r v. Canada, 2020 FC 729

2020 FCA 129 , 2020 FC 729 T-669-19 In the Matter of the Secure Air Travel Act Bhagat Singh Brar (Appellant) v. Canada (Minister of Public Safety and Emergency Preparedness) (Respondent) T-670-19 Parvkar Singh Dulai (Appellant) v. Canada (Minister of Public Safety and Emergency Preparedness) (Respondent) Indexed as: Brar v. Canada (Public Safety and Emergency Preparedness) Federal Court, Noël J.—Ottawa by telephone conference, April 16; June 30, 2020.

Security Intelligence — Secure Air Travel Act — Preliminary determination of legal questions arising in underlying appeals fromdecisions of respondent Minister denying appellants’ applications for administrative recourse under Secure Air Travel Act (SATA), s. 15,seeking removal of appellants as listed persons pursuant to SATA, s. 8 — Appellants submitting notices of appeal asking Court to orderremoval of their names from list — Respondent filing redacted public appeal book for each appeal — Court ordering respondent onOctober 7, 2019, to file unredacted appeal book — Respondent withdrawing certain classified information while preparing unredactedappeal book — Court also appointing amici curiae on October 7, 2019, in response to inclusion of redacted information — Preliminarylegal questions raised including: role of designated judge in appeal pursuant to SATA; role of amici curiae in ex parte proceedings,power thereof to cross-examine witnesses; whether designated judge, amici curiae allowed to see withdrawn information, reasonstherefor; whether Federal Court, as superior court of record, should retain copy of withdrawn information; whether scheme underSATA, s. 16 allowing for ex parte hearing on merits of appeal — Designated judge’s role in appeals under SATA that of “gatekeeper” —Having to ensure fair judicial process, assume robust, interventionist role — Role of judge not differing according to “phase”(disclosure or merits) of appeal — Judge having to assume “active”, “non-deferential role” at all stages of proceedings — Role ofamicus curiae to serve Court — Amici curiae herein not acting on behalf of appellants but rather representing their interests during exparte, in camera portions of appeal — Role of amici curiae in appeals under SATA to assist Court in fulfilling its duties to ensure fairestjudicial process possible — Cross-examination of witnesses essential component of amici curiae’s role — SATA not restricting amicicuriae from seeing withdrawn information, reasons for withdrawal but requiring Court ensure confidentiality of that information —SATA permitting ex parte, in camera hearing on merits — Questions answered, order dated October 7, 2019, appointing amici curiaeamended accordingly.

Judges and Courts — Secure Air Travel Act — Role of designated judge — Respondent Minister denying appellants’ applications foradministrative recourse under Secure Air Travel Act (SATA), s. 15 — Those applications seeking removal of appellants as listed personspursuant to SATA, s. 8 — Respondent filing redacted, unredacted appeal books for each appeal — Court appointing amici curiae inresponse to inclusion of redacted information — Preliminary legal question raised regarding role of designated judge in appealpursuant to SATA — Designated judge’s role in appeals under SATA that of “gatekeeper” — Overarching role that of arbiter betweencollective interest in national security, rights and freedoms of individuals — Overall judicial duty to reconcile tension created by theseinterests — Designated judge having to take all alternative measures available within limits of relevant statutory, inherent powers togive effect to individual’s right to fair judicial process — Gatekeeper role allowing designated judge to appoint amicus curiae —Designated judge having to ensure fair judicial process, assume robust, interventionist role, different from that in conventional appealor judicial review — Having duty to provide appellant, Minister with opportunity to be heard — Role not differing according to “phase”(disclosure or merits) of appeal — Judge having to assume “active”, “non-deferential role” at all stages of proceedings, test evidencepresented by Minister throughout.

Practice — Secure Air Travel Act — Role of amicus curiae — Respondent Minister denying appellants’ applications for administrativerecourse under Secure Air Travel Act (SATA), s. 15 — Those applications seeking removal of appellants as listed persons pursuant toSATA, s. 8 — Respondent filing redacted, unredacted appeal books for each appeal — Withdrawing certain classified information whilepreparing unredacted appeal book — Court appointing amici curiae in response to inclusion of redacted information — Preliminarylegal questions raised regarding: role of amici curiae in underlying ex parte proceedings; whether amici curiae having power to cross-examine witnesses; whether amici curiae allowed to see withdrawn information, be informed of reasons for withdrawal — Role ofamicus curiae is to serve Court — Amicus curiae not acting on behalf of appellants but rather representing their interests — Role ofamici curiae in appeals under SATA to assist Court in fulfilling its duties to ensure the fairest judicial process possible — This requiringrobust mandate from designated judge — Amici curiae representing interests of appellants regarding disclosure of information underSATA, regarding impact of this information on reasonableness of decision to keep appellants on SATA list — Assuming substantial role— Tasked with arguing unreasonableness of Minister’s decision under appeal during ex parte, in camera portions of appeal — Role ofamici curiae not analogous to that of special advocate — Amici curiae not tasked with protecting interests of appellants or assumingfunctions of appellants’ counsel during ex parte, in camera proceedings — Duty of amici curiae always with Court, not appellants —Limits imposed on communication between amici curiae, appellants to minimize risk of disclosure — Designated judge having to secureconfidential information or other evidence in least intrusive manner possible — Rigid limits on two-way communication between amicicuriae, appellants not preferable over exercise of thoughtful discretion — This discretion preserved herein — Amici curiae havingaccess to confidential information, other evidence herein — Participation of amici curiae in creation of summaries of confidentialinformation vital — Cross-examination of witnesses essential component of amici curiae’s role but opportunity to cross-examine not

absolute — Amici curiae allowed to see withdrawn information, reasons for withdrawal thereof. Constitutional Law — Charter of Rights — Respondent Minister denying appellants’ applications for administrative recourse under Secure Air Travel Act ( SATA ), s. 15 — Those applications seeking removal of appellants as listed persons pursuant to SATA , s. 8 — Minister maintaining appellants’ status as listed persons under SATA following review of information — SATA engaging similar Charter rights as Immigration and Refugee Protection Act .

Construction of Statutes — Respondent Minister denying appellants’ applications for administrative recourse under Secure Air Travel Act ( SATA ), s. 15 — Those applications seeking removal of appellants as listed persons pursuant to SATA , s. 8 — Minister maintaining appellants’ status as listed persons under SATA following review of information — Findings made by Supreme Court in Charkaoui v.

Canada (Citizenship and Immigration) under Immigration and Refugee Protection Act ( IRPA ) applicable to SATA ’s appeal scheme — IRPA , case law concerning IRPA may be drawn upon to facilitate interpreting SATA , appeal provisions. At issue herein was the preliminary determination of legal questions arising in underlying appeals from decisions of the respondent Minister denying the appellants’ respective applications for administrative recourse under

section 15 of the Secure Air Travel Act ( SATA ), which sought to remove them as listed persons pursuant to

section 8 of SATA . The underlying appeals were the first under SATA . The respondent advised the appellants that their status as listed persons under SATA would be maintained. Following a review of the classified and unclassified information provided, the respondent concluded that there were reasonable grounds to suspect that the appellants would engage or attempt to engage in

an act that would threaten transportation security, or travel by air to commit certain terrorism offences. The appellants submitted notices of appeal asking the Court to order the removal of their names from the list arguing, inter alia , that the respondent’s decision was unreasonable. Following the filing of the notices of appeal, the Court ordered the respondent to serve and file a public appeal book for each appeal. These appeal books contained numerous redactions made by the respondent.

Subsequently, it was ordered, on October 7, 2019, that the respondent file with the designated Federal Court registry an unredacted appeal book for each appeal, containing and clearly identifying the information that the respondent asserts could be injurious to national security or endanger the safety of any person if disclosed. While preparing this appeal book, the respondent withdrew certain classified information. In response to the inclusion of redacted information in the appeal books, two amici curiae were appointed in an order dated October 7, 2019.

During an ex parte and in camera case management conference, the respondent and the amici curiae raised numerous legal issues regarding the withdrawn information, the role of the amici curiae in these appeals, the bifurcation of the appeals process between the “disclosure phase” and the “merits phase”, and the role of the designated judge. A list of preliminary questions was subsequently endorsed by the Court. The respondent was of the opinion, inter alia , that

section 16 of SATA provides for a two-stage procedure: a disclosure phase and a merits phase. The respondent argued that there is clear division between the role the designated judge must assume in the disclosure phase of an appeal under SATA and the role the designated judge must assume in the merits phase.

The bulk of the preliminary legal questions considered in the case at bar were: the role of the designated judge in an appeal pursuant to SATA ; the role of the amici curiae in the ex parte proceedings and whether they have the power to cross-examine witnesses; whether the designated judge and the amici curiae should be allowed to see the withdrawn information and be informed of the reasons for which the respondent withdrew the information; whether the Federal Court, as a superior court of record, should retain a copy of the withdrawn information; and whether the scheme under

section 16 of SATA allows for an ex parte hearing on the merits of the appeal. Held , the role of the designated judge in SATA appeals is that of a robust and interventionist “gatekeeper”; the role of the amici curiae is to assist the Court by representing the interests of the appellants during the ex parte and in camera portions of the appeals; the withdrawn information, and the reasons for its withdrawal, must be provided to the designated judge and the amici curiae ; an ex parte and in camera hearing on the merits is called for in appeals under the SATA .

The role of the designated judge in appeals under SATA is that of a “gatekeeper” vested in not only ensuring the reasonableness of the Minister’s decision but also a fair process that respects the fundamental rights and freedoms of the appellant while simultaneously securing the confidentiality of certain information in the interest of national security. In national security matters, the overarching role of the designated judge is to be the arbiter between the collective interest in national security and the rights and freedoms of individuals.

The designated judge’s overall judicial duty is to reconcile this tension to ensure procedural fairness and the proper administration of justice while still protecting the exceptional collective interest in the secrecy of information and evidence in this context. The designated judge must take all the alternative measures available within the limits of their relevant statutory and inherent powers to give effect to an individual’s right to a fair judicial process in the circumstances. This will vary from one legislative scheme to the next.

Should the active interventions of the designated judge alone be unable to ensure these fundamental components of a fair judicial process, their overarching role as a gatekeeper might require them to appoint an amicus curiae . The appeal provisions under SATA put in place several limits on the appeal procedures in order to protect Canada’s national security interests. SATA assigns the designated judge the sole responsibility of deciding whether information or evidence meets the criterion to be kept confidential and must be heard ex parte and in camera .

This duty requires a designated judge to assume a robust and interventionist role. Despite the need to keep certain information confidential from the public and the appellant, the designated judge still has the duty to “provide the appellant and the Minister with [a reasonable] opportunity to be heard”. Like an elastic, designated judges must stretch their statutory and inherent powers to ensure that as much disclosure is provided to the appellant while stopping short of the breaking point.

The designated judge must assume their “gatekeeper” role at all times during the SATA appeal, including when assessing the reasonableness of the Minister’s decision. The power at subsection 16(5) of SATA to order that an appellant’s name be removed from the SATA list is indicative of Parliament’s intent of assigning designated judges a hands-on role. This jurisdiction to conclude differently from the Minister and “order the Minister” to remove the name of the appellant from the list is not an attribute of a conventional judicial review.

The appeal before the designated judge is not necessarily based solely on the same record that was before the decision maker. This is an important difference between an appeal under SATA and a conventional appeal or judicial review to the Federal Court. The potential for a change in the record is indicative of an intent for the designated judge to undertake a non-deferential role, as a different record requires a designated judge to reassess afresh the evidence grounding a decision according to this change.

The designated judge must be an active participant in an appeal under SATA , notably given the fact that, in ensuring that this evidence is “reliable and appropriate”, the designated judge is additionally responsible for considering evidence that may not be admissible in a court of law and may not be disclosed to the appellant due to national security reasons. The role of the judge does not differ according to the “phase” of the appeal and the word “reasonableness” at subsection 16(4)

does not signal that the designated judge should assume a deferential role when assessing the merits of the appeal, similar to the role assumed by a judge in a conventional judicial review. First, there is no indication in SATA of an intent to divide the proceedings or the role of the judge into two separate phases. There is no indication that Parliament intended to erode the designated judge’s discretion to fashion a fair judicial process according to the circumstances of the case and notably the type of confidential information being submitted.

Second, the deference owed by the designated judge is based on the circumstances. In the context of national security where one party is denied full disclosure and full participation, this requires the judge to assume an “active” and “non-deferential role” at all stages of the proceedings ( Charkaoui v. Canada (Citizenship and Immigration) ). These findings made in the context of certificate cases under the Immigration and Refugee Protection Act ( IRPA ) are applicable to SATA ’s appeal scheme as well.

Designated judges in appeals under SATA must actively involve themselves in testing the evidence presented by the Minister all throughout the ex parte and in camera proceedings, including questioning the witnesses before the Court in ex parte and in camera proceedings. While the legislative schemes of SATA and IRPA should not be viewed as identical as they have different purposes and distinctive traits, this does not mean that IRPA , and the case law concerning it, cannot be drawn upon to facilitate interpreting SATA and its appeal provisions.

SATA appears to engage similar Charter rights as IRPA , notably rights guaranteed in

section 7 of the Charter . Despite some differences, the role assigned to the judge in both IRPA and SATA is overall similar. Although both legislative schemes may serve different purposes, in each case the designated judge is called upon to adjudicate in an environment where the concerned individual is denied full participation and full disclosure for national security reasons. This in itself is exceptional. Therefore, the role of the designated judge must be adjusted, relative to the conventional role assumed during judicial reviews, so that a fair judicial process may be possible.

The differences between these legislative schemes does not diminish in any way the role the designated judge must assume. In essence, the role of an amicus curiae is to serve the Court. In the context of national security, the amicus curiae ’s mandate remains to be sculpted by the respective judge who appoints them. The designated judge’s inherent powers to appoint an amicus curiae and craft their mandate according to the circumstances do not permit the designated judge to assign the amici curiae a mandate that would have them act “on behalf” of the appellants.

However, the inherent powers permit the designated judge to assign them a mandate to “represent the interests” of the appellants. “Representing the interests” of an appellant during the ex parte and in camera portions of an appeal is still compatible with the inherent limits on the role of the amicus curiae as this is consistent with what is said in Canada (Attorney General) v. Telbani , and consistent with the role often assigned by the Supreme Court of Canada to amici curiae pursuant to subsection 53(7) of the Supreme Court Act .

The appointment of an amicus curiae under SATA is consistent with the implied intention of the statutory duties assigned to a designated judge in

section 16 of SATA . Given that role, and the absence of the appellant and their counsel during ex parte and in camera hearings on the confidential information or evidence, the appointment of an amicus curiae is implicitly required to allow the judge to fulfill their duties. The appointment of an amicus curiae in an appeal under SATA is not only consistent with a harmonious reading of the statutory procedures for appeals under subsection 16(6) of SATA , but is also consistent with its object as well as Parliament’s intent.

The amici curiae ’s role in these appeals under SATA is to assist the Court in fulfilling its duties: the review of the reasonableness of the Minister’s decision in a manner that ensures the appellants are afforded a fair judicial process within the limits on disclosure and participation that have been imposed by SATA in the interest of national security. This requires the designated judge to assign the amici curiae a robust mandate in order to ensure the fairest judicial process possible within the judge’s statutory and inherent powers.

First, the amici curiae are tasked with representing the interests of the appellants with regard to issues of disclosure of information or evidence under SATA . Second, should the circumstances require that some information or other evidence remain confidential pursuant to the limits of SATA , the role of the amici curiae is to represent the interests of the appellants with regard to the impact of this information or other evidence on the reasonableness of the Minister’s decision to keep the appellants on the SATA list. The amici curiae are called upon to assume a substantial role.

The amici curiae are tasked with arguing the unreasonableness of the Minister’s decision under appeal, in a manner that is complementary to the appellants’ position on the public evidence, based on the confidential information and evidence, during the ex parte and in camera portions of the appeal. This is essential in permitting the designated judge to ground their decision on the facts and the law. Overall, the roles assigned to the amici curiae go beyond the roles assigned to the amici curiae in Telbani and share many similarities with the role of a special advocate.

