Decisions

TATC File No. O-2755-49
MoT File No. PBX5200542

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Dalila Francis Budoo, 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: July 23, 2003

I refer the case back to the Minister for reconsideration.

A review hearing on the above matter was held Tuesday, June 10, 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 January 18, 2003 at the transborder passenger screening checkpoint at Toronto's Pearson International Airport such an infiltration test was conducted.

Ms. D. Budoo was a designated screening officer conducting the search of carry-on baggage by X-ray apparatus when an infiltration test was conducted at her station.

Transport Canada alleges that she failed to correctly interpret and distinguish a prohibited item. Transport Canada then suspended the X-ray endorsement on her 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 18 January 2003 at approximately 1250 hours, at the transboarder [sic] pre-board passenger screening checkpoint, terminal 2 L. B. Pearson International Airport, Mississauga Ontario, as a result of an infiltration test conducted by Lori L. Lougheed, 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 x-ray equipment, did fail to demonstrate correct search techniques using the x-ray equipment while searching carry-on baggage. Consequently, you failed to find a replica Glock 10 semi-automatic handgun, which was identified by the x-ray equipment. You thereby demonstrated that you cease to have the qualifications necessary to take the 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.

Ms. Budoo disagreed with that finding. She applied for a hearing of the matter before the Tribunal.

EVENTS

Ms. L. Lougheed is the Transport Canada inspector who conducted the infiltration test with the aid of two colleagues, Mr. Bruce Hall and Mr. Shawn O'Connor.

Mr. Hall was scheduled to be a passenger on a flight departing Toronto for Atlanta. He volunteered to partake in the test as the airline passenger. A replica Glock 10 pistol was placed in his carry-on bag with his laptop computer. At Terminal Two Mr. Hall was directed to a screening point which turned out to be line 4, at which Ms. D. Budoo was conducting X-ray screening and Ms. Abdalla Hodman was conducting manual bag searches.

Ms. Lougheed positioned herself near the screening point to enable her to observe the test. Mr. O'Connor accompanied Mr. Hall through the line.

According to Ms. Lougheed, Mr. Hall's bag was placed on the belt of the X-ray machine where it then entered the X-ray chamber. Ms. Budoo viewed the X-ray image of the bag and utilized the machine's features to enhance the image. She then passed the bag through the chamber and asked Ms. Hodman to do a manual search of the bag. Ms. Hodman complied, opening the bag to search it. The test was then terminated.

The image that had been viewed by Ms. Budoo remained on the visual monitor. Ms. Lougheed stated that she was able to see the image of the Glock, the bullets, spring of the magazine and the metal slide. The image remained on the monitor and was subsequently viewed by several other persons.

Mr. Hall has a different recollection of the sequence of events at the X-ray machine. When the bag had passed through the unit he was asked by one of the screeners if it contained a computer. The person who had asked then began to manually search the bag. Ms. Lougheed and Mr. O'Connor asked him if he would like to see it on the X-ray, to which he replied yes. They took the bag and recycled it through. Upon viewing that image, Mr. Hall stated what it was, was obvious. He could make out three rounds and the spring.

Mr. O'Connor testified that he had accompanied Mr. Hall through the screening process but had missed the bag going through the X-ray machine as he was behind him. He had caught up to it at the EDT machine where the bag was being hand searched. The test was assessed as failed and terminated when the hand search commenced. He stated that the bag was not sent through the X-ray a second time.

Regarding the image, he saw three bullets, the spring, and the slide. The image was dark, dense, metallic. He asserted that this was the same image as was seen by the screening officer.

Ms. Hodman was performing the manual searches when the test took place. She says that she had just returned from a break at that time. The bag was already out of the chamber when she had returned. Ms. Budoo asked her to search it. When she began to do so, Ms. Lougheed instructed her to stop.

She said that she could make out bullets on the image on the monitor. However, she was unable to say if that image was the original or if it was a second one, nor could she recollect whether the bag was reintroduced into the chamber.

Ms. Budoo testified on her own behalf. She stated that she stopped the bag in the chamber as she saw a dark object along with a laptop. She utilized the enhancement feature of the X-ray machine to obtain a better view of the contents. The view of the laptop was clear, but there remained a dark object, perhaps a battery. As she could not tell what it was she asked Ms. Hodman to check the bag. When Ms. Hodman started to do so, she was stopped.

She did not see a gun or any of its components when the bag was in the X-ray chamber nor afterward when she reviewed it on the monitor.

The foregoing people were witnesses to the infiltration test. Other witnesses were called but none of them were witnesses to the test. Each one of them viewed the image on the monitor after the fact.

Mr. Raj Singh, the Terminal Manager was notified that an infiltration test had been conducted on his personnel but one had failed. He stated that like Ms. Budoo he too had difficulty seeing the image of a weapon on the X-ray monitor. At first look he did not see a gun, it took him about 30 seconds to put it together although he finally recognized it. Although there is no time limit for a screener to view an object, in practice they have but a few seconds to make a decision.

Documentary Evidence

Security regulations provide that screening officers must meet certain minimum standards. Those standards are set out in the Designation Standards for Screening Officers.

That document provides that every screening officer must be able to perform certain functions. Among the functions regarding the X-ray equipment, the screening officer is required to perform correct search techniques using the equipment, use correctly all main image evaluation functions of the machine, interpret and distinguish correctly various images on the X-ray monitor, to identify passenger goods which pose a threat to the security of civil aviation and to respond correctly when weapons or other prohibited goods are found.

