Proceeding of the Standing Senate Committee on
Issue No. 42 - Evidence - Meeting of May 29, 2019
OTTAWA, Wednesday, May 29, 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 Wanda Elaine Thomas Bernard (Chair) in the chair.
The Chair: Good morning and welcome. I would like to begin by acknowledging, for the sake of reconciliation, that we are meeting on the unceded traditional lands of the Algonquin peoples. I am Wanda Bernard from Nova Scotia, and I have the honour and privilege to be the chair of this committee. I now invite my fellow senators to introduce themselves.
Senator Ataullahjan: Salma Ataullahjan, Ontario.
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Cordy: Jane Cordy, Nova Scotia.
Senator Hartling: Nancy Hartling, New Brunswick.
Senator Boyer: Yvonne Boyer, Ontario.
The Chair: And Senator Pate is on her way in.
Today, under the committee’s general order of reference, we are studying the Passenger Protect Program, particularly the difficulties 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.
In the first panel today, we are hearing from Daniel Therrien, Privacy Commissioner of Canada. He’s accompanied by Lacey Batalov, Acting Director, Government Advisory Directorate, Office of the Privacy Commissioner of Canada.
Mr. Therrien, you have the floor. Thank you.
Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Good morning, honourable senators. Thank you for the invitation to speak to you today about the no-fly list.
No one would contest the need to protect the safety of our citizens, which is one of the program objectives. Canadian travellers want to be and feel secure, but not at any and all costs to their privacy. What they want is a balanced, well-measured and proportionate approach.
Our goal is to contribute to the adoption and implementation of laws and other measures that will demonstrably protect both national security and privacy.
To that end, when we review national security activities, including the Passenger Protect Program, which implemented the no-fly list, we are always concerned about the impact on individuals who may not pose a threat to the security of Canada but who may nevertheless be negatively impacted by such programs.
At its inception, the Passenger Protect Program raised concerns among many groups, including privacy commissioners across the country. As such, it has been the subject of a significant engagement by my office, including an audit of the program in 2009, a follow-up audit in 2011 and review of several privacy impact assessments, both from Transport Canada and Public Safety Canada.
Our review work has largely found that the program is compliant with the law. We have offered policy-level recommendations over the years to Transport Canada and Public Safety Canada on at least three matters: safeguarding information, ensuring notice is provided to impacted individuals in a privacy-sensitive manner and confirming there is effective recourse for those improperly impacted by the program.
We have raised the three issues over the years and did so more recently in our communications with the Department of Public Safety, in December 2018.
Three issues have come up. The first is safeguards. As concerns safeguarding the information, during our 2009 audit, we found that, although personal information was lawfully collected and used under this program in accordance with the Privacy Act and the Aeronautics Act, therefore lawfully, we raised concerns about the conduct of security assessments for the program’s technical infrastructure.
In a recent 2018 privacy impact assessment, we noted that, although Public Safety Canada appeared to be protecting the list with adequate internal security measures, it was not clear what measures they had in place to ensure protection of the list by those to whom it is disclosed, including air carriers. So good security measures internally, but we had questions about security measures for others in possession of that information, including air carriers. In response to our questions in late 2018, we received Public Safety Canada’s response yesterday. The answer appears satisfactory on its face, but our review of that response is ongoing.
It should be noted on this question that Bill C-59, which is currently before Parliament, proposes to repatriate the list into government hands as opposed to sharing it with air carriers, and this should largely alleviate concerns with respect to the safety of the information.
A second issue that we have brought to the government’s attention over the years is that of the inquiries that we have made with Public Safety Canada about the manner in which air carrier staff inform individuals of their rights, including those of access and correction of their information at the time that they are denied boarding. We have also requested details on how such an interaction takes place at the airport given the sensitivity of the matter.
Also on the issue of notice, we have recommended that Public Safety Canada consider informing those who are subject to secondary screening as a result of being listed, but who are not ultimately denied boarding, of their listed status. Currently, only those denied boarding are informed that they are on the list.
On a third issue of false positives, Bill C-59 again proposes a system whereby travellers who share a name similar to or the same as a listed individual can apply for a unique identifying number in order to facilitate their travel. In our view, this will assist in reducing the negative impacts for those falsely identified as being on the list, such as being subject to additional secondary questioning and the risk of reputational harm, among other problems. Although the identifying information being collected will also increase, we have been informed by Public Safety Canada that they believe it will reduce the possibility of incorrect information leading to travel problems for unlisted travellers. This, in our view, is in line with requirements of section 6(2) of the Privacy Act, which requires information to be accurate, up-to-date and complete.
We have had interventions on this program for over 10 years, and my office continues to work with all stakeholders involved in the program’s administration to help ensure that it is executed in a manner that safeguards the privacy rights of Canadians.
With that, I would be happy to take questions, with my colleagues.
The Chair: Thank you. We do have a list of senators who want to ask questions.
Senator Ataullahjan: Thank you very much for being here this morning.
Do you feel that Bill C-59 addresses the privacy concerns of the no-fly list? You speak about having a well-balanced approach. We don’t dispute that we need to keep Canadians safe, but what we are seeing and hearing is that certain groups and certain people are being targeted.
Mr. Therrien: We think there are a number of important improvements brought about to the program by Bill C-59. The fact that individuals would be able to apply for a number that would distinguish them from others sharing the same name is definitely an important improvement. Centralizing the list under government control as opposed to it being in the hands of carriers and other companies is a positive feature. There is also a requirement in Bill C-59 requiring passenger information to be destroyed within seven days until the information is required for the purpose of the program.
The Chair: Excuse me, there are some technical problems with sound. We’re not hearing the audio and translators cannot translate. We’ll suspend for a few moments. I’m sorry to interrupt you.
The technician has just arrived, and I am sure we will have this sorted out very shortly.
We have been advised that we can reconvene. Let’s restart. Senator Ataullahjan, if you wouldn’t mind just restating your question.
Senator Ataullahjan: My question was about the main privacy concerns that we have with the no-fly list. Does Bill C-59 address these concerns?
Also, you speak about having a well-balanced approach. No one disputes that we need to keep Canadians safe, but, on the other hand, we’re consistently hearing from people that certain groups and certain religions are being targeted. We were told that when they put people on the no-fly list, they don’t know anything about their gender, name or anything. I wonder, what information is there? How do they judge who should not be on that list?
Mr. Therrien: We do think that Bill C-59 brings a number of improvements that will help reduce privacy concerns, particularly around the accuracy of information leading to board or no-board decisions, and particularly the process whereby individuals will be able to ask for an identifying number which would distinguish them from others sharing the same name. An important privacy principle is that government hold and make decisions based on accurate information. The fact that decisions may have been made in the past based on shared names and leading to decisions about the wrong person being refused admission to an airplane is certainly a privacy consideration.
I say that because one of your very legitimate questions and concerns has to do with the potentially different application of the program in terms of discrimination or application depending upon belonging to certain groups or religions. That has not been a subject of review by our office because it is not directly linked to privacy principles. I would encourage you, of course, to ask Public Safety. Perhaps the Canadian Human Rights Commission may have been seized with issues of that nature, but given the nature of our mandate, that is not an issue that we have looked at specifically.
Senator Ataullahjan: You’re okay with people being given a unique identification number? At our previous meeting, witnesses who were affected by false positives of the list expressed concern with being assigned a unique number to facilitate travel. The last time people were given numbers, we saw what happened. I am very uncomfortable with that idea.
Mr. Therrien: There are obviously privacy concerns about numbers assigned to individuals that lead to surveillance because it is a unique number used for all or many government programs. This remains a concern. That’s why we’re concerned about limiting the use of the social insurance number, which is a number that we all have for very specific purposes. There are privacy issues around using and sharing that number for other purposes, the risk being the government knowing many things about an individual based on that identifier. These numbers do exist.
If they are limited in scope and in purpose, as the social insurance number is when properly implemented, I think the existence of a number in addition to the name overall assists when ensuring that the right decisions are made about the right individuals. There would be a concern if that number was shared broadly within government in terms of overall surveillance, but if the number serves that limited purpose of distinguishing people who share the same name for the purpose of this particular limited program, then I think the right balance is struck.
