Docket: T-1454-13
Citation:
2014 FC 1141
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 27, 2014
PRESENT: The Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
PIERRE-LOUGENS HENRI
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicant (or Mr. Henri) is an
aeronautics mechanic. He has been working for several years for Air Transat
airlines at the Montréal–Pierre Elliott Trudeau International Airport. Mr. Henri
has been performing this job there in what are known as restricted areas,
access to which is limited to individuals who hold a security clearance,
renewable every five years, issued under the Aeronautics Act, RSC, 1985,
c A‑2 (the Act) and its regulations.
[2]
One of the objectives of this statutory
framework is to prevent access to these restricted areas by any person who, in
the opinion of the Minister of Transport, Infrastructure and Communities (the
Minister), may be prone or induced to commit, or to assist or abet any person
to commit, an unlawful act for civil aviation.
[3]
Since the late 1990s, Mr. Henri has held a
security clearance that gives him access to certain restricted areas of Pierre
Elliot Trudeau airport. At the time of the most recent renewal exercise of said
clearance, Mr. Henri was informed that the clearance was being reviewed
because of his association with individuals involved in criminal activities. He
was invited at that time to respond to this allegation, which he did. Deeming
the response insufficient to alleviate his concerns regarding this association,
the Minister cancelled Mr. Henri’s security clearance.
[4]
It is this decision that Mr. Henri is challenging.
He is asking that it be set aside, believing that it was made in violation of
the principles of procedural fairness and that it is, in any event,
unreasonable. For the following reasons, the applicant’s application for
judicial review must fail.
I.
Background
A.
Airport security
[5]
Air safety is an issue of substantial importance
(Thep-Outhainthany v Attorney General of Canada, 2013 FC 59, 425
FTR 247, paragraph 17) and it is a function of, among other things,
airport security. According to the Act, the Minister is responsible for
promoting security in Canadian airports, which includes controlling access to
restricted areas of certain designated airports. Pierre Elliot Trudeau airport
is one of those airports.
[6]
Access to these restricted areas is more
specifically governed by the Canadian Aviation Security Regulations, 2012,
SOR/2011-318. Pursuant to these regulations, such access is limited to persons
in possession of a restricted area identity card whose issuance is conditional
on, inter alia, the person to whom it is issued possessing a security
clearance.
[7]
In accordance with section 4.8 of the Act, the
Minister is vested with the power to grant, refuse to grant, suspend or cancel
a security clearance. This power is discretionary (Clue v Attorney General
of Canada, 2011 FC 323, at paragraph 14), and to support the
exercising of this power, the Minister adopted a policy called the “Transportation Security Clearance Program” (the Security
Clearance Program), whose aim is “the prevention of
unlawful acts of interference with civil aviation by the granting of clearances
to persons who meet the standards set out in this Program.” One of the
underlying objectives of the Security Clearance Program is, more specifically,
to prevent the uncontrolled entry into a restricted area of an airport by any
individual who the Minister believes may be prone or induced to commit, or to
assist or abet any person to commit, an unlawful act for civil aviation.
[8]
The Security Clearance Program is administered
by Transport Canada’s Director of Security Screening Programs (the Director)
and, for the most part, sets out the procedure for processing and reviewing
security clearance applications. Under this process, all security clearance
applications are analyzed by the Director and include, at minimum, a
fingerprint-based criminal records check, a check of the relevant files of law
enforcement agencies, and a Canadian Security Intelligence Service indices
check.
[9]
When, at the end of his review, the Director
believes there is reason to recommend the refusal, suspension or cancellation
of a security clearance, he convenes the Advisory Body created pursuant to the
Security Clearance Policy. Once seized of the case, the Advisory Body in turn
proceeds with a full analysis of the case and makes a recommendation to the
Minister. To that end, the Advisory Body may consider any factor that is
relevant. Once its recommendation has been communicated to the Minister, the
latter makes a decision pursuant to section 4.8 of the Act.
B.
