Decisions

CAT File No. Q-1762-33
MoT File No. NAP6504-PU389984-31595

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Luc Boucher, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 201.01(2)(b), 404.03, 602.01, 602.29(1)(d)(iii), 602.96(3)(c)


Review Determination
Michel Larose


Decision: January 27, 2000

TRANSLATION

Under the circumstances, with respect to an agreement between the parties, the Tribunal respects its terms and confirms that Mr. Luc Boucher committed eight contraventions of the Canadian Aviation Regulations, that a ninth contravention (#6) is repealed by the Minister of Transport and that the penalty is decreased from $5,250 to $4,250. The penalty shall be made 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, January 21, 2000 at 13:00 hours, at the Municipal Court of Montreal, in Montréal, Quebec.

PREAMBLE

The member welcomed the participants and introduced those who were accompanying him.

I read the review hearing notice and before asking details on the case, I explained the rules of procedure by specifically stressing on the fact that the applicant, the Minister of Transport, has the burden of proof based on the preponderance of probability, and this, for each of the nine offences alleged in regard to five different sections of the Civil Aviation Regulations (CARs).

Given this, I asked the parties if there were any preliminary motions to be presented or if they have come to an understanding prior to this review hearing.

Both parties informed me that in fact they had come to an agreement on January 20, 2000.

BACKGROUND

This agreement (exhibit R-1) reads as follows:

MINISTER OF TRANSPORT, Applicant

- and -

LUC BOUCHER, Respondent

ADMISSION OF THE PARTIES:

  • Count #6 indicated in Appendix A of the Notice of Assessment dated January 10, 1999 [sic] [January 19] is repealed.
  • The total amount of the penalty is now $4,250.

UMBERTO TAMBORRIELLO, for the Minister of Transport

 LUC BOUCHER

ADMISSIONS OF LUC BOUCHER:

I, Luc Boucher, the undersigned, admit the following:

  • I plead guilty to [all] eight counts [indicated] in Appendix A of the Notice of Assessment dated January [19], 1999.

LUC BOUCHER

This agreement followed the Notice of Assessment of Monetary Penalty and its Appendix A dated January 19, 1999 signed by Mr. Justin Bourgault. For better understanding, the Tribunal reproduced the two aforementioned documents in extenso.

NOTICE OF ASSESSMENT OF MONETARY PENALTY

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened sections 602.29(1)(d)(iii), 201.01(2)(b), 404.03, 602.01 and 602.96(3)(c) of the Canadian Aviation Regulations.

See APPENDIX A

The provision(s) mentioned above has(have) been designated pursuant to section 103.08 of the Canadian Aviation Regulations, and the procedures regarding penalties established in sections 7.7 to 8.2 of the Aeronautics Act apply.

The amount of $5,250 shall be paid in full, by February 22, 1999, to the Regional Manager of Enforcement at the address provided above. The payment may be made in the form of cash, a money order or certified cheque to the order of the Receiver General for Canada.

The payment shall be accepted as settlement of the penalty imposed. Proceedings cannot be taken against you afterwards for the same contravention pursuant to Part I of the Act.

If the penalty is not paid by February 22, 1999, a copy of this notice shall be sent to the Civil Aviation Tribunal. The Tribunal will summon you to appear before it to hear the allegations against you. You shall have the right, in accordance with fairness and natural justice, to present evidence and to make observations regarding the alleged offence before the Tribunal makes its determination.

The Civil Aviation Tribunal has prepared a booklet entitled Guide for Applicants which can be obtained from the registrar.

JUSTIN BOURGEAULT FOR THE MINISTER OF TRANSPORT

[...]

date – date

January 19, 1999

file no. – no. de dossier :

NAP6504-PU389984-31595

name – nom :

Luc Boucher

SCHEDULE – A

On or about September 26, 1998, at Chambly, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you used the aforementioned aircraft without a placard affixed to a surface in plain view of any occupant seated at the flight controls which states, THIS AEROPLANE IS OPERATING WITHOUT A CERTIFICATE OF AIRWORTHINESS/CET AVION EST UTILISÉ SANS CERTIFICAT DE NAVIGABILITÉ, contrary to section 602.29(1)(d)(iii) of the Canadian Aviation Regulations.

PENALTY: $250

On or about November 21, 1998, at Chambly, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you used the aforementioned aircraft without a placard affixed to a surface in plain view of any occupant seated at the flight controls which states, THIS AEROPLANE IS OPERATING WITHOUT A CERTIFICATE OF AIRWORTHINESS/CET AVION EST UTILISÉ SANS CERTIFICAT DE NAVIGABILITÉ, contrary to section 602.29(1)(d)(iii) of the Canadian Aviation Regulations.

PENALTY: $250

On or about September 26, 1998, at Chambly, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you used the aforementioned aircraft without an aircraft identification plate attached in a position near the pilot seat where it is readily visible, contrary to section 201.01(2)(b) of the Canadian Aviation Regulations.

PENALTY: $250

On or about November 21, 1998, at Chambly, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you used the aforementioned aircraft without an aircraft identification plate attached in a position near the pilot seat where it is readily visible, contrary to section 201.01(2)(b) of the Canadian Aviation Regulations.

