r v. Canada, 2022 FC 1168

2022 FC 1168 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 ) and 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.—Vancouver, April 19-22; Ottawa, August 10, 2022. Security Intelligence — Secure Air Travel Act — Appeals composed of multi-pronged case in which reasonableness of impugned decision addressed in separate decisions — Present decision considering whether Secure Air Travel Act ( SATA ), ss. 8 , 9(1) (

a) infringing appellants mobility rights protected by Canadian Charter of Rights and Freedoms ( Charter ), s. 6 , whether SATA , ss. 15 , 16 violating appellants’ rights to liberty, security of person under Charter, s. 7 — Minister having reasonable grounds to suspect that appellants threat to transportation security, that they would travel by air for purpose of committing criminal offence — Written denial of boarding issued to appellants after boarding attempt — Applicants applied for administrative recourse seeking removal of their names from SATA list — Minister maintaining appellants’ listed status under SATA — A ppellants requesting removal of their names from list, declaration that SATA , ss. 8 , 15 , 16 , 9(1) (

a) of SATA unconstitutional — Stating that Minister’s decisions unreasonable, that procedures set out in SATA violating their common law rights to procedural fairness — Appellants’ listing on no-fly list determined reasonable pursuant to SATA , s. 8(1) (

b) in previous decisions — Appellant Mr. Dulai submitting restriction on his ability to fly domestically significant limit on his capacity to pursue livelihood — Maintaining no evidence to suggest that he would fly somewhere in Canada to commit terrorism offence — Whether SATA infringing applicants’ Charter rights — Mr. Dulai’s s. 6 mobility rights under Charter breached — Evidence establishing that until Mr.

Dulai denied boarding, air travel within Canada important for him to earn living — These Charter breaches justified under s. 1 — SATA ’s provisions limiting appellant’s s. 6 Charter rights well-defined, explicit, legally binding — Protecting national security pressing, substantial objective — Safety of air travel, passengers pressing legislative goal of SATA — Causal link between air transportation safety, terrorist attacks, enforced restrictions flowing from SATA — Provisions of law limiting individual’s movements rationally connected to law’s purpose — S tate action limiting Mr.

Dulai’s mobility rights rationally connected to law’s objective — As to Charter, s. 7 , q uestion here whether being listed on no-fly list, restriction on air travel attenuated by SATA ’s administrative review, appeal mechanism — Appellants’ s. 7 right to security of person adversely affected — However, process in place such that limits on those rights complying with principles of fundamental justice — SATA , amici curiae providing substantial substitute to ensure fair process —— SATA process affording right to be heard — Appointing amici in present case ensured fair procedure — Appeals dismissed.

Constitutional Law — Charter of Rights — Mobility Rights — Appellant Dulai claiming that Secure Air Travel Act ( SATA ), ss. 8 , 9(1) (

a) infringing his mobility rights protected by Charter , s. 6 following respondent Minister’s decisions to include appellants on SATA ’s no-fly list — Minister having reasonable grounds to suspect that appellants threat to transportation security, that they would travel by air for purpose of committing criminal offence — Applicants applied for administrative recourse seeking removal of their names from SATA list — Minister maintaining appellants’ listed status under SATA — Appellant Mr.

Dulai submitting restriction on his ability to fly domestically significant limit on his capacity to pursue livelihood — Maintaining no evidence to suggest that he would fly to commit terrorism offence — Whether SATA, ss. 8, 9(1)(

a) infringing Mr. Dulai’s s. 6 Charter mobility rights — Mr. Dulai’s mobility rights under Charter breached — Means of transportation to give effect to travel is a necessity, when alternative means available are just not reasonable, realistic and practical — Mr. Dulai cannot travel by air, which prevents him from leaving the continent by plane — Mr. Dulai’s Charter , s. 6(2)(

b) also breached — Fact Mr. Dulai’s national mobility rights do not include air travel has clearly hampered his ability to earn a living in provinces other than his own — These breaches justified under Charter , s. 1 — Limits imposed on Mr. Dulai result of evidence-based suspicions that he could fly abroad in order to plot terrorist attack — Causal link between goal of air transportation safety, terrorist attacks, enforced restrictions flowing from SATA — State action limiting Mr.

Dulai’s mobility rights rationally connected to law’s objective — SATA obstructing mobility only to extent necessary to accomplish goal of air transport safety — Text of SATA itself not limiting mobility rights — Rather, restrictions on mobility result of being listed pursuant to SATA , s. 8 , combination of Secure Air Travel Regulations , ministerial directions — SATA scheme allowing for impairment of individual’s rights to be commensurate to threat posed — State action limiting Mr. Dulai’s mobility rights minimally impairing in this case — Infringement

justified under Charter , s. 1 .

Constitutional Law — Charter of Rights — Life, Liberty and Security — Appellants claiming that Secure Air Travel Act ( SATA ), ss. 15 , 16 violating their rights to liberty, security of person protected by Charter , s. 7 following respondent Minister’s decisions to include appellants on SATA ’s no-fly list — Minister having reasonable grounds to suspect appellants threat to transportation security, that they would travel by air for purpose of committing criminal offence — Applicants applied for administrative recourse seeking removal of their names from SATA list — Minister maintaining appellants’ listed status under SATA — Appellants submitting not given incompressible minimum amount of disclosure necessary to satisfy requirements of procedural fairness, compliance with Charter , s. 7 — Although SATA deprived appellants of their right to security of person, this violation done in accordance with principles of fundamental justice — SATA , amici curiae providing substantial substitute to ensure fair process — Necessary in the present case to identify the limits, if any, imposed on

section 7 rights by SATA to persons on the no-fly list — Right to full knowledge of case not absolute — Question here whether being listed on no-fly list, restriction on air travel attenuated by SATA ’s administrative review, appeal mechanism — SATA process affording right to be heard — Appointing amici in present case ensured fair procedure — Amici meaningful, substantial substitutes for absolute disclosure for purposes of SATA appeal — Appellants having sufficient understanding of case — Balancing act between acceptable judicial system that ensures air transportation safety, providing fair recourse to impacted citizens achieved in circumstances — Given finding herein that SATA ’s administrative review, appeal procedure fair processes that comply with principles of natural justice, Charter , s. 1 analysis not necessary.

These appeals were composed of a multi-pronged case in which the reasonableness of the impugned decision was being addressed in separate decisions. [1] The present decision considered whether

section 8 and paragraph 9(1) (

a) of the Secure Air Travel Act ( SATA ) infringe the appellants’ mobility rights protected by

section 6 of the Canadian Charter of Rights and Freedoms ( Charter ), and whether sections 15 and 16 of SATA violate their rights to liberty and security of the person under

section 7 of the Charter , on the basis that the impugned provisions of the SATA permit the Minister, and the Court, to determine the reasonableness of (1) the appellants’ designation as listed persons under the SATA , and (2) the Minister’s decision to list the appellants, based on information that is not disclosed to them and to which they have no opportunity to respond. The appellants’ names were included on the no-fly list on the basis that there were reasonable grounds to suspect that they 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 the Criminal Code ( paragraph 8(1) (

b) of SATA ). When the appellants attempted to board flights, a written denial of boarding under the Passenger Protect Program was issued to them pursuant to a direction under paragraph 9(1) (

a) of SATA . The applicants each submitted an application for administrative recourse to the Passenger Protect Inquiries Office, seeking the removal of their names from the SATA list pursuant to

section 15 of SATA . The Minister advised the appellants of his decisions to maintain their listed status under SATA . In their notices of appeal, the appellants requested the removal of their names from the SATA list pursuant to subsection 16(5) of the SATA , or the remittance of the matter back to the Minister for redetermination. They also requested that sections 8 , 15 and 16 , as well as paragraph 9(1) (

a) of SATA be declared unconstitutional and therefore of no force and effect. Among other things, the appellants stated that the Minister’s decisions were unreasonable and that the procedures set out in SATA violated their common law rights to procedural fairness seeing as SATA deprived them of their right to know the cases against them and the right to answer those cases. In Brar v. Canada (Public Safety and Emergency Preparedness) , 2022 FC 1163 and Dulai v. Canada (Public Safety and Emergency Preparedness ), 2022 FC 1164 (the reasonableness decisions), the Minister’s determinations pursuant to paragraph 8(1) (

a) were found to be unreasonable given the lack of supporting evidence, but the appellants’ listing on the no-fly list was nevertheless found to be reasonable pursuant to paragraph 8(1) (b). Mr. Brar did not make any specific submissions in relation to

section 6 of the Charter . Mr. Dulai submitted, inter alia , that the restriction on his ability to fly domestically was a significant limit on his capacity to pursue a livelihood. Mr. Dulai argued that the ban on flying domestically was not rationally connected to the objective of protecting Canada’s national security or preventing him from flying to engage in terrorism-related activity. He maintained that there was no evidence to suggest that he would fly somewhere in Canada to commit a terrorism offence. As to the

section 7 of the Charter challenge, the appellants submitted that they were not given the incompressible minimum amount of disclosure necessary to satisfy the requirements of procedural fairness and compliance with

section 7 . At issue was whether

section 8 and paragraph 9(1) (

a) of SATA infringed on Mr. Dulai’s mobility rights pursuant to

section 6 of the Charter ; if so, whether this infringement could be justified under

section 1 of the Charter ; and whether sections 15 and 16 of SATA violated both appellants’ rights under

section 7 of the Charter . Held , the appeals should be dismissed. Mr. Dulai’s paragraph 6(1) Charter rights were breached. The means of transportation to give effect to travel is a necessity, when alternative means available are just not reasonable, realistic and practical. Mr. Dulai cannot travel by air, which prevents him from leaving the continent by plane. Mobility is an essential component in fulfilling professional, personal, leisure, and family needs. The right to leave, return, and live in Canada encompassed in subsection 6(1) of the Charter are part of society’s fundamental values and must be recognized as such. Mr. Dulai’s paragraph 6(2)(

b) Charter rights were also breached. The evidence established that until Mr. Dulai was denied boarding, air travel within Canada was important for him to earn a living. The fact that Mr. Dulai’s national mobility rights do not include air travel has clearly hampered his ability to earn a living in provinces other than his own. These Charter breaches could be justified under

section 1 thereof. Imposing a limit on mobility rights may be justified in appropriate circumstances, such as a reasonable method of addressing national security concerns. SATA ’s provisions limiting the appellant’s

section 6 rights are well- defined, explicit, and legally binding. The limits imposed on Mr. Dulai were the result of evidence-based suspicions that he could fly abroad in order to plot a terrorist attack. The Government of Canada must enact laws that protect national security and intelligence activities in a way that respects rights and freedoms and encourage the international community to do the same. Protecting national security is a pressing and substantial objective.

Canada’s efforts to ensure the safety of air travel for all Canadians and passengers is a pressing legislative goal of SATA and part of a larger thrust to promote security beyond national borders, as required by Canada’s role on the international stage. There is a causal link between the goal of air transportation safety, terrorist attacks, and the restrictions that

can be enforced that flow from SATA . As a result, the provisions of the law that lead to limiting an individual’s movements are rationally connected to the law’s purpose. The state action limiting Mr. Dulai’s mobility rights was rationally connected to the law’s objective. SATA obstructs mobility only to the extent that is necessary to accomplish the goal of air transport safety. Ensuring safety in air transportation and limiting air travel for terrorist purposes necessarily involves some infringement of mobility rights. The text of SATA itself does not limit the mobility rights. Rather, the restrictions on mobility are a result of being listed pursuant to

section 8 and a combination of the Secure Air Travel Regulations and ministerial directions issued pursuant to subsection 9(1) of SATA . The SATA scheme is not a blunt instrument; it allows for the impairment of an individual’s rights to be commensurate to the threat posed by that individual, thus minimally impairing the right. Given the Court’s finding in the reasonableness decisions, the state action limiting Mr. Dulai’s mobility rights was, in this case, minimally impairing. The overall air safety issue outweighed any negative impact on both appellants. To conclude on Mr. Dulai’s

section 6 Charter rights,

section 8 and paragraph 9(1) (

a) of SATA alone did not infringe the appellant’s mobility rights, but the SATA scheme did. This infringement was justified under

section 1 of the Charter . Although SATA deprived the appellants of their right to the security of the person, this violation was done in accordance with the principles of fundamental justice. Indeed, SATA and the inclusion of amici provided a substantial substitute to ensure a fair process.

Section 7 of the Charter guarantees the right to life, liberty and security of the person and contains a built-in safeguard for those rights, stating that they can only be encroached upon in accordance with the principles of fundamental justice.

Section 7 is concerned with whether a limit imposed on a Charter right has been implemented in a way that is consistent with natural justice principles. It was necessary in the present case to identify the limits, if any, imposed on

section 7 rights by SATA to persons on the no-fly list, evaluate the seriousness of these limits and assess whether or not SATA offers a procedure that is fair, keeping in mind the particular circumstances and the consequences of the intrusion on life, liberty or security. In the two current appeals, some information had to remain concealed from the appellants and the public to protect Canada’s national security and intelligence. The right to full knowledge of the case is not absolute and some give and take is unavoidable in designing a process that addresses national security issues.

