Canada’s No Fly List

Summary

Canada’s No Fly List is officially known as the Passenger Protect Program (PPP). It is a highly secretive passenger-screening program that came into force on June 18, 2007, and was modified in 2015 with the adoption of the Secure Air Travel Act through Bill C-51. The stated goal of the program is to both prevent terrorism activity on flights, as well as prevent individuals from traveling to participate in a terrorist activity.

There are several major problems with the No Fly List:

  • It creates undue hardships for those who are flagged as false positives;
  • It undermines the right to due process for individuals on the list through a lack of transparency and access to information;
  • It lacks a fair appeal process;
  • It allows unregulated information-sharing with foreign entities which can lead to human rights abuses;
  • Its efficiency and necessity have never been demonstrated.

Faisal Bhabha, legal counsel for the National Council of Canadian Muslims (NCCM), one of ICLMG’s founding members, called the No Fly List “one of the most damaging instruments of racial and religious profiling currently in place in this country. It is the national security analogue to carding in the urban policing context. Since its implementation, it has caused so much damage without any proven or demonstrable benefit that we simply cannot justify it in our rule of law democracy.”1

The serious questions of lack of due process, infringement on Charter-protected mobility rights, racial profiling and undue hardships, combined with the complete lack of data from the government regarding the effectiveness of the No Fly List program leaves us no other choice but to conclude that the system should be completely repealed. If a person is a threat to the safety of others, the government should act using existing criminal code procedures that follow due process.

For all these reasons, the ICLMG is calling for the complete repeal of the No Fly List program.

How does the No Fly List work?

Air carriers use the No Fly List to screen commercial passenger flights to, from and within Canada. The Secure Air Travel Act (SATA), passed in 2015 as part of Bill C-51, modified the Passenger Protect Program to allow the Minister of Public Safety and Emergency Preparedness to put an individual on the No Fly List if the Minister finds there are reasonable grounds to suspect the individual will:

  1. Engage or attempt to engage in an act that would threaten transportation security; or,
  2. Travel by air to commit certain terrorism offences, such as participating in or contributing to terrorist activities or funding, training and/or recruitment of a terrorist group.2

Before this change, individuals were placed on the list by an advisory group consisting of high-level officials from the RCMP, CSIS, CBSA and Transport Canada if they posed an “an immediate threat to aviation security”. This was already problematic. Bill C-51 and the SATA both expanded the reasons you can be listed, and placed decision-making power in one Minister’s hands.

To comply with the No Fly List, air carriers are required to screen all passengers who appear to be 18 years of age or older before issuing them a boarding pass. If an individual’s name matches that of someone on the list, the airline employee must call Public Safety Canada to ascertain whether the person is allowed to board their flight.

  • In the case that the traveler in question is indeed the person listed, the Public Safety official can either approve the person boarding the flight, or disallow them from flying.
  • The airline employee is not allowed to inform the traveler that they are on the No Fly List.
  • If they are allowed to fly, they continue on after the delay.
  • If they are not allowed to fly, they are simply told they are not allowed to board the flight. The traveler will receive a letter from Public Safety informing them that they were stopped from flying because they are on the No Fly List; however there is no set timeframe on when that letter will be issued.

At that point, the person on the list may challenge their listing by asking the Minister to be removed from the list. If the Minister does not respond in 90 days, the traveler is deemed to still be on the list. They may then apply to a court for review. However, they will not have access to the information used against them to place them on the list – at most they may receive a summary of some of the information – meaning it is impossible to mount a full defense.

In some situations an individual may be a false positive: their name is the same or similar to that of a person on the list, but they are not that person. In such a case, after a delay, they will be allowed to either board their flight, or to board a later flight. While some may see this as only an “inconvenience,” it has a serious impact on those caught up.

For parents with children whose names appear on the list, this can result in delays, questioning, embarrassment, stress and worries regarding the future safety of their kids if their names remain on the list into adulthood. For adults, it can mean significant delays, intensive secondary questioning by airport security, impacts on work because of difficulties traveling, problems returning to Canada, and even worries of arrest by foreign authorities because they are viewed as possible terrorists.

There is currently no federal redress system that allows for people who are known false positives to avoid being flagged when traveling in the future (for more, see the section on False Positives, below). However, the federal government announced that they will be setting aside $81.4 million dollars in funding over 5 years to develop a centralized screening model and establish a redress system.3 While this is a step in the right direction, it is unclear what the new system will look like, and Public Safety Minister Ralph Goodale has estimated that it will take three years for the system to be fully implemented.

While the ICLMG supports the call for such a redress system in the short term, ultimately we need to end the No Fly List program as it violates due process and unfairly targets Muslims and people of colour.

Background

9/11 and the creation of the PPP

While aviation security has always been a priority for governments and airlines, the terrorist events of September 11, 2001 were the catalyst for heightened aviation security measures around the world. Canada was no exception.

