Brar v. Canada (Public Safety and Emergency Preparedness)

Brar v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2021-10-05
Neutral citation
2021 FC 932
File numbers
T-669-19
Decision Content
Date: 20211005
Docket: T-669-19
Citation: 2021 FC 932
Ottawa, Ontario, October 5, 2021
PRESENT: The Honourable Mr. Justice Simon Noël
IN THE MATTER OF THE SECURE AIR TRAVEL ACT
BETWEEN:
BHAGAT SINGH BRAR
Appellant
and
CANADA (MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS)
Respondent
Table of contents
I. INTRODUCTION 2
II. BACKGROUND 5
A. Facts 5
B. Procedural history 8
III. LEGISLATION 18
A. A brief outline of the legislation 18
B. Legal test 19
IV. ISSUES 25
V. SUBMISSIONS 26
A. AGC’s submissions 26
B. Amici’s submissions 27
C. Appellants’ submissions 28
VI. APPEAL PROVISIONS IN THE SATA 28
A. Burden of proof of the Attorney General of Canada 28
B. Deference 31
C. Limits on the content of summaries 32
D. Duty to reasonably inform the appellant of the Minister’s case 34
E. Categories of information and evidence that can be redacted 39
(1) Information which would identify or tend to identify CSIS’s interest in individuals, groups or issues, including the existence or non-existence of past or present files or investigations, the intensity of investigations or the degree or lack of success in investigations 40
(2) Information which would identify or tend to identify methods of operation or investigative techniques used by CSIS and others 40
(3) Information which would identify or tend to identify relationships that CSIS maintains with foreign police, security and intelligence agencies and information exchanged in confidence with such agencies 41
(4) Information which would identify or tend to identify employees, internal procedures and administrative methodologies of the service, such as names and file numbers, and telecommunication systems used by the service 44
(5) Information which would identify or tend to identify persons that provided information to the service or the information provided by a person which, if disclosed, could lead to the identification of the person 44
VII. ANALYSIS 46
VIII. CONCLUSION 50
AMENDED PUBLIC ORDER AND REASONS
(PURSUANT TO RULE 397 (2) OF THE FEDERAL COURTS RULES)
I. INTRODUCTION
[1] This Order and Reasons is part of an appeal of an administrative decision dated December 21, 2018 made by Mr. Vincent Rigby, Associate Deputy Minister, as delegate [Delegate] for the Minister of Public Safety and Emergency Preparedness [Minister], to maintain Mr. Bhagat Singh Brar [Mr. Brar or Appellant] on the no-fly list pursuant to sections 15 and 16 of the Secure Air Travel Act, SC 2015, c 20, s 11 [SATA]. Another appeal, brought by Mr. Parvkar Singh Dulai [Mr. Dulai or, together with Mr. Brar, Appellants], raises the same issues and has its own set of Order and Reasons (see Parvkar Singh Dulai and Canada (Minister of Public Safety and Emergency Preparedness), T-670-19). These are the first appeals brought pursuant to the SATA.
[2] The SATA requires the designated judge to proceed “without delay” to determine if the decision of the Minister is reasonable (section 16(4)). I note that a lot of work has been done since the appeals were brought to this Court in 2019 (see section II.B below). However, the various restrictions imposed by the provincial authorities in light of the pandemic have slowed down the proceedings by, among other things, limiting access to the secure facilities, where proceedings dealing with information whose release could be injurious have to be held. I do think that in normal circumstances and with the experience of the present proceedings, future appeals will be able to move “without delay”.
[3] As part of this appeal, the Attorney General of Canada [AGC] filed an Appeal Book that contains numerous redactions made to protect information he believed would be injurious to national security or endanger the safety of any person if disclosed. The present public Order and Reasons deal with (1) the appropriateness and justification of these redactions and (2) the judicial task of providing the Appellants with a summary of the evidence and other information available to the designated judge so as to enable him 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 (section 16(6)(c) of the SATA).