This is due to the difference in circumstances and notably the absence of a considerable discretionary power to disclose information or other evidence if, in the judge’s opinion, the public interest in disclosure outweighs the public interest in non-disclosure. The role of the amici curiae assigned in the October 7, 2019, order must not be read as analogous to a special advocate—the amici curiae remain friends of the Court and have no solicitor-client relationship privilege with the appellants.

As such, the amici curiae are not tasked with protecting the interests of the appellants and assuming the functions of the appellants’ counsel during the ex parte and in camera proceedings.

In sum, although representing the interests of the appellants before this Court during the ex parte and in camera portions of the appeal is the way in which the amici curiae assist the designated judge in fulfilling their duties to ensure a fair judicial process in the circumstances and to decide the reasonableness of the Minister’s decision, the amici curiae must exercise this role in accordance with their inherent role of assisting the Court; their duty is always to the Court and not the appellants.

It is essential that the Court sculpt a mandate that permits a free- flowing exchange between the appellants, their counsel, and the amici curiae . As SATA imposes limits on full disclosure, certain limits must be imposed on the communication between the amici curiae and the appellants to minimize serious risk of disclosure. These limits are inevitable. However, given the importance of meaningful communication between the appellants and the amici curiae , a designated judge must seek to secure the confidential information or other evidence in the least intrusive manner possible.

Preserving the designated judge’s discretion to permit future two-way communication between the appellants and their counsel with the amici curiae following their access to the confidential information or other evidence is essential as is exercising this discretion in a cautious but liberal manner. Rigid limits on two-way communication must not be preferred over the exercise of thoughtful discretion. This is why this discretion was preserved in the October 7, 2019, order. This order appointing the amici curiae provides that they have access to the confidential information and other evidence in the appeals herein.

This broad access is vital in allowing the amici curiae to assist the Court by representing the interests of the appellants during the ex parte and in camera portions of the appeals. It would likely require extremely exceptional circumstances to justify not permitting an amicus curiae to view certain confidential information. SATA pushes the designated judge onto a tightrope where they must summarize confidential information in a manner that does not include the elements of this information that would be injurious to national security or endanger the safety of any person if disclosed.

These summaries are the most powerful tool at the designated judge’s disposal. Consequently, the amici curiae ’s participation in the creation of these summaries is vital. The amici curiae should have the opportunity to cross-examine the witnesses on aspects relating to the merits of the appeals. This is an essential component of their role. The Court’s role as a “gatekeeper” allows it to impose restrictions on this power to cross-examine should the amici curiae ’s cross-examination go beyond assisting the Court in fulfilling its duties. Parliament could not have intended to

rely on the designated judge’s discretion to appoint an amicus curiae as a means of ensuring a fair judicial process while simultaneouslyintending to limit the designated judge’s discretion to confer a mandate to an amicus curiae that includes the ability to fully cross-examine witnesses during ex parte and in camera hearings. As the ex parte and in camera proceedings evolve, it is the duty of the amicicuriae to exercise, when opportune, their power to cross-examine in order to represent the interests of the appellants.

However, theopportunity to cross-examine is not absolute and must be used astutely and professionally; it is therefore subject to the respondent’sprerogative to make objections, which then calls for a ruling by the designated judge. The amici curiae must be given the opportunity tocross-examine the respondent’s witnesses concerning the information or other evidence presented to support the respondent’sconfidentiality claims.

A reading of SATA that prohibits the designated judge from assigning the ability to cross-examine therespondent’s witnesses to the amici curiae is inconsistent with SATA’s overall object of balancing the national security interest insecrecy with an individual’s rights and freedoms, a legislative scheme that largely relies on its appeal mechanism to achieve this balance.Such limits on cross-examination would render the appeal at

section 16 of SATA hollow. The designated judge and the amici curiae are allowed to see withdrawn information and be provided with the reasons for itswithdrawal. SATA does not restrict the designated judge, or the amici curiae, from seeing this withdrawn information or being informedof its withdrawal; it requires the Court to ensure its confidentiality. The Court must seek to preserve an accurate historical record of theseappeals. This includes any withdrawn information or evidence seeing as it could have an impact on the other information or evidencerelied upon in these appeals.

Finally, an ex parte and in camera hearing on the merits is permitted under SATA. The purpose of an ex parte and in camera hearing onthe merits is to permit the designated judge to hear and actively probe confidential information that cannot be disclosed to an appellant,as well as submissions on this information, in order to determine whether the Minister’s decision was reasonable. STATUTES AND REGULATIONS CITED Aeronautics Act, R.S.C., 1985, c. A-2. Anti-Terrorism Act, 2015, S.C. 2015, c. 20. Canada Evidence Act, R.C.S., 1985, c. C-5, ss. 38, 38.06(2). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(a),(b),(d), 6, 7, 11(d). Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 18.1, 21. Federal Courts Act, R.S.C., 1985, c. F-7, s. 4. Federal Courts Rules, SOR/98-106, rr. 63(1)(e), 343. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(h)(i),(2)(g),(h),(3)(d),(f), 78, 79, 79.1(1), 83, 85.1(1), 85.2(c), 87. National Security Act, 2017, S.C. 2019, c. 13,

preamble. Secure Air Travel Act, S.C. 2015, c. 20, s. 11, ss. 4(1), 5, 6, 8, 9, 10, 11, 12, 13(a), 15, 16, 17, 20. Secure Air Travel Regulations, SOR/2015-181, ss. 5(1),(2),(3). Supreme Court Act, R.S.C., 1985, c. S-26, s. 53(7). CASES CITED APPLIED: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Attorney General) v. Telbani, 2014 FC1050; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; R. v. Rafilovich, 2019 SCC 51, 442 D.L.R.(4th) 539; Khadr v. Canada (Attorney General), 2008 FC 46, [2008] 3 F.C.R. 306; Ontario v.

Criminal Lawyers’ Association of Ontario,2013 SCC 43, [2013] 3 S.C.R. 3; Canada (Attorney General) v. Huang, 2018 FCA 109, 362 C.C.C. (3d) 87;

Section 18.1 of theCanadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, as amended (Re), 2018 FCA 161, [2019] 2 F.C.R. 333. CONSIDERED: R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, (1993), 109 D.L.R. (4th) 478; X (Re), 2017 FC 136, [2017] 4 F.C.R. 391;Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217,(1998), 161 D.L.R. (4th) 385; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Canadian Security Intelligence Service Act (Re), 2008 FC300, [2008] 3 F.C.R. 477; Sellathurai v.

Canada (Public Safety and Emergency Preparedness), 2011 FCA 223, [2012] 2 F.C.R. 243; R.v. Jaser, 2014 ONSC 2277; R. v. Imona-Russel, 2019 ONCA 252, 145 O.R. (3d) 197; Harkat (Re), 2009 FC 340, 339 F.T.R. 129; R. v.Howard, (SCC), [1989] 1 S.C.R. 1337, (1989), 48 C.C.C. (3d) 38; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193. REFERRED TO: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v.

Fink, 2002SCC 61, [2002] 3 S.C.R. 208; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418;Radio-television and Telecommunications Commission), (SCC), [1995] 2 S.C.R. 781, (1995), 125 D.L.R. (4th) 471;Harkat (Re), 2012 FCA 122, [2012] 3 F.C.R. 635; Desjardins, Ducharme, Stein, Monast v. Canada (Department of Finance), (FC), [1999] 2 F.C. 381; (1998), 159 F.T.R. 129 (T.D.); Reference re Quebec Sales Tax, (SCC), [1994] 2

S.C.R. 715, (1994), 115 D.L.R. (4th) 449; Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418, (1995), O.R. (3d) 160; Ader v.Canada (Attorney General), 2018 FCA 105; Canada (Attorney General) v. Almalki, 2011 FCA 54, 331 D.L.R. (4th) 703; Canada(Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547, affd 2007 FCA 388, [2008] 4 F.C.R. 3; Sections 16 and 21 of theCanadian Security Intelligence Service Act, R.S.C., 1985, c. C-23 (Re), 2018 FCA 207; X (Re), 2018 FC 738, [2019] 1 F.C.R. 567; X(Re), 2014 FCA 249, [2015] 1 F.C.R. 684; Harkat (Re), 2010 FC 1241, [2012] 3 F.C.R. 251; Soltanizadeh v.

