The Federal Court recently upheld the denial of a security clearance to a woman who worked for Westjet. The security clearance was a condition of her employment at the Vancouver International Airport.
In 2006 or 2007, the woman accompanied her husband on an “errand” that ended badly. While she was waiting in the car, the house her husband was visiting was raided by the police. The police found a hidden compartment in the car that contained drugs and a loaded gun. The car was registered in her name. She, along with her husband, was arrested. They were both charged with four counts of possession for the purposes of trafficking and one count of possession of a loaded prohibited firearm. Her husband pled guilty and the prosecutor stayed the charges against the applicant. She denied any knowledge of her husband’s criminal activities.
There were some disputed facts about the date that the incident occurred and whether or not she attempted to flee from the police. She separated from her husband in 2011 and commenced divorce proceedings.
In February of 2012, the Minister accepted the following recommendation of the Advisory Body that reviews denials of security clearances under the Aeronautics Act, RSC, 1985, c A-2:
The Advisory Body was unanimous in its recommendation to refuse the transportation security clearance. An in-depth review of the file, including the police report detailing a recent drug-related incident involving the applicant and her husband that included an extremely large amount of cocaine and other drugs, as well as a loaded prohibited firearm, led the Advisory Body to believe, on a balance of probabilities, that she may be prone or induced to commit an act or assist or abet any person to commit an act that my (sic) unlawfully interfere with civil aviation. Furthermore, the applicant’s written explanation and supporting documentation did not provide sufficient information that would persuade the Advisory Body to recommend issuing a clearance.
Air safety is an issue of substantial importance and access to restricted areas is a privilege, not a right: Fontaine v Transport Canada Safety and Security, 2007 FC 1160.
The Federal Court stated that in exercising his discretion, the Minister may consider any factor that he considers relevant, including criminal charges that do not result in a conviction and evidence about a person’s character or propensities.The court drew an analogy to inadmissibility proceedings under the Immigration and Refugee Protection Act, SC 2001, c 27, where the mere fact of criminal charges is not probative but a Court can look at the underlying circumstances. In Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607 at paragraph 35, Justice Anne MacTavish wrote:
In my view, a distinction must be drawn between reliance on the fact that someone has been charged with a criminal offense, and reliance on the evidence that underlies the charges in question. The fact that someone has been charged with an offense proves nothing: it is simply an allegation. In contrast, the evidence underlying the charge may indeed be sufficient to provide the foundation for a good-faith opinion that an individual poses a present or future danger to others in Canada.
The court also noted the different standards of proof at play (beyond a reasonable doubt vs. balance of probabilities).
The applicant submitted that the Minister was prohibited from considering her arrest because she had the incident expunged from the Canadian Police Information Centre (CPIC), the federal repository for criminal and non-criminal records. The court responded:
The absence of a criminal record does not purge her name from all and any sources that might be consulted on a background check for civil purposes. As stated above, the Minister may consider any evidence that he considers relevant. The Minister not only relies on the results of a CPIC search, but also the records of the Canadian Security Intelligence Service (CSIS) and the files of various law enforcement agencies. While the applicant’s information may have been removed from CPIC, it was still in the RCMP records.
The court also noted that she had signed a consent form that allowed all law enforcement records to be searched.
On the reasonableness of the Minister’s decision, the court stated:
In this case, the applicant’s husband was implicated in a sophisticated dial-a-dope trafficking operation, and used a car of which she was the principle operator. That car included a secret compartment containing a variety of controlled substances and a loaded, prohibited firearm. While there may not have been sufficient evidence to convict the applicant, the facts reasonably support a belief she was either closely connected to this activity or wilfully blind to it.
Cocaine and heroin are imported into Canada and the applicant’s access to a restricted area of an airport could attract the attention of her husband or his criminal associates. While the applicant is currently seeking a divorce, this evidence was not before the Minister when he reached his decision. At the time of the decision they had been separated for months.
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…The drugs and weapon were found inside the vehicle that was registered with her as the principle operator. She was present with her husband when the search warrant was executed. The amount and variety of drugs recovered demonstrated that her husband had substantial involvement in serious criminal activity. These are grounds to support a reasonable belief that the applicant was either aware of or wilfully blind to her husband’s illegal activities, such that the Security Policy criteria were engaged.