Decisions

CAT File No. A-1596-49
MoT File No. MB6602-71-A151

CIVIL AVIATION TRIBUNAL

BETWEEN:

Robert Mazerolle, Applicant

- and -

Minister of Transport, Respondent

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

Suspension, Security Penetration Exercise, Security Officer Certificate, Carry On Luggage, Airport Security, X-ray Machine


Review Determination
Faye H. Smith


Decision: July 7, 1998

The Tribunal confirms the Minister's decision of March 20, 1998 to suspend Robert Mazerolle's Security Officer Certificate - endorsement for the use of The X-ray Machine.

A Review Hearing was held Tuesday, June 23, 1998 at 10:00 hours at the Federal Court of Canada, Discovery Room in Halifax, Nova Scotia into the matter of a suspension of the Security Officer Certificate - endorsement for the use of The X-ray Machine issued to Robert Mazerolle.

BACKGROUND

On March 20, 1998 Transport Canada issued a Notice of Suspension which reads as follows:

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 March 20, 1998, at approximately 16:30 hrs, at the Halifax International Airport screening point, as a result of a penetration exercise conducted by Transport Canada Inspector Gisele McLaughlin, you Robert Mazerolle, a Security Officer designated by the Minister of Transport pursuant to Section 4.7 of the Aeronautics Act, while conducting the search of a passenger with the assistance of the x-ray machine--did fail to detect a knife located in a carry on piece of luggage. 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, as laid out in part II of Security Notice #6, an approved Transport Canada Policy Document.

The grounds for the suspension summarized above were repeated at page two of the Notice which also contained Conditions for Reinstatement as follows:

The suspension of the x-ray endorsement, remains in effect until such time as you have received appropriate retraining by your company, in the Airport Pre-Board Passenger Screener course, are re-tested and re-certified by Transport Canada.

THE LAW

"Security Officer" means:

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

Section 6.6 of the Aeronautics Act:

6.6 In sections 6.7 to 7.2, "Canadian aviation document" includes any privilege accorded by a Canadian aviation document.

Subsection 7.1(1) of the Aeronautics Act:

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 FACTS

On March 20, 1998 Robert Mazerolle was working as a Security Officer at the Halifax International Airport in the employ of Shanahan Security. On that date at approximately 16:30 hours Inspector Gisele McLaughlin conducted a penetration exercise related to the use of the x- ray machine which was being operated by Mr. Mazerolle and as a result of this exercise it is alleged that Mr. Mazerolle failed to detect a knife located in a piece of carry-on baggage. As a consequence his Security Officer Certificate - endorsement for the use of the x-ray machine was suspended by Notice of Suspension dated March 20, 1998 effective immediately and remained suspended until the conditions for reinstatement contained in the Notice were met.

Upon receipt of the above-mentioned Notice of Suspension, Mr. Mazerolle made a timely request for review of the Minister's decision to suspend which resulted in this hearing.

MINISTER'S EVIDENCE

The Minister called three witnesses and introduced 16 documents in evidence. The Minister's first witness, Gisele Dupuis McLaughlin indicated that she had been an employee of Transport Canada for seven years and has occupied her current position for four years. Her current duties as a Security Inspector are to monitor inspections, conduct investigations, assist clients with compliance measures and germane to this case, she is an on-site Inspector whose delegations and credentials were acknowledged by the Applicant.

It was the evidence of Ms. McLaughlin that the Applicant was certified and designated as an Airport Security Officer (airport pre-board passenger screener) and as such he had met minimum qualification requirements and had successfully completed the Transport Canada Airport Pre-Board Passenger Screener Course (APPS Course). She specifically noted the section of the course relating to the use of x-ray machines as identified in Exhibit M-7 which sets out what the Security Officer must know and demonstrate and indicated that successful applicants were designated by Transport Canada pursuant to subsection 4.7(1) of the Aeronautics Act.

Ms. McLaughlin further referred to Security Notice #6, a document which describes in detail the "Designation and Certification Standards for Security Officers" and which she stated is used for all security officers and companies. She indicated as well that the suspension given to Mr. Mazerolle was a partial suspension and that following the suspension of his x-ray machine endorsement Mr. Mazerolle was still able to use the other endorsements on his certificate and thus was re-assigned to those other duties.

