July 2008: A Denial of Fundamental Justice

Conservatives’ no-fly list violates rights, rule of law
July 1, 2008

Since September 11, 2001, both Liberal and Conservative governments have introduced a vast array of measures that they claim are needed to combat terrorism. Some are enacted through laws such as the Public Safety Act and the Anti-Terrorism Act. Many others have come into being through bilateral agreements with the United States, such as the Smart Border Declaration and Action Plan, and the Safe Third Country Agreement.

These measures, which dramatically expand state power at the expense of our deeply held rights and freedoms and the rule of law, were not needed to deal with a genuine security threat. They were introduced mainly in response to U.S. government intimidation to bring Canadian security measures into line with draconian U.S. practices, and from Canadian business wanting to “do what it takes” to keep trade flowing across the border. (This harmonization process continues under the North American Security and Prosperity Partnership.)

Canada’s no fly-list, introduced by the Conservative government on June 18, 2007, is an example of the high price Canadians are paying in terms of state erosion of the rights and freedoms guaranteed under the Charter of Rights and Freedoms. The Charter is a cornerstone of our legal system and operates to protect citizens from unjustified intrusions by government. Charter rights include mobility rights (section 6 of the Charter), due process rights (section 7), rights to be free from unreasonable search and seizure (section 8) and equality rights (section 15).

The no-fly list is part of a federal initiative known as the Passenger Protect Program. It operates like a restraining order, preventing people on the list from boarding an aircraft. While restraining orders against individuals are normally issued by judges after a hearing, this is not the case with the no-fly list. Instead, the Minister of Transport, on the recommendation of a committee of three bureaucrats from Transport Canada, CSIS, and the RCMP (based on information provided by the RCMP and CSIS), decides who will be on the list. This decision is made behind closed doors, with affected individuals having no opportunity to challenge the decision adding them to the list.

Federal guidelines exist to help determine who should be listed, but they are vague and subjective. For example, according to the Transport Canada backgrounder, a person may be on the list “who is or has been involved in a terrorist group and who, it can reasonably be suspected, will endanger the security of any aircraft or airport, or the safety of the public, passengers, or crew members.”

At first glance, the guidelines may seem reasonable. But a closer look raises serious concerns, particularly since the list is secret and not subject to any independent scrutiny.

First, one need not be charged with, or convicted of, any offence to be put on the list. Mere “involvement” with a group defined in the Criminal Code as “terrorist” is sufficient. This definition of “terrorist group” has been widely criticized, including by the Canadian Bar Association, as being vague and broad enough to capture charitable organizations with no direct or indirect connection to terrorist activities.

Second, there is a risk that the information from the RCMP and CSIS used to list people may be unreliable, even misleading. We know from the Arar Commission of Inquiry, for example, that the RCMP passed on inaccurate information to U.S. authorities, information that wrongly portrayed Arar as a terrorist suspect. The U.S. later shipped him to Syria, where he was imprisoned and tortured.

Arar is not the only Canadian to have suffered this fate. The Iacobucci Commission is currently investigating the conduct of Canadian officials in the cases of three other Muslim men imprisoned and tortured in Syria: Abdullah Almalki, Muayed Nureddin, Ahmed El Maati. (Their stories are told in Dark Days, by Kerry Pither, to be published this fall by Penguin.)

Third, the standard for deciding if someone will endanger aviation safety is disturbingly low--that of suspicion, instead of the higher standard of reasonable belief, which requires solid evidence.

The consequences of being on the no-fly list could be serious, even deadly. What if, for example, the list is shared with other countries, including those who torture? Brion Brandt, Transport Canada’s director of security policy, testified before the Air India inquiry that once the names on the list are given to the private airlines, there is no way to prevent the airlines from passing them on to foreign governments.

A June, 2007 resolution adopted by Canada’s Privacy Commissioners and Privacy Enforcement Officials reinforces this concern. The resolution states: “It is alarming that Transport Canada has not provided assurances that the names of individuals identified on the no-fly list will not be shared with other countries. We do not want to see, through the failure to take adequate safeguards, other tragic situations arise where the security of Canadian citizens may be affected or compromised by security forces at home or abroad.”

The no-fly list is the “trigger” that may prevent someone from flying. All airline passengers in Canada are automatically screened against the list before being issued a boarding pass. In the event of a possible match, airlines must contact Transport Canada for a decision on whether to issue an emergency direction barring the person on the list from flying. If barred from flying, the individual is grounded and the airport or local police notified. Detention could follow, and with it anxiety and stress. Unable to fly, the person’s ability to earn a living may be jeopardized, not to mention the increased hardship in visiting family and friends.

The no-fly list violates fundamental rights, such as due process rights under section 7 of the Charter. Section 7 guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. If the state, through its officials, deprives us of our liberty by detaining us, or deprives us of our security by putting our names on secret lists and using secret information about us, then fundamental justice requires that we be told the basis for the allegations against us. It also requires that we have an opportunity for some type of hearing, by an impartial body, to challenge the actions of the state.

There is no fundamental justice in the case of the no-fly list. Individuals are listed with no notice and no opportunity for a hearing. If names on the list are shared with other countries, individuals could face deportation and detention as a result, and never know why. Admittedly, individuals whose rights have been thus violated can seek a review of their inclusion on the no-fly list through Transport Canada’s Office of Reconsideration, but this is not an independent review. And the Office can only recommend. The ultimate decision-maker is the Minister of Transport, who had the person’s name put on the list in the first place.