[4] In accordance with the SATA, the Minister can request a closed hearing for national security reasons, meaning that the public and the Appellant and his counsel cannot be present while the government puts information or other evidence before the judge that could be injurious to national security or endanger the safety of any person (section 16(6)(a)). In order to ensure a fair judicial process for the Appellant during the ex parte, in camera proceedings, I have appointed two (2) amici curiae, Mr. Colin Baxter and Mr. Gib van Ert [Amici]. I invite the reader to consult the Reasons issued in the present file in Brar v Canada (Public Safety and Emergency Preparedness), 2020 FC 729 [Brar] and the Order dated July 17, 2020 which contains the mandate of the Amici.
[5] The ex parte, in camera hearings were held on October 5, 14, 15, 16, 19, 20, and 22, 2020 in the presence of counsel for the AGC and the Amici. Two (2) affiants were examined, cross-examined by the Amici and responded to questions from the bench during the seven (7) days. Most of that time was with the Canadian Security Intelligence Service [CSIS] affiant, the remaining time being with the Public Safety Canada [PSC] affiant. These hearings not only dealt with the appropriateness and justification of the redactions but also gave counsel for the AGC an opportunity to present the classified portions of the Minister’s case and allowed the Amici to test the case in a robust way. It must also be noted that additional information came out of these hearings and became the subject matter of a summary.
[6] As a result of these hearings, new information will be disclosed to the Appellants in the form of additional disclosed text (resulting from lifts and partial lifts by the AGC following discussions with the Amici and with the accord of the Court) and summaries of text that will be informative but not to the point of disclosing sensitive information.
[7] These reasons are written to be public and their purpose is to inform the Appellant, as much as possible, about the legal rationales underpinning the determinations made without disclosing any sensitive information. Although the Appellant will see the result of this stage of the appeal by receiving a new version of the Appeal Book that contains fewer redactions, the rationales will be contained in a confidential chart [Chart – Annex C] for national security reasons.
[8] The next stage of this appeal will be public hearings where the Appellants and the AGC have an opportunity to be heard. To that effect, both parties can file affidavits in support of their respective position and present and test the respective evidence of the other party pursuant to Rules 80 and 83 of the Federal Courts Rules, SOR/98-106. The next stage will also deal with any question(s) of law that this legislation raises. A public case management conference will be scheduled to discuss the next steps and establish timelines.
II. BACKGROUND
A. Facts
[9] On April 23, 2018, Mr. Brar’s name was included on the no-fly list, which is a list of individuals for whom the Minister or his delegate has determined there are reasonable grounds to suspect that the Appellant will (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, RSC, 1985 c. C-45 [Criminal Code] or an offence referred to in paragraph (c) of the definition “terrorism offence” in section 2 of that act. The following day, he was denied boarding on two occasions at the Vancouver International Airport by West Jet and Air Canada. Each time, a written Denial of Boarding under the Passenger Protect Program (the ‘PPP’) was issued pursuant to section 9(1)(a) of the SATA. Mr. Brar was scheduled to take two flights that would have eventually transported him from Vancouver to Toronto.
[10] On June 2, 2018, Mr. Brar submitted an application for administrative recourse to the Passenger Protect Inquiries Office (the “PPIO”) that sought the removal of his name from the SATA list pursuant to section 15 of the SATA. In response, the PPIO provided him with a two-page unclassified summary of the information supporting the decision to place his name on the SATA list. The PPIO further advised that the Minister would consider additional classified information when assessing his application under section 15 of the SATA. In addition, pursuant to section 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.
[11] 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 delegate of 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”.
[12] 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. In addition, Mr. Brar also asks this Court to declare that sections 8, 15, 16 and paragraph 9(1)(a) of the SATA are unconstitutional and therefore of no force and effect, or to read in such procedural safeguards that would cure any constitutional deficiencies in the SATA.
[13] 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 Canadian Charter of Rights and Freedoms, Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [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, in a manner that cannot be justified by section 1 of the Charter; 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. The constitutional matters being raised will be dealt with at a later time and will be one of the subject matters discussed at the next public case management conference. As mentioned earlier, the present Order and Reasons are a part of the appeal process and deal solely with the disclosure issues related to the redacted parts in the appeal book and additional information and evidence produced during the ex parte, in camera hearings.