The review of the applicant’s security clearance
[10]
As previously stated, Mr. Henri has held a
security clearance enabling him to access the restricted areas of Pierre Elliot
Trudeau airport since the late 1990s. During the renewal process of said
clearance in 2012, some adverse information raised doubts about
Mr. Henri’s fitness to retain such a clearance. Therefore, additional
checks were deemed necessary, and on April 4, 2013, the Royal Canadian
Mounted Police (the RCMP) provided the Director with a law enforcement record
check report.
[11]
On April 12, 2013, the Director’s office,
based on this report, informed Mr. Henri by letter that his security
clearance was under review because of his association with individuals involved
in criminal activities. Specifically, the said letter linked Mr. Henri to
two individuals who were members of a street gang in Montréal in the following
circumstances:
a.
The first (Subject A) was arrested in
January 2011 at Pierre Elliott Trudeau airport, travelling from Haiti, in
possession of cocaine and an electronic device containing photos of two
individuals working in baggage handling for Air Canada at the Port-au-Prince
airport, photos attached to an email from Mr. Henri;
b.
Though he initially denied knowing him during a voluntary
forensic interview with the RCMP held in November 2011, Mr. Henri
nevertheless identified Subject A from a photo presented by the
investigator;
c.
The second (Subject C) is the one through
whom Mr. Henri’s email containing the photos of the two Port-au-Prince
airport employees passed to Subject A; an analysis of telephone records
that was conducted on the cellular telephone numbers that Mr. Henri was
using at the time indicates that Mr. Henri allegedly contacted
Subject C approximately 63 times, including 38 times during the period, in
2011, in which Subject C was incarcerated;
d.
Mr. Henri was observed a number of times at
the residence of Subject C and was in constant telephone communication
with his residence.
[12]
The letter of April 12, 2013, also stated:
a.
That following the seizure of the electronic
device in Subject A’s possession at the time of his arrest, the RCMP had initiated
an investigation to attempt to analyze the degree of internal corruption at
Pierre Elliott Trudeau airport;
b.
That Mr. Henri was the primary target of
that investigation, since the RCMP had reasonable grounds to believe that he
had been—or was going to be—involved in the commission of offences related to
the importation of drugs and the possession of drugs for the purposes of
trafficking;
c.
That checks of the land register and bank
records seemed to substantiate Mr. Henri’s involvement in the commission
of this type of offence, since they established that Mr. Henri was the
owner of three buildings with a combined value of $869,400 and that relatively
large sums had passed through his bank accounts, thus painting a picture of
assets and a financial situation that, in the RCMP’s opinion, was incompatible
with the salary of a mechanic employed by Air Transat; and
d.
That despite the presence of incriminating
evidence, the RCMP’s investigation had been closed without any charges being
laid because it was impossible to determine beyond a reasonable doubt
Mr. Henri’s involvement in the importation of narcotics.
[13]
Finally, the letter of April 12, 2013,
informed Mr. Henri of the existence of the Security Clearance Program, as
well as the existence and mandate of the Advisory Body and the grounds upon
which it could base its recommendation to the Minister to grant, refuse to
grant or cancel a security clearance. Said letter also contained, at the very
end, the following notice:
[translation]
Transport Canada encourages you to provide
additional information describing the circumstances surrounding the
aforementioned information and associations, and to provide additional relevant
information or an explanation, including any extenuating circumstances, within
20 days of receiving this letter. Any information that you provide us will
be considered when making the decision regarding your security clearance. This
information may be submitted by mail to the attention of Transport Canada
(ABPB), . . . , or by facsimile to . . . , or by email to the following
address: . . . .
If you wish to discuss these issues further,
please contact Pauline Mahon at . . . .
[14]
On June 20, 2013, after contacting the
Director’s office twice, obtaining two extensions and retaining the services of
counsel, Mr. Henri submitted to said office, in the form of an email to
which was attached a letter from his counsel, a response to the letter of
April 12, 2013, in which Mr. Henri essentially:
a.
Reiterated the impact that cancelling his
security clearance would have on his employment;
b.