Ms. McLaughlin next identified that part of the participant's manual of the course which identified knives (blade under 4" (10 cm) if not concealed) as dangerous articles that could be used to threaten the safety of passengers or the safety of the aircraft. She then advised that the x-ray screening of carry-on baggage involves the making of decisions for which guidance may be found in the participant's manual for the APPS Course under heading 13 entitled "X-ray screening of carry-on baggage: making decisions. Essentially this guidance suggests that where a dangerous article above referred to is seen on the x-ray monitor then the initial response is to request a manual search of the bag in order to verify what you see on the monitors or to activate a police response. The guidelines are set out in detail at section 13.1 of Exhibit M-12 filed at this review.

Ms. McLaughlin stated that on the date in question she was conducting a security penetration test. She was aware that Ms. Kim Langille was going on vacation to Paris and had asked her to participate in this test. Ms. McLaughlin inserted a knife with a blade length of about 6", as depicted in Exhibit M-15, between the foam and the hard part of Ms. Langille's carry-on case and then asked Ms. Langille to go through the screening point. Ms. McLaughlin observed that Ms. Langille proceeded through the machine located on the right side and was asked by Security Officer White to produce her boarding pass and her luggage was put on the x-ray machine. Her baggage went through the x-ray machine and as Mr. Mazerolle was on x-ray it was his duty to identify items. Ms. McLaughlin monitored Mr. Mazerolle during this process and noted that he hesitated when he saw the case and he asked to have it go through again and the second time he was still uncertain and he asked Ms. White at the front to look and they agreed that it was not dangerous and let it go. Ms. Langille then retrieved her carry-on case and proceeded to the aircraft boarding area.

At this time Ms. McLaughlin took the case to Mr. Mazerolle and told him he had failed to find the knife. Ms. McLaughlin put the case through the x-ray machine again and was told by Mr. Mazerolle that he thought that the object was an engraver. Ms. McLaughlin stated that the item could be seen on the top as a dark line showing up as a dark metal object. Inspector McLaughlin put the case through again and Mr. Mazerolle then saw the item. She stated that she then told Mr. Mazerolle that her decision stands and that he had failed the test and she accordingly informed the Supervisor that Mr. Mazerolle would have to be reassigned. She then requested Supervisor Ada Boyle to look at the screen and upon seeing the item, Ms. Boyle commented that it was a big knife. In concluding, Ms. McLaughlin stated that she saw a long line of metal and knew it to be a knife and that she failed Mr. Mazerolle because he should have conducted a manual search and he did not.

The Minister's second witness Kimberley Ann Langille confirmed her participation in this test. She stated that she arrived at the screening point, took off her jacket, knapsack and her case (which contained the knife) and a person put these items through the machine and she walked through and waited. She indicated that the first time the case went through it was lying flat. She said that when she picked up the other items she noticed that the case was now standing on end. She indicated that no one asked her to open the case and so she started to walk away. She stated that no one other than herself had touched the case at that time.

The next witness was Mr. Mazerolle's supervisor, Ms. Ada Boyle, who has been a Security Officer and Supervisor with Shanahan Security for 13 years at Halifax International Airport. Ms. Boyle read in the brief statement marked as Exhibit M-16 which she had earlier provided to Mr. Short. She confirmed that she had been requested on the relevant date by Ms. McLaughlin to come over to the monitor where Mr. Mazerolle had failed the penetration test. She indicated that she looked at the screen and saw a large knife lying flat in a case. In her testimony she added that she saw the knife and said that she would have conducted a secondary search.

APPLICANT'S EVIDENCE

The Applicant called Marguerite White as his witness. Ms. White had worked in the pre-board screening area for two years and had witnessed the Transport Canada test on the date in question. On that date, she was working up front and could see the monitor and could see the bag put through the machine. Ms. White reviewed the photographs contained in the Minister's Exhibit M-15 and indicated that photograph number 12, the mid picture is the only one that resembles what the case looked like. She indicated that the first time that she saw the case go through she could not tell it was a knife and she was only able to see the knife on the fourth time that the case went through. On cross-examination Mr. Short made the following statement: When you are not positively sure what it is, you are required to do a secondary search. Ms. White responded "that is right".