[14] Finally, 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 delegate of the Minister 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
[15] On June 20, 2020, this Court issued detailed Reasons answering the preliminary legal questions in these appeals (see Brar, above). These Reasons addressed the role of the designated judge in appeals under the SATA, the role and powers of the Amici in these appeals, the procedure applicable to the withdrawal of information by the Minister under the SATA, and the possibility and purpose of ex parte, in camera hearings on the merits under the SATA. For more information on the facts up to the issuance of these Reasons, see paragraphs 22 to 28 in Brar.
[16] On July 15, 2020, a public case management conference was held to discuss the next steps in the appeals. On July 17, 2020, an Order was issued to replace the Order dated October 7, 2019 appointing the Amici to better reflect the Court’s Reasons dated June 30, 2020 and set out the next steps in the appeals.
[17] On September 10, 2020, the AGC filed a replacement ex parte affidavit for the CSIS affiant due to the unavailability of the previous affiant. Additionally, in light of the Reasons in Brar, the AGC filed a supplemental ex parte affidavit from the same affiant on September 25, 2020.
[18] On September 22, 2020, an ex parte, in camera case management conference was held to discuss the progress of the appeals. A public summary of the discussion that took place was communicated to the Appellants (Public Communication No. 5).
[19] On October 5, 2020, an ex parte, in camera hearing was held. Counsel for the AGC and the Amici presented to the Court their agreed upon lifts and summaries of redacted information in preparation for the upcoming ex parte, in camera hearing on the contested redactions. This Court approved the proposed lifts and summaries (see Annex A). On October 7, 2020, a public summary of the hearing was issued to the Appellants (Public Communication No. 6).
[20] The ex parte, in camera examination and cross-examination of the AGC’s witnesses in Mr. Brar’s appeal took place over six (6) days on October 14, 15, 16, 19, 20 and 22, 2020. The AGC presented evidence on the injury to national security of disclosing the contested redactions and summaries proposed by the Amici, as well as the reliability and credibility of the redacted information. The Amici questioned the justifications for the redactions and the summaries proposed by the AGC and questioned the affiants with documentary evidence. On November 3, 2020, a public summary of the hearings was communicated to the Appellant (Public Communication No. 7), which summarizes the hearings as follows:
October 14, 2020
Court began at 10:00 am on October 14, 2020. The Minister called a CSIS witness who filed two (2) classified affidavits in these proceedings, one (1) on September 10, 2020 and another on September 25, 2020. The first affidavit relates primarily to the injury to national security of disclosing the redacted information and the second affidavit relates primarily to the reliability and credibility of the redacted information.
The witness gave evidence on various points, including:
● aspects of CSIS’ operations that are relevant to the Secure Air Travel Act (SATA) and the Passenger Protect Program (PPP);
● CSIS policies and procedures relating to the PPP including policies and procedures in relation to preparing, reviewing and updating case briefs;
● the Khalistani extremism threat in Canada;
● the reasons for Mr. Brar’s nomination in exigent circumstances;
● subsequent occasions where Mr. Brar’s case brief was reviewed and/or revised, and Mr. Brar was relisted, including reasons for changes to Mr. Brar’s case brief;
● the harm to national security that would result if each contested redaction and summary was disclosed; and
● the reliability and credibility of the redacted information, including the origin of some of this information and how it was assessed by the Service.
October 15, 2020
Court resumed in the morning of October 15, 2020 at 9:30 a.m. and counsel for the AG completed its examination of the CSIS witness late in the morning. Immediately after the examination in chief, the Amici commenced their cross-examination of the CSIS witness, which continued for the remainder of the day. The cross-examination on this day included questions on a variety of topics, including CSIS’ policies, procedures and practices in respect of the PPP and the reliability and credibility of the redacted information.
During the cross-examination, counsel for the AG reminded the Court and the Amici that public counsel for the appellant would play an important role, and objected that the Amici’s role should not be to duplicate that of public counsel. The Court endorsed those comments, and so directed the Amici. The Amici filed a number of exhibits on various topics.
