Decisions

TATC File No. O-4030-33
MoT File No. Z5504-082386 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Stephan Maisonneuve, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
subsection 601.04(2) of the Canadian Aviation Regulations, SOR/96 433, pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A 2


Review Determination
J. Ed Macdonald


Decision: September 11, 2014

Citation: Maisonneuve v. Canada (Minister of Transport), 2014 TATCE 33 (Review)

Heard in: Ottawa, Ontario, on July 15, 2014

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on a balance of probabilities, that the applicant, Stephan Maisonneuve, contravened subsection 601.04(2) of the Canadian Aviation Regulations. The monetary penalty of $750 is upheld.

The total amount of $750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this determination.

I. BACKGROUND

[1] On January 29, 2014, the Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty to the applicant, Stephan Maisonneuve, alleging a contravention of subsection 601.04(2) of the Canadian Aviation Regulations, SOR/96‑433 (CARs). Schedule A of the Notice reads as follows:

On or about September 24, 2013, at approximately 2053 UTC, at CYR538, you operated a Cessna 172N aircraft bearing registration C‑GQUO in the Class F Special Use Restricted airspace area known as CYR538 when you were 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.

Monetary Penalty: $750.00

[2] On February 27, 2014, the Transportation Appeal Tribunal of Canada received a request for review of this decision from the applicant.

II. STATUTES AND REGULATIONS

[3] Subsection 601.04 (2) of the CARs reads as follows:

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.

III. EVIDENCE

A. Minister

(1) Robert Gillespie

[4] The first witness, Robert Gillespie, is an experienced pilot with 18 years of aviation experience and was a civil aviation inspector with Transport Canada's Enforcement Branch, Ontario Region, at the time of the incident. He identified the Civil Aviation Daily Occurrence Reporting System (CADORS) report (Exhibit M‑1) indicating that the incident took place September 24, 2013 at 20:53 UTC. A visual flight rules (VFR) flight by a Cessna 172N with registration C‑GQUO was observed entering CYR538 (Rideau Hall, ON) at 1,600 feet.

[5] The witness, for the purpose of investigating this incident, requested and obtained from NAV CANADA the audio and radar data pertaining to the September 24, 2013 flight (Exhibits M‑2 and M‑3). These data were provided in the form of a CD, which the Minister's representative introduced into evidence (Exhibit M‑4).

[6] The flight plan data (Exhibit M‑5), also provided on the CD from NAV CANADA, were entered into evidence, confirming the VFR flight, the airplane registration, the owner of the aircraft as the Rockcliffe Flying Club, the pilot as Stephan Maisonneuve and the flight path that violated the airspace. The witness also discussed his review of the audio data (Exhibit M‑6).

[7] The witness described a series of screen shots from the Winrad program, labelled A through F (Exhibit M‑7), showing the aircraft prior to entering, going through and exiting the restricted airspace.

[8] An excerpt from the Designated Airspace Handbook that was in effect from August 22, 2013 until October 17, 2013 (Exhibit M‑8), defined the airspace CYR538 from surface to 3,000 feet. The operating procedures for this area indicate that “no person shall operate an aircraft within the area described unless the flight has been authorized by the User/Controlling Agency, except for air ambulance, military, police or IFR flights”.

[9] The Minister's representative introduced several documents establishing various elements relevant to the alleged contravention: a VFR Terminal Area Chart showing the location and range of CYR538 (Exhibit M‑9); the record from the Official Canadian Civil Aircraft Register database pertaining to the Cessna 172N aircraft bearing registration mark C‑GQUO, which names the Rockcliffe Flying Club as the registered owner of the aircraft (Exhibit M‑10); records from the Rockcliffe Flying Club requested by the witness, showing that the plane was flown by the applicant on September 24, 2013 (Exhibit M‑11); and, the record from the Distributed Air Personnel Licensing System pertaining to the applicant, listing his personal and licence information (Exhibit M‑12).

[10] The Minister's representative then introduced a chain of e‑mails exchanged between Mr. Gillespie and the representative of the controlling agency for CYR538, Sergeant Daniel Bernier of the RCMP (Exhibit M‑13), indicating that Mr. Maisonneuve had not sought permission to enter CYR538.

