Regulatory scheme applicable to marine transportation security has low standard and based on assessing possibilities

Federal court | Harbours

GENERAL

Regulatory scheme applicable to marine transportation security has low standard and based on assessing possibilities

Applicant was longshore worker whose marine transportation security clearance was cancelled. Transport Canada received Law Enforcement Record Check from RCMP that indicated applicant had no known criminal convictions, but had been seen shaking hands with member of Hell’s Angels, was arrested for aggravated assault after leaving scene of fight but not charged, was identified as passenger of vehicle with member of Hell’s Angels, was arrested but not charged with threatening to shoot up bar and displayed violent behaviour to police, was arrested but not charged with mischief and was suspected of being on drugs at time, and was with known criminals in latter two incidents. Transport Canada advised applicant of concerns and applicant responded by explaining he was not affiliated with Hell’s Angels and only shook hand of man he had previously met to be polite, was helping cousin who was being beaten, did not recall being stopped while passenger in vehicle, bar incident arose from misunderstanding, and mischief incident occurred when he was intoxicated and fell into window. Minister accepted Advisory Board’s recommendations that applicant’s response did not dispel its concerns about his judgment, trustworthiness and reliability, and cancelled his security clearance. Application for judicial review. Application dismissed. Minister’s reasons were terse and would have benefitted from more comprehensive analysis of applicant’s submissions, but applicant’s real complaint was weight Minister gave to his submissions and its preference for LERC report. Regulatory scheme was intended to screen out candidates who presented unacceptably high security risk, and standard was low and based on assessing possibilities. Minister would rely on wide range of information, and it did not have to be reliable and verifiable to standard required for conviction. Cumulative effect of incidents identified in LERC report was more than sufficient to raise serious concerns about applicant’s judgment, trustworthiness and reliability. While applicant had no criminal record, this was not benchmark required to justify Minister’s decision, and applicant did not respond to concerns he was associating with known criminals. LERC report was considered reliable and Minister’s decision entitled to deference.
Sidhu v. Canada (Minister of Transport) (Jan. 8, 2016, F.C., Simon Fothergill J., T-2257-14) 265 A.C.W.S. (3d) 179.


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