A. Canadian Civil Liberties Association
- Bill C-51 proposes new legislation, the Secure Air Travel Act (SATA), which appears to codify Canada’s existing Passenger Protect Program (PPP), more often called a no fly list.
The Passenger Protect Program has been in existence since 2007, relying on provisions in the Aeronautics Act that do not clearly spell out the nature of the program, how it functions or the procedural protections in place for those who are listed. The new Secure Air Travel Act seeks to give the PPP its own legal basis and framework. However, the Secure Air Travel
Act does not fulfill this objective.
- Canadian Civil Liberties Association (CCLA) believes that the SATA does not contain adequate substantive or procedural protections for listed individuals, does not provide sufficient transparency or accountability mechanisms, and places Canadians at continued risk of prejudice.
- The SATA will allow the Minister of Public Safety and Emergency Preparedness to effect ively create a “no-fly list”. Therefore certain people will be prevented from air transportation and others will have to undergo screenings before boarding the plane or going in certain areas of the airport.
- However, the SATA gives no indication of how the Minister might form such a reasonable suspicion and the standard of reasonable suspicion is a low one given that the effect of listing could be a near-total abrogation of mobility rights guaranteed under s. 6 of the
Canadian Charter of Rights and Freed oms. This is a worry especially in light of the Minister’s new authority under s. 7 to delegate his or her power, duties and functions under the Act to any officer or employee, or any class of officers or employees, in the Department of Public
Safety and Emergency Preparedness.
- A person who has been denied transportation as a result of a Ministerial direction may apply to the Minister, in writing, to have their name removed from the list, with a time limit of
60 days of having been refused transportation. The problem is that the provisions of the new
Act do not make it clear how an individual may come to know that they have been listed, or that this will be done at the time that transportation is denied. Indeed, the Act suggests that a person who is denied transportation may not be informed of the fact that they have been placed on the list (section 20(3) of the SATA).
- The appeal mechanism afforded by s. 16 of the Act allows the judge presiding over an appeal to hear information or evidence in the absence of the public and the appellant or his/her counsel, and especially subsection 16(6)(f) allows the judge to base a decision on the Minister’s information or evidence, even if a summary has not been provided to the appellant. The ability for a judge to both use and rely on “secret evidence” is inconsistent with an overarching principle of fundamental justice.
-In light of the potential for the use of secret evidence in these appeals, we are concerned about the absence of a special advocate, a safeguard put in place in the security certificate regime under the Immigration and Refugee Protection Act, where secret evidence may also
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be used. Without a special advocate privy to the evidence and information submitted by the
Minister, the listed person is at a significant disadvantage as the government is represented at all times and apprised of all of the facts and allegations, while the listed person may be denied information crucial to the case against him/her.
- Section 16(5) of the new Act states that if the judge finds that the decision denying removal from the list is unreasonable, the judge “may order that the appellant’s name be removed from the list.” If a decision to keep an applicant’s name on the list is found to be unreasonable, the name should presumptively be removed.
- There is inadequate verification of the handling and safeguarding of listing information by air carriers and this issue is not addressed by the SATA.
B. British Columbia Civil Liberties Association
-BC Civil Liberties Association (BCCLA) questions the efficacy of the listings of the no-fly scheme.
-BCCLA says that there is an incoherence between finding that a person is too dangerous to fly but not dangerous enough to arrest. It believes that if it is necessary to impose a travel ban, the Criminal Code is already well equipped to allow the government to seek a court order to that effect.
-BCCLA says that even if the no fly-scheme improves aviation security, the system proposed has serious procedural deficiencies. Indeed, the SATA poses problems since travelers have no way of knowing if they are on the no-fly list and the judicial process for reviewing delisting applications can be held in secret. Travelers do not have access to these listings, but the government can share these no-fly lists with other countries without any limitations on how that information can be used by other states.
C. Canadian Bar Association
- The Canadian Bar Association (CBA) states that under Bill C-51, a person may be denied travel based on a mere possibility of risk, determined by an unknown person and using unknown and untested criteria. CBA states that:
- The proposed system is likely to produce false positive matches, as only basic information about individuals will be on the no-fly list. Section 8(1) only requires the given name, surname, known alias, date of birth and gender of the person.
