Canada’s "No-fly list" facing constitutional challenge

[Sep 19, 2008 01:41 PM]

A graduate student from Montreal has become the first person denied permission to fly under Canada's controversial "No-fly list" which came into force on June 18, 2008.

The student, who was barred from boarding a flight at Trudeau airport on June 4, 2008, was planning to spend a month in Saudi Arabia to maintain his residency status and visit his family.

Now, he cannot board any plane and must fight to clear his name.

His lawyer Johanne Doyon has filed a notice in Federal Court that she intends to challenge the constitutionality of the Passenger Protect Program (No-fly list) as it violates his rights to due process, freedom of movement and privacy under Canada's Charter of Rights and Freedoms.

"My client was never informed that his name had been placed on the list, he has not been given any opportunity to see the evidence used to place him on that list. He has no way of defending himself," she said. In the affidavit filed with the application, her client states that he does not have a criminal record, nor has he ever had any "problems" with the police, as he has always conducted himself properly and has a good reputation within the community.

A Supreme Court ruling in 1998 in the Baker case established there is a duty to procedural fairness. This ruling was further reinforced in the Charkaoui ruling of June 2008. The Supreme Court found that the Canadian Security Intelligence Service had a duty to disclose all information in its possession concerning individuals arrested under national security certificates. It also found that Adil Charkaoui's Charter rights had been breached.

Ms. Doyon is also appealing the decision to put her client on the Specified Persons List before the Office of Reconsideration of Transport Canada. She has urged the officials reviewing her client's case to recommend to the minister that he exercise his powers in accordance with the Charter. A report is expected to be submitted to the minister in the coming weeks.

In the first year of the Passenger Protect Program, Transport Canada reported approximately 100 cases of false positives based on a list that is said to contain between 500 and 3,000 names.

Many of the travellers who have been snagged and delayed when flying are members of Arab or Muslim communities. Some of the persons who have encountered problems when trying to check were told to "change your name," to avoid future delays. Others have been told to join Air Canada's loyalty program to accelerate boarding procedures.

On June 10, 2008, a Transport Canada official told the International Civil Liberties Monitoring Group that "no one has been unable to board a flight due to our program". The minister's Emergency Directive against the Montreal student was issued six days earlier.