Brar v. Canada (Public Safety and Emergency Preparedness)

Brar v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2022-08-10
Neutral citation
2022 FC 1168
File numbers
T-669-19, T-670-19
Decision Content
Date: 20220810
Dockets: T-669-19
T-670-19
Citation: 2022 FC 1168
Ottawa, Ontario, August 10, 2022
PRESENT: The Honourable Mr. Justice Simon Noël
Docket: T-669-19
IN THE MATTER OF THE SECURE AIR TRAVEL ACT
BETWEEN:
BHAGAT SINGH BRAR
Appellant
and
CANADA (MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS)
Respondent
Docket: T-670-19
AND BETWEEN:
PARVKAR SINGH DULAI
Appellant
and
CANADA (MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS)
Respondent
JUDGMENT AND REASONS
Table of contents
I. Overview 4
II. National security 8
III. Summary of the facts 11
A. Facts in Mr. Brar’s Appeal 11
B. Facts in Mr. Dulai’s Appeal 13
C. Procedural history covering both Appeals (Mr. Brar and Mr. Dulai) 15
IV. Review and analysis of the SATA 16
A. General 16
B. Operation of the SATA 22
C. Appeal provisions of the SATA 27
V. Constitutional questions - Section 6 of the Charter: Mobility rights 32
A. Summary of the submissions of the Appellants and Respondent 32
(1) Submissions of Mr. Brar 32
(2) Submissions of Mr. Dulai 32
(3) Submissions of the Respondent 34
VI. The Oakes or the Doré approach 36
VII. Analysis: Section 6 of the Charter 37
A. Legislation 37
(1) Section 6 of the Charter 37
(2) Sections 8 and 9(1)(a) of the SATA 38
B. The intricacies of the current appeals 41
C. The meaning of mobility 41
(1) Interpreting the Charter 44
(a) Purposive analysis and jurisprudential guidance on mobility rights 45
(b) Section 6 mobility rights are not subject to the notwithstanding clause 46
(c) The interpretative language 47
(d) Analysis: Subsection 6(1) – International mobility rights 50
(e) Analysis: Subsections 6(2), 6(3), and 6(4) – National mobility rights for the purpose of taking up residence in any province and to pursue the gaining of a livelihood in any province 51
(2) Analysis: Section 1 of the Charter 55
(a) General 55
(i) Is the infringement prescribed by law? 59
(ii) Is the objective pressing and substantial? 59
(iii) Is there proportionality between the legislative objective and the means to achieve it? 61
(b) Is the law or state action rationally connected to its purpose? 61
(c) Does the law or state action minimally impair the infringed right? 63
(3) Do the positive effects of the law or state action outweigh the negative effects of the legislation or state action? 65
D. Conclusion on section 6 of the Charter 66
VIII. Constitutional questions – Section 7 of the Charter – Life, Liberty and Security of the Person 66
A. Summary of the submissions of the Appellants and Respondent 66
(1) Submissions of Mr. Brar 67
(2) Submissions of Mr. Dulai 71
(3) Submissions of the Respondent 75
IX. Analysis: Section 7 of the Charter 80
A. Legislation 80
(1) Section 7 of the Charter 80
(2) Sections 15 and 16 of the SATA 81
B. Jurisprudential teachings on section 7 analysis involving national security issues 85
C. The necessity to abide by the principles of fundamental justice 87
(1) Is section 7 of the Charter engaged? 90
(2) The role of the designated judge 92
(3) The role and mandate of the Amici 97
(4) The right to a hearing 98
(5) The impartial and independent judge 100
(6) Disclosure 103
(7) The decision has to be made on the facts and law 106
D. Conclusion on section 7 analysis 106
X. Overall conclusions on sections 6 and 7 of the Charter 107
XI. A few last words 111
JUDGMENT in T-669-19 and T-670-19 113
Annex A 115
I. Overview
[1] These appeals are composed of a multi-pronged case in which the Appellants’ claims that pertain to questions relating to sections 6 and 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] and their claims relating to the reasonableness of a Minister’s decision are being addressed in separate decisions. More specifically, two decisions – Brar v Canada (Minister of Public Safety and Emergency Preparedness) 2022 FC 1163 [Brar 2022] and Dulai v Canada (Minister of Public Safety and Emergency Preparedness) 2022 FC 1164 [Dulai 2022] – deal with the reasonableness of the Minister’s decision and are being issued concurrently [the Reasonableness Decisions]. The Reasonableness Decisions include a confidential set of reasons. The present Judgment and Reasons [the Decision] address constitutional issues raised in both appeals.
