Decisions

CAT File No. Q-1881-33
MoT File No. 5505-P-380800-34017

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Joseph Louis Desrochers, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7, 8.4
Canadian Aviation Regulations, SOR/96-433, s. 602.03(a), 602.14(2)(a)(i), 602.27(a)

Vicarious liability, Consumption of alcohol, Aerobatic flying, Built-up area


Review Determination
Pierre Beaudry


Decision: December 23, 1999

TRANSLATION

The Minister has proved, on a balance of probabilities, that the Respondent Louis Joseph Desrochers, as pilot-in-command, contravened subparagraph 602.14(2)(a)(i) and paragraphs 602.03(a) and 602.27(a) of the Canadian Aviation Regulations during his flight of June 27, 1999, with aircraft C-FIHZ. I confirm the Minister's decision as to both the contraventions and the monetary penalties assessed. The full amount of the penalty of $1,750 is to 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 of the two above-noted cases was simultaneously held Friday, December 10, 1999, at 10:00 hours, at the Court House in Rouyn-Noranda, Quebec.

BACKGROUND

The Minister alleged that on June 27, 1999, at about 20:30 hours (local time), Mr. Joseph Louis Desrochers as pilot-in-command of aircraft C-FIHZ had taken off from the La Sarre airport within eight hours after consuming an alcoholic beverage. During this same flight, Mr. Desrochers ("Desrochers") allegedly operated an aircraft at an altitude lower than 1,000 feet and conducted aerobatic manoeuvres over the built-up area of La Sarre. Desrochers was pilot-in-command. The aircraft in question, C-FIHZ, was registered to Centre école de parachutisme Para-Nord Inc. ("Para-Nord Inc.").

According to the Minister, the above-described facts and events contravened the provisions of the Canadian Aviation Regulations (CARs) relating to minimum altitude and types of manoeuvres allowed over built-up areas and the consumption of alcohol before a flight. The Minister therefore assessed three monetary penalties against Desrochers, and three other monetary penalties for the same contraventions were assessed under section 8.4 of the Aeronautics Act against Para-Nord Inc. as the registered owner of the aircraft.

Desrochers and Para-Nord Inc. exercised their right to a review and the hearing was held on December 10, 1999, at the Court House in Rouyn-Noranda in the presence of the parties. For the purposes of this determination, the expression "Respondent" when used alone includes Desrochers and Para-Nord Inc. without distinction.

PRELIMINARY ISSUES

At the outset of the hearing, the Respondent Desrochers indicated he would represent himself as well as Para-Nord Inc.

The Minister's representative then asked whether the Respondent was prepared to admit certain facts to simplify the evidence. The Respondent did not object to admitting certain facts relating to the flight conducted over a built-up area at an altitude lower than 1,000 feet. The Minister presented a document containing an admission of facts which the Respondent signed before me at the start of the hearing. This document is marked as Exhibit M-2.

Previously, the Minister had asked that each of the three contraventions bearing a double penalty be dealt with in parallel and simultaneously to simplify the process. The Tribunal agreed, as the contraventions are the same for both Respondents, Desrochers and Para-Nord Inc.

The Minister also asked to change his list of witnesses to include the witness Lambert, indicating at the same time that Mr. Lambert's statement had been sent to the Respondent beforehand. The Respondent did not object and the Tribunal allowed the Minister's request, since in the circumstances there was nothing to indicate that the Respondent might be caught off guard because of lack of preparation.

THE EVIDENCE

The evidence-taking in this case was largely facilitated, on the one hand, by the fact that the alleged contraventions were the subject of an RCMP investigation, and on the other, by the Respondent's co-operativeness in admitting several relevant facts.

Through its first witness, RCMP Corporal Claude East, the Minister filed in evidence the Respondent's sworn statement, entered as M-1.

The facts admitted by the Respondent according to Exhibit M-2 are as follows:

  • the flight was conducted June 27, 1999, at about 20:30 hours local time departing the La Sarre airport;
  • the Respondent Desrochers was pilot-in-command of aircraft C-FIHZ;
  • the overflight of the built-up area of La Sarre was conducted at an altitude lower than 1,000 feet;
  • aircraft C-FIHZ is registered to the name of Para-Nord Inc., making it the registered owner.

Both in his statement produced in M-1 and his testimony at the hearing, the Respondent denies:

(1) having conducted aerobatic manoeuvres; he also denies

(2) having taken alcohol beyond a few mouthfuls of "Tornade" brand beer before dinner, a bottle of which was entered in evidence as Exhibit M-3. The sample shows that "Tornade" has an alcohol content of 6.1%.

I will therefore examine these two issues.

Alcohol

One cannot conclude from the evidence the possible blood alcohol level of the Respondent Desrochers during this flight of June 27 at about 20:30 hours. The Minister's witnesses remained very evasive about the amount of alcohol actually ingested by the Respondent in the eight hours before the flight. This is not at all surprising. The witnesses were obviously uneasy during their respective testimonies, being acquaintances of the Respondent. Also, the evidence shows that several members of this parachuting club got together that evening to have dinner just when "Tornade" beer was on special at the "La Maîtresse" bistro in La Sarre. The Respondent Desrochers was at this gathering for some three hours, that is between 17:00 hours and 20:00 hours, the evening of June 27.

I find that there is no probative evidence to show convincingly that the Respondent Desrochers consumed a large quantity of alcohol, or was "under the influence of alcohol" the evening of June 27. I also find, based on all the evidence, the testimony of the Respondent Desrochers as well as his statement in M-1, that the Respondent had consumed alcohol in the eight hours before his flight.

