r v. Canada, 2022 FC 1163

EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports . T-669-19 2022 FC 1163 Bhagat Singh Brar ( 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 and Vancouver, October 5, 14-16, 19, 20 and 22, 2020, June 16, 17, August 31, September 23 and December 7, 2021, April 19-22 and 27, 2022; Ottawa, August 10, 2022.

Security Intelligence — Secure Air Travel Act — Appeal from administrative decision made by Associate Deputy Minister and delegate (delegate) for Minister of Public Safety and Emergency Preparedness (Minister or respondent) to maintain appellant on no-fly list pursuant to Secure Air Travel Act ( SATA ), ss. 15 , 16 — Appellant’s name added to no-fly list as reasonable grounds existed to suspect that appellant would (1) engage or attempt to engage in act threatening transportation security ( SATA , s. 8(1) (a)), (2) travel by air for purpose of committing act or omission that is offence under Criminal Code ( SATA , s. 8(1) (b)(i)) — Minister maintaining appellant’s status as listed person — Appellant asking Court to order removal of his name from SATA list, to declare that SATA , ss. 8 , 9(1) (a), 15 , 16 unconstitutional — Arguing Minister’s decision unreasonable, SATA procedures violating his rights to procedural fairness — Appellant rejecting allegations of terrorism-related activities — Minister asserting decision containing rational chain of analysis, tenable on record before Court — Whether delegate’s decision reasonable based on information available — SATA , s. 16(4) requiring that appellate judge “determine whether the decision is reasonable on the basis of the information available to the judge” — Decision to list evaluated on reasonable grounds to suspect threshold, i.e. a lower standard than “reasonable and probable grounds to believe” — Totality of evidence must be considered — Procedural fairness not requiring perfect process when national security disclosure considerations involved — Here, combination of summaries, additional disclosures, amici curiae, public hearings resulting in fairness of proceedings — Delegate’s decision reasonable in reference to s. 8(1) (b)(i), (ii), but unreasonable in relation to s. 8(1) (a) — Evidence not containing any conclusion that appellant would engage or attempt to engage in act that would threaten transportation security — Nevertheless, decision to maintain appellant on no-fly list reasonable — This conclusion based on standard of reasonable grounds to suspect — Appellant’s pattern of behaviour linking him to s. 8(1) (b)(i),(ii) — Reliability, credibility of each side assessed, independent corroboration examined — Allegations meeting criteria that supported triggering of s. 8(1) (b)(i),(ii) — Appeal allowed in part.

Administrative Law — Judicial Review — Standard of Review — Secure Air Travel Act — Decision by Associate Deputy Minister and delegate (delegate) for Minister of Public Safety and Emergency Preparedness (Minister or respondent) to maintain appellant on no-fly list pursuant to Secure Air Travel Act ( SATA ), ss. 15 , 16 — Appellant’s name added to no-fly list as reasonable grounds existed to suspect that appellant would (1) engage or attempt to engage in act threatening transportation security ( SATA , s. 8(1) (a)), (2) travel by air for purpose of committing act or omission that is offence under Criminal Code ( SATA , s. 8(1) (b)(i)) — Minister maintaining appellant’s status as listed person — Appellant asking Court to order removal of his name from SATA list — Legislature not intending to apply reasonableness standard by using word “reasonableness” in SATA , s. 16(4) — Appellate standard of review applying, requiring designated judge to evaluate, based on appeal record, whether reasonable to find reasonable grounds to suspect appellant will engage in acts described in SATA , s. 8 — Designated judge having to remain cognizant that decision to list must be evaluated on reasonable grounds to suspect threshold — This standard lower than “reasonable and probable grounds to believe” — Totality of evidence must be considered — Findings must be based not on single set of facts but rather on consistent indicators — Decision must be reasonable in light of evidence available to judge.

This was an appeal from an administrative decision made by the Associate Deputy Minister and delegate (delegate) for the Minister of Public Safety and Emergency Preparedness (Minister or respondent) to maintain the appellant on the no-fly list pursuant to sections 15 and 16 of the Secure Air Travel Act ( SATA ). This appeal consisted of a multi-pronged case in which the appellant’s claims pertaining to his rights under the Canadian Charter of Rights and Freedoms and constitutional issues were addressed in a separate decision ( 2022 FC 1168 ).

The appellant’s name was included on the no-fly list in 2018, as there were reasonable grounds to suspect that he would (1) engage or attempt to engage in

an act that would threaten transportation security ( paragraph 8(1) (

a) of SATA ) and/or (2) travel by air for the purpose of committing

an act or omission that is an offence under sections 83.18 , 83.19 or 83.2 of the Criminal Code or an offence referred to in paragraph (

c) of the definition “terrorism offence” in

section 2 of that Act (subparagraph 8(1)(b)(

i) of SATA ). The appellant submitted an application for administrative recourse to be removed from the SATA list. The Minister advised the appellant of his decision to maintain his status as a listed person under SATA . In his notice of appeal, the appellant asked the Court to order the removal of his name from the SATA list and to declare that sections 8 , 15 , 16 and paragraph 9(1) (

a) of SATA are unconstitutional. More specifically, the appellant argued that the Minister’s decision was unreasonable and the procedures set out in SATA violate his common

law rights to procedural fairness, seeing as SATA deprived him of his right to know the case against him and the right to answer that case. The appellant rejected the allegation that he met someone who was a member of a militant group during his travels in Pakistan. He also denied that he was a member of the International Sikh Youth Federation, or that he planned a terrorist attack in India or elsewhere. The appellant opined that he was never granted an opportunity to meaningfully respond to what he calls “unsourced allegations” levied against him.

His primary position was that the information provided did not meet the incompressible minimum standard established by the Supreme Court in Canada (Citizenship and Immigration) v. Harkat . The appellant also submitted that the application of the reasonable grounds to suspect standard to the totality of the information available leads to the conclusion that his listing was unreasonable because the objectively discernible facts did not establish a reasonable basis upon which to suspect that he would travel by air for the purpose of committing a terrorism-related offence.

The Minister asserted that the recourse decision contains a rational chain of analysis, was tenable on the record before the Court and in the context of the applicable factual and legal context. At issue was whether the delegate’s decision was reasonable based on the information available. Held , the appeal should be allowed in part. By using the word “reasonable” in subsection 16(4) of SATA , it was not the legislature’s intent to apply a reasonableness standard, as understood in the administrative law context, to the appellate review.

Subsection 16(4) specifies that the appellate judge must “determine whether the decision is reasonable on the basis of the information available to the judge”. The SATA regime could lead to a situation where the factual foundation for the Minister’s decision is refuted during the appeal proceedings, but that new reliable and appropriate evidence received by the designated judge would be sufficient to justify a decision for an appellant to remain on the no-fly list. The rationale for a decision cannot be reviewed on a reasonableness standard when the record on appeal is no longer the same.

This analysis is reflected in Parliament’s choice in opting for an appellate scheme over a judicial review framework. The appellate standard of review is that the designated judge must determine whether the outcome of the decision under review is reasonable in light of the evidentiary record on appeal. In essence, this requires that the designated judge evaluate, based on the appeal record, whether it is reasonable to find that there are reasonable grounds to suspect the appellant will engage in the acts described in

section 8 of SATA . The legislatively prescribed standard constitutes a robust review, and is coherent with the active role a designated judge must play in a SATA appeal. In assessing whether the overall evidence is sufficient to find that the decision to list the individual is reasonable, a designated judge must remain cognizant that the decision to list must be evaluated on the reasonable grounds to suspect threshold.