In a direct response to the alleged need for greater airport security post-9/11, the Aeronautics Act, as amended in 2004, lays out the framework for the Passenger Protect Program (PPP). Transport Canada’s declared goal when the PPP was introduced was to improve aviation security by reducing the threat of terrorism and other criminal acts on flights to, from and within Canada. “Aviation Security” under the Aeronautics Act also applies to aircraft, airports, aviation facilities, and the safety of the public, passengers and crew-members.

Bill C-51 and the Secure Air Travel Act (2015)

Part two of the Conservative government’s Anti-Terrorism Act, 2015 (more commonly known as Bill C-51) comprised the Secure Air Travel Act (SATA), which formalized the rules for the operation of Canada’s No Fly List. SATA was introduced in Bill C-51 in order to codify the way people are put on the Canadian no-fly list, and the process to remove one’s name from the list.4 SATA also decreased the frequency at which the list has to be reviewed, to every 90 days. Previously, the Minister or their delegate reviewed decisions every 30 days, and Transport Canada provided an updated list to airlines every 30 days as well. It is also important to note that SATA changed the No Fly List rules to allow the list to include individuals who may be traveling by air to commit certain terrorism offences. Under Bill C-51, the system continues to be shrouded in secrecy, as the bill codified the existing practice of refusing to disclose to the individual whether he or she is a listed person.

Bill C-59, the National Security Act of 2017

Bill C-59, introduced in June 2017, has been described by some as the “biggest overhaul in Canadian national security since the creation of the Canadian Security and Intelligence Service (CSIS) in 1984.”5 While the bill proposes some tweaks to SATA, it falls far short of fixing it.

The technical changes that Bill C-59 introduces would not eliminate the problem of false positives (people with the same name as someone on the list who are wrongly delayed at airports). The No Fly List Kids campaign and others have been pushing for amendments, and for money to be allocated in the federal budget, to address this issue. The government has stated that changes in Bill C-59 will set up the legal tools to create an administrative solution. As mentioned above, it is estimated that a new redress system will take three years to implement (by 2021).

However, the changes proposed in Bill C-59 fall far short of establishing an actual redress system, making only a few small changes to the No Fly List legislation. This includes:

  • Under the legislation, parents will be allowed to be told if their child is not on the list, which is a step in the right direction but does nothing for adults who are false positives, and does not create a permanent redress system.
  • The application for the de-listing process would also change. The current law states that in the case of an individual requesting to be removed from the list, the Minister has 90 days to respond. If the Minister does not respond,6 the Minister is deemed to have refused to remove that person. Bill C-59 would allow the Minister 120 days to respond, and if the Minister does not respond, the individual is deemed to have been removed from the list.

As of publication, Bill C-59 has now moved on to the Senate.

Ongoing Concerns

False positives

Another notable concern with the Passenger Protect Program is the issue of false positives: people who are mistaken for someone who is listed on the No Fly List.

First, despite Public Safety Minister Ralph Goodale emphasizing in 2017 that airlines were to refrain from screening children under the age of 18, Canadian airlines continued to do so. Children as young as just a few months old have been screened. This has resulted in delays, questioning, embarrassment, stress and worry for parents with regards to the future safety of their kids if their names remain on the list into adulthood.

Second, the consequences for adults flagged as false positives can be more serious, as it is not as readily apparent that they (unlike a three year old) are not the listed individual. This can result in unwanted questioning, significant delays, difficulties returning to Canada when traveling, and even being viewed by foreign authorities as a potential terrorist.

Many travellers have reported that worry starts to set in when they are unable to print their boarding passes at home or at self-serve kiosks that travellers are encouraged to use. They then turn to the airline staff at the regular check-in counters, who tell passengers to wait while their tickets and identification documents are verified. Oftentimes this process consists of multiple calls to various supervisors while the traveler is singled out in a line of other travelers, and there is a wait time of upwards of 90 minutes in some instances.

Many of the travellers who have been delayed in this manner are members of Muslim or Middle Eastern communities. Others have very common names, but since the No Fly List is compiled strictly according to the sound and spelling of an individual’s name, many passengers may be flagged because their name is the same, or resembles that of someone who is in fact on the list.7 Some of the individuals who have encountered problems while trying to check-in have been told to “change your name” in order to avoid similar delays in the future.8 Others have been encouraged to join airline loyalty programs to facilitate and/or accelerate boarding procedures.9 A number of passengers have missed flights and were denied compensation.

The Canadian government will not disclose how many people are on the Canadian No-Fly List. The last time the government gave an approximation was in 2007, when an official placed the number at “around 2,000.”10 The federal government has never provided Canadians with an exact figure, citing security concerns without elaborating.

