2022 FC, 2022 FC 1164

Date: 20220810 Docket: T-670-19 Citation: 2022 FC 1164 Ottawa, Ontario, August 10, 2022 PRESENT: The Honourable Mr. Justice S. Noël BETWEEN: PARVKAR SINGH DULAI Appellant and CANADA (MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) Respondent JUDGMENT AND REASONS Table of Contents I. Overview 2 II. Background 7 A. Facts in Mr. Dulai’s Appeal 7 B. Procedural history covering both Appeals (Mr. Dulai and Mr. Brar) 9 III. Legislation 10 IV. The public evidence presented by the Appellant 13 V. The public evidence presented by the Minister 17 VI. The public submissions of the Appellant 22 VII. The public submissions of the Minister 27 VIII. Issue 29 A. The applicable standards 29

(1) Standard of Review 29

(2) The threshold standard 32 B. Conflicting evidence has to be assessed on the basis of the balance of probabilities 35 C. The Minister’s decision under review 37 D. The scope of the public evidence resulting from the appeal proceedings 37 E. Legal principles related to the disclosure of national security information in judicial civil and administrative proceedings 48 F. Mr. Dulai’s response to the allegations made against him 52 IX. Findings resulting from the appeal proceedings 53 X. The Prime Minister’s trip to India 57 XI. The finding on whether the decision was reasonable under paragraph 8(1)(

a) of the SATA 59 XII. The boarding denial of May 17, 2018 60 XIII. The finding on whether the decision was reasonable under subparagraphs 8(1)(b)(

i) and (ii) of the SATA 61 XIV. The SATA needs improvement 63 XV. Conclusion 64 JUDGMENT in T-670-19 66 Annex A 67

Annex B 94 I. Overview [ 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 ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ], are addressed in separate decisions; this Judgment and Reasons deal with reasonableness, and a concurrent decision addresses the constitutional issues ( Brar et al v Canada (Minister of 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 Brar v Canada (Minister of Public Safety and Emergency Preparedness) 2022 FC 1163 ).

These are the first appeals filed pursuant to the Secure Air Travel Act , SC 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 the legislation and provide clarity and guidance where deemed necessary. [ 2 ] This Judgment and Reasons [the " “Decision” " ] addresses the appeal of an administrative decision dated January 30, 2019 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. Parvkar Singh Dulai [Mr. Dulai 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 , RSC 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. Dulai submits that the procedure set out in the SATA for determining the reasonableness of the Minister’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. Bhagat Singh Brar [Mr. Brar or, together with Mr.

Dulai, 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 (Minister of 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 in camera hearings would be injurious to national security or endanger the safety of any person.

Upon finding in the affirmative with respect to certain information, I then asked if the protected information and other evidence could be disclosed to the Appellants in the form of a

summary or otherwise in a way that would not jeopardize national security or endanger the safety of any person. The outcome of those decisions was that some redactions were confirmed by the Court, some were fully or partially lifted, and the information underneath other redactions was summarized.

The delicate balance between protecting sensitive information and the right of the person to know the case against them is not uncommon in national security matters, as demonstrated by Charkaoui v Canada (Citizenship and Immigration) , 2007 SCC 9 [ Charkaoui I ] : [55] Confidentiality is a constant preoccupation of the certificate scheme. The judge “shall ensure” the confidentiality of the information on which the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to national security or 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 be injurious to national security or to the safety of any person: s. 78(e). The judge “shall provide” the named person with a

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

summary 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 judge may 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 person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said. […] [58] More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of

disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence ReviewCommittee (SIRC) could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (laterR.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating theprinciples of fundamental justice in that case included the state’s interest in effectively conducting national security andcriminal intelligence investigations and in protecting police sources” (p. 744).

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

section of the Privacy Act, R.S.C. 1985, c. P-21, that mandates in camera and ex parte proceedings wherethe government claims an exemption from disclosure on grounds of national security or maintenance of foreign confidences.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, 2020FCA 129 , 2020 FC 729 [Brar 2020]).

They answered a number of questions raised by the parties and explained at length theprocess to be followed. [10] In these Judgment and Reasons, to which the complementary and confidential reasons in Annex C add, I assess the overall evidencepresented by both parties in relation to whether there are reasonable grounds to suspect that the listed person, in this case, Mr. Dulai, willengage or attempt to engage in

an act that would threaten transportation security, or travel by air to commit certain terrorism offences. [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 A. Facts in Mr. Dulai’s Appeal [13] On March 29, 2018, Mr. Dulai’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, or an offencereferred to in paragraph (

c) of the definition "“terrorism offence”" in

section 2 of that Act. [14] On May 17, 2018, Mr. Dulai was issued a written Denial of Boarding under the Passenger Protect Program (PPP) preventing himfrom boarding a flight at the Vancouver International Airport pursuant to a direction under paragraph 9(1)(

a) of the SATA. Mr. Dulaiwas scheduled to travel from Vancouver to Toronto. [15] On June 8, 2018, the Passenger Protect Inquiries Office (PPIO) received Mr. Dulai’s application for administrative recourse inwhich he sought the removal of his name from the SATA list, pursuant to

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

summary of the information supporting the decision to place his name on the SATA list. The PPIO furtheradvised 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 tothe unclassified information disclosed to him, which he submitted to the PPIO. [16] On January 30, 2019, the Minister advised Mr. Dulai 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. Dulai’s written submissions, the Minister’sdelegate "“concluded that there [were] reasonable grounds to suspect that [Mr. Dulai would] engage or attempt to engage in

an act thatwould threaten transportation security, or travel by air to commit certain terrorism offences.”" [17] On April 18, 2019, Mr. Dulai filed a Notice of Appeal with this Court pursuant to subsection 16(2) of the SATA. Mr. Dulai asksthis 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 ofthe matter back to the Minister for redetermination. Mr. Dulai also asks this Court to declare that sections 8, 15 and 16 as well asparagraph 9(1)(

a) of the SATA are unconstitutional and are therefore of no force and effect, or to read-in such procedural safeguards thatwould cure any constitutional deficiencies in the SATA. [18] More specifically, Mr. Dulai enumerates the following grounds of appeal: that the Minister’s decision was unreasonable and that theprocedures set out in the SATA violate his common law rights to procedural fairness seeing as the SATA deprives him of his right toknow the case against him and the right to answer that case. In his Notice of Appeal, Mr.

