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 1163
File numbers
T-669-19
Decision Content
Date: 20220810
Docket: T-669-19
Citation: 2022 FC 1163
Ottawa, Ontario, August 10, 2022
PRESENT: The Honourable Mr. Justice S. Noël
BETWEEN:
BHAGAT SINGH BRAR
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. Brar’s Appeal 7
B. Procedural history covering both appeals (Mr. Brar and Mr. Dulai) 9
III. Legislation 10
IV. The public evidence presented by the Appellant 13
V. The public evidence presented by the Minister 20
VI. The public submissions of the Appellant 24
VII. The public submissions of the Minister 28
VIII. Issue 30
A. The applicable standards 31
(1) Standard of review 31
(2) The threshold standard 34
B. Conflicting evidence has to be assessed on the basis of the balance of probabilities 37
C. The Minister’s decision under review 39
D. The scope of the public evidence resulting from the appeal proceedings 39
E. Legal principles related to the disclosure of national security information in judicial civil and administrative proceedings 50
IX. Finding resulting from the appeal proceedings 54
X. The Prime Minister’s trip to India 58
XI. The finding on whether the decision was reasonable under paragraph 8(1)(a) of the SATA 60
XII. The findings on whether the decision was reasonable under subparagraphs 8 (1)(b)(i) and (ii) of the SATA 61
XII. The SATA needs improvement 63
XIII. Conclusion 64
JUDGMENT in T-669-19 66
Annex A 67
Annex B 91
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 Dulai v Canada (Minister of Public Safety and Emergency Preparedness) 2022 FC 1164). 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 examines the legislation and provides clarity and guidance where deemed necessary.
[2] This Judgment and Reasons [hereinafter “the decision”] address the appeal of an administrative decision dated December 21, 2018 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. Bhagat Singh Brar [Mr. Brar 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. Brar submits that the procedure set out in the SATA for determining the reasonableness of the Minister’s delegate’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. Parvkar Singh Dulai [Mr. Dulai or, together with Mr. Brar, 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 Appellant 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. Brar, 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. Brar’s Appeal
[13] On April 23, 2018, Mr. Brar’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] The following day, Mr. Brar was scheduled to take two 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 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.
[15] On June 2, 2018, Mr. Brar submitted an application for administrative recourse to the Passenger Protect Inquiries Office (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.
[16] 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.”
[17] On April 18, 2019, Mr. Brar filed a Notice of Appeal with this Court pursuant to subsection 16(2) of the SATA. In this 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.
[18] More specifically, Mr. Brar argues the following as the grounds of his appeal: 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. In his Notice of Appeal, Mr. Brar 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’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. Procedural history covering both appeals (Mr. Brar and Mr. Dulai)
[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 27, 2022, Mr. Brar 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.
[26] He rejects the allegation whereby he would have met with someone he knew was the leader, or a member, of Lashkar-e-Tayyiba or any other militant group during his travels in Pakistan.
[27] While Mr. Brar supports an independent Sikh homeland (Khalistan), he says he does not support violence or an armed movement as a means of achieving a Khalistan state. He mentions having contributed to Sikhs for Justice, an organization dedicated to supporting the creation of an independent homeland; however, he asserts that he does not provide financial support to the movement. Rather, he works with the community to organize protests within Canada in support of these issues. He also affirms having worked to contact politicians and supported letter writing campaigns in the past aimed at supporting Khalistan and holding the Government of India accountable for the “atrocities it commits against those who express support for Khalistan” (Affidavit of Mr. Brar, January 27, 2022 at para 25).
[28] Mr. Brar denies being a member of the International Sikh Youth Federation (ISYF), of which his father was once a leader. According to Mr. Brar, his father “is not the leader of the ISYF and to [his] knowledge he has not been involved with the ISYF since 2002” (Affidavit of Mr. Brar, January 27, 2022 at para 28). He states that he is not, nor has he ever been, knowingly associated with Sikh extremism. Mr. Brar says that he has no connection to Canadian or internationally-based Sikh extremists, as alleged by CSIS (Revised Appeal Book at p 9).