October 16, 2020
The Amici continued to cross-examine the CSIS witness for part of the morning on October 16, 2020 at 9:30 a.m., after which Court was adjourned until Monday.
October 19, 2020
Court resumed the morning of October 19, 2020 at 9:30 a.m., and the Amici continued their cross-examination of the CSIS witness for the remainder of the day. The cross-examination continued to address the reliability and credibility of the redacted information.
October 20, 2020
The cross-examination of the CSIS witness continued for the morning of October 20, 2020. Among other things, the questions focused on the injury to national security of releasing certain information or summaries. After lunch, counsel for the AG conducted its re-direct of the CSIS affiant, which was concluded mid-afternoon.
October 22, 2020
Court commenced at 9:30 am on October 22, 2020 and the Minister called a witness from Public Safety Canada. The Public Safety witness gave evidence on various points, including:
● the PPP, the Passenger Protect Advisory Group and the Passenger Protect Inquiries Office;
● the documents that were prepared in relation to Mr. Brar’s listing; and
● injury to national security that would result from releasing certain information.
The Amici completed its cross-examination of the Public Safety affiant mid-afternoon on that same day, which focused on the PPP, the Passenger Protect Advisory Group, the Passenger Protect Inquiries Office and the documents relating to Mr. Brar’s listing.
[21] The ex parte, in camera examination and cross-examination of the Minister’s witnesses in Mr. Dulai’s matter was held on November 16, 17 and 23, 2020. At the outset of the hearing, the AGC and the Amici consented to an Order that would render the evidentiary record resulting from the Brar hearings on October 14, 15, 16, 19, 20 and 22, 2020 and the evidentiary record resulting from the Dulai hearings evidence in both appeals, subject to any arguments in relation to the weight, relevancy and admissibility of the evidence. This allowed for efficiencies in the Dulai examinations and cross-examinations. On December 2, 2020, a public summary of the hearings was communicated to Mr. Dulai (Public Communication No. 8), which summarizes the hearings as follows:
November 16, 2020
Court began at 9:45 a.m. on November 16, 2020. The AG commenced by filing four (4) charts, namely (i) a classified chart listing all of the contested redactions and contested summaries, (ii) a classified chart itemizing the proposed uncontested redactions, uncontested summaries and lifts agreed to by the AG, (iii) a classified chart containing only the CSIS contested redactions and summaries organized in a way to guide the examination of the CSIS witness; and (iv) a classified chart listing excerpts from the transcript of the Brar hearings that apply to the present hearings.
The Minister called the same CSIS witness that it called in the Brar appeal. This witness filed two (2) classified affidavits in these proceedings, one (1) on September 10, 2020 and another on September 25, 2020. The first affidavit relates primarily to the injury to national security of disclosing the redacted information and the second affidavit relates primarily to the reliability and credibility of the redacted information.
Because of the Evidentiary Order, the examination and cross-examination of the CSIS witness in the present appeal was shorter than it was in Brar. That said, the witness gave evidence on various points including:
● the threat posed by Khalistani extremism;
● the reasons for Mr. Dulai’s nomination in exigent circumstances;
● subsequent occasions where Mr. Dulai’s case brief was reviewed and/or revised, and Mr. Dulai was relisted, including reasons for changes to Mr. Dulai’s case brief;
● the harm to national security that would result if each contested redaction and summary was disclosed; and
● the reliability and credibility of the redacted information, including the origin of some of this information and how it was assessed by the Service.
The AG completed its examination of the CSIS witness mid-day, after which the Amici commenced their cross-examination of the CSIS witness for the remainder of the day. The cross-examination on this day focused on the reliability and credibility of the redacted information, while also exploring the process by which Mr. Dulai was nominated for and has been maintained on the SATA list.
November 17, 2020
Court resumed in the morning of November 17, 2020 at 9:30 am. The Amici continued to cross-examine the CSIS witness, and questions focused on the reliability and credibility of the redacted information and the injury to national security of releasing certain information or summaries. The Amici filed a number of exhibits on various topics. The cross-examination was complete near the end of the day, after which the AG conducted a brief re-direct of the CSIS witness.
