Russo v. Canada (Transport)

Russo v. Canada (Transport)
Court (s) Database
Federal Court Decisions
Date
2011-06-23
Neutral citation
2011 FC 764
File numbers
T-1203-10
Decision Content
Federal Court
Cour fédérale
Date: 20110623
Docket: T-1203-10
Citation: 2011 FC 764
Ottawa, Ontario, June 23, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
DAVE RUSSO
Applicant
and
THE MINISTER OF TRANSPORT, INFRASTRUCTURE AND COMMUNITIES
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the 24 June 2010 decision (Decision) of a delegate of the Minister of Transport, Infrastructure and Communities (Minister’s Delegate) to follow the recommendation of the Transport Canada Advisory Body (Advisory Body) to refuse the Applicant’s application for security clearance pursuant to section 509(c) of the Marine Transportation Security Regulations, SOR/2004-144 (Regulations).
BACKGROUND
[2] The Applicant has been employed as a longshoreman at the Port of Vancouver Fraser since 2000. At present, he reports on a daily basis to the dispatch hall of the British Columbia Maritime Employers Association (BCMEA), where he is dispatched, based on seniority and ratings, to the worksites of the BCMEA’s member companies. It is not unusual for a longshoreman to be assigned to a different worksite each day, with the exception of those who have regular workforce positions (RWFs). Those with RWFs report directly to the same worksite each day for the duration of that discrete job.
[3] The Applicant worked in an RWF for 18 months, beginning in November 2007. His supervisors described him as a disciplined and “diligent” worker with a “very good” attitude. In May 2009, the Applicant was displaced from his RWF by a senior employee. He again began reporting to the dispatch hall. As the work assignments include work at cruise ship terminals, which can be accessed only by those with security clearance, and as the Applicant wished to be able to participate in all of the employment opportunities available to him at the Port of Vancouver Fraser, he applied for security clearance on 14 April 2009.
[4] The Applicant has a criminal record that includes convictions for dangerous operation of a motor vehicle, possession of property obtained by crime under $1000, obstructing a peace officer and producing a Schedule II substance (namely, marijuana). This has been a consistent impediment to the Applicant’s request for security clearance.
[5] By letter dated 25 June 2009, the Director of Security Screening Programs at Transport Canada informed the Applicant that “adverse criminal information” had been made available that raised doubts as to his suitability to obtain security clearance. The letter listed the Applicant’s above-noted convictions and advised him that his application would be reviewed by the Advisory Body, which would then make a recommendation to the Minister. The Applicant was “encouraged to provide a written statement, outlining the circumstances surrounding the … convictions, for consideration by the Advisory Body.”
[6] On 8 July 2009 the Applicant, through counsel, sent a written statement to the Minister, outlining the circumstances of his criminal convictions. He stated that his convictions for dangerous operation of a motor vehicle, possession of property obtained by crime under $1000 and obstructing a peace officer all occurred in the early 1990s and were related to his choosing to drive without a licence and insurance. He stated that, following his conviction for producing marijuana, for which he was charged in 2004 and received a 20-month conditional sentence in 2008, he turned his life around, due in large part to the birth of his two children. The Applicant argued that his past convictions were unrelated to security matters.
[7] By letter dated 12 August 2009, the Director of Security Screening Programs at Transport Canada informed the Applicant that the Advisory Body had unanimously recommended that his application for security clearance be refused “based on the applicant’s four (4) criminal convictions including one (1) recent drug-related conviction for Produce (sic) a Schedule II Substance.” The letter further stated:
The information was sufficient to determine that there is (sic) reasonable grounds to suspect that the applicant is in a position in which there is a risk that he may be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security. His written explanation and supporting document did not provide sufficient information that would compel the Advisory Body to recommend issuing a clearance.
[8] By letter dated 16 September 2009 and by application dated 18 September 2009, the Applicant applied to Transport Canada’s Office of Reconsideration for a reconsideration of the 12 August 2009 refusal. The Office of Reconsideration advised the Applicant by letter dated 22 September 2009 that it would assign his file to an independent security advisor.
[9] On 20 August, 16 October, 22 October and 30 October, all of 2009, Applicant’s counsel asked various parties attached to Transport Canada to provide the documents and information that informed their assessment of the Applicant’s security clearance application so that the Applicant might understand the basis of the refusal and respond to it. The Director of Security Screening Programs, among others, advised counsel to make a formal request under the Privacy Act to Transport Canada’s Access to Information and Privacy Coordinator. Eventually, on 4 January 2010, the Applicant filed such a request; it was received by Transport Canada but the Applicant did not receive the requested documents until March 2011.