Dulai also requested that the Respondentdisclose all material related to his application for recourse, all material related to the Minister’s decision to designate him as a listedperson, all material before the Minister on the application for recourse, and all other material relating to the Minister’s decision toconfirm his status as a listed person under the SATA. B. Procedural history covering both Appeals (Mr. Dulai and Mr.

Brar) [19] Since these appeals have been initiated, several documents have been exchanged, case management conferences (both public and exparte) have been held, public and ex parte hearings took place in both Ottawa, Ontario, and Vancouver, British Columbia and threedecisions 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 [ 21 ] As part of the Reasons in Brar 2020 , it was essential to review and analyze the SATA (see Brar 2020 at paras 58 to 89, in particular with respect to the appeal provisions at paras 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 , SC 2015, c 20, s 11

Loi sur la sûreté des déplacements aériens , LC 2015, c 20, art 11 Appeals Appel Procedure Procédure 16(6) The following provisions apply to appeals under this section: 16(6) Les règles ci-après s’appliquent aux appels visés au présent

article : (

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;

a) à tout moment pendant l’instance et à la demande du ministre, le juge doit tenir une audience à huis clos et en l’absence de l’appelant et de son conseil dans le cas où la divulgation des renseignements ou autres éléments de preuve en cause pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (

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;

b) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (

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;

c) il veille tout au long de l’instance à ce que soit fourni à l’appelant un résumé de la preuve qui ne comporte aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui et qui permet à l’appelant d’être suffisamment informé de la thèse du ministre à l’égard de l’instance en cause; (

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

d) il donne à l’appelant et au ministre la possibilité d’être entendus; (

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;

e) il peut recevoir et admettre en preuve tout élément — même inadmissible en justice — qu’il estime digne de foi et utile et peut fonder sa décision sur celui- ci;

(

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;

f) il peut fonder sa décision sur des renseignements et autres éléments de preuve même si un résumé de ces derniers n’est pas fourni à l’appelant; (

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

g) s’il décide que les renseignements et autres éléments de preuve que lui fournit le ministre ne sont pas pertinents ou si le ministre les retire, il ne peut fonder sa décision sur ces renseignements ou ces éléments de preuve et il est tenu de les remettre au ministre; (

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

h) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que le ministre retire de l’instance. [ 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 paras 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 [ 25 ] In an affidavit dated January 30, 2022, Mr. Dulai 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. Mr. Dulai seeks to address the allegations against him but mentions that it is difficult because the redactions to the Public Safety Canada Memorandum cover the information that formed the basis of the decision to refuse his application for recourse and keep him on the no-fly list.

As a result, he does not feel like he has a sufficient understanding of what the Government says he has done to be able to provide a full response to the allegations and fully defend himself. [ 26 ] In reference to the allegation that he is suspected to be a facilitator of terrorist-related activities, Mr. Dulai replies that he has never planned or facilitated terrorist-related activities anywhere in the world.

He says that he is not, nor has ever been, knowingly associated with Sikh extremism or a Sikh extremist milieu and has never been involved with Babbar Khalsa (BK), or International Sikh Youth Federation (ISYF) as alleged in the Memorandum. To his knowledge, he has no connection to Canadian or internationally based Sikh extremists. [ 27 ] The Memorandum raises concerns about foreign travel in 2012 but Mr.

Dulai replies that to the best of his recollection, and based on the records he has, the only foreign travel he did in 2012 was to the United States to promote an Indian Punjabi film called Sadda Haq (meaning " “Our Right” " ). It was released in Australia, the United Kingdom, the United States, and Canada, but was banned in India. [ 28 ] Mr. Dulai does not deny knowing Jagtar Singh Johal, arrested in India on November 4, 2017 for his alleged role in several high- profile killings of religious and political leaders in Punjab. However, he questions the allegations against Mr. Johal that were reported in the media.

After speaking with Mr. Johal’s defence lawyer, he learned that Mr. Johal was not charged with the murder of Rulda Singh but rather repeated charges of conspiracy to murder. Moreover, the name Rulda Singh is not mentioned in Mr. Johal’s charge sheet and

summary of the allegations. Mr. Johal’s charges have been dismissed in at least one district but have been reinvigorated in other districts and Mr. Johal is still in custody. No evidence has been presented in his case to date. [ 29 ] Mr. Dulai is of the opinion that several supporters of an independent homeland for Sikhs were arrested worldwide for their

involvement in the killing of Rulda Singh, the Punjab-based chief of Rashtriyasikh Sangat’s arm, but were later released for lack of evidence. [ 30 ] Mr. Dulai shares the sentiment that everyone has a right to a fair trial and that no one should be subjected to torture. This is why he re-tweeted the words of Diljit Dosanjh, a Punjabi singer and actor, expressing sadness towards the reports of torture of Mr. Johal after his arrest in Punjab, and pleading for the right to a fair trial, no matter the allegations. Mr.

Dulai never thought the Government could, or would, use a tweet condemning torture as evidence against him. He now feels like he cannot make public statements, even about things like basic human rights, without feeling as if he is putting himself at risk. [ 31 ] Mr. Dulai agrees with the allegation that he is a vocal supporter of Khalistan. He believes in the right to self-determination, based on respect for equal rights and fair equal opportunity. He believes that individuals should be free to choose their sovereignty and international political status without interference or external compulsion.

He believes the only means of achieving an independent state called Khalistan is through non-violent means. Before this case, he also believed that being a vocal supporter of Khalistan was the kind of speech that would not be used against him in Canada. [ 32 ] Mr. Dulai affirms that he does not know the organization Lashkar-e-Tayyiba referred to in the Memorandum in relation to Mr. Brar. He says he is also not aware of any connection that Mr. Brar may have to terrorism or terrorist entities and if he had such information, he would not associate with Mr. Brar. Mr.

