Decisions

CAT File No. C-0398-33
MoT File No. 6504-P131478-024790

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Captain Glenn D. Wakal, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s.7.7
Aircraft Operating Criteria Noise Restrictions Order (Air Navigation Order, Series II, No. 27), s.4(2)d)

Noise Restrictions, Evidence


Review Determination
William C. Pearson, Q.C.


Decision: February 28, 1996

The Minister's allegation is dismissed.

A Review Hearing on the above matters was held January 11 and 12, 1996 at the Department of Justice in the city of Winnipeg, Manitoba.

BACKGROUND

Three cases were heard together in Winnipeg, Manitoba, on January 11 and 12, 1996. By agreement, the Minister and the Respondents presented evidence special to each case and general as to all three allegations. Following the close of evidence on Friday, the parties requested that they be allowed to submit written argument as follows:

(a) by the Minister by January 19;

(b) by the Respondents by January 26; and

(c) by Reply of the Minister by February 2.

I should like to express my thanks to Mr. Pratt and Ms. Stermer for their able arguments and presentation of evidence in what is a most difficult and technical case.

In preparing my decision I will try to indicate when I am dealing with evidence specific to a particular allegation and when it is evidence general to all allegations.

The three Respondents are all alleged to have committed the same offence, though on different days, at different times and in different jet aircraft, and on the same runway (31) at the Winnipeg Airport.

The Notices of Assessment of Monetary Penalty read as follows:

(Captain Glenn D. Wakal / C-0398-33)

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

The provisions of Air Navigation Order Series II No. 27, para. 4(2)(d) in that on June 22, 1994 at approximately 1756 UTC, you did unlawfully operate an aircraft to wit: Canadian 660 a Boeing 737 aircraft registration C-GCPN at or near Winnipeg International Airport when not in accordance with the applicable noise abatement procedures and noise control requirements set out in the Canada Air Pilot, including the procedures and requirements relating to arrival procedures in that you failed to follow the noise abatement procedure for arrival to runway 31.

(Captain James Boyd Wilson / C-0411-33)

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Air Navigation Order Series II No. 27 Para 4 (2)(d) in that on July 25, 1994 at approximately 0331 UTC, you did unlawfully operate an aircraft to wit: Air BC 951, a British Aerospace BAE 146 aircraft registration C-FBAO, at or near Winnipeg International Airport when not in accordance with the applicable noise abatement procedures and noise control requirements set out in the Canada Air Pilot, including the procedures and requirements relating to arrival procedures in that you failed to follow the noise abatement procedure for arrival to runway 31.

(Bradley Ian Murray / C-0412-33)

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Air Navigation Order Series II No. 27 Para 4(2)(d) in that on August 28, 1994 at approximately 1905 UTC, you did unlawfully operate an aircraft to wit: TAF1310, a Fokker F28 aircraft, registration C-GTAH, at or near Winnipeg International Airport when not in accordance with the applicable noise abatement procedures and noise control requirements set out in the Canada Air Pilot, including the procedures and requirements relating to arrival procedures in that you failed to follow the noise abatement procedure for arrival to runway 31.

I should first like to consider the Charter defence offered by the Respondents under section 15 of the Canadian Charter of Rights and Freedoms.

This section reads as follows:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Respondents allege that Inspector Brown, a witness for the Minister and the person in charge of the investigation against the three pilots accused of a contravention, acted contrary to the provision of subsection 15(1) of the Charter.

Inspector Brown sent out a number of letters to a large number of pilots who were in breach of the said noise abatement procedures. In the letter he warned the addressee that any statement they made, could and would be used against them. Those pilots who phoned Inspector Brown and admitted the infractions were not accused of a contravention. Those however who responded through counsel were accused and prosecuted.

No evidence was offered by the Minister as to why this procedure was used, other than that of Inspector Brown that he wished to talk to the pilots. It seems to me unreasonable that, if pilots responded through counsel and presumably then did not provide direct evidence or admission of having committed the offence, they should be accused of a contravention.

One further step is required, and that is to examine if the Air Navigation Order is discriminatory. It clearly requires all the pilots to comply with noise abatement procedures. There is no discrimination therefore in the law. The discrimination, if any arises, is in the administration of the law (Air Navigation Order).

