Date: 20071108
Docket: T-1021-06
Citation:
2007 FC 1160
Ottawa, Ontario,
the 8th day of November 2007
Present:
the Honourable Mr.
Justice Shore
BETWEEN:
Wooby Fontaine
Applicant
and
Transport Canada SAFETY AND SECURITY
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
OVERVIEW
[1]
The
applicant is challenging the validity of the Minister’s decision to cancel his
security clearance.
[2]
The
applicant did not show that the Minister’s decision to cancel his security
clearance was “patently unreasonable” or “not in accordance with reason” or
even unreasonable.
[3]
Further,
the evidence in the record showed that the Minister kept the applicant informed
of the investigation and gave him an opportunity to present his views.
[4]
Further,
despite the opportunity given to him the applicant never refuted the
information collected by the Royal Canadian Mounted Police (the RCMP) about the
nature of his ties to the “Ruffriders”.
[5]
Accordingly,
it cannot be claimed on the basis of the applicant’s contentions that the
Minister’s decision to cancel his security clearance was “patently
unreasonable”.
[6]
In
the case at bar, the Minister established the Security Clearance Program and an
Advisory Body to ensure that security clearances were granted after checks were
made into the record of the person requesting a clearance (Transportation
Security Clearance Program, s. II.19).
[7]
Accordingly,
in the case at bar it is not specific acts which make the applicant unable to
hold a security clearance, but rather the fact that he is associated with
individuals who might have a negative influence upon him that gives the
Minister reason to believe that the applicant may be “prone or induced to . . .
commit an act that may unlawfully interfere with civil aviation” (Clearance
Program, supra, s. I.4d).
[8]
In
Motta v. Canada (Attorney General), [2000] F.C.J.
No. 27 (QL), Yvon Pinard J. noted:
[13] .
. . 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.
INTRODUCTION
[9]
The
appeal at bar concerns one of the most important questions in our society,
namely air safety.
[10]
The
applicant Wooby Fontaine is seeking judicial review of the decision by the
Minister of Transport, Infrastructure and Communities to cancel his security
clearance.
[11]
The
decision was made in accordance with the enabling legislation and Mr. Fontaine
has not in any way shown the existence of an error or circumstance that would
allow this Court to intervene in the Minister’s decision.
Proceedings
[12]
By
a notice of an application for judicial review filed on June 19, 2006 Mr. Fontaine
is seeking an order directing the Minister (1) to reverse his decision of March
24, 2006 to cancel his security clearance, and (2) to grant the applicant the
said clearance (applicant’s record (AR), p. 4).
Cancellation
of applicant’s security clearance
[13]
The
Minister is responsible for guaranteeing safety in Canadian aerodromes pursuant
to the provisions of the Aeronautics Act, R.S.C. 1985, c. A-2 (the Act),
and its implementing regulations and policies.
[14]
Inter
alia,
the Minister’s function includes the regulation of access to airports and the
granting of security clearances for individuals seeking access to restricted
areas of aerodromes (Act, supra, s. 4.8; Canadian Air Safety
Regulations, SOR/2000-111, s. 4 (the Regulations)).
[15]
On
December
29, 2003,
Mr. Fontaine submitted an application for a security clearance at Pierre E. Trudeau International
Airport (affidavit of
Francine Massicotte, para. 12, Exhibit C).
[16]
On
October 13, 2004 the Transport Canada Director of Information, who is
responsible for security clearances, was informed of circumstances which gave
him good reason to believe that Mr. Fontaine posed a risk to the safety of
the airport (affidavit of Francine Massicotte, para. 15, Exhibit D; Clearance
Program, supra, s. I.6).
[17]
On
October 25, 2005 the Information Branch sent a letter to the Head of Airport
Security at Pierre
E. Trudeau International Airport recommending
that a pass for restricted areas not be issued to Mr. Fontaine until the Minister
had been able to consider his application (affidavit of Francine Massicotte,
para. 19, Exhibit H).