Aerobatic manoeuvres

The Respondent's statement in M-1 mentions 45-degree turns over the city. In his testimony, the Respondent instead mentioned 30 degrees. The Minister's witness, Mr. Jean-Guy Trudel, indicated having seen a "tight" turn at close to 90 degrees and about one hundred feet from the belltower of the church, followed by a vertical climb (what is known in aerobatics language as a steep climb). Another witness for the Minister, witness Lambert, indicated the completion of sharp turns estimated at more than 60 degrees, as he saw the back of both wings, followed later by the steep climb. Both witnesses have a knowledge of aviation, the first being a private pilot since 1983, the second having 100 hours of flight as a student pilot. Nevertheless, I remain reticent as it is not easy to judge the exact bank angle from the ground. The evidence indicates, however, that witness Trudel was very close to the events.

The Minister filed two other written statements which were introduced in evidence by the investigator Corporal East, the Minister having opted not to call the authors as witnesses. These statements have been entered as
M-7 and M-8. The probative force of these statements is weak, but the Tribunal notes that the written statement of Father St-Pierre (Exhibit M-8) is at least disturbing given the fact that the church of La Sarre was at the centre of the events.

The evidence does not indicate that there was an aerobatics show as such or a long series of aerobatic manoeuvres, but I find there were aerobatic manoeuvres within the meaning of subsection 101.01(1) of the CARs.

THE APPLICABLE LAW

I will deal with each point of law raised at the hearing.

The burden of proof

The Respondent attempted to raise doubt about the performance of aerobatic manoeuvres, indicating this may have been a case of "mistaken identity." To this end, he pointed out several contradictions as to the time of the allegations. He also cited the fact that the tail of a Cessna 175 could resemble the tail of a C180 or a C185 such that the alleged actions could have been performed by another aircraft.

In response to this attempt by the Respondent, the Minister cited the rule of the balance of probabilities, finishing his statement by saying that reasonable doubt could not be enough to exonerate the Respondent, and that the Respondent had to present in his defence sufficient circumstantial evidence to shift the balance of evidence.

The Minister is quite right. This is not criminal law where the rule of proof beyond a reasonable doubt applies. The burden of proof to be met by the Minister was the preponderance of evidence or the balance of probabilities, no more.

Alcohol

The Respondent repeatedly raised the fact that he had had only a few mouthfuls of beer. The Minister did not push the issue of the probable amount ingested, arguing that the tolerance prescribed by the CARs was "zero." The Minister is right.

Paragraphs 602.03(a) and (b) read as follows:

602.03 No person shall act as a crew member of an aircraft

(a) within eight hours after consuming an alcoholic beverage;

(b) while under the influence of alcohol;

Evidence of the effect of alcohol resulting from a certain blood alcohol level required pursuant to paragraph 602.03(b) need not be shown by virtue of the "eight hours" rule provided in paragraph (a) of the same section. Ingestion is the regulatory normative criterion, such that mere ingestion constitutes a contravention of the CARs.

Aerobatic manoeuvres

As with the contravention relating to alcohol, the Respondent indicated that there had been no sharp turns or climb to the stall limit.

The Minister argued the definition of aerobatic manoeuvre contained in subsection 101.01(1) of the CARs, and I quote:

"aerobatic manoeuvre" means a manoeuvre where a change in altitude of an aircraft results in a bank angle greater than 60 degrees, an abnormal attitude or an abnormal acceleration not incidental to normal flying.

The regulation reads as follows:

602.27 No person operating an aircraft shall conduct aerobatic manoeuvres

(a) over a built-up area or an open-air assembly of persons;

[...]

(d) below 2,000 feet AGL, except in accordance with a special flight operations certificate issued pursuant to section 603.02 or 603.67.

Qualitatively, it is important to realize the scope of this definition and to properly understand the importance attributed by the concept of "not incidental to normal flying" to both attitude and acceleration. Quantitatively, the standard as referred to in 602.27 implies "no" aerobatic manoeuvres, such that the tolerance for aerobatic manoeuvres over a built-up area is "zero," the same as it is for alcohol.

Also, while the Minister based the contravention for aerobatic manoeuvres over a built-up area on paragraph 602.27(a), I would like to point out that altitude per se is a relevant factor as provided in 602.27(d) and supplements the normative context. In the case in point, we are talking about aerobatic manoeuvres having taken place near the church only a few hundred feet above downtown La Sarre.

Given the statements and admissions, there is no reason to discuss the standard relating to the minimum altitude over built-up areas. But for record purposes, I would point out that the contravention relies on subparagraph 602.14(2)(a)(i) of the CARs, which I quote as follows:

602.14 [...]

(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,

CONCLUSIONS

The preponderance of evidence points to the fact that the Respondent contravened the following sections of the CARs, and did so in the absence of an admissible and material defence:

  • paragraph 602.03(a) relating to the consumption of alcohol;
  • subparagraph 602.14(2)(a)(i) relating to a flight conducted over a built-up area at an altitude below 1,000 feet;
  • paragraph 602.27(a) relating to aerobatic manoeuvres over a built-up area.

THE PENALTY

In its argument, the Minister set out the numerous criteria used in assessing the amount of a penalty. Among them, the Minister pointed out the fact that we were dealing here with a deliberate act in fact entailing considerable rashness. Regarding strict liability (which is the case for most requirements of the CARs), a defence of due diligence (exercising all due diligence to prevent contraventions), necessity or force majeure are, in principle, admissible and material. In this case, according to the Minister, no defence is possible as the facts and actions were premeditated. Actually, culpable intent as understood in common law has been shown, even partially admitted, though not required at the level of the basic elements required and, therefore, the burden of proof.