Canada (Citizenship andImmigration), 2020 FC 450; Charkaoui (Re), 2009 FC 1030, [2010] 4 F.C.R. 448; Ruby v. Canada (Solicitor General), 2002 SCC 75,[2002] 4 S.C.R. 3. AUTHORS CITED Binnie, Ian. “Entrenched Rights in the Age of Counter-Terrorism” (Hong Kong Conference in Criminal Law, 13 November 2004). Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Report of the Events Relating toMaher Arar: Analysis and Recommendations. Ottawa: The Commission, 2006. Canada. Parliament. Debates of the Senate, 41st Parl., 2nd Sess., Vol. 149, No. 142 (14 May 2015). Canada.

Parliament. House of Commons. Standing Committee on Public Safety and National Security, Evidence, 42nd Parl., 1st Sess.,No. 90 (7 December 2017). Canada. Parliament. Senate. Proceedings of the Standing Senate Committee on National Security and Defence, 42nd Parl., 1st Sess., No.40 (10 April 2019). Dickens, B. M. “A Canadian Development: Non-Party Intervention”, [1977] 40 Mod. L. Rev. 666. Mohan, S. Chandra. “The Amicus Curiae: Friends No More?”, [2010] 12 S.J.L.S. 352. Osborn’s Concise Dictionary, 12th ed. Sweet & Maxwell: Thomson Reuters, 2013, “court of record”. Oxford Dictionary of Law, 5th ed.

Oxford: Oxford University Press, 2002, “court of record”. Schmitz, Cristin. “Chief Justice shows where line is drawn” Lawyers Daily (2 July 2015). PRELIMINARY DETERMINATION of legal questions arising in underlying appeals from decisions of the respondent Minister denyingthe appellants’ respective applications for administrative recourse under

section 15 of the Secure Air Travel Act, which sought to removethem as listed persons pursuant to

section 8 thereof. Questions answered, order dated October 7, 2019, appointing amici curiae amendedaccordingly. APPEARANCES Karin Blok and Eric Purtzki for appellant Bhagat Singh Brar. Rebecca McConchie, Chantelle van Wiltenburg and Sadaf Kashfi for appellant Parvkar Singh Dulai. Colin Baxter and Gib van Ert as amici curiae. Nathalie Benoit, Maria Barrett-Morris and Helen Park for respondent. SOLICITORS OF RECORD Fowler and Blok Criminal Defence Lawyers, Vancouver, for appellant Bhagat Singh Brar. Peck and Company and Millar & Hayes PC, Vancouver, for appellant Parvkar Singh Dulai.

Deputy Attorney General of Canada for respondent. The following are the reasons rendered in English by Noël J.: Contents Paragraph I. OVERVIEW... 1 II. FACTS.. 7 A. MR. BHAGAT SINGH BRAR (T-669-19) 9 B. MR. PARVKAR SINGH DULAI (T-670-19) 16 C. APPEALS BEFORE THIS COURT. 22

(1) Redacted Information and Evidence . 22

(2) Amici Curiae . 25

(3) Preliminary Legal Issues . 27 III. PRELIMINARY LEGAL QUESTIONS .. 29 IV. ARGUMENTS .. 30 A. RESPONDENT’S REPRESENTATIONS .. 30

(1) Role of the Designated Judge . 31

(2) Role of the Amici Curiae . 33

(3) Withdrawal of Information .. 36

(4) Ex Parte Hearing on the Merits . 37 B. MR. BHAGAT SINGH BRAR’S REPRESENTATIONS .. 38

(1) Role of the Designated Judge . 39

(2) Role of the Amici Curiae . 41

(3) Ex Parte Hearing on the Merits . 43 C. MR. PARVKAR SINGH DULAI’S REPRESENTATIONS .. 44

(1) Role of the Designated Judge . 45

(2) Role of the Amici Curiae . 47

(3) Withdrawal of Information .. 50

(4) Ex Part e Hearing on the Merits . 51 D. REPRESENTATIONS OF THE AMICI CURIAE .. 52

(1) Role of the Designated Judge . 53

(2) Role of the Amici Curiae . 54

(3) Withdrawal of Information .. 56

(4) Ex Parte Hearing on the Merits . 57 V. ANALYSIS .. 58 A. REVIEW AND ANALYSIS OF THE SATA .. 58

(1) Context and Legislative Object of the SATA .. 60

(2) Operation of the SATA .. 68

(3) Appeal Provisions of the SATA .. 80 B. ROLE OF THE DESIGNATED JUDGE .. 89

(1) Overview of Jurisprudence Regarding the Role of the Designated Judge . 93

(2) Role in Appeal under the SATA .. 105

(3) Similarities Between the IRPA and the SATA .. 128 C. THE ROLE OF THE AMICI CURIAE — A COMPLEMENT TO THE DESIGNATED JUDGE. 140

(1) Third-Party Counsel in Ex Parte and In Camera Proceedings . 144

(2) The Amicus Curiae and the Inherent Jurisdiction of the Court 151

(3) Differences Between Role of the Special Advocate and the Amicus Curiae . 172

(4) Appointment, Role, and Powers of the Amici Curiae . 178 D. WITHDRAWAL OF INFORMATION .. 247

(1) Access to Withdrawn Information and Reasons for Withdrawal 250

(2) Retention of Copy of Withdrawn Information .. 256

(3) Steps to Be Taken to Secure the Withdrawn Information .. 258 E. EX PARTE HEARING ON THE MERITS .. 260 VI. CONCLUSION .. 263 I. OVERVIEW [ 1 ] At the core of a government’s responsibilities is assuring the security of its citizens. As citizens, this is the principal consideration for which, in return, we provide political legitimacy; it is the underpinning of the social contract to which we adhere. However, in a constitutional democracy, governments are not afforded absolute power. They must act in conformity with the Constitution and the rights and liberties it guarantees.

Inevitably, this creates a constant tension between the rights of individuals and the collective interest in security. See Charkaoui v.

Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui I ) , at paragraph 1 . [ 2 ] This tension is acutely present in the context of national security where government is assigned the uneasy task of balancing the active prevention of harm to the security of Canada and Canadians with ensuring that the rights and liberties of individuals it perceives as potential threats are not violated in a way that cannot be justified in a free and democratic society. It is a unique context that puts extraordinary pressure on our fundamental constitutional principles.

This is because there is an exceptional collective interest in maintaining the secrecy of information or evidence in this context that inherently clashes with the open court principle and standard notions of procedural fairness. [ 3 ] These clashing interests are largely at the core of the preliminary legal questions this Court is tasked with answering in these first two appeals pursuant to

section 16 of the Secure Air Travel Act , S.C. 2015, c. 20, s. 11 ( SATA ).

In particular, the Court must address in this decision: the role of the designated judge in appeals under the SATA , the role and powers of the amici curiae in these appeals, the procedure applicable to the withdrawal of information by the Minister of Public Safety and Emergency Preparedness (Minister) under the SATA , and the possibility and purpose of ex parte and in camera hearings on the merits under the SATA . [ 4 ] As the analysis below will demonstrate, I perceive my role as a designated judge under the SATA to be twofold: (1) deciding upon the reasonableness of the Minister’s decision; and (2) serving as an arbiter of what Justice Binnie described as the “clash of the titans” between national security and individual rights (Justice Ian Binnie, “Entrenched Rights in the Age of Counter-Terrorism” (Hong Kong Conference in Criminal Law, 13 November 2004).

In this latter regard, I must reconcile these competing interests in a manner that ensures the fairest judicial process possible within the parameters set by legislation and the Court’s plenary power to control its own process. Accordingly, in these circumstances, my role as a designated judge compels me to appoint amici curiae with a robust interventionist mandate and powers that give as much effect as possible to the appellants’ right to know and meet the case against them.

This role as a designated judge under the SATA has also led me to conclude that the Court and the amici curiae should be given access to the withdrawn material and the reasons for its withdrawal, and that an ex parte and in camera hearing on the merits is possible should, in the judge’s opinion, the circumstances require it. [ 5 ] That being said, this decision does not answer the constitutional questions raised in the appellants’ notices of appeal. Rather, the Court has considered the alleged violations of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] ( Charter ) in the course of crafting a judicial process within my statutory and inherent powers to decide upon the reasonableness of the Minister’s decision and the constitutionality of the SATA scheme. Whether the judicial process I have fashioned according to circumstances and the limits of my powers is sufficient to ensure a fair judicial process is a question that this Court will hear later. [ 6 ] As the reader will soon become aware, my analysis of these preliminary questions is rather lengthy.