The response required when a weapon is found is the subject of a section of the training manual which forms part of training given to screening officer candidates.

These requirements were set out in the documentary evidence and were attested to by Ms. Lougheed who is herself an inspector for the purpose of assessing the performance of screening officers and therefore were established to the Tribunal's satisfaction. However, the case presenting officer reviewed these requirements and the steps in response to identifying a weapon with many of the witnesses. Such questioning was wholly irrelevant after establishing the requirement as the only person whose competence and knowledge of procedures that are in issue are Ms. Budoo's. Whether other witnesses know them or not is immaterial.

DISCUSSION

In Tribunal hearings it is very common for there to be inconsistent or contradictory testimony. Most often the testimony that is inconsistent or contradictory is, as between parties who are adverse in interest. Often such contradictions may be resolved by finding that the testimony of one witness is preferable to that of another or by finding that some testimony is untruthful.

The dilemma presented to me in this case is the contradictory evidence given as between the Minister's own witnesses. Those witnesses were each a member of the infiltration test team. The contradiction lies in the sequence of events regarding the test bag's journey through the X-ray monitor and more importantly the image that resulted.

Ms. Lougheed testified that the bag did not go through the X-ray chamber a second time. However, Mr. Hall remembered it differently. After having gone through the checkpoint he stated that Ms. Lougheed and Mr. O'Connor asked him if he would like to see the image on the X-ray, and he indicated that he would. In so many words, he then stated that they took the bag and recycled it through, and then he went over to view the image.

That answer was given during direct testimony. The contradiction was not pursued by the case presenting officer; nor was it explored or challenged on cross-examination.

Prior to the redirect I asked Mr. Hall if he had said that they recycled the bag and that he then saw that image. He replied "yes". He could not say if the image he was looking at was the recycled image or not.

The Minister did not clarify or challenge the point on the redirect.

Mr. O'Connor's experience was somewhat different. Mr. Hall had gone through screening and Mr. O'Connor came shortly after. He missed the actual bag going through the X-ray as he was behind Mr. Hall, catching up to him only when the bag was being searched. At that time the test was terminated.

Mr. O'Connor was able to state that he did not enter the bag a second time stating that it did not go back into the chamber.

However, when asked if what he viewed on the screen was the original image, not a secondary, he was only able to say that was what he was told, but that he was not there.

The other eyewitnesses, the screening officers, were of no assistance on the point. Ms. Hodman, the screening officer who was to manually check the bag, could not say whether the image she saw was the original or secondary. The question was not explored with Ms. Budoo.

THE ISSUE

Was the image seen by Ms. Budoo the same image that was subject of testimony at this hearing?

Often contradictory testimony may be resolved by rejecting some as being untruthful or unlikely for any of a variety of reasons. Here I have no doubt as to the veracity of any of the witnesses. My observation of them and my assessment of their demeanour and character did not lead me to doubt what each had to say.

However, Mr. Hall recalls that the bag was recycled through the machine, which would indicate that the image that was then viewed by him and others was not the one originally seen by Ms. Budoo. That is the crux of the matter.

The importance of that possibility was acknowledged by Mr. O'Connor when being cross-examined. He had stated that each test is a bit different, the positions of the bag in the X-ray chamber could be different, there were all kinds of variables.

As I have concluded that no one is being untruthful, yet the testimony differs, I must conclude that someone's recollection is faulty or mistaken. Unfortunately, I am unable to ascertain, on the evidence, who is mistaken.

As I am unable to find who is mistaken, the result is that the Minister has not proven his case to me.

I have come to the conclusion to refer the case back to the Minister on the above noted point, but I also refer to a second dilemma, one upon which I was not obliged to make a finding.

A picture of the image that was displayed on the X-ray monitor was unfortunately not available in evidence. It would be most helpful for the Tribunal to be able to review what was seen by the screening officer.

Lacking physical evidence to be viewed, the Member must rely on the testimony as to what the image revealed.

This case shows the problem with such reliance. The various witnesses have significantly different views as to what the image revealed.

Ms. Lougheed repeatedly stated that the image was clear. She stated that she could see the three bullets, the spring of the magazine and the metal slide. During cross-examination she added that she could also see the trigger.

Mr. O'Connor testified that he saw three bullets, the spring and the slide of the gun. Mr. Hall recognized the spring and three rounds.

Those witnesses who were not Transport Canada personnel were not so quick to declare the image "clear".

Ms. Budoo, having viewed the bag in the chamber and then having reviewed the image on the monitor, never did recognize the image of a gun. Her co-worker Ms. Hodman was able to identify bullets. Their supervisor, Mr. R. Singh, told us that it took quite some time for him to be able to put the picture together. At first he saw only a dark, dense object.

Ms. Lougheed was of the opinion that the supervisors may be reluctant to acknowledge that they saw the image as they may be accountable for those they supervise. On the other hand it might be that the infiltration team is predisposed to see what they know to be there.

In any case the various testimony given as to what the image revealed was anything but clear which shows that an objective view of the X-ray image in question, if available, would be valuable.

CONCLUSION

I refer the case back to the Minister for reconsideration.

Allister Ogilvie
Vice-Chairperson
Transportation Appeal Tribunal of Canada