Decisions

CAT File No. Q-1655-50
MoT File No. NB6504-VIGEANT R-2

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Richard Vigeant, Respondent

LEGISLATION:
Aerodrome Security Regulations, SOR/87-452, s. 20(1)
Aeronautics Act, S.C., c. A-2, ss. 7.7, 8.5

Strict Liability Offences, Search Posts, Passenger Screening, Employee, Due Diligence, Absolute Liability Offences


Review Determination
Carole Anne Soucy


Decision: January 25, 1999

TRANSLATION

The Minister of Transport has shown on a balance of probabilities that the Respondent, Richard Vigeant, did contravene subsection 20(1) of the Aerodrome Security Regulations. The Tribunal therefore upholds the Minister's decision and confirms the amount of the monetary penalty at one hundred and fifty dollars ($150.00). The penalty is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Friday, November 6, 1998, at 09:00 hours at the Federal Court in Montreal, Quebec.

PURPOSE OF THE REVIEW HEARING

The Minister of Transport has asked the Civil Aviation Tribunal to confirm the contravention of subsection 20(1) of the Aerodrome Security Regulations and to confirm the monetary penalty of one hundred and fifty dollars ($150.00) assessed against Mr. Richard Vigeant, as indicated in the Notice of Assessment of Monetary Penalty issued June 9, 1998. The monetary penalty was due July 9, 1998.

THE FACTS

On May 28, 1998, at approximately 14:10 hours, the Respondent and two coworkers presented themselves at Mirabel airport to take Air Transat flight number 245 to Toronto. On that day, the airport's search posts were closed. The Respondent and his travel companions, employees of the Haycot company, a subsidiary of Air Transat, decided to use one of their passes, a magnetic key, in order to gain access to the aeroplane's departure gate, in the restricted area, and take their flight.

The facts are not in dispute.

PRELIMINARY STATEMENTS

The parties agreed to have the cases of Richard Vigeant, Carole Arseneau and Claude Racicot heard in one hearing given the similarity of facts and elements of proof whether documentary or testimonial evidence. In fact, these three persons, who were travelling together, are alleged to have contravened subsection 20(1) of the Aerodrome Security Regulations. However, the Tribunal must draft separate determinations since each case carries its own respective number, and a contravention was alleged against each of the three persons.

Mr. André Marinier, representing the Minister of Transport, presented four (4) witnesses.

Mr. Jean-François Lemay, representing the Respondent, presented one witness, Carole Arseneau.

BACKGROUND AND TESTIMONY

André Sauvé, inspector for Transport Canada, testified that he saw the Respondent in the company of two people before he crossed the restricted area access point, and then in the restricted area on the aeroquay. Mr. Sauvé intercepted the three travellers and spoke to them on the passenger bridge to the aeroplane. Testimony of the conversations between Mr. Vigeant, his travel companions, and Inspector Sauvé, is contradictory.

According to André Sauvé, when the three travellers were asked to go through screening, they responded that they were on duty that day, and did not have to be screened.

As for the witness Carole Arseneau, she maintains that there was never any question of screening and that Mr. Sauvé wanted to know if they had tickets, if they were travelling on business and if they were part of the crew. The Respondent, who is not a crew member, had a ticket to go to Toronto as a passenger on business.

Evidence was given that for transit flights, tickets are issued to airline employees as well as to employees of airline subsidiaries travelling on business. No other passenger may travel on these flights, with the exception of passengers already on board before the stopover.

Also, when there is no regularly scheduled departure, screening points are closed. Testimony of the witnesses established that screening points were closed on May 28, 1998, because there were no flights that day at Mirabel. However, an employee of Kolossal, in charge of security at Mirabel airport, was present at the airport, and available all day to provide service if necessary.

Under cross-examination, Colette Ross, supervisor for Kolossal, admitted that at the time of the offence, there was no written procedure on screening point policy when these points were closed.

Also, as of September 1997, following a transfer of flights from Mirabel to Dorval, which significantly reduced aviation activity at Mirabel, screening point hours of operation were considerably reduced and no system was put in place to compensate for this situation.

THE LAW

The Minister maintains that Mr. Vigeant contravened subsection 20(1) of the Aerodrome Security Regulations, which provides:

No person shall enter or remain in a restricted area unless the person has in his possession a restricted area pass in respect of that restricted area and complies with all conditions of issuance or approval of the pass.

Conditions of issuance are specified in paragraph 2.1(h) of the Security System – Conditions of Issuance issued by Aéroports de Montréal (ADM) which provides:

The holder of a pass who is a passenger on a commercial flight must go through the passenger screening point before boarding. No person shall use a pass to avoid going through the passenger screening point. (translation)

ARGUMENT

In arguing his case, Mr. Lemay, the Respondent's representative, presented a summary of the various categories of offences. These categories are very well defined in the Sault Ste. Marie[1] decision, to which Mr. Lemay referred. Described are mens rea, strict liability and absolute liability offences.

First, for mens rea offences, intent must be clearly shown. For absolute liability offences, the legislator has clearly indicated that simple proof of a prohibited act is sufficient grounds for a guilty verdict. Finally, due diligence may be used as a defence for a strict liability offence, that is, once the offence is proven by the Applicant, the burden of proof shifts to the offender, and the latter must show that all means were employed to avoid the offence.