However, I believe an in- depth analysis of these preliminary questions is necessary given that these are the first two appeals under the SATA and that it has been several years since a thorough review of the role of the designated judge and the role of the amicus curiae in national security matters has been undertaken. Furthermore, these in-depth reasons ensure that all parties have a similar understanding of the pertinent legal landscape going forward in order to level the playing field. II. FACTS [ 7 ] The appellants, Mr. Bhagat Singh Brar and Mr. Parvkar Singh Dulai, are both listed individuals pursuant to

section 8 of the SATA . Accordingly, the Minister has deemed that reasonable grounds exist to suspect that each appellant will either “engage or attempt to engage in

an act that would threaten transportation security” or “travel by air for the purpose of committing

an act or omission that (

i) is an offence under sections 83.18 , 83.19 or 83.2 of the Criminal Code [R.S.C., 1985, c. C-46 ] or an offence referred to in paragraph (

c) of the definition terrorism offence in

section 2 of that Act, or (ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (i).” See paragraphs 8(1)(

a) and 8(1)(

b) of the SATA .

[ 8 ] Both appellants remain listed under the SATA following the Minister’s decisions to deny their respective applications for administrative recourse under

section 15 of the SATA , which sought to remove their names from the list. Consequently, the appellants have each brought a statutory appeal under

section 16 of the SATA of the Minister’s decision to deny their respective applications for administrative recourse. A. MR. BHAGAT SINGH BRAR (T-669-19) [ 9 ] Mr. Brar appeals the Minister’s decision, dated December 21, 2018, to maintain his status as a listed person pursuant to

section 15 of the SATA . [ 10 ] On April 23, 2018, Mr. Brar’s name was included on the SATA list. The following day, he was denied boarding at the Vancouver International Airport. Mr. Brar was scheduled to take two flights that would have eventually transported him from Vancouver to Toronto. [ 11 ] On June 2, 2018, Mr. Brar submitted an application for administrative recourse pursuant to

section 15 of the SATA , which sought the removal of his name from the SATA list. Mr. Brar was provided with a two-page unclassified

summary of the information before the Minister supporting the decision to place his name on the SATA list. Mr. Brar was further advised that the Minister would also consider further classified information when assessing his application under

section 15 of the SATA . In addition, pursuant to subsection 15(4) of the SATA , Mr. Brar was provided with an opportunity to make written representations in response to the unclassified information disclosed to him. [ 12 ] On December 21, 2018, the Minister advised Mr. Brar that his status as a listed person under the SATA would be maintained. Following a review of the classified and unclassified information provided, including Mr. Brar’s written submissions, the Minister “concluded that there [were] reasonable grounds to suspect that [Mr. Brar] will engage or attempt to engage in

an act that would threaten transportation security, or travel by air to commit certain terrorism offences.” [ 13 ] On April 18, 2019, Mr. Brar filed a notice of appeal to this Court pursuant to subsection 16(2) of the SATA . In this notice of appeal, Mr. Brar asks this Court to order the removal of his name from the SATA list pursuant to subsection 16(5) of the SATA , or to order the remittance of the matter back to the Minister for redetermination. In addition, Mr. Brar also asks this Court to declare that sections 8 , 15 and 16 as well as paragraph 9(1) (

a) of the SATA are unconstitutional and therefore are of no force and effect or to read in such procedural safeguards to the SATA that are sufficient to cure any constitutional deficiencies. [ 14 ] More specifically, Mr. Brar argues the following as the grounds of his appeal: (1) the Minister’s decision was unreasonable;

(2) section 8 and paragraph 9(1) (

a) of the SATA infringe his rights pursuant to

section 6 of the Charter in a manner that cannot be justified by

section 1 of the Charter ; (3) sections 15 and 16 of the SATA infringe his rights pursuant to

section 7 of the Charter , notably his rights to liberty and security of the person; and (4) the procedures set out in the SATA violate his common law rights to procedural fairness seeing as the SATA deprives him of his right to know the case against him and the right to answer that case. [ 15 ] In his notice of appeal, Mr.

Brar requests that the respondent disclose all related material to his application for recourse, all related material to the Minister’s decision to designate him as a listed person, all material before the Minister on the application for recourse, and all other materials relating to the Minister’s decision to confirm his status as a listed person under the SATA . B. MR. PARVKAR SINGH DULAI (T-670-19) [ 16 ] Similarly, Mr. Dulai appeals the Minister’s decision, dated January 30, 2019, to maintain his status as a listed person pursuant to

section 15 of the SATA . [ 17 ] Mr. Dulai’s name was included on the SATA list on March 29, 2018. Nearly two months later, Mr. Dulai was denied boarding on a flight from Vancouver to Toronto on May 17, 2018. [ 18 ] On June 8, 2018, Mr. Dulai submitted an application for administrative recourse pursuant to

section 15 of the SATA , which sought the removal of his name from the SATA list. Mr. Dulai was provided with a two-page unclassified

summary of the information before the Minister supporting the decision to place his name on the SATA list and was advised that the Minister would also consider further classified information when assessing his application under

section 15 of the SATA . In addition, pursuant to subsection 15(4), Mr. Dulai was provided with an opportunity to make written representations in response to the unclassified information disclosed. [ 19 ] On January 30, 2019, the Minister advised Mr. Dulai that his status as a listed person under the SATA would also be maintained as “there [were] reasonable grounds to suspect that [Mr. Dulai] will engage or attempt to engage in

an act that would threaten transportation security, or travel by air to commit certain terrorism offences.” [ 20 ] On April 18, 2019, Mr. Dulai submitted a notice of appeal to this Court pursuant to subsection 16(2) of the SATA . Similarly to Mr. Brar, Mr. Dulai asks this Court to order the removal of his name from the SATA list pursuant to subsection 16(5) of the SATA or to order the remittance of the matter back to the Minister for redetermination. Mr. Dulai also asks this Court to declare that sections 8 , 15 and 16 as well as paragraph 9(1) (

a) of the SATA are unconstitutional and are consequently of no force and effect or to read in such procedural safeguards to the SATA that are sufficient to cure any constitutional deficiencies. [ 21 ] Mr. Dulai lays out similar grounds to Mr. Brar in support of his appeal. However, Mr. Dulai also argues that the Minister’s decision to designate him as a listed person, and thereafter maintain that designation upon administrative review, violated and disproportionately impacted his rights under paragraphs 2(a), 2(

b) and 2(

d) as well as

section 15 of the Charter . Mr. Dulai also requests disclosure, similar to the ask made by Mr. Brar. C. APPEALS BEFORE THIS COURT

(1) Redacted Information and Evidence [ 22 ] Following the filing of the notices of appeal, this Court ordered the respondent to serve and file a public appeal book for each appeal, the contents of which were agreed upon by the parties.

These appeal books contained numerous redactions made by the respondent in order to protect the confidentiality of information or evidence it believed would be injurious to national security or endanger the safety of any person if disclosed. [ 23 ] Subsequently, this Court ordered on October 7, 2019, that the respondent file with the designated registry of this Court an unredacted appeal book for each appeal, containing and clearly identifying the information that the respondent asserts could be injurious to national security or endanger the safety of any person if disclosed.

The Court also ordered that the respondent file classified affidavits with the designated registry explaining the redactions as well as file and serve public affidavits explaining the nature of the redactions in a manner that does not injure national security or endanger the safety of any persons. During the process of preparing the unredacted classified appeal books and the affidavits, a number of the redactions were lifted by the respondent, resulting in further disclosure to the appellants. [ 24 ] The respondent also advised the Court and the parties that, pursuant to paragraph 16(6) (

g) of the SATA , it was withdrawing certain classified information from the appeal book filed in response to Mr. Dulai’s statutory appeal. The Court accepted that the legislation provides for the withdrawal of information and issued an order authorizing the withdrawal of the information and the replacement of the relevant pages in the classified unredacted appeal book. However, the Court also ordered that, as a superior court of record, it would keep three copies of the appeal book containing the withdrawn information under seal in a separate location at the designated registry, at least until the Court dealt with the issue of the retention of the withdrawn information.