Dulai also submits that he has not provided financial support to any terrorist-related activity and to his knowledge, Mr. Brar has not been involved in collecting funds in support of any terrorist activity either. [ 33 ] In reference to the allegation that he was involved in the $175,000 mortgage to Ajaib Singh Bagri a year after his 2000 arrest in connection with the Air India bombing, Mr. Dulai replies that he was not involved because at that time, he was retained to work as a consultant by Peck and Company Barristers, which was representing Mr. Bagri. He therefore had a clear conflict of interest.

He says he has no knowledge of the purported mortgage and that t he source for this allegation appears to be a newspaper

article written by someone who was declared " “far from impartial” " by Wesley Wark, adjunct professor at the University of Ottawa, professor emeritus at the University of Toronto’s Munk School and senior fellow at the Centre for International Governance Innovation who is also an expert on national security and intelligence issues. [ 34 ] Mr. Dulai says he has engaged in non-violent activism by attending the United Nations to raise awareness about the human rights violations that have been committed against the Sikhs in India.

He has also attended peaceful protests to raise awareness about Sikh- related issues. [ 35 ] Mr. Dulai says that he was at the height of establishing a Punjabi-speaking television channel with the aim of connecting the diaspora of Punjabi-speaking people across the world through celebrating their language and culture when his name was registered on the SATA list in 2018. [ 36 ] Due to his inability to fly to tend to his studios in Toronto, Winnipeg, Calgary and Edmonton, he eventually had to close them, suffering major financial losses. Mr.

Dulai says that closing these studios harmed him both financially and psychologically. He is saddened that the vision he had for Channel Punjabi could not be realized due to his inability to fly. [ 37 ] Mr. Dulai says that he has suffered psychological harm because of his listed status. He has been affected by the stigma of being branded a terrorist facilitator and his family has also felt the effects of these allegations through questioning, boarding denial at airports, etc.

He also believes that he is being targeted and punished for being a vocal Sikh activist who believes in the right to self-determination through non-violent means. He believes that his speech, associations, faith, ethnicity and religion have formed the basis for his listing on the no-fly list in Canada. [ 38 ] During his testimony in Vancouver on April 19, 2022, Mr. Dulai mentioned that the fact that his beliefs for self-determination are a consideration that were before the Minister scares him and as a result, he stopped talking about it.

He said that he does not attend rallies or protests anymore, does not tweet about political views anymore, and does not post online. He also stopped doing interviews on his own channel. V. The public evidence presented by the Minister [ 39 ] 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.

Dulai’s inclusion on the SATA list may be found in both appeal books. [ 40 ] 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, is available at pages 25–34 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 is placed on the SATA list based on names and supporting information provided by its members. [ 41 ] Ms. Soper refers to the decision rendered in exigent circumstances by the delegated decision maker, on March 29, 2018, to place Mr. Dulai 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.

Dulai] may present a threat to transportation security or seeking to travel by air for certain terrorism-related purposes. [ 42 ] 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. Dulai was allowed to board one scheduled flight from Calgary to Vancouver with additional screening on April 1, 2018, pursuant to a direction under subsection 9(1) of the SATA . Furthermore, on April 10, 2018 and August 21, 2018, with the benefit of the recommendations of the PPAG, the Senior Assistant Deputy Minister decided that Mr.

Dulai’s name should remain on the SATA list. On May 17, 2018, Mr. Dulai was denied boarding on one scheduled flight from Vancouver to Toronto pursuant to a direction under

subsection 9(1) of the SATA . [ 43 ] Ms. Soper’s affidavit details Mr. Dulai’s recourse application that began on May 28, 2018 when he first applied for recourse requesting that his name be removed from the SATA list. On August 10, 2018, the PPIO provided an unclassified

summary to Mr. Dulai 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. Dulai sought extensions of time to make submissions in email correspondence with the PPIO. [ 44 ] On January 2, 2019, Mr. Dulai provided written submissions and supporting documents including reference letters and information obtained from his access to information requests to government agencies. On January 30, 2019, the Minister’s delegate decided to maintain Mr.

Dulai’s status as a listed person on the SATA list. [ 45 ] 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. Dulai’s name was added to the list still existed and whether his name should remain on the list. At the time she affirmed the affidavit (September 12, 2019) Mr. Dulai’s name remained on the SATA list. [ 46 ] A number of documents relating to the listing of Mr. Dulai 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. Dulai on the SATA list. [ 47 ] On March 1, 2022, this Court received a supplementary public affidavit from the Attorney General of Canada (AGC), signed by Lesley Soper on February 25, 2022. In the document, she provides legislative history and policy documents relating to the SATA .

In this supplementary affidavit, she also provides further details about the PPP, including administrative and exigent listing, de-listing, and the operations of the Government Operations Centre (GOC). [ 48 ] Ms. Soper clarifies circumstances surrounding the listing of Mr. Dulai by stating that the recommendation to list him in exigent circumstances was approved by the Director General at the time, on the same day the request to list was presented, that is, on March 29, 2018. The recommended direction included that Mr.

Dulai be denied boarding on international inbound and outbound flights, and that additional screening be required for domestic flights. [ 49 ] Ms. Soper affirms that on April 1, 2018, Public Safety Canada reported the direction allowing Mr. Dulai to board his scheduled flights from Calgary to Vancouver with additional screening. Based on an event report dated April 1, 2018, and referred to in the September 2019 affidavit as document (ii) of Exhibit A (Revised Appeal Book, pp 42–51), it is Ms. Soper’s understanding that the GOC was contacted at the time Mr. Dulai tried to board the plane.

