The devastating cost of securing our skies

By Amira Elghawaby
The Ottawa Citizen | July 29, 2015

Who pays the price for a highly-secretive security regime intended to protect North Americans who travel by air?

As the Supreme Court of Canada’s ruling in the Latif v. Bombardier case last week illustrates, sometimes it is innocent bystanders who take the hit: paying with their reputations, livelihoods, and freedoms. Their crime is that they have the wrong name, and often the wrong ethnic, religious, or racial profile.

The case of Javed Latif should serve as the latest warning that our security mechanisms have failed to protect Canadians from the ramifications of false positives both within and beyond Canada’s borders.

First, the facts: Latif is a Canadian citizen and a professional pilot with several decades of flight experience. In 2004, he applied for flight training on new aircraft with Bombardier. However, unbeknownst to him, he had been placed on a U.S. threat list. Consequently, Bombardier refused his application. Latif filed a human rights complaint, alleging discrimination. The Quebec Human Rights Tribunal ruled in his favour and awarded him significant damages. But the Quebec Court of Appeal later reversed the decision, raising the bar for proving discrimination higher than anywhere else in the country.

Last Thursday, the Supreme Court dismissed the Court of Appeal’s new standard of requiring proof that discrimination was the main cause of the denial of service, rather than simply a factor in the decision. A bittersweet victory because the Court determined that there was no proof of any discrimination at all in Latif’s case, even according to the proper test.

Yet beyond the scope of the ruling is the acknowledgement that challenging threat designations, let alone proving discrimination, is akin to punching in the dark.  As thoroughly documented in a 2010 landmark Canadian study by the International Civil Liberties Monitoring Group, individuals placed on no-fly lists are rarely provided with the information used against them, nor are there clear avenues for recourse.

Canadians notified that their passports are under review, or have been suspended, are falling into the same rabbit hole; take for example, the recent experience of a Montreal imam whose passport was eventually revoked, only to be reinstated seven months later. And, as in the case of the Mississauga family stopped from entering the U.S. on a trip to Disneyland, such treatment is often unexplained and difficult to challenge when government can shield itself from scrutiny with national security caveats.

In a post-9/11 world, security precautions are non-negotiable. But geo-political circumstances should not trump expectations of fair treatment for all citizens by both government and private institutions.

Indeed, the Supreme Court of Canada articulated this point, stating that « the conclusion in this case does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter. »

This should make every Canadian airline pause before unquestioningly accepting a threat designation, particularly given that a 2009 internal U.S. government audit indicated up to a 35 per cent error rate in the American watch list.

Even Maher Arar isn’t sure if he’s still listed in the U.S., almost 10 years after a public inquiry officially cleared him. Latif remained on a watch list for four years before his name was quietly scrubbed.

Legal experts and civil rights groups warned the federal government that its new anti-terror legislation contains the same flaws and in fact expands on them. The Canadian Civil Liberties Association and Canadian Journalists for Free Expression are now challenging key provisions of theAnti-Terrorism Act, including the « Secure Air Travel Act », as unconstitutional.

« Once placed on the no-fly list, it is very difficult for the individual to remove their name from the list. There is no due process, no fundamental justice, and no natural justice under the scheme, » reads the court application. Any possibility for redress is « burdensome and complex. »

Our legislators have not done enough to ensure that a questionable sense of security for all doesn’t come at the certain expense of far too many.

Amira Elghawaby is the communications director at the National Council of Canadian Muslims (NCCM). The NCCM appeared as a public interest intervener in the Latif case.