Senator Cordy: Thank you very much. What you are saying is really interesting. I know the bill is bringing in an identifying number that hopefully reduces false positives, but what about a NEXUS card? Many of us have NEXUS cards. They are well researched, and that would be something that not just those who have been identified numerous times at an airport — it would not single them out. Would a NEXUS card be sufficient?
Mr. Therrien: It depends on what is required to issue a NEXUS card. For a NEXUS card, you have the collection of biometrics, if I am not mistaken?
Senator Cordy: Yes.
Mr. Therrien: You have to weigh the consequences of one method over another. Some people may prefer to have a number rather than having an iris scan or having fingerprints taken. Overall, that’s where I would be.
Senator Cordy: The no-fly list has the name and the gender. Does it have the date of birth as well?
Lacey Batalov, Acting Director, Government Advisory Directorate, Office of the Privacy Commissioner of Canada: They do have it on the list, but they don’t always necessarily receive it from air carriers. That’s where some false positives come in, if you’re receiving only the name and that’s all you have to verify against the list.
Senator Cordy: If you have the date of birth, that would eliminate a lot of false positives, because you have two-year-olds, three-year-olds and infants.
Ms. Batalov: Part of the change under Bill C-59 would allow the collection of the date of birth from air carriers, which should help to eliminate or at least mitigate that issue.
Senator Cordy: I appreciate your reminder to us about how air carrier staff inform individuals of their rights at the airport. Have you done any work on how that is done with the air carriers? Is it done when the person is at the front of a line of 20 people and everyone close by can hear that they’re on a no-fly list?
Mr. Therrien: That is an issue we are concerned about. I will ask my colleague to explain, because she has been in discussions with Public Safety Canada on these very issues.
Ms. Batalov: It’s an issue that we’ve raised with them in our most recent interaction, which was a Privacy Impact Assessment, or PIA, received on the program last year. We’d sent them a letter in December asking for some clarification on how an individual is notified that they will be receiving a no-board decision and how that interaction takes place. Our concern was exactly that, the public nature of that discussion.
We received in response a copy of the notice they are given if they do receive a no-board, but we still have some concerns over how that’s delivered, how public it is and the process that leads up to that and the discussions at the counter. It’s something we will continue to pursue with them.
Senator Cordy: Is training given to airline staff? If this is done in a public way and you’re not allowed to board, you can imagine the reaction of the people behind.
Ms. Batalov: Absolutely. It’s a concern that we have raised. I don’t have any knowledge of training given to airline staff, but that may be something we look at in our discussions going forward about how that procedure is carried out.
Senator Wells: Thank you, Mr. Therrien and Ms. Batalov, for appearing today.
Mr. Therrien, when you testified recently on Bill C-59 at the Standing Senate Committee on National Security and Defence, you highlighted that one of your concerns with the bill was related to the collection of information on individuals who have done nothing wrong, such as most Canadian travellers. At that committee, you said people travel and their personal information is gathered by the government and analyzed by national security agencies to try to identify, among all travellers, any who present a risk to national security. You went on to say that in 99.99 per cent of the cases, people whose information is passed on to national security agencies are identified as non-threats to national security. It makes me think that the program isn’t working because it’s capturing a vast majority of people who have done nothing wrong and perhaps shouldn’t be flagged to be on that list. Program integrity is critical. Is this still a key concern for you?
Mr. Therrien: The concern has to do mostly with the retention of information, which is addressed in part in Bill C-59 with respect to the no-fly list.
Let’s step back from the no-fly list and look at national security screening generally. My comment that you quoted applied more generally to national security screening of all travellers. It’s still relevant to the no-fly list issue.
Should government only collect information from groups of travellers more at risk and leave others to travel without any screening? I guess that might be a question from a privacy perspective. It is accepted now in judgments, certainly in Europe, and the same would apply in Canada. The European Court of Justice, for instance, in a case relating to the API/PNR agreement between Canada and the European Union, was looking at the process whereby countries assess all travellers and therefore collect information about all travellers, with a view to identifying the very finite minority who might represent a risk. The court found that that was acceptable. It is the world in which we live now. Countries, as a result of sovereignty and ensuring the safety of other people, can collect information from all travellers.
My concern, and it applies both generally and with respect to the no-fly list, is that, for the vast majority found not to be a risk, the information should not be retained by the government. Bill C-59, in relation to the no-fly list, provides that the information collected must be destroyed within seven days unless the information is required for the purposes of the program. That is an acceptable way of proceeding. Certainly it is consistent with the jurisprudence I have just cited.
Senator Wells: Thank you for that.
At our Rules Committee just last year, we dealt with the process of document- and information-handling within a process. We were looking at leaked information and how our processes could permit that leakage and how we can close those gaps. From the time the information is collected to the time it’s destroyed, has your office looked at that process of document- or information-handling when it changes hands? Where are the risks of losing that privacy?
Mr. Therrien: Yes, among the reviews and audits that we have made over the years, we did look at the issue of safeguards. What are the safeguards against potential leaks? Our conclusion in these audits was that, internally, within government, the safeguards were appropriate, but we did not have the same kind of assurance when the information moves to other actors, including carriers. That remained an issue that we posed to Public Safety Canada more recently in a 2018 Privacy Impact Assessment. Perhaps Ms. Batalov can comment on the response there.
Ms. Batalov: They provided us, as the commissioner mentioned, just yesterday, some initial feedback on their transmission methods to air carriers and safeguards on the face value. It looks to respond to our concerns. We did not receive a copy of their risk-and-threat assessment, which we would like to access.
Another concern we had was the protections at rest when it’s with air carriers. With Bill C-59, the list would no longer be transmitted to them. That would keep the information within the government and alleviate that concern.
Mr. Therrien: There are certainly two factors that would greatly reduce the risk of leakage. One is the fact that it’s kept only seven days. Two is the fact that the list itself is controlled under Bill C-59 within government and carriers are informed only when someone is about to be denied boarding. That clearly reduces the risk. It does not eliminate the risk, but it reduces it significantly.
Senator Wells: That gives some comfort.
How great a risk is cybersecurity in the feedback that the airlines are given when there is a possible risk traveller?
Mr. Therrien: Cybersecurity is always a concern.
Ms. Batalov: In terms of the risk of transmission of information between the two, my understanding is that sometimes occurs via phone call. We didn’t raise any concerns there. We still have some gaps in our understanding of exactly how those verifications work, and it’s a little bit case-by-case.
Senator Wells: As a system, that really needs to have some emphasis, because if that’s a potential area of leakage, then it’s also a potential area of releasing private information.
Senator Boyer: Thank you both for appearing here today.
Like Senator Ataullahjan, I was a bit alarmed when I read about the proposition of a system where listed individuals can apply for a unique identifying number. The first thing that came to my mind was the government creating the Inuit disk list system when their names were replaced with numbers. That was the first thing I thought of, and I wondered how this process will work.
Can you outline to me how you envision the process working for someone to apply for a number? What would be done with that number? Are you consulting with people who have been misidentified and have experienced this and would have valuable input on how to do this?
Mr. Therrien: Thank you. Our role, of course, is in advising and providing information to Public Safety Canada, which owns the program, and making comments, but obviously it is Public Safety that designs the program.
I would note, partly in response to Senator Cordy, who was asking about dates of birth, that the revised rules of the program allow for the collection of the date of birth and the identifying number — the subject of your concern — on application, but it is not automatic. We are not Public Safety so we are not designing or implementing the program per se, but these rules tell me that when two individuals sharing the same name need to be distinguished, the first way might be through the date of birth, which does not have the stigma that you are concerned about. The attribution of an identifying number as a way to distinguish people is upon the individual’s application.
Again, I’m not designing or implementing the program, but I would think that the first step would be date of birth, and the person would only make the application for the number if necessary. When you put all these rules together, I think the number is almost a measure of last resort to ensure the accuracy of the information.
Senator Boyer: It sounds like it would be a seamless process. They would merely have to submit their date of birth and receive a number, and by attaching the number they are able to get through a seamless process?
Mr. Therrien: I can’t tell you exactly how it will be implemented. We are not Public Safety Canada. I’m reacting to the tools that the legislation provides Public Safety in order to better distinguish between people sharing the same name. I read the law and I see date of birth and I see identifying number after an application. I’m not responsible for the implementation, but I would suggest that an appropriate and sensitive method of recourse to these tools would be to start with the date of birth. Then, only when necessary, in very few cases, would the identifying number be necessary. Is that what is envisaged by Public Safety? I do not know.
Ms. Batalov: We have been advised that it may take up to two to three years to implement a system, so they have yet to provide us with details on exactly what that would look like.
Senator Boyer: You might want to suggest that they ask the people who have been affected for some ideas as well.
Senator Pate: Thanks to both of you for appearing.
I’m curious about the question of whether a no-fly list has actually positively impacted public safety in this country. I’m not sure that has been fully put into question, along with whether you think the threshold being applied for getting on to the no-fly list is sufficiently high or, conversely, too low.
Also, do you think a process of judicial oversight might be required to bring it into line with the Charter and human rights protections? Given what is actually happening and what we have heard from previous witnesses about children and the like being included, is it overly broad and should it be further limited?
Mr. Therrien: I see three questions.
One is necessity for the program. Is it effective? That’s an issue that was raised by my predecessor from the creation of the program. As a general matter of privacy principles, information should be collected where it is necessary to achieve a purpose and the method — here, the creation of the no-fly list as a program — is effective to address the government’s national security or public safety objective. That is simply a privacy principle. It is not the law. It is policy and it is our expectation of departments that they do not create programs unless they are necessary, but it is not the law per se.
This is a question that was raised upon the creation of the program, and I think you have heard from Public Safety Canada recently where their official view was that it has been effective in certainly refusing admission on board airplanes with a view to protecting the national security of Canada. We have heard that testimony. I think it is part of the discussions that we continue to have with Public Safety Canada, and these discussions are ongoing. I note that government officials have expressed the view that the program has been effective. We are in discussions with the government about this very fact, and the discussions will continue. That was the first point.
The threshold for being on the list is a matter of legislative choice. The threshold is reasonable and is linked to expectations and reasonable grounds to suspect that the individual may commit a terrorist act or will be involved in terrorism. It is a choice that Parliament has. It is legitimate for Parliament to adopt that threshold. It is obviously a low threshold — reasonable grounds to suspect as opposed to reasonable grounds to believe, for instance — and I would say we are in the area of protecting a country’s territory, with the courts giving quite a lot of latitude to countries in taking measures to protect the security of its citizens at the border. So I would say that the standard, although low, is probably acceptable under the Charter in the border context.
Regarding judicial oversight, over the years, my office has certainly made it clear that we expect appropriate recourse to be available to individuals who are on the list or who are denied boarding. I think the process has improved from the early years of the program 10 or 12 years ago. There is a process whereby the Minister of Public Safety has to confirm the adequacy of the list every 90 days based on advice from officials. That is clearly an improvement over the early life of the program. This goes beyond privacy per se, but I would think the decision of the minister to confirm one’s place on the list is a decision that would be subject to judicial review in the Federal Court, so there is judicial oversight in that matter, and judicial oversight of the ministerial decision to confirm one’s presence on the list. I believe there are questions around the availability of national security information for the court and the role of special advocates. There is a process, I think, that recognizes the natural justice considerations for people who are on the list. I think, overall, the system that is in place in 2019 is certainly better from a natural justice perspective and a privacy perspective than the one created 10 or 12 years ago.
All good questions, but I think we are in better shape than we were.
Senator Pate: Thank you.
The Chair: Thank you. That was the end of our list. Let me thank you both for being here this morning and for your invaluable testimony. You have certainly contributed to our understanding of the scope of the issue.
In our second panel today, we are going to hear from people affected by the no-fly list. Let me introduce Dr. Uzma Jamil, Fellow, Muslim Studies for the InterReligious Institute at the Chicago Theological Seminary; Jared Mikoch-Gerke, Advisor, Aviation Security with WestJet; and Rayyan Syed Kamal, Fourth Year Medical Science Student, Western University. Each witness has been asked to make a five-minute opening statement, and then we will have questions from our senators.
Uzma Jamil, Fellow, Muslim Studies for the InterReligious Institute, Chicago Theological Seminary: Good afternoon, everyone. Thank you to the committee for the invitation to be here today. I appreciate the opportunity to speak with you about the impact of the no-fly list on Muslims in Canada.
To give you some background on my expertise, my graduate academic degrees are in sociology and political science. My research area is in Critical Muslim Studies, and for the past decade I have researched and published on Islamophobia and the securitization of Muslims as part of the post-9/11 global political context.
Securitization refers to the social and political processes through which Muslims, as racialized and religious minorities, are seen as threats to society and to the nation. Negative stereotypes, social attitudes and views of Muslims existed before 2001, but they have been reinforced and normalized since 9/11, specifically around terrorism and national security concerns. This is true of not only Canada but also in other Western countries. Simply put, Muslims are more visible today than they used to be as a result of securitization.
“Flying while Muslim” is an example of this. It refers to the increased scrutiny and racial profiling of Muslims and also those who are perceived to be Muslims at airports and on airplanes. Their presence invites extra attention or evokes fear, resulting sometimes in being denied boarding or ejected from the flight. Otherwise mundane activities appear suspicious when Muslims engage in them — for example, speaking in Arabic on their cell phones. As a result, many Muslims are often hyper-self-conscious of their visibility, having internalized the negative views that others around them hold of their communities.
As part of the growing apparatus of the war on terror, securitization is also underpinned by programs, laws and policies that focus disproportionately on Muslims as objects of suspicion and scrutiny. It facilitates the institutionalization of Islamophobia as part of the structure of the state and not simply or only as the personal views and attitudes of individuals.
It is in this socio-political context that the Canadian no-fly list exists and has been operating for over a decade. There is no confirmed publicly available information on how many people are on the list, nor, in particular, how many Muslims are on it. The laws regulating it have evolved over time in response to the changing nature of what is considered a threat to Canadian national security, but what seems to have remained constant is that Muslims are disproportionately affected by the no-fly list and they are more likely to be flagged as false positives, both children and adult, as you have heard already in other testimony.
To be clear, Muslims who are flagged as false positives are not on the no-fly list themselves, but they share a name that is the same as or similar to someone who is. The extra scrutiny and problems that they face when travelling as a result of that means the idea of Muslims as a suspect community continues to be reinforced in the public consciousness. With every Muslim who is asked to step aside at the check-in counter and every Muslim family whose children’s names are part of a news story, the idea of Muslims as potentially dangerous members of society is normalized.
In conclusion, the no-fly list reinforces the existing securitization of Muslims as a racialized and religious minority. It furthers the perception of Muslims as guilty by association until they are able to prove themselves otherwise. The burden of responsibility is on them to bear this as the price of national security for the entire country. The no-fly list undermines the idea that Muslims and their children are equal citizens in Canada.
Thank you. I look forward to answering any questions.
Jared Mikoch-Gerke, Advisor, Aviation Security, WestJet: Good afternoon, and thank you, honourable senators, for the invitation to speak here today. My name is Jared Mikoch-Gerke, and I am an aviation security advisor for WestJet. In my capacity, I serve as a subject matter expert on all legislation and regulatory policy surrounding aviation security across our global network. Consequently, I’m responsible for ensuring compliance with the Passenger Protect Program, and more specifically the Secure Air Travel Act and Regulations.
I have been involved in the consultations respecting the modernization of the Passenger Protect Program for the last three-plus years, culminating in the proposed amendments of Bill C-59 related to the program.
WestJet is in the midst of a significant evolution from the carrier that launched in 1996 with three aircraft and five destinations in Western Canada. Today, on a daily basis, we operate over 700 flights, transporting nearly 80,000 guests on a fleet of over 180 aircraft throughout our growing international network. We are the second-largest air carrier in Canada, and throughout the WestJet group of companies we have roughly 37 per cent of the domestic market share in Canada. I share this information with you for context, as it relates not only to our significant regulated participation in the program but also the related volume of those impacted by it.
