Decisions

CAT File No. O-1812-49
MoT File No. PB5990037

CIVIL AVIATION TRIBUNAL

BETWEEN:

Lucas Dolbec, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)


Review Determination
Allister W. Ogilvie


Decision: August 23, 1999

I confirm the Minister of Transport's decision to cancel Mr. Dolbec's security officer certificate.

A Review Hearing on the above matter was held Tuesday, August 17, 1999 at the Standard Life Building in Ottawa, Ontario at 10:00 hours.

BACKGROUND

On April 28, 1999, Mr. Lucas Dolbec was employed by Aeroguard Inc. as a security officer at a domestic screening point at the Ottawa Macdonald-Cartier International Airport [hereinafter Ottawa Airport]. At approximately 13:20 hours he was operating an x-ray machine that screened passenger carry-on baggage. At that particular time Transport Canada conducted a routine infiltration test of the security measures by placing an improvised explosive device (IED) in a passenger's carry-on bag. Mr. Dolbec failed to detect the device on the x-ray monitor screen. That led to the cancellation of Mr. Dolbec's security officer certificate. Mr. Dolbec requested a review of the decision to cancel his certificate which brought the matter to the Civil Aviation Tribunal.

PRELIMINARY MATTERS

Disclosure

A teleconference call between the parties chaired by myself was held on Tuesday, August 10, 1999 to resolve a last item of disclosure. Mr. Dolbec had requested a variety of images taken from an x-ray monitor. These were not available.

The issue was resolved by the parties taking a view of the equipment at the Ottawa Airport screening point in question at the outset of the hearing on August 17, 1999.

Request for Amendment

By fax of July 7, 1999, Transport Canada requested to amend the original Notice of Cancellation. Mr. Dolbec objected.

The portion of the Notice to be amended read:

...while conducting the search of a passenger with the assistance of an x-ray machine, did fail to detect an Improvised Explosive Device. You thereby demonstrated that you cease to have the qualifications necessary to correctly respond when metal is detected by the x-ray machine by identifying all passenger belongings which could pose a threat to the security of civil aviation.

If amended it would read:

...while conducting the search of a passenger's carry-on baggage with the assistance of an x-ray machine, did fail to detect an Improvised Explosive Device. You thereby demonstrated that you cease to have the qualifications to correctly interpret and distinguish various images on the x-ray monitor, by identifying all passenger belongings which pose a threat to the security of civil aviation. (Emphasis added)

The request to amend was granted as it was requested in sufficient time for Mr. Dolbec to address it, and it did not prejudice his position.

EVIDENCE

Airport pre-board passenger screening is provided by the air carriers or companies contracted to them. People that are employed in pre-board screening undergo training to qualify them for the various duties such as physical searches, search of baggage, use of hand-held metal detectors and use of carry-on baggage x-ray machines.

The training is conducted by private companies to standards established by Transport Canada. When training and subsequent testing are satisfactorily accomplished, the person may receive a security officer certificate. That certificate is a Canadian aviation document (CAD) as defined in the Aeronautics Act [hereinafter Act].

Although pre-board security is provided by private companies, Transport Canada is empowered to oversee the provision of those services. As part of the oversight, Transport Canada occasionally conducts tests of the people and systems to ensure the standards are being met.

The occurrence giving rise to this hearing was one such test. Mr. G. Leduc, a Transport Canada security inspector from the Ottawa Airport enlisted the assistance of one of his colleagues, Miss C. Ross, to conduct what is known as an infiltration test. An IED was placed in her carry-on luggage. Ms. Ross, while returning to Toronto from Ottawa, went to the pre-board screening area and placed her baggage on the belt for the x-ray machine. Her bag passed through the x-ray machine without comment, and she would have been able to proceed on board an aircraft with the device undetected. Mr. Dolbec was the security officer monitoring the x-ray screen.

Mr. Leduc observed this process. When Ms. Ross would have been able to leave without having her bag checked, he intervened. He approached, took the bag, and proceeded to inform the supervisor of the failed test. The bag was once again x-rayed with Mr. Leduc, the supervisor and Mr. Dolbec present. This time Mr. Dolbec was able to point out the device. He returned his certificate to Mr. Leduc.

In Mr. Leduc's position as a security inspector he has been delegated the authority from the Minister of Transport to take appropriate action if an infiltration test is failed. Included in his powers are those in paragraph 7.1(1)(b) of the Act. He testified that he had occasion to suspend Mr. Dolbec's certificate on two prior occasions. At this point he cancelled the certificate.

Mr. Dolbec testified on his own behalf. His version of the events of the infiltration test did not vary significantly from that of Ms. Ross or Mr. Leduc.

