Brar v. Canada (Public Safety and Emergency Preparedness)

Brar v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2020-06-30
Neutral citation
2020 FC 729
File numbers
T-669-19, T-670-19
Notes
A correction was made on 071321.
Reported Decision
Decision Content
Date: 20200630
Dockets: T-669-19
T-670-19
Citation: 2020 FC 729
Ottawa, Ontario, June 30, 2020
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
REASONS
Contents
I. OVERVIEW 3
II. FACTS 6
A. MR. BHAGAT SINGH BRAR (T-669-19) 6
B. MR. PARVKAR SINGH DULAI (T-670-19) 8
C. APPEALS BEFORE THIS COURT 10
(1) Redacted Information and Evidence 10
(2) Amici Curiae 11
(3) Preliminary Legal Issues 12
III. PRELIMINARY LEGAL QUESTIONS 13
IV. ARGUMENTS 14
A. RESPONDENT’S REPRESENTATIONS 14
(1) Role of the Designated Judge 14
(2) Role of the Amici Curiae 15
(3) Withdrawal of Information 17
(4) Ex Parte Hearing on the Merits 17
B. MR. BHAGAT SINGH BRAR’S REPRESENTATIONS 17
(1) Role of the Designated Judge 18
(2) Role of the Amici Curiae 19
(3) Ex Parte Hearing on the Merits 19
C. MR. PARVKAR SINGH DULAI’S REPRESENTATIONS 20
(1) Role of the Designated Judge 20
(2) Role of the Amici Curiae 21
(3) Withdrawal of Information 23
(4) Ex Parte Hearing on the Merits 23
D. REPRESENTATIONS OF THE AMICI CURIAE 24
(1) Role of the Designated Judge 24
(2) Role of the Amici Curiae 25
(3) Withdrawal of Information 26
(4) Ex Parte Hearing on the Merits 26
V. ANALYSIS 26
A. REVIEW AND ANALYSIS OF THE SATA 26
(1) Context and Legislative Object of the SATA 27
(2) Operation of the SATA 32
(3) Appeal Provisions of the SATA 37
B. ROLE OF THE DESIGNATED JUDGE 42
(1) Overview of Jurisprudence Regarding the Role of the Designated Judge 43
(2) Role in Appeal under the SATA 48
(3) Similarities Between the IRPA and the SATA 61
C. THE ROLE OF THE AMICI CURIAE – A COMPLEMENT TO THE DESIGNATED JUDGE. 69
(1) Third-Party Counsel in Ex Parte and In Camera Proceedings 71
(2) The Amicus Curiae and the Inherent Jurisdiction of the Court 75
(3) Differences Between Role of the Special Advocate and the Amicus Curiae 85
(4) Appointment, Role, and Powers of the Amici Curiae 87
D. WITHDRAWAL OF INFORMATION 119
(1) Access to Withdrawn Information and Reasons for Withdrawal 120
(2) Retention of Copy of Withdrawn Information 123
(3) Steps to Be Taken to Secure the Withdrawn Information 123
E. Ex Parte Hearing on the Merits 125
VI. Conclusion 126
I. OVERVIEW
[1] At the core of a government’s responsibilities is assuring the security of its citizens. As citizens, this is the principal consideration for which, in return, we provide political legitimacy; it is the underpinning of the social contract to which we adhere. However, in a constitutional democracy, governments are not afforded absolute power. They must act in conformity with the Constitution and the rights and liberties it guarantees. Inevitably, this creates a constant tension between the rights of individuals and the collective interest in security. See Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 1 [Charkaoui I].
[2] This tension is acutely present in the context of national security where government is assigned the uneasy task of balancing the active prevention of harm to the security of Canada and Canadians with ensuring that the rights and liberties of individuals it perceives as potential threats are not violated in a way that cannot be justified in a free and democratic society. It is a unique context that puts extraordinary pressure on our fundamental constitutional principles. This is because there is an exceptional collective interest in maintaining the secrecy of information or evidence in this context that inherently clashes with the open court principle and standard notions of procedural fairness.
