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 �extraordinary rendition.�
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 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 another.
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 shoddy
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
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 henhouse. 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 terror.
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 system:
�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 whom 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 profiling.
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
Transport Canada must not be given 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.
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. His articles are archived at www.faisalkutty.com.