Date:
20160426
Docket: T-2018-15
Citation:
2016 FC 469
Ottawa, Ontario, April 26, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ZAHID SATTAR
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Applicant
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and
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CANADA
(MINISTER OF TRANSPORT)
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Respondent
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JUDGMENT AND REASONS
[1]
This a judicial review of a decision of a
delegate of the Minister of Transport [the Minister] dated November 6, 2015,
cancelling the Applicant’s Transportation Security Clearance [TSC] at Vancouver
International Airport pursuant to section 4.8 of the Aeronautics Act,
RSC, 1985, c A-2 [the Act]. For the reasons that follow, I would dismiss the
application.
I.
Background
[2]
The Applicant, Zahid Sattar, has been an
employee of Securiguard Services Ltd. at the Vancouver International Airport
since 1999. He currently holds the position of Airside Safety Escort, which
requires that he hold a restricted area identity card [RAIC]. A RAIC can only
be acquired after having received security clearance under the Transport Canada
Security Clearance Program [TSCP] (Canadian Aviation Security Regulations,
2012, SOR/2011-318, subsections 165(a), 146(1)(c); Transportation Security
Clearance Program Policy, Article II.1 [TSCP Policy]).
[3]
The Applicant obtained a TSC and a RAIC in 2004,
which have been renewed several times since.
[4]
The TSCP’s objective is to prevent unlawful
interferences with civil aviation. Specifically, it prohibits certain
individuals from uncontrolled access to airports’ restricted areas, including
any individual who the Minister reasonably believes, on a balance of
probabilities, 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
(TSCP Policy, Article I.4).
[5]
The Minister has unfettered discretion to grant,
refuse to grant or suspend a security clearance under section 4.8 of the Act.
In applying this discretion, the Minister relies on the TSCP Policy (Meyler
v Canada (Attorney General), 2015 FC 357 at para 3 [Meyler]; Henri
v Canada (Attorney General), 2016 FCA 38 at para 26 [Henri]).
[6]
The TSCP Policy outlines the process to be
followed in the case of a TSC refusal, cancellation or suspension, including
the affected person’s right to be given notice of the allegations and a right
to make submissions. The matter is initially referred to an Advisory Body,
which in turn makes a recommendation to the Minister, or his or her delegate.
Upon receipt of the Advisory Body’s recommendation, the Minister makes the
final determination whether to refuse or cancel an individual’s TSC.
[7]
By letter dated May 12, 2015 [the May Letter],
Transport Canada informed the Applicant that as a result of adverse
information, his suitability to hold a TSC was being reviewed. The May Letter
set out the concerning information obtained from an RCMP Law Enforcement Record
Check Report [LERC Report]. It encouraged the Applicant to provide additional
information and explain the following six incidents:
- In 2005, the
Applicant was listed as the new owner of the Players Club bar in Surrey,
known to be frequented by Hells Angels’ members;
- In November
2005, the Applicant was identified at a Hells Angels’ event at the Players
Club;
- In August 2009,
the Applicant was a passenger in a vehicle stopped by RCMP for a traffic
violation, along with three individuals;
- In March 2010,
police identified the Applicant in a bar with individuals known to be
current or past gang associates and ejected them under the Bar Watch
Program;
- In July 2010,
the RCMP observed the Applicant and another individual, who was linked to
Indo-Canadian gang members, attempting to evade police detection and when
identified, the Applicant was intoxicated and belligerent with police: he
was arrested, and soon afterwards released; and
- In March 2011,
police learned that the Applicant was in Penticton to attend a stag for a
UN Gang member.
[8]
The May Letter also provided details of ten
subjects with whom the Applicant associated in the above situations who were
tied to various criminal organizations and who had committed significant crimes,
including drug trafficking, homicide, assault, possession of a scheduled
substance for the purpose of trafficking, and possession of a prohibited
weapon.
[9]
The Applicant contacted Transport Canada and
requested to appear in person, but was advised his submissions must be in
writing.