The question was whether being listed on the no-fly list and restriction on air travel is attenuated by SATA ’s administrative review and appeal mechanism that provide appellants with a process that takes into account the imperative of protecting national security information. There was no question that the lives of the appellants were affected as a result of being associated with terrorism and terrorist activities. The appellants’

section 7 Charter security of the person right was adversely affected. The question was whether the process in place is such that the limits on

section 7 rights comply with the principles of fundamental justice. The SATA process followed in the case at bar, without a doubt, afforded the right to be heard. SATA does not provide for special advocates as it does in the Immigration and Refugee Protection Act certificate procedures. Appointing amici curiae in the present case ensured a fair procedure and showed the designated judge to not only be independent and impartial, but also appear to be as such.

The amici mandated to represent the appellants’ interests were meaningful and substantial substitutes for absolute disclosure for the purposes of a SATA appeal. The appellants had a sufficient understanding of the case to which they had to respond. There is a delicate balancing act between an acceptable judicial system that ensures air transportation safety and providing a fair recourse to impacted citizens. This balancing act was achieved in the circumstances.

That said, in order to make the SATA appeal provisions more consistent in their application and ensure procedural fairness when responding to the particulars of such appeals, the appointment of amicus curiae or an equivalent should be legislated and not left to a designated judge’s discretion. Given the finding herein that SATA ’s administrative review and appeal procedure available to listed individuals are fair processes that comply with the principles of natural justice when considering relevant factors, it was not necessary to go through a

section 1 analysis with respect to the

section 7 rights at issue. STATUTES AND REGULATIONS CITED Access to Information Act , R.S.C., 1985, c. A-1, s. 16 . Aeronautics Act , R.S.C., 1985, c. A-2 . Anti-Terrorism Act, 2015 , S.C. 2015, c. 20 . Bill C-51,

An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts , 2 nd Sess., 41 st Parl., 2015. Canada Evidence Act , R.S.C., 1985, c. C-5, s. 38 . 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, 3, 6 , 7, 15 , 16 , 33. Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23, s. 18.1 . Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 101. Criminal Code , R.S.C., 1985, c. C-46, ss. 2 “terrorism offence”, 83.18, 83.19, 83.2. Federal Courts Rules , SOR/98-106, r. 63(1) (e). Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 83 . International Transfer of Offenders Act , S.C. 2004, c. 21 . National Security Act, 2017 , S.C. 2019, c. 13 ,

preamble. Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5, ss. 7(3) (c.1)(i),(c.2)(ii). Privacy Act , R.S.C., 1985, c. P-21, ss. 69 , 70 .

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. Transport Security Amendment (Serious Crime) Act 2021, No. 44 (2021) (Austl.). CASES CITED APPLIED: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Brar v. Canada (Public Safety and EmergencyPreparedness, 2020 FCA 129 , 2020 FC 729, [2020] 4 F.C.R. 557; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33;R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200; R. v. Orbanski; R. v. Elias, 2005 SCC 37,[2005] 2 S.C.R. 3. CONSIDERED: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; United States of America v. Cotroni; United States of America v. ElZein, (SCC), [1989] 1 S.C.R. 1469, (1989), 48 C.C.C. (3d) 193; Divito v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Law society of Upper Canada v. Skapinker, (SCC),[1984] 1 S.C.R. 357, (1984), 9 D.L.R. (4th) 161; Black v. Law Society of Alberta, (SCC), [1989] 1 S.C.R. 591, (1989),58 D.L.R. (4th) 317; Frank v.

Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3; Conseil scolaire francophone de laColombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Taylor v. Newfoundland and Labrador, 2020 NLSC 125; Black v. Canada (Prime Minister) (2001), (ON CA), 54 O.R. (3d) 215, 199 D.L.R. (4th) 228 (C.A.);Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; F.H. v. McDougall, 2008 SCC 53,[2008] 3 S.C.R. 41; RJR-Macdonald v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, (1995), 127 D.L.R.(4th) 1; Ruby v.

Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41,[2005] 2 S.C.R. 188; Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; Sogi v. Canada (Ministerof Citizenship and Immigration), 2003 FC 1429, [2004] 2 F.C.R. 427; X (Re), 2017 FC 136, [2017] 4 F.C.R. 391. REFERRED TO: Brar v. Canada (Public Safety and Emergency Preparedness), 2022 FC 1163; Dulai v. Canada (Minister of Public Safety andEmergency Preparedness), 2022 FC 1164; Brar v. Canada (Public Safety and Emergency Preparedness), 2021 FC 932; Dulai v.

Canada(Public Safety and Emergency Preparedness), 2021 FC 933; Sriskandarajah v. United States of America, 2012 SCC 70,[2012] 3 S.C.R. 609; R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013, (1996), 133 D.L.R. (4th) 658; Khadr v. Canada(Attorney General), 2006 FC 727, [2007] 2 F.C.R. 218; Kamel v. Canada (Attorney General), 2008 FC 338, [2009] 1 F.C.R. 59;Canadian Egg Marketing Agency v. Richardson, (SCC), [1998] 3 S.C.R. 157, (1998), 166 D.L.R. (4th) 1;Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708;Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193. AUTHORS CITED Canada. Parliament. Debates of the Senate, 41st Parl., 2nd Sess., Vol. 149, No. 142 (14 May 2015). Canada. Parliament. House of Commons Debates, 41st Parl., 2nd Sess., Vol. 147 (February 19, 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, 41st Parl., 2nd Sess.,Issue No. 18 (May, 28, 2015). Canada. Parliament. Senate. Proceedings of the Standing Senate Committee on National Security and Defence, 42nd Parl., 1st Sess.,Issue No. 40 (April 10, 2019). Hogg Peter W. “The Living Tree Doctrine” in Constitutional Law of Canada, Vol. 2, 5th ed. Scarborough, Ont.: Thomson/Carswell,2007. Public Safety Canada. 2016 Public Report on the Terrorist Threat to Canada, 2016. APPEALS addressing the appellants’ claims that

section 8 and paragraph 9(1)(

a) of the Secure Air Travel Act (SATA) infringed theirmobility rights protected by

section 6 of the Canadian Charter of Rights and Freedoms (Charter), and that sections 15 and 16 of SATAviolated their rights to liberty and security of the person protected by

section 7 of the Charter following the respondent Minister’sdecisions to include the appellants on SATA’s no-fly list. Appeals dismissed. APPEARANCES Karin Blok and Eric Purtzki for appellant Brar. Rebecca McConchie and Sadaf Kashfi for appellant Dulai. Helen Park, Courtenay Landsiedel and Stéphanie Morin for respondent.

