha,
at para 114). Nonetheless, the Minister upheld his decision and cancelled the
applicant’s Security Clearance on the advice of another advisory body, the Program
Review Board. Overall, the Minister’s decision in Farwaha was held to be
reasonable and procedurally fair.
[41]
The Applicant also takes issue with the Office
of Reconsideration’s view that he did not explain how he will ensure that he
will not be influenced by his brothers with whom he admitted to still being in
contact. He says that he was never asked that question during the
reconsideration process, or at any other stages of the security clearance
process for that matter, resulting in being imposed an excessive burden of
proof by the Office of Reconsideration.
[42]
I am afraid this argument cannot succeed as the
onus was on him, and not the Minister, to demonstrate that he may not pose a
risk to the security of marine transportation (Kailley, at para 20). As stated
by the Chief Justice in Wu, the burden is not on the Minister to further
justify the very plausible inferences to be drawn from the information
available. That onus is on the Security Clearance applicant to provide any
additional information that might eliminate the basis for any concerns
regarding the applicant's suitability to be granted a Security Clearance (Wu,
at para 46). The onus to demonstrate how he will ensure that he will not be
influenced by his brothers, again from a forward-looking perspective, was
therefore clearly on the Applicant.
[43]
There are situations where in balancing the
interests of the individual affected and public safety, the interests of the
public take precedence. To borrow from the Chief Justice’s reasons in Wu,
this is so “even where the person may have taken
considerable steps to distance himself or herself from the source of the risk
to the travelling public” (Wu, at para 1). As the Chief Justice
found it to be the case in Wu, I find that the facts of the present case
are a demonstration of one of such situation.
[44]
For all these reasons, the Applicant’s judicial
review application must fail. Given the outcome of the present proceedings,
costs are awarded to the Respondent in an all-inclusive amount set at $1,500.00,
as agreed to by the parties.
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