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- At present, if the Minister does not make a decision within 90 days about an individual’s application for removal from the SATA List, the individual’s name remains on the List. Should this be changed, so that if the Minister does not decide within 90 days, the individual’s name would subsequently be removed from the List?
The necessity, usefulness and efficacy of Canada’s No-Fly List regime has not been demonstrated and the program should be abolished. Furthermore the listing process appears to violate the Canadian Charter of Rights and is characterized by many flaws with regards to due process and the principles of fundamental justice. We are concerned by the fact that the people putting names on the list are also the people tasked with reviewing that decision; that people are only notified that they are on the list if they try boarding a plane and are stopped; that the regime does not define a clear and efficient way of recourse for individuals on the list; and that many if not most Canadian airline companies also use the American no fly list, for which recourse seems even less clear and efficient (and, moreover, raises questions regarding the principle of sovereignty).
The process of application for removal is also plagued with a lack of procedural fairness. Even the proposed appeal to the Federal Court, modeled after IRPA’s security certificate regime, would not meet the requirements of the Supreme Court ruling in Charkaoui. However, until PPP is abolished, individuals seeking removal should be removed from the list automatically if the Minister does not decide within the 90 days after an application is filed. Canada should repeal the Secure Air Travel Act and keep suspected terrorists away from airplanes using the existing tools under criminal law.
- To reduce false positive matches to the SATA List, and air travel delays and denials that may follow, the Government has made a commitment to enhance the redress process related to the PPP. How might the Government help resolve problems faced by air travellers whose names nonetheless generate a false positive?
While news reports recently suggested that the government is moving in this direction, we remain concerned that it will take up to 18 months for such a system to be in place. There will also remain the need to address the issue of Canadian airline companies using the US no-fly list, to ensure redress for Canadian travelers facing unwarranted restrictions from foreign governments, and to get rid of the no fly list regime altogether.
- Are there any additional measures that could enhance procedural fairness in appeals of listing decisions after an individual has been denied boarding?
No procedural fairness in appeals is possible unless an individual is presented with all of the evidence, or intelligence, in order to meet the case. In fact, if PPP is not abolished, it should be amended to reflect the practice in other types of court restraining orders. To list someone, the government should need to seek a court order from a judge at the time of the listing, and the individual presented with the opportunity to respond to the case at that time.
Further, action should be taken so that the US list does not apply in Canada, given that the US no-fly list regime is equally flawed. Until it is abolished, Canadians placed on the US no-fly list should receive proper recourse and help from the Canadian government to defend themselves.