Dulai v. Canada (Public Safety and Emergency Preparedness)

Dulai v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2022-08-10
Neutral citation
2022 FC 1164
File numbers
T-670-19
Notes
Digest
Decision Content
Date: 20220810
Docket: T-670-19
Citation: 2022 FC 1164
Ottawa, Ontario, August 10, 2022
PRESENT: The Honourable Mr. Justice S. Noël
BETWEEN:
PARVKAR SINGH DULAI
Appellant
and
CANADA (MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS)
Respondent
JUDGMENT AND REASONS
Table of Contents
I. Overview 2
II. Background 7
A. Facts in Mr. Dulai’s Appeal 7
B. Procedural history covering both Appeals (Mr. Dulai and Mr. Brar) 9
III. Legislation 10
IV. The public evidence presented by the Appellant 13
V. The public evidence presented by the Minister 17
VI. The public submissions of the Appellant 22
VII. The public submissions of the Minister 27
VIII. Issue 29
A. The applicable standards 29
(1) Standard of Review 29
(2) The threshold standard 32
B. Conflicting evidence has to be assessed on the basis of the balance of probabilities 35
C. The Minister’s decision under review 37
D. The scope of the public evidence resulting from the appeal proceedings 37
E. Legal principles related to the disclosure of national security information in judicial civil and administrative proceedings 48
F. Mr. Dulai’s response to the allegations made against him 52
IX. Findings resulting from the appeal proceedings 53
X. The Prime Minister’s trip to India 57
XI. The finding on whether the decision was reasonable under paragraph 8(1)(a) of the SATA 59
XII. The boarding denial of May 17, 2018 60
XIII. The finding on whether the decision was reasonable under subparagraphs 8(1)(b)(i) and (ii) of the SATA 61
XIV. The SATA needs improvement 63
XV. Conclusion 64
JUDGMENT in T-670-19 66
Annex A 67
Annex B 94
I. Overview
[1] This appeal consists of a multi-pronged case in which the Appellant’s claims that pertain to the reasonableness of the Minister’s decision and his claims relating to sections 6 and 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], are addressed in separate decisions; this Judgment and Reasons deal with reasonableness, and a concurrent decision addresses the constitutional issues (Brar et al v Canada (Minister of Public Safety and Emergency Preparedness), 2022 FC 1168 . Confidential reasons on the reasonableness of the Minister’s decision, which are complementary to this decision, include specific findings on this appeal and its companion case (see Brar v Canada (Minister of Public Safety and Emergency Preparedness) 2022 FC 1163). These are the first appeals filed pursuant to the Secure Air Travel Act, SC 2015, c 20, s 11 [SATA] since its enactment in 2015. The parties to these appeal proceedings have contested parts of the legislation which therefore requires that the Court examine the legislation and provide clarity and guidance where deemed necessary.
[2] This Judgment and Reasons [the “Decision”] addresses the appeal of an administrative decision dated January 30, 2019 and made by Mr. Vincent Rigby, Associate Deputy Minister, and delegate [delegate] for the Minister of Public Safety and Emergency Preparedness [the Minister or Respondent], to maintain Mr. Parvkar Singh Dulai [Mr. Dulai or Appellant] on the no-fly list pursuant to sections 15 and 16 of the SATA.
[3] The Appellant remains a listed individual pursuant to section 8 of the SATA given the Minister’s delegate’s decision to deny his application for administrative recourse under section 15 of the SATA, by which the Appellant had sought to have his name removed from the list.
[4] The Minister’s delegate made the decision on the basis that he had reasonable grounds to suspect that the Appellant would either “engage or attempt to engage in an act that would threaten transportation security” or “travel by air for the purpose of committing an act or omission that (i) is an offence under sections 83.18, 83.19 or 83.2 of the Criminal Code, RSC 1985, c C-46 [Criminal Code] or an offence referred to in paragraph (c) of the definition “terrorism offence” in section 2 of that Act, or (ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (i)” (see paragraphs 8(1)(a) and 8(1)(b) of the SATA).
