Docket: T-193-14
Citation:
2015 FC 853
Ottawa, Ontario, July 13, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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DODSON
HENDERSON WEEKES
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a
decision of Transport Canada refusing the Applicant’s application for a
transportation security clearance [the clearance] required to work at Lester B.
Pearson International Airport in Toronto, Ontario [the airport].
II.
Factual Background
[2]
The Applicant has been employed as a baggage
handler for Servisair at the airport, a position that requires access to
restricted areas of the airport. He initially obtained a clearance in 1997, to
be renewed every five years, and the most recent renewal occurred on June 11,
2012.
[3]
On August 13, 2013 the Royal Canadian Mounted
Police [the RCMP] provided Transport Canada with a Law Enforcement Records
Check report [the RCMP Report] regarding the Applicant, which it indicated as
follows:
- The Applicant is associated with three other
individuals employed at the airport, identified only as Subjects A, B, and
C [the Subjects], who are believed to be co-conspirators in a drug importation
ring at the airport;
- The YYZ Airport Intelligence Unit received
information from a reliable human source on May 7, 2007 indicating that
the Applicant and the Subjects were attending the airport on their days
off to retrieve controlled substances from international flights;
- On May 14, 2007, the Canadian Border Services
Agency [CBSA] observed Subject A offloading baggage onto a conveyor belt
at Terminal 3 of the airport and that one of the offloaded suitcases was
found to contain twenty bricks of cocaine hidden in two small backpacks;
- The Applicant and the remaining two Subjects were
identified as being at Terminal 3 that day, despite not being scheduled to
work;
- The packing strategy observed by the CBSA is a “strong indicator” of an internal conspiracy and
employee corruption;
- A January 25, 2008, report by the YYZ Airport
Intelligence Unit revealed that the Applicant and the Subjects were
believed to be part of a group suspected of smuggling narcotics out of the
airport and that there was electronic data indicating that the Applicant
and Subject A were attending the airport on their days off and using their
Restricted Area Identity Cards [RAICs] to access secure doors within the
airport; and
- The RCMP’s Toronto Airport Drug Enforcement Unit
received information from a reliable confidential human source that the Applicant
can and does conspire to import drugs with individuals other than Subject
A at the airport;
[4]
In a letter dated August 22, 2013 [the Letter],
the Chief of Security Screening Program [SSP] advised the Applicant that the
SSP had received adverse information regarding his suitability to retain the
clearance and that his clearance would be reviewed by the Transportation
Security Clearance Advisory Body [the Advisory Body], which would in turn provide
a recommendation to the Minister of Transport [the Minister]. The Letter
included, in nearly verbatim detail, the allegations outlined in the RCMP
Report.
[5]
The Letter directed the Applicant to consult the
Transportation Security Clearance Program Policy [the Policy] and
encouraged him to provide any additional information or explanation, including
any extenuating circumstances. The Applicant did not provide any response to
the Letter.
[6]
The Advisory Body convened on November 19, 2013
and recommended cancelling the Applicant’s clearance based on its conclusion
that the information on file led the Advisory Body to reasonably believe, on a
balance of probabilities, that the Applicant may be prone or induced to commit
an act or to assist or abet any person to commit an act that may unlawfully
interfere with civil aviation.
[7]
The final decision to cancel the clearance was
made on behalf of the Minister by Ms. Erin O’Gorman, the Director General of
Aviation Security and was communicated to the Applicant in a letter dated
December 13, 2013. The decision essentially reiterated the factors considered
by the Advisory Board and its concerns regarding the Applicant’s suitability
for the clearance.
III.
Issues
[8]
The singular issue in this application for
judicial review is whether there was a breach of procedural fairness.
IV.
Standard of Review
[9]
The standard of review for questions of
procedural fairness in the context of transportation security clearances is
correctness (Sylvester v Canada (Attorney General), 2013 FC 904 at para
11 [Sylverster], citing Clue v Canada (Attorney General), 2011 FC
323 [Clue]).
V.
Analysis
[10]
In security clearance cases, it has been said
that the level of fairness is “limited to the right to
know the facts alleged against [the Applicant] and the right to make
representations about those facts” (Salmon v Canada (Attorney
General), 2014 FC 1098 at para 27 [Salmon], Sylvester at para
11, citing Poulot v Canada, 2012 FC 347 and Rivet v Canada (Attorney
General), 2007 FC 1175 at para 25 [Rivet]).
[11]
The Applicant submits that there was a breach of
procedural fairness in that he was denied a meaningful opportunity to directly
address the allegations against him since the Letter did not include the
identity of the Subjects, the specific dates that he was alleged to have
attended the airport on his days off and accessed restricted areas, or the
specific areas in Terminal 3 where he was believed to have been seen.
[12]
The Applicant relies entirely on the recent
decision of Meyler v Canada (Attorney General of Canada), 2015 FC 357, 250
ACWS (3d) 542 [Meyler] by Justice Rennie, setting aside a similar
decision of the Minister on procedural fairness grounds. The applicant in Meyler
was one of three subjects mentioned in a report by the RCMP and, like the
Applicant in the present case, she had lost her security clearance.
[13]
In summarizing the difficult position that the applicant
in Meyler found herself in, Justice Rennie stated as follows:
[35] In sum, the applicant has lost her
employment on the basis of allegations that sometime perhaps between 2007-2009,
or perhaps subsequent to 2009 and 2013, she associated, in some unspecified
way, with a certain unspecified individual in a major drug importation scheme
at Pearson. Other than a minor charge many years ago for the theft of
children’s Tylenol from a drug store, the applicant has no criminal
record. She has never been interviewed in respect of the alleged criminal
activity relied on in the decision letter. She has never been charged in
respect of these matters.
[36] What was the case the applicant
was to meet? Was her involvement in a plot between 2007-2009, as the decision
letter indicated, or was it her involvement in a current investigation, as
suggested by the RCMP? Why did the Department of Transport wait over three years
before acting on the information, said to originate from reliable sources? The
case the applicant had to meet was a miasma of unspecified allegations and
distilled to the assertion that at some point between 2007 and 2013 she
associated with an unidentified person who was involved in drug smuggling at
Pearson. How she was associated, and what she, in particular, did in respect of
the smuggling operation, even in the most rudimentary terms of date, time and
place, remain unknown.
[14]
The Respondent concedes that the decision of
Justice Rennie should govern the outcome of this decision, but submits that
Court must consider the individual in Meyler made serious attempts to
obtain further particulars of the allegations, all of which were refused, while
the Applicant did nothing in response to the fairness letter in this matter. It
is the Respondent’s position that this factual difference is significant.
[15]
However, the Applicant pointed out that all of
Ms. Meyler’s requests were refused during the same period that he would have
been asking for the same particulars and argues that, as can be seen from the
facts described in Meyler, the Respondent’s argument has no foundation
in reality.
[16]
I agree that the Respondent’s argument is too
artificial in reality. There was no chance that any request from the Applicant
would have been responded to positively. Accordingly, I apply the Meyler decision
to this matter and allow the application setting aside the Minister’s decision
revoking the Applicant’s security clearance. The order shall similarly require
the re-determination to be made in accordance with the reasons in Meyler.
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