At WestJet, we have always prided ourselves on delivering innovative solutions to our guests, and this extends back to launching our first self-serve kiosks in 2001 and mobile and e‑boarding passes in 2007. As the travelling public has always sought expanded self-serve options throughout their journey, we understand and strive to alleviate the frustrations experienced with not being able to utilize these systems, such as self-serve check-in.
Under the current framework of the Passenger Protect Program, it is important to understand that before issuing a boarding pass to a guest, we are required to compare their name with the name of listed persons on the SATA list if they appear to be 18 years of age or older. As noted by Mr. Davies and Ms. Nixon before this honourable committee on May 8, passengers are not compelled to provide their date of birth for domestic flights at any point throughout their travel journey. Given this missing data point, in order to offer a self-serve check-in experience to as many guests as possible and remain compliant, we run all guests’ names against the SATA list without being able to visually determine if they appear to be 18 years of age or older. This is what results in the false positives that affect the children represented by the No Fly List Kids advocacy group.
Before I speak about the changes proposed under Bill C-59, I would like to share some detail on what we do to assist travellers impacted by the challenges of the current program. Mr. Davies spoke about how Bill C-59 will introduce a redress number that will act as a unique identifier to de-conflict the person. Since 2016, we have been offering a solution to clear in advance guests who have the same name as a listed person and hold a WestJet rewards number. By registering with us only once at the airport, we validate their identity and are able to use their WestJet rewards number to act as a form of redress number and automatically clear them in advance of online check-in for any future flights they take with us. As of today, we have nearly 700 individuals registered with us, and roughly 10 per cent of all false positives that are inhibited at the time of reservation are cleared to receive a boarding pass online.
While 10 per cent may not sound like a large number, I should note that, on average, fewer than 15 guests per day are inhibited due to a possible name match. For the remainder, they must see an agent, a resolution call must be made to a central team, and the average time for those calls including hold time over the last 18 months is less than three minutes from the time of presentation to our agent until a boarding pass is issued. To my knowledge and in alignment with the testimony given by No Fly List Kids, we have never denied boarding to a false positive resolved in this manner, and the check-in process has always been very expeditious. It is important to note that there are no security personnel involved in this resolution, and it absolutely does not result in any referral for additional screening. The only recalls that require further consultation with Transport Canada are where a guest’s name and date of birth matches that of a listed person.
With respect to Bill C-59, an automated in-house government vetting program is fully supported by us. One element missing, which we have been vocal about, is that while the government would like carriers to provide date of birth in advance to assist vetting, passengers are not compelled to provide it to us. This leaves a gap whereby we can’t provide that data to the government if it is not provided to us. Without an authority to mandate collection, it remains an optional element at the time of booking.
In closing, I want to echo Mr. Davies’ remarks that it can be easy to conflate travel issues around this specific program, yet airlines continue to be bound by the security and facilitation vetting requirements set by each individual country for which it operates and, in some cases, multiple authorities per country. We absolutely support ease of travel being balanced with a strong security posture. However, the number of different governmental watch list programs is only continuing to grow and expand.
Thank you for your time. I remain available for any questions.
Rayyan Syed Kamal, 4th Year Medical Science Student, Western University, as an individual: Thank you for having me here today. My name is Rayyan Kamal, and I’m a fourth-year student in the Medical Science program at Western University.
During my studies, I learned of Canada’s no-fly list and the issue of false positives through my classmate and close friend, Yusuf Ahmed. As a false positive himself, he and his family have routinely experienced delays, increased scrutiny by airline and security personnel and the accompanying stigmatization while travelling within and outside of Canada. I then learned through the group No Fly List Kids that this is not an isolated incident and that hundreds of individuals of all ages and from various backgrounds have experienced similar issues. I was shocked to see that the impact of this issue transcends boundaries of age and ethnicity.
With no statistics provided by the government, Yusuf and I sought to determine the true impact of the issue. Using the information available in the public domain, we took a random sample of 50 names of individuals who are known false positives based on news media reports. These names were then searched on canada411.ca, an online phonebook, and the number of exact matches with the same first and last name were noted. We found that for these 50 individuals, on average, 51 other individuals shared exactly the same name. In 2007, then-transportation minister Lawrence Cannon stated that there were as many as 2,000 names on Canada’s no-fly list. Extrapolating from this and our research findings, we have 2,000 names multiplied by 51 false positives per name, which equals 102,000 individuals who are false positives.
Although this figure is alarmingly large, it is a conservative estimate for the following reasons. Over a decade has passed since Mr. Cannon’s stated figure and the passing of legislation that broadened the types of individuals that can be added to the list. Not only has it grown, but there is reason to believe it has grown at an accelerated rate, potentially being several times its original size.
Also, fewer and fewer Canadians are listed in the phone book due to increased prevalence of mobile phones, and the online phone book only contains the name of a member of a household to whom the phone number is registered and, therefore, does not include names of children or other adults residing in that same household. Furthermore, we only counted the exact matches, whereas the name-matching algorithm is suspected to allow for differences in spelling.
When this estimate was made public, the Public Safety minister expressed skepticism about its validity and called it highly speculative. However, the U.S. Department of Homeland Security provided information that this figure is quite realistic. Any person who applies to the DHS Traveller Redress Inquiry Program, or TRIP, receives a letter that states that about 2 per cent of DHS TRIP complaints actually have some connection to the terror watch list and that complaints most often arise because the traveller’s name and personal information is similar to that of another person. In other words, the DHS has found that 2 per cent of inquiries could be considered true positives, while the other 98 per cent are false positives. Therefore, in the U.S., for every true positive, there are 49 false positives, which is remarkably close to our estimated research figure of 51. Based on the figure of 49 false positives, the list of 2,000 names would affect 98,000 Canadians.
Although I am not personally affected, close friends of mine, their families and their children are. The issue for me extends far beyond the delays and the scrutiny; it is the fear and stigmatization that accompany these experiences that I find far more damaging. For children, their innocence is obvious, but for teenagers and young adults, like my friends and me, the fear alone of the consequences of being wrongly identified, like those seen in the case of Maher Arar, are paralyzing and hinder our ability to become effective leaders now and in the future.
False positives of the no-fly list raise serious concerns about privacy, mobility and equality rights of Canadians. While the government provides no statistics to the contrary and, in fact, refuses to do so, all evidence points to this issue affecting a massive number of innocent Canadians that is, in my opinion, well over 100,000 individuals.
The Chair: Thank you all. Now we’ll have senators’ questions.
Senator Ataullahjan: Thank you, all of you, for being here and your presentations.
My question to you, Ms. Jamil, is about your 2017 article, Can Muslims Fly? The No-Fly List as a Tool of the “War on Terror”. In that, you say that it contributes to Islamophobia through disproportionately profiling racialized Muslim and Muslim-looking passengers as members of a suspect community. I could go on and on.
What has been the impact of the no-fly list on Muslims in Canada, or, for that matter, in North America? Reading through your paper, how did you arrive at the conclusion that it contributes to Islamophobia? What kind of data did you draw on? Has the no-fly list changed at all since you published this paper? Have things gotten better or worse?
We don’t have exact numbers, but what we are hearing is there are 1.5 million Muslim Canadians. How can we ensure that Muslim Canadians feel that they belong here and will not be singled out every time they go to the airport?
I was at the airport last week with my young daughter. She was wearing a crop top and jeans, and her hair was nicely done, but the minute he looked at her name on the boarding card, she was sent to a secondary inspection. She asked, “What about me seems like a threat?” The gentleman doing the secondary inspection happened to be a Muslim himself, and he indicated to me that a lot of Muslims were sent for secondary inspections.
How do we address this issue? It’s getting worse, and I feel it’s alienating young Muslim Canadians.
Ms. Jamil: Thank you. There are a lot of pieces to this. Let me try to address them thematically.