The standard “reasonable grounds to suspect,” applicable in the present appeal, represents a lower standard than “reasonable and probable grounds to believe.” The totality of the evidence must be considered. Findings must not be based on a single set of facts but rather on some consistent indicators. The challenge is to analyze whether the Minister’s decision is reasonable in light of the evidence available to the judge. The determinations in this case dealt with 16 public allegations against the appellant that he was aware of.

However, there was also information in relation to some of them that could not be disclosed, partially disclosed, or summarized. Nevertheless, the appellant knew the essence of the allegations levelled against him. When national security disclosure considerations are involved in proceedings, procedural fairness does not require a perfect process. The appeal scheme in the SATA legislation reflects this reality. The concept “incompressible minimum disclosure”, used multiple times in this case, is defined as allowing the named person to receive sufficient disclosure to know and respond to the case against them.

The appellant was able to obtain information that had initially been redacted because evidence that did not meet the criteria for being deemed injurious to national security was made public through lifts and summaries. The combination of summaries, additional disclosure of information, participation of amici curiae and public hearings resulted in fairness of the proceedings. The decision of the Minister’s delegate was reasonable in reference to subparagraphs 8(1)(b)(

i) and (ii), but unreasonable in relation to paragraph 8(1)(a). The evidence presented as a whole did not contain any conclusion that the appellant would engage or attempt to engage in

an act that would threaten transportation security, as per paragraph 8(1)(a). Nevertheless, the decision to maintain the appellant on the no-fly list was reasonable. Keeping in mind that this was not a criminal matter but rather an administrative decision made in accordance with SATA , this conclusion was based on the standard of reasonable grounds to suspect. The appellant created a pattern of behaviour over time that, on the basis of reasonable reasons to suspect, linked him to subparagraphs 8(1) (b)(

i) and (ii) of SATA . On one side, the appellant denied the claims levelled against him and on the other side, there was evidence that provides conflicting and serious explanations. The reliability and credibility of each side was assessed and independent corroboration was examined. As a consequence of this thorough exercise, 11 allegations met the criteria that supported the triggering of subparagraphs 8(1) (b)(

i) and (ii). The decision of the Minister’s delegate to add the appellant’s name on the no-fly list pursuant to those subparagraphs was reasonable. However, the decision of the Minister’s delegate to add the appellant’s name on the no-fly list pursuant to paragraph 8(1) (

a) was unreasonable. Therefore, at the subsequent 90-day review, this finding was to be taken into consideration and the various boarding directions for domestic flights that could apply to listings pursuant to subsection 9(1) of SATA could be considered. STATUTES AND REGULATIONS CITED 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. 6, 7. Criminal Code , R.S.C., 1985, c. C-45, ss. 2 “terrorism offence”, 83.18, 83.19, 83.2. Federal Courts Rules , SOR/98-106 , rr. 151, 343. Immigration and Refugee Protection Act , S.C. 2001, c. 27 . Secure Air Travel Act , S.C. 2015, c. 20, s. 11, ss. 8 , 9 , 15 , 16 , 20 . CASES CITED APPLIED:

Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33; Canada (Minister of Citizenship and Immigration)v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220. CONSIDERED: Brar v. Canada (Public Safety and Emergency Preparedness), 2021 FC 932; Dulai v. Canada (Public Safety and EmergencyPreparedness), 2021 FC 933; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Brar v.

Canada(Public Safety and Emergency Preparedness, 2020 FCA 129 , 2020 FC 729, [2020] 4 F.C.R. 557; Almrei (Re), 2009 FC 1263,[2011] 1 F.C.R. 163; Jaballah (Re), 2010 FC 79, [2011] 2 F.C.R. 145; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110. REFERRED TO: Brar v. Canada (Public Safety and Emergency Preparedness), 2022 FC 1168; Dulai v. Canada (Minister of Public Safety andEmergency Preparedness), 2022 FC 1164. AUTHORS CITED National Security and Intelligence Committee of Parliamentarians. Special report into the allegations related to the Prime Minister’sofficial visit to India in February 2018, December 3, 2018.

APPEAL from an administrative decision made by the Associate Deputy Minister and delegate for the Minister of Public Safety andEmergency Preparedness to maintain the appellant on the no-fly list pursuant to sections 15 and 16 of the Secure Air Travel Act. Appealallowed in part. APPEARANCES Karin Blok and Eric Purtzki for appellant. Helen Park, Courtenay Landsiedel, Stéphanie Morin, Nathalie Benoit and Michelle Lutfy for respondent. Gib van Ert and Colin Baxter as amici curiae. SOLICITORS OF RECORD Fowler and Blok Criminal Defense Lawyers, Vancouver, for appellant. Deputy Attorney General of Canada for respondent.

Gib van Ert and Colin Baxter as amici curiae. The following are the reasons for judgment and judgment rendered in English by Noël J.: Table of Contents Paragraphs I. Overview 1 II. Background 13 A. Facts in Mr. Brar’s Appeal 13 B. Procedural history covering both appeals (Mr. Brar and Mr. Dulai) 19 III. Legislation 21 IV. The public evidence presented by the Appellant 25 V. The public evidence presented by the Minister 46 VI. The public submissions of the Appellant 61 VII. The public submissions of the Minister 71 VIII. Issue 76 A. The applicable standards 78

(1) Standard of review 78

(2) The threshold standard 85

B. Conflicting evidence has to be assessed on the basis of the balance of probabilities 90 C. The Minister’s decision under review 96 D. The scope of the public evidence resulting from the appeal proceedings 99 E. Legal principles related to the disclosure of national security information in judicial civil and administrative proceedings 110 IX. Finding resulting from the appeal proceedings 118 X. The Prime Minister’s trip to India 129 XI. The finding on whether the decision was reasonable under paragraph 8(1)(

a) of the SATA 134 XII. The findings on whether the decision was reasonable under subparagraphs 8 (1)(b)(

i) and (ii) of the SATA 137 XII. The SATA needs improvement 142 XIII. Conclusion 143 JUDGMENT in T-669-19 Annex A Annex B I. Overview [Back to table of contents ] [ 1 ] This appeal consists of a multi-pronged case in which the Appellant’s claims that pertain to the reasonableness of the Minister’s decision and his claims relating to sections 6 and 7 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 ), are addressed in separate decisions; this judgment and reasons deal with reasonableness and a concurrent decision addresses the constitutional issues ( Brar v. Canada (Public Safety and Emergency Preparedness) , 2022 FC 1168 ). Confidential reasons on the reasonableness of the Minister’s decision, which are complementary to this decision, include specific findings on this appeal and its companion case (see Dulai v. Canada (Minister of Public Safety and Emergency Preparedness) , 2022 FC 1164 ).

These are the first appeals filed pursuant to the Secure Air Travel Act , S.C. 2015, c. 20, s. 11 ( SATA ) since its enactment in 2015. The parties to these appeal proceedings have contested parts of the legislation which therefore requires that the Court examines the legislation and provides clarity and guidance where deemed necessary. [ 2 ] This judgment and reasons (hereinafter “the decision”) address the appeal of an administrative decision dated December 21, 2018, and made by Mr.