November 23, 2020
Court resumed at 10:00 a.m. on November 23, 2020. The Minister called a witness from Public Safety Canada. This witness also testified in the Brar appeal. Because of the Evidentiary Order, the examination and cross-examination of the Public Safety witness in the present appeal was shorter than it was in Brar.
The AG conducted its direct examination for the first half of the morning, which focused primarily on the documents that were prepared in relation to Mr. Dulai’s listing. The Amici completed its cross-examination of the Public Safety affiant by the lunch break, which focused on the documents relating to Mr. Dulai’s listing and the process by which individuals are placed on the SATA list.
[22] On December 16, 2020, a public case management conference was held with all counsel to update the Appellants on the next steps in the appeals. In addition, Counsel for the AGC filed an ex parte motion record to strike certain evidence resulting from the ex parte, in camera hearings from the record.
[23] Following the ex parte, in camera hearings, the AGC and the Amici filed confidential submissions concerning the redactions on January 8, 2021.
[24] On January 14, 2021, the Court issued Public Communication No. 9 to advise the Appellants about the progress of the appeals in light of the COVID-19 situation and, more specifically, the recent orders enacted by the provinces of Québec and Ontario. The AGC and the Amici then informed the Court that they were of the view that in-person hearings in these matters should be postponed until the stay-at–home-order was lifted.
[25] On February 4, 2021, an ex parte case management conference was held in the presence of the AGC and the Amici to discuss the status of the appeals. I also raised a question of law, namely whether the principles set out by the Supreme Court of Canada in Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 [Harkat], in relation to the requirement to provide the appellant summaries or information that would permit him or her to know the Minister’s case, apply to the SATA appeal scheme. I requested comments and further submissions from the AGC and the Amici. On February 5, 2021, a public summary of the discussion was communicated to the Appellant (Public Communication No. 10). On February 9, 2021, counsel for the Appellants requested permission to provide the Court with submissions respecting this question of law. The Court granted leave. Counsel for the Appellants, the AGC and the Amici filed their written representations on February 19, 2021. The AGC filed their reply on February 24, 2021.
[26] On February 24, 2021, the Amici filed ex parte written representations concerning the AGC’s motion to strike certain evidence from the record.
[27] On March 3, 2021, an ex parte case management conference was held in the presence of the AGC and the Amici to discuss the possible adjournment of the ex parte, in camera hearing scheduled on March 4, 2021. A public communication was then communicated to all parties to explain that the Court proposed, and the AGC and the Amici agreed, to adjourn the hearing scheduled for the next day for COVID-19 related reasons and schedule an ex parte, in camera case management conference on March 9, 2021 to discuss the specific legal issues for which the Court was seeking to receive submissions.
[28] An ex parte, in camera hearing was held on June 16 and June 17, 2021. The purpose of the hearing was for counsel for the AGC and the Amici to make submissions on disclosure, the reasonably informed threshold, and the AGC’s motion to strike. The following is a public summary of the hearing. On July 21, 2021, a public summary of the hearing was communicated to the Appellants (Public Communication No. 11), which summarizes the hearing as follows:
June 16, 2021
Court commenced at 9:30 am on June 16, 2021 and submissions were made by counsel for the AG and the Amici on disclosure and the requirement to reasonably inform the appellants.
AG Submissions on Disclosure and Reasonably Informed
The AG filed the following documents at the commencement of the proceedings:
● an updated chart for each file containing the contested claims and summaries;
● an updated chart for each file containing the summaries and redactions agreed to by the AG and the Amici;
● an updated chart for each file containing the lifts made by the AG;
● a chart for each file listing all of the allegations against the appellants that have been disclosed, partially disclosed or summarized, and withheld; and
● a copy of the Recourse Decision in each file reflecting the agreed-upon summaries and redactions and the lifts made by the AG.