On the first question about Islamophobia and how this contributes to Islamophobia, I made a comment in my opening statement that this contributes to institutionalized Islamophobia as part of the structure of the state rather than simply an issue of personal or negative views of individuals. I think that’s an important point to think about because when it comes to the security person that you run into at the airport, it’s not a matter of that person versus another person. This is part of their job, and the publicly available data makes it clear that Muslims are the ones who are disproportionately racially profiled at the airport.
Senator Ataullahjan: When you say it’s part of their job, is it part of their training that people with names that sound a certain way or people who look a certain way should be pulled for secondary inspection? Is that what you’re saying?
Ms. Jamil: I don’t know if that’s part of their training. I can only go by impact or the outcomes. I don’t know what goes into how they choose, but we know from publicly available stories that Muslims happen to be the ones who are disproportionately singled out for a secondary inspection or further questioning.
The debate on Islamophobia often ends up being a question of intention and determining whether the intention was to be Islamaphobic or not. What this shows us is the problem is not of intention but, in fact, the way the law and policies are being applied in and of themselves. It is not up to the individual and their intention; it’s the way it is being played out systemically at airports across the country for any number of different kinds of passengers.
I believe one of your other questions had to do with whether the no-fly list has changed over time and how that has impacted Muslim communities. Yes, that article is old, and it was only published at the point where Bill C-51 was happening, so obviously anything happening now regarding Bill C-59 is not part of that conversation that was in that article.
I think there are two points that are proposed in Bill C-59 that have some potential positives and negatives. The part about having a centralized screening system is a good idea if you can match all the pieces of information at that moment. My understanding of the situation right now is that the air carrier only has limited information, so when they match it, it flags it as a false positive because they don’t have date of birth, for example. If they have all this information in advance, they should be able to solve that problem. The problem is actually one of information matching, not the point in time at which you match. My colleague has also mentioned that in terms of having the date of birth. That part is good.
I’m not sure the second part around having a redress system available to people affected by it is a solution so much as a Band-Aid situation. If you can solve the problem up front where you can match the pieces of information and weed out the people who are false positives, you shouldn’t need a redress number. They should be taken off the list and we carry on. The second point is that the redress option is only available to people denied boarding. It is not available to people who just get hassled and delayed. The problem remains for the many people affected by this situation.
Your last part was with regard to what we can do to make sure that Muslims are not negatively affected by this current situation. Being here today and speaking to organizations who are involved in advocacy is part of it. Ordinary citizens speaking to their representatives is part of it. There is a tremendous grassroots movement. As you have seen, the No Fly List Kids group and the parent groups have been very instrumental in moving this issue forward.
Overall, the bigger goal is for Muslims to be treated the same as all other citizens of Canada. That is where we want to be. There are a lot of other options around getting there. It is not just limited to the no-fly list but it has to do with being treated equally, with respect, with justice, in this country.
Senator Wells: Thank you to our witnesses for appearing.
Ms. Jamil, in your experience and in your research, given that the existence of a no-fly-list system is deemed important, what country or airline has the best model? What are the key aspects that give it that status, in your view?
Ms. Jamil: I’m afraid I don’t know the answer to that question. My focus is mostly on the impact on Muslim communities. We do hear a lot of negative stories about Air Canada. I could not tell you the best country or the best model based on my research.
Senator Wells: Do you hear any positive stories about any of the airlines?
Ms. Jamil: Unfortunately, no.
Senator Wells: It’s an unfortunate thing to require a no-fly list, but we accept that it exists. How can it be made better? Are there sections in Bill C-59 that make it better than the current circumstances?
Ms. Jamil: How can we make airline systems better?
Senator Wells: Yes, for those who are flagged as false positives.
Ms. Jamil: I’m not sure that the airline system is as much the problem as it is the screening system. The airline can collect information, but it only becomes an issue when it is matched against the SATA list. I’m not sure I can add more to that. Perhaps my colleague can add something.
Senator Wells: You can give it a go. I have a separate question for you, but you can answer that one.
Mr. Mikoch-Gerke: In terms of the way the Passenger Protect Program is established today and the way it is formulated, most certainly it is archaic in nature. The systems on which we are reliant in order to comply with the program are heavily outdated. They are no longer eligible for any support or development to enhance them. We have found there are challenges. That is what we presented to Public Safety and Transport Canada over the last number of years. That’s what resulted in us trying to find our own innovative solutions. We introduced and created the program with our redress number — acknowledging it is not perfect by any stretch. There are a number of very strict requirements for it to work effectively. There are a number of different lists against which an individual could be matched, from different jurisdictions, depending on where they are travelling. We tried to utilize our rewards number as a unique identifier to remove false positives.
It is a challenging structure in the way it is set up today, and that is why we believe moving toward a government-led, centralized system would be most effective. I point to the TSA system. They have about 15 years of experience. I would be remiss to not indicate that they also went through significant challenges through the development of that program. There have been a number of different changes in how it operates. There have been technological challenges resulting in outages and passengers delayed for significant periods of time, resulting in flight cancellations. There are consequential challenges with having an automated program that is government-led. Those are some of the concerns we are presenting, but if they have the capability to automate it and centralize it, we can modify our systems, although it will take us some time to do so.
If there are enough data points and if the algorithm is set up correctly, we should be able to alleviate a lot of these problems. I talked about biographical data and the date of birth, which are required today as it stands under Bill C-59. We will be required to supply date of birth to the government, but that is only if we have it. We still don’t have a mechanism that compels passengers to provide it or where we can insist upon its collection. Furthermore, that data will have to run through a risk algorithm to a certain extent because, if a nefarious individual decides to enter an inaccurate name and date of birth in order to receive a boarding pass, we have to be able to somehow counter that risk. That is obviously a priority for the government as well.
Senator Wells: The process for flying across the border is different than flying domestically. When I get a boarding pass or check in to fly across the border, I have to give my passport number or NEXUS number or some other higher identification. I’m assuming the same thing would be required on a WestJet flight that flies from Canada to the United States, so wouldn’t you then have that information?
Mr. Mikoch-Gerke: The Department of Homeland Security requires name, date of birth and gender at time of booking. That information is fed to them 72 hours prior to departure. The problem with all of these watch lists is that they are integrated in very different manners. Although we may collect that information, it comes in as an automated message. It is not part of the same reservation. An individual is vetted against Secure Flight. For example, on a flight to the United States, the person is vetted against SATA for Canada and against Secure Flight. Those two vetting mechanisms are entirely different. To retain that information for the purpose of vetting against both requires significant modifications to our systems. It wouldn’t allow us to collect. The current form of SATA also requires us to inhibit according to date of birth. We must inhibit first according to name. If it is a name match, then we proceed to validating date of birth and gender. It’s a different process.
Senator Pate: I have a supplementary question. When you’re doing bookings, many carriers require you to enter an age range. Although you’re not collecting birth date information, is there any reason you’re not collecting age range, whether you’re dealing with an infant or a child or a senior? Those are usual categories in many systems. I looked and I notice it’s not part of your system. Is there a reason you have not done that? From your response to Senator Wells, it strikes me that an easy next vetting would be, this is an infant, likely a false positive; or this is a senior versus some young man, likely a false positive. Is there a reason you have not implemented that approach?
Mr. Mikoch-Gerke: That is a great question. We do collect that information in the sense that, when you make a booking with us, we ask if you are Mr., Mrs. or Ms. From that, we can determine gender. We can also solicit for children and infants. Having said that, we have to revert back to how the current Passenger Protect Program is structured and the Secure Air Travel Act. The act specifies we must match according to name. Even if we have that information entered as a child and we can assume the individual is under 18 years, we must first validate according to name. When we receive that information, we have to inhibit. Unless we have the ability to visually identify and validate that the person is over 18 years of age, we can’t make that assumption according to current legislation.
Senator Wells: That’s a good question. There is a category of unaccompanied minor. What is the age?
Mr. Mikoch-Gerke: Under 12.
Senator Wells: The person has to identify as being under 12. That would give one flag. The group is called No Fly List Kids, so that category is captured.
Senator Hartling: This is a very interesting conversation. Thank you for being here, all of you.
I have a question for you, Jared, about WestJet. I love WestJet. You know that.
Mr. Mikoch-Gerke: I appreciate that.