[10] Transport Canada tasked two independent security advisors (Advisors) to review the Applicant’s file. On 9 November 2009, they met with the Applicant and his counsel. According to the transcript of that interview, the Advisors stated that the “decision [to refuse the Applicant security clearance] was based on the criminal record” and based “mostly on the last conviction,” namely the 2008 conviction for producing a Schedule II substance. They also stated that their role was to evaluate how this conviction ties in with marine security and port security in Vancouver.
[11] During the interview, the Applicant explained the circumstances surrounding his convictions. Regarding the conviction for product of a Schedule II substance, he explained that he had started growing marijuana for his personal use and to sell it but that he did not make much profit from sales. He described it as a stupid decision but admitted that he still smokes about $100 worth of marijuana cigarettes each week. When reminded that one of the conditions of his sentence is to “keep the peace and be of good behaviour,” the Applicant told the Advisors that, in his view, this did not prevent him from smoking marijuana or from buying it from suppliers in his neighbourhood.
[12] On 17 November 2009, the Advisors interviewed the Applicant’s probation officer by telephone. The probation officer was aware of the Applicant’s occasional use of marijuana but was unable to take action because the terms of the Applicant’s sentence did not include a specific condition regarding drug use. The probation officer described the Applicant as having “a great deal of respect toward the criminal justice system,” and he opined that the Applicant’s risk of reoffending in the production of marijuana was low.
[13] On 9 December 2009 the Advisors submitted to the Office of Reconsideration a Refusal of Security Clearance Review Report (Report). In it, the Advisors state that the Applicant continues to participate in “the trafficking process by buying from suppliers in his neighbourhood and on the street.” They also observe that the Applicant’s interpretation of the term of his conditional sentence to “keep [the] peace and be of good behaviour” does not include discontinuing the use and purchase of marijuana. They recommended that the Advisory Body’s initial decision to refuse the Applicant’s application for security clearance be maintained, having concluded that:
This situation constitutes in our view reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security. We do not concur with the applicant’s probation officer’s statement that Mr. Russo shows a great deal of respect toward the criminal justice system. In doing so, we disagree with the applicant’s argument.
[14] On 12 April 2010, the Office of Reconsideration forwarded this Report to the Minister’s Delegate. By letter dated 24 June 2010, the Minister’s Delegate notified the Applicant that the Minister had decided to maintain the refusal of his security clearance. This is the Decision under review.
DECISION UNDER REVIEW
[15] The 24 June 2010 Decision refusing the Applicant’s application for reconsideration of the refusal to grant him security clearance is brief. The Minister’s Delegate states that the Minister received the Report of the independent security advisors and that, based on all of the available information, the Applicant’s request was refused. The Minister’s Delegate observed that there was “verifiable, reliable, and sufficient” information available to conclude that there were “reasonable grounds to suspect that the Applicant met the criterion of paragraph 509(c) of the Regulations,” namely that he was “in a position in which there is a risk that he would be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation.”
ISSUES
[16] The Applicant raises the following issues:
i. Whether the Decision was based on information that was irrelevant and that did not support a conclusion that the Applicant may be suborned to commit an act that might constitute a risk to marine transportation security; and
ii. Whether the Minister breached the principles of procedural fairness by failing to provide the Applicant with adequate notice of the case against him and adequate reasons for refusing his application for security clearance.
STATUTORY PROVISIONS
[17] The following provisions of the Marine Transportation Security Act, S.C. 1994, c. 40 (Act), are applicable in this application:
Regulations respecting security
5. (1) The Governor in Council may make regulations respecting the security of marine transportation, including regulations
(a) for preventing unlawful interference with marine transportation and ensuring that appropriate action is taken where that interference occurs or could occur;
(b) requiring or authorizing screening for the purpose of protecting persons, goods, vessels and marine facilities;
(c) respecting the establishment of restricted areas; …
Règlements en matière de sûreté
5. (1) Le gouverneur en conseil peut, par règlement, régir la sûreté du transport maritime et notamment :
a) viser à prévenir les atteintes illicites au transport maritime et, lorsque de telles atteintes surviennent ou risquent de survenir, faire en sorte que des mesures efficaces soient prises pour y parer;
b) exiger ou autoriser un contrôle pour la sécurité des personnes, des biens, des bâtiments et des installations maritimes;
c) régir l'établissement de zones réglementées; ….