Names of people who have been flagged as false positives range from Adam Ahmed, Shawna Miller, Shahid Mahmood and Bill Graham, to David Smith, Naseer Ali and Dave Matthews. Recent research conducted by students at the University of Western Ontario demonstrated that as many as 100,000 Canadians could possibly be falsely flagged on the No Fly List simply because of the number of people with the same names.11 As the No Fly List Kids have pointed out, this is larger than the population of many Canadian cities.

I was subjected to a lengthy and detailed questioning in which my ability to travel was put into question… Air Canada employees informed me that I was on a “list” but refused to give me particulars. [Air Canada Staff also made] the preposterous suggestion that I change my name… – Montreal Author Jaspreet Singh12

The ICLMG has long called for a centralized redress system to address false positives. The funding that was announced in the federal budget is a welcome and positive development, and opens the door to the issue of false positives finally being resolved (as work continues to repeal the No Fly List as a whole).

Lack of transparency/access to information 

When a positive match is identified, the Minister of Public Safety may direct an air carrier to deny transportation to that person or require that they undergo additional screening. But the question remains whether or not No Fly List schemes do in fact improve airline security. Micheal Vonn from the BCCLA points out that there is no evidence they do, and that there is no logic to the program. Travelers on these lists are deemed too dangerous to fly, but too harmless to arrest or be prevented from boarding trains, ferries, subways, buses (let alone from attending other busy public spaces like malls, schools, or stadiums). Canada has other means of keeping suspected terrorists off airplanes.13

Even if the No Fly List does have unknown positive effects on security, the fact remains that the system suffers from many procedural deficiencies and violates due process. For example, the Passenger Protect Program is shrouded in secrecy. Within this system, travelers have no concrete way of knowing before arriving to the airport whether they are on the No Fly List or not, and the reasons for which they were placed on the list are largely kept secret. In fact, it is illegal to disclose whether or not an individual is on the list, which creates a situation where airlines cannot confirm or deny listings, even to the person affected, and the government can only do so once a person has already been stopped from traveling. Travelers who are subjected to repeated additional security screenings are left guessing if this is simply bad luck or a result of their name being on the list.

Information-sharing & human rights abuses

Another controversial provision of the Secure Air Travel Act (SATA) involves authorizing greater information-sharing with international counterparts. While individuals whose names are on the SATA list are not permitted to access information regarding their own listing, the Act allows the information to go beyond Canada’s borders. The Minister of Public Safety is granted the express power to share information with foreign states, foreign governmental institutions and international organizations. The Canadian government is able to share its no-fly list with other governments, with no statutory limitations on how that information can be used by the foreign state. According to the BCCLA: “Canada’s experience with mistakenly labeling individuals as security threats and providing that information to foreign governments [such as in the cases of Arar, Almalki, El-Maati, Nureddin and Benatta] should counsel against carte-blanche approaches to foreign information-sharing.”14

Lack of fair appeal process

Those who find themselves on the No Fly List have little recourse under the law to remove their names from the list. Individuals whose name appears on the list can apply to have it removed, but only if they have been denied transportation and have received a letter from the government confirming they are on the list. Simply experiencing frequent delays and extra security screening in airports is not enough. An individual must apply within 60 days of being denied transportation in order to request that their name be removed from the SATA list. The application for removal is made through the Passenger Protect Recourse Office.

The process involved in having one’s name removed from the no-fly list violates constitutional rights under the Canadian Charter of Rights and Freedoms. These include the right to be treated equally under the law, mobility rights and the right to due process. The process is not transparent, and rather than the government having to prove that an individual should be placed on the list, it is up to the individual to provide evidence that he or she should be removed from the list. Because individuals are not told why they have been placed on the list in the first place, it will be extremely difficult for them to determine which evidence, and how much evidence will be sufficient.

Despite minor changes to the appeals process, Bill C-59 will not solve this problem. Ultimately, the No Fly List must be repealed.

Canada’s use of U.S. lists

Following the 9/11 attacks in the United States, the number of people listed on no fly lists grew exponentially. Prior to 9/11, there were 16 names in the FBI’s Terrorist Screening Database, which is a collection of lists that were created under the Bush administration. There are currently approximately one million names in the Terrorist Screening Database.15 According to the U.S. Justice Department’s office of the Inspector General, the database is far too broad, and has an error rate of approximately 35%.16 Canadian airlines, most notably Air Canada, have continued to check the names of their passengers against the Terrorist Screening Database, even after the Passenger Protect Program came into force on June 18, 2007.