[5] As a result, the Appellant filed a statutory appeal of the Minister’s delegate’s decision to dismiss his administrative recourse application, as permitted by section 16 of the SATA. In his appeal, Mr. Dulai submits that the procedure set out in the SATA for determining the reasonableness of the Minister’s decision whether to designate him as a listed person, and thereafter maintain that designation, violates his common law right to procedural fairness because it deprives him of the right to know the case against him and the right to answer that case.
[6] As mentioned above, another appeal brought by Mr. Bhagat Singh Brar [Mr. Brar or, together with Mr. Dulai, Appellants], raises similar issues regarding the reasonableness of the Minister’s decision in addition to constitutional matters.
[7] Confidential reasons complementary to this judgment address classified evidence made available to assist me, the designated judge, in rendering a judgment in both appeals. This decision, which is contained in Annex C, is not publicly available as it contains information that, if revealed, would injure national security or endanger the safety of any person. This tension between the rights of individuals and the collective interests in security was discussed at length in two related decisions published in October 2021 (Brar v Canada (Minister of Public Safety and Emergency Preparedness) 2021 FC 932 [Brar 2021] and Dulai v Canada (Public Safety and Emergency Preparedness) 2021 FC 933 [Dulai 2021]).
[8] In those decisions, I considered whether disclosing the redacted information and other evidence adduced during ex parte and in camera hearings would be injurious to national security or endanger the safety of any person. Upon finding in the affirmative with respect to certain information, I then asked if the protected information and other evidence could be disclosed to the Appellants in the form of a summary or otherwise in a way that would not jeopardize national security or endanger the safety of any person. The outcome of those decisions was that some redactions were confirmed by the Court, some were fully or partially lifted, and the information underneath other redactions was summarized. The delicate balance between protecting sensitive information and the right of the person to know the case against them is not uncommon in national security matters, as demonstrated by Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui I]:
[55] Confidentiality is a constant preoccupation of the certificate scheme. The judge “shall ensure” the confidentiality of the information on which the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to national security or to the safety of any person: s. 78(b). At the request of either minister “at any time during the proceedings”, the judge “shall hear” information or evidence in the absence of the named person and his or her counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person: s. 78(e). The judge “shall provide” the named person with a summary of information that enables him or her to be reasonably informed of the circumstances giving rise to the certificate, but the summary cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person: s. 78(h). Ultimately, the judge may have to consider information that is not included in the summary: s. 78(g). In the result, the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said.
[…]
[58] More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence 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).
[9] Reasons dealing with the SATA were also issued in July 2020 (Brar v Canada (Public Safety and Emergency Preparedness, 2020 FC 729 [Brar 2020]). They answered a number of questions raised by the parties and explained at length the process to be followed.
[10] In these Judgment and Reasons, to which the complementary and confidential reasons in Annex C add, I assess the overall evidence presented by both parties in relation to whether there are reasonable grounds to suspect that the listed person, in this case, Mr. Dulai, will engage or attempt to engage in an act that would threaten transportation security, or travel by air to commit certain terrorism offences.
[11] In order to ensure fairness, I appointed two amici curiae [Amici] with the mandate of representing the interests of the Appellant. I expand on the impact of their role in the concurrent decision on the constitutional issues.
[12] For the following reasons, this appeal is allowed in part.
II. Background
A. Facts in Mr. Dulai’s Appeal
[13] On March 29, 2018, Mr. Dulai’s name was included on the no-fly list. It was concluded that there were reasonable grounds 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.
[14] On May 17, 2018, Mr. Dulai was issued a written Denial of Boarding under the Passenger Protect Program (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.
[15] On June 8, 2018, the Passenger Protect Inquiries Office (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.
[16] On January 30, 2019, the Minister advised Mr. Dulai of his decision to maintain his status as a listed person under the SATA. Following a review of the classified and unclassified information provided, including Mr. Dulai’s written submissions, the Minister’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.”
[17] On April 18, 2019, Mr. Dulai filed a Notice of Appeal with this Court pursuant to subsection 16(2) of the SATA. Mr. Dulai 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 are therefore of no force and effect, or to read-in such procedural safeguards that would cure any constitutional deficiencies in the SATA.