A Senior Operations Officer from the GOC, as the

section 9 delegated decision maker, decided to allow boarding with additional security screening after considering the information in the case brief, the information provided by Transport Canada and Air Canada and information provided by the nominating agency, which was contacted on that day. [ 50 ] Subsequently, a PPAG meeting occurred on April 5, 2018, following which the PPAG submitted a recommendation to re-list Mr. Dulai, and recommended the adoption of a direction to guide future

section 9 decisions that Mr. Dulai be denied boarding on international inbound and outbound flights, and that additional screening be required for domestic flights. On April 13, 2018, the Senior Assistant Deputy Minister agreed with the recommended direction and re-listed Mr. Dulai. The April 5, 2018 PPAG recommendation and April 13, 2018 decision to re-list is referred to in Ms. Soper’s first affidavit as document (iv) of Exhibit A (Revised Appeal Book, pp 60–70). [ 51 ] On April 27, 2018, an administrative update was made to Mr. Dulai’s case brief, modifying the recommended direction to guide future

section 9 decisions. In particular, the recommended direction was changed to deny boarding on international inbound and outbound flights, as well as domestic flights . Although the document is dated April 5, 2018, Ms. Soper confirms that the administrative update and amended direction occurred on April 27, 2018. The modified recommendation is referred to in her September 2019 affidavit as document (iii) of Exhibit A (Revised Appeal Book, pp 52–59). [ 52 ] In reference to Mr. Dulai’s denial of aircraft boarding, Ms. Soper mentions that Public Safety Canada prepared an event report to that effect on May 17, 2018, which is also referred to in her September 2019 affidavit as document (

v) of Exhibit A (Revised Appeal Book pp 71–78). She says that from reading the event report, it appears the GOC was contacted at the time Mr. Dulai tried to board a flight from Vancouver to Toronto. A Senior Operations Officer from the GOC made the decision to deny boarding after considering the information in the case brief, the information provided by Transport Canada and Air Canada, and the information provided by the nominating agency, which was contacted on that day. [ 53 ] In her public testimony on April 20, 2022 in Vancouver, however, Ms.

Soper admitted to having no record of the administrative decision made on April 27, 2018 and therefore no signature to authorize it. [ 54 ] At the next meeting on August 16, 2018, the PPAG recommended that Mr. Dulai’s name be kept on the SATA list and approved the recommendation made administratively on April 27, 2018. The acting Senior Assistant Deputy Minister of Public Safety decided to re-list Mr. Dulai and approved the recommendation to deny Mr. Dulai transportation for inbound and outbound international flights, as well as domestic flights.

The PPAG recommendation and decision are referred to in documents (vi) of Exhibit A to her September 2019 affidavit (Revised Appeal Book pp 79–93). VI. The public submissions of the Appellant [ 55 ] Mr. Dulai presented his written submissions in a document dated March 21, 2022. In this document, he submits that the Minister’s decision was unreasonable because it is not based on the facts and law before the Court. He also claims that the reasoning process that led to maintaining his name on the list was not rational, intelligible, or transparent. For these reasons, Mr. Dulai wants the Court to order

the Minister to remove his name from the list. [ 56 ] Mr. Dulai submits that the review conducted by the designated judge in a SATA appeal is consistent with a correctness standard of review and inconsistent with a reasonableness standard of review, as those standards are described in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ] . In these circumstances, Mr. Dulai believes it is more appropriate to call the designated judge’s review one of correctness rather than reasonableness, despite the awkwardness of this label in light of the wording of subsection 16(4) of the SATA .

However, from Mr. Dulai’s perspective, the name given to the standard of review is less important than what the judge is empowered to do in a SATA appeal. For the reasons outlined above, the judge’s duty in a SATA appeal to vigorously scrutinize and closely consider all the information and evidence before them without deference to the Minister’s reasoning or conclusions is vital to affording procedural and substantive fairness to the listed person.

Achieving such fairness is, in turn, critical to achieving 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. [ 57 ] Mr. Dulai states that his name can only be maintained on the no-fly list if there are " “reasonable grounds to suspect” " that he will travel by air to commit a terrorism offence. To be reasonable, the suspicion must be grounded in, and based upon, objectively discernible facts that can then be subjected to independent judicial scrutiny.

As per R v Chehil , 2013 SCC 49 [ Chehil ], reasonable suspicion is a robust standard to meet. To be reasonable, the basis for the suspicion needs to be more than educated guesses, hunches, mere suspicions, or generalized suspicions. According to Mr. Dulai, the information and evidence before this Court do not establish reasonable grounds to suspect that he will travel by air to commit a terrorism offence. He states that the evidence presented by CSIS is incapable of meeting this legal standard because for the most part, it contains no objective facts capable of establishing a reasonable suspicion.

Where it does contain objectively discernible facts capable of contributing to a reasonable suspicion, Mr. Dulai affirms that he has provided a credible and reliable explanation for these facts. The Minister’s withdrawal of a key piece of evidence (see written representations of the Appellant Parvkar Singh Dulai at page 28, para 86 ) against him further supports the conclusion that maintaining his name on the list is not reasonable. [ 58 ] Mr. Dulai maintains that he does not have sufficient disclosure to know the critical evidence against him.

These submissions are his best effort to respond to a case against him of which, he submits, he has not been made fully aware. As a result, some of these submissions may be irrelevant to the Court’s analysis because he is responding to evidence that he incorrectly believes lies under the redacted portions of the PPIO memorandum. [ 59 ] Mr. Dulai refuted every allegation presented against him and provided his own evidence in support of his arguments. A detailed

summary of the allegations and his responses can be found at Annex B. [ 60 ] Mr. Dulai submits that the evidence as a whole suggests that he is a well-respected, law-abiding, and effective advocate for Sikhs in Canada and across the globe. He claims that the Government has presented no evidence in a public setting that establishes that he has used violence, threats, or intimidation to promote Sikh interests and Sikh self-determination. Rather, all of the evidence shows that Mr. Dulai works within existing legal, social, and political structures to help the Sikh community. Mr.

Dulai believes that his effective advocacy for Khalistan may make him a target for false accusations and political reprisals. [ 61 ] Mr. Dulai suggests that the timing of his inclusion on the SATA list seems to support the theory that it was done at India’s request and/or for political reasons.

He explains that in February 2018, Prime Minister Justin Trudeau visited India where he met with Punjab Chief Minister Amarinder Singh and was reportedly given a list of nine Canadians " “allegedly involved in promoting radicalism here as the ‘Khalistan’ issue [was] featured prominently in the talks between the two leaders” (see Zhao Affidavit, Exibit 3.1, p 322). " An Indian news outlet subsequently reported that Mr. Dulai’s and Mr. Brar’s names were on the list that the Chief Minister gave to Prime Minister Trudeau. On March 29, 2018, the Minister rendered a decision in exigent circumstances to place Mr.