As I understand the case law, the discrimination must be in the law. Thus, I find no discrimination as set forth in subsection 15(1) of the Charter. The treatment of the pilots is however not fair.

Turning next to the Respondent argument issue:

The Minister has failed to meet the burden of proof as required at Section 7.4(5) of the Aeronautics Act in that:

a) The Minister has failed to establish the trustworthiness and accuracy of the electronic print outs at Exhibits M-3 (Wakal), M-3 (Murray) and M-2 (Wilson) on which virtually his entire case rests.

To review the evidence on this point: The system as I understand it is that, where the pilot is to land the aircraft on runway 31, he must, if he is to comply with noise abatement procedure, turn onto final south of or directly over H-NDB. If his aircraft turns onto final inside the beacon, he is in breach of the ANO.

To ensure the pilot's compliance, the ramp radar identifies the aircraft by its transponder and then feeds the computer with a series of longitude and latitude plots. The computer then plots these by a series of dots which theoretically shows the track flown by the aircraft. In each case this track turns onto final inside the H-NDB. This evidence is derived from nonhuman sources (electronic devices).

The onus is on the Minister to show by positive evidence that the equipment is in fact functioning accurately and correctly. The Minister's evidence did not, in my opinion, show that the equipment had been tested on each day alleged in the accusations both before and after the alleged contravention. While the Respondents attempted to show that there could be potential failures in the equipment, they have no such onus in the absence of the Minister's evidence.

Two cases cited by counsel for the three Respondents I think are relevant. These are "Ville de Baie Comeau v. Yves D'Astous Quebec Court of Appeal (1992) 9 MVR (3d) 189" and "R v. Daniel Chow Alta Court of Appeal (1991) 33 MVR (2d) 171".

In the latter case the following appears:

Per curiam: – This case can be resolved by resort to the application of fundamental principles surrounding the potential admissibility of hearsay evidence. The disputed evidence here is not the photograph of the suspected vehicle, but the mechanical recording on the photograph of its speed as measured by the radar device. . . . such evidence may still be receivable if the surroundings reveal that the evidence is both accurate and enjoys circumstantial guarantees of trustworthiness.

In the former judgment, the following appears:

However, the prosecution is required to establish the accuracy of the particular instrument used in each case. The demonstration that the operator is qualified, that his device was tested before and after its use, and that the test showed that the instrument was accurate establishes prima facie evidence of accuracy.

DETERMINATION

There is no evidence that the ramp radar and computer were so tested. I am left therefore to query whether such evidence is admissible. As there is no evidence of such testing, I cannot admit same. Without such evidence, the Minister's case must fail. The allegation against each of the three Respondents is therefore dismissed.

William C. Pearson, Q.C.
Member
Civil Aviation Tribunal


Appeal decision
Gordon R. Mitchell, Robert J. MacPherson, Suzanne Jobin


Decision: November 19, 1996

The Appeal is denied. We find that the Minister did not prove that the Respondent contravened paragraph 4(2)(d) of Air Navigation Order, Series II, No. 27.

An Appeal Hearing on the above matters was held September 24, 1996 at 13:00 hours at the Department of Justice in Winnipeg, Manitoba. The three cases were heard together while the Minister and the Respondents presented arguments special to each case and general as to all three allegations.

BACKGROUND

The three Respondents are all alleged to have committed the same offence, on different dates, at different times and in different aircraft. All the alleged contraventions were committed on runway 31 of the Winnipeg Airport. The Minister of Transport alleged that the three Respondents have contravened paragraph 4(2)(d) of the Air Navigation Order, Series II, No. 27.

CAPTAIN D. WAKAL

On October 18, 1994, the Minister of Transport issued a Notice of Assessment of Monetary Penalty to Captain Glenn D. Wakal. According to the terms of the Notice, the contravention is alleged to have taken place on June 22, 1994 at approximately 1756 UTC aboard a Boeing 737 registered C-GCPN. In his Notice, the Minister stated that the Respondent had not operated the aircraft in accordance with the applicable noise abatement procedures and noise control requirements.

