Decisions

CAT File No. O-2719-49
MoT File No. PBX5200530

CIVIL AVIATION TRIBUNAL

BETWEEN:

Samwail Khalil, 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: May 12, 2003

The Minister has established that Mr. Khalil ceased to have the qualifications necessary to hold the x-ray endorsement on a screening officer's certificate.

A review hearing on the above matter was held Thursday, April 17, 2003 at the Sheraton Gateway Hotel in Toronto, Ontario at 10:00 hours.

BACKGROUND

Security inspectors for Transport Canada routinely monitor and inspect the security systems that are in place at airports across the country. Occasionally, they test the licensed screening officers who inspect passengers during the pre-board screening process. One method of testing is to enlist an inspector to go through the pre-board screening process carrying an article that simulates a prohibited item. Inspectors then monitor the process to see if the screening officers detect the item and follow through with the appropriate procedures.

On December 19, 2002 at the Transborder passenger screening checkpoint at Toronto's Pearson International Airport such an infiltration test was conducted.

Mr. S. Khalil was a designated screening officer conducting the search of carry-on baggage when an infiltration test was conducted at his station.

Transport Canada alleges that he failed to correctly interpret and distinguish a prohibited item. Transport Canada then suspended the x-ray endorsement on his screening officer certificate in the following form:

Pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, the Minister has decided to suspend your Canadian aviation document indicated above for the following reasons:

On 19 December 2002 at approximately 1545 hours, at the Transborder passenger screening checkpoint, terminal 2 L. B. Pearson International Airport, as a result of an infiltration test conducted by Martin Mika, a Transport Canada Security Inspector, you a security Officer designated by the Minister of Transport pursuant to Section 4.7 of the Aeronautics Act, while conducting the search of carry-on baggage with the use of the x-ray machine, did fail to demonstrate the qualifications necessary to correctly interpret and distinguish the test device on the x-ray, that being a hand grenade. You thereby demonstrated that you cease to have the qualifications necessary to identify and take appropriate action with all passenger belongings which could pose a threat to the security of civil aviation. The requirements for screening officers are laid out in the Airport Pre-board Passenger Screening (APPS) Course Manual dated 1996.10.30 and the Designation Standards for Screening Officers, as referenced in paragraphs 6 and 7 of the Canadian Aviation Security Regulations, dated 23 March 2000.

Mr. Khalil disagreed with that finding. He applied for a hearing of the matter before the Civil Aviation Tribunal which took place on April 17, 2003 in Mississauga, Ontario.

EVENTS

The events leading up to the suspension of the x-ray endorsement of Mr. Khalil's screening officer certificate are viewed quite differently by the parties.

Mr. Martin Mika is the Transport Canada security inspector who conducted the test with the aid of two colleagues, Ms. Terry Long and Ms. Lisa Cavuto.

Ms. Long was scheduled to be a passenger on a flight to Honolulu that day. An inert grenade was placed in her carry-on baggage, a black knapsack. At Terminal 2 an agent directed her to a screening point, Line 5, at which Ms. Lilia Villasanor was conducting x-ray screening and Mr. Khalil was doing manual bag searches.

Mr. Mika positioned himself near the screening point to enable him to observe the test. Ms. Cavuto placed herself further back in the sterile area but where she had an unobstructed view of the screening point.

Ms. Long's bag was placed on the belt of the x-ray machine where it then entered the x-ray chamber. Ms. Villasanor observed it and asked Mr. Khalil to search it. He took the knapsack from the machine and once again placed it on the belt to enter the x-ray chamber, and then they both viewed the image. He then allowed the knapsack to exit the machine. Mr. Khalil asked a question of Ms. Long regarding the contents and was going to open it. At that time Mr. Mika concluded the test and asked Ms. Villasanor to go and get her supervisor. Upon his arrival they all reviewed the x-ray image of the bag's contents on the re-check monitor.

Shortly after, the inert grenade was removed from the knapsack, and Ms. Long proceeded on her journey. Mr. Mika then discussed the events with Mr. Khalil and Ms. Villasanor. Subsequently, he cancelled both of the x-ray endorsements on their screening officer certificates.