[11] The Minister's representative had the witness describe records of communications that occurred between the witness and the applicant over the course of the investigation into the incident. In a letter of investigation dated October 31, 2013 (Exhibit M‑14), the witness informed Mr. Maisonneuve that he was conducting an investigation into the flight of September 24, 2013, with regard to possible violations of the CARs. As a result of this letter, on December 2, 2013, the witness and Mr. Maisonneuve spoke by telephone about the incident. The witness recorded the conversation (Exhibit M‑16) and summarized it in a telephone record (Exhibit M‑15).

(2) Yan Picard

[12] The second witness, Yan Picard, is an air traffic control supervisor with NAV CANADA who works in the Capital sub-unit, which takes care of the Ottawa Region Terminal and Québec City Terminal, and is the procedure supervisor with 14 years' experience as an air traffic controller.On September 24, 2013, at approximately 20:53 UTC, he was working at the Ottawa terminal and identified C-GQUO as the aircraft checked in. The aircraft entered or turned toward CYR538.He confirmed that the pilot of the aircraft was informed that he had passed through CYR538 and the pilot acknowledged that he would be more careful in the future.As per procedure, Mr. Picard generated the Aviation Occurrence Report.Subsequently, the CADORS report (Exhibit M‑1) was issued. Mr. Picard stated that he is required to report all anomalies.

(3) Cross-examinations by the applicant

[13] Both witnesses were cross-examined by Mr. Maisonneuve. He introduced two pieces of evidence: a chart of the Rockcliffe Airport area airspace from March 2012 (Exhibit A‑1) and a VFR navigation chart for the Ottawa area from January 2012 (Exhibit A‑2). Cross-examination of the Minister's witnesses revealed that a change was made to CYR538 in February 2012, when the height restriction was raised from 1,500 to 3,000 feet and the radius expanded from 0.25 mile to 0.35 mile.

B. Applicant

[14] Mr. Maisonneuve took the stand in his own defense. He acknowledged responsibility for the incident and admitted that he should have looked over the chart prior to filing his flight plan. The plane he usually flew was unavailable, so he rented the C-GQUO Cessna 172 from the Rockcliffe Flying Club. This aircraft was not equipped with a GPS, which he was used to using.

IV. ARGUMENTS

A. Minister

[15] The Minister's representative submitted that the evidence had established all elements of the violation. He said that notwithstanding the fact that Mr. Maisonneuve did not intend to violate CYR538, this constitutes a strict liability offence. Pilots operating in this area should make themselves aware of these areas for not only demonstrating good airmanship but, more importantly, to ensure they are not breaching national security or any aviation regulations. The Minister's overall role in Canada is to ensure aviation safety, which is related to national security. Issuing monetary penalties to those who breach the aviation regulations is an enforcement tool that has to be exercised in situations like these in part to deter individuals like Mr. Maisonneuve from breaching the very regulations that were established to ensure aviation safety and proper conduct.

[16] With respect to the sanction, the Minister's representative submitted that subsection 601.04(2) of the CARs is a designated provision and that the maximum fine for an individual for breaching this provision is $3,000. The Minister imposed a fine of $750, which is the recommended penalty for a first offence.

B. Applicant

[17] Mr. Maisonneuve admitted responsibility for violating the airspace. He took issue with the fact that he had never been invited to discuss the matter with Mr. Gillespie. When he received the court date and the evidence, he then realized that he had violated the airspace. Arguing that he had a clean record and had never breached any laws, he requested leniency and that the sanction be waived.

V. ANALYSIS

[18] Based on the evidence and submissions from both parties, it is clear that the Minister has proven the offence as alleged. The only issue to be decided is the amount of the sanction. The penalty assessed by the Minister is the minimum recommended for this offence. It is my opinion that pilots must comply with and be aware of aviation regulations in the interest of aviation safety.

[19] I understand that Mr. Maisonneuve has issues with the process, however, a contravention of subsection 601.04(2) of the CARs is a strict liability offence and therefore, as the Supreme Court of Canada determined in R. v. Sault Ste. Marie (City), [1978] 2 SCR 1299, intent does not need to be proven in such a case, only that the offence was committed.

[20] Having considered the applicant's request for leniency, the fact that the contravention constitutes a strict liability offence and the fact that the Minister imposed the minimum recommended penalty for a first offence, I opt not to interfere with the Minister's decision.

VI. DETERMINATION

[21] The Minister has proven, on a balance of probabilities, that the applicant, Stephan Maisonneuve, contravened subsection 601.04(2) of the Canadian Aviation Regulations. The monetary penalty of $750 is upheld.

September 11, 2014

J. Ed Macdonald
Member