Canada's First No-fly Suspect

Canada's First No-fly Suspect

A Montreal man fighting to have his name removed from the Canadian no-fly list has lost his first court challenge - and with it, his anonymity.

Until now, Hani Al Telbani was just another face on campus, a Concordia University student pursuing a master's degree in the engineering and computer science department. The 26-year-old was anxious to maintain that low profile, but a judge ruled this week that the public has a right to know something else about his life: he has been deemed an "immediate threat to aviation security," and is the only person ever denied boarding as a result of Canada's no-fly list.

As first reported in the previous issue of Maclean's, the federal government's 15-month-old "Passenger Protect" program finally intercepted a suspect in early June, when a young Muslim man now identified as Al Telbani showed up at Trudeau Airport holding a round-trip ticket to Saudi Arabia. Instead of a boarding pass, however, he received an "Emergency Direction" from TRANSPORT CANADA that declared him "an immediate threat" to "the safety of the public, passengers or crew." Grounded indefinitely, he is now battling Ottawa in Federal Court, arguing that the entire no-fly list should be scrapped because it violates his Charter rights to free movement and due process. The Palestinian immigrant is also demanding to see the specific evidence that landed him on the list.

Earlier this month, when Maclean's first discovered the case file, a reporter contacted Al Telbani for comment. His lawyer, Johanne Doyon, responded with an emergency request for a publication ban. If the media revealed her client's name, she argued, it would damage his "reputation and private life" and jeopardize the security of his relatives now living in Riyadh. Both Maclean's and the federal government contested the motion, and after a two-hour hearing on Monday, Justice Yves de Montigny refused to issue a ban.

Disappointed, Doyon said the decision will unfairly thrust Al Telbani into the media spotlight. "We don't see the usefulness of broadcasting my client's name from the rooftops," she said. "You are attacking a student who doesn't have any money."

Mark Bantey, a Maclean's lawyer, said the magazine is not attacking anyone; it is simply reporting on a matter of public record. If anything, Al Telbani thrust himself into the limelight when he decided to take the feds to court rather than wait for the results of an internal complaints process. "The ruling underlines the importance of the fundamental principle of open courts," he said.

Unveiled in June 2007, the Passenger Protect program has been widely criticized as an arbitrary tool that violates the presumption of innocence. Essentially, a person can be declared too dangerous to fly, but not dangerous enough to be arrested. The RCMP and CSIS, Canada's spy agency, decide who belongs on the list, and the minister of transport approves those recommendations without any independent oversight. Ottawa won't even confirm how many people are on the database, even though it's widely believed to be somewhere between 500 and 2,000.

Critics of the Canadian no-fly list fear a repeat of the U.S. experience. Since 9/11, the American version has ballooned to the brink of uselessness; every day, thousands of innocent passengers are hassled, questioned and delayed because their names resemble a suspected terrorist. In fact, the very same week Al Telbani went to court to protect his identity, another Quebec man - Mario Labbé, a music producer based in Montreal - announced that he has legally changed his name because he kept popping up on a U.S. watch list.

Transport Canada will not discuss Al Telbani's case while it's still before the court, but when the list was launched, senior bureaucrats stressed that the intelligence used to justify each inclusion is "reliable and vetted." In other words, if a person is on the list, there is an urgent reason why. "We're looking at individuals and actions they have decided to take," Allan Kagedan, the ministry's head of aviation security policy, told a parliamentary committee last year. "It's their behaviour that leads us to this conclusion."

Which begs the obvious question: what "behaviour" pointed the authorities to Hani Al Telbani? And why is Ottawa so convinced that this soft-spoken grad student - a Canadian permanent resident since 2004 - is an "imminent threat" to fellow passengers?

The exact answer may never be disclosed. Federal lawyers are planning to respond to Al Telbani's court action, but it's possible they will withhold specific evidence on the grounds of national security. Meanwhile, Al Telbani continues to insist that he is a victim, not a threat. "I have never had problems with the police," he wrote in a sworn affidavit. "I am not a danger to the public or to an aircraft."

He is no longer an anonymous student, either. But his lawyer did concede that the inevitable publicity may yet benefit Al Telbani. "It depends on how he is treated by the media," Doyon said, when asked if her client will now grant interviews. "It might be an abusive treatment, it might be okay. We'll have to see and he will react accordingly."

One thing is certain, though: "He won't talk to you," she said. "That's for sure."

Maclean's September 29, 2008