Decisions

CAT File No. W-1671-02
MoT File No. SAP-6504-P365198-20355

CIVIL AVIATION TRIBUNAL

BETWEEN:

David Felix Comeau, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 6.9, 7.3(3)
Air Regulations, C.R.C. 1978, c. 2, s. 520(1)

Onus of Proof, Negligent or RecklessOperation of an Aircraft, Endanger Life or Property


Review Determination
Allister W. Ogilvie


Decision: November 25, 1998

The Minister has proved, on a balance of probabilities, each element of the offence. The conduct of Mr. Comeau was negligent and reckless so as to likely endanger the lives and property of persons. In the result, I confirm the 30-day suspension of Mr. Comeau's private pilot licence. Said suspension shall begin on the fifteenth day after service of this determination.

A Review Hearing on the above matter was held Wednesday, November 4, 1998, at 10:00 hours, at the Court House in Fort McMurray, Alberta.

BACKGROUND

On July 1, 1992, Canada Day Celebrations, including a fireworks display, were planned for Fort McMurray, Alberta. The fireworks, to be held just after dusk, could be viewed from the banks of the Athabaska River near the Grant McEwen bridge. Spectators gathered on the river bank and on the structure of the bridge in anticipation of the event.

Before the fireworks display commenced, a small float-equipped aircraft was observed flying up the river and under the bridge. The subsequent investigation of the circumstances of that flight lead the Minister to issue a Notice of Suspension to Mr. David Felix Comeau which states in part:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulation Section 520(1)

That you did on or about the 1st day of July 1992, A. D. at or near Fort McMurray, Alberta, operate aircraft Piper PA-11, Canadian registration C-FFIY, in a negligent and reckless manner, specifically by flying the said aircraft under the Grant McEwan bridge, so as to endanger or be likely to endanger the lives and property of persons standing on top of the bridge and on the shoreline near the bridge, contrary to Section 520(1) of the Air Regulations and did thereby commit an offence pursuant to s. 7.3(3) of the Aeronautics Act, R.S.C. 1985 and amendments thereto.

LICENSE SUSPENSION OF 30 DAYS

EVIDENCE

Mr. R. J. McFarlane, Superintendent Aviation Enforcement, presented the case on behalf of the Minister while Mr. David F. Comeau represented himself. Mr. Comeau did not call witnesses nor give sworn testimony himself.

The alleged infraction took place on July 1, 1992. The hearing of the matter was pursuant to a Notice of Suspension of June 29, 1998, some six years after the fact. Mr. R. Pollock, an Inspector in the Aviation Enforcement Branch of Transport Canada detailed Transport Canada's many efforts to serve Mr. Comeau with a Notice over that time. These efforts included the sending of double registered letters, having RCMP officers attempt personal service at various addresses and contacting Mr. Comeau's parents. On occasion Mr. Comeau contacted Transport Canada, but his actions ensured that he could not be reached at any forwarding address. For a period of time his licence was not renewed, and in that period his file at Transport Canada was flagged for future reference. When his licence was renewed, so was the pursuit of Mr. Comeau, this time successfully.

Evidence adduced establishes that Mr. Comeau was the pilot of aircraft C-FFIY, on July 1, 1992 when the aircraft was observed flying under the Grant McEwan bridge.

On the day after the incident, Mr. Comeau gave a statement to RCMP Constable Coupal. Mr. Comeau had been advised that he may have been charged with an offence under the Aeronautics Act, and was advised of his right to retain and instruct counsel and that he was not obliged to say anything.

In that statement, Mr. Comeau stated that he had been flying circuits from a nearby waterway and that he had observed a friend's vehicle in the Athabaska river so he flew over to check it out. After having passed his friends, he said that he was committed to fly under the bridge as the aircraft was not capable of flying over it without the danger of hitting it. He stated that he was aware that people were on the river banks but did not know any were on the bridge. Constable Coupal asked whether he had told anyone that once he saw people watching him, he could not resist flying under the bridge, and he replied yes, but not in those words. He did not consider that flying under the bridge endangered anyone, nor that his action was dangerous. In the statement he acknowledged that the aircraft was a PA-11 on floats.