[10]
On July 9, 2015, the Applicant responded to
Transport Canada by letter. He described personal details regarding his work
and education history; his strong connections with his family, local Mosque and
community; his acquaintances; and his personal life. In specific reply to the
May Letter’s noted concerns, the Applicant explained he was not associated or
involved with any criminal activity, and provided the following details:
- Regarding the
Players Club, he had paid a deposit with the intention of purchasing the
club but the sale did not complete. In his experience, members of the
Hells Angels did not frequent the Players Club;
- Regarding the
November 2005 Hells Angels’ event, the Applicant had been called to the
bar as its manager to deal with police: he had no knowledge the event that
night was hosted by the Hells Angels;
- With respect to
the incident of March 2010, the Applicant explained he was ejected from
the bar after speaking with individuals who simply recognised him from his
DJ work;
- The July 2010
allegation was a misunderstanding: the Applicant was working as a DJ and
was having a drink behind the bar with a childhood acquaintance. When
approached by police, he claims he felt discriminated against, but
maintains he was not drunk, did not attempt to evade police and was not
belligerent;
- He attended the
stag party of an acquaintance, unknowing of the bachelor’s alleged gang
connections; and
- The Applicant
could not identify any of the subjects by their description, but denied
that any family members were gang associates.
[11]
The Applicant also provided supporting
documentation that included 12 personal reference letters, a thank you letter
to Vancouver International Airport mentioning the Applicant, a letter from an
Islamic studies institute thanking the Applicant for financial contributions,
and a copy of the Players Club Liquor License from November 2005.
[12]
On September 22, 2015, an Advisory Body,
comprised of five Transport Canada officials, reviewed the Applicant’s
submissions and file. Seven other non-voting individuals were present. The
Advisory Body recommended that the Minister cancel the Applicant’s TSC based on
LERC Report details about his association with four gangs and ten individuals
associated with those gangs.
[13]
The Advisory Body found it reasonable to believe
that the Applicant knew he was associating with gang members, and that the
frequency and history of the Applicant’s associations to the ten individuals
demonstrated the unlikelihood of mere coincidence. It also considered the
Applicant’s submissions to be dismissive, lacking personal accountability, and
minimizing of each situation. Moreover, the discrepancies between the LERC
Report and the Applicant’s submissions caused them to question his credibility.
[14]
By letter dated November 6, 2015, the Minister,
through its delegate Ms. Hensler-Hobbs (Director General of Aviation Security),
informed the Applicant that his TSC had been cancelled [the Decision]. The
Decision was based upon review of the Applicant’s file, the May Letter, the
Advisory Body’s recommendation, the TSCP Policy and the Applicant’s
submissions.
[15]
The Decision states that the Applicant’s
associations raised concerns regarding his judgement, trustworthiness and
reliability. The Applicant was listed as owner of the Players Club, which
police know the Hells Angels frequent, and the Applicant attended a Hells
Angels’ event there. In addition to this association with the Hells Angels, the
Applicant is associated with individuals linked to three other criminal
organizations: nine individuals linked to the DUHRE Crime group, one individual
associated with Indo-Canadian gangs and one UN Gang member. The Minister
concluded that the frequency and history of the Applicant’s associations to
people within these crime groups indicate that these associations are not mere
coincidence. As well, the association of the Applicant, a security clearance
holder, to individuals involved in serious criminal activities, endangers
airport security.
[16]
The Decision notes that the Applicant’s
submission was insufficient to address the Minister’s concerns.
[17]
The Minister thus cancelled the Applicant’s
security clearance, concluding that there was reason to believe, on a balance
of probabilities, that the Applicant may be prone or induced to commit and act,
or assist or abet an individual to commit an act, that may unlawfully interfere
with civil aviation.
II.
Issues
[18]
The issues are:
- Did the Minister
breach any principle of procedural fairness in cancelling the Applicant’s
TSC?
- Was the
Minister’s Decision to cancel the Applicant’s TSC reasonable?
III.
Standard of Review
[19]
The standard of review for procedural fairness
is correctness. The substantive elements of the Minister’s Decision will be
reviewed the on the reasonableness standard (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47; Clue v Canada (Attorney General), 2011 FC 323 at
para 14).
IV.
Analysis
[20]
The relevant legislation is attached as Annex A.
A.
Did the Minister breach any principle of
procedural fairness in cancelling the Applicant’s TSC?
