Haque v. Canada (Attorney General)

Haque v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-06-22
Neutral citation
2018 FC 651
File numbers
T-1352-16
Notes
Digest
Decision Content
Date: 20180622
Docket: T-1352-16
Citation: 2018 FC 651
Toronto, Ontario, June 22, 2018
PRESENT: The Honourable Mr. Justice Norris
BETWEEN:
HUSSAIN-UL-HAQUE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. OVERVIEW
[1] In February 2015 the applicant, who was employed by Air Canada Cargo at Lester B. Pearson International Airport, applied to the Minister of Transport for a Transportation Security Clearance [TSC]. The applicant requires a TSC before he can have access to restricted areas of the airport. On July 19, 2016, the Director General, Aviation Security, who was exercising delegated authority on behalf of the Minister, denied the application. She found that information about the applicant contained in a Law Enforcement Records Check Report led her “to reasonably believe, 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.” This was the sole reason for denying the application for a TSC.
[2] The applicant now applies for judicial review of this decision pursuant to s 18.1 of the Federal Courts Act, RSC 1985, c F-7.
[3] Two principal issues arise in this application: first, whether the requirements of procedural fairness were respected; and second, whether the decision of the Director General is reasonable.
[4] I have concluded that this application should be allowed. I am satisfied that the requirements of procedural fairness were respected. However, in several key respects the decision depends on findings that are not reasonably supported by the information before the Director General. The result is a decision that is not justified, transparent or intelligible. Accordingly, for the reasons developed further below, the application for judicial review is allowed and the Director General’s decision is set aside.
II. BACKGROUND
A. The TSC Application Process
[5] The respondent filed a background affidavit which describes generally how applications for TSCs are processed.
[6] The need for and the authority to grant or refuse to grant transportation security clearances at designated airports are set out in the Aeronautics Act, RSC 1985, c A-2 [the Act] and the Canadian Aviation Security Regulations, 2012 [the Regulations].
[7] As a matter of aviation safety and security, certain areas of airports are accessible only to authorized persons. Generally speaking, persons whose employment requires them to be in restricted areas of designated airports must first obtain a security clearance from the Minister.
[8] Section 4.8 of the Act provides:
Aeronautics Act, RSC, 1985, c A-2
Loi sur l’aéronautique, LRC (1985), ch A-2
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.
[9] Under s 3(1) of the Act, “security clearance” is defined as “a security clearance granted under section 4.8 to a person who is considered to be fit from a transportation security perspective” (habilitation de sécurité - Habilitation accordée au titre de l’article 4.8 à toute personne jugée acceptable sur le plan de la sûreté des transports).
[10] Once granted a security clearance, an individual may apply to the operator of a designated airport for a Restricted Area Identity Card. This card authorizes the individual to enter restricted areas of the airport.
[11] Section 4.3 of the Act provides that the Minister may delegate a number of his powers, duties or functions under the Act. The authority to grant or refuse a TSC is typically exercised by a senior official with Transport Canada pursuant to the Transportation Security Clearance Program [the Program].
[12] An applicant for an aviation TSC must complete and submit an application form. Among other things, an applicant must provide biographical information including current and past addresses, education and employment history, immigration and travel history, and marital status (and spousal biographical details if applicable).
[13] An applicant must also agree to submit to comprehensive background checks. To this end, an applicant must provide written consent to the release of various types of information to the RCMP or Transport Canada. This includes information from “any and all” Canadian or foreign law enforcement agencies pertaining to the applicant’s “criminal history, charges, court orders and any other information concerning [the applicant] contained in any accessible records and databases under their control.” The consent also explicitly contemplates the release of “information enabling investigation of [the applicant’s] associates and thus enabling determination of whether [the applicant] is of good character.” (The foregoing is drawn from the consent signed by the present applicant in 2015.) The results of these inquiries are compiled by the RCMP in a Law Enforcement Records Check Report [LERC Report] and communicated to the Security Screening Program.
[14] If information contained in the LERC Report (or other background checks) raises concerns on the part of the Director of Security Screening Programs about the suitability of an applicant for a TSC, the Director must refer the file to an Advisory Body established under the Transportation Security Clearance Program Policy [the Policy]. The Advisory Body is chaired by the Director and consists of members who are familiar with the aims and objectives of the security clearance program.
