Date: 20220810  
Dockets: T-669-19  
T-670-19  
Citation: 2022 FC 1168  
Ottawa, Ontario, August 10, 2022  
PRESENT: The Honourable Mr. Justice Simon Noël  
Docket: T-669-19  
IN THE MATTER OF THE SECURE AIR TRAVEL ACT  
BETWEEN:  
BHAGAT SINGH BRAR  
and  
Appellant  
CANADA (MINISTER OF PUBLIC SAFETY  
AND EMERGENCY PREPAREDNESS)  
Respondent  
Docket: T-670-19  
AND BETWEEN:  
PARVKAR SINGH DULAI  
and  
Appellant  
CANADA (MINISTER OF PUBLIC SAFETY  
AND EMERGENCY PREPAREDNESS)  
Respondent  
JUDGMENT AND REASONS  
Page: 2  
Table of contents  
I.  
II.  
III.  
Overview............................................................................................................................. 4  
National security ................................................................................................................. 8  
Summary of the facts ........................................................................................................ 11  
A. Facts in Mr. Brar’s Appeal .......................................................................................... 11  
B. Facts in Mr. Dulai’s Appeal......................................................................................... 13  
C. Procedural history covering both Appeals (Mr. Brar and Mr. Dulai)......................... 15  
Review and analysis of the SATA .................................................................................... 16  
A. General ......................................................................................................................... 16  
B. Operation of the SATA ................................................................................................ 22  
C. Appeal provisions of the SATA................................................................................... 27  
Constitutional questions - Section 6 of the Charter: Mobility rights ............................... 32  
A. Summary of the submissions of the Appellants and Respondent ................................ 32  
(1) Submissions of Mr. Brar ....................................................................................... 32  
(2) Submissions of Mr. Dulai...................................................................................... 32  
(3) Submissions of the Respondent............................................................................. 34  
The Oakes or the Doré approach ...................................................................................... 36  
IV.  
V.  
VI.  
VII. Analysis: Section 6 of the Charter.................................................................................... 37  
A. Legislation.................................................................................................................... 37  
(1) Section 6 of the Charter........................................................................................ 37  
(2) Sections 8 and 9(1)(a) of the SATA...................................................................... 38  
B. The intricacies of the current appeals........................................................................... 41  
C. The meaning of mobility.............................................................................................. 41  
(1) Interpreting the Charter ........................................................................................ 44  
(a) Purposive analysis and jurisprudential guidance on mobility rights ........... 45  
(b) Section 6 mobility rights are not subject to the notwithstanding clause...... 46  
(c) The interpretative language ......................................................................... 47  
(d) Analysis: Subsection 6(1) International mobility rights........................... 50  
(e) Analysis: Subsections 6(2), 6(3), and 6(4) National mobility rights for the  
purpose of taking up residence in any province and to pursue the gaining of  
a livelihood in any province......................................................................... 51  
(2) Analysis: Section 1 of the Charter........................................................................ 55  
(a) General......................................................................................................... 55  
(i) Is the infringement prescribed by law?................................................. 59  
(ii) Is the objective pressing and substantial?............................................. 59  
(iii) Is there proportionality between the legislative objective and the means  
to achieve it?......................................................................................... 61  
(b) Is the law or state action rationally connected to its purpose?..................... 61  
(c) Does the law or state action minimally impair the infringed right? ............ 63  
(3) Do the positive effects of the law or state action outweigh the negative effects of  
the legislation or state action? ............................................................................... 65  
D. Conclusion on section 6 of the Charter ........................................................................ 66  
VIII. Constitutional questions Section 7 of the Charter Life, Liberty and Security of the  
Person................................................................................................................................ 66  
A. Summary of the submissions of the Appellants and Respondent ................................ 66  
Page: 3  
(1) Submissions of Mr. Brar ....................................................................................... 67  
(2) Submissions of Mr. Dulai...................................................................................... 71  
(3) Submissions of the Respondent............................................................................. 75  
Analysis: Section 7 of the Charter.................................................................................... 80  
A. Legislation.................................................................................................................... 80  
(1) Section 7 of the Charter........................................................................................ 80  
(2) Sections 15 and 16 of the SATA........................................................................... 81  
B. Jurisprudential teachings on section 7 analysis involving national security issues ..... 85  
C. The necessity to abide by the principles of fundamental justice.................................. 87  
(1) Is section 7 of the Charter engaged?..................................................................... 90  
(2) The role of the designated judge ........................................................................... 92  
(3) The role and mandate of the Amici........................................................................ 97  
(4) The right to a hearing ............................................................................................ 98  
(5) The impartial and independent judge.................................................................. 100  
(6) Disclosure............................................................................................................ 103  
(7) The decision has to be made on the facts and law .............................................. 106  
D. Conclusion on section 7 analysis................................................................................ 106  
Overall conclusions on sections 6 and 7 of the Charter ................................................. 107  
A few last words.............................................................................................................. 111  
IX.  
X.  
XI.  
JUDGMENT in T-669-19 and T-670-19 ................................................................................. 113  
Annex A...................................................................................................................................... 115  
Page: 4  
I.  
Overview  
[1]  
These appeals are composed of a multi-pronged case in which the Appellants’ claims that  
pertain to questions relating to sections 6 and 7 of the Canadian Charter of Rights and  
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),  
1982, c 11 [Charter] and their claims relating to the reasonableness of a Minister’s decision are  
being addressed in separate decisions. More specifically, two decisions Brar v Canada  
(Minister of Public Safety and Emergency Preparedness) 2022 FC 1163 [Brar 2022] and Dulai v  
Canada (Minister of Public Safety and Emergency Preparedness) 2022 FC 1164 [Dulai 2022] –  
deal with the reasonableness of the Minister’s decision and are being issued concurrently [the  
Reasonableness Decisions]. The Reasonableness Decisions include a confidential set of reasons.  
The present Judgment and Reasons [the Decision] address constitutional issues raised in both  
appeals.  
[2]  
These are the first appeals filed pursuant to the Secure Air Travel Act, SC 2015, c 20, s 11  
[SATA] since its enactment in 2015. The parties to these appeal proceedings have contested  
parts of the legislation which therefore requires that the Court examine and provide clarity and  
guidance where deemed necessary.  
[3]  
The Decision considers whether sections 8 and 9(1)(a) of the SATA infringe the  
Appellants’ mobility rights protected by section 6 of the Charter, and whether sections 15 and 16  
of the SATA violate the Appellants’ rights under section 7 of the Charter, specifically their  
rights to liberty and security of the person, on the basis that the impugned provisions of the  
 
Page: 5  
SATA permit the Minister, and the Court, to determine the reasonableness of 1) the Appellants’  
designation as listed persons under the SATA, and 2) the Minister’s decision to list the  
Appellants, based on information that is not disclosed to them and to which they have no  
opportunity to respond.  
[4]  
The Appellants remain listed individuals pursuant to section 8 of the SATA given the  
Minister’s decision to deny their applications for administrative recourse under section 15 of the  
SATA, which sought to have their names removed from the “no-fly” list. The Minister made the  
decision after determining that he had reasonable grounds to suspect that the Appellants would  
either “engage or attempt to engage in an act that would threaten transportation security” or  
“travel by air for the purpose of committing an act or omissionthat:  
(i)  
is an offence under sections 83.18, 83.19 or 83.2 of the Criminal Code, RSC 1985, c C  
46 [Criminal Code] or an offence referred to in paragraph (c) of the definition  
“terrorism offence” in section 2 of that Act, or  
(ii) if it were committed in Canada, would constitute an offence referred to in  
subparagraph (i) (see paragraphs 8(1)(a) and 8(1)(b) of the SATA).  
Although I conclude in the Reasonableness Decisions that the Minister’s determinations  
pursuant to paragraph 8(1)(a) of the SATA are unreasonable given the lack of supporting  
evidence, the Appellants’ listing on the no-fly list of the SATA is nevertheless reasonable  
pursuant to paragraph 8(1)(b) of the SATA (see Brar 2022 and Dulai 2022).  
Page: 6  
[5]  
The tension between individual rights and collective interests in security was discussed at  
length in two related prior decisions published in October 2021 (Brar v Canada (Minister of  
Public Safety and Emergency Preparedness) 2021 FC 932 [Brar 2021] and Dulai v Canada  
(Public Safety and Emergency Preparedness) 2021 FC 933 [Dulai 2021]).  
[6]  
In those decisions, I considered whether disclosing the redacted information and other  
evidence adduced during ex parte and in camera hearings would be injurious to national security  
or endanger the safety of any person. Upon finding in the affirmative with respect to certain  
information, I then asked if the protected information and other evidence could be disclosed to  
the Appellants in the form of a summary or otherwise in a way that would not jeopardize  
national security or endanger the safety of any person. The outcome of those decisions was that  
some redactions were confirmed by the Court, some were fully or partially lifted, and the  
information underneath other redactions was summarized. The delicate balance between  
protecting sensitive information and the right of the person to know the case against them is not  
uncommon in national security matters, as demonstrated by Charkaoui v Canada (Citizenship  
and Immigration), 2007 SCC 9 [Charkaoui I]:  
[55] Confidentiality is a constant preoccupation of the certificate  
scheme. The judge shall ensurethe 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 hearinformation 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  
providethe 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  
Page: 7  
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 states interest in effectively conducting  
national security and criminal intelligence investigations and in  
protecting police sources(p. 744). In Suresh, this Court held that  
a refugee facing the possibility of deportation to torture was  
entitled to disclosure of all the information on which the Minister  
was basing his or her decision, [s]ubject to privilege or similar  
valid reasons for reduced disclosure, such as safeguarding  
confidential public security documents(para. 122). And, in Ruby  
v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75  
(S.C.C.), the Court upheld the section of the Privacy Act, R.S.C.  
1985, c. P-21, that mandates in camera and ex parte proceedings  
where the government claims an exemption from disclosure on  
grounds of national security or maintenance of foreign  
confidences. The Court made clear that these societal concerns  
formed part of the relevant context for determining the scope of the  
applicable principles of fundamental justice (paras. 38-44).  
The principles described above for Immigration and Refugee Protection Act, SC 2001, c 27  
[IRPA] certificate’s proceedings are applicable to the SATA (see Brar v Canada (Public Safety  
and Emergency Preparedness), 2020 FC 729 [Brar 2020] at paras 92, 95, 100, 105, etc.).  
Page: 8  
For the following reasons, the appeal as it relates to the breaches of the Appellants’  
constitutional rights is dismissed.  
[7]  
II.  
National security  
[8]  
The role of the Canadian Government to ensure security in air transportation is essential.  
As part of Canada’s societal commitment, it is a top priority to guarantee that all Canadians live  
in a safe environment. In addition to its domestic responsibility to maintain community safety,  
the Canadian Government also has international responsibilities towards partner countries.  
[9]  
Lesley Soper, a witness in these appeals, included in her affidavit a comment made on  
February 19, 2015, by the Parliamentary Secretary to the Minister of Citizenship and  
Immigration when speaking about Bill C-51 (that would later become the SATA) in the House of  
Commons:  
One of the gravest threats to global security is the phenomenon of  
terrorist travel: individuals who travel by air to regions of unrest  
and violence to engage in terrorist activities. These individuals do  
not pose an immediate threat to an airplane. Indeed, they want their  
flight to be safe and uneventful so that they can reach their  
destinations. While these violent extremists are not an immediate  
threat to an airplane or to passengers when they travel, they do  
pose a significant danger to those people living in the countries  
where they undergo their training and terrorist activities and in the  
countries in which they want to perpetrate their crimes. Moreover,  
there is a great risk that they will return to their home country to  
test out their newly acquired skills by plotting and carrying out  
attacks on innocent civilians. (Lesley Soper’s supplementary  
affidavit, February 25, 2022 at para 18)  
 
Page: 9  
[10] The threat posed by individuals suspected of travelling abroad to engage in extremist  
activity (extremist travellers) is significant and presents difficult challenges to both Canada and  
its allies. According to Public Safety Canada’s 2016 Public Report on the Terrorist Threat to  
Canada,  
[t]he principal terrorist threat to Canada remains that posed by  
violent extremists who could be inspired to carry out an attack in  
Canada. Violent extremist ideologies espoused by terrorist groups  
like Daesh and al-Qaida continue to appeal to certain individuals in  
Canada. As in recent years, the Government of Canada has  
continued to monitor and respond to the threat of extremist  
travelers, that is, individuals who are suspected of travelling  
abroad to engage in terrorism-related activity. The phenomenon of  
extremist travellers - including those abroad, those who return, and  
even those prevented from travelling - poses a range of security  
concerns for Canada. As of the end of 2015, the Government was  
aware of approximately 180 individuals with a nexus to Canada  
who were abroad and who were suspected of engaging in  
terrorism-related activities. The Government was also aware of a  
further 60 extremist travelers who had returned to Canada. (Lesley  
Sopers supplementary affidavit, February 25, 2022 at para 26)  
[11] The Government relies on different tools to manage and mitigate this threat at home. For  
example, terrorism peace bonds entail courts imposing conditions on extremist travellers. The  
Government can also cancel, refuse or revoke passports when required. Since its adoption,  
Canada relies on the SATA to prevent travel to commit terrorism offences and threats to  
transportation security.  
[12] Canadas security commitments extend well beyond its borders. It is common knowledge  
that Canada is a signatory to a number of international treaties and agreements, which enables  
strong collaboration with international partners like the Five Eyes, the G7, the European Union,  
Interpol, and the United Nations. These alliances improve the sharing of information and best  
Page: 10  
practices, but also call upon member states to do their part to ensure global security. In Canada,  
this responsibility has led to the adoption of a legislative framework that governs the provision of  
this security. In Charkaoui I, former Chief Justice McLachlin highlighted the inherent challenge  
in developing such a legislative framework:  
[1] One of the most fundamental responsibilities of a government  
is to ensure the security of its citizens. This may require it to act on  
information that it cannot disclose and to detain people who  
threaten national security. Yet in a constitutional democracy,  
governments must act accountably and in conformity with the  
Constitution and the rights and liberties it guarantees. These two  
propositions describe a tension that lies at the heart of modern  
democratic governance. It is a tension that must be resolved in a  
way that respects the imperatives both of security and of  
accountable constitutional governance.  
[13] Indeed, a democratic government faces a perpetual challenge when establishing systems  
to ensure collective security because necessary measures to fulfil this goal must accord with the  
Constitution and the rights and liberties it guarantees. As part of this effort, the Government must  
safeguard national security information and intelligence when developing security systems such  
as the SATA. In this regard, the SATA is not the only legislation that seeks to safeguard  
sensitive information. For example, the Canada Evidence Act, RSC, 1985, c C-5 at section 38,  
the IRPA at section 83, the Access to Information Act, RSC, 1985, c A-1 at section 16, the  
Privacy Act, RSC, 1985, c P-21 at sections 69 and 70, and the Personal Information Protection  
and Electronic Documents Act, SC 2000, c 5 at subparagraphs 7(3)(c.1)(i) and (c.2)(ii) are some  
of the statutes that have similar legislative provisions to protect sensitive information.  
Page: 11  
[14] Case law consistently holds that national security information and intelligence ought to  
be protected and can only be disclosed in summaries that do not reveal any information injurious  
to national security or that could endanger the safety of any person.  
III.  
A.  
Summary of the facts  
Facts in Mr. Brars Appeal  
[15] On April 23, 2018, Mr. Brars name was included on the no-fly list. Pursuant to the  
SATA, the Minister concluded that there were reasonable grounds to suspect that he would (1)  
engage or attempt to engage in an act that would threaten transportation security, and/or (2)  
travel by air for the purpose of committing an act or omission that is an offence under sections  
83.18, 83.19 or 83.2 of the Criminal Code, or an offence referred to in paragraph (c) of the  
definition “terrorism offence” in section 2 of that Act.  
[16] The following day, Mr. Brar attempted twice to take flights that would eventually have  
transported him from Vancouver to Toronto, but each time a written Denial of Boarding under  
the Passenger Protect Program [PPP] was issued pursuant to direction under paragraph 9(1)(a) of  
the SATA. This resulted in both WestJet and Air Canada denying Mr. Brar boarding at the  
Vancouver International Airport on that day.  
[17] On June 2, 2018, Mr. Brar submitted an application for administrative recourse to the  
Passenger Protect Inquiries Office [the PPIO] that sought the removal of his name from the  
SATA list pursuant to section 15 of the SATA. In response, the PPIO provided him with a two-  
   
Page: 12  
page unclassified summary of the information supporting the decision to place his name on the  
SATA list. The PPIO further advised that the Minister would consider additional classified  
information when assessing his application under section 15 of the SATA. Pursuant to subsection  
15(4) of the SATA, Mr. Brar was provided with the opportunity to make written representations  
in response to the unclassified information disclosed to him, which he submitted to the PPIO on  
December 3, 2018.  
[18] On December 21, 2018, the Minister advised Mr. Brar of his decision to maintain his  
status as a listed person under the SATA. Following a review of the classified and unclassified  
information provided, including Mr. Brars written submissions, the Ministers delegate  
“concluded that there [were] reasonable grounds to suspect that [Mr. Brar would] engage or  
attempt to engage in an act that would threaten transportation security, or travel by air to commit  
certain terrorism offences.”  
[19] On April 18, 2019, Mr. Brar filed a Notice of Appeal with this Court pursuant to  
subsection 16(2) of the SATA. In his Notice of Appeal, Mr. Brar asks this Court to order the  
removal of his name from the SATA list pursuant to subsection 16(5) of the SATA, or to order  
the remittance of the matter back to the Minister for redetermination. Mr. Brar also asks this  
Court to declare that sections 8, 15, 16 and paragraph 9(1)(a) of the SATA are unconstitutional  
and are therefore of no force and effect, or to read-in such procedural safeguards that would cure  
any constitutional deficiencies in the SATA.  
Page: 13  
[20] More specifically, Mr. Brar lists the following as the grounds of his appeal in his Notice:  
the Ministers decision was unreasonable; and, the procedures set out in the SATA violate his  
common law rights to procedural fairness seeing as the SATA deprives him of his right to know  
the case against him and the right to answer that case. Mr. Brar also requested the disclosure of  
all material related to his application for recourse, all material related to the Ministers decision  
to designate him as a listed person, all material before the Ministers delegate on the application  
for recourse, and all other materials relating to the Ministers delegate decision to confirm his  
status as a listed person under the SATA.  
B.  
Facts in Mr. Dulais Appeal  
[21] On March 29, 2018, Mr. Dulais name was included on the no-fly list. It was concluded  
that there were reasonable grounds to suspect that he would (1) engage or attempt to engage in  
an act that would threaten transportation security, and/or (2) travel by air for the purpose of  
committing an act or omission that is an offence under sections 83.18, 83.19 or 83.2 of the  
Criminal Code, or an offence referred to in paragraph (c) of the definition “terrorism offence” in  
section 2 of that Act.  
[22] On May 17, 2018, Mr. Dulai was issued a written Denial of Boarding under the PPP  
preventing him from boarding a flight at the Vancouver International Airport pursuant to a  
direction under paragraph 9(1)(a) of the SATA. Mr. Dulai was scheduled to travel from  
Vancouver to Toronto.  
 
Page: 14  
[23] On June 8, 2018, the PPIO received Mr. Dulais application for administrative recourse in  
which he sought the removal of his name from the SATA list, pursuant to section 15 of the  
SATA. In response, the PPIO provided him with a two-page unclassified summary of the  
information supporting the decision to place his name on the SATA list. The PPIO further  
advised that the Minister would consider additional classified information when assessing his  
application under section 15 of the SATA. Pursuant to subsection 15(4) of the SATA, Mr. Dulai  
was provided with the opportunity to make written representations in response to the unclassified  
information disclosed to him, which he submitted to the PPIO.  
[24] On January 30, 2019, the Minister advised Mr. Dulai of his decision to maintain his listed  
status under the SATA. Following a review of the classified and unclassified information  
provided, including Mr. Dulais written submissions, the Ministers delegate “concluded that  
there [were] reasonable grounds to suspect that [Mr. Dulai would] engage or attempt to engage in  
an act that would threaten transportation security, or travel by air to commit certain terrorism  
offences.”  
[25] On April 18, 2019, Mr. Dulai filed a Notice of Appeal with this Court pursuant to  
subsection 16(2) of the SATA. Mr. Dulai asks this Court to order the removal of his name from  
the SATA list pursuant to subsection 16(5) of the SATA, or to order the remittance of the matter  
back to the Minister for redetermination. Mr. Dulai also asks this Court to declare that sections 8,  
15 and 16, as well as paragraph 9(1)(a) of the SATA are unconstitutional and therefore of no  
force and effect, or to read-in such procedural safeguards that would cure any constitutional  
deficiencies in the SATA.  
Page: 15  
[26] More specifically, Mr. Dulai enumerates the following grounds of appeal: that the  
Ministers decision was unreasonable and that the procedures set out in the SATA violate his  
common law rights to procedural fairness seeing as the SATA deprives him of his right to know  
the case against him and the right to answer that case. Mr. Dulai also requested the disclosure of  
all material related to his application for recourse, all material related to the Ministers decision  
to designate him as a listed person, all material before the Minister on the application for  
recourse, and all other material relating to the Ministers decision to confirm his status as a listed  
person under the SATA.  
C.  
Procedural history covering both Appeals (Mr. Brar and Mr. Dulai)  
[27] Since these appeals have been initiated, several documents have been exchanged, case  
management conferences both public and ex parte have been held, public and ex parte hearings  
took place in both Ottawa and Vancouver, and decisions applicable to each case were published  
(Brar 2020, Brar 2021 and Dulai 2021).  
[28] As mentioned in the Reasonableness Decisions, navigating the SATA legislation has  
been laborious, lengthy, and complex. It required that the Appellants, counsel, amici curiae  
[Amici] and this Court think about and test many areas of the law. Due to its length, the complete  
judicial history of these two appeals is available at Annex A. It includes information on every  
step made over the last three years and reflects both partiesdedication to these matters, and the  
great level of detail with which each step was handled.  
 