- The criteria for placing a person on the no-fly list are unclear.
- SATA could interfere with other civil liberties as well. Sections 28 and 30 would introduce powers to search computers and mobile devices without warrant, and without oversight.
These powers are potentially overreaching and unconstitutional in allowing access to personal or privileged information without lawful authority.
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- There is a lack of safeguards for those wrongly placed on the list. Section 8(2) provides that the Minister review the list every 90 days to decide if a person should remain on it.
There is no process for expeditious determination by the Minister (or for appeal) because of urgent or exigent circumstances for a person denied flight, such as medical or compassionate grounds.
- Section 15 requires the Minister to give a person denied travel the opportunity to make submissions, but individual applicants are not entitled to any information as to why they were put on the list. Without a requirement to provide meaningful information, the administrative recourse in Bill C-51 is illusory.
- Similarly, the appeal process may be less than ineffective. Any appeal to the Federal Court can occur only after all administrative remedies have been exhausted, meaning significant delay and expense. The reviewing judge will determine if the decision of the Minister or delegate is reasonable, but the government may insist that an applicant be excluded from that hearing. The judge may decide a case based on undisclosed evidence, and not even a summary must be disclosed to the affected party. There is no provision for a special advocate to act on behalf of the applicant, as in security matters.
- The CBA recommends:
1) Providing an objectively discernible basis for additions to and removals from the no-fly list,
2) Curtailing warrantless search powers, and
3) Adding effective safeguards for those wrongly placed on the list, including a process for expeditious removal.
D. Muslim Lawyers’ Association
- SATA’s stated purpose is ensuring “transportation security” and preventing people from travelling to commit terrorism offences abroad by using a no-fly list mechanism.
1. Secrecy and the No-fly List
- The Minister of Public Safety and Emergency Preparedness creates the no-fly list, which is subject to Ministerial self-review every 90 days. The development and implementation of the list is undertaken in secret.
- It is illegal for anyone to disclose that someone is on the no-fly list. As such, affected persons will find it extremely difficult to determine why they have been subjected to additional scrutiny or denied boarding as airline personnel are compelled by law not to disclose this information to them. Although SATA includes a mechanism to challenge a listing, it is a Kafkaesque process fraught with flaws. The first hurdle for an affected person is actually finding out that s/he is on the no-fly list. If that hurdle is crossed and a challenge is initiated, affected persons are given no reasons for their listing or the determination of the
Minister in response to the challenge; all of it is shrouded in secrecy.
- Secrecy is not only wrong because it is fundamentally unfair, it is wrong because it generates untested, and therefore unreliable, information. Therefore, the efficacy of the no-
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fly list is questionable at best; it deems individuals to be security threats based on a secret process while denying them due process and the ability to defend themselves. In this form, no-fly lists create a false sense of security while having significant adverse impacts on the persons listed.
- The no-fly list scheme in SATA is constitutionally suspect because similar secret processes have been found to be invalid by the Supreme Court of Canada in the immigration context.21Furthermore, the no-fly list scheme likely vio lates the Charter’s guarantee of mobility rights.22
2. Sharing the No-fly List with Foreign Governments and Agencies
- SATA indicates that the no-fly list may be shared with foreign entities.23 Bill C-51 is silent on how this information will be used and controlled once shared beyond the Canadian government. It is plausible that information provided to foreign governments and their security agencies may be data-mined, compiled with other information in Big Data analytics and subject to derivative uses that have nothing to do with the express purpose of SATA.
Once information is shared, especially with foreign governments and the private sector, it is impossible to retract in order to correct errors or remove from data banks. Therefore, once a mistake is made and data is shared it becomes a permanent and potentially viral mistake with cascading adverse consequences for the person to whom that data applies.
3. Building a Database of Air Travellers’ Information
- SATA allows the government to possibly maintain information provided by air carriers (e.g., passenger information, itinerary, etc.) on those travelling by air for an indefinite time.24
Arguably, in conjunction with SCISA this information could be combined with other data for data-mining and analytics in a Big Data context. This could contribute additional pieces to larger surveillance initiatives, allowing the government to do indirectly that which it cannot do directly.
