Bolster no-fly list appeal process, academics and rights advocates urge senators

OTTAWA — The Liberal government's sweeping national-security bill doesn't go far enough to protect the rights of people ensnared by Canada's no-fly list, academics and civil-liberties advocates told senators Monday.

The bill does take aim at the recurring problem of mistaken matches for names on the no-fly list, opening the door to a new system of redress numbers — unique identifiers that are meant to help people who share names with suspected terrorists avoid being barred from flights.

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However, critics say the legislative changes will do little to help those actually on the no-fly list who are stopped from getting on planes.

As now, someone prevented from flying could ask for reconsideration of their case and appeal an unfavourable decision to the courts.

However, the person is given only a summary of the intelligence and evidence used against him or her, which could include hearsay, Cara Zwibel of the Canadian Civil Liberties Association said Monday.

In addition, the judge dealing with a case can rely on secret evidence that was not included in the summary, she told the senators. "The appellant's right to be heard is not meaningful if she or he does not know the case to meet."

Zwibel said the process could be improved by assigning a special legal advocate, one with the clearance to review and test the government's case, as a means of assisting the person contesting their presence on the list.

Such security-cleared lawyers already have a role when someone is arrested under a national-security certificate, a legal provision for deporting non-citizens suspected of involvement in terrorism or espionage, independent Sen. Marilou McPhedran pointed out an earlier committee meeting.

A federal official replied that a judge already has the ability to appoint an amicus curiae, or friend of the court, to assist in no-fly appeal proceedings if it is warranted.

At Monday's meeting, Zwibel told McPhedran the civil-liberties association would like to see the routine assistance of a special lawyer built into the no-fly list provisions, not left to the discretion of a judge.

Errol Mendes, a law professor at the University of Ottawa, said the law should "definitely include special advocates" to represent people the government puts on the list. He also stressed to the committee that there is a "big difference" between a special advocate acting on behalf of a listed person and an amicus, who is effectively a servant of the court.

Craig Forcese, who also teaches law at the University of Ottawa, emphasized the importance of including special advocates not just in no-fly proceedings, but also to ensure fairness in passport-revocation cases.

The wide-ranging security bill would limit — but not eliminate — powers that allow the Canadian Security Intelligence Service to actively disrupt terror plots.

It opens the door to new paths for security services in data-crunching and cyberwarfare, and enhances accountability and review through creation of a super-watchdog.

The legislation would also tighten provisions on information-sharing among federal agencies, redefine terrorist propaganda and narrow a general prohibition against promoting terrorism offences to the crime of counselling someone to commit a terrorist offence.

Although several witnesses suggested changes to the security bill Monday, it was generally seen as an improvement over a previous incarnation passed under the Conservative government after a gunman stormed Parliament Hill in 2014.

Privacy commissioner Daniel Therrien said Monday that as a result of revisions to the proposed Liberal legislation adopted by the House of Commons, it is "now fairly balanced and clearly an improvement over the current law."

— Follow @JimBronskill on Twitter

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