Docket:
T-1317-12
Citation: 2013 FC 1030
Ottawa, Ontario, October
10, 2013
PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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DARYL PAUL DOLINSKI
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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
I. INTRODUCTION
[1]
Mr. Daryl Paul Dolinski (the “Applicant”) seeks
judicial review of the decision of the Minister of Transport, Infrastructure
and Communities (the “Minister”), dated June 6, 2012. In this decision, the Director
General of Aviation Security, on behalf of the Minister, cancelled the
Applicant’s security clearance, pursuant to section 4.8 of the Aeronautics
Act, R.S.C. 1985, c. A-2 (the “Act”) and the Transportation Security
Clearance Program (“TSCP”).
[2]
The application for judicial review is taken
pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7 and the Federal
Courts Rules, SOR/98-106 (the “Rules”).
[3]
The Attorney General of Canada (the
“Respondent”) represents the Minister in this proceeding.
II. FACTS
[4]
The Applicant obtained security clearance at the
Edmonton International Airport in 2006. On January 25, 2007, he and another
airport employee were apprehended smoking marijuana in the Applicant’s car.
Marijuana and a scale were also found in the car. The Applicant was charged for
possession of marijuana but the charge was withdrawn.
[5]
In 2008, the Applicant began working for Air Canada as a baggage handler.
[6]
On February 23, 2009, the Applicant was pulled
over by the police. The officer observed what he believed to be marijuana and
charged the Applicant with possession of a controlled substance. The officer
also found $1180 in cash and fifty ecstasy tablets. As well, the officer found
messages on the Applicant’s cell phone from people asking to buy drugs and
received a call from someone asking to “get two”.
[7]
The Applicant was charged with possession of a
controlled substance for the purpose of trafficking under subsection 5(2) of
the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”)
and possession of the proceeds of crime under subsection 355(b) of the Criminal
Code, R.S.C., 1985, c. C-46. On December 7, 2009, the Applicant pled guilty
to the lesser offence of possession of a controlled substance under subsection
4(1) of the CDSA and received a conditional discharge with twelve months
probation. The Applicant retained his security clearance and continued to work
for Air Canada. On April 3, 2011, he applied for renewal of his security
clearance.
[8]
By letter dated March 27, 2012, the Applicant
was informed by N. Dupuis, the Chief of Security Screening Programs, Security
Programs Support at Transport Canada, that his security clearance would be
reviewed by the Transportation Security Clearance Advisory Body. The reason for
the review was that information had been obtained which raised concerns about
the Applicant’s suitability for clearance, that is information about the
January 2007 and February 2009 incidents.
[9]
On April 12, 2012, the Applicant submitted a
letter explaining the two incidents, a letter from his lawyer, a letter from
his supervisor, and a letter from a Dr. Pagliaro, an expert witness who had
been retained by the Applicant in connection with the criminal charges against
him.
[10]
On April 20, 2012, the Applicant’s security
clearance was automatically renewed on the basis of a policy permitting
automatic renewal, given the length of the review process. On April 25, 2012,
the Applicant phoned the Edmonton International Airport Pass Control Office
which informed him of the renewal and he began to use this pass.
III. DECISION
UNDER REVIEW
[11]
On May 10, 2012, the Advisory Board reviewed the
Applicant’s security clearance and recommended that it be cancelled. On June 6,
2012, the Director General of Aviation Security, for the Minister, decided to
cancel the Applicant’s security clearance. The decision referred to the
information which the Applicant provided.
[12]
The Director General concluded that the
information regarding the Applicant’s recent drug-related criminal offences,
including the information regarding texts and calls to his phone from
individuals asking to buy drugs, led him to believe that on a balance of
probabilities the Applicant might be prone to commit an act, or assist or abet
an individual to commit an act, that may unlawfully interfere with civil
aviation. The Director General also stated that the Applicant’s written
statement did not contain sufficient information to address his concerns and
that insufficient time had passed to demonstrate a change in the Applicant’s
behaviour.
[13]
By letter dated June 7, 2012, the Applicant was
advised by the Director General of Aviation Security that the Minister had
cancelled his transportation security clearance. The reasons provided in this
letter are the same as those in the decision of June 6, 2012.
