Government must take immediate action to address serious concerns with Canada’s No Fly List regime following independent review

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The serious flaws and violations of the law uncovered in the first ever rigorous and independent review of Canada’s secretive No Fly List regime require an immediate response and urgent action on the part of the Canadian government.

For 20 years, Canada has operated a troubling, secretive regime that prevents individuals, including Canadians, from flying out of or returning to Canada, undermining Charter rights and due process in the courts. The newly released report from the National Security and Intelligence Review Agency – the independent federal watchdog tasked with examining Canada’s national security activities – offers an unprecedented look at the internal workings of Canada’s no fly list regime, formally known as the Passenger Protect Program (PPP). NSIRA’s troubling findings reaffirm the fact that secret lists based on overly broad national security concerns are a recipe for rights violations.

Among the report’s findings are that:

On at least six occasions since the Secure Air Travel Act (SATA), which governs the PPP, came into force in 2015, Public Safety Canada failed to review the list within 90 days, in contravention of the law
Two individuals continued to be listed despite recommendations of their removal, without evidence as to why
Three individuals have continued to be listed for reasons that are not in compliance with the Secure Air Travel Act, in contravention of the law
While, by law, the list is reviewed every 90 days, an unknown number of individual cases are not being updated because the individuals are no longer under investigation
Government departments that sign-off on the 90 day review are not actually reviewing the list
The government has failed to appropriately identify or mitigate risks of listed peoples’ mistreatment by foreign entities when the list is shared with foreign airlines, in violation of Canada’s Avoiding Complicity in Foreign Mistreatment Act
A lack of clear or consistent guidance around risk factors, including those used in deciding when to list or delist an individual, run the risk of unreasonable or unfair treatment
Decisions at time of boarding a plane did not match decisions taken when an individual was listed
Even when individuals were able to apply to the Minister for a review of their listing, indicators that an individual posed a risk under the SATA regime were not consistently applied, not clearly interpreted, and decisions made were not consistently documented
There is a lack of internal oversight or feedback mechanisms to address or reconcile these issues
There is an overall lack of coordination, leadership and rigour in administering the SATA
In many cases, even when a listed individual is not subject to a denial of boarding, the result is still that they miss their flight. This is due to, for example, the amount of time that Public Safety takes to decide on what direction to provide to the airline, or the amount of time taken to carry out additional questioning of the listed person.

It is incredibly alarming that, because of a combination of administrative errors, lack of investigation, or incoherent policies, an unknown number of individuals currently on Canada’s No Fly List are essentially in an administrative black hole. Worse still is that individuals who are not deemed a threat under the criteria of the SATA, or who have been recommended to be delisted, remain on the list.

This is especially concerning given the disruptions and impacts that being on the No Fly List can have on an individual’s life: constant secondary screening or denial of boarding can limit the ability to find employment or visit family. Individuals can also be left stranded in foreign countries, unable to return to Canada, including jurisdictions where suspicion of being a national security threat can lead to severe repercussions, including arbitrary arrest, abuse or even torture.

While NSIRA clearly states in its report that these failures constitute unlawful activities, the government has so far failed to comment on how it is addressing these concerns. Moreover, these concerns raise significant questions of the impact on the Charter rights of those listed and the constitutionality of the regime.

NSIRA did point to recent improvements to the management of the PPP:

A new, centralized system that allows Public Safety, and not airlines, to screen passengers has increased fairness and consistency in decisions made at boarding.
A new redress system that allows travelers who are “false positives” (i.e. their name is the same or similar to someone on the list) to obtain a unique identifier known as a Canada Travel Number (CTN) to avoid complications has been effective, although the report does not discuss how well-known this option is or how many travellers have applied for a CTN.

It is important to recognize that these changes, especially the CTN, came as the result of years of advocacy from the public, particularly parents of children falsely flagged as terrorist threats when attempting to board flights. Working under the banner of the No Fly List Kids, they and others falsely flagged put considerable amounts of personal time and resources into advocating with Public Safety, members of parliament across parties, and the Prime Minister’s Office to achieve this important, yet basic, safeguard. While these changes may be positive in the immediate circumstances, they do not resolve the underlying problems with the listing regime itself.

It is also worth noting what NSIRA was unable to examine. While this was the first independent review of whether the Passenger Protect Program complies with its governance and legislative framework, and whether in this context the government treats individuals reasonably and fairly, NSIRA did not review the list for either its necessity or efficacy. To date, there has never been an independent study conducted on whether this secretive, rights-impacting list is necessary or even effective in safeguarding air travel or against terrorist activities abroad.

Nor did it examine government of Canada activities that precede a person’s listing, such as decisions to nominate some people to be listed and not others, or original decisions to investigate those people. Given that decisions on whether to even consider listing someone are made in secret, this gives rise to credible risks of discriminatory or discretionary decision-making, including based on race, religion or political beliefs. Strong anecdotal evidence, including testimony shared in parliamentary hearings, also point towards the No Fly List disproportionately impacting Muslims, or those with Arabic (or Arabic sounding) names.
This reflects research and reporting on other areas of Canadian anti-terrorism measures that have raised significant concerns of systemic racism, and particularly of Islamophobia and the targeting of Muslims for greater surveillance, questioning and criminal charges, and underlines the urgent need for greater examination of the No Fly List itself.

This is further exacerbated by the fact that even the number of people listed is kept secret, as well as what portion of the list are Canadian citizens or residents.

All of these problems are inherent to national security and anti-terrorism powers that are exercised in secret, with minimal transparency, oversight or review. While the establishment of NSIRA has brought significantly more substantial and independent review to Canada’s national security activities, limits in their mandates and in resources, coupled with the time required to carry out reviews, means that their work cannot resolve the deep-seated issues of government secrecy. These problems stretch beyond the No Fly List to other areas, including the Terrorist Entities List.

This is why the ICLMG coalition has taken a position, since these tools were established, that they should be repealed in favour of open and transparent measures that ensure the protection of Charter rights, and civil liberties more broadly. In many cases, existing Criminal Code provisions already render illegal the threats to public safety that these secret lists are meant to protect against, and offer at least the guarantee of an independent judicial process.

While we continue to call for the end to secretive measures like the No Fly List and the Terrorist Entities List, in the immediate the government must clearly outline how they are addressing the concerns in the NSIRA report, and launch a broader inquiry into the flaws identified by the review body and the areas it was unable to examine, as well as the broader impacts of secret travel watchlists such as the US Secure Flight Program. This review must not only look at the lawfulness, but also at the necessity and efficiency of these lists, the processes by which individuals come to be nominated to these lists, and the impact that these listing regimes have on the lives of travelers.

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