Page: 16  
IV.  
A.  
Review and analysis of the SATA  
General  
[29] In order to analyze the questions in this matter, it is essential to undertake a review of the  
SATA first. An understanding of its legislative object, its operation, and its appeal mechanism is  
the compass that will be necessary to navigate these uncharted waters. This section addresses: (1)  
the context and legislative object of the SATA; (2) the operation of the SATA; and (3) the appeal  
provisions of the SATA. This methodology is in accordance with the modern approach to  
statutory interpretation endorsed by the Supreme Court of Canada (SCC) and will allow the  
reader to have a better understanding of what the designated judge is asked to do when an appeal  
is initiated under the SATA. It will also help contextualize the mandate of the Amici. For the  
purposes of this section, I have relied, for the most part, on the Brar 2020 decision at paragraphs  
60-88, with some adjustments.  
[30] The SCC has repeatedly endorsed the following concise summary of the law on statutory  
interpretation provided in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 [Rizzo]:  
[21] Although much has been written about the interpretation of  
legislation (see, e.g., Ruth Sullivan, Statutory Interpretation  
(1997); Ruth Sullivan, Driedger on the Construction of Statutes  
(3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-  
André Côté, The Interpretation of Legislation in Canada (2nd ed.  
1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983)  
best encapsulates the approach upon which I prefer to rely. He  
recognizes that statutory interpretation cannot be founded on the  
wording of the legislation alone. At p. 87 he states:  
Today there is only one principle or approach,  
namely, the words of an Act are to be read in their  
entire context and in their grammatical and ordinary  
   
Page: 17  
sense harmoniously with the scheme of the Act, the  
object of the Act, and the intention of Parliament.  
[31] The SATA’s general object of balancing individual rights and freedoms with Canadas  
national security interests in air travel is evident when one analyzes the title of the Act, the  
summary and preamble of its enacting and amending omnibus legislation, the legal context at the  
time of its enactment, and the pertinent legislative debates in both chambers of Parliament.  
[32] After nearly a decade of operating the PPP (better known as the “no-fly list”) via the  
Aeronautics Act, RSC 1985, c A-2, Parliament sought to create a specific legislative regime for  
the operation of this program (Lesley Soper’s first affidavit at para 5). Accordingly, the Anti-  
Terrorism Act, 2015, SC 2015, c 20, introduced as an omnibus bill, significantly amended and  
restructured national security law in Canada and created the SATA in 2015. A few years later,  
the 42nd Parliament of Canada enacted the National Security Act, 2017, SC 2019, c 13, which  
received royal assent on June 21, 2019. Once again, this legislationalso introduced as an  
omnibus billredrew the legal landscape regarding national security in Canada and amended an  
array of laws, including the SATA.  
[33] The SATA’s objective of protecting Canadas national security interests and the safety of  
Canadians in relation to air travel is evidenced in its short title, “Secure Air Travel Act”, as well  
as its legislative title, “An Act to enhance security relating to transportation and to prevent air  
travel for the purpose of engaging in acts of terrorism.” Moreover, the summary of the Anti-  
Terrorism Act, 2015 confirms this object, noting the following:  
Page: 18  
Anti-terrorism Act, 2015, SC  
Loi antiterroriste (2015), LC  
2015, c 20  
2015, ch 20  
Part 2 enacts the Secure Air  
La partie 2 édicte la Loi sur la  
Travel Act in order to provide sûreté des déplacements  
a new legislative framework aériens qui constitue un  
for identifying and responding nouveau cadre législatif en  
to persons who may engage in vue de l’identification des  
an act that poses a threat to  
personnes qui pourraient  
transportation security or who participer à un acte qui  
may travel by air for the  
purpose of committing a  
terrorism offence. That Act  
authorizes the Minister of  
menacerait la sûreté des  
transports ou qui pourraient se  
déplacer en aéronef dans le  
but de commettre une  
Public Safety and Emergency infraction de terrorisme et en  
Preparedness to establish a list vue de l’intervention à leur  
of such persons and to direct  
air carriers to take a specific  
action to prevent the  
commission of such acts. In  
addition, that Act establishes  
powers and prohibitions  
égard. Le ministre de la  
Sécurité publique et de la  
Protection civile est autorisé à  
établir une liste de telles  
personnes et à enjoindre aux  
transporteurs aériens de  
prendre la mesure qu’il  
governing the collection, use  
and disclosure of information précise pour prévenir la  
in support of its  
administration and  
enforcement. That Act  
includes an administrative  
recourse process for listed  
commission de tels actes.  
Cette loi établit aussi les  
pouvoirs et les interdictions  
régissant la collecte,  
l’utilisation et la  
persons who have been denied communication de  
transportation in accordance  
with a direction from the  
renseignements afin d’assister  
le ministre de la Sécurité  
Minister of Public Safety and publique et de la Protection  
Emergency Preparedness and civile dans son application et  
provides appeal procedures  
for persons affected by any  
son exécution. Elle prévoit un  
processus de recours  
decision or action taken under administratif pour les  
that Act. That Act also  
specifies punishment for  
contraventions of listed  
provisions and authorizes the  
Minister of Transport to  
personnes inscrites qui ont fait  
l’objet d’un refus de transport  
au titre d’une directive du  
ministre de la Sécurité  
publique et de la Protection  
conduct inspections and issue civile ainsi qu’un processus  
compliance orders. Finally, d’appel pour les personnes  
this Part makes consequential touchées par une décision ou  
amendments to the une mesure prise au titre de  
Page: 19  
Aeronautics Act and the  
Canada Evidence Act.  
cette loi. Celle-ci prévoit en  
outre les peines pour les  
infractions aux dispositions  
énumérées et autorise le  
ministre des Transports à  
mener des inspections et à  
prendre des mesures  
d’exécution. De plus, elle  
modifie la Loi sur  
l’aéronautique et la Loi sur la  
preuve au Canada en  
conséquence.  
[34] The overall purpose of the National Security Act, 2017 was to address concerns expressed  
by the public and experts alike regarding a perceived failure of the Anti-terrorism Act, 2015 to  
balance national security interests with individual rights and freedoms. This is reflected in its  
preamble, which stipulates the following:  
Preamble  
Préambule  
Attendue :  
Whereas a fundamental  
responsibility of the  
que la protection de la sécurité  
nationale et de la sécurité des  
Canadiens est l’une des  
responsabilités fondamentales  
du gouvernement du Canada;  
Government of Canada is to  
protect Canadas national  
security and the safety of  
Canadians;  
Whereas that responsibility  
must be carried out in  
accordance with the rule of  
law and in a manner that  
safeguards the rights and  
freedoms of Canadians and  
that respects the Canadian  
Charter of Rights and  
Freedoms;  
que le gouvernement du  
Canada a l’obligation de  
s’acquitter de cette  
responsabilité dans le respect  
de la primauté du droit et  
d’une manière qui protège les  
droits et libertés des  
Canadiens et qui respecte la  
Charte canadienne des droits  
et libertés;  
Whereas the Government of  
Canada is committed to  
enhancing Canadas national  
que le gouvernement du  
Canada est résolu à consolider  
le cadre fédéral de sécurité  
Page: 20  
security framework in order to nationale dans le but d’assurer  
keep Canadians safe while  
safeguarding their rights and  
freedoms;  
la sécurité des Canadiens tout  
en préservant leurs droits et  
libertés;  
Whereas the Government of  
Canada, by carrying out its  
national security and  
information activities in a  
manner that respects rights  
que le gouvernement du  
Canada, du fait qu’il exerce  
les activités liées à la sécurité  
nationale et au renseignement  
d’une manière qui respecte les  
and freedoms, encourages the droits et libertés, encourage la  
international community to do communauté internationale à  
the same;  
faire de même;  
Whereas enhanced  
que la confiance de la  
accountability and  
population envers les  
transparency are vital to  
ensuring public trust and  
institutions fédérales chargées  
d’exercer des activités liées à  
confidence in Government of la sécurité nationale ou au  
Canada institutions that carry renseignement est tributaire  
out national security or  
intelligence activities;  
du renforcement de la  
responsabilité et de la  
transparence dont doivent  
faire preuve ces institutions;  
Whereas those institutions  
must always be vigilant in  
que ces institutions fédérales  
doivent constamment faire  
order to uphold public safety; preuve de vigilance pour  
assurer la sécurité du public;  
Whereas those institutions  
must have powers that will  
que ces institutions fédérales  
doivent en outre disposer de  
enable them to keep pace with pouvoirs leur permettant de  
evolving threats and must use faire face aux menaces en  
those powers in a manner that constante évolution et exercer  
respects the rights and  
freedoms of Canadians;  
ces pouvoirs d’une manière  
qui respecte les droits et  
libertés des Canadiens;  
Whereas many Canadians  
expressed concerns about  
provisions of the Anti-  
terrorism Act, 2015;  
que nombre de Canadiens ont  
exprimé des préoccupations  
au sujet de dispositions de  
la Loi antiterroriste de 2015;  
And whereas the Government que le gouvernement du  
of Canada engaged in  
comprehensive public  
Canada a entrepris de vastes  
consultations publiques afin  
Page: 21  
consultations to obtain the  
de recueillir l’avis des  
views of Canadians on how to Canadiens quant à la façon de  
enhance Canadas national  
security framework and  
committed to introducing  
consolider le cadre fédéral de  
sécurité nationale et qu’il s’est  
engagé à déposer un projet de  
legislation to reflect the views loi qui tienne compte des  
and concerns expressed by  
Canadians;  
préoccupations et des avis  
exprimés par les Canadiens,  
[35] Read together, the long and the short title of the SATA, the summary of the Anti-  
Terrorism Act, 2015 and the preamble of the National Security Act, 2017 reveal the object of the  
SATA and how it fits into the overall legislative architecture of Canadas national security  
legislative scheme.  
[36] The Anti-Terrorism Act, 2015 demonstrates that the object of the SATA is to give the  
Minister the ability to identify, and respond to, persons that pose a threat to transportation  
security or may travel by air for the purpose of committing a terrorism offence. At the same time,  
it must ensure that affected persons are provided with both an administrative review and an  
appeal mechanism that must protect confidential information.  
[37] The preamble of the National Security Act, 2017 allows the reader to situate this intention  
within Parliaments overarching objective regarding national security: ensuring a careful balance  
between the rights and freedoms of individuals while protecting Canadas national security and  
the safety of Canadians.  
[38] The legislative object of protecting Canadas national security interests and the safety of  
Canadians with regard to air travel, in a manner that carefully balances this objective with the  
Page: 22  
rights and freedoms of individuals, is consistent with the relevant jurisprudential context at the  
time of the enactment of the SATA. Indeed, in the context of certificate proceedings under the  
IRPA, the SCC made it clear that a careful balance must be achieved between the collective  
interest in protecting confidential information for national security reasons and the interest in  
protecting individual rights and freedoms (see Canada (Citizenship and Immigration) v Harkat,  
2014 SCC 37 [Harkat] at paras 40-44 and Charkaoui I at para 1).  
[39] Harkat and Charkaoui I were mentioned on numerous occasions by members of the  
legislature and witnesses before Parliaments two chambers when studying and debating the  
creation of the SATA in 2015, as well as during the amendment of the SATA between 2017 and  
2019 (see Debates of the Senate, 41st Parl 2nd Sess, Vol 149 No 142 (14 May 2015) at 3388–  
3389 (Honourable Senator Claudette Tardif) and House of Commons Standing Committee on  
Public Safety and National Security, 42nd Parl, 1st Sess, No 90 (7 December 2017) at 1213).  
[40] In sum, this general object of balancing national security and the safety of Canadians  
with individual rights and freedoms is evident when one considers the SATA in its overall  
legislative context. Accordingly, when interpreting the legislative framework set out in the  
SATA, this general object must animate ones understanding of the statutes words (see Rizzo at  
para 21).  
B.  
Operation of the SATA  
[41] The provisions of the SATA outline the authority of the Minister to list individuals under  
the SATA, share information related to this list with domestic and foreign partners, and direct air  
 