Mr. Khalil says it did not happen that way. When Ms. Long's knapsack had entered the machine, Ms. Villasanor had stopped the machine and asked him what he thought the object was, as there was something round in the bag. Mr. Khalil did not know either. At that point Mr. Mika told Ms. Villasanor to get her supervisor, so she left. Mr. Mika gestured to Mr. Khalil indicating that he was to run the bag through but Mr. Khalil ignored him.

The supervisor then came and told Mr. Khalil to run the machine. He did so on the supervisor's instruction putting the knapsack back into the machine. He still could not make out the image; he could not see the handle or the spring. He decided to send it to the explosive detection device to be sure. When the knapsack came out of the machine, Mr. Mika tried to grab it. They pulled the bag back and forth between them. Mr. Mika was shouting. He used force to get the knapsack away from Mr. Khalil.

Mr. Khalil stated that the black knapsack and the inert grenade in evidence at the hearing were not those that were used for the test on December 19, 2002.

DISCUSSION

The evidence given by the Minister's witnesses is not in accord with that presented by Mr. Khalil. Many of the details differ but the most obvious is Mr. Khalil's assertion that the knapsack and inert grenade in evidence were not those used during the test of December 19.

Ms. Long testified that the knapsack was her personal bag. She identified the inert grenade at the hearing as the one used in the test. She is a Transport Canada inspector, not from security but from the cabin safety department. As such she was not conducting the test but was only being utilized to carry the object, at the commencement of a personal trip. She was directed to the particular line of screening equipment by an agent. Thus she ended up at Mr. Khalil's position at random, so no issue of preselection or bias arises. After the test she went on her way, having no part in the actual suspension of the endorsements. That is, she was a relatively uninterested party.

Why then would she be part of a deception, substituting a different knapsack and grenade for the one she had used on December 19, 2002? I believe that the better view is that she was not. For the foregoing reasons I find her a credible witness, her testimony believable. Yet Mr. Khalil denies that the knapsack and grenade in evidence were the ones utilized that day.

Mr. Mika, Ms. Long and Ms. Cavuto each corroborated the sequence of events surrounding the test, for example that Ms. Villasanor was asked to get her supervisor only after the test had been completed. However, Mr. Khalil tells us that she was sent away during the test.

Ms. Cavuto has said that Mr. Mika's tone was calm and friendly and that Mr. Khalil's was angry and aggressive. But Mr. Khalil says it was Mr. Mika who was shouting.

I find Mr. Khalil's testimony is coloured by his desire to have the Tribunal see the evidence in a light only favourable to him. His outright assertion that the knapsack and grenade in evidence were not those used in the test is tantamount to calling the Minister's witnesses deliberate liars. But I see no evidence of that and reject it. That leaves me with the conclusion that it is Mr. Khalil who is not truthful. Where the evidence is contradictory, I prefer that given by the Minister's witnesses.

The Minister must establish that Mr. Khalil ceased to have the qualifications necessary to interpret correctly and distinguish an inert device on the x-ray equipment and then to respond correctly when such devices are identified by the x-ray equipment.

I accept the testimony of the Minister's witnesses that the device was clearly identifiable on the x-ray image. Further by letting the knapsack leave the x-ray chamber, Mr. Khalil failed to follow the first of several procedures that are mandatory when a device is detected.

Mr. B. Khalil, the agent for Mr. S. Khalil, argued that the methodology utilized by Mr. S. Khalil was correct. That was shown as some of the witnesses agreed that if one were not sure regarding an object in an x-ray image it should be checked again. I do not doubt that testimony. However regarding the test, the Minister's witnesses said the image was clear. They said that there was no doubt that it was an image of a hand grenade. Knowing that, certain procedural steps were mandatory. Mr. Khalil did not follow those steps.

DETERMINATION

The Minister has established that Mr. Khalil ceased to have the qualifications necessary to hold the x-ray endorsement on a screening officer's certificate.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal