Proceeding of the Standing Senate Committee on
Human Rights
Issue No. 41 - Evidence - Meeting of May 8, 2019
OTTAWA, Wednesday, May 8, 2019
The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to examine and monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations (topic: Passenger Protect Program).
Senator Jane Cordy (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning and welcome. I’d like to begin by acknowledging that we are meeting on the unceded traditional lands of the Algonquin people.
My name is Jane Cordy. I’m from Nova Scotia. I have the honour and privilege to be one of the deputy chairs of this committee.
I now invite the senators to introduce themselves, beginning on my left.
Senator McCallum: Mary Jane McCallum, Manitoba region, Treaty 10.
Senator Wells: David Wells, Newfoundland and Labrador.
[Translation]
Senator Cormier: I am Senator René Cormier from New Brunswick.
[English]
Senator Ataullahjan: Salma Ataullahjan, Toronto, Ontario.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia.
The Deputy Chair: Senator Bernard happens to be the chair of the committee.
Today, under the committee’s general order of reference, we are studying the Passenger Protect Program, particularly the difficulties that families are facing when their children are not able to check in or are delayed when travelling because of having similar or the same names as people on the no-fly list. We are looking at what steps are being taken and how best to address this issue, which we’ve all heard a lot about.
Before introducing our first panel, I want to deal with a procedural matter. The committee has received a request to film, during the second part of our meeting, the No Fly List Kids participants for the purpose of a documentary film. Is it agreed that permission be granted?
Hon. Senators: Agreed.
The Deputy Chair: That Leila Almawy have permission to film the No Fly List Kids’ participants during the meeting for the purposes of a documentary film, and we agreed. Thank you.
In the first hour today, we’re hearing from government officials. Let me introduce from Public Safety Canada, John Davies, Director General, National Security Policy. He’s accompanied by Andrew Lawrence, Acting Director General, Travellers Programs Directorate, Canada Border Services Agency; and we have from Transport Canada, Wendy Nixon, Director General, Aviation Security.
Mr. Davies, you have the floor.
[Translation]
John Davies, Director General, National Security Policy, Public Safety Canada: Thank you for inviting us to speak to you today about this important program.
Canada’s no-fly list is known as the Passenger Protect Program. The Secure Air Travel Act, or SATA, list enhances security by identifying and mitigating risks posed by individuals suspected of posing a threat to transportation security or who are attempting to travel by air to commit terrorism-related offences. This program was originally set up under the authority of the Minister of Transport in 2007 to address exigent threats to the civil aviation system. In 2011, the establishment of the list was brought under the authority of the Minister of Public Safety.
[English]
The Secure Air Travel Act of 2015 updated the program, including the formalization of recourse for persons denied boarding under the program. The 2015 amendments further consolidated authorities for the program under the Minister of Public Safety. It also extended the scope of listed persons to include those who may exploit the civil aviation system to travel for terrorism activities.
The Passenger Protect Program is one of the tools available in response to threat actors that travel for the purposes of terrorism and to address the continuing threat to this important infrastructure.
It is important to note that the current system relies heavily on air carriers’ regulated participation to verify the identity of travellers and alert the government. As with any screening program, it can create delays or frustrations among the travelling public who feel that they may have been unnecessarily delayed by the program.
Delays that relate to the Passenger Protect Program occurs when there is a name match to the Secure Air Travel Act list. This requires the air operator not to issue a boarding pass until the traveller’s identity is verified. In practice, this will involve a brief call from the carrier to Transport Canada to verify the person.
The majority of what we call “false-match calls,” are resolved by Transport Canada in less than two minutes. However, we are certainly aware that this process can take longer than this at the check-in counter, as often the carrier will need to work through its own back office to verify these types of cases.
False matches can involve children, as carriers are vetting name information in the reservation that does not have a date of birth. Without a date of birth to verify the age of the passenger, the child’s identity will need to be confirmed through a manual check-in.
The new provisions under the proposed Bill C-59 would address these issues.
Under the new system, passengers will be vetted directly by the Government of Canada in advance through centralized screening of manifests. It will also establish an effective redress mechanism for those who falsely match the SATA list.
By contrast, when the current system was set up in 2007, the technological and cost impediment of centralizing the vetting process using electronic advance passenger information was too great. Without centralization, there is no viable way for the government to provide a meaningful avenue of redress to persons falsely matched to the SATA list.
[Translation]
Moving forward, the new national security legislation, Bill C-59, takes important steps forward by providing a framework for authorizing the government, instead of airlines, to screen passenger information against the no-fly list; allowing travellers to apply for a unique identification number; allowing parents to receive confirmation that their child is not on the list; and specifying that, if the minister doesn’t respond to a request for removal, the name is removed by default.
[English]
In summary, under Bill C-59, amendments to SATA would update and enhance the Passenger Protect Program in two important ways: by ensuring effective, consistent and rigorous government controlled vetting of the SATA list and improved privacy and fairness to Canadians through the establishment of an interactive redress system for individuals with a similar name to someone on the SATA list.
Enhancements to the Passenger Protect Program were funded in Budget 2018, and they are a priority for the government pending passage of Bill C-59.
To implement this initiative, Public Safety will be working closely with the Canada Border Services Agency, Shared Services Canada and Transport Canada to collect advance passenger information from air carriers travelling to, from and within Canada.
Building off of CBSA’s Advance Passenger Information System, advance traveller information received as early as 72 hours prior to departure will be used to pre-clear travellers by checking against their name, date of birth and a redress number if available.
Transport Canada will continue to work with carriers under the future system to ensure compliance and to receive calls from carriers on people who match the SATA list.
I’ll turn now to my colleague now from Transport Canada, who can speak in more detail to the role that Transport will be playing in the future. Thank you.
[Translation]
Wendy Nixon, Director General, Aviation Security, Transport Canada: Thank you for inviting us to speak to you about this important aviation security program.
[English]
I will keep my remarks brief. I would like to echo Mr. Davies’s comments with respect to the importance of this layer of security in protecting the safety and security of those using the Canadian aviation system.
As Mr. Davies mentioned, Transport Canada is responsible for two important components of the Passenger Protect Program. The first is to act as the intermediary between air carriers and the Government of Canada in providing or distributing the Secure Air Travel Act list — the SATA list — as well as to respond on a 24-hour, seven-day-a-week basis to calls from air carriers with respect to potential matches on the list.
When a potential match is identified, as discussed by Mr. Davies, Transport Canada validates the match with the air carriers through the verification of identification and additional information that can be provided on the passenger.
Transport Canada’s second role is to conduct oversight and through inspection and enforcement activities of the regulations, both domestically and abroad, to ensure air carriers are properly vetting the list, that they have procedures in place to address possible matches and that they are, in fact, protecting the procedures from unauthorized disclosure.
In the 2018-19 fiscal year, Transport Canada conducted, as an example 1,850 inspection activities related to the Passenger Protect Program to ensure a strong and robust program.
As we move forward, the objective of the enhanced program includes easier travel for passengers who have a name similar to a listed person on the SATA list while ensuring strong security compliance of this important program to Canada.
Over the last two years, Transport Canada has been working quite closely with Public Safety, as well as with CBSA, to develop an enhanced program that will provide a more seamless flow for travellers while minimizing the regulatory burden on air carriers and enhancing security at the same time. Under this enhanced model, as described by Public Safety, Transport Canada would continue to be responsible for the same two aspects of the program, intermediary to the air carriers as well as for the oversight of the act and regulations.
With the passage of Bill C-59, however, Transport Canada would be able to undertake these roles and responsibilities with a newer, more modern operational model. Advanced passenger information and technology will assist the department in its vetting and risk analysis. With the addition of more robust and consistent biographical information, as well as the use of redress numbers, Transport Canada will be able to do a more efficient and effective job of targeting only those that need to be prevented from flying for security reasons.
I firmly believe this enhanced program will greatly ease travel for passengers who have a name similar to a listed person. In addition, a robust oversight program will continue to ensure strong security compliance for this important program and important security layer.
Once again, thank you for allowing me to address the committee, and I’ll stop there.
The Deputy Chair: Thank you very much for your comments, both of you.
I will now start with questions.
Senator Ataullahjan: I have a couple of questions. How effective has this program been? When you have names, is that the only information you have, a certain name? When I’m booking a flight, I give all the information that is on my passport. Couldn’t you check and see if you have a five-year old or a six-year-old on that list? Is there any way for you to do that? It would save a lot of grief.
Mr. Davies: Maybe I can start. On the first question, the effectiveness of the program, obviously, it’s a security program and it is difficult to talk about numbers, in terms of people the program has stopped from travelling for terrorism purposes or to prevent anything that could happen to the plane.
But it is an effective program. It is one tool among many. It works in conjunction with other security agencies’ powers, whether that be surveillance, police powers and so on, the ability to remove passports et cetera. You have to look at this as one tool among many. There have been a number of instances in the past few years where it was very important in terms of stopping someone from travelling for terrorism purposes.
In terms of what is collected, is your question about what is collected now or what information we have? When someone is nominated to the Secure Air Travel Act list, we have as much information as we have on the biodata of the person, their name, the date of birth, their aliases, the passport number, if they have a passport. All of those go into the system so if someone shows up at the airport with a similar name, it’s easy to deconflict. We have lots of data points so we can do that.
The issue is more when you buy a ticket online, what data fields you fill in and whether or not, when the carrier does its matching based on those reservations, as they assemble their manifest, that is enough for them to deconflict. Do they need to call Transport Canada to help get more information to make sure the person is who they said they are?
Obviously the carrier is going to be risk-averse and anything that looks like a close match, they are going to be careful and talk to Transport Canada and that’s sometimes when things slow down.
Senator Ataullahjan: Can you explain how Bill C-59 will ensure that Canadians, including young children, would no longer be falsely flagged on the no-fly list and the experiences that they have with delays at the border too?
Mr. Davies: Let me go after the first part.
With Bill C-59, the legislation includes all the authorities for the government to set up the regulatory change, in terms of requiring the carriers to take in different kinds of information to allow the government to centralize the screening process.
The government will be doing this in a centralized way up to three days in advance of the manifest, as the manifests are sent into the government.
There’s a window prior to when the boarding passes can be printed at home, for example, where we may be able to deconflict on our own. When you apply also the potential, with Bill C-59, the enabling of a redress mechanism — where people can get a unique identifier to ensure that we will know who they are — that will automatically kick them out of anything that, as the manifest is assembled, looks like the actual person we’re worried about on the SATA list.
Everything should happen automatically and it should happen many days prior to the actual boarding pass being printed, certainly before you arrive at the airport.
We need these authorities in Bill C-59 to make the regulatory change, so CBSA is also empowered to assist in terms of the program as we go forward.
Senator Ataullahjan: Thank you.
Senator Bernard: The question I have first is for Mr. Davies. Could you expand on what qualifies as “any other information,” which is stated in subclause 129(1) of Bill C-59? More specifically, I’m interested in whether or not you can tell us whether race and/or ethnicity are considered “any other information” and how this information might be considered relevant or useful?
Mr. Davies: You’re talking about subclause 129(1), refers to any other information and in a number of places.
Let me first talk about how the Secure Air Travel Act list is assembled. When the security agencies are concerned about an individual, they think this is an appropriate tool, they will bring the information available to an interagency discussion to make sure that the threshold for the act is met, the threshold is reasonable suspicion.
Derogatory information is assembled, as is any exculpatory information that is put out. And there’s a discussion on whether or not that individual should be listed. If it is agreed, the minister is delegated in the decision to the assistant deputy minister in Public Safety, national security. This discussion is done now in a name blind and photo blind way. In terms of the race, ethnicity, where they are from and so on, that is not seen by the decision makers. This is something that has been piloted over the past year in an attempt to just ensure an objective decision is being made.
In terms of what’s being done now in the assembly of the list, that is operational now.
What we’re interested in is name, date of birth and gender, if available, and there are changes in terms of how we’re going to be dealing with gender to increase the number of points available as the algorithm is assembled to make sure we’re connecting or identifying the right person as either the person we want to screen out or not to allow board the plane versus identify as a false positive.
Senator Bernard: How does the name blind process work?
Mr. Davies: As I said, when the information is presented to the decision maker, the names are removed from the decision, the photo is removed, any identifying variables to the individual.
Senator Ataullahjan: Just help me a bit. You are saying the names are removed?
Mr. Davies: For the decision maker, yes.
Senator Ataullahjan: For the decision making, so you can’t tell ethnicity or anything, because the name is not there?
Mr. Davies: The name of the subject that is being presented for consideration is removed.
Senator Ataullahjan: So when you place someone on a no-fly list —
Mr. Davies: We’re trying to make sure that the decision is purely threat-related. We’re only making the decision on the threat information available. We’re removing the person’s name, photo and so on to control for any other variables that could enter into the discussion on whether there’s a threat.
Senator Bernard: I have one other question, Mr. Davies.
The federal government established the Passenger Protect Inquiries Office to assist individuals who believe their travel was disrupted as a result of being on the aviation security list.
Can you tell us how many cases have been resolved by the office since its implementation?
Mr. Davies: Again, I think “resolution” is probably a subjective term. I would have to get back to you on the number of inquiries in terms of the number of submissions.
We’ve heard a lot of criticism about the Passenger Protect Inquiries Office. We’ve changed around the organization. We’ve brought in some new people to make a sincere attempt to reconnect those people who abused it in the past, to market it differently and work more closely to understand cases that individuals have.
The issue when you’re talking about a no-fly list, people very quickly conflate their travel issues around a no-fly program. There are a lot of reasons you can have trouble when you travel. Another list may be out there, carriers may have their own lists, as might other countries and so on. So we’re trying to reorganize the PPIO to make sure we’re getting what we need to get from everyone in terms of the circumstances of the event and then working interdepartmentally, whether that’s with Immigration, Transport and so on to go forward.
I can tell you that we do get maybe five or 10 inquiries a week. That’s a ballpark figure. I don’t know if we have a full file closed sort of notion in terms of cases solved. It’s difficult, because some people go off and travel, and you don’t hear from them again, and that kind of thing.
As we rebuild the program, we’re going to rethink the metrics for results and success as well. That’s a bit of a work-in-progress.
Senator Bernard: If there’s any documentation you have, that would be useful for the committee. Thank you.
Mr. Davies: Sure.
Senator Wells: I have a couple of questions. If someone is flagged on the list — and I assume it’s flagged at the Canadian side — does that trigger something else? For instance, if there’s a known terrorist or suspected terrorist, does that trigger an action on the other side that might include detention or something, or are we just interested in stopping them from flying to Canada?
Mr. Davies: It really depends on the individual. If someone is being stopped, say, coming from Europe to Canada and there has been an identified match, that is a concern for the entire security community. Discussions are facilitated through different situation centres, depending upon the agencies interested in the individual. Consular issues might be involved, or there might be an immigration angle.
It depends upon the case, but once the person is identified, and if there’s a no-board decision, there’s a lot of discussion about the best way to manage this individual as he or she attempts to return to Canada. It depends upon the individual.
Senator Wells: So an individual books a flight, and the next process is that they get their boarding pass.
Mr. Davies: They wouldn’t get a boarding pass.
Senator Wells: So that would stop at the booking of the flight.
Mr. Davies: At the counter — because the person would not be able to get the boarding pass online; they would have to show up at the counter — the carrier is regulated to, in this case, call Transport Canada to confirm identity. Transport would be working with the Government Operations Centre, with the RCMP or CSIS, to understand who they are dealing with and what the plan of action is regarding that individual. If it’s a no boarding situation, the assumption is that they would need more time to figure out the best thing to do. The kind of information that would be shared with local authorities would depend very much on the case.
Senator Wells: And on the relationship we have with that country.
Mr. Davies: If there’s an arrest warrant out for that individual, or if it’s just an individual trying to return and there’s concern — and what kind of managed return would be possible in that scenario.
Senator Wells: Is there any cross-referencing with a lost or stolen passport list? Is it tied into that system as well?
Mr. Davies: Public Safety also manages the cancellation, refusal or revocation of passports linked to national security. It’s a very similar process to the Passenger Protect Program. It’s the same agency and generally the same people around the table.
In that sense, the operation side of agencies, the control and the decision making are all the same and synonymous. Yes, we’re all very much linked up.
Senator Wells: Everyone is on the same page?
Mr. Davies: Yes.
Senator Wells: Finally, if the objective is to prevent terrorists or suspected terrorists from flying to Canada or entering Canada, is there a complementary program for entry by sea or via land borders? Is that tied into the system, or is this strictly for flight?
Mr. Davies: This is strictly for flight in terms of the air mode. The equivalent doesn’t exist for sea, rail and so on. Perhaps my colleague from Transport can better describe other kinds of security measures that may be available in that vein.
To emphasize, this is just one tool. Whether you’re talking about passports or surveillance, and you can talk about how peace bonds can be set up, there are other ways to get at that concern, if we were expecting an individual to travel by certain means to a certain place.
Senator Wells: Finally, in different cultures and societies, names can be similarly spelled.
Mr. Davies: Yes.
Senator Wells: I’m assuming you can’t flag everyone. How much of this is risk management?
Mr. Davies: When there are individuals on the Secure Air Travel Act list, known aliases are also accompanied. A person could have up to 10 aliases, for example, for name variations.
I’m not sure if that answered your question.
Senator Wells: How much is this is science, and how much of this is risk management?
Mr. Davies: Right now, the carriers themselves are vetting the manifests versus the lists that we give them. Going forward, in a centralized screening situation, obviously we learn a lot from how this is already going on for inbound in terms of customs, immigration controls, how can we can use names variance and how algorithms are set to what kind of risk tolerances we may have. We’re working with CBSA and others to define that algorithm.
Senator Wells: Thanks very much.
[Translation]
Senator Cormier: I’ll be asking my questions in the other language. I should point out that I’m not a member of the committee. I’m just standing in for Senator Boyer. I have two questions. One is about privacy, and the other is about the mechanisms available to travellers affected by the program.
First, the Privacy Commissioner and other stakeholders have raised concerns regarding the impact of the Passenger Protect Program on Canadians’ rights to privacy and freedom of movement. You touched on that, but how does Bill C-59 address those concerns?
Second, the House Standing Committee on Public Safety and National Security recommended that the Secure Air Travel Act be amended to provide for the nomination of a special advocate to protect the interest of individuals who have appealed to have their name removed from the specified persons list. Why was this recommendation not retained in the proposed amendments to the act? Thank you.
Mr. Davies: Thank you for the question.
[English]
First, on the privacy side, we’re of the view that privacy will be dramatically increased with the new program. We say that now, because under a regulated program a pre-sensitive list is out under the regulated program. So over 100 different carriers, their security systems and so on have access to the lists and are told to vet manifests on lists.
There’s compliance on that to make sure things are done properly and so on, but the reality is in the new system, under the government-controlled screening, very few people have access to this list. It will be cut by very high magnitude in terms of who has access.
We generally think, other than a security benefit, a fairness benefit. There are strong privacy upsides to moving to a centralized screening approach.
On the special counsel, or what’s known as special advocates, we’ve heard this a few times lately. The minister, when he was at the other committee of the Senate looking at Bill C-59, or it was the deputy, mentioned the difference. One thing was the Federal Court. When these issues get to the Federal Court for judicial review or whatever, the judge always has the option to appoint an amicus, or a friend of the court, who would have access to classified information. In many cases, I believe, the amicus is actually a special advocate. It’s the same. There’s not a big roster of counsel available who have access to top-secret clearances. Those counsel can see all the classified information, help the judge in any way the judge sees fit in terms of the case.
So that option is there and is being utilized all the time in the Federal Court.
The other issues here, it’s difficult to just pick one program. We know that special advocates already exist in the Immigration and Refugee Protection Act under division 9 for security certificates, but just to say this program should have special advocates, I think it is probably better to look at this more holistically.
You mentioned before passports. Maybe that would be something you would want to introduce in the passport program. Other administrative law aspects. I don’t think you just want to start picking one or the other. A lot of work is still going on. Intelligence evidence, this issue was a big part of the green paper that was part of the government’s consultations. I think that’s something you would want to come back to once more experience is gained, as more cases go through administrative recourse and then if they get to the Federal Court.
One final thing on special advocates. It is a cost issue, too. Special advocates are extremely expensive to maintain and train. It’s just another issue to think about on that.
Senator McCallum: Thank you, madam chair and thank you for your presentations. I’m also not a regular member. It’s my first time. I’m sitting in for Senator Brazeau.
I wanted to go back to the statement you made about the entire security community, and my focus is on the information sharing that you have with human rights abuses and how it’s connected to Canada’s use of the U.S. lists. That with information sharing, SATA was authorizing greater information sharing with international counterparts.
The reason I bring this up is that it seems like it’s the new citizens who are in danger of being targeted. With Canada welcoming an increase of new citizens, that it might become a bigger problem, and there are no statutory limitations on how that information can be used by the foreign state.
In June 2018, documents obtained through access to information requests revealed that Canada has been using a huge secretive U.S. anti-terrorism database called Tuscan, and it’s provided to every Canadian border guard and immigration officer and empowers them to detain, interrogate, arrest and deny entry to anyone found on it, and that Canada uses it as the second no-fly list.
It seems, like it says, it’s an outdated list. These are extraordinary powers that are granted, and it doesn’t seem that there are any sanctions.
How can a U.S. law be enforced in Canada? Is this true information, and is it enforced in Canada?
Mr. Davies: Thank you for the question. There are a lot of layers to this onion. I think the first reference, when I mentioned the entire security community, I was referring to the federal government’s community, the six or eight or so who work on this program.
Your question is about how we share with other countries and the conditions. You’re right, under former Bill C 51, I think it was section 12 of the Secure Air Travel Act. That created a provision in law to allow us to establish agreements. The minister can create an agreement with another country to share our list or mutually share each other’s no-fly lists.
There are a lot of reasons for doing that. Canada signed on to a number of UN Security Council resolutions in fighting terrorism, ISIL and so on.
We made a number of commitments. The minister recently made commitments in the Five Eyes context sharing information with close allies to prevent terrorist travel and so on.
Regularly our security agencies share information with their partners abroad when they have reason to do so when there’s a nexus to their country or to our country. Those agreements are always set up very carefully in terms of the caveats on that information in terms of making sure the originator, meaning, for example, ourselves would have control on any forward use.
In the context of Passenger Protect Program, this is a very important issue for us, how we forward control the use of any information we would be sharing with another country. They are not allowed to forward or share that information with anyone else. They can only use it for the same mandate as the Passenger Protect Program for transportation, security, or to prevent travel for terrorism.
There are a number of caveats and conditions on it. Also very important in terms of how we think about taking people off the list.
The reason we want to go into these agreements is also to help open up those channels so if there are people who shouldn’t be on the list that we know of, they get off. If there is clarifying or exculpatory information, that information is also shared, and we have that direct line with that country to make sure that happens.
It’s not a one-way flow. It’s a two-way dialogue to make sure the right people are on the list, or we share information on those people that are particularly a threat.
With regard to Tuscan, I don’t recall something going out on ATIP. I’m not sure if it was dated or not, but that is a separate issue. That is a separate agreement linked to customs, immigration control. It has nothing to do with the no-fly program. This is more upon arrival in Canada or before visas are granted. Or if there are any issues that come up, CBSA or IRCC would have a chance to ask questions based on that information. It has nothing to do with a no-fly program. It doesn’t affect a boarding-related issue. It’s a completely separate issue.
Senator McCallum: Okay. So that was misinformation that was given.
I wanted to follow up on Senator Bernard’s question about the name-blind and photo-blind. In your database, do you have profiles of the ethnicity of the people who have been stopped?
Mr. Davies: No.
Senator McCallum: Do you think it would help? It’s just that the problem of racial profiling pops up all the time.
Mr. Davies: You’re asking if we should create a profile?
Senator McCallum: No. I’m asking if it would help.
Mr. Davies: Help in what way? Just to be more aware?
Senator McCallum: Because people feel they’re being targeted if they’re a minority. The reading I do, it’s the Muslim community, and they give the names of the people who have been stopped.
Mr. Davies: I think the national security community in Canada is very aware and conscious. We’ve been doing a lot of thinking about what we call gender-based analysis plus. The plus being particular concern with issues of race, ethnicity, religion, age, other factors in decision making that need to be considered as we move forward. Even on the gender side, the issue related to terrorism issues is different when you look through a gender lens.
That is why I brought up that biodata blind decision making is an effort on our part to try and see how we can change decision making to take out any kind of subjective bias that could enter, however unintentional, into the decision making. We’re working with the community on lots of other projects in this regard, zeroing in on how decisions are made and what else can be done in that regard. That’s really why I brought it up, as an example of, at least, an effort. I know it’s just one example. It can’t deal with all the concerns communities may have in their views on the national security community and so on, but it is a genuine effort to remove that issue from any concerns that this list was created with any variables around race or ethnicity in mind.
