Cross-Border Travel- Be Prepared to Wait

Evelyn Ackah for The Lawyers Weekly

February 5, 2010

As a direct result of the attempted terrorist incident on Northwest Flight 253 on Christmas Day from Amsterdam to Detroit, new cross-border airport security measures have been implemented across Canada and the U.S. that are leading to significant travel delays for Canadians, as well as privacy and profiling concerns.

On Dec. 28, 2009, Transport Canada implemented enhanced security measures for passengers on flights to the U.S. or transiting through the U.S. Initially, no carry-on baggage at all was permitted on these flights. However, on Jan. 19 these measures were slightly revised, as follows.

Carry-on items

Generally speaking, passengers are now permitted to bring one carry-on bag for flights into the U.S., in addition to a small purse or laptop bag. This carry-on bag must not exceed 23 cm by 40 cm by 55 cm - equivalent to the size of a small gym bag. Items such as reading material, personal electronics and medications must be stored in the passenger's carry-on bag and packed prior to the security check.

There are exceptions for passengers with medical conditions or those travelling with small children. These travellers may bring on board a cane, walker, crutches, medical equipment, and diaper bags and other essential infant items or life-sustaining items required during travel.

Passengers travelling within Canada and internationally (not the U.S.) are still permitted to bring carry-on baggage, subject to the usual limits on liquids, gels or aerosols in containers.

Full-body scanners

The federal government has invested in 44 full-body scanners to enhance security at Canadian airports. They will be installed at major airports across the country. Travellers will have the option of undergoing a full-body scan or a physical search by an airport security officer. The scanner will be used to reveal objects, including weapons, explosives, plastics and ceramic products that could be concealed under clothing and that would not be revealed through a metal detector scan.

Currently this scanning technology is used in over a dozen countries around the world at airports, land border crossings, correctional facilities, courthouses and military checkpoints.

The full-body scanner technology was tested in 2009 for several months at the Kelowna Airport and was deemed to comply with Health Canada requirements as well as privacy concerns. Children under 18 will be exempt from the scanner, but instead will be subject to mandatory pat downs.

According to the Office of the Privacy Commissioner of Canada "passenger privacy is fully respected because the technology does not retain personal information from the passengers it screens. The image is not correlated in any way with the name of the passenger or any other identifying information. The screening officer will review the images in a separate room, and will not be able to view the passenger."

It has been reported that 95 percent of passengers involved in the testing process at the Kelowna Airport preferred the scanners to a physical pat-down search.

Behaviour screening

The federal government will be proposing passenger behaviour observation for screening at major Canadian airports. This is aimed at training airport personnel to identify and focus on any passengers exhibiting suspicious behaviour that could be caused by fear prior to boarding a plane.

This additional layer of security will focus on identifying irregular or suspicious behaviour and not racial or ethnic profiles. The emphasis is behaviour-based, for instance, wearing heavy clothes on a hot day or sweating profusely. Similar programs are already in place in airport and law enforcement environments such as the Canadian Border Services Agency, Citizenship and Immigration Canada and the Royal Canadian Mounted Police.

While on the plane

Another new security measure is that now, during some trips, flight crews may ask travellers to remain seated for the last hour of a flight or refrain from using electronic devices at times that are not related to take-off, landing or turbulence.

U.S. list of 14 countries

The U.S. has implemented strategies similar to those outlined above. In addition, the U.S. State Department has tightened passenger screening for citizens from 14 countries that the U.S. considers to be sponsors of terrorism or "countries of interest."

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

Passengers from those countries will now be subject to enhanced screening techniques, including body scans, pat-downs and searches of all carry-on luggage. The U.S. Transport Security Authority has also announced that U.S.-bound international flights will be subject to enhanced screen technologies and random screening. They have also added dozens of people to their no-fly lists.

At this time, Canada will not target nationals of certain countries, but will instead focus on passenger behaviour screening.

These new security measures will be in place until further notice from Transport Canada.

Travellers to the U.S. are advised to arrive at the airport well in advance of their scheduled flight to ensure sufficient time for these enhanced security measures. Over the past decade, travelling has lost much of its pleasure and has become onerous and exhausting. If you must go to the U.S. you should travel with Zen-like patience - and be prepared to wait.

Evelyn Ackah is a partner at Spectrum HR Law LLP, with offices in Calgary and Vancouver. She practises exclusively Canadian and U.S. business immigration and citizenship law and is certified as a specialist in immigration law by the Law Society of Upper Canada. Special thanks to Janet Nystedt for her research assistance.
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