The Minister also mentioned the importance of exemplariness generally, but also especially given the Respondent Desrochers' role as owner of a parachuting club. The Minister mentioned having examined the Respondent's file and noted his co-operation in the taking of evidence, but cited concerns about the risk of his re-offending.

But it is the combination of risk-generating factors that the Minister stressed most. In this case, we have, according to the Minister, a flight conducted over a city at an altitude lower than 1,000 feet, combined with aerobatic manoeuvres, themselves combined with earlier consumption of alcohol, to give three risk factors that combine to create an overall risk that is as intolerable as it is unnecessary.

The Minister is quite right. On returning to his operating base at Saint-Bruno-de-Guigues the evening of June 27, the Respondent conducted a "pass" (to use his own expression) over the city near the bistro and wanted in all likelihood to impress his friends with a few sharp manoeuvres ending with a steep climb. He thereby endangered his own life and that of the city's inhabitants as well as his flying asset, aircraft C-FIHZ. This "pass" by the Respondent was a deliberate and pre-meditated act equivalent to carelessness. The combination of factors cited by the Minister is not nitpicking. Aviation statistics show that incidents and accidents are rarely the result of any one factor.

By way of penalties, the Minister cited the different scales with maximums ranging from $5,000 to $25,000 for corporations and from $1,000 to $5,000 for individuals. The Tribunal therefore notes that the penalties assessed are more or less equivalent to 20% of the maximum, except for the flight conducted over a built-up area at an altitude lower than 1,000 feet by the individual, the Respondent Desrochers, which is 50%.

The Minister concluded its observations by arguing that the penalties had been assessed according to the applicable departmental grids and were fair in the circumstances. But the Minister could not explain why the penalty assessed for the aerobatic manoeuvres was less than the penalty for the flight conducted over a built-up area at an altitude lower than 1,000 feet.

In defence with regard to the sanction, the Respondent simply said that he hoped the Tribunal would not be instrumental in the financial collapse of flying clubs. This remark makes it necessary to reiterate the letter and spirit of section 8.4 of the Aeronautics Act which allows the Minister to assess separate and joint penalties against pilots, owners and operators of aircraft.

Subsections 8.4(1) and (3) of the Aeronautics Act read as follows:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

[...]

(3) The pilot-in-command of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless the offence was committed without the consent of the pilot-in-command and, where found to have committed the offence, the pilot-in-command is liable to the penalty provided as punishment therefor.

The legislator wants precisely to prevent registered owners and operators being irresponsible when it comes to respecting the standards.

The financial impact of a penalty is certainly a factor to be considered in assessing a higher or lower penalty. If I had any doubt, I would tend towards a higher one, but I side with the Minister, as I am convinced that, deep down, the Respondent has already humbly realized the seriousness of the events without perhaps admitting it openly. It is hoped that the Respondent will be able to continue to develop his parachuting school successfully and safely.

DETERMINATION

The Minister has shown, on the balance of probabilities, that the Respondent Louis Joseph Desrochers, as pilot-in-command, contravened subparagraph 602.14(2)(a)(i) and paragraphs 602.03(a) and 602.27(a) of the Canadian Aviation Regulations during his flight on June 27, 1999, with aircraft C-FIHZ.

The Minister has shown, on the balance of probabilities, that the Respondent Centre École de Parachutisme Para-Nord Inc., as the registered owner of aircraft C-FIHZ, contravened subparagraph 602.14(2)(a)(i) and paragraphs 602.03(a) and 602.27(a) of the Canadian Aviation Regulations during the flight of June 27, 1999, with aircraft C-FIHZ.

I uphold the Minister's decisions with respect to the contraventions and the penalties assessed.

Pierre Beaudry
Member
Civil Aviation Tribunal


Appeal decision
Carole Anne Soucy, Caroline Desbiens, Michel G. Boulianne


Decision: July 21, 2000

TRANSLATION

We dismiss the appeal as to the first and third grounds of appeal but allow the appeal in part as to the second ground to reduce the total penalties assessed against the Appellant Desrochers from $1,750 to $1,500. The Appellant's contraventions of subparagraph 602.14(2)(a)(i) and of paragraphs 602.03(a) and 602.27(a) are therefore upheld. The total amount of $1,500, payable to the Receiver General for Canada, is to be sent to the Civil Aviation Tribunal within 15 days of the receipt of this decision.

An appeal hearing on the above matters was held Friday, April 14, 2000, at 9:30 hours at the Court House in Rouyn-Noranda, Quebec.

BACKGROUND

This is an appeal of a determination rendered by Pierre Beaudry following the review hearing of December 10, 1999. The Appellant Mr. Joseph-Louis Desrochers was charged with having contravened subparagraph 602.14(2)(a)(i) and paragraphs 602.03(a) and 602.27(a) of the Canadian Aviation Regulations (CARs) in that on June 27, 1999, at about 20:30 hours, the Appellant Desrochers, being the pilot-in-command of aircraft C-FIHZ, allegedly took off from the La Sarre airport within eight hours after consuming alcohol, and during this same flight he allegedly flew at an altitude below 1,000 feet and conducted aerobatic manoeuvres over the built-up area of La Sarre. The aircraft in question is the registered property of the Appellant Centre école de parachutisme Para-Nord Inc. (hereafter "Para-Nord"), which was charged with the same offences as registered owner of the aircraft in question, pursuant to section 8.4 of the Aeronautics Act. The member Pierre Beaudry confirmed the Minister's decision with respect to both the contraventions and the penalties assessed against the Appellants Desrochers and Para-Nord.

