Ng v. Canada (Attorney General)

Ng v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-04-19
Neutral citation
2017 FC 376
File numbers
T-1277-16
Notes
A correction was made on 6 Dec, 2017
Reported Decision
Decision Content
Date: 20170419
Docket: T-1277-16
Citation: 2017 FC 376
Ottawa, Ontario, April 19, 2017
PRESENT: The Honourable Mr. Justice Annis
BETWEEN:
MILA KAH KATE NG
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is a judicial review, pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a decision by the Minister’s Delegate, the Director General of Aviation Security for Transport Canada [the Minister] dated July 19, 2016 [the Decision], denying the Applicant’s Security Clearance application [the Application].
[2] The application for judicial review is dismissed with costs.
I. Background [3] In May 2014, the Applicant became employed as a Flight Attendant. At this time, she applied for a Restricted Area Identity Card [RAIC] which first requires that the Applicant obtain a security clearance pursuant to the Transportation Security Clearance Program [TSCP]. While her application was being processed, the Applicant held a temporary RAIC.
[4] Applicants for a security clearance under the TSCP are subject to a comprehensive background check. Where this background check raises concerns, the TSCP requires that an Advisory Body be convened to review the application and make a recommendation to the Minister.
[5] On September 1, 2015, the TSCP received the Applicant’s Law Enforcement Records Check [LERC Report] from the Royal Canadian Mounted Police [RCMP]. The LERC Report described three drug-related incidents as well as her association with her former boyfriend:
Stayed Trafficking Charges:
• In April 2008, Vancouver Police observed a “hand to hand” transaction between a pedestrian and the driver of a vehicle in an area known by police to be frequented by several property crime criminals, drug users and addicts. Police initiated a vehicle stop of the suspected drug dealer's vehicle.
• As officers approached the vehicle they witnessed the driver pass something to the passenger. Both driver and passenger were arrested for Possession for the Purpose of Trafficking.
• The passenger was identified as the Applicant.
• On the passenger seat officers found loose flaps believed to contain heroin weighing 0.56 grams and 0.44 grams of rock cocaine. The driver claimed he had a heroin habit and that the drugs were his.
• While being processed at Vancouver Police jail, the driver was found to be in possession of several more pieces of rock cocaine (5.45 grams) and flaps of heroin (0.51 grams) which were found in a special compartment in his underwear.
• A search of the vehicle incident to arrest revealed a cell phone on the passenger seat along with a purse. Inside the purse were 2 wallets containing identification of both the driver and the Applicant. Both wallets had large sums of Canadian currency (the driver was in possession of $990.00, the Applicant of $260.00). The purse had two cellular phones which were locked, a practice which the LERC Report identifies as common in an attempt to prevent police from collecting further evidence.
• In the centre console was a used yogurt container about 3/4 full with change. The majority of the change was loonies and toonies. The LERC Report notes that the money was consistent with drug dealing as the majority of customers obtain money through property crime.
• The Applicant was charged with two counts of Possession for the Purpose of Trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA], but both charges were entered in a Stay of Proceedings.
b. Vehicle Loan:
• In February 2011, Delta Police pulled over a vehicle registered to the Applicant for an illegal u-turn. The lone occupant was identified as the Applicant’s boyfriend. Officers detected the odour of burnt marijuana and the driver admitted to smoking marijuana prior to driving.
• Officers seized one gram of marijuana. A pipe and scale with residue were also seized.
• The Applicant, the vehicle’s registered owner, was notified that the vehicle would be towed and the driver departed in a taxi.
c. Home Invasion:
• In June 2012, Coquitlam RCMP received a complaint of a home invasion that had just occurred.
• Upon arrival officers noticed that the front door was open and a glass pane was smashed next to the door. An injured male victim was in the doorway.
• Officers asked if there were any persons still inside the house, and the victim replied that his girlfriend was upstairs hiding in a closet. Officers found the Applicant hiding in a bedroom closet upstairs, frightened and couching in a defensive position.
• A search of the residence located a grow operation. A total of 80-100 plants were found, all approximately 4 feet tall. The home owner explained that it was a legal medical marijuana grow operation. Documentation provided to officers indicated an allowance for a total of 60 plants between two licensed growers residing at the residence.
• The Applicant provided an audio video recorded statement to police, in which she stated that while she was hiding in the bedroom closet she heard the suspects drag her boyfriend into the bedroom and beat him.