[3] These clashing interests are largely at the core of the preliminary legal questions this Court is tasked with answering in these first two appeals pursuant to section 16 of the Secure Air Travel Act, SC 2015, c 20, s 11 [SATA]. In particular, the Court must address in this decision: the role of the designated judge in appeals under the SATA, the role and powers of the Amici Curiae in these appeals, the procedure applicable to the withdrawal of information by the Minister of Public Safety and Emergency Preparedness [Minister] under the SATA, and the possibility and purpose of ex parte and in camera hearings on the merits under the SATA.
[4] As the analysis below will demonstrate, I perceive my role as a designated judge under the SATA to be twofold: (1) deciding upon the reasonableness of the Minister’s decision; and (2) serving as an arbiter of what Justice Binnie described as the “clash of the titans” between national security and individual rights (Justice Ian Binnie, “Entrenched Rights in the Age of Counter-Terrorism” (Hong Kong Conference in Criminal Law, 13 November 2004). In this latter regard, I must reconcile these competing interests in a manner that ensures the fairest judicial process possible within the parameters set by legislation and the Court’s plenary power to control its own process. Accordingly, in these circumstances, my role as a designated judge compels me to appoint Amici Curiae with a robust interventionist mandate and powers that give as much effect as possible to the Appellants’ right to know and meet the case against them. This role as a designated judge under the SATA has also led me to conclude that the Court and the Amici Curiae should be given access to the withdrawn material and the reasons for its withdrawal, and that an ex parte and in camera hearing on the merits is possible should, in the judge’s opinion, the circumstances require it.
[5] That being said, this decision does not answer the constitutional questions raised in the Appellants’ Notices of Appeal. Rather, the Court has considered the alleged violations of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] in the course of crafting a judicial process within my statutory and inherent powers to decide upon the reasonableness of the Minister’s decision and the constitutionality of the SATA scheme. Whether the judicial process I have fashioned according to circumstances and the limits of my powers is sufficient to ensure a fair judicial process is a question that this Court will hear later.
[6] As the reader will soon become aware, my analysis of these preliminary questions is rather lengthy. However, I believe an in-depth analysis of these preliminary questions is necessary given that these are the first two appeals under the SATA and that it has been several years since a thorough review of the role of the designated judge and the role of the amicus curiae in national security matters has been undertaken. Furthermore, these in-depth reasons ensure that all parties have a similar understanding of the pertinent legal landscape going forward in order to level the playing field.
II. FACTS
[7] The Appellants, Mr. Bhagat Singh Brar and Mr. Parvkar Singh Dulai, are both listed individuals pursuant to section 8 of the SATA. Accordingly, the Minister has deemed that reasonable grounds exist to suspect that each Appellant will 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 section 83.18, 83.19 or 83.2 of the Criminal Code, [RSC 1985, c C-46] 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.
[8] Both Appellants remain listed under the SATA following the Minister’s decisions to deny their respective applications for administrative recourse under section 15 of the SATA, which sought to remove their names from the list. Consequently, the Appellants have each brought a statutory appeal under section 16 of the SATA of the Minister’s decision to deny their respective applications for administrative recourse.
A. MR. BHAGAT SINGH BRAR (T-669-19)
[9] Mr. Brar appeals the Minister’s decision, dated December 21, 2018, to maintain his status as a listed person pursuant to section 15 of the SATA.
[10] On April 23, 2018, Mr. Brar’s name was included on the SATA list. The following day, he was denied boarding at the Vancouver International Airport. Mr. Brar was scheduled to take two flights that would have eventually transported him from Vancouver to Toronto.
[11] On June 2, 2018, Mr. Brar submitted an application for administrative recourse pursuant to section 15 of the SATA, which sought the removal of his name from the SATA list. Mr. Brar was provided with a two-page unclassified summary of the information before the Minister supporting the decision to place his name on the SATA list. Mr. Brar was further advised that the Minister would also consider further classified information when assessing his application under section 15 of the SATA. In addition, pursuant to subsection 15(4) of the SATA, Mr. Brar was provided with an opportunity to make written representations in response to the unclassified information disclosed to him.
