Law Times

Page 10 March 11, 2013 Law Times • FOCUS No-fly list litigation takes off BY JUDY VAN RHIJN individuals who may be an immediate threat to aviation security and prevent them from boarding a flight. The program began on June 18, 2007, for domestic and international flights. Its specified persons list has attracted strong criticism on the basis of breaches of civil liberties and privacy laws, racial profiling, and the effectiveness of the program. Besides applying the Canadian rules, many airlines refuse to allow people on the U.S. list to fly even domestically within Canada. Paul Champ, a human rights lawyer at Champ & Associates in Ottawa, lodged a constitutional challenge two years ago in relation to the United Nations blacklist that Canada has also implemented. He advocated on behalf of Abousfian Abdelrazik, a Canadian citizen stranded in Sudan as a result of the list. "The common characteristics to all these lists is the utter lack of due process," says Champ. "You are denied evidence or information on which the listing is based. In some cases, you get a summary; in others, you get nothing. Even with the summary, they never give the sources, so it is utterly impossible to challenge it. The process to get yourself off the list is often unclear, too." For Law Times C ivil liberties advocates in Canada have echoed the actions of their U.S. counterparts by entering the legal arena to challenge the Canadian government's secret no-fly list. In a case pitting arguments about constitutionality and due process against national and international security policies, it appears plaintiff and government lawyers are heading for a long and complicated dogfight. The first Canadian legal challenge involves Hani Al Telbani, a Muslim engineering student of Palestinian background who ended up on the Canadian equivalent of the no-fly list in 2008. His application met its first hurdle when the Federal Court of Appeal in Montreal rejected his attempt to have the federal government pay his costs in advance. The court found the case didn't transcend his own interests and wasn't of compelling public importance despite the support he's receiving from civil liberties associations. There are a number of no-fly lists that operate in Canada. Passenger Protect is the Canadian government's effort to identify Champ made an urgent application to the Federal Court on the grounds that there was an exception to the UN blacklist to allow people to fly back to their country of citizenship. The government opposed the application, but Champ successfully obtained an order directing it to bring Abdelrazik back by any means possible. Champ's court application then became moot after his client was delisted. "At the same time that we lodged the Charter challenge, I filed a delisting petition with the UN Security Council which succeeded." Champ puts the delisting down to luck. "I have no more knowledge of the reason why they took him off the list than why they put him on." Champ describes any attempt to challenge the lists as shadow boxing. "You have to guess at the information they might have and try to take a stab at it. Of course, the government knows the information but they will not tell you. That is the nature of the Telbani application under s. 7 of the Charter — that it is a deprivation of liberty not in accordance with fundamental justice." Champ believes that the small group of lawyers fighting these cases end up having to grasp for ways to represent their clients. "The TOP AKERS NEWSMAND CASES C ION SURVEY COMPENSAT VILEGE LIMITS OF PRI July 2012 ENT A LAW TIMES SUPPLEM DECEMBER 2012 TUDENTS 4S $7.00 COUNSEL COUNSEL OUNSE COMPLAI NT Crown wasted $125K 11/22/12 3:29 PM SOCIAL ME DIA L AW TIM Khadr's ES lawyers no stran g P4 How to Legal du o have been in volved BY SIOB For Law T LELLAND hey are the nal defe two Torontobased crim nce only Can lawyers repr iesen Guantan adian still imp ting the amo Bay, risoned in a holding Their client, Om Cuba. ar Khadr, Minister pattern as he is stuc wait Canada Vic Toews to deci s for Public k in to Safety de on