Dolinski v. Canada (Attorney General)
Between
Daryl Paul Dolinski, Applicant, and
Attorney General of Canada, Respondent
Daryl Paul Dolinski, Applicant, and
Attorney General of Canada, Respondent
[2013] F.C.J. No.
1104
2013 FC 1030
Docket T-1317-12
Federal Court
Edmonton, Alberta
Heneghan J.
Heard: April 10, 2013.
Judgment: October 10, 2013.
Docket T-1317-12
Federal Court
Edmonton, Alberta
Heneghan J.
Heard: April 10, 2013.
Judgment: October 10, 2013.
(30 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
HENEGHAN J.:--
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charge was withdrawn.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:
· 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.
* * *
· 4.8 Le ministre peut, pour l'application de la présente loi,
accorder, refuser, suspendre ou annuler une habilitation de sécurité.
23 The
following provisions of the TSCP are also relevant:
· 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
· [...]
the Minister reasonably
believes, on a balance of probabilities, may be prone or induced to
commit an act that may
unlawfully interfere with civil aviation; or
assist or abet any
person to commit an act that may unlawfully interfere with civil
aviation.
· II.35
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.
In making the
determination referred to in subsection (1), the Advisory Body may consider any
factor that is relevant, including whether the individual:
has been convicted or
otherwise found guilty in Canada or elsewhere of an offence including, but not
limited to:
any indictable offence
punishable by imprisonment for more then 10 years,
trafficking,
possession for the purpose of trafficking or exporting or importing under the
Controlled Drugs and Substances Act,
any offences contained
in Part VII of the Criminal Code - Disorderly Houses, Gaming and Betting,
any contravention of a
provision set out in section 160 of the Customs Act,
any offences under the
Security Of Information Act; or
vi. any offences under Part III of the
Immigration and Refugee Protection Act;
Immigration and Refugee Protection Act;
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.
* * *
· 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:
· [...]
qui, selon le ministre
et les probabilités, est sujette ou peut être incitée à:
commettre un acte
d'intervention illicite pour l'aviation civile; ou
aider ou à inciter
toute autre personne à commettre un acte d'intervention illicite pour
l'aviation civile.
· II. 35
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.
Au moment de faire la
détermination citée au sous-alinéa (1), l'Organisme consultatif peut considérer
tout facteur pertinent, y compris:
si la personne a été
condamnée ou autrement trouvé coupable au Canada ou à l'étranger pour les
infractions suivantes:
tout acte criminel
sujet à une peine d'emprisonnement de 10 ans ou plus;
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;
tout acte criminel
cité dans la partie VII du Code criminel intitulée "Maison de désordre,
jeux et paris";
tout acte contrevenant
à une disposition de l'article 160 de la Loi sur les douanes;
tout acte stipulé dans
la Loi sur les secrets officiels; ou
tout acte stipulé dans
la partie III de la Lois sur l'immigration et la protection des réfugiés.
si elle possède une
mauvaise réputation en matière de crédit et qu'elle occupe un poste de
confiance; ou
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.
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.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed, no order as to
costs.
HENEGHAN J.
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