Decisions

TATC File No. P-4215-33
MoT File No. EMS 86242

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Leslie Mitchell, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2, section 7.7
Canadian Aviation Regulations, SOR/96-433, subsection 601.08(1)


Review Determination
Arnold Marvin Olson


Decision: October 26, 2016

Citation: Mitchell v. Canada (Minister of Transport), 2016 TATCE 31 (Review)

Heard in: Vancouver, British Columbia, on September 20, 2016

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on the balance of probabilities, that the applicant, Leslie Mitchell, contravened subsection 601.08(1) of the Canadian Aviation Regulations. The monetary penalty of $750 is reduced to $550.

The assessed penalty of $550 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 27, 2016, the Minister of Transport issued a Notice of Assessment of Monetary Penalty (Notice) to the applicant, Leslie Mitchell, for an alleged contravention of subsection 601.08(1) of the Canadian Aviation Regulations, SOR/96‑433 (CARs). Schedule A of the Notice lists one charge:

On or about March 08, 2015, approximately at 19:10 UTC, at or near Langley Regional Airport (YNJ), you, Leslie Mitchell, as Pilot-in-Command (PIC) of an Amateur-built Avia Akro I aircraft, Registration C‑FANQ, entered Class C airspace without clearance from the CYNJ Air Traffic Control (ATC) unit, thereby contravening subsection 601.08(1) of the Canadian Aviation Regulations.

Assessment:

Monetary Penalty - $750.00

II. STATUTES AND REGULATIONS

[2] Subsection 7.7(1) of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act), respecting monetary penalties, reads as follows:

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.

[3] Subsection 601.08(1) of the CARs reads as follows:

601.08 (1) Subject to subsection (2), no person operating a VFR aircraft shall enter Class C airspace unless the person receives a clearance to enter from the appropriate air traffic control unit before entering the airspace.

III. EVIDENCE

A. Minister

(1) Betty Tso

[4] Ms. Tso is an enforcement officer with Transport Canada. She introduced into evidence a Civil Aviation Daily Occurrence Reporting System (CADORS) report filed by the Langley Regional Airport (CYNJ) air traffic control (ATC) unit of an entry into the Langley control zone without a clearance by an AVIA AKRO I aircraft from Boundary Bay Airport (Exhibit M‑1); an excerpt from the Canadian Civil Aircraft Register showing such an aircraft bearing the civil identification C‑FANQ registered to a Mr. Leslie Mitchell (Exhibit M‑2); a report from Transport Canada's Continuing Airworthiness Web Information System (CAWIS) giving email contact information of the aircraft owner (Exhibit M‑3); and an email to Mr. Mitchell, dated March 9, 2015, requesting more information about an incident the previous day, specifically the name of the pilot-in-command (Exhibit M‑4).

[5] Mr. Mitchell called Ms. Tso several days later and a typed telephone record of the call was introduced into evidence (Exhibit M‑5). Ms. Tso stated that Mr. Mitchell had admitted to being the pilot-in-command of the aircraft, although he did not recall entering the control zone.

(2) Saeid Namazi

[6] Mr. Namazi is a Transport Canada enforcement investigator. He notified Mr. Mitchell via a Letter of Investigation (Exhibit M‑7) that an investigation into a possible violation of CARs subsections 601.08(1) and 602.08(1) was being conducted. (Since Mr. Mitchell was not charged with a violation of subsection 602.08(1), it is not cited.)

[7] The letter contained the following paragraph:

You are not obliged to respond to this letter or say anything unless you wish to do so. Please be advised that anything you do say and any information you offer by way of a statement or otherwise may be given as evidence against you.

[8] Mr. Namazi was asked if he had an opportunity to speak with Mr. Mitchell. He replied that he did not; rather contact proceeded through an exchange of emails. Since the emails received from Mr. Mitchell were marked “Without Prejudice”, the Minister did not introduce them into evidence.

[9] Mr. Namazi explained the content of a transcript of the audio recording of transmissions with the Langley Air Traffic Control during the occurrence of March 8, 2015 (Exhibit M‑9) and a series of six radar data screen shots (Exhibit M‑10) as obtained from Nav Canada. He correlated the audio transcript and the screen shots, describing how aircraft FANQ can be seen approaching the Langley Class C control zone, proceeding through the zone at an altitude of 1,400 feet, and exiting the zone at an altitude of 1,300 feet. The screen shots also show the presence of another aircraft, C‑GIZW, to the west of the subject aircraft FANQ. The audio transcript shows that ATC attempted four times to contact aircraft FANQ as it transited the control zone.