[29] In reference to allegations that he and Gurjeet Singh Cheema had been planning an India-based terrorist attack, and that during his visit to Pakistan in 2015 he planned for the attack at the behest of the Pakistan Interservices Intelligence Directorate (Pak ISI) by making arms and ammunition available in India, Mr. Brar replies that he has no association with Gurjeet Singh Cheema and has never planned a terrorist attack, either in India or elsewhere. He affirms never having done anything at the behest of the Pak ISI and never having made arms or ammunition available to anyone anywhere (Affidavit of Mr. Brar, January 27, 2022 at paras 31–33).
[30] Mr. Brar rejects the allegation that while in Pakistan in 2015 he planned for an attack in India and indoctrinated two Punjab (Indian) based Sikh youths and motivated them to conduct terrorist acts. He refutes what the two Sikh youths allegedly said about him, notably that he had visited India in the recent past and imparted theoretical training to them in the handling of arms including AK rifles. Mr. Brar says that he does not know these two Sikh youths, and therefore did not indoctrinate them. He also affirms that he did not provide anyone with arms or ammunition, or provide theoretical training in the handling of such arms. Moreover, Mr. Brar declares that he has not been in India since he immigrated to Canada in 1987.
[31] Mr. Brar says that contrary to allegations against him, he has never cooperated with the Pak ISI to thwart community outreach or reconciliation efforts by the Government of India. He is also not, and never has been, a member, let alone the President of the ISYF’s youth wing in Canada or elsewhere. His understanding is that the ISYF no longer exists and has not existed for many years.
[32] Mr. Brar denies the allegation that he is collecting funds from members of the Canadian Sikh community in order to renovate some Gurdwaras in Pakistan or that he has been diverting a major part of the funds for anti-India activities. The only times he recalls having sent money overseas in the last ten years was for advertising and Google ads payment for his company, Yellow Car Rental.
[33] While Mr. Brar acknowledges knowing and doing business with Mr. Dulai, he is not aware of any connection that Mr. Dulai may have to terrorism or terrorist entities and does not believe these allegations to be true, otherwise he would not associate with him.
[34] Mr. Brar does not hide the fact that he has openly supported the worldwide movement to hold the Government of India accountable for the treatment of Mr. Johal and the denial of his basic human rights. However, he indicates that he does not know, nor has he ever met, Jagtar Singh Johal. He says he never collected any funds on Mr. Johal’s behalf, nor sent his father funds for any purpose except for his open-heart surgery in 2018. Mr. Brar says he paid for the surgery and medication, but those funds were paid directly to the hospital and not to his father.
[35] In response to the allegation that he is a Canada-based Sikh extremist who has been engaged in, and will continue to be engaged in terrorist activities, particularly fundraising in support of terrorist attacks overseas, promoting extremism, including the radicalization of youth, with the aim of achieving Khalistan independence, and attack planning and facilitation, including weapons procurement, to conduct attacks in India, Mr. Brar replies that he has never engaged in, or facilitated terrorist-related activities within or outside of Canada. He has never been a part of a terrorist organization or facilitated such activities. He has never engaged in fundraising in support of terrorist attacks overseas or anywhere. He has never promoted extremism. He has never engaged in or promoted the radicalization of youth.
[36] While he supports an independent Khalistan, Mr. Brar claims he has never engaged in extremist activities in support of an independent Khalistan. He has never planned or facilitated attacks in India by means of weapons procurement or otherwise and has never contributed financially, either directly or indirectly, to extremist movements.
[37] Mr. Brar refutes the allegation that he was supposed to travel to Fort Lauderdale on April 24, 2018. Rather, he states that the intention was to depart Vancouver for Toronto and stay there. He says he purchased his flight with the assistance of a website called skiplagged.com. The website searches for connecting flights with stopovers in the intended destination that are cheaper than fares for direct flights. When he purchased the ticket, it was cheaper to purchase a flight to Fort Lauderdale, with a connection in Toronto, than it was to fly to Toronto alone. Therefore, he purchased that flight with the intention of disembarking in Toronto and not catching the connecting flight.
[38] Mr. Brar acknowledges that he had regular interactions with CSIS personnel throughout his childhood and until his father left Canada in 1991. However, based on these talks, he never got the impression that he was the subject of an investigation.
[39] Mr. Brar believes he was first contacted by a CSIS agent, as an adult, in the mid-l990s when he lived in Brampton. After that first contact, various CSIS agents would come speak to him to gather information about his community. Mr. Brar was asked and agreed to work with CSIS on one occasion, but the agent never followed up. Mr. Brar estimates that between the mid-1990s and 2018, CSIS agents approached him between 15 to 20 times.
