4. Legislative Framework

i. Existing Legislation

Canada

In light of the concerns which lead to the formation of the Working Group and its Terms of Reference, much attention was directed toward assessing the adequacy of the existing legislative framework (federal statutes and regulations) in helping to address interference with crew and unruly passengers more generally. It is to be noted, however, that the Working Group’s identification of "relevant" laws, its assessment of these laws and its identification of issues is based largely on the perspectives of aviation safety specialists, not specialists in legal matters.

The Aeronautics Act is the major federal statute respecting civil aviation. In general, the Act sets out responsibilities of the Minister, and provides for the making of regulations and the enforcement of aeronautics law. In terms of jurisdiction, the Act and the regulations thereunder have broad application "… to all persons and to all… things in Canada… and to all Canadian aircraft and passengers and crew members thereon outside Canada."

The Act appears to contain no provisions which deal directly with crew interference and unruly passenger conduct. A possible exception is paragraph 7.3 (1)(d) which states that "No person shall… wilfully obstruct any person who is performing duties under this part…". The Working Group was unable to determine whether the act of wilfull obstruction as contemplated by this provision is focused narrowly on the obstruction of enforcement action under the Act or whether a more general meaning is intended. For example, it can be argued that the provision could be applied in the case of a passenger who wilfully obstructs (ie. interferes with) a crew member carrying out duties on board an aircraft in accordance with regulations (ie. the CARs) made pursuant to the Act.

The CARs contain a number of provisions directly relevant to situations where crew interference or unruly passenger behaviour has occurred. For instance, the CARs proscribe the consumption of alcohol on board aircraft that has not been provided by the aircraft operator, smoking on board aircraft and disabling smoke detectors, the use of electronic devices without permission, and require passengers to comply with instructions given by any crew member. Likewise, the Canadian Aviation Security Regulations prohibit the transportation of weapons and hoax threats.

The CARs and Standards issued thereunder require that crew members be trained in matters pertaining to unruly passengers. The Flight Attendant Training Standard requires that training be provided on the following points:

• the requirement for passengers to comply with the instructions of crew members;

• the air operator’s policy for accepting or denying boarding to passengers and who is responsible for making this decision; and

• regulatory requirements regarding passengers who appear to be impaired, and policies and procedures on alcohol service.

Commercial Air Service Standard 725.124(39) states, in part, that initial training is required for all crew members and it shall cover attitudes and behaviour, communication skills, human factors and conflict resolution.

The Criminal Code of Canada creates a number of offences that can be and have been applied in cases where crew have been subject to interference or passengers have become unruly. These include assault, mischief, uttering threats, endangering the safety of aircraft and hijacking.

The Criminal Code of Canada defines peace officer to include the pilot-in-command while an aircraft is in flight and thereby accords certain powers, responsibilities and protections.

The Working Group considered the relevance of the Canada Labour Code to situations where passengers become unruly or interfere with crew members. Part II of the Canada Labour Code requires, in general, that employees have a safe place to work in where their health is not compromised. It also stipulates that employees have the right to know about any known or foreseeable hazards in the workplace, and employers are required to provide proper training to deal with these hazards. Violence in the workplace is recognized by Transport Canada as a foreseeable hazard.

In light of the number of reported cases of interference with aviation company personnel inside the terminal building and crew members on board aircraft, Transport Canada has strongly encouraged air operators to establish policies that will ensure employees are able to effectively manage such cases. To this end, the department issued Commercial and Business Aviation Advisory Circular 0166 entitled "Managing Disruptive and Unruly Passenger Behaviour" on January 10, 2000. According to the Circular, such policies "… should be developed in agreement with the safety and health committee or representative, thus ensuring that both employees and management have an opportunity to design mechanisms that suit the needs of everyone involved.".

Additional information on the aforementioned statutes and regulations is contained in Annex 3.

Other Countries

Interference with crew members and unruly passengers are aspects of aviation not unique to Canada. Indeed, there is a growing international concern about the need to deal effectively with the problem. In some jurisdictions this has precipitated the introduction of specific legal measures.

In the United States, Title 14 of the Code of Federal Regulations, section 91.11, states that

"No person may assault, threaten, intimidate, or interfere with a crew member in the performance of the crew member’s duties aboard an aircraft being operated."