Gib van Ert and Colin Baxter as amici curiae . SOLICITORS OF RECORD Fowler and Blok Criminal Defence Lawyers , Vancouver, for appellant Brar. McConchie Criminal Law , Vancouver, and Edelmann & Co. Law Offices , Vancouver, for appellant Dulai. 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 I. Overview II. National security III.

Summary of the facts A. Facts in Mr. Brar’s appeal B. Facts in Mr. Dulai’s appeal C. Procedural history covering both appeals (Mr. Brar and Mr. Dulai) IV. Review and analysis of the SATA A. General B. Operation of the SATA C. Appeal provisions of the SATA V. Constitutional questions—

Section 6 of the Charter: Mobility rights A.

Summary of the submissions of the Appellants and Respondent

(1) Submissions of Mr. Brar

(2) Submissions of Mr. Dulai

(3) Submissions of the Respondent VI. The Oakes or the Doré approach VII. Analysis:

Section 6 of the Charter A. Legislation

(1) Section 6 of the Charter

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

a) of the SATA B. The intricacies of the current appeals C. The meaning of mobility

(1) Interpreting the Charter (

a) Purposive analysis and jurisprudential guidance on mobility rights (

b) Section 6 mobility rights are not subject to the notwithstanding clause (

c) The interpretative language (

d) Analysis: Subsection 6(1) — International mobility rights (

e) Analysis: Subsections 6(2), 6(3), and 6(4) — National mobility rights for the purpose of taking up residence in any province and to pursue the gaining of a livelihood in any province

(2) Analysis:

Section 1 of the Charter

(

a) General (

i) Is the infringement prescribed by law? (ii) Is the objective pressing and substantial? (iii) Is there proportionality between the legislative objective and the means to achieve it? (

b) Is the law or state action rationally connected to its purpose? (

c) Does the law or state action minimally impair the infringed right?

(3) Do the positive effects of the law or state action outweigh the negative effects of the legislation or state action? D. Conclusion on

section 6 of the Charter VIII. Constitutional questions—Section 7 of the Charter—Life, Liberty and Security of the Person A.

Summary of the submissions of the Appellants and Respondent

(1) Submissions of Mr. Brar

(2) Submissions of Mr. Dulai

(3) Submissions of the Respondent IX. Analysis:

Section 7 of the Charter A. Legislation

(1) Section 7 of the Charter

(2) Sections 15 and 16 of the SATA B. Jurisprudential teachings on

section 7 analysis involving national security issues C. The necessity to abide by the principles of fundamental justice

(1) Is

section 7 of the Charter engaged?

(2) The role of the designated judge

(3) The role and mandate of the Amici

(4) The right to a hearing

(5) The impartial and independent judge

(6) Disclosure

(7) The decision has to be made on the facts and law D. Conclusion on

section 7 analysis X. Overall conclusions on sections 6 and 7 of the Charter XI. A few last words JUDGMENT in T-669-19 and T-670-19 Annex A I. Overview [Table of Contents] [ 1 ] These appeals are composed of a multi-pronged case in which the Appellants’ claims that pertain to questions 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 ) and their claims relating to the reasonableness of a Minister’s decision are being addressed in separate decisions. More specifically, two decisions — Brar v. Canada (Public Safety and Emergency Preparedness) , 2022 FC 1163 ( Brar 2022 ) and Dulai v. Canada (Public Safety and Emergency Preparedness ), 2022 FC 1164 ( Dulai 2022 )—deal with the reasonableness of the Minister’s decision and are being issued concurrently (the Reasonableness Decisions). The Reasonableness Decisions include a confidential set of reasons.

The present judgment and reasons (the Decision) address constitutional issues raised in both appeals. [ 2 ] 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 examine and provide clarity and guidance where deemed necessary.

[3] The Decision considers whether

section 8 and paragraph 9(1)(

a) of the SATA infringe the Appellants’ mobility rights protectedby

section 6 of the Charter, and whether sections 15 and 16 of the SATA violate the Appellants’ rights under

section 7 of the Charter,specifically their rights to liberty and security of the person, on the basis that the impugned provisions of the SATA permit the Minister,and the Court, to determine the reasonableness of (1) the Appellants’ designation as listed persons under the SATA, and (2) theMinister’s decision to list the Appellants, based on information that is not disclosed to them and to which they have no opportunity torespond. [4] The Appellants remain listed individuals pursuant to

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

section 15 of the SATA, which sought to have their names removed from the “no-fly” list.The Minister made the decision after determining that he had reasonable grounds to suspect that the Appellants would either “engage orattempt to engage in

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

an act oromission” 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 referredto 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) ofthe SATA). Although I conclude in the Reasonableness Decisions that the Minister’s determinations pursuant to paragraph 8(1)(

a) of the SATA areunreasonable given the lack of supporting evidence, the Appellants’ listing on the no-fly list of the SATA is nevertheless reasonablepursuant to paragraph 8(1)(

b) of the SATA (see Brar 2022 and Dulai 2022). [5] The tension between individual rights and collective interests in security was discussed at length in two related prior decisionspublished 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)). [6] 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 Appellants 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 information onwhich the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to national securityor to the safety of any person: s. 78(b).

At the request of either minister “at any time during the proceedings”, the judge “shall hear”information or evidence in the absence of the named person and his or her counsel if, in the opinion of the judge, its disclosure would beinjurious to national security or to the safety of any person: s. 78(e). The judge “shall provide” the named person with a

summary ofinformation that enables him or her to be reasonably informed of the circumstances giving rise to the certificate, but the

summary cannotinclude 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 judge may berequired to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. Thenamed 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 (SIRC) 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). The principles described above for Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) certificate’s proceedings areapplicable to the SATA (see Brar v.

Canada (Public Safety and Emergency Preparedness), 2020 FCA 129 , 2020 FC 729,[2020] 4 F.C.R. 557 (Brar 2020), at paragraphs 92, 95, 100, 105, etc.). [7] For the following reasons, the appeal as it relates to the breaches of the Appellants’ constitutional rights is dismissed. II. National security [Table of Contents] [8] The role of the Canadian Government to ensure security in air transportation is essential. As part of Canada’s societalcommitment, it is a top priority to guarantee that all Canadians live in a safe environment.