Denied any involvement in the illegal
importation of cocaine that gave rise to Subject A’s arrest, or in any
other criminal activity;
c.
Denied having questionable associates, stating
in that regard that Subject C was the brother of his former spouse with
whom he had a child, and that his contact with him was limited to providing him
with assistance and advice;
d.
Endeavoured to demonstrate the legitimacy of his
interests in the three buildings registered in his name and of his banking
transactions; and
e.
Explained that he had neither permitted nor
authorized Subject C to be in possession of or transmit to any person the
photos of the two employees assigned to baggage handling at the Port-au-Prince
airport.
[15]
On June 25, 2013, the Advisory Body
convened under the Security Clearance Program met to review Mr. Henri’s
case and, at the end of that review, recommended to the Minister the
cancellation of his security clearance. The Advisory Body’s recommendation was
based on the fact that it seemed reasonable to believe, on a balance of
probabilities, that Mr. Henri may be prone or induced to commit, or to
assist or abet any person to commit, an unlawful act for civil aviation because
of his ties with Subjects A and C and because of the RCMP’s investigation
indicating his suspected involvement in the importation of drugs through Pierre
Elliott Trudeau airport.
[16]
On July 17, 2013, the Advisory Body’s
recommendation was confirmed, on behalf of the Minister, by the Director
General, Aviation Security, at Transport Canada, and on the 29th of that same
month, Mr. Henri was advised of it in writing. The Minister’s decision
explained, inter alia, that the response Mr. Henri had submitted to
the letter of April 12, 2013, did not contain sufficient information to
alleviate his concerns stemming from Mr. Henri’s recent contacts with
Subjects A and C and Mr. Henri’s suspected involvement in importing
drugs through Pierre Elliott Trudeau airport. In short, the Minister was also
of the opinion, based on all of the information before him, that there was
reason to believe, on a balance of probabilities, that Mr. Henri may be
prone or induced to commit, or to assist or abet any person to commit, an
unlawful act for civil aviation. All of this raised considerable concerns, in
the Minister’s opinion, about Mr. Henri’s judgment, reliability and
honesty.
[17]
In the letter of July 29, 2013,
communicating his decision to Mr. Henri, the Minister informed
Mr. Henri of his right to apply to the Federal Court for a review of his
decision. That is what Mr. Henri chose to do in this case.
II.
Issues and standard of review
[18]
This case essentially raises two issues. The
first is whether the Minister’s decision to cancel the applicant’s security
clearance was consistent with the rules of procedural fairness. The second
involves the actual merits of said decision.
It is well established that the standard of
review that the Court applies to the first issue is that of correctness, while
the standard applicable to the second is that of reasonableness (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Clue, above, at
paragraph 14; Peles v Attorney General of Canada, 2013 FC 294, at
paragraphs 9 and 10; Pouliot v Minister of Transport, Infrastructure
and Communities, 2012 FC 347, at paragraph 7; Fontaine v Transport
Canada Safety and Security, 2007 FC 1160, 313 FTR 309, at paragraph 63;
Thep-Outhainthany, above, at paragraph 11; Sylvester v Attorney
General of Canada, 2013 FC 904, at paragraphs 10 and 11; Fradette v
Attorney General of Canada, 2010 FC 884, at paragraph 17). The
parties do not challenge this.
[19]
Before proceeding with the analysis of these two
issues, I must first deal with the preliminary objection raised by the respondent,
that of the admissibility of certain segments of Mr. Henri’s affidavit in
support of this application for judicial review. The respondent maintains that,
insofar as Mr. Henri therein alleges facts that were not before the
Minister at the time that he issued the decision that Mr. Henri is
challenging, these facts, to which the memorandum filed by Mr. Henri in
this matter extensively refers, cannot be considered by the Court in the
analysis of this application.
[20]
Specifically, the respondent argues that this
affidavit contains a set of new facts about, inter alia,
Mr. Henri’s training and his employment with Air Transat, his dealings
with his former spouse and Subjects A and C, and his meetings with the
RCMP officers as part of the investigation of which he was the primary target.