[18] More specifically, Mr. Dulai enumerates the following grounds of appeal: that the Minister’s decision was unreasonable and that 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. In his Notice of Appeal, Mr. Dulai also requested that the Respondent disclose 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.
B. Procedural history covering both Appeals (Mr. Dulai and Mr. Brar)
[19] Since these appeals have been initiated, several documents have been exchanged, case management conferences (both public and ex parte) have been held, public and ex parte hearings took place in both Ottawa, Ontario, and Vancouver, British Columbia and three decisions applicable to each case were published (Brar 2020, Brar 2021 and Dulai 2021).
[20] Navigating the SATA legislation has been laborious, lengthy, and complex. The appeals required that the Appellants, Counsel, Amici and this Court think about and test many areas of the law. Due to its length, the complete judicial history of these two appeals is available at Annex A. It includes information on every procedural step taken over the last three years and reflects both parties’ dedication to these matters, and the great level of detail with which each step was handled.
III. Legislation
[21] As part of the Reasons in Brar 2020, it was essential to review and analyze the SATA (see Brar 2020 at paras 58 to 89, in particular with respect to the appeal provisions at paras 80 to 89). It is not necessary to duplicate what has already been written except to note that the SATA sets out specific rules governing the appeal process.
[22] Subsection 16(6) of the SATA reads as follows:
Secure Air Travel Act, SC 2015, c 20, s 11
Loi sur la sûreté des déplacements aériens, LC 2015, c 20, art 11
Appeals
Appel
Procedure
Procédure
16(6) The following provisions apply to appeals under this section:
16(6) Les règles ci-après s’appliquent aux appels visés au présent article :
(a) at any time during a proceeding, the judge must, on the request of the Minister, hear information or other evidence in the absence of the public and of the appellant and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;
a) à tout moment pendant l’instance et à la demande du ministre, le juge doit tenir une audience à huis clos et en l’absence de l’appelant et de son conseil dans le cas où la divulgation des renseignements ou autres éléments de preuve en cause pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(b) the judge must ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
b) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(c) throughout the proceeding, the judge must ensure that the appellant is provided with a summary of information and other evidence that enables them to be reasonably informed of the Minister’s case but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;
c) il veille tout au long de l’instance à ce que soit fourni à l’appelant un résumé de la preuve qui ne comporte aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui et qui permet à l’appelant d’être suffisamment informé de la thèse du ministre à l’égard de l’instance en cause;
(d) the judge must provide the appellant and the Minister with an opportunity to be heard;
d) il donne à l’appelant et au ministre la possibilité d’être entendus;
(e) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence;
e) il peut recevoir et admettre en preuve tout élément — même inadmissible en justice — qu’il estime digne de foi et utile et peut fonder sa décision sur celui-ci;
(f) the judge may base a decision on information or other evidence even if a summary of that information or other evidence has not been provided to the appellant;
f) il peut fonder sa décision sur des renseignements et autres éléments de preuve même si un résumé de ces derniers n’est pas fourni à l’appelant;
(g) if the judge determines that information or other evidence provided by the Minister is not relevant or if the Minister withdraws the information or evidence, the judge must not base a decision on that information or other evidence and must return it to the Minister; and
g) s’il décide que les renseignements et autres éléments de preuve que lui fournit le ministre ne sont pas pertinents ou si le ministre les retire, il ne peut fonder sa décision sur ces renseignements ou ces éléments de preuve et il est tenu de les remettre au ministre;
(h) the judge must ensure the confidentiality of all information or other evidence that the Minister withdraws.
h) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que le ministre retire de l’instance.