• She said the suspects repeatedly asked the victim where his girlfriend (the Applicant) was. She explained she could hear the suspects searching for her and they looked in the closet but did not see her.
• There was no explanation provided as to why the suspects were looking for the Applicant or how they knew she was at the residence as it was not her residence.
• The suspects were arrested a few blocks away and each charged with 2 counts of Robbery with a Firearm Contrary to s. 344(1)(a) of the Criminal Code, RSC 1985, c C-46 [Criminal Code], 2 counts of Assault Causing Bodily Harm Contrary to s. 267(b) of the Criminal Code.
[6] On September 24, 2015, the Applicant received a letter from Transport Canada outlining adverse information raising concerns regarding her application [the 2015 Notification]. This letter set out in detail, almost verbatim, the information contained in the LERC Report. The 2015 Notification encouraged the Applicant to respond to these concerns.
[7] On December 1, 2015, after two extensions, the Applicant provided her response to the 2015 Notification. She provided the following documents: a notarized explanation of the three incidents; a letter from Crown Counsel relating to the home invasion incident; and a number of character reference letters. The Applicant’s statement addressed the issues raised in the 2015 Notification as follows:
Subject “A”:
• The Applicant identified Subject A as her former boyfriend and the person involved in the Stayed Trafficking Charges and the Vehicle Loan incidents.
• The Applicant explained that she was young at the time of the 2008 trafficking charges (18 years old) and believed her boyfriend’s lies that it was a misunderstanding.
• She said she tried to leave the relationship multiple times, but her boyfriend manipulated her into staying through threats to herself and her family, and physical violence. She said that she was “finally free from his tyranny” in 2010, when he was incarcerated for possession for the purpose of trafficking.
• When he was released in 2011, he contacted the Applicant to ask for her help by loaning her vehicle to him. She agreed.
• She said that after the Vehicle Loan incident she told her former boyfriend that she could no longer lend him her vehicle because she felt he was not telling her the truth.
• In response, the Applicant said he assaulted her and began to threaten her and her family again, so she cut off ties to him.
b. Stayed Trafficking Charges:
• The Applicant said that she had fallen asleep in the car on the way home from dinner and was woken by a police officer asking her to step out of the car.
c. Vehicle Loan:
• The Applicant said she lent her former boyfriend her vehicle when he was released from prison to help him get his life on track.
• After the incident, she said she cut off ties with him.
d. Home Invasion:
• The Applicant said that the burglars were not looking for her, but rather were looking for anyone in the house so they “could detain them, and gain control of the situation”.
• She said that the investigation relating to the medical marijuana was separate from the break and enter investigation.
• She said that, upon investigation, the police found the marijuana operation to be legal.
• The Applicant concluded that “[t]his is all information which is easy to obtain if your investigating officer is willing to give the matter it’s [sic] proper due diligence.”
• She did not provide any supporting evidence for her claim.
[8] In his letter relating to the home invasion incident, the Crown Counsel, who had been assigned to the home invasion case, explains:
The evidence was unclear as to how the two suspects came to target the residence. As noted in your letter there was another victim who resided in a separate unit who was first attacked by the suspects. This victim was uncooperative with the prosecution. Ms. Ng and her boyfriend Andrew St. Clair testified at the trial. I did not call Ms. Ng as a witness as it was clear to me that she remained shaken from the incident and could not provide any additional evidence beyond what Mr. St. Clair could testify to. Specifically, she could not provide any evidence assisting in the identification of the suspects.
In terms of why the suspects were looking for Ms. Ng, based on all the evidence I reviewed I did not see any connection between her and the perpetrators. I took that part of her statement to be a reflection of the circumstances she found herself in while hiding in a closet, the realization that the suspects knew that there was another person in the residence, and their desire to ensure that the police were not called (which Ms. Ng attempted to do).
[9] On April 12, 2016, pursuant to section I.8 of the Transportation Security Clearance Program policy [the Policy], the Advisory Board recommended that the Minister refuse the Application as described in its Summary of Discussion contained in the LERC Report, the summary of which is as follows:
The Advisory Body recommends refusing the applicant’s transportation security clearance based on a police report detailing the applicant’s involvement in multiple incidents related to drug trafficking. The Advisory Body also noted the applicant’s very close association to an individual with a serious criminal record. 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.
