In mid-March 2011 Justice Barnes of the Federal Court of Canada released a decision describing the procedural steps required to remove a transportation security clearance from an airport employee.(1)
The case arose in the context of Mr Raymond Anthony Clue, a 28-year-old baggage handler working at Pearson International Airport in Toronto. Clue was a naturalised Canadian citizen, born in Jamaica. He had been resident in Canada since 2002.
In 2003 the minister of transport issued a transportation security clearance to Clue. It was renewed in 2007.
In October 2009 Clue allegedly purchased a stolen Air Canada parking pass and, as a result, was charged with possession of stolen property. This led to a suspension of Clue's transportation security clearance, subject to a review of the stolen parking pass incident, as well as another incident that occurred on June 6 2009 when Clue was alleged to have placed a duffel bag containing a fully loaded, 16-round clip Smith & Wesson handgun (and two bags of hollow point ammunition) onboard an Air Transat aircraft bound for Jamaica.
In December 2009 the crown withdrew the charge against Clue relating to the parking pass, but nevertheless, the review of the suspended transportation security clearance proceeded.
In March 2010 the director of security screening programmes at Transport Canada cancelled the transportation security clearance, acting on the advice of the Transportation Security Clearance Advisory Board. The decision was made on the basis that Clue "may be prone or induced to commit an act that may unlawfully interfere with civil aviation".
Clue commenced a judicial review of this decision. At first instance, the Federal Court (on consent of the parties) remitted the matter to the director for reconsideration.
Clue was invited to submit additional materials in support of his position, but in the end only filed the affidavit sworn by him that was used to commence the judicial review. The result was the same: the board recommended that his transportation security clearance be permanently revoked. In particular, the board noted:
- the severity of the handgun incident;
- that Clue had stated that even if he knew who was involved in the handgun incident, he would not divulge his identity to the police;
- that Clue did not explain or deny his involvement in the handgun incident; and
- that none of Clue's filed materials mitigated the board's concerns.
Having failed to make his case for a second time before the board, Clue sought a judicial review of the reconsideration - arguing that the decision was "perverse and capricious and therefore unreasonable in law".
The court had two issues to decide:
- whether procedural fairness had been given to Clue; and
- whether the evidence reasonably supported the board's decision.
As to the issue of procedural fairness, the court noted that the procedures designated by the transportation security clearance programme were followed, and that Clue was advised of the allegations and invited to respond. The court also noted that neither Clue nor his counsel sought further particulars of the allegations.
Finally, the court noted that there was no obligation on the director to identify the informant.
For these reasons, Barnes found that the requirements of procedural fairness had been satisfied.
As to whether the evidence relied upon supported the decision, the court noted that Clue had been largely uncooperative, belligerent and possibly obstructionist when confronted by airport authorities. Barnes also referred to an intelligence report filed with the crown's materials where it was noted that, when confronted with the handgun allegations, Clue did not deny his involvement, appeared afraid to discuss the matter and attempted to shift the discussion to identifying who had implicated him in the matter. The court noted that Clue was most concerned that he was "forced to express [his] displeasure at [his accusers], for impugning his good name without any [basis]".
Barnes stated that "the security of Canadian airports rests in large measure on the vigilance of airport employees, including their willingness to report suspicious or criminal behaviour without equivocation or reservation".
Barnes concluded that the board's decision was supported by the evidence and noted that the standard of proof was not the criminal standard. The prosecutor need demonstrate only that there is a "reasonable belief, on the balance of probabilities, that a person may be prone or induced to commit and act (or to assist such an act) that may unlawfully interfere with civil aviation." (underlining appears in original text)
The application for judicial review was dismissed. Clue was order to pay C$750 in costs.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).