[23] In summary, section 16 of the SATA establishes the role of the designated judge in an appeal and sets out how information related to national security must be handled. The designated judge is given the responsibility to ensure the confidentiality of sensitive information (paragraph 16(6)(b)). At the same time, if the protection of information is justified on national security grounds, the designated judge must provide the appellant with summaries of this redacted information. This will reasonably inform the appellant of the Minister’s case against them, but does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person (paragraph 16(6)(c)). This is a challenging task. The objective is to be as informative as possible while respecting the national security parameters enunciated in the SATA appeal scheme. As articulated in Brar 2020 at paragraph 112:
[…] Like an elastic, designated judges must stretch their statutory and inherent powers to ensure that as much disclosure is provided to the appellant while stopping short of the breaking point. A designated judge must feel satisfied that the disclosure (through summaries or by other means) is, in substance, sufficient to allow an appellant to be “reasonably informed” (paragraph 16(6)(e)) of the case made against them and be able to present their side of the story, at the very least via the assistance of a substantial substitute (Harkat (2014), at paras 51–63 and 110). Only then will the designated judge have the necessary facts and law to render a fair decision.
[24] In addition to determining if disclosing the redacted information would be injurious, the designated judge must also establish whether any additional evidence introduced during the ex parte and in camera hearings is reliable and appropriate, and whether it can be communicated to the appellant in the form of summaries or otherwise. The judge must then ascertain if the appellant is reasonably informed of the Minister’s case.
IV. The public evidence presented by the Appellant
[25] In an affidavit dated January 30, 2022, Mr. Dulai provides information about himself, his family, religion, beliefs, business, volunteer activities, travel history and how being placed on the SATA list has affected his and his family’s life. Mr. Dulai seeks to address the allegations against him but mentions that it is difficult because the redactions to the Public Safety Canada Memorandum cover the information that formed the basis of the decision to refuse his application for recourse and keep him on the no-fly list. As a result, he does not feel like he has a sufficient understanding of what the Government says he has done to be able to provide a full response to the allegations and fully defend himself.
[26] In reference to the allegation that he is suspected to be a facilitator of terrorist-related activities, Mr. Dulai replies that he has never planned or facilitated terrorist-related activities anywhere in the world. He says that he is not, nor has ever been, knowingly associated with Sikh extremism or a Sikh extremist milieu and has never been involved with Babbar Khalsa (BK), or International Sikh Youth Federation (ISYF) as alleged in the Memorandum. To his knowledge, he has no connection to Canadian or internationally based Sikh extremists.
[27] The Memorandum raises concerns about foreign travel in 2012 but Mr. Dulai replies that to the best of his recollection, and based on the records he has, the only foreign travel he did in 2012 was to the United States to promote an Indian Punjabi film called Sadda Haq (meaning “Our Right”). It was released in Australia, the United Kingdom, the United States, and Canada, but was banned in India.
[28] Mr. Dulai does not deny knowing Jagtar Singh Johal, arrested in India on November 4, 2017 for his alleged role in several high-profile killings of religious and political leaders in Punjab. However, he questions the allegations against Mr. Johal that were reported in the media. After speaking with Mr. Johal’s defence lawyer, he learned that Mr. Johal was not charged with the murder of Rulda Singh but rather repeated charges of conspiracy to murder. Moreover, the name Rulda Singh is not mentioned in Mr. Johal’s charge sheet and summary of the allegations. Mr. Johal’s charges have been dismissed in at least one district but have been reinvigorated in other districts and Mr. Johal is still in custody. No evidence has been presented in his case to date.
[29] Mr. Dulai is of the opinion that several supporters of an independent homeland for Sikhs were arrested worldwide for their involvement in the killing of Rulda Singh, the Punjab-based chief of Rashtriyasikh Sangat’s arm, but were later released for lack of evidence.
[30] Mr. Dulai shares the sentiment that everyone has a right to a fair trial and that no one should be subjected to torture. This is why he re-tweeted the words of Diljit Dosanjh, a Punjabi singer and actor, expressing sadness towards the reports of torture of Mr. Johal after his arrest in Punjab, and pleading for the right to a fair trial, no matter the allegations. Mr. Dulai never thought the Government could, or would, use a tweet condemning torture as evidence against him. He now feels like he cannot make public statements, even about things like basic human rights, without feeling as if he is putting himself at risk.
[31] Mr. Dulai agrees with the allegation that he is a vocal supporter of Khalistan. He believes in the right to self-determination, based on respect for equal rights and fair equal opportunity. He believes that individuals should be free to choose their sovereignty and international political status without interference or external compulsion. He believes the only means of achieving an independent state called Khalistan is through non-violent means. Before this case, he also believed that being a vocal supporter of Khalistan was the kind of speech that would not be used against him in Canada.
