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Jan 31, 2013

WestJet employee’s bid to get job back denied because of involvement in drug raid

Employee denied knowledge of husband’s drug dealing and charges were dropped but she was too close to the situation to risk security clearance at airport
    
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A British Columbia airline employee who was arrested in a drug raid has been denied a chance at getting her job back by the Federal Court of Canada.

Marilyn Thep-Outhainthany was hired by WestJet to work for the airline at Vancouver International Airport. Her job required security clearance so she could access certain restricted areas at the airport.

On Oct. 3, 2010, Thep-Outhainthany applied for an identity card that would allow her access to restricted areas, and a background check revealed that she had been arrested on May 1, 2007, and charged with four counts of posession of drugs for the purposes of trafficking and one count of possessing a loaded prohibited firearm.

In the incident which led to the charges, Thep-Outhainthany had been waiting in the passenger seat of a car while her husband went inside a house to run an errand. While she was waiting, police executed a drug raid on the house, arresting everyone in the house including Thep-Outhainthany’s husband. They also searched the car she was in and found a secret compartment that had a loaded handgun as well as cocaine, heroin, methamphetamines and ecstasy. The car was in her mother’s name, but she was listed as the principal driver, and she tried to flee when the raid happened, so police arrested and charged her as well.

Thep-Outhainthany’s husband pleaded guilty, admitting he was involved in a sophisticated drug trafficking scheme but the charges against her were stayed and she was free to go. However, though records of her arrest were deleted from the Canadian Police Information Centre, the RCMP kept it in their files — which then came to the attention of the Minister of Transport after the background check.

Thep-Outhainthany separated from her husband on Jan. 31, 2011, and changed her name, but a transportation advisory board unanimously recommended her application for security clearance be denied, as it felt she could be “prone or induced” to get involved in criminal activities.

Thep-Outhainthany appealed to the Federal Court, arguing the incident shouldn’t be a factor in the security clearance decision because she wasn’t convicted of anything. However, the court upheld the decision, finding it was reasonable to believe she had some knowledge or involvement of the drug scheme and what her husband was doing, even if there wasn’t enough evidence to convict her. This could make her vulnerable to criminal associates and potentially give them access to the airport’s restricted areas, said the court.

“While there may not have been sufficient evidence to convict the applicant, the facts reasonably support a belief she was either closely connected to this activity or willfully blind to it,” said the court. “A criminal conviction is sustained on proof beyond a reasonable doubt. Denial of a security clearance requires only a reasonable belief, on a balance of probabilities, that a person may be prone to or induced to commit an act that may interfere with civil aviation.”

The court also found the Minister of Transport has the legal discretion to grant or refuse security clearance, regardless of the reason.

For more information see:

Thep-Outhainthany v. Canada (Attorney General), 2013 CarswellNat 102 (F.C.).
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