On July 14, 1992, Mr. Comeau spoke to Mr. Robert Ayers, an enforcement inspector with Transport Canada. Mr. Ayers had Mr. Comeau identify himself and warned him of his rights before their conversation. When asked if he was the pilot of C-FFIY, a PA-11 on floats that day, he said he was. Mr. Ayers advised him of the possibility of being charged under subsection 520(1) of the Air Regulations.

A video tape of the aircraft's flight under the bridge was provided by a Mr. G. Britton, who, along with some companions, was in a boat situated near the bridge, where they anticipated viewing the Canada Day fireworks. The tape shows numerous people on the bridge deck and many more lining a shore. A small float-equipped aircraft is seen flying up the river then under the span, pulling up on the far side.

THE LAW

Subsection 520(1) of the Air Regulations:

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

Section 520 of the Air Regulations has been superceded by section 602 of the Canadian Aviation Regulations. However, in July of 1992, it was still operative.

A 12-month time limit to institute proceedings from the time when the subject matter arose exists for sections 7.6 to 8.2 of the Aeronautics Act. It does not apply to proceedings under 6.9 of the Act. As a result the proceeding is not time barred.

I note that subsection 520(1) of the Air Regulations states that no aircraft shall be operated in such a negligent or reckless manner, whereas the Notice of Suspension stipulates operation in a negligent and reckless manner.

ARGUMENT—Minister of Transport, Respondent

Mr. McFarlane prefaced his argument by stating that he must adduce evidence for every element of the offence and that he would review all the elements. He stated that the video showed that an aircraft was involved, and that the document holder had admitted to the Constable and Mr. Ayers that he flew the flight. That the aircraft was operated, in the sense that it was flown, was admitted, and the journey log revealed the flight.

As to negligent and reckless, Mr. McFarlane said that the terms were not defined. However, the incident was analogous to low flying, although low flying was not alleged. The video showed the aircraft to be below 50 – 60 feet which would indicate negligence. As to recklessness, the flight had a level of risk that a reasonable and prudent pilot would not assume. The aircraft flew at high speed, between the pilings, which made the margin of error beyond acceptable.

Regarding endanger or be likely to endanger, the video clearly showed numerous people on the shoreline. The risk was high, he argued, in that one could just imagine the result if the pilot misjudged and clipped the bridge while manoeuvring, or if the aircraft had dug in and cartwheeled into the shoreline where people were gathered.

ARGUMENT—Mr. Comeau, Applicant

During cross-examination regarding the issue of the veracity of his statement to the RCMP, Mr. Comeau raised the spectre of duress, and alluded to the police having ways of making people confess.

He argued that the river near the bridge was far wider than the Snye (the local area for take-off and landing). People often went to the Snye to watch aircraft take off and land, and those people were in closer proximity to the aircraft than were those on shore at the bridge. He stated that the video showed the aircraft to be closer to the water than the top of the span.

Mr. Comeau could see no danger to the bridge as a light aircraft covered with fabric, with no electrics, would probably not do the damage, on collision, that a spring ice flow would, or perhaps a loaded barge.

Mr. Comeau also stated his dissatisfaction with disclosure. He realized his copy of the video was edited upon seeing the complete video at the Review Hearing. He believes this disadvantaged him.

DISCUSSION

In this instance, the only portion of the tape relied upon by me, was the footage showing the aircraft flying up the river and under the span. That was the relevant portion, and Mr. Comeau received it. The Minister must produce all relevant information in the disclosure package, and I find that in the circumstance, he did.

In the case of an alleged breach of section 520 of the Air Regulations, the Minister must prove:

  • the identity of the person operating the aircraft;
  • that the aircraft was operated in a negligent or reckless manner;
  • that the negligent or reckless operation endangered or was likely to endanger the lives and property of persons.

The alleged offender is not specified in section 520 of the Air Regulations, but as the Aeronautics Act defines pilot-in-command to be the pilot having responsibility for the operation of an aircraft during flight time, it can be concluded that it is the pilot-in-command who is precluded from operating that aircraft negligently or recklessly.

The proofs must come from evidence presented whether through witness testimony, documentary evidence such as exhibits, or by other acceptable means.

In this instance, statements were given by Mr. Comeau to Constable Coupal and to Mr. Ayers. These statements may be described as hearsay evidence. Hearsay evidence may be described as evidence not proceeding from the personal knowledge of the witness but from the mere repetition of what the witness has heard others say.

The statement given to the Constable was written out, but not signed. The statement to Mr. Ayers was verbal, but Mr. Ayers subsequently made notes of the statement. In both instances the statements were voluntarily given to a person in authority after Mr. Comeau had been warned of his rights. Such evidence can be characterized as an admission against interest. Under the technical rules of evidence that characterization forms an exception to the hearsay rule and is therefore admissible.

Section 37 of the Aeronautics Act provides that the Tribunal is not bound by any legal or technical rules of evidence. As such statements are admissible under the technical rules of evidence, there is even less reason to object to them under the more relaxed rules of the Tribunal.

In cross-examination of Constable Coupal, Mr. Comeau raised the spectre of duress and the possibility that people confess to things that they did not do. Such inferences were dismissed by the Constable. No evidence was given regarding duress, and no retraction of the statement was made. In the result, I find the statements made to Constable Coupal and to Mr. Ayers to be admissible. They are relevant as both relate directly to the elements of the offence, and as one corroborates the other, they can be accorded considerable weight.

The evidence contained in those statements establishes that Mr. Comeau was the pilot-in-command of the PA-11, C-FFIY which flew under the Grant McEwan bridge in July 1992.

Section 520 of the Air Regulations uses the terms "negligent or reckless" whereas the Notice of Suspension stipulates "negligent and reckless". By the use of the disjunctive "or" the regulation would allow the finding of either negligence or reckless to substantiate the offence. However, the Minister has used the conjunctive "and", thus a finding of both negligent and reckless are needed to ground the offence.

A review of jurisprudence, texts and law dictionaries reveals that much has been written about the meaning of negligence and recklessness. A recent determination of a Civil Aviation Tribunal appeal panel aptly addresses the point.

In Francis Dominic Decicco v. Minister of Transport,[1] it was alleged that the pilot-in-command was negligent or reckless in having twice landed on a runway before the previous flights had cleared that runway.

Definitions of negligence and recklessness were drawn from Black's Law Dictionary, Fifth Edition:

Negligence is defined at page 930:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Recklessness is defined in the same work at page 1142:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though forseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.

The panel stated in part:

In any consideration of what constitutes negligent or reckless conduct, one must review this conduct in the light of what a reasonable and prudent pilot would do in the same circumstances.

Speaking of the evidence of those pilots, the panel concluded:

In the light of the foregoing evidence, the Tribunal concludes that the conduct complained of in both counts, being landing an aircraft over the top of another one still on the runway and landing before a second aircraft had cleared the runway, falls below the standard expected of a reasonably prudent pilot so as to constitute negligence on the part of that pilot. The pilot's conduct in our view which occurred on two separate landings on the same day demonstrates that he failed to exercise the degree of care or skill required of him, that he failed to exercise good judgment in the adoption of prudent landing procedures.

It can be seen negligence or recklessness is measured against the standard of conduct of a reasonable and prudent pilot.

THE ISSUE

In this instance, the first issue to be determined is whether or not Mr. Comeau's conduct fell below the standard expected of a reasonable and prudent pilot so as to constitute negligence and recklessness.

Secondly, if so, was the conduct such as to endanger or be likely to endanger the lives and property of persons on the bridge and shoreline.

I find that flying under a bridge, especially when the bridge and shore were lined with people, falls below the standard expected of a reasonable and prudent pilot.

