The government has tabled a massive omnibus bill to overhaul the country’s national security regime, which will be debated this fall.
Lawyers say they have concerns about how the bill addresses issues such as collection of personal information, information sharing with other governments and how to help clients who find themselves on the no-fly list.
“If you’ve got a client who is a target of the service and the service is doing their job properly, you’ll just never know about it, nor will the target,” says Anil Kapoor of Kapoor Barristers in Toronto. “A lot of this stuff is going to happen under the radar. The question is whether that architecture is sound.”
Nader Hasan, a partner at Stockwoods LLP in Toronto, says the bill is an improvement on the existing regime put in place by the previous federal Conservative government, known as Bill C-51. Hasan says that even with the changes, the current bill requires improvement.
Part of the proposed legislation addresses the Passenger Protect Program, otherwise informally known as the no-fly list.
Kapoor says that one of the “chief deficiencies” of the legislation is questions about how clients impacted by being on the list can pursue litigation to have themselves removed.
“[W]hether or not your client can come off of that list is impaired by the fact that there can be a closed process, where the government relies upon intelligence information to justify your client being on the list that your client never gets to see,” he says.
Kapoor, who is a special advocate under the security certificate regime, says there have been cases under the regime that were found to have been improperly issued.
“A lot of that has been the result of the hard work of special advocates,” says Kapoor. “Remarkably, there’s no provision for special advocates,” he adds.
Hasan agrees that the lack of special advocates to challenge the no-fly list is a lost opportunity for the government.
“Arguably, the main reason why the Supreme Court has held that the security certificate regime is not unconstitutional is the presence of the special advocate regime, and advocates and civil liberties groups have been calling for there to be a special advocates program with this no-fly list for some time now,” says Hasan.
“It’s a bit disappointing that the government has not seen fit to include this in its amendments.”
Kapoor says it’s unfair that a person’s liberty and their ability to travel can be restricted without them having a say in it.
“Surely there should be some sort of allocation for their participatory rights by having a special advocate there to level the playing field,” he says.
Kapoor says the lack of special advocates makes no sense and will have to work its way back up to the Supreme Court of Canada.
Paul Champ of Champ and Associates in Ottawa says that there are added provisions in the bill that are designed to help eliminate false positives in the system, such as children who are routinely flagged.
“They’re going to create some kind of system where individuals who are regularly stopped based on a false positive can get an identifier number from the minister of Public Safety so that they don’t have those problems,” says Champ, but he adds that it is merely a cosmetic change.
“Instead of meaningfully addressing the overall problem of the reliability or credibility of the listing regime, they’ve just tweaked it a bit to say don’t worry about children,” says Champ.
Hasan adds that no-fly lists don’t make sense given that the government already has the power to lay a criminal charge, seek a terrorist peace bond or make preventative arrest, and that having a list simply because the Americans do does not suffice. Champ agrees that there is insufficient information to justify the need for such a list.
“There is a lack of information about how pervasive this is,” says Champ. “It’s very difficult for people to assess in any way why we even have a regime like this in place . . .”
Other changes in the bill include scrapping the investigative hearings powers that were never used since their creation in 2001, and the creation of a new intelligence and national security oversight body that will be able to look across departments rather continue to have their increasingly co-ordinated activities be subjected to siloed oversight.