Specifically, the following contraventions and penalties were confirmed with respect to the Appellant Desrochers:

  1. Contravention of paragraph 602.03(a) of the CARs for having been pilot-in-command of registered aircraft C-FIHZ and taking off from La Sarre airport within eight hours after consuming alcohol: $1,000;
  2. Contravention of subparagraph 602.14(2)(a)(i) of the CARs for having been pilot-in-command of registered aircraft C-FIHZ and flying over the built-up area of the city of La Sarre at an altitude below 1,000 feet: $500;
  3. Contravention of paragraph 602.27(a) of the CARs for having been pilot-in-command of aircraft C-FIHZ and conducting aerobatic manoeuvres over the built-up area of the city of La Sarre: $250.

With respect to the Appellant Para-Nord, the following contraventions and penalties were confirmed on review:

  1. Contravention of paragraph 602.03(a) of the CARs as registered owner of registered aircraft C-FIHZ for permitting the aircraft flown by Mr. Desrochers to take off from La Sarre airport within eight hours after his consuming alcohol: $5,000;
  2. Contravention of subparagraph 602.14(2)(a)(i) of the CARs as registered owner of registered aircraft C-FIHZ for permitting the said aircraft flown by Mr. Desrochers to fly over the built-up area of the city of La Sarre at an altitude below 1,000 feet: $1,000;
  3. Contravention of paragraph 602.27(a) of the CARs as registered owner of registered aircraft C-FIHZ for permitting the said aircraft flown by Mr. Desrochers to conduct aerobatic manoeuvres over the built-up area of the city of La Sarre: $1,000.

The member Pierre Beaudry confirmed that all these offences occurred on June 27, 1999, at about 20:30 hours during the same flight.

GROUNDS OF APPEAL

On January 7, 2000, the Appellant Desrochers, on behalf of himself and the Appellant Para-Nord, appealed this determination to the Tribunal. At that time, the grounds of appeal were set out as follows:

As I have been unable to show in my own words that a turn at 100 feet at 90 degrees [is] insane and that 2 mouthfuls of beer is not consuming an [alcoholic] beverage. I wish, with the assistance of a lawyer, to appeal.

At the appeal hearing, counsel for the Appellants, Mr. Denis Pilon, noted that the Appellants were abandoning the grounds of appeal filed with the Tribunal on January 7, 2000, and, with the Respondent's permission, introduced three new grounds of appeal. In actual fact, at the hearing, the Appellants based their appeal on the following three grounds:

  1. The review member erred in law in applying section 8.4 of the Aeronautics Act by assessing penalties against the pilot-in-command as well as the registered owner of the aircraft for the same offences, since the Appellant Desrochers is the sole administrator and shareholder of the Appellant Para-Nord.

    In short, for the three offences, this amounts to a double conviction for the same acts. In the context of these offences, only the actions of the Appellant Desrochers, and not those of the company, should be considered, since they are in fact the same person, although legally speaking the company has a distinct legal personality. For each offence, it would therefore be unlawful to punish the same wrong twice.
  2. Subsidiarily, if the Tribunal was justified in also sentencing the company as registered owner of the aircraft pursuant to section 8.4 of the Aeronautics Act, the review member erred in law in maintaining the penalties assessed by the Minister. Specifically, the penalties were excessive and should be reduced, since the objective of deterrence would already have been achieved in assessing penalties against the Appellant Desrochers. In short, the first ground of appeal should be considered in order to reduce the penalties assessed against the Appellant company of which Mr. Desrochers is the sole administrator, since in fact, the same person is being punished twice.
  3. The member erred in law in sentencing the Appellants twice for the same offence or the same act. Specifically, the Appellants argue that the events constituting the offence against the prohibition against flying flight over the built-up area of the city of La Sarre at an altitude below 1,000 feet, and the events constituting the offence against the prohibition of conducting aerobatic manoeuvres over the built-up area of the city of La Sarre were the same or substantially the same, since they concerned the same flight. Both these convictions therefore constitute multiple contraventions and contravene the rule against multiple convictions in the decision R. v. Kienapple[1] of the Supreme Court of Canada.

In short, the Appellants do not dispute the review member's findings of fact relating to the three offences previously described. The appeal in fact concerns only the arguments of law previously described and raised at the appeal hearing, making it unnecessary to dwell on all the evidence submitted at the review hearing. It is important, however, to point out the sequence of events during the flight conducted June 27, 1999, at about 20:30 by the Appellant Desrochers as pilot-in-command of registered aircraft C-FIHZ.

THE FACTS

The Appellant Desrochers has admitted (Exhibit M-2) that he conducted a flight on June 27, 1999, at about 20:30 departing from the La Sarre airport with registered aircraft C-FIHZ, owned by the Appellant Para-Nord, as pilot-in-command of this aircraft, and that he flew over the built-up area of La Sarre at an altitude below 1,000 feet. At the review hearing, the Appellant Desrochers denied having conducted aerobatic manoeuvres as alleged by the Respondent.

The evidence submitted by the Minister showed, however, that he flew over the built-up area of the city of La Sarre at an altitude below 1,000 feet and that during this overflight, he made tight turns over the city of La Sarre about 100 feet from the belltower of the church, followed by a vertical climb (what is known in aerobatics language as a zoom).

On appeal, the Appellants did not dispute the review member's findings as to the evidence submitted by the Minister regarding the stated turns, estimated at more than 60 degrees, and the vertical climb ("zoom"), or that these manoeuvres would constitute aerobatic manoeuvres within the meaning of subsection 101.01(1) of the CARs.

It further appears from the evidence submitted at the review hearing that the low-altitude flight was not conducted at the time of the aerobatic manoeuvres, but that the Appellant Desrochers was already flying at low altitude when he began the aerobatic manoeuvres.

