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Aviation - Secure Air Travel Act (SATA) (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.
These quotes illustrate some of the SATA procedures and underlying policies:[1] Based on confidential security information and other information, the Minister had reasonable grounds to suspect that the appellants would travel by air to commit a terrorism offence. Thus, acting under the Secure Air Travel Act, S.C. 2015, c. 20, s. 11, the Minister decided to place the appellants on a list, sometimes colloquially but erroneously called a "“no-fly list”".
[2] Placement on the list does not trigger any immediate consequences. Rather, it creates potential consequences. Each time a person on the list tries to fly, the Minister decides whether a direction to an air carrier should be made concerning the listed person (s. 9(1)). Directions can range from enhanced security screening for the listed person at the airport to prohibiting the person from flying. This scheme allows the Minister to regulate flyers on the list using all available information at the time they try to fly, not just the information available at the time of listing.
[3] At some point, the appellants tried to fly. They could not. They were on the list and the Minister had directed that they not fly.
[4] Under the Act, after being denied transportation, the appellants can ask the Minister to de-list them (s. 15). De-listing prevents any directions concerning future flights. Here, the appellants asked the Minister for de-listing. The Minister refused and kept the appellants on the list.
[5] After the Minister maintains the listing, the appellants can appeal to the Federal Court to review the listing decision "“without delay”" based on the information available to the Court (ss. 16(2) and 16(4)). Here, the appellants did just that:The appellant Dulai submitted that the Act and the Minister’s listing decision unjustifiably violated s. 6 of the Charter (mobility rights).
Both appellants submitted that ss. 15 and 16 of the Act and the Minister’s listing decisions unjustifiably violated s. 7 of the Charter, in particular the rights to liberty and security of the person and the right not to be deprived thereof except in accordance with fundamental justice.
Both appellants submitted that the Minister’s listing decisions were unreasonable and should be quashed. [6] In comprehensive, careful and detailed reasons, the Federal Court disagreed with the appellants (2022 FC 1163, 2022 FC 1164 and 2022 FC 1168; see also 2020 FC 729). The Federal Court held that:Section 8 and para. 9(1)(a) of the Secure Air Travel Act and the Minister’s decision offended Mr. Dulai’s mobility rights under s. 6(1) and para. 6(2)(b) of the Charter (2022 FC 1168 at paras. 76-108) but the Act and the Minister’s decision were justified under s. 1 of the Charter (2022 FC 1168 at paras. 109-137).
Sections 15 and 16 of the Secure Air Travel Act and the Minister’s decisions deprived the appellants of their security of the person rights under s. 7 of the Charter but did so in accordance with the principles of fundamental justice (2022 FC 1168 at paras. 186-191 and 226-229); and in this case, all procedures were conducted in accordance with the principles of fundamental justice.
The Minister’s decisions to maintain the appellants on the list were reasonable (2022 FC 1163 and 2022 FC 1164). [7] The appellants now appeal to this Court on all issues.
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(2) The reasonableness of the Minister’s decisions to maintain the appellants’ listing
[44] The Minister placed the appellants on the list under the Secure Air Travel Act and, following submissions from the appellants, maintained them on the list. The Federal Court upheld the Minister’s decisions. The appellants now ask this Court to reverse the decision of the Federal Court and quash the Minister’s decisions.
[45] In order to maintain a person on the list, the Minister must have "“reasonable grounds to suspect”" the person would either threaten transportation security or travel by air to commit a terrorism offence (s. 8).
[46] The "“reasonable grounds to suspect”" standard speaks to rational possibilities, not likelihoods. This distinguishes it from the higher standard of "“reasonable and probable grounds”". Nevertheless, "“reasonable grounds to suspect”" is a standard that must be articulated and applied with discipline and rigor. Only then can a reviewing court conduct "“an independent after-the-fact review”" and stop any "“arbitrary state action”" in its tracks. See R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at para. 45.
[47] Imaginings, musings, hunches, speculations or guesses, educated or otherwise, do not meet the standard. Rather, the standard is met through evidence and inferences drawn from evidence that create a constellation of objective, discernable and ascertainable facts. The evidence and inferences must tie the relevant individuals, here the appellants, to the relevant circumstance, here the travelling by air to commit a terrorism offence. There need not be verifiable and reliable proof. See R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at paras. 23-45; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, 171 D.L.R. (4th) 1 at paras. 49-52; Farwaha at paras. 96-98.