[12] On December 21, 2018, the Minister advised Mr. Brar that his status as a listed person under the SATA would be maintained. Following a review of the classified and unclassified information provided, including Mr. Brar’s written submissions, the Minister “concluded that there [were] reasonable grounds to suspect that [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.”
[13] On April 18, 2019, Mr. Brar filed a Notice of Appeal to 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. In addition, Mr. Brar 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 are of no force and effect or to read in such procedural safeguards to the SATA that are sufficient to cure any constitutional deficiencies.
[14] More specifically, Mr. Brar argues the following as the grounds of his appeal: (1) the Minister’s decision was unreasonable; (2) section 8 and paragraph 9(1)(a) of the SATA infringe his rights pursuant to section 6 of the Charter in a manner that cannot be justified by section 1 of the Charter; (3) sections 15 and 16 of the SATA infringe his rights pursuant to section 7 of the Charter, notably his rights to liberty and security of the person; and (4) 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.
[15] In his Notice of Appeal, Mr. Brar requests that the Respondent disclose all related material to his application for recourse, all related material 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 materials relating to the Minister’s decision to confirm his status as a listed person under the SATA.
B. MR. PARVKAR SINGH DULAI (T-670-19)
[16] Similarly, Mr. Dulai appeals the Minister’s decision, dated January 30, 2019, to maintain his status as a listed person pursuant to section 15 of the SATA.
[17] Mr. Dulai’s name was included on the SATA list on March 29, 2018. Nearly two months later, Mr. Dulai was denied boarding on a flight from Vancouver to Toronto on May 17, 2018.
[18] On June 8, 2018, Mr. Dulai submitted an application for administrative recourse pursuant to section 15 of the SATA, which sought the removal of his name from the SATA list. Mr. Dulai was provided with a two-page unclassified summary of the information before the Minister supporting the decision to place his name on the SATA list and was advised that the Minister would also consider further classified information when assessing his application under section 15 of the SATA. In addition, pursuant to subsection 15(4), Mr. Dulai was provided with an opportunity to make written representations in response to the unclassified information disclosed.
[19] On January 30, 2019, the Minister advised Mr. Dulai that his status as a listed person under the SATA would also be maintained as “there [were] reasonable grounds to suspect that [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.”
[20] On April 18, 2019, Mr. Dulai submitted a Notice of Appeal to this Court pursuant to subsection 16(2) of the SATA. Similarly to Mr. Brar, 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 consequently of no force and effect or to read in such procedural safeguards to the SATA that are sufficient to cure any constitutional deficiencies.
[21] Mr. Dulai lays out similar grounds to Mr. Brar in support of his appeal. However, Mr. Dulai also argues that the Minister’s decision to designate him as a listed person, and thereafter maintain that designation upon administrative review, violated and disproportionately impacted his rights under subsections 2(a), 2(b) and 2(d) as well as section 15 of the Charter. Mr. Dulai also requests disclosure, similar to the ask made by Mr. Brar.
C. APPEALS BEFORE THIS COURT
(1) Redacted Information and Evidence
[22] Following the filing of the Notices of Appeal, this Court ordered the Respondent to serve and file a public Appeal Book for each appeal, the contents of which were agreed upon by the parties. These Appeal Books contained numerous redactions made by the Respondent in order to protect the confidentiality of information or evidence it believed would be injurious to national security or endanger the safety of any person if disclosed.
[23] Subsequently, this Court ordered on October 7, 2019, that the Respondent file with the Designated Registry of this Court an unredacted Appeal Book for each appeal, containing and clearly identifying the information that the Respondent asserts could be injurious to national security or endanger the safety of any person if disclosed. The Court also ordered that the Respondent file classified affidavits with the Designated Registry explaining the redactions as well as file and serve public affidavits explaining the nature of the redactions in a manner that does not injure national security or endanger the safety of any persons. During the process of preparing the unredacted classified Appeal Books and the affidavits, a number of the redactions were lifted by the Respondent, resulting in further disclosure to the Appellants.