[10] An excerpt of the Canada Flight Supplement (Exhibit M‑11) was introduced. This included a diagram of the Langley control zone Class C airspace extending for a radius of 3 nautical miles from the Langley airport to an altitude of 1,900 feet above sea level (ASL).

[11] As a result of the investigation, a Notice of Assessment of Monetary Penalty (Exhibit M‑12) was issued to Mr. Mitchell. Schedule A of the Notice lists the charge of a violation of 601.08(1) of the CARs and continues with information about the possibility of holding an informal meeting, which reads in part as follows:

This is to advise you that should you wish to discuss the merit of the alleged infraction(s) or the imposed penalty, you may arrange for an informal meeting with the Regional Manager, Aviation Enforcement. […]

During this meeting, you may make representation as to why the infraction(s) should not be upheld, or present any information or mitigating factors that could affect the penalty levied against you. […]

The Regional Manager will consider any new information or mitigating factors presented by you and is empowered to withdraw the notice of infraction or modify the assessed penalty if the information or mitigating factors provide enough justification for such a change. […]

[12] As Mr. Mitchell did not have any previous violation in his aviation record, in accordance with the Transport Canada Table of Sanctions (Exhibit M‑13), the recommended sanction of $750 for a first offence was applied.

(3) Cross-examination of Mr. Namazi

[13] Inspector Namazi was asked why he had refused to release the radar data and the ATC recording to Mr. Mitchell when it was requested. Mr. Namazi said the information would be available for release should Mr. Mitchell proceed with an appeal to the TATC or attend an informal meeting. He could ask the enforcement manager at that meeting to see the documents. Mr. Mitchell asked Mr. Namazi to refer to Schedule A of the Notice and the description therein of the informal meeting. He said, “it doesn't say anywhere in this document that I would be given information or doesn't even say that I could request it, so how would a fellow know that?” Mr. Namazi agreed that the Notice did not say that, but he reiterated his statement that one could ask for the information at an informal meeting.

(4) Russell Kanhai

[14] Mr. Kanhai is an air traffic controller at the Langley Regional Airport with a total of 28 years of experience as a controller, including ten years' experience at Langley. He described the occurrence of March 8, 2015 as an aircraft without an ATC clearance having entered the control zone. He had to notify another aircraft of this risk to flight safety. Had he been able to establish radio contact with the pilot of aircraft FANQ, he could have turned him away from the other traffic, advising him that he was in Class C airspace without a clearance and just left it at that. But because he could not get in touch with the aircraft he believed there was a risk to flight safety and he felt obliged to file an infraction. The CADORS report was introduced as Exhibit M‑14.

[15] Exhibit M‑15 consisted of the recording of the ATC audio during the occurrence and Exhibit M‑16 pertained to the recorded video of radar returns synchronized with the ATC audio recording. (This Exhibit was only permitted to be introduced as evidence once recorded in a format that could be preserved and accessible in future by the Tribunal.) On the video, the Langley control zone is depicted as a circle with a three-mile radius centred on the Langley airport. Aircraft FANQ can be seen entering the control zone at the 1130 o'clock position, flying in a southwesterly direction at an elevation of 1,400 feet and at a groundspeed of 150 knots. Another aircraft, GIZW, is also present in the zone, flying in a westerly direction at 1,500 feet and at a groundspeed of 90 knots, close to exiting the zone at the western edge ten o'clock position. The other aircraft GIZW exits the zone to the west as the subject aircraft FANQ passes behind it.

[16] Mr. Kanhai said the cause of his concern was the difference in speed between the two aircraft observed in his control zone. The speed of the subject aircraft FANQ was 150 knots whereas the speed of aircraft GIZW was 90 knots—a 60-knot difference. Because of this, if FANQ had turned toward GIZW, there could have been reduced aircraft separation leading to a risk of collision.