IV. SUBMISSIONS
[14]
The Applicant argues that the decision was
unreasonable. Section I.4 of the TSCP requires that the Minister hold a
reasonable belief that a person may be prone to commit an act that unlawfully
interferes with civil aviation, or to assist or abet a person in committing
such an act. Relevant factors set out in section II.35(2)(a) of the TSCP
include convictions for trafficking or possession for the purpose of
trafficking, exporting, or importing, under the CDSA.
[15]
The Applicant submits that he was not convicted
of such offences, but rather of possession, for which he received a conditional
discharge. Although the Court noted in Lavoie v. Canada (Attorney General),
2007 FC 435 at paras. 23-26 that a conditional discharge does not prevent the
Minister from considering a conviction, in that case the offence was listed in
II.35(2)(a). Possession is not included in section II.35(2)(a). He argues that
the Minister’s decision was based on a factor not contemplated by the TSCP.
[16]
For his part, the Respondent argues that the Minister’s
decision was reasonable. The Minister had to consider whether reinstating the
Applicant’s security clearance would be contrary to the objectives set out in
section I.4 of the TSCP. In making a decision under section I.4.4 of the TSCP,
the Minister may consider any relevant factor, including but not limited to,
those listed in II.35(2)(a).
[17]
The Respondent further submits that the jurisprudence
is clear that the Minister may consider relevant factors not enumerated in the
TSCP, including criminal charges resulting in a conviction, charges resulting
in some other outcome, and conduct not resulting in criminal charges; see the
decision in Fontaine v. Canada (Transport) (2007), 313 F.T.R. 309.
[18]
In Russo v. Canada (Transport) (2011), 406
F.T.R. 49, this Court held that the applicant’s use of marijuana was a relevant
consideration as he associated with criminals when purchasing the drug. In Lavoie,
supra, this Court determined that the Advisory Board and Minister were
not limited by the lack of a conviction or by the list in II.35(2)(a).
[19]
As in Russo, supra, the Applicant’s
association with criminals when purchasing marijuana is a relevant factor. The
Minister’s decision was also not based solely on the guilty plea and conditional
discharge. Rather, the Minister considered several relevant factors including
the 2007 charge for possession and the information indicative of drug
trafficking.
[20]
The Respondent argues that a relatively low standard of
proof is applicable to security clearance decisions. A refusal only requires a
reasonable belief, on a balance of probabilities, that a person may be prone or
induced to act to commit or assist in an act that may unlawfully interfere with
civil aviation. A refusal can be based on a reasonable suspicion (Fontaine,
supra, paras. 74-75, 81-82; Lavoie, supra,
para. 29; Clue, supra, para. 20). Section I.4.4 involves
an assessment of a person’s character or propensities and does not require
evidence of the actual commission of an unlawful act (Clue, supra,
para. 20).
[21]
Here, the Advisory Body noted the conditional discharge and withdrawn
charge, the RCMP reports, the Applicant’s possession of a scale, the text
messages and calls, that he was using drugs on his break at work, the
Applicant’s failure to address any of the information indicative of dealing,
and the recent nature of the incidents.
V. DISCUSSION AND
DISPOSITION
[22]
The relevant provision of the Act is section 4.8
as follows:
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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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[23]
The following provisions of the TSCP are also relevant:
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I.4 The objective of this Program is to
prevent the uncontrolled entry into a restricted area of a listed airport by
any individual who
[…]
4. the Minister reasonably believes, on a
balance of probabilities, may be prone or induced to
o commit an act that may
unlawfully interfere with civil aviation; or
o assist or abet any person to
commit an act that may unlawfully interfere with civil aviation.
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L'objectif de ce programme est de
prévenir l'entrée non contrôlée dans les zones réglementées d'un aéroport
énuméré dans le cas de toute personne:
[…]
4. qui, selon le ministre et les
probabilités, est sujette ou peut être incitée à:
o commettre un acte
d'intervention illicite pour l'aviation civile; ou
o aider ou à inciter toute autre
personne à commettre un acte d'intervention illicite pour l'aviation civile.
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II.35
1. The Advisory Body may recommend to the Minister
the cancellation or refusal of a security clearance to any individual if the
Advisory Body has determined that the individual’s presence in the restricted
area of a listed airport would be inconsistent with the aim and objective of
this Program.