The no-fly list impacts other Charter rights. Mobility rights, including the right to move anywhere in Canada, will be affected if those on the list are prevented from flying. Privacy rights may also be affected in violation of section 8 of the Charter if an individual’s personal information is searched, seized, and possibly shared with other countries.

The list may also be a form of racial or religious profiling that would violate Charter equality rights; but this would be difficult to prove given that the list is secret.

The rule of law, a principle of fundamental justice central to our democracy, requires that any state action limiting rights must be authorized by law. This same principle is embodied in section 1 of the Charter. If a state measure is shown to violate a Charter right, the state then has the burden of showing that there is lawful authority for the measure.

Transport Canada argues that the Aeronautics Act and Identity Screening Regulations provide authority for the no-fly list, but Canada’s Privacy Commissioners disagree. They argue in their June 2007 resolution that there is no clear or adequate legislative framework to support the list. The Conservative government could have provided such a framework by proposing changes to the Aeronautics Act that would have to be debated in the House of Commons and subject to public scrutiny. Instead, like so many of the security initiatives introduced post-9/11, the no-fly list came into effect through the back door, with no opportunity for the discussion and debate that are so essential in any democracy.

Other criteria must be met by governments wanting to defend rights’ violations under the Charter. First, they have to show some compelling justification for such rights’ infringements. Second, they have to show that the measures they have adopted are carefully tailored to minimize any Charter violations. These criteria cannot be met in the case of the no-fly list. As the British Columbia Civil Liberties Association states in its position paper on the list: “There is no compelling justification presented for the use of no-fly lists and no aspect of such lists is benign.”

If the Conservative government was concerned about preventing terrorists and others from endangering aviation, they didn’t need a no-fly list to achieve this result. The Aeronautics Act already contained provisions to prevent persons believed to pose an immediate threat to airline security from boarding a plane.

There is no evidence that no-fly lists make us safer. The U.S. list, originally intended to be narrowly focused, has ballooned, with estimates of the current number of names ranging from 30,000 to 120,000. Names on the list include prominent public figures such as Nelson Mandela and Bolivian President Evo Morales. Many people have also been stopped from flying simply for having names that were the same or similar to those on the list. For example, U.S. Senator Edward Kennedy has repeatedly had problems boarding flights because his name apparently corresponds to a “T. Kennedy” on the list.

To date, no terrorists have been apprehended through use of the U.S. list. The CBS show Sixty Minutes spent months with Joe Trento of the National Security News Service, going over names on the U.S. no-fly list. Trento--asked about the quality of information that the U.S. Transportation Security Agency gets from the CIA and the FBI in order to compile the list—says: “Well, you know about our intelligence before we went to war in Iraq. You know what that was like. Not too good... This is much worse. It’s awful, it’s bad. I mean, you’ve got people who are dead on the list. You’ve got people you know are 80 years old on the list. It makes no sense.”

The Canadian no-fly list (believed to be in the low thousands) is also fallible. Canadian Press reporter Jim Bronskill (April 19, 2008) was told by Transport Canada that it had received about 50 calls from passengers whose names turned up on the list, but all were false matches. A case in point is that of two Canadian boys both named Alistair Butt. Shortly after no-fly came into effect, a 10-year-old from Saskatchewan and a 15-year-old from Ontario were stopped while trying to board flights. It appears that their names matched a name on the no-fly list. After long delays, the boys were allowed to board; but their families fear they will face the same problem every time they try to fly. Transport Canada would not confirm whether the boys were on the Canadian list, an airline no-fly list, or the U.S. no-fly list.

U.S. Homeland Security Secretary Michael Chertoff has called for the U.S. and Canadian no-fly lists to be merged. (Even though the U.S. still refuses to remove Maher Arar’s name from its list despite repeated requests from the Canadian government to do so.)

In the meantime, the U.S. is in the process of expanding its own no-fly list with a new system called Secure Flight. Under this program, the U.S. will not only vet passengers against watch-lists, but will also conduct routine background checks on all passengers. All airlines with international flights leaving from, flying to, or even flying over the U.S. (to Latin America), will have to hand over to Homeland Security passenger and crew manifest data, as well as the much more detailed and intrusive Passenger Name Recognition information (PNR). The Canadian government has requested a total exemption from the Secure Flight program, but it is not known whether this request has been granted.

How does the Conservative government defend intrusive measures such as the no-fly list? It does so by trying to use the Charter of Rights and Freedoms as its shield. In a written reply to questions about the list from NDP MP Peter Julian, Minister of Transport Lawrence Cannon said the government, by preventing passengers who “may” be a threat from boarding aircraft, is fulfilling a duty under section 7 of the Charter to protect the right to life and personal security of the crew and other passengers.

According to human rights lawyers, however, Cannon has it wrong. Section 7 exists to protect us from unwarranted government intrusions.

Canada has laws such as the Criminal Code, as well as police and security agents, to protect our security. The government does have a legitimate role to play in aviation security, too, but the Charter does not authorize it to trample on our human rights in so doing. Intrusive and unreasonable state actions run directly contrary to the purpose of the Charter. Either the Minister of Transport is ignorant of the law or he is suggesting that the actions of the Conservative government are above the law. In either case, citizens concerned about these most treasured Canadian values should be outraged.

(Bruce Campbell is the CCPA’s executive director.)