Date:
20130627
Docket:
T-1720-11
Citation:
2013 FC 719
Montréal, Quebec,
June 27, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
|
|
VICTOR FELIX MACDONNELL
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
Mr.
MacDonnell was suspected of buying, selling and using crack cocaine. As a
result, his security clearance at Stanfield International Airport in Halifax was put at risk. Transport Canada gave him all the information they had obtained
and invited him to explain himself. Apart from saying that he went to New Brunswick regularly in order to visit his ailing mother, and not to buy cocaine as
alleged, and saying that he had never used crack cocaine, he issued a blank
denial. His lawyer in effect said “prove it”.
[2]
His
security clearance was revoked pursuant to Transport Canada’s Transportation
Security Clearance Program Policy. One of the objectives thereof “is to prevent
the uncontrolled entry into a restricted area of a listed airport by any
individual who the Minister reasonably believes, on a balance of probabilities,
may be prone or induced to
a. Commit
an act that may unlawfully interfere with civil aviation; or
b. Assist
or abet any person to commit an act that may unlawfully interfere with civil
aviation.” (article 1.4)
[3]
The
decision to revoke was made by Erin O’Gorman, Director General of Aviation
Security for the Honourable Denis Lebel, Minister of Transport, Infrastructures
and Communities on the advice of the Transportation Security Clearance Advisory
Body. It reported:
The Advisory Body was unanimous in its
recommendation to cancel the transportation security clearance. An in-depth
review of the file, including multiple recent police reports of drug-related
activities, received from three different police units, led the Advisory Body
to reasonably believe, on a balance of probabilities, that he 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. His written explanation did not
provide any information that would persuade the Advisory Body to recommend
retaining a clearance.
[4]
This
is the judicial review of the above decision.
Security
Clearance Policy
[5]
Section
4.8 of the Aeronautics Act, RSC 1985, c A-2, provides that 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”.
[6]
Sections
39 and 46.1 of the Canadian Aviation Security Regulations, 2012,
SOR/2011-318, provide that a person must not enter a restricted area
unless he or she has been issued a restricted area identity card. To obtain
such a card, one must first have security clearance.
[7]
The
Policy was developed following the 1985 Air India bombing to guide the Minister
in exercising its discretion. Unless otherwise revoked, a security clearance is
only good for five years and must be renewed. Background checks include a
fingerprint/records check with the RCMP, a Canadian Security Intelligence
Service (CSIS) check and checks of the relevant files of other law enforcement
agencies. Individuals involved with criminality or who have been associated
with criminals are considered to be potential security threats according to Paul
Renaud, superintendent of Transport Canada’s Security Screening Programs
Branch. Superintendent Renaud, who earlier in his career had served with the
RCMP for thirty years, assembled a file regarding Mr. MacDonnell which was
presented to the Advisory Body referred to above. In this case, it recommended
to the Minister that Mr. MacDonnell’s security clearance be cancelled. The
Minister’s delegate accepted that recommendation.
The case against
Mr. MacDonnell
[8]
Mr.
MacDonnell had received a security clearance prior to the year 2000, again in
2000 and 2005. In 2010, he was issued a further security clearance pending
review by the RCMP’s Secure Intelligence Background Section.
[9]
Mr.
Renaud was aware that Mr. MacDonnell had three minor convictions in the distant
past and was facing a charge for driving with excessive blood alcohol content.
These incidents did not cause him to refer the matter to the Advisory Body. While
he obviously cannot speak for it, the decision clearly shows that its concern
was drug related.
[10]
In
May 2011, the RCMP passed on to Mr. Renaud, confidential information believed
to be reliable. The RCMP Halifax drug section reported that on June 24, 2008,
it received information which indicated that Mr. MacDonnell was using crack
cocaine and buying it from two men, subjects 1 and 2. The criminal records of
these two men were set out.
[11]
On
November 11, 2009, CSIS reported information that Mr. MacDonnell was being
supplied with cocaine by a known male subject (subject 3) and selling it in the
Kennetcook area. Mr. MacDonnell was associated with another male, subject
4, who worked with him and who was suspected of selling cannabis. The criminal
records of subjects 3 and 4 were given.
[12]
The
RCMP detachment at Enfield, Nova Scotia, near the airport, reported on October
6, 2009, information that Mr. MacDonnell was selling cocaine in the Kennetcook
area. On January 6, 2009, the detachment reported further information that Mr.
MacDonnell was still dealing in cocaine and was making trips to New Brunswick every two weeks where he was getting his cocaine from an unknown supplier. He
was reportedly living with a male individual, suspect 5, after a recent break-up
with his girlfriend. Subject 5’s criminal records were also listed.
[13]
This
information was passed on verbatim to Mr. MacDonnell.
Mr. MacDonnell’s
defence
[14]
Apart
from explaining his trips to New Brunswick and denying using crack cocaine,
this is what his lawyer said in his letter of August 11, 2011:
You as well suggest that Mr. MacDonnell should
provide further information relating to the charges set forth in your
correspondence prior to the Transportation Security Clearance Advisory Board
dealing with this matter. Mr. MacDonnell is under absolutely no obligation or
duty to do so, and in fact, is not going to do so because the Transportation
Security Clearance Advisory Board has no authority to deal with the matter as
you have set forth. The mandate of the Advisory Board is clearly set forth and
limited to that which is contained in clause 1.4 of the Transportation Security
Clearance Program Policy.
[15]
Mr.
