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Bill C-51 and No Fly-lists: Still Too Dangerous to Fly Yet Too Innocent to Arrest

Part Two of the UnknownGovernment’s Anti-Terrorism legislation (C-51) comprises the Secure Air Travel Act (SATA), which formalizes the rules for the operation of Canada’s no-fly list (or the Specified Persons List).  It has not yet received much analysis in comparison with the more controversial  provisions on the new powers for CSIS, and the expansion of the information-sharing provisions, both superbly covered in the backgrounders by Craig Forcese and Ken Roach.  It has even been reported that SATA is probably the most difficult portion of the bill to dispute and oppose.   I am not so sure.

The federal government’s original no-fly list was introduced as part of the “Passenger Protect” program in 2007.  I wrote an article on the program at the time.   It allows the Minister of Public Safety to list individuals on the Specified Persons List if there are grounds to believe that they pose a threat to transportation security.  Candidates are suggested by a Specified Persons Advisory Group comprising representatives from the RCMP, the Canadian Border Services Agency (CBSA), Justice Canada, CSIS and others. The Minister of Public Safety has the final say.  The actual legal authority is provided in various provisions of the Aeronautics Act, as amended in 2004, which gives the Minister powers to respond to an “immediate threat to aviation security.”  At the time, the Canadian Information and Privacy Commissioners passed a resolution stating that the Aeronautics Act did not provide “a clear and adequate legislative framework to support the Passenger Protect program.”

Transport Canada provides the list to all airlines who are obliged to screen all passengers originating in, or destined to, Canada.   When a person’s name matches that of a specified person, the airline must inform Transport Canada. An official stands ready 24/7 to field those inquiries and recommend the appropriate action.  This could include an “emergency direction” to either prevent boarding or to subject the passenger to extra (or secondary) screening.

It was commonly reported at the time that Passenger Protect was introduced as a result of pressure from the US — a made in Canada program designed as an alternative to screening Canadian passengers against the reportedly longer no-fly list of the US government.

The program was controversial from the start, and raised a number of criticisms about its effectiveness and invasiveness.  Stories appeared about innocents being refused to fly; the group Travelwatchlist reported 100 cases of false positive matches in the first year of the program alone.  The process of redress has been lengthy and complicated.  An Office of Reconsideration was set up within Public Safety Canada to “provide you with information to allow you to be reasonably informed of the reasons for your specification, taking into consideration the obligation to protect sensitive information.”  But this office is advisory, at best, and was never intended to be an effective method of redress.   The lengthy and highly publicized case of Hani Al Telbani, reportedly the first individual to be denied boarding as a result of the no-fly list program, brought sharply into focus the difficulty of determining the criteria for determining whether someone is an “immediate threat to aviation security” and highlighted the extraordinary measures necessary to remove one’s name from the list.

SATA does place the program on a firmer statutory footing.  Section 8.1 states: “The Minister may establish a list on which is placed the given name, the surname, any known alias, the date of birth and the gender of any person who the Minister has reasonable grounds to suspect will:  (a) engage or attempt to engage in an act that would threaten transportation security; or (b) travel by air for the purpose of committing an act or omission that …is an offence under Section 83.18, 83.19 or 83.2 of the Criminal Code…”   The long list of terrorist offences in 83.18 begins:   Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity. The offence is committed whether or not the terrorist group actually engages in a terrorist act or activity, whether or not the individual actually does contribute to the terrorist group, and whether or not they realize they are doing so.

Passenger Protect was a response at the time to the assumption that the most prominent terrorist threat was against air travel. Ostensibly the government intends this expansion to prevent a growing number of individuals who travel from Canada to engage in terrorist activity, particularly in Iraq and Syria, whether or not they intend to do harm to the aircraft.   So the list will get bigger.

