Bill C-52: An Act to enact the Air Transportation Accountability Act and to amend the Canada Transportation Act and the Canada Marine Act

Tabled in the House of Commons, September 20, 2023

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-52, An Act to enact the Air Transportation Accountability Act and to amend the Canada Transportation Act and the Canada Marine Act, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill. What follows is a non-exhaustive discussion of the ways in which Bill C-52 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.

Overview

Bill C-52 would enact the Air Transportation Accountability Act, to ensure accountability and transparency in the air transportation sector. It would also make amendments to the Canada Marine Act and the Canada Transportation Act.

The proposed Air Transportation Accountability Act would establish requirements for airport operators, air carriers, and any entity providing flight-related services to provide information to the Minister of Transport, and for airport operators to take measures to help Canada meet its international obligations related to aeronautics in accordance with directions issued by the Minister of Transport. In addition, it would provide authority for the Governor in Council to make regulations with respect to the development and implementation of service standards related to flights and flight-related services, establish requirements in relation to airport noise committees, and set out notice and consultation requirements related to aircraft noise. It would also establish a complaint process through the Canadian Transportation Agency respecting notice and consultation requirements in relation to aircraft noise. The proposed Act would include both an administrative monetary penalty regime as well as a general offence for contraventions of the Act. It would further require airport authorities to prepare greenhouse gas emissions reduction plans and climate change adaptation plans and would require them to publish information respecting diversity among directors and senior management. The Act would give the Governor in Council the authority to make regulations setting out more detailed requirements with respect to the climate change plans and reporting on the diversity of the members of airport authority boards and senior management.

Amendments to the Canada Marine Act would set out rate-setting principles that port authorities observe when fixing port fees, and give the Canadian Transportation Agency the ability to consider complaints concerning those fees. They would also authorize the Governor in Council to make regulations respecting alternative dispute resolution for disputes arising in respect of a lease relating to the operation of a port terminal.

Amendments to the Canada Transportation Act would allow for the enactment of regulations that support the development of a transportation system that is accessible to persons with disabilities, including a complaint process.

The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:

Right against unreasonable search and seizure (section 8 of the Charter)

Section 8 of the Charter protects against unreasonable searches and seizures. A “search” or “seizure” is state action that interferes with a reasonable expectation of privacy. Powers allowing for the collection or disclosure of information or the inspection of regulated spaces have the potential to interfere with privacy and must accordingly meet the “reasonableness” requirement under section 8.

A search or seizure that intrudes upon a reasonable expectation of privacy will be reasonable if it meets three requirements. First, it must be authorized by law. Second, the law itself must be reasonable in the sense of striking an appropriate balance between privacy interests and the state interest being pursued. Third, the search or seizure must be carried out in a reasonable manner. The assessment of the reasonableness of the law is a flexible one that takes into account the nature and purpose of the legislative scheme, and the nature of the affected privacy interests.

Offence rights (section 11 of the Charter)

Section 11 of the Charter guarantees certain rights to persons who have been charged with an offence, including the right to a fair and public hearing before an independent and impartial adjudicator. Its protections apply only to persons “charged with an offence”. For the purposes of section 11, this occurs when a person is subject either to proceedings that are criminal in nature, or that result in “true penal consequences”. True penal consequences include imprisonment and fines with a punitive purpose or effect, such as when a fine or penalty is out of proportion to the amount required to achieve regulatory purposes.

Air Transport Accountability Act

Inspection Powers

The Bill would enact powers of enforcement officers to enter and inspect any place where they have reasonable grounds to believe that relevant information is located or an activity regulated by the proposed Act is conducted, for the purpose of ensuring compliance with the Act. These inspection powers have the potential to engage section 8 of the Charter.

The following considerations support the consistency of these provisions with section 8 of the Charter. Inspection powers would be limited to places where enforcement officers have reasonable grounds to believe that relevant information is located. Further, privacy interests are diminished in the regulatory and administrative contexts. Powers to gather, compel the production of or disclose relevant information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under section 8. In reviewing the relevant provisions, the Minister has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8 of the Charter.

Information collection

The Bill would require an airport operator, an air carrier that serves an airport, and any entity that provides flight-related services at an airport to, on request, provide to the Minister of Transport information that the Minister considers necessary for the exercise of the Minister’s powers or the performance of the Minister’s duties and functions under the Act or for the development of transportation policies. This would include information regarding the Canadian air transportation system, traffic, operations, and compliance with Canada’s international aeronautic obligations. The Bill also ensures the confidentiality of information provided, while allowing for the disclosure of aggregated or publicly-available information to the public. The information collection authority has the potential to engage section 8 of the Charter.

The following considerations support the consistency of these provisions with section 8 of the Charter. Information collection would be limited to information the Minister considers necessary for the exercise of the Minister’s powers or the performance of the Minister’s duties and functions under the Act or for the development of transportation policies. There is also an obligation to keep information collected confidential, subject to limited exceptions for the purposes of administering or enforcing an Act, policy development or the disclosure of aggregated or publicly-available information to the public. Further, privacy interests are diminished in the regulatory and administrative contexts. Powers to compel the production of relevant information for regulatory or administrative purposes, rather than for the purpose of investigating offences, have been upheld as reasonable under section 8. In reviewing the relevant provisions, the Minister has not identified any potential effects that could constitute an unreasonable interference with privacy as protected by section 8 of the Charter.

Offences

The Bill creates a new general offence for contravening any provision of the proposed Act, other than those that are designated as violations subject to administrative monetary penalties. These offences would be punishable by fine, with a cap of $5 000 for individuals and $250 000 in the case of an entity, such as a corporation, with no mandatory minimum fine.

The proposed offence provisions would provide for criminal charges, prosecution, and sentencing that could potentially engage rights under section 11 of the Charter. In reviewing the relevant measures, no potential inconsistencies between the offence provisions and rights under section 11 have been identified.

Administrative Monetary Penalties

The Bill would make contravention of certain provisions of the proposed Act a violation, for which administrative monetary penalties could be imposed. An enforcement officer who has reasonable grounds to believe that an individual or entity has committed a violation may issue a notice of violation which must identify the nature of the violation, the amount of the penalty, as well as the right of an individual to request to enter into a compliance agreement with the Minister or request a review of the violation, penalty, or both by the Transportation Appeal Tribunal of Canada. Given the possibility of substantial monetary penalties, the amendments could potentially be perceived as impacting section 11 rights.

The following considerations support the consistency of the provisions with the Charter. The proceedings leading to the imposition of a monetary penalty would be administrative in nature. As the amendments specify, the purpose of imposing a penalty would be to promote compliance with the proposed Act, and not to “punish”. The administrative monetary penalties would be subject to a legislated cap of $5 000 for individuals for each violation of the proposed Act and $250 000 in the case of an entity, with no mandatory minimum fine. As an alternative to paying the penalty, an individual could request to enter into a compliance agreement, with terms set by the Minister, which could include reducing the penalty in part or in whole. In this context, the imposition of a penalty would not give rise to “true penal consequences” for the purpose of section 11 of the Charter.