Date:
20130123
Docket:
T-476-12
Citation:
2013 FC 59
Ottawa, Ontario,
January 23, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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MARILYN
THEP-OUTHAINTHANY
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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]
The
applicant seeks to set aside a decision of the Minister of Transport,
Infrastructure and Communities (the Minister) dated February 7, 2012 denying
the applicant transportation security clearance at the Vancouver International Airport. For the reasons that follow this application is dismissed.
Facts
[2]
Airport
security is governed by the Aeronautics Act, RSC, 1985, c A-2 (the Aeronautics
Act) and the Canadian Aviation Security Regulations, 2012 (SOR /2011-318) (the Regulations).
The Regulations provide that individuals who work in the restricted
areas of an airport must have a security clearance. Section 4.8 of the Aeronautics
Act grants the Minister the discretion to grant or refuse that clearance.
[3]
The
Transportation Security Clearance Program Policy (the Security Policy)
sets out the process for obtaining security clearance. Applicants must undergo
a comprehensive background check that includes a criminal record check and a review
of the files of law enforcement agencies. If adverse information is uncovered
an advisory body, comprised of government officials, reviews the matter and
makes a recommendation to the Minister.
[4]
On
October 3, 2010, the applicant applied for security clearance as a requirement
of her continued employment with Westjet. During her background check the
Criminal Intelligence Branch of the Royal Canadian Mounted Police (RCMP)
advised that the applicant had been involved in a drug investigation.
[5]
While
I will discuss the discrepancy in the date of the critical events that underlie
the decision to deny the applicant a security clearance, on either December 22,
2006 or May 1, 2007, the applicant and her husband drove to a house in Surrey, British Columbia. The applicant remained outside the house in the passenger seat
of her vehicle while her husband went inside to run an errand. At that moment
the police were in the process of, or began, executing a search warrant for the
house. By any description, the events that ensued were dramatic. Multiple
suspects were arrested, some in the house, some were chased and arrested
outside, weapons were drawn, and a dog was shot. The applicant was arrested as
well as her husband.
[6]
The
police subsequently obtained a search warrant for the vehicle. While
registered to the applicant’s mother the applicant was listed as the principle
operator. The police found a hidden compartment in the vehicle containing a
substantial amount of cocaine, along with heroin, methamphetamine, ecstasy and
a loaded pistol.
[7]
The
applicant and her husband were charged with four counts of procession for the
purposes of trafficking and one count of possession of a loaded prohibited
firearm. Her husband pled guilty and the prosecutor stayed the charges against
the applicant. She denied, and continued to deny throughout the security
clearance process, any knowledge of her husband’s criminal activities.
[8]
On
September 23, 2011, the applicant received a letter informing her that this
information raised concerns about her suitability for security clearance. She
was invited to provide additional information. She provided a statement and
evidence, including positive reference letters along with documents
establishing her legal separation from her husband and the decree nisi.
The separation from her husband began on January 31, 2011.
Decision Under Review
[9]
The
Minister denied the security clearance based on the recommendation from the
Advisory Body. The Advisory Body noted the incident involved a large amount of
cocaine and other drugs along with a loaded prohibited firearm. The Advisory
Body concluded that the applicant, in the language of the policy, may be prone
or induced to commit an act or assist or abet any person to commit an act that
might unlawfully interfere with civil aviation.
[10]
The
applicant contends however that two errors of law were committed. First, the
Minister erred in considering evidence of the stayed charges in the face of her
record having been expunged. Second, she contends that it was legally
impossible to conclude, on the facts, 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.
Issue
[11]
This
judicial review raises the issue whether the Minister erred in denying the
applicant a security certificate. In recognition of the specialized and
discretionary nature of this decision the standard of review is reasonableness:
Clue v Canada (Attorney General), 2011 FC 323, para 14. Errors of law
are reviewable on a standard of correctness.
[12]
The
applicant contends that, in light of what are characterized as egregious errors
in the decision, the decision to deny the recommendation was not, as a matter
of law, open to the Minister. In my view, the standard of review remains that
of reasonableness, regardless how the factual errors are viewed. Even the most
unreasonable of decisions does not transform the standard of review of
reasonableness to correctness, in the sense that jurisdiction has been lost in
the process. No question of law has been identified, nor has a legal issue or
principle been identified which can be extracted from the legal and factual
matrix.