Vincent Rigby, Associate Deputy Minister and delegate (delegate) for the Minister of Public Safety and Emergency Preparedness (the Minister or Respondent), to maintain Mr. Bhagat Singh Brar (Mr. Brar or Appellant) on the no-fly list pursuant to sections 15 and 16 of the SATA . [ 3 ] The Appellant remains a listed individual pursuant to

section 8 of the SATA given the Minister’s delegate’s decision to deny his application for administrative recourse under

section 15 of the SATA , by which the Appellant had sought to have his name removed from the list. [ 4 ] The Minister’s delegate made the decision on the basis that he had reasonable grounds to suspect that the Appellant would 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 ( Criminal Code )] 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 ). [ 5 ] As a result, the Appellant filed a statutory appeal of the Minister’s delegate’s decision to dismiss his administrative recourse application, as permitted by

section 16 of the SATA . In his appeal, Mr. Brar submits that the procedure set out in the SATA for determining the reasonableness of the Minister’s delegate’s decision whether to designate him as a listed person, and thereafter maintain that designation, violates his common law right to procedural fairness because it deprives him of the right to know the case against him and the right to answer that case. [ 6 ] As mentioned above, another appeal brought by Mr. Parvkar Singh Dulai (Mr. Dulai or, together with Mr.

Brar, Appellants), raises similar issues regarding the reasonableness of the Minister’s decision in addition to constitutional matters. [ 7 ] Confidential reasons complementary to this judgment address classified evidence made available to assist me, the designated judge, in rendering a judgment in both appeals. This decision, which is contained in Annex C, is not publicly available as it contains information that, if revealed, would injure national security or endanger the safety of any person.

This tension between the rights of individuals and the collective interests in security was discussed at length in two related decisions published in October 2021 ( Brar v. Canada (Public Safety and Emergency Preparedness), 2021 FC 932 ( Brar 2021 ) and Dulai v. Canada (Public Safety and Emergency Preparedness) , 2021 FC 933 ( Dulai 2021 )).

[8] In those decisions, I considered whether disclosing the redacted information and other evidence adduced during ex parte and incamera hearings would be injurious to national security or endanger the safety of any person. Upon finding in the affirmative withrespect to certain information, I then asked if the protected information and other evidence could be disclosed to the Appellant in theform of a

summary or otherwise in a way that would not jeopardize national security or endanger the safety of any person. The outcomeof those decisions was that some redactions were confirmed by the Court, some were fully or partially lifted, and the informationunderneath other redactions was summarized. The delicate balance between protecting sensitive information and the right of the personto know the case against them is not uncommon in national security matters, as demonstrated by Charkaoui v.

Canada (Citizenship andImmigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui I) [at paragraphs 55 and 58]: Confidentiality is a constant preoccupation of the certificate scheme. The judge “shall ensure” the confidentiality of the informationon which the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to nationalsecurity or to the safety of any person: s. 78(b).

At the request of either minister “at any time during the proceedings”, the judge “shallhear” information or evidence in the absence of the named person and his or her counsel if, in the opinion of the judge, its disclosurewould be injurious to national security or to the safety of any person: s. 78(e).

The judge “shall provide” the named person with asummary of information that enables him or her to be reasonably informed of the circumstances giving rise to the certificate, but thesummary cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person:s. 78(h). Ultimately, the judge may have to consider information that is not included in the

summary: s. 78(g). In the result, the judgemay be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see.The named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in aposition of having no idea as to what needs to be said. … More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure ofinformation to the affected individual.

In Chiarelli, this Court found that the Security Intelligence Review Committee could, ininvestigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclosedetails of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that caseincluded the state’s “interest in effectively conducting national security and criminal intelligence investigations and in protecting policesources” (p. 744).

In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of allthe information on which the Minister was basing his or her decision, “[s]ubject to privilege or similar valid reasons for reduceddisclosure, such as safeguarding confidential public security documents” (para. 122). And, in Ruby v. Canada (Solicitor General), [2002]4 S.C.R. 3, 2002 SCC 75, the Court upheld the

section of the Privacy Act, R.S.C. 1985, c. P-21, that mandates in camera and ex parteproceedings where the government claims an exemption from disclosure on grounds of national security or maintenance of foreignconfidences. The Court made clear that these societal concerns formed part of the relevant context for determining the scope of theapplicable principles of fundamental justice (paras 38-44). [9] Reasons dealing with the SATA were also issued in July 2020 (Brar v. Canada (Public Safety and Emergency Preparedness),2020 FCA 129 , 2020 FC 729, [2020] 4 F.C.R. 557 (Brar 2020)).

They answered a number of questions raised by the partiesand explained at length the process to be followed. [10] In these judgment and reasons, to which the complementary and confidential reasons in Annex C add, I assess the overallevidence presented by both parties in relation to whether there are reasonable grounds to suspect that the listed person, in this case, Mr.Brar, will engage or attempt to engage in

an act that would threaten transportation security, or travel by air to commit certain terrorismoffences. [11] In order to ensure fairness, I appointed two amici curiae (Amici) with the mandate of representing the interests of the Appellant. Iexpand on the impact of their role in the concurrent decision on the constitutional issues. [12] For the following reasons this appeal is allowed in part. II. Background [Back to table of contents] A. Facts in Mr. Brar’s Appeal [Back to table of contents] [13] On April 23, 2018, Mr. Brar’s name was included on the no-fly list. It was concluded that there were reasonable grounds tosuspect that he would (1) engage or attempt to engage in

an act that would threaten transportation security and/or (2) travel by air for thepurpose of committing

an act or omission that 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. [14] The following day, Mr. Brar was scheduled to take two flights that would eventually have transported him from Vancouver toToronto, but each time a written denial of boarding under the Passenger Protect Program (PPP) was issued pursuant to paragraph 9(1)(a)of the SATA. This resulted in both WestJet and Air Canada denying Mr. Brar boarding at the Vancouver International Airport on thatday. [15] On June 2, 2018, Mr. Brar submitted an application for administrative recourse to the Passenger Protect Inquiries Office (PPIO)that sought the removal of his name from the SATA list pursuant to

section 15 of the SATA. In response, the PPIO provided him with atwo-page unclassified

summary of the information supporting the decision to place his name on the SATA list. The PPIO further advisedthat the Minister would consider additional classified information when assessing his application under

section 15 of the SATA.Pursuant to subsection 15(4) of the SATA, Mr. Brar was provided with the opportunity to make written representations in response to theunclassified information disclosed to him, which he submitted to the PPIO on December 3, 2018. [16] On December 21, 2018, the Minister advised Mr. Brar of his decision to maintain his status as a listed person under the SATA.Following a review of the classified and unclassified information provided, including Mr. Brar’s written submissions, the Minister’sdelegate “concluded that there [were] reasonable grounds to suspect that [Mr. Brar would] engage or attempt to engage in

an act that

would threaten transportation security, or travel by air to commit certain terrorism offences.” [ 17 ] On April 18, 2019, Mr. Brar filed a notice of appeal with 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. Mr. Brar also asks this Court to declare that sections 8 , 15 , 16 and paragraph 9(1) (

a) of the SATA are unconstitutional and are therefore of no force and effect, or to read-in such procedural safeguards that would cure any constitutional deficiencies in the SATA . [ 18 ] More specifically, Mr. Brar argues the following as the grounds of his appeal: the Minister’s decision was unreasonable and 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. In his notice of appeal, Mr.

Brar also requested that the Respondent disclose all material related to his application for recourse, all material related to the Minister’s decision to designate him as a listed person, all material before the Minister’s delegate on the application for recourse, and all other materials relating to the Minister’s delegate decision to confirm his status as a listed person under the SATA . B. Procedural history covering both appeals (Mr. Brar and Mr.

Dulai) [Back to table of contents ] [ 19 ] Since these appeals have been initiated, several documents have been exchanged, case management conferences (both public and ex parte ) have been held , public and ex parte hearings took place in both Ottawa, Ontario, and Vancouver, British Columbia, and three decisions applicable to each case were published ( Brar 2020 , Brar 2021 and Dulai 2021 ). [ 20 ] Navigating the SATA legislation has been laborious, lengthy, and complex. The appeals required that the Appellants, counsel, Amici and this Court think about and test many areas of the law.