Senator Ataullahjan: Correct me if I’m wrong, but you are saying that the fact that so many Muslims are stopped just happens to be a coincidence, the fact that there are so many minorities on that list just happens to be a coincidence?
Mr. Davies: Again, I’m not able to tell you who is on the list or not. I think there are assumptions made about whom is on the list. I’m not totally sure what else I can say on that. All I can say is that the list is reviewed every 90 days, the entire list. There’s a discussion and updated information to make sure that threat information is valid. We know this is obviously a litigious area and we could be challenged, and we want to make sure the threshold is well established and it could hold up in any proceeding.
I just relayed to you an attempt by us to remove any sort of sense of bias in the decision making. We know that we need to do a lot better with engagement, and we learned a lot in the green paper process of connecting with communities to have that discussion, to dispel any myths, to work closely and to see how we can maybe go further in how we improve our decision making. We know we need to do better in that regard.
The Deputy Chair: Thank you. You spoke about the new system that will be in place if Bill C-59 passes. In this case, if it passes, then the screening will be done directly by the government and not through the airlines. So will this make the system more efficient? Will it make it faster? More importantly for the people who are on the list, who are two and three years old, will it reduce false positives? Will it make it easier to get off the list if you’re a 2-year-old with a similar name to somebody else?
Ms. Nixon: Let me speak to that. I think John has already spoken to the fact that what we’re talking about under the new system is time and technology. First, the advanced information that will be provided will allow us to do a lot more vetting of the information. Couple that with additional biographical data that will have access to the system and technology that will allow us to do more automated targeting, we expect it to be much more efficient in reducing both false positives and in making an assessment, flagging to our targeters who are the folks we actually need to pay attention to.
In essence, we are making the haystack much smaller. The current program, if you will, right now reduces the haystack a bit but leaves a pile of hay still to sort through. We expect under this new process that we’ll reduce it much closer to the needles we’re trying to identify and remove other people. Just to clarify the comments about removing people on the list, only people who are security threats are people who are on the list. But the timepiece, the additional biographical information and the redress system allows us to take away false positives or potential false positives from the people we need to weed out. Again, it is making that haystack quite a bit smaller in terms of our targeting.
The Deputy Chair: Your point is valid that the people whose names are on the list are, in fact, terrorists. But the problem is always somebody who has the same name or a similar name.
You also spoke, Mr. Davies, about allowing parents to receive confirmation that their child is not on the list. How would that work? A parent knows that with their child, every time they go to the airport, there are huge delays in letting them fly. I know you also said that people could have a unique identification number, so that would clarify that they are not the person who is on the list. What about parents being notified of confirmation that it’s not their child? Would that be official documentation if they’re at the airport?
Mr. Davies: To be honest, we’re still working out how it’s going to work once we have Royal Assent and figuring out how to roll it out. I don’t want to oversell the value of this. It originates from cases that were in the news, and we were in the awkward situation, and even the minister can’t say this child is not on the list. We were not allowed, by law at the time, to say who is on the list and who is not. It was a weird legal thing. Removing that will allow us to be very clear to the parent that there was no inadvertent action or mistake. It’s not your child. I can assure you, he or she is not — we work with that family towards getting them a redress number, a unique identifier to ensure that it will remove all the false positives in the future related to this program.
On how the actual notification will be given, we’re still working that out. Will it be used as a document that will help you travel? Unlikely. I think it will be more of a means to an end of a better solution, which is probably working towards a redress number.
The Deputy Chair: It’s easy to determine that the 2-year-old is not the same person who is on the list. The challenge, I think, comes as the 2-year-old becomes a 16-year-old, a 25-year-old, and the same name is on the list. It’s not them.
Mr. Davies: The age won’t matter if there’s a unique identifier that deconflicts the person.
The Deputy Chair: That would be helpful.
Senator Ngo: I want to ask a question. Bill C-59 proposes the elimination of the power of the CBSA to disclose to air carriers and operators of reservation systems the names of the passengers on the list. Could you tell us why?
Mr. Davies: I’m not sure what you’re referring to. Bill C-59 proposes the elimination?
Senator Ngo: Proposes to eliminate the power of the CBSA.
Mr. Davies: It’s kind of the reverse. Bill C-59 enables CBSA to play a role in the Passenger Protect Program. Right now they’re lacking that authority, particularly regarding the domestic portion of the program. CBSA is actually going to be working more as a delivery agent for the new system. The powers in the bill will ensure those authorities are in place.
Senator Ngo: Besides CBSA, who else?
Mr. Davies: Transport Canada will be doing the compliance with the carriers, everything to do with direct interface with the carriers. Shared Services will be working with CBSA on the build, on the centralized database and screening component. Public Safety is overall in charge of the project, the redress function and so on.
Senator Ngo: I would like to follow up on the question from Senator Cormier. He stated that some groups argue that the process of listing individuals or removing them from the no-fly list impairs constitutional rights. In your view, does Bill C-59 address these issues?
Mr. Davies: Does the process of listing them impair the constitutional —
Senator Ngo: Listing and removing.
Mr. Davies: I’d say removing doesn’t because I assume they would be happy if they were removed. To listing, I would say, “no.” There was a Charter analysis done back when Bill C-51 was released — and Bill C-59 — that goes over the government’s view in terms of the legality of the program and so on.
Again, this program is run at a threshold of suspicion of terrorism. It’s debatable, but in terms of rights and the ability to board that plane, it’s comparable to other rights that can be affected in other programs. I think the answer is “no.”
Senator Ataullahjan: My question is for Transport Canada. Help me a bit. You talked about enhanced travel, enhanced security and layers of security. Through this process, there’s no way to tell that there’s a person with a name who is 45, 50 or 60 year-old, and there’s a six-year-old who has the same name who is stopped from boarding?
Ms. Nixon: Thank you for the question. It’s important to understand the current process as it is now. We do not have a perfect capture of the biographical data. When you’re flying domestically, for example, you’re not required to put date of birth or that type of information in your reservation. For flying internationally versus domestically, different information is being captured.
The requirement in the program right now, in trying to catch the needles in the haystack, we’re capturing a broader group because of possible name match. That’s where the system stops right now. The person is made to come to the check-in counter, and then the rest of the information, identification, the age of the person and those types of details, are verified at that time.
The intent moving forward is to change that around by capturing the information first. There will be a capture of that information both for domestic flights as well as international flights. Not just from an international perspective but also domestically, we would like to see people put in their data.
When we talked about the time and technology factor, that’s where it’s going to help us. We’re going to be able to weed through and make sure we’re not targeting people who should not be targeted; that we’re actually only looking at those who are on the Secure Air Travel Act list for reasons of security and because they are a threat to the transportation system.
It’s for that idea that we’re going to get that biographical data plus the possible redress on people to be able to eliminate them in future. Right now, we have a name match, which is an imperfect system, and because of common names and other things, we’re capturing too many.
I’ll go back to the point of children being on the list. There are no children on the Secure Air Travel Act list. It does seem like a commonsense type of approach to just reduce them. But that data, in terms of their age, is not always being captured in the reservation system information. On domestic flights, it’s not captured. On international flights, it’s captured in different ways. So we’re trying to get to the state where that biographical capture is consistent for any type of flight within Canada, from a designated airport.
That’s an important component, and that’s what we’re trying to do in terms of working consistently. We’re using the entry-exit system as a way for the air carriers to do this, so we’re not increasing the burden on them having to provide this advance information more than once. They will provide the information once. When you make your reservation online, that information will be provided to us. The verification will be done in-house, with additional information that we have, and that will really reduce the number of people who are going to be flagged in the system.
Senator Ataullahjan: Currently, if I try to check in online and I’m denied, and I go to the airline counter and I’m asked to do a special search, what does that mean? Does it mean my name is on the list?
Ms. Nixon: No. That’s the difference between the current system and the proposed one. It means there’s a possible name match. Something has been flagged in the system that says you have been identified and additional information is required, whether that’s an identity verification or other types of information such as your age or location. That needs to be done at the check-in counter.
In future, that won’t be the case. That will be automated and behind the reservation you’ve done provided by the air carrier 72 hours in advance and then regularly updated.
The Deputy Chair: Thank you very much to the three of you for being here this morning. You’re our first witnesses as we begin our study on the no-fly list. On behalf of the committee, thank you very much.
In our second hour this afternoon, we’re going to hear from people who are directly affected by the Passenger Protect Program. Let me introduce Khadijah Cajee, Co-Founder of No Fly List Kids, a group of more than 100 Canadians with children or grandchildren whose names have been flagged on the no-fly list; Bashir Ahmed Mohamed, an individual who has been falsely flagged on the no-fly list; and Sarah Willson, the mother of a three-year-old boy on the no-fly list, and she is also a member of No Fly List Kids.
We will begin with Khadijah Cajee. We will give you five minutes to speak, and then we will hear from our other witnesses. Go ahead.
Khadijah Cajee, Co-Founder, No Fly List Kids: Thank you for having us here today. The No Fly List Kids group was founded as a group of parents of young children who are falsely flagged on Canada’s no-fly list. It has grown now to represent Canadians of all ages who have been impacted by the list. That list, that antiquated system, has received international attention. It was even mentioned by Conan O’Brien on his late-night show a couple of years ago.
The list includes people of all ages from a variety of diverse backgrounds. In fact, Senator David Smith and former Defence Minister Bill Graham were both falsely flagged on the list. Just two days ago, on Monday, Senator Richards mentioned that his son had previously been falsely flagged on the list when he was a teenager.
My son, Adam, will be 10 years old in a couple of weeks. He has been flagged on this list since he was born. We first flew with him when he was six weeks old. He must be visually identified each time we travel by air. Having a child falsely flagged routinely results in travel delays, inability to check in online, increased scrutiny by airline and security personnel, and stigmatization and marginalization, arguably queuing up the next constitutional crisis.
False positives of the no-fly list raises serious privacy rights implications, as well as potentially affecting the Charter-protected mobility rights of Canadians under Section 6. Some of our children have been denied initial boarding and delayed to the point that they have missed international flights. Older No Fly List Kids avoid travel due to the potential for stigmatization.
All families find that the security screenings have become increasingly invasive as their children get older. Some of the kids are now adults and advocating on their own behalf with two of them attending a Senate hearing just two days ago here in Ottawa.
Additionally, though this list contains names of people from all backgrounds, as mentioned above, it does skew towards Muslim-sounding or Arabic-sounding names, thus questioning the violation of their rights under section 15 of the Charter which protects and promotes equality under the law.
False positives also hurt business travel. Mr. Stephen Evans, who was the chief technology officer at Kijiji and has held senior positions at MSN, Canoe and the Toronto Star, has written a piece for The Globe and Mail about his experience being on the no-fly list. He is one of several executives who have shared their stories with us.
With bad data like this being shared with foreign nations and due to the nature of bilateral information-sharing programs, Canadians also risk being falsely flagged in foreign jurisdictions and by agencies that may not uphold similar values to human rights and life as we do here in Canada. Innocent people risk being associated with acts they did not commit, resulting in possible detention, false imprisonment and torture, as has happened in the past with Mr. Maher Arar.
Arar’s case was a classic example of bad data being shared with and abused by a foreign country. He will have the stigma and trauma of this experience with him for the rest of his life. That gross oversight cost the Canadian taxpayers $10 million. We cannot risk having this happen again to one of our children as they grow up.
Since 2008, Canadian domestic carriers are not required to screen passengers against the U.S. no-fly list on domestic flights even if they enter U.S. airspace. Bill C-59 removes authority from the hands of the airlines to make decisions and screen at their discretion. My son has been designated high-profile since infancy. I do not want him living the rest of his life with this cloud of suspicion lingering over him. He is a child now. I am able to advocate for him and protect him, but this won’t always be the case as he gets older.
In 2009, the United States shifted the responsibility from airline operators to the TSA and has since seen a significant decrease in the number of redress requests which is important because, and I quote:“Approximately 98 per cent of the applications to the Department of Homeland Security Traveller Redress Inquiry Program are determined to be false positives.”
Most of the children and adults on whose behalf we are speaking today have applied to the DHS TRIP program and have been cleared by the United States. Yet they continue to face issues while flying domestically or on domestic airlines.
We are all paying a price. The fact that we are here in front of you is evidence of that cost. What we don’t know is what we’re getting in return for the price we are paying. Is this no-fly-list system even effective? It would be worth studying the no-fly-list regime and determining its effectiveness. Using our finite resources to screen multitudes of innocent people is a waste, in my opinion. That being said, until we get those answers, we need to ensure that those of us who are affected have access to a robust, accurate, transparent redress mechanism. A program like that would result in fewer false flags and an improvement in the efficiency and security of our human rights system as well as our air travel and national security regime.
Thank you.
The Deputy Chair: Thank you very much.
Bashir Ahmed Mohamed, as an individual: Good afternoon, senators.
I want to talk today about two people who are named Bashir Mohamed. One is a notorious militia leader and a top-ten-ranking member of al Shabaab. This Bashir Mohamed is sanctioned by the United Nations and is responsible for motor attacks on civilian centres.
The other Bashir Mohamed is more boring. He works a normal office job, rides his bike to work and spends his free time in the archives doing research on Alberta’s history. Since becoming a citizen of Canada, it seems that the government has been mixing us up, so I want to introduce myself again.
Good afternoon, senators. My name is Bashir Mohamed. I was born in 1994 in a Somali refugee camp in Nairobi, Kenya. My family got asylum to Canada and landed in Edmonton on February 12, 1997. I don’t know why we were sent to Edmonton but we were and it’s the place where I grew up. That day is the first day I saw snow. My sister convinced me that snow was sugar, so I put it in my backpack and it all melted.
That was my first experience with Canada. It’s a place where I would grow up and where I would get my citizenship in 2011. Before I got my citizenship, I was stateless. I legally belonged nowhere. I hoped that things would change when I became a Canadian and I got a passport. I was wrong. Instead I noticed that weird things were happening whenever I flew. I couldn’t check in online and was consistently delayed. At a certain point I got frustrated and asked to see the agent’s screen. On it there was a purple box that said, “DHP Passenger.” I googled that and it turned out to mean “Deemed High Profile.” Remember, I’m the boring Bashir from Edmonton.
I did some research and found out many other people, even kids, were being flagged. They were being flagged by a list primarily based on someone’s name — their name.
To be clear, to flag me, a Canadian citizen, and have my threat level checked by a security officer each and every time I fly does not only make me feel like a second-class citizen but it also makes me one. In addition, it blows my mind that a system so supposedly critical to our country’s security infrastructure can create false positives on something as simple as someone’s name.
I understand this problem is being examined and is on the way to getting fixed. Frankly, I don’t care how much it costs to fix the program or how many bureaucratic hurdles they have to go through, but it is my hope that the Senate takes this problem seriously so that people like myself and many across Canada are no longer treated like second-class citizens.
It is also my hope that, after these hearings, I can check into the airport, board my flight home and continue my boring life without trouble. Thank you, senators.
The Deputy Chair: Thank you very much, Mr. Mohamed.
Sarah Willson, Parent, No Fly List Kids: Thank you so much for giving me the opportunity to speak here today. My name is Sarah Willson and I am a parent in the No Fly List Kids group. My son, who just turned four years old, has been falsely flagged on Canada’s no-fly list since he was a baby.
Because my child is a DHP, which is airline lingo for “Deemed High Profile,” we are unable to check in online and are not assigned seats together. We must arrive at the airport hours ahead of our flights, line up for check-in assistance to physically prove that our son is not an actual threat, provide additional identification like passport, a NEXUS card, birth certificate, Aeroplan, and wait to be cleared. We face secondary screening at security and then we must attempt to get seats together at the gate before boarding. These inconveniences and delays are difficult for adults but they are excruciating for children and families travelling with young children. It is stressful travelling with children in the best of scenarios so you can imagine the added stress and difficulties these issues cause families.
In addition to these inconveniences is the stigmatization of being treated like a criminal with no system in place to clear your name and to prevent this treatment from occurring. Moreover, the stigmatization and repercussions of being falsely flagged grow increasingly worse as children grow into adults.
Our family has experienced this perspective first-hand because my husband has also been falsely flagged on Canada’s no-fly list. Our child being flagged as a terrorist is an obvious error to airline staff — far more obvious than the innocence of an adult. My husband routinely faced being taken to holding rooms, having his passport confiscated, additional security checks and much longer delays. He has had troubles with travel visas and has missed work and school opportunities as a result.
These issues affect the mobility of falsely flagged individuals and the life choices they make, including education, career and personal travel decisions.
My son will be at that age soon where he will feel these repercussions. I do not want him to miss out on normal school or sports opportunities as a result of his being embarrassed in front of his peers or afraid without his parents to face the stigmatization and uncertainties of flying. Ultimately, our children should have the same experiences and opportunities as other children. As young adults, they should have the same access to education and career opportunities that require air travel.
I fear for what this will do to my son’s identity. He is still too young to understand what’s happening, but it’s only a matter of time before he may start to internalize this treatment. The fact that Canadians from Arab and Muslim communities are disproportionately targeted troubles me since my son, along with my husband, both have Muslim names and darker skin. The optics of the two of them having troubles flying, while I do not, sends a dangerous message that normalizes the stereotype of racialized threats.
Changing my son’s name has been suggested to me numerous times by well-meaning people, and while I understand that this is intended as a practical solution, I feel that whitewashing my son’s name to prevent his being profiled is not a solution but a reinforcement of the problem. Two of his names come from his Anglo-Saxon Protestant ancestry, and the other two come from his East-African and West Indian Muslim ancestry. I do not want him to feel shame over his name or heritage, and he should never have to erase part of his name or identity to feel safe or receive normal treatment. What message could that send to him suggesting that we erase half of his identity, the non-White one, because that might make travelling within his own country easier? Also, logistically, with names like David Mathews, David Smith and Bill Graham on the list, there are no guarantees that that suggestion would even be effective.
There are children in our group who are now entering adulthood who have been falsely flagged since they were infants. While I appreciate the efforts Public Safety has been making this year with their pilot project to remove biases, I worry about the damage that’s been done from over a decade of no bias control.
Moreover, with the lack of transparency and no direct studies of the no-fly list, I worry about the effectiveness of the current attempts for bias control when there’s no transparent oversight of the program.
What will the long-term effects be for Canadian children who have been flagged as terrorists, name-shamed and stigmatized? What opportunities will they lose out on? The United Nations Convention on the Rights of the Child, which Canada signed and ratified, states that children have the right to develop in conditions of freedom and dignity without discrimination and with full opportunity for play and recreation. I do not believe that Canada has lived up to these promises for the children falsely flagged on Canada’s no-fly list.
Thank you.
Senator Ataullahjan: Thank you for your presentation.
When I proposed this study last year, it was because of a direct conversation I had with a parent whose six-year-old was on the no-fly list. Then, after that, I did get emails and calls to my office, and I had conversations with people about how this was impacting people’s lives.
You just heard the previous testimony, and with the questions we asked, I felt sometimes we didn’t get the answers. What was your reaction to that? I don’t know if it’s possible, but can you give me a breakdown of the people who have been affected by this? Do you take the ethnicity into account? Do you take religion into account? From what I hear and what we see when we are at the airports, it’s certain people who are being targeted. Am I wrong? If I am, please correct me.
Ms. Cajee: All the evidence we have collected is anecdotal, what people have told us. Definitely the names that have been put forth to us skew towards certain demographics. There’s no doubt about that. It’s mostly Muslim-sounding or Arabic-sounding names, absolutely. There’s no question about that.
That does bring me to one point about what was said before in the previous testimony about the name-blind and photo-blind mechanism that they’ve been piloting. I’m not sure if it was made clear enough by Mr. Davies before, but that’s actually a pilot program they’ve implemented in the last year or so. This program hasn’t been in implementation for a very long time. It’s something that they’re trying.
However, if the decision is made on evidence that is purely threat-related, the nature of the threat itself is enough to indicate the person’s ethnic origin or creed. If they are associated with a certain background like a country or a religion, that’s enough to imply that the person’s name is going to be of a certain type, like Muslim-sounding or Arabic-sounding or whatever the case may be.
I don’t think this name-blind and photo-blind system is actually foolproof.
The other point that one of the previous people had made was about the fact that there are no children on the list.
If that is the case, then there would be no need for a provision in the bill allowing the government to inform parents whether the kids are on the list or not.
I know it’s like a technicality that our children are not actually on the list, but in reality, as far as we’re concerned, they are. They are flagged each time they fly. We don’t have access to the redress mechanism available right now because our kids are never actually denied boarding. For people denied boarding, they have access to redress mechanisms, so we are at a disadvantage in that respect with the current system.
Senator Ataullahjan: To both the other witnesses, Bashir Mohamed is a common name; I’m sure there are others getting flagged. Are you satisfied with what the current government is doing? This is a question we have raised with the public safety minister who said he would be looking at it. Are you satisfied with that?
Ms. Willson, as I was listening to your testimony, I was wondering: Is she married to an Arab? You answered the question. When was the first time you found out your child was on that list? Can you help me go through that?
Ms. Willson: When he was a baby, we found out right away. I think that also goes to show how children do have it easier because for my husband it took years for us to find out, asking questions, and then finally it was a sympathetic airline clerk who told us. For our son, the airline clerk told us right away. She thought it was ridiculous to see a baby being flagged.
Mr. Mohamed: When it comes to the government’s current actions, obviously, I wish that this was fixed way before. I am happy that they seem to be taking this seriously, but at the end of the day, the program is still not fixed.
To illustrate this problem, I’m somebody who has done everything right according to our system. I’ve gone to university. I volunteer in the community. I’m participating in the parliamentary process. Despite that, any time I go to the airport I’m still treated with suspicion.
To illustrate that impact, a couple of years ago I was flying from Toronto to Edmonton, and because I wasn’t able to check-in online — I had no checked bags, I just had my backpack — I had to wait three hours. I almost missed my flight. By the time I got through security I had to sprint to the gate.
At the end of the day, I’m hopeful there is action being taken, but, to be really honest, every time I go to an airport I don’t feel Canadian.
Senator Ataullahjan: When we hear the minister say “it’s being looked at, we’re taking care of it,” do you feel that nothing is really being done?
Mr. Mohamed: I see things are being done, but at the end of the day, when it comes to the impact on my day-to-day life, nothing has changed. I guess things will change once they finally do implement these changes and that is not just the pilot project.
Senator Bernard: I want to thank all three of you for agreeing to come here today and to tell us a bit of your story and your experiences.
I want to acknowledge the trauma — none of you used the term “trauma,” but I could hear it in your voices and certainly sense it in your stories — that you experience every time you go through an experience with air travel and the no-fly list.
Part of my question was already answered in terms of the issue of racial profiling.
Mr. Mohamed, you talked about not only feeling like but being made like a second-class citizen as a Canadian, despite doing all of the right things in terms of what you should do, in terms of citizen engagement and so on.
What would make a difference for you? Is there anything that could be done that would make that a different experience for you?
Mr. Mohamed: The main thing for me is not having to have come here today and not having to worry each time I go to the airport. I guess the thing I would like the most is to be treated like any other Canadian where I can check in online, and, if I don’t have a checked bag, I can fly through security. Maybe I’ll be flagged again, but I just want to be treated like anybody else.
I’m really glad you brought up the trauma point. It’s important to mention that the reason this is gone on so far is because of parents who organized and started a grassroots effort to bring this to the government’s attention. It wasn’t the government being proactive. It was the parents who were frustrated.
I’m very lucky. I have a very supportive employer and family, and I also have a very supportive partner. So I’m lucky and privileged in that sense. But for many other people who are going through a lot, I can see how much more painful this can make their experiences. I’m glad you brought up that point.
Senator Bernard: I should tell you, as a person of African descent who flies frequently, although I’m not on a no-fly list, I actually experience racial profiling quite frequently. I go to the airport hours ahead of time because I never know what kind of experience I’m going to have there. I’m typically one of the people who is flagged; in fact, my colleague Senator Cordy witnessed it one day herself.
We may fix this problem with the no-fly list. Certainly, by bringing attention to it, we hope to address it. However, the problem of anti-black racism and racism, generally, is still one that — I hate to say this — but it still may affect you, even if we fix this.
Any of you could respond to this next question. Under the Secure Air Travel Act, a listed person has 60 days after being denied transportation to apply to have their name removed from the no-fly list. I’m wondering if you could tell me a bit more about what that application process is like. Were you made aware of this 60-day timeline? What are the steps to follow to apply? What documentation is required? Are there any costs related to the application process? If any of you would be comfortable answering that question, please go ahead.