Dulai on the SATA list. Mr. Dulai believes that the timing of events supports a reasonable suspicion that he has been placed on a no-fly list because of India’s pressure resulting from his and Mr. Brar’s involvement and advocacy for Sikh self-determination. [ 62 ] Furthermore, Mr. Dulai believes the Minister’s decision to prefer the CSIS evidence over the evidence he provided was irrational and unreasonable. He claims that the Minister did not conduct the requisite fact-finding and analysis to determine the credibility and reliability of CSIS evidence. According to Mr.

Dulai, the Minister failed to read the media articles relied upon for the vast majority of the allegations against him. This was unreasonable, given that a review of the content and the tone of each

article as a whole was necessary to allow the Minister to assess the credibility or reliability of the claims made in the articles. [ 63 ] Mr. Dulai also believes it was unreasonable for the Minister to accept the information presented by CSIS at face value after he had persuasively refuted much of CSIS’s unclassified information. This should have caused the Minister to pause and examine the rest of CSIS’s information more closely, but it did not. Instead, without any analysis or scrutiny, the Minister accepted CSIS’s information as the truth and used it to reject Mr.

Dulai’s evidence and justify maintaining his name on the list. [ 64 ] Mr. Dulai is of the opinion that the Minister’s reasons for rejecting his evidence are not transparent because they are largely based on information that has been redacted without any meaningful summaries.

He refers to Vavilov to say that the Supreme Court of Canada [SCC] held that it was " “unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party” " ( Vavilov at para 95 ). According to Mr. Dulai, this is exactly what happened in his case and as a result, the Minister’s reasoning is not transparent or intelligible. [ 65 ] Lastly, Mr.

Dulai claims that the Minister repeatedly relied on his Charter -protected speech, expressions of his religion and beliefs, and innocent associations as evidence that he would travel by air to commit a terrorism offence. He considers that using his non-violent expressions of his beliefs and his non-violent advocacy for Khalistan as evidence that he is a terrorist subverts the protection of the Charter and creates a chilling effect on public participation in the political realm. Mr.

Dulai also argues that the Minister’s reasoning is inconsistent with the objective of the SATA , which is to respect individual rights and freedoms while protecting national security. According to Mr. Dulai, the Minister’s reliance on his Charter -protected conduct as a basis for his suspicion is irrational because, under the law, it cannot form part of the grounds for suspicion.

VII. The public submissions of the Minister [ 66 ] The Minister presented his written submissions on April 11, 2022, in which he requests an order that this appeal be dismissed and that Mr. Dulai’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. [ 67 ] In the present decision, I focus on the submissions relating to the reasonableness of the Minister’s decision.

However, the Minister’s submissions supporting the argument that SATA proceedings are procedurally fair and consistent with sections 6 and 7 of the Charter are available in the decision dealing with constitutional questions, issued concurrently. [ 68 ] 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. [ 69 ] The Minister asserts that the recourse decision is rational and tenable.

The reasoning for the recourse decision as set out in the Memorandum dated January 30, 2019 explains the background and chronology of Mr. Dulai’s case, the allegations set out in the CSIS case brief and the

summary of Mr. Dulai’s submissions. The recourse decision specifically addresses the contradictions between Mr. Dulai’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 concerns about Mr. Dulai’s foreign travel in 2012. [ 70 ] The Minister asserts that the public

summary of the evidence of the CSIS witness who testified during closed proceedings supports the credibility and reliability of the information contained in the case brief before the Minister’s delegate. The Minister believes that the recourse decision to maintain Mr. Dulai on the SATA list is reasonable, and the reasons for doing so are internally coherent and contain a rational chain of analysis that is justified in relation to the facts and law. [ 71 ] 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 the SCC decision in Canada (Citizenship and Immigration) v Harkat , 2014 SCC 37 [ 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 [ 72 ] The issue raised in this appeal is as follows: 1.

Is the Minister’s delegate’s decision of January 30, 2019 reasonable based on the i nformation available? [ 73 ] 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. Dulai’s name on the no-fly list is reasonable. A.

The applicable standard s (1) Standard of Review [ 74 ] 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)). [ 75 ] As outlined above, the Minister submits that based on subsection 16(4) of the SATA , the decision should be reviewed on a reasonableness standard while the Appellant submits that the review conducted by the designated judge in a SATA appeal is consistent with a correctness standard of review. [ 76 ] As explained by the SCC in 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 applies in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute” ( Vavilov , para 37 ). [ 77 ] 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 , para 83 ). However, the

SATA specifies that the appellate judge must “determine whether the decision is reasonable on the basis of the information available tothe judge.” Indeed, the SATA allows for fresh evidence to be presented on appeal. As a result, a designated judge hearing a SATAappeal may be of the view that the Minister’s rationale, based on the information that was before him, is thoroughly unreasonable eventhough 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 appealproceedings, but that new reliable and appropriate evidence received by the designated judge would be sufficient to justify a decision foran appellant to remain on the no-fly list. The rationale for a decision cannot be reviewed on a reasonableness standard when the recordon appeal is no longer the same.

This analysis is reflected in Parliament’s choice in opting for an appellate scheme – which is lessconcerned with the rationale – over a judicial review framework. [78] Neither do I believe the Appellant is correct in stating that the appellate standard of review in the SATA resembles a correctnessstandard given that the decision is one of mixed fact and law, which would attract the standard of the palpable and overriding errorstandard of review. [79] Considering the text of subsection 16(4) in conjunction with the SCC’s guidance in Vavilov, the appellate standard of reviewprescribed by statute is that the designated judge must determine whether the outcome of the decision under review – effectively thelisting of the individual pursuant to

section 8 of the SATA – is reasonable in light of the evidentiary record on appeal. In essence, thisrequires that the designated judge evaluate, based on the appeal record, whether it is reasonable to find that there are reasonable groundsto suspect the appellant will engage in the acts described in

section 8 of the SATA. [80] Determining the applicable review standard in the SATA legislation was not a simple endeavour and I benefited from counsel’ssubmissions at the public hearings. I had concerns, expressed during the public hearings, that the applicable standard of review could notsimply amount to “rubber-stamping” the administrative recourse decision given the scheme of the SATA, in particular the fact that I hadaccess to more information than was before the Minister’s delegate. I am satisfied that the legislatively prescribed standard, as I haveoutlined 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 [81] In assessing whether the overall evidence is sufficient to find that the decision to list the individual, in this case Mr.

