Date: 20110317
Docket: T-1308-10
Citation: 2011 FC 323
Ottawa, Ontario, March 17,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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RAYMOND ANTHONY CLUE
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review by Raymond Anthony Clue challenging a
decision by the Director, Security Screening Programs, Transport Canada
(Director) acting on the advice of the Transportation Security Clearance
Advisory Body (Advisory Body), to cancel Mr. Clue’s airport Transportation
Security Clearance (TSC) thereby precluding his continued employment as a
baggage handler at the Pearson International Airport in Toronto.
Mr. Clue contends that the decision was perverse and capricious and
therefore unreasonable in law.
Background
[2]
Mr. Clue
is a 28-year-old naturalized Canadian citizen who was born in Jamaica. He came to
Canada in 2002 at
the age of 19 and he has lived here since that time.
[3]
Mr. Clue
was issued a TSC by the Minister of Transport on October 20, 2003 and that
clearance was renewed on October 10, 2007. In October 2009 Mr. Clue
purchased a stolen Air Canada parking pass and, in the result, he was
charged with possession of stolen property by the Peel Regional Police. On
November 26, 2009 Mr. Clue’s TSC was suspended subject to a review of two
matters of concern:
(a) the
then pending criminal prosecution; and
(b) an
incident on June 6, 2009 involving Mr. Clue’s alleged placing of a gym bag
containing a loaded handgun onboard an aircraft bound for Jamaica.
[4]
On
December 2, 2009 the Crown withdrew the outstanding criminal charge against
Mr. Clue. Nevertheless, the review of his TSC continued and on March 5,
2010 the Director, on the advice of the Advisory Body, revoked Mr. Clue’s
TSC on the ground that he “may be prone or induced to commit an act that may
unlawfully interfere with civil aviation”.
[5]
Mr. Clue
sought to have the Director’s decision judicially reviewed and on June 15, 2010
Justice Roger Hughes of this Court, with the consent of the parties, remitted
the matter back to the Director for reconsideration on the merits.
[6]
By
letter dated May 31, 2010 the Advisory Body advised Mr. Clue of his right
to submit information in addition to the materials he had provided in the first
instance, but nothing further was submitted on his behalf beyond an affidavit
filed in his first application for judicial review.
[7]
On
June 22, 2010 the Advisory Body met to consider Mr. Clue’s case and it
again recommended to the Director that Mr. Clue’s TSC be revoked. The
minutes of the Advisory Body discussion indicate that it took the following key
points into consideration:
- The Advisory Body
noted the severity of the incident as described in the YYZ Intel Report.
- The Advisory Body
noted that the police report states he indicated that even if he know[s] who
was involved (in the incident involving the duffle bag) he would not divulge
their identity to police (see paragraph 11(d) or YYZ Intel Report).
- The Advisory Body
further noted paragraphs 12-20 of the applicant’s affidavit, and that he does
not explain or deny his involvement in the incident involvement the gun and the
duffle bag.
- The Advisory Body
members noted the applicant’s submissions, including his affidavit, do not
contain any information that would mitigate their concerns.
The above-noted Intelligence Report
considered by the Advisory Body contains an outline of an investigation into
Mr. Clue’s behaviour carried out by the Airport Intelligence Unit. In
that report the incident involving the handgun is described as follows:
In one of these investigations, subject CLUE
was observed on Saturday June 6, 2009, placing a ‘gym bag’ onto one of
the containers # 43121 bound for Air Transat flight # TS784 to Montego Bay, Jamaica. This event was
investigated and the bag was found to contain a fully loaded (16) round clip
Smith & Wesson 9mm handgun and 2 bags containing hollow point ammunition.
Names of all employees (RAIC’s) working the flight were obtained by members of
CBSA.
Subject CLUE was the key suspect
for this event but due to other employees also having access to the bag and
aircraft after it was placed on the aircraft, along with protection of the
confidential source, CLUE was not charged for this event.
[Footnotes omitted]
[8]
The
report then characterized Mr. Clue’s attitude when he was confronted with
the handgun allegation in the following way:
11. YYZ Intelligence
Unit investigators interviewed subject CLUE in relation to the events
surrounding him being identified as the person placing the gym bag containing
the firearm on an aircraft in June 2009, and he stated the following:
a. He did not
immediately deny his involvement; he did however attempt to ascertain who had
been speaking to the police about the event.
b. He appeared afraid
to discuss any involvement he had with this event.
c. He continued to
deny the accusations and continued to divert the discussion of what had
occurred at the aircraft in relation to the firearm and was more concerned
about which one of his co-workers would have said he was responsible for
putting the gym bag on the aircraft.
d. He stated that even
if he knew who was involved he would ‘NOT’ divulge their identity to
police.
[Footnotes omitted]
[9]
Although
in an affidavit submitted to the Advisory Body Mr. Clue did dispute some
of the remarks attributed to him during his interview with the Airport
Intelligence Unit, he did not deny that he had repeatedly asked for the identity
of the informant and that he was “forced to express my displeasure at them, for
impugning my good name without any bases [sic]”.
[10]
On
June 22, 2010 the Advisory Body unanimously recommended to the Director that
Mr. Clue’s TSC be permanently revoked on the following basis:
The Advisory Body was unanimous in its
recommendation to cancel the transportation security clearance. A further
review of the entire contents of the file, including police reports about his
involvement in criminal activities at the airport and the applicant’s affidavit
led the members of this Advisory Body to believe that on a balance of
probabilities this individual may be prone or induced to commit an act that may
unlawfully interfere with civil aviation. The applicant’s affidavit and
previous submissions did not provide sufficient information that would compel
this Advisory Body to recommend re-instating his clearance.
