As we watch the nightly news on CTV or CNN, we often hear stories of flight delays because of passengers being restricted from boarding an airplane. Even though some may think that certain restrictive measures are excessive, nations, such as the United States of America (U.S.) and Canada, have imposed these restrictions in order to prevent aerial terrorism and therefore keep the general public safe. The intent is to prevent a recurrence of such terrorist acts, as the Air India bombing which occurred on a flight from Vancouver in 1985 (300+ deaths) and, of course, the World Trade Center and Pentagon Attacks which occurred on September 11, 2001 (3000+ deaths).

In order to explain a Nations right to restrict one from flying, I will analyze both the U.S. Patriot Act versus the U.S.Bill of Rights, and the Canadian Anti-Terrorism Act versus the Canadian and Québec Charter of Rights and Liberties.

The United States of America

Every Nation has its own definition of terrorism. The U.S., in its Patriot Act, defines domestic terrorism as actions which “involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if it occurs primarily within the territorial jurisdiction of the United States” (Electronic Privacy Information Center). In order to avoid such acts from occuring, especially in the air, the U.S. Patriot Act gives the Nation the right to restrict one from flying.

A. Patriot Act: Restrictions on what can and can’t be brought on an airplane

“The USA Patriot Act has ten parts, known as Titles, and is largely a compilation of changes to numerous existing U.S. laws” (Information and Privacy Commissioner for British Columbia, 2004: 63). This law was adopted to enhance national security yet it has been heavily criticized since its passage in 2001, mainly because of its powers of search and seizure which may infringe upon the privacy right of Americans. One of the main debates regarding this aspect of the Act is the fact that the Nation now has a right to use the Patriot Act’s search and seizure power for surveillance of any suspicious crimnal activity. This “affords the U.S. Intelligence community greater access to information unearthed during a criminal investigation, but it also establishes and expands safeguards official abuse” (Information and Privacy Commissioner for British Columbia, 2004: 68). Some say, with regards to preventing aerial terrorism, and any other kind of terrorism for that matter, that this should be allowed, while others believe that this is an infringement of their rights.

The U.S.Patriot Act has given rights to the Transportation Security Administration to restrict what one can bring on to an airplane. This is to ensure passenger security as well as pilot security. If one does not comply with boarding security measures, he or she may be faced with warnings, fines, and/or restriction from flying. These restrictions concern U.S. origin flights only. At all boarding checkpoints, a screener and a Law Enforcement Officer will verify carry-on luggage and if a prohibited item is identified, and the passenger does not rid himself/herself of the item he/she may be criminally or civilly prosecuted. The “screener and/or Law Enforcement Officer will make this determination, depending on what the item is and the circumstances. This is because bringing a prohibited item to a security checkpoint - even accidentally – is illegal.” (Transportation Security Administration, 2005: 1)

Fines are not often handed out for items such as sporting goods (baseball bats, golf clubs, hockey sticks, lacrosse sticks, etc.) – the airline will usually transfer this equipment in order for it to be checked and not carried on board. Yet sharp objects (such as box cutters, ice axes, knives, meat cleavers, razor blades, sabers, swords, etc) will result in fines being issued.

B. The Application of the U.S. Bill of Rights

With all of the search and seizure happening at airport checkpoints, do these types of searches respect the U.S.Bill of Rights? Unlike the Canadian Charter of Rights and Freedoms, the U.S. Bill of Rights does not provide limitless liberty to the citizens. In fact, the fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (Cornell Law School). Even though this amendment does state that a person can be secure with regards to their effects, which in this case would be their carry-on luggage, this Amendment can be overturned by the simple fact that the U.S. Patriot Act wishes to “deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes”. Therefore in order to prevent a national security breach, the screener and Law Enforcement Officer can, without a mandate, search and seize, not only the carry-on bag, but the person himself/herself since the Patriot Act only requires “a significant purpose” for the need to search. Thus, if the enforcement officials state that they have a significant purpose to search a person, that individual can no longer use their fourth Amendment as a defence.

Thus, the Bill of Rights is not respected when it comes to preventing aerial terrorism in the U.S. The Nation can restrict anyone from flying if there is a reasonable chance that this person will make an action that will infringe upon public security.  

Canada

In Canada, the Anti-Terrorism Act defines terrorism in two ways. Mr. David Jenkins, author of “In Support of Canada’s Anti-Terrorism Act: A Comparison of Canadian, British and American Anti-Terrorism Law”, states, as does the Act, that terrorism is an ““act or omission that is committed in or outside Canada, and that, if committed in Canada” (Department of Justice Canada [DJC]) is an offence under ten designated international conventions for the prevention of terrorism. [Also] it is an act or omission in or outside of Canada committed “in whole or in part for a political, religious or ideological purpose, objective or cause”” (Jenkins, 2003: 419).

A.  The Anti-Terrorism Act, the Amendments and the Disclosure of Information

The Anti-Terrorism Act was given Royal Assent on December 18, 2001 in order to prevent such acts of terrorism in Canada. This Act also prevents terrorists from entering Canada and it has as a main objective to protect Canadian citizens from terrorist attacks. Furthermore, like the U.S.Patriot Act, this act Amended a multitude of other Canadian Acts, Codes and Regulations, such as, for example, adding new extensive non retroactive anti-terrorist measures in the Criminal Code. This Act is part of what is called “Canada’s Anti-Terrorism Plan.”