Page: 23  
carriers to take the necessary measures to prevent persons from engaging or attempting to engage  
in an act that threatens aviation security or travel for the purpose of terrorism. The statute also  
provides for an internal administrative recourse mechanism for listed persons to have their names  
removed from the list, and if unsuccessful at that stage, a right of appeal to the Federal Court.  
[42] The starting point of any statutory analysis of the SATA is section 8. This section  
provides for the establishment of a list by the Minister (or their delegate) of persons whom they  
have “reasonable grounds to suspect” will:  
(a) engage or attempt to  
engage in an act that would  
threaten transportation  
security; or  
a) soit participera ou tentera  
de participer à un acte qui  
menacerait la sûreté des  
transports;  
(b) travel by air for the  
b) soit se déplacera en aéronef  
purpose of committing an act dans le but de commettre un  
or omission that  
fait acte ou omission —  
qui :  
(i) is an offence under  
section 83.18, 83.19 or  
83.2 of the Criminal  
Code or an offence  
referred to in paragraph (c)  
of the definition terrorism  
offence in section 2 of that  
Act, or  
(i) constitue une infraction  
visée aux articles 83.18,  
83.19 ou 83.2 du Code  
criminel ou à l’alinéa c) de  
la définition de infraction  
de terrorisme à l’article 2  
de cette loi  
(ii) if it were committed in  
Canada, would constitute  
an offence referred to in  
subparagraph (i).  
(ii) s’il était commis au  
Canada, constituerait une  
des infractions  
mentionnées au sous-  
alinéa (i).  
[43] The scope of this power to list persons at subsection 8(1) includes all persons, both inside  
and outside Canada (subsection 4(1)), and includes acts or omissions committed outside Canada  
Page: 24  
that would contravene to the Criminal Code if committed in Canada, which are considered for  
the purpose of the SATA as acts committed within Canada (section 5). The list includes the first,  
middle and surname, any known alias, the date of birth, and the gender of the listed persons  
(subsection 8(1)).  
[44] The Minister (or their delegate) must review the list every 90 days to determine if the  
grounds on which a person was listed still exist (subsection 8(2)). It is possible to amend the list  
at any time in order to remove a name or to modify information relating to a listed person  
(subsection 8(3)). Section 20 prohibits the disclosure of the list or its contents other than in  
accordance with the exceptions stated in the SATA. In fact, a listed individual only becomes  
aware of their listing when they are denied transportation at an airport (see subsection 8(1) and  
paragraph 9(1)(a) of the SATA and Lesley Soper’s first affidavit at para 20).  
[45] Section 10 of the SATA provides that the Minister may collect information from, and  
disclose information to, the Minister of Transport, the Minister of Citizenship and Immigration,  
the Royal Canadian Mounted Police [RCMP], the Canadian Security Intelligence Service  
[CSIS], the Canada Border Services Agency [CBSA], and any other person or entity designated  
by regulations. The Minister may also share information obtained, or even the list itself, in whole  
or in part, with foreign states with which it holds written agreements, as well as receive  
information from these foreign states (sections 11 and 12).  
[46] In practice, the members of the Passenger Protect Advisory Group (PPAG) chaired by  
Public Safety Canada provide information to the Ministers delegate in order to determine who is  
Page: 25  
placed on the SATA list. Each of the nominating members of the Advisory Group (Transport  
Canada, CSIS, RCMP, and CBSA) provide the full membership of the Advisory Group with a  
recommendation for listing, including a report providing information on an individual, as well as  
sufficient information to support their addition to the SATA list. The listing of the individual in  
question is then considered by the Advisory Group, which advises the Ministers delegate  
(usually a Senior Assistant Deputy Minister) on whether to ultimately list the individual pursuant  
to subsection 8(1) of the SATA. Review and updates of listings under subsection 8(2) are  
performed according to a similar procedure (Lesley Soper’s first affidavit at paras 9-12).  
[47] Air carriers are key to the operation of the SATA regime. Notably, the SATA requires  
that all accredited air carriers or reservation operators working out of Canada, or for flights  
coming to Canada, comply with the SATA and its regulations before allowing any person to  
board an aircraft or transporting any person (subsection 6(1)). This includes the requirement to  
provide information concerning the persons who are on board or expected to be on board an  
aircraft for any flight (subsection 6(2)).  
[48] In practice, the SATA list is disclosed to Transport Canada pursuant to section 10 of the  
SATA. The department then discloses the list to air carriers and operators of aviation reservation  
systems pursuant to subsection 13(a) of the SATA.  
[49] Subsection 9(1) of the SATA gives the Minister the power to direct an air carrier to “take  
a specific, reasonable and necessary action to prevent a listed person from engaging in any act  
set out in subsection 8(1)” as well as the power to “make directions respecting, in particular (a)  
Page: 26  
the denial of transportation to a person; or (b) the screening of a person before they enter a sterile  
area of an airport or board an aircraft” when a positive match arises. When a denial of  
transportation under paragraph 9(1)(a) is directed, the listed person is provided with a written  
notice to this effect. As stated earlier, a person first becomes aware of their listing when the  
written notice is issued. Barring a denial, a listed person is not informed of their listing.  
[50] An individual who has been denied transportation pursuant to section 9 of the SATA can  
initiate an administrative recourse to have their name removed from the SATA list (subsection  
15(1)). The individual can apply to the Minister in writing within 60 days of the denied  
transportation, although an extension may be granted pursuant to subsection 15(2). On receipt of  
the application, the Minister must decide whether there are still reasonable grounds to maintain  
the applicants name on the list pursuant to subsection 15(4).  
[51] In considering a listed persons application for administrative recourse, the nominating  
member of the Advisory Group will provide information to help the Minister determine whether  
reasonable grounds exist to maintain the persons name on the SATA list. The Minister will also  
provide the listed person with an opportunity to make representations that will be considered in  
the decision (subsection 15(3)).  
[52] Section 15 of the SATA imposes no explicit obligation on the Minister to disclose any  
information to a listed person in order to assist them in making representations. However, in the  
cases at bar both Appellants received a two-page unclassified summary of the information that  
Page: 27  
was placed before the Minister along with a statement that the Minister would also consider  
classified information in his decision (Lesley Soper’s first affidavit, Document ii of Exhibit B).  
[53] Finally, once the Minister makes a decision on the listed individuals application for  
administrative recourse pursuant to subsection 15(4), the Minister must give notice to the listed  
individual without delay (subsection 15(5)). Pursuant to subsection 15(6), if the Minister does  
not make a decision within a period of 120 days after the day the application is received, the  
Minister is deemed to have decided to remove the individuals name from the list. The Minister  
may nevertheless extend this period by an additional 120 days, upon notice, if there is a lack of  
sufficient information available to make a decision.  
C.  
Appeal provisions of the SATA  
[54] Beyond the internal decision-making process and administrative recourse provisions in  
the SATA, the legislative scheme provides for an external appeal to the Chief Justice of the  
Federal Court, or a judge designated by the Chief Justice, pursuant to the appeal procedures set  
out in section 16 of the SATA. In particular, the SATA provides that a person listed pursuant to  
section 8 who has been denied transportation as a result of a direction made pursuant to section 9  
may appeal a decision made under section 15 within 60 days of the notice of decision (see  
subsections 16(1) and 16(2)). Pursuant to paragraph 63(1)(e) of the Federal Courts Rules,  
SOR/98106, the originating document to begin this process is a notice of appeal. In the present  
appeals, both Appellants submitted Notices of Appeal in accordance with the Federal Court  
Rules in April 2019.  
 
Page: 28  
[55] Subsection 16(4) tasks the designated judge with determining “whether the decision [of  
the Minister pursuant to section 15] is reasonable on the basis of the information available to the  
judge” and requires that this determination be done “without delay.” If the decision is deemed  
unreasonable, subsection 16(5) allows the judge to order that an appellants name be removed  
from the list. These subsections are key in defining the nature of the appeal under the SATA.  
Indeed, they set the standard applicable for the designated judges review, do not limit the  
evidence before the judge to the evidence that was before the Minister, and allocate powers to  
the judge to make an immediate decision concerning the removal of an individual from the  
SATA list.  
[56] To frame the appeal, subsection 16(6) of the SATA sets out numerous procedural  
provisions:  
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  
a) à tout moment pendant  
proceeding, the judge must,  
l’instance et à la demande du  
on the request of the Minister, ministre, le juge doit tenir une  
hear information or other audience à huis clos et en  
evidence in the absence of the l’absence de l’appelant et de  
public and of the appellant  
and their counsel if, in the  
son conseil dans le cas où la  
divulgation des  
judge’s opinion, its disclosure renseignements ou autres  
could be injurious to national éléments de preuve en cause  
security or endanger the  
safety of any person;  
pourrait porter atteinte, selon  
lui, à la sécurité nationale ou  
à la sécurité d’autrui;  
(b) the judge must ensure the  
b) il lui incombe de garantir la  
confidentiality of information confidentialité des  
and other evidence provided renseignements et autres  
Page: 29  
by the Minister if, in the  
éléments de preuve que lui  
judge’s opinion, its disclosure fournit le ministre et dont la  
would be injurious to national divulgation porterait atteinte,  
security or endanger the  
safety of any person;  
selon lui, à la sécurité  
nationale ou à la sécurité  
d’autrui;  
(c) throughout the  
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  
proceeding, the judge must  
ensure that the appellant is  
provided with a summary of  
information and other  
evidence that enables them to porterait atteinte, selon lui, à  
be reasonably informed of the la sécurité nationale ou à la  
Minister’s case but that does  
sécurité d’autrui et qui permet  
not include anything that, in  
à l’appelant d’être  
the judge’s opinion, would be suffisamment informé de la  
injurious to national security  
or endanger the safety of any  
person if disclosed;  
thèse du ministre à l’égard de  
l’instance en cause;  
(d) the judge must provide the d) il donne à l’appelant et au  
appellant and the Minister  
with an opportunity to be  
heard;  
ministre la possibilité d’être  
entendus;  
(e) the judge may receive into e) il peut recevoir et admettre  
evidence anything that, in the en preuve tout élément —  
judge’s opinion, is reliable  
même inadmissible en justice  
and appropriate, even if it is  
— qu’il estime digne de foi et  
inadmissible in a court of law, utile et peut fonder sa  
and may base a decision on  
that evidence;  
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  
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;  
appellant;  
(g) if the judge determines  
that information or other  
evidence provided by the  
Minister is not relevant or if  
the Minister withdraws the  
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  
Page: 30  
information or evidence, the  
judge must not base a  
retire, il ne peut fonder sa  
décision sur ces  
decision on that information  
or other evidence and must  
return it to the Minister; and  
renseignements ou ces  
éléments de preuve et il est  
tenu de les remettre au  
ministre;  
(h) the judge must ensure the  
confidentiality of all  
h) il lui incombe de garantir la  
confidentialité des  
information or other evidence renseignements et autres  
that the Minister withdraws.  
éléments de preuve que le  
ministre retire de l’instance.  
[57] Finally, section 17 of the SATA confirms that section 16 of the SATA applies to any  
further appeal of the decision, with necessary modifications.  
[58] An analysis of the SATA in its entirety reveals key measures in furthering the SATA’s  
objective of protecting Canadas national security interests and the safety of Canadians in  
relation to air travel. Those key measures include the provisions, regulations, and practices  
relating to the listing of individuals, the prohibitions regarding disclosure of information, the  
strategic sharing of information with select partners, and the issuing and application of directions  
to deny transportation or to screen individuals. However, a simple reading of these measures,  
together with the actual methods in place, shows that the named individual is not involved in the  
SATA procedures until transportation is denied, if at all. Therefore, a holistic reading of the  
SATA suggests that this legislative scheme relies on the administrative recourse provisions at  
section 15 and the appeal provisions at section 16 to balance the SATA’s objective of protecting  
national security interests with that of ensuring the protection of individual rights and freedoms.  
Because the administrative recourse provision at section 15 offers no explicit guarantee of  
disclosure, and a limited opportunity to make written submissions, a heavy burden is placed on  
Page: 31  
the appeal mechanism in section 16 of the SATA to give effect to the balance sought by the  
statute.  
[59] Given the designated judges broad discretion under section 16 of the SATA, they have  
an important responsibility to ensure the confidentiality of all sensitive information (para  
16(6)(b)) as well as to ensure that the appellant is provided with summaries of sensitive  
information, where possible, so that they may be reasonably informed of the Ministers case and  
be provided an opportunity to be heard (paras 16(6)(c) and 16(6)(d)). This is a demanding  
function that requires a refined approach, especially since this is the first opportunity throughout  
the entire SATA process for the appellant to “be heard.” It is a delicate task for the designated  
judge who must ensure the protection of information relating to national security while  
simultaneously disclosing what can be released and, if possible, to such a point as to allow the  
appellant to know enough to meet the case and give guidance to counsel and the Amici.  
[60] What is more, the designated judge may also receive into evidence anything that is  
reliable and appropriate while also having the power to base their decision on information or  
other evidence, even if a summary of that information or other evidence is not provided to the  
appellant (paras 16(6)(e) and 16(6)(f)). Given the possibility that the designated judge may have  
to rely on information or evidence that cannot be disclosed to the appellant, even in summary  
form, and thus cannot be directly challenged by the appellant, the designated judge must ensure  
that their decision is based on facts and law in an independent and impartial manner. This  
judicial task was determined to have been achieved in both appeals, as can be seen in the section  
Page: 32  
entitled “Findings resulting from the appeal proceedings” at page 53 in both Reasonableness  
Decisions (Brar 2022 and Dulai 2022).  
V.  
Constitutional questions - Section 6 of the Charter: Mobility rights  
[61] The Appellant (Mr. Dulai) has submitted the following constitutional questions:  
Do sections 8 and 9(1)(a) of the SATA infringe on the Appellants  
mobility rights pursuant to section 6 of the Charter?  
If so, can this infringement be justified under section 1 of the  
Charter?  
A.  
Summary of the submissions of the Appellants and Respondent  
(1)  
Submissions of Mr. Brar  
[62] Mr. Brar did not make any specific submissions in relation to section 6 of the Charter.  
Having said that, the Appellant describes in his affidavit the consequences that his listing on the  
no-fly list has had on his life, his family and his work.  
(2)  
Submissions of Mr. Dulai  
[63] Mr. Dulai presented his succinct submissions related to section 6 of the Charter in a  
document dated March 21, 2022, as well as during oral submissions at the public hearings. He  
submits that his section 6 mobility rights have been violated by the Ministers decision to deny  
him the ability to fly domestically. He cannot easily leave or move about the country because of  
his placement on the no-fly list. He submits that his mobility rights have clearly been restricted.  
       