In a portion of his statement to the Constable, Mr. Comeau indicated that after overflying his friends in the river, he was committed to passing under the bridge, as his aircraft was not then capable of flying over the bridge without danger of hitting it. His behaviour in putting himself in a position in an aircraft where he was then committed to fly under a bridge falls within the definition of negligence. It was a failure to exercise the degree of care or skill required of him in the circumstance.

He further admitted, in so many words, that once he saw people watching he could not resist flying under the bridge, a statement which casts doubt on his previous contention that he was committed to flying under the bridge. However, by such an admission, his conduct takes on the spectre of recklessness in that it showed the state of mind accompanying the act where he payed no regard to its probable or possible injurious consequences.

He stated that, had he known people were on the bridge, he would not have investigated his friend's vehicle in the river in the manner in which he did. Even discounting the people on the bridge who were there to watch fireworks, he knew or should have known of the likelihood of people being on the bridge, as its very purpose is to enable people to traverse the river. His conduct constituted both negligence and recklessness.

As to the second issue, I find that the flight was such as to endanger or be likely to endanger the lives and property of persons on the bridge and shoreline.

Mr. Comeau stated that he did not feel that flying under the bridge was going to endanger himself or anyone else. He thought that with his skill level, his actions were not dangerous. However, that is his subjective view, whereas his conduct is to be measured against the objective standard of the reasonable and prudent pilot. The video tape shows a small aircraft passing underneath the bridge deck and between the pilings of the bridge. People were standing on the bridge and lining the shore. Fortunately no mishap occurred, but there existed the likelihood of endangerment to persons and property should Mr. Comeau have miscalculated his flight path, misjudged his height, whether up or down, encountered unexpected air currents under the bridge or if his aircraft had suffered an unexpected mechanical malfunction. The close proximity of the aircraft to the physical structures, created the likelihood of danger to both life and property of persons.

DETERMINATION

The Minister has proved, on a balance of probabilities, each element of the offence. The conduct of Mr. Comeau was negligent and reckless so as to likely endanger the lives and property of persons. In the result, I confirm the 30-day suspension of Mr. Comeau's private pilot licence.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] CAT File No. C-1316-02.


Appeal decision
David S. Ahmed, E. David Dover, Sandra Lloyd


Decision: March 9, 1999

After carefully reviewing the facts and evidence pertaining to this case, the Appeal Panel agreed, unanimously, that the Minister had indeed carried out his burden of proof on a balance of probabilities, concerning subsection 520(1) of the Air Regulations. The Appeal Panel therefore confirms the 30-day suspension of Mr. Comeau's private pilot licence and recommends that the said suspension begin on the fifteenth day after service of this determination.

An appeal hearing on the above matter was held Friday, February 26, l999 at 10:00 hours at the Court House in Fort McMurray, Alberta.

BACKGROUND

July 1, 1992 was Canada Day. To celebrate this event, a fireworks display was planned. This was to be held just after dusk and could be viewed from the banks of the Athabasca River near what is known as the Grant McEwan Bridge. In order to view the fireworks, spectators had gathered not only on the riverbank but on the structure of the bridge itself.

A little while before the fireworks display began, a small float-equipped aircraft was observed flying along the river and, subsequently, under the bridge. This act triggered an investigation by Transport Canada which culminated in Mr. David Felix Comeau being proceeded against for allegedly flying in a negligent and reckless manner. More specifically, Mr. Comeau was issued a Notice of Suspension from the Minister which stated in part:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulation Section 520(1)

That you did on or about the 1st day of July 1992, A. D. at or near Fort McMurray, Alberta, operate aircraft Piper PA-11, Canadian registration C-FFIY, in a negligent and reckless manner, specifically by flying the said aircraft under the Grant McEwan bridge, so as to endanger or be likely to endanger the lives and property of persons standing on top of the bridge and on the shoreline near the bridge, contrary to Section 520(1) of the Air Regulations and did thereby commit an offence pursuant to s. 7.3(3) of the Aeronautics Act, R.S.C. 1985 and amendments thereto.

license suspension of 30 days

Transport Canada's assumption that Mr. Comeau was indeed pilot-in-command of the aforementioned aircraft when it flew under the bridge was made on the following grounds:

  • The day after the incident, Mr. Comeau gave a statement to RCMP Constable Jim Coupal at which time he was informed by the Constable that he may be proceeded against under the Aeronautics Act and was advised of his right to retain and instruct counsel. He was further advised that he was not obliged to say anything.