[10] On July 19, 2016, the Minister’s Delegate issued a Decision refusing the Applicant’s clearance on the following grounds:
The information regarding your two (2) stayed charges for Possession for the Purpose of Trafficking and your involvement in multiple incidents related to drug trafficking, along with your very close association to individuals involved in drug trafficking raised concerns regarding your judgment, trustworthiness and reliability. I note your involvement in three (3) incidents related to illegal drug activities, one (1) of which involved rock cocaine and heroin, which are not considered entry-level drugs, leading me to believe that these incidents are related to an historical pattern of involvement in illegal drugs. I also note the incident in June 2012, in which the RCMP received a complaint of a home invasion in which you admitted to being one (1) of the targets. When police searched the residence, a total of 80-100 marijuana plants were found, more than double the permitted quantity, leading me to believe these plants were grown for the purpose of trafficking and not simply for personal use. I note you stated that fewer plants were found than permitted to be grown, however you provided no evidence to support this claim. As a result, I defer to the police report. I further note the vulnerability to airport security that is created by security clearance holders having association to individuals involved in serious criminal activities related to drugs. Furthermore, I found your submission to be dismissive, lack personal accountability and found the discrepancies between the Law Enforcement Record Check and your submission to be significant, leading me to question your credibility. An in-depth review of the information on file led me to reasonably believe, on a balance of probabilities, that you 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 you provided; however, the information presented was not sufficient to address my concerns. For these reasons, on behalf of the Minister of Transport, I have refused your security clearance.
II. Relevant Legislation [11] The relevant provisions of the Aeronautics Act, RSC 1985, c A-2 [Aeronautics Act] as well as relevant provisions of the Policy are provided in the annex.
III. Issues [12] The Applicant submits the Decision was unreasonable and procedurally unfair for the following reasons:
1) The Decision was unintelligible in that it does not permit the Applicant or the Court to determine the basis for the cancellation of the Applicant’s Security Clearance.
2) The Minister’s credibility and fact determination analysis was manifestly flawed.
a) The Minister erred in finding that the Applicant lacked credibility and in rejecting her evidence regarding the home invasion incident.
b) The Minister erred in finding that the Applicant had a historical pattern of involvement with illegal drugs without proper or any evidence to support this conclusion.
3) The Applicant was denied procedural fairness as the Minister applied her own knowledge about entry-level drugs as a substitute for expert evidence and did so without notice.
IV. Standard of Review [13] The parties agree that the standard of review for the Minister’s decision of the Minister’s Delegate under section 4.8 of the Aeronautics Act is reasonableness and that the standard of review with respect to whether there was a breach of procedural fairness is correctness (Lorenzen v Canada (Transport), 2014 FC 273 at para 12).
V. Analysis A. The Minister’s Reasons Were Intelligible (1) Introduction [14] At the hearing, the Applicant provided the Court with the case of Britz v Canada (Attorney General), 2016 FC 1286 [Britz]. The Applicant submitted that, for the same reasons as in Britz, the Decision was not intelligible.
[15] Britz concerns the application of the same Policy as in the present case. In that case, however, the Court determined that the applicant was only at risk of being “induced” to commit unlawful acts. The Minister’s delegate found the applicant was residing with a partner who had a history of associations with the Hells Angels motorcycle gang, but that she had no criminal record, nor was there evidence of any unlawful behaviour to support a conclusion that she would be “prone” to commit unlawful acts.
[16] The facts in Britz provided the basis for the Court to conclude that the reasons were unintelligible. It found that the Minister made what was described as an “unreasonable 'either/or' decision” by borrowing from the Policy’s language and finding 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” [emphasis added]. The decision was said to be unintelligible because it did not permit the applicant or the Court to determine the basis for the cancellation of the applicant’s security clearance.
[17] The Court explained at paragraph 40 of Britz that the Minister had to choose between one of three findings:
[40] Accordingly, as I read it, the Policy’s wording describes three different findings which the Minister may make. First, an individual may be found to be an individual who may be prone to commit or assist or abet an unlawful act. Secondly, an individual may be found to be an individual who may be induced to commit or assist or abet an unlawful act. Third, an individual may be found to be an individual who both may be prone and induced to commit or assist or abet an unlawful act.
