Decisions

CAT File No. C-1888-33
MoT File No. RAP5504-P319947-034263 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Bradley James Lehman, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(a)(i)

Take-off, Low flying, Built-up area


Review Determination
David S. Ahmed


Decision: January 28, 2000

I uphold the Minister's decision to assess Mr. Lehman a monetary penalty of $250 on the grounds that he contravened subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations on July 18, 1999. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 15 days of service of this determination.

A Review Hearing on the above-mentioned matter was held Friday, January 7, 2000 at 10:00 hours at the Provincial Court Office Courtroom, in La Ronge, Saskatchewan.

BACKGROUND

Mr. Lehman is the holder of a commercial pilot licence. He obtained his private pilot licence when he was only 17 years old and subsequently went on to obtain his commercial pilot licence in 1987. He has accumulated almost 8,000 hours of flying time and has a vast experience in flying float-equipped aircraft, including skis. He also holds a multi engine and an instrument rating. His flying career has included employment in Northwest Ontario and British Columbia. In May of 1999, he relocated to La Ronge, Saskatchewan. In August 1999, Mr. Lehman received a Notice of Assessment of Monetary Penalty from a representative of the Minister of Transport which read 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):

COUNT #1:

Canadian Aviation Regulation 602.14(2)(a)(i), in that at approximately 1813 hours UTC, on or about July 18, 1999, at or near La Ronge, Saskatchewan, you operated an aircraft, to wit, a DeHavilland Aircraft of Canada Limited, DeHavilland DHC-3, bearing Canadian registration marks C-FQEI, over a built-up area, namely the Town of La Ronge, Saskatchewan, at an altitude less than 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane.

In view of the fact, for whatever reason, Mr. Lehman declined to pay the penalty of $250 before September 15, 1999, the Minister of Transport requested a Review Hearing by the Civil Aviation Tribunal.

THE EVIDENCE

The Case Presenting Officer, Inspector Greg Holbrook, was invited to present the case on behalf of the Minister of Transport. He stated, essentially, that with the help of his two witnesses, he would prove that the low-flying charge levied against Mr. Lehman would be substantiated. He then called upon Mr. Welwood, who was his first witness, to give evidence following which Mr. Welwood was duly sworn in.

Mr. Welwood's Evidence

Mr. Welwood told us that he was employed by the Minister of Transport as a superintendent in their enforcement program. He stated that he was in La Ronge, Saskatchewan, on July 18, 1999 together with Mr. J. Gaudry who is also a Minister of Transport employee. Both he and Mr. Gaudry had been sent to La Ronge for surveillance duties.

At approximately 1813 hours UTC, Mr. Welwood and his colleague were seated on a park bench overlooking the water base in La Ronge when they happened to observe a float-equipped aircraft, to wit, a DeHavilland DHC-3, bearing Canadian registration marks C-FQEI, take off from the lake. It was stated that the aircraft took off in a southwesterly direction and then, at a low altitude, commenced a 270° turn to the left, passed over a small island, and then headed over the town of La Ronge in a northwesterly direction. Mr. Welwood stated that, in his opinion, when the aircraft was flying over La Ronge its altitude was approximately 300 feet. At Mr. Holbrook's request, Mr. Welwood drew the attention of the hearing to section 602.14 of the Canadian Aviation Regulations (CARs). This section of the CARs deals with minimum altitudes and distances and is worded as follows:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

(b) 2,000 feet from an aircraft other than a helicopter or balloon.

(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,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

Mr. Welwood stated that he and his colleague, Mr. J. Gaudry, waited until the aircraft in question returned, introduced themselves to the pilot in question, Mr. Lehman, and then interviewed him inside the aircraft. Mr. Welwood commenced the interview by informing Mr. Lehman that he was flying too low and would be investigated. He was then invited to give a warned statement in the presence of both Mr. Welwood and his colleague Mr. Gaudry. Mr. Welwood further stated that Mr. Lehman was not in any way coerced or intimidated into giving a statement.

(A warned statement means that the person giving the statement has been advised that he or she was not obliged to say anything unless they wished to do so and what they did say may be given in evidence.)

