This is the second in a series of posts on Bill C-51, known as Canada’s Anti-terrorism Act, 2015. In my last post, I examined Part 1 of the Act, which would, if passed, enact the Security of Canada Information Sharing Act. That Act would facilitate inter-agency and inter-departmental sharing of information for the purpose of assisting agencies and departments with their responsibilities in connection with combatting activities that undermine the security of Canada. This post examines Part 2 of Bill C-51, which would enact the Secure Air Travel Act. This legislation would amend Canada’s approach to its “do-not-fly” list under what is known as the “Passenger Protect Program”.

The safety of airline passengers, crew members and others involved in air transportation is a serious matter. The prevention of terrorist acts on airplanes and using airplanes is matter of grave national and international importance. Preventing individuals from using commercial airline services to travel to participate in or promote terrorism is arguably at least as important as attempting to prevent the use of the financial system to fund terrorist activities. Overall, the enactment of the Secure Air Travel Act would create greater transparency for the operation of the Passenger Protect Program and more clearly define the rights of persons who are denied transportation. However, there are a number of features that are likely to be troubling to civil liberties advocates. In particular, the lowered threshold and expanded grounds for being placed on the “Specified Persons List” which functions as Canada’s “do-not-fly” list are likely to be of concern given the potential sharing of information with foreign governments. It is expected that advocacy groups may be concerned that this information sharing, combined with lower thresholds and expanded grounds, could increase the risk of the detention of Canadians abroad merely on “suspicion” of knowingly contributing to terrorist activities.

Current Passenger Protect Program

Canada’s current “do-not-fly” list, known as the “Specified Persons List,” is administered as part of the Passenger Protect Program created under the authority of the Aeronautics Act. Under s. 4.76 of theAeronautics Act, the Minister of Transport may make emergency directions to airlines if “there is an immediate threat to aviation security […] the safety of the public, passengers or crew members” (among other things).  To facilitate air transportation safety, section 4.81 of the Aeronautics Act requires air carriers and operators of aviation reservation systems to provide information relating to air passengers to the Government. In addition, airlines must screen passengers against the Specified Persons List.

Lowering the Test for Placement on the Do-Not-Fly List

The Government proposes to lower the threshold and expand the grounds on which a person may be listed as a “specified person” under the Passenger Protect Program.

Under proposed s. 8(1), the Minister of Public Safety and Emergency Preparedness would only require “reasonable grounds to suspect” that the person “will engage or attempt to engage” in an act that would threaten transportation security (s. 8(1)(a)). This is a lower threshold than the current threshold of an “immediate threat”.

In addition, the Minister could place a person on a list if there is “reasonable grounds to suspect” that the person will travel by air for the purpose of conducting one of the following activities whether inside or outside of Canada (s. 8(1)(b)):

  • Knowingly participating in or contributing (directly or indirectly) to any activity for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity;
  • Facilitating a terrorist activity; or
  • Committing a terrorist activity.

These expanded grounds are meant to address the perceived problem of persons travelling from Canada to participate in terrorist activities abroad.

Collection of Information

The collection of information from airlines and operators of airline reservations systems remains largely unchanged. The Secure Air Travel Act requires that any person or entity that operates a commercial air service or a system that provides the capability to make reservations or issue tickets for air services must provide information that is in their control concerning persons who are on board or expected to be on board an aircraft for any flight. The information that is collected continues to be the 34 data points relating to the passenger, the passenger’s reservation and flight listed in the Aeronautics Act. These data points include the passenger’s name, gender, citizenship, passport number, and contact information. That data also includes seating preferences, level of service on the airline, luggage tag information, and selected seat assignments. This information must be provided in accordance with the Act and regulations made under the Act. The regulations are broad enough that the Minister might be able to have direct access to the airline and air reservation systems.

Sharing Information with Canadian Agencies

The Secure Air Travel Act permits the Minister of Public Safety and Emergency Preparedness to share information with other departments and agencies (s. 11) and also permits those other departments and agencies to collect and share information relating to the administration and enforcement of the Act (s. 10). The RCMP, CSIS, the Minister of Transport, the Minister of Citizenship and immigration, and the Canada Border Services Agency are all expressly permitted to collect and disclose information to the Minister of Public Safety and Emergency Preparedness and each other.

Sharing Information with Foreign States

Section 12 of the Secure Air Travel Act provides the Minister of Public Safety and Emergency Preparedness with the power to share information with foreign states, foreign governmental institutions or international organizations for the purposes of transportation security or the prevention of travel by air to commit one of the activities listed in s. 8(1)(b) of the Act – that is, travelling to participate in, facilitate or commit a terrorist activity in Canada or abroad.

Safeguards

The Government has included a number of safeguards in the Secure Air Travel Act. These include:

  • The Minister of Transport must destroy information received from air carriers or operators of reservation systems within 7 days of the receipt of the information “unless it is reasonably required for the purposes of this Act” (s. 18(2)).
  • The Specified Persons List may only be disclosed to a foreign state, foreign governmental institution or international organizations if the Minister of Public Safety and Emergency Preparedness has entered into a written arrangement with respect to the information sharing.
  • The Specified Persons List must be refreshed by the Minister every 90 days to determine whether the grounds for which each person’s name was added continue to exist (s. 8(2)).
  • Individuals have the right to apply to the Minister within 60 days on which they are denied air travel to have their name removed from the Specified Persons List (s. 15(1)). The 60-day period can be extended by the Minister if “there are exceptional circumstances that warrant” an extension.
  • Individuals have the right to make representations with respect to an application to be removed from the Specified Persons List (s. 15(3)).
  • If the Minister does not make a decision within 90 days, the Minister is deemed to have denied the application (s. 15(6)).
  • Once the Minster gives notice of a decision with respect to the application or the 90-day period has expired, the individual has 60 days to appeal to a Federal Court judge (s. 16(2)). The court can extend the 60-day appeal period.
  • The court must review whether the “decision is reasonable on the basis of the information available to the judge” (s. 16(5)). Although the judge must withhold from the appellant information that could be injurious to national security or endanger the safety of any person, the court has broad powers to ensure that the appellant has enough information to understand the case against him or her (s. 16(6)).

Potential Issues to Watch

There are a number of issues to watch as debate over the Secure Air Travel Act evolves. Among the potential areas that may be subjected to criticism are:

  • The time period for automatic review has been lengthened from 30 to 90 days. Furthermore, there does not appear to be any immediate consequence for the Government’s failure to conduct this review in a timely manner, since the review “does not affect the validity of the list” (s. 8(2)).
  • The Minister appears to be permitted to disclose information beyond the Specified Persons List with foreign states. However, the scope of this information is undefined.
  • The 7-day destruction period by the Minister of Transport does not cover information that has been shared with other departments, agencies or foreign governments.
  • There does not appear to be any positive obligation on the Government to correct information provided to foreign states, including, for example, successful appeals by individuals appearing on the Specified Persons List.
  • The court may make decisions with respect to appeals of being placed on the Specified Persons List on information and evidence not provided to the appellant.