Facts: The applicant argued that ss. 509 and 510 of the Marine Transportation Security Regulations (the “Regulations”) violated ss. 2, 7 and 15 of the Charter of Rights and Freedoms. Part 5 of the Regulations provides a broad power for the Minister of Transport to grant or cancel security certificates for workers in security-sensitive positions at ports in Canada. Certificates are issued after background checks which require worker information such as name, date of birth, gender, height, weight eye colour, place of birth, citizenship or permanent residence status, passport number, previous employers, post-secondary institutions and travel outside of Canada and the USA for more than 90 days. Based on that information, the Minister determines whether the port worker is a security risk to marine transportation. If the Minister is of the opinion that information is verifiable and reliable and there is sufficient verifiable and reliable information to determine that the applicant does not pose a risk to the security of maritime transportation, the Minister may grant a security clearance. This also includes the Minister’s consideration of the applicant’s association with members of a terrorist group or crime organization and whether there are reasonable grounds to suspect that the applicant may be suborned to commit and act or assist or abet any person to commit an act that might constitute a risk to marine transportation security. It was argued that the Regulations grant the Minister too much discretion and infringes upon the Charter rights of those applying for security clearance.
Decision: Application dismissed; s. 1 analysis not necessary.
Held: With respect to the s. 2(d) freedom of association argument, the Court noted that this argument was raised in the Federal Court of Appeal in Reference re Marine Transportation Security Regulations 2009 FCA 234 (“Reference”) where it was held that innocent associations would “not normally warrant the denial of a security clearance” since applicants may be interviewed to “assuage the Minister’s concerns”, and therefore there was no new legal issue raised by the applicant’s argument on this ground. In respect of the s. 7 Charter challenge, the Court found that the same argument was heard in the Reference decision, where the Federal Court of Appeal rejected that argument as s. 7 “would not cover any potentially adverse impact that a refusal of security clearance might have on an employee’s employment”. As such the doctrine of vertical stare decisis required the Court to apply the settled precedent. On the s. 15 Charter argument, the Court rejected the applicant’s argument that the Regulations create a disadvantage for port workers who have relatives or a spouse convicted of a crime. The Court noted that the applicant’s argument falls at the first stage of the s. 15 analysis as the Regulations did not create a distinction on the basis of an enumerated or analogous ground, as the Regulations are concerned with the degree of proximity between a port worker and certain individuals or groups, and “degree of proximity” is not a protected ground under s. 15 of the Charter.