MacDonnell concedes this is not a criminal case with the burden being upon
Transport Canada to prove its allegations beyond a reasonable doubt. It is
accepted that if the allegations are true, a drug dealer and user would indeed
be a security risk. However, he states that the case was not made out against
him on the balance of probabilities, the general standard in civil matters.
[16]
He
says that it was incumbent on Mr. Renaud to verify the information received
from the RCMP and CSIS. Particulars should have been given including the
identity of the five subjects and specific dates on which he was seen using or
selling crack cocaine. There is no evidence that any of these five subjects
were charged. However, it should be noted that it was never said that they
themselves were dealing in crack cocaine.
[17]
Ever
since his lawyer’s letter, Mr. MacDonnell has been trying to climb down from his
high horse of principle. Mr. Renaud was cross-examined on his affidavit. He
admitted that he simply passed on the information received and did not verify
its accuracy himself. Neither he, nor Transport Canada at large, were provided
with the names of the five subjects.
[18]
The
record does not indicate that Mr. MacDonnell did not know the five subjects.
Indeed, he had to know one as he bunked in with him following the break-up with
his girlfriend. He did not provide any information as to why information from
subject 5 could not be relied upon.
[19]
Mr.
MacDonnell worked with one of the subjects. However, he did not identify all
the people he worked with and submit why information they may have provided was
unreliable.
[20]
The
only subject who had been convicted of drug dealing was subject 3. During the
hearing before me, Mr. MacDonnell complained that he could not challenge this
subject because he was dead. If he knows he was dead, he certainly knows who he
was.
[21]
If
Mr. MacDonnell had asked for better particulars, such as specific dates, he
might have had an alibi, such as being out of the country on vacation. However,
no such request was made.
Discussion
[22]
There
are two issues in this application. The first is the degree of deference owed to
the decision-maker, and the second is the burden of proof.
[23]
Mr.
MacDonnell argues that the decision was procedurally unfair. If so, no
deference is owed (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), [2003] 1 S.C.R. 539).
[24]
Mr.
MacDonnell also submits that the decision-maker got the burden of proof wrong.
The burden of proof is a matter of general importance and of widespread
application in all manners of actions and judicial review. As such, this is not
simply a matter of a decision-making body administering its own statute so that
it is owed deference on a reasonableness standard. The standard of review would
therefore be correctness.
[25]
Otherwise,
the standard of review is reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190)
[26]
There
is no basis for asserting that the procedure followed was unfair. Apart from
what I have already said, although Mr. MacDonnell was not interviewed face to
face, he did not ask for such an interview. There was no automatic requirement
that he be subjected thereto. Turning now to the burden of proof, as Mr.
Justice Rothstein, while sitting in the Federal Court of Appeal, said in Li v
Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005]
3 FCR 239 at paragraph 9, “[u]nless the words of a statute or the context
requires otherwise, the standard of proof in civil cases is always proof on a
balance of probabilities.”
[27]
However,
he went on to state that “the standard of proof must not be confused with the
legal test to be met.” He noted this distinction was recognized by Mr. Justice MacGuigan
in Adjei v Canada (Minister of Employment and Immigration), [1989] 2 FC
680, in the context of a claim for refugee status under the United Nations
Convention, and what is now section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27. As Mr. Justice MacGuigan stated at page 682
of Adjei, as quoted at paragraph 11 of Li:
“It was common ground that the objective test is not
so stringent as to require a probability of persecution. In other words, although
an applicant has to establish his case on a balance of probabilities, he
does not nevertheless have to prove that persecution would be more likely than
not.” [Emphasis added]
[28]
The
Aeronautics Act does not set out a burden of proof. The present context
is for aviation safety. The objective of the Policy is set out at article 1.4,
referred at paragraph 2 hereof.
[29]
The
Policy is forward looking; in other words, a prediction. The Policy does not
require the Minister to believe on a balance of probabilities that an
individual “will” commit an act that “will” lawfully interfere with civil
aviation or “will” assist or abet any person to commit an act that “would”
unlawfully interfere with civil aviation, only that he or she “may”.
[30]
Given
the context of the Aviation Act and the Regulations, the Policy
is consistent therewith. Contrary to Mr. MacDonnell’s position, the Board did
not exceed its mandate.
[31]
This
Court has always upheld the Policy. It is not necessary to cite every case. As Mr. Justice Shore stated in Fontaine v Canada (Transport, Safety and Security), 2007 FC
1160, at paragraph 75, “[t]he reliability of the information obtained from the
RCMP was sufficient for the purposes of the checking process…’”,
notwithstanding that it was hearsay.
[32]
Further,
as Mr. Justice Barnes noted in Clue v Canada (Attorney General), 2011 FC
323 at para 17, Transport Canada was not obliged to disclose the identity of informants
and in that case, similar to the present, the applicant “has offered no
rationale for how the absence of that information might have limited his
ability to respond.”
[33]
Mr.
Justice Barnes added at paragraph 20 thereof, that the belief, on a balance of
probabilities, is that a person may be prone.
[34]
The
case put to Mr. MacDonnell, if not answered, was sufficient to justify revoking
his security clearance. The burden had shifted to him (Kruger Inc v Baltic
Shipping Co., [1988] 1 FC 262, 11 FTR 80, affirmed (1989) 57 DLR (4th)
498, 1989 FCJ No 229 (QL)). The Advisory Board’s decision that Mr. MacDonnell’s
response was not sufficient to shift the burden back again was reasonable.
ORDER
THIS
COURT ORDERS that for reasons given, the judicial review
is dismissed, with costs in the amount of $3,000, all inclusive.
“Sean Harrington”
Email this Content