Opinion

Secret Bans, Secret Trials: The Canadian ‘No-Fly’ Lists

First in a series to help you participate in the federal consultation on national security.

By Micheal Vonn 22 Sep 2016 | TheTyee.ca

[Editor's note: The federal government’s consultation on national security provides a rare opportunity for Canadians to weigh in on critical issues like Bill C-51.

The government has released a Green Paper backgrounder to shape the consultations. But the B.C. Civil Liberties Association notes that “in the main, it reads like it was drafted by a public relations firm tasked with selling the current state of extraordinary, unaccountable powers and if anything, laying the groundwork for extending those even further.” 

In response, the association has prepared its own series of Green Papers to help you consider an online submission to the national security consultation before the Dec.1 deadline. The Tyee is pleased to re-publish the series with permission from the BCCLA.]

The Conservatives’ Anti-Terrorism Act (Bill C-51) passed last year brought in the Secure Air Travel Act, which modifies the Canadian “no-fly” scheme (the Passenger Protect Program) to be more like the U.S. model. 

People on one of the lists are not permitted to board airplanes (“no-fly”). People on another list are subjected to additional security scrutiny when they try to board airplanes (“slow fly”).

The minister of public safety establishes the lists. An individual can be put on the no-fly list if the minister has reasonable grounds to believe she will:

(a) Engage or attempt to engage in an act that would threaten transportation security; or

Travel by air for the purposes of committing certain terrorism offences as outlined in the Criminal Code.

Instead of reviewing the lists every 30 days, as required by the former system, the minister now only has to review it every 90 days to determine if everyone listed continues to meet the criteria for listing.

So, am I on the lists?

Under the new law it is illegal to tell an individual if they are on the no-fly list or not. If you are denied boarding or delayed in security, neither the government nor the airline can confirm or deny listing. Your only recourse is to apply in writing for a delisting. You will make this application not knowing whether you are, in fact, on the list or the reasons you were denied boarding.

The minister has up to 90 days to make a decision on a delisting application. If no decision is made and three months simply go by, you are deemed to have been denied delisting. In other words, if the minister simply ignores your application for three months, your listing remains valid. 

At this point many people will already have suffered negative consequences that could include lost employment and education opportunities that required them to travel or the potentially perilous situation of having been denied boarding and prevented from returning home from abroad. Being trapped in a dangerous situation abroad didn’t make it into the government’s Green Paper, but it is a very real possibility.

Secret list, secret evidence, secret trial

Nevertheless, it is only at this point that you can go to court to ask a judge to review the minister’s refusal to delist you. This is called a judicial review process. It is only once this process is under way that the government lawyers present the court with information relevant to the listing.

But you have no access to this information. At best, you might get a summary of reasons for listing, but the underlying evidence can be withheld on national security grounds. 

Under the act, the summary of reasons need not be complete, and a judge may rely on information supplied by the government even if no summary of that information has been provided to you. There is no requirement that exculpatory information be provided to the judge for consideration.

Finally, if the minister requests it, the hearing of the appeal must be held in secret, with neither you nor your lawyer permitted to attend. 

If you are on the “slow-fly” list there is no recourse except through requesting the assistance of the newly created Passenger Protect Inquiries Office, which is supposed to identify your problem and suggest what you might do next. It is unclear what such suggestions might consist of. The government says it is considering changing the law to give some kind of redress to people who may be mistakenly listed, for example the growing number of Muslim children in Canada who have been prevented from or delayed in boarding flights. So far, there is an office to provide assistance, but no clear notion of what assistance it can provide.

While it is next to impossible for you to be permitted access relating to your own listing, the act allows your listing to be shared with foreign governments, with no statutory limits on how that information can be used by the foreign state.

Canadian courts have recognized “security-watch listing” as Kafkaesque, something Canadians such as Abousfian Abdelrazik know only too well. Following his imprisonment in Sudan, the Canadian government would not grant him travel papers and otherwise blocked his return to Canada. He wound up on a United Nations no-fly list while he was outside Canada, and his lawyers spent more than a year in court before he was allowed to return home. The UN subsequently “delisted” him without giving any real reasons. Secret criteria, secret processes — all a violation of fundamental fairness with genuine and serious consequences for the people caught in the web.

Security benefit? None/unknown. There is no evidence that no-fly schemes improve aviation safety. Travellers on these lists are deemed too dangerous to fly, and yet too harmless to arrest. They are restricted from boarding aircraft, but not trains, ferries, subways, or buses. Think about it — supposedly too dangerous to fly, but not too dangerous to go the mall, walk into a school, go to a hockey arena? There is simply no logic to the program. We have other means of keeping suspected terrorists off airplanes.

Rights concerns? Security watch listing is inherently problematic because it is based on secret information and allegations against individuals that — being secret — are nearly impossible for any individual to challenge. The new scheme provides for an appalling and probably unconstitutional lack of due process for people listed. There is no timely and appropriate mechanism for appeal of the minister’s secret decision.

Dangers? We say that Canada’s experience with mistakenly labelling individuals as security threats and providing that misinformation to foreign governments should counsel against such carte-blanche approaches to foreign information sharing.

Because the scheme being proposed so closely resembles the U.S. regime, we have lessons that can be learned from their experience. We know the U.S. scheme is frequently used to pressure listed individuals to become informants for security agencies. As the American Civil Liberties Union reported, FBI agents have been offering to remove individuals from the U.S. no-fly list in exchange for serving as informants in their communities.

A tactic employed is to wait until the targeted person is out of the country to add them to the no-fly list so that they are prevented from returning to their home and listed as a national security threat in the country they have travelled to.

The assumption is clearly that these people are not genuine security threats or suspected terrorists. Thus, the concern is that such regimes are not only seriously flawed from the perspective of due process, but that such blacklisting may not be about keeping the skies safe at all. Nothing in the Canadian system, deeply mired in secrecy, protects the public from such abuses.

Bottom line: The changes we need

Canada should repeal the Secure Air Travel Act and keep suspected terrorists away from airplanes using the existing tools under the criminal law.

If law enforcement agencies have enough information to determine that an individual poses a threat to aviation safety, or that they are planning to board a plane in order to commit a terrorism offence, they are also likely to have enough information to:

Seek a recognizance order with conditions;

Lay charges (recall, conspiracy to commit, or attempting to commit terrorism offences are themselves crimes); or

Seek a court order for the imposition of a travel ban.

It is not the case that there may never be justification for preventing someone from boarding a plane. The question is, how — and on what grounds — is this to be done? We say the tools of the existing criminal law are best suited to protecting both public safety and individuals’ security.  [Tyee]

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