[24] The Respondent also advised the Court and the parties that, pursuant to paragraph 16(6)(g) of the SATA, it was withdrawing certain classified information from the Appeal Book filed in response to Mr. Dulai’s statutory appeal. The Court accepted that the legislation provides for the withdrawal of information and issued an Order authorizing the withdrawal of the information and the replacement of the relevant pages in the classified unredacted Appeal Book. However, the Court also ordered that, as a superior court of record, it would keep three copies of the Appeal Book containing the withdrawn information under seal in a separate location at the Designated Registry, at least until the Court dealt with the issue of the retention of the withdrawn information.
(2) Amici Curiae
[25] In response to the inclusion of redacted information in the Appeal Books, the Court appointed two Amici Curiae in an Order dated October 7, 2019 [Order reproduced in Annex A].
[26] The Court originally ordered that the Amici Curiae would be given access to the confidential information as of December 9, 2019, following which they would not be permitted to engage in two-way communication with the Appellants and their counsel, except with leave from the Court. At the request of the Amici Curiae, this was extended to January 20, 2020, in order to allow for more effective and meaningful communication with the Appellants in light of the redactions lifted by the Respondent.
(3) Preliminary Legal Issues
[27] On January 16, 2020, an ex parte and in camera case management conference was held in order to discuss the next steps concerning the confidential information in this case. A public summary of the case management conference was provided to the Appellants shortly thereafter. During this case management conference, the Respondent and the Amici Curiae raised numerous legal issues regarding the withdrawn information, the role of the Amici Curiae in these appeals, the bifurcation of the appeals process between the “disclosure phase” and the “merits phase,” and the role of the designated judge. The Court proposed that the Amici Curiae and the Respondent meet to discuss the issues raised and correspond with the Court concerning the preliminary legal issues to be adjudicated before moving forward in the appeals.
[28] Notwithstanding the Respondent’s position that the Court should address, on a preliminary basis, the applicable standard of review in these appeals, which the Court found to be premature at this stage, a list of preliminary legal issues was agreed upon by the Appellants, the Respondent, and the Amici Curiae during a case management conference held on February 13, 2020. This list of preliminary questions was subsequently endorsed by the Court via its Order dated February 18, 2020 [List of Preliminary Questions, reproduced in Annex B]. On April 16, 2020, a public hearing via teleconference was held where the parties and the Amici Curiae made oral submissions on these legal questions.
III. PRELIMINARY LEGAL QUESTIONS
[29] With regard to the preliminary legal questions agreed upon by the parties and the Amici Curiae [Annex B], the Court will consider the following preliminary legal questions in these appeals:
Role of the Designated Judge:
What is the role of the designated judge in an appeal pursuant to the SATA?
Role of the Amici Curiae:
What is the role of the Amici Curiae in the ex parte proceedings?
Do the Amici Curiae have the power to cross-examine witnesses?
Withdrawal of Information:
Should the designated judge and the Amici Curiae be allowed to see the withdrawn information and be informed of the reasons for which the Minister withdrew the information?
Should the Federal Court, as a superior court of record, retain a copy of the withdrawn information?
What steps should be taken by the Designated Registry to ensure that the withdrawn information is no longer part of the Appeal Book and when should this information be returned to the Minister?
Ex Parte Hearing on the Merits:
Does the scheme under section 16 of the SATA allow for an ex parte hearing on the merits of the appeal?
What is the purpose of the ex parte hearing on the merits?
Is an ex parte hearing on the merits required in these appeals?
IV. ARGUMENTS
A. RESPONDENT’S REPRESENTATIONS
[30] The Respondent argues that: (1) the role of the designated judge in appeals under the SATA is akin to the role assumed in a conventional judicial review; (2) the role of the Amici Curiae is not analogous to that of a special advocate and does not allow for the cross-examination of witnesses on the merits of the decision under appeal unless new evidence is received by the Court; (3) the designated judge and the Amici Curiae may review the contents of the withdrawn information and be informed of the reasons for its withdrawal; and (4) an ex parte and in camera hearing on the merits is allowed under the SATA and is required in these appeals.