[2] These are the first appeals filed pursuant to the Secure Air Travel Act, 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 and provide clarity and guidance where deemed necessary.
[3] The Decision considers whether sections 8 and 9(1)(a) of the SATA infringe the Appellants’ mobility rights protected by section 6 of the Charter, and whether sections 15 and 16 of the SATA violate the Appellants’ rights under section 7 of the Charter, specifically their rights to liberty and security of the person, on the basis that the impugned provisions of the SATA permit the Minister, and the Court, to determine the reasonableness of 1) the Appellants’ designation as listed persons under the SATA, and 2) the Minister’s decision to list the Appellants, based on information that is not disclosed to them and to which they have no opportunity to respond.
[4] The Appellants remain listed individuals pursuant to section 8 of the SATA given the Minister’s decision to deny their applications for administrative recourse under section 15 of the SATA, which sought to have their names removed from the “no-fly” list. The Minister made the decision after determining that he had reasonable grounds to suspect that the Appellants would either “engage 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).
Although I conclude in the Reasonableness Decisions that the Minister’s determinations pursuant to paragraph 8(1)(a) of the SATA are unreasonable given the lack of supporting evidence, the Appellants’ listing on the no-fly list of the SATA is nevertheless reasonable pursuant to paragraph 8(1)(b) of the SATA (see Brar 2022 and Dulai 2022).
[5] The tension between individual rights and collective interests in security was discussed at length in two related prior 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]).
[6] 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 Review Committee (SIRC) could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that case included the state’s “interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources” (p. 744). In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, “[s]ubject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents” (para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75 (S.C.C.), the Court upheld the section of the Privacy Act, R.S.C. 1985, c. P-21, that mandates in camera and ex parte proceedings where the 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 the applicable principles of fundamental justice (paras. 38-44).
The principles described above for Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] certificate’s proceedings are applicable to the SATA (see Brar v Canada (Public Safety and Emergency Preparedness), 2020 FC 729 [Brar 2020] at paras 92, 95, 100, 105, etc.).
[7] For the following reasons, the appeal as it relates to the breaches of the Appellants’ constitutional rights is dismissed.
II. National security
[8] The role of the Canadian Government to ensure security in air transportation is essential. As part of Canada’s societal commitment, it is a top priority to guarantee that all Canadians live in a safe environment. In addition to its domestic responsibility to maintain community safety, the Canadian Government also has international responsibilities towards partner countries.
[9] Lesley Soper, a witness in these appeals, included in her affidavit a comment made on February 19, 2015, by the Parliamentary Secretary to the Minister of Citizenship and Immigration when speaking about Bill C-51 (that would later become the SATA) in the House of Commons:
One of the gravest threats to global security is the phenomenon of terrorist travel: individuals who travel by air to regions of unrest and violence to engage in terrorist activities. These individuals do not pose an immediate threat to an airplane. Indeed, they want their flight to be safe and uneventful so that they can reach their destinations. While these violent extremists are not an immediate threat to an airplane or to passengers when they travel, they do pose a significant danger to those people living in the countries where they undergo their training and terrorist activities and in the countries in which they want to perpetrate their crimes. Moreover, there is a great risk that they will return to their home country to test out their newly acquired skills by plotting and carrying out attacks on innocent civilians. (Lesley Soper’s supplementary affidavit, February 25, 2022 at para 18)
[10] The threat posed by individuals suspected of travelling abroad to engage in extremist activity (extremist travellers) is significant and presents difficult challenges to both Canada and its allies. According to Public Safety Canada’s 2016 Public Report on the Terrorist Threat to Canada,
[t]he principal terrorist threat to Canada remains that posed by violent extremists who could be inspired to carry out an attack in Canada. Violent extremist ideologies espoused by terrorist groups like Daesh and al-Qaida continue to appeal to certain individuals in Canada. As in recent years, the Government of Canada has continued to monitor and respond to the threat of extremist travelers, that is, individuals who are suspected of travelling abroad to engage in terrorism-related activity. The phenomenon of extremist travellers - including those abroad, those who return, and even those prevented from travelling - poses a range of security concerns for Canada. As of the end of 2015, the Government was aware of approximately 180 individuals with a nexus to Canada who were abroad and who were suspected of engaging in terrorism-related activities. The Government was also aware of a further 60 extremist travelers who had returned to Canada. (Lesley Soper’s supplementary affidavit, February 25, 2022 at para 26)
[11] The Government relies on different tools to manage and mitigate this threat at home. For example, terrorism peace bonds entail courts imposing conditions on extremist travellers. The Government can also cancel, refuse or revoke passports when required. Since its adoption, Canada relies on the SATA to prevent travel to commit terrorism offences and threats to transportation security.