[18]
The
information obtained in the screening process indicated that Mr. Fontaine had
been associated with members of the criminal organization known as the
“Ruffriders” since 1997 (affidavit of Francine Massicotte, para. 18, Exhibit
G).
[19]
On
December
14, 2005
Transport Canada notified Mr.
Fontaine that, based on prejudicial information obtained in the screening
process, his case would be submitted to the Transport Security Clearance Review
Committee (the Advisory Body) for it to study the matter and make a
recommendation to the Minister on his security clearance. Mr. Fontaine was
invited to submit further information (affidavit of Francine Massicotte, para.
17, Exhibit F).
[20]
In
December 2005, Mr. Fontaine and his female friend contacted Transport Canada to provide
explanations relating to his case. This information was entered in the record
by Guy Mathieu (affidavit of Francine Massicotte, para. 21, Exhibit I).
[21]
On
March 14, 2006, after completing a review of Mr. Fontaine’s application, the Advisory
Body recommended to the Minister that his security clearance be cancelled. The
Advisory Body considered that based on his record Mr. Fontaine was a person
associated with known members of criminal organizations (affidavit of Francine
Massicotte, para. 22; Clearance Program, supra, para. I.4d).
[22]
This
recommendation was approved by the Minister on March 22,
2006
and the decision communicated to Mr. Fontaine on March 24, 2006 (affidavit of
Francine Massicotte, para. 23, Exhibit J).
[23]
On
June
19, 2006
Mr. Fontaine filed an application for judicial review from the Minister’s
decision to cancel his security clearance (AR, notice of application, p. 3; affidavit
of Francine Massicotte, para. 24).
ISSUE
[24]
The
only point at issue is whether Mr. Fontaine has shown that the Minister of
Transport’s decision was patently unreasonable.
ANALYSIS
Administrative process
leading to Minister’s decision
[25]
As
with any application for judicial review, analysis has to be based on
consideration of the legislative background in question.
[26]
The
main objective of the legislation in question is air safety.
[27]
To
attain its objective Parliament gave the Minister of Transport responsibility
for administering a complex and detailed legislative scheme.
[28]
The
cornerstone of this scheme is the granting of security clearances to
individuals requesting special access to restricted areas at certain designated
airports.
[29]
Section
4.8 of the Act, supra, simply states:
|
Security
Clearances
Granting,
suspending, etc.
4.8 The Minister may, for
the purposes of this Act, grant or refuse to grant a security clearance to
any person or suspend or cancel a security clearance.
|
Habilitations
de sécurité
Délivrance,
refus, etc.
4.8 Le ministre peut, pour
l'application de la présente loi, accorder, refuser, suspendre ou annuler une
habilitation de sécurité.
|
[30]
This
discretionary power enjoyed by the Minister is not subject to any limitations
as to its objective: guaranteeing air safety in Canada.
[31]
Access
to certain areas of Canadian airports is limited to persons holding restricted
area passes, in accordance with the Regulations (Airport Restricted Area Access
Security Clearance Measures).
[32]
A
directive titled “Airport Restricted Area Access Security Clearance Measures”
indicates airports with restricted access areas (affidavit of Francine
Massicotte, para. 4, Exhibit A; Measures, supra, Appendix A).
[33]
Under
section 4 of the Regulations, the operator of an aerodrome which is an airport
listed in Appendix A of the Measures “shall establish, maintain and carry out
the security measures set out in that publication”.
[34]
The
document provides that only individuals holding clearances approved by the
Minister may obtain a pass from the operator of an airport to have access to
restricted areas of the listed aerodromes. Pierre E. Trudean
International Airport in Montréal
is on this list (Measures, Appendix A; affidavit of Francine Massicotte, para.
5).
[35]
To
ensure that his powers are exercised openly pursuant to section 4.8 of the Act,
the Minister adopted the Clearance Program (affidavit of Francine Massicotte,
para. 6, Exhibit B).
[36]
Under
section 4.3 of the Act, the Clearance Program is administered by the Transport
Canada Director of Information. The latter considers applications and carries
out security checks such as determining criminal offences with the RCMP, the
existence of a criminal record, charges, arrest warrants and/or association
with criminal organizations or terrorist groups (Clearance Program, supra,
s. I.6; affidavit of Francine Massicotte, para. 8).