With regards to preventing aerial terrorism, the act gave the power to Transport Canada, on February 16, 2004, to screen non-passengers circulating in airports. “Under [this new] program, non passengers are subject to random screening when accessing restricted areas at major airports. Personnel will not be forewarned” (Public Safety and Emergency Preparedness Canada [PSEPC]). Furthermore, another step taken has been in regard to Canadian Passports. New passports have been issued and many security features have been added. Therefore, it is very difficult to forge or alter a passport – this innovation helps protect the public’s safety not only in the air but also on the ground by providing enhanced obstacles to the entry of terrorists to the country. Additionally, security officers at Canadian check points, just as in the U.S., have the right to view all contents of an individual’s carry-on luggage. Individuals wishing to board an airplane must also walk through a metal detector in order to ensure that no weapons or other illegal objects are in the individual’s possession.

The Canadian Anti-Terrorism Act allows Transport Canada to communicate, on a daily basis, with U.S. authorities regarding flight restrictions, terror threats to flights and transport security on flights. In this regard Transport Canada works closely with such agencies as the Transport Security Administration and the Federal Aviation Administration. This provides a reasonable level of freedom to travel between both countries while maintaining the common goal of enhanced security.

Finally, a proposed Public Safety Act has been drafted in order to provide authority to implement “key measures to increase the government’s capacity to prevent terrorist attacks, protect Canadians, and respond swiftly should a significant threat arise” (PSEPC) Among the amendments that this act will bring, will be an amendment to the Canadian Aeronautics Act (RSC. 1985, c. A-2) in order to require “airlines to disclose personal information about passengers to the Minister or other designated authorities for “transportation security” purposes” (Information and Privacy Commissioner of British Columbia, 2003: 80). This is to prevent people from flying who might commit a terrorist act and put the passengers of the Canadian flight in danger.

B.  The Application of the Canadian and Québec Charters of Rights and Freedoms

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that “everyone has the right to be secure against unreasonable search or seizure” (DJC). This is also expressed under section 24.1 of the Québec Charter of Human Rights and Freedoms (Commission des droits de la personne et des droits de la jeunesse, Québec). In addition, section 7 of the Canadian Charter states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In comparison, Québec’s Charter clearly states, in section 9 that “every person has a right to non-disclosure of confidential information.”

A person who wishes not to be searched at the airport, or a person who wishes that his/her personal information be kept confidential, even if he/she is a passenger on a plane within Canada or going to the U.S., could technically state that they do not have to succumb to the Federal Government’s request because of their rights under the Charter of Rights and Freedoms (Québec Charter of Rights if the person is a Québec resident). In court, they could argue that “every increase in security almost inevitably curtails rights and freedoms that are at the heart of democratic societies” (Information and Privacy Commissioner of British Columbia, 2003: 81).

In order to avoid all forms of terrorism, including aerial terrorism, is it really necessary to have all information on a passenger or to search the individuals about to board a plane? Many would state that yes it is important. One must remember that the Charter of Rights and Freedoms was established to give great liberty to Canadian citizens, yet Canadian citizens must in turn remember section 1 of the Canadian and Québec Charters which state that these rights and freedoms are accessible “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

In conclusion, it is important for the citizens of Canada and the world that government agencies and airports have the authority to search, seize, and communicate personal information, in order to prevent aerial terrorism. Restrictions of flying based on these seizures and communications should be seen as a measure of security and not a breach of freedom.

To prevent aerial terrorism, Canada and the U.S. have valid reasons to restrict certain individuals from flying in their countries. We have already seen the consequences of terrorist acts both in Canada and the U.S. It is only reasonable for governments to adopt rules and regulations in order to protect its citizens; in fact they would be negligent if they didn’t. Even though these rules and regulations may seem extreme to some, once observed in the greater sense of public good, their importance is obvious. Having said that, governments must have limits on the search and seizures that they practice, and “whether or not a search or seizure by the government is reasonable depends on balancing the government’s interest in obtaining the information against the individual’s interest in maintaining privacy” (Information and Privacy Commissioner of British Columbia, 2003: 90)

Should there be a debate regarding the power of the state, one must question, is it not governments primary role to protect the health and safety of its law abiding citizens, not to protect the rights of those who may wish to harm its citizens?

References

• Information and Privacy Commissioner for British Columbia, Privacy and the USA Patriot Act: Implications for British Columbia Public Sector Outsourcing. British Columbia, Library and Archives Canada Cataloguing in Publication Data, October 2004, p.63, 68, 80, 81, 90.
• JENKINS, David. “In Support of Canada’s Anti-Terrorism Act: A Comparison of Canadian, British, and American Anti-Terrorism Law”, Saskatchewan Law Review  (2003), 66 Sask. L. Rev. p. 419-454
• Transportation Security Administration , Permitted and Prohibited Items, U.S. Department of Homeland Security, TSA – Rev. 9-6-2005 PANUZIO, pg. 1