his year priso complete the retu rem and pub n sentence. With ainder of his rn to lic eigh should retu opinion divid Toews taking his ted over whether time mo Bay, rn to Canada or Khadr lawyers are putt John Nor remain in Gua ing ntanagovernm political and ris and Brydie Beth ent lega The conn to make a deci l pressure on ell the leged link ection with sion. Afghanis the gove to Al Qaeda are tan rnment factors Nor and the althat it is is usin taking with g "to justify ris believes cumstan the hard out look ces line every inter of the case." He ing at all of the da's stan national body notes that prac circe in has cond tically emned "There' this matter. CanaCanada s probably no othe today that that [this involves r case going on case] the in "In my view does," says Beth kinds of issue ell. s , Omar has been is a governm abused at every Canadian citiz en who turn ent She adds has failed him and the Canadia so incredib : "I've alwa n guys in ly." ys belie Canada and I have ved we're the been prof good oundly See Pair , page 5 John Norris rebuffs C BY MIC F profile FOCUS ON P7 Pension s Law P8 ER LMUT N PEREt igh M ARTI Spotlight rs' S otl t'l cases in infam ous mat ter sinc e 2006 Speake Resea and Brydi IERNAN r LinkedIn L AM AN AD SE n Ltd. CONR In Motio rch I e Bethell first met BA call fo HAEL McK Law Time s up you ers to in HAN McC Times Nicholson spruce at a meet ing organ ized by Huma ATIVE ALTERN S PTION r legal aid O . view CBA, page 5 A we've got law Photo: Laura Pedersen MAYO MORAN Toronto University of Faculty of Law SUBCLASS? BUT THER TIONS FOR THOS OP . CAREER LLB OR JD HAVE AN NEW THE www.cana T RNING TO R ARE TU D EVEN AW FIRMS MANY LAW SHIP STRUCTURES AN RS TNER R PARTNER TION OF PARTNERS. TWO-TIE UIT QUITIZA EQ THE DE-E COVERED Manulife ' SN'T AW ISN'T LA ISN N LAW CTISING ACTISING NE PRACTISI YONE. O R ER ER ON FOR EVE ARE LOTS OF OTHEWHO E n Rights Watch funding re $560 mill tem," he ion to the lega ederal said l aid sysJusti "It's a diffi . Rob Nich ce Minister funding incre his gove olson defended of governm cult time for all flat. He note ases were rnment's ent. essen levels d as well to approach our funding We've main that the tially tained ly enacted omn ing at his criminal legal leve recenttime of aid restraint. ls even in this soon cause a ibus crime bill Associati annual Canadia fundwould " Earl gal aid serv spike in dem on grill and for leing calls ing whil n Bar CBA ier at the conf ices. from the e rebuff's council erence, "Clearly, a review of federal organization for urging the govepassed a reso the where ther we have a lution situation funding. At the e will rnm the crisi s in lega ent to "address on remand requ be more peop ence, Nich CBA's annual le iring duty and basi confer- systemic issue l aid funding olson told lawyers cally as coun that jeop efficienc the crow gathered ardizes a legal aid plan will strain prov sel y and d of Convent at the will incial s in such ion Cen the Vancouver entire justice effectiveness cut into a way of that the syste 'We've maint Conserv tre on Aug. 13 tion also dem m." The reso the il system the poorly fund that it has boo ative gove ained our that we ed civthis time sted fede have at rnment hensive revie anded a "com lu- MacRury of restraint,' funding levels this time criminal w" preral fund said. even says Rob ," legal aid ing for for criminal lega of federal fund "It' Nicholson. in from to $111 ing wor s clear that for l aid. $81 mill On Aug million k, we need the syste ion duri . in power. Photo: Gail m to ng its time sor Dan Mac 11, resolutio enhanced to the J. Cohen funding "There's CBA's natio Rury, chairman spon- fund criminal legal a total com aid amental n of the nal crim tion, justice in to ensure mitment inal of ing told the council justice sec- try." our coun inflation that into acco after tak- to The CBA's atten unt, fede tion now Saskatoo ral n, which turns will host next See GI ORG L ODED Financi ial dianlawyerm ag.com/4stu 1 dents INHOUSE vol.7 • issue 4 • 08.12 AM 12-06-13 11:13 AT THE INTERSECTION OF LAW & BUSINESS From left: Brian