[37]
If
prejudicial information results from this review, the Director may decide to
suspend a security clearance and initiate an investigation (affidavit of
Francine Massicotte, para. 9).
[38]
Mr.
Fontaine is then notified that his security clearance has been suspended and
invited to make submissions (affidavit of Francine Massicotte, para. 11).
[39]
A
file is then created and forwarded to the Advisory Body, which reviews it and
makes recommendations to the Minister regarding the refusal, cancellation or
suspension of security clearances (affidavit of Francine Massicotte, para. 9;
Clearance Program, supra, s. I.8).
[40]
At
the time the decision was made the Advisory Body consisted of five members, the
Director of Information (chairperson), the Canada Border Services Agency
Director of Information (vice-chairperson), the Director of the Security
Screening and Information Program (secretary) as well as legal counsel and a
Transport Canada security inspector (affidavit of Francine Massicotte, para. 10;
Clearance Program, supra, s. II.31).
[41]
Pursuant
to the recommendation by the Body, the Minister exercises his power under
section 4.8 of the Act to grant, refuse, cancel or suspend security clearances.
Court’s
function in judicial review and applicable standard of review
[42]
Paragraph
1 of the judgment by the Supreme Court of Canada in New Brunswick Law
Society v. Ryan, [2003] 1 S.C.R. 247, reads as follows:
[1] According to the governing
jurisprudence, a court reviewing the decision of an administrative tribunal
should employ the pragmatic and functional approach to determine the level of
deference to be accorded to the decision in question. The appropriate level of
deference will, in turn, determine which of the three standards of review the
court to the decision: correctness, reasonableness simpliciter or patent
unreasonableness.
[43]
The
respondent argued that according to the pragmatic and functional analysis of
the degree of deference required, the decision by the Minister could only be
reviewed in the case of a patently unreasonable error (Motta, supra).
[44]
It
was further submitted that, even if this Court came to the conclusion that it
was the intermediate standard that should be applied, namely reasonableness,
Mr. Fontaine’s application for judicial review raised no error of fact or law
that would meet this test.
Factors to be
considered
[45]
According
to the case law setting out the guiding principles in this area, four factors
should be considered in identifying the applicable standard of intervention,
namely (1) the presence or absence or a privative clause or statutory right of
appeal; (2) the expertise of the tribunal relative to that of the reviewing
court on the issue in question; (3) the purposes of the legislation and the
provision in particular; and (4) the nature of the question – law, fact or
mixed law and fact (see in particular Ryan, supra, para. 27). None
of these factors is conclusive in itself: Parliament’s intent regarding the
extent of judicial review to which the decision in question is subject governs (Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92,
[2004] 1 S.C.R. 609, paras. 16 and 18).
1st factor:
presence or absence of right of appeal or privative clause
[46]
The
legislative scheme in question does not make any provision for a privative
clause or a right of appeal.
[47]
In
these circumstances, this first factor is neutral in an analysis of the degree
of deference required, since “the absence of a privative clause does not imply
a high standard of scrutiny, where other factors bespeak a low standard” (Ryan,
supra, para. 29, citing the comments by Michel Bastarache J. in Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982,
para. 30).
2nd factor:
specialization of decision-maker
[48]
On
the second factor, that of the specialization of the respondent relative to
that of the Federal Court, the respondent argued that this is heavily in favour
of the patently unreasonable standard, since the test is based on “specialized
knowledge about a topic or from experience and skill in the determination of
particular issues” (Ryan, supra, para. 30).
[49]
The
Advisory Body which undertook the analysis of Mr. Fontaine’s case was made up
of the Director of Information (chairperson), the CBSA Director of Information
(vice-chairperson), the Director of the Security Screening and Information
Program (secretary) as well as legal counsel and a Transport Canada safety
inspector (affidavit of Francine Massicotte, para. 10; Clearance Program, supra,
s. II.31).
