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Aviation - Secure Air Travel Act (SATA)
MORE CASES
Part 2
. Singh Brar v. Canada (Public Safety and Emergency Preparedness)
In Singh Brar v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2024) the Federal Court of Appeal dismissed a request to 'de-list' the appellant from a 'no-fly list' under the Secure Air Travel Act.
Here the appellant advanced Charter s.7 ['life, liberty and security of the person'] arguments:(1) The Charter issues
[8] The respondent submits that neither the provisions of the Act nor the placement of the appellants on the list offends their mobility rights within or to and from Canada under s. 6 of the Charter. Among other things, the respondent submits that s. 6 does not protect rights to a mode of transport. The respondent adds that neither the provisions of the Act nor the placement of the appellants on the list offends the appellants’ rights to liberty and security of the person under s. 7 because the appellants have suffered only some inconvenience with the running of their businesses and psychological stress, not serious harm of a medical nature.
[9] It is unnecessary to decide upon the respondent’s submissions and, more generally, whether the Secure Air Travel Act violates the appellants’ mobility rights under s. 6 of the Charter or rights to liberty and security of the person under s. 7 of the Charter.
[10] Legislation that violates s. 6 of the Charter can be justified as a reasonable limit prescribed by law under s. 1. And deprivations of the rights to liberty and security of the person under s. 7 of the Charter can be in accordance with the principles of fundamental justice. As explained below, to the extent s. 8 and para. 9(1)(a) of the Secure Air Travel Act violate s. 6 of the Charter, they are justified under s. 1. And to the extent ss. 15 and 16 of the Act deprive the appellants of rights to liberty or security of the person under s. 7 of the Charter, the deprivation is in accordance with the principles of fundamental justice.
[11] In a future case, both the Federal Court and this Court should regard the ss. 6 and 7 issues in this case as open to full argument. There is reason to doubt the correctness of the Federal Court’s view that Mr. Dulai’s s. 6 rights were infringed because the Federal Court may have departed from the accepted approach for interpreting the Charter in general and s. 6 of the Charter in particular: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426 at paras. 8-18; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157, 166 D.L.R. (4th) 1 at paras. 49-92; Canada v. Boloh 1(a), 2023 FCA 120 at paras. 14-51. And there is reason to doubt the correctness of the Federal Court’s finding of a rights breach under s. 7 because of the high quality and rare nature of the evidence needed in this context to establish a breach: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 at paras. 59-60; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 47-57.
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(b) Section 7 of the Charter and the principles of fundamental justice
[24] Here again, I substantially agree with the Federal Court, for the reasons it gave. Any deprivation of the appellants’ s. 7 rights to liberty and security of the person was in accordance with the principles of fundamental justice. I adopt the Federal Court’s reasons on this point.
[25] The scheme under the Secure Air Travel Act is quite similar to the security certificate scheme established under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Both are prompted by national security and public safety concerns. Both prescribe or permit rigorous measures and mechanisms to give affected individuals as much procedural fairness as possible in the circumstances. For example, just like those in security certificate proceedings under the Immigration and Refugee Protection Act, individuals placed on the list under the Secure Air Travel Act are entitled, among other things, to reasonable disclosure of the case against them, a fair hearing presided by an independent and impartial judge, and independent, neutral decisions based on the facts and the law: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 ("“Charkaoui 2007”") at para. 29; Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 at paras. 40-44.
[26] When confidential security information is in play, as it is here, the interests of individuals placed on the list under the Secure Air Travel Act can be represented in closed security hearings by an amicus curiae, with a role almost identical to the "“special advocates”" who represent affected individuals in closed security hearings under the Immigration and Refugee Protection Act. The involvement of an amicus curiae ensures the protection of the appellants’ right to know the case against them and their right to answer it: Harkat at paras. 28-77.
[27] The Supreme Court has ruled the procedural protections in the Immigration and Refugee Protection Act, including the use of special advocates, to be constitutionally sufficient: Harkat at para. 77. Given the substantially similar protections under the Secure Air Travel Act and the ability of the Federal Court to make use of amici curiae, the same result must follow.
[28] This is especially so given the lesser consequences that affected individuals face as a result of listing under the Secure Air Travel Act: a range of measures ranging from enhanced security screening to a ban on flying, perhaps only temporary and brief, and perhaps no measures at all. While these measures can greatly affect some, they pale in comparison to the consequences affected individuals face in security certificate proceedings under the Immigration and Refugee Protection Act: permanent removal from Canada or indefinite detention.
[29] The appellants point to the fact that unlike security certificate proceedings under the Immigration and Refugee Protection Act, the Secure Air Travel Act does not explicitly provide for the involvement of an amicus curiae or a special advocate to access confidential security information and represent the interests of affected persons in closed proceedings. The Secure Air Travel Act merely leaves open the possibility that an amicus curiae might be appointed. This, the appellants say, is a fatal procedural shortcoming in the Act, one that is contrary to the principles of fundamental justice under s. 7. They say that the Supreme Court’s decision in Charkaoui 2007 supports their position. I disagree.
