2013 FC, 2013 FC 1030

Date: 20131010 Docket: T-1317-12 Citation: 2013 FC 1030 Ottawa, Ontario, October 10, 2013 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: DARYL PAUL DOLINSKI Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT I. INTRODUCTION [ 1 ] Mr. Daryl Paul Dolinski (the “Applicant”) seeks judicial review of the decision of the Minister of Transport, Infrastructure and Communities (the “Minister”), dated June 6, 2012. In this decision, the Director General of Aviation Security, on behalf of the Minister, cancelled the Applicant’s security clearance, pursuant to

section 4.8 of the Aeronautics Act , R.S.C. 1985, c. A-2 (the “Act”) and the Transportation Security Clearance Program (“TSCP”). [ 2 ] The application for judicial review is taken pursuant to the Federal Courts Act , R.S.C. 1985, c. F-7 and the Federal Courts Rules , SOR/98-106 (the “Rules”). [ 3 ] The Attorney General of Canada (the “Respondent”) represents the Minister in this proceeding. II. FACTS [ 4 ] The Applicant obtained security clearance at the Edmonton International Airport in 2006. On January 25, 2007, he and another airport employee were apprehended smoking marijuana in the Applicant’s car.

Marijuana and a scale were also found in the car. The Applicant was charged for possession of marijuana but the charge was withdrawn. [ 5 ] In 2008, the Applicant began working for Air Canada as a baggage handler. [ 6 ] On February 23, 2009, the Applicant was pulled over by the police. The officer observed what he believed to be marijuana and charged the Applicant with possession of a controlled substance. The officer also found $1180 in cash and fifty ecstasy tablets.

As well, the officer found messages on the Applicant’s cell phone from people asking to buy drugs and received a call from someone asking to “get two”. [ 7 ] The Applicant was charged with possession of a controlled substance for the purpose of trafficking under subsection 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “CDSA”) and possession of the proceeds of crime under subsection 355 (

b) of the Criminal Code , R.S.C., 1985, c. C-46. On December 7, 2009, the Applicant pled guilty to the lesser offence of possession of a controlled substance under subsection 4(1) of the CDSA and received a conditional discharge with twelve months probation. The Applicant retained his security clearance and continued to work for Air Canada. On April 3, 2011, he applied for renewal of his security

clearance. [8] By letter dated March 27, 2012, the Applicant was informed by N. Dupuis, the Chief of Security Screening Programs,Security Programs Support at Transport Canada, that his security clearance would be reviewed by the Transportation Security ClearanceAdvisory Body.

The reason for the review was that information had been obtained which raised concerns about the Applicant’ssuitability for clearance, that is information about the January 2007 and February 2009 incidents. [9] On April 12, 2012, the Applicant submitted a letter explaining the two incidents, a letter from his lawyer, a letter from hissupervisor, and a letter from a Dr.

Pagliaro, an expert witness who had been retained by the Applicant in connection with the criminalcharges against him. [10] On April 20, 2012, the Applicant’s security clearance was automatically renewed on the basis of a policy permittingautomatic renewal, given the length of the review process. On April 25, 2012, the Applicant phoned the Edmonton International AirportPass Control Office which informed him of the renewal and he began to use this pass. III. DECISION UNDER REVIEW [11] On May 10, 2012, the Advisory Board reviewed the Applicant’s security clearance and recommended that it be cancelled.

OnJune 6, 2012, the Director General of Aviation Security, for the Minister, decided to cancel the Applicant’s security clearance. Thedecision referred to the information which the Applicant provided. [12] The Director General concluded that the information regarding the Applicant’s recent drug-related criminal offences,including the information regarding texts and calls to his phone from individuals asking to buy drugs, led him to believe that on a balanceof probabilities the Applicant might be prone to commit

an act, or assist or abet an individual to commit

an act, that may unlawfullyinterfere with civil aviation. The Director General also stated that the Applicant’s written statement did not contain sufficient informationto address his concerns and that insufficient time had passed to demonstrate a change in the Applicant’s behaviour. [13] By letter dated June 7, 2012, the Applicant was advised by the Director General of Aviation Security that the Minister hadcancelled his transportation security clearance. The reasons provided in this letter are the same as those in the decision of June 6, 2012. IV. SUBMISSIONS [14] The Applicant argues that the decision was unreasonable.