[50]
These
individuals all have expertise as a result of their respective professional
experience and unquestionably have knowledge relating to the questions they
have to consider.
[51]
Consequently,
the question of whether a security clearance falls within the expertise of the
Minister and the Advisory Body favours a high degree of deference.
3rd factor:
purpose of Act
[52]
The
third factor, namely the purpose of the Act and the provision in particular,
includes an important component of protection for the public, in that the Act
is intended inter alia to guarantee safety at airports and in air
transport.
[53]
This
is unquestionably one of the most important and urgent matters which the
government must consider.
[54]
As
it is legislation “that . . . is concerned with the protection of the public,
engages policy issues, or involves the balancing of multiple sets of interests
or considerations”, we may conclude that the Minister enjoys broad discretion.
In view of this, the legislation “will demand greater deference from a
reviewing court” (Ryan, supra, para. 39).
[55]
Additionally,
“the more discretion that is left to a decision-maker, the more reluctant
courts should be to interfere with the manner in which decision-makers have
made choices among various options” (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, para. 56.)
4th
factor: nature of question
[56]
On
the last factor to be considered, namely the nature of the question before the
Minister, the respondent argued that it also established the desirability of
reviewing the Minister’s decision only if the latter was patently unreasonable.
The questions the Minister had to answer following his investigation were mixed
questions of fact and law.
[57]
The
question before the Minister was to determine whether the security clearance
application before him should be granted.
[58]
This
question also concerned public safety. A federal body should be allowed great
latitude when it is making decisions with a view to protecting the public and
no substantive rights of individuals affected are compromised by its decision.
[59]
Access
to restricted areas is a privilege. The only right Mr. Fontaine enjoys in
connection with his security clearance application is procedural in nature. In
the case at bar, this right has been fully observed.
[60]
Finally,
the mixed nature of a question “will call for more deference if the question is
fact-intensive, and less deference if it is law-intensive” (Dr. Q v. College
of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).
[61]
In
the respondent’s view, the function of assessing the risk associated with
certain conduct is primarily a matter of weighing the facts and this falls
within the field of expertise of the Minister and the Advisory Body.
[62]
Further,
in carrying out the objectives of the Act the Minister enjoys broad discretion
in developing and implementing the Clearance Program. This discretion is
entirely reasonable and even essential, since the purpose of the Act is ensuring
public safety.
[63]
In
analyzing the four applicable factors, this Court considers that the standard
applicable to the Minister’s decision to deny Mr. Fontaine’s security clearance
is that of patent unreasonableness.
Effect of
choosing standard
[64]
When
the patently unreasonable standard applies to a decision, this means that the
Court may intervene only if the decision is immediately or obviously flawed,
that is, the flaw can be explained simply or easily. A patently unreasonable
decision has been described as “clearly irrational” or “evidently not in
accordance with reason” (Ryan, supra, para. 52).
[65]
Even
if this Court actually considered that the applicable standard was that of
reasonableness, this should also be rejected in view of the definition of that
standard:
[46] Judicial review of
administrative action on a standard of reasonableness involves deferential
self-discipline. A court will often be forced to accept that a decision is
reasonable even if it is unlikely that the Court would have reasoned or decided
as the tribunal did (see Southam, supra, paras. 78-80).
(Ryan, supra.)
[66]
Mr.
Fontaine did not establish that the Minister’s decision to cancel his security
clearance was “patently unreasonable” or “not in accordance with reason” or
even unreasonable.
[67]
As
Johanne Gauthier J. repeated, “the duty of fairness [does not extend] to the
level of requiring a full or formal hearing, but it requires that the
[applicant] be afforded a meaningful opportunity to present [his view] at one
point before the final decision is made” (DiMartino
v. Canada (Minister of Transport), 2005 FC 635, [2005] F.C.J. No. 876 (QL),
para. 36). In the case at bar, the evidence in the record indicates
that the Minister kept Mr. Fontaine informed of the investigation and gave him
an opportunity to present his views.
[68]
Mr.
Fontaine is challenging the validity of the Minister’s decision to cancel his
security clearance for the following reasons.