[21]
After reviewing the affidavit in question, I
find that the respondent’s objection is well founded. The case law of this
Court is clear on this point: judicial review is directed at the legality of
the decision of the administrative decision-maker, which assumes the review of
the record as it existed before that decision-maker; it does not, therefore, allow
for an improvement of the factual matrix of the record, since that would be
changing the fundamental nature of this proceeding (Spasoja v Canada (Minister
of Citizenship and Immigration), 2014 FC 913, at paragraph 22; Ontario
Assn. of Architects v Assn. of Architectural Technologists of Ontario, 2002
FCA 218, [2003] 1 FC 331; Vennat v Canada (Attorney General) (FC), 2006 FC
1008, [2007] 2 FCR 647, at paragraph 43; Chopra v Canada (Treasury
Board), 168 FTR 273, [1999] FCJ No 835 at paragraph 5; Peles,
above, at paragraphs 11 and 12; Lorenzen v Transport Canada Safety and
Security, 2014 FC 273, at paragraph 30).
[22]
There are only two exceptions to this principle,
namely, where the new evidence relates to issues of procedural fairness or to
issues associated with the decision-maker’s jurisdiction (Peles, above,
at paragraphs 11 and 12; Ontario Assn. of Architects v Assn. of
Architectural Technologists of Ontario, above, at paragraph 30; McFadyen
v Canada (Attorney General), 2005 FCA 360, at paragraphs 14 and 15).
Although Mr. Henri raises issues of procedural fairness in this case, the
new evidence contained in his affidavit is not related to those issues. It
instead aims to improve the response that he submitted to the Director on
June 20, 2013. As such, it is inadmissible. Moreover, even if it were a
relevant factor in the analysis of the admissibility of this new evidence,
nothing on the record shows that Mr. Henri was unable to submit this
evidence to the Minister in a timely manner.
[23]
Therefore, the respondent’s objection is
allowed, with the result that I will consider, in his analysis of the
Minister’s decision, only the evidence that was before him at the time he
issued said decision.
III.
Analysis
A.
Procedural fairness
[24]
Mr. Henri maintains that the Minister
breached the duty of fairness owed to him. He believes that since the
repercussions of cancelling his security clearance were significant for him and
his family, in that it involved his ability to retain his employment, a high
standard of justice was required.
[25]
He argues that this high standard of justice
required that he have clear knowledge of the case against him; that he be
advised of the assessment process that would be used, his burden of proof and
the consequences of an insufficient and/or incomplete response from him; that
he be granted a genuine opportunity to submit observations and that these be
duly considered; and lastly, that any public document relating to the
allegations against him be reviewed by the Minister.
[26]
With respect, I cannot concur with the point of
view that the rules of procedural fairness were breached in this case.
[27]
First, it is important to determine the specific
content of the Minister’s duties in this regard. The issue of the scope of the
duty to act fairly, which is a concept that varies depending on the context and
the criteria developed by the Supreme Court of Canada in Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, primarily, has
been considered more than once by the Court in the context of the cancellation
of security clearances in relation to air safety. The case law, I believe, reveals
the following findings:
a.
Air safety is an issue of substantial importance,
and access to restricted areas of designated airports is consequently a
privilege, not a right (Thep-Outhainthany, above, at paragraph 17; Sylvester
v Attorney General of Canada, above, at paragraph 18);
b.
The Minister’s power, in this context, to grant,
refuse to grant, suspend or cancel a security clearance is discretionary and
specialized (Clue, above, at paragraph 14) and, when exercising
that power, the Minister may consider any factor that is relevant (Thep-Outhainthany,
above, at paragraph 19);
c.
This power is forward-looking, in the sense that
relies on prediction; in other words, it does not require the Minister to
believe, on a balance of probabilities, that an individual will commit an act
that will unlawfully interfere with civil aviation or will assist or abet any
person to commit an act that would do so; he need only be convinced that the
individual may do so (MacDonnel v Attorney General of Canada, 2013 FC
719, at paragraph 29);
d.