[32] Mr. Dulai affirms that he does not know the organization Lashkar-e-Tayyiba referred to in the Memorandum in relation to Mr. Brar. He says he is also not aware of any connection that Mr. Brar may have to terrorism or terrorist entities and if he had such information, he would not associate with Mr. Brar. Mr. Dulai also submits that he has not provided financial support to any terrorist-related activity and to his knowledge, Mr. Brar has not been involved in collecting funds in support of any terrorist activity either.
[33] In reference to the allegation that he was involved in the $175,000 mortgage to Ajaib Singh Bagri a year after his 2000 arrest in connection with the Air India bombing, Mr. Dulai replies that he was not involved because at that time, he was retained to work as a consultant by Peck and Company Barristers, which was representing Mr. Bagri. He therefore had a clear conflict of interest. He says he has no knowledge of the purported mortgage and that the source for this allegation appears to be a newspaper article written by someone who was declared “far from impartial” by Wesley Wark, adjunct professor at the University of Ottawa, professor emeritus at the University of Toronto’s Munk School and senior fellow at the Centre for International Governance Innovation who is also an expert on national security and intelligence issues.
[34] Mr. Dulai says he has engaged in non-violent activism by attending the United Nations to raise awareness about the human rights violations that have been committed against the Sikhs in India. He has also attended peaceful protests to raise awareness about Sikh-related issues.
[35] Mr. Dulai says that he was at the height of establishing a Punjabi-speaking television channel with the aim of connecting the diaspora of Punjabi-speaking people across the world through celebrating their language and culture when his name was registered on the SATA list in 2018.
[36] Due to his inability to fly to tend to his studios in Toronto, Winnipeg, Calgary and Edmonton, he eventually had to close them, suffering major financial losses. Mr. Dulai says that closing these studios harmed him both financially and psychologically. He is saddened that the vision he had for Channel Punjabi could not be realized due to his inability to fly.
[37] Mr. Dulai says that he has suffered psychological harm because of his listed status. He has been affected by the stigma of being branded a terrorist facilitator and his family has also felt the effects of these allegations through questioning, boarding denial at airports, etc. He also believes that he is being targeted and punished for being a vocal Sikh activist who believes in the right to self-determination through non-violent means. He believes that his speech, associations, faith, ethnicity and religion have formed the basis for his listing on the no-fly list in Canada.
[38] During his testimony in Vancouver on April 19, 2022, Mr. Dulai mentioned that the fact that his beliefs for self-determination are a consideration that were before the Minister scares him and as a result, he stopped talking about it. He said that he does not attend rallies or protests anymore, does not tweet about political views anymore, and does not post online. He also stopped doing interviews on his own channel.
V. The public evidence presented by the Minister
[39] On September 13, 2019, a first appeal book was produced in the current proceeding. A revised version of the material was filed on October 12, 2021. Public evidence that the Minister relied on to support Mr. Dulai’s inclusion on the SATA list may be found in both appeal books.
[40] An affidavit dated September 12, 2019 from Lesley Soper, the Acting Director General of the National Security Directorate within the National and Cyber Security Branch at the Department of Public Safety, is available at pages 25–34 in both the original and the Revised Appeal Book. Her affidavit describes the PPP and the legislative framework that supports the SATA process. It also states that the Passenger Protect Advisory Group (PPAG), which is comprised of several departments and chaired by Public Safety Canada, is responsible for determining who is placed on the SATA list based on names and supporting information provided by its members.
[41] Ms. Soper refers to the decision rendered in exigent circumstances by the delegated decision maker, on March 29, 2018, to place Mr. Dulai on the SATA list. This was the result of information obtained from the PPAG to the effect that there were reasonable grounds to suspect that [Mr. Dulai] may present a threat to transportation security or seeking to travel by air for certain terrorism-related purposes.
