Canada's No-fly List

This article was originally published in Maclean’s magazine on September 22, 2008. Partner content is not updated.

Canada's No-fly List

Air Canada Flight 864, a red-eye from Montreal to London, was scheduled to leave Trudeau Airport at 7:45 p.m. It rained earlier that morning, but by mid-afternoon only a few clouds remained in the sky. Among those holding a ticket for the June 4 departure was a 26-year-old master's student on his way to visit relatives in Saudi Arabia. His plan was to land at Heathrow, board an afternoon connection to Riyadh, and spend the next four weeks catching up with his parents and sister. His return trip to Canada was booked for July 3, a Thursday.

The vacation ended before it even started. He flashed his ID at the check-in counter, but the Air Canada agent refused to tag his bags or print him a boarding pass. A few minutes later, a Transport Canada official arrived at the kiosk, holding a three-page document faxed from the ministry's "Situation Centre" in Ottawa. The man didn't know it until that moment, but his name was on Canada's no-fly list. "The Minister of Transport, Infrastructure and Communities has determined that you pose an immediate threat to aviation security," reads the official "Emergency Direction" issued that afternoon. Stamped at 4:43 p.m., the document notified the young man that Ottawa considers him "an individual who, it can reasonably be suspected, will endanger the security of an aircraft."

Today - 15 months after Canada unveiled its controversial no-fly list - that grad student from Quebec remains the one and only person to ever be denied boarding as a result. According to documents obtained under the Access to Information Act, bureaucrats assigned to the no-fly file spent shift after shift doing little else but waiting for the phone to ring - until the day that man showed up for his flight to Saudi Arabia.

That lone case, however, is now at the centre of a contentious legal battle that threatens to quash Canada's no-fly list before it ever nabs a second suspect. Maclean's has learned that the man - desperate to clear his name - has taken Ottawa to Federal Court, arguing that the Passenger Protect program is a violation of his basic Charter rights to free movement, privacy and due process. It promises to be a precedent-setting case, a major test of that delicate balance between long-standing civil liberties and post-9/11 national security. (The list itself is so shrouded in secrecy that the feds won't even confirm how many names are on it, though the figure is widely believed to be somewhere between 500 and 2,000.)

But the case also raises a number of troubling questions about the man at the centre of the fight. Who is he? And why are Canadian authorities so convinced he is "an immediate threat" to fellow passengers?

Maclean's has learned the man's identity, but his lawyer, Johanne Doyon, is doing everything she can to keep it a secret. The same day this article was scheduled to go to press, she filed an emergency motion in court, seeking a temporary publication ban on her client's identity. "We are flabbergasted that you want to disparage his reputation," Doyon said in an interview. Out of respect for the court, Maclean's has agreed not to print any identifying details for one week until a ruling is made on the request for a temporary publication ban.

Lawyers for Maclean's are contesting the motion, but it could be weeks, if not months, before the issue is finally resolved. In the meantime, the man remains an anonymous master's student, challenging the constitutionality of Canada's no-fly list without having to reveal his identity. When contacted on his cellphone, the student politely apologized and declined to discuss his case.

This much can be reported: born in the Palestinian territories in September 1982, he immigrated to Canada and became a permanent resident in 2004. Now days away from his 27th birthday, he juggles a part-time job and full-time studies at a Montreal university, where he's pursuing a master's degree in engineering and computer science.

In his notice of application, filed two weeks after he was sent home from the airport, he claims the list is unconstitutional because he was never informed of his inclusion and never given a chance to see the evidence, let alone refute it. "I have never had problems with the police, in Canada or elsewhere, nor do I have a criminal record," the man wrote in a sworn affidavit. "I am not a danger to the public or to an aircraft."

According to his court filings, he purchased a $1,500 round-trip ticket to Riyadh 13 days before his scheduled departure. He claims he had to return to Saudi Arabia by June 29, 2008, in order to maintain his residency status in the country where his family still lives full-time. "The decision taken by the Minister ... to include my name on the no fly list is a violation of my rights, and has caused me irreparable harm as I will now lose my right of residence in Saudi Arabia," he wrote in his affidavit. "It would have been easy to search me and my bags, which would have been less of an infringement on my rights and would have allowed me to travel."

His file includes photocopies of his passport, his permanent resident card, his flight itinerary, and a letter from the registrar of his university, confirming his enrolment. "I have never been the object of a criminal accusation," his affidavit continues. "I have always conducted myself well and have a good reputation within the community."

If the applicant really is a victim of faulty intelligence, he wouldn't be the first. Every day in the United States, thousands of innocent travellers are hassled, questioned and delayed because their names closely resemble an entry on the American no-fly list. Since 2001, the U.S. version has ballooned to at least 44,000 names. Senator Ted Kennedy was once grilled by airline staff; so was a soldier returning from a tour of duty in Iraq. Canadians are not immune, either; the American list is in effect on all U.S. flights that come and go from Canada. Bill Graham, the former Liberal defence minister, was once told that his name was a match.