Hilbers, Av Maharaj, Nathalie Clark, Mark Adams, Veta T. Richardson, Megan Evans >> >> >> MIND THE DISCLOSURE GAP RE AP RE GAP LAW EP LA DEPARTMENT LAW DEPARTMENT AW MANAGEMENT: THE EVOLUTION OF THE EXTERNAL RELATIONSHIP SEVENTH ANNUAL INHOUSE/A SEVENTH ANNUAL IN OUSE/ACC VENTH VENT L INHO A INHOUSE/ACC OUNSEL ROUNDTABLE U E UNDTAB UNSEL UNDTAB UNDTAB NDT NDTAB NDTA NDTA DTA GENERAL COUNSEL ROUNDTABLE GENERAL COUNSEL ROUNDTABLE P 18 P18 P18 P.18 1 MANAGING MANAGING RISK IIN-HOUSE RIS RISK N-HOUSE OUS CANADIANLAWYERMAG.COM General counsel play a significant role in managing l l significant ma man managi g man ing an t e risk f the organizations they work for, and have ri ri organization they work for, an hav ga zation they work zation zation he or atio ation tio io on o nd have a av the risk of the organizations they work for, and have becom rusted advise becom rusted advis become trusted advise becom trust d advisers he process. become trusted advisers in the process. ec ecome rus ecom rust c ust s dv s dvisers dvis dvis vi process. process. ro s roc ss. become trusted advisers in the process. LAWTIMESNEWS.COM IH_August_12.indd 1 PUBLICATIONS MAIL AGREEMENT 40766500 PUBLICATIONS MAIL AGREEMENT ##40766500 La er Lawyer awy says 500 766500 ENT 40766500 E T GR MENT # 4076650 I AGREEMENT S MAIL AGREEM PUBLICATIONS MAIL 2012_Newsmakers.indd 1 g 20 ing 2012 ue 1 • Spr Vol. 7 • Iss CANADIANLAWYERMAG.COM/LEGALFEEDS EDS WeGotYouCover_LT_Mar4_13.indd 1 www.lawtimesnews.com 13-02-26 11:17 AM listing regimes are utterly indefensible by constitutional standards or international human rights standards of due process," he says. "They are so detached from fundamental principles of the rule of law and from all we've learned through our careers that we don't know how to challenge them. Lawyers are at a loss." Champ remains optimistic the courts will feel the same. "The government will say, 'We can't tell them why and we haven't told them.' These are basic things in the legal process." There's no doubt the government will rely on arguments based on national security, an issue Champ calls the "fashion of the day." "They say it doesn't truly engage liberty deprivation because it's an administrative measure," he says. "Only criminal measures are entitled to full disclosure, but the stigma associated with being on the no-fly list is very significant. In the modern world, the inability to fly anywhere has a huge impact. It's a distinction without a difference." In fact, the government's review committee, when faced with Al Telbani's appeal, engaged independent security advisers Allan Fenske and Wendy Sutton. They recommended removing Al Telbani from the list and suggested a review of the whole criteria for inclusion. Champ hasn't yet had a client on the Canadian no-fly list, although he has advised those experiencing problems with the application of the U.S. list in Canada. Al Telbani is the only person who has publicly admitted to being stopped under the Canadian list. "A lot of people who end up on the Canadian list are very embarrassed and humiliated, as well as frightened and intimidated," says Champ. "Most of them are from targeted minority groups, such as Arabs and Muslims." Another problem Champ faced with the UN blacklist was the fact that those on it are subject to financial sanctions in addition to the restrictions on flying. "They are not allowed to have any money and no one can give them any money," says Champ. "We couldn't raise money to defend our client because that was a criminal offence." Like Al Telbani's lawyers, Champ applied for costs in advance and was also unsuccessful. "The law around advanced costs is very tricky. It has only been done two or three times in First Nations land claims. I have no doubt that these cases are in the public interest, but the criteria make a very high threshold. Unfortunately, advanced costs are a bit of a mirage." Champ's greatest concern is that the controversy surrounding the lists may be fading. "It is regrettable that listing regimes have now become normalized. I find that very scary." LT

• Cover