Docket: T-128-17
Citation:
2017 FC 832
Ottawa, Ontario, September 14, 2017
PRESENT: The
Honourable Mr. Justice Manson
|
BETWEEN:
|
|
ANDRE
LAFRAMBOISE
|
|
Applicant
|
|
and
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review,
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of
a decision made by the Director General of Aviation Security on behalf of the
Minister of Transport (the “Delegate”), to refuse to grant airport security
clearance to the Applicant, pursuant to the Aeronautics Act, RSC 1985, c
A-2.
II.
Background
[2]
The Applicant, Andre Laframboise, was employed
at the Fort McMurray International Airport from 2009-2016 (the “Airport”).
During the course of his employment, the Airport achieved international status
and therefore the Applicant was required to apply for a security clearance and
Restricted Area Identity Card (“RAIC”). The Applicant submitted his application
in April 2015, was issued a temporary pass and continued to work at the
Airport.
[3]
During the screening process, Transport Canada
received a Law Enforcement Records Check (the “LERC Report”) from the Royal
Canadian Mounted Police (“RCMP”). The LERC Report detailed a complaint made to
the RCMP by the Applicant’s former employer (the “Complainant”). The
Complainant suspected that the Applicant had defrauded it of approximately
$35,000. The complaint included the following information:
•
The Complainant supplied marine retail outlets
with materials;
•
The Applicant was employed by the Complainant
for approximately 20 years;
•
The Applicant was a branch manager for
approximately 2 years;
•
An annual audit revealed a $35,000 inventory
variance;
•
This variance amounted to 40% of inventory;
•
A normal variance was between 5-10%;
•
A witness provided a cancelled cheque and sales
slip from a purchase made at the branch managed by the Applicant;
•
The cheque was made payable to the Applicant but
should’ve been made payable only to the Complainant; and
•
The witness’ copy of the sales receipt showed
$4,600 total, but the office copy showed a sale of only $22.77.
[4]
The LERC Report stated that, following the
complaint, the RCMP obtained information from the Applicant’s bank. The
information included several cheques from the Complainant’s clients, written
directly to the Applicant, for amounts totalling approximately $38,000. The
RCMP obtained witness statements and determined that the Applicant had used the
Complainant’s inventory to do work “on the side”
and charge customers directly.
[5]
The LERC Report also stated that the RCMP
charged the Applicant with theft over $5,000; however, the charge was dismissed
in November 2011, because the file was not produced by police in time for the
trial.
[6]
On March 31, 2016, Transport Canada sent a
letter to the Applicant advising him of concerns regarding his suitability to
obtain security clearance. The letter described the information contained in
the LERC Report. The letter also encouraged the Applicant to provide additional
information about the circumstances of the incidents described in the LERC
Report, or to provide any other relevant information or explanation, including
extenuating circumstances, within 20 days.
[7]
On April 7, 2016, the Applicant responded to
Transport Canada with an email explaining that:
•
The charge was dropped because it was not true
and there was no evidence;
•
He sold lobster traps to a witness but they were
second-hand and he had done minor repairs and resold them for a profit of about
$200;
•
When the Crown discovered that the traps were
second-hand, the witness was not asked to appear;
•
At the time the charge was brought, he was able
to show that the money he received from other customers was for work done
outside of work time as well as fishing as a crew member on their boats;
•
The sales receipt in question was not in his
hand-writing nor did he know of its existence;
•
The same scenario occurred with two other
managers, and each scenario ended in the same way;
•
The inventory shortages had started over 10
years prior, and were from overseas shipment shortages that were not
investigated by management after being reported;
•
If he knew this would be an issue so long after
the charges were dropped, he would’ve kept the “mountain” of proof and
statements he had at the time; and
•
He has never been charged with anything else
other than two speeding tickets from when he was younger.
[8]
The Applicant also emailed a reference letter to
Transport Canada from the Airport’s Vice President of Operations. The letter
stated that during the Applicant’s time of employment at the Airport, “[…] he has been situated in positions that have exposed him
to confidential and sensitive information. There have been no situations or
incidents of concern and he has the complete trust and confidence of
Management. I can attest with conviction that Andre is trustworthy and see no
impediments or flags to prevent him being [granted security clearance].”
A.