[15] Before the Advisory Body considers the matter, an applicant is advised by letter of the specific information received that has raised concerns regarding his or her suitability for a TSC. The applicant is encouraged to provide any information that is relevant to his or her suitability for a TSC, including the circumstances surrounding the events that have raised the concerns and any extenuating circumstances or explanation. The applicant is also informed of the role of the Advisory Body and directed to the various grounds on which it may make a recommendation to the Minister, as set out in section I.4 of the Policy.
[16] If the Advisory Body determines that an applicant’s presence in a restricted area of a listed airport would be inconsistent with the aim and objectives of the Transportation Security Clearance Program, section II.35 of the Policy provides that it may recommend to the Minister or his delegate that a TSC be cancelled or refused.
[17] Upon receipt of the Advisory Body’s recommendation, the Minister or his delegate will determine whether to grant or refuse the application. If the security clearance is refused, written notice is sent to the applicant and to the Airport Security Manager.
B. The Applicant’s TSC Application
(1) The LERC Report
[18] As a result of the background checks conducted following receipt of the applicant’s TSC application by Transport Canada, a LERC Report was prepared. The LERC Report was not shared with Transport Canada. Instead, its contents were summarized in a letter to Guy Morgan, Director, Security Screening Programs, Transport Canada dated August 27, 2015 from Inspector Stephen Verrette, the Officer in Charge of the Security Intelligence Background Section [SIBS] of the RCMP’s Technical Operations Directorate.
[19] Based on what is set out in Insp. Verrette’s the letter, in summary the LERC Report contained the following information:
a) In October 2005 the applicant was charged with possession of property obtained by crime. He and another individual were discovered attempting to withdraw money from a TD/Canada Trust ATM using blank cards with magnetic strips containing TD/Canada Trust debit card information. This information had been stolen from a gas station “skim site”. The applicant was found with twelve cards and $1,000 in cash. The charge against the applicant was withdrawn in February 2007 “for reasons unknown to SIBS.”
b) In June 2008 the applicant and some friends were involved in an altercation with three other males at a parking lot where the applicant was working. The police were called and met with the applicant, who is identified in the report as the complainant. The applicant and his friends did not want to lay charges; they only wanted the other individuals to leave the property. Insp. Verrette’s letter states: “The report does not state if there was any further police action in this incident.” The letter also notes that one of the applicant’s “friends”, mentioned below, was involved in this incident.
c) In November 2010 the applicant was a passenger in a vehicle with three other individuals on which Peel Regional Police performed a “street check”. The letter is silent concerning why this check occurred. The letter does indicate: “The report does not state if there was any further police action during this occurrence.” Finally, the letter notes that one of the applicant’s “friends”, mentioned below, was involved in this incident.
d) In September 2011 the applicant was identified as a passenger in a vehicle with one other occupant that was stopped by Peel Regional Police for an unspecified Highway Traffic Act offence. The report states that prior to the vehicle coming to a full stop the applicant “took off on foot.” The applicant was described as having been drinking and as “uncooperative with police.” No further details are provided. The letter states: “The police report does not state if there was any further police action during this occurrence.”
e) In August 2012 an individual identified as the applicant attempted to enter Woodbine Slots using someone else’s identification. He was prevented from doing so by Woodbine security. The Ontario Provincial Police responded to this occurrence. The applicant explained to police that he did not have any identification on him and he had borrowed a friend’s. This friend was not present but was visiting family nearby. The applicant was informed that he would no longer be permitted to attend any casino in Ontario and was issued an indefinite trespass notice by Woodbine security. No criminal charges were laid.
f) Two of the individuals who were involved in incidents described above have criminal records. Specifically,
Subject “A”, who was involved with the applicant in four of these incidents, had been convicted in 2013 for unauthorized use of credit card data and mischief under $5000; and
Subject “B”, who was involved with the applicant in one of these incidents, had between 2006 and 2008 been convicted of possession of a Schedule I substance, obstruction, robbery and possession of property obtained by crime.
