Decisions

CAT File No. C-1584-33
MoT File No. RAP6504-P338994-030243

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Jeffrey Erhard Albin Schroeder, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 3(1), 7.7, 7.9(2)
Canadian Aviation Regulations, SOR/96-433, s. 101.01(1), 602.96(3)(c), 602.14(2)(a)(i), 602.15

Failure to Appear at Hearing, Contradictory Evidence, Built-up Area, Approach, Affidavit, Low Flying, Failure to Make Turns to Left, Statements, Takeoff, Traffic Circuit


Review Determination
Allister W. Ogilvie


Decision: June 16, 1998

I uphold the Minister's decision. The Minister has proven, on a balance of probabilities, all elements of the offences on both Count #1 and Count #2. The Minister's assessment of a monetary penalty of $250 for each count is confirmed. The total amount of $500 is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.

A Review Hearing on the above matter was held Tuesday, May 26, 1998 at 11:00 hours in the community of Red Sucker Lake, Manitoba.

BACKGROUND

Red Sucker Lake is situated in Northern Manitoba. It is the home of the Red Sucker Lake First Nation's people. The community is accessible by air or winter road. The settlement is located on the North Shore of Red Sucker Lake. The airstrip is located immediately adjacent to the community, on the community's northern side.

On September 2, 1997, an aircraft approached Red Sucker Lake Aerodrome from the south, overflying the community in its approach. Upon departure the aircraft once again overflew the community on its return flight to the south. Those flights resulted in the following allegations:

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):

COUNT #1: Canadian Aviation Regulation 602.96(3)(c) in that at approximately 15:27 hours local, on or about September 2, 1997, at or near Red Sucker Lake, Manitoba, being the pilot-in-command of a Curtiss Wright C46F, bearing Canadian registration marks C-GIBX, operating in the vicinity of an aerodrome, to wit Red Sucker Lake Aerodrome, you did unlawfully fail to make all turns to the left when operating within the aerodrome traffic circuit.

COUNT #2:

FURTHER, in that at approximately 15:48 hours local, on or about September 2, 1997, at or near Red Sucker Lake, Manitoba, you did unlawfully operate an aircraft, to wit a Curtiss Wright C46F, bearing Canadian registration marks C-GIBX, over the built up area of the settlement of Red Sucker Lake, Manitoba, at an altitude of less than 1,000 feet above the highest obstacle within a horizontal distance of 2,000 feet from the aeroplane, a violation of Canadian Aviation Regulation 602.14(2)(a)(i).

A Notice of Assessment of Monetary Penalty was sent to the alleged offender. Payment was not received, and therefore a Notice of Review Hearing was issued in the matter, which resulted in this hearing.

PRELIMINARY MOTION

At the outset of the hearing, Mr. Brown, case presenting officer for the Minister of Transport, made a motion to amend Count #1 by the addition of the word "aircraft" immediately after the words "a Curtiss Wright C46F." The motion was granted and the count so modified.

A letter from Mr. Schroeder made available to me through the Minister indicated that Mr. Schroeder was unable to attend the hearing in person due to work commitment.

Under subsection 7.9(2) of the Aeronautics Act, where a person fails to appear before the Tribunal at the time and place set out in the request, the member of the Tribunal shall consider all the information that is presented to him by the Minister in relation to the contravention referred to in the request.

Pursuant to that section I asked the Minister to present all the information he had regarding the alleged contravention.

EVIDENCE

Evidence regarding the allegations which I have accepted was provided by three persons who witnessed certain segments of the flight and by the Transport Canada inspector who investigated the occurrence.

Mr. Anthony McLellan and Mr. Dave Neepin are both employees of the Province of Manitoba working for the Airport and Marine Division who are assigned to Red Sucker Lake Aerodrome. Each witnessed parts of the flight in question and on the same day both drafted Aircraft Incident Reports. Both gentlemen identified the aircraft as a Curtiss C46F, C-GIBX, silver grey with red wing tips. Their testimony at the hearing was consistent with their written incident reports.

Mr. McLellan witnessed the aircraft's arrival and departure. His testimony established that on arrival the aircraft flew at less than 100 feet above ground over the aerodrome and having passed over the airstrip commenced a right-hand turn coming around for an approach and landing on runway 26. Mr. McLellan subsequently approached the pilot, whom he identified as Mr. Schroeder.

Both gentlemen witnessed the departure. Their evidence establishes that the aircraft took off from runway 08 and that, at about 800 feet past the overrun of runway 26, the aircraft commenced a hard left bank to the North. It continued to come around to a heading which took it over the airstrip, again at an altitude of less than a 100 feet above the ground. Mr. McLellan witnessed it proceeding in a southerly direction, overhead the community.

Their testimony places the aircraft approaching at about 15:27 hours and departing at 15:48 hours.

Ms. Julia Harper was employed by Perimeter Airlines on September 2, 1997 and was in Perimeter's facilities at the time. From her vantage point at the window, she saw the aircraft approach overhead the community at a height she thought to be about twice that of the buildings. She also saw it depart at about the same height, overflying the community in a southerly direction.