Analysis
Preliminary Issues
[13]
The
applicant has included various exhibits to her affidavit which were not before
the Minister [Exhibits A, B, E, I, K, and CC]. The applicant submits
that this evidence is admissible because it provides background to the issues
before the Court, and otherwise simply confirms evidence already in the
record. However, the applicant has provided this evidence for the purpose of
challenging certain information in the record before the Minister. In
particular, the applicant seeks to demonstrate that the Minister had incorrect
information regarding the date of her arrest and whether she tried to flee the
police. As this evidence was previously available, it is not, strictly
speaking, admissible. It goes beyond the scope of contextual or background
evidence which is of assistance to the Court in understanding the issues: Sha
v Canada (Citizenship and Immigration), 2010 FC 434. In view of the
disposition of this case on the merits, this additional evidence, even if
admitted, would not alter the outcome.
[14]
Additionally,
there is some dispute between the parties as to what constitutes the Minister’s
reasons. The Minister’s letter to the applicant states:
Please be advised that the
Minister of Transport, Infrastructure and Communities, has refused your
clearance based on the information in your file and the following
recommendation from the Advisory Body:
“The Advisory Body was unanimous
in its recommendation to refuse the transportation security clearance. An
in-depth review of the file, including the police report detailing a recent
drug-related incident involving the applicant and her husband that included an
extremely large amount of cocaine and other drugs, as well as a loaded
prohibited firearm, led the Advisory Body to believe, on a balance of
probabilities, that she may be prone or induced to commit an act or assist or
abet any person to commit an act that my (sic) unlawfully interfere with civil
aviation. Furthermore, the applicant’s written explanation and supporting
documentation did not provide sufficient information that would persuade the Advisory
Body to recommend issuing a clearance.”
[15]
While
it is brief, it clearly sets out the basis for the Minister’s conclusion. The
applicant has argued that an Advisory Board document titled “Key Points for
Discussion” should also be considered part of the Minister’s decision. This
document is a summary of the Advisory Board’s discussion. In my view, it forms
an integral part of the reasons. Indeed, without it, the Minister’s letter is
arguably conclusionary. The document is, on its face, significant. It is
titled “Key Points of Discussion” and the factors listed in the document were
“noted” by the Advisory Body in formulating its recommendation. This document
also formed part of the record that was before the Minister.
Reasonableness
[16]
Section
4.8 of the Aeronautics Act grants broad discretion to the Minister:
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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.
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4.8 Le ministre peut, pour l'application de
la présente loi, accorder, refuser, suspendre ou annuler une habilitation de
sécurité.
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[17]
As
this Court explained in Fontaine v Transport Canada Safety and Security,
2007 FC 1160, air safety is an issue of substantial importance and access to
restricted areas is a privilege, not a right.
[18]
When
applying the standard of reasonableness the Court looks to the existence of
justification, transparency and intelligibility in the decision-marking process
and whether the decision falls within the range of acceptable outcomes that are
defensible on the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[19]
In
exercising his discretion under this section the Minister may consider any
factor that he considers relevant: Fontaine, para 78. This includes
criminal charges that do not result in a conviction and evidence about a
person’s character or propensities: Clue at para 20. The fact that the
charges were stayed against the applicant is not determinative. Prosecutions
proceed, or do not proceed, for a variety of reasons; hence the absence of a
conviction is not determinative. In my view, a proper analogy can be made to
inadmissibility proceedings under the Immigration and Refugee Protection Act,
SC 2001,
c 27.
The mere fact of criminal charges is not probative but a Court can look at the
underlying circumstances. In Thuraisingam v Canada (Minister of Citizenship
and Immigration), 2004 FC 607 at paragraph 35, Justice Anne MacTavish
wrote:
In my view, a
distinction must be drawn between reliance on the fact that someone has been
charged with a criminal offense, and reliance on the evidence that underlies
the charges in question. The fact that someone has been charged with an offense
proves nothing: it is simply an allegation. In contrast, the evidence
underlying the charge may indeed be sufficient to provide the foundation for a
good-faith opinion that an individual poses a present or future danger to
others in Canada.
[20]
Secondly,
the absence of a criminal conviction cannot be determinative given the
different standards of proof which prevail in the two discrete legal contexts.
A criminal conviction is sustained on proof beyond a reasonable doubt. Denial
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.
[21]
This
disposes of the applicant’s submission that the Minister was prohibited from
considering her arrest because she had the incident expunged from the Canadian
Police Information Centre (CPIC), the federal repository for criminal and
non-criminal records. The absence of a criminal record does not purge her name
from all and any sources that might be consulted on a background check for
civil purposes. As stated above, the Minister may consider any evidence that
he considers relevant. The Minister not only relies on the results of a CPIC
search, but also the records of the Canadian Security Intelligence Service (CSIS) and the
files of various law enforcement agencies. While the applicant’s information
may have been removed from CPIC, it was still in the RCMP records.