(2) Amici Curiae [ 25 ] In response to the inclusion of redacted information in the appeal books, the Court appointed two amici curiae in an order dated October 7, 2019 (order reproduced in Annex A). [ 26 ] The Court originally ordered that the amici curiae would be given access to the confidential information as of December 9, 2019, following which they would not be permitted to engage in two-way communication with the appellants and their counsel, except with leave from the Court.

At the request of the amici curiae , this was extended to January 20, 2020, in order to allow for more effective and meaningful communication with the appellants in light of the redactions lifted by the respondent.

(3) Preliminary Legal Issues [ 27 ] On January 16, 2020, an ex parte and in camera case management conference was held in order to discuss the next steps concerning the confidential information in this case. A public

summary of the case management conference was provided to the appellants shortly thereafter. During this case management conference, the respondent and the amici curiae raised numerous legal issues regarding the withdrawn information, the role of the amici curiae in these appeals, the bifurcation of the appeals process between the “disclosure phase” and the “merits phase”, and the role of the designated judge.

The Court proposed that the amici curiae and the respondent meet to discuss the issues raised and correspond with the Court concerning the preliminary legal issues to be adjudicated before moving forward in the appeals. [ 28 ] Notwithstanding the respondent’s position that the Court should address, on a preliminary basis, the applicable standard of review in these appeals, which the Court found to be premature at this stage, a list of preliminary legal issues was agreed upon by the appellants, the respondent, and the amici curiae during a case management conference held on February 13, 2020.

This list of preliminary questions was subsequently endorsed by the Court via its order dated February 18, 2020 (List of Preliminary Questions, reproduced in Annex B). On April 16, 2020, a public hearing via teleconference was held where the parties and the amici curiae made oral submissions on these legal questions. III. PRELIMINARY LEGAL QUESTIONS [ 29 ] With regard to the preliminary legal questions agreed upon by the parties and the amici curiae (Annex B), the Court will consider the following preliminary legal questions in these appeals: 1. Role of the Designated Judge: a.

What is the role of the designated judge in an appeal pursuant to the SATA ? 2. Role of the Amici Curiae : a. What is the role of the amici curiae in the ex parte proceedings? b. Do the amici curiae have the power to cross-examine witnesses? 3. Withdrawal of Information: a. Should the designated judge and the amici curiae be allowed to see the withdrawn information and be informed of the reasons for which the Minister withdrew the information? b. Should the Federal Court, as a superior court of record, retain a copy of the withdrawn information?

c. What steps should be taken by the designated registry to ensure that the withdrawn information is no longer part of the appeal book and when should this information be returned to the Minister? 4. Ex Parte Hearing on the Merits: a. Does the scheme under

section 16 of the SATA allow for an ex parte hearing on the merits of the appeal? b. What is the purpose of the ex parte hearing on the merits? c. Is an ex parte hearing on the merits required in these appeals? IV. ARGUMENTS A.

RESPONDENT’S REPRESENTATIONS [ 30 ] The respondent argues that: (1) the role of the designated judge in appeals under the SATA is akin to the role assumed in a conventional judicial review; (2) the role of the amici curiae is not analogous to that of a special advocate and does not allow for the cross-examination of witnesses on the merits of the decision under appeal unless new evidence is received by the Court; (3) the designated judge and the amici curiae may review the contents of the withdrawn information and be informed of the reasons for its withdrawal; and (4) an ex parte and in camera hearing on the merits is allowed under the SATA and is required in these appeals.

(1) Role of the Designated Judge [ 31 ] The respondent explains that the statutory appeal under

section 16 of the SATA is divided into two phases: the disclosure phase and the merits phase. The respondent notes that during the disclosure phase, the Court reviews the redactions made by the respondent to determine whether the disclosure of that information would be injurious to national security or endanger the safety of any person. In this phase, the designated judge undertakes a robust “gatekeeper” role.

In doing so, the respondent states that the designated judge is responsible for ensuring the confidentiality of the information or other evidence provided by the Minister that would be injurious to national security or endanger the safety of any person if disclosed and is equally responsible for ensuring that an appellant is reasonably informed. [ 32 ] During the merits phase, the respondent notes that the Court determines whether the Minister’s decision is reasonable, and in doing so, assumes a role that is akin to a role adopted by a judge in a conventional judicial review.

The respondent argues that this role in the merits portion of appeals under the SATA is set out in subsection 16(4) , which provides that the “judge must, without delay, determine whether the decision [of the Minister] is reasonable on the basis of the information available to the judge.” As such, the respondent holds that this language, along with the general scheme of the SATA , suggests that the role of the Court is akin to its role in a conventional judicial review and therefore the designated judge must show judicial restraint and respect for the distinct role of administrative decision makers.

They state that the designated judge must not conduct a de novo analysis of the decision and must refrain from deciding the issues themselves, as this is not their assigned role.

(2) Role of the Amici Curiae [ 33 ] The respondent argues that: (

i) the role of the amici curiae is to assist the Court without acting on behalf of any specific party and is not analogous to the role of a special advocate; and (ii) that, barring new evidence, this role does not include the ability to cross- examine witnesses on the merits of the appeal. [ 34 ] The respondent states that the amici curiae may participate in both the disclosure and merits portions of the appeals. However, citing this Court’s decision in Canada (Attorney General) v.

Telbani , 2014 FC 1050 ( Telbani ), at paragraph 27 , the respondent argues that an amicus curiae ’s role must be restrained to assisting a court without acting on behalf of any specific party.

The respondent notes that the SATA regime was enacted well after the creation of the special advocates regime under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ( IRPA ) and therefore Parliament would have specifically included such a regime in the SATA had it wanted to do so. [ 35 ] In the circumstances, the respondent notes that the amici curiae ’s role may extend to examining affiants in order to assist the Court in forming its opinion as to whether the disclosure of the information would be injurious to national security or endanger the safety of any person.

However, barring new evidence that was not before the Minister at the time of the decision, the respondent states that the amici curiae should not be permitted to cross-examine witnesses on the merits of the Minister’s decision, as this would be contrary to Parliament’s intent in having enacted the SATA and would be inconsistent with the role assigned to the designated judge in the merits portion of appeals under the SATA .

(3) Withdrawal of Information [ 36 ] The respondent advances the position that: (

i) the designated judge and the amici curiae can be provided with the withdrawn information and the reasons for which it was withdrawn; (ii) the Court, as a superior court of record, can retain a copy of the withdrawn information; and (iii) sufficient steps have already been taken to ensure that the withdrawn information is no longer part of the appeal book and has already been returned to the Minister.

(4) Ex Parte Hearing on the Merits [ 37 ] The respondent argues that: (i) paragraph 16(6) (

f) of the SATA implicitly allows for an ex parte and in camera hearing on the

merits of the appeal; (ii) the purpose of the ex parte and in camera hearing on the merits is to allow the Court to determine whether the Minister’s decision was reasonable in light of the confidential information; and (iii) an ex parte and in camera hearing is required in these appeals. B. MR. BHAGAT SINGH BRAR’S REPRESENTATIONS [ 38 ] Mr.

Brar submits that: (1) the role of the designated judge is to ensure procedural fairness and as much transparency as possible while also ensuring that the record supports the reasonableness of the Minister’s finding; (2) the amici curiae ’s role is to serve as a “substantial substitute” for the appellant during ex parte and in camera proceedings and must be empowered to cross-examine witnesses on the merits of the decision under appeal; and (3) an ex parte and in camera hearing on the merits is possible and likely required in this case. Notwithstanding these submissions, Mr.

Brar still maintains that the SATA scheme violates the norms of procedural fairness and is unconstitutional.

(1) Role of the Designated Judge [ 39 ] Mr. Brar argues that the role of the designated judge in a SATA appeal is that of a “gatekeeper” entrusted with ensuring both the reasonableness of the Minister’s decision and a fair and transparent process, given the unique circumstances. Citing Canada (Citizenship and Immigration) v. Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33 ( Harkat (2014) ), at paragraph 46 , Mr.

Brar states that the SATA assigns to the designated judge a robust role much like the one assigned in the security certificate context under the IRPA and that the designated judge must therefore take on an “interventionist” role to ensure procedural fairness. [ 40 ] Although Mr.

