Monday, May 16, 2016

In a commentary in the Toronto Star, JD student Riaz Sayani-Mulji argues that no-fly lists violate the Canadian Charter of Rights and Freedoms, and there is no proof they have stopped a single threat ("Time to ground no-fly lists," May 15, 2016).

Read the full commentary on the Toronto Star website, or below.

Time to ground no-fly lists

By Riaz Sayani-Mulji

May 15, 2016

Public Safety Minister Ralph Goodale has announced changes will be coming to how the Canadian no-fly list operates, in response to more than 40 families coming forward with stories of their children being flagged and questioned when trying to board planes in Canada.

While unclear on the details, Goodale explains that a joint Canada-U.S. working group will tackle the problem. Ending the profiling of (predominantly Muslim) children at the airport is a laudable goal, Goodale’s proposed solution, however, misses the bigger picture.

The no-fly list is a major violation of the mobility rights guaranteed under the Charter of Rights and Freedoms and the Trudeau government, like the Harper, Martin and Chretien governments before it, has yet to adduce any evidence showing that the no-fly list has stopped a single threat or is otherwise effective in protecting Canadian national security.

In today’s globalized world, it is easy to imagine how wide-ranging the consequences of being placed on the no-fly list may be. Someone who needs to fly across the country for work, who needs to travel abroad to visit their family, or who is outside of Canada and can only return via flight will be unable to do so.

Section 6 of the Charter expressly guarantees international mobility to all Canadian citizens, as well as guarantees interprovincial mobility to both citizens and permanent residents. Canadian Courts have also interpreted section 7 of the Charter as protecting elements of intraprovincial mobility, a protection that applies to all Canadians regardless of their status.

When one considers how the no-fly list has the potential to inflict banishment and exile, in addition to a kind of detention within Canadian boundaries, a court would be hard-pressed to find that the no-fly list doesn’t violate the Charter’s guarantee of international, interprovincial, or intraprovincial mobility.

The onus lies on the Canadian government to justify any violation of Charter rights. Part of this justification would require evidence demonstrating that the no-fly list actually contributes to its purported goals of protecting aviation security and interdicting foreign fighters.

All the public knows is that there have been hundreds if not thousands of false positives since the program’s inception. While it may seem like common sense that a no-fly list would protect aviation security, this overlooks the fact there already exists criminal laws police can employ to charge and arrest individuals who are, for example, planning to blow up an airplane or travel abroad to fight in a foreign military force.

What the no-fly list amounts to is the argument that an individual is too dangerous to fly and yet not dangerous enough to be arrested by police. Giving the government the discretion to prevent these individuals from exercising their Charter-protected mobility rights because they may pose a threat in the future, on the basis of extremely low evidentiary standards, goes against basic norms of civil liberties and human rights that Western democracies claim to hold so dear.

The American Civil Liberties Union has argued the U.S. no-fly list is not about protecting aviation security but instead a tool used by the FBI to coerce listed individuals into becoming informants and spy on their families and communities.

In ongoing litigation over the constitutionality of the U.S. no-fly list, the U.S. District Court for Oregon noted the FBI offered to remove many of the plaintiffs from the no-fly list if they became informants. Many of these plaintiffs were also placed on the no-fly list while abroad, effectively exiling them from the U.S. and increasing the pressure on them to spy for the FBI.

With Goodale promising increased cooperation with the U.S. in administering the no-fly list, one wonders if this tactic will be more commonly used in Canada. In the only known case of a Canadian denied boarding due to the Canadian no-fly list, Mohammed Al-Telbani alleges that CSIS had him placed on the no-fly list after he refused to become an informant.

In fact, independent security experts who reviewed the government’s evidence against Al-Telbani found he posed no threat to aviation security, supporting Al-Telbani’s assertion that he was listed as retaliation for not complying with CSIS’ demands.

Much of the hype surrounding the Trudeau government was that the dark days of the Harper government would be over, especially with regards to Harper’s disdain for the Charter. If the recent developments with the no-fly list are any indication, Trudeau plans to maintain this disdain when it comes to the Charter’s guarantee of mobility.