No-Fly List Error Leads to Charter Challenge

Comment on the article “Review Canada’s no-fly list, report urges,” found at http://www.theglobeandmail.com/news/national/review-canadas-no-fly-list-report-urges/article1425324/

Hani Al Telbani was a graduate student at Concordia University. Al Telbani was a Palestinian national who held a temporary residence permit in Saudi Arabia. In June 2007, he was scheduled to depart from Montreal to Riyadh in order to renew his residence permit in Saudi Arabia. However, Al Telbani was barred from flying, though he posed no security risk. He is now suing the Government of Canada for breach of his rights under the Charter.

The Government hired independent consultants, who found that Al Telbani’s name should have never been included in the no-fly list. The consultants’ findings include:

  • The deputy minister, who approves the list, was never provided with enough information to put Al Telbani’s name on the list;
  • An advisory committee that included members from CSIS, RCMP and Transport Canada decided, “without legal authority,” to keep Al Telbani on the list; and
  • The officer who issued the emergency order to bar Al Telbani lacked the authority to do so.

Since this issue originated, the deputy minister now receives more information about the people whose names are to be included on the list. The consultants recommended that the list be better regulated and have the oversight of Parliament. In practice, according to the relevant regulations, airline employees are allowed to compare an individual’s name to the no-fly list (http://www.canlii.org/en/ca/laws/regu/sor-2007-82/latest/sor-2007-82.html).

The main point for debate is whether the no-fly list serves a legitimate purpose in protecting Canadians and should be reformed according to the findings of the consultants, or whether it constitutes an unnecessary, and even incompetent, incursion into Canadians’ lives and should be scrapped altogether.

The Government of Canada has a responsibility to protect Canadians from harm. In so doing, the government should ensure that any response is proportional to the threat, and that there is no unnecessary infringement on the rights of Canadians. There must be a balance between defending Canadians against threats, and protecting their rights to privacy. Proponents of the no-fly list may argue that there is minimal infringement on the right of privacy of Canadians, and that the minor violation of the right to privacy is justified by preventing potential terrorist attacks. Indeed, employing the protective force of the state to defend against an imminent threat is expected by Canadians.

However, the scheme rests on the capability of individuals, both in government and as agents of the airport and of airlines, to properly and indiscriminately apply the provisions of the act. There is a serious concern that while the purpose of the legislation is intended to prevent any individual from committing an act of terrorism, the effect in implementation by government officials is that individuals of certain ethnicities are more likely to be listed than others. Airport and airline officials may be more likely to racially profile certain ethnicities.

Human fallibility may cause the safeguards to fail even when a suspect is listed on the no-fly list. As was seen recently in the United States, a man who was listed on the no-fly list was still able to board an American airplane and attempt to commit an act of terrorism. So even with the security apparatus in place, government officials were still not able to apprehend the suspected terrorist until he attempted to commit an act of terrorism.

The consultants recommend that the list be subject to greater Parliamentary oversight and scrutiny. But even greater scrutiny by Parliament cannot fix problems in implementation of security at the airport, or make authorities at the airport less likely to racially profile. Greater scrutiny by Parliament only addresses the issue of whether innocent individuals like Al Telbani will be rightfully unlisted in the future. Scrutiny by Parliament fails to address the issue of implementation at the airports, and whether the list is actually useful in protecting Canadians.

As civil libertarians, we have difficulty in justifying any emboldening of the government security apparatus. Civil libertarians might argue the consultants’ recommendations only address half of the issue: while they argue for varying degrees and power of a no-fly list, the obvious question arises about whether such a list is even justified. First, the list opens Canadians up to unnecessary breaches in privacy rights. By empowering airport personnel to cross-examine the names of individuals against the no-fly list database, non-government agents could potentially access private information of innocent people. Such a breach of privacy may be difficult to justify since the threat of terrorism is neither imminent nor widespread. Therefore, the breach is not proportional to the threat.

Second, even if the list is subject to Parliamentary scrutiny, a host of problems may arise. There is still a risk that individuals will be wrongfully listed based on false or exaggerated evidence. It is unlikely that many Members of Parliament will perform the necessary due diligence in assessing the validity of evidence when faced with the choice of “protecting Canadians” or the “rights of a terrorist.” This is not to say, however, that the list is better maintained by a secretive bureaucracy. Both options bear respective evils, neither of which will make for a better-functioning list. The list cannot function better since, at the core, it is flawed.

Third, Parliamentary scrutiny does not address any problems in implementation. Airport officials are still likely to racially profile, or botch security as happened in Detroit. So, both the purpose fails on being ineffective, and the effect fails on being unconstitutional.

Instead of recommending that the no-fly list be subject to Parliamentary scrutiny, thereby attempting to find some way to lessen the degree of authoritarianism inherent in the list and to give it more of a democratic flavour by having Parliament vet the process of listing, the consultants should have examined whether the no-fly list is even necessary.

1 Comment on "No-Fly List Error Leads to Charter Challenge"

  1. i think this web site should have more callity info and more educations for kids in school theere should be a list of charter challenges.:)

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