Brar states that he does not disagree with the respondent that the starting point of a reasonableness review is judicial restraint and respect for the distinct role of administrative decision makers, he argues that the level of deference must be adjusted according to: (1) the ability of the designated judge to receive evidence that was not before the decision maker; (2) the fact that previously withheld information may be disclosed to an appellant, placing them in a better position to make their case as compared to the administrative recourse stage before the original decision maker; (3) the requirement that the designated judge’s decision be based on the information and evidence available as opposed to the information before the decision maker, and (4) the designated judge’s power to order that an appellant’s name be removed from the list pursuant to subsection 16(5).

(2) Role of the Amici Curiae [ 41 ] Mr. Brar states that the Supreme Court of Canada has made it clear in both Harkat (2014) , at paragraphs 43 and 47, and Charkaoui I , at paragraph 63 , that, in the context of ex parte and in camera proceedings, procedural fairness requires a “substantial substitute” for the full disclosure and full participation of the appellant. For Mr.

Brar, a “substantial substitute” requires that a special advocate, or an amicus curiae , be assigned a role that permits them to “act as vigorously and effectively as the [appellant] would act in a public proceeding”, citing Harkat (2014) , at paragraph 47. [ 42 ] Moreover, Mr.

Brar argues that the amici curiae must be given the power to cross-examine witnesses on the merits of the appeal, as this power is necessary to: (1) uphold his right to meaningfully respond to information relied upon by the Minister; (2) satisfy the need for the Court to obtain sufficient information to subject the facts relied upon by the Minister to independent judicial scrutiny; and (3) uphold the terms of the order appointing the amici curiae .

(3) Ex Parte Hearing on the Merits [ 43 ] Mr. Brar agrees with the respondent that

section 16 of the SATA allows for an ex parte hearing on the merits and also agrees that the purpose of an ex parte hearing on the merits would be to permit the Court to consider confidential information or other evidence not available to an appellant when assessing the reasonableness of the Minister’s decision. In addition, Mr. Brar states that an ex parte and in camera hearing on the merits would only be required in his appeal if the Minister still intends to rely on information that is not eventually disclosed to the appellants to support the reasonableness of the Minister’s decision. C. MR.

PARVKAR SINGH DULAI’S REPRESENTATIONS [ 44 ] Mr.

Dulai argues that: (1) the role of the designated judge under the SATA is akin to that of a designated judge in security certificate cases under the IRPA ; (2) the role of the amici curiae is to protect the interests of the named person and to make up, to the fullest extent as possible, for the named person’s exclusion from the ex parte and in camera proceedings; (3) the designated judge’s and the amici curiae ’s access to the withdrawn information, and the reasons for its withdrawal, is essential to ensuring procedural fairness; and that (4) an ex parte and in camera hearing on the merits of the appeals is possible under the SATA and is likely necessary in this case.

(1) Role of the Designated Judge [ 45 ] Mr. Dulai argues that the role of the designated judge in appeals under the SATA is akin to that of the designated judge in security certificate cases under the IRPA , and as such, the judge has the discretion and the flexibility to fashion a fair process according to the circumstances. Mr. Dulai submits that both the common law and the statutory provisions of the SATA support the conclusion that the designated judge’s role as a “gatekeeper” is robust. [ 46 ] Mr.

Dulai argues that the respondent’s position concerning the role of the designated judge in appeals under the SATA is not in line with the Supreme Court of Canada’s jurisprudence on deference in the context of national security. Citing Charkaoui I , at paragraphs 38 – 42 , Mr. Dulai points to the fact that the Supreme Court of Canada noted that having to conduct a reasonableness review did not preclude the designated judge from having to undertake an “active role”. Moreover, Mr. Dulai notes that the reasoning in Harkat

(2014) applies equally in the context of SATA appeals and therefore the designated judge must assume the role of a robust gatekeeper.In addition, given the similarities between the SATA appeal provisions and the security certificate regime under the IRPA, Mr. Dulainotes that it can be presumed that Parliament intended to assign the designated judge a gatekeeper role that is consistent with the one setout by the Supreme Court of Canada in Harkat (2014).

(2) Role of the Amici Curiae [47] Mr. Dulai submits that the role of the amici curiae must go beyond the traditional role of a “friend of the court” and instead beone where they are empowered to vigorously protect the interests of the appellants and to take on the functions of the appellants’ counselduring the ex parte and in camera proceedings. This notably includes the ability to cross-examine witnesses on the merits during any exparte and in camera portions of the appeals. Mr. Dulai submits that anything less would result in a clear violation of the Charter and theprinciples of procedural fairness. [48] Mr.

Dulai states that the Supreme Court of Canada has made it clear in Charkaoui I and Harkat (2014) that a “substantialsubstitute” for a person’s informed participation in closed proceedings must be provided when

section 7 rights are engaged and that alegislative scheme’s failure to provide the opportunity for such renders it unconstitutional (Charkaoui I, at paragraphs 70 and 86; Harkat(2014), at paragraphs 47 and 56).

Moreover, he states that the Supreme Court of Canada’s decision in Harkat (2014) makes it clear that,in order to provide a substantial substitute, a special advocate must be assigned a role that empowers them “to protect the interests of thenamed person and ‘to make up so far as possible for the [named person’s] own exclusion from the evidentiary process’” citing Harkat(2014), at paragraphs 35, 37, 47 and 67. As such, Mr.

Dulai holds that the role of the amici curiae should reflect the Supreme Court ofCanada’s statements in these decisions, as it would be reasonable to conclude that Parliament intended for the designated judge toexercise their discretion pursuant to their role as “gatekeepers” to appoint an amicus curiae with a mandate to ensure procedural fairness. [49] Regarding cross-examination, Mr.

Dulai argues that the respondent’s position that the SATA does not provide for the possibilityof a challenge to the relevance, reliability, or sufficiency of the information before the Minister would render the entire SATA schemehollow. Mr. Dulai submits that the respondent’s argument is inconsistent with the common law understanding of procedural fairness,which requires that the appellants be given a meaningful opportunity to challenge the credibility, reliability, and sufficiency of theevidence relied upon to limit their fundamental rights and freedoms, citing Charkaoui I, at paragraph 61.

Seeing as the Supreme Court ofCanada has recognized that cross-examination is “of essential importance” in assessing credibility and reliability (R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, at page 663, (1993), 109 D.L.R. (4th) 478) and that the appellants have not been provided anopportunity to challenge the confidential information at any point in the process under the SATA, Mr. Dulai argues that the amici curiaemust be empowered to cross-examine witnesses during the merits phase of the appeal.

(3) Withdrawal of Information [50] Mr. Dulai submits that: (

i) the designated judge and the amici curiae should see the withdrawn information and be informed ofthe reasons for its withdrawal; (ii) the Court should retain a copy of the withdrawn information; and (iii) the Court need not take anyfurther steps to secure the withdrawn information. Mr. Dulai argues that it would be contrary to procedural fairness to permit therespondent to unilaterally withdraw information the Minister relied upon without disclosing the information and reasons for itswithdrawal. Mr. Dulai also states that, to the extent that a

summary of the reasons for the withdrawal can be provided to him, the Courtshould do so pursuant to paragraph 16(6)(

c) of the SATA.

(4) Ex Parte Hearing on the Merits [51] Mr. Dulai submits that an ex parte and in camera hearing on the merits is allowed throughout the appeal process in subsection16(6) of the SATA, and that the purpose of such a hearing is to allow the judge to hear confidential information that cannot be disclosedto an appellant, as well as submissions on this information, in order to determine whether the Minister’s decision was reasonable.However, although Mr. Dulai admits that an ex parte and in camera hearing on the merits will likely be required in this case, he notesthat it should not be necessarily assumed. D.

REPRESENTATIONS OF THE AMICI CURIAE [52] The amici curiae submit that: (1) the role of the designated judge in appeals under the ISATA is similar to the role described inHarkat (2014) and is not akin to the role of a judge in a conventional judicial review; (2) their role is to serve as a substantial substitutefor the full disclosure and full participation of the appellants in the ex parte and in camera portion of the appeals and that they must beempowered to cross-examine witnesses on the merits to fulfill this role; (3) there are no issues with them seeing the withdrawninformation or being provided with the reasons for the withdrawal; and (4) the SATA allows for an ex parte and in camera hearing onthe merits, although the Court should not pronounce itself on whether one is required at this preliminary stage.