[22]
In
concluding, it is noteworthy that the Application for Restricted Area Identity
Card, Part E requests the applicant’s consent. It provides:
For security clearance purposes under section 4.8 of the Aeronautics
Act and the Transportation Security Clearance Program for airport workers
and pursuant to Part 5 of the Marine Transportation Security Regulations
for maritime facilities workers (hereinafter “security clearance purposes”), I
consent to the disclosure by Transport Canada to the Royal Canadian Mounted
Police, the Canadian Security Intelligence Service, Citizenship and Immigration
Canada and law enforcement agencies, of any and all information provided by me
in support of this application. Without limiting the generality of the
foregoing, this includes information relating to my date of birth, education,
residential history, employment history, and immigration and citizenship status
in Canada. I also consent to the disclosure and use of my fingerprints and
facial image for identification purposes.
For security clearance purposes, I hereby authorize Transport
Canada to seek, verify, assess, collect and retain any and all information
relevant to this application including any criminal records and any and all
information contained in law enforcement files, including intelligence gathered
for law enforcement purposes, and information with respect to my immigration
and citizenship status, as well as any and all information that will facilitate
the conduct of a security assessment.
[23]
The
applicant consented to the Minister undertaking the inquiries that lead to his
decision. The Minister was entitled under the terms of the Security Policy to
consider conduct short of a conviction. Therefore, the question becomes
whether this incident could reasonably lead the Minister to deny the applicant
a security clearance.
[24]
As
noted, the standard of proof required to support a reasonable belief that a
person may be induced to interfere with the security of civil aviation is lower
than what is required for a criminal conviction. The Minister must have
reasonable grounds to believe 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: Clue at para 20.
[25]
In
Fontaine, the Minister cancelled Mr. Fontaine’s security clearance by
reason of his past association with individuals who were members of a criminal
organization. Mr. Fontaine emphasized that they were childhood friends and
that he was not a member of that organization. This Court found that the
Minister’s decision was reasonable in those circumstances, as these individuals
might have a negative influence on him.
[26]
In
this case, the applicant’s husband was implicated in a sophisticated
dial-a-dope trafficking operation, and used a car of which she was the
principle operator. That car included a secret compartment containing a
variety of controlled substances and a loaded, prohibited firearm. While there
may not have been sufficient evidence to convict the applicant, the facts
reasonably support a belief she was either closely connected to this activity
or wilfully blind to it.
[27]
Cocaine
and heroin are imported into Canada and the applicant’s access to a restricted
area of an airport could attract the attention of her husband or his criminal
associates. While the applicant is currently seeking a divorce, this evidence
was not before the Minister when he reached his decision. At the time of the
decision they had been separated for months.
[28]
The
applicant has argued that the Advisory Board misunderstood certain evidence:
(1)
Whether
she fled the scene or stayed in her vehicle;
(2)
The
date of her arrest; and
(3)
Whether
she changed her name back to her original name in 2007.
[29]
The
Advisory Board noted that the applicant had said that she remained seated in
the car but the RCMP report stated that she had attempted to flee. The
Advisory Board did not make a finding of fact regarding whether or not she
fled, but it noted the discrepancy.
[30]
I
accept the applicant’s argument that her conduct is a material consideration.
Her conduct in fleeing or remaining in the passenger seat constitutes some
evidence from which inferences could be drawn as to the extent of her knowledge
of her husband’s activities and of the contents of the vehicle. However, this
factor must be situated in the context of the circumstances as a whole, and
that of the other evidence. The secret compartment in the car, the loaded
weapon, the absence of an explanation for her actions on the date of the arrest
and the seriousness of the crime all provide ample support for the
reasonableness of the conclusion, independent of the discrepancy. Put
otherwise, the decision withstands the scrutiny of justification, transparency
and intelligibility, whether the applicant fled or remained in the car.
[31]
The
applicant provided evidence that the police incorrectly stated the date of her
arrest. The police report provided to the Minister stated that she was
arrested on December 22, 2006 whereas her evidence shows the date as May 1,
2007. Nothing turns on this clerical error. There is no dispute as to what,
in general terms, happened.
[32]
Finally,
while the applicant changed her name on November 17, 2009, the Advisory Board
incorrectly stated that this change was “back to her original name”
(emphasis added). There is no indication that the Minister’s decision was
based on this name change. This minor error in the Advisory Board’s notes
does not render the Minister’s decision unreasonable.
[33]
The
applicant also considers it unreasonable for the Advisory Board to have noted
that, as the applicant lived with her husband, she must have known about his
criminal activity. The drugs and weapon were found inside the vehicle that was
registered with her as the principle operator. She was present with her
husband when the search warrant was executed. The amount and variety of drugs
recovered demonstrated that her husband had substantial involvement in serious
criminal activity. These are grounds to support a reasonable belief that the
applicant was either aware of or wilfully blind to her husband’s illegal
activities, such that the Security Policy criteria were engaged.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed, with costs.
"Donald J.
Rennie"
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