Gov’t Loses Air Blacklist Case

Dale Smith, www.blacklocks.ca
Transport Canada has lost a six-year campaign to conceal basic details of its no-fly list. A federal judge ordered the department to reconsider a media request for the number of Canadian citizens on the security blacklist.

“It’s a heartening decision,” said Micheal Vonn, policy director of the British Columbia Civil Liberties Association. “It signals that courts will call upon Ministers to very importantly demonstrate the basis of the exercise of their discretion around those decisions.”

Under a program enacted in 2007 all airlines must run passengers’ identities through a security blacklist prior to boarding any aircraft. An “advisory group” including the RCMP and Canadian Security Intelligence Service are mandated to recommend “additions or removals from the list” from time to time.

Transport Canada in 2010 refused a request from the Québec daily La Presse for the total number of individuals on the so-called Specified Persons List, and how many were Canadian citizens. Then-Transport Minister Lawrence Cannon in 2007 estimated up to 2,000 people were blacklisted.

Federal Justice Simon Noël said disclosure of the data posed no obvious security threat; ordered Transport Canada to reconsider the request “in an informed way” within 90 days; and pay court costs for La Presse. “There is a total lack of evidence to support the argument that international relations with the United States and others would be adversely affected,” Noël wrote.

“Years are ticking by,” Vonn said. “It is not the case at all that this information is not relevant to the public assessing this program; it is relevant. But the battle that you have to put into play to access this information when again, sweeping claims of national security concerns are made – this case is a demonstration of the time and effort that is required.”

La Presse made its original request under the Access To Information Act. The Office of the Information Commissioner was co-plaintiff in the lawsuit. “This is not an unusual state of affairs,” Vonn said.

Transport Canada had claimed the information would be “be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities”. In 2013 Information Commissioner Suzanne Legault rejected the department’s claim and said there was no legal reason to conceal how many people were on the list.

Cabinet in 2015 enacted new Secure Air Travel Regulations that transferred control of the blacklist to the Department of Public Safety. The regulations prohibit airline staff or contractors from using blacklisted names “except to the extend necessary to carry out their duties under the Act” under threat of $25,000 fines.