In his statement to Constable Coupal, Mr. Comeau admitted that he had flown a small float-equipped aircraft, which was actually owned by his father, under the bridge. He did say, at that time, that, due to extenuating circumstances, he found himself in close proximity to the bridge and because the aircraft was not capable of flying over it without the danger of hitting it, he was committed to fly under the bridge.

  • On scrutinizing the journey log of the aircraft in question, it was established that on July 1, 1992, Mr. David Comeau had been pilot-in-command of a flight that took place between 21:00 hours and 22:30 hours which would fit in with the time that the alleged offence occurred.
  • A videotape of the aircraft's flight under the bridge was made available by a Mr. G. Britton who, along with some companions, happened to be in a boat situated near the bridge where they were waiting for the Canada Day fireworks display to commence. The tape showed numerous people on the bridge deck and many more lining the shore. A small float-equipped aircraft was seen flying up the river and then under the span, pulling up on the far side.

On February 1, 1993, a Notice of Suspension was sent to Mr. Comeau by double registered letter indicating that his suspension would come into effect on March 8, 1993 and would remain in effect until April 7, 1993. Mr. Comeau did not apparently receive this double registered letter because it was returned to Transport Canada. Although it had been established that Mr. Comeau had left Fort McMurray and was residing in British Columbia, several unsuccessful attempts were made to contact him and the matter was eventually put onto "hold."

In March of 1998, Mr. Comeau underwent a medical examination in order to revalidate his private pilot licence. Based on the information provided in the Medical Examination Report, Transport Canada was able to locate Mr. Comeau who had apparently returned to Fort McMurray, Alberta. This resulted in Mr. Comeau being sent another Notice of Suspension which, on this occasion, was received by him.

Upon receipt of his new Notice of Suspension, Mr. Comeau contacted the Civil Aviation Tribunal in Ottawa requesting a review hearing. He also subsequently requested, and was granted, a stay of suspension pending the outcome of the review hearing.

REVIEW HEARING

At the request of Mr. Comeau, a review hearing was held on November 4, 1998 in Fort McMurray, Alberta. The hearing officer was Mr. Allister Ogilvie. Mr. Ogilvie is also Vice-Chairperson of the Civil Aviation Tribunal.

At the review hearing, Mr. Comeau was self-represented. He did not call any witnesses and did not give sworn testimony himself.

Transport Canada's case presenting officer was Mr. R. J. McFarlane. He had several witnesses which included Mr. George Britton (the person who provided the video/tape), Constable Jim Coupal, and two other individuals.

After the conclusion of the hearing, Mr. Ogilvie's determination was as follows:

The Minister has proved, on a balance of probabilities, each element of the offence. The conduct of Mr. Comeau was negligent and reckless so as to likely endanger the lives and property of persons. In the result, I confirm the 30-day suspension of Mr. Comeau's private pilot licence.

THE APPEAL

Following receipt of Mr. Ogilvie's determination, Mr. Comeau requested an appeal hearing. He also requested a stay of suspension and this was granted. In his letter dated December 15, 1998 to the Civil Aviation Tribunal, Mr. Comeau made the following statement:

The grounds that the appeal are based on; reasonable doubt, the tactics that the peace officer used to attain a warned statement are in question, and not disclosing all the evidence.

MR. COMEAU'S SUBMISSION

Mr. Comeau was self-represented. He began by criticizing Transport Canada for providing him with only an edited version of the videotape that was mentioned earlier. He stated that he had at home a copy of a videotape and requested that he be given permission to go home to pick up the tape so that he could play it for us. Several attempts were made by the Appeal Panel members to ascertain the relevancy of Mr. Comeau's request. Because we were unable to do so, the Panel decided unanimously (after a brief recess) that his request be denied.

