CTLA Feature Articles and Case Notes

the proposed amendments broadly authorize the Governor in Council to make regulations regarding SeMSs.18 Therefore, if Bill C-33 is passed in its current form, the details of what is required under SeMSs will likely be clarified only when regulations respecting SeMSs are later made.

It is difficult to predict what impact this will have in terms of, for example, imposing additional regulatory burden and other costs on railways.

(iii)

Transportation Security Clearances

Transport Canada currently administers a transportation security clearance program for individuals who require unescorted access to restricted areas of designated airports or marine ports, or who require it to perform certain duties in those transportation sectors. Currently, no such program exists for rail.

The proposed amendments provide the Minister with the authority to introduce such a program within the rail sector, authorizing the Minister to grant, refuse to grant, suspend or cancel a transportation security clearance, and make regulations to set related fees.19

We understand from communications with Transport Canada that, if Bill C-33 passes in its current form, the objective would be for a transportation security clearance program to be implemented if “future circumstances or supporting evidence were to point to a need to consider its introduction”. If that occurred, Transport Canada has conveyed that it would conduct due diligence, including by conducting appropriate consultations with industry and stakeholders. Transport Canada has indicated that there are no current intentions to proceed with the implementation of a transportation security clearance program at this time.20

If Transport Canada were to move forward with a transportation security clearance system in the railway context, it will likely be modelled on the existing programs in place with respect to aviation and ports. No further information is available in the proposed amendments.

(iv) Strengthened Protection of Railway Works and Operations

The current version of the RSA prohibits a person from, without lawful excuse, entering on land on which a line work is situated and requires users of a road to give way to railway equipment at a road crossing. These basic prohibitions against trespass will be expanded with sections 26.3 and 26.4 of the RSA to prohibit: (a) “interference” with any railway work, equipment, or operation, (b) the damage to or destruction of any railway work or equipment in a manner that threatens the safety of railway operations, (c) behaviour that endangers or risks endangering the safety of a station, railway equipment, or individuals at a station or on board railway equipment, and (d) unruly behaviour toward employees, agents, or mandataries of a railway company.

By broadening and strengthening the trespass and interference provisions in the RSA , the proposed amendments appear to directly address challenges and concerned raised in both the RSA Review and the Task Force Report. The RSA Review identified trespassing as a safety concern, 21 and recommended that the federal government develop a national strategy to reduce the number of fatalities that result from trespassing on railway property.22 The Task Force Report further addressed trespass, but more specifically recommended protecting corridors, border crossings, and gateways from disruptions to ensure unfettered access for commercial transportation modes and continuity of supply chain movement,23 rather than focusing exclusively on human safety. One of the specific recommendations was dealing with “human caused mischief” and providing law enforcement and judiciary “with tools/ resources to pre-empt blockades and/or expeditiously remove individuals or objects intended to be used to disrupt nationally critical transportation supply chain infrastructure or operations.”24 The Task Force Report specifically referenced 2020 rail blockades as an example of harm caused by such disruptions and scenarios that must be avoided in the future,25 which may explain why the focus broadened from being strictly safety-focused to including interference with railway operations more broadly.

These proposed amendments provide clearer powers to both law enforcement and the judiciary to address trespass and service