Section I.4 of the TSCP requires that the Minister hold a reasonablebelief that a person may be prone to commit

an act that unlawfully interferes with civil aviation, or to assist or abet a person incommitting such

an act. Relevant factors set out in

section II.35(2)(

a) of the TSCP include convictions for trafficking or possession forthe purpose of trafficking, exporting, or importing, under the CDSA. [15] The Applicant submits that he was not convicted of such offences, but rather of possession, for which he received aconditional discharge. Although the Court noted in Lavoie v. Canada (Attorney General), 2007 FC 435 at paras. 23-26 that a conditionaldischarge does not prevent the Minister from considering a conviction, in that case the offence was listed in II.35(2)(a). Possession is notincluded in

section II.35(2)(a). He argues that the Minister’s decision was based on a factor not contemplated by the TSCP. [16] For his part, the Respondent argues that the Minister’s decision was reasonable. The Minister had to consider whetherreinstating the Applicant’s security clearance would be contrary to the objectives set out in

section I.4 of the TSCP. In making a decisionunder

section I.4.4 of the TSCP, the Minister may consider any relevant factor, including but not limited to, those listed in II.35(2)(a). [17] The Respondent further submits that the jurisprudence is clear that the Minister may consider relevant factors not enumeratedin the TSCP, including criminal charges resulting in a conviction, charges resulting in some other outcome, and conduct not resulting incriminal charges; see the decision in Fontaine v. Canada (Transport) (2007), 2007 FC 1160 , 313 F.T.R. 309.

[18] In Russo v. Canada (Transport) (2011), 2011 FC 764 , 406 F.T.R. 49, this Court held that the applicant’s use ofmarijuana was a relevant consideration as he associated with criminals when purchasing the drug. In Lavoie, supra, this Court determinedthat the Advisory Board and Minister were not limited by the lack of a conviction or by the list in II.35(2)(a). [19] As in Russo, supra, the Applicant’s association with criminals when purchasing marijuana is a relevant factor. The Minister’sdecision was also not based solely on the guilty plea and conditional discharge.

Rather, the Minister considered several relevant factorsincluding the 2007 charge for possession and the information indicative of drug trafficking. [20] The Respondent argues that a relatively low standard of proof is applicable to security clearance decisions. A refusal onlyrequires a reasonable belief, on a balance of probabilities, that a person may be prone or induced to act to commit or assist in

an act thatmay unlawfully interfere with civil aviation. A refusal can be based on a reasonable suspicion (Fontaine, supra, paras. 74-75, 81-82;Lavoie, supra, para. 29; Clue, supra, para. 20).

Section I.4.4 involves an assessment of a person’s character or propensities and does notrequire evidence of the actual commission of an unlawful act (Clue, supra, para. 20). [21] Here, the Advisory Body noted the conditional discharge and withdrawn charge, the RCMP reports, the Applicant’spossession of a scale, the text messages and calls, that he was using drugs on his break at work, the Applicant’s failure to address any ofthe information indicative of dealing, and the recent nature of the incidents. V. DISCUSSION AND DISPOSITION [22] The relevant provision of the Act is

section 4.8 as follows: 4.8 The Minister may, for thepurposes of this Act, grant orrefuse to grant a securityclearance to any person orsuspend or cancel a securityclearance. 4.8 Le ministre peut, pourl'application de la présente loi,accorder, refuser, suspendre ouannuler une habilitation desécurité. [23] The following provisions of the TSCP are also relevant: I.4 The objective of this Programis to prevent the uncontrolledentry into a restricted area of alisted airport by any individualwho […] 4. the Minister reasonablybelieves, on a balance ofprobabilities, may be prone orinduced to o commit

an act that mayunlawfully interfere with civilaviation; or o assist or abet any personto commit

an act that mayunlawfully interfere with civilaviation. L'objectif de ce programme estde prévenir l'entrée non contrôléedans les zones réglementées d'unaéroport énuméré dans le cas detoute personne: […] 4. qui, selon le ministre et lesprobabilités, est sujette ou peutêtre incitée à: o commettre un acted'intervention illicite pourl'aviation civile; ou o aider ou à inciter touteautre personne à commettre unacte d'intervention illicite pourl'aviation civile.

II.35 1. The Advisory Body may recommend to the Minister the cancellation or refusal of a security clearance to any individual if the Advisory Body has determined that the individual’s presence in the restricted area of a listed airport would be inconsistent with the aim and objective of this Program. 2.

