Decisions

TATC File No. C-3263-52
MoT File No. R4200-YWG P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Marcel H. Webster, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Security Regulations, SOR/2000-111, s. 10


Review Determination
E. David Dover


Decision: November 3, 2006

Marcel H. Webster did contravene section 10 of the Canadian Aviation Security Regulations and the Minister's decision to assess a monetary penalty of $300 is hereby confirmed. The total amount of $300 is to be made payable to the Receiver General for Canada and must be received by the Tribunal within thirty-five days of service of this determination.

[1]     A review hearing on this matter was held Wednesday, October 11, 2006 at 10:00 a.m. at the Four Points By Sheraton Hotel, Winnipeg International Airport, at Winnipeg, Manitoba.

[2]     The witnesses, excepting Marcel H. Webster, were excused from the courtroom prior to the commencement of proceedings. The witnesses were sworn in by the attending court reporter, Tom Bruce. There were no pre-hearing conferences held between the applicant and the respondent.

Background

[3]     On April 5, 2006, a monetary penalty of $300 was assessed against Mr. Webster, the applicant, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport alleging that:

On or about the 17th day of February, AD, 2006, at approximately 14:44 hours (local time), at the Winnipeg International Airport, in the City of Winnipeg, in the Province of Manitoba, Marcel Hugh Webster, a person, refused to submit to an authorized search of their person when requested to do so by a screening officer and entered the restricted area of the aerodrome, thereby contravening subsection 10 of the Canadian Aviation Security Regulations.

The Law

[4]     Section 10 of the Canadian Aviation Security Regulations (CASRs) reads as follows:

10. A person who refuses to submit to an authorized search of their person or goods or other things in their possession or control, or a vehicle under their care or control when requested to do so by a screening officer must not enter into or remain inside a restricted area.

OPENING STATEMENTS

[5]     The case presenting officer, Joe Buker, stated that on April 5, 2006, Transport Canada issued a notice of assessment of monetary penalty totalling $300 against Mr. Webster for violating section 7.7 of the Aeronautics Act, specifically section 10 of the CASRs. He further stated that he would be calling five witnesses.

[6]     The respondent, Mr. Webster, made a number of statements, but these were not appropriate for the opening statement format and he was advised that they would be heard when he was sworn in as a witness and be subject to cross-examination.

EVIDENCE

A. Minister of Transport

(1) David Dickie

[7]     Mr. Dickie stated that he had been employed as the regional manager of the Prairie region for the Canadian Air Transport Security Authority (CATSA) for a period of 4.5 years.

[8]     He stated that a Non-Passenger Screening Program (NPS Program) had been implemented at all Canadian class 1 and 2 airports on April 5, 2003. The purpose of this program was to ensure that all persons entering restricted areas within airports be subject to screening by screening officers. Mr. Dickie entered a pamphlet (exhibit M-1) which contains an extensive list, including ramp/station attendants (aircraft groomers, baggage handlers), of individuals who will be subjected to random screening.

[9]     He testified that he conducted numerous information and training sessions at the Winnipeg International Airport. He further indicated that all corporations and organizations requiring access to the restricted areas had copies of the policies and the NPS Program pamphlets.

[10]     Mr. Dickie testified that there were a number of security locations throughout the Winnipeg airport terminal where all affected personnel would pass through check points manned by authorized screening officers prior to their entry through another gate manned by security guards. It would be at this latter check point that the employees would present their security pass and this would be verified and, if passed, the screened individuals would pass through into the restricted area.

Cross-examination

[11]     Mr. Dickie informed Mr. Webster that there had not been a change in the regulations to allow knives and certain tools into the restricted area.

(2) David Rees

[12]     Mr. Rees reported that he was currently employed by Transport Canada as a security inspector and prior to that, he worked for the Winnipeg police service for a period of 28 years.

[13]     He testified that on February 17, 2006, at 2:45 p.m., he was advised that there had been a breach of security at the south restricted baggage area. Mr. Rees, accompanied by members of the Winnipeg police, members of the Winnipeg airport authority and the screening officer, located Mr. Webster adjacent to baggage belts 3 and 4 within the Air Canada restricted area. He stated that he removed Mr. Webster's security pass and escorted him out of the secure area.

[14]     Mr. Rees indicated that on the following day, he obtained a copy of the surveillance video (exhibit M-2) for the time of 14:42:40 which shows an individual Mr. Rees identifies as Mr. Webster at the screening area.

[15]     He further stated that the security guard opened the door to the restricted area allowing Mr. Webster to pass through the gates.

[16]     Mr. Rees was not cross-examined.

(3) Abdullah Ijaz

[17]     Mr. Ijaz stated that he was employed by CATSA as a security officer and that he was on duty at the south Air Canada baggage screening area conducting NPS Program screening on February 17, 2006 at approximately 2:40 p.m.

[18]     Mr. Ijaz testified that Mr. Webster was identified as a random person to be screened and he so informed him of the decision. Mr. Webster's response to this order was that he did not have time for this procedure, and when advised that if he did not comply with the procedure, Mr. Ijaz would call the police. Mr. Webster became belligerent, using unacceptable profane language, and proceeded towards the entry gate followed by Mr. Ijaz.