[11]
The
above recommendation was accepted by the Director on July 13, 2010 and
communicated to Mr. Clue by letter of July 20, 2010. It is from this
decision that this application for judicial review arises.
Issues
[12]
Was
there a breach of procedural fairness in the process that was followed leading
up to the impugned decision?
[13]
Did
the evidence that was relied upon reasonably support the impugned decision?
Analysis
Standard
of Review
[14]
In
at least four previous cases before this Court, the standard of review for
assessing an administrative decision to cancel or withhold an airport security
clearance has been found to be patent unreasonableness: see Fontaine v
Canada (Transport), 2007 FC 1160, 313 FTR 309; Rivet v Canada (Attorney
General), 2007 FC 1175, 325 FTR 178; Lavoie v Canada (Attorney
General), 2007 FC 435 and Singh v Canada (Attorney
General), 2006 FC 802. In each of those decisions, the Court
recognized the discretionary and specialized nature of the decision under
review and the legislative purpose served. Of course, since Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 the patent
unreasonableness standard has been subsumed into a single standard of
reasonableness and this is the standard to be applied here. On this issue of
procedural fairness the standard of review is, of course, correctness: see Sketchley
v Canada (Attorney
General), 2005
FCA 404, [2006] 3 FCR 392.
The
Legislative Scheme
[15]
The
decision taken by the Director to cancel Mr. Clue’s TSC was made in
accordance with the provisions of s 4.8 of the Aeronautics Act, RS,
1985, c A-2, and the Transportation Security Clearance Program (Clearance
Program). Ultimately, the decision was made under Article I.4 of the Program
which prevents access to a restricted area of a listed airport (e.g. Pearson)
where the
Minister,
represented by the Director, reasonably believes, on a balance of probabilities,
that an individual may be prone or induced to commit an act that may unlawfully
interfere with civil aviation.
[16]
The
Clearance Program also describes the process to be followed in the case of a
refusal, cancellation or suspension of a TSC including the affected person’s
right to be given notice of the allegations and a right to make submissions.
Initially, the matter is referred to the Advisory Body which in turn makes a
recommendation to the Director.
Was There a Breach of Procedural
Fairness in the Process That Was Followed Leading up to the Impugned Decision?
[17]
In
this case the procedures designated by the Clearance Program were followed.
Mr. Clue was advised of the allegations and invited to respond. Neither
the Director nor the investigator were under any obligation to disclose the
identity of an informant and Mr. Clue has offered no rationale for how the
absence of that information might have limited his ability to respond to the
allegations against him. For the purposes of an administrative process like
this one, Mr. Clue was provided with disclosure sufficient to respond and
he did so. He was also represented by counsel. It was open to Mr. Clue
to seek additional particulars of the allegations against him but there is
nothing in the record to indicate that he made such a request. Finally, the
reasons given by the Director are adequate to support the decision to revoke
Mr. Clue’s TSC. I can identify no breach of the duty of fairness in the
process that was followed in rendering this decision.
Did the Evidence That Was
Relied Upon Reasonably Support the Impugned Decision?
[18]
A
key aspect of the decision to revoke Mr. Clue’s TSC was a concern that,
when confronted by airport authorities, he was largely uncooperative and
exhibited an attitude that was belligerent if not obstructionist. Although
Mr. Clue attempted to excuse his conduct, his explanations were obviously
not accepted by the Director.
[19]
It
goes without saying that the security of Canadian airports rests in large
measure on the vigilance of airport employees, including their willingness to
report suspicious or criminal behaviour without equivocation or reservation.
It was not unreasonable for the Director to consider that Mr. Clue’s
apparent unwillingness to acknowledge such a responsibility was incriminatory
in the face of evidence that he had placed a loaded handgun on an aircraft.
[20]
Mr. Clue’s
complaint that the allegations against him could not be relied upon by the
Director because they had not been proven against him in a criminal proceeding
is without merit. The decision not to prosecute Mr. Clue for the handgun
incident is explained in the record as a lack of evidence sufficient to meet a
criminal standard of proof. For purposes of revocation of a TSC the standard
of proof is much lower and requires only a reasonable belief, on a balance of
probabilities, that a person may be prone or induced to commit and act
(or to assist such an act) that may unlawfully interfere with civil
aviation. This provision involves an assessment of a person’s character or
propensities (“prone or induced to”) and it does not require evidence of the
actual commission of an unlawful act: see Fontaine, above, at para 78,
81 and 83. What the Director is called upon to do is to examine a person’s
behaviour to determine if, on balance, it supports a reasonable belief that a
person may in the future be inclined to act unlawfully in the context of
aeronautical safety. The Director’s negative assessment of an employee’s
attitude towards airport security concerns may, as it did in this case, provide
an evidentiary basis for the revocation of a TSC. Here the decision was also
supported by evidence that Mr. Clue had been directly involved in the
loading of a bag containing a handgun on an aircraft and, taken together, this
was sufficient to support a reasonable belief that he may be prone to commit or
to assist with an act that may unlawfully interfere with civil aviation.
[21]
It
is not the role of the Court on judicial review to reweigh the evidence or to
substitute its views for those of the responsible decision-maker. There was,
in this case, a rational evidentiary basis for the Director’s decision and this
application is accordingly dismissed.
[22]
The
Respondent is entitled to costs in the agreed amount of $750.00 inclusive of
disbursements.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed with costs payable by the Applicant to the Respondent in
the amount of $750.00 inclusive of disbursements.
“ R. L. Barnes ”
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