[69]
First,
Mr. Fontaine argues that the information obtained through the investigative
process is not specific as to any person (applicant’s record, memorandum, p.
8).
[70]
As
appears from the examination on affidavit of Ms. Massicotte, there was no
confusion in the decision-making process between Wooby Fontaine and his twin
brother Woody Fontaine (AR, Exhibit 7, examination on affidavit of Francine
Massicotte, pp. 15 and 16; respondent’s record, affidavit of Francine Massicotte,
Exhibit G).
[71]
Secondly,
Mr. Fontaine argued that the representations made by him, to the effect that he
has never been part of a criminal organization, were not checked (AR, memorandum,
p. 8).
[72]
There
was no need to check these statements as they were never questioned.
[73]
The
decision regarding Mr. Fontaine was based solely on his association with a
known criminal organization, the “Ruffriders”, not on his status as a member.
There was never any question that Mr. Fontaine might himself be a member of a
criminal organization (affidavit of Francine Massicotte, paras. 18 and 22,
Exhibit G).
[74]
Finally,
Mr. Fontaine submitted that the file prepared on him was [TRANSLATION] “based
on hearsay which was not checked” (AR, memorandum of fact and law, p. 8).
[75]
The
reliability of the information obtained from the RCMP was sufficient for the
purposes of the checking process established by the Clearance Program (affidavit
of Francine Massicotte, Exhibit G; AR, examination on affidavit of Francine
Massicotte, p. 14).
[76]
Further,
despite the opportunity he was given Mr. Fontaine never refuted the information
gathered by the RCMP about the nature of his ties to the “Ruffriders” (respondent’s
record, Exhibit F, p. 38, and Exhibit G, p. 39). In reply, Mr. Fontaine
simply stated that [TRANSLATION] “if certain friends I had as a child are now
in such groups, it is unfair to claim that I am a part of them because my name
was associated with theirs in our youth” (respondent’s record, Exhibit I, p.
52).
[77]
Accordingly,
Mr. Fontaine’s arguments do not provide a basis for concluding that the
Minister’s decision to cancel his security clearance was patently unreasonable.
[78]
In
exercising his discretion under section 4.8 of the Act the Minister may take
any factor he considers relevant into account.
[79]
In
the case at bar, the Minister established the Clearance Program and an Advisory
Body to ensure that security clearances were granted after checks were made into
the record of the person requesting a clearance (Clearance Program, supra,
s. II.19).
[80]
The
existence of such a procedure may create procedural rights, but does not in any
way limit the broad discretion enjoyed by the Minister under section 4.8 of the
Act.
[81]
Further,
the Advisory Body does not have a duty to collect evidence established beyond
all reasonable doubt of acts endangering public safety.
[82]
On
the contrary, the Clearance Program which governs the granting of security
clearances only requires that there should be a probability that a person:
|
(d) the Minister reasonably
believes, on a balance of probabilities, may be prone or induced to
i. commit an act that may unlawfully
interfere with civil aviation; or
ii. assist or abet any person to commit
an act that may unlawfully interfere with civil aviation.
|
d) qui, selon le ministre et les probabilités, est sujette ou peut être
incitée à:
i.
commettre un acte d’intervention illicite pour l’aviation civile; ou
ii.
aider ou à inciter toute autre personne à commettre un acte d’intervention
illicite pour l’aviation civile.
|
(Clearance Program, supra, s. I.4).
CONCLUSION
[83]
Accordingly,
in the case at bar it was not any specific acts that made Mr. Fontaine
incapable of holding a security clearance, but rather the fact that he is
associated with individuals who might have a negative influence on him that gives
the Minister reason to believe that Mr. Fontaine might be “prone or induced to
. . . commit an act that may unlawfully interfere with civil aviation”
(Clearance Program, supra, s. I.4).
[84]
Accordingly,
the Minister made no error on the basis of which this Court may intervene.
JUDGMENT
THE COURT ORDERS that
1. the application for judicial
review is dismissed;
2. without costs.
“Michel M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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