In addition to its domestic responsibility tomaintain community safety, the Canadian Government also has international responsibilities towards partner countries. [9] Lesley Soper, a witness in these appeals, included in her affidavit a comment made on February 19, 2015, by the Parliamentary

Secretary to the Minister of Citizenship and Immigration when speaking about Bill C-51 [

An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts , 2 nd Sess., 41 st Parl., 2015] (that would later become the SATA ) in the House of Commons [ House of Commons Debates , 41 st Parl., 2 nd Sess. (February 19, 2015), at page 11403]: One of the gravest threats to global security is the phenomenon of terrorist travel: individuals who travel by air to regions of unrest and violence to engage in terrorist activities.

These individuals do not pose an immediate threat to an airplane. Indeed, they want their flight to be safe and uneventful so that they can reach their destinations. While these violent extremists are not an immediate threat to an airplane or to passengers when they travel, they do pose a significant danger to those people living in the countries where they undergo their training and terrorist activities and in the countries in which they want to perpetrate their crimes.

Moreover, there is a great risk that they will return to their home country to test out their newly acquired skills by plotting and carrying out attacks on innocent civilians. (Lesley Soper’s supplementary affidavit, February 25, 2022, at paragraph 18) [ 10 ] The threat posed by individuals suspected of travelling abroad to engage in extremist activity (extremist travellers) is significant and presents difficult challenges to both Canada and its allies.

According to Public Safety Canada’s 2016 Public Report on the Terrorist Threat to Canada [at page 3]: The principal terrorist threat to Canada remains that posed by violent extremists who could be inspired to carry out an attack in Canada. Violent extremist ideologies espoused by terrorist groups like Daesh and al-Qaida continue to appeal to certain individuals in Canada. As in recent years, the Government of Canada has continued to monitor and respond to the threat of extremist travellers, that is, individuals who are suspected of travelling abroad to engage in terrorism-related activity.

The phenomenon of extremist travellers— including those abroad, those who return, and even those prevented from travelling—poses a range of security concerns for Canada. As of the end of 2015, the Government was aware of approximately 180 individuals with a nexus to Canada who were abroad and who were suspected of engaging in terrorism-related activities.

The Government was also aware of a further 60 extremist travellers who had returned to Canada. (Lesley Soper’s supplementary affidavit, February 25, 2022, at paragraph 26) [ 11 ] The Government relies on different tools to manage and mitigate this threat at home. For example, terrorism peace bonds entail courts imposing conditions on extremist travellers. The Government can also cancel, refuse or revoke passports when required.

Since its adoption, Canada relies on the SATA to prevent travel to commit terrorism offences and threats to transportation security. [ 12 ] Canada’s security commitments extend well beyond its borders. It is common knowledge that Canada is a signatory to a number of international treaties and agreements, which enables strong collaboration with international partners like the Five Eyes, the G7, the European Union, Interpol, and the United Nations. These alliances improve the sharing of information and best practices, but also call upon member states to do their part to ensure global security.

In Canada, this responsibility has led to the adoption of a legislative framework that governs the provision of this security. In Charkaoui I , former Chief Justice McLachlin highlighted the inherent challenge in developing such a legislative framework [at paragraph 1]: One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security.

Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance.

It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance. [ 13 ] Indeed, a democratic government faces a perpetual challenge when establishing systems to ensure collective security because necessary measures to fulfil this goal must accord with the Constitution and the rights and liberties it guarantees. As part of this effort, the Government must safeguard national security information and intelligence when developing security systems such as the SATA .

In this regard, the SATA is not the only legislation that seeks to safeguard sensitive information. For example, the Canada Evidence Act , R.S.C., 1985, c. C-5 , at

section 38 , the IRPA at

section 83 , the Access to Information Act , R.S.C., 1985, c. A-1 , at

section 16 , the Privacy Act , R.S.C., 1985, c. P-21 , at sections 69 and 70, and the Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5 , at subparagraphs 7(3) (c.1)(

i) and (c.2)(ii) are some of the statutes that have similar legislative provisions to protect sensitive information. [ 14 ] Case law consistently holds that national security information and intelligence ought to be protected and can only be disclosed in summaries that do not reveal any information injurious to national security or that could endanger the safety of any person. III.

Summary of the facts [Table of Contents] A. Facts in Mr. Brar’s appeal [ 15 ] On April 23, 2018, Mr. Brar’s name was included on the no-fly list. Pursuant to the SATA , the Minister concluded that there were reasonable grounds to suspect that he would (1) engage or attempt to engage in

an act that would threaten transportation security, 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. [ 16 ] The following day, Mr. Brar attempted twice to take flights that would eventually have transported him from Vancouver to Toronto, but each time a written denial of boarding under the Passenger Protect Program (PPP) was issued pursuant to a direction under 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 that day. [ 17 ] On June 2, 2018, Mr. Brar submitted an application for administrative recourse to the Passenger Protect Inquiries Office (the 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 a two-page unclassified

summary of the information supporting the decision to place his name on the SATA list. The PPIO further advised that 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 the unclassified information disclosed to him, which he submitted to the PPIO on December 3, 2018. [ 18 ] 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’s delegate “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.” [ 19 ] On April 18, 2019, Mr. Brar filed a notice of appeal with this Court pursuant to subsection 16(2) of the SATA . In his 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 . [ 20 ] More specifically, Mr. Brar lists the following as the grounds of his appeal in his notice: 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. Mr.

Brar also requested the disclosure of 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. Facts in Mr. Dulai’s appeal [Table of Contents] [ 21 ] On March 29, 2018, Mr. Dulai’s name was included on the no-fly list. It was concluded that there were reasonable grounds to suspect that he would (1) engage or attempt to engage in

an act that would threaten transportation security, 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. [ 22 ] On May 17, 2018, Mr. Dulai was issued a written denial of boarding under the PPP preventing him from boarding a flight at the Vancouver International Airport pursuant to a direction under paragraph 9(1) (

a) of the SATA . Mr. Dulai was scheduled to travel from Vancouver to Toronto. [ 23 ] On June 8, 2018, the PPIO received Mr. Dulai’s application for administrative recourse in which he sought the removal of his name from the SATA list, pursuant to

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

summary of the information supporting the decision to place his name on the SATA list. The PPIO further advised that 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. Dulai was provided with the opportunity to make written representations in response to the unclassified information disclosed to him, which he submitted to the PPIO. [ 24 ] On January 30, 2019, the Minister advised Mr. Dulai of his decision to maintain his listed status under the SATA . Following a review of the classified and unclassified information provided, including Mr. Dulai’s written submissions, the Minister’s delegate “concluded that there [were] reasonable grounds to suspect that [Mr. Dulai would] engage or attempt to engage in

an act that would threaten transportation security, or travel by air to commit certain terrorism offences.” [ 25 ] On April 18, 2019, Mr. Dulai filed a notice of appeal with this Court pursuant to subsection 16(2) of the SATA . 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 therefore of no force and effect, or to read in such procedural safeguards that would cure any constitutional deficiencies in the SATA . [ 26 ] More specifically, Mr. Dulai enumerates the following grounds of appeal: that the Minister’s decision was unreasonable and that 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. Mr.