Page: 33  
[64] Mr. Dulai states that subsection 6(2) of the Charter was intended to protect the right of a  
citizen to move about the country, to reside where they wish, and pursue their livelihood without  
regard to provincial boundaries. From this perspective, a citizen need not be completely cut off  
from a particular livelihood to make out a section 6 violation. He submits that a violation is  
established if the person is sufficiently disadvantaged in the pursuit of that livelihood. Therefore,  
“to pursue the gaining of a livelihood” under paragraph 6(2)(b) should be construed to mean the  
right to practice on a viable economic basis.  
[65] Mr. Dulai advances the argument that boarding an aircraft is a privilege and not a right,  
but that by virtue of Canadas size, its geographic location and segments that are inaccessible  
except by air, a purposive approach to the interpretation of mobility rights would recognize that  
it is impracticable to travel through and outside of Canada without boarding an aircraft.  
[66] Mr. Dulai is of the opinion that if the Court agrees with his submission that there are no  
reasonable grounds to suspect that he will fly by air to commit a terrorism offence, then  
maintaining his name on the SATA list unjustifiably limits his section 6 mobility rights. Even  
without that finding, he claims that the Ministers decision to ban his travelling by air within  
Canada limits his section 6 mobility rights in a manner that cannot be demonstrably justified  
under section 1 of the Charter. This is because of the Courts finding, and the Ministers  
admission, that there is no evidence that he poses a threat to transportation security. In these  
circumstances, the prohibition on Mr. Dulai flying domestically cannot be demonstrably justified  
as a reasonable limit under section 1 of the Charter.  
Page: 34  
[67] Moreover, Mr. Dulai submits that the restriction on his ability to fly domestically is a  
significant limit on his capacity to pursue a livelihood in provinces outside of British Columbia,  
more specifically managing and maintaining his television studios in Calgary, Winnipeg,  
Edmonton, and Brampton. He attempted to maintain the studios by driving from Vancouver to  
Toronto three times, but each journey was expensive, long, and impractical. Mr. Dulai also runs  
a joint venture called Yellow Car Rental located near Pearson International Airport in Toronto  
with a branch outside of Vancouver International Airport. He has not been able to expand the  
operations of the business because of his inability to fly domestically.  
[68] Given the Ministers admission that Mr. Dulai does not pose a threat to air transportation  
security, the Appellant argues that the ban on flying domestically is not rationally connected to  
the objective of protecting Canadas national security or preventing him from flying to engage in  
terrorism-related activity. He maintains that there is no evidence to suggest that he will fly  
somewhere in Canada to commit a terrorism offence; rather, the Ministers decision refers to  
foreign travel. In these circumstances, there is no rational connection between the ban on  
domestic travel and the objectives of the SATA. As can be read, Mr. Dulai is challenging the  
constitutional validity of sections 8 and 9(1) because he alleges that the listing of his name on the  
no-fly list breach his mobility rights.  
[69] Mr. Dulai describes in his affidavit the consequences that his listing on the no-fly list has  
had on his life, his family and his work.  
(3)  
Submissions of the Respondent  
 
Page: 35  
[70] The Minister (Respondent) presented his written submissions in a Memorandum of Fact  
and Law dated April 11, 2022. In the document, the Minister requests an order that these appeals  
be dismissed and that both Mr. Brar and Mr. Dulais names be maintained on the SATA list. The  
Minister argues that the SATA proceedings are procedurally fair and consistent with sections 6  
and 7 of the Charter and that the recourse decision is reasonable and justified on the evidence  
and the law.  
[71] With respect to the section 6 argument, the Minister mentions that “to the extent Mr.  
Dulai is prevented from entering a province via a particular mode of transportation, this is not an  
infringement of s. 6(2)(b) of the Charter” and that “while subsection 6(1) of the Charter protects  
against government action that, in purpose or effect, restricts the ability of Canadian citizens to  
enter, remain in or leave Canada, it does not protect a right to a particular mode of transportation  
or the right to travel for leisure or business.” The Minister also submits that,  
the recourse decision in Mr. Dulais case reflected a careful  
assessment and weighing of the evidence where the Ministers  
delegate determined that there are reasonable grounds to suspect  
that Mr. Dulai will travel by air to commit certain terrorism  
offences. The decision reflects a proportionate balance of the  
significant national security objectives at stake and any limit on  
Mr. Dulais s. 6 mobility rights. (Respondents Memorandum of  
Fact and Law at pp 26-30)  
[72] Arguments on section 7 are addressed later in this decision.  
Page: 36  
VI.  
The Oakes or the Doré approach  
[73] I have explained that no deference was to be given to the Minister’s delegate. To that end,  
I have assumed an active role throughout the confidential and public proceedings to contribute to  
the fairness process in accordance with the SCCs directives in both Charkaoui I, and Harkat.  
[74] The SATA offers an appeal mechanism rather than a conventional judicial review.  
Additionally, and as provided for by the SATA, I have received new evidence that was not  
before the decision maker. My responsibility as a judge was to determine whether or not it was  
reasonable to place each Appellant on the no-fly list.  
[75] In his Notice of Appeal as well as his Notice of Constitutional Questions, Mr. Dulai  
contests the constitutional validity of sections 8 and 9(1) of the SATA on the basis that they  
unjustifiably limit his section 6 Charter rights. In Mr. Dulai’s written and oral submissions on  
section 6 of the Charter, it was not clear whether his position remained that the legislation itself  
was unconstitutional and not justified pursuant to section 1 of the Charter, or whether it was the  
state action that led to a breach of his section 6 rights which was not justified pursuant to section  
1 of the Charter. The Minister’s counsel submitted that Mr. Dulai was effectively contesting the  
Minister’s decision and that as a result, this argument should be analyzed through the Doré v  
Barreau du Québec, 2012 SCC 12 [Doré] framework. Given the preceding paragraphs and the  
fact that the constitutional validity of the legislation is contested in Notices of Appeal and  
Constitutional Questions, I will proceed with an analysis pursuant to the R v Oakes, [1986] 1  
SCR 103 [Oakes] framework examining both the validity of the legislation and the impact of  
 
Page: 37  
state action. As a last comment on this matter, I must note that even though each Appellant  
specifically raised sections 6 and 7 of the Charter issues in their administrative submissions, the  
Minister’s delegate remained silent in both of the decisions that are the subject matters of these  
appeals.  
VII. Analysis: Section 6 of the Charter  
A.  
Legislation  
[76] Before proceeding with the analysis of Mr. Dulais section 6 arguments, it is worth  
looking at the relevant constitutional and legislative provisions:  
(1)  
Section 6 of the Charter  
Mobility of citizens  
Liberté de circulation  
6 (1) Every citizen of Canada 6 (1) Tout citoyen canadien a  
has the right to enter, remain  
in and leave Canada  
le droit de demeurer au  
Canada, d’y entrer ou d’en  
sortir.  
Rights to move and gain  
livelihood  
Liberté d’établissement  
(2) Every citizen of Canada  
(2) Tout citoyen canadien et  
and every person who has the toute personne ayant le statut  
status of a permanent resident de résident permanent au  
of Canada has the right:  
Canada ont le droit :  
(a) to move to and take up  
a) de se déplacer dans tout le  
residence in any province; and pays et d’établir leur résidence  
dans toute province;  
(b) to pursue the gaining of a  
livelihood in any province.  
b) de gagner leur vie dans  
toute province.  
Limitation  
Restriction  
     