[42] The events that followed the listing of the Appellant on the SATA list are also described in the affidavit. Among others is the fact that Mr. Dulai was allowed to board one scheduled flight from Calgary to Vancouver with additional screening on April 1, 2018, pursuant to a direction under subsection 9(1) of the SATA. Furthermore, on April 10, 2018 and August 21, 2018, with the benefit of the recommendations of the PPAG, the Senior Assistant Deputy Minister decided that Mr. Dulai’s name should remain on the SATA list. On May 17, 2018, Mr. Dulai was denied boarding on one scheduled flight from Vancouver to Toronto pursuant to a direction under subsection 9(1) of the SATA.
[43] Ms. Soper’s affidavit details Mr. Dulai’s recourse application that began on May 28, 2018 when he first applied for recourse requesting that his name be removed from the SATA list. On August 10, 2018, the PPIO provided an unclassified summary to Mr. Dulai to allow him to be reasonably informed of the information to be relied on and to provide an opportunity for him to make submissions or present information in support of his recourse application. Mr. Dulai sought extensions of time to make submissions in email correspondence with the PPIO.
[44] On January 2, 2019, Mr. Dulai provided written submissions and supporting documents including reference letters and information obtained from his access to information requests to government agencies. On January 30, 2019, the Minister’s delegate decided to maintain Mr. Dulai’s status as a listed person on the SATA list.
[45] Ms. Soper also explains that pursuant to subsection 8(2) of the SATA, the Minister’s delegate has continued to review the SATA list every 90 days to determine whether the grounds for which Mr. Dulai’s name was added to the list still existed and whether his name should remain on the list. At the time she affirmed the affidavit (September 12, 2019) Mr. Dulai’s name remained on the SATA list.
[46] A number of documents relating to the listing of Mr. Dulai are attached to Ms. Soper’s affidavit, as are additional media reports that were not included in the case brief that was before the PPAG and the Minister’s delegate in making the decision to list and to maintain Mr. Dulai on the SATA list.
[47] On March 1, 2022, this Court received a supplementary public affidavit from the Attorney General of Canada (AGC), signed by Lesley Soper on February 25, 2022. In the document, she provides legislative history and policy documents relating to the SATA. In this supplementary affidavit, she also provides further details about the PPP, including administrative and exigent listing, de-listing, and the operations of the Government Operations Centre (GOC).
[48] Ms. Soper clarifies circumstances surrounding the listing of Mr. Dulai by stating that the recommendation to list him in exigent circumstances was approved by the Director General at the time, on the same day the request to list was presented, that is, on March 29, 2018. The recommended direction included that Mr. Dulai be denied boarding on international inbound and outbound flights, and that additional screening be required for domestic flights.
[49] Ms. Soper affirms that on April 1, 2018, Public Safety Canada reported the direction allowing Mr. Dulai to board his scheduled flights from Calgary to Vancouver with additional screening. Based on an event report dated April 1, 2018, and referred to in the September 2019 affidavit as document (ii) of Exhibit A (Revised Appeal Book, pp 42–51), it is Ms. Soper’s understanding that the GOC was contacted at the time Mr. Dulai tried to board the plane. A Senior Operations Officer from the GOC, as the section 9 delegated decision maker, decided to allow boarding with additional security screening after considering the information in the case brief, the information provided by Transport Canada and Air Canada and information provided by the nominating agency, which was contacted on that day.
[50] Subsequently, a PPAG meeting occurred on April 5, 2018, following which the PPAG submitted a recommendation to re-list Mr. Dulai, and recommended the adoption of a direction to guide future section 9 decisions that Mr. Dulai be denied boarding on international inbound and outbound flights, and that additional screening be required for domestic flights. On April 13, 2018, the Senior Assistant Deputy Minister agreed with the recommended direction and re-listed Mr. Dulai. The April 5, 2018 PPAG recommendation and April 13, 2018 decision to re-list is referred to in Ms. Soper’s first affidavit as document (iv) of Exhibit A (Revised Appeal Book, pp 60–70).
[51] On April 27, 2018, an administrative update was made to Mr. Dulai’s case brief, modifying the recommended direction to guide future section 9 decisions. In particular, the recommended direction was changed to deny boarding on international inbound and outbound flights, as well as domestic flights. Although the document is dated April 5, 2018, Ms. Soper confirms that the administrative update and amended direction occurred on April 27, 2018. The modified recommendation is referred to in her September 2019 affidavit as document (iii) of Exhibit A (Revised Appeal Book, pp 52–59).
