Court rejects challenge of ‘no-fly list’ by suspected Sikh extremists

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OTTAWA — The federal government’s no-fly list survived another constitutional challenge as an appeal court upheld a decision that two suspected Khalistani extremists should be barred from flying because there were reasonable grounds to suspect they would commit a terrorism offence.

Writing on behalf of a unanimous panel of three judges, Federal Court of Appeal Justice David Stratas ruled Wednesday that Canadian residents Bhagat Singh Brar and Parvkar Singh Dulai, both Sikhs, had their Charter rights breached when they were added to the Secure Air Travel Act’s (SATA) no-fly list in 2018.

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Stratas said the balance of rights fell “decidedly” in favour of keeping the men on the no-fly list in light of “the international fight against terrorism and the imperatives of public safety.”

Stratas agreed with a 2022 Federal Court ruling that there were reasonable grounds to suspect Brar and Dulai might travel by air to commit a terrorism offence abroad. He noted their explanations in response to the government’s evidence were “not credible”.

“Looking at all the evidence, close this case was not,” Stratas wrote, employing a turn of phrase he notably used last year when rejecting a bid to block the Rogers-Shaw merger.

“The deleterious effects” of being placed on the SATA list “are relatively few, ranging from the potential of enhanced screening to a flying ban” that may be brief or temporary, the judge wrote.

They also “pale next to the need to prevent domestic and international terrorism, and the destruction, butchery and carnage wrought by it,” he added.

The FCA ruling upholds a series of 2022 Federal Court rulings by now-retired Justice Simon Noel that struck down Brar’s and Dulai’s constitutional challenge of the no-fly list they have been on since 2018, alleging it breached their Charter rights.

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In his comprehensive rulings that relied partly on classified information, Noel found there were reasonable grounds to suspect both men risked participating or facilitating a terrorist offence in India if they got on a plane.

The ruling said the Canadian government suspected both Brar and Dulai had ties to Sikh extremism and are “very vocal” supporters of Khalistan, a Sikh separatist movement seeking to create a homeland for Sikhs in India.

They both denied all the government allegations, including those contained in Canadian Security and Intelligence Service (CSIS) assessments.

Neither Brar nor Dulai’s lawyers responded to requests for comment by deadline.

Part of Federal Court’s public evidence noted Brar was suspected to be a “Canada-based Sikh extremist” who continued to participate in terrorist activities that include “fundraising in support of terrorist attacks overseas” and “promoting extremism” in the goal of achieving Khalistan independence in India.

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He is also the son of a former leader of the International Sikh Youth Federation, a designated terrorist organization in Canada.

Noel also considered an allegation that Brar and another Canadian resident, Gurjeet Singh Cheema, “had been planning an India-based terrorist attack” in his decision to maintain Brar on the list.

“Most specifically, it was revealed that during his visit to Pakistan in 2015, Brar planned for the attack on the behest of the Pakistan Inter-Services Intelligence Directorate (Pak ISI), and his job was to make available arms and ammunitions in India,” Noel wrote.

Dulai was described as a “suspected facilitator of terrorist-related activities” who showed an “ongoing pattern” of involvement with Sikh extremists. He is described as organizing a parade that included a tribute to a man involved in the 1985 Air India bombing that killed 329 people.

In Wednesday’s ruling, Stratas said lawyers were right not to try to argue that Noel had committed an error when he concluded that Brar’s and Dulai’s justifications in response to the government’s concerns were “not credible” and that the evidence to maintain them on the no-fly list was “sufficient in quality and quantity.”

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The ruling does not specify if either man is still barred from flying. In the FCA hearing last week, Brar’s lawyer said his client had been barred from boarding domestic flights since Noel’s 2022 ruling.

What is known as the no-fly under the SATA in fact comprises a range of measures from additional screening to a prohibition from boarding a plane.

Individuals are not advised they are on the list. Instead, they will find out when trying to board a plane or going through airport security. The evidence supporting their presence on the list is reassessed by the government every 90 days.

Sikh-Canadians have frequently complained that Indian Prime Minister Narendra Modi’s government conducts foreign interference campaigns against them that include espionage, disinformation and intimidation.

Last year, Indian media reported that Brar and Dulai featured on a list of suspected Khalistani extremists that Indian officials handed over to Prime Minister Justin Trudeau during his 2018 trip to India.

Sikh-Canadian Hardeep Singh Nijjar also featured on the list. Nijjar was gunned down in the parking lot of a temple in Surrey, B.C., last year.

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Nijjar’s death has sparked tensions between Canada and India, with Trudeau saying credible intelligence linked the killing to India’s government, while Indian officials denied involvement. Police recently arrested four individuals suspected to be linked to Nijjar’s death.

— With additional reporting by Adrian Humphreys and the Canadian Press.

cnardi@postmedia.com

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