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Names on Canada’s no fly list to remain secret

In newly filed court documents, the government also contends that
divulging the figure might damage relations with key allies, especially
the United States.

Information Commissioner Suzanne Legault
is challenging the government's refusal to disclose the data to a
Montreal journalist who requested it under the Access to Information
Act.

La Presse reporter Daphne Cameron filed
two requests for figures from 2006 through 2010 — one for the total
number of people on the list, the second for the number of Canadian
citizens.

Legault's office investigated Cameron's
complaint against Transport Canada and recommended last year that the
agency release the figures.

Transport Canada refused to comply, prompting Legault to take the case to the Federal Court of Canada.

Under the no-fly program
in place since June 2007, airlines rely on a list of individuals
considered "an immediate threat to civil aviation" should they board an
aircraft.

Candidates for the no-fly roster —
formally known as the Specified Persons List — are put forward by the
RCMP and the Canadian Security Intelligence Service.

Members of these agencies, along with
representatives of Transport, the Canada Border Services Agency and the
Justice Department, sit on an advisory panel that formally recommends
names for inclusion. The public safety minister has the final say.

In withholding the numbers, Transport
Canada invoked a section of the access law shielding information whose
release could interfere with the conduct of international affairs as
well as the detection, prevention or suppression of "hostile
activities."

In her May 2013 letter to then-transport
minister Denis Lebel, filed with the court, Legault said she was not
satisfied the exemption 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)."

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 says in an affidavit filed recently with the
court.

"This determination is based on my
understanding of how terrorist groups operate," says Free, chief of
operational and intelligence support within the aviation security
operations branch of Transport.

"In order to plan and execute a
successful attack and minimize risk, terrorist organizations must first
solve the 'intelligence problem' of knowing and understanding the
strengths, weaknesses and opportunities available with respect to their
target."

Portions of Free's filing have been
blacked out, with the court's permission, in keeping with federal
concerns about maintaining secrecy.

The United States has revealed there are about 16,000 people — including fewer than 500 Americans — on its no-fly list.

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

CSIS and Public Safety Canada back Transport's bid to keep the figures under wraps.

"Although the information may at first
appear innocuous, the Service maintains that it would be ill advised to
expose the scope of Canada's intelligence knowledge in this specific
area of enforcement,"

CSIS says in an October 2011 memo that has become
part of the court file.

In a 2012 report, the watchdog that keeps
an eye on CSIS said confusion over how the no-fly list should work had
"significantly undermined" its potential to help keep the skies safe.

The Security Intelligence Review
Committee said the notion of "an immediate threat to civil aviation" was
open to interpretation, and federal agencies had "struggled" with
nominating people for the list.