[20] The contents of the letter from Insp. Verrette were communicated to the applicant essentially verbatim in a letter dated December 15, 2015 from Christopher McQuarrie, Chief, Security Screening Programs with Transport Canada. This letter also stated the following:
Transport Canada would encourage you to provide additional information, outlining the circumstances surrounding the above noted criminal charge, incidents and associations, as well as to provide any other relevant information or explanation, including any extenuating circumstances.
(2) The Applicant’s Response to the LERC Report
[21] The applicant provided a written response to the information contained in the LERC Report by email dated January 4, 2016.
[22] The applicant stated the following with respect to the 2005 TD/Canada Trust incident:
In 2005 I had just started going to Humber College. Osap [sic] didn’t get approved. I had to take a personal loan from Td [sic] bank to pay for college and had to make payments towards it while going to school full-time. I was also working full time at McDonalds making minimum wage to try to pay for my education. I was young, dumb and in need of money. Somebody came to me with an opportunity to make a hefty amount of money in 1 night and I took it thinking it would resolve my financial issues and i [sic] would be able to focus solely on my education.
[23] With respect to the 2008 parking lot incident, the applicant stated:
In 2008 I was working at direct flight parking where some drunk guys wanted to get to their hotel through the parking lot. I told them the parking lot was fenced off and that there wasn’t a way through it and get to their hotel so they would have to go around the parking lot. They didn’t seem to like that and started to cause a fight. Cops came and took them away.
[24] With respect to the vehicle stop in November 2010, the applicant stated:
I don’t know what to say for Nov 2010 incident as there is nothing in the report to make me recall of when that was or what happened at that time.
[25] Finally, the applicant stated the following with respect to the September 2011 vehicle stop and the August 2012 incident at Woodbine Slots:
As for what happened September 2011 and August 2012 I have no idea of what this report states. None of these incidents ever happened to me in my life. I have never ran [sic] from cops. I don’t drink. I have never had any incident taking place at Woodbine slots. Either you have me mistaken for someone else or someone else was using my name in those cases.
(3) Further Inquiries by Transport Canada
[26] As a result of the correspondence from the applicant, on January 4, 2016 Lesley Mott, Superintendent, Security Screen Program at Transport Canada, wrote to Pascal Poutot, her contact at RCMP SIBS, to seek “clarification” regarding the September 2011 and August 2012 incidents. After setting out the substance of the applicant’s response concerning those incidents, Ms. Mott asked whether it would be possible “to confirm the applicant’s identity regarding these two incidents.”
[27] Mr. Poutot responded to Ms. Mott by email on January 5, 2016 as follows:
The investigator carefully checked again both reports. For the incident in para #4 [the September 2011 incident], Peel police details are limited. However, the last and first name of the applicant are noted in the report, as well as his old address [...], his DOB, his telephone number as well as his driver’s licence which suggests (not confirmed) that police identified him with picture ID.
In regards of para #5 [the August 2012 incident] from OPP Central the male was identified verbally with the last and first name of the applicant, his old address [...], his DOB and telephone number.
That’s all I have for you. I hope that helps.
The emphasis by bolding was in the original email. I have omitted the details of the applicant’s previous address but note that the same address in Hamilton was recorded with respect to both incidents.
[28] No further inquiries were made regarding the September 2011 or August 2012 incidents.
(4) The Advisory Body’s Recommendation
[29] The Advisory Body reviewed the applicant’s file on April 12, 2016. It made the following recommendation on the same date:
The Advisory Body recommends refusing the applicant’s transportation security clearance based on a police report detailing the applicant’s involvement in criminal activities related to theft and disrespect for authority. The Advisory Body noted the applicant’s association to two (2) individuals with criminal records. An in-depth review of 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 assist or abet any person to commit an act that may unlawfully interfere with civil aviation. Furthermore, the applicant’s submission did not provide sufficient information to dispel the Advisory Body’s concerns.
(5) The Final Decision on the Application
[30] On July 19, 2016, Brenda Hensler-Hobbs, Director General, Aviation Security, made the final decision as the Minister’s delegate to refuse to grant the applicant a TSC.
[31] The Record of Decision states the following reasons for the decision, which I set out in full:
The issue is whether to grant or refuse a transportation security clearance (TSC) to Mr. Haque, a Station Attendant with Air Canada at Lester B. Pearson International Airport. My decision is set out below and is based on a review of the file including the concerns drawn to the applicant’s attention in our letter to him dated December 15, 2015, his written submission, the recommendation of the Transportation Security Clearance Advisory Body, as well as the Transportation Security Clearance Program (TSCP) Policy.
