Date: 20000107
Docket: T-375-99
Ottawa, Ontario, January 7, 2000
Before: Pinard J.
Between:
MARIO MOTTA,
PLAINTIFF,
- and -
ATTORNEY GENERAL OF CANADA,
DEFENDANT.
ORDER
The application for judicial review is dismissed with costs.
Certified true translation
Bernard Olivier, LL. B.
Date: 20000107
Docket: T-375-99
Between:
MARIO MOTTA,
APPLICANT,
- and -
ATTORNEY GENERAL OF CANADA,
DEFENDANT.
REASONS FOR ORDER
PINARD J.
[1] By his application for judicial review the plaintiff is asking the Court to quash a decision by the Minister of Transport dated January 20, 1999, denying him clearance for access to airport restricted areas.
Facts
[2] On November 5, 1998 the plaintiff made an application for clearance for access to airport restricted areas, specifically Dorval airport. The application was supported by fingerprints and included the information, provided by the plaintiff himself, that after being sentenced for drug trafficking on March 20, 1995 he had served his sentence in a federal penitentiary. Following his application, the plaintiff was granted temporary access clearance on certain conditions.
[3] On January 12, 1999 the Airport Restricted Area Access Clearance Review Board, responsible for making recommendations to the Minister, recommended that the latter reject the plaintiff"s application in view of his six convictions for drug trafficking, for which he had been sentenced to a total of four years" imprisonment in a federal penitentiary.
[4] On January 20, 1999 the Deputy Minister of Transport, acting for the Minister of Transport, approved this recommendation and denied the requested clearance. On February 1, 1999 J.A. LeCours, Preventive Security Director, informed the plaintiff that because of his criminal record airport restricted area access clearance had been denied by the Minister of Transport, as appears from the following letter:
[TRANSLATION]
Mario Motta
1700 Marie Clair
LaSalle, Quebec
H8N 1S1
Dear Sir:
| This is further to the application for airport restricted area clearance submitted by you at the Dorval International Airport on November 5, 1998. In accordance with section II.22(a) of the Airport Restricted Area Access Clearance Program, we have to inform you that this clearance has been denied by the Minister of Transport. This decision was taken in view of your criminal record. |
| You may appeal this decision to the Federal Court of Canada Trial Division. |
| If you wish to discuss the matter in greater detail, please contact the undersigned at (613) 990-5516. |
J.A. LeCours
Director
Preventive Security
Issues
[5] At the hearing in this Court counsel for the plaintiff stated that he was withdrawing his arguments based on the Canadian Charter of Rights and Freedoms, and simply objecting that the Minister of Transport did not give the plaintiff an opportunity to be heard on his access clearance application. Alternatively, counsel for the plaintiff argued that if there was no Order in Council the provisions cited as a basis for denying the plaintiff the requested clearance were not rules of law.
[6] The relevant legislative and regulatory provisions are the following:
| (a) section 4.7(2) and (4) of the Aeronautics Act, R.S.C. 1985, c. A-2 ("the Act"): |
| 4.7 (2) For the purposes of protecting passengers, crew members, aircraft and aerodromes and other aviation facilities, preventing unlawful interference with civil aviation and ensuring that appropriate action is taken where that interference occurs or is likely to occur, the Governor in Council may make regulations respecting aviation security.
|
4.7 (2) Pour la protection des aéronefs, de leurs passagers et équipages, des aérodromes et autres installations aéronautiques, ainsi que pour la prévention des atteintes illicites à l"aviation civile et la prise de mesures efficaces lorsque de telles atteintes surviennent ou risquent de survenir, le gouverneur en conseil peut, par règlement, régir la sûreté aérienne.
|
| (4) For the purposes described in subsection (2), the Minister may institute, maintain and carry out, at aerodromes, on aircraft and in respect of any aviation facility or service, in lieu of or in addition to the security measures instituted under subsection (2), such security measures as the Minister considers necessary for those purposes.
|
(4) Aux fins énoncées au paragraphe (2), le ministre peut prendre et mettre en oeuvre, aux aérodromes, à bord des aéronefs et à l"égard des installations ou services aéronautiques, les mesures de sûreté qu"il estime nécessaires. Ces mesures peuvent s"ajouter ou se substituer à celles visées au paragraphe (2).
|
| (b) section 4(3) of the Aerodrome Security Regulations, SOR/87-452 ("the Regulations"): |
| 4. (3) In addition to the security measures referred to in subsection (2), every aerodrome operator of an airport set out in Annex "F" of the document entitled Airport Restricted Area Access Clearance Program, published by the Department of Transport, as amended from time to time, shall institute, maintain and carry out the security measures set out in that document.
|
4. (3) En plus des mesures de sûreté visées au paragraphe (2), l"exploitant de l"aérodrome qui est un aéroport mentionné à l"annexe "F" du document intitulé Programme d"autorisation d"accès aux zones réglementées d"aéroport, publié par le ministère des Transports, compte tenu de ses modifications successives, doit prendre et mettre en oeuvre les mesures de sûreté énoncées dans ce document.