[18] The Court interpreted the terms “prone” and “induced” to have different meanings based on the presumption of consistent expression, their differing dictionary definitions, and the qualitative difference between each analysis (Britz at paras 44-48). I do not disagree with this. I also understand proneness relates to character: viz. “This provision involves an assessment of a person’s character or propensities (‘prone or induced to’)” (Clue v Canada (Attorney General), 2011 FC 323 at para 20) [Clue] [emphasis added].
[19] The Court went on to find that it was unreasonable for the Minister to deny the application without identifying which of these three possible findings had led to that result. The Court’s reasoning in support of this conclusion from paragraphs 54 to 56 of Britz is as follows:
[54] What the Minister acting reasonably may not do is to find disjunctively, as the Minister did here, that the Applicant may either be prone to or induced to commit unlawful activities without actually deciding the basis for his Decision to cancel.
[55] Here, the Minister did not decide one way i.e., prone, or the other i.e., induced. In addition, the Minister did not find that the Applicant may be both prone and induced. In my respectful view, in failing to decide on one of the three possible bases for cancellation allowed by the Policy in this respect, the Minister failed his duty to decide in accordance with law. The Minister had no authority to cancel the Applicant's clearance‎ without deciding the basis for that cancellation.
[56] Essentially, the Minister’s disjunctive finding is an equivocation, not a decision. No reasons for this equivocal finding are provided. In my respectful view, the Minister was obliged to do more than make equivocal ‘maybe this or maybe that’ findings as done here.
[Emphasis added]
[20] The Court also found at paragraphs 61 of Britz and following that even absent the above intelligibility concern, it would still have set aside the decision on the basis of the lack of transparency in the reasons. It concluded that the Minister failed to duly consider the submissions of the applicant contesting the finding that her partner had associations with members of the Hells Angels.
[21] The Court’s decision in Britz is summarized at paragraph 74 as follows:
[74] The only reasonable basis on which the Minister might have made a Decision to cancel on the facts of this case would be if the Minister had concluded that the Husband’s dealing with the Hells Angels put the Applicant’s employment in such jeopardy that the Applicant fell into the “may be … induced” category. I stress this option could only arise if, contrary to my finding above, a disjunctive ‘either/or’ finding is reasonably permitted. The Court is presented with three difficulties in allowing the decision to stand on this basis. First, that is not what the Minister decided. The Decision did not conclude that the Applicant may be induced. Instead, the Minister made a disjunctive ‘either/or’ finding that the Applicant may be either prone or induced. Second, a disjunctive finding is per se unreasonable for the reasons set out above. And finally, to reach the result that the Applicant may be induced by her Husband, the Minister must, of necessity, have rejected each of the eight responses plus the two reference letters provided. While I may, in some circumstances, supply reasons and ‘connect the dots,’ that would entail writing reasons for why the Minister rejected virtually all the Applicant’s responses while knowing only the end result. I am unable to write the reasons the Minister did not write for that conclusion.
[Emphasis added]
(2) Distinguishing Sargeant v Canada (Attorney General) [22] The Court in Britz was careful to distinguish its facts from those in the matter of Sargeant v Canada (Attorney General), 2016 FC 893 [Sargeant]. In that case, while the Minister used the same language to find that the applicant may be “prone or induced”, there were facts in the reasons to support findings under both headings. I think it important however, to state that no attempt was made in Sargeant to link specific evidence to either of the two conclusory findings, both of which were upheld. The Court in Britz distinguishes the decision at paragraph 49 as follows:
[49] The Minister in Sargeant made the same disjunctive finding as made in the case at bar. However, unlike the case at bar, the Minister in Sargeant not only had grounds to find the applicant may personally be prone i.e., inclined to unlawful activity (he admitted to have acted unlawfully before), but in addition, the Minister also had grounds to conclude that the applicant might be induced into unlawful activity (as in fact the applicant had been before). Therefore, the Minister’s finding was reasonable.
[23] In the present matter, the Minister borrowed the same language from the Policy as in Britz in finding that “the Applicant may be prone or induced to commit” an unlawful act. It is argued that the Minister erred by making the same unreasonable disjunctive finding as in Britz. However, the Respondent relies upon the foregoing passage to distinguish Britz, as there is evidence in the present case that supports a reasonable belief that the Applicant is both prone to and at risk of being induced to commit an unlawful act.
