Decisions

CAT File No. C-1605-33
MoT File No. RAP6504-P378452-030768 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Artur Mieczyslaw Kotula, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s.7.7
Canadian Aviation Regulations, SOR/96-433, s.602.115(c)(ii)

Wording of Notice, Uncontrolled Airspace, Low Flying, Controlled Airspace


Review Determination
Pierre Rivest


Decision: July 31, 1998

TRANSLATION

I hereby declare a nonsuit, as the formal allegation should have been worded differently. For that reason, the Minister's allegation and the $750.00 monetary penalty assessed against the Respondent are dismissed.

A Review Hearing on the above matter was held Thursday, July 9, 1998 at 10:00 hours at the Federal Court of Canada in the city of Winnipeg, Manitoba. The witnesses were sworn.

BACKGROUND

The Respondent has been accused pursuant to section 7.7 of the Aeronautics Act of having contravened subparagraph 602.115(c)(iii) of the Canadian Aviation Regulations (CARs), in that on or about December 9, 1997, at or near St. Andrews, Manitoba, he allegedly operated a Piper PA 31-350 aircraft, bearing registration marks C-GQAI, in VFR flight within uncontrolled airspace, at less than 1,000 feet above ground level (AGL), when the said aircraft was not clear of cloud.

A monetary penalty of $750.00 was assessed. As it had not been paid by the due date of May 8, 1998, the case was referred to the Civil Aviation Tribunal, hereafter called the Tribunal.

Subparagraph 602.115(c)(iii) provides:

602.115 No person shall operate an aircraft in VFR flight within uncontrolled airspace unless

(...)

(c) where the aircraft is not a helicopter and is operated at less than 1,000 feet AGL

(i) during the day, flight visibility is not less than two miles, except if otherwise authorized in an air operator certificate or a private operator certificate,

(ii) during the night, flight visibility is not less than three miles, and

(iii) in either case, the aircraft is operated clear of cloud

THE FACTS

In the case referred to above, I must give the reasons for my determination, starting with the close of the hearing.

In his arguments, Mr. Barnsley, counsel for the Respondent, informed the Tribunal that the allegation, as worded, rendered the whole hearing null and void and that the Tribunal should declare a nonsuit and dismiss the Minister's allegation.

He based his conclusion on two points: firstly, on the fact that the text refers to an offence allegedly committed "at or near St. Andrews," Manitoba (controlled airspace), and secondly, on the cited subparagraph 602.115(c)(iii) of the CARs, which refers to "uncontrolled airspace."

It should be known that throughout the hearing, the Minister's representative put in evidence testimony describing situations which had arisen along the Respondent's flight route from St. Andrews to Little Grand Rapids, including these two points—a distance of about 140 nautical miles (NM).

As mentioned earlier, St. Andrews is located in controlled airspace, moreover, Mr. Barnsley considers that portion of the route which lies within uncontrolled airspace as far as Little Grand Rapids as much too far from the point of departure to be considered "near" much less "at" St. Andrews.

The rules that apply to VFR flights in controlled airspace are different from those of subparagraph 602.115(c)(iii), which refer to uncontrolled airspace. Moreover, as the airspace surrounding St. Andrews extends quite far (controlled airspace), the remainder of the route as far as Little Grand Rapids (uncontrolled airspace) is considerably reduced.

I will cite the text of the allegation as submitted to the Tribunal by the Minister, highlighting (in bold type) certain words or expressions:

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 602.115(c)(iii), in that on or about the 9th day of December A.D. 1997, at or near St. Andrews, Manitoba, being a person as described in section 602.115(c)(iii) of the Canadian Aviation Regulations, you did operate an aircraft, to wit, a Piper PA 31-350 bearing Canadian registration marks C-GQAI, in VFR flight within uncontrolled airspace at less than 1,000 feet AGL, when the said aircraft was not operated clear of cloud.

The airspace within which St. Andrews is located is that of the Winnipeg airport and it extends, to varying degrees, as much as 65 NM in the direction of Little Grand Rapids. Three important elements therefore emerge from this text:

  1. the controlled airspace of St. Andrews;
  2. that portion of the route which is located in uncontrolled airspace;
  3. the interpretation to be given "near."

At this stage of my analysis, since it is St. Andrews which is mentioned in the formal allegation (controlled airspace), I must disregard that portion of the route located in uncontrolled airspace, and all testimony referring to it, and consider only St. Andrews, the point about which, in any event, most of the witnesses were questioned. Even then, as St. Andrews is in controlled airspace, I conclude that the allegation does not hold up, since subparagraph 602.115(c)(iii) refers to uncontrolled airspace.

Let us now turn directly to the third point, namely, the matter of the preposition "near." My interpretation is based on both French and English dictionaries. All concur in their definition of near as: "adverbe (ou préposition) marquant la proximité (dans l'espace ou dans le temps), indiquant une petite distance"; or "proche, voisin" (Le Petit Robert), "dans le voisinage" (Le Petit Larousse); in English, I find, in Thorndike-Barnhart, "to or at a short distance; not far; closely".

Regarding the second point, since that portion of the route located in uncontrolled airspace (namely, the distance between the boundary of Winnipeg's control zone, in which St. Andrews is located, and Little Grand Rapids) represents just slightly over half of the entire route, I conclude that this airspace is not consistent with the notion of proximity and cannot be considered "near" St. Andrews.

As for the preposition "at" also used in the formal allegation, it is even more restrictive and excludes anything not located right at St. Andrews airport.

Finally, as to the matter of distance, in rebuttal, the Minister's representative cited paragraph 476(d) of the Criminal Code, which provides:

Special Jurisdiction

476. For the purposes of this Act,

(...)

(d) where an offence is committed in an aircraft in the course of a flight of that aircraft, it shall be deemed to have been committed

(i) in the territorial division in which the flight commenced,

(ii) in any territorial division over which the aircraft passed in the course of the flight, or

(iii) in the territorial division in which the flight ended

This provision defines the territorial jurisdiction within which a criminal offence can be deemed to have been committed. It is not part of the Aeronautics Act. Any geographic specificity in aviation must be defined by the Department of Transport, which is not the case in the above-cited paragraph; consequently, the paragraph does not apply here.

CONCLUSION

I hereby declare a nonsuit, as the formal allegation should have been worded differently. For that reason, the Minister's allegation and the $750.00 monetary penalty assessed against the Respondent are dismissed.

Pierre Rivest
Member
Civil Aviation Tribunal