[52] In reference to Mr. Dulai’s denial of aircraft boarding, Ms. Soper mentions that Public Safety Canada prepared an event report to that effect on May 17, 2018, which is also referred to in her September 2019 affidavit as document (v) of Exhibit A (Revised Appeal Book pp 71–78). She says that from reading the event report, it appears the GOC was contacted at the time Mr. Dulai tried to board a flight from Vancouver to Toronto. A Senior Operations Officer from the GOC made the decision to deny boarding after considering the information in the case brief, the information provided by Transport Canada and Air Canada, and the information provided by the nominating agency, which was contacted on that day.
[53] In her public testimony on April 20, 2022 in Vancouver, however, Ms. Soper admitted to having no record of the administrative decision made on April 27, 2018 and therefore no signature to authorize it.
[54] At the next meeting on August 16, 2018, the PPAG recommended that Mr. Dulai’s name be kept on the SATA list and approved the recommendation made administratively on April 27, 2018. The acting Senior Assistant Deputy Minister of Public Safety decided to re-list Mr. Dulai and approved the recommendation to deny Mr. Dulai transportation for inbound and outbound international flights, as well as domestic flights. The PPAG recommendation and decision are referred to in documents (vi) of Exhibit A to her September 2019 affidavit (Revised Appeal Book pp 79–93).
VI. The public submissions of the Appellant
[55] Mr. Dulai presented his written submissions in a document dated March 21, 2022. In this document, he submits that the Minister’s decision was unreasonable because it is not based on the facts and law before the Court. He also claims that the reasoning process that led to maintaining his name on the list was not rational, intelligible, or transparent. For these reasons, Mr. Dulai wants the Court to order the Minister to remove his name from the list.
[56] Mr. Dulai submits that the review conducted by the designated judge in a SATA appeal is consistent with a correctness standard of review and inconsistent with a reasonableness standard of review, as those standards are described in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. In these circumstances, Mr. Dulai believes it is more appropriate to call the designated judge’s review one of correctness rather than reasonableness, despite the awkwardness of this label in light of the wording of subsection 16(4) of the SATA. However, from Mr. Dulai’s perspective, the name given to the standard of review is less important than what the judge is empowered to do in a SATA appeal. For the reasons outlined above, the judge’s duty in a SATA appeal to vigorously scrutinize and closely consider all the information and evidence before them without deference to the Minister’s reasoning or conclusions is vital to affording procedural and substantive fairness to the listed person. Achieving such fairness is, in turn, critical to achieving Parliament’s overarching objective regarding national security: ensuring a careful balance between the rights and freedoms of individuals while protecting Canada’s national security and the safety of Canadians.
[57] Mr. Dulai states that his name can only be maintained on the no-fly list if there are “reasonable grounds to suspect” that he will travel by air to commit a terrorism offence. To be reasonable, the suspicion must be grounded in, and based upon, objectively discernible facts that can then be subjected to independent judicial scrutiny. As per R v Chehil, 2013 SCC 49 [Chehil], reasonable suspicion is a robust standard to meet. To be reasonable, the basis for the suspicion needs to be more than educated guesses, hunches, mere suspicions, or generalized suspicions. According to Mr. Dulai, the information and evidence before this Court do not establish reasonable grounds to suspect that he will travel by air to commit a terrorism offence. He states that the evidence presented by CSIS is incapable of meeting this legal standard because for the most part, it contains no objective facts capable of establishing a reasonable suspicion. Where it does contain objectively discernible facts capable of contributing to a reasonable suspicion, Mr. Dulai affirms that he has provided a credible and reliable explanation for these facts. The Minister’s withdrawal of a key piece of evidence (see written representations of the Appellant Parvkar Singh Dulai at page 28, para 86) against him further supports the conclusion that maintaining his name on the list is not reasonable.
[58] Mr. Dulai maintains that he does not have sufficient disclosure to know the critical evidence against him. These submissions are his best effort to r