[48] In an appeal to the Federal Court, the Federal Court decides whether the Minister’s listing of the person is "“reasonable”" (s. 16(4)), i.e., tenable and defensible given the evidence and the degree of impact upon the individual. The Federal Court can receive new evidence, including more up-to-date evidence (para. 16(6)(e)). Where the Federal Court receives new evidence, it decides whether the Minister’s decision is reasonable in light of the totality of the evidence placed before the Court.
[49] On appeal from the Federal Court to this Court, the appellants must show that the Federal Court erred in law or extricable legal principle or, on other issues, committed palpable and overriding error. This is the normal appellate standard: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Harkat at para. 108.
[50] The Federal Court charged itself properly on the meaning of "“reasonable”" in s. 16(4), the standard of "“reasonable grounds to suspect” "in s. 8, the nature of the record before the Court and the robust, interventionist, non-deferential, gatekeeper role that the Court must play to protect the appellants’ interests: 2022 FC 1163 at paras. 85-88; 2022 FC 1164 at paras. 81-84; 2020 FC 729 at paras. 53, 116-119 and 126-127; Brar v. Canada (Public Safety and Emergency Preparedness), 2021 FC 932 at paras. 68-69.
[51] The amici curiae submit that the Federal Court cannot use new evidence adduced under para. 16(6)(e) of the Secure Air Travel Act when considering whether the "“reasonable grounds to suspect”" standard was met. They say that the Federal Court should have limited its review of the Minister’s decision to the evidence that was before the decision-maker. In part, they base this submission on their view that the Federal Court is engaged in a judicial review of the Minister’s decision to maintain the appellants on the list, much like it would review the decision of any other administrative decision-maker. Thus, in their view, all the normal rules in judicial review apply, many of which are set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[52] I reject this submission. So did the Federal Court: 2020 FC 729 at paras. 117-119. I adopt the reasons of the Federal Court and add the following.
[53] The Federal Court’s review of the Minister’s decisions to maintain the appellants on the list under the Secure Air Travel Act is analogous to its review of the Ministers’ decision to issue a security certificate against an individual under s. 78 of the Immigration and Refugee Protection Act and to a Minister’s decision to cancel a passport under s. 4 of the Prevention of Terrorist Travel Act, S.C. 2015, c. 36, s. 42. Review in the Federal Court in these regimes is not traditional judicial review of the sort regulated by Vavilov.
[54] The Supreme Court has repeatedly emphasized that security certificate proceedings in the Federal Court under the Immigration and Refugee Protection Act are not judicial review proceedings governed by the normal methodology for reviewing substantive decision-making in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 or its successor, Vavilov: Charkaoui v. Canada, 2008 SCC 38, [2008] 2 S.C.R. 326 ("“Charkaoui 2008”"); Harkat. The same must be true here.
[55] This makes sense. None of the three regimes, identified above, deals with a decision that has finally resolved the merits of a matter and cannot be reopened. None looks backward, examining matters that are finished and settled. None has an evidentiary record that has been settled once and for all and cannot be supplemented in the reviewing court.
[56] Instead, all are special, forward-looking regimes aimed not at crystallizing what happened in the past but rather preventing future harm. All recognize that future harm may be better defined by new information. All can be based on security information that, by its nature, is ever-evolving. All aim at ensuring that restrictive, deleterious and potentially rights-impairing consequences are visited upon individuals only using the most up-to-date, current information. Thus, all allow for the admission of new evidence in the Federal Court. This works both ways: the new evidence can enhance the state’s case or weaken it.
[57] The amici curiae also submit that in the Federal Court the respondent introduced far too much new evidence, making the process less of a judicial review of the Minister’s decision and more like a de novo determination by the Federal Court. I disagree for two reasons.
[58] First, as just explained, the Federal Court is not deciding a judicial review of the Minister’s decision that is over and done with. Rather, it is assessing whether the decision to maintain the appellants’ listing continues to be reasonable on the basis of all evidence, including the most up-to-date evidence available.
[59] Second, I am not persuaded that by introducing new evidence the respondent committed any abuse of process or engaged in a process contrary to the framework of the Secure Air Travel Act of the sort described in Charkaoui 2008. There, the Supreme Court recognized (at para. 71) that the state could abuse the security certificate regime under the Immigration and Refugee Protection Act if it intentionally submitted an incomplete record to the Ministers to get a security certificate and then, after the security certificate was issued and the affected individual was arrested and detained, continued to accumulate evidence to bolster, bootstrap, or backfill its case for the certificate. Here, the respondent is doing nothing of the sort. Much of the new evidence the respondent introduced was in response to new evidence understandably introduced by the appellants and the amici curiae, in part due to disclosure they received. And the new evidence was necessary to ensure that the Federal Court assessed the reasonableness of the maintenance of the appellants on the list using the most up-to-date evidence available.