C-51 also extends the time during which the list has to be reviewed, to every 90 days; at the moment, the Minister or his delegate reviews decisions every 30 days, and Transport Canada also provides an updated list to airlines every thirty days.  SATA also gives the Minister some extraordinary powers to direct air carriers to prevent a listed person from flying and to disclose information obtained in the exercise of these powers. He may also enter a written arrangement to disclose the list to the government of a foreign state or to an international organization.  He may demand information from airlines and air reservation systems related to a listed person.

The agencies that will cooperate with the Minister in the administration of the list is different in one critical respect.  In addition to  Transport, RCMP, CSIS, CBSA and any other person or entity prescribed by regulation, is added Citizenship and Immigration.   It is not clear whether the same Specified Persons Advisory Group will continue in its current form.

It is also not clear whether the Office of Reconsideration will continue under SATA. The Transport Canada website indicates that the Office is no longer reviewing decisions related to the Passenger Protect program.   All the Bill says is that a listed person who has been denied transportation may apply to the Minister within 60 days, and should then decide whether there are still reasonable grounds to keep the person’s name on the list.   But if the Minister does not make a decision within a 90 days, the Minister is deemed to have decided not to remove the applicant’s name from the list.   And bear in mind, the name might already have been circulated to domestic and foreign agencies.

Any appeal of the Minister’s decision (or non-decision) may appeal to a federal judge.  But it is not sufficient to demonstrate that the Minister was wrong, but also that he acted “unreasonably.”  The judge must at any time, and on the request of the Minister, hear information in the absence of the public and the appellant if its disclosure could be injurious to national security or endanger the safety of any person.   The judge may, therefore, base his entire decision on evidence that was presented in the absence of the individual and counsel.     The process is similar to the security certificate regime under the Immigration and Refugee Protection Act, with serious implications for Section 7 Charter Rights, according to Clayton Ruby and Nader Hasan.

And the system will continue to be shrouded in secrecy.  The numbers of individuals on the list will continue to me a mystery; the government resisted an access to information request in 2014, citing national security and relations with foreign governments as the reasons why the actual numbers could never be revealed.  C-51 also codifies existing practice of refusing to disclose to the individual whether he/she is a listed person.  And that prohibition extends to the air carriers and reservations systems as well.

The global reach of this program also requires recognition.   The Minister of Transport may disclose this list “to air carriers and operators of aviation reservation systems” and “collect from air carriers and operators of aviation reservations systems any information.. that relates to a listed person” (Secs. 13a and b).   In order to thwart the ability of terrorists to fly from, and to, Canada, this power allows the Minister to share the list with any air carrier.   Furthermore, the power also extends to airline reservation systems, presumably signalling that the government wishes to be alerted when a listed person reserves a flight, and not just when that person shows up at an airport to board an aircraft.  We reserve our air travel through multiple means these days:  through Global Distribution Systems like Sabre or Galileo (used by travel agencies), through online systems like Expedia or Travelocity, through the airlines themselves, and through frequent flyer programs.

So this is not just about providing the list to Air Canada agents in Toronto, Montreal and Vancouver.  For the program to work, and to really deny travel to those who would be a terrorist threat to Canada, it must first accurately identify individuals according to the legislative criteria, but the list must also be shared with any airline, or reservation system, through which a terrorist might seek to fly to and from Canada.   And that could be anywhere in the world.

So, in summary, the Secure Air Travel Act codifies what may seem like a deceptively simple idea to strangle the ability of terrorists, and those who support terrorists, from travelling by air.  On the other hand, the list is going to get longer; it is going to be shared with more public and private agencies (domestic and foreign); the chances of the capture of erroneous, incomplete or obsolete information will be multiplied; the number of false-positive hits is likely to increase; and the process for innocents to seek removal and redress is likely to become more lengthy, costly and onerous.

And the program still rests on a very uneasy logic — no fly lists identify people who are too dangerous to fly, but not dangerous enough to arrest.  Along with the rest of Bill C-51, the Secure Travel Act deserves very careful scrutiny in Parliamentary committee.