Federal Court


Air Law

Airports
Aeronautics Act (Can.) conferred broad discretion to grant, refuse, suspend or cancel security clearance

In 2008, after obtaining necessary security clearance and restricted area identity card (“RAIC”), applicant began employment at terminal of international airport. In January 2015, however, Transport Canada advised applicant security clearance was being reviewed as result of information received through law enforcement record check. It appeared applicant’s former spouse, with whom she shared joint custody of two children, was full patch member of Hells Angels, had been affiliated with gangs since 2002 and had been charged with (but not convicted of) several criminal offences including assault, uttering threats and possession of scheduled substance. Applicant was afforded opportunity to provide information or explanation, including with respect to any extenuating circumstances, on two occasions but denied opportunity for in-person meeting. Ultimately, Transportation Security Clearance Advisory Body determined she had failed to provide sufficient information to dispel concerns raised by record check. Minister of Transport’s delegate cancelled applicant’s security clearance on basis there was reason to believe, on balance of probabilities, she may be prone or induced to commit, or assist or abet another individual to commit, act that may unlawfully interfere with civil aviation. Applicant’s employment terminated as result of decision. Applicant brought application for judicial review on basis decision both unreasonable and procedurally unfair. Application denied. Section 4.8 of Aeronautics Act (Can.) conferred on Minister broad discretion to grant, refuse, suspend or cancel security clearance necessary to obtain RAIC. Minister entitled to take in to account any factor he or she considered relevant including criminal charges that did not result in conviction irrespective of whether person charged was holder of security clearance or close associate. Minister’s delegate had been satisfied applicant was aware of former spouse’s criminal involvement prior to end of marriage, raising concerns about her judgment, and there was risk former spouse might use tactics of intimidation, violence and manipulation against applicant to achieve goals of Hells Angels. There was nothing to indicate delegate had failed to consider matters such as involuntary nature of applicant’s relationship with former spouse or her involvement of police when he threatened her on previous occasions. Those matters did not, in any event, undermine basis for decision which was reasonably supported by evidence. Minister entitled to err on side of public safety. Access to restricted area of airport a privilege, not a right. Decision fell within range of possible, acceptable outcomes defensible in respect of facts and law. 

Wu v. Canada (Attorney General) (June 24, 2016, F.C., Paul S. Crampton C.J., T-1596-15) 268 A.C.W.S. (3d) 10.

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