Ms. Cajee: As I mentioned before, in our cases, because we have never been denied boarding, we were never given access to that redress mechanism. That step would only be available to people who have actually been denied boarding. They would receive a letter in the mail stating the reason they were denied, and if they would like to appeal their names being listed on the SATA list, they have access to that.
We’ve never actually seen that side of the process. I don’t know what that looks like.
Our legal counsel is here. I believe he may have some insight into that if you are interested. Personally, none of us have access.
Senator Bernard: None of you have had that experience?
Mr. Mohamed: There is an interesting thing to clear up. I’m familiar with government and how government employees are, so I notice how they kept making clear that children aren’t on the list. The point here, though, is that children and people like myself are impacted by the list. So because we are not the individuals who are specifically flagged, we’re not able to go through that process. It’s important to mention how, if we have suspicions, we can’t confirm that we’re on the list unless we actually go and look at the agent’s screen, for example, or if an airline representative is feeling nice to us. I don’t think they’re supposed to do that, but it’s interesting to note how I, just me personally, have felt like I’ve been gaslighted multiple times; that my experiences are not real. Because they’re not able to tell us that we’re affected, it’s just extremely frustrating.
That’s something to clear up and something I’ve noticed said a lot in prior testimony.
Senator Wells: Thank you, witnesses, for coming here today and telling us your stories.
I think it may be clear to you why we have no-fly lists. It’s sadly necessary, but we have them for a reason. Without a doubt, it’s unfortunate that you are an unintended consequence of being on this list by virtue of your name, which obviously you didn’t choose.
Is the problem with the system, or is there an easy fix that could be done by an interview? How would you fix the system? That might be the best way I can ask.
You’re subject to the results of the unintended results of the system, but how could the system be fixed so that there wasn’t this unintended consequence of a negative light put upon you or your family?
Ms. Willson: None of us really knows what the system is because there’s been no transparency. There needs to be a study of the system to see if it’s actually effective. That’s the easiest answer. Is this all worth it? Is it actually doing what it’s supposed to do? Is this a big price to pay for something that’s not doing what it’s supposed to do?
Mr. Mohamed: You raised a good point about our security structure in Canada. The other Bashir Mohamed is probably somebody I wouldn’t want to be friends with and is somebody who is dangerous. I would hope that a federal government with billions of dollars, a huge security infrastructure and employees who do this full time are able, right off the bat, to distinguish between me in Edmonton and that person who is bombing civilians.
At the end of the day, when we talk about security concerns and whether that’s necessary, for me, personally, that’s not the issue here; the issue here is that this supposedly advanced system is still creating false positives. That’s the key thing to focus on.
Senator Wells: On a practical level, are you flagged every time you fly, or is your son flagged every time?
Ms. Willson: Every single time.
Senator Wells: Thank you.
Senator Pate: Thank you very much for coming. On my own behalf and that of my colleagues, I’m sure, I apologize for this experience you and your families have.
There are two things I’m interested in. Has anybody ever proposed some other form of redress for you that would be unofficial, such as linking an Aeroplan or WestJet number — whatever the appropriate thing would be — passport numbers?
Second, is this something for which, to your knowledge, a lawsuit or a human rights complaint may be pending, which might assist us in having some direction of the kinds of remedies that would be useful for folks like you but also to try and ensure the no-fly list, such as it is, is actually an effective tool in Canada?
Ms. Cajee: On the first point regarding whether anyone has proposed redress, over the years, we have been told, for example, to get an Aeroplan number, a DHS trip number from the United States or to get a NEXUS card, for example. However, with regard to the DHS and the NEXUS card, that solves a problem if you’re on a U.S.-based list, but we’re not, in our cases. Our children and Bashir are on a Canadian list. That doesn’t solve our problem.
An Aeroplan card, honestly, is a company loyalty program. It’s like an Optimum Card, for example. This is not a solution to a flawed no-fly list.
We do have one for my son. It hasn’t always worked. I know this to be the case for other people, as well. I know a 10-year-old boy whose father is a pilot with Air Canada whose son has a NEXUS card, Aeroplan number and a DHS trip number, and he’s still flagged every time he flies domestically within Canada.
These are not foolproof solutions. As an interim stopgap measure, you could say this or that might work, but it’s not a solution.
With regard to a lawsuit or human rights complaint, we’re absolutely not going in the lawsuit direction. If that were the case, we would have done it three years ago. We wouldn’t have put ourselves through all of this. We’re not in this for the money; we’re not in this to get any financial benefit out of it. This is just to fix a wrong for everybody who is impacted. It’s become bigger than just us and our children; it’s for everybody in this entire country who has been wrongfully impacted by this list.
It’s similar with the human rights complaint. We would like to see this problem fixed at the national level for everyone so that we don’t have to take these other routes and have an incomplete or insufficient system still existing while our little personal complaint is solved. It doesn’t solve the problem for everybody.
Senator McCallum: Thank you for sharing your powerful stories, personal stories. We’re honoured that you shared them with us.
I wanted to quote something. Faisal Bhabha, legal adviser for the National Council of Canadian Muslims, called the no-fly list:
. . . one of the most damaging instruments of racial and religious profiling currently in place in this country. It is the national security analogue to carding in the urban policing context. Since its implementation, it has caused so much damage without any proven or demonstrable benefit that we simply cannot justify it in our rule of law democracy.
In addition, the International Civil Liberties Monitoring Group (ICLMG), a national coalition of Canadian civil society organizations, expressed the following concern about Canada’s no-fly list program.
The serious questions of lack of due process infringement on Charter-protected mobility rights, racial profiling and undo hardships, combined with the complete lack of data from the government regarding the effectiveness of the no-fly list program leaves us no other choice but to conclude that the system should be completely repealed. If a person is a threat to the safety of others, the government should act using existing Criminal Code procedures that follow due process.
Do you agree with these statements or do you have any recommendations that you could make?
Mr. Mohamed: Personally, I do agree that the way it is now, the reason I’m here now, is extremely frustrating and also Islamophobic, and I think it signals a trend of institutional suspicion of Muslim Canadians, even though I come from Edmonton.
I grew up in Edmonton. Edmonton had the first mosque in Canada, which was opened in 1939. Despite that, we’re disproportionately affected by these policies.
To be honest, it was a bit frustrating hearing the panel earlier. They were there not because they recognized this was a problem. I think they were there because parents made this enough of an issue that you senators made them come. At the end of the day, I’m just a random person who is flagged by this list. The senators in this room all have the power to change this. I can’t go and summon them to answer questions for me. In fact, they won’t even confirm whether or not I’m affected. But you can.
At the end of the day, I do agree with a lot of the statement that this is Islamophobic. I hope that from my testimony but also hearing the other speakers, you understand this problem also within that larger context. That’s just how I view it personally, from my perspective.
Ms. Cajee: I know Faisal Bhabha personally and I respect him. He has done a lot of work on this issue for over a decade. There are some lawyers and civil liberties organizations who have been advocating on this issue since its inception in 2007. So I would completely agree with what he has to say on this, because I do feel that it has unfairly marginalized people from a specific background.
I don’t personally see any demonstrable benefit from having this list in place. That’s just from a personal perspective. I know realistically that the chances of having this list completely eliminated are probably nil. In the absence of having that option, we really do need a strong, robust and transparent redress mechanism.
Senator McCallum: With the previous witness, I asked him about the U.S. no-fly list, which he says it doesn’t — and you said that domestic carriers are not required to screen passengers and the U.S. no-fly list on domestic flights. Do you know if they use the U.S. no-fly list on international flights?
Ms. Cajee: I don’t.
Senator McCallum: You don’t. Okay. I just wanted to confirm. Thank you.
Senator Bernard: Listening to you and the previous panel, Mr. Davies talked about the process of applying for having a unique identifier. I’d like to ask your opinion on that, and whether or not you think as a process would be helpful or not. Is having a unique identifier something we should be looking at as a recommendation? Any thoughts on that?
Ms. Cajee: Sorry, senator. Would you mind repeating the question? My apologies.
Senator Bernard: Mr. Davies, in response to one of the questions, talked about a process of having a unique identifier as a way of helping people who were on the list that shouldn’t be on this list. I’m wondering what your thoughts are about that possibility. Is that something you would recommend? Do you think having a unique identifier number would be helpful as you’re going through this process of trying to board flights at airports in this country?