On cross-examination of Mr. Leduc, Mr. Dolbec raised the issue of the frequency of the infiltration tests at the Ottawa Airport. He elicited that given the frequency of the tests, the number of security officers, and the variation of shifts, it was possible that only a small portion of officers would get tested in any year.

His cross-examination of other witnesses centred on the difference between the content of bags used for training purposes and bags used for infiltration tests. The former generally only held the device and some household items whereas the latter were personal bags of Transport Canada's inspectors or selected complying passengers into which certain forbidden items were placed among the variety of items that a "normal" traveller might have. This made the latter detection more difficult.

Ms. Doucet was the Operations Manager of Aeroguard. Among her other duties she had been a trainer for security personnel. Her evidence was that the purpose of the infiltration test was to ensure the competence of the people being tested. Regarding the comparison of training bags to bags used on infiltration tests, she stated that they were not the same, but were not meant to be the same as they served different purposes. There would be more items in a passenger's bag.

THE LAW

The Aeronautics Act:

4.3 (1) The Minister may authorize members of the Royal Canadian Mounted Police or any other person to exercise or perform, subject to such restrictions or limitations as the Minister may specify, any of the powers, duties or functions of the Minister under this Part except, subject to subsection (3), any power conferred on the Minister by the Governor in Council to make regulations or orders.

(...)

4.7 (1) In this section,

"security officer" means such person as may be designated by the Minister to be a security officer for the purposes of this section.

7.1 (1) Where the Minister decides

(...)

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(...) 

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

THE ISSUE

Whether on April 28, 1999, Mr. Dolbec, while conducting a search of a passenger's carry-on baggage with the assistance of an x-ray machine failed to detect an IED, thereby demonstrating that he ceased to have the qualifications necessary to hold his CAD.

ARGUMENT

For the Respondent—Minister of Transport

Ms. Lockridge argued that Mr. Dolbec had not identified the IED and had not taken the required subsequent actions. He had allowed Ms. Ross to proceed without identifying all items in the bag that could pose a threat to aviation safety.

When the bag was put through a second time, the IED was identified. Mr. Dolbec had had two previous suspensions of his certificate. Therefore, his inability to maintain the standards required showed he ceased to be qualified.

For the Applicant—Mr. Dolbec

Mr. Dolbec did not contest the fact that he missed the IED He pointed out that test bags were not equal to bags used on infiltration, as the latter contained many more items which made detection of IEDs more difficult.

As well he took issue with the number of infiltration tests being conducted arguing that they were so insufficient that only about ¼ of the security officers would even get tested.

Mr. Dolbec stated that his argument was not designed to get his job back but to see that justice would be done. He wanted Transport Canada to acknowledge the deficiencies that he illustrated and rectify them to improve the system all around.

DISCUSSION

Mr. Dolbec very candidly stated that he had missed the IED during the infiltration test of April 28, 1999. The evidence of Mr. Leduc and Ms. Ross also established that point. The IED's image was detectable on the x-ray scanner on the re-run of Ms. Ross's bag.

Mr. Leduc testified of two previous suspensions of Mr. Dolbec's certificate.

Security Notice No. 6 (Exhibit M-4) outlines Transport Canada's minimum qualifications for certification and designation of security officers. It states that the "failure to maintain the minimum qualifications will result in suspension or cancellation of certification."

Regarding x-ray scanning it states in part that one must demonstrate the ability to correctly interpret and distinguish various images on the x-ray monitor by identifying all passenger belongings which pose a threat to the security of civil aviation.

As to infiltration tests it states that a failure to detect a dangerous item during an infiltration test may result in the suspension or cancellation of one or more endorsements on the security officer's certificate.

The evidence indicates that Mr. Dolbec's failure of the infiltration test falls below the standard required to hold his certificate. Mr. Leduc, a Transport Canada security inspector, had the appropriate authority to cancel the certificate and did so.

Mr. Dolbec's cross-examinations and arguments centre on the difference between test bags (i.e., those bags used to train security officers) and those that are used for infiltration tests. He elicited evidence from other security officers that infiltration bags were different from the test bags, as they contained many more articles.

However, the Operations Manager of his former employers stated that they were supposed to be different as their very function was different.

Mr. Dolbec also pointed out what he considered to be the paucity of testing for the security officers. Mr. Dolbec's arguments are interesting and may illustrate some weakness in the system, especially regarding the frequency of testing, but they do not address the issue of whether or not he ceased to have the qualifications necessary to hold the security officer certificate.

In the circumstance, I find that the Minister has proven that Mr. Dolbec did cease to have the qualifications necessary to hold a security officer certificate.

DETERMINATION

I confirm the Minister's decision to cancel Mr. Dolbec's security officer certificate.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal