Decisions

TATC File No. O-3341-33
MoT File No. PAP5504-61180

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Robert Maguire, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, 601.04(2), 602.14(2)(b)


Review Determination
Pierre Coutu


Decision: March 12, 2008

Citation: Maguire v. Canada (Minister of Transport), 2008 TATCE 14 (review)

[Official English translation]

Heard at Ottawa, Ontario, on December 4, 2007

Held: I confirm the decision of the Minister of Transport set out in the notice of assessment of monetary penalty dated February 22, 2007. The amount of the penalty for having contravened section 601.04(2) of the Canadian Aviation Regulations is upheld at $750. The amount of the penalty for having contravened section 602.14(2)(b) of the Canadian Aviation Regulations is upheld at $3 000. The total amount of $3 750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I. BACKGROUND

[1] On February 22, 2007, the Minister of Transport charged Robert Maguire, the applicant, with having contravened sections 601.04(2) and 602.14(2)(b) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), under section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act).

[2] Schedule A of the notice of assessment of monetary penalty (exhibit M-1) stipulates the following:

[translation]

1. On or about August 31, 2006, between 16:10 and 16:30 UTC, at or near Dwyer Hill, Ontario, specifically in the special use restricted airspace designated as CYR536, a Cessna 177 aircraft bearing registration C-FWOC, registered to you, was operated in Class F Special Use Restricted airspace when not authorized to do so by the person specified for that purpose in the Designated Airspace Handbook, thereby contravening subsection 601.04(2) of the Canadian Aviation Regulations.

Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefor. Monetary penalty assessed: $750.

2. On or about August 31, 2006, between 16:10 and 16:30 UTC, at or near Dwyer Hill, Ontario, specifically in the special use restricted airspace designated as CYR536, a Cessna 177 aircraft bearing registration C-FWOC, registered to you, was operated in circumstances other than those referred to in paragraph 602.14(a) of the Canadian Aviation Regulations, at a distance less than 500 feet from any person, vessel or structure, thereby contravening paragraph 602.14(2)(b) of the Canadian Aviation Regulations.

Pursuant to subsection 8.4(1) of the Aeronautics Act, you, as the registered owner of the aircraft, are being proceeded against in respect of this offence and are liable to the penalty provided as punishment therefor.  Monetary penalty assessed: $3 000.

Total Monetary Penalty Assessed: $3 750

II. LAW

[3] Section 7.7(1) of the Act states the following:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

[4] Sections 601.04(2), 602.14(2)(b) and 602.15(2)(b)(ii) of the CARs stipulate the following:

601.04 (2) No person shall operate an aircraft in Class F Special Use Restricted airspace unless authorized to do so by the person specified for that purpose in the Designated Airspace Handbook.

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

...

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

602.15 (2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

...

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

...

(ii) aerial photography conducted by the holder of an air operator certificate,

...

III. EVIDENCE

A. Minister of Transport

(1) Oonagh Elliott

[5] Oonagh Elliott is a Transport Canada aviation enforcement inspector. After receiving a call from Major John Smith of the Canadian Forces on August 31, 2006, she opened an investigation into an aircraft that had flown over the Dwyer Hill Training Centre (Centre) near Ottawa, Ontario, at low altitude. Ms. Elliott stated that she had also received, that same day, an e‑mail from a representative of Transport Canada's regional office in Toronto, who had also been notified by telephone of the same incident.

[6] Ms. Elliott explained that the applicant is a specialist in aerial photography who had been convicted of five offences related to low-altitude flights over the last five years. Of the four most recent offences, three included penalties initially in the amount of $1 000 each, while the other was in the amount of $2 500, given that this was the fourth offence in similar circumstances. The investigation allowed her to determine that the aircraft involved in the incident was a Cessna 177 bearing registration C-FWOC and registered to Mr. Maguire, according to the Canadian Civil Aircraft Register database (exhibit M-2).

[7] Ms. Elliott stated the reasons for the penalties imposed by the Minister, namely, the minimum penalty of $750 for an offence under section 601.04(2), given that this was a first offence of this type, and the maximum penalty of $3 000 for the offence of flying at an altitude of less than 500 feet, since this was a repeat offence. She stated that Mr. Maguire was not a holder of an air operator certificate allowing him to fly at an altitude of less than 500 feet for purposes of aerial photography.

(2) Christopher Larivière

[8] Christopher Larivière is a military police officer who was on duty at the Centre on August 31, 2006. He stated that, on that day, around noon local time, he had seen a white aircraft approach from the south, over the treetops, and fly directly over the Centre before continuing eastward. He explained that the aircraft had flown over the Centre three times and that, on the third pass, he had been able to read its registration, C‑FWOC, using binoculars. Mr. Larivière testified that he had estimated the aircraft's altitude to be approximately 200 feet, based on the aircraft's position when it flew over the treetops.