In making the determination referred to in subsection (1), the Advisory Body may consider any factor that is relevant, including whether the individual: a. has been convicted or otherwise found guilty in Canada or elsewhere of an offence including, but not limited to: i. any indictable offence punishable by imprisonment for more then 10 years, ii. trafficking, possession for the purpose of trafficking or exporting or importing under the Controlled Drugs and Substances Act , iii. any offences contained in

Part VII of the Criminal Code - Disorderly Houses, Gaming and Betting, iv. any contravention of a provision set out in

section 160 of the Customs Act, v. any offences under the Security Of Information Act; or vi. any offences under

Part III of the Immigration and Refugee Protection Act ; 3. is likely to become involved in activities directed toward or in support of the threat or use of acts of serious violence against property or persons. II. 35 1. L'Organisme consultatif peut recommander au ministre de refuser ou d'annuler l'habilitation d'une personne s'il est déterminé que la présence de ladite personne dans la zone réglementée d'un aéroport énuméré est contraire aux buts et objectifs du présent programme. 2.

Au moment de faire la détermination citée au sous- alinéa (1), l'Organisme consultatif peut considérer tout facteur pertinent, y compris: a. si la personne a été condamnée ou autrement trouvé coupable au Canada ou à l'étranger pour les infractions suivantes: i. tout acte criminel sujet à une peine d'emprisonnement de 10 ans ou plus; ii. le trafic, la possession dans le but d'en faire le trafic, ou l'exportation ou l'importation dans le cadre de la

Loi sur les drogues et substances contrôlées; iii. tout acte criminel cité dans la

partie VII du Code criminel intitulée « Maison de désordre, jeux et paris »; iv. tout acte contrevenant à une disposition de l'article 160 de la

Loi sur les douanes; v. tout acte stipulé dans la Loi sur les secrets officiels; ou vi. tout acte stipulé dans la

partie III de la Lois sur l'immigration et la protection des réfugiés. 3. si elle possède une mauvaise réputation en matière de crédit et qu'elle occupe un poste de confiance; ou 4. qu'il est probable qu'elle participe à des activités directes ou en appui à une menace ou qu'elle se livre à des actes de violence sérieuse contre la propriété ou des personnes. [ 24 ] The TSCP states that the Advisory Board may consider “any factor that is relevant” and that offences to consider include but are not limited to those listed in II.35(2)(a).

In Russo , supra Justice Russell dismissed a judicial review application where the applicant had been convicted of possession and production of marijuana, and admitted to continued occasional use of marijuana. [ 25 ] The within application relates to the Minister’s decision to cancel a security clearance. This decision is a discretionary one,

having regard to

section 4.8 of the Act and the provisions of the TSCP cited above. Such a decision is reviewable on the standard of reasonableness; see the decisions in Fradette v. Canada (Attorney General) , 2010 FC 884 at para. 17 and Clue v. Canada (Attorney General) , 2011 FC 323 at para. 14 . Accordingly, the only substantive issue arising is whether the Minister’s decision was reasonable. [ 26 ] In my opinion, the Minister’s decision was reasonable.

The Applicant’s argument that the TSCP’s drug-related concerns are restricted to trafficking runs counter to the policy’s plain language and the wide discretion afforded the Minister. [ 27 ] I am satisfied that the Minister’s decision was reasonable in light of the evidence submitted and the applicable standard of proof. In Clue , supra , para. 20 , Justice Barnes noted that the standard of proof in such cases involves an assessment of a person’s character or propensities and does not require evidence of the actual commission of an unlawful act. This rationale was applied in the recent decision of Peles v.

Attorney General of Canada , 2013 FC 294 . [ 28 ] Although the first charge against the Applicant had been withdrawn and he had received a conditional discharge for the second, the Advisory Body noted the evidence suggested trafficking, that the Applicant had used drugs while on a break from work, and that the events were fairly recent. [ 29 ] This evidence reasonably supports the Minister’s conclusion that the Applicant, on a balance of probabilities, might be prone or induced to commit, or to assist or abet an individual to commit,

an act that unlawfully interferes with civil aviation. [ 30 ] In the result, the application for judicial review is dismissed. In the exercise of my discretion, pursuant to Rule 400(1) of the Rules I make no order as to costs. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed, no order as to costs. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1317-12 STYLE OF CAUSE: DARYL PAUL DOLINSKI v ATTORNEY GENERAL OF CANADA PLACE OF HEARING:

Edmonton, Alberta DATE OF HEARING: April 10, 2013 REASONS FOR JUDGMENT AND JUDGMENT: HENEGHAN J. DATED: October 10, 2013 APPEARANCES : Andrew R. Fraser For The Applicant Robert Drummond For The Respondent SOLICITORS OF RECORD : Snyder & Associates LLP Barristers and Solicitors Edmonton, Alberta For The Applicant William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta For The Respondent