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Harper defence doesn’t fly for human rights lawyers

|Written By Tim Naumetz

OTTAWA - Human rights lawyers are astonished at a defence the Harper government has provided Parliament in response to allegations Canada’s secret no-fly list may violate the Charter of Rights.

Lorne Waldman
In a written reply to questions about the list from an NDP MP, Transport Minister Lawrence Cannon said the government, by preventing passengers who “may” be a threat from boarding aircraft, is fulfilling a duty under s. 7 to protect the right to life and personal security of the crew and other passengers.

Legal experts say Cannon has it backwards - the Charter is intended to protect the rights and freedoms of citizens from government abuse.

British Columbia NDP MP Peter Julian drew the response from Cannon in a comprehensive set of written questions he submitted to the transport minister over how the no fly list, officially called the Specified Persons List,  works.

He sought a range of answers to questions about cost, any links to the U.S. anti-terrorism no-fly list, the number of names on the Canadian list, and whether Canadians who have been wrongly put on the list are compensated.

Focusing on the question of racial and religious profiling, Julian asked whether the government has guarantees in place to ensure the list does not violate Charter protections against discrimination.
Cannon, who tabled his response in the Commons, first explained the Universal Declaration of Human Rights has identified security of the person as a basic human right.

“If a government has in its possession information that could protect air passengers, and does not use this information for that purpose, it would be failing to respect basic human rights and protect the peace,” the transport minister said.

“The Passenger Protect Program complies with Canadian laws including the Charter of Rights and Freedoms,” he went on, referring to the overall program that includes the no-fly list.

“In fact, the program is responsive to s. 7 of the Charter, which pertains to legal rights,” said his response. “Section 7 stipulates that ‘everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ ”

The response added that the wider program and the Specified Persons List have guidelines that ensure the list does not violate the Charter and stated as well that the program “strikes a balance between individual and collective rights.”

The position astonished counsel for Shahid Mahmood, a Pakistan-born Canadian citizen who has filed a complaint with the Canadian Human Rights Commission over Air Canada’s inexplicable decision in 2004 to prevent him from boarding an Air Canada bound for Vancouver while clearing his Canadian-born wife for the trip.

“That is incredible,” says Toronto lawyer Nicole Chrolavicius, representing Mahmood in his human rights challenge.

Chrolavicius said the way the no-fly list has been applied and enforcement procedures for airport scrutiny suggest racial and religious profiling may be in play.

“Our major concern is the equality issue,” she tells Law Times. “The Muslim and Arab population seems to be the population targeted by these no-fly lists.”

Mahmood has not received a reasonable explanation about Air Canada’s refusal to let him board, and the government has denied knowledge of the incident, says Chrolavicius. The Canadian no-fly list didn’t exist when he was banned from the flight.

Chrolavicius and other lawyers argue Canada has volumes of Criminal Code provisions and other statutes that provide police and security agents the mandate and authority to protect airline passengers, and a no-fly list is unnecessary.

University of Ottawa law professor Constance Backhouse was also surprised by Cannon’s position, saying even if the government has a duty to protect passengers, the Charter is intended to protect the rights and freedoms of citizens against government intrusions.

“Terrorists are not government,” she says. “Yes, you can say it’s a fundamental right that you should be free from terrorists’ obliteration, but you don’t have to accomplish that at the same time as you trample on other rights,” adds Backhouse, an award-winning university research chair as well as a Law Society of Upper Canada bencher.

“When you’re arguing that you’re protecting one human right by trampling on another, then you have to be quite clear that you’re making wise and prudent decisions based on individual characteristics, not on group characteristics.”

Lorne Waldman, who acted for Maher Arar, Canada’s most-famous airline traveller who fell victim to U.S. counter-terrorism measures following the 2001 terrorist attacks, says Cannon’s resort to the Charter to justify the no-fly list is dead wrong.

“The purpose of the Charter is to ensure that an individual’s rights are respected in the case of inappropriate governmental action,” he says, adding a secret record like the Specified Persons List has the potential for devastating an individual’s life.

“In today’s day and age, to deny someone the right to get on a plane, that could have a dramatic impact on their right to earn a living, their right to visit family, their right to live a normal life,” says Waldman, of Waldman & Associates in Toronto. “At the end of the day, if they [potential passengers] are members of terrorist groups, they should be subject to charge and prosecution on that fact alone, if there is any evidence they are.”

Cannon refused to disclose the number of individuals on the no-fly list, but told Julian officials may share it with other governments, such as the U.S., on a “case-by-case” basis if it could “reasonably be expected to protect the lives of individuals,” and only if the information is used for passenger security.

His response in Parliament said individuals are not notified if their names go on the list, which can take place if the individual is or has been involved in a terrorist group and it “can be reasonably expected” the individual will endanger the security of any aircraft, aerodrome, or the safety of the public, passengers, or crew members.

The names of individuals who have been convicted of “one or more serious and life-threatening offences” against aviation security or who have been convicted of any “serious and life-threatening offence” and who “may” attack or harm an air carrier, passengers or crew members will also be added, Cannon said.

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