B. Applicant

(1) Leslie Mitchell

[17] When the investigation began, Mr. Mitchell was convinced initially that he had not been in the Langley Class C control zone. He recalls proceeding from the Boundary Bay airport to a practice area to conduct aerobatics. However, weather conditions, with a cloud base below 2,000 feet, were such that he had to abandon his practice and return. As he did so, the weather conditions to the north and west had deteriorated to quite a low level. As he approached the narrow gap between the Langley control zone and the Pitt Meadows control zone (to the northwest), he was distracted by the deteriorating weather; the only reason he would have turned south when he did would have been to avoid low-level cloud.

[18] He said he was on the Langley tower radio frequency and heard the exchange between the tower and aircraft GIZW, thus convincing him that he was not in the zone because they were not talking to him.

[19] Mr. Mitchell said that while in Class E airspace (that airspace surrounding the Langley Class C airspace) he was “on transponder”, even though he was not required to. This shows he was not trying to maneuver surreptitiously; he knew he was visible. He was not trying to hide his actions.

[20] In cross-examination, he agreed that he was pilot-in-command of the aircraft and did not receive a clearance to enter the Langley Class C airspace. He was aware of the location of that airspace and the rules regarding the requirement to obtain a clearance to enter. He indicated he was very familiar with the route and estimated he had flown it in excess of 2,000 times.

[21] On re-direct he said his mistake was inadvertent. He had intended to fly around the control zone. While he admits entering the control zone he only flew through the western portion of it. Though understanding the air traffic controller's concern, it is his opinion that his actions did not compromise safety.

IV. ARGUMENTS

A. Minister

[22] The Minister's evidence shows that Mr. Mitchell was the pilot-in-command of aircraft C‑FANQ on a visual flight rules (VFR) flight on March 8, 2015.

[23] Screen shots of Nav Canada radar returns clearly show the subject aircraft entering, transiting and exiting the Langley Regional Airport Class C control zone at an altitude of 1,300 to 1,400 feet. The Langley Regional Airport Class C airspace extends to a three-mile radius from the airport and to an altitude of 1,900 feet. Therefore the aircraft was clearly within the Class C airspace.

[24] Mr. Mitchell has admitted that he entered the Class C airspace without a clearance. He said that he was very familiar with the area—that is, the location of the Class C airspace—and he should have been more situationally aware of his location in relation to it. As the pilot-in-command of the aircraft it was his responsibility to do so.

[25] The evidence shows that on the balance of probabilities, Mr. Mitchell, as the person operating a VFR aircraft, did enter Class C airspace without a clearance from the appropriate air traffic control unit, contravening subsection 601.08(1) of the CARs.

[26] Mr. Mitchell's defence is that upon completion of his practice aerobatic maneuvers, he may have been distracted by the presence of low-visibility weather conditions and did not hear communications from the Langley control tower. If Mr. Mitchell was concerned about a low cloud base and restricted visibility, the proper procedure would have been to contact the Langley tower and obtain a clearance or, in the alternative, he should have made sure he was outside the Class C airspace.

[27] For a defence of due diligence to succeed, it must be established that one took all reasonable care and was in no way negligent (R. v. Chapin, [1979] 2 S.C.R. 121). Mr. Mitchell's evidence falls well short of a defence of due diligence in that he did not do all that he could have done to avoid committing the offence.

[28] Inspector Namazi stated that it is not the practice of enforcement officers to provide evidence to alleged contraveners while an investigation is ongoing. There is no requirement to provide evidence as it is being collected. Witnesses are involved and there is every reason for investigators not to give evidence to those whom they are investigating during the course of their investigation. Even in criminal law, with the most stringent standard of disclosure, there is no requirement to provide disclosure in the midst of an ongoing investigation. Therefore, in this case, no issue of disclosure arises.

B. Applicant

[29] Mr. Mitchell submitted that although he entered the Class C airspace without a clearance, his actions were not dangerous. He heard the ATC controller say in evidence that his entry into the control zone could be dangerous, that the potential was there. Mr. Mitchell agreed it could be a potential safety issue.

[30] Mr. Mitchell's central objection was the lack of timely disclosure by Transport Canada. He said it was “absolutely appalling” that information is not disclosed to the person being investigated before the findings are made. There is no reason for such a policy. It is terrible that that can happen, whether or not it is legal.