[9] On cross-examination, Mr. Larivière confirmed that he had used binoculars to read the aircraft's registration. Mr. Maguire noted that, in his opinion, he had been flying at an altitude of 800 feet and that, without binoculars, it would have been difficult for anyone on the ground to make out the letters on the aircraft's fuselage.

(3) Mike Lavary

[10] Mike Lavary is another military police officer who was on duty at the Centre on August 31, 2006. At the time of the incident, he was supervising a group of military police officers. He stated that, around noon, he had heard the noise of an aircraft from inside the Centre's military police building. He immediately went outside, with other people, and saw a white, single-engine aircraft flying at an altitude of approximately 200 to 300 feet. He stated that he had relied on his experience on military shooting ranges to estimate the aircraft's altitude.

[11] On cross-examination, the applicant questioned the reliability of a military shooting range as a reference for estimating the altitude at which he had been flying when he was spotted by the witness. The witness stated that, on the military shooting ranges with which he was familiar, distances of 100, 200 and 300 feet were marked. Mr. Lavary stated that he had been unable to read the aircraft's registration.

(4) John Evans

[12] John Evans is a military police officer responsible for security at the Centre. He stated that he had been eating lunch in the Centre's dining room with his immediate superior when his superior looked out the window and noticed an aircraft. Realizing that this could be a threat to the Centre's security, Mr. Evans immediately went outside to assess the situation. Being unable to see the aircraft, he got into a vehicle and drove to the Centre's perimeter road. From there, he was able to observe the aircraft flying over a neighbouring golf course at an altitude varying between 200 and 500 feet. To measure the distance, he had relied on the regulation length of a National Hockey League (NHL) ice rink, that is, 200 feet. He then returned to his starting point, where he saw the aircraft fly directly over the Centre and one of its buildings.

[13] On cross‑examination, the witness stated that the aircraft had been flying so low that everyone there had stopped to watch. Mr. Evans had attempted to make out the aircraft's registration and determine its intentions, but his efforts proved unsuccessful. He stated that the aircraft had not maintained a constant altitude but appeared to have been flying at an altitude varying from 200 to 500 feet from the ground while flying over the Centre and the surrounding area.

(5) Todd O'Malley

[14] Todd O'Malley is a military helicopter pilot and former fixed-wing aircraft flight instructor. He stated that he had been piloting military helicopters on tactical missions for approximately 20 years and that he had been present at the Centre on August 31, 2006. He was leaving a meeting and heading to his car when he heard the noise of an aircraft. He saw a white Cessna 172 approaching from the north, flying at an altitude of no more than 300 feet. To estimate the aircraft's altitude, he had relied on the height of the electrical wires he had to watch out for when piloting helicopters near the Centre. Mr. O'Malley had regarded the situation as a possible security threat to the Centre and had notified the military police immediately.

[15] Mr. O'Malley examined an air navigation chart and two related documents used to show the exact geographic location of the Centre and its corresponding class F special use restricted airspace (exhibit M‑3).

[16] On cross-examination, Mr. O'Malley stated that when planning a flight, it was necessary to note the coordinates, particularly the latitude and longitude, of any restricted zone defined by a NOTAM. He stated that he had seen the aircraft fly not only around the Centre's perimeter, but also directly over it. After examining various air navigation charts, Messrs. Maguire and O'Malley agreed that 1:500 000-scale charts show restricted airspaces, whereas 1:50 000‑scale charts do not.

B. Applicant

(1) Robert Maguire

[17] Mr. Maguire testified that he used his aircraft bearing registration C-FWOC to take aerial photographs which he then sold to the landowners concerned. He admitted having flown over the Centre on August 31, 2006. He stated that he had flown over the Centre by mistake, because he had been using 1:50 000-scale air navigation charts, which do not show special use restricted airspaces. However, he stated that he had not operated his aircraft at an altitude of less than 500 feet and showed an aerial photograph of the Centre that he said had been taken at an altitude of 800 feet. Mr. Maguire confirmed that he had used a camera with a 300-mm zoom lens allowing good-quality photographs to be taken from 3 000 feet. He therefore did not need to fly at low altitude to take good-quality photographs. Moreover, Mr. Maguire noted that his aircraft's registration number had been seen by only one person, who had used binoculars. It was therefore likely that he had been operating his aircraft at an altitude of over 500 feet.

[18] On cross-examination, Mr. Maguire confirmed that the photograph of the Centre to which he had referred had been taken at an altitude of 800 feet. Counsel for the Minister noted that the applicant's statement at most confirmed the aircraft's altitude at the time the photograph had been taken. The applicant admitted that he had not been taking off or landing in the area surrounding Dwyer Hill and had not asked for permission to fly over a special use restricted airspace. He also confirmed that he was not a holder of an air operator certificate authorizing him to fly at an altitude of less than 500 feet for the purpose of aerial photography.