[24] Normally, I would apply a distinction already made in a case being pleaded before me. However, I feel compelled to express my respectful disagreement with the “either/or” ruling in Britz. I do so for a number of reasons, not the least of which is that I do not see how the distinction may be made between the Britz and Sargeant decisions, unless as a corollary to Britz, the Minister is required not only to identify the finding relied upon, but also to describe the evidence that supports each finding. Second, I find that Britz effectively “judicializes” the Minister’s decision-making process by requiring unnecessary distinctions between the findings underlying rejection in a manner contrary to the principles in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]. Third, there are also a number of practical concerns with its application, both to the facts in Britz and to comparable situations, if the Minister’s decision were to be set aside on the grounds of the “either/or” ruling.
[25] In regard to this last point, it is perhaps also important to note that, in my opinion, the Court’s reasons pertaining to the unintelligibility of a disjunctive “either/or” finding in Britz were obiter dictum. By that, I mean that the comments on the intelligibility of the Decision were unnecessary, inasmuch as the decision would have otherwise been set aside for lack of reasonableness. There was no evidence in regard to proneness, while the Court found that the Minister had committed a reviewable error regarding inducibility by rejecting the Applicant’s eight responses to the fairness letter and two reference letters without providing reasons.
(3) The Facts in Britz and Sargeant Cannot Be Reconciled [26] I have already stressed the importance I attach to the fact that the reasons in Sargeant make no attempt to link specific evidence or factual conclusions to each of the two conclusory findings for rejection. Thus, in both Sargeant and Britz, the Minister did not specifically describe which evidence supported which findings. This effectively means that the exercise of relating the specific evidence to the specific finding is left to the applicant, and is not something that the Minister is required to describe.
[27] As such, I find that if it was reasonable to leave this exercise of linking the facts or evidence in the reasons to the conclusory findings for rejection in Sargeant, it was equally reasonable for the applicant in Britz to understand that the evidence in question related only to the inducement finding, such that the fact that both findings were mentioned in the Decision did not render the decision unintelligible. This demonstrates, at a minimum, that the Court’s difficulty in Britz was not that the applicant did not understand the reasons for the rejection. Rather, the essence of the Court’s conclusion was that no decision was made when one of the factors had no evidence to support it on the theory that the evidence could apply to either factor. The Court arrived at this decision despite finding that the facts in Britz could only relate to the inducement factor.
[28] In my respectful view on the Court’s own finding, the applicant must therefore, have understood that the security risk raised a concern in the Minister’s mind about her being influenced by her relationship with someone thought to have links with organized crime. The issue was whether that conclusion was reasonable. The sole fact that the finding of “proneness” was mentioned in the Decision could not, in my respectful opinion, have misled the Applicant as to the substance of the Minister’s decision for the cancellation of her security clearance.
[29] In my view, Britz and Sargeant can only be reconciled in terms of an intelligibility requirement if the Policy was interpreted to impose a duty on the Minster to specifically link the evidence in the decision to each factor, or only one factor if those were the underlying facts. The Sargeant decision implicitly confirms that this is not necessary, so long as the reasons contain evidence that supports either one of the factors cited in the reasons.
[30] Accordingly, if Britz is correct in imposing this duty on the Minister in formulating the reasons for the decision, then Sargeant cannot stand and the Minister will have a duty to treat the facts specific to each head of rejection separately. If such is the Minister’s duty, it seems equally incompatible that the Advisory Body’s fairness letter would not also be required to make the same distinction, lest the applicant be similarly confused as to what evidence applies to which risk factor. As such, I find that, if the intelligibility finding in Britz is to stand, it also imposes a duty on the Minister to outline which evidence supports which finding in the fairness letter.
[31] Moreover, once the Minister starts to distinguish between the factors in the reasons, it will be necessary to do the same thing in the advice of the Advisory Board, which in turn will lead it to separate the evidence under separate factors. This practice will then extend to the fairness letter provided to the applicant. This in turn will raise the issue of the adequacy of the notice of the case the applicant has to meet as an aspect of the duty to act fairly. It is not unreasonable to concluded that Britz will lead the Minister, on a practical basis for the sake of avoiding new challenges, to apply its reasoning at all steps of the decision-making process, without being limited to circumstances where both factors are referred to in the decision letter alone, but the underlying facts only point to one of them.