Senator Hartling: I have questions around emotional issues because this whole subject creates a lot of emotions for a lot of people. In your company, what kind of training do you have or will you have in regard to issues like racism and other things like that? When you go through the airport and you’re stopped for a check of some kind, it’s embarrassing and it’s shocking, but it’s how it’s handled. What kind of training do you have? Will there be training, with some of these new changes, in your company?
Mr. Mikoch-Gerke: Great perspective. One of the components of the Secure Air Travel Act, especially when we’re talking about national security issues, is that the list itself and the names on it is limited to a very small population in our company. We’re over 13,000 employees, and we might have 40 individuals throughout the entire organization who have access to this list. They’re in a centralized department and require specific training on an annual basis on how to manage the list, the data for it, what it is required to be used for and how they manage the resolution, as we call it.
For our customer service agents, if somebody presents and is a match, either false or accurate, they don’t have insight that an individual is flagged against one of these lists in our system. Speaking specifically to WestJet, they will get a simple error that says there is a challenge with the booking and that they must call the centralized department. It could be for a number of different watch lists and for a bunch of different reasons. They don’t receive any information on that specific scenario.
The resolution process for us is that they would call in and reach the centralized team. The centralized team asks what the message is they’re receiving and ask them quick follow-up questions. For a resolution for a false positive, the centralized team would ask the customer service agent to request a piece of identification from the person in front of them, validate it is them, enter the date of birth into the remarks on the record and refresh the record. On the other side of the call, they will refresh the record, view the date of birth and compare it against the Secure Air Travel Act list. If it is not a match, they’ll clear it and respond back and tell them they’re good to check in the passenger.
In terms of training and racial profiling, that is on our road map in terms of providing additional training for cultural awareness and sensitivities. As it pertains to this specific issue, since we don’t train or allow our customer service agents to have access to that information or any data required to it, they don’t necessarily have the capability to be able to make a determination on bias.
Senator Hartling: Are you saying you do have cultural sensitivity training, generally?
Mr. Mikoch-Gerke: It’s in development right now.
Senator Hartling: That’s good to know.
Rayyan, you were talking about your friends and what they have gone through. That must be very difficult. You’re trying to help them and listen to them. Are there any available services or things people can go to get psychological help in terms of debriefing? Some people must ask themselves why they’re always picked on, because of race or whatever. Have you been able to find anything to help them?
Mr. Kamal: Unfortunately, there is no specific program to help these kids, teenagers or individuals affected. No Fly List Kids, the group itself, has parents and people who have been through the experience. Sometimes they’re very frightening experiences, and so talking to them sometimes alleviates that fear or stigma of going through situations, whether you’re flying by yourself or with a team, or whether you’re flying for an event. That helps to alleviate some of the fear. But there are no programs in place, whether at a wellness centre or a mental health centre. Even at Western University, we have the wellness centre, but they’re very general in what they have to deal with. So there isn’t anything targeted to just these individuals. But the No Fly List Kids group, the parents themselves, have taken on that role to help youngsters or teenagers like us to deal with that trauma or deal with the fear of flying.
Senator Hartling: Do you think that’s something the university could get involved with in their wellness programs? Is it something they might consider, general cultural sensitivities but also when someone gets flagged for whatever, whether it’s the airlines or something else? We know that happens a lot.
Mr. Kamal: The university providing support, again, is like a Band-Aid solution for those people affected. Ultimately, we want a system that works for all Canadians — a system that alleviates that entire fear and stigma around flying. For example, Yusuf Ahmed and other individuals in my program do a lot of research. Sometimes, it gets international recognition and we have to go to conferences, in Canada and outside. Flying alone for the first time, in of itself, is a difficult thing to do and it’s a very daunting task, but flying knowing that you look like me or someone who could potentially be a threat because of the racial profiling or whatever it might be is another added layer to that fear and that trauma.
Senator Hartling: Thank you.
Senator Pate: Thank you to all of you for your work and for appearing here.
We’re looking at this as part of a study of the Passenger Protect Program. I’d like to ask each of you what recommendations you would like to see come out of this study that we’re doing.
Mr. Mikoch-Gerke: In terms of the recommendations this committee can make, from a Bill C-59 perspective, one is making sure that this is an effective program. As carriers, we have a vested interest in ensuring that not only our transportation system is secure but also that’s it welcoming and friendly to all Canadians. One of the challenges is that we currently have no mandate to be able to collect date of birth. In order to achieve success with this program, we would like to see that added. I think that would be a valuable requirement.
A second element was discussed in a previous session. There were questions around NEXUS or trusted traveller programs. A recommendation we’ve also made to Public Safety is to ensure they provide a component that allows for that collection. It acts as another piece of biographical data. For example, in the United States, if you’re travelling and you enter your NEXUS number to precheck, you’re known as a known traveller. Those are individuals who have willingly provided information, and it’s a good additional piece of information to help reduce the number of false positives, and it may not require our redress system.
Ms. Jamil: I would echo the recommendation on making a more effective program and not creating a parallel database of false positives under a redress or identification system. To solve one thing, you have created another system, and that system doesn’t need to be there because those people shouldn’t even be in this situation in the first place. I would suggest to ask for a more rigorous matching system that is more accurate and effective at the first point and not as you go through the process of booking your flight and all of that.
Mr. Kamal: I would add to that that we would want to see, whether it be a redress system as a Band-Aid solution so that if when we are flying now we have something we can use to get the false positives a better flying experience, but at the end to solve the issue at the root and have a unique identifier, whether it be date of birth or a different form of unique identifier that helps the airline companies and people who are matching the list to weed out these false positives. Also, add a component about cultural sensitivity so that people who are flying and who are going to be experiencing these delays, scrutiny or the extra level of questioning be handled in a sensitive manner rather than not having training at all. That’s something I would add as well.
Senator Pate: Picking up on that, Mr. Kamal, the mention of possibly a NEXUS card is one option. There is a cost to a NEXUS card, however, so I’m wondering if something that would be more the responsibility of the airlines to undertake would be preferred. For instance, when you’re registering for a ticket, some airline carriers require some indication, if not of date of birth, then at least age range. Is there anything there that you think would be useful to recommend?
Mr. Kamal: Date of birth would be the best option. We ran some numbers and found that if we were to match date of birth, the false positive rate goes from 60,000 to one, and for that one person you can get a redress number, whether it would be a Band-Aid solution until we find something else out. But those are based on probability. That could be something you should look into for the system. I think that’s pretty much it.
Ms. Jamil: I would just say that the logic of a system should be that a person is innocent until proven guilty. Right now, it’s the opposite. All the false positives have to prove they’re innocent. If the system is working properly, then only the people who should be on the list are on the list, and everyone else is innocent until proven guilty.
Senator Ngo: Most of the questions have been asked, but I would like to ask, Ms. Jamil, when you wrote the paper, the no‑fly list as a tool and so on, did you get any response from the government?
Ms. Jamil: I didn’t ask for one. I have not received any response from the government.
Senator Ngo: Do you think that Bill C-59 answers your concerns in your report?
Ms. Jamil: As I said earlier, yes and no. The positive part is that if they can match all the necessary pieces of information before the person gets to the airport and weed out all of the problematic false positives, that’s a good thing. The negative aspect is that the option to include a redress system, as I already indicated, wouldn’t necessarily solve the problem. It would just be a Band-Aid solution. If the system is working properly, you shouldn’t need a redress system. Because, as was mentioned, if the date of birth is the only thing that’s the same as the person on the list, there would be very few people with the same name and date of birth. All those other 49 people would be dropped off the list right away. I would recommend or support the idea of a centralized system, if it works and works effectively.
Senator Ngo: My next question is for Mr. Mikoch-Gerke from WestJet. Have you been impacted by those travellers who are flagged as false positive? How often are they, and have they been denied or prevented from boarding?