Page: 38  
(3) The rights specified in  
section (2) are subject to:  
(3) Les droits mentionnés au  
paragraphe (2) sont  
subordonnés :  
(a) any laws or practices of  
a) aux lois et usages  
general application in force in d’application générale en  
a province other than those  
that discriminate among  
vigueur dans une province  
donnée, s’ils n’établissent  
persons primarily on the basis entre les personnes aucune  
of province of present or  
previous residence; and  
distinction fondée  
principalement sur la province  
de résidence antérieure ou  
actuelle;  
(b) any laws providing for  
reasonable residency  
requirements as a  
b) aux lois prévoyant de justes  
conditions de résidence en vue  
de l’obtention des services  
qualification for the receipt of sociaux publics.  
publicly provided social  
services.  
Affirmative action programs  
Programmes de promotion  
sociale  
(4) Sections (2) and (3) do not (4) Les paragraphes (2) et (3)  
preclude any law, program or n’ont pas pour objet  
activity that has as its object  
d’interdire les lois,  
the amelioration in a province programmes ou activités  
of conditions of individuals in destinés à améliorer, dans une  
that province who are socially province, la situation  
or economically  
d’individus défavorisés  
socialement ou  
économiquement, si le taux  
d’emploi dans la province est  
inférieur à la moyenne  
nationale.  
disadvantaged if the rate of  
employment in that province  
is below the rate of  
employment in Canada.  
(2)  
Sections 8 and 9(1)(a) of the SATA  
List  
Liste  
8 (1) The Minister may  
establish a list on which is  
8 (1) Le ministre peut établir  
une liste sur laquelle il inscrit  
placed the surname, first name les nom et prénoms, tout nom  
and middle names, any alias,  
the date of birth and the  
d’emprunt, la date de  
naissance et le genre de toute  
 
Page: 39  
gender of any person, and any personne ainsi que tout  
other information that is  
prescribed by regulation that  
serves to identify the person,  
autre renseignement prévu par  
règlement permettant de  
l’identifier, à l’égard de  
if the Minister has reasonable laquelle il a des motifs  
grounds to suspect that the  
person will  
raisonnables de soupçonner  
qu’elle :  
(a) engage or attempt to  
engage in an act that would  
threaten transportation  
security; or  
a) soit participera ou tentera  
de participer à un acte qui  
menacerait la sûreté des  
transports;  
(b) travel by air for the  
b) soit se déplacera en aéronef  
purpose of committing an act dans le but de commettre un  
or omission that  
fait acte ou omission —  
qui :  
(i) is an offence under section (i) constitue une infraction  
83.18, 83.19 or 83.2 of  
the Criminal Code or an  
offence referred to in  
paragraph (c) of the  
definition terrorism  
offence in section 2 of that  
Act, or  
visée aux articles 83.18, 83.19  
ou 83.2 du Code criminel ou à  
l’alinéa c) de la définition de  
infraction de terrorisme à  
l’article 2 de cette loi,  
(ii) if it were committed in  
Canada, would constitute an  
offence referred to in  
(ii) s’il était commis au  
Canada, constituerait une des  
infractions mentionnées au  
sous-alinéa (i).  
subparagraph (i).  
Review of list  
Examen périodique de la liste  
(2) The Minister must review (2) Tous les quatre-vingt-dix  
the list every 90 days to  
determine whether the  
grounds for which each  
person’s name was added to  
the list under subsection (1)  
still exist and whether the  
jours, le ministre examine la  
liste afin de déterminer si les  
motifs sur lesquels il s’est  
basé pour inscrire le nom de  
chaque personne en vertu du  
paragraphe (1) existent encore  
person’s name should remain et si le nom de la personne  
on the list. The review does  
not affect the validity of the  
list.  
devrait demeurer sur la liste.  
L’examen est sans effet sur la  
validité de la liste.  
Amendment of list  
Modifications apportées à la  
liste  
Page: 40  
(3) The Minister may at any  
time amend the list  
(3) Le ministre peut en tout  
temps modifier la liste pour :  
(a) by deleting the name of a  
person and all information  
a) soit enlever le nom d’une  
personne de la liste ainsi que  
relating to them if the grounds tout renseignement la visant,  
for which their name was  
added to the list no longer  
exist; or  
si les motifs pour lesquels le  
nom a été inscrit sur la liste  
n’existent plus;  
(b) by changing the  
b) soit modifier les  
information relating to a listed renseignements visant une  
person.  
personne inscrite.  
Exemption from Statutory  
Instruments Act  
Loi sur les textes  
réglementaires  
(4) The list is exempt from the (4) La liste est soustraite à  
application of the Statutory  
Instruments Act.  
l’application de la Loi sur les  
textes réglementaires.  
Directions  
Directives  
9 (1) The Minister may direct 9 (1) Le ministre peut  
an air carrier to take a  
specific, reasonable and  
necessary action to prevent a  
enjoindre à un transporteur  
aérien de prendre la mesure  
raisonnable et nécessaire qu’il  
listed person from engaging in précise en vue d’éviter qu’une  
any act set out in subsection personne inscrite commette  
8(1) and may make directions les actes visés au paragraphe  
respecting, in particular,  
8(1). Il peut en outre lui  
donner des directives  
relatives, notamment :  
(a) the denial of transportation a) au refus de transporter une  
to a person; or personne;  
[77] To conduct a conclusive analysis, one must be aware of and understand not just the  
applicable legal requirements listed above, but also the SATA’s dual purpose:  
1) Give the Minister of Public Safety and Emergency Preparedness  
[Minister] the power to identify and respond to persons who may  
engage in an act that poses a threat to transportation security or  
who may travel by air for the purpose of committing a terrorism  
offence; and  
2) Ensure that these individuals can rely on both an administrative  
review with an opportunity to make representations, and on an  
Page: 41  
appeal mechanism that allows them to be heard while ensuring that  
national security information is protected.  
[78] Since this concept is essential, I will mention it again. It is important to establish a careful  
balance between the rights and freedoms of individuals while at the same time protecting  
national security information, and the safety of Canadians when travelling by air is fundamental  
(see Brar 2020 at paras 60-67).  
B.  
The intricacies of the current appeals  
[79] The Appellants are barred from travelling by air, both domestically and internationally  
(see Revised Appeal Books at p 27 (Brar) and at p 30 (Dulai)). They can still depart Canada,  
however, via other modes of transportation and travel within Canada by car, bus, or train. The  
rationale for the air travel ban is the Ministers conclusion that there are reasonable grounds to  
suspect that the Appellants will travel internationally by air to commit terrorism offences.  
C.  
The meaning of mobility  
[80] The term “mobility” is not defined in the Charter. However, under section 6, every  
citizen has the right to enter, remain in, and leave the country. In addition, every citizen and  
permanent resident has the right to move to and live in any province as well as the right to pursue  
the gaining of a livelihood in any province. Subsection 6(1) of the Charter is concerned with  
international movement and subsection 6(2) is concerned with movement within Canada to take  
up residence or to pursue the gaining of a livelihood.  
   
Page: 42  
[81] Nonetheless, it is not evident from a plain reading of section 6 whether mobility rights  
may encompass specific means to give them effect, or in other words, specific modes of  
transportation used to carry out these movements. Indeed, given Canadas geography and  
location on the world map, it is reasonable to expect that certain movements allowing residents  
to reach their destination will be made by air.  
[82] Canadian jurisprudence on mobility rights reveals that courts have thus far understood  
mobility in absolute terms, meaning that the concept of mobility only extended to one variable,  
that of movement. Below are cases that may be useful in understanding where courts stand on  
section 6 of the Charter and mobility rights in different situations:  
Extradition United States of America v Cotroni, [1989] 1 SCR 1469 [Cotroni],  
Sriskandarajah v United States of America, [2012] 3 SCR 609;  
The right to a passport R v Nikal, [1996] 1 SCR 1013, Khadr v Canada (Attorney  
General), [2007] 2 FCR 218 (TD), Kamel v Canada (Attorney General), [2009] 1 FCR  
(TD)), the International Transfer of Offenders Act (ITOA), Divito v Canada (Public  
Safety and Emergency Preparedness), [2013] 3 SCR 157 [Divito];  
The right to inter-provincial mobility Law Society of Upper Canada v Skapinker,  
[1984] 1 SCR 357 [Skapinker], Black v. Law Society of Alberta, [1989] 1 SCR 591  
[Black];  
The right to move to and take up residence in any province Skapinker, and  
The right to pursue the gaining of a livelihood in any province Black, Canadian Egg  
Marketing Agency v Richardson, [1998] 3 SCR 157.  
In these cases, the courts looked at individuals’ situations from a spatial perspective to determine  
whether their movements were restricted.  
Page: 43  
[83] Since the scope of section 6 of the Charter encompasses movements within Canada as  
well as the possibility to leave and enter the country, it is conceivable that the framers of the  
Charter had in mind that mobility could be given effect through different modes of  
transportation. While air travel and railroad transit were both common at the time of the  
Charter’s inception, flying has since become significantly more accessible and prevalent.  
[84] The worlds geopolitical and security contexts have changed dramatically since the  
adoption of the Charter, especially vis-à-vis the focus given to the fight against terrorism in the  
aftermath of the terrorist attacks of September 2001. As a result, our understanding of mobility  
rights, as envisioned in the early 1980s, ought to evolve and adapt while remaining true to the  
draftersoriginal objectives (The Living Tree Doctrine, Peter W Hogg, Constitutional Law of  
Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a)).  
[85] While the concept of movement is significant in Mr. Dulais appeal, the central issue  
revolves around the manner in which movement, or travel, is undertaken. Given that a particular  
mode of transportation is being prohibited, this Court is compelled to consider mobility from a  
novel perspective. As far as this Court is aware, this is a first in Canada, as tribunals have, until  
now, only assessed mobility from a migrationperspective, often overlooking the means by  
which it is carried out. In contemporary Canadian society, mobility may no longer always  
constitute a one-dimensional notion that singularly defines movements within and outside the  
country; part of the equation may have to involve the way by which these movements are given  
effect.  
Page: 44  
[86] In these appeals, the Appellants may travel however they wish, except by air. Although  
travel is not completely eliminated, this restriction has impacted their mobility. This Court has to  
gauge the degree to which the denial of air transportation infringes on a fundamental right,  
whether it is justified, and if so, whether this infringement can be minimized. For example, it  
could be possible for an individual on the no-fly list to travel domestically but not  
internationally, or to travel by air if they undergo increased security measures and are escorted  
by a security officer. Indeed, these options appear in the “recommended directions” published by  
the Department of Public Safety Canada and could be issued in accordance with subsection 9(1)  
of the SATA (see Revised Appeal Book in Dulai at pp 36, 53, 64, 84, 275 and 348). These types  
of directions may enable the Department to authorize a listed individual to travel by plane.  
Discretionary conditions may be tailored to the listed individual, thus limiting the SATA’s  
impact on mobility rights.  
[87] Given the above, a comprehensive understanding of freedom of movement is required, as  
air transportation security regulations might result in denial of air transportation in some  
instances while allowing it in others, hence influencing freedom of movement to varying  
degrees.  
[88] Having framed the legislation at play, described the perpetual challenge of balancing  
national security concerns and individual rights and freedoms, outlined the evolving view on  
mobility rights, now is the time to consider the jurisprudential concepts that go into interpreting  
the Charter in light of mobility rights.  
(1)  
Interpreting the Charter  
 
Page: 45  
(a)  
Purposive analysis and jurisprudential guidance on mobility rights  
[89] The very basis of Charter interpretation is purposive analysis. This calls for a generous  
and liberal interpretation where the meaning of a right must be defined in light of the interests it  
is supposed to defend. When dealing with section 6 of the Charter, Justice Dickson (as he then  
was) said in Black that:  
A purposive approach to the Charter dictates a broad approach to  
mobility. Section 6(2) protects the right of a citizen (and of a  
permanent resident) to move about the country, to reside where he  
or she wishes and to pursue his or her livelihood without regard to  
provincial boundaries. The provinces may regulate these rights but,  
subject to ss. 1 and 6 of the Charter, cannot do so in terms of  
provincial boundaries. That would derogate from the inherent  
rights of the citizen to be treated equally in his or her capacity as a  
citizen throughout Canada. This approach is consistent with the  
rights traditionally attributed to the citizen and with the language  
of the Charter (at p 4).  
[90] The Charter recognizes the right to leave the country as well as the right to return  
(“enter”). In Cotroni, Justice Wilson (dissenting, but not on this issue) had the following to say  
regarding subsection 6(1):  
[73] Applying these guidelines [Big M Drug Mart], it is my view  
that s. 6(1) of the Charter was designed to protect a Canadian  
citizens freedom of movement in and out of the country according  
to his own choice. He may come and go as he pleases. He may  
elect to remain. Although only Canadian citizens can take  
advantage of s. 6(1) the right protected is not that of Canadian  
citizenship. Rather, the right protected focuses on the liberty of a  
Canadian citizen to choose of his own volition whether he would  
like to enter, remain in or leave Canada. Support for this  
interpretation is found in the language of the other subsections of s.  
6 and in the heading of s. 6 Mobility Rights.  
 