Due to its length, the complete judicial history of these two appeals is available at Annex A. It includes information on every procedural step taken over the last three years and reflects both parties’ dedication to these matters, and the great level of detail with which each step was handled. III. Legislation [Back to table of contents ] [ 21 ] As part of the reasons in Brar 2020 , it was essential to review and analyze the SATA (see Brar 2020 , at paragraphs 58 to 89, in particular with respect to the appeal provisions at paragraphs 80 to 89).

It is not necessary to duplicate what has already been written except to note that the SATA sets out specific rules governing the appeal process. [ 22 ] Subsection 16(6) of the SATA reads as follows: Secure Air Travel Act , S.C. 2015, c. 20, s. 11 Appeals 16 (1) … … Procedure

(6) The following provisions apply to appeals under this section: (

a) at any time during a proceeding, the judge must, on the request of the Minister, hear information or other evidence in the absence of the public and of the appellant and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person; (

b) the judge must ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person; (

c) throughout the proceeding, the judge must ensure that the appellant is provided with a

summary of information and other evidence that enables them to be reasonably informed of the Minister’s case but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed; (

d) the judge must provide the appellant and the Minister with an opportunity to be heard; (

e) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence; (

f) the judge may base a decision on information or other evidence even if a

summary of that information or other evidence has not been provided to the appellant; (

g) if the judge determines that information or other evidence provided by the Minister is not relevant or if the Minister withdraws the information or evidence, the judge must not base a decision on that information or other evidence and must return it to the Minister; and (

h) the judge must ensure the confidentiality of all information or other evidence that the Minister withdraws. [ 23 ] In

summary,

section 16 of the SATA establishes the role of the designated judge in an appeal and sets out how information related to national security must be handled. The designated judge is given the responsibility to ensure the confidentiality of sensitive information (paragraph 16(6)(b)). At the same time, if the protection of information is justified on national security grounds, the designated judge must provide the appellant with summaries of this redacted information. This will reasonably inform the appellant of the Minister’s case against them, but does not include anything that, in the judge’s opinion, would be injurious to national security or

endanger the safety of any person ( paragraph 16(6) (c)). This is a challenging task. The objective is to be as informative as possible while respecting the national security parameters enunciated in the SATA appeal scheme. As articulated in Brar 2020 , at paragraph 112: …. 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.

A designated judge must feel satisfied that the disclosure (through summaries or by other means) is, in substance, sufficient to allow an appellant to be “reasonably informed” ( paragraph 16(6) (e)) of the case made against them and be able to present their side of the story, at the very least via the assistance of a substantial substitute ( Harkat (2014) , at paragraphs 51–63 and 110).

Only then will the designated judge have the necessary facts and law to render a fair decision. [ 24 ] In addition to determining if disclosing the redacted information would be injurious, the designated judge must also establish whether any additional evidence introduced during the ex parte and in camera hearings is reliable and appropriate, and whether it can be communicated to the appellant in the form of summaries or otherwise. The judge must then ascertain if the appellant is reasonably informed of the Minister’s case. IV.

The public evidence presented by the Appellant [Back to table of contents ] [ 25 ] In an affidavit dated January 27, 2022, Mr. Brar provides information about himself, his family, religion, beliefs, business, volunteer activities, travel history and how being placed on the SATA list has affected his and his family’s life. [ 26 ] He rejects the allegation whereby he would have met with someone he knew was the leader, or a member, of Lashkar-e-Tayyiba or any other militant group during his travels in Pakistan. [ 27 ] While Mr.

Brar supports an independent Sikh homeland (Khalistan), he says he does not support violence or an armed movement as a means of achieving a Khalistan state. He mentions having contributed to Sikhs for Justice, an organization dedicated to supporting the creation of an independent homeland; however, he asserts that he does not provide financial support to the movement. Rather, he works with the community to organize protests within Canada in support of these issues.

He also affirms having worked to contact politicians and supported letter writing campaigns in the past aimed at supporting Khalistan and holding the Government of India accountable for the “atrocities it commits against those who express support for Khalistan” (affidavit of Mr. Brar, January 27, 2022, at paragraph 25). [ 28 ] Mr. Brar denies being a member of the International Sikh Youth Federation (ISYF), of which his father was once a leader. According to Mr. Brar, his father “is not the leader of the ISYF and to [his] knowledge he has not been involved with the ISYF since 2002” (affidavit of Mr.

Brar, January 27, 2022, at paragraph 28). He states that he is not, nor has he ever been, knowingly associated with Sikh extremism. Mr.

Brar says that he has no connection to Canadian or internationally-based Sikh extremists, as alleged by CSIS [Canadian Security Intelligence Service] (revised appeal book, at page 9). [ 29 ] In reference to allegations that he and Gurjeet Singh Cheema had been planning an India-based terrorist attack, and that during his visit to Pakistan in 2015 he planned for the attack at the behest of the Pakistan Inter-Services Intelligence Directorate (Pak ISI) by making arms and ammunition available in India, Mr.

Brar replies that he has no association with Gurjeet Singh Cheema and has never planned a terrorist attack, either in India or elsewhere. He affirms never having done anything at the behest of the Pak ISI and never having made arms or ammunition available to anyone anywhere (affidavit of Mr. Brar, January 27, 2022, at paragraphs 31–33). [ 30 ] Mr. Brar rejects the allegation that while in Pakistan in 2015 he planned for an attack in India and indoctrinated two Punjab (Indian) based Sikh youths and motivated them to conduct terrorist acts.

He refutes what the two Sikh youths allegedly said about him, notably that he had visited India in the recent past and imparted theoretical training to them in the handling of arms including AK rifles. Mr. Brar says that he does not know these two Sikh youths, and therefore did not indoctrinate them. He also affirms that he did not provide anyone with arms or ammunition, or provide theoretical training in the handling of such arms. Moreover, Mr. Brar declares that he has not been in India since he immigrated to Canada in 1987. [ 31 ] Mr.

Brar says that contrary to allegations against him, he has never cooperated with the Pak ISI to thwart community outreach or reconciliation efforts by the Government of India. He is also not, and never has been, a member, let alone the President of the ISYF’s youth wing in Canada or elsewhere. His understanding is that the ISYF no longer exists and has not existed for many years. [ 32 ] Mr.

Brar denies the allegation that he is collecting funds from members of the Canadian Sikh community in order to renovate some Gurdwaras in Pakistan or that he has been diverting a major part of the funds for anti-India activities. The only times he recalls having sent money overseas in the last ten years was for advertising and Google ads payment for his company, Yellow Car Rental. [ 33 ] While Mr. Brar acknowledges knowing and doing business with Mr. Dulai, he is not aware of any connection that Mr.

Dulai may have to terrorism or terrorist entities and does not believe these allegations to be true, otherwise he would not associate with him. [ 34 ] Mr. Brar does not hide the fact that he has openly supported the worldwide movement to hold the Government of India accountable for the treatment of Mr. Johal and the denial of his basic human rights. However, he indicates that he does not know, nor has he ever met, Jagtar Singh Johal. He says he never collected any funds on Mr. Johal’s behalf, nor sent his father funds for any purpose except for his open-heart surgery in 2018. Mr.