[18] The following provisions of the Regulations are applicable in this application:
Checks and Verifications
508. On receipt of a fully completed application for a security clearance, the Minister shall conduct the following checks and verifications for the purpose of assessing whether an applicant poses a risk to the security of marine transportation:
(a) a criminal record check;
(b) a check of the relevant files of law enforcement agencies, including intelligence gathered for law enforcement purposes;
(c) a Canadian Security Intelligence Service indices check and, if necessary, a Canadian Security Intelligence Service security assessment; and
(d) a check of the applicant’s immigration and citizenship status.
Minister’s Decision
509. The Minister may grant a security clearance if, in the opinion of the Minister, the information provided by the applicant and that resulting from the checks and verifications is verifiable and reliable and is sufficient for the Minister to determine, by an evaluation of the following factors, to what extent the applicant poses a risk to the security of marine transportation:
(a) the relevance of any criminal convictions to the security of marine transportation, including a consideration of the type, circumstances and seriousness of the offence, the number and frequency of convictions, the length of time between offences, the date of the last offence and the sentence or disposition;
(b) whether it is known or there are reasonable grounds to suspect that the applicant
(i) is or has been involved in, or contributes or has contributed to, activities directed toward or in support of the misuse of the transportation infrastructure to commit criminal offences or the use of acts of violence against persons or property, taking into account the relevance of those activities to the security of marine transportation,
(ii) is or has been a member of a terrorist group within the meaning of subsection 83.01(1) of the Criminal Code, or is or has been involved in, or contributes or has contributed to, the activities of such a group,
(iii) is or has been a member of a criminal organization as defined in subsection 467.1(1) of the Criminal Code, or participates or has participated in, or contributes or has contributed to, the activities of such a group as referred to in subsection 467.11(1) of the Criminal Code taking into account the relevance of these factors to the security of marine transportation,
(iv) is or has been a member of an organization that is known to be involved in or to contribute to — or in respect of which there are reasonable grounds to suspect involvement in or contribution to — activities directed toward or in support of the threat of or the use of, acts of violence against persons or property, or is or has been involved in, or is contributing to or has contributed to, the activities of such a group, taking into account the relevance of those factors to the security of marine transportation, or
(v) is or has been associated with an individual who is known to be involved in or to contribute to — or in respect of whom there are reasonable grounds to suspect involvement in or contribution to — activities referred to in subparagraph (i), or is a member of an organization or group referred to in any of subparagraphs (ii) to (iv), taking into account the relevance of those factors to the security of marine transportation;
(c) whether there are reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security;
(d) whether the applicant has had a restricted area pass for a marine facility, port or aerodrome removed for cause; and
(e) whether the applicant has filed fraudulent, false or misleading information relating to their application for a security clearance.
[…]
511. (1) If the Minister intends to refuse to grant a security clearance, the Minister shall advise the applicant in writing to that effect.
(2) The notice shall set out the basis for the Minister’s intention and fix a period of time for the applicant to make written representations to the Minister, which period of time shall start on the day on which the notice is served or sent and shall be not less than 20 days from that day.
(3) The Minister shall not refuse to grant a security clearance until the written representations have been received and considered or before the period of time fixed in the notice has expired, whichever comes first. The Minister shall advise the applicant in writing of any refusal.
[…]
Reconsideration
517. (1) An applicant or a holder may request that the Minister reconsider a decision to refuse to grant or to cancel a security clearance within 30 days after the day of the service or sending of the notice advising them of the decision.
(2) The request shall be in writing and shall set out the following:
(a) the decision that is the subject of the request;
(b) the grounds for the request, including any new information that the applicant or holder wishes the Minister to consider; and
(c) the name, address, and telephone and facsimile numbers of the applicant or holder.
(3) On receipt of a request made in accordance with this section, the Minister, in order to determine the matter in a fair, informal and expeditious manner, shall give the applicant or holder
(a) where the situation warrants, the opportunity to make representations orally or in any other manner; and
(b) in any other case, a reasonable opportunity to make written representations.
(4) After representations have been made or a reasonable opportunity to do so has been provided, the Minister shall reconsider the decision in accordance with section 509 and shall subsequently confirm or change the decision.
(5) The Minister may engage the services of persons with appropriate expertise in security matters to advise the Minister.