Ms. White confirmed that when it went through x-ray the first time, the bag was flat and Mr. Mazerolle said to put it through a second time straight up. She stated that this time she saw the item in photograph number 12 to the right and it looked like shaded dark electronics. In response to the question by the Minister's representative of what you do when it is just electronics and you do not know what it is, i.e. you cannot positively identify it, she stated "I must make a secondary search of the bag".

Ms. White said that she did not talk to Mr. Mazerolle about what to do, she looked at the picture on the monitor and it was up to him and they had no conversation regarding the contents. She stated that when she saw Ms. McLaughlin put the bag through, she knew it was a penetration test.

Ms. White said that she was behind the person on the monitor and the first time she saw an image as in photograph number 12 on the right side. She then stated that this was not accurate and that none of the pictures was accurate. She said she did not see a knife the first time and the second time she saw dark electronics, and added that it looked like normal computer equipment.

Mr. Mazerolle gave evidence that on March 20th last he did not see a knife go through and that he only saw it on the fourth time. He indicated that this had happened on an earlier instance and that he believed that what happened here again is that the image was not there. In summary Mr. Mazerolle stated that he did not see the knife and that his witness Ms. White would not have gotten it either.

DISCUSSION

The Minister of Transport is responsible for the safe operation of the civil aviation security system. In furtherance of this objective, the Minister carries out routine tests of its security system as was done on the date in question by Ms. McLaughlin relative to the duties of Mr. Mazerolle a Security Officer so designated by the Minister and employed by Shanahan Security. Prior to receiving his delegated authority as Security Officer, Mr. Mazerolle was trained and certified according to the Minister's national standards. It was Mr. Mazerolle's alleged failure to demonstrate his continued adherence to these national security standards which resulted in the partial suspension of his Security Officer Certificate.

The case for the Minister is that the knife was placed in the hand luggage by Ms. McLaughlin as depicted in photographs 8 to 13 of Exhibit M-15 and although the image seen on the monitor on the date in question may not have been a replica of those photographs, it was the evidence of Inspector McLaughlin and Supervisor Boyle that the knife was there to be seen and was seen by them and each testified that they would have conducted a secondary search of the bag. The contents of the bag raised the suspicion of Mr. Mazerolle as well since he had asked that the bag be put through the x-ray machine a second time. It was during this second pass through that Mr. Mazerolle had requested Ms. White to also view the monitor. While Ms. White indicated that she was not able to tell it was a knife the first time she saw the item go through, and was only aware that it was a knife the fourth time it passed through, she did concur that a secondary search is required when one is not positively sure as to the contents of the bag.

The Minister's witness Inspector McLaughlin gave evidence that Security Notice #6 regarding the Designation and Certification Standards for Security Officers contains specific directions respecting the ability of Security Officers to respond correctly to images of dangerous articles depicted on the x-ray monitor. Specific details relating to the x-ray equipment and its operation are contained in the Transport Canada Pre-Board Passenger Screener Course. It was the evidence of the Minister's witnesses and also that of the witness called by the Applicant that in the circumstances of this case, a secondary search is required. The evidence indicates that Mr. Mazerolle could not identify the item in the bag and he was thus obligated to do a secondary manual search. That Mr. Mazerolle saw something is evident from the fact that he asked that the bag be put through the x-ray machine a second time and conferred with his colleague about it. Mr. Mazerolle's explanation that he thought the item was an engraver does not excuse him from the requirement to do a secondary manual search in order to positively identify the object as required by the guidelines contained in the national security standards.

DETERMINATION

The Tribunal confirms the Minister's decision of March 20, 1998 to suspend Robert Mazerolle's Security Officer Certificate - endorsement for the use of The X-ray Machine.

Faye Smith
Chairperson
Civil Aviation Tribunal