The Aircraft Incident Reports filed by the witnesses were forwarded to Transport Canada which commenced an investigation. Mr. Hiscock, the Transport Canada investigator, obtained a Certificate of Registration for aircraft C-GIBX identifying it as a Curtiss Wright aeroplane, C46F, owned by Commando Air Transport Inc. of Winnipeg, Manitoba. He requested and received from the owner photocopies of the Aircraft Log Book and Maintenance Record for September 2, 1997.

For that date the log shows J. Schroeder as crew, with his signature as Captain. Trips are shown from Winnipeg to Island Lake to Red Sucker Lake to Winnipeg. Departure from Winnipeg is 16:45 UTC. Time down in Winnipeg is 20:20 UTC. Arrival in Red Sucker is 19:08 hours and departure is 19:35 hours.

Mr. Hiscock acquired Transport Canada's Winnipeg International Airport Daily Air Traffic Record Itinerant Movements for September 2, 1997 which shows aircraft C-GIBX departing Winnipeg at 17:22 UTC and arriving at 22:28 UTC.

An excerpt from the Canada Flight Supplement, (C.F.S.) illustrating Red Sucker Lake Aerodrome was produced. Mr. Hiscock testified that it showed no indication of right-hand circuits and stated that if right-hand circuits were in effect it would be noted in the Supplement.

That right-hand circuits are noted in the C.F.S. is also shown by Exhibit M-11, a passage from the Transport Canada Flight Training Manual[1], Exercise Seventeen, "The Circuit", provided under the subheading "Right Hand Circuits":

The standard direction at any airport traffic circuit is left hand. However, exceptions occur where traffic conflicts with other airports, or hazardous terrain necessitate the adoption of a right-hand pattern, for an entire airport or for specific runways. The exceptions are listed in the Canada Flight Supplement.

The page from the C.F.S. illustrating the Red Sucker Lake airstrip shows that it is north of and immediately adjacent to the community.

Mr. Schroeder did not attend the hearing. The Minister gave me a typewritten statement purported to be from Mr. Schroeder in which he indicated that he could not be present. The statement was an explanation of the actions that he took that day. However, it was not in the form of an affidavit nor was it attested to in any manner. In Mr. Schroeder's absence, the content of the statement could not be subject to cross-examination. Although relevant to the proceedings, there was no way to establish the statement's reliability. Consequently I was unable to accept it as evidence.

THE LAW

The Canadian Aviation Regulations (CARs) provide:

602.96 (1) This section applies to persons operating VFR or IFR aircraft at or in the vicinity of an uncontrolled or controlled aerodrome.

(...)

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

(...)

(c) make all turns to the left when operating within the aerodrome traffic circuit, except where right turns are specified by the Minister in the Canada Flight Supplement or where otherwise authorized by the appropriate air traffic control unit;

Section 602.14 of the CARs—Minimum Altitudes and Distances:

(...)

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane

Subsection 101.01(1) of the CARs states:

"Take-off" means

(a) in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface

The Aeronautics Act provides:

3. (1) In this Act,

"aerodrome" means any area of land, water (including the frozen surface thereof) or other supporting surface used, designed, prepared, equipped or set apart for use either in whole or in part for the arrival, departure, movement or servicing of aircraft and includes any buildings, installations and equipment situated thereon or associated therewith;

DISCUSSION

The Aeronautics Act specifically allows a hearing of an alleged offence under section 7.7 to proceed in the absence of the Respondent. Nevertheless, the burden of proof still rests with the Minister.

Regarding Count #1 the Minister must prove:

  • Identity of the pilot-in-command
  • Operating aircraft GIBX
  • In the vicinity of an aerodrome, Red Sucker Lake, Manitoba
  • Failed to make all turns to left when operating within the aerodrome traffic circuit.

By definition, the Red Sucker Lake airstrip is an "aerodrome" within the meaning of the Aeronautics Act.

As for the first and second elements, it is established that Mr. Schroeder was the pilot-in-command operating C-GIBX for the flights in question on September 2, 1997. Mr. McLellan identified the pilot of C-GIBX to be Mr. Schroeder. As well Mr. Schroeder's signature is found in the log of C-GIBX under the heading "Captain's Signature".

The log shows a flight from Island Lake to Red Sucker Lake and Red Sucker Lake to Winnipeg on September 2, 1997. Three witnesses place the aircraft at Red Sucker Lake on that date. However, the times shown in the aircraft log for arrival and departure do not coincide with the Minister's allegations nor the witnesses' testimony. That brings into issue whether the aircraft was in the vicinity of the Red Sucker Lake Aerodrome at the times alleged.

The log shows that the times up and down from Red Sucker Lake to Winnipeg to be 19:35 UTC (14:35 local) and 20:20 UTC (15:20 local). The Minister alleges that C-GIBX was in the vicinity of Red Sucker Lake at approximately 15:27 and 15:48 local time, which reflects the witnesses' observations.

