Posted: Wednesday, 25 July 2007

A list of persons banned from boarding flights is one of the measures implemented in the United States after September 11, 2001. On June 18th, 2007 the Canadian government created its own version of a no fly list, calling the initiative a Passenger Protect Program.

The Canadian program though simple in design, is filled with potential human rights and civil liberties violations; threatens the privacy rights of Canadian residents; seriously obstructs people’s right to free movement across this country; and obligates airline workers to comply with a poor processes that will single out some travellers without reasonable grounds. Ironically the initiative also fails to truly protect airline travelers.
How does the program work?

A small group of individuals including the Minister of Transportation, representatives from the Royal Canadian Mounted Police (RCMP), Canadian Security Intelligence Service (CSIS) and the Justice Department prepare a list of specified persons they suspect may be a threat to aviation security. Once an individual’s name is placed on the Canadian list, they will be prevented from boarding an aircraft departing from any Canadian airport.

The information used by CSIS and the RCMP to identify individuals for the list can come from a foreign or multilateral intelligence or law enforcement agency, such as INTERPOL or the Transportation Security Administration (TSA) which is responsible for the no-fly list in the United States. Approximately 44,000 people are on the U.S. no-fly list.
Problems with the program:

According to a report from the US Government Accountability Office [the equivalent of our Office of the Auditor General], more than 30,000 travellers have already been falsely associated with terrorism as they crossed the border, took a plane or were arrested for a traffic offence.

Did you know?

Eva Morales (president of Bolivia), Nabih Berri (speaker of the Lebanese parliament) and the singer Yusuf Islam (formerly known as Cat Stevens) are all on the U.S. no-fly list.

The US list contains names as common as “R. Johnson” and “T. Kennedy” that correspond to dozens of individuals and that U.S. Senator Edward Kennedy has repeatedly had problems boarding flights.

In January 2006, an Air Transat flight to Mexico was intercepted by U.S. fighter planes because it was carrying a Canadian citizen of Lebanese origin who was on the U.S. no-fly list.

Maher Arar and his entire family still can’t travel to the United States because they are on the U.S. No Fly list.

Two Canadian boys with same name land on no-fly list

Shortly after the program began in Canada, mistakes appeared. Two young boys unrelated and living in different provinces but with the same last name, one a 10-year old and the other a 15-year old were each told they could not board their flights along with their family members, because their names were on a no fly list.

This case exposes a major flaw the Passenger Protect Program. Specified persons identities are supposed to be verified by their name, gender and birth date to avoid false positives or be confused with persons with same names.

Airline officials suggested to the parents they may want to consider changing their child’s name to avoid future problems.

The criteria used to get on Canada’s no fly list are three-fold.

i) Are currently or have been involved in a terrorist group and are suspected of being capable of endangering airline security;

ii) Being convicted of a prior life-threatening crime involving aviation security;

iii) Been convicted of any life threatening offences and is suspected may harm aviation carriers.

The criteria for specifying an individual are disturbing.

These criteria are a significant move away from the legal principle of reasonable grounds now required by the Canadian Criminal Code for arresting someone. In addition, the threat assessments done by the RCMP and CSIS in the case of Maher Arar demonstrated how erroneous the consequences can be, when security services are able to rely on their suspicions rather than solid evidence.

The first criterion: “An individual who is or has been involved in a terrorist group, and who, it can reasonably be suspected, will endanger airline security…” is particularly alarming. The definition of terrorist activity in the Criminal Code is the one introduced by the Anti-Terrorism Act.

This definition is so vague it can include forms of dissent that have nothing to do with what is normally meant by terrorism. For example union activism such as strike actions or civil society protests such as participating in non-violent blockades could be interpreted under the act as actions that threaten “economic security”.

In addition the criterion does not say that an individual must have been found guilty of having committed a terrorist act. It is enough that intelligence services consider that he or she “is or has been involved in a terrorist group” and that, in their opinion, “it can reasonably be suspected, [he or she] will endanger….”
Lists threaten privacy rights

The Federal Privacy Commissioner and all the provincial and territorial privacy guardians have publicly called for the suspension of this program.