(6) The Minister shall advise the applicant or holder in writing of the decision made following the reconsideration.
Vérifications
508. Sur réception d’une demande d’habilitation de sécurité dûment remplie, le ministre effectue les vérifications ci-après pour établir si le demandeur ne pose pas de risque pour la sûreté du transport maritime :
a) une vérification pour savoir s’il a un casier judiciaire;
b) une vérification des dossiers pertinents des organismes chargés de faire respecter la Loi, y compris les renseignements recueillis dans le cadre de l’application de la Loi;
c) une vérification des fichiers du Service canadien du renseignement de sécurité et, au besoin, une évaluation de sécurité effectuée par le Service;
d) une vérification de son statut d’immigrant et de citoyen.
Décision du ministre
509. Le ministre peut accorder une habilitation de sécurité si, de l’avis du ministre, les renseignements fournis par le demandeur et ceux obtenus par les vérifications sont vérifiables et fiables et s’ils sont suffisants pour lui permettre d’établir, par une évaluation des facteurs ci-après, dans quelle mesure le demandeur pose un risque pour la sûreté du transport maritime :
a) la pertinence de toute condamnation criminelle du demandeur par rapport à la sûreté du transport maritime, y compris la prise en compte du type, de la gravité et des circonstances de l’infraction, le nombre et la fréquence des condamnations, le temps écoulé entre les infractions, la date de la dernière infraction et la peine ou la décision;
b) s’il est connu ou qu’il y a des motifs raisonnables de soupçonner que le demandeur :
(i) participe ou contribue, ou a participé ou a contribué, à des activités visant ou soutenant une utilisation malveillante de l’infrastructure de transport afin de commettre des crimes ou l’exécution d’actes de violence contre des personnes ou des biens et la pertinence de ces activités, compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime,
(ii) est ou a été membre d’un groupe terroriste au sens du paragraphe 83.01(1) du Code criminel, ou participe ou contribue, ou a participé ou a contribué, à des activités d’un tel groupe,
(iii) est ou a été membre d’une organisation criminelle au sens du paragraphe 467.1(1) du Code criminel ou participe ou contribue, ou a participé ou a contribué, aux activités d’un tel groupe tel qu’il est mentionné au paragraphe 467.11(1) du Code criminel, compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime,
(iv) est ou a été un membre d’une organisation qui est connue pour sa participation ou sa contribution — ou à l’égard de laquelle il y a des motifs raisonnables de soupçonner sa participation ou sa contribution — à des activités qui visent ou favorisent la menace ou l’exécution d’actes de violence contre des personnes ou des biens, ou participe ou contribue, ou a participé ou a contribué, aux activités d’une telle organisation, compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime,
(v) est ou a été associé à un individu qui est connu pour sa participation ou sa contribution — ou à l’égard duquel il y a des motifs raisonnables de soupçonner sa participation ou sa contribution — à des activités visées au sous-alinéa (i), ou est membre d’un groupe ou d’une organisation visés à l’un des sous-alinéas (ii) à (iv), compte tenu de la pertinence de ces facteurs par rapport à la sûreté du transport maritime;
c) s’il y a des motifs raisonnables de soupçonner que le demandeur est dans une position où il risque d’être suborné afin de commettre un acte ou d’aider ou d’encourager toute personne à commettre un acte qui pourrait poser un risque pour la sûreté du transport maritime;
d) le demandeur s’est vu retirer pour motifs valables un laissez-passer de zone réglementée pour une installation maritime, un port ou un aérodrome;
e) le demandeur a présenté une demande comportant des renseignements frauduleux, faux ou trompeurs en vue d’obtenir une habilitation de sécurité.
[…]
511. (1) Le ministre avise par écrit le demandeur de son intention de refuser d’accorder l’habilitation de sécurité.
(2) L’avis indique les motifs de son intention et le délai dans lequel le demandeur peut présenter par écrit au ministre des observations, lequel délai commence le jour au cours duquel l’avis est signifié ou acheminé et ne peut être inférieur à 20 jours suivant ce jour.
(3) Le ministre ne peut refuser d’accorder l’habilitation de sécurité avant la réception et la prise en considération des observations écrites ou avant que ne soit écoulé le délai indiqué dans l’avis, selon la première de ces éventualités à survenir. Le ministre avise par écrit le demandeur dans le cas d’un refus.
[…]
Réexamen
517. (1) Tout demandeur ou tout titulaire peut demander au ministre de réexaminer une décision de refuser ou d’annuler une habilitation de sécurité dans les 30 jours suivant le jour de la signification ou de l’envoi de l’avis l’informant de la décision.
(2) La demande est présentée par écrit et comprend ce qui suit :
a) la décision qui fait l’objet de la demande;
b) les motifs de la demande, y compris tout nouveau renseignement qu’il désire que le ministre examine;
c) le nom, l’adresse et les numéros de téléphone et de télécopieur du demandeur ou du titulaire.
(3) Sur réception de la demande présentée conformément au présent article, le ministre accorde au demandeur ou au titulaire, de manière à trancher les questions de façon équitable, informelle et rapide, la possibilité :
a) lorsque les circonstances le justifient, de présenter des observations oralement ou de toute autre manière;
b) dans tout autre cas, de lui présenter par écrit des observations.
(4) Après que des observations ont été présentées ou que la possibilité de le faire a été accordée, le ministre réexamine la décision conformément à l’article 509 et, par la suite, confirme ou modifie la décision.
(5) Le ministre peut retenir les services de personnes qui possèdent la compétence pertinente en matière de sûreté pour le conseiller.
(6) Le ministre avise par écrit le demandeur ou le titulaire de sa décision à la suite du réexamen.
STANDARD OF REVIEW
[19] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[20] The first issue concerns the Minister’s assessment of the evidence. This is within the Minister’s area of expertise and, therefore, attracts the reasonableness standard. See Dunsmuir, above, at paragraphs 51 and 53; and Rivet v Canada (Attorney General), 2007 FC 1175 at paragraph 16.
[21] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[22] The second issue concerns the adequacy both of the notice provided by the Minister with respect to the case that the Applicant had to meet and of the Minister’s reasons for refusing the Applicant’s application for security clearance. Adequacy of notice and adequacy of reasons are procedural fairness issues, which attract the correctness standard. See Khosa, above, at paragraph 43; and Rivet, above, at paragraph 16.
ARGUMENTS
The Applicant
The Decision Was Based on Irrelevant Considerations
[23] The Minister’s decision to grant or refuse an application for security clearance must be based on the factors stated in s. 509 of the Regulations, including: the relevance of any criminal record to the security of marine transportation, pursuant to s. 509(a); and the existence of reasonable grounds to suspect that the applicant may be in a position to be suborned to commit an act that might endanger marine transportation security, pursuant to s. 509(c).
[24] The Applicant submits that information relevant to an assessment of these factors was ignored. The Minister did not consider the Applicant’s ten-year employment history, which includes clean disciplinary and workplace safety records and positive references from his supervisors. The Minister also ignored the opinion of the Applicant’s probation officer that the Applicant was at low risk to re-offend and that he abided by the conditions of his sentence and accepted responsibility for his wrongdoing. (The Applicant says this even though the record shows that the Advisors considered the opinion and explicitly said that they disagreed with it.)
[25] Instead, the Applicant argues, the Minister based his Decision on an irrelevant consideration—namely, the Applicant’s current habit of using marijuana—which overwhelmed all other considerations. The Regulations do not direct the Minister to investigate applicants based on their habits. In so substituting his own view of what was an appropriate consideration, the Minister unreasonably exercised his discretion, contrary to the finding of the Supreme Court of Canada in Chamberlain v Surrey School District No. 36, 2002 SCC 86, at paragraphs 56-71.
[26] According to s. 509(c) of the Regulations, refusal of an application for security clearance is justified where there are “reasonable grounds” to suspect that an applicant may be suborned to commit an act that may constitute a risk to marine transportation security. The Applicant argues that there are no reasonable grounds to suspect that he may be suborned. The standard of proof required to establish reasonable grounds is “a bona fide belief in a serious possibility based on credible evidence.” See Sicuro v Canada (Minister of Citizenship and Immigration), 2004 FC 461, at paragraphs 36-37. In the Decision under review, the supposed connection between the Applicant’s criminal record and/or his current marijuana use and such a risk is never explained. It is unjustified.
Content of the Duty of Fairness
[27] The Applicant submits that the content of the duty of fairness is contextual and dependent on: (a) the nature of the decision being made and the process followed in making it; (b) the nature of the statutory schemes and the terms of the statute pursuant to which the body operates; (c) the importance of the decision to the individual affected; (d) the legitimate expectations of the person challenging the decision; and (e) the choices of procedure made by the agency itself. See Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, [1999] SCJ No 39 (QL), at paragraphs 21-27. The Supreme Court of Canada has held that “a high standard of justice is required when the right to continue in one’s profession or employment is at stake.” See Kane v Board of Governors of the University of British Columbia, [1980] 1 SCR 1105, [1980] SCJ No 32 (QL), at page 7 (QL).
[28] Under s. 511 of the Regulations, an applicant who has been refused security clearance is entitled to notice, including notice of “the basis for the Minister’s intention” and the opportunity to make written representations. The Applicant argues that security clearance applicants are also entitled to know the case they have to meet; to be told the facts alleged against them; to make representations on those facts; and to be provided with reasons, especially where the decision is important or is the final step in the application process. See DiMartino v Canada (Minister of Transport), 2005 FC 635 at paragraph 36; Rivet, above, at paragraph 25; Baker, above, at paragraphs 24 and 43; and Clifford v Ontario Municipal Employees Retirement System, 2009 ONCA 670, at paragraph 21. The Applicant argues that, because this Decision affects his ability to participate fully in his employment opportunities and to support his family, he is entitled to all of these procedural protections.
The Applicant Did Not Have Notice of the Case to Be Met
[29] The Applicant submits that disclosure of relevant evidence is a “basic element of natural justice … and, in the administrative context, procedural fairness generally requires disclosure unless some competing interest prevails.” See 1657575 Ontario Inc. v Hamilton (City), 2008 ONCA 570, at paragraph 25. This Court has held in the context of airport security clearance that a refusal of the advisory body to disclose documents to the applicant prevented him from responding to accusations in a meaningful way. See Xavier v Canada (Attorney General and Minister of Transport, Infrastructure and Communities), 2010 FC 147 at paragraphs 12-15.
[30] The Applicant notes that, from August to October of 2009, he requested four times that various parties attached to Transport Canada provide him with copies of the documents upon which they were relying to refuse his security clearance application. All parties advised him to make a formal request under the Privacy Act to Transport Canada’s Access to Information and Privacy Coordinator. The Applicant contends that, as the information related to his own application, this advice was inappropriate and constitutes a breach of procedural fairness. The Applicant argues that the Minister’s persistent failure to disclose these documents deprived him of the opportunity to respond to the refusal of his application in a meaningful way. See Confederation Broadcasting (Ottawa) Ltd. v Canadian Radio-Television Commission, [1971] SCR 906, [1971] SCJ No 72 (QL) at pages 13-14 (QL).
[31] The 25 June 2009 letter from the Director of Security Screening Programs at Transport Canada also was deficient with respect to notice. Although it informed the Applicant that “adverse criminal information” was made available that raised doubts as to his suitability to obtain security clearance, it made no reference to s. 509(c) of the Regulations, which apparently was the regulatory provision at issue. And while the letter did encourage the Applicant to provide a written statement outlining the circumstances of his convictions, it did not explain how these convictions might be relevant to marine transportation security. It also did not specify the information that Transport Canada would require to overcome its concerns about the Applicant’s convictions and to grant the Applicant’s request for security clearance.
[32] The 12 August 2009 letter informing the Applicant that the Advisory Body had unanimously recommended refusing his application for security clearance was similarly deficient. It did not explain why Transport Canada believed the Applicant to be at risk of being suborned or why the application for security clearance had been refused under s. 509(c) instead of s. 509(a). This letter was the first communication from Transport Canada to identify the Applicant’s drug conviction as being of particular significance to his security clearance application. It did not indicate that the Applicant’s current drug use would adversely impact his application for security clearance; in failing to do so, it deprived him of the opportunity to stop using marijuana so as to increase his chances of obtaining a clearance.
[33] In their 9 November 2009 interview with the Applicant, the Advisors failed to address with him the concerns and conclusions eventually published in their 9 December 2009 Report. They did not explain to the Applicant how, as a convicted marijuana producer and/or a current recreational user of marijuana, he constituted a risk to the security of marine transportation. They did not provide him with a meaningful opportunity to make submissions, as required by the Regulations, in answer to their concerns that he was addicted to marijuana and was a security risk. Further, they did not identify specific information that the Applicant could supply to Transport Canada to alleviate these concerns and thereby obtain his security clearance.
[34] Because he has been refused security clearance, the Applicant cannot be dispatched to all of the areas where he could potentially work. This limits his work opportunities and results in a loss of income. The Applicant is concerned that his lack of security clearance will have a material impact on his ability to support his family.