[60] The amici curiae also submit that the requirement that there be reasonable grounds to suspect that the listed individual will commit a terrorism offence listed under para. 8(1)(b) of the Secure Air Travel Act is quite demanding. The Minister must have in mind a particular offence, perhaps even the individual elements of the offence, look at the words and conduct of the listed individual, and then assess whether there are reasonable grounds to suspect that the offence with its elements will be committed.
[61] The Secure Air Travel Act does not so provide. Paragraph 8(1)(b) of the Act requires the Minister to have reasonable grounds to suspect that the individual will travel by air for the purpose of committing acts or omissions that are offences under that paragraph of the Act. The focus in para. 8(1)(b) is on whether there are reasonable grounds, established by a constellation of information of the quality discussed in paragraphs 46-47 above, that the statements, actions, and behaviours of the individual are such that it is possible, not probable, that the individual will travel by air for the purpose of committing acts or omissions that are offences under para. 8(1)(b) of the Act. Under this view, a person who openly declares support for certain terrorist action and has the means and motivation to carry it out might be listed. Under the view of the amici curiae that same person perhaps might not be listed because of the particular state of current information bearing on the particular elements of the offence. The former view better advances the purposes of the Act. To similar effect, see Farwaha at para. 78 and Randhawa v. Canada (Transport), 2017 FC 556.
[62] Some of the submissions of the amici curiae suggest that the offences listed under para. 8(1)(b) of the Secure Air Travel Act are rather exacting and narrow. I disagree. The offences have been interpreted to be broad and to encompass a broad range of conduct: see, e.g., R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at para. 12; R. v. Nutall, 2018 BCCA 479 at para. 216; R. v. Ahmad, (2009), 2009 CanLII 84774 (ON SC), 257 C.C.C. (3d) 199 (Ont. S.C.) at paras. 26 and 59-61. In this regard, I agree with the submissions of the respondent at paragraphs 51-61 of the redacted public version of its ex parte memorandum of fact and law.
[63] The appellants submit that the Federal Court’s public reasons do not permit meaningful appellate review. I reject this. The public reasons, exacting and voluminous, provide this Court with more than enough information to conduct a meaningful appellate review, especially viewed in light of the public and confidential evidence filed. Further, the Federal Court’s public reasons, seen in light of the public evidence and the public disclosures of the confidential proceedings, easily pass the threshold of informing the appellants of what the Federal Court decided and why: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 17.
[64] In dismissing the appellants’ appeals in this case, the Federal Court found that the evidence supporting the placement of the appellants on the list was more than sufficient in quantity and quality to meet the statutory standard of "“reasonable grounds to suspect”". The Federal Court found that it was reasonable for the Minister to form a reasonable suspicion that both appellants would travel by air for the purpose of committing one of the broad range of terrorism offences identified in para. 8(1)(b) of the Secure Air Travel Act. These findings stand: the appellants have not shown any error of law or palpable and overriding error. In fact, on the evidence, I agree with the Federal Court’s findings.
[65] The appellants also submit that the Federal Court (and the Minister for that matter) failed to consider the appellants’ "“Charter values”", in particular the values surrounding ss. 2, 6, and 7 of the Charter, or, alternatively, considered them improperly: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31.
[66] In its cases, the Supreme Court says that "“Charter values”" are just factors for administrators to take into account in their decision-making. They do not change, supplement or override the written text of the rights and freedoms in the Charter, the written justification provision in s. 1 of the Charter, or the cases decided under the Charter during the past forty-three years. Nor are they putty to be used to fill unwanted gaps in the Charter. Still less can they strike down or change legislation governing an administrator’s decision, or authorize an administrative decision not authorized by the governing legislation: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 16; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1077-1081 S.C.R. Lastly, if "“Charter values”" are to be matters of constitutional import, they must be substantial, well-founded and well-sourced, not just a litigant’s musings about the vibe of the thing. On a number of these points, see Sullivan v. Canada (Attorney General), 2024 FCA 7 at paras. 9-12 and see also Khodykin v. Canada (Attorney General), 2024 FCA 96 at paras. 8-9.