Dulai also requested the disclosure of 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 on the application for recourse, and all other material relating to the Minister’s decision to confirm his status as a listed person under the SATA . C. Procedural history covering both appeals (Mr. Brar and Mr.

Dulai) [Table of Contents] [ 27 ] 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 and Vancouver, and decisions applicable to each case were published ( Brar 2020 , Brar 2021 and Dulai 2021 ). [ 28 ] As mentioned in the Reasonableness Decisions, navigating the SATA legislation has been laborious, lengthy, and complex. It required that the Appellants, counsel, amici curiae ( 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 step made 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.

IV. Review and analysis of the SATA [Table of Contents] A. General [29] In order to analyze the questions in this matter, it is essential to undertake a review of the SATA first. An understanding of itslegislative object, its operation, and its appeal mechanism is the compass that will be necessary to navigate these uncharted waters. Thissection addresses: (1) the context and legislative object of the SATA; (2) the operation of the SATA; and (3) the appeal provisions of theSATA. This methodology is in accordance with the modern approach to statutory

interpretation endorsed by the Supreme Court ofCanada (S.C.C.) and will allow the reader to have a better understanding of what the designated judge is asked to do when an appeal isinitiated under the SATA. It will also help contextualize the mandate of the Amici. For the purposes of this section, I have relied, for themost part, on the Brar 2020 decision at paragraphs 60–88, with some adjustments. [30] The S.C.C. has repeatedly endorsed the following concise

summary of the law on statutory

interpretation provided in Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193 (Rizzo) [at paragraph 21]: Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [31] The SATA’s general object of balancing individual rights and freedoms with Canada’s national security interests in air travel isevident when one analyzes the title of the Act, the

summary and

preamble of its enacting and amending omnibus legislation, the legalcontext at the time of its enactment, and the pertinent legislative debates in both chambers of Parliament. [32] After nearly a decade of operating the PPP (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 (Lesley Soper’s first affidavit, at paragraph 5).Accordingly, the Anti-terrorism Act, 2015, S.C. 2015, c. 20, introduced as an omnibus bill, significantly amended and restructured national security law in Canada and created the SATA in 2015. A few years later, the 42nd Parliament of Canada enacted the NationalSecurity Act, 2017, S.C. 2019, c. 13, which received royal assent on June 21, 2019.

Once again, this legislation—also introduced as anomnibus bill—redrew the legal landscape regarding national security in Canada and amended an array of laws, including the SATA. [33] 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 whomay engage in

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

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

Finally, this Part makes consequential amendments to the Aeronautics Act and the CanadaEvidence Act. [34] The overall purpose of the National Security Act, 2017 was to address concerns expressed by the public and experts alikeregarding 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:

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 andfreedoms of Canadians and that respects the Canadian Charter of Rights and Freedoms; Whereas the Government of Canada is committed to enhancing Canada’s national security framework in order to keep Canadians safewhile 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 andfreedoms, 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 institutionsthat 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; [ 35 ] Read together, the long and the

short title of the SATA , the

summary of the Anti-terrorism Act, 2015 and the

preamble of the National Security Act, 2017 reveal the object of the SATA and how it fits into the overall legislative architecture of Canada’s national security legislative scheme. [ 36 ] The Anti-terrorism Act, 2015 demonstrates that the object of the SATA is to give the Minister the ability to identify, and respond to, persons that pose a threat to transportation security or may travel by air for the purpose of committing a terrorism offence. At the same time, it must ensure that affected persons are provided with both an administrative review and an appeal mechanism that must protect confidential information. [ 37 ] The

preamble of the National Security Act, 2017 allows the reader to situate this intention within Parliament’s overarching objective regarding national security: ensuring a careful balance between the rights and freedoms of individuals while protecting Canada’s national security and the safety of Canadians. [ 38 ] The legislative object of protecting Canada’s national security interests and the safety of Canadians with regard to air travel, in a manner that carefully balances this objective with the rights and freedoms of individuals, is consistent with the relevant jurisprudential context at the time of the enactment of the SATA .

Indeed, in the context of certificate proceedings under the IRPA , the S.C.C. made it clear that a careful balance must be achieved between the collective interest in protecting confidential information for national security reasons and the interest in protecting individual rights and freedoms (see Canada (Citizenship and Immigration) v.

Harkat , 2014 SCC 37 , [2014] 2 S.C.R. 33 ( Harkat ), at paragraphs 40 – 44 and Charkaoui I , at paragraph 1). [ 39 ] Harkat and Charkaoui I were mentioned on numerous occasions by members of the legislature and witnesses before Parliament’s two chambers when studying and debating the creation of the SATA in 2015, as well as during the amendment of the SATA between 2017 and 2019 (see Debates of the Senate , 41st Parl., 2nd Sess., Vol. 149, No. 142 (14 May 2015), at pages 3388–3389 (Honourable Senator Claudette Tardif) and House of Commons Standing Committee on Public Safety and National Security, Evidence , 42nd Parl., 1st Sess., No. 90 (7 December 2017) , at pages 12–13). [ 40 ] In sum, this general object of balancing national security and the safety of Canadians with individual rights and freedoms is evident when one considers the SATA in its overall legislative context.

Accordingly, when interpreting the legislative framework set out in the SATA , this general object must animate one’s understanding of the statute’s words (see Rizzo , at paragraph 21 ). B. Operation of the SATA [Table of Contents] [ 41 ] The provisions of the SATA outline the authority of the Minister to list individuals under the SATA , share information related to this list with domestic and foreign partners, and direct air carriers to take the necessary measures to prevent persons from engaging or attempting to engage in

an act that threatens aviation security or travel for the purpose of terrorism. The statute also provides for an internal administrative recourse mechanism for listed persons to have their names removed from the list, and if unsuccessful at that stage, a right of appeal to the Federal Court. [ 42 ] The starting point of any statutory analysis of the SATA is

section 8 . This

section provides for the establishment of a list by the Minister (or their delegate) of persons whom they have “reasonable grounds to suspect” will: List 8 (1) … (

a) engage or attempt to engage in

an act that would threaten transportation security; or (

b) travel by air for the purpose of committing

an act or omission that (

i) is an offence under

section 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, or (ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (i). [ 43 ] The scope of this power to list persons at subsection 8(1) includes all persons, both inside and outside Canada (subsection 4(1)), and includes acts or omissions committed outside Canada that would contravene the Criminal Code if committed in Canada, which are considered for the purpose of the SATA as acts committed within Canada (section 5).

