Listings Under the Secure Air Travel Act
Date: July 8, 2020
Classification: Unclassified
Fully releasable (ATIP)? Yes
Branch / Agency: National Security Policy Directorate, Public Safety Canada
Issue:
On June 30, 2020, the Federal Court rendered a decision on two appeals concerning four preliminary legal questions related to listings under the Secure Air Travel Act. The decision was made as part of two ongoing cases by individuals who are challenging, not only their status as a listed person, but the constitutionality of the Act itself.
Proposed Response:
- The Secure Air Travel Act (SATA) list is an important tool in Canada’s national security framework and addresses the continued threat of individuals who attempt to travel by air to engage in terrorism-related offences, either domestically or abroad.
- The Government of Canada is unable to comment on the specifics of the case currently before the Federal Court at this time.
Background:
- In accordance with the SATA, the Minister of Public Safety and Emergency Preparedness may establish a list of any person if the Minister has reasonable grounds to suspect that the person will:
- engage, or attempt to engage, in an act that would threaten transportation security; or
- travel by air for the purpose of committing a terrorism offence under the Criminal Code.
- The SATA list is managed by Public Safety’s Passenger Protect Program (PPP) in cooperation with Transport Canada and several other federal departments and agencies. The list may be used to apply additional screening measures, or to deny boarding, of passengers who pose a threat to national security.
- Through Transport Canada, Public Safety Canada shares the SATA list with air carriers operating flights to, from and within Canada. Air carriers screen all passengers against the SATA list before a boarding pass is issued. At the same time, air carriers also screen passengers against other security lists including their own or those belonging to other countries.
- Under SATA, a listed person who has been denied transportation may appeal to a judge who may then determine that the decision was unreasonable and order that the Appellant’s name be removed from the list.
- There are several cases currently before the Courts where Appellants are appealing their status as a SATA-listed individual. In addition, the constitutionality of the SATA itself is also being challenged
Current Issue
- On June 30, the Federal Court rendered a decision with respect to four questions involving two ongoing cases by individuals who are appealing their status as a listed person as well as the constitutionality of the SATA list itself:
- The role of the designated judge in SATA appeals is that of a robust and interventionist “gatekeeper” throughout all of the proceedings given the limits on the appellant’s full participation and disclosure.
- The role of the Amicus Curiae in the appeal process is to assist the Court by ‘representing the interests’ of the Appellants during the ex parte and in camera portions of the appeals and that the amicus curiaehave the power to cross-examine witnesses, but not without limit.
- Information withdrawn from the appeal book by the Respondent, and the reasons for its withdrawal, must be provided to the designated judge and the Amicus Curiae.
- Ex parte and in camera hearings are called for in appeals under SATA.
- Due to the classified nature of the on-going case before the Courts, the Government of Canada is unable to comment on the specifics surrounding the status of individuals.
Contacts:
Prepared by: [Redacted], Manager Passenger Protect Program Office, [Redacted]
Approved by: Dominic Rochon, Senior Assistant Deputy Minister, 613-990-4976.
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