[40] In his affidavit, Mr. Brar also details his last encounter with CSIS, which took place in 2018 when he came back from Pakistan. He says he was pulled out for a secondary customs inspection, cleared, and then a supervisor indicated another agency was waiting to talk to him. When the Customs supervisor confirmed that it was a CSIS agent, Mr. Brar declined to meet with them. He explained that he had just gotten off a 16-hour flight and wanted to go home. He indicated that CSIS knew where he lived and could contact him there. The next morning, he travelled to Vancouver. It was several days later, when he was attempting to fly back to Ontario from Vancouver, that he was denied boarding.
[41] Mr. Brar mentions that while he was in Vancouver in April 2018, someone who identified himself as being a CSIS agent named Norman Lau attended his home and gave his business card to his wife. Upon his return to Ontario, Mr. Brar contacted Mr. Lau and told him that he had been denied boarding in Vancouver. Mr. Lau replied that he did not know why and directed Mr. Brar to the application for recourse. Mr. Lau also inquired about how the media managed to publish a copy of Mr. Brar’s passport photo and visa. Mr. Brar explained that he did not know. He affirms this was the last contact he had with anyone he knows to have been working with CSIS.
[42] Mr. Brar asserts that being placed on the no-fly list has had a tremendous physical, psychological and financial effect on him. He owns and manages a business with branches in Ontario and British Columbia and his intention was to expand into other provinces by 2019 (Calgary, Edmonton, Montreal). Because of his listed status, Mr. Brar had to abandon those plans for the time being, which resulted in significant financial losses.
[43] Moreover, Mr. Brar states that he was the target of various news agencies and reporters in Canada who have written about him and his business in national newspapers. Reporters like Tom Blackwell and columnist Tarek Fateh have publicly called him a terrorist based on the allegations against him. Because he is involved in the community on the frontlines, this has hurt his image. Mr. Brar says that Google searches for his business or personal name lead to negative stories that are readily available in the public domain. He alleges that CSIS agents have been going to his family and friends, “feeding them lies, quoting Indian media and telling them that [he] will be arrested and deported to India in the near future.” He says that this is all very disturbing to him and deeply affects his psychological wellbeing.
[44] Aside from suffering business losses, Mr. Brar mentions that he has had to travel by car from Toronto to Vancouver approximately 10 times in the last four years. Where a normal air ticket costs around $400-$500, he has had to spend between $7,000-$10,000 for each road trip, in addition to having to take someone with him every time he travels. He says it takes three to four days each way, compared to four or five hours when he travels by air and each trip is three weeks to a month long. He deplores the fact that he has had to miss many functions, which he was to attend with family and friends, as he cannot travel in the winter because of the road conditions.
[45] In addition to his personal affidavit, Mr. Brar filed an affidavit from Dongju Zhao on January 31, 2022. This affidavit includes a number of documents addressing the legality of self-determination for Sikh peoples, the reliability of Indian media sources, the prevalence of torture in Indian police custody, the banning of Indian officials from Canadian and international Gurdwaras, and Prime Minister Trudeau’s trip to India in February 2018. The affidavit also includes the following:
(1) A legible colour copy of the News18 Article referenced in the unclassified summary and memorandum (Zhao Affidavit, p. 324);
(2) A May 2017 India Today News article which states, in part, that Mann and Singh Sher were arrested with a “huge cache of arms”, and, under interrogation, they told police that they were indoctrinated by “Canada-based Sikh hardliner, Gurjivan Singh”, who arranged the arms and ammunition through his Khalistani contacts in Pakistan and “imparted them theoretical training in handling arms, including AK- 47 riles” (Zhao Affidavit, p. 334);
(3) A May 23, 2017 Sikh24 News article noting the arrest of Mann and Sher Singh and stating that at a court appearance after their arrest, Mann Singh “seemed to have been tortured” (Zhao Affidavit, p. 340);
(4) A decision of the Court of Sh.Sarbjit Dhaliwal in Amristar, India, dated October 26, 2020 detailing the evidence led in the case against Sher and Mann Singh. While the judgment refers to evidence that “Gurjit Singh @ Gurjiwan Singh @ Baghel Singh son of Inderjit Singh, resident of village Jogi Cheema” was involved in the allegations before the court, there is no reference to Mr. Brar at any point in the 117-page judgment. In fact, the actions attributed to Mr. Brar in the unclassified summary were, according to the evidence before the court, carried out by Gurjit Singh (Zhao Affidavit, p. 363);
(5) A screengrab of the first page of the results of a Google search for Bhagat Sing Brar (Zhao Affidavit, p. 483);
(6) A November 15, 2017 letter from NPD MP Cheryl Hardcastle to then Minister Freeland regarding Mr. Jagtar Singh Johal (Zhao Affidavit, p. 486)
V. The public evidence presented by the Minister
[46] 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. Brar’s inclusion on the SATA list may be found in both appeal books.