The list includes the first, middle and surname, any known alias, the date of birth, and the gender of the listed persons ( subsection 8(1) ). [ 44 ] The Minister (or their delegate) must review the list every 90 days to determine if the grounds on which a person was listed still exist (subsection 8(2)). It is possible to amend the list at any time in order to remove a name or to modify information relating to a listed person (subsection 8(3)).

Section 20 prohibits the disclosure of the list or its contents other than in accordance with the exceptions stated in the SATA . In fact, a listed individual only becomes aware of their listing when they are denied transportation at an airport (see subsection 8(1) and paragraph 9(1)(

a) of the SATA and Lesley Soper’s first affidavit, at paragraph 20).

[ 45 ]

Section 10 of the SATA provides that the Minister may collect information from, and disclose information to, the Minister of Transport, the Minister of Citizenship and Immigration, the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS), the Canada Border Services Agency (CBSA), and any other person or entity designated by regulations.

The Minister may also share information obtained, or even the list itself, in whole or in part, with foreign states with which it holds written agreements, as well as receive information from these foreign states (sections 11 and 12). [ 46 ] In practice, the members of the Passenger Protect Advisory Group (PPAG) chaired by Public Safety Canada provide information to the Minister’s delegate in order to determine who is placed on the SATA list.

Each of the nominating members of the Advisory Group (Transport Canada, CSIS, RCMP, and CBSA) provide the full membership of the Advisory Group with a recommendation for listing, including a report providing information on an individual, as well as sufficient information to support their addition to the SATA list. The listing of the individual in question is then considered by the Advisory Group, which advises the Minister’s delegate (usually a Senior Assistant Deputy Minister) on whether to ultimately list the individual pursuant to subsection 8(1) of the SATA .

Review and updates of listings under subsection 8(2) are performed according to a similar procedure (Lesley Soper’s first affidavit, at paragraphs 9 – 12). [ 47 ] Air carriers are key to the operation of the SATA regime. Notably, the SATA requires that all accredited air carriers or reservation operators working out of Canada, or for flights coming to Canada, comply with the SATA and its regulations before allowing any person to board an aircraft or transporting any person (subsection 6(1)).

This includes the requirement to provide information concerning the persons who are on board or expected to be on board an aircraft for any flight (subsection 6(2)). [ 48 ] In practice, the SATA list is disclosed to Transport Canada pursuant to

section 10 of the SATA . The department then discloses the list to air carriers and operators of aviation reservation systems pursuant to paragraph 13 (

a) of the SATA . [ 49 ] Subsection 9(1) of the SATA gives the Minister the power to direct an air carrier to “take a specific, reasonable and necessary action to prevent a listed person from engaging in any act set out in subsection 8(1) ” as well as the power to “make directions respecting, in particular (

a) the denial of transportation to a person; or (

b) the screening of a person before they enter a sterile area of an airport or board an aircraft” when a positive match arises. When a denial of transportation under paragraph 9(1)(

a) is directed, the listed person is provided with a written notice to this effect. As stated earlier, a person first becomes aware of their listing when the written notice is issued. Barring a denial, a listed person is not informed of their listing. [ 50 ] An individual who has been denied transportation pursuant to

section 9 of the SATA can initiate an administrative recourse to have their name removed from the SATA list ( subsection 15(1) ). The individual can apply to the Minister in writing within 60 days of the denied transportation, although an extension may be granted pursuant to subsection 15(2).

On receipt of the application, the Minister must decide whether there are still reasonable grounds to maintain the applicant’s name on the list pursuant to subsection 15(4) . [ 51 ] In considering a listed person’s application for administrative recourse, the nominating member of the Advisory Group will provide information to help the Minister determine whether reasonable grounds exist to maintain the person’s name on the SATA list. The Minister will also provide the listed person with an opportunity to make representations that will be considered in the decision (subsection 15(3)). [ 52 ]

Section 15 of the SATA imposes no explicit obligation on the Minister to disclose any information to a listed person in order to assist them in making representations. However, in the cases at bar both Appellants received a two-page unclassified

summary of the information that was placed before the Minister along with a statement that the Minister would also consider classified information in his decision (Lesley Soper’s first affidavit, Document ii of Exhibit B). [ 53 ] Finally, once the Minister makes a decision on the listed individual’s application for administrative recourse pursuant to subsection 15(4), the Minister must give notice to the listed individual without delay (subsection 15(5)).

Pursuant to subsection 15(6), if the Minister does not make a decision within a period of 120 days after the day the application is received, the Minister is deemed to have decided to remove the individual’s name from the list. The Minister may nevertheless extend this period by an additional 120 days, upon notice, if there is a lack of sufficient information available to make a decision. C.

Appeal provisions of the SATA [Table of Contents] [ 54 ] Beyond the internal decision-making process and administrative recourse provisions in the SATA , the legislative scheme provides for an external appeal to the Chief Justice of the Federal Court, or a judge designated by the Chief Justice, pursuant to the appeal procedures set out in

section 16 of the SATA . In particular, the SATA provides that a person listed pursuant to

section 8 who has been denied transportation as a result of a direction made pursuant to

section 9 may appeal a decision made under

section 15 within 60 days of the notice of decision (see subsections 16(1) and 16(2)). Pursuant to paragraph 63(1) (

e) of the Federal Courts Rules , SOR/98- 106 , the originating document to begin this process is a notice of appeal. In the present appeals, both Appellants submitted notices of appeal in accordance with the Federal Court Rules in April 2019 . [ 55 ] Subsection 16(4) tasks the designated judge with determining “whether the decision [of the Minister pursuant to

section 15 ] is reasonable on the basis of the information available to the judge” and requires that this determination be done “without delay.” If the decision is deemed unreasonable, subsection 16(5) allows the judge to order that an appellant’s name be removed from the list. These subsections are key in defining the nature of the appeal under the SATA .

Indeed, they set the standard applicable for the designated judge’s review, do not limit the evidence before the judge to the evidence that was before the Minister, and allocate powers to the judge to make an immediate decision concerning the removal of an individual from the SATA list. [ 56 ] To frame the appeal, subsection 16(6) of the SATA sets out numerous procedural provisions: 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. [ 57 ] Finally,

section 17 of the SATA confirms that

section 16 of the SATA applies to any further appeal of the decision, with necessary modifications. [ 58 ] An analysis of the SATA in its entirety reveals key measures in furthering the SATA ’s objective of protecting Canada’s national security interests and the safety of Canadians in relation to air travel.