21 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Processes similar to that found to be unconstitutional in Charkaoui are used in the listing of entities for terrorism purposes. Listed entities risk serious criminal sanctions and other adverse impacts in the private realm. Arguably, the use of secret evidence and proceedings in those contexts are inconsistent with the Charter.
22 Canadian Charter of Rights and Freedoms, section 6.
23 Section 12 of the Secure Air Travel Act, which is proposed as Part 2 of Bill C-51.
24 Section 18 of the proposed Secure Air Travel Act.
4. Unanswered Questions
1) Why is there no independent scrutiny and oversight of the no-fly list, the process whereby it is created, and the manner in which it is implemented?
2) Will there be an independent audit and public reporting of the size of the no-fly list, as well as the list’s errors, false positives and appeals on a regular basis to determine whether it is operating well?
3) Will information from foreign governments and security agencies, including those with questionable human rights records, be used in adding persons to the no-fly list?
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4) Why is the Minister that creates the list in secret adjudicating appeals in secret from those listed?
5) Will an independent review body be established to hear appeals from those listed?
6) Will special advocates be involved to review and test secret evidence on behalf of the affected party during an appeal?
7) How will no-fly list information shared with foreign states and their security agencies be controlled to ensure that the information is not used for a purpose inconsistent with SATA, including sharing further with other governments and the private sector?
8) How will mistakes and errors be corrected in no-fly list information that is shared with foreign governments, their security agencies and the private sector?
E. Law Union of Ontario
- We have proposed a number of amendments to the Secure Air Travel Act in Appendix
A, the most important of which are proposed amendments to provide for the assistance of a special advocate in appeals to the Federal Court in a manner analogous to security certificate appeals under Division 9 of the Immigration and Refugee
Protection Act. The special advocate’s role would be to protect the interests of the appellant when information or other evidence is heard in the absence of the appellant pursuant to subsection 16(6) (a) of the Act. The special advocate system represents a compromise between the government’s interest in protecting confidential information and informants and the appellant’s right to a fair hearing and, while not perfect, at least affords an opportunity to challenge assertions of confidentiality and to test the relevance, reliability, and sufficiency of the secret evidence. Without it, in our view the section 16 appeals under the Act would have an appearance of manifest unfairness and may not conform to Charter standards set out in the Supreme Court of Canada cases dealing with the constitutional validity of the security certificate system.
- Other proposed amendments include: i) Removing the 60 day limitation period for appeals to the Minister. The 60 day limitation period runs from the time the person has “been denied transportation as a result of a direction made under section 9.” The reason for the denial may not be immediately obvious to the person concerned as it is illegal under the Act to disclose that a person is on the “no fly” list: subsection 22(3). Thus the 60 day limitation period may unfairly deny a person an opportunity to challenge as of right being listed. It also is unnecessary. This is a status-based issue not dependent on the circumstances of the original denial. It is not a slip-and-fall on a patch of ice. ii) Requir ing the appeal judge to remove the person’s name from the “no-fly” list if the court allows the appeal. The proposed subsection 16(5) only provides that the judge “may” do so.
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iii) Placing the onus on the Minister at the appeal hearing to establish reasonable grounds for the decision under section 8(1) of the Act.
F. Amnesty International
- Bill C-51 includes a new statute, the Secure Air Travel Act, which would establish in law the system for overseeing the administration of Canada’s so-called ‘no-fly’ list. The Act empowers the Minister of Public Safety and Emergency Preparedness to establish a list of persons who the Minister has reasonable grounds to suspect will engage in an act that would threaten transportation security or who will travel by air for the purpose of committing a number of specified terrorism offences. The list is to be reviewed and amended as necessary every 90 days. As a result of being listed that person may be denied transportation.47
- If the decision to list the individual is not reversed by the Minister, the individual may appeal to the Federal Court. Amnesty International is concerned that this appeal is inadequate in two important respects. First, the judge is only to determine whether the decision to list the individual was “reasonable”, a low threshold.51 Second, the judge may withhold information from the individual during the appeal if it would be injurious to national security or endanger the safety of any person; in which case the individual will instead only be provided with a summary of the information. The judge can base his or her decision on any information, even when a summary of it has not been provided to the individual.52 The UN Human
Rights Committee has underscored that an individual must be able to have access to information about him or her held in official files and to have that information rectified it is erroneous.