(1) Role of the Designated Judge [53] The amici curiae submit that the SATA scheme is fundamentally different from a judicial review as the judge may receive newevidence, including evidence and information not before the decision maker, may base their decision on information available to themregardless of whether it was before the decision maker, and may order the removal of an appellant from the SATA rather than having tosend the decision back for redetermination. The amici curiae therefore submit that the role of the designated judge in appeals under theSATA is similar to the role described in Harkat (2014), at paragraph 46, being one that is “interventionist”.

(2) Role of the Amici Curiae [54] The amici curiae argue that the constitutional norms of procedural fairness set out in Charkaoui I and Harkat (2014) are essentialin understanding their role. The amici curiae state that the wording throughout subsection 16(6) of the SATA, notably paragraphs

16(6)(

c) and 16(6)(d), clearly demonstrate a concern for procedural fairness and that Charkaoui I and Harkat (2014) clearly indicate that,for ex parte and in camera proceedings, a person must be provided with a “substantial substitute” to their right to know and answer thecase against them. In Harkat (2014), this meant a special advocate scheme combined with an interventionist judge. The amici curiaeargue that the SATA must be interpreted according to these decisions seeing as Parliament is presumed to have intended to enactlegislation in conformity with the Charter, citing Lavallee, Rackel & Heintz v.

Canada (Attorney General); White, Ottenheimer & Bakerv. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 208, at paragraphs 55–56. [55] Accordingly, the amici curiae disagree with the restraints proposed by the respondent on their roles as they are not required bythe SATA, are inconsistent with Charkaoui I and Harkat (2014), and are contrary to the order appointing them.

Instead, the amici curiaehold that they are able to cross-examine witnesses in the disclosure phase for the purpose of the merits phase and that they are able tocross-examine witnesses concerning information that was before the decision maker. They note that, should their mandate not includethese powers, they will be unable to serve as a substantial substitute for the full disclosure and full participation of the appellants in theex parte and in camera portions of the appeals.

(3) Withdrawal of Information [56] The amici curiae agree with the respondent that they and the designated judge should be provided with the withdrawninformation as well as the reasons for its withdrawal. They also submit that the Court can retain a copy of the withdrawn information as asuperior court of record.

(4) Ex Parte Hearing on the Merits [57] The amici curiae agree that the SATA allows for an ex parte and in camera hearing on the merits of the appeal pursuant toparagraph 16(6)(a). However, although the amici curiae recognize a designated judge’s authority to organize an appeal by creatingdistinct phases, they state that it ought not be regarded as a necessary feature of an appeal under the SATA as it is not always easy tomake a distinction between disclosure issues and merit issues. V. ANALYSIS A.

REVIEW AND ANALYSIS OF THE SATA [58] In order to analyze the preliminary questions in this matter, it is first essential to undertake a review of the SATA, the legislativescheme at the heart of these questions. An understanding of its legislative object, its operation, and its appeal mechanism is the compassthat will be necessary to navigate these uncharted waters. This

section will therefore address: (1) the context and legislative object of theSATA; (2) the operation of the SATA; and (3) the appeal provisions of the SATA; the first issue providing the information necessary toconduct a contextual and purposive analysis of the latter two throughout this decision. Indeed, this is in accordance with the modernapproach to statutory

interpretation endorsed by the Supreme Court of Canada on numerous occasions. See Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418 (Rizzo), at paragraph 21 and R. v. Rafilovich, 2019 SCC 51,442 D.L.R. (4th) 539 (Rafilovich), at paragraph 97, the latter offering a recent concise

summary of the state of the law on this point: The issue on appeal is one of statutory

interpretation. Accordingly, the analysis is to be guided by the modern approach to statutoryinterpretation: “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously withthe scheme of the Act, the object of the Act, and the intention of the Parliament” (E. A. Driedger, Construction of Statutes (2nd ed.1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). [59] This approach will permit us to better understand what the designated judge is called upon to do when an appeal is initiated underthe SATA and will help contextualize the mandate of the amici curiae.

(1) Context and Legislative Object of the SATA [60] Although the SATA does not include a

summary or a

preamble stating its legislative object, its general object of balancingindividual rights and freedoms with Canada’s national security interests relating to air travel is manifest when one analyzes: the title ofthe Act, the

summary and

preamble of its enacting and amending omnibus legislations, the legal context at the time of its enactment, andthe pertinent legislative debates in both chambers of Parliament. [61] After nearly a decade of operating the Passenger Protection Program (better known as the “no-fly list”) via the Aeronautics Act,R.S.C., 1985, c. A-2, Parliament sought to create a specific legislative regime for the operation of this program (affidavit of Lesley Soper,at paragraph 5).

Accordingly, the Anti-Terrorism Act, 2015, S.C. 2015, c. 20, an omnibus legislation that significantly amended andrestructured national security law in Canada, created the SATA in 2015. Following the 2015 federal election, the 42nd Parliament ofCanada enacted the National Security Act, 2017, S.C. 2019, c. 13, which received royal assent on June 21, 2019.

Once again, thisomnibus legislation sought to redraw the legal landscape regarding national security in Canada and accordingly amended an array oflegislation, including the SATA. [62] The SATA’s objective of protecting Canada’s national security interests and the safety of Canadians in relation to air travel isevidenced in its

short title: “Secure Air Travel Act” as well as its legislative title: “An Act to enhance security relating to transportationand to prevent air travel for the purpose of engaging in acts of terrorism.” Moreover, the

summary of the Anti-Terrorism Act, 2015confirms this object, noting the following: Anti-terrorism Act, 2015, S.C. 2015, c. 20

Part 2 enacts the Secure Air Travel Act in order to provide a new legislative framework for identifying and responding to persons who may engage in

an act that poses a threat to transportation security or who may travel by air for the purpose of committing a terrorism offence. That Act authorizes the Minister of Public Safety and Emergency Preparedness to establish a list of such persons and to direct air carriers to take a specific action to prevent the commission of such acts. In addition, that Act establishes powers and prohibitions governing the collection, use and disclosure of information in support of its administration and enforcement.

That Act includes an administrative recourse process for listed persons who have been denied transportation in accordance with a direction from the Minister of Public Safety and Emergency Preparedness and provides appeal procedures for persons affected by any decision or action taken under that Act. That Act also specifies punishment for contraventions of listed provisions and authorizes the Minister of Transport to conduct inspections and issue compliance orders.

Finally, this Part makes consequential amendments to the Aeronautics Act and the Canada Evidence Act . [ 63 ] A few years later, the National Security Act, 2017 , which amended an array of legislation relating to national security, including the SATA , was passed; its overall purpose being to address concerns expressed by civil society and experts alike regarding a perceived failure of the Anti-terrorism Act , 2015 to balance national security interests with individual rights and freedoms. This is reflected in its

preamble, which stipulates the following: National Security Act, 2017 , 2019 S.C., c. 13

Preamble Whereas a fundamental responsibility of the Government of Canada is to protect Canada’s national security and the safety of Canadians; Whereas that responsibility must be carried out in accordance with the rule of law and in a manner that safeguards the rights and freedoms of Canadians and that respects the Canadian Charter of Rights and Fre edoms ; Whereas the Government of Canada is committed to enhancing Canada’s national security framework in order to keep Canadians safe while safeguarding their rights and freedoms; Whereas the Government of Canada, by carrying out its national security and information activities in a manner that respects rights and freedoms, encourages the international community to do the same; Whereas enhanced accountability and transparency are vital to ensuring public trust and confidence in Government of Canada institutions that carry out national security or intelligence activities; Whereas those institutions must always be vigilant in order to uphold public safety; Whereas those institutions must have powers that will enable them to keep pace with evolving threats and must use those powers in a manner that respects the rights and freedoms of Canadians; Whereas many Canadians expressed concerns about provisions of the Anti-terrorism Act, 2015 ; And whereas the Government of Canada engaged in comprehensive public consultations to obtain the views of Canadians on how to enhance Canada’s national security framework and committed to introducing legislation to reflect the views and concerns expressed by Canadians; Now, therefore, Her Majesty, by and with the advice an

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