A comparison of evidence casts doubt upon the accuracy of the log entries. The Winnipeg International Airport Daily Air Traffic Record Itinerant Movements shows on September 2, 1997, C-GIBX departing Winnipeg at 17:22 UTC and returning at 22:28 UTC whereas the log shows 16:45 UTC and 20:20 UTC for these movements respectively. The log shows the departure from Red Sucker Lake at 19:35, arriving in Winnipeg at 20:20 for an airtime of 1.7 hours. However, arithmetically the difference between the up and down times is 45 minutes.

I conclude that the log is not accurate, and thus where the evidence of the witnesses differs from that of the log I prefer the times stated by the witnesses. In the result, I find that the aircraft was in the vicinity of the Red Sucker Lake Aerodrome at the times alleged, thus making out the third element.

Mr. McLellan testified to seeing the aircraft fly from south to north over the airstrip and then commence a right hand turn to come around to runway 26 which substantiates the last element that the pilot failed to make all turns to the left when operating within the aerodrome traffic circuit.

As each element of the offence has been made out, the Minister has proved Count #1.

Regarding Count #2 the Minister must prove:

  • Identity of the pilot-in-command
  • Operated aircraft GIBX
  • Operated over the built-up area of Red Sucker Lake, Manitoba
  • Operated at an altitude of less than 1,000 feet above the highest obstacle within a horizontal distance of 2,000 feet from the aeroplane.

The first two elements of the offence of Count #2 are identical to Count #1 and are thus proven on the same basis.

Count #2 alleges that the aircraft was operated over the built-up area of the settlement of Red Sucker Lake. Neither the CARs nor the Aeronautics Act provides a definition of a built-up area.

The depiction of the Red Sucker Lake Aerodrome in the Canada Flight Supplement shows buildings to the south of the airstrip. Ms. Harper and Mr. McLellan both testified to seeing the aircraft overfly the community. At issue is whether the community is a built-up area for the purpose of subparagraph 602.14(2)(a)(i) of the CARs.

Although not defined in the CARs or the Aeronautics Act, "built-up area" has been the subject of previous jurisprudence under the predecessor legislation at paragraph 534(2)(a) of the Air Regulations which provided:

(...)

(a) over the built-up area of any city, town or other settlement or over any open air assembly of persons except at an altitude that will permit, in the event of an emergency, the landing of the aircraft without creating a hazard to persons or property on the surface of the earth, and such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft

(emphasis added)

The current section differs somewhat from the previous as it states in CARs subsection 602.14(2):

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane

(emphasis added)

As can be seen, a "built-up area" is no longer defined as being an area of "any city, town or other settlement". Thus previous jurisprudence which addressed "built-up area" in that former context may be restricted. However, as Red Sucker Lake is a settlement, cases referring to "built-up areas of settlements" may be instructive.

In R. v. Stoesz[2], Lismer J. said:

... built up suggests to me structures that are, especially those that are not abandoned, erected or built by man and includes such structures as private dwelling residences, schools, elevators, service stations and so forth.

The community of Red Sucker Lake is located in a relatively remote area of northern Manitoba. Dwelling houses, Band Hall and a school all form part of the community. The surrounding area is lake or tree and brush covered. As compared to this surrounding area, I find that the community is a "built-up area" for purposes of section 602.14 of the CARs, which then satisfies the third element of the offence.

Subsection 602.14(2) of the CARs provides exceptions from the general rule, if conducting a take-off, approach or landing or where permitted under section 602.15.

The permissions under section 602.15 do not apply in this instance, as they are restricted to certain special operations such as:

(a) for the purpose of a police operation
(c) for fire-fighting or air ambulance operations

The allegation at Count #2 pertains to the departure of the aircraft as it flew low over the community. As such did it fall within the exception provided for take-off?

The aircraft had taken off in an easterly direction (runway 08), turned crosswind to a northerly direction and continued the turn until it was on a southerly heading that took it back over the runway, terminal and community. The definition of take-off allows for the "acts immediately preceding and following the leaving of that surface." In the particular circumstances of this case, when the aircraft was heading in a southerly direction over the community it could no longer be said to be on take-off. Therefore the take-off exemption provided in subsection 602.14(2) of the CARs does not apply.

Ms. J. Harper testified to observing the aircraft approach over the community at about twice the height of the buildings. She described the aircraft on the departure as turning back over the airstrip and then flying again over the community at about the same height at which it had come in. As the take-off exemption does not apply, this establishes the fourth element, that the aircraft was operated at an altitude of less than 1,000 feet above the highest obstacle within a horizontal distance of 2,000 feet from the aeroplane.

DETERMINATION

I uphold the Minister's decision. The Minister has proven, on a balance of probabilities, all elements of the offences on both Count #1 and Count #2. The Minister's assessment of a monetary penalty of $250 for each count for a total of $500 is confirmed.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Transport Canada Flight Training Manual, 4th ed. (Toronto: Gage Publishing Limited), at 100.

[2] R. V. Stoesz (1983), Man. Prov. Ct. S.534(2)(a)