Dulai, isreasonable, a designated judge must remain cognizant that the decision to list must be evaluated on the reasonable grounds to suspectthreshold. [82] Such a threshold implies that the evidentiary record must show grounds that are more than mere suspicion and less than belief, andit must be based on objective evidence that suggests a possibility, but not necessarily a probability. [83] The SCC explained the standard of reasonable grounds to suspect in Chehil, a criminal case involving the use of drug-detectiondogs.

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

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 thiscase. “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 basedupon reasonable and probable grounds. [27] Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they bothmust be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, ratherthan probability, of crime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautiousnot to conflate it with the more demanding reasonable and probable grounds standard. [29] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider theconstellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that anindividual is involved in the type of criminal activity under investigation.

This inquiry must be fact-based, flexible, andgrounded in common sense and practical, everyday experience: see R. v Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para 50. [30] 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 asubjectively administered, random basis” for a search: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p 83.

TheAmerican jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968).

Indeed, the reasonable suspicion standard is designed to avoidindiscriminate and discriminatory searches. [32] 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 thatgive rise to a reasonable suspicion may also support completely innocent explanations.

This is acceptable, as the reasonablesuspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. [33] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. Thetotality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving atany conclusion regarding reasonable 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 has good reason to believe is unreliable”. This is self-evident. [Emphasis added.] [ 84 ] From these reasons, " “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, which includes exculpatory evidence, public evidence and the confidential evidence presented during ex parte and in camera hearings must be considered.

Findings must not be based on a single set of facts but rather on some consistent indicators, whether in the public or confidential evidence, or both. This does not imply that there must be only one inference drawn from a set of facts; but such a determination must take into account the entirety of all the evidence presented. Overall, the threshold requires determining whether there exists a possibility that the Appellant would engage or attempt to engage in

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

an act or omission related to terrorism elsewhere or in Canada, rather than the probability of him doing so. [ 85 ] I may add that in an appeal where evidence was presented ex parte and in camera without the presence of the Appellant but with the 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 [ 86 ] The Minister’s witnesses were examined and cross-examined at the first stage of the ex parte and in camera proceedings over three (3) days in the matter of Dulai 2021 in November 2020. The Minister submitted new evidence, including some pertaining to the injury to national security caused by the disclosure of contested redactions and proposed summaries, as well as some on the reliability and credibility of the redacted information.

Essentially, the initial burden of justifying why certain information should be kept confidential was on the Minister. Following these hearings, new information was disclosed to the Appellant through lifts of redacted information and the issuance of summaries of redacted information. [ 87 ] Both parties were given the opportunity to be heard; they made written submissions and public hearings were convened to hear oral evidence.

The Minister retained the initial burden of proof, but as the Appellant presented his own evidence in response to the charges levelled against him, some contradicting information emerged. [ 88 ] These conflicting factual viewpoints had to be assessed. The Immigration and Refugee Protection Act , ( SC 2001, c 27 ) [IRPA] certificate proceedings, which share many of the same legal aspects as the SATA (see reasons in Brar 2020 at paras 128–139), provide useful guidance in assessing evidence where opposing facts are presented, namely that conflicting facts should be assessed on the balance of probabilities standard.

The following IRPA jurisprudence reflects this principle. In Almrei (Re) , 2009 FC 1263 , Justice Richard Mosley had this to say: [101] I am of the view that “reasonable grounds to believe” in s. 33 implies a threshold or test for establishing the facts necessary for an 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, the reasonableness standard requires a weighing of the evidence and findings of which facts are accepted. A certificate can not be held to be reasonable if the Court is satisfied that the preponderance of the evidence is to the contrary of that proffered by the Ministers. [ 89 ] In Jaballah (Re) , 2010 FC 79 , Justice Eleanor Dawson (as she then was) adopted a similar view: [45] Further, notwithstanding the interpretive rule contained in

section 33 of the Act, where there is conflicting evidence on a point, the Court must resolve such conflict by deciding which version of events is more likely to have occurred.

A security certificate cannot be found to be reasonable if the Court is satisfied that the preponderance of credible evidence is contrary to the allegations of the Ministers. [ 90 ] In this spirit, the challenge now shifts to analyzing whether the Minister’s decision is reasonable in light of the evidence available to the judge (see subsection 16(4) of the SATA and para 117 in Brar 2020 ). [ 91 ] In light of the aforementioned principles, it is appropriate to go over the public evidence submitted by both parties and make necessary determinations.

I shall begin with a description of the Minister’s delegate decision before moving on to the public evidence presented. C. The Minister’s decision under review [ 92 ] The decision dated January 30, 2019 is an 11-page document, including the cover letter, which concludes that there are reasonable grounds to suspect that 1) the Appellant will engage or attempt to engage in

an act that would threaten transportation security, or 2) travel by air to commit certain terrorism offences. As a result, the Appellant’s status as a listed person under the SATA is maintained. [ 93 ] In the same decision, one can also see 10 pages from a PPAG redacted document that was provided to the Associate Deputy Minister to consider before making a decision. It includes a backgrounder, a recourse case chronology with five tabs (four of which relate to Mr. Dulai’s application and exchanges of public correspondence, while one refers to a confidential CSIS case brief), the considerations from both parties (including the Appellant’s submissions and a redacted

summary of the CSIS case brief), an analysis, and the options presented to the Minister’s delegate, including the one chosen. [ 94 ] I will now turn to the public disclosure of the information and the case against Mr. Dulai as it evolves through the appeal process.

D. The scope of the public evidence resulting from the appeal proceedings [ 95 ] The appeal proceedings allowed the Appellant to access more information than what he was provided with during the recourse proceeding. On August 10, 2018, the Appellant received a response from the PPIO after sending his administrative review application (pursuant to

section 15 of the SATA ) on May 28, 2018. It was the first time that Mr. Dulai was privy to a public outline of some of the allegations levelled against him. The response from the PPIO was intended to provide Mr. Dulai with a reasonable understanding of what would eventually be presented to the Minister’s delegate, as well as an opportunity to respond to the claims through written submissions.