[21]
The Applicant submits that since the Decision
affects his livelihood, he is entitled to a greater level of procedural
fairness (Xavier v Canada (Attorney General), 2010 FC 147 at para 13; Meyler,
above, at para 26). While there is no guaranteed right to an oral hearing, the
Applicant submits that procedural fairness requires an oral hearing or at least
an opportunity to clarify conflicting information where a decision rests on
credibility.
[22]
The Applicant also argues the Decision was
unfair, as he did not know the case he had to meet. The Applicant was not
informed the Minister was reviewing his trustworthiness, judgment and
reliability, or that his likelihood of being prone or induced to commit an
unlawful act or to assist or abet an individual in interfering with aviation
was at issue.
[23]
Moreover, the Applicant submits that the
presence of two RCMP officers as non-voting attendees at the Advisory Body
meeting denied him of a meaningful opportunity to respond. He contends that
presumably those officers provided further insight into the LERC Report or
security concerns, and that it is unfair to permit one side to bolster their
allegations while denying that same opportunity to the Applicant. He was not
present, nor appraised of concerns arising at the meeting or permitted to
provide further information following those discussions.
[24]
I find that the Applicant’s right to procedural
fairness was respected for the reasons that follow.
[25]
The case law has established that where an
existing security clearance is being revoked, the duty of fairness, although
slightly more than minimal, is still on the lower end of the spectrum (Brown
v Canada (Attorney General), 2014 FC 1081 at paras 84-85 [Brown]; Pouliot
v Canada (Transport), 2012 FC 347 at paras 9-10 [Pouliot]).
[26]
The Minister enjoys a broad discretion in
determining whether to grant, refuse to grant or suspend security clearances
and ensuring the public safety under section 4.8 of the Act (Fontaine v
Canada (Transport Safety and Security), 2007 FC 1160 at para 80).
[27]
Any dispute over the level of procedural
fairness due in this context has been recently considered by the Federal Court
of Appeal: procedural fairness demands only that persons in the Applicant’s
situation be provided with a meaningful opportunity to respond to the facts
alleged against them, and for that response to be considered. There was no
obligation on the Minister or Advisory Board to provide the Applicant an oral
hearing or interview (Henri, above, at para 35).
[28]
Additionally, I disagree with the Applicant that
the Minister’s decision turned on the Applicant’s credibility: it was but one
of many issues the Advisory Body noted.
[29]
Nothing in the process followed in rendering the
Decision suggests the duty of fairness owed the Applicant was breached. The
procedures designated by the TSCP Policy were observed: the Applicant was
advised of the allegations in the LERC Report with sufficient disclosure to
respond, which he did. The Advisory Body reviewed the adverse information and
the Applicant’s submissions and made a recommendation to the Minister. In light
of this recommendation and upon review of the Applicant’s file, the Minister
made a final determination to cancel the Applicant’s TSC.
[30]
Moreover, as stated by Justice Catherine Kane in
Salmon v Canada (Attorney General), 2014 FC 1098 at para 60:
In addition, neither the Advisory Body or
the Director General had a duty to give the applicant a second opportunity to
respond to concerns that remained after considering his submissions upon making
its decision (Lorenzen, above, paras 51-52). Procedural fairness does
not require an ongoing opportunity to respond to the remaining concerns of the
decision-maker.
[31]
Nor was the Minister obliged to inform the
Applicant of each and every particular ground upon which he may be denied
security clearance (Pouliot, above, at paras 12-14).
[32]
The presence of non-voting attendees at the
Advisory Body meeting did not violate procedural fairness. The Record of
Discussion from the meeting illustrates that the Advisory Body considered the
LERC Report, which was detailed to the Applicant in the May Letter. The
Applicant has provided no basis to support his claim that the non-voting
attendees provided additional factual allegations against him to the Advisory
Body. Nor is there anything in the record to support that assertion. Where the
record indicates the non-voting attendees did nothing more than address factual
information of which the Applicant had prior knowledge, the requirements of
procedural fairness have not been breached (Jada Fishing Co v Canada
(Minister of Fisheries & Oceans), 2002 FCA 103 at para 17).
B.
Was the Minister’s Decision to cancel the
Applicant’s TSC reasonable?
[33]
The Applicant argues that the Minister’s
conclusion that he may pose a risk to aviation transportation because he could
be suborned by his alleged associates is unreasonable on the grounds that the
Minister failed to give sufficient or any weight to the Applicant’s submissions
and made the Decision without sufficient factual basis.