Those key measures include the provisions, regulations, and practices relating to the listing of individuals, the prohibitions regarding disclosure of information, the strategic sharing of information with select partners, and the issuing and application of directions to deny transportation or to screen individuals. However, a simple reading of these measures, together with the actual methods in place, shows that the named individual is not involved in the SATA procedures until transportation is denied, if at all.

Therefore, a holistic reading of the SATA suggests that this legislative scheme relies on the administrative recourse provisions at

section 15 and the appeal provisions at

section 16 to balance the SATA ’s objective of protecting national security interests with that of ensuring the protection of individual rights and freedoms. Because the administrative recourse provision at

section 15 offers no explicit guarantee of disclosure, and a limited opportunity to make written submissions, a heavy burden is placed on the appeal mechanism in

section 16 of the SATA to give effect to the balance sought by the statute. [ 59 ] Given the designated judge’s broad discretion under

section 16 of the SATA , they have an important responsibility to ensure the confidentiality of all sensitive information (paragraph 16(6)(b)) as well as to ensure that the appellant is provided with summaries of sensitive information, where possible, so that they may be reasonably informed of the Minister’s case and be provided an opportunity to be heard ( paragraphs 16(6) (

c) and 16(6) (d)).

This is a demanding function that requires a refined approach, especially since this is the first opportunity throughout the entire SATA process for the appellant to “be heard.” It is a delicate task for the designated judge who must ensure the protection of information relating to national security while simultaneously disclosing what can be released and, if possible, to such a point as to allow the appellant to know enough to meet the case and give guidance to counsel and the Amici . [ 60 ] What is more, the designated judge may also receive into evidence anything that is reliable and appropriate while also having the power to base their decision on information or other evidence, even if a

summary of that information or other evidence is not provided to the appellant (paragraphs 16(6)(

e) and 16(6)(f)). Given the possibility that the designated judge may have to rely on information or evidence that cannot be disclosed to the appellant, even in

summary form, and thus cannot be directly challenged by the appellant, the designated judge must ensure that their decision is based on facts and law in an independent and impartial manner. This judicial task was determined to have been achieved in both appeals, as can be seen in the

section entitled “ Findings resulting from the appeal proceedings ” at page 53 in both Reasonableness Decisions ( Brar 2022 and Dulai 2022 ). V. Constitutional questions —

Section 6 of the Charter : Mobility rights [Table of Contents] [ 61 ] The Appellant (Mr. Dulai) has submitted the following constitutional questions: Do sections 8 and 9(1)(

a) of the SATA infringe on the Appellant’s mobility rights pursuant to

section 6 of the Charter ? If so, can this infringement be justified under

section 1 of the Charte r ? A.

Summary of the submissions of the Appellants and Respondent [Table of Contents]

(1) Submissions of Mr. Brar [ 62 ] Mr. Brar did not make any specific submissions in relation to

section 6 of the Charter . Having said that, the Appellant describes in his affidavit the consequences that his listing on the no-fly list has had on his life, his family and his work.

(2) Submissions of Mr. Dulai [Table of Contents] [ 63 ] Mr. Dulai presented his succinct submissions related to

section 6 of the Charter in a document dated March 21, 2022, as well as during oral submissions at the public hearings. He submits that his

section 6 mobility rights have been violated by the Minister’s

decision to deny him the ability to fly domestically. He cannot easily leave or move about the country because of his placement on the no-fly list. He submits that his mobility rights have clearly been restricted. [ 64 ] Mr. Dulai states that subsection 6(2) of the Charter was intended to protect the right of a citizen to move about the country, to reside where they wish, and pursue their livelihood without regard to provincial boundaries. From this perspective, a citizen need not be completely cut off from a particular livelihood to make out a

section 6 violation. He submits that a violation is established if the person is sufficiently disadvantaged in the pursuit of that livelihood. Therefore, “to pursue the gaining of a livelihood” under paragraph 6(2)(

b) should be construed to mean the right to practice on a viable economic basis. [ 65 ] Mr. Dulai advances the argument that boarding an aircraft is a privilege and not a right, but that by virtue of Canada’s size, its geographic location and segments that are inaccessible except by air, a purposive approach to the

interpretation of mobility rights would recognize that it is impracticable to travel through and outside of Canada without boarding an aircraft. [ 66 ] Mr. Dulai is of the opinion that if the Court agrees with his submission that there are no reasonable grounds to suspect that he will fly by air to commit a terrorism offence, then maintaining his name on the SATA list unjustifiably limits his

section 6 mobility rights. Even without that finding, he claims that the Minister’s decision to ban his travelling by air within Canada limits his

section 6 mobility rights in a manner that cannot be demonstrably justified under

section 1 of the Charter . This is because of the Court’s finding, and the Minister’s admission, that there is no evidence that he poses a threat to transportation security. In these circumstances, the prohibition on Mr. Dulai flying domestically cannot be demonstrably justified as a reasonable limit under

section 1 of the Charter . [ 67 ] Moreover, Mr. Dulai submits that the restriction on his ability to fly domestically is a significant limit on his capacity to pursue a livelihood in provinces outside of British Columbia, more specifically managing and maintaining his television studios in Calgary, Winnipeg, Edmonton, and Brampton. He attempted to maintain the studios by driving from Vancouver to Toronto three times, but each journey was expensive, long, and impractical. Mr.

Dulai also runs a joint venture called Yellow Car Rental located near Pearson International Airport in Toronto with a branch outside of Vancouver International Airport. He has not been able to expand the operations of the business because of his inability to fly domestically. [ 68 ] Given the Minister’s admission that Mr. Dulai does not pose a threat to air transportation security, the Appellant argues that the ban on flying domestically is not rationally connected to the objective of protecting Canada’s national security or preventing him from flying to engage in terrorism-related activity.

He maintains that there is no evidence to suggest that he will fly somewhere in Canada to commit a terrorism offence; rather, the Minister’s decision refers to foreign travel. In these circumstances, there is no rational connection between the ban on domestic travel and the objectives of the SATA . As can be read, Mr. Dulai is challenging the constitutional validity of

section 8 and subsection 9(1) because he alleges that the listing of his name on the no-fly list breach his mobility rights. [ 69 ] Mr. Dulai describes in his affidavit the consequences that his listing on the no-fly list has had on his life, his family and his work.

(3) Submissions of the Respondent [Table of Contents] [ 70 ] The Minister (Respondent) presented his written submissions in a memorandum of fact and law dated April 11, 2022. In the document

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