The document made it clear that classified information would be included " “for the Minister’s delegate’s eyes only.” " The following is a list of the allegations and comments as found in the Revised Appeal Book dated October 12, 2021 at pages 158 and 159: 1 . Media reporting dated November 19, 2017, revealed that the Indian (Punjab) Police linked United Kingdom national Jagtar Singh JOHAL (arrested in India on November 4, 2017 for his alleged role in several high profile killings of religious- political leaders in Punjab) with an accused in the 2009 murder case of R. SINGH.

The police revealed that JOHAL went to Canada in August 2016, and met militant elements such as Mr. DULAI. 2. Open information dated November 2017 showed that Mr. DULAI released the following message related to JOHAL: “Saddened to hear the reports of torture of Jagtar Singh JOHAL after his arrest in Punjab. Whatever the allegations on him may be, every person has the right to a free trial. As Sikhs we pray for Sarrbat Da Bhalla.” 3. Mr. DULAI was associated with the Sikh Vision Foundation (SVF/Sikh Vision (SV)) in the mid 2000s. Mr.

DULAI worked as an investigator for the Air India defence teams, and represented the SVF. Media reporting dated February 2005 stated that the SVF gave a $175,000 mortgage to Ajaib Singh BAGRI a year after his 2000 arrest in connection with the Air India bombing. Bargri was acquitted in 2005. 4. Media reporting in 2003 described SV’s website as displaying numerous photos of Babbar Khalsa (BK) founder and former B.C. resident Talwinder Singh PARMAR referred to as ‘holy priest’ and ‘martyr’. (BK is a listed entity in Canada since June 2003 pursuant to subsection 83.05(1) of the Criminal Code ).

In one picture PARMAR was sitting in front of the Sikh holy book and two AK-47s and other weapons and there were photos of SV leaders wearing black vests emblazoned with the BK logo. A photo featured a teenage boy with a gun and ammunition belt beside a bolt lightning and another picture showed the assassins of India prime minister Indira Gandhi, above a caption that referred to them as ‘martyrs’. There was also a poem that criticized those who promote non-violence in the name of Sikhism. Media reporting of April 2007 represents Mr.

DULAI as the Vaisakhi parade organizer in Surrey, B.C., that included a tribute to PARMAR. 5. PARMAR was found by the B.C. Supreme Court to be the leader of the conspiracy to blow up the two Air India planes on June 23, 1985. 6. Mr. DULAI is a contact of Bhagat Singh BRAR. According to an April 17, 2018 media report, BRAR was identified as a Canadian Khalistani extremist having received a Pakistani visa for a Sikh pilgrim in April 2018.

The report referred to a meeting in Lahore, between the leaders of Lashkar-e-Tayyiba (LeT) (a listed entity in Canada pursuant to subsection 83.05(1) of the Criminal Code ) and Sikh militancy, and claimed that Pakistan is inciting pro Khalistan / anti India sentiment. The report also referred to the Pakistan Interservices Intelligence Directorate being hand-in-glove with Pakistani terrorists supporting global Khalistanis. Pakistan denied India’s allegations. Included in the

article was a photograph of BRAR’s visa and passport page with the heading, ‘Proof #6 Pak Visas for Canadian Khalistan Extremists’. 7. Mr. DULAI is suspected to be a facilitator of terrorist-related activities, and has shown ongoing pattern of involvement within the Sikh extremist milieu. 8. In addition to the foregoing information, Public Safety Canada relies on classified information. This information further illustrates Mr. DULAI’s support for terrorist activities, as well as his associations with individuals of concern to the national security of Canada. [ 96 ] Mr.

Dulai filed his submissions on January 2, 2019 after a number of requests for extensions were granted. As mentioned in these reasons, a decision to keep him on the SATA list was rendered on January 30, 2019. [ 97 ] On April 18, 2019, an appeal was lodged against that ruling. [ 98 ] An appeal book was prepared in accordance with the Federal Courts Rules (SOR/98-106, subsections 343(1) to (5) ) and contained more information than had previously been made publicly available. Among the many documents found in the appeal book were those filed by the Appellant in support of his delisting application.

It also contained 11 documents from Public Safety Canada, one of which was the Minister’s delegate’s decision to maintain Mr. Dulai on the SATA list. The remaining 10 documents containing redactions found in the Revised Appeal Book at pages 36–93 and 334–355 are summarized below: Exhibit “A” A 6-page document dated March 29, 2018: A decision of the PPAG chair to register Mr.

Dulai on the SATA list in exigent circumstances and denying international transportation (inbound and outbound of the country) but allowing domestic flights with additional screening; An event report dated April 1, 2018 related to WestJet flights 137 (Calgary YYC to Vancouver YVR) and 702 (Vancouver to Toronto). The report mentions that Mr. Dulai was authorized to board another flight with additional screening; Unsigned handwritten notes on a SATA call sheet dated April 1, 2018 and describing the timeline surrounding the issuance of the direction to allow Mr.

Dulai to board a WestJet flight from Calgary with additional security screening;

A Government Operations Centre report dated April 1, 2018 about the incident and the direction to WestJet from the same date; A 7-page unsigned document dated April 5, 2018 (AGC0008) recommending that Mr. Dulai be kept on the SATA list for both domestic and international flights; A 10-page document dated April 10, 2018 in which the PPAG recommends the listing of Mr. Dulai to the Senior Assistant Deputy Minister, which was accepted on April 13, 2018.

It also includes the document mentioned above signed by all PPAG members and recommending boarding denial on international flights and requiring additional screening for domestic flights; A 7-page document, which includes a report by Transport Canada dated May 17, 2018 and details the sequence of events that resulted in the issuance of a direction to WestJet not to allow Mr. Dulai to board the flight from Vancouver to Toronto.

It also included handwritten notes on a SATA call sheet from the same date; A 14-page document dated August 21, 2018 and addressed to the Senior Assistant Deputy Minister in which the PPAG seeks a decision on the listing and recommended directions for […] new nominations; and ask to agree to the de-listing and to updates for […] listed individuals. It includes a recommendation to relist Mr. Dulai on August 16, 2018, which was accepted.

