Canada’s aviation security measures exist as a multilayered matrix, but are continually evolving. Some of the latest issues and trends affecting this industry include:
● Privacy and aviation security
● Review of Canada’s Transportation Act
Table 8.1 Aviation security policies and laws in Canada
Legislation Year Enacted Purpose
Aeronautics Act Canadian Aviation Security Regulations
19852012 Governs all aviation security in Canada
Security measures to be applied in airports and air carriers
Canada Border Services
Agency Act 2005 Supports national security and public safety priorities, and facilitates the
free flow of persons and goods Canadian Air Transport
Security Authority Act (CATSA Act)
2002 Empowers a federal agency to enforce Transport Canada aviation security
rules Canada Transportation
Act 1996 Legislation covering the
transportation industry, including airlines, railways
Carriage by Air Act 1985 Gives effect to rules of international carriage by air
Secure Air Travel Act 2015 Enhances aviation security and preventing acts of terrorism in air
travel
Policies Year Enacted Purpose
National Transportation
Policy 1996 To promote competitive, safe and
efficient modes of transportation for all Canadians
National Security Policy 2004 Integrates services of federal agencies to evaluate threats by exchanging
passenger information Transportation Security
Clearance Program Policy
2009 Prevent the unlawful interference with civil aviation, and the uncontrolled
entry of persons into a restricted area of an airport
Aviation security policy in Canada 139
● Regulation of drones
● Right to protest in Canadian airports
There have been concerns about how personal data is being used by the CATSA. In 2011, a report was submitted by the Privacy Commissioner of Canada entitled Privacy and Aviation Security: An Examination of the Canadian Air Transport Security Authority. The purpose of the report was to determine whether CATSA had used adequate controls to protect passengers’ personal data, and whether its policies and procedures violated any privacy laws under the federal Privacy Act. This law restricts any federal agency to improperly use personal data of passengers more than is necessary for any of their aviation security programs. This report focused on CATSA’s collection and use of passenger information, and its use of aviation security technology (such as FBS technology and closed-circuit television). The report concluded that some personal data collected by CATSA was unrelated to its mandate given under the CATSA Act, and was therefore ultra vires – some of its collection activities went beyond its legislative authority. Other recommendations were that CATSA should permanently delete all personal data held as electronic or hard copies that it does not have the authority to collect. However, its collection of personal data from boarding pass bar codes was justified. The report made it clear that CATSA should only collect personal data for security incidents.
In February 2016, the federal government conducted a review of Canada’s Transportation Act. Key recommendations were made with respect to aviation security. First, passenger screening should be more efficient by replacing the current approach with a more intelligence-driven, risk-based screening process. Second, the federal government should create a public reporting system known as the Civil Aviation Issues Reporting System (CAIRS). This informal reporting system should allow anyone to provide feedback on safety issues or problems with Transport Canada services. It is not designed for immediate emergency safety issues – that requires one to contact the Civil Aviation Contingency Operations, or CACO).
In May 2015, Transport Canada received comments from aviation stakeholders across Canada with respect to drones, or Unmanned Air Vehicles (UAVs). Drones are nowadays a popular feature of business and personal recreation use. But drones can be used for illegal and dangerous purposes, thereby representing a threat to aviation security. At present, the CARs require that a UAV operator obtain a Special Flight Operations Certificate (SFOC) from Transport Canada. However, this depends on two factors — the weight of the UAV and whether it will be used for recreational or non-recreational purposes. The rule (as based on Transport
Canada guidelines) is that if a UAV is 35 kg or less, and it is being used for recreational purposes, a SFOC is not required. Rather, the UAV must be flown ‘safely and legally’. This means one may fly a UAV during daylight, during good weather, keeping the UAV in the operator’s line of sight, not flying it within 9 km of an airport or higher than 90 m above the ground, or within 150 m of people, animals, buildings or vehicles. If the UAV is heavier than 35 kg, the operator must apply for a SFOC, regardless of the type of operation.
In 2016, Transport Canada intends to disclose a Notice of Proposed Amendment to develop a different approach for regulating small UAVs.
This newer approach is based on risks posed by operation rather than whether it is recreational or non-recreational. The new regulations include two categories for small UAVs weighing 25 kg or less – ‘complex oper- ations’ and ‘limited operations’. The UAVs with complex operations include urban areas or areas close to aerodromes (airports), while those with limited operations include remote areas. Pilot training is a key regula- tory requirement from Transport Canada. Here, the UAV pilot must be considered a ‘pilot’ as defined under the Aeronautics Act and the CARs, and must obtain a pilot permit. Furthermore, Transport Canada is sug- gesting regulations that involve UAVs being marked and registered.
An interesting issue that has arisen over the years is whether the right to protest at Canadian airports adversely affects aviation security. More specifically, can the government regulate the public spaces of an airport where people either distribute pamphlets or demonstrate? This began in 1991 with Commonwealth of Canada v Canada, 1 SCR 139, where the Supreme Court of Canada held that any prohibition by airport author- ities on the distribution of pamphlets in the public areas of an airport violated the right to freedom of expression guaranteed under section 2(b) of the Charter of Rights and Freedoms (‘Charter’). The facts were that political pamphlets were being distributed by persons at Dorval Airport in Montreal, who were later forbidden by airport authorities to do so.
These pamphlets were meant to inform the public about the existence of the Committee for the Commonwealth of Canada. The issue was whether federal airport regulations (prohibiting advertising or soliciting at airports) infringed on one’s constitutional right to freedom of expression under section 2(b) of the Charter. If not, was the government’s action to prohibit this freedom of expression at an airport reasonably justified under section 1 of the Charter (reasonable limitations clause).
In arriving at its decision, the Supreme Court of Canada balanced the individual interest (in expressing a political opinion) with the government interest (in providing safe passage and security at the airport) under the auspices of section 2(b) of the Charter. The Supreme Court emphasized that
Aviation security policy in Canada 141 a government’s ownership of an airport does not authorize it to infringe on one’s constitutional right to freedom of expression that is guaranteed by sec- tion 2(b) of the Charter. An important rule expressed was that an individual was free to communicate only if their form of expression was compatible with the function of the place and does not deprive other citizens of the effec- tive operation of government services. If not, one’s freedom of expression would not receive constitutional protection and the government’s action to forbid the expression would therefore be justified. Here, the group’s freedom of expression was compatible with the function of the airport when they distributed pamphlets and informed members of the public about a group.
In 2013, the Provincial Court of Alberta extended this rule in R v Booyink, 2013 ABPC 185. In 2011, eight members of an anti-abortion group called the Canadian Centre for Bio-Ethical Reform engaged in a demonstration at the arrivals section of the Calgary International Airport, carrying signs and distributing pamphlets in the arrivals section of the air- port. The Calgary Airport Authority (CAA) issued trespass notices to the protesters under Alberta’s Trespass to Premises Act, RSA 2000. The main issue was whether the Canadian Charter applied to the CAA’s operation of the airport. The rule was that the Charter applied only to government actions, but may apply to private entities only if it is engaged in activities attributed to the government. The court held that the demonstrators were not trespassers as they had a fair and reasonable belief that they had a right to demonstrate at the airport. Further, the Charter did apply to the CAA because it maintained security in an airport under federal law, and thus it was substantially controlled by government regulations. This meant that the demonstrators’ freedom of expression under section 2(b) of the Charter was permissible in the airport.
The Booyink matter spilled over into 2014 when the CAA sought an interlocutory injunction against the same demonstrators. In Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493, the CAA argued that it suffered irreparable harm and damage as a result of these demonstrations, as they are responsible for managing the airport. However, the demonstrator respondents argued that the CAA’s mandate to operate an airport was not harmed by the peaceful demonstration in the airport’s public areas, nor was its safety, security or efficiency compromised in any way. But the Alberta Court of Queen’s Bench held that an injunction should be granted to the CAA against the demonstrators. The court held that, on a balance of convenience, there was a security risk to the airport because the demonstrators were interfering with passenger flow, thereby creating a safety risk, as well as damaging the reputation of the CAA. The court stressed the balance between a citizen’s right to freedom of speech and peaceful demonstrations in Canada with
the rights of a property owner in controlling access to the premises. Here, the court ruled that the demonstrators disturbed and hindered passengers traveling through the airport terminal, that their demonstrations created a risk of confrontation, and that members of the public were angry that the CAA allowed this demonstration to take place.
The legal implications of the right to protest at an airport are fascinating.
There is a balancing act of ensuring aviation security by a private entity operating under federal authority, and protecting freedom of speech for the demonstrators. From one perspective, an airport authority must comply with federal regulations for aviation security. If demonstrators occupy public areas of an airport this may compromise the safety and security of everyone at the airport. From the other perspective, people have a right to freely express their views and to peacefully demonstrate. The court was mindful of this balancing act, and it chose to favor the safety and security of the airport over freedom of speech. It is as if the court encouraged the streamlining of security in an airport, rather than allowing demonstrators to disrupt airport operations. The court appears to suggest that effective demonstrations could be held elsewhere in public areas, and that any demonstrator could use the demonstration itself to disguise a real threat to aviation security. Regardless, it is a delicate balancing act between security and rights.
CONCLUSION
Canadian aviation security has evolved gradually into a multilayered secur- ity matrix composed of several federal agencies, airport authorities, air carriers, police, intelligence services, and security companies. This matrix involves massive coordination of information and resources between agencies to provide security in airports and to achieve the most important legal objective – to avoid unlawful interference with civil aviation. This is a broad legal objective that, through application of security clearances and technological layers of security, guards against future criminal acts. Over the years, many laws and policies have been modified and strengthened through legislative amendments and federal agency reviews. Aviation security in Canada is continually evolving and redefining secure air travel for everyone.
At the top of the aviation security hierarchy is Transport Canada, which oversees the multilayered security matrix. Under its guidance, several programs and measures are delivered by various agencies across Canadian airports to ensure safety and security. Current trends in aviation security are replete with interesting legal issues. Ultimately, however, the Canadian government must continue ensuring that aviation security is modern and
Aviation security policy in Canada 143 efficient to protect the best interests of not only Canadians, but all those connected with the aviation sector.
REFERENCES
Aeronautics Act, R.S. 1985, c. A-2.
Canadian Air Transport Security Authority (CATSA) Act, S.C. 2002, c.9, ss.2, 8(1).
Canadian Aviation Security Regulations, SOR/2011-318.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c.11.
Constitution Act, 1867 (UK), 30 & 31 Vict., c.3.
Doan v Canada (Attorney General), 2016 FC 138 (CanLII).
Fontaine v Canada, 2007 FC 1160 (CanLII).
Mitchell v Canada (Attorney General), 2015 FC 1117 (CanLII).
Office of the Privacy Commissioner of Canada, Privacy and Aviation Security:
An Examination of the Canadian Air Transport Security Authority, Final Report (2011), 7.
Parliament of Canada, Standing Committee on Transport and Government Operations, Building a Transportation Security Culture: Aviation as the Starting Point, available at http://www.parl.gc.ca/HousePublications/Publication.aspx?D ocId=1032042&Mode=1&Parl=37&Ses=1&Language=E (accessed March 17, 2016).
R v Booyink, 2013 ABPC 185.
Sylvester v Canada (Attorney General), 2013 FC 904 (CanLII).
Team YYC, CASAP Training, ‘Canadian Aviation Security Awareness Program’, available at http://www.teamyyc.com/YourCommunity/CASAP.aspx (accessed March 17, 2016).
aviation
Dawna Rhoades and Michael J. Williams
INTRODUCTION
After hosting the 2014 World Cup, which attracted the highest recorded attendance since the 1994 World Cup, Brazil hosted one of the larg- est global athletic events last year, the Olympic Games (FIFA, 2015;
The International Olympic committee, The Organization, 2017). On the positive side, neither event experienced the security problems that critics had feared. Brazilian security forces were able to manage the small-scale protests that occurred during the World Cup as well as avoid riots and/
or major violence after the soccer loss to Germany (Day, 2014). Brazilian police took over security screening outside of Olympic venues after the contracted private firm failed to hire enough personnel and managed to avoid any major incidences (Connors et al., 2016).
Unfortunately, deepening economic crisis and the massive cost overruns from the World Cup soured many in Brazil on the huge capital investments necessary to host the Olympic Games (Boadle, 2015). Brazil’s economy shrank 3.8 percent in 2015 and 3.3 percent in 2016 (The World Factbook, 2017). Brazil experienced a major political crisis as it attempted to get rid of government corruption and scandal by impeaching their first female president on charges of manipulating the federal budget (Romero, 2016).
Inflation has risen to 8.4 percent and the Brazilian REAL has declined over 20 percent against the US dollar since 2016 (CNBC, 2017; The World Factbook, 2017).
While Brazil ranks fifth in the world in both population and landmass and tenth in overall economy, the $15 billion spent on the World Cup was a difficult pill to swallow (Wade, 2015). Originally, the government planned for almost 75 percent of the spending to be directed toward general transportation, security, and communication, but as the cost of construct- ing the new sports stadiums rose money had to be diverted from other projects, leaving almost half of the infrastructure projects unfinished after the World Cup (CIA Factbook, 2015; Matheson, 2014). In addition to
Safety and security in Brazilian aviation 145 the unfinished infrastructure, problems with the sewage system and poor water quality issues were blamed for serious bacterial infections detected in several athletes in Brazil for an Olympic test regatta. These issues, which many expected to be addressed before the 2016 Olympics opened, were unfortunately never eliminated, exposing 12 million locals, athletes, and visitors in Rio to varying levels of contamination in water (Brooks and Barchfield, 2015; Tomkiw, 2016).
Like every developing country, Brazil has internal and external security challenges. Internationally, disputes continue with Uruguay over Brasilieria, an island in Quarai River. Illegal smuggling of narcotics and weapons, as well as paramilitary activities on the borders of Brazil-Uruguay and Brazil- Colombia continue to trouble the country (The World Factbook, 2017).
Internally, Brazil faces high crime rates in its major cities. While Brazil is the leading digital nation in South America, online frauds losses cost the economy billions of dollars. Transportation safety in Brazil is also a major concern for the growing economy of Brazil. The road network outside major cities varies across the country from extremely poor in rural areas to good in major cities. Ground and air cargo theft remain problematic (Security, 2017).
The World Cup and the Olympics were presented as an opportunity for Brazil to invest in security and transportation infrastructure in ways that would provide long-term economic and social benefits, propelling the nation to the next level of economic development and growth. While plans were aimed at all modes of transportation, the air transportation system was a significant target for investment because of its overall importance to the economy and the special events. Sadly, like much of the transportation system, the quality of the infrastructure was poor and congested, hamper- ing the arrival of foreign guests for the events (Williams, 2016).
After a brief overview of the geographic and demographic landscape of Brazil, this chapter will explore the current air transportation system including the airlines, airports, aircraft manufacturers, air traffic manage- ment system, and aviation maintenance and training facilities. Next, the safety and security of the Brazilian air transport system will be reviewed.
Finally, the regulatory and security framework governing the aviation sector will be examined.