The Decision under Review
[9]
On June 22, 2016, Transport Canada’s
Transportation Security Clearance Advisory Body (the “Advisory Body”)
recommended refusing the Applicant’s security clearance. The Advisory Body
noted:
•
The details of the LERC Report;
•
The Applicant’s submission that he only made a
profit of about $200 from the selling of lobster traps, and that the scope of
that work did not match the amount of money he received;
•
The Advisory Body felt the information did not
add up;
•
The incidents raised serious concerns regarding
the Applicant’s judgement, trustworthiness and reliability;
•
The incidents required a level of sophistication
and were deliberate, organized and premeditated; and
•
Although the charge was dismissed; the Advisory
Body was not convinced of his inculpability.
[10]
The Advisory Body concluded:
An in-depth review of the information on
file led the Advisory Body to reasonably 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.
[11]
On November 30, 2016, the final decision to
refuse the Applicant’s security clearance was made by the Delegate. She noted:
•
The details of the LERC Report;
•
The Applicant was in a position of trust while
performing the acts of theft;
•
The incident raised serious concerns regarding
the Applicant’s judgement, trustworthiness and reliability; and
•
Although the charge was dismissed, the
Minister’s Delegate was not convinced of the Applicant’s inculpability.
[12]
The Delegate concluded:
An in-depth review of the information on
file led me to reasonably 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. I
considered the statement the application provided; however, the information
presented, specifically not addressing the difference in sales receipts as
explained above was not sufficient to address my concerns.
[13]
On January 25, 2017, the Applicant applied for
judicial review of the Delegate’s decision.
III.
Issues
[14]
The issues are:
- Was the
Applicant afforded procedural fairness?
- Was the
Delegate’s decision to refuse a security clearance reasonable?
IV.
Standard of Review
[15]
As agreed to by the parties, the standard of
review on questions of procedural fairness is correctness (Clue v Canada
(Attorney General), 2011 FC 323 [Clue] at para 14). The standard of
review for the Delegate’s decision is reasonableness.
V.
Analysis
A.
Was the Applicant afforded procedural fairness?
[16]
The Applicant submits that the revocation of a
security clearance engages a higher level of procedural fairness than a
situation involving issuance. Furthermore, the Applicant submits that this
situation is analogous to a revocation, because he had been issued a temporary
pass and was performing duties at his employment with that pass. Therefore, the
Respondent was required to allow him to respond to the concerns raised and make
a decision that was not based on an erroneous finding of fact and with due
regard to the material available on review.
[17]
The Respondent submits that the level of
procedural fairness required in matters involving an application for security
clearance is minimal. Even in cases where an existing security clearance is
being revoked, the procedural safeguards are limited to the right to know the
facts alleged and the right to make representations about those facts.
Furthermore, the Applicant only held a temporary pass and is not entitled to
level of procedural fairness owed where an existing security clearance is
revoked.
[18]
In Pouliot v Canada (Transport), 2012 FC
347 [Pouliot] at paragraph 10, the Court held:
In cases in which an existing security
clearance was either being revoked or not renewed, the standard has been found
to be slightly higher, but still on the lower end of the spectrum. In Rivet
v Canada (Attorney General), 2007 FC 1175 (CanLII) at para 25, the Court
held:
With these factors in mind, I agree
with the respondent that the duty of procedural fairness in this case is more
than minimal but does not require a high level of procedural safeguards (see,
for example, DiMartino v. Minister of Transport, 2005 FC 635 (CanLII),
[2005] FCJ No 876 (FC) (QL), at paragraph 20). Thus, the procedural
safeguards available to the applicant in this case are limited to the right to
know the facts alleged against him and the right to make representations about
those facts. These procedural guarantees do not include the right to a
hearing.
[Emphasis added]
[19]
Therefore, the Applicant was entitled to know
the facts alleged against him and the right to make representations about those
facts. After allowing the Applicant to respond, the Delegate only had to render
a decision that was not based on an erroneous finding of fact made in a
perverse or capricious manner or without regard for the material before her (Motta
v Canada (Attorney General), 2000 CanLII 14801 (FC) at para 13).
