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Immigration - Security Certificates. 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. . Mahjoub v. Canada (Public Safety and Emergency Preparedness)
In Mahjoub v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2023) the Court of Appeal explained the Security Certificate scheme under the IRPA:(1) Process for determining whether a person poses a threat to national security
[8] Division 9 of the IRPA addresses the process the Minister and the Federal Court are required to follow in dealing with people who pose a threat to national security.
[9] Section 76 of the IRPA, which sets out the definitions in Division 9, specifies that references to “judge” means “the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice”. In other words, only the Chief Justice or a judge of the Federal Court designated by the Chief Justice has the jurisdiction to decide issues dealing with security certificates in the Federal Court.
[10] Section 77(1) of the IRPA gives the Minister the power to sign a certificate stating that a permanent resident or foreign national is inadmissible to Canada on various grounds, including grounds of security. Once the certificate is signed, it must be referred to the Federal Court. Section 78 of the IRPA requires a judge of the Federal Court to determine whether the certificate is reasonable and, if not, to quash the certificate. Section 79 of the IRPA provides for a right of appeal to the Federal Court of Appeal, but only if the judge who decided the reasonableness of the certificate “certifies that a serious question of general importance is involved and states the question”. Section 80 provides that a certificate that is determined to be reasonable is “conclusive proof” that the person is inadmissible and is deemed to constitute a removal order without the need for a further hearing.
[11] Pursuant to s. 115(1) of the IRPA, a person recognized as a refugee cannot be removed from Canada if there is a risk that they will be persecuted, tortured or subject to cruel and unusual punishment. However, s. 115(2)(b) of the IRPA provides that s. 115(1) does not apply where a person has been found inadmissible based on grounds of security if the Minister is of the opinion that the person should not remain in Canada “on the basis of the nature and severity of the acts committed or of danger to the security of Canada.”
(2) Detention and conditions of release pending removal
[12] Besides addressing the procedure for determining whether a person should be removed from Canada on the basis of a threat to national security, the IRPA addresses the detention or conditions that can be imposed pending that determination.
[13] Section 81 of the IRPA gives the Minister the power to issue a warrant for the arrest and detention of a person named in a security certificate if the Minister has reasonable grounds to believe that the person is a danger to national security, or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
[14] Section 82(1) provides that, within 48 hours of the person’s detention, a judge of the Federal Court is required to commence a review of the reasons for the person’s detention. In addition, pursuant to s. 82(2), as long as the person remains detained and until there is a determination of whether the certificate is reasonable, a Federal Court judge is to review the reasons for detention at least every six months.
[15] Pursuant to s. 82(4) of the IRPA, if the person is released from detention under conditions, the person may apply to the Federal Court for a review of the continuing conditions six months after the conclusion of the previous review.
[16] Section 82(5) of the IRPA sets out the powers of a Federal Court judge on review of a detention or of release on conditions:(5) On review, the judge
(a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate. [Emphasis added.] [17] Section 82.1(1) specifies that a judge has the power to vary an order on review “if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”.
[18] There is no automatic right of appeal for a detainee from a decision regarding detention or conditions of release. Rather, s. 82.3 of the IRPA provides that a Federal Court judge must certify a serious question of general importance, and state the question, before the matter can proceed to the Federal Court of Appeal.
(3) Protection of information and appointment of special advocate
[19] In Charkaoui v. Canada, 2007 SCC 9, [2007] 1 S.C.R. 350, the Supreme Court of Canada found that a previous version of the provisions in the IRPA setting out the process in the Federal Court for confirming the reasonableness of security certificates violated s. 7 of the Charter. The basis for this finding was that the previous version of the IRPA allowed the Federal Court to conduct a hearing in the absence of the person subject to the security certificate: at para. 5. Non‑sensitive material could be disclosed to the person involved, but sensitive information that might compromise national security could not be disclosed if the government objected: at para. 5. The Supreme Court held that this process violated the right of the individual being subject to the security certificate to know the case to be met: at para. 54. While the Supreme Court recognized that there may be legitimate reasons for withholding some evidence from a person subject to a security certificate, the provisions in place at the time did not minimally impair the person’s rights because there are protections that could be put in place that are less impairing, such as the use of special advocates: see paras. 70, 86, and 87.
[20] In response to the decision, the security certificate procedure in the IRPA was amended, including by mandating the participation of special advocates. In Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33, the Supreme Court found that these amendments to the IRPA do not breach s. 7 of the Charter.
[21] Accordingly, the provisions of the IRPA dealing with security certificates now include specific procedures for dealing with information and evidence that the Minister believes should not be disclosed to the public or the person subject to the security certificate because disclosure could be injurious to national security or endanger the safety of a person. These procedures are set out in ss. 83 to 87 of the IRPA, and they apply to a review of conditions of release made pursuant to s. 82(4).
[22] Section 83(1)(c) of the IRPA provides that hearings can be held in camera and ex parte, when the Minister is presenting evidence that could be injurious to national security or endanger the safety of any person. However, s. 83(1)(b) of the IRPA requires the designated Federal Court judge to appoint one or more special advocates to protect the interests of the person named in a security certificate in closed hearings.
[23] Special advocates must have security clearance and their “role is to protect the interests of the named person and ‘to make up so far as possible for the [named person’s] own exclusion from the evidentiary process’”: Harkat, at para. 35. Pursuant to s. 85.1(1) and (2) of the IRPA, during the closed hearings, the special advocate is to perform the functions that the lawyer for the person named in a security certificate performs in open court; this includes challenging the claim that information and evidence should not be disclosed, and testing the relevance, reliability and sufficiency of that evidence: Harkat, at para. 35. In the context of closed hearings, special advocates are entitled to make submissions and cross‑examine witnesses: IRPA, s. 85.2(a) and (b); Harkat, at para. 35.
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