Therefore, it does not require the Minister to
be convinced beyond a reasonable doubt that the individual whose security
clearance is under review will commit such an act; cancelling the security
clearance remains in this sense a purely administrative decision, in which the
innocence of the parties is not at stake and the seriousness of the potential
consequences of a negative decision differs from those in criminal trials and
proceedings (May v Ferndale Institution, 2005 SCC 82, at
paragraphs 91–92; Thep-Outhainthany, above, at paragraphs 20–21;
Sylvester, above, at paragraphs 18–19); and
e.
Though the content of the duty of procedural
fairness is slightly higher when an existing clearance is cancelled than when
someone is refused clearance for the first time, it is still, nevertheless, on
the lower end of the spectrum (Pouliot, above, at paragraph 10); in
practical terms, this means that the procedural safeguard related to the
process that may lead to the cancellation of a security clearance is limited to
the right to know the alleged facts and the right to make representations about
those facts; it does not include the right to a hearing (Pouliot, above,
at paragraph 10; Rivet v Attorney General of Canada, 2007 FC 1175, at
paragraph 25; DiMartino and Koska v Canada (Minister of Transport),
2005 FC 635, at paragraph 36; Peles, above, at paragraph 16;
Clue, above, at paragraph 17).
[28]
There is no doubt in my mind that this standard
was met in this case. Although it is not an example of model writing, the
letter of April 12, 2013, was sufficiently detailed and specific so as to
enable Mr. Henri to know the nature and extent of the Director’s concerns,
to understand that the cancellation of his security clearance was one of the
possible outcomes of the review of said clearance that the letter very clearly
announced, and to know that the opportunity to respond to said concerns was
being offered to him.
[29]
Mr. Henri claims that the letter of
April 12, 2013, did not provide sufficient detail about the identity and
number of individuals with whom he was having questionable dealings or about
the precise nature of said dealings, and as a result he did not have a genuine
opportunity to make representations. He also maintains that the identified
dates on which the photos of the two Port-au-Prince airport employees were
allegedly passed to Subject A make this allegation [translation] “incomprehensible
and illogical.”
[30]
This argument is purely retrospective and must
be rejected. First, insofar as the concerns expressed in the letter of
April 12, 2013, were unclear to him, it was open to Mr. Henri to request
clarification. Moreover, said letter invited him to do so in no uncertain
terms. Furthermore, that is what he did on May 2, 2013, by conveying to
the Director’s office his surprise and lack of understanding regarding some of
the allegations identified in the letter of April 12, 2013.
[31]
Yet, nothing in his subsequent communications
with the Director’s office regarding the letter of April 12, 2013, or in
his official response to said letter, including the letter from his counsel at
the time, gave any indication of the matter of which he is complaining today.
Specifically, the letter from counsel states the following:
[translation]
But let us return to your letter. We note
that the allegations or issues raised are serious. However, after checking the
facts and, in particular, the various bank statements, notarial acts and loan
agreements of Mr. Henri, we note that said allegations have no merit.
. . .
We hope that these explanations and
corrections will be sufficient to remove any doubt about Mr. Henri’s integrity
and honesty and to maintain his current clearance.
[32]
I see nothing there that indicates an inability
to respond fully and genuinely to the concerns raised in the letter of
April 12, 2013.
[33]
Mr. Henri also maintains that he expected
the Director to get back to him to request additional information from him that
could clarify his response of June 20, 2013. However, there is no evidence
in the record suggesting that the Director may have made such a commitment or
created such an expectation on the part of Mr. Henri.