CAPTAIN JAMES BOYD WILSON

On December 30, 1994, the Minister issued a Notice of Assessment of Monetary Penalty to Captain James Boyd Wilson. According to the Notice, the contravention is alleged to have taken place on July 25, 1994 at approximately 0331 UTC aboard a British Aerospace BAE 146 aircraft registered C-FBAO. In the Notice, the Minister stated that the Respondent had not operated the aircraft in accordance with applicable noise abatement procedures and noise control requirements.

BRADLEY IAN MURRAY

On January 10, 1995, the Minister issued a Notice of Assessment of Monetary Penalty to Bradley Ian Murray. According to the Notice, the contravention is alleged to have taken place on August 28, 1994 at approximately 1905 UTC aboard a Fokker F28 aircraft, registered C-GTAH. Once again the Minister stated that the Respondent had not operated the aircraft in accordance with applicable noise abatement procedures and noise control requirements.

In those three cases the Minister assessed an administrative penalty of $250.00 each which the Respondents refused to pay. A Review Hearing was held January 11 and 12, 1996 in Winnipeg, Manitoba before William C. Pearson, Q.C.

At the Review Hearing the Respondents alleged that the Minister acted unfairly and in a discriminatory manner towards three pilots, contrary to the provision of subsection 15(1) of the Canadian Charter of Rights and Freedoms. They argued that on this basis the charges should be dismissed. Mr. Pearson, while recognizing that the treatment of the pilots by a Transport Canada inspector was not fair, found no grounds for the application of subsection 15(1) of the Charter.

In his determination, the Member rejected the Minister's allegations against each of the three Respondents finding that the evidence presented by the Appellant was not admissible. The Member stated the following:

The onus is on the Minister to show by positive evidence that the equipment is in fact functioning accurately and correctly. The Minister's evidence did not, in my opinion, show that the equipment had been tested on each day alleged in the accusations both before and after the alleged contravention.

The Minister's evidence derived exclusively from electronic devices.

THE LAW

Paragraph 4(2)(d) of the Air Navigation Order, Series II, No. 27 stipulates the following:

(2) No person shall operate an aircraft at or in the vicinity of an aerodrome except in accordance with the applicable noise abatement procedures and noise control requirements set out in the Canada Air Pilot or Canada Flight Supplement, including the procedures and requirements relating to

(...)

(d) arrival procedures;

GROUNDS FOR THE APPEAL

The Minister of Transport appealed the review determination on the following grounds:

1. That the Member failed to appreciate and attach any significance to the evidence of the witness Brown, who indicated that many pilots contacted him directly with an explanation and one was not accused of a contravention, however others were, and save for a few who chose to proceed to the Civil Aviation Tribunal, these others paid their monetary penalties or were counselled;

2. That the Member failed to appreciate and attach any significance to the evidence of witness Brown, who explained why he used the investigative procedure that he employed, and further, the Member failed to appreciate or attach any significance to the evidence of witness Brown, who stated that he was in possession of evidence which indicated that violations in these matters had been committed and when Counsel for the Respondents offered no explanation or no reasonable explanations, Inspector Brown had no option but to recommend that sanctions be levied;

3. That the Member erred in finding that the treatment of the Respondents was not fair and the Member failed to appreciate and attach any significance to the evidence of witness Brown who indicated that other pilots who responded and did not admit to the alleged violation or offered unreasonable explanations were sanctioned in the same manner as the Respondents;

4. That the Member erred in finding that the equipment (electronic devices) had not been tested on each day alleged in the accusations both before and after the alleged contravention and further, the Member failed to appreciate and attach any significance to the evidence of witness Jacob who indicated, at some length, that the RAMP Radar is an extremely sophisticated electronic device which conducts a self-diagnostic test every time the radar antenna sweeps through 360 degrees;

5. That the Member failed to appreciate or attach any significance to the evidence that the Noise Monitoring Computer produced "Noise Track" documents showing that all flights except those issued with contravention Notices flew the lawful procedure directly over the H-NDB and terminated on runway 31 at Winnipeg International Airport;

6. That the Member erred in law in his interpretation of and the application of the facts to the cases cited by counsel for the Respondents;

7. That the Member erred in not admitting into evidence Exhibits M-3 (Wakal), M-3 (Murray) and M-2 (Wilson) as the Tribunal only has the authority to refuse the admission of evidence that would be inadmissible in Court by reason of any privilege under the law of evidence ...