The Appellants do not dispute the review member's findings of fact concerning the take-off from the La Sarre airport as pilot-in-command of aircraft C-FIHZ, within eight hours after consuming alcohol.

ARGUMENTS OF THE APPELLANTS

Regarding the first ground of appeal, the Appellants argue that the review member erred in law in confirming that the Minister could proceed against the Appellant Desrochers as well as his company pursuant to section 8.4 of the Aeronautics Act for the same offences. The Appellants submitted no case law in support of these claims, but maintain that although the Minister, under the terms of section 8.4, has the discretion to proceed also against the registered owner, this discretion must be judiciously exercised. Here, this discretion was not judiciously exercised because the Appellant Desrochers also happened to be the owner, director, shareholder and administrator of the Appellant Para-Nord, which was proceeded against for the same contraventions of the CARs.

In short, the Appellants argue that where an individual also happens to be the owner, director and administrator of the company that is the registered owner of the aircraft, it is not fair to proceed also against the company for the same offences, since in fact the same person would be proceeded against twice for the same acts.

Specifically, the deterrent effect of the penalties assessed for the three contraventions in this case would be achieved by assessing penalties against only the Appellant Desrochers. The Appellant argues that the sole objective of section 8.4 of the Aeronautics Act respecting vicarious liability is to address the negligence of companies that are registered owners in their supervision or control of pilots-in-command. Here, since the Appellant Desrochers in fact wears all the hats, i.e., is pilot-in-command and owner and director of the Appellant, the company's negligence is not in question, as only the negligence of the Appellant Desrochers is at the root of alleged events. Section 8.4 of the Aeronautics Act therefore serves no purpose in the circumstances.

Subsidiarily, the Appellants argue that if the Minister were justified in also proceeding against the Appellant Para-Nord for the same offences pursuant to section 8.4 of the Aeronautics Act, the arguments previously made for the first ground of appeal should be considered in order to reduce the penalties assessed against the Appellant Desrochers and the Appellant Para-Nord. Specifically, the Appellants submit that the objective of deterring the Appellant Para-Nord, which in fact is a front for the Appellant Desrochers, is amply achieved by the conviction of Desrochers to pay the sum of $1,750 for the three contraventions of the CARs. In the circumstances, the Appellants suggest that the assessed penalties be less than the minimum recommended by Transport Canada for such offences.

The review member thus erred in law in finding that the penalties assessed by the Minister against the Appellants were fair and reasonable.

With respect to their third ground of appeal, the Appellants argue that the elements of the conviction under subparagraph 602.14(2)(a)(i) of the CARs for the flight conducted over the built-up area of the city of La Sarre at an altitude below 1,000 feet, and the elements of the conviction under paragraph 602.27(a) of the CARs, namely, of having conducted aerobatic manoeuvres over the built-up area of the city of La Sarre, are the same or substantially the same, such that they are multiple convictions for the same flight. This is contrary to the principle set out in the Kienapple decision of the Supreme Court of Canada when there is sufficient proximity between the events and the offences on which at least two charges are based.

In support of this submission, the Appellants argued the following decisions: R. v. Sandra Prince;[2] R. v. Hagenlocher;[3] R. v. André Loyer and Daniel Blouin;[4] R. v. Briscoe;[5] and R. v. Colby.[6]

According to the Appellants, these decisions raise the issue of the significance of the principle set out in the above-cited Kienapple decision to the effect that someone cannot be sued on two counts for the same act. In Kienapple, the Supreme Court ruled that if a guilty verdict is handed down on the first count and the same, or substantially the same, elements make up the offence alleged in the second count, the situation calls for the application of the rule against multiple convictions.

In the Blouin case, the Supreme Court also stated that when an accused is charged on two or more counts for offences of different seriousness and two of the counts are based on the same offence or the same thing, the accused must be acquitted of the less serious charge if he is found guilty of, or pleads guilty to the more serious charge.

For example, in Blouin, the Respondents were charged under two counts, namely, attempted robbery with a knife, and possession of a weapon, namely, a knife, for the purpose of committing an offence. Basing itself on the Kienapple decision, the Supreme Court found that the charge of possession of a weapon for the purpose of committing an offence was part of the same criminal act as attempted robbery.

In the Hagenlocher case, the Manitoba Court of Appeal considered that there was no need for the charge of setting fire to a hotel, since the accused was also being prosecuted for manslaughter. In this case, the accused had set fire in a hotel and this fire had caused the death of a person and significant damage to the hotel.

In the Colby case, the accused was charged with impaired driving causing death and with dangerous driving. The Alberta Court of Appeal found that both these charges were based on the same facts, so that the principle against multiple convictions was applied. The Court, in the following terms at page 332 of the said decision, found that there was no distinguishing feature between the two charges:

In the present case, the act of the accused which amounts to dangerous driving is operating her motor vehicle while her ability to do so was substantially impaired by alcohol. In the tragic circumstances, that delict founds the conviction for dangerous driving causing death. Precisely the same wrongful act founds the further count of impaired driving causing death. There are no 'additional distinguishing features' of that count as compared to the other. In my view, the Kienapple principle applies and convictions cannot be entered on both counts.

On the basis of these decisions, the Appellants submit that the offence of flying over a built-up area at below 1,000 feet and conducting aerobatic manoeuvres over the built-up area are based on the same events and actions. Specifically, the Appellants submit that only one flight was conducted in a brief time span over a built-up area and that it is not possible to violate at once both the above-cited sections of the CARs dealing with flying over a built-up area. The Appellants point out that the Appellant Desrochers did not return to the starting point to commit two separate offences since the flight was conducted over a brief time span, as Mr. Jean-Guy Trudel testified. In short, it was the same offence, since the Appellant Desrochers did not commit two separate offences in the time during a single flight, but rather conducted an aerobatic manoeuvre below 1,000 feet over the built-up area of the city of La Sarre. As the same facts resulted in two separate offences, the Tribunal should maintain the more serious one, namely, the aerobatic manoeuvres over a built-up area.