Brar says he paid for the surgery and medication, but those funds were paid directly to the hospital and not to his father. [ 35 ] In response to the allegation that he is a Canada-based Sikh extremist who has been engaged in, and will continue to be engaged in terrorist activities, particularly fundraising in support of terrorist attacks overseas, promoting extremism, including the radicalization of youth, with the aim of achieving Khalistan independence, and attack planning and facilitation, including weapons procurement, to conduct attacks in India, Mr.

Brar replies that he has never engaged in, or facilitated terrorist-related activities within or outside of Canada. He has never been a part of a terrorist organization or facilitated such activities. He has never engaged in fundraising in support of terrorist attacks overseas or anywhere. He has never promoted extremism. He has never engaged in or promoted the radicalization of youth.

[ 36 ] While he supports an independent Khalistan, Mr. Brar claims he has never engaged in extremist activities in support of an independent Khalistan. He has never planned or facilitated attacks in India by means of weapons procurement or otherwise and has never contributed financially, either directly or indirectly, to extremist movements. [ 37 ] Mr. Brar refutes the allegation that he was supposed to travel to Fort Lauderdale on April 24, 2018. Rather, he states that the intention was to depart Vancouver for Toronto and stay there.

He says he purchased his flight with the assistance of a website called skiplagged.com . The website searches for connecting flights with stopovers in the intended destination that are cheaper than fares for direct flights. When he purchased the ticket, it was cheaper to purchase a flight to Fort Lauderdale, with a connection in Toronto, than it was to fly to Toronto alone. Therefore, he purchased that flight with the intention of disembarking in Toronto and not catching the connecting flight. [ 38 ] Mr.

Brar acknowledges that he had regular interactions with CSIS personnel throughout his childhood and until his father left Canada in 1991. However, based on these talks, he never got the impression that he was the subject of an investigation. [ 39 ] Mr. Brar believes he was first contacted by a CSIS agent, as an adult, in the mid-1990s when he lived in Brampton. After that first contact, various CSIS agents would come speak to him to gather information about his community. Mr. Brar was asked and agreed to work with CSIS on one occasion, but the agent never followed up. Mr.

Brar estimates that between the mid-1990s and 2018, CSIS agents approached him between 15 to 20 times. [ 40 ] In his affidavit, Mr. Brar also details his last encounter with CSIS, which took place in 2018 when he came back from Pakistan. He says he was pulled out for a secondary customs inspection, cleared, and then a supervisor indicated another agency was waiting to talk to him. When the Customs supervisor confirmed that it was a CSIS agent, Mr. Brar declined to meet with them. He explained that he had just gotten off a 16-hour flight and wanted to go home.

He indicated that CSIS knew where he lived and could contact him there. The next morning, he travelled to Vancouver. It was several days later, when he was attempting to fly back to Ontario from Vancouver, that he was denied boarding. [ 41 ] Mr. Brar mentions that while he was in Vancouver in April 2018, someone who identified himself as being a CSIS agent named Norman Lau attended his home and gave his business card to his wife. Upon his return to Ontario, Mr. Brar contacted Mr. Lau and told him that he had been denied boarding in Vancouver. Mr. Lau replied that he did not know why and directed Mr.

Brar to the application for recourse. Mr. Lau also inquired about how the media managed to publish a copy of Mr. Brar’s passport photo and visa. Mr. Brar explained that he did not know. He affirms this was the last contact he had with anyone he knows to have been working with CSIS. [ 42 ] Mr. Brar asserts that being placed on the no-fly list has had a tremendous physical, psychological and financial effect on him. He owns and manages a business with branches in Ontario and British Columbia and his intention was to expand into other provinces by 2019 (Calgary, Edmonton, Montréal). Because of his listed status, Mr.

Brar had to abandon those plans for the time being, which resulted in significant financial losses. [ 43 ] Moreover, Mr. Brar states that he was the target of various news agencies and reporters in Canada who have written about him and his business in national newspapers. Reporters like Tom Blackwell and columnist Tarek Fateh have publicly called him a terrorist based on the allegations against him. Because he is involved in the community on the frontlines, this has hurt his image. Mr.

Brar says that Google searches for his business or personal name lead to negative stories that are readily available in the public domain. He alleges that CSIS agents have been going to his family and friends, “feeding them lies, quoting Indian media and telling them that [he] will be arrested and deported to India in the near future.” He says that this is all very disturbing to him and deeply affects his psychological wellbeing. [ 44 ] Aside from suffering business losses, Mr. Brar mentions that he has had to travel by car from Toronto to Vancouver approximately ten times in the last four years.

Where a normal air ticket costs around $400 – $500, he has had to spend between $7 000 – $10 000 for each road trip, in addition to having to take someone with him every time he travels. He says it takes three to four days each way, compared to four or five hours when he travels by air and each trip is three weeks to a month long. He deplores the fact that he has had to miss many functions, which he was to attend with family and friends, as he cannot travel in the winter because of the road conditions. [ 45 ] In addition to his personal affidavit, Mr. Brar filed an affidavit from Dongju Zhao on January 31, 2022.

This affidavit includes a number of documents addressing the legality of self-determination for Sikh peoples, the reliability of Indian media sources, the prevalence of torture in Indian police custody, the banning of Indian officials from Canadian and international Gurdwaras, and Prime Minister Trudeau’s trip to India in February 2018. The affidavit also includes the following:

(1) A legible colour copy of the News18

Article referenced in the unclassified

summary and memorandum (Zhao Affidavit, p. 324);

(2) A May 2017 India Today News

article which states, in part, that Mann and Singh Sher were arrested with a “huge cache of arms”, and, under interrogation, they told police that they were indoctrinated by “Canada-based Sikh hardliner, Gurjivan Singh”, who arranged the arms and ammunition through his Khalistani contacts in Pakistan and “imparted them theoretical training in handling arms, including AK- 47 riles” (Zhao Affidavit, p. 334);

(3) A May 23, 2017 Sikh24 News

article noting the arrest of Mann and Sher Singh and stating that at a court appearance after their arrest, Mann Singh “seemed to have been tortured” (Zhao Affidavit, p. 340);

(4) A decision of the Court of Sh.Sarbjit Dhaliwal in Amristar, India, dated October 26, 2020 detailing the evidence led in the case against Sher and Mann Singh. While the judgment refers to evidence that “Gurjit Singh @ Gurjiwan Singh @ Baghel Singh son of Inderjit Singh, resident of village Jogi Cheema” was involved in the allegations before the court, there is no reference to Mr. Brar at any point in the 117-page judgment. In fact, the actions attributed to Mr. Brar in the unclassified

summary were, according to the evidence before the court, carried out by Gurjit Singh (Zhao Affidavit, p. 363);

(5) A screengrab of the first page of the results of a Google search for Bhagat Sing Brar (Zhao Affidavit, p. 483);

(6) A November 15, 2017 letter from NPD MP Cheryl Hardcastle to then Minister Freeland regarding Mr. Jagtar Singh Johal (Zhao Affidavit, p. 486) V. The public evidence presented by the Minister [Back to table of contents ] [ 46 ] On September 13, 2019, a first appeal book was produced in the current proceeding. A revised version of the material was filed on October 12, 2021. Public evidence that the Minister relied on to support Mr.

Brar’s inclusion on the SATA list may be found in both appeal books. [ 47 ] An affidavit dated September 12, 2019, from Lesley Soper, the Acting Director General of the National Security Directorate within the National and Cyber Security Branch at the Department of Public Safety Canada, is available at pages 22 – 30 in both the original and the revised appeal book. Her affidavit describes the PPP and the legislative framework that supports the SATA process.