Exhibit “C” A 10-page document dated February 14, 2019, and addressed to the Senior Assistant Deputy Minister in which the PPAG recommends (which is accepted) the update of the SATA list which included the name of Mr. Dulai; A 12-page dated May 15, 2019, and addressed to the Senior Assistant Deputy Minister in which the PPAG recommends (and is accepted) new listings and updates for […] listed individuals. It also includes a 6-page case brief on Mr. Dulai dated May 7, 2019. [ 99 ] As per paragraph 16(6) (

a) of the SATA , the Minister asked the Court for ex parte and in camera hearings to hear information or other evidence that he believed could be injurious to national security or endanger the safety of any person if disclosed. Two witnesses were examined and cross-examined in the presence of the Minister’s counsel and the Amici over the course of several days of hearings. Throughout the hearings, this Court issued communications to the Appellant, his lawyers, and the Minister’s public counsel summarizing the proceedings as they progressed. [ 100 ] In addition to the public

summary of the hearings that was communicated to the Appellant (Public Communication No. 7) on November 3, 2020, three additional Public Communications were issued between September 25, 2020 and December 2, 2020. Below is an overview of what was published : Public Communication (no number assigned), September 25, 2020 Ex parte and in camera case management conference was held on September 22, 2020 in the matters of Brar v Canada (T- 669-19) and Dulai v Canada (T-670-19). Counsel for the AGC and the Amici provided an update on the progress of the two appeals.

The AGC received the Amici ’s position on each of the national security redactions on August 31, 2020. The Attorney General counsel and the Amici have met three times since then to discuss the redactions. These meetings have been productive – the Attorney General counsel and the Amici have largely agreed on which redactions are contentious and which are not, and which redactions can be lifted.

The Amici advised the Court, further to this Court’s oral Direction dated May 11, 2020, and in light of paragraphs 247-249 of the recent reasons, that no further steps were required regarding the information that the AGC has withdrawn. The Attorney General counsel filed a replacement ex parte affidavit on September 10, 2020 for the redactions claimed by CSIS. CSIS’ previous affiant is no longer available.

Additionally, the Attorney General counsel will file a supplemental ex parte affidavit by September 25, 2020 from CSIS that will address, among other things, the credibility and reliability of the redacted information in light of Justice Noël’s reasons issued on June 30, 2020. The supplemental affidavit will be affirmed by the same affiant as the replacement affidavit. The Amici indicated that they would likely call between 2-4 witnesses for each appeal, to be determined shortly.

Counsel for the AGC will canvass the potential witnesses’ availability, discuss scheduling with the Amici , and the Attorney General counsel and Amici will jointly advise the Court. As for the scheduling of hearing dates, they shall be scheduled in October and if required in early November. The Attorney General counsel proposed that each witness also be provided with the proposed summaries as an aide memoire. The Amici explained that they are not necessarily opposed to putting proposed summaries before witnesses. The Amici took the position that the determination of whether a proposed

summary is injurious to national security is ultimately a question for the Court, and that the Court could make that determination with or without additional evidence from the witness on a proposed

summary. Finally, the Attorney General counsel and the Amici advised the Court of their joint position that written and oral arguments are necessary following the two hearings. Public Communication No. 6, October 7, 2020

An ex parte and in camera hearing was held on October 5, 2020 in the matters of Brar v Canada (T-669-19) and Dulai v Canada (T-670-19). The Amici took the Court through a list of redactions about which the Attorney General counsel and Amici have reached an agreement. In some instances, the agreement has been to lift the redaction. In others, the agreement has been to summarize the redacted information. In others, the agreement has been that no lift of the redaction or

summary can be made consistently with national security concerns. Those matters will have to be addressed in further ex parte and in camera proceedings. The Court accepted the lifts and summaries agreed to date. They will be released to the Appellants together with further lifts and summaries of redacted information following the upcoming hearings. The Amici and Attorney General counsel expect to have more agreed-upon lifts and summaries to present to the Court at the upcoming hearings.

Matters that cannot be agreed by the Amici and the Attorney General counsel will be determined by the Court following the upcoming hearings. Public Communication No. 8, December 2, 2020 The ex parte and in camera examination and cross-examination of the Minister’s witnesses in the matter of Dulai v Canada (T-670-19) took place over three (3) days in November, namely November 16, 17 and 23, 2020. The Minister presented evidence on the injury to national security of disclosing the contested redactions and proposed summaries, as well as the reliability and credibility of the redacted information.

At the outset of the hearing, the Attorney General counsel and the Amici consented to an order that would render the evidentiary record resulting from the Brar hearings on October 14, 15, 16, 19 and 20, 2020 and the evidentiary record resulting from the Dulai hearings evidence in both appeals, subject to any arguments in relation to the weight, relevancy and admissibility of the evidence (the “Evidentiary Order”). This allowed for efficiencies in the Dulai examinations and cross- examinations. Court began at 9:45 a.m. on November 16, 2020. The Attorney General counsel commenced by filing four (4) charts, namely (

i) a classified chart listing all of the contested redactions and contested summaries, (ii) a classified chart itemizing the proposed uncontested redactions, uncontested summaries and lifts agreed to by the Attorney General counsel, (iii) a classified chart containing only the CSIS contested redactions and summaries organized in a way to guide the examination of the CSIS witness, and (iv) a classified chart listing excerpts from the transcript of the Brar hearings that apply to the present hearings. Court resumed in the morning of November 17, 2020 at 9:30 a.m.

The Amici continued to cross-examine the CSIS witness, and questions focused on the reliability and credibility of the redacted information and the injury to national security of releasing certain information or summaries. The Amici filed a number of exhibits on various topics.

The cross-examination was complete near the end of the day, after which the Attorney General counsel conducted a brief re-direct of the CSIS witness. [ 101 ] At the conclusion of these hearings, a decision had to be made with respect to the validity of the redactions made by the Minister over information found in documents in the revised appeal book. To that end, the Court undertook extensive work to establish which redactions should be confirmed, which redactions needed to be partially lifted, and which redactions needed to be summarized.

On October 5, 2021, an updated Public Order and Reasons was issued, which comprised one public and two classified an

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