All of Canada’s privacy officials said in June 2007, “The Passenger Protect Program involves the secretive use of personal information in a way that will profoundly impact privacy and other related human rights such as freedom of association and expression and the right to mobility,”

“We are particularly troubled that Canadians will not have legally enforceable rights of appeal, to independent adjudication or to compensation for out-of-pocket expenses or other damages.

Commissioners and ombudsmen are unanimously of the view that the use of such lists in the interests of airline security should only occur in a manner consistent with Canadian values in the area of privacy protection.”

What happens at the airport?

Specified persons will not be notified that their names are on the list. Air carriers will be obliged to check and compare the names of all persons who look 12 years of age or older [the legal definition of an adult] with the governments no-fly list. If the person’s name matches a name on the list, government-issued photo ID, or two pieces of ID without a photo, will be required for verification purposes.

The air carrier’s agent will then call a Transport Canada Officer, on duty 24 hours a day. This Officer will decide whether to issue an Emergency Direction stating that the person presents an immediate threat to aircraft security and should be prevented from boarding. Transport Canada will then immediately inform the RCMP. The police force with jurisdiction at the airport will also be informed and will take the necessary measures, if need be.
“Excuse me, sir, there must be a mistake…” What recourse do specified persons have?

A specified person who wishes to appeal this status will have to apply to the Office of Reconsideration. The first step will be to submit a notarized document allowing the Office to verify the person’s identity. In the second, the person can submit to the Office any written information relevant to his or her case. However, the individual won’t have access to the content of his or her file, making it hard to assess what is relevant or to refute allegations contained in it. An adviser from outside the public service who has security clearance will examine all the information used to specify an individual and issue an Emergency Direction prohibiting that person from boarding. This advisor will also verify all the information provided by the applicant and submit a report to the Office of Reconsideration.

The Office of Reconsideration will make a recommendation to the Minister on the relevance of reconsidering the decision to put the name of the individual concerned on the list. If the applicant is not satisfied with the Minister’s decision, he or she will have the option of taking legal action – for example, by challenging the decision in Federal Court.

This is obviously a procedure that will take time and financial resources.

The Director of Transport Canada’s Security Policy has also admitted there is nothing preventing the Canadian list from being shared with other countries. TheStar.com - News - No-fly list open to abuse, Air India inquiry warned

Using the Canadian appeal process to have your name removed from Canada’s No Fly List, will not guarantee your name would be cleared on lists maintained by other countries. This will make international travel, for those wrongly placed on the list, to be exposed to the possibility of detention and arrest by foreign governments.

Despite the creation of a Canadian No Fly List, which the government said would avoid the problems and poor track record of the US program, airline industry spokespeople have confirmed they will continue to use both the US and Canadian No Fly lists.

The names of passengers on all flights flying over U.S. territory are compared with the names on their countries no-fly list, regardless of whether the flight is actually going to destination in the United States. There are 3,000 Canadian domestic flights and 1,000 international flights that fly over the United States each week!

Submitting to U.S. requirements

According to the Canadian government, the Passenger Protect Program “would be a significant step towards achieving the goal of developing a comparable approach to passenger assessment, which the Security and Prosperity Partnership identified as a milestone for improved aviation security.”

However, Canada’s program is more than just comparable, it is also inter-operable with the program underway in the U.S., which is putting in place the infrastructure for a North American Security Perimeter. In October of 2006, the US government disclosed their border security program will screen all people who enter and leave the United States and create a terrorism risk profile of each individual, and retain that information for up to 40 years.

This means that although residents of Canada wrongly placed on our no fly list can try to have their names removed via the ominous sounding, Office of Reconsideration there is no clarity on how or if they will be able to get their names removed from other countries lists such as the US who are prepared to retain ‘risk assessment profiles’ on travelers for decades.

Abusive measures befitting a police state

No Fly List = Loss of freedom of movement

Freedom of movement is a basic right in any democratic society: “Every citizen of Canada has the right to enter, remain in and leave Canada” and “Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right: (a) to move to and take up residence in any province....” Especially in Canada, air travel is one of the most practical ways of getting from one end of the country to the other. It is also, for all practical purposes, the only way to travel from continent to continent, and many people have to travel by air for their work.

To guilty to fly but too innocent to be charged?

Given all the other measures already in place to ensure the safety of air transportation, the government has not proved that this new restriction on freedom of movement falls within “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” as stipulated by the Canadian Charter of Rights and Freedoms.