The maximum penalty that may be applied is a civil monetary penalty not to exceed $1100 per incident.

In addition, the United States Code, Section 46504 Interference with flight crew members and attendants, provides as follows;

"An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in the assaulting or intimidating of the member or attendant, the individual shall be imprisoned for any term of years or for life".

In the United Kingdom, provisions to address unruly passengers’ actions and interference with crew were recently brought into force. Air Navigation Order - Article 59A states that:

"No person shall while in an aircraft:

use any threatening, abusive or insulting words towards a member of the crew of the aircraft;

behave in a threatening, abusive, insulting, or disorderly manner towards a member of the crew of the aircraft; or

intentionally interfere with the performance by a member of the crew of the aircraft of his duties."

The prohibitions at (a) and (b) carry a maximum fine of £2,500 whereas the prohibition at (c) may carry a maximum fine of £5000 or an unlimited amount and/or imprisonment for a term up to two years depending on the court process used in each case.

At a regional scale, the European Civil Aviation Conference is currently developing guidelines on legal aspects as well as unruly passenger incident prevention and management. These guidelines, however, are not yet sufficiently mature to report on.

International Air Law Instruments

The Working Group considered the relevance of the Tokyo, Hague and Montreal Conventions and the Montreal Protocol to interference with crew members and unruly passenger incidents in Canada. It noted that these conventions have been incorporated into Canadian law through the Criminal Code of Canada and thereby provide a framework for the prevention and deterrence of specific types of crimes endangering the safety of aviation, such as sabotage, hijacking and airport attacks. In particular, they provide for the establishment of jurisdiction by state authorities over unlawful acts committed on board aircraft or against civil aviation.

The International Civil Aviation Organization (ICAO) has identified jurisdictional gaps that may be relevant in dealing with cases of interference with crew members and unruly passengers. With the active support of Canada, ICAO is currently studying the matter and is expected to announce its findings later this year or early in 2001. The jurisdiction of Canada in respect of crimes committed on board aircraft has been recognized by ICAO and the International Air Transport Association as a model regime. Nevertheless, the Working Group anticipates that the results of ICAO’s work may be pertinent for Canada in other respects.

ii. Issues

Issues in Canadian Law

The Working Group sought to identify shortcomings in the framework of Canadian laws applicable to interference with crew members and situations involving unruly passengers. Several inadequacies came to light.

Unlike Canada’s two principal aviation partners, there is no specific offence in Canadian law that proscribes interference with crew members. The unruly actions of unruly passengers can divert crew members from monitoring and attending to safety-related matters, and where crew have been injured or otherwise traumatized, diminish their ability to attend to others. In these cases, some or potentially all persons on board the aircraft may be victims of the unruly passenger. Such broader and significant consequences must be seen as elevating the act to consideration as a criminal matter.

The Working Group recognizes that the Criminal Code of Canada already contains offences respecting assault and endangering the operation of aircraft. It is concerned, however, that the facts of cases of interference with crew and unruly passenger behaviour may not adequately support successful prosecution under these charges. If this occurs, the risk is that persons who harm or put in jeopardy the safety of others may go unpunished.

In the opinion of the Working Group, interference with crew should be an offence in criminal law and not aviation law. Furthermore, given the potential seriousness of acts which may be committed, interference with crew members should be prosecutable as a summary or indictable offence with appropriate penalties prescribed.

While the Working Group noted the broad jurisdiction in applying the Criminal Code of Canada to offences committed on board aircraft, it noted that jurisdiction extends only to indictable offences. Jurisdiction does not extend to summary offences, such as causing a disturbance, which may be committed by an unruly passenger. This is seen by the Working Group as a gap in Canadian law in need of correction.

The Working Group considered a number of circumstances which highlight specific deficiencies in aviation law. For example, air operators and crew may be placed in an extremely unfavorable situation when immigration authorities at an airport outside of Canada refuse to permit entry into their territory of an unruly passenger. Air operators faced with such circumstances have had no choice but to reboard passengers even though their behaviour may indicate every likelihood of causing further difficulties. The Working Group supports the position of several air operators that there should be provision in the CARs to prohibit an air operator from transporting a person the air operator believes may represent a threat to the safety of other persons. This could provide a shield for use by air operators when "forced" to transport an unruly passenger or in the event of proceedings instituted by a passenger to recover damages incurred as a result of being denied carriage. Such a provision, however, should be enacted only if its interaction with other states’ immigration law would support air operators and not place them in the even more awkward position of breaching a Canadian regulation by transporting a threatening passenger or otherwise disadvantage air operators.