The Appellant claims that the Minister has met the burden of proof and asks the Tribunal to overturn the decision of first instance.

The Respondents maintain that the Minister has failed to meet the burden of proof as required by the Aeronautics Act and request that the Tribunal uphold Mr. Pearson's determination.

DISCUSSION

The main issue is whether the member Pearson erred in ruling that he could not admit the technological evidence presented by the Minister of Transport. The Respondents argued that the Minister has failed to establish the trustworthiness and accuracy of the whole system and consequently the evidence on which rests the entire cases was unreliable.

Transport Canada maintains that the evidence presented was accurate and trustworthy and should have been accepted by the Tribunal. To that end the Minister of Transport maintains that there was no evidence that the RAMP Radar was not serviceable and perfectly accurate on the days of the alleged infractions. He also argues that the RAMP Radar feed to the noise monitoring computer and the information received by that computer were as accurate as the Ramp radar information itself, as the information was simply digitalized. Finally he concluded that the Noise Track documents were accurate and evidence as to their accuracy was uncontradicted.

The Aeronautics Act is clear. The burden of proof is on the Minister to show by positive or real evidence that the equipment used was trustworthy and reliable. In the absence of evidence by the Minister, the Respondents did not have to prove that the equipment used was in any way defective.

After reviewing the jurisprudence and authorities on the nature of evidence required in similar cases, we believe that the Minister of Transport had to establish the scientific validity of this technology.

To do so the Minister of Transport had to demonstrate by expert witnesses that the technology used was generally accepted as accurate and reliable by the civil aviation community. He also had to prove by expert witnesses how the system produces its results, the requirements of care to be used in operating the system and the different testing required to determine whether the RAMP Radar, the computer and the printer effectively produce desired and reliable results. Evidence on the margin of error that may exist in the results generated and evidence that the information gathered by the RAMP Radar was properly fed to the computer and then to the printer. There should have been independent empirical evidence as to the accuracy of the whole system. Finally, the Minister had to prove that the persons operating the system had the required level of skill and expertise to do so. No such evidence was presented at the Hearing.

Without those requirements being met, the radar-computer generated evidence submitted should not have been admitted. Mr. Pearson rightfully refused to admit Exhibit M-3 Wakal, Exhibit M-3 Murray and Exhibit M-2 Wilson. However, with due respect we do not find that the requirements set in Ville de Baie Comeau v. Yves D'Astou, Quebec Court of Appeal (1992)(3d) 189 applied in cases at hand.

The Appeal Panel believes that in the matters before the Tribunal the degree of unreliability of the evidence was such that it justified rejection on the basis that to have received it would have offended administrative law principles of fairness and equity. We have to keep in mind that the evidence presented by the Appellant constituted hearsay evidence and to be receivable, this evidence had to be proven accurate and should have enjoyed circumstantial guarantees of trustworthiness.

Having examined the evidence on record and considered all the arguments and submissions of the parties, we concluded that the Minister of Transport did not prove that the Respondents contravened paragraph 4(2)(d) of Air Navigation Order, Series II, No. 27.

There is no need to address any other questions raised by the Appellant in these matters.

The Appeal is denied.

Reasons for Appeal Determination by:

Suzanne Jobin, Member

Concurred:

Robert MacPherson, Member
Gordon R. Mitchell, Member

COMMENTS BY MEMBER, ROBERT MACPHERSON

ATC Clearances v. Procedures

Transport Canada operates the Air Traffic Control (ATC) system with the benefit of radar, National Flight Data Planning System (NFDPS) and Air Traffic Controllers. The ATC system is able to position an aircraft in such a manner as to comply with both clearances issued and the procedures a pilot must follow. In these cases, it is the writer's opinion that the ATC clearances, issued by Transport Canada and accepted by a pilot, would take precedence over procedures published by Transport Canada. Transport Canada (ATC) "handles" flights from takeoff to touchdown. ATC observes flight progress via radar. ATC issues clearances based on traffic and weather. ATC has the ability and the mandate to place an aircraft in a position to comply with procedures. This mandate was not followed in the three cases before us. It is noted that Transport Canada has since changed its approach procedures at the Winnipeg International Airport.

Robert MacPherson