Mr. Mikoch-Gerke: On a daily basis, we have somewhere between 10 and 15 individuals who are false positives. Our system that we have implemented outside the current SATA program in order to clear individuals who register with us will clear about 10 per cent of that. And for any other individuals that do present to us, we will clear them at the check-in counters within three minutes. We will not deny them boarding. It will be an inconvenience, and I do recognize that. We currently run our full-serve check-in lines, which is where these guests would have to go. We staff them to ensure that there is no wait longer than 20 minutes. At an unreasonable point, we would be talking about 23 minutes from the time they enter the check-in queue until they receive a boarding pass.
Senator Ataullahjan: Jared, you talk about having a list of 700 names. Would you be able to tell me how many of those are Muslim names? Would you have that information? I think it is very easy to tell what is a Muslim name.
Mr. Mikoch-Gerke: I don’t have that data with me, no.
Senator Ataullahjan: Okay. Would that data be available to you?
Mr. Mikoch-Gerke: Yes.
Senator Ataullahjan: Is there any way you could share that with us?
Mr. Mikoch-Gerke: I could.
Senator Ataullahjan: I would appreciate that. You talk about having cultural sensitivity training, which is something that you are starting now. Who would be doing the cultural sensitivity training?
Mr. Mikoch-Gerke: We have been developing it internally, with some assistance from external agencies and other things. We are hoping to deliver it probably in an online e-learning format to all of our agents.
Senator Ataullahjan: For the Government of Canada, how do they ensure that the airlines or the air carriers are applying the no-fly list in a consistent and fair manner? Do you have any interaction with the government?
Mr. Mikoch-Gerke: Daily. The way that the SATA and Passenger Protect Program is currently set up allows for fluctuations on a per carrier basis, so I wouldn’t want to speak about how other carriers have that structured. Some use third party handlers. Some do it themselves. Some will use the manual list at airports. It depends on their size and capability to manage it. As I said, we have a team that works 24/7 in our operations control centre, and we are limited to 40 individuals who have access to that list.
I believe Transport Canada said, when they were here on the eighth, that they completed almost 1,900 compliance activities against the Secure Air Travel Act list. We were compliant through all of last year, according to this. The way we are compliant is very consistent across our entire network. That’s domestically within Canada and internationally, since it is not handled at the airport level. It is merely a pop-up, and then it is all resolved through the central team. It is very consistent no matter where you want to be.
Senator Ataullahjan: Is the information that you have currently sufficient to avoid false positives?
Mr. Mikoch-Gerke: The information we have currently does not allow us to avoid false positives, given the fact that we must match individuals first based upon name. If anybody has a name match, we are required to inhibit that in its current form. That will naturally result in false positives. We don’t have the capability to clear them after that until we receive further information from them.
Senator Ataullahjan: My next question is to you, Rayyan. You said something that makes me feel very sad when you said “people who look like me.” It’s 2019; we shouldn’t be worried about how people look. You said you had a list of 2,000 names — I’m sorry, I’m forgetting the number. How many of those are Muslim names? As a Muslim, you would be able to tell what is a Muslim name.
Mr. Kamal: I don’t have the exact number but, from what I’ve seen, they are skewed toward Muslim- or Arab-sounding names, which is unfortunate. But these are only the names that have popped up in the media on news reports and people said, “I have had this experience. This is my name, and this is what happened to me.” By extension, the list we collected does skew toward Muslim and Arab sounding names. But it is also in the media as well.
Senator Ataullahjan: These are the people who have come forward. Do you think the number of names would be much larger because there are a lot of people? There is a certain shame attached. Senator Hartling said that it’s embarrassing to be pulled. Welcome to the world of Muslims when they go to the airport. There is a certain shame attached to it, and people who are pulled do go for secondary inspections or held for hours. I have recently heard of one of my daughter’s friends who was held for four hours while he was questioned. Aren’t there people who will not talk about this?
Mr. Kamal: Definitely. In our community alone, it is hard to come out about regular everyday issues, and to talk about scrutiny from the government is at a different level. People would rather keep it low key. A lot of people don’t even know they are false positives because they have never flown before. To them, they are also affected, but they won’t know until they go to the airport. Some people also brush it off as an inconvenience, without going further into it. But if they did, they may find out that they too are false positives. There may be a lot more people who are false positives but we just don’t know a lot about them.
Senator Ataullahjan: You said that the government provides no statistics to the contrary, and refuses to do so. All evidence points to this issue affecting a massive number of innocent Canadians. Will you continue to press the government?
Mr. Kamal: Of course, because the issue itself transcends both ethnicity and also age. Even though the Public Safety Minister said that no person under the age of 18 is on the list, we have kids in the No Fly List Kids group that are five, six or twelve years old who are getting falsely flagged. And the government is refusing to provide statistics about how many false positives there actually are. In my opinion, this undermines the issue and just goes to show either the government doesn’t care about the false positives or they don’t want to look into the issue itself.
That’s where our figure came from of 100,000. We wanted to know the impact. In our group, we have 200 people, and we hear comments like if this is inconveniencing 200 people, in the grand scheme of things, that’s the costs we have to pay. But now that our research figure has shown 100,000, that’s not a small number of people. I firmly believe there should be a system that works for all Canadians and not just the majority.
Senator Ataullahjan: Have you tried to reach out to the Minister of Public Safety, Minister Goodale? Have you tried?
Mr. Kamal: I personally have not, but I know of experiences where they have asked and the government is unable to say or they are not allowed to say. Whether that be their personal choice or legislation, I’m not too sure. I don’t know what that is, but I would love to see a figure that challenges mine.
Senator Ataullahjan: Are you getting satisfactory answers from the current government?
Mr. Kamal: No, I’m not.
Senator Ataullahjan: Ms. Jamil, in your paper, you specifically talk about the experience of one Black Muslim who had the name Mohamed. Have the experiences of Black Muslims been relatively worse?
Ms. Jamil: Yes, because it’s a double layered racial profiling because they are Black and also Muslim. The case you were looking at, which is the case of Mohammed Yaffa vs. Air Canada, was in front of the human rights tribunal. I don’t know if they have come to a resolution yet. At the time I had written it, they had not.
Generally, racial profiling for Black communities in Canada is already an issue, period. I don’t think there is ambiguity around that. Muslims are increasingly seen as racialized minorities as well, and people who are Black and Muslim bear a double brunt of this scrutiny and discrimination.
Senator Ataullahjan: Most of us are on social media, and I tweeted out last week about the study we were doing, and I got a response from someone who said, “You want terrorists to fly, you bigot.” That’s what I was called because we are doing this study. The reason the study came about is because I was approached by a gentleman who had a six-year-old son who said they were consistently getting flagged. It made me think and look at the numbers. We have a problem here. It should be relatively simple to solve this problem, as we heard, with birth dates. Is there a lack of will on the part of the government to do something about it? What is holding us back?
Ms. Jamil: I don’t know if there is a lack of will. I do know that the outcome is that there is a lack of outcome. The result is there is a gap between what is said and what is done, which has been ongoing for a long time. There is also a tendency to present this as a problem of data collection and to minimize the widespread social impact of this issue. Even if tomorrow they fixed the no-fly list and it was perfect and it was only stopping the people who are actually terrorists, racial profiling of Muslims at airports — the negative views, the suspicion, the scrutiny, the way people have an attitude the moment they see your name on the boarding pass — all the issues would still exist and will still need to be addressed.
Senator Wells: Mr. Mikoch-Gerke, when a name is flagged and the phone call is made, you said that’s a three-minute process from presentation to result, approximately. That phone call is not made in front of the passenger, or is it?
Mr. Mikoch-Gerke: It is made in front of the passenger.
Senator Wells: If there is a positive that turns out to not be a false positive but to be an actual true positive, what is the process for the ticket agent or for the gate agent?
Mr. Mikoch-Gerke: The process would look the same for the gate agent. What would happen is actually on the back end. After they collect the identification, they validate you are who you are and they enter the date of birth in the remarks. Our centralized team the verifies that date of birth against the Secure Travel Act list. They are then required to contact the Transport Canada Situation Centre. At that point, we have the variables at our disposal, including name, date of birth and gender, which we have on the list. Then we would contact Transport Canada to advise them we have a possible match in front of us. The CSA, or customer service agent, would not be the person on the phone with them; they would be waiting on hold while the resolution is occurring in the background.