[47] 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 Canada, is available at pages 22–30 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 will be placed on the SATA list based on names and supporting information provided by its members.
[48] Ms. Soper refers to the decision rendered in exigent circumstances by the delegated decision maker, on or about April 23, 2018, to place Mr. Brar 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. Brar may present a threat to transportation security or seeking to travel by air for certain terrorism-related purposes.
[49] 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. Brar was denied boarding on two flights on April 24, 2018 pursuant to a direction under subsection 9(1) of the SATA. The decision by the Senior Assistant Deputy Minister to leave Mr. Brar’s name on the SATA list on May 10, 2018 and August 21, 2018 is also mentioned.
[50] Ms. Soper’s affidavit details Mr. Brar’s recourse application that began on May 27, 2018 when he first applied for recourse requesting that his name be removed from the SATA list. In his recourse application, Mr. Brar referred to the denial to board a flight from Vancouver to Toronto on April 24, 2018. The recourse application was received by the PPIO on June 8, 2018.
[51] On August 10, 2018, the PPIO provided an unclassified summary to Mr. Brar 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. Brar sought extensions of time to make submissions in email correspondence with the PPIO.
[52] On December 3, 2018, Mr. Brar provided written submissions and supporting documents including reference letters and information obtained from his access to information requests to government agencies. On December 18, 2018, the Minister’s delegate decided to maintain Mr. Brar’s status as a listed person on the SATA list.
[53] 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. Brar’s name was added to the list still existed and whether his name should remain on the list. At the time when Ms. Soper affirmed the affidavit (September 12, 2019), Mr. Brar’s name remained on the SATA list.
[54] A number of documents relating to the listing of Mr. Brar 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. Brar on the SATA list.
[55] On March 1, 2022, this Court received a supplementary public affidavit from the Minister, signed by Lesley Soper on February 25, 2022. In this document, she provides legislative history and policy documents relating to the SATA, as well as further details about the PPP, including the processes for administrative and exigent listing, de-listing, and the operations of the Government Operations Centre (GOC).
[56] Ms. Soper clarifies the circumstances surrounding the listing of Mr. Brar by stating that the recommendation to list him in exigent circumstances was approved by a delegate who was acting as Director General on April 23, 2018, the same day the request to list was presented. Mr. Brar was subsequently denied boarding on two scheduled flights from Vancouver to Toronto on April 24, 2018.
[57] Ms. Soper states that Public Safety Canada reported the first denial in an event report referred to in her September 2019 affidavit as document (ii) of Exhibit A (Revised Appeal Book, pp 41-45). It is her understanding from reading the event report dated April 24, 2018 that the GOC was contacted at the time Mr. Brar tried to board the plane. A Senior Operations Officer from the GOC, acting as the section 9 delegated decision maker, decided to deny boarding after considering the information in the case brief, the information provided by Transport Canada and Air Canada, and information provided by the nominating agency that was contacted on that day.
[58] She also mentions that Public Safety Canada reported a second denial on April 24, 2018. She referred to it in her September 2019 affidavit as document (iii) of Exhibit A (Revised Appeal Book, pp 47–51). It is her understanding from reading the report that the GOC was contacted at the time Mr. Brar tried to board another flight later on that same day. A Senior Operations Officer from the GOC decided to deny boarding after considering the information in the case brief, the information provided by Transport Canada and Air Canada, and information provided by the nominating agency that was contacted again on that day.
[59] Ms. Soper affirms that the PPAG recommended that Mr. Brar be maintained on the SATA list at the next meeting on May 10, 2018. The delegated decision maker, the Senior Assistant Deputy Minister of Public Safety Canada