|
Analysis
[7] The Program enacted pursuant to s. 4.7(4) of the Act above and s. 4(3) of the Regulations above prohibits the operator of an aerodrome from granting a person access to a restricted area unless the latter has obtained security clearance from the Minister. The purpose of the program is defined in section I.4:
I.4
| The objective of this Program is to prevent the uncontrolled entry into restricted areas of listed airports by any individual who: |
| a) 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; or |
| b) 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; or |
| c) is suspected of being closely associated with an individual described in a) or b) of this section; or |
| d) Transport Canada reasonably believes, on a balance of probabilities, may be prone to commit an act that may unlawfully interfere with civil aviation; or |
| e) Transport Canada reasonably believes, on a balance of probabilities, may be suborned or otherwise induced . . . |
| ii) to do or omit to do anything for the purpose of aiding any person to commit; or |
| iii) to abet any person to commit; |
| any act that may unlawfully interfere with civil aviation. |
[8] In order to carry out the purpose of the Program and the aim of the Act and Regulations, checks are made by the Transport Canada Preventive Security Director on applicants for airport restricted area access clearance, the clearance consisting of the following items mentioned in section II.10(1) of the Program, namely:
a) a criminal records check;
| b) a Credit Bureau check . . . |
| c) a check of the Integrated Customs Enforcement System (ICES) . . . |
| d) a CSIS [Canadian Security Intelligence Service] indices check; and |
| e) a security assessment by CSIS for cause. |
[9] Under section II.19 of the Program, when the Transport Canada Preventive Security Director, among other things, considers that there is sufficient information to consider recommending denial of clearance, an Airport Restricted Area Access Clearance Review Board must be convened. Under s. 4.3(1) of the Act, the Minister is further empowered to authorize the RCMP or any other person, subject to such restrictions and limitations as the Minister may specify, to exercise or perform any of the powers, duties or functions of the Minister under Part I of the Act, except for the power conferred on the Minister by the Governor in Council to make regulations or orders. It is in this Part of the Act that the Minister"s powers regarding the safety of aerodromes and airport facilities are mentioned.
[10] Under section II.20 of the Program, the Board is responsible for making recommendations to the Minister regarding the denial of clearance after reviewing any factors the Board may deem relevant. These factors may include:
| a) conviction in Canada or elsewhere of the following types of offences: |
| i) any offence listed at Section 469 of the Criminal Code; |
| ii) any indictable offence punishable by imprisonment for 10 years or more; |
| iii) trafficking, possession for the purpose of trafficking or exporting or importing under the Controlled Drugs and Substances Act . . . |
| iv) any offences contained in Part VII of the Criminal Code " Disorderly House and Gaming . . . |
| v) section 160 of the Customs Act . . . |
| vi) any offences under the Official Secrets Act; |
| b) a combination of a bad credit record and employment in a position of trust . . . |
| c) the determination that the individual is, or 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. |
[11] Disposing first of the plaintiff"s alternative argument that the security measures contained in the Program are not rules of law because they were not authorized by Order in Council, I see nothing in the enabling provisions of the Program, namely ss. 4.7(2) and (4) of the Act and 4(3) of the Regulations, to require an Order in Council. On the contrary, it is clear from s. 4(3) of the Regulations that the Program in question exists "[i]n addition to the security measures referred to in subsection (2)", which do require the existence of an Order in Council. It is further clear in s. 4.7(4) of the Act that such a program may be adopted by the Minister of Transport quite apart from any regulations by the Governor in Council. Additionally, although such a program may exist without being authorized by regulation or Order in Council the Regulations themselves, in s. 4(3), recognize the existence of the Program in question and require the operator of an aerodrome, in particular Dorval Airport, to institute, maintain and carry out the security measures set out in the program. There is thus no question as to the validity of this Program and the plaintiff"s argument is dismissed.
[12] Regarding the plaintiff"s main argument, that the audi alteram partem rule was infringed because he was not given an opportunity to be heard on his access application, I also find this to be without merit. It is well established that the scope of the requirements imposed by this Rule varies depending on the particular circumstances of each case. That is what was indicated in particular by the Supreme Court of Canada per Gonthier J. in Ruffo v. Judicial Council, [1995] 4 S.C.R. 267, at 318 and 319:
| More generally, I point out that the scope of the requirements imposed by the duty to act fairly and the audi alteram partem rule varies depending on the circumstances of each case. Among the factors to be considered, the nature of the inquiry and its consequences are extremely important. It is also interesting to note that this principle, which was stated by this Court in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at p. 231, was also recognized in Europe in the judgments of the European Court of Human Rights Le Compte, Van Leuven and De Meyere of 23 June 1981, Series A No. 43, and Albert and Le Compte of 10 February 1983, Series A No. 58 (reported in Pierre Lambert, "Les droits relatifs à l"administration de la justice disciplinaire dans la jurisprudence des organes de la Convention européenne des droits de l"homme", (1995) Rev. trim. dr. h. 161, at pp. 164-65). |
[13] In the case at bar, we are dealing with a simple application for clearance or a permit made by a person who has no existing right to that clearance or permit and is not accused of anything. As the Minister"s refusal to grant access clearance does not involve the withdrawal of any of the plaintiff"s rights, the latter can have no legitimate expectation that he will be granted clearance (see Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage) et al. (1997), 132 F.T.R. 89, and Cardinal v. Alberta (Minister of Forestry, Lands and Wildlife), December 23, 1988, Edmonton 8303-04015, Alta. Q.B.). In the circumstances, therefore, I consider that the requirements imposed by the duty to act fairly are minimal and that, after allowing the plaintiff to submit his application in writing as he did, the Minister 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 him. As no evidence was submitted that the decision duly made by the Minister pursuant to the powers conferred on him by the Act and Regulations was without basis, this Court"s intervention is not warranted.
[14] The application for judicial review is accordingly dismissed with costs.
OTTAWA, ONTARIO
January 7, 2000
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Mario Motta v. Attorney General of Canada |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 29, 1999 |
| REASONS FOR ORDER BY: Pinard J. |
APPEARANCES:
| Michel Aubin FOR THE PLAINTIFF |
| Micheline Lavergne FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Michel Aubin FOR THE PLAINTIFF |
Montréal, Quebec
| Morris Rosenberg FOR THE DEFENDANT |
Deputy Attorney General of Canada
Montréal, Quebec
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