[20]
The Applicant was advised in the letter dated
March 31, 2016, that there were concerns regarding his suitability to obtain
security clearance. The letter set out the details of the LERC Report. The
Applicant was afforded an opportunity to respond and did respond via the email
dated April 7, 2016, as well as the reference letter. In the letter dated November
30, 2016, the Delegate made it clear in her reasons that she considered the
Applicant’s explanations and found them inadequate to convince her of his
inculpability.
[21]
I find that the Applicant was afforded
procedural fairness.
B.
Was the Delegate’s decision to refuse a security
clearance reasonable?
[22]
The Applicant submits that the Delegate’s
decision was unreasonable. He argues that the evidence provided by the RCMP was
presumed to be reliable and contradictory evidence was ignored, that the
Delegate failed to consider the reference letter, and that the basis for the
decision is unintelligible because the Delegate made an equivocal “either/or” finding.
[23]
The Respondent submits that the Delegate
reasonably refused to grant the security clearance. The Delegate was entitled
to prefer the evidence of the RCMP and find the Applicant’s explanation
insufficient. Further, the Delegate’s reasons did not need to refer to every
piece of evidence and the reference letter was not highly relevant to the
Delegate’s analysis. Finally, the basis for the decision is clear: suspected
involvement in a theft is a reasonable basis for concern regarding judgement,
reliability and trustworthiness.
[24]
In my opinion, the Respondent’s first two
arguments fail. First, the Delegate unreasonably relied on the LERC Report to
the extent that she stated the Applicant had committed the theft, and this
raises concerns about her state of mind when reviewing the Applicant’s file.
Second, the reference letter speaks directly to the Applicant’s character and
it was unreasonable for the Delegate to not address this at all in her reasons.
[25]
For these reasons, the Delegate’s decision was
unreasonable. While counsel for the parties directed my attention to apparently
conflicting decisions concerning the Applicant’s argument related to ambiguity
surrounding the disjunctive decision of whether the Applicant was induced or
prone to commit or assist or abet an unlawful act (the “either/or”
argument) (Britz v Canada (Attorney General), 2016 FC 1286; and Ng v
Canada (Attorney General), 2017 FC 376), it is unnecessary to consider
whether the Delegate’s “either/or” finding is a
reviewable error.
(1)
The Delegate’s Reliance on the LERC Report
[26]
The Applicant submits that the Delegate’s
decision was unreasonable because the evidence provided by the RCMP was
presumed to be reliable and contradictory evidence was ignored.
[27]
The Respondent submits that the Delegate was
entitled to prefer the evidence of the RCMP and find the Applicant’s
explanation insufficient.
[28]
In my opinion, the Delegate was entitled to rely
exclusively on the LERC Report, but only to the extent that it raised concerns
about the Applicant. The Delegate erred by stating that the Applicant had
committed the theft when in fact there is no evidence to support such a finding:
this raises concerns about her state of mind and a possible apprehension of
bias when reviewing the Applicant’s file.
[29]
The Minister’s exercise of discretion in
granting security clearance has been reviewed by this Court on many occasions.
In Sargeant v Canada (Attorney General), 2016 FC 893 [Sargeant]
at paragraphs 26-29, the Court summarized three principles from the
jurisprudence:
a)
Section 4.8 of the Aeronautics Act confers
on the Minister broad discretion and empowers him to take into account any relevant
factor when granting, suspending or cancelling a security clearance.
b)
The Minister, in exercising his discretion under
section 4.8, is entitled to err on the side of public safety rather than the
interests of the affected individual.
c)
In such matters, the focus is on the propensity
of airport employees to engage in conduct that could affect aviation safety. 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. Any conduct
which causes the Minister to question a person’s judgment, reliability and
trustworthiness is therefore sufficient ground to refuse or cancel a security
clearance.
[30]
In exercising this broad discretion, the
Delegate was entitled to rely on the LERC Report. In Singh Kailey v Canada
(Transport), 2016 FC 52 at paragraph 29, the Court stated:
This Court has held that information
obtained from the RCMP is sufficient for the purposes of the checking process
of a security clearance (Fontaine v Canada (Transport), 2007 FC 1160
(CanLII) at para 75 [Fontaine]). Moreover, this Court has held that the
Minister may rely exclusively on a LERC Report or RCMP report to assess whether
an applicant should be granted a security clearance (Brown v Canada
(Attorney General), 2014 FC 1081 (CanLII) at para 65; Henri v Canada
(Attorney General), 2014 FC 1141 (CanLII) at para 40).
