Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



The New TSA "Countries of Interest" Airport Security Rules May Offend Canada's Human Rights Laws

I am not saying that airport security is not important. I am not intending to undermine the security of people who fly on airplanes (as I fly a lot).

That being said, the new Transportation Safety Administration (TSA) rules may pose a problem for the Canadian officials because dual-nationals from a "country of interest" and landed immigrants may feel that the Canadian Air Transportation Security Authority (CATSA) is discriminating of the basis of nationality. That is not allowed under Canada's human rights laws and the Canadian Charter of Rights and Freedoms.

The affected nationalities include nationals from (and persons travelling from and through and who recently may have travelled to) the following countries:

  • Afghanistan
  • Algeria
  • Cuba
  • Iran
  • Iraq
  • Lebanon
  • Libya
  • Nigeria
  • Pakistan
  • Saudi Arabia
  • Somalia
  • Sudan
  • Syria
  • Yemen

The passengers will experience additional screening measures, such as naked scanners, pat-downs, secondary screening, searching of luggage, etc.

The provincial Human Rights Commission have opined on numerous occasions about discrimination on the basis of nationality required by the U.S. ITARS (International Traffic in Arms Regulations) and many Canadian companies have been required to make pay-outs to aggrieved employees.

The issues for aggrieved passengers will include the effort to file a complaint and the quantification of the damages.

More importantly, Canadian businesses may have an issue when it comes to employees who must travel and who must be subjected to the strict screening requirements. If air travel has become more difficult for dual-nationals and persons born in the identified countries and that affects decisions of the business relating assignment of tasks involving travel, it may form the basis of a human rights complaint.

In addition, what about the employees that must legitimately travel to some of the "Countries of Interest". The legitimate business trip my result in enhanced screening for non-business and other business travel. The inconvenience factor may for the basis of a complaint.

These are also potential for sexual harassment complaints to be made. What would happen if a female associate was given an "extreme pat-down" at the airport by CATSA in front of a male boss and the male boss makes a remark of a sexual (mild or not) nature? What is a male employee was searched in the groin area and a female boss makes a remark? Could such comments form the basis of a complaint?

In implementing the TSA policy, there are serious legal ramifications that need to be considered beyond the traditional privacy concerns.

If you require more information, please contact Cyndee Todgham Cherniak at 416-307-4168.

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