PENALTY: $250

On or about September 26, 1998, at Chambly, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you piloted the aforementioned aircraft without holding a valid medical certificate, contrary to section 404.03 of the Canadian Aviation Regulations.

PENALTY: $1,000

On or about November 21, 1998, at Chambly, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you piloted the aforementioned aircraft without holding a valid medical certificate, contrary to section 404.03 of the Canadian Aviation Regulations.

PENALTY: $1,000

On or about September 26, 1998, at Richelieu, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you performed a dangerous manoeuvre by cutting in front of ultra-light aircraft C-IFEI, piloted by your brother, Sylvain Boucher, while he was [starting his climb] taking off, contrary to section 602.01 of the Canadian Aviation Regulations.

PENALTY: $1,000

On or about November 21, 1998, at Richelieu, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you [performed] a dangerous manoeuvre by cutting in front of an aircraft, type C172, to execute a touch-and-go while the aircraft [started] its take-off run, contrary to section 602.01 of the Canadian Aviation Regulations.

PENALTY: $1,000

On or about November 21, 1998, at Richelieu, in the capacity of pilot-in-command on ultra-light aircraft type COSMOS, registered as C-IEHQ, you performed a touch-and-go without complying with regulatory circuit procedures, contrary to section 602.96(3)(c) of the Canadian Aviation Regulations.

PENALTY: $250

THE LAW

According to five different sections of the CARs: sub-paragraph 602.29(1)(d)(iii) :

Hang Glider and Ultra-light Aeroplane Operation

602.29 (1) No person shall operate a hang glider or an ultra-light aeroplane:

[...]

(d) unless the aircraft is equipped with:

[...]

(iii) where the aircraft is an ultra-light aeroplane, a placard that is affixed to a surface in plain view of any occupant seated at the flight controls and that states, "THIS AEROPLANE IS OPERATING WITHOUT A CERTIFICATE OF AIRWORTHINESS/CET AVION EST UTILISÉ SANS CERTIFICAT DE NAVIGABILITÉ";

[...]

paragraph 201.01(2)(b):

Aircraft Identification Plates

201.01 (1) No person shall operate an aircraft in flight unless there is an aircraft identification plate attached to the aircraft in accordance with this Subpart.

(2) Subject to subsection (3), where a person manufactures an aircraft or is an aircraft owner that obtains an authorization referred to in subsection (6), the manufacturer or aircraft owner, as the case may be, shall attach to the aircraft an aircraft identification plate that contains the information required by subsection (4):

[...]

(b) in the case of an ultra-light aeroplane, in a position near the pilot seat where it is readily visible; and

[...]

section 404.03:

Requirement to Hold a Medical Certificate

404.03 No person shall exercise or attempt to exercise the privileges of a permit, licence or rating unless the person holds a valid medical certificate of a category that is appropriate for that permit, licence or rating, as specified in section 404.10.

section 602.01:

Reckless or Negligent Operation of Aircraft

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

and paragraph 602.96(3)(c):

General

602.96 [...]

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall:

[...]

(c) make all turns to the left when operating within the aerodrome traffic circuit, except where right turns are specified by the Minister in the Canada Flight Supplement or where otherwise authorized by the appropriate air traffic control unit;

In light of this established fact, I want to be sure, as a member of the Tribunal, that the respondent, Mr. Luc Boucher, did in fact sign this agreement knowingly and that his rights are respected.

Responding to the questions of the Tribunal, Mr. Boucher confirmed:

  1. that he was not under any pressure;
  2. that he does not want to lose his permit;
  3. that he does not want to go to "prison";
  4. that he realizes the situation could have been more serious for his own safety and that of others;
  5. that he does not entirely agree with the wording of some of the allegations against him, but that he did in fact commit the offences. On this topic, he added that there had been business conflicts and he felt he was being watched by competitors;
  6. that he was very sorry for his actions and had the intention of mending his ways.

On behalf of the Minister of Transport, through his representative Mr. Tamborriello, a document (exhibit R-2) was submitted to the Tribunal. This document, Chapter 11 ? Table of Sanctions,[1] was filed and a copy was given to Mr. Boucher and the amounts of penalties imposed were in conformance with the following guidelines:

602.29(1)(d)
$250 X 2 =
$500
201.01(2)(b)
$250 X 2 =
$500
404.03  
$1 000
602.01
$1 000 X 2 =
$2 000
602.96(3)(c)  
$250
     
   
Total : $4 250

However, the Tribunal recognized that a second offence in contravention of the CARs, in the matter of paragraphs 602.29(1)(d), 201.01(2)(b) and section 602.01 would have merited respective penalties of from $500 to $2,500, from $500 to $2,500 and from $2,500 to $12,500, according to the guidelines in the Table of Sanctions recommended by Transport Canada (June 1999 – R-2). However, since there was an agreement between the parties mentioned above, the Tribunal respected the terms.

CONCLUSION

Under the circumstances, with respect to this agreement between the parties, the Tribunal confirms the fact that Mr. Boucher committed eight contraventions of the Canadian Aviation Regulations, that a ninth contravention (#6) is repealed by the Minister of Transport and that the amount of the penalty is decreased from $5,250 to $4,250.

Michel Larose, M.D.
Member
Civil Aviation Tribunal


[1] Aviation Enforcement Procedures Manual, Second Edition – June 1999 (TP 4751E).