According to the June 7 ruling, Arun Randhawa was hired as a casual longshore worker by the British Columbia Maritime Employer’s Association at the Port of Vancouver in March 2013. But in order to access the Port’s restricted areas or perform certain tasks, a security clearance was needed.
A few days after having been hired, Randhawa applied for a security clearance. On June 23, 2014, Transport Canada received a Law Enforcement Record Check [LERC report] from the RCMP that stated that although Randhawa had no known criminal convictions, he was identified as an active member of an Indo-Canadian organized crime group. It also listed the law enforcement authorities’ encounters, over an eight-year period, with either him or two of his “very close associates,” according to Federal Court documents.
The LERC report indicated that one of those two associates was believed to be an executive member of an Indo-Canadian organized crime group involved in cross border narcotics smuggling and that this group had been used to assist in the transportation of cocaine from the United States into Canada. The LERC report also indicated that there was information indicating that this group was involved directly and indirectly with the Hells Angels, the Japanese Mafia, and Chinese criminals. The LERC report also stated that Randhawa’s other “very close associate” was caught in the US with 107 kilos of cocaine in 2008, pleaded guilty to cocaine possession and conspiracy and was sentenced to a 60-month jail term and three years of supervised release.
Randhawa was informed in a letter that Transport Canada had received adverse information raising concerns regarding his suitability to obtain a security clearance and that his application was being reviewed accordingly. He was encouraged to provide additional information regarding the incidents and associations referred to in the letter, which he did on August 27, 2014.
Randhawa denied ever being a member of any criminal organization or organized crime group and indicated that based on the information provided to him, he assumed that the two individuals referred to were his brothers. He indicated that this would be the only basis upon which he associates with them regularly, emphasizing that he did not condone, encourage or benefit from any of their activities. He also claimed to be committed to a pro-social life and highlighted that he had successfully completed other security clearance applications that enabled him to obtain a Nexus card as well as licenses for non-restricted firearms. He denied having any knowledge of most of the incidents listed aside from the fact that he called the police in May 2012 to report that one of his brothers was missing.
On November 18, 2014, the Minister of Transport endorsed the Advisory Body’s recommendation and denied Randhawa’s security clearance application. He requested that the minister reconsider his decision and submitted eight reference letters in addition to his counsel’s submissions. Again, a body advising the minister, known as the Office of Reconsideration, studied the matter along with an independent security advisor. On September 16, 2015, the independent security advisor sent her report to the Office of Reconsideration, recommending that the minister reconsider the decision to deny Randhawa’s security clearance application.
However, the Office of Reconsideration did not agree with the recommendation of the independent security advisor and recommended to the minister that the initial decision to refuse Randhawa’s security clearance application be maintained. Although it agreed with the independent security advisor that there was not enough evidence to conclude that Randhawa is an active member of a criminal organization, the Office of Reconsideration remained concerned over the “minimal contact” he entertains with his two brothers.
It concluded as follows: “Overall, the applicant has been vocal about his ambitions and his lifestyle, which he claims, differs from his brothers’. However, his silence on certain issues is worrisome. He has not tried to dispel the Minister’s concerns by explaining how he will ensure he would not follow his brothers’ steps, on the contrary, he admitted to still seeing the one who got out of jail. We also found that he was not forthcoming when addressing the incarceration of his younger brother.”
The minister confirmed his previous decision denying Randhawa’s security clearance application.
Justice René Leblanc in his ruling pointed to another case, stating: “Recently, in Wu v Canada (Attorney General), 2016 FC 722 [Wu], the applicant’s airport security clearance was cancelled based on her continued association with her ex-husband who was a full patch member of the Hell’s Angels. The evidence before the Minister was that the sole basis of that association was a court order concerning the custody of their children and, that therefore, such association was not voluntary. The evidence showed that the applicant had taken considerable steps to distance herself from her ex-husband. However, it also showed that in the latter part of their marriage, Ms. Wu was aware that her ex-husband was pursuing membership with the Hell’s Angels and presumably, as is the case here, that he was involved in a criminal lifestyle.
“The Chief Justice found that the decision to cancel Ms. Wu’s security clearance was reasonable in the circumstances of the case. He held that the fact Ms. Wu’s ongoing interaction with her ex-spouse may not be voluntary, and may be limited by the terms of the custody order, it did not negate or contradict the fact that her ex-husband will continue to have regular and ongoing opportunities to intimidate her and to attempt to induce her.”
Leblanc noted: “The relationship between brothers, because of its special nature, bears more scrutiny than a relationship between acquaintances. Here, despite not condoning his brothers’ lifestyles, the Applicant [Randhawa] does maintain some contact with them.
“Given the seriousness of the brothers’ criminal activities and the relevance of these activities to the security of marine transportation, I am of the view that the Minister could reasonably form the view, in a forward-looking and predictive perspective, that because of his association to his brothers, there were reasonable grounds to suspect that there is a risk that the Applicant is in a position in which there is a risk that he be suborned to commit an act or to assist or abet any person to commit an act that might constitute a risk to marine transportation.”
Leblanc concluded: “There are situations where in balancing the interests of the individual affected and public safety, the interests of the public take precedence. To borrow from the Chief Justice’s reasons in Wu, this is so “even where the person may have taken considerable steps to distance himself or herself from the source of the risk to the travelling public”. As the Chief Justice found it to be the case in Wu, I find that the facts of the present case are a demonstration of one of such situation.”
Leblanc ruled against Randhawa.