Pair on no-fly list lose appeal, court sees ‘reasonable grounds’ for terror concern

The Federal Court of Appeal has thrown out a bid by two men to get off the country’s no-fly list after they weren’t allowed to board planes in Vancouver in 2018, with the court ruling there were grounds to suspect they would commit terrorism.

In a ruling this week, the court dismissed an appeal by Bhagat Singh Brar and Parvkar Singh Dulai after they lost a constitutional challenge of their no-fly designations under Canada’s Secure Air Travel Act.

The ruling says the act empowers the public safety minister to ban people from flying if there are “reasonable grounds to suspect they will threaten transportation security or travel by air to commit a terrorism offence.”

Under the Secure Air Travel Act, the minister can direct an airline to order an “enhanced security screening” of a listed individual or “prohibit the person from flying,” the ruling says.

“At some point, the appellants tried to fly. They could not,” the ruling says. “They were on the list and the minister had directed that they not fly.”

The appellate panel found that based on confidential security information, the minister “had reasonable grounds to suspect that the appellants would travel by air to commit a terrorism offence.”

In 2019, Brar and Dulai went to the Federal Court of Canada to have their names struck from the list.

But Justice Simon Noel ruled against them both in 2022. The limits imposed on Dulai, he ruled, “were the result of evidence-based suspicions that he could fly abroad in order to plot a terrorist attack.”

“The Government of Canada must enact laws that protect national security and intelligence activities in a way that respects rights and freedoms and encourage the international community to do the same,” Noel ruled. “Protecting national security is a pressing and substantial objective.”

In their appeal, both Brar and Dulai argued the impairment of their rights as a result of being placed on the list was not “minimal” and therefore unjustified.

But the appellate court ruled the legislation was justified and that confidential portions of the court process were procedurally fair.

The Secure Air Travel Act deals with “national security, international relations and global co-operation to prevent terrorism” and is “not directed to past events that are tangible, certain and known,” the appellate court found.

“Rather, it is forward-looking, designed to act preventively, pro-actively and pre-emptively to deal with perhaps imprecise but nevertheless very real risks of harm to property, public safety and human life,” the ruling says. “Several of its features show careful tailoring to minimize the impairment of rights and freedoms.”

Judge David Stratas, who wrote for the three-judge panel, says while the courts need to protect rights, the stakes for government are “sky-high” for security and terrorism prevention, which warrants giving Parliament “some leeway.”

Lawyers for Brar and Dulai did not immediately respond to requests for comment on the court’s ruling.

In 2019 submissions to the Senate Standing Committee on National Security and Defence, the Canadian Civil Liberties Association warned of a “dangerous lack of due process” baked into the Secure Air Travel Act’s appeal framework.

In its submission, the association said the act sets the standard “low” for the minister to add someone to the no-fly list, and their ability to challenge the listing is “defective.”

“Proceedings may take place in secret, appellants are only provided a discretionary summary of the intelligence and evidence used against them (which may include hearsay), and the judge is empowered to rely on evidence and information which has not been provided in that summary,” the association said. “The appellant’s right to be heard is not meaningful if she or he does not know the case to meet.”