The information regarding the applicant’s withdrawn charge for Possession of Property Obtained by Crime and his involvement in criminal activities related to theft and disrespect for authority, along with his association to two (2) individuals with criminal records raised concerns regarding his judgment, trustworthiness and reliability. I note the applicant’s involvement in several incidents between 2005 and 2012, demonstrating a pattern of involvement in criminal activities. I also note the incident in 2005, in which the applicant was conducting illegal credit card transactions and was found to be in possession of $1000 in cash. This incident required a level of sophistication, as it was deliberate and premeditated. I further note that the applicant indicated that this was an opportunity to resolve his financial issues and I wonder what else the applicant would do for money if he was in financial distress in the future. Furthermore, I note the two (2) incidents in 2011 and 2012, in which the applicant was uncooperative with police, demonstrating disrespect for authority. Additionally, I note that although the charges are dated, I found them to be serious in nature. I note the discrepancies between the Law Enforcement Record Check and the applicant’s submission, where the applicant stated he was the victim of mistaken identity. I note that police verified the applicant’s identity at that time, which leads me to question his credibility. An in-depth review of the information on file led me to reasonably believe, 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. I considered the statement provided by the applicant; however, the information presented was not sufficient to address my concerns.
I therefore concur with the Advisory Body’s recommendation and refuse to grant Mr. Haque’s transportation security clearance.
[32] The decision and the reasons were communicated to the applicant in essentially identical terms in a letter from Ms. Hensler-Hobbs dated July 19, 2016.
III. LEGAL AND POLICY FRAMEWORKS
A. Introduction
[33] Before addressing the merits of this application, it is necessary to consider the legal and policy frameworks governing applications for security clearances for designated airports.
[34] While the authority to grant or refuse a TSC is rooted in legislation, the Transportation Security Clearance Program Policy plays an important role in the exercise of that authority. Unfortunately, the Policy suffers from a lack of clarity concerning the key determination that had to be made in the applicant’s case. Specifically, it is ambiguous with respect to the applicable standard of proof. I must try to resolve this ambiguity before I can explain why I have found that the Director General’s decision is unreasonable.
[35] I have also found that there is some uncertainty in this Court’s jurisprudence concerning the requirements of procedural fairness for an initial application for a TSC. I will attempt to resolve this as well so that I can then explain why I have found that the requirements of procedural fairness were met in this case.
B. The Transportation Security Clearance Program Policy
[36] It is well-established that in discharging their responsibilities for aviation security, the Minister and his delegate enjoy a broad discretion. Maintaining the security of airports and preventing any interference with civil aviation are obviously matters of great public interest and importance. Given the potential for grave consequences if the wrong person is granted an airport security clearance, it has been said that it is appropriate for the Minister to err on the side of caution and public safety when deciding whether or not someone should have a TSC (Sargeant v Canada (Attorney General), 2016 FC 893 at para 28 [Sargeant]; Dhesi v Canada (Attorney General), 2018 FC 283 at para 18). At the same time, it is also recognized that the decision on whether or not to grant a security clearance is a significant matter for applicants, since it can affect the nature of their work, their prospects for advancement, and their financial security (Farwaha v Canada (Minister of Transport, Infrastructure and Communities), 2014 FCA 56 at para 92 [Farwaha]). Indeed, where one’s employment is dependent on having a security clearance, decisions respecting that clearance are of “enormous personal importance” (Henri v Canada (Attorney General), 2016 FCA 38 at para 23 [Henri]). Still, this is just one of the factors to be considered (ibid.).
[37] The Act does not expressly limit the Minister’s authority over who is entitled to a TSC but his discretion in this area is not completely unstructured. Its exercise with respect to designated airports is guided by the Policy. The Policy also sets out some (but not all) of the procedures that are followed in assessing TSC applications, suspensions or cancellations relating to airports.
[38] The aim and the objective of the Program are central to the Policy and to the determination of applications for TSCs.
[39] According to section I.1 of the Policy, the aim of the Program is to prevent unlawful interference with civil aviation by granting a TSC only to those persons who meet the standards set out in the Policy.