Nor has the government proved the necessity of this new measure, since the Criminal Code of Canada already allows authorities to arrest, formally charge and commit for trial an individual whom they have reasonable grounds to suspect has or will commit a criminal act.

Loss of rights, without trial

The information used to put a person on the list will be considered confidential for reasons of national security and international relations, especially if it comes from the U.S. Transportation Security Administration. This means, a specified person on the basis of secret information may be deprived of his or her freedom of movement, without charges, without a trial, without access to the information held against him or her, and without any way of setting the record straight. Furthermore, there is no provision for damages even if it is proved that a mistake has been made. For example, in November 2006, a businessman lost his job after he was refused the right to board a plane going to the United States.

An incitement to racial profiling

The experience of the past five years has shown that the Arab and Muslim communities have been the primary victims of the new powers given to police and intelligence services in the framework of the struggle against terrorism. There is every reason to think this will be equally true for the no-fly list. In the United States pacifists and environmentalists have also been prevented from flying.

Loss of rights without democratic debate

It is unacceptable that such measures, whose need has not been proven and that infringe on a number of fundamental liberties, can be established by simple regulation, without parliamentary debate, as if they were mere administrative changes.

The Government claims the creation of the Canadian No Fly List is authorized under the Public Safety Act 2002, an omnibus legislation that has generated serious and persistent criticisms.

It is unacceptable in a democratic society the government has the power to deprive citizens of their rights on the basis of secret information and without notifying them.

Feel safer now?

Anti Terrorism policies like creating lists of suspects or possible terrorists are creating massive databases but there is little evidence the tool is protecting people. The US’s National Counterterrorism Center (NCTC), which maintains the government's list of all suspected terrorists with links to international organizations, said that as of June 2007, they had nearly half a million names on their database. This watch list has grown at an incredible pace, more than quadrupling since 2003.

Such lists will inevitably fill up quickly with "false positives," and to date, as far as the public is aware; have failed to catch any terrorists in the U.S. To make matters worse, real terrorists may not even be placed on the list for fear of tipping them off, this is the official U.S. position.

Consider also what a real terrorist might do in the airport while being asked to step aside and wait for a Transport Canada official or security personnel to arrive.
The no-fly list is only the first step

The no-fly list is only a preliminary step towards the implementation of even more sweeping plans announced by the Transport Canada Minister back in 2005. These plans call for the name of each traveller to be checked against a computerized system that collects all available information about the traveller (travel habits, consumption patterns, knowledge, etc.) which is used to assign the traveller a risk assessment – green, orange or red. A traveller who is given an orange or red rating may be subjected to additional searches and questioning, following which he or she might be banned from boarding.

The Canadian Labour Congress like many human rights organizations is concerned about the erosion of fundamental rights since September 11, 2001. Numerous governments have taken advantage of an atmosphere of fear and insecurity – often deliberately perpetuated – to considerably expand the powers of police forces and charge them with establishing vast systems for surveillance and information gathering about residents of Canada.

The measures that are most dangerous for civil liberties include the Anti-Terrorism Action, the mega-database on travellers, the growing use of security certificates, the introduction of biometric documents, the gathering and sharing of information about residents of Canada, the surveillance of electronic communications and the black list of airline passengers. These new measures are seriously disrupting our legal system and attacking values entrenched in our Charter of Rights like the presumption of innocence, the right to a fair trail, the right to full and complete defence, the right to remain silent, the right to privacy and the right to asylum.

History shows that exceptional measures introduced in emergency situations and a climate of feat have paved the way for discriminatory practices and entailed serious abuses. Take for example, the internment and deportation of immigrants and trade union organizers in the 30’s, or the internment of Japanese-Canadians during World War II, or the Padlock law under Duplessis in the 1950s.

What you can do

Share this information with fellow workers, neighbours and family.

Let your elected representative know that this issue is important to you.

Write a letter to the Chairperson of the Standing Committee on Public Safety and National Security expressing your concerns with the program.

Contact your elected federal parliamentarian and demand the Passenger Protect Program be withdrawn. Urge your elected representative to call for a parliamentary committee to hold public hearings on this issue and to weigh privacy and human-rights concerns against the security provided to the travelling public.