ARGUMENTS OF THE RESPONDENT

Concerning section 8.4 of the Aeronautics Act, the Minister submits first of all that the individual, the pilot-in-command, being also the owner, director and administrator of the company that is the registered owner of the aircraft, is a legal person distinct from the corporation. This Tribunal has already acknowledged that the notion of multiple convictions does not apply when invoked by a defendant corporation on the grounds that the person who is the executive head of the corporation has already been convicted of the same offence. The Minister in fact submits that in Minister of Transport v. Lindbergh's Air Service,[7] this Tribunal found that the Minister could proceed against the corporation under both counts since the doctrine of "double jeopardy" did not apply in the case.

The Minister argues specifically that the first paragraph of section 8.4 authorizes the Minister to proceed against the registered owner of the aircraft when a person may be proceeded against for an offence, notably pursuant to section 7.7 of the Aeronautics Act, and that the only means of defence provided in this paragraph for the registered owner is to show that the aircraft was in the possession of a third party without its consent. The Minister also argues that if the Appellant Desrochers wanted to become incorporated to benefit from distinct legal personality, he must also suffer the consequences connected with this distinct personality. The intent of section 8.4 of the Aeronautics Act is to deter the registered owner of the aircraft or its operator from allowing or not preventing offences under Part I of the Aeronautics Act or its regulations. The liability of the owner of the aircraft under section 8.4 is in fact different from the liability of the pilot-in-command with respect to these offences, so that the deterrent effect of section 8.4 on the registered owner of the aircraft is different from that on the pilot-in-command for the same offences.

In short, the Minister argues that in this case, the Appellant Para-Nord cannot invoke the notion of multiple convictions on the ground that the Appellant Desrochers, the executive head, has been convicted for the same offences.

As for the Appellants' subsidiary argument of the excessive amount of the fines, the Minister argues that the review member did not err in his assessment of the amount of the penalties to be assessed against the Appellants.

The Minister submits first of all that all the penalties assessed against the Appellants are based on the amounts recommended by the Minister for a first offence as set out in the Aviation Enforcement Procedures Manual,[8] a manual for assessing penalties for contraventions of the CARs.

For a first offence, this manual recommends the following amounts for a contravention of paragraph 602.03(a) of the CARs (consuming alcohol within eight hours before the flight): individual: $1,000, corporation: $5,000.

For a first offence under paragraph 602.14(2)(a) of the CARs (flying above a built-up area at an altitude below 1,000 feet), this manual recommends the following: individual: $250, corporation: $1,250.

Finally, for a first offence under paragraph 602.27(a) of the CARs (conducting aerobatic manoeuvres over a built-up area), this manual recommends the following penalties: individual:  $250, corporation: $1,250.

Now, regarding the Appellant Para-Nord, the Respondent argues that the penalties assessed are the same as, or just under the recommended minimum. Regarding the Appellant Desrochers, the penalties assessed are the same as the assessed minimum according to this manual except, for the offence under subparagraph 602.14(2)(a)(i) of the CARs (flying at low altitude), for which the Minister assessed a penalty of $500, or twice the recommended minimum of $250.

The Minister further submits that the review member duly considered all the applicable criteria in assessing the penalties that should be assessed in the circumstances, including, notably, the following factors:

  • the fact that the public safety was seriously endangered;
  • the fact that the Appellants' manoeuvres could negatively affect the aviation community, since it operates a parachuting club;
  • the fact that the offences were committed by deliberate acts involving considerable rashness;
  • the fact that the Appellants co-operated in the evidence taking and that Mr. Desrochers acknowledged having flown at low altitude in contravention of subparagraph 602.4(2)(a)(i) of the CARs.

The Minister argues that these factors are among those that must normally guide the Tribunal in assessing penalties, as this Appeal Tribunal recalled in Avionair Inc. v. Minister of Transport.[9] The penalties assessed must serve to deter a particular offender as well as other members of the aviation community.

Finally, regarding the third ground of appeal, the Minister submits first of all that the Kienapple decision is inapplicable here because it does not concern a criminal case but rather a case on administrative sanctions, against which principles applicable to a criminal case cannot be invoked.

In this regard, the Respondent refers this Tribunal to Jelle Dykstra v. Minister of Transport[10] in which this Tribunal had to consider whether the review member had erred in declaring the Appellant incompetent pursuant to subsection 7.1(1) of the Aeronautics Act, since it had already been argued that he had committed offences pursuant to sections 6.9 and 7.6 of the Act, that his licence had already been suspended and that he had already paid a fine. In this case, several irregularities regarding the maintenance and certification of an aircraft had caused a crash in which the pilot died and the passenger was seriously injured. This Tribunal found that paragraph 11(h) of the Canadian Charter of Rights and Freedoms concerning res judicata (protecting an accused person from being tried a second time for an offence of which they have been acquitted or found guilty, with prejudice) did not apply in a case involving administrative penalties.

The Respondent argues subsidiarily that the Kienapple principle prohibiting multiple convictions is not applicable in this case, as there is not sufficient proximity between the events and the offences on which the two charges are based, as the Supreme Court ruled in Prince cited above.