Page: 46  
[91] It is important to differentiate between the two sets of rights encompassed in the Charter  
at subsections 6(1) and 6(2). To this effect, Justice Abella wrote, in Divito:  
[17] There are therefore two sets of mobility rights. The first set,  
found in s. 6(1), is the right of every Canadian citizen to enter,  
remain in, and leave Canada. The second set, outlined in s. 6(2) to  
(4), gives citizens and permanent residents the right to move to,  
live in, and work in any province subject to certain limitations.  
Considering this, the right to enter, remain, and leave Canada provides for international mobility  
for every Canadian citizen and a national mobility for Canadian citizen and permanent resident.  
On the other hand, the right to remain in Canada and establish residence is also protected under  
paragraph 6(2)(a) of the Charter. In the present cases, the matter relating to establishing  
residence in a province is not at issue but paragraph 6(2)(b), “to pursue the gaining of a  
livelihood in any province” is relevant.  
(b)  
Section 6 mobility rights are not subject to the notwithstanding clause  
[92] It is worth noting that section 6 rights, like certain other Charter rights such as the right  
to vote protected by section 3, are excluded from the application of section 33 of the Charter.  
Such an exclusion indicates the special importance given to these rights by the framers of the  
Charter. Indeed, as explained in Frank v Canada (Attorney General), 2019 SCC 1 [Frank], in  
the context of the right to vote, “any intrusions on this core democratic right are to be reviewed  
on the basis of a stringent justification standard” (para 45). The significance of rights not being  
subject to section 33 was reiterated in Conseil scolaire francophone de la Colombie-Britannique  
v British Columbia, 2020 SCC 13:  
[148] Second, s. 23 is not subject to the notwithstanding clause  
in s. 33 of the Charter. The decision in this regard reflects the  
importance attached to this right by the framers of the Charter as  
 
Page: 47  
well as their intention that intrusions on it be strictly  
circumscribed. In Frank v. Canada (Attorney General), 2019 SCC  
1, which concerned the right to vote of Canadians residing abroad,  
I reiterated McLachlin C.J.’s statement in Sauvé v. Canada (Chief  
Electoral Officer), 2002 SCC 68, that the framers had signalled the  
special importance of that right by excluding it from the scope of  
the notwithstanding clause. I added that, because of this  
exemption, any intrusions on the right are to be reviewed on the  
basis of a stringent justification standard (Frank, at  
para. 25; Sauvé, at paras. 11 and 14). This also applies in the  
context of s. 23.  
(c)  
The interpretative language  
[93] Language is an important medium of communication, especially in a country like Canada  
where bilingualism is one of our core values of inclusiveness and diversity. Linguistics can be  
particularly valuable in law when wanting to convey meaning and nuances. Depending on the  
language in which a particular statute or legislation is referred to, it can be understood  
differently. These differences demand the most in-depth consideration to appreciate the  
legislations objective. This is the case with the Charters mobility rights under section 6.  
[94] Interestingly, subsection 6(2) benefits from a broader interpretation in the French version  
than in the English one: “de se déplacer dans tout le pays et d’établir leur résidence dans toute  
provinceas opposed to “move to and take up residence in any province.” In Shapinker, Justice  
Estey emphasized this difference:  
[26] I return to subs. (2) itself. Paragraph (a) is pure mobility. It  
speaks of moving to any province and of residing in any province.  
If (b) is caught up with (a), it is likewise a mobility provision. If it  
is separate when properly construed, then it may, as the respondent  
urges, be a right to workclause without reference to movement  
as a prerequisite or otherwise. The presence of the conjunction  
andin the English version is not sufficient, in my view, to link  
 
Page: 48  
(a) to (b) so as to create a single right. Conversely, the absence of  
the conjunctive link in the French language version is not sufficient  
to separate the two clauses completely. In the first alternative  
interpretation, supra, if only one right is created by subs. (2), then  
a division into paras. (a) and (b) is superfluous. Moreover, this  
suggested interpretation of s. 6(2) is inconsistent with s. 6(3) which  
subjects the rights specified in subsection (2)to certain  
limitations. (Emphasis added)  
[95] Justice Estey, who was writing for the majority, therefore concluded that:  
[33] [] para. (b) of subs. (2) of s. 6 does not establish a separate  
and distinct right to work divorced from the mobility provisions in  
which it is found. The two rights (in para. (a) and in para. (b)) both  
relate to movement into another province, either for the taking up  
of residence, or to work without establishing residence. Paragraph  
(b), therefore, does not avail Richardson of an independent  
constitutional right to work as a lawyer in the province of  
residence so as to override the provincial legislation, the Law  
Society Act, s. 28(c), through s. 52 of the Constitution Act, 1982.  
For these reasons, we can confidently state that even if there is no stand-alone right to work,  
there is still a connection between subsection 6(1) “[e]very citizen of Canada has the right to  
enter, remain in and leave Canada” and paragraph 6(2)(b) “to pursue the gaining of a livelihood  
in any province” – “de gagner leur vie dans toute province.”  
[96] This was also taken up in Taylor v Newfoundland and Labrador, 2020 NLSC 125, a  
recent case about whether provincial governments have the legislative right to limit domestic  
travel across their borders. The alleged right at issue in this case was not the right to work or  
settle in Newfoundland and Labrador per se, but rather the right to travel to attend a family  
members funeral. Because there was no case law dealing with a similar infringement of mobility  
rights, Justice Burrage conducted a novel analysis of these rights and their application to  
interprovincial travel. He concluded that “‘the rightto remain inCanada, as embodied in  
Page: 49  
s. 6(1) of the Charter, includes the right of Canadian citizens to travel in Canada for lawful  
purposes across provincial and territorial boundaries” (para 301).  
[97] Justice Burrage also drew a difference between the “right to move” intended as mobility  
and the “right to move” intended as taking up residence. His line of reasoning on this point is  
reproduced below:  
[370] Rather, I interpret the language “to move to” as conjunctive  
with the taking up residence in any province, such that the right as  
defined is singular, the right to move to and take up residence.  
[371] Does such an interpretation mean that the language “to  
move to” is superfluous, such that s. 6(2)(a) might simply read as  
the right to “take up residence” in any province?  
[372] I do not think so, for the right is a mobility right, not a static  
right of residence. I am prepared to take judicial notice of the fact  
that from time to time Canadians change their place of residence in  
Canada. That said, this case does not concern what is meant by  
“residence”, as by any reasonable interpretation Ms. Taylor did not  
wish to come to Newfoundland and Labrador for that purpose.  
[373] I would thus interpret the right to move to and take up  
residence as the right to live anywhere in Canada and to move  
freely about the country for that purpose, subject to the limitations  
in s. 6(3).  
[374] Viewed from this perspective s. 6(2) does not encompass the  
right simpliciter of Canadian citizens and permanent residents to  
travel across provincial and territorial boundaries. As we have  
seen, that right is reserved for Canadian citizens under s. 6(1) of  
the Charter. Rather, subject to the qualifications in s. 6(3) the  
mobility rights guaranteed by s. 6(2) are those of residency and  
employment. The right to move to and live anywhere in Canada  
and the right to earn a livelihood in any province. Such an  
interpretation is in keeping with the historical purpose of s. 6(2)  
which had as its concern the economic integration of the country  
(Black, at paras. 40 and 41).  
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[98] Such a perspective of mobility rights demonstrates the importance of the facts underlying  
the issues at hand when considering mobility rights.  
[99] I will now shift my attention to the specific concerns of the current proceedings.  
(d)  
Analysis: Subsection 6(1) International mobility rights  
[100] Mr. Dulai suggests that his subsection 6(1) mobility rights have been violated by the  
Minister’s decision to deny him the ability to fly internationally. Because Mr. Dulai’s name is on  
the no-fly list, he is unable to travel to other countries by air. As previously indicated, in Canada,  
flying is currently the most popular mode of transportation to most foreign destinations, just as  
sailing used to be. The ability to travel by air has become an essential part of modern life. It is  
comparable to possessing a passport, access to which should not be interfered with lightly. To  
this effect, the Court of Appeal of Ontario, in Black v Canada (Prime Minister) (2001), 54 OR  
(3d) 215, commented that:  
[54] In todays world, the granting of a passport is not a favour  
bestowed on a citizen by the state. It is not a privilege or a luxury  
but a necessity. Possession of a passport offers citizens the  
freedom to travel and to earn a livelihood in the global economy.  
In Canada, the refusal to issue a passport brings into play Charter  
considerations; the guarantee of mobility under s. 6 and perhaps  
even the right to liberty under s. 7. In my view, the improper  
refusal of a passport should, as the English courts have held, be  
judicially reviewable.  
[101] If a passport constitutes a necessity in today’s world, it follows that the means of  
transportation to give effect to travel is as well, when alternative means available are just not  
reasonable, realistic and practical. Mr. Dulai cannot travel by air, which prevents him from  
 
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leaving the continent by plane. Since the right to leave Canada is a component of subsection  
6(1), imposing such unreasonable, unrealistic and impractical limits is an infringement on the  
international mobility right that has to be justified in accordance with section 1 of the Charter.  
Indubitably, mobility is part of the modern world and an essential component in fulfilling  
professional, personal, leisure, and family needs. Denying that these needs should be cherished  
and protected goes against basic liberties. From this perspective, the right to leave, return, and  
live in Canada encompassed in subsection 6(1) of the Charter are part of society’s fundamental  
values and must be recognized as such. I therefore find that Mr. Dulai’s subsection 6(1) rights  
have been breached.  
(e)  
Analysis: Subsections 6(2), 6(3), and 6(4) National mobility rights for  
the purpose of taking up residence in any province and to pursue the  
gaining of a livelihood in any province  
[102] Conversely, subsections 6(2), 6(3) and 6(4) of the Charter call for a different approach.  
While paragraph 6(2)(a) of the Charter (residence) is not in dispute in Mr. Dulai’s appeal,  
paragraph 6(2)(b), the right to pursue the gaining of a livelihood in any province, requires  
examination in this case. The evidence establishes that until Mr. Dulai was denied boarding on  
May 17, 2018, air travel within Canada was important for him to earn a living. Mr. Dulai chose  
to live in British Columbia and is a partner in a car rental joint venture (“Yellow Car Rental”)  
with Mr. Brar, who pioneered this type of business model near Torontos Pearson Airport.  
Because of the businesssuccess, Mr. Brar supported its extension into the British Colombian  
market, where Mr. Dulai became involved. Mr. Dulai is also a partner in “Channel Punjabi”, a  
television station that broadcasts news, music series, talk shows, religious programs, and  
comedy, among other things. Channel Punjabi has operated studios in Vancouver, Calgary,  
 