Mr. Comeau continued by expressing his concerns about the way his statement was obtained by RCMP Constable Jim Coupal in which he admitted that he had indeed flown the aircraft in question under the bridge. He indicated that he was, at the time of making his statement, under considerable duress and it was conceivable that he may have been coerced into saying things that were not necessarily true. He stated that it was insinuated that if he did not "own up" to the allegation it was conceivable that his father, who was the owner of the aircraft, might be proceeded against instead.

Mr. Comeau continued by raising the question of "reasonable doubt." He pointed out that even though there was no question of the fact that a float-equipped aircraft had been witnessed flying under the bridge, no positive identification had been made of either the aircraft or the pilot-in-command.

MR. FRANÇOIS-RENÉ DUSSAULT'S SUBMISSION

Transport Canada was represented by Mr. Dussault. He serves in the capacity of Appeals Officer, Regulatory Services, Civil Aviation. Mr. Dussault informed the Appeal Panel that, in his opinion, there was absolutely no evidence to suggest that the statement Mr. Comeau made to the RCMP was obtained unfairly. He reminded the hearing that there was evidence to prove that Mr. Comeau, prior to making his statement, had been properly warned. He was informed that he did have the right to retain and instruct counsel and was not obliged to say anything unless he wished to do so, etc.

Mr. Dussault reminded us that there was indisputable evidence that a float-equipped aircraft had flown under the Grant McEwan Bridge on July 1, 1992. Subsequently. Mr. Comeau gave a statement to Constable Jim Coupal admitting that he had committed the offence. The aircraft in question's journey log confirmed that Mr. Comeau was pilot-in-command of the said aircraft at or about the time that the offence occurred.

Mr. Dussault concluded by requesting that the Appeal Panel declare that the determination of the Vice-Chairperson, Mr. A. Ogilvie was reasonable in light of the evidence presented at the review hearing and that the Minister carried out his burden of proof on a balance of probabilities, concerning subsection 520(1) of the Air Regulations.

Mr. Comeau was given a chance to make a closing statement. He told the Panel that the fact that the RCMP and Transport Canada were unable to locate him for a period of six years was not because of a deliberate attempt on his part to be evasive. He said he could not understand why Transport Canada was still pursuing him for an offence that allegedly occurred over six years ago. He requested that the allegation against him be either dropped or substantially reduced.

DISCUSSION

As set out above, Mr. Comeau listed his grounds of appeal in a letter to the Tribunal as follows: "... reasonable doubt, the tactics that the peace officer used to attain a warned statement are in question, and not disclosing all evidence." We will deal with each of the grounds in that order.

Firstly, the Minister is not required to prove the identity of the document holder or the aircraft involved beyond a reasonable doubt. The Minister need only prove the elements of the offence on a balance of probabilities.

Secondly, in his submissions at the Appeal Hearing, Mr. Comeau insinuated that his warned statement may have been obtained unfairly by the RCMP. However, at no time did Mr. Comeau offer any sworn evidence in support of this submission. Nor did he choose to tender any evidence that might contradict the admissions made by him in the warned statement.

Finally, the only portions of the videotape that were relevant, and relied upon by Mr. Ogilvie at the Review Hearing, were in fact contained in the version of the videotape which Mr. Comeau received. In these circumstances, the fact that Mr. Comeau may have received an edited version of the tape did not amount to a breach by the Minister of his duty of disclosure that would warrant allowing the appeal of Mr. Ogilvie's decision.

DETERMINATION

After carefully reviewing the facts and evidence pertaining to this case, the Appeal Panel agreed, unanimously, that the Minister had indeed carried out his burden of proof on a balance of probabilities, concerning subsection 520(1) of the Air Regulations. The Appeal Panel therefore confirms the 30-day suspension of Mr. Comeau's private pilot licence.

Reasons for Appeal Determination by:

Dr. D. S. Ahmed, Member

Concurred:

Sandra Lloyd, Member
E. David Dover, Member