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Amendments to Identity Screening Regulations
Published in the May 2008 issue of Transportation Notes - View Article
Regulations requiring airlines to screen passengers at designated Canadian airports for the purpose of determining whether they are included on a list provided by the Minister of Transport have been in effect since June 18, 2007. On May 15, 2008, the government gave notice of its intention to amend the Identity Screening Regulations.
The present regulations apply to domestic and international flights operated from some 89 Canadian airports. Of course this includes all the major airports but also a large number which are not so commonly recognized, Kuujjuarapik, by way of example. Before issuing a boarding pass to anyone who appears to be at least 12 years of age, the carrier must determine whether the passenger’s name is on the Minister’s list. If it is, the carrier must ask for specified identification and review the person’s name, date of birth and gender, as shown on the identification. If there is a match of these elements, the carrier must notify the Minister and await directions. The regulations also require a check at the boarding gate, where the same elements must again be examined. If the carrier notifies the Minister of a match, the Minister may make emergency directions. The carrier must act in accordance with the directions and must provide the person with contact information for the Department of Transport’s Office of Reconsideration. Finally, the Act provides that information received by the carrier should be treated in confidence.
During the first year of operation, the regulations have been supplemented by a Ministerial Exemption and a Memorandum of Understanding between the air carriers and Transport Canada. The proposed amendments will incorporate that material into the regulatory text.
In the first place, the age of persons who are subject to the regulations will change from 12 to 18. A survey conducted by IPSOS/REID concluded that about 20% of respondents found the documentation requirement for children to be a “significant obstacle”. The government has considered this, has noted that persons under 18 are generally “low risk” and has proposed to raise the threshold from 12 to 18. This will not amount to a change in practice since a Ministerial Exemption has already raised the threshold.
The amendment will provide a little relief at the boarding gate. At present, carriers are to check three elements at the gate: name, date of birth and gender. It has been observed that all persons arriving at the boarding gate will already hold boarding passes and that the screening for these elements will have taken place before issuance. The identification at the gate is simply to confirm that the holder of a boarding pass is the person to whom it was issued. Accordingly, it will now be sufficient if the carrier verifies the name on the identification document at the gate.
The documents which can be used for screening purposes currently do not include the restricted area identity card issued to certain employees by airport authorities. The individuals who hold RAICs have been subjected to clearance procedures and access restricted areas on a regular basis. It is accordingly proposed to include the card as an acceptable identity document for screening purposes.
The MOU in place between carriers and Transport Canada specifies that carriers are to use the most up-to-date information supplied by the Minister, to remove names which are no longer on the Minister’s list and to take steps to ensure confidentiality including keeping a record of the airline personnel who have access to the names on the list. The Privacy Commissioner did not consider this arrangement satisfactory. The MOU, not being a regulatory document, is not a basis for enforcement action. These provisions will now be included in the regulatory text.
A large number of government departments and agencies have adopted an enforcement system which provides for the levying of administrative penalties which can be imposed without recourse to criminal process. These administrative monetary penalties, or AMPs, have been adopted for a number of regulatory schemes enforced by Transport Canada, but are not currently provided for in the Identity Screening Regulations. It is proposed to adopt the AMPs system and to apply it to all enforcement activity with one exception: the enhanced provision related to the protection of confidential information would remain subject to criminal prosecution.
Transport Canada inspectors will be told to assess AMPs in accordance with an enforcement matrix which takes into account the seriousness of a contravention and its consequences, the offender’s compliance record, whether the offence was willful or deliberate and the offenders apparent attitude towards compliance.
The proposed amendments are open for comment until June 16, 2008.
Regulations Amending the Identity Screening Regulations,
Canada Gazette, Part I, May 15, 2008