Guilty To Fly,
Too Innocent To Charge?
By Faisal Kutty
20 March, 2007
As the Canadian government forges
ahead with its cleverly named Passenger Protect Program, the timing
could not be better to seriously reconsider what is for all intents
and purposes a no-fly list.
The attention to the issue
of watch lists generated by the struggles of Maher Arar (the Canadian
citizen detained by Americans and shipped off to torture and interrogation
in Syria) to clear his name should make us all sit back and reflect.
There are many lessons to be learned from the Canadian government’s
recent apology and financial settlement with Arar for its role in his
One of these lessons is that
hasty and ill considered national security initiatives which are essentially
aimed at managing perceptions more than they are in really addressing
legitimate and manageable security concerns are not harmless. In fact,
they cause disproportionate harm in return for very minor gains in terms
of intelligence and law enforcement. The innocent and unintended victims
of such initiatives are real human beings with lives, rights and dignity.
When not properly designed to address the negative impacts such initiatives
can significantly disrupt and even destroy lives.
Another lesson from the Arar
saga is that religious and racial profiling, no matter how vigorously
it is denied, is too often the reality for a growing number in Canada’s
Muslim and Arab communities at least in the national security context.
In fact, this was confirmed by none other than the Department of Justice
in a report leaked a couple of years ago.
A number of other men of
Muslim/Arab heritage have made similar allegations as Arar. Three of
them will get their own less comprehensive inquiries. One of the common
denominators of each of their stories is the fact that they were placed
on one kind of watch list or the other.
The proliferation of government
watch lists is a troubling development in the “war on terrorism.”
The challenges of such lists include differences of opinion on who’s
actually a security threat, consolidating information across agencies
by making the computer systems communicate the with one another. In
fact, Canada’s Auditor General Sheila Fraser found in 2004 that
watch-lists used to screen visa applicants, refugee claimants and travelers
seeking to enter Canada were in disarray because of inaccuracies and
And now we have another list
to worry about.
As we consider the need to
improve our intelligence and law enforcement systems, we must have an
open and informed dialogue about what measures truly make us safer while
ensuring that our fundamental values, liberties and rights are not sacrificed.
The proper forum for such a debate is our legislature. Bypassing this
vital and necessary debate – as was done with the Passenger Protect
Program -- is irresponsible and cavalier particularly given the findings
of Justice Dennis O’Connor in the Arar Inquiry, the Canadian track
record with watch lists to date as well as the experience with such
lists south of the border. The information sharing protocols and mechanisms
which were criticized by Justice O’Connor have not been improved,
yet the government continues with the no-fly initiative which mandates
that we share – and even merge and consolidate -- information
with foreign entities and agencies, which may have less scruples in
listing and targeting innocent people on flimsy grounds.
Making lengthy watch lists
based on subjective and political criteria and then giving the power
to add and remove names to agencies that have a vested interest in the
national security agenda is akin to asking the fox to guard the hen
house. Such lists – which will inevitably fill up very quickly
with “false positives”, political dissidents, and those
whom our friends and neighbours subjectively designate as threats –
will not make us any safer or interrupt any terrorists, if the U.S.
experience is any indication. To make matters worse, real terrorists
may not even be placed on the list for fear of tipping them off. According
to the U.S. homeland security department, known terrorists are not placed
on the list for fear that they would know they are being watched. Even
this new “made-in-Canada” list will be shaped by the U.S.
and other nations’ lists as they cross-fertilize pursuant to intelligence
agreements, the Smart Border Declaration and the Security and Prosperity
Partnership of North America (SPP), both of which call for increased
cooperation and information sharing.
How can such a list provide
anything more than a false sense of security while leaving it rife for
blacklisting innocent people as well as racial and religious profiling?
Indeed, Canadians should be asking the government how an individual
can be too dangerous to fly, yet be free to roam the streets and plot
The no-fly list threatens
liberty, equality and mobility rights guaranteed in the Canadian Charter
of Rights and Freedoms. Moreover, it leaves little practical recourse
to get off the list.
The experience of some individuals
who are already encountering difficulties in flying within Canada without
even having a list of our own does not give one much confidence. The
extraterritorial application of U.S. watch lists is already impacting
on Canadians – how will Canadians fare once Transport Canada introduces
its own official list and over time it becomes increasingly shaped by
other nations’ intelligence, criteria and practices?
As the CATO Institute’s
Jim Harper pointed out, the unilateral process is alien to our legal
“Rather than watch-listing, people who are genuinely suspected
of being criminals or terrorists should be sought, captured, charged,
tried, and, if convicted, sentenced. Watch-listing allows law enforcement
to be very active and intrusive without actually doing what it takes
to protect against crime and terrorist acts. ... watch listing and identification
checking [are] like posting a most-wanted list at a post office and
then waiting for criminals to come to the post office.”
Anti-terrorist watch lists may serve a very limited useful function,
such as separating individuals deserving of increased investigative
attention, but they will never be complete or be totally accurate. They
should not, however, be the basis for serious restrictions on liberty
such as the denial of transportation or violations of privacy or other
rights without the benefit of due process and the principles of fundamental
justice. They may have a limited role in designating who to investigate
further or watch so long as there is no deprivation of rights or privacy
violations and provided that they are compiled pursuant to due process
of law and without resort to subjective criteria or racial/religious
In raising her voice against
the no-fly list, the Privacy Commissioner of Canada, Jennifer Stoddart,
said the list “represents a serious incursion into the rights
of travelers in Canada, rights of privacy and rights of freedom of movement.”
To this I would add, increasing likelihood of racial and religious profiling,
silencing dissent and persecuting unpopular religious and political
Transport Canada must not
be given a carte blanche to deprive Canadians of our liberty, mobility,
equality and privacy rights, even though aviation security has now become
a legitimate national security concern. The government’s appeal
to national security should not exempt it from due process, principles
of fundamental justice, accountability, transparency, oversight and
a full Parliamentary debate.
The system envisaged by Passenger
Protect is wholly inadequate, as it will be over inclusive, with high
likelihood of false positives, pose a serious potential for racial profiling,
and completely lack any meaningful redress mechanism or process.
Perhaps, what is needed is
not this list, but better investigative and intelligence work to gather
evidence so that those who are real threats are charged and kept off
the streets, not just flights.
Faisal Kutty is a Toronto lawyer, writer and doctoral
candidate at Osgoode Hall Law School of York University. He serves as
vice chair and counsel to the Canadian Council on American Islamic Relations
and filed submissions against the Canadian no-fly list on behalf of
more than two dozen organizations from across the country. The submission
entitled “Canada’s Passenger Protect Program: Too Guilty
to Fly, Too Innocent to Charge?” is available at www.caircan.ca.
His articles are archived at www.faisalkutty.com.
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