[34]
The Applicant states that since the allegations
in the LERC Report are hearsay in nature, it was unreasonable to favour it over
his submissions without providing justification why. He cites the decision in Ho
v Canada (Attorney General), 2013 FC 865 at para 28 [Ho], in which
Justice Sean Harrington found that the Minister’s statement that Mr. Ho’s submissions
did not contain sufficient information to address concerns was “in and of itself insufficient and opaque” and did not
meet the transparency standard outlined by Dunsmuir. While the Court
acknowledged that a decision may be justified on the record (NLNU v
Newfoundland & Labrador (Treasury Board), 2011 SCC 62), there was no
indication that Mr. Ho’s explanations were actually considered.
[35]
The Applicant analogises that reasoning to the
present case. Notwithstanding his detailed submissions that were supported by
reference letters, the Applicant argues that the Advisory Body found them “dismissive” and minimizing of the situations. In the
event of discrepancies, the Advisory Body preferred the LERC Report without
explaining why. The Minister’s conclusion that the Applicant was not credible
on the basis of discrepancies between his account and the LERC Report was also
unreasonable, as there were no indicia to support the inference the Applicant
was untruthful. Moreover, the Applicant’s references attested to his character
and his non-involvement in gangs, yet the Minister gave no reasons for
questioning their credibility and afforded them no weight.
[36]
Further, the Applicant argues that nothing about
the events listed in the LERC Report, individually or together, leads to a
reasonable conclusion the Applicant is at risk of being suborned to harm
aviation transport security. The Applicant submits there is abundant evidence
to the contrary: his references attested to the Applicant’s positive
reputation, trustworthiness, commitment to his work in security, his strength
of character, and his desire to be a role-model.
[37]
For purposes of revocation of a TSC the standard
of proof requires only a reasonable belief, on a balance of probabilities, that
a person may be prone or induced to commit an act (or to assist such an act)
that may unlawfully interfere with civil aviation (TSCP Policy, Article I.4).
This is a low standard involving a forward-looking propensity to do such an act.
In light of the TSCP’s purpose of protecting public safety, and the Minister’s
broad discretion in carrying out that aim, I find the Decision fell within the
range of acceptable outcomes.
[38]
In arguing that the Minister failed to give
sufficient or any weight to the Applicant’s submissions, the Applicant is
essentially requesting that the Court re-evaluate the evidence. It is not the
Court’s role on judicial review to reweigh the evidence, or to substitute its
views for those of the responsible decision-maker by preferring the Applicant’s
evidence over the LERC Report.
[39]
While I acknowledge and accept the Court’s
finding in Ho, above, that simply rejecting the Applicant’s reasons
without anything further failed to meet the requirement that reasons be
transparent, I do not find it applicable here. Although the Minister did not
individually assess each and every discrepancy in explaining why she preferred
the LERC Report over the Applicant’s submissions, she gave reasons explicitly
rejecting several of the Applicant’s explanations as unreasonable. It was open
to the Advisory Body and to the Minister to find the Applicant’s evidence
unsatisfactory to quell concerns surrounding his trustworthiness, judgement and
propensity for influence.
[40]
As noted by the Advisory Body and in the
Decision, it was the frequency and history of the Applicant’s association over
six years with ten individuals who had committed serious crimes, and who were
connected to four violent criminal organizations, that led to the belief that
those associations were more than mere coincidence, and the ultimate decision
to cancel the Applicant’s TSC.
[41]
While I am sympathetic to the implications this
decision will have on the Applicant’s employment, the Minister is entitled to
err on the side of public safety when balancing it against the Applicant’s
interests in accessing airport restricted areas – granted as a privilege, not a
right (Brown, above, at paras 64, 70-71, 74; Clue, above, at para
20).
[42]
I find that the Decision is justified by
transparent and intelligible reasons and that it falls within the range of
reasonable acceptable outcomes based on the evidentiary record before the
Advisory Body and the Ministerial delegate, and considering the Minister’s
broad, forward-looking perspective and role in ensuring public safety.
Accordingly, this application is dismissed.
[43]
The parties agreed at the hearing that the
successful party shall be entitled to $2000 in costs.
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