- Every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to have his or her records rectified.53
- The right to have erroneous information rectified must be meaningful. The Tshwane
Principles, adopted at an international conference of experts, notes that information may not be withheld on national security grounds “in a manner that would prevent accountability for
[human rights] violations or deprive a victim of access to an effectiv e remedy.”54
- The human rights implications of being listed can be serious. A 2007 submission to
Transport Canada on behalf of 25 Canadian civil society organizations highlighted concerns that the administration of Canada’s no-fly list had negative repercussions on the right to liberty, freedom of movement, privacy rights and discrimination. The report also underscores that there have been many instances of individuals being erroneously or mistakenly included on the Canadian and other no-fly lists.55 A comprehensive report by the International Civil
Liberties Monitoring Group in 2010 provides further detailed accounts and documents the difficulties individuals have faced in seeking to have their names removed from such lists.56
The reports note frequently that restricted travel may significantly interfere with employment when individuals hold positions that require travel.
- Given the numerous human rights protections at stake, it is vital that there be a fair appeal process for individuals who seek to have their names removed from the list. With substantial
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restrictions on access to information and a low standard of review which does not examine the merits, Bill C-51 does not offer that fair appeal process.
47 Ibid, clause 11, proposed ss 8 and 9 of the Secure Air Travel Act .
48 See Public Safety Canada, “Safeguarding Canadians with Passenger Protect” online:
<http://www.publicsafety.gc.ca/cnt/ntnl-scrt/cntr-trrrsm/pssngr-prtct/index-eng.aspx>.
49 Amnesty International, Human Rights for All: No Exceptions ,
An Update to Amnesty International’s 2002
Submission to the U.N. Committee on the Elimination of Racial Discrimination on the occasion of the examination of the seventeenth and eighteenth periodic reports submitted by Canada , (Index: AMR 20/001/2007) January
2007 at 10-11.
50 Bill C-51, supra note 7, clause 11, proposed s 15 of the Secure Air Travel Act .
51 Ibid , clause 11, proposed s 16(3) of the Secure Air Travel Act .
52 Ibid , clause 11, proposed s 16(6) of the Secure Air Travel Act .
Amnesty International welcomes the fact that the system of listing individuals who may be barred from flights would be established in law, an improvement over doing so through the Passenger Protect Program, as is presently the case.48 Amnesty International has, in the past, raised concerns about the current system. In particular, we have highlighted that there is no accessible and fair appeal mechanism through which individuals can seek to have their names removed from the list.49
Under the Secure Air Travel Act listed individuals would have two avenues of recourse. Within 60 days of being denied boarding, they may apply to the Minister, in writing, requesting that their name be removed from the list.
They are to be afforded a reasonable opportunity to make representations. However there is no requirement that they be provided access to information that is the basis of the decision to place their name on the list.50
53 General Comment No. 34 , supra , note 25, para. 18.
54 The Global Principles on National Security and the Right to Information (The Tshwane Principles), 12 June
2013, Principle Ten, http://www.opensocietyfoundations.org/sites/default/files/global-principles-national-security-
10232013.pdf.
55 Faisal Kutty,
“Canada’s Passenger Protect Program: Too Guilty to Fly, Too Innocent to Charge?” (2007)
Social Science Research Network online: < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962797 >.
56 International Civil Liberties Monitoring Group, Report of the Information Clearinghouse on Border Controls and
Infringements to Travellers’ Rights , (February 2010) online: <http://iclmg.ca/wpcontent/uploads/sites/37/2014/03/R-Clearinghouse-border-controls.pdf>.
G. Office of the Privacy Commissioner – N/A
H. Ken Rubin – N/A
I. Canadian Council for Refugees – N/A
J. Greenpeace – N/A
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