ARCHIVED - Highlights of the Public Safety Act, 2002

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Backgrounder / May 6, 2004 / Project number: GC 004/04 BG

INTERIM ORDERS

The Act gives Ministers the authority to issue an interim order if immediate action is required to deal with a serious threat or significant risk - direct or indirect - to health, safety, security, or the environment.

An interim order covers matters for which regulations would normally be made except that the immediacy of the threat requires an immediate response. The interim orders provisions relate to the following acts within the mandate of the Ministers of the Environment, Health and Transport:

  • Aeronautics Act

  • Canadian Environmental Protection Act, 1999;

  • Department of Health Act;

  • Food and Drugs Act;

  • Hazardous Products Act;

  • Navigable Waters Protection Act;

  • Pest Control Products Act;

  • Quarantine Act;

  • Radiation Emitting Devices Act;

  • Canada Shipping Act; and

  • Canada Shipping Act, 2001.

Several provisions ensure a significant degree of control over the actions of Ministers in an emergency situation and include the following:

  • the period within which the Minister is required to obtain approval from the Governor-in-Council is 14 days after the interim order is made;

  • a copy of the interim order must be tabled in each house of Parliament within 15 days from the time it is issued, notwithstanding whether Parliament is in session;

  • the Governor-in-Council approved interim order will be valid only for a period of up to one year;

  • the interim order will be published in the Canada Gazette within 23 days from the time it is made;

  • no person can be convicted of contravening the interim order, unless at the time of the contravention the interim order had been published in the Canada Gazette, the person had been notified, or reasonable steps had been taken to inform the person;

  • the interim order can be repealed at any time; and

  • interim orders are referred to the Standing Joint Committee on the Scrutiny of Regulations.

Provisions for similar interim orders currently exist in the Aeronautics Act and the Canadian Environmental Protection Act.

DATA SHARING

Advanced Passenger Information (API) is basic information for each passenger, such as name, gender, date of birth, citizenship and a travel document number. Passenger Name Record (PNR) is information related to the traveller’s reservation, such as flight number and itinerary. Air carriers will be required to provide Transport Canada, as well as Royal Canadian Mounted Police (RCMP) and Canadian Security Intelligence Service (CSIS) designated officials, with this information, upon request, for transportation or national security purposes. The information to be provided is restricted to the information set out in the schedule to the Aeronautics Act.

This scheme is designed to increase the government’s capacity to prevent terrorist attacks, deliver an effective Air Carrier Protective Program (RCMP officers aboard aircraft for the safety of passengers), and respond swiftly should a significant threat arise.

Transport Canada will have to destroy air passenger information within seven days. The same time frame applies to RCMP and CSIS designated officials unless they have to retain passenger information for a longer period if reasonably required for the purposes of transportation security or the investigation of threats to the security of Canada.

Passenger information can also be disclosed to a third party for very restricted purposes. These purposes relate to the mandate of each department or agency. For example, Transport Canada can only disclose information to restricted parties for transportation security purposes, while CSIS and RCMP designated officers can disclose this information to limited parties for specific purposes, for example transportation security, imminent public safety threats, outstanding warrants (as set out in regulations) and removal orders, compliance with a subpoena or court order, and counter-terrorism investigations by CSIS.

RCMP Access to Passenger Information

The RCMP can only access passenger information for the purpose of transportation security. While screening passenger lists for transportation security, if the RCMP incidentally discovers a criminal wanted for a serious crime punishable by five years or more imprisonment and listed in regulations, the Force can disclose that information to a peace officer if there is reason to believe it would assist in the execution of a Canada-wide warrant. This aspect of the scheme is necessary for public safety because the RCMP needs to take appropriate action if it happens to find a passenger wanted for an outstanding warrant listed in the regulations which include serious offences such as murder or kidnapping.

Amendment to the Personal Information Protection and Electronic Documents Act

The Public Safety Act, 2002 makes an amendment to the Personal Information Protection and Electronic Documents Act (PIPEDA), to ensure the effectiveness of the data-sharing regime.

Organizations subject to PIPEDA are already authorized to disclose personal information without the person's consent for reasons of law enforcement, national security, defence of Canada, conduct of international affairs, and where otherwise required by law.

Under PIPEDA, the airlines are currently authorized to disclose personal information without consent in this context.

Given our changed security environment and this new data-sharing regime, we need to clarify that the exemption criteria for collection and use mirror those already set out in the Act for disclosure.

For example, if CSIS receives intelligence from a foreign agency that a suspected terrorist is expected to arrive on a flight from Europe within the next three weeks, CSIS is authorized to share core biographical information about the terrorist with the airlines, and to request that they notify CSIS the moment the person buys a ticket.

This will ensure consistency with the overall intent of PIPEDA, which was intended to protect the personal information of Canadians, while allowing law enforcement and national security to continue their investigative and intelligence activities.

Amendment to the Department of Citizenship and Immigration Act and Immigration and Refugee Protection Act

Amendments to the Department of Citizenship and Immigration Act and the Immigration and Refugee Protection Act make explicit Citizenship and Immigration Canada's (CIC) authority to enter into agreements and arrangements for the purposes of sharing immigration-related information with certain key partners.

Amendments to the Immigration and Refugee Protection Act create a regulation-making power that not only clarifies the government's authority to share information for immigration purposes, national security, national defence and the conduct of international relations, but also allows for the creation of conditions that restrict CIC and the Canada Border Services Agency's (CBSA) capacity to disclose information. This is a key element directed at protecting privacy rights while still providing the necessary legal authority. In addition, this Act requires that any regulations made under the new regulation-making power shall be laid before both houses of Parliament for referral to the appropriate Committees.

CIC and the CBSA have many key domestic and international partners with whom they require the ability to share immigration-related information, especially for the purposes of border security and international cooperation in the fight against terrorism. Under the Smart Border Action Plan, the Government of Canada is committed to sharing information with the United States. The ability to share information is critical to sustaining our border initiatives with the U.S., which, in turn, are critical to Canada's economic security.

Amendment to the Aeronautics Act

The Aeronautics Act has been amended to clarify that air carriers may only provide information to a foreign country on passengers on board an aircraft departing from Canada, or on a Canadian aircraft departing from somewhere else, if that flight is scheduled to land in that country.

TRANSPORTATION SAFETY AND SECURITY

The amendments made to the Aeronautics Act are designed to clarify and update existing aviation security authorities. The amendments also strengthen these authorities to maximize the effectiveness of Canada's aviation security system, and enhance the Government of Canada's ability to provide a safe and secure environment for aviation.

Previously, the authority to make regulations was worded in general terms in the Aeronautics Act. The amendments clarify these existing authorities, and provide examples of specific matters that can be dealt with in regulations, including those concerning security requirements for the design or construction of aircraft, airports and other aviation facilities. An example would be regulations respecting the strengthening of flight deck doors or limiting the proximity of public parking lots to passenger terminals.

Regulations may be made in respect of:

  • restricted areas; for example, the Act now allows regulations to establish restricted areas within aircraft and airports, as well as other aviation facilities, such as air traffic control towers located outside restricted areas. Previously, the concept of restricted areas was applied only to areas within airports;

  • screening of persons entering restricted areas; for example, the Act now allows regulations permitting or requiring screening of people entering restricted areas, even those people who have security clearances and are already in possession of a restricted area access pass; and

  • security clearances; for example, the Act now allows regulations requiring operators of crop duster aircraft to obtain security clearances.

The Act now discourages unruly passengers (commonly referred to as "air rage") by making it an offence to engage in any behaviour that endangers the safety or security of a flight or persons on board, by interfering with crew members or persons following crew members' instructions.

The Act incorporates references to the Canadian Air Transport Security Authority (CATSA), which was established on April 1, 2002, and is responsible for the provision and funding of several key aviation security services, including screening, in Canada.

The two amendments made to the Canadian Air Transport Security Authority Act:

  • require CATSA to comply with emergency directions and interim orders as they relate to the delivery of screening services in Canada; and

  • enable the Authority to enter into agreements with an operator of an aerodrome designated by regulations to contribute to the cost of policing at airports.

The Marine Transportation Security Act has been amended to enable the Government of Canada to provide funding to the marine sector, including ports, to strengthen marine security.

CRIMINAL CODE

The amendments to the Criminal Code build on the definition of "terrorist activity" contained in the Anti-Terrorism Act, and separately criminalize those who convey false information that is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur; and those who commit acts that are likely to cause a reasonable, but false apprehension that terrorist activity is occurring or about to occur. In both cases, there is also a specific requirement that there be intent to cause fear of death, bodily harm, substantial damage to property, or serious interference with the lawful use or operation of property, before criminal liability can ensue.

The maximum penalty for these offences increases according to the harm caused. The maximum penalty for the base offence is five years imprisonment. However, if the hoax causes actual bodily harm, the maximum penalty would be increased to 10 years imprisonment. If the hoax causes death, the maximum penalty would be increased to life imprisonment.

EXPLOSIVES

The federal Explosives Act regulates the importation, manufacture, storage and sale of commercial explosives, along with aspects of their transportation. Natural Resources Canada's primary mandate in this area is to ensure the health and safety of workers in the industry and of the general public. Regulation of explosives is, in general, a provincial responsibility.

The amendments to the Explosives Act strengthen the Government of Canada's role in regulating the acquisition and exportation of explosives and their transportation in Canada. They introduce tougher security measures related to the manufacture, storage and transportation of explosives. The Act also defines "illicit trafficking" so that it captures the type of activity that can enable criminals or terrorists to acquire explosives.

New sections address security measures, record keeping, and the exchange of information for the purpose of tracing, identifying and preventing the illicit manufacture or illicit trafficking of explosives.

The changes align Canada's legislation with the Organization of American States' (OAS) 1997 Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials.