It also states that the Passenger Protect Advisory Group (PPAG), which is comprised of several departments and chaired by Public Safety Canada, is responsible for determining who will be placed on the SATA list based on names and supporting information provided by its members. [ 48 ] Ms. Soper refers to the decision rendered in exigent circumstances by the delegated decision maker, on or about April 23, 2018, to place Mr. Brar on the SATA list. This was the result of information obtained from the PPAG to the effect that there were reasonable grounds to suspect that Mr.

Brar may present a threat to transportation security or seeking to travel by air for certain terrorism-related purposes. [ 49 ] The events that followed the listing of the Appellant on the SATA list are also described in the affidavit. Among others is the fact that Mr. Brar was denied boarding on two flights on April 24, 2018, pursuant to a direction under subsection 9(1) of the SATA . The decision by the Senior Assistant Deputy Minister to leave Mr. Brar’s name on the SATA list on May 10, 2018, and August 21, 2018, is also mentioned. [ 50 ] Ms. Soper’s affidavit details Mr.

Brar’s recourse application that began on May 27, 2018, when he first applied for recourse requesting that his name be removed from the SATA list. In his recourse application, Mr. Brar referred to the denial to board a flight from Vancouver to Toronto on April 24, 2018. The recourse application was received by the PPIO on June 8, 2018. [ 51 ] On August 10, 2018, the PPIO provided an unclassified

summary to Mr. Brar to allow him to be reasonably informed of the information to be relied on and to provide an opportunity for him to make submissions or present information in support of his recourse application. Mr. Brar sought extensions of time to make submissions in email correspondence with the PPIO. [ 52 ] On December 3, 2018, Mr. Brar provided written submissions and supporting documents including reference letters and information obtained from his access to information requests to government agencies. On December 18, 2018, the Minister’s delegate decided to maintain Mr.

Brar’s status as a listed person on the SATA list. [ 53 ] Ms. Soper also explains that pursuant to subsection 8(2) of the SATA , the Minister’s delegate has continued to review the SATA list every 90 days to determine whether the grounds for which Mr. Brar’s name was added to the list still existed and whether his name should remain on the list. At the time when Ms. Soper affirmed the affidavit (September 12, 2019), Mr. Brar’s name remained on the SATA list. [ 54 ] A number of documents relating to the listing of Mr. Brar are attached to Ms.

Soper’s affidavit, as are additional media reports that were not included in the case brief that was before the PPAG and the Minister’s delegate in making the decision to list and to maintain Mr. Brar on the SATA list. [ 55 ] On March 1, 2022, this Court received a supplementary public affidavit from the Minister, signed by Lesley Soper on February 25, 2022.

In this document, she provides legislative history and policy documents relating to the SATA , as well as further details about the PPP, including the processes for administrative and exigent listing, de-listing, and the operations of the Government Operations Centre (GOC). [ 56 ] Ms. Soper clarifies the circumstances surrounding the listing of Mr. Brar by stating that the recommendation to list him in exigent circumstances was approved by a delegate who was acting as Director General on April 23, 2018, the same day the request to list was presented. Mr.

Brar was subsequently denied boarding on two scheduled flights from Vancouver to Toronto on April 24, 2018. [ 57 ] Ms. Soper states that Public Safety Canada reported the first denial in an event report referred to in her September 2019 affidavit as document (ii) of Exhibit A (revised appeal book, pages 41 – 45). It is her understanding from reading the event report dated April 24, 2018, that the GOC was contacted at the time Mr. Brar tried to board the plane. A Senior Operations Officer from the GOC, acting as the

section 9 [of the SATA ] delegated decision maker, decided to deny boarding after considering the information in the case brief, the information provided by Transport Canada and Air Canada, and information provided by the nominating agency that was contacted on that day. [ 58 ] She also mentions that Public Safety Canada reported a second denial on April 24, 2018. She referred to it in her September 2019 affidavit as document (iii) of Exhibit A (revised appeal book, pages 47 – 51). It is her understanding from reading the report that the GOC was contacted at the time Mr.

Brar tried to board another flight later on that same day. A Senior Operations Officer from the GOC decided to deny boarding after considering the information in the case brief, the information provided by Transport Canada and Air Canada, and information provided by the nominating agency that was contacted again on that day. [ 59 ] Ms. Soper affirms that the PPAG recommended that Mr. Brar be maintained on the SATA list at the next meeting on May 10, 2018. The delegated decision maker, the Senior Assistant Deputy Minister of Public Safety Canada, decided to maintain Mr.

Brar’s name on the list and approved the recommendation to deny him transportation for inbound and outbound international flights and domestic flights. The PPAG recommendation and decision are referred to in document (iv) of Exhibit A to her September 2019 affidavit (revised appeal book, pages 53 – 64).

[ 60 ] Ms. Soper offered an in-person testimony at the public hearings in Vancouver on April 20, 2022. VI. The public submissions of the Appellant [Back to table of contents ] [ 61 ] Mr. Brar presented his written submissions in a document dated March 21, 2022. In the document, he highlights that despite never having been convicted of an offence in Canada or elsewhere, and despite never having been accused of involvement in terrorist- related activities of any kind, on April 23, 2018, his name was added to the no-fly list, which prohibited him from travelling by air pursuant to the SATA .

His listing has since been maintained causing him to suffer psychologically, as well as negatively affecting his family and business. [ 62 ] Mr. Brar is of the opinion that he was never granted an opportunity to meaningfully respond to what he calls “unsourced allegations” levied against him because he believes

section 20 of the SATA prohibits identification of individuals who are listed and, by necessary implication, the reasons for their listing. His primary position is that the information provided, in the circumstances of this case, does not meet the incompressible minimum standard established by the Supreme Court of Canada (S.C.C.) in Canada (Citizenship and Immigration) v. Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33 ( Harkat ) as being required to satisfy the requirements of procedural fairness and compliance with

section 7 of the Charter . The failure to provide any information, even in

summary form, regarding the source(

s) of the allegations against the Appellant leaves him unable to meaningfully challenge the credibility and reliability of that information. [ 63 ] Furthermore, Mr. Brar claims that while classified information was disclosed to the Amici , who are permitted to make ex parte submissions on the merits, this is of no consolation because the Amici , having seen the redacted information, are unable to effectively communicate with the Appellant in order to obtain information from him that would allow them to challenge its reliability. Mr.

Brar maintains that, in accordance with Harkat , much of the information relied upon by the Minister must be withdrawn, or a stay of proceedings must be entered. If the information is withdrawn, there remains no basis upon which the Minister’s decision can be sustained. Even if the information is not withdrawn, Mr. Brar believes that the decision to place his name on the list, and to maintain his listing, is unreasonable.

He stresses that the reasonableness of the Minister’s decision only arises if the Court concludes that the information disclosed to the Appellant satisfies the incompressible minimum standard. [ 64 ] Mr. Brar submits that the application of the reasonable grounds to suspect standard to the totality of the information available leads to the conclusion that his listing is unreasonable because the objectively discernible facts do not establish a reasonable basis upon which to suspect that he will travel by air for the purpose of committing a terrorism-related offence. [ 65 ] Mr.

Brar argues that there are no objectively discernible facts capable of supporting the assertion that he is funding terrorism- related activities, or that he is a member of a terrorist organization, facilitates terrorist activities or knowingly associates with individuals involved in terrorism, or that he was involved in planning an India-based terrorist attack. Mr. Brar has submitted what he believes to be credible and corroborated information in response to what he qualifies to be “baseless, uncorroborated, unsourced allegations” contained in the case brief.