Ms. Cajee: In the conversations we’ve been having with Public Safety, we hope to get to something along the lines that you book your flight, so at the point of the reservation, you would be required to enter your date of birth. It’s a possibility that you may be flagged the first time you try to check in. But once that initial clearing occurs, you would be eliminated from the system so it wouldn’t happen a subsequent time. That would eliminate the need for a unique identifier, like a number, because it would all be done in the background.
Hopefully that’s how it will end up working. In the absence of that, I guess redress or a unique identifier, a number, similar to the U.S. system, would be okay. That would require someone to always have that number on hand when they’re booking flights, which is an additional burden, having to remember yet another number. Hopefully it would work in the way I described before.
Ms. Willson: My concern is that the redress number might help us to check in, but is it going to help through the rest of the system? Because of the lack of transparency, is it going to help during the security process? Is there still going to be profiling at that stage? How effective would a redress number actually be?
Mr. Mohamed: I think the point about always having to remember a number also brings up that if this is implemented, I would be happy that I’m not being subject to extra scrutiny, but at the end of the day I’m still treated as a second-class citizen because one group of citizens has this number while another group doesn’t. I think that’s the issue at heart.
We were talking earlier about how some of the kids on the list already have a wallet full of ID. Some even have a NEXUS card. A redress number would be another thing added to that package. If we use common sense, we can see how ridiculous that quickly becomes.
Ms. Cajee: If I may quickly respond to Senator McCallum’s question about the U.S. no-fly list, Canada does actually use a U.S. no-fly list on any flight that overflies the United States, and that is determined by the United States. If the United States determines an airline overflies United States airspace, Canadian airlines are required to use the United States no-fly list.
Senator McCallum: Do the States get the names of all the passengers flying over the airspace?
Ms. Cajee: I would imagine that is the case, yes. They are required to share the flight manifests. Canadians are required to share flight manifests with the U.S. counterparts, yes. By the way, not all flights overfly United States airspace, yet they’re still required to use the United States’ no-fly list. This has been the case on a number of flights that we have been made aware of.
Senator Ataullahjan: Mr. Mohamed, I sense that frustration when you speak. For me, it’s not new, as a Muslim. I hear it from a lot of young people. I find they’re turning to poetry and humour. They’ve gotten used to being picked out of lines, especially if you’re young. My daughters have on occasion, and it’s presumed they can’t speak English. A PhD student — actually, that PhD is done now — consistently picked up because they have the name Ataullahjan attached to them. Myself once, when I tried to check in I couldn’t. I went and they said I’d been chosen for a secondary inspection and I was travelling on an official passport. I think we have gotten used to this.
If you could sit and have a conversation with the Minister of Public Safety, what would that conversation be? What would be the one thing you would like to see changed? Muslims are here. We’ve been here since the first census. We’re not going anywhere. This is our home. I don’t think we should be treated differently than other citizens. What would that conversation be?
Mr. Mohamed: I would say pretty much everything I said in the opening statement, but I would add that their goal is to create a Canada that’s safe.
Senator Ataullahjan: That is our goal too.
Mr. Mohamed: Yes. At the end of the day, if that’s their goal, what they’re effectively doing is alienating a huge chunk of our population. It makes me wonder.
I’m just one Bashir Mohamed. I assume there are many others across Canada. This hurts me. It makes me not feel Canadian. It also makes me doubt the effectiveness of government and how caring our political leaders are if it takes parents to come together for this to be an issue. If I was speaking to the minister, that you are alienating this huge group of people. At the end of the day, that’s hurting our security infrastructure. I would argue that if we want that goal, a safe Canada, a large part of that means making everybody feel welcome. I would encourage the minister to have a system where I can fly without worrying, as I and the other speakers have said.
Senator Ataullahjan: Ms. Cajee, would you like to add anything to that? You speak on behalf of many — what can we do to change? It should be easy. You have a 6-year-old, and you have a 45-year-old. You should be able to see the difference. A 6-year-old comes to the check-in and the person behind the counter should be able to say this 5-year-old, 6-year-old, or in your case an infant baby, is not a threat.
Ms. Cajee: It’s a no-brainer and it’s been a no-brainer to everybody we’ve spoken to since the start of this advocacy, over three years ago. Really, I don’t know what to say other than — these systems exist. They exist for other organizations. Even school boards have systems whereby they can distinguish between children with the same name. So if a school board can do it, I would imagine how national security regimes should be able to do it as well. I don’t think it should be difficult to do either.
Senator McCallum: I wanted to go back to your statement where it says most of the children and adults we are speaking on behalf of today have applied to DHS Trip and have been cleared by the United States, yet continue to face issues while flying domestically or on domestic airlines.
Part of this issue is a consent issue. Your information is being given to people, and you haven’t done anything wrong. So they’re giving information. I’m wondering how the United States is capable of clearing the names so fast and Canada can’t. Do you know the process? Did you look into that?
Ms. Cajee: I don’t know the background of the system, but I’ve applied to the system and it’s a quick and efficient program. We apply online. It’s free. It takes about 10 minutes to fill out the form online. You get a confirmation email and about six weeks later you get a letter in the mail stating your status and redress number, which you would use subsequently if you ever booked travel to the United States or on U.S. airlines. It’s a pretty straightforward system.
Having said that, it doesn’t work for everybody. Some people do get a redress number, but it doesn’t mean they have been cleared. This often happens for adults. We are required to provide all sorts of information to the DHS Trip application, which is also, by the way, available to non-U.S. citizens. As a Canadian citizen I have access to a U.S.-based redress system, but I don’t have access to a Canadian-based redress system. I have to continually drive home this point, because it seems ridiculous to me. I don’t know how their system works in the background. I just know from what I’ve seen on the front end.
The Deputy Chair: Ms. Cajee, you do a lot of work with the no-fly list parents group or no-fly list individuals. Do you have any idea of how many people are false positives, I’ll call them, who have the same name as somebody on the list, how many Canadians? Do you have any idea?
Ms. Cajee: A couple of students at the University of Western Ontario made a study and came up with the number of 100,000. They did this based on the names we know about and the names that we, as a group, know are on the list. It was a simple study. They put all of those names into Canada 411 and came up with an average number of hits had per name. The amount they came up with was 100,000. I don’t think there are any other Khadijah Cajee in this country, but if there were, every other one in this country would be flagged on this list. Often people don’t actually know that the reason they’re being inconvenienced is because they’re flagged on the no-fly list. A lot of times they may think it’s a glitch in the system or it’s some other reason. They don’t often know. We were in a position to be able to find out, luckily, that this was the case. But if we hadn’t found out, I don’t know what we would have done. We’re a minority of people who know that we have been flagged on this list. The majority of people probably wouldn’t even consider that was a possibility and they would just endure the inconveniences that come along with it without ever having known this was the reason they were being inconvenienced.
Ms. Willson: It’s interesting to note that study was done on the Canadian list, the number that was known, but when Canadians airlines are using the American list, which has over a million names, that estimate is probably much larger than 100,000 Canadians who are affected.
The Deputy Chair: So the witnesses who were here previously — and you heard most of them — they spoke about how if Bill C-59 passes, travellers will get a unique identification number and everything will be made easier for the other Bashir Mohameds, the boring ones.
Are you hearing of situations that have been settled? I know the bill hasn’t passed yet, but — or is it just that you know that you have to go to the airport two or three hours beforehand every time?
Ms. Cajee: As Mr. Davies said, they actually review this list every 90 days or so, I think. There are names that are every 90 days either added or removed from the list. Presumably, people whose names have been removed from the last time around, those name matches the next time around wouldn’t be inconvenienced or falsely flagged because those names have been removed from the list. But it wasn’t due to any action on the part of the person being falsely flagged. It was due to the decisions made by whoever is making those decisions to add or remove names.
I don’t know of anybody who has actively tried to have the names removed from the list actually having any success in doing that. No, not yet.
The Deputy Chair: Any further questions from the committee members?
Thank you very much. I have no doubt that Bill C-59 is as a result of your advocacy, and fingers crossed that it makes a difference. Maybe we should hear from you again next year to see whether or not it is making a difference.
Thank you very much. As Senator Bernard said earlier, it’s helpful to hear your stories, not only to the committee but to the people who will be watching this on television. Because when we hear the stories of people who are directly affected, it makes a difference because you get a better understanding of what the situation is here. Thank you so much for being here today.
(The committee adjourned.)