The AG made submissions on the applicable test for disclosure in appeals under section 16 of the Secure Air Travel Act (SATA). The AG argued that if disclosure of information would result in injury to national security or endanger the safety of any person, it should not be disclosed. Additionally, it argued that SATA does not authorize the Court to balance different interests that could be at play when assessing disclosure, including whether or not the appellant is reasonably informed. The AG then went through the chart containing the contested claims and summaries to highlight why lifting or summarizing these claims would result in injury to national security.
The AG then made submissions on the reasonably informed threshold and argued that at this point in time, the appellants are reasonably informed. The AG highlighted that the scheme allows for some information to not be disclosed or summarized, and that the assessment of whether or not the appellants are reasonably informed is fact specific and should be made throughout the appeals. The AG stressed that the threshold under section 8(1) of SATA, namely “reasonable grounds to suspect”, must inform the Court’s consideration of whether or not the appellants are reasonably informed.
Amici’s Submissions on Disclosure and Irreconcilable Tension
The Amici made submissions on two issues.
First, the Amici argued that the decision of the Supreme Court of Canada in Harkat 2014 SCC 37 requires, in circumstances where redacted information or evidence cannot be lifted or summarized without national security injury, but also comes within the incompressible minimum amount of disclosure that the appellant must receive in order to know and meet the case against him, that the Minister withdraw the information or evidence whose non-disclosure prevents the appellant from being reasonably informed: Harkat para 59. The Amici argued that this situation, described in Harkat as an irreconcilable tension, arises in both the Brar appeal and the Dulai appeal. The Amici further argued that given the Minister’s disagreement with the Amici that irreconcilable tensions arise in these appeals, he will not withdraw evidence of his own motion. The Court must therefore decide whether or not the appeals involve irreconcilable tensions.
To that end, the Amici proposed a form of order the Court should make if it agrees with the Amici that either or both of the appeals involve situations of irreconcilable tension. The order would identify the specific information or evidence that gives rise to the irreconcilable tension and declare that the Minister must withdraw that information or evidence within a fixed period (the Amici proposed 60 days), failing which the Court will be unable to determine the reasonableness of the appellant’s listing and must allow the appeal.
Second, the Amici reviewed the contested claims and summaries in each appeal. In some instances, the Amici argued that the AG’s redactions were not necessary (because the information or evidence was not injurious). In other cases, the Amici agreed that disclosure would be injurious but proposed a summary that would avert the injury while allowing the appellant to be reasonably informed of the case he must meet. In other cases still, the Amici argued that the information or evidence could not be lifted or summarized without injury, but had to be disclosed for the appellant to be reasonably informed. In these latter cases, the Amici asked the court to make the declaration of irreconcilable tension described above.
The Amici emphasized that the applicable standard is that of a “serious risk of injury”, and that the judge must ensure throughout the proceeding that the Minister does not cast too wide a net with his claims of confidentiality.
Other Issues
The parties discussed other procedural issues, including the format and timing for filing a revised appeal book following the Court’s decision on disclosure, a timeline for appealing this decision and staying the order if an appeal is filed, and potential redactions to the list of exhibits.
June 17, 2021
The hearing resumed at 9:30 am on June 17, 2021, and the Court heard arguments from both counsel for the AG and the Amici on the AG’s motion to strike. The AG withdrew its motion to strike following the mid-day break.
In the afternoon, the Court discussed with the Amici and counsel for the AG the possibility of preparing a further summary of the evidence in the ex parte, in camera hearings, to expand on the summaries provided in Public Communication No 7 (T-669-19) and Public Communication No 8 (T-670-19) in a way that would not be injurious to national security. Counsel for the AG and the Amici agreed to prepare a draft summary in this regard.
The Court asked that this summary include confirmation that there is no information or evidence against either appellant in relation to 8(1)(a) of SATA, and that both listings concern information and evidence in respect of 8(1)(b).
[29] The issues of the redacted list of exhibits and disclosing additional information through summaries was a constant endeavour after the June hearing. The appellants were informed of this through communication No. 12. Concerning the list of exhibits, it was later agreed that it would be released in a redacted format once the counsel for the AGC and the Amici had reviewed the determinations made on the redactions at issue as a result of the ex parte, in camera hearings. As for the summary of additional information, both set of counsel undertook to submit it to the court no later than August 31, 2021. As soon as it was submitted and reviewed and then agreed by the undersigned, it was released as communication No.13 on August 31, 2021 after an ex parte, in camera hearing on that same day. From then on, all outstanding matters were taken under reserve with the objective of issuing order and reasons as soon as possible.
