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The federal government sometimes left people on Canada’s no-fly list without lawful justification, according to a recently released report from one of the country’s intelligence watchdogs.
The National Security and Intelligence Review Agency (NSIRA) probed whether the Passenger Protect Program, more commonly known as the no-fly list, is working and whether the government treats individuals reasonably and fairly.
“A well-functioning program is crucial for public trust in both national security and individual freedoms,” the review agency wrote.
Passenger Protect Program allows the government to bar individuals — Canadians and non-Canadians — believed to be a threat to aviation security from boarding a commercial flight to, from or within the country.
The overall number of people on the list is redacted from the public report.
NSIRA’s report did praise the government for making changes in recent years, including a centralized passenger screening for air carriers, which the review body said has reduced errors and improved security. It also found all listed people, at the time of their review, met the threshold when they were first added to the list and the government did “generally treat individuals reasonably and fairly.”
However, investigators said they found deficiencies in how decisions were made to keep people on the list.
“The report’s findings highlight gaps in [Public Safety’s] co-ordination and leadership on this file,” the intelligence watchdog wrote.
6 renewed ‘without having necessary grounds’
Under the Secure Air Travel Act, the federal public safety minister or a delegate is required to review the list every 90 days to determine whether the grounds for which each person’s name was added to the list still exist and whether the person should remain listed.
NSIRA’s review found that wasn’t always happening and pointed to “an overall lack of program coherence.”
“More substantively, the minister’s delegate renewed the listing of six currently listed people without having necessary grounds,” reads the report.
Of the six people, two individuals were kept on the list despite the minister’s delegate previously deciding to delist them — with no new information to justify a reversal. One person’s file clearly expressed the nominating agency (either CSIS or the RCMP)’s assessment that the threshold was not met, and three individuals were relisted on grounds that were unrelated to the Secure Air Travel Act’s thresholds, said the report.
The review agency also found some individuals on the list are no longer under active intelligence collection or investigation — but the number is redacted.
NSIRA noted the absence of investigation does not inherently constitute an argument in favour of delisting. For example, the Mounties may stop an investigation if successful prosecution is unlikely.
“Nevertheless, when listed people are not under active investigation by at least one nominating agency, [Public Safety] cannot credibly determine whether case brief assessments remain current,” it said.
Issues with recourse system flagged
The reviewers observed “a general lack of clarity and in some cases disagreement” between departments involved with the Passenger Protect Program around when and on what basis to remove a person from the list.
Finally, NSIRA pointed to concerns with the recourse system.
During the process, Public Safety Canada provides applicants with an unclassified summary of the case against them and offers an opportunity to respond before the minister renders a decision.
Once again, the agency said it found a lack of clarity and a lack of documented rationale for decisions.
“In one extreme case, a person was delisted through the normal listing process mere days after a decision to maintain their listing upon recourse, despite no apparent change in circumstances,” the report said.
The review agency made 10 recommendations, including clarifying roles and responsibilities when making listing decisions.
CBC News has reached out to Public Safety for a response.
A redacted version of the review was first released through an access to information request and later shared by the intelligence agency.
The review also notes that the NSIRA Act grants the agency the right to timely access to information (except cabinet confidences) and any explanations the agency deems necessary.
It said most departments involved in the Passenger Protect Program review met NSIRA’s expectations, except Public Safety.
“The quality and timeliness of formal responses to requests for information were uneven and at times hindered the review’s progress,” it said.
In 2022 the Federal Court upheld the constitutionality of Canada’s no-fly list
“Ensuring safety in air transportation and limiting air travel for terrorist purposes necessarily involves some infringement of mobility rights,” Justice Simon Noël wrote at the time.