In fact, relying on the Prince decision of the Supreme Court, the Respondent states that the Kienapple principle which prohibits multiple convictions is applicable when there is sufficient proximity between the events and the offences on which at least two charges are based. In most cases, the requirement of factual proximity is met when the following question is answered in the affirmative: Is each of the charges based on the same act of the accused? The Minister submits that two charges can be based on a single act of the accused, but that the Kienapple principle does not apply if there is not sufficient proximity between the elements of the two offences to warrant the application of the rule against multiple convictions.

In this regard, the Minister refers us to page 11 of the said decision, in which Chief Justice Dickson stated as follows:

No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender's accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted. The requirement of sufficient proximity between offences will therefore only be satisfied if there is no additional and distinguishing element that goes to guilt in the offence for which a conviction is sought to be precluded by the Kienapple principle.

The Respondent also refers this Tribunal to the appeal decision of this Tribunal in the Lindbergh's Air Service case cited earlier, in which the charges were having flown an aeroplane after official nightfall and having landed the aircraft on an unlighted airfield. In this case, the Tribunal ruled that these were two different offences and that the Kienapple principle did not apply.

Thus, independent of the fact that the principle of the Kienapple decision is inapplicable to administrative penalties, the Respondent argues that an essential element of the offence of flying at low altitude includes is the fact of having flown below 1,000 feet over a built-up area, while an essential element of the offence of aerobatic manoeuvres is the fact of having conducted aerobatic manoeuvres over a built-up area. According to the Minister, neither of these elements can be subsumed in the other. Besides flying over a built-up area, both these offences contain distinct elements. Therefore, the Kienapple rule does not apply in this case, as there are two distinct acts, not one single one.

ISSUES AND ARGUMENTS

We agree with the Respondent on the first ground of the appeal and find that the Minister may, pursuant to section 8.4 of the Aeronautics Act, proceed against an individual as well as the company that is the registered owner of the aircraft for the same offences. As in Lindbergh's Air Service cited earlier, it is our opinion that the Appellant Desrochers, the pilot-in-command, is a distinct legal person from the Appellant Para-Nord, the registered owner of the aircraft, and that the notion of multiple convictions does not apply when invoked by a defendant corporate person on the ground that the person who is the executive head of the company has already been convicted for the same offence.

Paragraph (1) of section 8.4 of the Aeronautics Act also allows the registered owner to be proceeded against:

The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

Paragraphs (2) and (3) of the same section are similarly worded and apply to the "the operator" and to the "pilot-in-command" of the aircraft. Paragraph (4) concerns the operator of an aerodrome or other aviation facility found to have committed an offence under Part I of the Act or its enforcement texts.

Taken together, these paragraphs clearly indicate the legislator's intention to impose vicarious liability on the owner, the operator, the pilot-in-command and the operator of an aerodrome or other aviation facility even if a third party "may be proceeded against" as well. The first paragraph of section 8.4 cited above provides a means of defence to the registered owner in the case where the aircraft was in the possession of a third party without the owner's consent. This provision does not apply to the facts of this case.

As we have already ruled in Lindbergh's Air Service cited earlier, the real purpose of section 8.4 of the Aeronautics Act is to offer means of imposing some form of coercion against the owner of an aircraft and encouraging the owner to give its employees or operators enough incentive to follow the requirements set by the owner. In short, this provision can largely be explained by the need to ensure that owners or operators exercise a maximum of supervision over their pilots in order to guarantee the utmost professionalism in the interest of public safety. It is in this way that vicarious liability must be distinguished from double liability. The aim or deterrent effect sought by the first paragraph of section 8.4 must be distinguished from that sought with respect to the pilot-in-command. In this case, though it is actually the same person, we have two distinct legal entities, having distinct obligations and liabilities for the same offences. Even though the Appellant Desrochers was also the sole shareholder, the director and the administrator of the Appellant Para-Nord, when he flew the aircraft, his capacity as pilot-in-command was different from his supervisory capacity as owner of the aircraft for his company.

Regarding the second ground of appeal, we agree, however, that the review member erred in failing to consider that the deterrent effect was necessarily more easily achieved because of the fact that the Appellant Desrochers was the sole administrator, shareholder and director of the Appellant Para-Nord.

Without, however, overturning the review member's findings as to the seriousness of the actions of the Appellants given their rashness and the danger to which they exposed the public of La Sarre, it is our opinion that the penalties assessed against the Appellants should be reduced, since in fact a single individual is ultimately deterred by the contraventions under the above-cited sections of the CARs. The desired deterrent effect of the penalties assessed against the Appellant Desrochers must be taken into account in assessing the penalties to be imposed on the Appellant Para-Nord since he is its sole shareholder, administrator and director. Therefore, we reduce the penalty with regard to paragraph 602.03(a) of the CARs (taking off from the airport within eight hours after consuming alcohol) to $3,000 even though the Minister's Aviation Enforcement Procedures Manual recommends a penalty of $5,000 for a first offence.

We maintain, however, each of the $1,000 penalties assessed against the Appellant Para-Nord for the other two offences, since they are already less than the minimum of $1,250 recommended by the Minister in his Aviation Enforcement Procedures Manual and were committed rashly, without regard for the safety of the people of the city of La Sarre.

As for the penalties assessed against the Appellant Desrochers, we also reduce the penalty assessed for the offence under subparagraph 602.14(2)(a)(i) (flying over a built-up area at an altitude below 1,000 feet) from $500 to $250, as this is a first offence. At the review hearing, the Respondent never explained or justified why it assessed a penalty of $250 for the aerobatic manoeuvres prohibited under paragraph 602.27(a) of the CARs and a penalty of $500, or twice that amount, for flying at low altitude, an offence pursuant to subparagraph 602.14(2)(a)(i) of the CARs.