[40] Under section I.4 of the Policy, the objective of the program is to prevent the uncontrolled entry into a restricted area of a listed airport by any individual who:
is known or suspected to be involved in activities directed toward or in support of the threat or use of acts of serious violence against persons or property;
is known or suspected to be a member of an organization which is known or suspected to be involved in activities directed toward or in support of the threat or use of acts of serious violence against people or property;
is suspected of being closely associated with an individual who is known or suspected of
o being involved in activities referred to in paragraph (1);
o being a member of an organization referred to in paragraph (2); or
o being a member of an organization referred to in subsection (5) hereunder.
o commit an act that may unlawfully interfere with civil aviation; or
o assist or abet any person to commit an act that may unlawfully interfere with civil aviation.
the Minister reasonably believes, on a balance of probabilities, may be prone or induced to
is known or suspected to be or to have been a member of or a participant in activities of criminal organizations as defined in Sections 467.1 and 467.11 (1) of the Criminal Code of Canada;
is a member of a terrorist group as defined in Section 83.01 (1)(a) of the Criminal code of Canada.
[41] As noted, the applicant’s application for a TSC was refused under Paragraph 4.
C. Section I.4, Paragraph 4 of the Policy
[42] To repeat for ease of reference, Paragraph 4 states that among the objectives of the Policy 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” (emphasis added). If this conclusion is drawn with respect to an applicant, it is grounds for denying a TSC.
[43] The problem with Paragraph 4 is that the part I have emphasized appears to combine two distinct standards of proof: reasonable grounds to believe and belief on a balance of probabilities. This has created some uncertainty about what the standard of proof is under Paragraph 4. Is it sufficient to deny a TSC for the Minister to have reasonable grounds to believe that a person “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”? Or is it necessary for the Minister to believe it is more likely than not that a person “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”? The applicable standard of proof must be one or the other of these; it cannot coherently be both. While the latter encompasses the former, the converse is not the case.
[44] The wording of Paragraph 4 has from time to time given rise to the suggestion that the standard of proof it expresses is less than a balance of probabilities because all that is required is a reasonable belief on the part of the decision-maker (see, for example, Ho v Canada (Attorney General), 2013 FC 865 at para 7; Salmon v Canada (Attorney General), 2014 FC 1098 at para 75 [Salmon]; Kaczor v Canada (Minister of Transport), 2015 FC 698 at para 32; Wu v Canada (Attorney General), 2016 FC 722 at para 51; and Ng v Canada (Attorney General), 2017 FC 376 at para 50). With respect to those who hold a contrary view, I cannot agree.
[45] In my view, standards of proof lower than on a balance of probabilities are well-known and are expressed easily using familiar language (for example, see the discussion of ‘reasonable grounds to believe’ in Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100, 2005 SCC 40 at para 114, and the discussion of ‘reasonable grounds to suspect’ in Farwaha at paras 75 and 95-97). When a standard of proof lower than on a balance of probabilities is intended, this familiar language is used. This is demonstrated by other parts of s I.4 itself, which repeatedly use the disjunctive test “is known or suspected to be.”
[46] The phrase used in Paragraph 4 (which appears to be sui generis) therefore must have been intended to convey something else. While the words “on a balance of probabilities” suggest that this is the intended standard, the waters are muddied by the words “reasonably believes.” Fortunately, while the English version of Paragraph 4 is ambiguous in this way, the French version is not (at least, not in this respect). The pertinent part of the provision in French is “qui, selon le ministre et les probabilités est sujette ou peut être incitée à [...].” Reasonable belief is not mentioned. Instead, the only standard identified is one of “the probabilities.” While this does not expressly suggest the test of whether something is more likely than not (in theory, “the probabilities” could range from 0% to 100%), reading “les probabilités” in that way finds a common meaning in both versions of the paragraph. I should note that the decisions of this Court that have adopted the “reasonable belief” standard of proof do not address the differences between the English and French versions of Paragraph 4.
[47] Applying the shared meaning rule, it is thus safe to assume that the common element of proof on a balance of probabilities found in both the English and French versions of Paragraph 4 is what was intended to be the standard of proof here (see, for example, the discussion of this rule in the context of statutory interpretation in Alexander College Corp v Canada, 2016 FCA 269 at para 18). This resolves the ambiguity in the English version (and the vagueness of the French version).