(1) Role of the Designated Judge
[31] The Respondent explains that the statutory appeal under section 16 of the SATA is divided into two phases: the disclosure phase and the merits phase. The Respondent notes that during the disclosure phase, the Court reviews the redactions made by the Respondent to determine whether the disclosure of that information would be injurious to national security or endanger the safety of any person. In this phase, the designated judge undertakes a robust “gatekeeper” role. In doing so, the Respondent states that the designated judge is responsible for ensuring the confidentiality of the information or other evidence provided by the Minister that would be injurious to national security or endanger the safety of any person if disclosed and is equally responsible for ensuring that an appellant is reasonably informed.
[32] During the merits phase, the Respondent notes that the Court determines whether the Minister’s decision is reasonable, and in doing so, assumes a role that is akin to a role adopted by a judge in a conventional judicial review. The Respondent argues that this role in the merits portion of appeals under the SATA is set out in subsection 16(4), which provides that the “judge must, without delay, determine whether the decision [of the Minister] is reasonable on the basis of the information available to the judge.” As such, the Respondent holds that this language, along with the general scheme of the SATA, suggests that the role of the Court is akin to its role in a conventional judicial review and therefore the designated judge must show judicial restraint and respect for the distinct role of administrative decision-makers. They state that the designated judge must not conduct a de novo analysis of the decision and must refrain from deciding the issues themselves, as this is not their assigned role.
(2) Role of the Amici Curiae
[33] The Respondent argues that: (i) the role of the Amici Curiae is to assist the Court without acting on behalf of any specific party and is not analogous to the role of a special advocate; and (ii) that, barring new evidence, this role does not include the ability to cross-examine witnesses on the merits of the appeal.
[34] The Respondent states that the Amici Curiae may participate in both the disclosure and merits portions of the appeals. However, citing this Court’s decision in Canada (Attorney General) v Telbani, 2014 FC 1050 at para 27 [Telbani], the Respondent argues that an amicus curiae’s role must be restrained to assisting a court without acting on behalf of any specific party. The Respondent notes that the SATA regime was enacted well after the creation of the special advocates regime under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and therefore Parliament would have specifically included such a regime in the SATA had it wanted to do so.
[35] In the circumstances, the Respondent notes that the Amici Curiae’s role may extend to examining affiants in order to assist the Court in forming its opinion as to whether the disclosure of the information would be injurious to national security or endanger the safety of any person. However, barring new evidence that was not before the Minister at the time of the decision, the Respondent states that the Amici Curiae should not be permitted to cross-examine witnesses on the merits of the Minister’s decision, as this would be contrary to Parliament’s intent in having enacted the SATA and would be inconsistent with the role assigned to the designated judge in the merits portion of appeals under the SATA.
(3) Withdrawal of Information
[36] The Respondent advances the position that: (i) the designated judge and the Amici Curiae can be provided with the withdrawn information and the reasons for which it was withdrawn; (ii) the Court, as a superior court of record, can retain a copy of the withdrawn information; and (iii) sufficient steps have already been taken to ensure that the withdrawn information is no longer part of the Appeal Book and has already been returned to the Minister.
(4) Ex Parte Hearing on the Merits
[37] The Respondent argues that: (i) paragraph 16(6)(f) of the SATA implicitly allows for an ex parte and in camera hearing on the merits of the appeal; (ii) the purpose of the ex parte and in camera hearing on the merits is to allow the Court to determine whether the Minister’s decision was reasonable in light of the confidential information; and (iii) an ex parte and in camera hearing is required in these appeals.
B. MR. BHAGAT SINGH BRAR’S REPRESENTATIONS
[38] Mr. Brar submits that: (1) the role of the designated judge is to ensure procedural fairness and as much transparency as possible while also ensuring that the record supports the reasonableness of the Minister’s finding; (2) the Amici Curiae’s role is to serve as a “substantial substitute” for the appellant during ex parte and in camera proceedings and must be empowered to cross-examine witnesses on the merits of the decision under appeal; and (3) an ex parte and in camera hearing on the merits is possible and likely required in this case. Notwithstanding these submissions, Mr. Brar still maintains that the SATA scheme violates the norms of procedural fairness and is unconstitutional.