[67] Here, the appellants do not misuse Charter values in the ways just described. However, the values they do articulate suffer from poor definition and vagueness. To the extent the values have the same content as the rights and freedoms under the Charter that the appellants have invoked in this case, I have already found justification under s. 1 of the Charter and consistency with the principles of fundamental justice. And overall, the appellants seem to be using Charter values in this case as a vehicle to quibble about the weight the Minister and the Federal Court gave to certain considerations the appellants wish to stress—an argument foreclosed to them given the standard of review of palpable and overriding error.
[68] In this case, the record, both public and confidential, including the appellants’ submissions, shows that when the Minister and the Federal Court assessed the reasonableness of the listing, they were well aware of the rights, freedoms and interests of the appellants, including anything that might conceivably qualify as "“Charter values”". But they were also aware of the public and confidential evidence, the need to continue the international fight against terrorism, and the imperatives of public safety. In this case, the balance fell in favour of maintaining the listing of the appellants, decidedly so. Here, the Federal Court did not commit any legal error or palpable and overriding error.
[69] In the course of oral argument in this Court, the appellants raised a new issue for the first time. They queried whether a court could ever review Ministerial directions under s. 9 of the Secure Air Travel Act.
[70] As noted above (at paragraph 2), the Minister’s listing decisions do not cause any immediate consequences for persons on the list. Instead, they create only the potential of a Ministerial direction to an air carrier against a listed person that becomes relevant at the time of flying based on the information then available. The Act provides no recourse against a Ministerial direction, for example by way of judicial review (with potentially fast interim emergency remedies, as discussed in Wilson v. Meeches, 2023 FCA 233), likely because the direction may be made moments before the time of flying. Is a judicial review legally and practically available to redress a Ministerial direction on the basis of Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191? On the other hand, as the respondent suggests, is recourse against the Minister’s listing decision sufficient? These questions need a full evidentiary record and full argument, which we do not have here. We should not comment further: Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at para. 36; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678 at paras. 32-34.
[71] I do wish to close by commenting on the confidential hearing that this Court conducted with the amici curiae and the respondent to consider the confidential security evidence offered in support of the appellants’ listings. The confidential hearing took place soon after all parties participated in a public hearing. As much business as possible was conducted in the public hearing. The public hearing was far longer than the confidential hearing.
[72] In this case, confidential reasons dealing with the confidential evidence and confidential submissions are not necessary. As a result, these public reasons deal with all of the issues in this appeal. This is because the amici curiae did not try to argue in the confidential hearing that the Federal Court committed palpable and overriding error in finding that:. many of the appellants’ explanations and justifications were not credible;
. there were reasonable grounds to suspect the appellants might travel by air for the purpose of committing acts or omissions that are offences under para. 8(1)(b) of the Secure Air Travel Act; and
. the evidence before the Federal Court was sufficient in quality and quantity and was sufficiently reliable to support maintaining the appellants on the list (see, in particular, the respondent’s confidential memorandum of fact and law, in particular at paras. 76-77 and 81-82). [73] The amici curiae were right not to try. Looking at all the evidence, close this case was not. . 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 (SATA).
Here the court analogizes SATA provisions with the IRPA [s.78] 'security certificates' regime:[53] The Federal Court’s review of the Minister’s decisions to maintain the appellants on the list under the Secure Air Travel Act is analogous to its review of the Ministers’ decision to issue a security certificate against an individual under s. 78 of the Immigration and Refugee Protection Act and to a Minister’s decision to cancel a passport under s. 4 of the Prevention of Terrorist Travel Act, S.C. 2015, c. 36, s. 42. Review in the Federal Court in these regimes is not traditional judicial review of the sort regulated by Vavilov.
[54] The Supreme Court has repeatedly emphasized that security certificate proceedings in the Federal Court under the Immigration and Refugee Protection Act are not judicial review proceedings governed by the normal methodology for reviewing substantive decision-making in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 or its successor, Vavilov: Charkaoui v. Canada, 2008 SCC 38, [2008] 2 S.C.R. 326 ("“Charkaoui 2008”"); Harkat. The same must be true here.
[55] This makes sense. None of the three regimes, identified above, deals with a decision that has finally resolved the merits of a matter and cannot be reopened. None looks backward, examining matters that are finished and settled. None has an evidentiary record that has been settled once and for all and cannot be supplemented in the reviewing court.
[56] Instead, all are special, forward-looking regimes aimed not at crystallizing what happened in the past but rather preventing future harm. All recognize that future harm may be better defined by new information. All can be based on security information that, by its nature, is ever-evolving. All aim at ensuring that restrictive, deleterious and potentially rights-impairing consequences are visited upon individuals only using the most up-to-date, current information. Thus, all allow for the admission of new evidence in the Federal Court. This works both ways: the new evidence can enhance the state’s case or weaken it.