He states that some of the information appears to have been disavowed, for undisclosed reasons, and none of the information can be subject to scrutiny with the benefit of any insight he may have as to the reliability or credibility of the sources. [ 66 ] Mr. Brar argues that although the Court may consider information undisclosed to him, it must do so with the following caveats in mind. The reasonable suspicion standard is robust and must be applied in keeping with the competing interests at stake in the SATA context.

It requires objectively discernible facts, and not vague suspicions reported by persons or organizations of unknown reliability and credibility. [ 67 ] Mr. Brar claims that many of the allegations against him are devoid of detail and consequently he can do little more than offer a bare denial of them. He cannot challenge the credibility or reliability of the allegations because the sources have not been disclosed.

However, he states that there is independent information that raises serious concerns as to the reliability and credibility of the sources of much of the information regardless of who or what those sources are (by way of example, he references allegations of torture and mistreatment, and that actions attributed to Mr.

Brar in the case brief were—according to the evidence led before the Court of Sh.Sarbjit Dhaliwal in Amristar, India, on October 26, 2020—attributed to someone else (Gurjiwan Singh/Gurjit Singh)). [ 68 ] While he cannot say with certainty because the sources of allegations have not been disclosed to him, Mr. Brar believes that the factual lead up to his listing may be significant to an assessment of the allegations levied against him. Indeed, through his work with the Ontario Gurdwara Committee (OGC), Mr.

Brar became aware that members of the Government of India and consulate officials attended Gurdwaras and collected information about people who were openly expressing support for Khalistan. Because of the information collected, people were having visas denied or cancelled by the Indian Consulate. In response, the OGC instituted a ban in December 2017 against members of the Indian Consulate attending Gurdwaras in their official capacity. The “Consulate Ban,” as it became known, was communicated through a press release in early January 2018, and Mr. Brar was listed as a contact.

In February 2018, Prime Minister Trudeau visited India where the Punjab Chief Minister Amarinder Singh allegedly provided a list of “Canada-based” supporters of Khalistan and urged him to “initiate stern action against such elements.” Indian media have reported that both Mr. Brar and Mr. Dulai’s names were on the list. It was only after the Prime Minister’s trip to India, and only after he was allegedly provided a list by a member of the Indian Government with Mr. Brar’s name on it, that the Appellant became a SATA nominee. [ 69 ] Mr.

Brar states that the final point that must be made in assessing the reasonableness of the Minister’s delegate’s decision is the tendency in the case briefs to equate support for Sikh self-determination, sometimes expressed as the desire for an independent Sikh homeland — Khalistan—with extremism or terrorism. To the extent that expressing support for Khalistan is equated with being a terrorist or supporting terrorism, the information contained within the case briefs must be rejected outright.

Just as not all Quebec, Irish or Basque separatists are terrorists, not all those who support Sikh self-determination support violence as a means of achieving that end. Mr. Brar supports an independent Sikh homeland. He is vocal about his support and argues that voicing support for Khalistan is a constitutionally protected form of expression in Canada. He submits that the means by which he seeks to support this goal are non-violent and not extremist.

He engages in activism by bringing attention to human rights abuses in India, advocating for a referendum on Khalistan and contributing to Sikhs for Justice by organizing protests in Canada. While Mr. Brar supports Khalistan, he affirms that he is not a terrorist.

[ 70 ] In addition to presenting the above submissions in writing, Mr. Brar presented them in person and orally at the hearing in Vancouver in April 2022. VII. The public submissions of the Minister [Back to table of contents ] [ 71 ] The Minister presented his written submissions in a document entitled “Memorandum of Fact and Law,” dated April 11, 2022 in which he requests an order that this appeal be dismissed and that Mr. Brar’s name be maintained on the SATA list.

The Minister argues that SATA proceedings are procedurally fair and consistent with sections 6 and 7 of the Charter and that the recourse decision is reasonable and justified on the evidence and the law. [ 72 ] In the present decision, I shall focus my efforts on the submissions relating to the reasonableness of the Minister’s decision. The Minister’s submissions supporting the argument that SATA proceedings do not infringe on

section 6 rights and are procedurally fair and consistent with

section 7 of the Charter are available in the decision dealing with the constitutional questions, issued concurrently. [ 73 ] In his submissions, the Minister raises questions about the standard of review. He acknowledges the Court’s obligation to ensure a fair appeal process and agrees that this requires that the Court play a robust, interventionist and gatekeeper function. However, the Minister submits that this function does not extend to the Court conducting a “correctness review” or an inquisitorial, de novo determination of whether there are “reasonable grounds to suspect” the person will engage or attempt to engage in

an act that will threaten transportation security or travel by air for the purpose of committing a terrorist act or omission. While the wording of subsection 16(4) of the SATA contemplates that the record before the judge on appeal may be different, the Minister is of the opinion that reasonableness is still the review standard that must be applied. Therefore, the focus of the reasonableness review must be on the decision actually made by the decision maker, including the reasoning process and outcome. [ 74 ] The Minister asserts that the recourse decision is rational and tenable.

He submits that the reasoning for the recourse decision as set out in the memorandum dated December 18, 2018 specifically addresses the contradictions between Mr. Brar’s assertion that he has never facilitated terrorist-related activities or been involved with Sikh extremists with information that demonstrates a pattern of involvement with Sikh extremism and terrorist entities. The reasoning contains a rational chain of analysis, is tenable on the record before the Court and in the context of the applicable factual and legal context.

For these reasons, the Minister believes that the recourse decision to maintain Mr. Brar on the SATA list is reasonable. [ 75 ] Both counsel for the AGC and one of the Amici made submissions on the incompressible minimum disclosure at the hearing in Vancouver in April 2022. The AGC counsel argued that when applied to the facts, both ex parte and open evidence met the reasonable grounds to suspect threshold and were consistent with Harkat . The Amici , for their part, claimed to have specifically identified undisclosed allegations and evidence that, in their opinion, were within the incompressible minimum.

They believe that both appeals still contain allegations and evidence to which the Appellants are unable to respond, instruct their counsel on, or even assist the Amici in their endeavours by providing them with information. VIII. Issue [Back to table of contents ] [ 76 ] The issue raised in this appeal is as follows: 1.

Is the Minister’s delegate’s decision of December 21, 2018, reasonable based on the information available? [ 77 ] The SATA appeal proceedings (section 16) require the designated judge to evaluate the evidence presented during the public and ex parte and in camera hearings, the evidence presented by the Appellant during the public hearings, and the Amici ’s evidence. Thereafter, the designated judge must decide whether the decision to keep Mr. Brar’s name on the no-fly list is reasonable. A. The applicable standards [Back to table of contents ]

(1) Standard of review [Back to table of contents ] [ 78 ] The SATA provides at subsection 16(2) that a listed person who has been denied transportation as a result of a direction made under

section 9 may appeal a decision referred to in

section 15 to a judge within 60 days after the day on which the notice of the decision referred to in subsection 15(5) is received. Moreover, the statute mandates that if an appeal is made, the judge must, without delay, determine whether the decision to list the appellant is reasonable on the basis of the information available to the judge (subsection 16(4)). [ 79 ] As outlined above, the Minister submits that based on subsection 16(4) of the SATA , the decision should be reviewed on a reasonableness standard.

For his part, the Appellant submits that although the legislation provides for a review on the reasonableness standard, it is not the traditional reasonableness review conducted in a judicial review context. Rather, the intent of the SATA scheme is for an enhanced and robust role of the judge. [ 80 ] As explained by the S.C.C. in Vavilov [ Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 ( Vavilov )], “where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision .… Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute” ( Vavilov , at paragraph 37 ). [ 81 ] I do not accept the Minister’s argument that since the word “reasonable” appears in the subsection 16(4) of the SATA , the legislature intended that a reasonableness standard, as understood in the administrative law context, apply to the appellate review.