The Respondent argues that this case is a strict liability offence. However, he emphasizes that the wording of paragraph 2.1(h) of the security system "avoid going through the passenger screening point" suggests intent.

According to Mr. Lemay, the question raised here is: did the Respondent truly intend to avoid the screening? He obtained an aeroplane ticket and presented himself at the screening point. It was closed, and no other alternative was in place.

The parties have established that airline companies and ADM were responsible for policies relating to security. In his arguments, the Respondent submits that he complied with all policies issued by ADM, because there was no screening point open on the day of the contravention, consequently there could be no contravention of the regulatory provision, and finally, since there was no intent, there was no offence.

In concluding his argument, the Respondent's representative showed that during a meeting of the "Airline Operators Committee" (Exhibit I-1) dated June 11, 1998, certain gaps in the security system were identified and that on May 28, 1998 there was not yet any established policy concerning security during this transition period.

In its argument, the Minister of Transport referred us to section 14 and to paragraph 16(a) of the Air Carrier Security Regulations, which are made pursuant to section 4.7 of the Aeronautics Act.

Sections 14 and 16 of the Air Carrier Security Regulations refer to searches. Section 14 reads as follows:

14. For the purposes of section 4.7 of the Aeronautics Act and these Regulations, an authorized search is a search carried out by a security officer during the screening of persons, personal belongings, baggage and cargo.

Section 16 states the following:

16. No air carrier shall transport

(a) any passenger, personal belonging, baggage or cargo that has not been screened in accordance with the security measures instituted, maintained and carried out in accordance with subsection 4(2) by the air carrier;

(...)

Section 4 of the Air Carrier Security Regulations provides:

4.(1) The Minister may, by order, prescribe the security measures to be instituted, maintained and carried out by air carriers.

(2) Every air carrier shall institute, maintain and carry out the security measures prescribed by the Minister pursuant to subsection (1).

According to the Minister's representative, all aspects of air transport are interrelated and to ensure security it is necessary to insist on a rigid, strict application inherent to the legislation and regulations relating to security measures. According to Mr. Marinier all infrastructures were in place, and security must remain the highest priority in air transport.

REASONS FOR DETERMINATION

It has often been determined that offences against the public good that threaten health or security, and most offences committed under the Aeronautics Act and related legislation are invariably considered strict liability offences. There are no absolute liability offences under the terms of the Aeronautics Act and subordinate legislation.

Given the numerous elements of law raised and ably presented by Mr. Lemay in this case, the Tribunal deems it necessary to refer to the strict liability offence as defined by Justice Dickson in Sault Ste. Marie[2], and apply it clearly and as equitably as possible in the present case.

Here is how Mr. Justice Dickson defines the strict liability offence:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

(I have underlined)

As for the Respondent's arguments that the Minister of Transport must prove intent regarding the statement "to avoid going through the passenger screening point" from paragraph 2.1(h) of the security system, the Tribunal cannot concur with such an interpretation given the spirit of the Aeronautics Act and related regulations.

The general rule is that it is not necessary to prove intent under strict liability offences. I do not think that the exceptions raised by Mr. Lemay apply to the present case. It is possible that a requirement of guilty intent be applicable in certain offences against the public good when, for example, proof entails imprisonment or a large fine. This is not the case here. The Tribunal therefore dismisses this argument. The Respondent knew or should have known the situation at the time of the offence, as well as what had to be done. His negligence and/or indifference led to the offence.

As well, the Respondent's representative claims all policies issued by ADM were followed. The wording of paragraph 2.1(h) of the Security System - Conditions of Issuance is clear. Mr. Vigeant, who holds a position related to aeronautics, whose priority is security, did not offer any acceptable defence of his actions and/or omissions. He could not access the restricted area as a passenger (even if travelling on business) by using a magnetic key.

Thus, as it was decided in R. vs. Légaré Auto Ltée, J.E. 82-191 (C.A.):

When it is a question of accomplishing a particular activity, as opposed to common and everyday activities, due diligence is that which could be expected of any reasonable person performing the same activity.

(translation)

Finally, section 8.5 of the Aeronautics Act clearly provides:

No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

What was required in the current case was simply to contact an employee of the security company. The Respondent presented no evidence to that effect. The fact that he presented himself at the screening point, ticket in hand, is far from meeting the conditions of reversing the burden of proof, because this is a case of following normal procedures.

Consequently, taking into consideration the fact that the contravention in question is a strict liability offence, that the Minister of Transport proved that there was an offence, and that the Respondent did not exercise all due diligence in order to avoid the contravention, the Tribunal upholds the Minister's decision to assess a monetary penalty of one hundred and fifty dollars ($150.00) against Richard Vigeant.

DETERMINATION

The Minister of Transport has shown on a balance of probabilities that the Respondent, Richard Vigeant, did contravene subsection 20(1) of the Aerodrome Security Regulations. The Tribunal therefore upholds the Minister's decision and confirms the amount of the monetary penalty at one hundred and fifty dollars ($150.00).

Carole Anne Soucy
Member
Civil Aviation Tribunal


[1] [1978] 2 S.C.R. 1299.

[2] Ibid., p. 1326