Docket: T-2007-15
Citation:
2016 FC 892
Vancouver,
British Columbia, August 2, 2016
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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EDMUND VUNG
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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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JUDGMENT
AND REASONS
[1]
This is an application made by Mr. Edmund Vung
for the judicial review of a decision of Ms. Brenda Hensler-Hobbs, Director
General, Aviation Security for Transport Canada [Minister’s Delegate] acting on
behalf of the Minister of Transport [Minister], dated November 3, 2015, denying
the applicant’s application for a security clearance at the Vancouver
International Airport [the Airport].
[2]
The applicant is employed as a Helicopter
Engineer by Hyland Helicopters. To expand the duties he could perform while
working, he applied on April 17, 2014 for a security clearance and a
corresponding Restricted Area Identity Card [RAIC]. In the meantime, he was
issued a temporary pass which allowed him to access secure areas in the company
of a permanent pass holder.
[3]
On February 11, 2015, Transport Canada,
Transportation Security Screening Program [Transport Canada] received a Law
Enforcement Records Check report [LERC Report] from the Royal Canadian Mounted
Police’s Security Intelligence Background Section [RCMP SIBS]. On February 24,
2015, the applicant received a letter from Transport Canada outlining three
incidents giving rise to concerns regarding his suitability to possess a
security clearance. The incidents dated back to July 2007, November 2007 and
November 2011.
[4]
The LERC Report set out that:
•
In
July 2007, while on patrol, members of the Burnaby RCMP approached a parked
vehicle containing 3 occupants including the applicant as a passenger. A smell
of dried marihuana coming from inside the vehicle was noted. All parties were
detained under the Controlled Drug and Substances Act, and 2 grams of marihuana
were seized from one of the subjects. The driver identified himself with a
forged driver's license which was seized along with an opened case of beer. The
parties were all given a verbal warning and released;
•
In
November 2007, while on patrol 2 members of the Burnaby RCMP observed a subject
placing a canister of bear spray underneath a semi-truck. Upon close
inspection, police found a bag containing ecstasy pills, marihuana, and what
appeared to be cocaine, another canister of bear spray and another small bag of
marihuana. At the time, the applicant and another individual were also in the
vicinity. Members were unable to determine ownership therefore all items were
seized for destruction and no charges were laid;
•
In
November 2011, a member of the Burnaby RCMP observed the applicant on foot in a
cul-de-sac in Burnaby, BC, accompanied by an individual known to police as
being involved in criminality and street gang activity.
[5]
The LERC Report set out that subjects mentioned
in the report included:
•
Subject
“A”, who:
- Was
with the applicant in one of the incidents mentioned above;
- Is
associated to a possible “grow rip crew”
and has documented loose association with the United Nation (UN) Gang
whose criminal activity includes cocaine and marihuana trafficking
including cross border drug trafficking. They are also known to be
involved in violent crimes.
•
Subject
“B”, who:
- Was
involved with the applicant in one of the incidents mentioned above;
- Is
presently accused under the CDSA of Trafficking and Possession for the
Purpose of Trafficking;
- In
2008, was convicted of Breaking and Entering with Intent;
- Is
a member of the West Bradley et al street gang (The report notes that
aboriginal gangs are noted to be among the most prone to perpetrating
violent offences. The REDD Alert, Bradley West crew, and Indian Posse
are involved in a protracted conflict on Vancouver's Downtown Eastside
over drug territory);
- In
2011, admitted to police of having been in the drug trade since he was
13 years old and mostly deals with crack.
[6]
On March 2, 2015 the applicant provided a brief
response. He simply denied any on-going association with the people mentioned
in the February 24, 2015 letter. The applicant states in the March 2 Email:
( . . .) I am reassuring you, Transport Canada, and the
Transportation Advisory Body that I no longer have any association, with any of
the subjects mentions [sic] in the letter.
[7]
On August 25, 2015, the Advisory Body for the Transportation Security Clearance
Program [Advisory Body] recommended that the
Minister cancel the
applicant’s security clearance.
Indeed, on November 3, 2015, the Minister’s Delegate denied the applicant’s
application for a security clearance at the Airport on the grounds that she had
reason to believe, on a balance of probabilities, that the applicant may be
prone or induced to conduct an act that may unlawfully interfere with civil
aviation.
[8]
At the hearing, the applicant’s counsel did not
pursue before the Court the general allegation made in his memorandum of fact
and law that a breach of procedural fairness had occurred. In a nutshell, the
applicant submits today that the Decision is unreasonable because the
Minister’s Delegate failed to take into consideration or give adequate weight
to relevant considerations, namely the dated nature of the information provided
by the RCMP SIBS and the lack of evidence of the applicant’s participation in
any wrongdoing in drug trafficking. Furthermore, the applicant submits that the
Decision is based on inferences which are unsupported by the evidence,
including the finding that the applicant associated with two individuals
connected to street gangs. The applicant has indeed denied any current
association with the “subjects” in question
while the most recent incident dates back to 2011.
[9]
The present case does not raise any particular
issue of law and turns on a pure question of fact, or of mixed fact and law.
The case law is clear on the broad discretion conferred on the Minister to
refuse, suspend, or cancel a security clearance, and which is contemplated by
section 4.8 of the Aeronautics Act, RSC 1985, c A-2 and the various
relevant provisions of the Canadian Aviation Security Regulations, 2012,
SOR/2011-318 [Regulations] (see Wu v Canada (Attorney General), 2016 FC
722).
