Bill C-51 would match Canadian no-fly scheme to the US — and go further
This week is Stop C-51 Week, marked by events throughout Canada and elsewhere in opposition to Bill C-51, currently under consideration by the Parliament of Canada, “An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.”
We’ve joined a who’s who of civil liberties and human rights organizations, activists, and experts from Canada and around the world who have co-signed a letter to Prime Minister Stephen Harper opposing Bill C-51.
It’s only a slight oversimplification to say that Bill C-51 is Canada’s version of the USA Patriot Act, 13 years later but on steroids. It appears to violate the Canadian Charter of Rights and Freedoms and Canadian obligations pursuant to several human rights treaties including the International Covenant on Civil and Political Rights (ICCPR). But if enacted, and if not voided on constitutional grounds by Canadian courts, it would purport to authorize a wide range of government spying, “pre-crime” policing (profiling), and preemptive interference with the exercise of fundamental rights.
Bill C-51 is an omnibus bill which incorporates almost everything one might expect to find on a secret police wish list.
One component of Bill C-51 that particularly concerns us, but which seems to have received less attention than some other sections of the bill or than we and some other experts on freedom of movement think it deserves, is the portion of Bill C-51 comprising the so-called “Secure Air Travel Act“.
If Bill C-51 is enacted, it would be the fourth time since 9/11 that Canadian law has been amended to allow and/or require government surveillance and control of air travelers in ways that were previously unauthorized and/or contrary to prior Canadian law including the Personal Information and Electronic Documents Act (PIPEDA).
The previous legislative acts to override PIPEDA and authorize surveillance of air travelers to, from, and within Canada include Bill C-44 in 2001, Bill C-42 in 2011 (we testified against this bill when it was under consideration by Parliament in late 2010), and Bill C-45 in 2012 (nominally an omnibus budget bill, but see Sections 264 et seq. amending the Customs Act).
If enacted, the Secure Air Travel Act and related provisions of Bill C-51 would create, for the first time, a statutory basis for the existing (and apparently illegal, or at least lacking an explicit basis in statute) enforcement by the Canadian government of a “no-fly” list based on secret Canadian and US administrative decisions.
Our friend Prof. Colin Bennett of the University of Victoria (British Colombia), a leading academic expert on the comparative politics of no-fly lists in the US and Canada and one of the signatories of the petition opposing Bill C-51, has published a detailed analysis of how Bill C-51 would affect the Canadian no-fly list.
The “no-fly” procedures proposed in Bill C-51 are similar in many respects to the procedures being used in the US, as described in the most recent filings by the US government in lawsuits challenging US no-fly orders. We’ll leave it as an exercise for our readers to figure out, or speculate, just how much behind-the-scenes coordination there has been by US and Canadian authorities in developing the most recently revised and proposed procedures on both sides of the US-Canadian border.
Under the system contemplated by Bill C-51, a person who discovers they are on the Canadian no-fly list when they are not allowed to board a flight can apply to the Minister of Public Safety for “review” of the decision that was already secretly made, on the basis of secret evidence, to put the person on the Canadian no-fly list. The Minister or his or her designee will secretly review the secret allegations against the person and the evidence (if any) in the government’s secret files about the person.
If the Minister decides to keep the person on the no-fly list, the person will be told that the minister has decided to keep them on the no-fly list, but won’t necessarily be told anything about the basis for that decision. The person can then, and only then, ask a Canadian federal court to review the Minister’s decision. But the court will be required to apply a deferential standard of review, under which the court can overturn the minister’s decision only if it is “unreasonable”. And the entirety of the court hearing and all of the evidence considered by the judge can be kept secret from the person trying to challenge the no-fly order, making it impossible for them to know what allegations or evidence they need to rebut.
Like their counterparts in the US, Canadian authorities began issuing no-fly orders to airlines, and requiring airlines to enforce them, without any clear statutory authority or legal basis for these actions.
Some might argue that establishing a statutory framework for the administration of a no-fly regime, as would be done by Bill C-51, is an improvement over a scheme operated entirely outside of the law.
We disagree. The current extrajudicial administrative no-fly orders being issued both by the Canadian and by the US government lack any basis in law in either country, and exceed the authority of the agencies issuing these no-fly orders. As long as this remains the case, they remain vulnerable to eventually being challenged and overturned on these grounds (in addition to the Constitutional objections, in both Canada and the US, that remain available regardless of what laws are enacted by Parliament or the US Congress).
By incorporating at least purported authority for secret administrative no-fly orders restricting the fundamental right to travel into Canadian statute law, Bill C-51 would move government controls on free movement in Canada beyond even those in the US, where no-fly orders continue to lack a basis in any act of Congress.