[12] Canada’s security commitments extend well beyond its borders. It is common knowledge that Canada is a signatory to a number of international treaties and agreements, which enables strong collaboration with international partners like the Five Eyes, the G7, the European Union, Interpol, and the United Nations. These alliances improve the sharing of information and best practices, but also call upon member states to do their part to ensure global security. In Canada, this responsibility has led to the adoption of a legislative framework that governs the provision of this security. In Charkaoui I, former Chief Justice McLachlin highlighted the inherent challenge in developing such a legislative framework:
[1] One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.
[13] Indeed, a democratic government faces a perpetual challenge when establishing systems to ensure collective security because necessary measures to fulfil this goal must accord with the Constitution and the rights and liberties it guarantees. As part of this effort, the Government must safeguard national security information and intelligence when developing security systems such as the SATA. In this regard, the SATA is not the only legislation that seeks to safeguard sensitive information. For example, the Canada Evidence Act, RSC, 1985, c C-5 at section 38, the IRPA at section 83, the Access to Information Act, RSC, 1985, c A-1 at section 16, the Privacy Act, RSC, 1985, c P-21 at sections 69 and 70, and the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 at subparagraphs 7(3)(c.1)(i) and (c.2)(ii) are some of the statutes that have similar legislative provisions to protect sensitive information.
[14] Case law consistently holds that national security information and intelligence ought to be protected and can only be disclosed in summaries that do not reveal any information injurious to national security or that could endanger the safety of any person.
III. Summary of the facts
A. Facts in Mr. Brar’s Appeal
[15] On April 23, 2018, Mr. Brar’s name was included on the no-fly list. Pursuant to the SATA, the Minister concluded that there were reasonable grounds to suspect that he would (1) engage or attempt to engage in an act that would threaten transportation security, and/or (2) travel by air for the purpose of committing an act or omission that is an offence under sections 83.18, 83.19 or 83.2 of the Criminal Code, or an offence referred to in paragraph (c) of the definition “terrorism offence” in section 2 of that Act.
[16] The following day, Mr. Brar attempted twice to take flights that would eventually have transported him from Vancouver to Toronto, but each time a written Denial of Boarding under the Passenger Protect Program [PPP] was issued pursuant to direction under paragraph 9(1)(a) of the SATA. This resulted in both WestJet and Air Canada denying Mr. Brar boarding at the Vancouver International Airport on that day.
[17] On June 2, 2018, Mr. Brar submitted an application for administrative recourse to the Passenger Protect Inquiries Office [the PPIO] that sought the removal of his name from the SATA list pursuant to section 15 of the SATA. In response, the PPIO provided him with a two-page unclassified summary of the information supporting the decision to place his name on the SATA list. The PPIO further advised that the Minister would consider additional classified information when assessing his application under section 15 of the SATA. Pursuant to subsection 15(4) of the SATA, Mr. Brar was provided with the opportunity to make written representations in response to the unclassified information disclosed to him, which he submitted to the PPIO on December 3, 2018.