[48] While I thus find that the adjective “reasonably” in the English version of Paragraph 4 does not add anything to the test, this is not to suggest that the reasonableness of the decision-maker’s belief is not important. On the contrary. Any decision rendered by the Minister or his delegate must be reasonable, and this includes the drawing of reasonable conclusions from the available information. However, in my view this is a general requirement of the law as opposed to an element of the specific test the Minister applies under Paragraph 4 of the Policy.
[49] In addition to the awkward wording of the English version of Paragraph 4, another possible source of confusion about the standard of proof here is the fact in issue – namely, whether an applicant is a person who 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. The question the Minister must answer is not whether an applicant will so act but only whether he or she might so act. This is a matter of possibilities, not probabilities (Clue v Canada (Attorney General), 2011 FC 323 at para 20; MacDonnell v Canada (Attorney General), 2013 FC 719 at para 29; Sargeant at para 29). The idea of a possibility being established on a balance of probabilities is counterintuitive, to say the least. Still, this does not change the standard upon which that fact must be established. How someone might act in the future could well be easily established in a given case. If that is so, it is because of the nature of the fact in issue (a possibility), and not because of any lowering of the standard of proof from on a balance of probabilities.
[50] In its written submissions, the respondent suggested that a “relatively low standard of proof” was applicable under Paragraph 4. However, when pressed, the respondent was prepared to accept that the standard of proof is on a balance of probabilities.
[51] This standard of proof is discernible in judgments from this Court. For example, in MacDonnell, Justice Sean Harrington stated: “The Policy 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’ unlawfully interfere with civil aviation, only that he or she may” (at para 29). Similarly, in Mohamed v Canada (Attorney General), 2017 FC 271, Justice Susan Elliott observed that the Minister “determines, on a balance of probabilities, whether the applicant for a TSC or renewal of one ‘may be prone or induced’ to commit an act that may unlawfully interfere with civil aviation” (at para 35). As well, in Chambers v Canada (Attorney General), 2017 FC 698 [Chambers], Justice Glennys McVeigh stated that the Policy “is forward looking as the decision maker must predict on a balance of probabilities whether an applicant may be prone to or be induced to commit an act that may unlawfully interfere with civil aviation” (at para 18).
[52] In my respectful view, these dicta reflect the correct interpretation of Paragraph 4.
[53] In conclusion on this point, what Paragraph 4 of section I.4 of the Policy calls upon the Minister or his delegate to determine is whether it is more likely than not that an applicant for a TSC is someone who might be prone or induced to commit an act that might unlawfully interfere with civil aviation, or assist or abet any person to commit an act that might unlawfully interfere with civil aviation. This resolves the ambiguity concerning the standard of proof in the English version and makes the applicable test consistent in both the English and French versions.
[54] In the present matter, the Advisory Body and the Director General simply repeat the English wording of Paragraph 4 verbatim in rendering, respectively, the recommendation and the decision. Neither offers any analysis of the meaning of the provision that could lead me to conclude that they had a different understanding of it. As a result, I will presume that the test I have set out above is the one they applied in assessing the applicant’s file.
IV. STANDARD OF REVIEW
[55] It is well-established that decisions to deny a TSC generally are reviewed on a reasonableness standard (Henri at para 16). Under this standard, the reviewing Court examines the decision for “the existence of justification, transparency and intelligibility within the decision-making process” and determines “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). These criteria are met if “the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16). On judicial review under the reasonableness standard, it is not the role of the Court to reweigh the evidence or to substitute its own view of a preferable outcome (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59 and 61 [Khosa]).
[56] It is also well-established that questions of procedural fairness in this context are reviewed on a correctness standard (Henri at para 16).
[57] In this case, as discussed below, the question of procedural fairness is whether the applicant was entitled to more disclosure than he received. There is no indication in the record that anyone turned his or her mind to whether additional information should be disclosed to the applicant. This is not meant as a criticism. Rather, I am simply pointing to the artificiality of speaking of a standard of review being applied to a decision about procedure in this case.