(1) Role of the Designated Judge
[39] Mr. Brar argues that the role of the designated judge in a SATA appeal is that of a “gatekeeper” entrusted with ensuring both the reasonableness of the Minister’s decision and a fair and transparent process, given the unique circumstances. Citing Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 at para 46 [Harkat (2014)], Mr. Brar states that the SATA assigns to the designated judge a robust role much like the one assigned in the security certificate context under the IRPA and that the designated judge must therefore take on an “interventionist” role to ensure procedural fairness.
[40] Although Mr. Brar states that he does not disagree with the Respondent that the starting point of a reasonableness review is judicial restraint and respect for the distinct role of administrative decision-makers, he argues that the level of deference must be adjusted according to: (1) the ability of the designated judge to receive evidence that was not before the decision-maker; (2) the fact that previously withheld information may be disclosed to an appellant, placing them in a better position to make their case as compared to the administrative recourse stage before the original decision-maker; (3) the requirement that the designated judge’s decision be based on the information and evidence available as opposed to the information before the decision-maker, and (4) the designated judge’s power to order that an appellant’s name be removed from the list pursuant to subsection 16(5).
(2) Role of the Amici Curiae
[41] Mr. Brar states that the Supreme Court of Canada has made it clear in both Harkat (2014), at paras 43 and 47, and Charkaoui I, at para 63, that, in the context of ex parte and in camera proceedings, procedural fairness requires a “substantial substitute” for the full disclosure and full participation of the appellant. For Mr. Brar, a “substantial substitute” requires that a special advocate, or an amicus curiae, be assigned a role that permits them to “act as vigorously and effectively as the [appellant] would in a public proceeding,” citing Harkat (2014), at para 47.
[42] Moreover, Mr. Brar argues that the Amici Curiae must be given the power to cross-examine witnesses on the merits of the appeal, as this power is necessary to: (1) uphold his right to meaningfully respond to information relied upon by the Minister; (2) satisfy the need for the Court to obtain sufficient information to subject the facts relied upon by the Minister to independent judicial scrutiny; and (3) uphold the terms of the Order appointing the Amici Curiae.
(3) Ex Parte Hearing on the Merits
[43] Mr. Brar agrees with the Respondent that section 16 of the SATA allows for an ex parte hearing on the merits and also agrees that the purpose of an ex parte hearing on the merits would be to permit the Court to consider confidential information or other evidence not available to an appellant when assessing the reasonableness of the Minister’s decision. In addition, Mr. Brar states that an ex parte and in camera hearing on the merits would only be required in his appeal if the Minister still intends to rely on information that is not eventually disclosed to the Appellants to support the reasonableness of the Minister’s decision.
C. MR. PARVKAR SINGH DULAI’S REPRESENTATIONS
[44] Mr. Dulai argues that: (1) the role of the designated judge under the SATA is akin to that of a designated judge in security certificate cases under the IRPA; (2) the role of the Amici Curiae is to protect the interests of the named person and to make up, to the fullest extent as possible, for the named person’s exclusion from the ex parte and in camera proceedings; (3) the designated judge’s and the Amici Curiae’s access to the withdrawn information, and the reasons for its withdrawal, is essential to ensuring procedural fairness; and that (4) an ex parte and in camera hearing on the merits of the appeals is possible under the SATA and is likely necessary in this case.
(1) Role of the Designated Judge
[45] Mr. Dulai argues that the role of the designated judge in appeals under the SATA is akin to that of the designated judge in security certificate cases under the IRPA, and as such, the judge has the discretion and the flexibility to fashion a fair process according to the circumstances. Mr. Dulai submits that both the common law and the statutory provisions of the SATA support the conclusion that the designated judge’s role as a “gatekeeper” is robust.