Closely related to this kind of approach to dealing with specific incidents is so called "black-listing" or denying carriage to passengers who have established a record of conduct unacceptable to an air operator. The Working Group considered the rights of persons to carriage by air and privacy, the difficulties in determining objective criteria for denying carriage acceptable to air operators and the laws of different states, air operators’ interests, the rights of crew to a safe workplace, practical aspects of regulating and administering such a mechanism on an individual air operator and national basis, the effect it may have on deterring unacceptable conduct, and initiatives taken by some air operators to deny carriage or otherwise take action against unruly passengers.

The Working Group was unable to achieve consensus on this matter. Some members, notably CUPE, believed that "black-listing" is essential to support the right to know concept (especially when information on known disruptive passengers is shared between air operators), that legal and other impediments are manageable, and that Transport Canada could regulate on this matter. Other members believed that individual’s rights to privacy and carriage together with airlines’ preference not to deny carriage on anything but a very limited scale militated against specific recommendations in this matter.

The application of the provisions of the Canada Labour Code gives rise to complex challenges with respect to the right to know about risks relating to unruly passengers. Aviation labour groups have great interest in there being greater clarity about the application of the Canada Labour Code to situations involving unruly passengers and interference with crew members. The Working Group, however, is not in a position to provide such clarification and anticipates that better understanding will develop as experience evolves. Nevertheless, air operators are encouraged to share and take appropriate action with information on unruly passengers.

The Working Group found that a persuasive argument can be made to support regulations respecting violence in the workplace and their application to violence at airports and on board aircraft. Interference with crew members is both an aviation safety issue and a workplace safety issue, especially when violence is considered. Violence in the workplace regulations could complement existing right to know legislation and include, for example, obligations for the employer to assess the risk of workplace violence, establish mitigation measures, and take appropriate corrective action in response to incidents of violence. Human Resources Development Canada and Transport Canada are encouraged to work together in consultation with aviation industry and labour stakeholders on such an initiative.

Consensus was achieved on the need for further development of crew member training requirements applicable to air operators. While current training standards are sufficiently broad to encompass unruly passengers and interference with crew members, greater specificity on training in the air operator’s policy, managing hazardous situations, prevention and other matters addressed by CBAAC 0166 would be a major and important step forward. This training should also address the availability and use of restraining devices on board an aircraft, especially in situations where there may be only one flight attendant.

The Working Group debated at some length whether this training should be required under the CARs or proposed violence in the workplace regulations (under the Canada Labour Code). The majority of members believed that proposed violence in the workplace regulations would be the most appropriate vehicle but did not wish to rule out the CARs given that violence in the workplace regulations remain under development and may not be published for some time.

iii. Recommendations

5. The Criminal Code of Canada should be amended

• to create a new offence that would prohibit interference with a crew member. The offence should carry an appropriately severe sanction; and

• to enable proceedings to be instituted where a person is alleged to have committed a summary offence on board an aircraft.

6. Proposals to amend the Criminal Code of Canada should incorporate recommendations in respect of interference with crew members and unruly passenger conduct currently being developed by the International Civil Aviation Organization.

7. The Canadian Aviation Regulations should be amended to prohibit air operators from transporting a person who, in the assessment of the air operator, is a risk to safety.

8. Mandatory crew member training should provide specifically for the instruction of appropriate air operator personnel in the prevention, management and post-flight aspects of interference with crew members and unruly passenger incidents, and incorporate and build on the information contained in Commercial and Business Aviation Advisory Circular 0166. Training of crew members should be linked to the air operator’s policy on interference with crew members and unruly passengers. These training requirements should be administered under the Canadian Aviation Regulations or violence in the workplace regulations to be made pursuant to the Canada Labour Code.

9. Regulations under the Canada Labour Code and/or the Aeronautics Act should be developed respecting violence in the workplace, including at airports and on board aircraft.