IV. ARGUMENT

A. Minister of Transport

[19] Counsel for the Minister first filed in the record the relevant sections of the Act (exhibit M-4) and then summarized the Minister's submissions. With regard to the issue of flying over a special use restricted airspace, counsel for the Minister noted that Mr. Maguire did not contest the facts. As regards the offence with respect to flying at low altitude, he submitted that he had proven, on a balance of probabilities, the elements of the offence stipulated in the notice of assessment of monetary penalty. He argued that witnesses Larivière, Lavary, Evans and O'Malley had all stated that the aircraft had been flying at an altitude of less than 500 feet. Each of these witnesses provided plausible references allowing them to correctly judge the aircraft's altitude.

[20] Counsel for the Minister asked the Tribunal to uphold the recommended maximum penalty of $3 000 with regard to flying at an altitude of less than 500 feet, this penalty being warranted because of the repeated nature of the offences of this type committed by Mr. Maguire over the last few years. As regards the offence of flying over a restricted airspace without authorization, he submitted that the minimum penalty of $750 was reasonable, given that this was the first offence of this type committed by the applicant.

B. Applicant

[21] Mr. Maguire stated that, although it appeared that he had once again committed the offence of flying at low altitude, he had in fact been flying at an altitude of over 500 feet. Given that he had recently bought a very powerful zoom lens, he no longer needed to fly at low altitude to take good-quality photographs. He submitted that he had thought it would be more economical to invest in such equipment rather than pay the fees required to obtain an air operator certificate.

V. DISCUSSION

[22] The Minister has the burden of proving, on a balance of probabilities, the alleged offences. The Tribunal must therefore be reasonably satisfied that each of the following elements is present:

  • Mr. Maguire is the owner of the aircraft bearing registration C-FWOC;
  • he operated the aircraft on August 31, 2006, at approximately 16:00 UTC;
  • on the date and at the time specified, he operated the aircraft within the restricted airspace designated as CYR536, which corresponds to the location of the Centre, in Ontario;
  • he operated the aircraft on the date and at the time specified at a distance less than 500 feet from any person, vessel or structure, at the location of the Centre, in Ontario.

[23] The aircraft's registration certificate (exhibit M-2) attests to the fact that Mr. Maguire is indeed the owner of a Cessna 177 bearing registration C‑FWOC. Mr. Maguire stated in his testimony that he was indeed at the controls of this aircraft on August 31, 2006, at approximately 16:00 UTC, taking aerial photographs in the area surrounding Dwyer Hill, Ontario.

[24] Four witnesses, Messrs. Larivière, Lavary, Evans and O'Malley, attested to having seen the aircraft belonging to Mr. Maguire fly over the Centre on August 31, 2006, at approximately 16:00 UTC. Moreover, notwithstanding the fact that 1:50 000-scale air navigation charts do not show class F special use restricted airspaces, the onus is on aircraft pilots to consult the NOTAMs in force in the areas they plan to fly over. Mr. Maguire admitted that he had operated his aircraft at the time and place stated by the witnesses.

[25] On the issue of the aircraft's altitude, Mr. Larivière, who saw a white Cessna aircraft fly over the Centre, testified that he had estimated the aircraft's altitude to be approximately 200 feet, based on the aircraft's position just above the treetops. For his part, Mr. Lavary, who also witnessed the overflight of the aircraft bearing registration C-FWOC, estimated the aircraft's altitude to be approximately 200 to 300 feet. He stated that he had relied on his experience on shooting ranges with distance markers to estimate the aircraft's altitude. Another witness, Mr. Evans, stated that he had seen an aircraft flying at an altitude varying from 200 to 500 feet. He used the regulation length of an NHL ice rink (200 feet) as a reference. Finally, Mr. O'Malley stated that he had seen an aircraft flying at an altitude of no more than 300 feet. He stated that, to estimate the aircraft's altitude, he had relied on the height of the electrical wires that he had to watch out for when operating helicopters in the areas surrounding the Centre.

[26] The witnesses appeared to be entirely credible, particularly Mr. O'Malley, who as a helicopter pilot is familiar with air navigation issues in the area surrounding the Centre. In the opinion of the Tribunal, Mr. Maguire's explanations changed nothing with regard to the evidence.

[27] Regulations provide for two exceptions to the minimum ceiling of 500 feet for flights over a structure. It is in fact possible to fly over a structure at an altitude of less than 500 feet where conducting a take-off, approach or landing (section 602.14(2)(b) of the CARs), or where the aircraft is operated by the holder of an air operator certificate for the purpose of aerial photography and without creating a hazard to persons or property on the surface (section 602.15(2)(b)(ii) of the CARs). The testimonies have shown that these two exceptions did not apply to the incident that occurred at the Centre on August 31, 2006, involving the Cessna 177 aircraft bearing registration C-FWOC and belonging to the applicant.

VI. DETERMINATION

[28] The Minister has proven the offences on a balance of probabilities. Consequently, the Tribunal upholds the recommended penalty of $750, with regard to the offence under section 601.04(2) of the CARs, and the recommended penalty of $3 000, with regard to the offence under section 602.14(2)(b) of the CARs, this being a repeat offence.

March 12, 2008

Dr. Pierre Coutu

Member