[57] The amici curiae also submit that in the Federal Court the respondent introduced far too much new evidence, making the process less of a judicial review of the Minister’s decision and more like a de novo determination by the Federal Court. I disagree for two reasons.
[58] First, as just explained, the Federal Court is not deciding a judicial review of the Minister’s decision that is over and done with. Rather, it is assessing whether the decision to maintain the appellants’ listing continues to be reasonable on the basis of all evidence, including the most up-to-date evidence available.
[59] Second, I am not persuaded that by introducing new evidence the respondent committed any abuse of process or engaged in a process contrary to the framework of the Secure Air Travel Act of the sort described in Charkaoui 2008. There, the Supreme Court recognized (at para. 71) that the state could abuse the security certificate regime under the Immigration and Refugee Protection Act if it intentionally submitted an incomplete record to the Ministers to get a security certificate and then, after the security certificate was issued and the affected individual was arrested and detained, continued to accumulate evidence to bolster, bootstrap, or backfill its case for the certificate. Here, the respondent is doing nothing of the sort. Much of the new evidence the respondent introduced was in response to new evidence understandably introduced by the appellants and the amici curiae, in part due to disclosure they received. And the new evidence was necessary to ensure that the Federal Court assessed the reasonableness of the maintenance of the appellants on the list using the most up-to-date evidence available.
[60] The amici curiae also submit that the requirement that there be reasonable grounds to suspect that the listed individual will commit a terrorism offence listed under para. 8(1)(b) of the Secure Air Travel Act is quite demanding. The Minister must have in mind a particular offence, perhaps even the individual elements of the offence, look at the words and conduct of the listed individual, and then assess whether there are reasonable grounds to suspect that the offence with its elements will be committed.
[61] The Secure Air Travel Act does not so provide. Paragraph 8(1)(b) of the Act requires the Minister to have reasonable grounds to suspect that the individual will travel by air for the purpose of committing acts or omissions that are offences under that paragraph of the Act. The focus in para. 8(1)(b) is on whether there are reasonable grounds, established by a constellation of information of the quality discussed in paragraphs 46-47 above, that the statements, actions, and behaviours of the individual are such that it is possible, not probable, that the individual will travel by air for the purpose of committing acts or omissions that are offences under para. 8(1)(b) of the Act. Under this view, a person who openly declares support for certain terrorist action and has the means and motivation to carry it out might be listed. Under the view of the amici curiae that same person perhaps might not be listed because of the particular state of current information bearing on the particular elements of the offence. The former view better advances the purposes of the Act. To similar effect, see Farwaha at para. 78 and Randhawa v. Canada (Transport), 2017 FC 556.
[62] Some of the submissions of the amici curiae suggest that the offences listed under para. 8(1)(b) of the Secure Air Travel Act are rather exacting and narrow. I disagree. The offences have been interpreted to be broad and to encompass a broad range of conduct: see, e.g., R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at para. 12; R. v. Nutall, 2018 BCCA 479 at para. 216; R. v. Ahmad, (2009), 2009 CanLII 84774 (ON SC), 257 C.C.C. (3d) 199 (Ont. S.C.) at paras. 26 and 59-61. In this regard, I agree with the submissions of the respondent at paragraphs 51-61 of the redacted public version of its ex parte memorandum of fact and law.
[63] The appellants submit that the Federal Court’s public reasons do not permit meaningful appellate review. I reject this. The public reasons, exacting and voluminous, provide this Court with more than enough information to conduct a meaningful appellate review, especially viewed in light of the public and confidential evidence filed. Further, the Federal Court’s public reasons, seen in light of the public evidence and the public disclosures of the confidential proceedings, easily pass the threshold of informing the appellants of what the Federal Court decided and why: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 17.
[64] In dismissing the appellants’ appeals in this case, the Federal Court found that the evidence supporting the placement of the appellants on the list was more than sufficient in quantity and quality to meet the statutory standard of "“reasonable grounds to suspect”". The Federal Court found that it was reasonable for the Minister to form a reasonable suspicion that both appellants would travel by air for the purpose of committing one of the broad range of terrorism offences identified in para. 8(1)(b) of the Secure Air Travel Act. These findings stand: the appellants have not shown any error of law or palpable and overriding error. In fact, on the evidence, I agree with the Federal Court’s findings.
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