[30] The Secure Air Travel Act allows the Federal Court the flexibility to tailor its procedures to the particular circumstances to meet the requirements of procedural fairness and the principles of fundamental justice. Flexibility is needed because the circumstances giving rise to placement on the list under the Secure Air Travel Act vary considerably and confidential security information may not be in issue:At one end is placement on the list based only on publicly available information. There, the Federal Court’s hearing can be public and an affected individual’s counsel can participate fully. An amicus curiae to represent the interests of the individual is not needed.
At the other end is placement on the list based in whole or in part on confidential security evidence. There, an amicus curiae to represent the interests of the individual may be needed. [31] This is quite unlike security certificate proceedings under the Immigration and Refugee Protection Act where, due to the nature of the proceeding and the specific standards set out in the Act, confidential security information will be pervasive. The Immigration and Refugee Protection Act provides that highly sensitive "“security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization”" (s. 76) is to be used to prove inadmissibility or to prove the need for detention, continued detention or variation of detention (ss. 82-82.2). Given the pervasiveness of the confidential security information, it makes sense that the Immigration and Refugee Protection Act has to expressly provide for special advocates to receive that information and represent the interests of affected individuals.
[32] That is not all. In Charkaoui 2007 (at para. 60), the Supreme Court highlighted the drastic consequences of security certificate proceedings under the Immigration and Refugee Protection Act—potential removal from Canada or indefinite detention—and held that those consequences required the highest of procedural protections under s. 7 of the Charter. Thus, in Charkaoui 2007, the Supreme Court held (at paras. 80-84) that the Act could specifically set out the protective mechanism of special advocates to represent the interests of affected individuals.
[33] However, in words apposite to the present case, the Supreme Court added (at paras. 57-59) that procedural protections under s. 7 of the Charter need not be as high in other contexts where the consequences are less drastic.
[34] That is the case here. As noted at paragraph 28 above, the consequences of listing under the Secure Air Travel Act—a range of measures ranging from enhanced security screening to a ban on flying, perhaps only temporary and brief, and perhaps no measures at all—are far less drastic than those in security certificate proceedings under the Immigration and Refugee Protection Act.
[35] Accordingly, in this case, it is not constitutionally incumbent on Parliament to require the use of an amicus curiae to protect the affected individual’s interests in every case arising under the Secure Air Travel Act. Instead, the Secure Air Travel Act leaves it up to the Federal Court to decide what is necessary in the circumstances.
[36] Is there anything we should be concerned about here? No. Under many legislative regimes and in many hearings and processes in our legal system, it is left to judges to devise and implement protective procedures based on the particular circumstances that present themselves: see, e.g., R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110 at para. 40 and sensitive proceedings under legislation such as the Canada Evidence Act, R.S.C. 1985, c. C-5 and the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23. And there is no gap in protection. If the Federal Court fails to devise and implement any necessary protective procedures while operating under this particular legislative regime, for example by not appointing an amicus curiae when one is needed to protect an affected individual’s interests, this Court will quash its decision.
[37] For the foregoing reasons, ss. 15 and 16 of the Secure Air Travel Act are consistent with the principles of fundamental justice.
[38] However, we must now examine what actually happened in this case. Did the appellants enjoy the benefit of the principles of fundamental justice under s. 7 of the Charter? Were they treated in a procedurally fair and adequate way?
[39] The answer to both is yes. The Federal Court played a robust and active role throughout in ensuring that the appellants were treated in a procedurally fair way:The Federal Court recognized that this particular case involved confidential security information. So it appointed two well-qualified, experienced lawyers to serve as amici curiae to advance the appellants’ interests in the confidential portions of the hearings dealing with that information. The Federal Court gave the amici curiae a broad mandate, nearly identical to "“special advocates”" in security certificate proceedings under the Immigration and Refugee Protection Act and they discharged that mandate thoroughly. The appointment of persons like this is a substantial substitute to full disclosure in sensitive cases involving confidential and classified national security evidence, and essential to ensure fairness: Harkat at paras. 34-37, 46-47, and 67-73. Given the extent and quality of the participation of the amicus curiae in the present case (see 2020 FC 729 at para. 217 and the resulting order issued by the Federal Court), the appellants’ interests were represented and advanced very well.
