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 shoddy updating.
And now we have another list to worry
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 neighbors 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 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 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 political views.
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
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.
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
He can be reached at