The total penalty assessed against the Appellant Para-Nord should therefore be reduced from $7,000 to $5,000, while the total penalty assessed against the Appellant Desrochers should be reduced from $1,750 to $1,500.

We believe that these penalties cannot be further reduced if a deterrent effect is to be preserved with respect to both the Appellants and other members of the aviation community. The seriousness of the offences, their impact on the aviation community, the actual or potential harm caused to the person or to others and the public's perception of the offence are a few of the factors to be considered in the application of this principle (see Avionair Inc. cited above). In this case, the fact that these offences were committed rashly, even deliberately, with regard to flying at low altitude and the aerobatic manoeuvres, and that the public's safety was greatly compromised by these offences are aggravating factors that prompt us to maintain the other four penalties assessed by the Minister and to reduce only two.

As for the third ground of appeal, it is our opinion that the Kienapple principle does not apply in this case, not because it is inapplicable to administrative penalties, but because there is not sufficient proximity between the events and the offences in the case.

In fact, we believe that the principles of fundamental justice governing this administrative tribunal may also include this common law principle against multiple convictions, even though the principle of the Kienapple decision was developed in the context of criminal cases. Unlike the present case, the Dykstra decision had specifically dealt with the specific criteria of the application of paragraph 11(h) of the Canadian Charter of Rights and Freedoms to res judicata; in this case, however, only the principle against multiple convictions is concerned.

This principle must, however, be interpreted restrictively, as the Supreme Court found in the Prince case. In that decision, the Supreme Court clarified the ruling handed down in the Kienapple case in finding that the Kienapple principle against multiple convictions is applicable when there is sufficient proximity between the events and the offences on which at least two charges are based. As the Minister argued, in most cases, the requirement of factual proximity is satisfied when the answer to the following question is affirmative: Is each of the charges based on the same act of the accused? Thus, the Kienapple principle does not apply if there is not sufficient proximity between the elements of the two offences to justify the application of the rule against multiple convictions. As Chief Justice Dickson pointed out in that decision, the requirement of sufficient proximity between the offences will not be met unless the offence for which a conviction is sought to be precluded by the Kienapple principle contains additional and distinguishing elements that go to guilt.

Now in the present case, an essential element of the offence of flying at low altitude is the fact of having flown below 1,000 over a built-up area. An essential element of the offence of aerobatic manoeuvres is the fact of having conducted an aerobatic manoeuvre over a built-up area. The aerobatic manoeuvre offence contains no element of altitude, so that the offence of flying at low altitude contains a distinguishing element not found in the aerobatic manoeuvre offence. The constituent elements of the "aerobatic manoeuvre" as defined in the CARs (namely, a manoeuvre where a change in altitude of an aircraft results in a bank angle greater than 60 degrees, an abnormal attitude or an abnormal acceleration not incidental to normal flying) are also distinguishing elements not found in the offence of flying at low altitude over a built-up area. There is not sufficient proximity between the offences. It would be otherwise if the aerobatic manoeuvre offence included the element of altitude, i.e., if it were prohibited to conduct aerobatic manoeuvres below 1,000 feet over a built-up area. In this case, the offence of flying at low altitude would be subsumed in that of aerobatic manoeuvres. The Kienapple decision does not apply here, as there are two distinct acts constituting two offences, not just one.

Also, the low-altitude flight was not conducted during an aerobatic manoeuvre, i.e., the pilot-in-command Desrochers did not find himself flying at low altitude unintentionally while conducting aerobatic manoeuvres. In the present case, there is no factual proximity. On the contrary, the Appellant Desrochers was already flying at low altitude when he deliberately decided to conduct aerobatic manoeuvres. Although it was the same flight, the low-altitude manoeuvre is distinct in time from that of the aerobatic manoeuvre.

In view of the foregoing and even though a single flight is concerned, the requirement is therefore not met of sufficient proximity between the offences, nor is the requirement of a sufficient factual proximity given the distinguishing elements of the offences and the sequence of the manoeuvres in time.

DECISION

For these reasons, we dismiss the appeal as to the first and third reasons of appeal, but allow the appeal in part as to the second ground of appeal for a reduction of the total penalties assessed against the Appellant Para-Nord from $7,000 to $5,000 and a reduction of the total penalties assessed against the Appellant Desrochers from $1,750 to $1,500.

The contraventions by the Appellants of subparagraph 602.14(2)(a)(i) and paragraphs 602.03(a) and 602.27(a) of the CARs are therefore upheld.

Reasons for the appeal decision:

Caroline Desbiens, Member

Concurring are:

Michel Boulianne, Member
Carole Anne Soucy, Member


[1] R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] R. v. Sandra Prince, [1986] 2 S.C.R. 480.

[3] R. v. Hagenlocher (Manitoba Court of Appeal, 21 December 1981) 65 C.C.C. (2d) 101.

[4] R. v. André Loyer and Daniel Blouin, [1978] 2 S.C.R. 631.

[5] R. v. Briscoe (British Columbia Court of Appeal, 17 September 1992) 76 C.C.C. (3d) 563.

[6] R. v. Colby (Alberta Court of Appeal, 21 November 1989) 52 C.C.C. (3d) 321.

[7] Minister of Transport v. Lindbergh's Air Service, CAT File No. O-0025-10, 1987 (appeal).

[8] Aviation Enforcement Procedures Manual, TP4751E.

[9] Avionair Inc. v. Minister of Transport, CAT file nos. Q-0161-41 to Q-0166-41, 15 February 1990 (appeals).

[10] Jelle Dykstra v. Minister of Transport, CAT File No. W-0213-04, 1997 (appeal).