V. DISCUSSION OF SANCTION

A. Minister

[31] The Minister's representative referred to the case of Minister of Transport v. Wyer, [1988] CAT file no. O‑0075‑33, where the Civil Aviation Tribunal's appeal panel set out the principles of determining an appropriate penalty, namely denunciation (the repudiation of wrongful conduct), deterrence to both the individual and the broader aviation community and rehabilitation, as well as enforcement recommendations as another factor to be considered. Reference was also made to Bickerstaff v. Minister of Transport, 2014 TATCE 25 (appeal), as it relates to the consideration of mitigating factors.

[32] The Minister submitted that the monetary penalty imposed in this case was fair and within the goal of ensuring future compliance and aviation safety. Neither Mr. Mitchell's lack of an aviation record nor his difficulty with avoiding a lower cloud base are sufficient to reduce the fine levied by the Minister.

B. Applicant

[33] The only mitigation Mr. Mitchell put forward was “the effect of [his] concentration to stay clear of the weather”.

VI. ANALYSIS

(1) Violation of CARs 601.08(1)

[34] The standard of proof imposed on the Minister is that of “proof on the balance of probabilities”, the standard specified in subsection 15(5) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29. The Minister must prove the elements of the violation of subsection 601.08(1) of the CARs as it was alleged in the Notice of Assessment of Monetary Penalty:

1) on or about March 8, 2015, near Langley Regional Airport (CYNJ), Mr. Mitchell operated a VFR aircraft as the pilot-in-command;

2) the VFR aircraft was an amateur-built Avia Akro with registration C‑FANQ;

3) Mr. Mitchell entered Class C airspace; and

4) Leslie Mitchell did not receive prior clearance from the appropriate ATC unit (CYNJ ATC unit).

[35] The applicant, in testimony, did not dispute the factual elements of the violation; that is to say, he did not contest that he committed the offence. He agreed that the evidence showed that he was the pilot-in-command of an aircraft on a VFR flight and entered Class C airspace without first obtaining clearance to enter from the appropriate air traffic control unit, thus contravening subsection 601.08(1) of the CARs.

[36] Mr. Mitchell objects to what he considers the lack of timely disclosure of evidence of the Minister's case against him. Specifically, he objects to the refusal to release documents and other information to him prior to the charge being laid against him. In this regard there are two issues to be addressed:

(a) Issue #1: When is the Minister required to disclose his or her case to the alleged offender, and did the Minister meet that obligation?

[37] Emails that had been exchanged between the applicant and the Minister prior to the laying of the charge were not introduced into evidence. In the absence of these emails it is impossible to say what material was disclosed and when.

[38] Nevertheless, since direct evidence was provided as to the Minister's policy of disclosure, it is important to clarify the obligation of the Minister. The Civil Aviation Tribunal's 1994 appeal decision in Baudisch v. Minister of Transport, CAT file no. W‑0182‑02, examines the duty of Transport Canada to make disclosure to a document holder. Baudisch is particularly relevant because it provides guidance as to the applicability of disclosure obligations laid out in R. v. Stinchcombe, [1991] 3 S.C.R. 326. Quoting from Baudisch:

In particular there is a general duty on the part of Transport to disclose all material it proposes to use before the Tribunal and especially all evidence which may assist the document holder, even if Transport does not propose to adduce it.

[…]

Disclosure should occur, if requested, immediately after the imposition of a monetary penalty or a suspension. Early disclosure will enable a document holder to determine whether a review by the Tribunal is necessary and may result in fewer reviews by the Tribunal. [Emphasis added.]

[39] Although not clearly established in this case, it appears that Transport Canada provided disclosure to the applicant at some time around the issuance of the Notice of Assessment of Monetary Penalty and thus the disclosure obligation as established under Baudisch was met.

(b) Issue #2: In this case, a Transport Canada aviation enforcement inspector articulated a policy of disclosure by the Minister. Is the policy, as stated, compliant with the legal obligation of disclosure?

[40] Quoting from Inspector Namazi's direct evidence, the policy of disclosure of the Minister is as follows:

…the information would be available for release should Mr. Mitchell proceed with an appeal to the TATC or attend an informal meeting. He could ask the Enforcement Manager at that meeting to see the documents.

[41] Although no other evidence was provided of this policy, it is at odds with the disclosure obligation under Baudisch, which specifies that disclosure should be available upon request, without the qualification that one must make an appeal to the TATC or attend an informal meeting with Transport Canada.