[19]     Mr. Ijaz told the security guard not to let Mr. Webster into the restricted area, but the security guard opened the door after screening Mr. Webster's security pass and the police were called. Exhibit M-3 confirms that Mr. Webster's security pass was activated at 2:43 p.m. on February 17, 2006 from the south baggage area.

[20]     The following documents were then entered in evidence by the Minister:

  • the restricted area pass application for Mr. Webster (exhibit M-4);
  • a layout of the south Air Canada baggage make-up area (exhibit M-5); and
  • Transport Canada's designation authorizing Abdullah Ijaz to be a security screening officer (exhibit M-6).

Cross-examination

[21]     Upon questioning by Mr. Webster, Mr. Ijaz indicated that he was standing beside the X-ray machine identified by an "X" on exhibit M-5. He further stated that he instructed the security guard not to let Mr. Webster into the restricted area because he had refused to be screened and that the police were on their way.

(4) Anna Porpiglia

[22]     Ms. Porpiglia testified that she was employed by CATSA as a certified screening officer. This was confirmed by exhibit M-7.

[23]     She stated that on February 17, 2006, she was on duty with Mr. Ijaz at the Air Canada south baggage screening gate performing NPS Program screening on individuals entering the restricted baggage area.

[24]     She randomly identified Mr. Webster as a candidate for screening and so informed him. His reaction was to inform both screening officers that he had no time for the screening process. When informed that the police were to be called, Mr. Webster said, "go ahead" and used profane language. Mr. Webster then proceeded to the security gate.

[25]     Mr. Ijaz accompanied Mr. Webster to the gate informing the security guards not to let Mr. Webster through the gate. The security officers let Mr. Webster through the gate and Ms. Porpiglia activated the silent alarm for the police.

Cross-examination

[26]     Ms. Porpiglia stated that she was positioned with Mr. Ijaz beside the X-ray screening machine at all times.

(5) Jerrod Patzer

[27]     Mr. Patzer testified that he had been employed for a period of five years as a security guard by Avion Security Services. On February 17, 2006, Mr. Patzer and an associate by the name of Cory were on duty at the Air Canada south baggage security gate.

[28]     At approximately 2:42 p.m., Messrs. Webster and Ijaz approached the security gate, at which time, Mr. Webster's security pass was verified as valid. He stated that Mr. Ijaz informed both Mr. Patzer and his associate not to admit Mr. Webster into the restricted area. However, both Mr. Patzer and his associate decided to admit Mr. Webster because the atmosphere between Messrs. Webster and Ijaz was so volatile that the security guards feared a physical confrontation between them would erupt. The police arrived at 2:46 p.m.; however, by then, Mr. Webster was inside the restricted area.

Cross-examination

[29]     Mr. Patzer answered that he had not heard the request from the screening officer to Mr. Webster that he was subject to a screening action.

B. Applicant

[30]     Mr. Webster testified that Air Canada had employed him for a period of seven years as a baggage handler at the Winnipeg International Airport.

[31]     He further stated that on February 17, 2006, he was a few minutes late arriving at work.

[32]     Mr. Webster submitted exhibit A-1 which is a pharmacist's note from T. Hean Gooi dated September 25, 2006 indicating that Mr. Webster has a bladder problem and suffers from hearing loss.

[33]     He further stated that he heard Ms. Porpiglia demanding that he submit for screening, but he did not hear Mr. Ijaz requesting he stop moving towards the security guards or that the police had been called. He indicated that he was aware of the screening process, had no disrespect for the Winnipeg airport authority, but questioned why it took eight individuals to apprehend him.

[34]     As there was no further evidence, the evidentiary record was closed.

Final Arguments

[35]     Mr. Buker reviewed the evidence presented by the Minister. He stated that Transport Canada was using a multi-layered approach so that all individuals who entered restricted areas were screened and their passes verified. He also indicated that the sanction of $300 was intended to be a deterrent so future violations could be minimized.

[36]     Mr. Webster reviewed the fact that he did not consider that he had erred and the fact he did not stop when challenged was because of his hearing loss.

Analysis

[37]     The screening officers were trained (exhibits M-6 and M-7) and performing their duties on February 17, 2006 when Mr. Webster was identified by video (exhibit M-2) and computer screening report (exhibit M-3).

[38]     The Tribunal accepts the argument that Mr. Webster heard the order to submit himself for screening and he reverted to profanity and told the screening officers to call the police.

[39]     While the conversation between Messrs. Webster and Ijaz was not professional and looked like it might deteriorate into a physical confrontation, the actions of the security guards in allowing Mr. Webster into the restricted area is, in the Tribunal's opinion, atrocious and a dereliction of duty on the part of the security guards. This is compounded by the fact that eight officers were only four minutes away.

[40]     This does not negate the fact that, through sworn testimony, the Tribunal is satisfied that Mr. Webster contravened section 10 of the CASRs where it states that his actions clearly require that he must not enter a restricted area after refusing to submit to an authorized search.

DETERMINATION

[41]     The Tribunal finds that Marcel H. Webster did contravene section 10 of the Canadian Aviation Security Regulations and confirms the Minister's decision to assess a monetary penalty of $300.

November 3, 2006

E. David Dover
Member
Transportation Appeal Tribunal of Canada