[10]
The present application must fail. I find that
the Decision to refuse the applicant's clearance falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. I basically endorse the arguments made by the respondent in her memorandum
of fact and law and which were reasserted at the hearing by her counsel. In
addition to the materials, representations and cases submitted by counsel, I
have considered the decision rendered in (Israel v Canada (Minister of
Citizenship and Immigration), 2013 FC 385) and invoked after the hearing by
the applicant’s counsel. The comments made by the Court in this refugee matter
are not determinative and do not change my reasoning.
[11]
First, I note that the reasons to deny the
application for a security clearance certificate are intelligible and
transparent.
[12]
Indeed, the Advisory Body noted, as set out in
its Summary of Discussion, that:
•
The
applicant has no criminal convictions;
•
Transport
Canada, Security Screenings Program, received a report from the RCMP dated
February 11, 2015, detailing the applicant's involvement in criminal activities
related to drugs;
•
The
Advisory Body noted three incidents related to drugs from 2007-2011;
•
The
Advisory Body also noted that at the time of the first incident the applicant
was 17 years old;
•
The
Advisory Body noted that, in July 2007, while on patrol, members of Burnaby
RCMP approached a parked vehicle containing three occupants including the
applicant, who was a passenger. A smell of dried marijuana coming from inside
the vehicle was noted. Two grams of marijuana (estimated street value $20) was
seized from one of the subjects. An open case of beer was also found;
•
The
Advisory Body further noted that in November 2007, while on patrol, two members
of the Burnaby RCMP observed a subject placing a canister of bear spray
underneath a semi-truck. Police found a bag containing ecstasy pills,
marijuana, what appeared to be cocaine, another canister of bear spray and
another small bag of marijuana. The applicant and another individual were in
the vicinity when the items were found. It was noted that cocaine is a serious,
addictive substance and is not considered an entry-level drug;
•
The
Advisory Body noted in November 2011, a member of Burnaby RCMP observed the
applicant on foot in a cul-de-sac in Burnaby, BC, accompanied by an individual
known to police as being involved in criminality and street gang activity;
•
The
Advisory Body also noted the applicant's association to an individual who is
associated to a possible “grow rip crew” and has
documented loose association with the UN Gang, who has a presence in the Lower
Mainland and their criminal market is cocaine and marijuana trafficking
including cross border drug trafficking, are involved in violent crime and are
business associates of other gangs;
•
The
Advisory Body further noted the applicant's association to another individual
who is presently accused of Trafficking and Possession for the Purposes of
Trafficking, who has been convicted of Breaking and Entering with Intent, who
is a member of the West Bradley et al street gang, and who has admitted to
police having been involved in the drug trade since he was 13 years old,
dealing mostly with crack;
•
The
Advisory Body noted that aboriginal gangs are noted to be among the most prone
to perpetrating violent offences. The REDD Alert, Bradley West Crew and Indian
Posse are involved in a protracted conflict on Vancouver's Downtown Eastside
over drug territory. The Bradley West Crew are well known, violent and to be
feared;
•
The
Advisory Body noted the exploitation of Canadian airport facilities is a
current threat to airport transportation security, and Canadian airports could
be susceptible to exploitation by organized crime groups;
•
The
Advisory Body further noted that while the applicant does confirm his
association with the individuals in his written submission, he does not address
any of the other issues or provide any further information;
•
The
Advisory Body noted the applicant had contact with one of the association after
he had completed school;
•
A
review of the file led the Advisory Body to have reason to believe, on a
balance of probabilities, that he may be prone or induced to commit an act, or
assist or abet an individual to commit an act that may unlawfully interfere
with civil ·aviation.
[13]
Second, I note that there has been no serious
attack by the applicant on the particular content of the LERC Report and the
general reasoning of the Advisory Body. The Advisory Body considered the written
submissions provided by the applicant; however, the submissions did not provide
sufficient information to dispel the Advisory Body's concerns. This Court has,
in this respect, repeatedly confirmed that it is reasonable for the Minister to
refuse or cancel a security clearance on the basis of associations with
criminals or gang members. The Minister's delegate had before her
uncontradicted information that the applicant associated with individuals
connected to organized drug crime. It turns out that the applicant submitted a
very brief and inconclusive response to the information set out in the LERC
Report. The March 2 Email does not contain a denial of any of the events
alleged in the LERC Report. It does not offer any explanation for the
applicant's involvement in the events set out in the LERC Report. It does not
suggest that the applicant is unaware of who the individuals described as “Subject A” and “Subject B”
are. To the contrary, he appears sufficiently certain that he knows who they
are, since he asserts that he “no longer has any
association” with either. He also does not suggest when he stopped
associating with criminals and gang members. It was not unreasonable for the
Minister’s delegate to be left with a belief on a balance of probabilities 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.
[14]
Third, it is not the role of this Court to
substitute itself for the Minister and to reassess the totality of the
evidence. The applicant now invokes the passage of time and his youth at the
time of the incidents. Overall, I find it nevertheless not unreasonable for the
Minister to refuse a security clearance on the basis of drug activity and
associations with criminals in 2007 and 2011, which is not so long ago. The
applicant also submits that there was an erroneous finding of fact, as the
Minister's delegate referred to three incidents related to drugs, while he says
that there was nothing connecting his being accompanied by a known street gang
member to drugs. Again, I find that there was nothing unreasonable about the
Minister’s delegate classifying an incident where the applicant was observed by
the RCMP accompanying a known street gang member as an incident related to
drugs.
[15]
In the case at bar, the applicant submits that,
irrespective of the result, no costs should be awarded to the winning party,
while the respondent seeks costs in the amount of $2000 in case of dismissal.
Costs normally follow the result of the case. I find no special reason to
exercise my discretion not to allow costs in favour of the respondent. The
claimed amount of $2000 is reasonable in the circumstances.
[16]
For all these reasons, the present application
is dismissed with costs of $2000 in favour of the respondent.
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