Mr. Lehman's warned statement was in a question and answer format, the questions being asked by Mr. Welwood. In Mr. Lehman's warned statement (Exhibit M-4), Mr. Lehman admitted that he was pilot-in-command of aircraft C-FQEI on July 18, 1999 when it took off from the water base in La Ronge, Saskatchewan. He admitted that after take-off he made a 270° turn to the left, flew over an island, and then proceeded over the town of La Ronge in a northwesterly direction. When asked what altitude he was at when he crossed the town's shoreline, he indicated that he was approximately 1,600 feet above sea level (ASL) which would mean that he was approximately 400 feet above ground level. Mr. Lehman, upon questioning, then stated that, in his opinion, when he crossed the west edge of the town he was at approximately 500 feet above ground level. Mr. Lehman concluded his statement by stating that even though he was below 1,000 feet above ground level when he was flying over La Ronge, he believed that there was an exception for aircraft in a similar position that were taking off or landing.

During the course of Mr. Welwood's evidence, he was asked to refer to the Water Aerodrome Supplement, in particular to the procedures that pilots of aircraft transiting to or from the water base in La Ronge, Saskatchewan. In that particular section, it was emphasized that "Pilots must avoid low flying over the town" (Exhibit M-6). At the conclusion of Mr. Welwood's evidence, Mr. Lehman was invited to cross-examine the witness.

Mr. Lehman's Cross-examination

Mr. Lehman's cross-examination consisted of his requesting clarification of the term "take-off." He was familiar with the fact that according to subsection 101.01(1) of the CARs, take-off means "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". What he wanted to know was when exactly the act of take-off was terminated. Mr. Welwood responded by stating that irrespective of what the interpretation of the regulation may be, it did still not excuse low flying over the town.

Mr. Gaudry's Evidence

Mr. Gaudry was duly sworn in. Upon request, he stated that he was employed by Transport Canada in the Winnipeg office in the enforcement branch.

Mr. Gaudry, upon questioning, confirmed that he and Mr. Welwood were in La Ronge on the day in question. They had been sent up there on a three-day surveillance trip. Basically, he confirmed that he had observed the aircraft C-FQEI take off from the water base in La Ronge. He stated that, in his opinion, the aircraft was no more than 300–400 feet above ground level when it overflew the town of La Ronge. He also confirmed that he was present when Mr. Welwood was obtaining Mr. Lehman's warned statement.

Mr. Lehman's Evidence

Mr. Lehman was duly sworn in. He took the stand only for a brief period of time. He told us about his impressive flying background and drew the attention of the hearing to the Vancouver Harbour VFR Terminal Procedures Chart. In one section of which it stated that "Downwind flt [flight] alt [altitude] not below 500' ASL over populated area". He continued by saying that he was still confused about the exact definition of "take-off'. He told us that when he took off, on the day in question, from La Ronge, he did have a boat strapped to one of his floats. After take-off, he commenced his 270° turn to the left attempting to gain altitude but was unable to do so when he overflew La Ronge. It was his opinion that he was still in the act of "take-off" when the incident occurred.

MR. HOLBROOK'S CLOSING ARGUMENT

Mr. Holbrook stated that the evidence that had been provided supported the charge. He went into details of the event as they had occurred and also provided documentation of three fairly similar cases that had been heard before members of the Civil Aviation Tribunal in all of which the members had confirmed the Minister of Transport's decision.

Mr. Holbrook concluded his closing argument by addressing sanctions. He stated that in cases such as Mr. Lehman's, the first offence usually involved a suspension of 5-7 days or a $250 penalty. He further stated that in some cases up to 14 days of suspension and up to a $1,000 penalty had been handed out.

MR. LEHMAN'S CLOSING ARGUMENT

Mr. Lehman declined to give a closing argument.

DETERMINATION

The evidence provided by the Minister of Transport's representatives confirmed that Mr. Lehman did indeed fly low over the town of La Ronge on July 18, 1999. I realize that some of the regulations at Vancouver Harbour may be different to those at La Ronge, Saskatchewan and that the exact definition of take-off may be ambiguous, but I do not feel that these are mitigating circumstances.

I uphold the Minister's decision to assess Mr. Lehman a monetary penalty of $250 on the grounds that he contravened subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations on July 18, 1999.

Dr. David Ahmed
Member
Civil Aviation Tribunal