Decisions

CAT File No. Q-1684-33
MoT File No. NAP6504-P206166-31577

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Réjean Lupien, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(a)(i)

Low Flying, Failure to Appear at Hearing


Review Determination
Pierre Rivest


Decision: January 11, 1999

TRANSLATION

I uphold the Minister's decision with respect to the Respondent's alleged offence and confirm the monetary penalty of $500.00 which is to be made payable to the Receiver General for Canada within fifteen days of service of this determination.

A review hearing on the above matter was held Wednesday, January 6, 1999, at 10:00 hours at the Palais de justice in Val d'Or, Quebec. The witnesses were sworn in.

BACKGROUND

The Respondent, Mr. Réjean Lupien, was accused of operating an aircraft over an assembly of persons at an open-air celebration at an altitude lower than 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet, in contravention of subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations (CARs).

The incident allegedly occurred on June 27, 1998. The aircraft was identified as C-GAHU.

THE LAW

Subparagraph 602.14(2)(a)(i) provides:

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane

The parties were asked to appear at 10:00 hours. At 10:30, there had been no news from the Respondent.

An acknowledgment of receipt dated December 10, 1998, proves that the Notice of hearing was received at the Respondent's address.

I therefore decided to proceed, as the law requires that the Minister establish its evidence. Subsection 7.9(2) of the Aeronautics Act provides:

(2) Where a person served with a request under subsection (1) fails to appear before the member of the Tribunal at the time and place set out in the request, the member of the Tribunal shall consider all the information that is presented to him by the Minister in relation to the contravention referred to in the request.

THE FACTS

Two witnesses were called on behalf of the Applicant: the first, a police officer, Yanick Dussault of the Sûreté du Québec (SQ), had been an eyewitness to the incident; the second, RCMP officer Serge Pépin, conducted the investigation in this case following the SQ report. In the course of his investigation, he questioned the Respondent, Réjean Lupien.

With the help of the documents filed in evidence (Exhibits M-1 and M-3), the witness Dussault described the area where aircraft C-GAHU had been flying, how he had assessed the height and distance of the manoeuvres carried out (300¢, directly over the crowd), and the actions subsequently taken (verbal contact with the SQ authorities, written report (Exhibit M-2), dated June 28, 1998, and statement to the RCMP (Exhibit M-4), dated July 3, 1998).

The testimony of RCMP officer Pépin reflects the essential elements of his report (Exhibit M-5), dated July 6, 1998.

Particular attention should be given to two paragraphs of this report: paragraph 4, page 2, in which the type of aircraft involved is established, namely, a Cessna 206 equipped with floats; until that point, it was not obvious that the aircraft was an aeroplane (as opposed to a helicopter), particularly as the witness Dussault had spoken of engines in the plural (M-4, paragraph 2, line 5), whereas it was single-engine aircraft. This inconsistency, however, in no way affects either the description of the manoeuvres observed or the registration of the aircraft.

In paragraph 6, page 2 (Exhibit M-5), the identification of the pilot is confirmed, as is the flight in question; it was indeed the Respondent. Document M-6, a medical certificate, corroborates the Respondent's name and date of birth.

However, still in paragraph 6, it is learned that the Respondent allegedly carried out the manoeuvres in question in order to inspect the water surface, across from the crowd, with a view to making a water landing.

ANALYSIS AND CONCLUSION

The testimony and the documents filed in evidence may be summarized as follows:

  • There is no doubt as to the date, time, type and category of the aircraft and its identification.
  • The fact that the incident occurred over a built-up area (M-1 and M-3) and an assembly of persons (between 900 and 1,000, according to the witness Dussault) within the meaning of section 602.14 of the CARs, cannot be denied.
  • The testimony as to the altitude and distance of the aeroplane is credible.
  • The identification of the pilot, namely, the Respondent, is established.
  • That leaves the fact that during the RCMP investigation, the Respondent submitted that he had acted with a view to making a water landing, which would be allowed under subsection (2) of section 602.14 of the CARs.[1]

According to the testimony of the RCMP investigator, the witness Pépin, the Respondent, after having been questioned, did not wish to make a written statement about this whole matter. Since he did not appear at the hearing, I cannot therefore take his intentions into account.

I find that, on a balance of probabilities, the Minister has proven that the Respondent, on June 27, 1998, contravened subparagraph 602.14(2)(a)(i) of the CARs.

DETERMINATION

I uphold the Minister's decision with respect to the Respondent's alleged offence and confirm the monetary penalty of $500.00.

Pierre Rivest
Member
Civil Aviation Tribunal


[1] N.B.: It should be noted that subsection 602.14(2) of the CARs provides for exemptions from the altitudes and distances for "take-off, approach or landing" but makes no mention of water landing. The definition of landing in subsection 101.01(1) of the CARs could ultimately cover both expressions, but it would be more appropriate, in French, to use the two terms.