[34]
The concept of legitimate expectation with
regard to procedural fairness requires evidence of the decision-maker’s
behaviour (National Anti-Poverty Organization v. Canada (Attorney General)
(FCA), [1989] 3 FC 684, [1989] FCJ No 443 (QL), at paragraphs 31–32; Brink’s
Canada Ltd. v Canada Council of Teamsters (FCA), 185 NR 299, [1995] FCJ No
1114 (QL), at paragraphs 25–26; Trépanier v Canada (Attorney General),
2004 FC 1326, 259 FTR 86, at paragraph 35). The fact that Mr. Henri
showed that he was willing and available to provide the Director with any
additional information following his response of June 20, 2013, is of no
assistance to him in the absence of evidence establishing that the Director had
suggested he would have the opportunity to supplement the response, once his
review was complete, based on the questions that it may have raised among those
who were conducting the review.
[35]
Mr. Henri was encouraged to respond to the
letter of April 12, 2013. He was given 20 days to do so. He
requested, and obtained, two extensions of that deadline, inter alia to
give him time to retain counsel and enable counsel to conduct the checks that
he deemed necessary or helpful. In this sense, he had a genuine opportunity to make
his representations. Nothing in the rules of procedural fairness imposes on the
administrative decision-maker any duty to ensure, before issuing a decision,
that the representations submitted by the affected party were clear, complete
and persuasive.
[36]
Mr. Henri also maintains that the fact that
the letter of April 12, 2013, merely [translation]
“encouraged him” to respond to the letter of April 12, 2013, gave no
indication of the importance of the upcoming decision. There again, this
argument must fail. The response of June 20, 2013, including the letter
from Mr. Henri’s counsel, makes it abundantly clear that Mr. Henri,
as well as his counsel at the time, was well aware of the importance of the
exercise being conducted and the potential repercussions on his personal
situation, with Mr. Henri explicitly referring to the loss of his
employment as an inescapable consequence of cancelling his security clearance.
[37]
His argument based on the description, in the
Minister’s decision, of his association with Subjects A and C as [translation] “recent contacts,” as if
they were new facts not brought to his attention in the letter of
April 12, 2013, must equally fail. A reasonable review of the entire
record shows that those contacts could only be the ones referred to in the
letter of April 12, 2013. In addition, as the reference here is to
contacts dating back to 2011, the use of the description [translation] “recent” was certainly not
completely inappropriate or a reasonable source of confusion.
[38]
Mr. Henri criticizes the Minister for not
having considered the available public documents pertaining to the three
buildings that he owns. Although this argument has, in my opinion, more to do
with the issue of the reasonableness of the Minister’s decision than the issue
of procedural fairness, it is of no assistance to the applicant since,
regardless of the perspective from which it is considered, the Minister’s
decision did not reiterate the inferences drawn in the letter of April 12,
2013, in relation to the ownership of said buildings and to the banking
transactions. One must then assume that the explanations Mr. Henri provided
in that regard were sufficiently complete and convincing for the Minister to
consider that said inferences could not serve as a basis for cancelling his
security clearance.
[39]
Finally, Mr. Henri maintains that the
Minister, and the Advisory Body before him, failed to personally consider the
evidence gathered by the RCMP and about which the report was submitted to the
Director on April 4, 2013. Here again, although this argument is more
concerned with the issue of the reasonableness of the Minister’s decision than
that of procedural fairness, it is confronted with two important elements of
the process that could lead to the cancellation of a security clearance.
[40]
The first of these two elements deals with the
status of the information obtained from the RCMP for the purposes of the verification
process for security clearances. This Court has already ruled that the
reliability of this information is sufficient, even if, in such a context, it
constitutes hearsay (Fontaine, above, at paragraph 75; MacDonnel,
above, at paragraph 31). The second element that Mr. Henri’s argument
is confronted with is in some ways the corollary of the first: the Minister is
not required to cross-check information obtained from the RCMP (Fontaine,
above, at paragraph 75; MacDonnel, above, at paragraphs 16 and
31). I note that the burden on the Minister, when he must decide whether or not
to cancel a security clearance, is much less onerous than in a criminal matter;
it requires only the belief, based on a balance of probabilities and the
assumption that information obtained from the RCMP or other law enforcement
agencies is reliable, that the person who holds the security clearance may be
prone to commit or to assist a third party to commit an act that may unlawfully
interfere with civil aviation (Sylvester, at paragraph 19). As my
colleague Mr. Justice Harrington reiterated in MacDonnel, above,
the onus is on the person who holds the security clearance to address the
Minister’s concerns (MacDonnel, above, at paragraph 34).