III. LEGISLATION
A. A brief outline of the legislation
[30] As part of the Reasons in Brar, it was essential to review and analyze the SATA (see Brar at para 58 to 89, in particular the appeal provisions at para 80 to 89). It is not necessary to duplicate what has already been written except to note that the SATA sets out rules governing the appeal process.
[31] In summary, section 16 of the SATA establishes the role of the designated judge in an appeal and sets out how redacted information must be handled. The designated judge is given the responsibility of ensuring the confidentiality of sensitive information (subsection 16(6)(b)). At the same time, if the redactions are justified on national security grounds, the designated judge must provide the appellant with summaries of the redacted information that will reasonably inform them 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 (section 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 it was said in Brar 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.
B. Legal test
[32] In Jama v Attorney General of Canada, 2019 FC 533 [Jama], Justice LeBlanc, now a judge of the Federal Court of Appeal, dealt with the judicial review of a decision of a delegate of the Minister not to issue a passport pursuant to section 10.1 of the Canadian Passport Order, SI-81-86 [CPO]. The proceeding was governed by the Prevention of Terrorist Travel Act, SC 2015, c 36, s 42 [PTTA], and the Order dealt more specifically with subsection 6(2) of the PTTA, which sets out in general a similar framework to section 16(6) of the SATA subject to some differences that will be discussed below. Given that these are the first appeals under the SATA, this Court’s interpretation of a similar scheme is helpful in interpreting the SATA appeal scheme.
[33] Subsection 6(2) of the PTTA reads as follows:
Prevention of Terrorist Travel Act, SC 2015, c 36, s 42
Loi sur la prévention des voyages de terroristes, LC 2015, ch 36, art. 42
Judicial Review
Révision judiciaire
Rules
Règles
6(2) The following rules apply for the purposes of this section:
6(2) Les règles ci-après s’appliquent au présent article :
(a) at any time during the proceeding, the judge must, on the Minister’s request, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information 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 pour entendre les observations portant sur tout élément de preuve ou tout autre renseignement, à huis clos et en l’absence du demandeur et de son conseil, dans le cas où la divulgation de ces éléments de preuve ou de ces renseignements pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(b) the judge must ensure the confidentiality of the evidence and other information 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) le juge est tenu de garantir la confidentialité des éléments de preuve et de tout renseignement que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(c) the judge must ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the reasons for the Minister’s decision 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) le juge veille à ce que soit fourni au demandeur un résumé de la preuve et de tout autre renseignement dont il dispose et qui permet au demandeur d’être suffisamment informé des motifs de la décision du ministre et qui ne comporte aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(d) the judge must provide the applicant and the Minister with an opportunity to be heard;
d) le juge donne au demandeur et au ministre la possibilité d’être entendus;
(e) the judge may base his or her decision on evidence or other information available to him or her even if a summary of that evidence or other information has not been provided to the applicant;
e) le juge peut fonder sa décision sur des éléments de preuve ou tout autre renseignement dont il dispose, même si un résumé de ces derniers n’est pas fourni au demandeur;
(f) if the judge determines that evidence or other information provided by the Minister is not relevant or if the Minister withdraws the evidence or other information, the judge must not base his or her decision on that evidence or other information and must return it to the Minister; and
f) si je juge décide que les éléments de preuve ou tout autre renseignement que lui a fournis le ministre ne sont pas pertinents ou si le ministre les retire, il ne peut fonder sa décision sur ces éléments ou renseignements et il est tenu de les remettre au ministre;
(g) the judge must ensure the confidentiality of all evidence and other information that the Minister withdraws.
g) le juge est tenu de garantir la confidentialité des éléments de preuve et de tout autre renseignement que le ministre retire de l’instance.
[34] 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, ch. 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 divulgat