Decisions

CAT File No. C-1464-33
MoT File No. RAP-6504-P242509-029317

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Gerard François Joseph Bourgault, Respondent

LEGISLATION:
Aeronautics Act,S.C., c.A-2, s.7.7
Canadian Aviation Regulations, SOR/96-433, s.602.31(1)(b)

IFR Flight, Mitigating Circumstances, Sentencing, Air Traffic Control Clearance


Review Determination
David S. Ahmed


Decision: September 24, 1997

I agree with the Minister of Transport's decision to assess a monetary penalty against Mr. Bourgault for an IFR violation, but because of mitigating circumstances I reduce the monetary penalty from $125.00 to $50.00. This amount, made payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above entitled matter was held Tuesday, August 19, 1997 at 10:00 hours at Prince Albert, Saskatchewan.

BACKGROUND

Mr. Bourgault is a private pilot with an instrument rating who has more than 1,000 hours of flying time. It would appear that he flies regularly, both for recreational and business purposes, and conducting some of his flights under Instrument Flight Rules is not unusual for him.

On December 7, 1996, he was flying as pilot-in-command of a Cessna P210N. The flight had commenced at Winnipeg International Airport and the destination was St. Brieux, Saskatchewan. It appears that St. Brieux is an uncontrolled airport and Saskatoon had been designated as his alternate. Mr. Bourgault filed an IFR flight plan and had selected flight level 200. Transport Canada alleged that, on nearing St. Brieux, Mr. Bourgault started his descent out of flight level 200 without obtaining a clearance. After what would appear to be a thorough investigation, Transport Canada assessed a monetary penalty of $125.00 against Mr. Bourgault as follows:

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):

Canadian Aviation Regulation 602.31(1)(b), in that, at approximately 0015 hours UTC on or about December 7, 1996, at or near Yorkton, Saskatchewan, being the pilot-in-command of a Cessna P210N, bearing Canadian registration marks C-FXCN, you did unlawfully fail to comply with all of the Air Traffic Control clearances received and accepted by you, namely, you left your cleared altitude of 20,000 feet while in IFR flight without a clearance from ATC.

Mr. Bourgault was told that he must pay this monetary penalty on or before May 20, 1997 but failed to do so which is the reason for this Review Hearing requested by Transport Canada.

TRANSPORT CANADA'S EVIDENCE

The Case Presenting Officer for Transport Canada was Inspector R.D.J. Brown. He had two witnesses, Inspector Fred Pratt and Inspector J.K. Welwood. Mr. Brown started off by informing the hearing that he would be able to prove that Mr. Bourgault began his descent out of flight level 200 without obtaining a clearance. He apologized for the fact that the original investigator on the case was ill and consequently could not attend the Review Hearing but that Inspector Fred Pratt would be standing in for him. He also introduced Inspector Jim Welwood as an expert on IFR flight procedures. He then called upon Inspector Pratt to give evidence, and he was duly sworn in.

INSPECTOR FRED PRATT'S EVIDENCE

Altogether, Transport Canada produced eleven exhibits which were filed accordingly. The earlier exhibits confirmed that Mr. Bourgault was indeed pilot-in-command of the aircraft in question and on the IFR flight mentioned before. Three abbreviated audio cassette tapes were also produced and heard as evidence. The content of these tapes is somewhat lengthy, so I will try to summarize the events. Prior to commencing his descent, Mr. Bourgault made several unsuccessful attempts to obtain clearance for the descent. He did eventually manage to reach Regina on frequency 122.2 and requested that they relay a message to Winnipeg that he intended to commence his descent but was unable to receive a reply from them. Consequently, he let a few minutes pass and began his descent anyway.

INSPECTOR WELWOOD'S EVIDENCE

Mr. Welwood was duly sworn in and gave us his impressive qualifications in the field of the Aviation Industry and, in particular, with IFR matters. He was accepted by all parties as an expert in the field of IFR procedures. Inspector Welwood's testimony was in a question and answer format, the questions being asked by Inspector Brown.

Basically, Inspector Welwood emphasized the hazards of descending from a predesignated flight level without proper clearance and did not accept the fact that Mr. Bourgault had a true communications failure. He pointed out that even if this were the case, Mr. Bourgault did not select Code 7600 on his transponder prior to his descent which, of course, is normal procedure. With the aid of aeronautical charts, Inspector Welwood was able to demonstrate the likelihood that there could be opposite direction traffic encountered during the course of Mr. Bourgault's descent.

MR. BOURGAULT'S EVIDENCE

Mr. Bourgault gave the appearance of being a very pleasant, sincere person who obviously takes his flying very seriously. He admitted to descending from flight level 200 without an authorized clearance, but in his opinion mitigating circumstances were that he did try on several occasions to obtain such a clearance from an appropriate centre. He felt eventually that he was experiencing communication failure and decided to commence his descent without proper authorization. He felt that, being under a certain amount of stress, he was the right person to make that decision at that time. He did acknowledge that the fact that he had not squawked Code 7600 on the transponder was an oversight. It is to be noted, as Mr. Bourgault pointed out, that at the time that he commenced his descent he was in VFR conditions. He maintained that during all times he kept a sharp lookout for other traffic.

Later, Mr. Bourgault showed us evidence that he had, as feasible as possible, completely replaced the radios in his aircraft at considerable expense. He also showed us evidence that he had installed a new engine in his aircraft and, I think, that the point that he was trying to emphasize was that he did not spare any effort to keep his aircraft well maintained.

CONCLUSION

I do believe that Mr. Bourgault made every effort to try to contact an appropriate Air Traffic Control Unit or Flight Service Station prior to beginning his descent. I do believe that there was a certain amount of stress at the time, and he decided to commence his descent without authorization in VFR conditions. I do believe that his failure to squawk 7600 on the transponder was an oversight and not a deliberate action.

DETERMINATION

I agree with the Minister of Transport's decision to assess a monetary penalty against Mr. Bourgault for an IFR violation, but because of mitigating circumstances I reduce the monetary penalty from $125.00 to $50.00.

Dr. David S. Ahmed
Member
Civil Aviation Tribunal