That standard would entail that “the reviewing court must consider only whether the decision made by the administrative decision maker— including both the rationale for the decision and the outcome to which it led—was unreasonable” ( Vavilov , at paragraph 83 ). However, the SATA [at subsection 16(4) ] specifies that the appellate judge must “determine whether the decision is reasonable on the basis of the information available to the judge ” [emphasis added]. Indeed, the SATA allows for fresh evidence to be presented on appeal. As a

result, a designated judge hearing a SATA appeal may be of the view that the Minister’s rationale, based on the information that was before him, is thoroughly unreasonable even though the judge may agree that the outcome is reasonable based entirely on the fresh evidence presented in the appeal.

Put differently, the SATA regime could lead to a situation where the factual foundation for the Minister’s decision is refuted during the appeal proceedings, but that new reliable and appropriate evidence received by the designated judge would be sufficient to justify a decision for an appellant to remain on the no-fly list. The rationale for a decision cannot be reviewed on a reasonableness standard when the record on appeal is no longer the same.

This analysis is reflected in Parliament’s choice in opting for an appellate scheme—which is less concerned with the rationale—over a judicial review framework. [ 82 ] To the extent that the Respondent’s position is that the appropriate appellate standard of review is essentially an enhanced reasonableness standard, I cannot agree. As the S.C.C. expressed in Vavilov , what is reasonable in a given situation will certainly depend on the constraints imposed by the legal and factual context of the particular decision under review (paragraph 90).

As I have explained before, while a designated judge hearing a SATA appeal has a robust role to play, this robust role in conducting the proceedings does not translate into how the decision is reviewed. [ 83 ] Considering the text of subsection 16(4) in conjunction with the S.C.C.’s guidance in Vavilov , the appellate standard of review prescribed by statute is that the designated judge must determine whether the outcome of the decision under review— effectively the listing of the individual pursuant to

section 8 of the SATA—is reasonable in light of the evidentiary record on appeal. In essence, this requires that the designated judge evaluate, based on the appeal record, whether it is reasonable to find that there are reasonable grounds to suspect the Appellant will engage in the acts described in

section 8 of the SATA . [ 84 ] Determining the applicable review standard in the SATA legislation was not a simple endeavour and I benefited from counsel’s submissions at the public hearings. I had concerns, expressed during the public hearings, that the applicable standard of review could not simply amount to “rubber-stamping” the administrative recourse decision given the scheme of the SATA , in particular the fact that I had access to more information than was before the Minister’s delegate. I am satisfied that the legislatively prescribed standard, as I have outlined it, constitutes a robust review, and is coherent with the active role a designated judge must play in a SATA appeal.

(2) The threshold standard [Back to table of contents ] [ 85 ] In assessing whether the overall evidence is sufficient to find that the decision to list the individual, in this case Mr.

Brar, is reasonable, a designated judge must remain cognizant that the decision to list must be evaluated on the reasonable grounds to suspect threshold. [ 86 ] Such a threshold implies that the evidentiary record must show grounds that are more than mere suspicion and less than belief, and it must be based on objective evidence that suggests a possibility, but not necessarily a probability. [ 87 ] The S.C.C. explained the standard of reasonable grounds to suspect in R. v. Chehil , 2013 SCC 49 , [2013] 3 S.C.R. 220 , a criminal case involving the use of drug-detection dogs.

I believe it is informative to quote a portion of that decision as such teachings, I suggest, are applicable to the SATA appeals [at paragraphs 26 –27, 29–30, 32–33] : Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances.

In Kang- Brown , Binnie J. provided the following definition of reasonable suspicion, at para. 75: The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. … Reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley , 2009 SKCA 49 , 324 Sask. R. 286, at para. 60 . A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney , at para. 50.

A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion because it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for a search: United States v. Gooding , 695 F.2d 78 (4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia , 448 U.S. 438 (1980), and Terry v. Ohio , 392 U.S. 1 (1968).

Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches. … Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the

circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p.751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he hasgood reason to believe is unreliable”.

This is self-evident. [Emphasis added; italics in original.] [88] From these reasons, “reasonable grounds to suspect,” applicable in the present appeal, represents a lower standardthan “reasonable and probable grounds to believe.” The totality of the evidence, which includes exculpatory evidence, public evidenceand the confidential evidence presented during ex parte and in camera hearings must be considered. Findings must not be based on asingle set of facts but rather on some consistent indicators, whether in the public or confidential evidence, or both.

This does not implythat there must be only one inference drawn from a set of facts; but such a determination must take into account the entirety of all theevidence presented. Overall, the threshold requires determining whether there exists a possibility that the Appellant would engage orattempt to engage in

an act that would jeopardize air transportation security or travel by air for the purpose of committing

an act oromission related to terrorism elsewhere or in Canada, rather than the probability of him doing so. [89] I may add that in an appeal where evidence was presented ex parte and in camera without the presence of the Appellant but withthe participation of Amici, such evidence must be scrutinized in order for the designated judge to depend solely on what is reliable,factual and serious. In these cases, the principles mentioned above must be applied meticulously, with vigour and consistency. B.

Conflicting evidence has to be assessed on the basis of the balance of probabilities [Back to table of contents] [90] As mentioned in the procedural history section, the Minister’s witnesses were examined and cross-examined at the first stage ofthe ex parte and in camera proceedings in the matter of Brar 2021 over six days in October 2020. The Minister submitted new evidence,including some pertaining to the injury to national security resulting from the disclosure of contested redactions and proposedsummaries, as well as some on the reliability and credibility of the redacted information.

Essentially, the initial burden of justifying whycertain information should be kept confidential was on the Minister. Following these hearings, new information was disclosed to theAppellant through lifts of redacted information and the issuance of summaries of redacted information. [91] Both parties were given the opportunity to be heard; they made written submissions and public hearings were convened to hearoral evidence.

The Minister retained the initial burden of proof, but as the Appellant presented his own evidence in response to thecharges levelled against him, some contradicting information emerged. [92] These conflicting factual viewpoints had to be assessed.

The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)certificate proceedings, which shares many of the same legal aspects as the SATA (see reasons in Brar 2020, at paragraphs 128–139),provide useful guidance in assessing evidence where conflicting points of view on the facts are presented, namely that conflicting factsshould be assessed on the balance of probabilities standard. The following IRPA jurisprudence reflects this principle. In Almrei (Re),2009 FC 1263, [2011] 1 F.C.R. 163, Justice Richard Mosley had this to say [at paragraph 101]: I am of the view that “reasonable grounds to believe” in

section 33 implies a threshold or test for establishing the facts necessary foran inadmissibility determination which the Ministers’ evidence must meet at a minimum, as discussed by Robertson, J.A. in Moreno,above. When there has been extensive evidence from both parties and there are competing versions of the facts before the Court, thereasonableness standard requires a weighing of the evidence and findings of which facts are accepted.

A certificate can not be held to bereasonable if the Court is satisfied that the preponderance of the evidence is to the contrary of that proffered by the Ministers. [93] In Jaballah (Re), 2010 FC 79, [2011] 2 F.C.R. 145, Justice Eleanor Dawson (as she then was) adopted a similar view [atparagraph 45]: Further, notwithstanding the interpretive rule contained in

section 33 of the Act, where there is conflicting evidence on a point, theCourt must resolve such conflict by deciding which version of events is more likely to have occurred. A security certificate cannot befound to be rea

[…]