[41]
I conclude that, in general, the process that
led to the decision to cancel Mr. Henri’s security clearance was conducted
in compliance with the rules of procedural fairness that apply to this type of
decision, and that this means of challenging said decision must consequently be
rejected.
B.
Reasonableness of the Minister’s decision
[42]
As I have already stated, given the
discretionary and specialized nature of the Minister’s power under
section 4.8 of the Act, and given the goal of this section, which is to prevent
the uncontrolled entry of undesirable people into restricted areas of Canadian
airports, Mr. Henri had to convince the Court that the Minister’s decision
to withdraw his security clearance was unreasonable. In concrete terms, this
means it is not sufficient to disagree with the impugned decision or to
demonstrate that an alternate reading of the facts would have been preferable
to the Minister’s reading.
[43]
The standard of reasonableness is concerned more
with the justification, transparency and intelligibility of the impugned
decision and whether it falls within a range of possible, acceptable outcomes
with regard to the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190). It requires from the Court a certain amount of deference to the
conclusions of the administrative decision-maker and provides that it is not in
the Court’s purview to reweigh the evidence and substitute its point of view
for that of the administrative decision-maker (Dunsmuir, at
paragraph 47; Jarvis v Canada (Attorney General), 2011 FC 944, at
paragraph 23; Kissoon v Canada (Minister of Human Development Resources),
2004 FC 24, at paragraph 5 (affd 2004 FCA 384)).
[44]
Mr. Henri is essentially arguing that the
Minister’s decision is unreasonable in that the Minister allegedly failed to
consider important evidence, namely, the public documents regarding his
buildings and the evidence gathered by the RCMP for the purposes of the report
of April 4, 2013, including the video and audio recordings of the voluntary
forensic interview with the RCMP held in November 2011, as well as the photos,
text messages and telephone records to which the letter of April 13, 2013,
refers.
[45]
As I have already stated, this argument cannot
succeed. On the one hand, whether or not the Minister considered the public
documents pertaining to the applicant’s buildings is no longer relevant since
the Minister’s decision is not based on the inferences drawn in the letter of
April 13, 2013, in relation to the ownership of those buildings or the
banking transactions identified therein. On the other hand, the criticism
levelled at the Minister regarding the evidence in the RCMP’s possession
indicates, with respect, a misunderstanding of the Minister’s role and of the verification
process for security clearances. As I have already noted, the reliability of
the information that the RCMP conveyed to the Minister must be considered
sufficient. It is not up to the Minister to cross-check it; the onus is on the
person who holds the security clearance to demonstrate that the Minister’s
concerns, stemming from that information, are unfounded (Fontaine, above,
at paragraph 75; MacDonnel, above, at paragraphs 16 and 31; Sylvester,
at paragraph 19; MacDonnel, above, at paragraph 34).
[46]
In this case, Mr. Henri, in his response to
the letter of April 12, 2013, focussed primarily on the inferences drawn
from the ownership of his buildings and from his banking transactions. The rest
of the concerns expressed in the letter of April 12 were, in a way,
generally denied. Like my colleague Mr. Justice Manson in Peles, above,
it is necessary to ask oneself in this regard why the applicant, whose burden
it was, did not make a more vigorous attempt to demonstrate the nature of his
contact with Subject A, whom he identified in the end, or what may have
led to the fact that no charges were laid against him following the
investigation, conducted by the RCMP, of which he was the primary target.
[47]
In these circumstances, the decision of the
Minister, who is responsible for ensuring air safety and, consequently, the security
of Canadian airports, appears to me to fall within the range of possible,
acceptable outcomes based on the facts and law that apply in this case.
[48]
Therefore, the applicant’s application for
judicial review will be dismissed with costs.
Email this Content