2. In making the determination referred to in
subsection (1), the Advisory Body may consider any factor that is relevant,
including whether the individual:
a. has been convicted or otherwise found guilty in
Canada or elsewhere of an offence including, but not limited to:
i. any indictable offence punishable by
imprisonment for more then 10 years,
ii. trafficking, possession for the purpose of
trafficking or exporting or importing under the Controlled Drugs and
Substances Act,
iii. any offences contained in Part VII of the
Criminal Code - Disorderly Houses, Gaming and Betting,
iv. any contravention of a provision set out in
section 160 of the Customs Act,
v. any offences under the Security Of Information
Act; or
vi. any offences under Part III of the Immigration
and Refugee Protection Act;
3. 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.
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II. 35
1. L'Organisme consultatif peut
recommander au ministre de refuser ou d'annuler l'habilitation d'une personne
s'il est déterminé que la présence de ladite personne dans la zone
réglementée d'un aéroport énuméré est contraire aux buts et objectifs du
présent programme.
2. Au moment de faire la
détermination citée au sous-alinéa (1), l'Organisme consultatif peut
considérer tout facteur pertinent, y compris:
a. si la personne a été condamnée
ou autrement trouvé coupable au Canada ou à l'étranger pour les infractions
suivantes:
i. tout acte criminel sujet à
une peine d'emprisonnement de 10 ans ou plus;
ii. le trafic, la possession dans
le but d'en faire le trafic, ou l'exportation ou l'importation dans le cadre
de la Loi sur les drogues et substances contrôlées;
iii. tout acte criminel cité dans
la partie VII du Code criminel intitulée « Maison de désordre, jeux et paris
»;
iv. tout acte contrevenant à une
disposition de l'article 160 de la Loi sur les douanes;
v. tout acte stipulé dans la Loi
sur les secrets officiels; ou
vi. tout acte stipulé dans la
partie III de la Lois sur l'immigration et la protection des réfugiés.
3. si elle possède une mauvaise
réputation en matière de crédit et qu'elle occupe un poste de confiance; ou
4. qu'il est probable qu'elle
participe à des activités directes ou en appui à une menace ou qu'elle se
livre à des actes de violence sérieuse contre la propriété ou des personnes.
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[24]
The TSCP states that the Advisory Board may consider
“any factor that is relevant” and that offences to consider include but are not
limited to those listed in II.35(2)(a). In Russo, supra Justice
Russell dismissed a judicial review application where the applicant had been
convicted of possession and production of marijuana, and admitted to continued
occasional use of marijuana.
[25]
The within application relates to the Minister’s decision to cancel a
security clearance. This decision is a discretionary one, having regard to
section 4.8 of the Act and the provisions of the TSCP cited above. Such a
decision is reviewable on the standard of reasonableness; see the decisions in Fradette
v. Canada (Attorney General), 2010 FC 884 at para. 17 and Clue v. Canada (Attorney General), 2011 FC 323 at para. 14. Accordingly, the only substantive
issue arising is whether the Minister’s decision was reasonable.
[26]
In my opinion, the Minister’s decision was reasonable.
The Applicant’s argument that the TSCP’s drug-related concerns are restricted
to trafficking runs counter to the policy’s plain language and the wide
discretion afforded the Minister.
[27]
I am satisfied that the Minister’s decision was
reasonable in light of the evidence submitted and the applicable standard of
proof. In Clue, supra, para. 20, Justice Barnes noted that the
standard of proof in such cases involves an assessment of a person’s character
or propensities and does not require evidence of the actual commission of an
unlawful act. This rationale was applied in the recent decision of Peles v.
Attorney General of Canada, 2013 FC 294.
[28]
Although the first charge against the Applicant had
been withdrawn and he had received a conditional discharge for the second, the
Advisory Body noted the evidence suggested trafficking, that the Applicant had used
drugs while on a break from work, and that the events were fairly recent.
[29]
This evidence reasonably supports the Minister’s
conclusion that the Applicant, on a balance of probabilities, might be prone or
induced to commit, or to assist or abet an individual to commit, an act that
unlawfully interferes with civil aviation.
[30]
In the result, the application for judicial
review is dismissed. In the exercise of my discretion, pursuant to Rule 400(1)
of the Rules I make no order as to costs.
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