Well aware of the horror stories south of the border, TRANSPORT CANADA set out to devise a much narrower list "limited in scope and focused only on aviation security." Inclusion is based on "a person's actions," the government says, not race or religion. The criteria range from involvement in a terrorist organization to a conviction for "serious and life-threatening crimes" involving airplanes. Every entry is supported by a secret assessment conducted by CSIS and the RCMP, and the minister of transport must personally sign off on every entry. "There is no automatic inclusion or exclusion on the list based on a single factor or combination of factors," the department told the privacy commissioner in 2005. "The information on each individual would be considered on its own merits."

Transport Canada also created an Office of Reconsideration, a quasi-appeal mechanism for those who don't believe they belong on the list. An independent contractor - hired by the federal government for $150 an hour - examines the secret evidence, interviews the applicant, and advises the minister on whether that person's name should stay or go. The final call, though, still rests with the transport minister, currently Lawrence Cannon.

The young man in this case lodged a complaint with the Office of Reconsideration two days after he was denied boarding in Montreal. An investigator has already questioned him, and a final report should be submitted to the minister in the coming weeks. It is a confidential process, and separate from his Federal Court action.

Though Doyon and her client are keeping quiet, the man's choice of lawyer speaks volumes about the nature and importance of his case. Doyon is a well-regarded immigration lawyer in Quebec with a reputation for tenacity. In 2000, she represented Walter Obodzinsky, a naturalized Canadian citizen accused of having been a member of a Nazi death squad in his native Belarus during the Second World War. (Obodzinsky died as the government was in the midst of stripping his Canadian citizenship.)

More recently, Doyon has represented Adil Charkaoui in a case that has redefined how the Canadian government treats those suspected of terrorist activities. In 2003, the Moroccan-born Charkaoui was arrested in Montreal on a security certificate, which allows the government to indefinitely detain any landed immigrant thought to be a threat to national security.

The ensuing trial included testimony from Ahmed Ressam, the so-called "Millennium Bomber" who plotted to bomb Los Angeles Airport on New Year's Eve, 1999. At first, Ressam claimed to have met Charkaoui at an al-Qaeda training camp, but later recanted his testimony. In early 2007, the Supreme Court issued a unanimous ruling overturning the use of security certificates. Doyon, who championed the fight against these certificates, called the decision "a near-total victory." She has since petitioned the Federal Court to compel journalists from La Presse to divulge their sources on a story published about Charkaoui and his alleged discussions about a terrorist attack.

"She is a first-class lawyer," says William Sloan, a veteran immigration attorney also based in Montreal. "She's worked on a few of the security cases, and everything from refugee cases to humanitarian cases. Everything I've seen of hers, she's done a very professional job. Generally, people get into trouble because they didn't have the best counsel. Eventually they'll figure out that all lawyers aren't created equal, and they'll ask around and find out who is good. She's good."

Bernard Letarte, a Department of Justice lawyer, would not comment on the no-fly case, except to say that the feds plan to contest the man's complaint. A government factum should be filed in late fall or early winter, he said. Transport Canada is also staying tight-lipped. Allan Kagedan, the department's chief of aviation security policy, was scheduled to speak to Maclean's last week, but the interview was abruptly cancelled at the 11th hour. Instead, Patrick Charette, a ministry spokesman, pointed the reporter to remarks Kagedan made when the program first went live in June, 2007. When asked why the government is suddenly unwilling to talk about a multi-million-dollar public safety initiative, Charette responded: "I have no answer."

Last year, Kagedan told a parliamentary committee that the new list strikes a fair and necessary balance. "We're very concerned about civil rights, but we're also concerned about the human right of the security of the person," he said. Suspected threats are identified by name, gender and date of birth, and it would be "extremely rare" for two people to share those exact same attributes, he said. The list is reviewed every 30 days, and if you're on it, it's because of "reliable and vetted" intelligence. "There is no aspect of racial profiling," Kagedan testified. "We object to it. I personally consider racial profiling to be repugnant and unacceptable."

Perhaps so, but when the International Civil Liberties Monitoring Group launched a research project to document specific instances in which travellers were wrongly targeted by the program, it found that the vast majority of the respondents to its website, www.travelwatchlist.ca, were of the Muslim faith. Roch Tassé, a spokesman for the project, says more than 100 people have already been harassed, quizzed and delayed because their names are very similar to another on the list. "These people have no recourse, because even though there is an appeal mechanism, if you are not the real person on the list, you can't appeal to have your name removed from a list you're not on."

Groups such as the ICLMP believe the no-fly list is an arbitrary tool prone to abuse and political meddling. It violates the basic principle of a presumption of innocence, and the final arbiter is the minister, not an independent judge. "They've designed a program and just said: 'Trust us, we'll do this right,' " says Graeme Norton of the Canadian Civil Liberties Association. "The experience in the United States has shown that programs like this can have problems, and when they do, people can be quite severely affected even though they've done absolutely nothing wrong."

In Montreal, the anonymous student now finds himself in a vexing position: the government of his adopted country has deemed him an immediate danger, yet has effectively prevented him from leaving. And even if he is allowed to fly to Saudi Arabia once again, he worries the resulting stigma of being branded a threat will remain - and perhaps even endanger his life. "My personal security has been compromised by the fact that my name has already been placed on the no fly list," he wrote in his affidavit, later quoting from an Amnesty International document alleging Saudi authorities regularly torture suspected terrorists.

His only consolation is that nobody on the street will recognize his face. For now.