Hearsay OK For Port Checks

Tom Korski, www.blacklocks.ca
Transport Canada can withhold port employees’ security clearance on hearsay, a federal judge has ruled. The decision came in the case of a Port of Vancouver electrician denied clearance on unproven allegations of wrongdoing.

“It’s a higher standard than exists in other contexts,” said Allison Tremblay of Victory Square LLP of Vancouver, the lawyer for the plaintiff in the case. “This makes it very difficult for applicants.”

Sandeep Singh Kailley, 27, was denied clearance to work in restricted areas of the Port after an RCMP background check identified unproven allegations of assault, and suspicions that Kailley had consorted with drug traffickers. Kailley had loaned his car to a friend under RCMP surveillance.

Kailley said he was “not aware of any connection to the drug trade of any person to whom he loaned his car”, and that it was “unreasonable” for Transport Canada to conclude he associated with criminals, according to court documents. The assault complaint stemmed from a 2013 police charge claiming Kailley stabbed a neighbour; prosecutors subsequently stayed the charges.

The RCMP file acknowledged Kailley had no criminal record, but prompted Transport Canada to challenge the electrician to explain his alleged misconduct. Attorney Tremblay said the process left her client having to prove his innocence of charges that were never substantiated.

“There was no more he could do,” Tremblay said. “It puts applicants in a difficult position, of having to prove a negative – that he did not commit an offence – that is impossible to achieve.”

Justice Michel Shore said Transport Canada was justified in refusing the security clearance. “The Minister only has to demonstrate that he has a reasonable ground to suspect the applicant may pose a risk to the security of transportation,” Shore wrote.

“The security of Canadian marine transportation is a serious matter and a high standard is required,” said the judge; “The Minister does not have to demonstrated standard, verifiable and reliable proof of connecting an individual to an incident; rather, objectively discernible facts will suffice.”

Federal Court has issued mixed rulings on the validity of security checks on transportation employees. In two separate 2015 cases, judges upheld revocation of clearance for an Enerjet flight attendant who once worked in a biker bar, and a Northwest Territories cargo agent who was spotted smoking marijuana in a Yellowknife tavern.

In other cases, judges in 2015 cited Transport Canada for mistakenly revoking clearance for an American Eagle Inc. cleaning woman accused of “unspecified association” with a nameless drug dealer at Pearson International Airport; and a Pearson baggage handler suspected of drug dealing after he’d used his airport pass to visit restricted areas on his day off.

In the baggage handler’s case, Federal Court Justice Peter Annis noted no allegations were proven, and the Pearson employee never had a chance to face his accusers: “He was denied a meaningful opportunity to directly address the allegations against him,” Annis said.