[18] On December 21, 2018, the Minister advised Mr. Brar of his decision to maintain his status as a listed person under the SATA. Following a review of the classified and unclassified information provided, including Mr. Brar’s written submissions, the Minister’s delegate “concluded that there [were] reasonable grounds to suspect that [Mr. Brar would] engage or attempt to engage in an act that would threaten transportation security, or travel by air to commit certain terrorism offences.”
[19] On April 18, 2019, Mr. Brar filed a Notice of Appeal with this Court pursuant to subsection 16(2) of the SATA. In his Notice of Appeal, Mr. Brar asks this Court to order the removal of his name from the SATA list pursuant to subsection 16(5) of the SATA, or to order the remittance of the matter back to the Minister for redetermination. Mr. Brar also asks this Court to declare that sections 8, 15, 16 and paragraph 9(1)(a) of the SATA are unconstitutional and are therefore of no force and effect, or to read-in such procedural safeguards that would cure any constitutional deficiencies in the SATA.
[20] More specifically, Mr. Brar lists the following as the grounds of his appeal in his Notice: the Minister’s decision was unreasonable; and, the procedures set out in the SATA violate his common law rights to procedural fairness seeing as the SATA deprives him of his right to know the case against him and the right to answer that case. Mr. Brar also requested the disclosure of all material related to his application for recourse, all material related to the Minister’s decision to designate him as a listed person, all material before the Minister’s delegate on the application for recourse, and all other materials relating to the Minister’s delegate decision to confirm his status as a listed person under the SATA.
B. Facts in Mr. Dulai’s Appeal
[21] On March 29, 2018, Mr. Dulai’s name was included on the no-fly list. It was concluded that there were reasonable grounds to suspect that he would (1) engage or attempt to engage in an act that would threaten transportation security, and/or (2) travel by air for the purpose of committing an act or omission that is an offence under sections 83.18, 83.19 or 83.2 of the Criminal Code, or an offence referred to in paragraph (c) of the definition “terrorism offence” in section 2 of that Act.
[22] On May 17, 2018, Mr. Dulai was issued a written Denial of Boarding under the PPP preventing him from boarding a flight at the Vancouver International Airport pursuant to a direction under paragraph 9(1)(a) of the SATA. Mr. Dulai was scheduled to travel from Vancouver to Toronto.
[23] On June 8, 2018, the PPIO received Mr. Dulai’s application for administrative recourse in which he sought the removal of his name from the SATA list, pursuant to section 15 of the SATA. In response, the PPIO provided him with a two-page unclassified summary of the information supporting the decision to place his name on the SATA list. The PPIO further advised that the Minister would consider additional classified information when assessing his application under section 15 of the SATA. Pursuant to subsection 15(4) of the SATA, Mr. Dulai was provided with the opportunity to make written representations in response to the unclassified information disclosed to him, which he submitted to the PPIO.
[24] On January 30, 2019, the Minister advised Mr. Dulai of his decision to maintain his listed status under the SATA. Following a review of the classified and unclassified information provided, including Mr. Dulai’s written submissions, the Minister’s delegate “concluded that there [were] reasonable grounds to suspect that [Mr. Dulai would] engage or attempt to engage in an act that would threaten transportation security, or travel by air to commit certain terrorism offences.”
[25] On April 18, 2019, Mr. Dulai filed a Notice of Appeal with this Court pursuant to subsection 16(2) of the SATA. Mr. Dulai asks this Court to order the removal of his name from the SATA list pursuant to subsection 16(5) of the SATA, or to order the remittance of the matter back to the Minister for redetermination. Mr. Dulai also asks this Court to declare that sections 8, 15 and 16, as well as paragraph 9(1)(a) of the SATA are unconstitutional and therefore of no force and effect, or to read-in such procedural safeguards that would cure any constitutional deficiencies in the SATA.
[26] More specifically, Mr. Dulai enumerates the following grounds of appeal: that the Minister’s decision was unreasonable and that the procedures set out in the SATA violate his common law rights to procedural fairness seeing as the SATA deprives him of his right to know the case against him and the right to answer that case. Mr. Dulai also requested the disclosure of all material related to his application for recourse, all material related to the Minister’s decision to designate him as a listed person, all material before the Minister on the application for recourse, and all other material relating to the Minister’s decision to confirm his status as a listed person under the SATA.