The Federal Court played an active, robust, interventionist, non-deferential, gatekeeper role in ensuring procedural fairness throughout, in particular by giving the appellants full disclosure or a substantial substitute to full disclosure in the form of in-depth analyses and high-quality, very detailed public summaries. In doing so, the Federal Court ensured the appellants received an "“incompressible minimum amount of disclosure” "and discharged the requirement under para. 16(6)(c) of the Secure Air Travel Act to keep the appellants reasonably informed: Charkaoui 2007 at paras. 61-63; Harkat at paras. 40-44 and 51-64. [40] Having examined the unredacted confidential security information, I conclude without hesitation that the Federal Court disclosed as much as it could to the appellants and to the amici curiae, mindful of its obligation not to allow disclosure if, in its opinion, it would be injurious to national safety or endanger the safety of any person (para. 16(6)(c)). The appellants themselves, or through the amici curiae representing their interests, had sufficient information to know the case to meet and to make full answer and defence. The Federal Court was so satisfied: 2022 FC 1163 at para. 126; 2022 FC 1164 at para. 124; 2022 FC 1168 at para. 222. This is a finding that can be set aside only on the basis of palpable and overriding error—an obvious error capable of changing the outcome—and none has been shown here.
[41] The appellants submit that the amici curiae in this case could not represent their interests adequately, citing Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 at para. 49. I disagree. Criminal Lawyers stands for the proposition that a court cannot give an amicus curiae a mandate that obliges them to take on a solicitor-client role. That didn’t happen here. Instead, the amici curiae were appointed to represent the appellants’ interests to the fullest extent possible by serving as a substantial substitute for the appellants’ full participation in the confidential portion of the proceedings and full disclosure of confidential material. This salutary procedure is regularly followed in national security proceedings, with demonstrably beneficial results: 2020 FC 729 at paras. 157-177. In this case, the amici curiae represented the appellants’ interests fully and effectively. The Federal Court so found. That finding is not vitiated by palpable and overriding error.
[42] For nearly forty years, the Supreme Court has repeatedly reminded us that s. 7 of the Charter guarantees those facing state-run proceedings "“adequate”" procedural fairness, not "“the most favourable procedures that could possibly be imagined”": R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193 at para. 88; in the national security context, see also Harkat at para. 43 and Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 at para. 46.
[43] In the present case, knowing what was disclosed to the appellants and the amici curiae, considering the activities of the amici curiae in reviewing the confidential evidence and making submissions on it, and taking into account the exceptional vigilance of the Federal Court in ensuring procedural fairness throughout, I conclude that the procedures followed were not just adequate. They were well beyond adequate. . Singh Brar v. Canada (Public Safety and Emergency Preparedness)
In Singh Brar v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2024) the Federal Court of Appeal dismissed a request to 'de-list' the appellant from a 'no-fly list' under the Secure Air Travel Act.
Here the appellant tried to advance Charter s.6 ['mobility rights'] arguments:(1) The Charter issues
[8] The respondent submits that neither the provisions of the Act nor the placement of the appellants on the list offends their mobility rights within or to and from Canada under s. 6 of the Charter. Among other things, the respondent submits that s. 6 does not protect rights to a mode of transport. The respondent adds that neither the provisions of the Act nor the placement of the appellants on the list offends the appellants’ rights to liberty and security of the person under s. 7 because the appellants have suffered only some inconvenience with the running of their businesses and psychological stress, not serious harm of a medical nature.
[9] It is unnecessary to decide upon the respondent’s submissions and, more generally, whether the Secure Air Travel Act violates the appellants’ mobility rights under s. 6 of the Charter or rights to liberty and security of the person under s. 7 of the Charter.
[10] Legislation that violates s. 6 of the Charter can be justified as a reasonable limit prescribed by law under s. 1. And deprivations of the rights to liberty and security of the person under s. 7 of the Charter can be in accordance with the principles of fundamental justice. As explained below, to the extent s. 8 and para. 9(1)(a) of the Secure Air Travel Act violate s. 6 of the Charter, they are justified under s. 1. And to the extent ss. 15 and 16 of the Act deprive the appellants of rights to liberty or security of the person under s. 7 of the Charter, the deprivation is in accordance with the principles of fundamental justice.
[11] In a future case, both the Federal Court and this Court should regard the ss. 6 and 7 issues in this case as open to full argument. There is reason to doubt the correctness of the Federal Court’s view that Mr. Dulai’s s. 6 rights were infringed because the Federal Court may have departed from the accepted approach for interpreting the Charter in general and s. 6 of the Charter in particular: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, [2020] 3 S.C.R. 426 at paras. 8-18; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157, 166 D.L.R. (4th) 1 at paras. 49-92; Canada v. Boloh 1(a), 2023 FCA 120 at paras. 14-51. And there is reason to doubt the correctness of the Federal Court’s finding of a rights breach under s. 7 because of the high quality and rare nature of the evidence needed in this context to establish a breach: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 at paras. 59-60; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras. 47-57.