EXPORT AND IMPORT PERMITS

Amendments to the Export and Import Permits Act provide explicit authority to control the electronic transfer of technology on Canada's Export Control List. These changes respond to the need for greater controls over the export and electronic transfer of military and strategically sensitive technology. These amendments also provide the Minister of International Trade with authority to consider general security concerns when assessing applications for permits to export or transfer goods or technology.

NATIONAL DEFENCE

The legislation includes a provision for job protection measures for Reserve force personnel in the event of a compulsory call out in an emergency such as an armed conflict or war. At the conclusion of a period of compulsory call out, employers would be required to reinstate Reservists in equivalent employment. This amendment ensures that Reservists do not have to choose between possibly losing their livelihoods and breaking the law that requires them to serve when called.

The legislation modernizes the procedures that are followed when provincial and territorial governments request military assistance and aligns them with existing mechanisms to rationalize the response of the Canadian Forces in providing assistance to civilian law enforcement, which involve federal government input. Requests for aid of the civil power will continue to be made directly to the Chief of Defence Staff (CDS). However, the Minister of National Defence can provide direction to the CDS to ensure that the Government of Canada is able to manage simultaneous or multiple requests for assistance during an emergency.

In addition, the legislation modernizes the definition of "emergency" to reflect the new security environment by including clear reference to circumstances of armed conflict short of formally declared war. A number of important powers under the National Defence Act, such as the authority to generate forces to deal with terrorist threats, are tied to the existence of an emergency.

Finally, the legislation establishes a panel of Reserve military judges that can be called upon when sudden changes in operational commitments increase the workload for the Military Justice System.

ENERGY INFRASTRUCTURE

The safety of inter-provincial and international pipelines and international power lines is a matter of primary public interest and has been included in the National Energy Board's (NEB) mandate since 1959. The NEB regulates the design, construction, operation, maintenance, and abandonment of a pipeline or power line and ensures the safety of employees, the public and the environment.

The amendments to the National Energy Board Act expand the NEB's mandate to regulate security of installations and provide the NEB with a clear statutory mandate to:

  • order a pipeline company or certificate holder for an international power line to take measures to ensure the security of the pipeline or power line;

  • make regulations respecting security measures;

  • keep information (relating to security) confidential in its orders or proceedings;

  • provide advice to the Minister of Natural Resources on issues related to security of pipelines and international power lines; and

  • waive the publication requirements for applications to export electricity, or to construct international power lines, if there is a critical shortage of electricity caused by terrorist activity.

COMBATING TERRORIST FINANCING AND MONEY LAUNDERING

The Act amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) to provide the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) with the ability to exchange information with various agencies that regulate and supervise financial institutions and financial intermediaries, to ensure compliance with the PCMLTFA. Under the new legislation, FINTRAC is able to share information with regulators and supervisors on how the various reporting entities, such as banks and trust companies, are complying with the provisions of the PCMLTFA.

Furthermore, the Act contains a complementary amendment to the Office of the Superintendent of Financial Institutions Act that permits the superintendent, who regulates federal financial institutions, to disclose to FINTRAC information related to compliance by a financial institution.

The legislation also amends the PCMLTFA to clarify that FINTRAC is permitted to enter into negotiations with other government departments and agencies to access information from government databases related to national security in much the same way it may collect information from law enforcement databases. These changes are consistent with FINTRAC's mandate to uncover money-laundering activities of financing for terrorist activities.

BIOLOGICAL AND TOXIC WEAPONS

The Act enacts the Biological and Toxic Weapons Convention Implementation Act (BTWCIA), which prohibits biological weapons and agents that do not have a peaceful purpose, and which provides a more complete legal basis to regulate dual-use biological agents in Canada. The BTWCIA will help to prevent the development, production, stockpiling, acquisition, transfer or use of biological weapons by states, individuals or other entities. It supplements and reinforces Canada's existing legislation to prevent the development or transfer of biological weapons. In addition, new amendments set the terms and conditions of inspectors' activities in Canada, particularly in relation to their search and seizure abilities.

ACTS AMENDED BY THE PUBLIC SAFETY ACT, 2002

Department Act
CIC

Department of Citizenship and Immigration Act
Immigration and Refugee Protection Act

CBSA Immigration and Refugee Protection Act
DFAIT

Biological and Toxic Weapons Convention Implementation Act
Export and Import Permits Act

DND National Defence Act
Environment Canadian Environmental Protection Act, 1999
Finance

Office of the Superintendent of Financial Institutions Act
Proceeds of Crime (Money Laundering) and Terrorist Financing Act

Health

Department of Health Act
Food and Drugs Act
Hazardous Products Act
Pest Control Products Act
Quarantine Act
Radiation Emitting Devices Act

Industry Personal Information Protection and Electronic Documents Act
Justice Criminal Code
NRCan

Explosives Act
National Energy Board Act

Transport

Aeronautics Act
Canadian Air Transport Security Authority Act
Canada Shipping Act
Canada Shipping Act, 2001
Marine Transportation Security Act, 1999
Navigable Waters Protection Act

Consequential Access to Information Act
Transportation Appeal Tribunal Act
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