C. Procedural history covering both Appeals (Mr. Brar and Mr. Dulai)
[27] Since these appeals have been initiated, several documents have been exchanged, case management conferences both public and ex parte have been held, public and ex parte hearings took place in both Ottawa and Vancouver, and decisions applicable to each case were published (Brar 2020, Brar 2021 and Dulai 2021).
[28] As mentioned in the Reasonableness Decisions, navigating the SATA legislation has been laborious, lengthy, and complex. It required that the Appellants, counsel, amici curiae [Amici] and this Court think about and test many areas of the law. Due to its length, the complete judicial history of these two appeals is available at Annex A. It includes information on every step made over the last three years and reflects both parties’ dedication to these matters, and the great level of detail with which each step was handled.
IV. Review and analysis of the SATA
A. General
[29] In order to analyze the questions in this matter, it is essential to undertake a review of the SATA first. An understanding of its legislative object, its operation, and its appeal mechanism is the compass that will be necessary to navigate these uncharted waters. This section addresses: (1) the context and legislative object of the SATA; (2) the operation of the SATA; and (3) the appeal provisions of the SATA. This methodology is in accordance with the modern approach to statutory interpretation endorsed by the Supreme Court of Canada (SCC) and will allow the reader to have a better understanding of what the designated judge is asked to do when an appeal is initiated under the SATA. It will also help contextualize the mandate of the Amici. For the purposes of this section, I have relied, for the most part, on the Brar 2020 decision at paragraphs 60-88, with some adjustments.
[30] The SCC has repeatedly endorsed the following concise summary of the law on statutory interpretation provided in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 [Rizzo]:
[21] Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[31] The SATA’s general object of balancing individual rights and freedoms with Canada’s national security interests in air travel is evident when one analyzes the title of the Act, the summary and preamble of its enacting and amending omnibus legislation, the legal context at the time of its enactment, and the pertinent legislative debates in both chambers of Parliament.
[32] After nearly a decade of operating the PPP (better known as the “no-fly list”) via the Aeronautics Act, RSC 1985, c A-2, Parliament sought to create a specific legislative regime for the operation of this program (Lesley Soper’s first affidavit at para 5). Accordingly, the Anti-Terrorism Act, 2015, SC 2015, c 20, introduced as an omnibus bill, significantly amended and restructured national security law in Canada and created the SATA in 2015. A few years later, the 42nd Parliament of Canada enacted the National Security Act, 2017, SC 2019, c 13, which received royal assent on June 21, 2019. Once again, this legislation—also introduced as an omnibus bill—redrew the legal landscape regarding national security in Canada and amended an array of laws, including the SATA.
[33] The SATA’s objective of protecting Canada’s national security interests and the safety of Canadians in relation to air travel is evidenced in its short title, “Secure Air Travel Act”, as well as its legislative title, “An Act to enhance security relating to transportation and to prevent air travel for the purpose of engaging in acts of terrorism.” Moreover, the summary of the Anti-Terrorism Act, 2015 confirms this object, noting the following:
Anti-terrorism Act, 2015, SC 2015, c 20
Loi antiterroriste (2015), LC 2015, ch 20
Part 2 enacts the Secure Air Travel Act in order to provide a new legislative framework for identifying and responding to persons who may engage in an act that poses a threat to transportation security or who may travel by air for the purpose of committing a terrorism offence. That Act authorizes the Minister of Public Safety and Emergency Preparedness to establish a list of such persons and to direct air carriers to take a specific action to prevent the commission of such acts. In addition, that Act establishes powers and prohibitions governing the collection, use and disclosure of information in support of its administration and enforcement. That Act includes an administrative recourse process for listed persons who have been denied transportation in accordance with a direction from the Minister of Public Safety and Emergency Preparedness and provides appeal procedures for persons affected by any decision or action taken under that Act. That Act also specifies punishment for contraventions of listed provisions and authorizes the Minister of Transport to conduct inspections and issue compliance orders. Finally, this Part makes consequential amendments to the Aeronautics Act and the Canada Evidence Act.