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Edmonton, and Toronto since 2015. Mr. Dulai routinely travels between provinces to tend to  
each studio, and travels abroad to cover various events (Parvkar Singh Dulai Application for  
Recourse written submissions, January 2, 2019, included in the Revised Appeal Book at p 163  
[Dulai’s submissions, Revised Appeal Book], Affidavit dated January 30, 2022 at p 4, para 29).  
[103] Since May 2018, however, Mr. Dulai has not been allowed to travel by plane within or  
outside Canada. He can still travel by car, bus, or rail, but depending on the destination, travel  
time is most likely to be much longer than if he were flying. Mr. Dulai submits the following in  
his affidavit:  
[119] Being placed on the no-fly list has had a tremendous  
physical, psychological, and financial effect on me.  
[120] In 2018, I was at the height of establishing a Punjabi-  
speaking television channel that was increasing in subscriptions  
each month, not just in Canada, but internationally. I was actively  
working to grow the studio with the aim of connecting the diaspora  
of Punjabi-speaking people across the world through celebrating  
our language and culture. I was dedicated to Channel Punjabi  
economically, but also because it allowed me to increase the  
connectedness of my community. This business venture allowed  
me to marry my economic activity with my philanthropic passion.  
[121] In 2016, I opened studios in Calgary and Edmonton. I had to  
travel from B.C. to these newly-established studios regularly. I  
usually travelled by plane because flying was much faster and  
more affordable than driving. During this time, I estimate that I  
travelled every four to six weeks so I could find events worth  
covering, work closely with each team on the ground, and promote  
a cohesive culture within the organization.  
[122] During 2016 to 2018, I was focused on business  
development. I travelled frequently to cover events across the  
country and internationally to increase viewership and  
subscriptions to the Channel. I covered Vaisakhi parades  
internationally. I covered sporting events, such as Kabaddi  
tournaments, and concerts. I was effectively looking to cover any  
event that was culturally significant.  
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[123] In early 2018, we were in the planning stage of opening a  
studio in Winnipeg. We had hired one employee and we were  
looking [to] secure office space.  
[124] In May of 2018, after I was put on the no-fly list, the newest  
studios struggled the most, especially the one in Winnipeg. It was  
not feasible for me to drive to Winnipeg, especially in the winter.  
By the winter of 2018, I had to shut down the Winnipeg studio, as  
it was struggling and losing money.  
[125] Initially, I thought that the appeal process would conclude  
quickly, and I held on to the hope of being able to fly again to  
manage the Calgary and Edmonton studios. I drove across the  
country to Toronto three times to check on the studios. The drive  
was expensive, long, and impractical. As the appeal proceedings  
continued, it became financially untenable for me to keep the  
Calgary and Edmonton studios open. By late winter of 2019, I  
closed the Calgary and Edmonton studios, suffering a major  
financial loss, as we had purchased equipment to launch these  
studios. We closed the Brampton studio in the summer of 2021.  
[126] The closing of these studios harmed me both financially and  
psychologically. I am saddened that the vision that I had for  
Channel Punjabi could not be realized due to my inability to fly  
and tend to these studios.  
[104] Though teleworking or moving to another province would offer possible limited  
solutions, they still create obstacles in the pursuit of a livelihood and they go against allowing  
Canadians and permanent residents to move freely from sea to sea, establish themselves  
wherever they choose, and work within Canada without being constrained by provincial  
boundaries.  
[105] The COVID-19 pandemic has had a significant impact on public transportation.  
Individuals and businesses have changed their ways of operating because of the necessity to  
maintain physical distance and adhere to public health regulations. As we slowly recover from a  
global health crisis, the demand for air travel is increasing, and new health measures are being  
Page: 54  
implemented to keep passengers safe. In essence, there is still a need for air travel for business  
objectives. In Black, at page 34, former Chief Justice Dickson wrote:  
What section 6(2) was intended to do was to protect the right of a  
citizen (and by extension a permanent resident) to move about the  
country, to reside where he or she wishes and to pursue his or her  
livelihood without regard to provincial boundaries.  
[106] The essence of paragraphs 6(2)(a) and 6(2)(b) is that Canadians should be treated equally  
insofar as they should have the freedom to live and work in the province or provinces of their  
choosing. Provincial boundaries are not to be used as barriers to residence or employment. As a  
result, a Canadian or permanent resident can work in one or more provinces without establishing  
residency in each. As previously said, Canada is a large country, and business travel often  
necessitates air transportation. For someone whose job entails activities in more than one  
province, the prohibition on travelling by plane can have significant impact on their capacity to  
work. The fact that Mr. Dulai’s national mobility rights do not include air travel has clearly  
hampered his ability to earn a living in provinces other than his own, as demonstrated by the  
evidence (see Mr. Dulai’s affidavit dated January 30, 2022 at pp 15-16).  
[107] I believe that travelling to and out of Canada as well as within Canada for personal or  
business purposes is not a privilege, but rather a necessity in todays world for Canadian citizens.  
Given that his name is on the no-fly list, the Appellant, a Canadian citizen, is unable to travel in a  
reasonable, realistic and practical manner in and out of Canada, or domestically for professional  
or personal reasons. He is unable to travel by air within the country to tend to his business,  
despite the fact that the right to seek a living in any province is a constitutional right under  
paragraph 6(2)(b) of the Charter. Air travel is necessary for international travel, but it is equally  
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necessary for domestic travel in a country as large as Canada. Flying has also become crucial for  
many Canadians in todays working environment, and denying the Appellant this option limits  
his ability to work. As a result, I find that Mr. Dulai’s subsection 6(2)(b) rights have been  
breached.  
[108] Given that I have found breaches of Mr. Dulais rights, I will now examine whether  
section 1 of the Charter can justify these violations.  
(2)  
Analysis: Section 1 of the Charter  
(a)  
General  
[109] Section 1 of the Charter reads as follows:  
1) The Canadian Charter of Rights and Freedoms guarantees the  
rights and freedoms set out in it subject only to such reasonable  
limits prescribed by law as can be demonstrably justified in a free  
and democratic society.  
[110] The two key components of section 1 of the Charter are that it guarantees rights and  
freedoms subject only to 1) reasonable limits prescribed by law, and 2) as long as it can be  
demonstrably justified in a free and democratic society. Chief Justice Dickson details these  
functions in Oakes:  
[63] It is important to observe at the outset that s. 1 has two  
functions: first, it constitutionally guarantees the rights and  
freedoms set out in the provisions which follow; and, second, it  
states explicitly the exclusive justificatory criteria (outside of s. 33  
of the Constitution Act, 1982) against which limitations on those  
rights and freedoms must be measured. Accordingly, any s. 1  
inquiry must be premised on an understanding that the impugned  
   
Page: 56  
limit violates constitutional rights and freedoms‑‑rights and  
freedoms which are part of the supreme law of Canada. As Wilson  
J. stated in Singh v. Minister of Employment and Immigration,  
supra, at p. 218: ... it is important to remember that the courts are  
conducting this inquiry in light of a commitment to uphold the  
rights and freedoms set out in the other sections of the Charter.”  
[111] No right is absolute. Imposing a limit on mobility rights may be justified in appropriate  
circumstances, such as a reasonable method of addressing national security concerns. Section 1  
creates a balance between individual rights and social interests by allowing limits on  
fundamental rights and freedoms, as stated in Canada (Attorney General) v JTI-Macdonald  
Corp, [2007] 2 SCR 610 [JTI-Macdonald]:  
[36] Most modern constitutions recognize that rights are not  
absolute and can be limited if this is necessary to achieve an  
important objective and if the limit is appropriately tailored, or  
proportionate.  
[112] That being said, the application of section 1 still needs to be guided by specific values  
and principles, as outlined in Oakes:  
[64] The Court must be guided by the values and principles  
essential to a free and democratic society which I believe embody,  
to name but a few, respect for the inherent dignity of the human  
person, commitment to social justice and equality, accommodation  
of a wide variety of beliefs, respect for cultural and group identity,  
and faith in social and political institutions which enhance the  
participation of individuals and groups in society.  
[113] Once a violation has been identified, as it was for both international and national mobility  
rights in this case, the burden of proof is on the Minister to justify the limits, and the applicable  
standard of proof is the civil balance of probabilities standard:  
[40] Like the House of Lords, I think it is time to say, once and for  
all in Canada, that there is only one civil standard of proof at  
Page: 57  
common law and that is proof on a balance of probabilities. Of  
course, context is all important and a judge should not be  
unmindful, where appropriate, of inherent probabilities or  
improbabilities or the seriousness of the allegations or  
consequences. However, these considerations do not change the  
standard of proof. I am of the respectful opinion that the  
alternatives I have listed above should be rejected for the reasons  
that follow. (F.H. v McDougall, 2008 SCC 53)  
[114] In order to demonstrably support the justification for the limits, the Minister may present  
an evidentiary record related to the limits imposed that are both logical and well reasoned.  
Justices Sopinka, McLachlin and Major expanded on this idea in JTI-Macdonald:  
The appropriate test in a s. 1 analysis is that found in s. 1 itself:  
whether the infringement is reasonable and demonstrably justified  
in a free and democratic society. No conflict exists between the  
words of s. 1 and the jurisprudence founded upon Oakes. The word  
demonstrablyin s. 1 is critical: the process is neither one of mere  
intuition nor of deference to Parliaments choice. While remaining  
sensitive to the social and political context of the impugned law  
and allowing for difficulties of proof inherent in that context, the  
courts must nevertheless insist that, before the state can override  
constitutional rights, there be a reasoned demonstration of the good  
which the law may achieve in relation to the seriousness of the  
infringement. (p 204)  
[115] The burden of proof first requires that the Minister show that the infringements or limits  
on the mobility rights are “prescribed by law” in that it is either express or implied in a statute or  
a regulation. Former Chief Justice McLachlin clarified this point in R v Orbanski; R v Elias,  
2005 SCC 37:  
[36] It is settled law that a prescribed limit may be implied from  
the operating requirements of a statute. In Therens, Le Dain J.  
described the meaning of the words prescribed by lawas follows  
(at p. 645):  
Page: 58  
Section 1 requires that the limit be prescribed by law, that it  
be reasonable, and that it be demonstrably justified in a free  
and democratic society. The requirement that the limit be  
prescribed by law is chiefly concerned with the distinction  
between a limit imposed by law and one that is arbitrary.  
The limit will be prescribed by law within the meaning of s.  
1 if it is expressly provided for by statute or regulation, or  
results by necessary implication from the terms of a statute  
or regulation or from its operating requirements. The limit  
may also result from the application of a common law rule.  
[Emphasis added.]  
[116] If the limits on a Charter rights are “prescribed by law”, the analysis continues by  
examining the following questions:  
1.  
2.  
Is the purpose of the law or the infringing state action sufficiently pressing and  
substantial to justify curtailing a Charter right?  
Is there proportionality between the object of the legislation or the state action and  
the means to achieve it? Proportionality is understood as having three components:  
i) Rational connection to the objective;  
ii) Minimal impairment of the right; and  
iii) Proportionality between the effects of the measure and the objective.  
[117] To conduct this analysis, I will be direct and factual, basing my answers exclusively on  
publicly accessible facts. First, it is worth noting that the SATA’s objective is obvious, clear and  
transparent, and its effects on appellants can be weighty, as mentioned several times in this  
decision.