[31]
The Delegate was under no obligation to verify
or cross-check the accuracy of the information contained in the LERC Report (Sargeant,
at para 31). Furthermore, it was not necessary for a criminal conviction to be
made in respect of the underlying criminal charge in order for the allegations
to be relevant to the Delegate’s decision (Clue, at para 20).
[32]
Despite the broad discretion of the Delegate
described in the cases above, the Delegate had no reasonable basis to make a
finding of theft based on the concerns raised in the LERC Report.
[33]
In her reasons for decision, the Delegate
states:
I also note that as you were the branch
manager, you were in a position of trust while performing the acts of theft.
[Emphasis added]
[34]
At best, the Delegate could have questioned
trustworthiness based on the Applicant’s course of conduct, but went further
and found he was guilty of theft – there is no justification or intelligible
rationale for this error.
[35]
The Delegate’s finding of theft also raises
concerns about the state of mind of the Delegate during her analysis. Rather
than assessing the Applicant’s character with regard to the investigation and subsequent
dismissal, her statement suggests that she assessed his character under the
assumption that he committed the theft. This significantly prejudiced the
Applicant and likely made his submissions futile.
[36]
As stated above, the Delegate has broad
discretion to rely on LERC Reports, err on the side of public safety and be
satisfied by only a reasonable belief on a balance of probabilities that she
has concerns about the Applicant. However, it was unreasonable for her to find
he had actually committed theft, a fact that was not borne out by the evidence,
and this calls into question the rest of her analysis.
(2)
The Delegate’s Failure to Mention the Reference
Letter
[37]
The Applicant submits that the Delegate ignored
the reference letter from the Airport’s VP of Operations. He argues that the
Court may intervene in the fact-finding process if they conclude that the
decision–maker did not take a necessary step in weighing the evidence or did
not consider all of the evidence.
[38]
The Respondent argues that the Delegate was not
under an obligation to specifically address each piece of evidence in the file,
and the reference letter was not highly relevant to her primary concern.
[39]
I agree with the Applicant. The reference letter
spoke directly to the character of the Applicant, and this is central to the
Delegate’s analysis.
[40]
A decision-maker is not required to make an
explicit finding on each constituent element, however subordinate, leading to
its final conclusion (Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at
para 16). Nor is a decision-maker required to refer to every piece of evidence
they received that is contrary to their finding, and to explain how they dealt
with it (Hassan v Canada (Minister of Employment and Immigration) (1992),
147 NR 317 (FCA)).
[41]
However, the more important the evidence that is
not mentioned specifically and analyzed in the decision-maker’s reasons, the
more willing the Court may be to infer from the silence that the decision-maker
made an erroneous finding of fact without regard to the evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] 157 FTR
35 (FC) at para 17). In other words, the decision-maker’s burden of explanation
increases with the relevance of evidence in question to the disputed facts (ibid
at para 17).
[42]
Here, the Delegate’s primary concern was the
Applicant’s character, that is, whether he may be prone or induced to commit an
act that may unlawfully interfere with civil aviation. The Delegate’s reasons
for decision note her “…serious concerns regarding [the
Applicant’s] judgement, trustworthiness, and reliability…”
[43]
The reference letter speaks directly to the Applicant’s
character. It states that the Applicant has the “…complete
trust and confidence of Management…” and “I can
attest with conviction that Andre is trustworthy and see no impediments or
flags to prevent him from being [granted security clearance].” It is
signed by the VP of Operations, a person of significant importance at the
Airport, who appears to be speaking for Airport management as a whole. These
are individuals who have worked directly with the Applicant during his six-years’
of employment in the very position he now requires clearance to maintain.
[44]
Therefore, it was unreasonable for the Delegate
to not mention the letter in her reasons. It speaks directly to the Applicant’s
character and therefore was highly relevant to her primary concern and final decision.
VI.
Conclusion
[45]
The Delegate’s decision lacks justification,
transparency and intelligibility. The Delegate erred in finding that the
Applicant had performed the act of theft. That finding calls into question her
state of mind when assessing the Applicant’s character. Furthermore, her
reasons failed to mention evidence that was highly relevant to her primary
concern. For those reasons, her decision was unreasonable and must be sent back
for reconsideration.
Email this Content