(4) The requirement for the specific identification of factors that relate to the facts sustaining them for the Minister’s reasons to be intelligible should be rejected as inconsistent with the deference owed the Minister’s broad discretionary authority and the applicable principles of judicial review. [32] My concern with Britz is that it imposes on the Minister an analytical structure of reasoning based on the Policy that is inconsistent with the jurisprudence that supports a highly deferential approach in all respects to the Minister’s broad discretionary decision-making authority including that of the intelligibility of the Minister’s reasons.
[33] A summary of the Federal Court’s jurisprudence on this issue was set out at paragraphs 26 to 29 of Sargeant, as cited with approval at paragraph 35 of Britz:
[26] In security clearance cases, this Court has stated three important principles.
[27] First, section 4.8 of the Act confers on the Minister a broad discretion to grant, suspend or cancel a security clearance, which empowers him to take into account any relevant factor (Thep-Outhainthany v Canada (Attorney General), 2013 FC 59 (CanLII), at para 19, 425 FTR 247 [Thep-Outhainthany]; Brown v Canada (Attorney General), 2014 FC 1081 (CanLII), at para 62 [Brown].
[28] Second, aviation safety being an issue of substantial importance and access to restricted areas being a privilege, not a right, the Minister, in exercising his discretion under section 4.8, is entitled to err on the side of public safety which means that in balancing the interests of the individual affected and public safety, the interests of the public take precedence (Thep-Outhainthany v Canada, at para 17; Fontaine v Canada (Transport), 2007 FC 1160 (CanLII), at paras 53, 59, 313 FTR 309 [Fontaine]; Clue v Canada (Attorney General), 2011 FC 323 (CanLII), at paragraph 14). Rivet v Canada (Attorney General), 2007 FC 1175 (CanLII), at para 15, 325 FTR 178).
[29] Third, in such matters the focus is on the propensity of airport employees to engage in conduct that could affect aviation safety which requires a broad and forward-looking perspective. In other words, the Minister "is not required 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"" (MacDonnell v Canada (Attorney General), 2013 FC 719 (CanLII), at para 29, 435 FTR 202 [MacDonnell]; Brown, at para 70). As such, the denial or cancellation of a security clearance "requires only a reasonable belief, on a balance of probabilities, that a person may be prone to or induced to commit an act that may interfere with civil aviation" (Thep-Outhainthany, above at para 20). Any conduct which causes to question a person's judgment, reliability and trustworthiness is therefore sufficient ground to refuse or cancel a security clearance (Brown, at para 78; Mitchell v Canada (Attorney General), 2015 FC 1117 (CanLII), at paras 35, 38 [Mitchell]).
[Emphasis added]
[34] I find that, contrary to the broad discretion described above, the Court in Britz has interpreted the Policy as though it were a statutory enactment, as opposed to a mere guideline. The context of the statutory language of section 4.8 of the Aeronautics Act is expressed about as broadly as it could be without making it a form of unreviewable discretion. It provides that “[t]he Minister may, for the purposes of this Act, grant or refuse to grant a security clearance to any person”. It is equally significant that the Policy is not statutorily supported by a Regulation. There is no Regulation providing direction as to how the Minister’s discretion is to be exercised, or even a Regulation requiring a policy to be adopted for the same purpose. This reflects the policy reasons underlying section 4.8 of the Aeronautics Act as described at paragraph 28 of Sargeant: “aviation safety being an issue of substantial importance and access to restricted areas being a privilege, not a right, the Minister, in exercising his discretion under section 4.8, is entitled to err on the side of public safety which means that in balancing the interests of the individual affected and public safety, the interests of the public take precedence”.
[35] Moreover, with specific reference to the notion of deference applied to the reasons of the decision-maker, the Supreme Court in Dunsmuir instructed reviewing courts to start from the position of seeking to supplement the decisions-maker’s reasons, before seeking to subvert them: viz. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62 at para 12 [Newfoundland] of the decision:
[12] It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:
“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added.] (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)
[Emphasis added]
[36] In my view, a flexible and deferential application of the Policy is more consistent with the Dunsmuir principles on interpreting reasons and with the Federal Courts’ jurisprudence. A contextual and purposive interpretation of the supporting legislation and the Policy would, I conclude, favour adopting a liberal construction of intelligibility in these types of cases that focuses on the explanation provided and the affected applicant’s understanding, as opposed to expressing concerns from a citation of factors from the Policy whether the Minister logically or imperfectly made any decision at all. This is in line with the view “that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (Newfoundland at para 18, citing Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221; aff’d 2011 SCC 57, [2011] 3 S.C.R. 572 at para 164).