La partie 2 édicte la Loi sur la sûreté des déplacements aériens qui constitue un nouveau cadre législatif en vue de l’identification des personnes qui pourraient participer à un acte qui menacerait la sûreté des transports ou qui pourraient se déplacer en aéronef dans le but de commettre une infraction de terrorisme et en vue de l’intervention à leur égard. Le ministre de la Sécurité publique et de la Protection civile est autorisé à établir une liste de telles personnes et à enjoindre aux transporteurs aériens de prendre la mesure qu’il précise pour prévenir la commission de tels actes. Cette loi établit aussi les pouvoirs et les interdictions régissant la collecte, l’utilisation et la communication de renseignements afin d’assister le ministre de la Sécurité publique et de la Protection civile dans son application et son exécution. Elle prévoit un processus de recours administratif pour les personnes inscrites qui ont fait l’objet d’un refus de transport au titre d’une directive du ministre de la Sécurité publique et de la Protection civile ainsi qu’un processus d’appel pour les personnes touchées par une décision ou une mesure prise au titre de cette loi. Celle-ci prévoit en outre les peines pour les infractions aux dispositions énumérées et autorise le ministre des Transports à mener des inspections et à prendre des mesures d’exécution. De plus, elle modifie la Loi sur l’aéronautique et la Loi sur la preuve au Canada en conséquence.
[34] The overall purpose of the National Security Act, 2017 was to address concerns expressed by the public and experts alike regarding a perceived failure of the Anti-terrorism Act, 2015 to balance national security interests with individual rights and freedoms. This is reflected in its preamble, which stipulates the following:
Preamble
Préambule
Whereas a fundamental responsibility of the Government of Canada is to protect Canada’s national security and the safety of Canadians;
Attendue :
que la protection de la sécurité nationale et de la sécurité des Canadiens est l’une des responsabilités fondamentales du gouvernement du Canada;
Whereas that responsibility must be carried out in accordance with the rule of law and in a manner that safeguards the rights and freedoms of Canadians and that respects the Canadian Charter of Rights and Freedoms;
que le gouvernement du Canada a l’obligation de s’acquitter de cette responsabilité dans le respect de la primauté du droit et d’une manière qui protège les droits et libertés des Canadiens et qui respecte la Charte canadienne des droits et libertés;
Whereas the Government of Canada is committed to enhancing Canada’s national security framework in order to keep Canadians safe while safeguarding their rights and freedoms;
que le gouvernement du Canada est résolu à consolider le cadre fédéral de sécurité nationale dans le but d’assurer la sécurité des Canadiens tout en préservant leurs droits et libertés;
Whereas the Government of Canada, by carrying out its national security and information activities in a manner that respects rights and freedoms, encourages the international community to do the same;
que le gouvernement du Canada, du fait qu’il exerce les activités liées à la sécurité nationale et au renseignement d’une manière qui respecte les droits et libertés, encourage la communauté internationale à faire de même;
Whereas enhanced accountability and transparency are vital to ensuring public trust and confidence in Government of Canada institutions that carry out national security or intelligence activities;
que la confiance de la population envers les institutions fédérales chargées d’exercer des activités liées à la sécurité nationale ou au renseignement est tributaire du renforcement de la responsabilité et de la transparence dont doivent faire preuve ces institutions;
Whereas those institutions must always be vigilant in order to uphold public safety;
que ces institutions fédérales doivent constamment faire preuve de vigilance pour assurer la sécurité du public;
Whereas those institutions must have powers that will enable them to keep pace with evolving threats and must use those powers in a manner that respects the rights and freedoms of Canadians;
que ces institutions fédérales doivent en outre disposer de pouvoirs leur permettant de faire face aux menaces en constante évolution et exercer ces pouvoirs d’une manière qui respecte les droits et libertés des Canadiens;
Whereas many Canadians expressed concerns about provisions of the Anti-terrorism Act, 2015;
que nombre de Canadiens ont exprimé des préoccupations au sujet de dispositions de la Loi antiterroriste de 2015;
And whereas the Government of Canada engaged in comprehensive public consultations to obtain the views of Canadians on how to enhance Canada’s national security framework and committed to introducing legislation to reflect the views and concerns expressed by Canadians;
que le gouvernement du Canada a entrepris de vastes consultations publiques afin de recueillir l’avis des Canadiens quant à la façon de consolider le cadre fédéral de sécurité nationale et qu’il s’est engagé à déposer un projet de loi qui tienne compte des préoccupations et des avis exprimés par les Canadiens,
[35] Read together, the long and the short title of the SATA, the summary of the Anti-Terrorism Act, 2015 and the preamble of the National Security Act, 2017 reveal the object of the SATA and how it fits into the overall legislative architecture of Canada’s national security legislative scheme.