[46] Mr. Dulai argues that the Respondent’s position concerning the role of the designated judge in appeals under the SATA is not in line with the Supreme Court of Canada’s jurisprudence on deference in the context of national security. Citing Charkaoui I, at paras 38–42, Mr. Dulai points to the fact that the Supreme Court of Canada noted that having to conduct a reasonableness review did not preclude the designated judge from having to undertake an “active role.” Moreover, Mr. Dulai notes that the reasoning in Harkat (2014) applies equally in the context of SATA appeals and therefore the designated judge must assume the role of a robust gatekeeper. In addition, given the similarities between the SATA appeal provisions and the security certificate regime under the IRPA, Mr. Dulai notes that it can be presumed that Parliament intended to assign the designated judge a gatekeeper role that is consistent with the one set out by the Supreme Court of Canada in Harkat (2014).
(2) Role of the Amici Curiae
[47] Mr. Dulai submits that the role of the Amici Curiae must go beyond the traditional role of a “friend of the court” and instead be one where they are empowered to vigorously protect the interests of the Appellants and to take on the functions of the Appellants’ counsel during the ex parte and in camera proceedings. This notably includes the ability to cross-examine witnesses on the merits during any ex parte and in camera portions of the appeals. Mr. Dulai submits that anything less would result in a clear violation of the Charter and the principles of procedural fairness.
[48] Mr. Dulai states that the Supreme Court of Canada has made it clear in Charkaoui I and Harkat (2014) that a “substantial substitute” for a person’s informed participation in closed proceedings must be provided when section 7 rights are engaged and that a legislative scheme’s failure to provide the opportunity for such renders it unconstitutional (Charkaoui I, at paras 70 and 86; Harkat (2014), at paras 47 and 56). Moreover, he states that the Supreme Court of Canada’s decision in Harkat (2014) makes it clear that, in order to provide a substantial substitute, a special advocate must be assigned a role that empowers them “to protect the interests of the named person and to make up so far as possible for the named person’s own exclusion from the process” citing Harkat (2014), at paras 35, 37, 47 and 67. As such, Mr. Dulai holds that the role of the Amici Curiae should reflect the Supreme Court of Canada’s statements in these decisions, as it would be reasonable to conclude that Parliament intended for the designated judge to exercise their discretion pursuant to their role as “gatekeepers” to appoint an amicus curiae with a mandate to ensure procedural fairness.
[49] Regarding cross-examination, Mr. Dulai argues that the Respondent’s position that the SATA does not provide for the possibility of a challenge to the relevance, reliability, or sufficiency of the information before the Minister would render the entire SATA scheme hollow. Mr. Dulai submits that the Respondent’s argument is inconsistent with the common law understanding of procedural fairness, which requires that the Appellants be given a meaningful opportunity to challenge the credibility, reliability, and sufficiency of the evidence relied upon to limit their fundamental rights and freedoms, citing Charkaoui I, at para 61. Seeing as the Supreme Court of Canada has recognized that cross-examination is “of essential importance” in assessing credibility and reliability (R v Osolin, [1993] 4 SCR 595 at page 663) and that the Appellants have not been provided an opportunity to challenge the confidential information at any point in the process under the SATA, Mr. Dulai argues that the Amici Curiae must be empowered to cross-examine witnesses during the merits phase of the appeal.
(3) Withdrawal of Information
[50] Mr. Dulai submits that: (i) the designated judge and the Amici Curiae should see the withdrawn information and be informed of the reasons for its withdrawal; (ii) the Court should retain a copy of the withdrawn information; and (iii) the Court need not take any further steps to secure the withdrawn information. Mr. Dulai argues that it would be contrary to procedural fairness to permit the Respondent to unilaterally withdraw information the Minister relied upon without disclosing the information and reasons for its withdrawal. Mr. Dulai also states that, to the extent that a summary of the reasons for the withdrawal can be provided to him, the Court should do so pursuant to paragraph 16(6)(c) of the SATA.