In June 2018, documents obtained through Access to information requests revealed that Canada has been using a huge, secretive US anti-terrorism database that is almost never referred to publicly to screen travellers. The database, called Tuscan, is provided to every Canadian border guard and immigration officer, and empowers them to detain, interrogate, arrest and deny entry to anyone found on it. It contains the personal information of as many as 680,000 people believed by US authorities to be linked with terrorism, and functions effectively as a second no-fly list that is cloaked in secrecy. Tuscan is managed entirely by the US government and there is no clear process in Canada to have your name removed from the list – nor would the US be required to oblige. What’s more, while Canada’s no-fly list only applies to airports, Tuscan extends to every land and sea border in Canada, as well as visa and immigration applications. Ottawa has never formally recognised the scope of Tuscan, although it is forging ahead with a closely guarded plan to expand and update it. Originally created in 1997 as a consular aid, the list was repurposed and expanded after 9/11, and in 2016 Justin Trudeau and Barack Obama agreed to expand it still further. The list effectively means that people cleared by the Canadian government to travel in and out of the country might still be detained because of the American list.17

ICLMG continues to denounce the use of U.S. lists in Canada — sometimes even for domestic flights or flights that do not enter the U.S. airspace — and calls on the Canadian government to put an end to this practice.

This issue paper was written by Amelia Jarvis.

Sources:

  1. “Trudeau government still targets Muslims as threats” by Matthew Behrens, rabble.ca. January 24, 2018. http://rabble.ca/columnists/2018/01/trudeau-government-still-targets-muslims-threats
  2. Secure Air Travel Act, SC 2015, c. 20, s. 11, http://laws-lois.justice.gc.ca/eng/acts/S-6.7/page-1.html
  3.  “Federal Budget 2018: No-Fly List Kids celebrate huge step with $80 million in federal funding” by Monique Scotti, globalnews.ca. Februrary 27, 2018. https://globalnews.ca/news/4051194/federal-budget-2018-no-fly-kids-get-80-million/
  4. The Secure Air Travel Act, 2015, http://laws-lois.justice.gc.ca/eng/acts/S-6.7/page-1.html
  5. “The roses and thorns of Canada’s new national security bill” by Craig Forcese and Kent Roach, macleans.ca. July 6, 2017.  http://www.macleans.ca/politics/ottawa/the-roses-and-thorns-of-canadas-new–national-security-bill/
  6. The Secure Air Travel Act, 2015.
  7. “Halifax rights complaint accuses Air Canada of singling out Mohamed Jaffa because he’s Black, Muslim” by Joseph Brean, nationalpost.com. August 18, 2014. http://nationalpost.com/news/canada/halifax-rights-complaint-accuses-air-canada-of-singling-out-mohamed-yaffa-because-hes-black-muslim
  8. “Why are there Canadian children still on no-fly lists – and what can be done?” by Sulemaan Ahmed, globeandmail.com. June 27, 2016. https://www.globeandmail.com/opinion/why-are-canadian-children-still-on-no-fly-lists-and-what-can-be-done/article30629435/
  9. “This Is What It’s Like When Your Name Is On Canada’s No-Fly List” by Ishmael N. Daro, buzzfeed.com. December 12, 2017. www.buzzfeed.com/ishmaeldoro/canada-no-fly-list?utm_term=.reVndyIDM#kmde5WL3M
  10. “No-Fly list grounds up to 2000 people” by Gloria Galloway, globeandmail.com. March 27, 2017. https://www.theglobeandmail.com/news/national/no-fly-list-grounds-up-to-2000-people/article1087262/
  11. “Up to 100,000 Canadians could be affected by no-fly list, research suggests” by Robert Fife, Globe and Mail. December 12, 2017. https://www.theglobeandmail.com/news/politics/up-to-100000-canadians-could-wrongly-be-on-no-fly-list-research-suggests/article37299604/
  12. ICLMG, Report on the Information Clearinghouse on Border Controls and Infringements to Travellers’ Rights. February 2010.  http://travelwatchlist.ca/updir/travelwatchlist/ICLMG_Watchlists_Report.pdf
  13.  “The New Canadian No-Fly List regime brought in under the Anti Terrorism Act aka Bill C-51” by Michael Vonn, bccla.org. September 20, 2016. https://bccla.org/2016/09/the-new-canadian-no-fly-regime-brought-in-under-the-anti-terrorism-act-2015-aka-bill-c-51/
  14. Vonn, 2016.
  15.  “How the FBI Terrorist Watch List Works” by Brian Freskos, thetrace.org. June 29, 2016. https://www.thetrace.org/2016/06/fbi-terrorist-watch-list-guns/
  16.  ‘The Federal Bureau of Investigation’s Terrorist Watchlist Nomination Practices” by the U.S. Department of Justice, Office of the Inspector General Audit Division, May 2009. https://oig.justice.gov/reports/FBI/a0925/final.pdf
  17.  “Revealed: Canada uses massive US anti-terrorist database at borders” by Justin Ling, theguardian.com. June 21, 2018. https://www.theguardian.com/world/2018/jun/21/canada-us-tuscan-anti-terrorist-database-at-borders

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