[58] Where an issue of procedural fairness arises, this Court’s task is to determine whether the process followed by the decision-maker satisfied the level of fairness required in all of the circumstances (Khosa at para. 43). There is some question as to whether it is helpful at all to speak of a standard of review being applied to questions of procedural fairness (see Canadian Pacific Railway Company v Canada (Attorney General) 2018 FCA 69 at para 54 [Canadian Pacific Railway]). To the extent that it is, what is meant by the correctness standard is that this Court will not show deference to the procedure adopted by the Minister; instead, it will undertake its own analysis (Rossi v Canada (Attorney General), 2015 FC 961 at para 20).
V. ANALYSIS
A. Procedural Fairness
(1) What is required?
[59] The requirements of procedural fairness when it comes to transportation security clearances are often described as “minimal”. This is said to follow from the fact that having a TSC is a privilege, not a right, and thus one can have no legitimate expectation that a TSC will be issued (Agosti v Canada (Transport), 2016 FC 1410 at para 32 [Agosti]).
[60] There is some uncertainty in the jurisprudence about what these “minimal” requirements are when someone is applying for a TSC for the first time. It has been suggested that the only level of fairness owed to a first-time applicant is that the Minister must render a decision that is not based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before him. It appears that this suggestion was first made in Motta v Canada (Attorney General), [2000] FCJ No 27 (QL), 180 FTR 292, at para 13. It has been repeated from time to time since then (see, for example, Varn v Canada (Attorney General), 2017 FC 1132 at para 45; Laframboise v Canada (Attorney General), 2017 FC 832 at para 19; Chambers v Canada (Transport), 2017 FC 698 at para 32; Pouliot v Canada (Transport), 2012 FC 347 at para 9 [Pouliot]; Kahin v Canada (Transport, Infrastructure and Communities), 2010 FC 247 at paras 13-16; Irani v Canada (Attorney General), 2006 FC 816 at paras 21-22).
[61] As I understand it, in effect Motta is suggesting that the only procedural right a first-time applicant has is to receive a decision that is not substantively flawed. In my respectful view, this conflates procedural review and substantive review. These are, of course, distinct issues. As the Federal Court of Appeal recently observed: “Procedural review and substantive review serve different objectives in administrative law. While there is overlap, the former focuses on the nature of the rights involved and the consequences for affected parties, while the latter focuses on the relationship between the court and the administrative decision maker” (Canadian Pacific Railway at para 55). Further, as L’Heureux-Dubé J held in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 22 [Baker], “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” The dicta in Motta do not engage with this understanding of procedural fairness at all.
[62] It is possible that this peculiar situation emerged as a result of efforts to distinguish individuals who had had a TSC and were now facing its suspension, cancellation or a denial of a renewal from first-time applicants. It has been said that the loss of a job because of the loss of a security clearance is more significant than merely losing the opportunity to take on a new job because of a denial of a security clearance. The requirements of procedural fairness were thus thought to be slightly higher in that case compared to a first-time applicant (although they were still on the “lower end of the spectrum” (Pouliot at para 10)). It has been accepted that someone facing the loss of a security clearance is entitled to know the facts alleged against him or her and has the right to make written representations about those facts (Farwaha at para 118; Henri at para 28). To maintain the distinction between this person and a first-time applicant, who was deemed to be entitled to something less than this, it must have been inferred (at least implicitly) that the first-time applicant was therefore not entitled to know the facts alleged against him or her or to make representations about them.
[63] In my view, this line of reasoning nullifies even “minimal” procedural rights for first-time applicants. While I believe that Motta should no longer be followed in this respect, it is not necessary to state this definitively because it has been overtaken by the current practice of the Minister, which treats both new applicants and individuals who already hold a security clearance in the same way. As Baker instructs, the actual practices of the decision-maker are an important consideration in determining the requirements of procedural fairness (Baker at para 27).
[64] Under current practice, the following participatory rights are extended to both prospective and existing TSC holders:
Both are informed to the extent that the law permits of the information that has raised concerns about their suitability to hold a TSC;
Both are informed of the criteria for determining one’s suitability for a TSC;
Both are given the opportunity to make written representations and provide information addressing the areas of concern;
In both cases, any written representations or information provided by the individual are considered by the Advisory Body before it makes a recommendation to the Minister or his delegate; and
In both cases, the written representations or information provi