[36] The Anti-Terrorism Act, 2015 demonstrates that the object of the SATA is to give the Minister the ability to identify, and respond to, persons that pose a threat to transportation security or may travel by air for the purpose of committing a terrorism offence. At the same time, it must ensure that affected persons are provided with both an administrative review and an appeal mechanism that must protect confidential information.
[37] The preamble of the National Security Act, 2017 allows the reader to situate this intention within Parliament’s overarching objective regarding national security: ensuring a careful balance between the rights and freedoms of individuals while protecting Canada’s national security and the safety of Canadians.
[38] The legislative object of protecting Canada’s national security interests and the safety of Canadians with regard to air travel, in a manner that carefully balances this objective with the rights and freedoms of individuals, is consistent with the relevant jurisprudential context at the time of the enactment of the SATA. Indeed, in the context of certificate proceedings under the IRPA, the SCC made it clear that a careful balance must be achieved between the collective interest in protecting confidential information for national security reasons and the interest in protecting individual rights and freedoms (see Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 [Harkat] at paras 40-44 and Charkaoui I at para 1).
[39] Harkat and Charkaoui I were mentioned on numerous occasions by members of the legislature and witnesses before Parliament’s two chambers when studying and debating the creation of the SATA in 2015, as well as during the amendment of the SATA between 2017 and 2019 (see Debates of the Senate, 41st Parl 2nd Sess, Vol 149 No 142 (14 May 2015) at 3388–3389 (Honourable Senator Claudette Tardif) and House of Commons Standing Committee on Public Safety and National Security, 42nd Parl, 1st Sess, No 90 (7 December 2017) at 12–13).
[40] In sum, this general object of balancing national security and the safety of Canadians with individual rights and freedoms is evident when one considers the SATA in its overall legislative context. Accordingly, when interpreting the legislative framework set out in the SATA, this general object must animate one’s understanding of the statute’s words (see Rizzo at para 21).
B. Operation of the SATA
[41] The provisions of the SATA outline the authority of the Minister to list individuals under the SATA, share information related to this list with domestic and foreign partners, and direct air carriers to take the necessary measures to prevent persons from engaging or attempting to engage in an act that threatens aviation security or travel for the purpose of terrorism. The statute also provides for an internal administrative recourse mechanism for listed persons to have their names removed from the list, and if unsuccessful at that stage, a right of appeal to the Federal Court.
[42] The starting point of any statutory analysis of the SATA is section 8. This section provides for the establishment of a list by the Minister (or their delegate) of persons whom they have “reasonable grounds to suspect” will:
(a) engage or attempt to engage in an act that would threaten transportation security; or
a) soit participera ou tentera de participer à un acte qui menacerait la sûreté des transports;
(b) travel by air for the purpose of committing an act or omission that
b) soit se déplacera en aéronef dans le but de commettre un fait — acte ou omission — qui :
(i) is an offence under section 83.18, 83.19 or 83.2 of the Criminal Code or an offence referred to in paragraph (c) of the definition terrorism offence in section 2 of that Act, or
(i) constitue une infraction visée aux articles 83.18, 83.19 ou 83.2 du Code criminel ou à l’alinéa c) de la définition de infraction de terrorisme à l’article 2 de cette loi
(ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (i).
(ii) s’il était commis au Canada, constituerait une des infractions mentionnées au sous-alinéa (i).
[43] The scope of this power to list persons at subsection 8(1) includes all persons, both inside and outside Canada (subsection 4(1)), and includes acts or omissions committed outside Canada that would contravene to the Criminal Code if committed in Canada, which are considered for the purpose of the SATA as acts committed within Canada (section 5). The list includes the first, middle and surname, any known alias, the date of birth, and the gender o