The Reasons Were Inadequate
[35] The Applicant submits that, in giving reasons, a decision maker cannot simply cite a conclusion without explaining why the conclusion was reached. See Johal v Canada (Revenue Agency), 2009 FCA 276 at paragraph 43. Reasons must be sufficiently clear, precise and intelligible to enable an individual to know why the decision maker decided as it did. The Ontario Court of Appeal in Clifford, above, makes clear that reasons must let the individual affected by a decision know why the decision was made; the basis of the decision must be explained and the explanation must be logically linked to the decision. The path the decision maker takes in reaching the decision must be clear.
[36] In the instant case, the Minister never explained why the Applicant’s current marijuana use was considered at all or why it led the Ministry to conclude that there were reasonable grounds to suspect that the Applicant is at a risk of being suborned. It is not enough that, in the Decision, the Minister states that the Applicant’s security clearance is denied because there was “enough information available” to conclude that there were “reasonable grounds to suspect” that he did not meet the criteria under s. 509(c). Adequate reasons would explain what the “sufficient information” was, what the “reasonable grounds” were and how it all related to threats against marine security. The supposed connection between the Applicant’s current marijuana use and the risk that he is in a position to be suborned is not explained. There is no explanation of a connection between either his current use of marijuana or his criminal record and marine transportation security.
The Respondent
The Decision Was Reasonable
[37] The Respondent contends that the Decision was reasonable under the circumstances, taking into account the objectives of the legislation. With respect to security clearance, the objective of the legislation is to reduce the risk of security threats by preventing unlawful interference with marine transportation. The Ministry does this by conducting background checks on marine workers who perform certain duties or who have access to restricted areas and by granting clearance only to those who meet the standards set out in the Act and Regulations.
[38] The Applicant’s criminal record of marijuana production and his continued association with criminals through the purchasing of marijuana from criminals are linked to a risk that he could be suborned to commit an act that is a risk to marine security. In Rivet, above, the applicant argued that the revocation of his security clearance was unreasonable because his fraud conviction was unrelated to violent crime, terrorism and the objectives of the legislation. Justice Yvon Pinard rejected this argument, noting that a law is arbitrary only where it bears no relation to, or is inconsistent with, the objectives at the root of it, namely protection of the interests of society as a whole and not just those of the applicant.
[39] In the case at bar, the link between the Applicant’s criminal record and his risk to marine security is explained in the Advisors’ Report:
… [the Applicant] still participates today in the trafficking process by buying from suppliers in his neighbourhood and on the street. His interpretation of this important condition of his conditional sentence [to keep the peace and be of good behaviour] does not include quitting the use of marihuana and stop buying from suppliers. He admitted that he did not care where or toward what cause the money he paid went to.
This situation constitutes in our view reasonable grounds to suspect that the applicant is in a position in which there is a risk that they be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation security.
[40] This demonstrates that there is a link between the Applicant’s criminal record (which includes marijuana cultivation and association with criminals) and the risk that he could be suborned by criminals to commit an act that might constitute a risk to marine security. In this case, the reasons provided by the Minister for denying the Applicant’s security clearance application were certainly sufficient, considering the purpose of the legislation.
The Minister’s Duty of Fairness Was Minimal
[41] The Respondent argues that the Minister’s duty of fairness was minimal in the instant case for two reasons. First, the matter does not concern a revocation of security clearance already obtained but rather a refusal to grant clearance in the first place. In Kahin v Canada (Minister of Transport, Infrastructure and Communities), 2010 FC 247 at paragraphs 11-16, Justice Roger Hughes of this Court observed that, in Motta v Canada (Attorney General) (2000), 180 FTR 292, [2000] FCJ No 27 (QL) Justice Pinard commented that a refusal to grant security clearance does not involve the withdrawal of a person’s rights and that, therefore, that person can have no legitimate expectation that he will be granted clearance. Justice Hughes went on to distinguish Motta from DiMartino and Xavier, above, the latter two being cases in which the applicants’ security clearance was revoked, thus requiring that the applicants be afforded an opportunity to see the evidence relating to third-party allegations made against them and to make submissions.
[42] The “security clearance revocation cases” (Rivet, DiMartino and Xavier) are relied on by the Applicant but are distinguishable for the reasons outlined above. The Respondent argues that the instant matter, a “security clearance refusal case,” is more similar to Kahin, above. Applying the re