[37] As long as the Decision sufficiently advises the affected individual of the facts giving rise to the finding of the person’s inclination of risk to aviation safety and presents a logical association with at least one of the grounds for rejection, the reasons should be found to be sufficiently intelligible. It is the Court’s duty for the same reasons to judge whether 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, at para 16].
[38] The fact that there is no evidence to support a conclusion on one factor has no bearing on the conclusion that all the evidence in the reasons in Britz relates to the risk of the inducibility of the applicant. It is clear from the reasons in Britz that the risk stems from the applicant being perceived as having associations with an illegal gang. If the applicant can relate the different evidence in Sargeant to the different factors without being told, so too can the applicant and the reviewing Court in Britz.
[39] Nor do I believe that any argument can be sustained that it is “preferable” for a decision maker to indicate under which of the three findings outlined in Britz the security clearance is rejected so as to “contribute to the clarity” of the decision-making process and to enhance the Applicant’s ability to understand it. Ultimately, what is being determined is whether a judicial-like duty is to be imposed on the Minister in rendering reasons for a decision, such that it would constitute a reviewable error not to provide such clarity. In judicial review on this issue, there is no preferred procedure, only reasonable or unreasonable ones. Moreover, administrative practices soon become judicially enforceable ones, if regularly followed over time as raising an expectation interest.
[40] In this regard, I also respectfully conclude that it is somewhat a misnomer to describe the Minister’s decision as a disjunctive “either/or” finding. The dictionaries indicate that the “either/or” phraseology refers to an unavoidable choice between two options. This means that both options are available, but choosing one eliminates the possibility of the other, e.g. on today’s luncheon special you may have either soup or a salad, but not both. Because the Court’s criticism in Britz was that that no decision had been made, reference to the either/or terminology appears to implicitly express a conclusion that a finding on one factor would exclude the other when used together.
[41] However, proneness and inducibility are expressed as alternatives in the Policy. I think the better interpretation of the Decision in accordance with the direction in Dunsmuir is that the Minister made a decision that both factors apply. This was the case in Sargeant where the same disjunctive formulation as in the Policy was used. Thus, where there are two alternative grounds for rejection, the security clearance will not be given if either one is reasonably sustained. This is also consistent with the Court’s reasoning in Clue, which found that the decision involves examining “a person’s behaviour to determine if, on balance, it supports a reasonable belief that a person may in the future be inclined to act unlawfully in the context of aeronautical safety.” (at para 20, with my emphasis). Britz, adds requirements not found in this test, which this Court has always applied.
[42] In essence, a contextual and deferential approach to reviewing the decision would recognize that when the only evidence in the reasons relates to the factor of inducement, the decision is sufficiently intelligible to the applicant for her to realize that this was the factor used by the Minister to reject her clearance. In other words, there was a decision, and it was adequately intelligible for the applicant to understand the factor being relied upon by the Minister for her rejection because of the risk that was perceived of her having associations through her partner with a gang that is notoriously contemptuous of the law.
(5) Practical Considerations Impeding the Application of Britz [43] I would respectfully submit that there are also a variety of practical reasons why the reasoning in Britz should be rejected. First, I do not believe the Minister’s decision could have been set aside, had the Court not found that the determination that the Applicant was at risk of being induced to commit an unlawful act was unreasonable due to the lack of transparency of the reasons in failing to address her counterarguments. It is well established that judicial review should not be granted where, “had the tribunal applied the right test, it would have come to the same conclusion” (Appulonappar v Canada (Citizenship and Immigration), 2016 FC 914 at para 26). Had the Court in Britz sent the decision back to the Minister for a redetermination solely on the basis of the unintelligibility of the decision (if it had concluded that the decision concerning the risk of inducement was transparent), the Minister’s redetermination would have been upheld by merely striking the reference to “prone” in the original decision, and rendering the same decision on the inducement factor, as that which was set aside.
[44] A second practical consequence is the problem of distinguishing the situation where there is “no evidence” of a particular risk factor, as opposed to the situat