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Federal judge assails Transport Canada rationale for no-fly list secrecy

Passengers check in at the Air Canada counter at Pearson International Airport in Toronto on June 14, 2011.

Mike Cassese/REUTERS

The public could be a step closer to knowing a jealously guarded federal secret: the number of people on Canada's no-fly list.

A judge has ordered Transport Canada to revisit two Access to Information requests for details of the list's scope, saying the department did not spell out clearly why the figures should be confidential.

In March 2010, Montreal La Presse reporter Daphne Cameron filed a pair of requests – one for the total number of people on the list, the second for the number of Canadian citizens.

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Information commissioner Suzanne Legault' s office investigated Cameron's complaint against Transport and recommended that the agency release the figures.

Transport refused to comply, prompting Legault and Cameron to pursue the case in the Federal Court of Canada.

Under the no-fly program established in 2007, airlines relied on a list of individuals considered "an immediate threat to civil aviation" should they board an aircraft. The program, known as Passenger Protect, still exists but the criteria for inclusion on the list has been broadened to address the phenomenon of "terrorist travellers" heading overseas.

In addition, the federal government is reviewing the program due to complaints from several families about airport delays after their children's names appeared to mysteriously match ones on a security list.

In withholding the numbers from Cameron, Transport invoked a section of the access law that shields information whose release could interfere with the conduct of international affairs, as well as the detection or prevention of hostile activities.

Federal security officials argued the information could help terrorists plot a catastrophic attack on an airliner.

In a ruling made public Monday, Federal Court Justice Simon Noel said Transport Canada rightly characterized the data as protected under the clause.

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However, Noel added, the department botched an important step by failing to properly exercise its discretion as to whether to release the material.

Noel said Transport did not:

  • adequately consider the public interest in knowing the figures;
  • address the fact a former transport minister had apparently discussed the numbers publicly in broad terms;
  • back up its argument that international relations with the United States and others would be harmed by release of the numbers.

Legault's office had no comment Monday on the decision.

In a May 2013 letter to Transport, filed with the court, Legault said she was not satisfied the exemption shielding the data from release had been properly applied.

Disclosing an aggregate number of people on the no-fly list "would not allow an individual to determine whether he or she is on the list," she wrote.

The roster is only one of a number of lists used by airlines to ensure aviation security, Legault added. Therefore, even if someone could conclude they were on the list, "this fact would not transform Canadian or Canadian-bound aircraft into 'soft targets,' as claimed by (Transport Canada)."

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Christopher Free, a senior Transport Canada intelligence official, was consulted by Transport's Access to Information division in March 2010 on whether the figures could be disclosed. Free concluded the number of names "was valuable information for terrorist operational planning" and that its release would harm national security, he said in an affidavit filed with the court.

The United States had revealed there were about 16,000 people – including fewer than 500 Americans – on its no-fly list.

Still, Free said disclosure of the Canadian numbers could "adversely affect our relations with key allies, and especially the U.S."

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