[42] Mr. Mitchell asked a very good question as he referred to Schedule A of the Notice of Assessment of Monetary Penalty, which provides the option of attending an informal meeting: “It doesn't say anywhere in this document that I would be given information or doesn't even say that I could request it, so how would a fellow know that?”As he pointed out, Schedule A does not say that he could simply come to the meeting, ask for disclosure and leave to consider his options for appeal. In any event, while the alleged offender has the option to attend an informal meeting or not, the Minister does not have a choice but to make disclosure available.

[43] Clearly the policy of disclosure of the Minister as articulated in this case is not compliant with the requirement specified in Baudisch. Nonetheless, as it turned out, Mr. Mitchell did proceed with a request for a review by the TATC and did obtain disclosure. Thus Transport Canada met its disclosure obligation, regardless of its policy being at odds with Baudisch.

[44] To conclude the matter of disclosure, it appears this self-represented applicant acted in accordance with the cautions contained in the Letter of Investigation he received, exercising his right to let the Minister make out the case against him without his assistance. As a consequence, he didn't know the case against him. In order for him to know it, the Minister required Mr. Mitchell to initiate a request, not for disclosure, as per Baudisch, but for a review by the Tribunal or for an informal meeting. In any event, his right to ask for and obtain disclosure “if requested, immediately after the imposition of a monetary penalty” (Baudsich) was not clear to him.

[45] To the applicant's question regarding how one might know that one can ask for disclosure or is supposed to receive information (i.e., disclosure), the answer is that the Minister has a duty to disclose all relevant evidence and this duty is triggered whenever there is a reasonable possibility of the information being useful to the alleged offender in making full answer and defense (R. v. Dixon, [1998] 1 S.C.R. 244, paragraph 21). The alleged offender doesn't need to request or ask, this is an obligation resting upon the Crown to inform and disclose all material (Dixon, paragraph 22) in a timely manner. Therefore, in the case at hand, the Minister's duty to disclose extended to informing the applicant that disclosure was available upon request.

[46] As an obiter dictum, I suggest that it would be in the interest of the parties, and highly recommended for this type of administrative monetary penalty regime, that more explicit information be given to alleged offenders about their right to disclosure. For instance, information such as that contained in Schedule A of the Notice of Assessment of Monetary Penalty could more accurately reflect the ability, as specified in Baudisch, for the alleged offender to request and obtain disclosure immediately after being charged with a violation; further, it should be made clearer that such ability to obtain disclosure in an informal meeting is not contingent upon an obligation to make any representation to the Regional Manager of Aviation Enforcement, as presently appears to be the case. As mentioned in R. v. O'Connor, [1995] 4 S.C.R. 411, at paragraph 101, “full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials but rather with seeing that justice is served”.

(2) Amount of the Sanction

[47] Two issues were raised as possible mitigation of the sanction. The first is Mr. Mitchell's 38 years of active, infraction-free flying. The second is a momentary distraction to his situational awareness created by the presence of low cloud and reduced visibility in the area.

[48] Mr. Mitchell has an excellent aviation history. He presents as a pilot who holds himself to a high operating standard and I accept that this occurrence was unintentional. To a degree, I accept that he could have been momentarily distracted by concentrating on weather avoidance while flying through the narrow gap between the Langley airport Class C airspace and the Pitt Meadows Class C airspace to the northwest. He could have approached this area with more prudence and paid more attention to his flight path. Mr. Mitchell is an aerobatic pilot and knows the result of momentary distraction.

[49] I have considered, and do not minimize, the risk to flight safety raised by the ATC controller. Certainly safety would have been compromised and a risk of reduced aircraft separation would have been created by Mr. Mitchell's fast-moving aircraft had he turned west while in the Class C airspace. Fortunately, on that day, he continued on a straight track passing well behind the other aircraft. The other aircraft was not instructed to change course to avoid C‑FANQ. After consideration of these factors, I reduce the sanction to $550.

VII. DETERMINATION

[50] The Minister of Transport has proven, on the balance of probabilities, that the applicant, Leslie Mitchell, contravened subsection 601.08(1) of the Canadian Aviation Regulations. The monetary penalty of $750 is reduced to $550.

[51] The assessed penalty of $550 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.

October 26, 2016

(Original signed)

Arnold Olson

Member