(a) Section 6 of the Charter and justification under section 1 of the Charter
[12] For argument’s sake, I am prepared to assume that s. 6 of the Charter has been violated. However, the Act is justified under s. 1. I substantially agree with the Federal Court’s reasons on all of the branches of the test for justification under s. 1 and I adopt those reasons.
[13] All parties agree that the objectives of the Secure Air Travel Act, including para. 8(1)(b) and s. 9(1), are to protect Canadians when they fly, uphold national security, and fulfil Canada’s international obligations to counter terrorism. All agree that these are pressing and substantial objectives.
[14] As well, all parties agree that the Secure Air Travel Act rationally connects to these objectives: the Minister can place individuals on the list where the Minister has reasonable grounds to suspect they will threaten transportation security or travel by air to commit a terrorism offence.
[15] However, the parties part company on the minimal impairment branch of the justification test. The appellants submit that the Secure Air Travel Act violates mobility rights in a non-minimal way. I disagree. In the assessment of minimal impairment or, for that matter, the proportionality between the benefits of the Act and its deleterious effects, context matters.
[16] In some cases, Parliament is addressing a concrete and tangible problem within the ken of the courts. As a result, in those sorts of cases, courts feel confident, empowered and institutionally capable to second-guess Parliament’s choices. They can hold Parliament to the option that is the very least impairing of rights and freedoms: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 at 994 S.C.R.
[17] In other cases, Parliament is addressing a more abstract and intangible problem outside the ken of the courts. As a result, courts—though still duty-bound to be vigilant in the protection of rights and freedoms—must necessarily give Parliament some leeway. In these sorts of cases, courts often speak of Parliament having a reasonable range of available alternatives to accomplish its purposes, a margin of appreciation or a measure of deference: Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 at para. 149; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 at para. 53; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, 127 D.L.R. (4th) 1 at paras. 63 and 68-70; Irwin Toy at 989-990 and 993-994; and many others.
[18] The Secure Air Travel Act is just the sort of legislation where Parliament must be given a margin of appreciation. Here, Parliament is acting in the fields of national security, international relations and global cooperation to prevent terrorism. These are fields full of sensitive, imprecise and complex assessments, evaluations and choices lying within the experience, knowledge and judgment of Parliament and the executive of government empowered under the Act, not judges and courts: Boloh 1(a) at paras. 64-65; Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006 at para. 94. As well, the Act is not directed to past events that are tangible, certain and known. Rather, it is forward-looking, designed to act preventatively, proactively and pre-emptively to deal with perhaps imprecise but nevertheless very real risks of harm to property, public safety and human life. Here, exactitude is elusive. The stakes are sky-high. Some leeway is warranted.
[19] The Secure Air Travel Act meets the requirement of minimal impairment. Several of its features show careful tailoring to minimize the impairment of rights and freedoms: after placement on the list, individuals are not automatically denied boarding but instead may or may not be subject to a direction; if subject to a direction, individuals may be subject to gradual and proportional measures such as additional security screening (s. 9); any listing decisions must be re-evaluated every 90 days using the most current available information (s. 8(2)); and when individuals seek to have their name removed, the Minister must review the listing decisions anew (s. 15(4)). Further protection is provided by a neutral, thorough judicial assessment in the Federal Court "“without delay”" of the Minister’s decisions based on all the evidence, including any new, up-to-date evidence (s. 16(4) and para. 16(6)(e)). And as we shall see, the Act also leaves it open to the Federal Court to take all possible measures to protect the individual’s rights to disclosure, to know the case to meet, and to make full answer and defence, such as by appointing an amicus curiae to protect the individual’s interests in any closed proceedings.
[20] The appellants submit that the Secure Air Travel Act could accomplish its objectives with less intrusion by simply revoking individuals’ Canadian passports. I disagree. Domestic air travel could still occur and individuals can still fly abroad using foreign passports.
[21] In this case, it is noteworthy that the appellants and the amici curiae have not been able to offer any effective ways by which Parliament could have accomplished the important objectives furthered by the Secure Air Travel Act in a less impairing way. Nor can I. The Act meets the requirement of minimal impairment.
[22] Finally, justification under s. 1 of the Charter also requires an overall balance or proportionality between the benefits of the Act and its deleterious effects. Here, this requirement is met. The deleterious effects are relatively few, ranging from the potential of enhanced screening to a flying ban—measures that might be only temporary and brief—and pale next to the need to prevent domestic and international terrorism, and the destruction, butchery and carnage wrought by it.
[23] The decision to list the appellants also does not violate s. 6 of the Charter. Here again, it is only necessary to consider s. 1. To the extent the decision violated the appellants’ mobility rights, the listing was demonstrably reasonable under s. 1. The analysis mirrors the analysis, below, of the reasonableness of the Minister’s listing decision. On the facts and the law, this was not a close case: see paragraphs 44-73 below.
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