(4) Ex Parte Hearing on the Merits
[51] Mr. Dulai submits that an ex parte and in camera hearing on the merits is allowed throughout the appeal process in subsection 16(6) of the SATA, and that the purpose of such a hearing is to allow the judge to hear confidential information that cannot be disclosed to an appellant, as well as submissions on this information, in order to determine whether the Minister’s decision was reasonable. However, although Mr. Dulai admits that an ex parte and in camera hearing on the merits will likely be required in this case, he notes that it should not be necessarily assumed.
D. REPRESENTATIONS OF THE AMICI CURIAE
[52] The Amici Curiae submit that: (1) the role of the designated judge in appeals under the SATA is similar to the role described in Harkat (2014) and is not akin to the role of a judge in a conventional judicial review; (2) their role is to serve as a substantial substitute for the full disclosure and full participation of the Appellants in the ex parte and in camera portion of the appeals and that they must be empowered to cross-examine witnesses on the merits to fulfill this role; (3) there are no issues with them seeing the withdrawn information or being provided with the reasons for the withdrawal; and (4) the SATA allows for an ex parte and in camera hearing on the merits, although the Court should not pronounce itself on whether one is required at this preliminary stage.
(1) Role of the Designated Judge
[53] The Amici Curiae submit that the SATA scheme is fundamentally different from a judicial review as the judge may receive new evidence, including evidence and information not before the decision-maker, may base their decision on information available to them regardless of whether it was before the decision-maker, and may order the removal of an appellant from the SATA list rather than having to send the decision back for redetermination. The Amici Curiae therefore submit that the role of the designated judge in appeals under the SATA is similar to the role described in Harkat (2014), at para 46, being one that is “interventionist.”
(2) Role of the Amici Curiae
[54] The Amici Curiae argue that the constitutional norms of procedural fairness set out in Charkaoui I and Harkat (2014) are essential in understanding their role. The Amici Curiae state that the wording throughout subsection 16(6) of the SATA, notably paragraphs 16(6)(c) and 16(6)(d), clearly demonstrate a concern for procedural fairness and that Charkaoui I and Harkat (2014) clearly indicate that, for ex parte and in camera proceedings, a person must be provided with a “substantial substitute” to their right to know and answer the case against them. In Harkat (2014), this meant a special advocate scheme combined with an interventionist judge. The Amici Curiae argue that the SATA must be interpreted according to these decisions seeing as Parliament is presumed to have intended to enact legislation in conformity with the Charter, citing Lavallee, Rackel & Heintz v Canada (Attorney General); White, Ottenheimer & Baker v Canada (Attorney General); R v Fink, 2002 SCC 61 at paras 55–56.
[55] Accordingly, the Amici Curiae disagree with the restraints proposed by the Respondent on their roles as they are not required by the SATA, are inconsistent with Charkaoui I and Harkat (2014), and are contrary to the Order appointing them. Instead, the Amici Curiae hold that they are able to cross-examine witnesses in the disclosure phase for the purpose of the merits phase and that they are able to cross-examine witnesses concerning information that was before the decision-maker. They note that, should their mandate not include these powers, they will be unable to serve as a substantial substitute for the full disclosure and full participation of the Appellants in the ex parte and in camera portions of the appeals.
(3) Withdrawal of Information
[56] The Amici Curiae agree with the Respondent that they and the designated judge should be provided with the withdrawn information as well as the reasons for its withdrawal. They also submit that the Court can retain a copy of the withdrawn information as a superior court of record.
(4) Ex Parte Hearing on the Merits
[57] The Amici Curiae agree that the SATA allows for an ex parte and in camera hearing on the merits of the appeal pursuant to paragraph 16(6)(a). However, although the Amici Curiae recognize a designated judge’s authority to organize an appeal by creating distinct phases, they state that it ought not be regarded as a necessary feature of an appeal under the SATA as it is not always easy to make a distinction between disclosure issues and merit issues.
V. ANALYSIS
A. REVIEW AND ANALYSIS OF THE SATA
[58] In order to analyze the preliminary questions in this matter, it is first essential to undertake a review of the SATA, the legislative scheme at the heart of these questions. An understanding of its legislative object, its operation, and its appeal mechanism is the compass that will be necessary to navigate these uncharted water