Senator Wells: So the positive is made at the agent. How is that flag then transferred to whoever is going to be doing the deeper check?
Mr. Mikoch-Gerke: If you think about it in a three-prong system, the customer service agent calls the centralized team. The centralized team verifies and either it clears, or in this case it would not clear, and they tell the customer service agent to remain on hold as they need to find more information. They then make a separate call to Transport Canada, and at that point they would advise Transport Canada they have a possible match to the list and provide a name and the information we have on file. Transport Canada would then possibly ask additional questions and might validate based upon whatever information they have that’s not at our disposal.
Senator Wells: The information goes back to the gate agent and says don’t issue a boarding pass; correct?
Mr. Mikoch-Gerke: They would be unable to issue a boarding pass. The booking has to be released within the system in order for them to do anything. If they were unable to clear it and release, they would advise them to remain on hold as they might require further information.
Senator Wells: You can’t remain on hold forever. What happens when the gate agent says to the passenger they can’t issue a boarding pass? Tell me about that process. That person who is on a no-fly list or flag list, do they walk out, get in a cab and go home?
Mr. Mikoch-Gerke: That process then gets quite complicated. There would be a lot of responses back and forth between Transport Canada and the customer service agent with the centralized team acting as the intermediary. Transport Canada might seek additional information on the person who is standing in front of them such as: what is their appearance, what colour is their hair, how tall are they, what is their weight, what is their address showing on their identification, do they have a phone number, do they have an email address, do they have any other documentation with them, do they have a birth certificate? There might be an exchange of further information in order to validate that. In any case that it would get to that circumstance, they have always resulted in someone who is actually a match. That process can take quite some time, and they would either be issued a letter of denial from Transport Canada or they could be issued additional screening, and those would essentially be the two outcomes.
Senator Wells: Does WestJet have cameras at the ticket kiosk?
Mr. Mikoch-Gerke: We do not. We would generally rely upon the airport authorities because, in an airport, it is a public space, and it is airport authorities so they can be shared among multiple airlines.
Senator Wells: Do you think it would be helpful or harmful? When I’ve gone through security, sometimes you are told to stand in front of a camera and your picture is taken and you get processed. Would that be helpful to the WestJet process? And your process, which you say is a three-minute process, which seems reasonable to me, is that a competitive advantage you would have over your competitors?
Mr. Mikoch-Gerke: One of the biggest challenges with this program in its current form and will continue actually to be a challenge in its new form under Bill C-59 is you have to be able to positively validate that the person standing in front of you is the same person who supplied the information. When we talk about supplying name, date of birth or gender, anybody at time of booking can input any information. However the algorithm is set up on the back end in order to either provide a risk assessment and issue a response or whatever the case might be, you still have obligation to validate that person.
When I talk about the TSA and their trials and tribulations in the way they’ve done it, their system is so well integrated that if you travel outside of the United States, which I’m sure many of you have, when you enter into security, they will check your identification for you. Also, within any boarding pass outside of the United States, there is encrypted security data embedded within the bar code that contains the automated response that a secure flight has, so not only are they looking at the boarding pass but they also receive the automated response that they have issued because their scanners that scan the boarding pass are connected to their internal system, and they are able to validate the identification. They conduct the validation of the person, and then they can also validate the screening that’s required or whatever their status is.
We don’t have that in Canada. The responsibility to validate who the passenger is currently lies with the air carrier. As you travel outside of Canada, that does not happen at the check-in counter. Our process for validating a person’s ID happens during boarding, and we are not validating date of birth. We’re merely validating that the name on the identification matches that on the boarding pass and matches the system and the face appears the same. Keep in mind that our customer service agents are not necessarily trained to spot fake identifications. They are trained to facilitate travel. That responsibility to validate that that person presenting in front of us is the same person that made the booking relies on our shoulders, and it is once they are already within the restricted area and about to step on board the aircraft.
There are a number of systems, as you mentioned, that use biometrics in the U.K. We are starting to see that happen in the U.S. Air Exit will start to integrate some of that. We are starting to see it through some of the customs protocols. That is an expanded opportunity that exists in the security world that I think is very valuable. It’s something we’re certainly interested in from an innovation perspective. At that point, if individuals choose to be able to provide that information to us in terms of biographical data, we can validate that. We are looking at different types of technology in order to better validate the individual. From that, we can also provide a more seamless transition. We have lots of conversations to say, “Can we have this identification check done outside of security,” because then that removes that variable and that challenge of actually confirming that identity.
Senator Wells: My next question is the following: Do you require middle names or initials when booking travellers on WestJet?
Mr. Mikoch-Gerke: No, we don’t.
Senator Wells: Is that something that would be helpful as another identifier? David M. Wells versus David some-other-bad-guy Wells?
Mr. Mikoch-Gerke: Talking about the complications, if we go back to the government and if they have a will for some of the challenges that come across this, really a lot is the ability to implement the system. We have told the government that Bill C-59 is great and the centralized vetting program will be effective, but you can expect it will take us a year to onboard. It will require significant investment on our part and significant systematic changes, and that’s just within our own reservation system. That doesn’t include your Expedias, global distribution systems or anything else.
Whatever a government institutes in terms of either a facilitation program or a watch list program, we have to work with all the technology providers and global distribution systems to make sure they are able to capture it. The redress system is a great example. The U.S. already has a redress mechanism, so we are wondering if we’ll have two redress fields. How will we differentiate if you are someone who requires one of these, and the name and date of birth match against both lists? How do you know which redress number to enter? Is there an identifier between the two, or will there be two fields? Is the messaging system going to be the same for the U.S., the U.K. and Canada? They all have different systems. Integrating each of these platforms and programs, developing the technology and rolling it out across the systems, sales channels and distributions is challenging. That’s just for us. Of course, our competitors have different reservation systems. There are different methods to do this.
Having said that, we have certainly committed to the government to do that in as expeditious a manner as we can. We definitely want to be one the first companies to implement this. That’s why we’ve been so engaged on the consultation and development of this program.
Senator Ataullahjan: On May 8, Public Safety Canada told us that to add names to the no-fly list, it is being done in a name‑blind and photo-blind way to ensure that the process is not biased. Do you believe that? Would that address some of the concerns you have raised in your research? How can Public Safety better address the concerns you raised in your research paper?
Ms. Jamil: No. They are looking at threat assessment, and I’m talking about the impact of the no-fly list. The people who are flagged by the no-fly list are not actually threats or considered to be terrorists. So even if they manage to do this with various levels of blindness, that will not solve the problem I have been talking about in my research here.
Senator Ataullahjan: Normally, when we do a study, we ask for recommendations from all of you. What recommendations would you like to see? Give me three.
The Chair: Senator Pate asked the question about recommendations. We have recommendations from each of you.
Senator Ataullahjan: Did you give recommendations? Okay.
The Chair: Do you have any others you want to add at this stage?
Senator Ataullahjan: Okay. The redress system has been brought up again and again and again. What do you feel about the redress system?
Ms. Jamil: To reiterate quickly, I don’t think the redress system is really the best option. Fixing the no-fly list is the first thing that should be done. The redress system is only useful for people denied boarding, not people who are delayed. Many people will not be redressed through that system.
Senator Ataullahjan: Thank you.
Mr. Mikoch-Gerke: If I might add to that, in its current form, there is no redress currently available to anybody right now. Individuals who are denied travel have an appeal mechanism. They do not get a redress. That doesn’t exist in its current form. What’s being proposed is the redress, and it will be available to any traveller, whether they experience delays or denial. It will be very similar to the United States in the sense that should there be any reason that might be delaying or hindering your travel, you can apply for it. It is not in the current state today where there is only the appeal mechanism.
The Chair: Thank you all very much for being here today, for your testimony and your responses to the questions. You have certainly highlighted a lot of the complexities no matter what strategies are being considered as options to address the problem with the no-fly list. This has been really helpful to our study.
I appreciate, as well, Ms. Jamil, you putting this in the broader context of racial profiling that happens in this country and that addressing this issue doesn’t really address that broader context of racial profiling, which is something we do have to address. Thank you.