Decisions

CAT File No. C-2290-33
MoT File No. RAP5504-041706

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Norman Edward Colhoun, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 202.42(1)(c), 605.03(1)(b)

Registration in Foreign State, Evidence, Approval of Foreign Authority


Review Determination
E. David Dover


Decision: December 5, 2001

I find that there is no evidence Mr. Colhoun operated the aircraft. The monetary penalties listed as counts #1 and #2 assessed by the Minister are cancelled.

A Review Hearing on the above matter was held Thursday, October 4, 2001 at 10:00 hours at the Provincial Court Building, in Regina, Saskatchewan.

There were no pre-hearing conferences between the parties.

BACKGROUND

On May 10, 2001, the Minister of Transport assessed a monetary penalty of $1,250.00 against Mr. Colhoun, the Respondent, pursuant to section 7.7 of the Aeronautics Act claiming that Mr. Colhoun had contravened the following provisions(s):

COUNT #1:

Canadian Aviation Regulation 202.42(1)(c) in that, between the 19th of April 2000 and the 6th of October 2000, you did operate, in Canada, an aircraft that was registered in a foreign state, to wit, a Piper Aircraft Corporation PA-36-285, bearing American registration N55833, that was present in Canada for a total of 90 days or more in the immediately preceding twelve-month period.

COUNT #2:

FURTHER, in that between the 19th of April 2000 and the 6th of October 2000, you did operate an aircraft in flight, to wit, a Piper Aircraft Corporation PA-36-285, bearing American registration, N55833, when the aircraft was not operated in accordance with the conditions set out in the flight authority, specifically, the Special Airworthiness certificate, side 2-D, namely: no person may operate the aircraft described on the reverse: (2) over any foreign country without the special permission of that country, a violation of Canadian Aviation Regulation 605.03(1)(b).

APPLICATION OF THE PENALTY:

COUNT #1                          = $1000.00
COUNT #2                          =     250.00

TOTAL:                                   $1250.00

THE LAW

Subsection 202.42(1) of the Canadian Aviation Regulations (CARs) states:

202.42 (1) Subject to section 203.03, no person shall, unless authorized under subsection (3), operate in Canada an aircraft that is registered in a foreign state that has been present in Canada for a total of 90 days or more in the immediately preceding twelve-month period unless

(a) the foreign state is a contracting state;

(b) the operator of the aircraft is

(i) the foreign state,

(ii) an individual who is not a Canadian citizen or a permanent resident but is a citizen or subject of the foreign state, or

(iii) an entity that is incorporated or otherwise formed under the laws of the foreign state; and

(c) where the operator of the aircraft is an entity described in subparagraph (b)(iii), the aircraft is operated in Canada pursuant to an air operator certificate.

Subsection 605.03(1) of the CARs states:

605.03 (1) No person shall operate an aircraft in flight unless

(a) a flight authority is in effect in respect of the aircraft;

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.

OPENING STATEMENTS

The case presenting officer, Mr. William Douglas Moyse, stated that an American registered aircraft registration N55833 was present in Canada for more that 90 days. He further stated that the aircraft was owned by Skynorth Aviation of Dover, Delaware, USA. He stated that his investigation revealed that the operator of the aircraft had not applied for an air operator certificate for this aircraft and was not in possession of an existing certificate.

Mr. Colhoun made no opening statement.

FOR THE APPLICANT - The Minister of Transport

The case presenting officer, Mr. W. D. Moyse, presented one witness, Mr. Joe Gaudry, who was sworn.

Mr. Gaudry stated that Transport Canada employed him as an inspector with the Enforcement Branch in Winnipeg, Manitoba. Mr. Gaudry entered the following items as evidence:

Exhibit M-1 : Transport Canada Detection Notice dated 00/May/16 indicating that Farm Air Ltd. had requested insurance for N55833. This report indicated that the aircraft was not on the company's air operator certificate and that there was a possible violation of subsection 700.02(1) and paragraph 203.03(l)(e) of the CARs.

Exhibit M-2 : Subsection 202.42(1) of the CARs.

Exhibit M-3 : Subsection 605.03(l) of the CARs.

Exhibit M-4 : Mr. Gaudry testified that he received this NCAMS report from Roger Smith, the Site Manager, NAV CANADA Airport Operations, West, of the Regina, Saskatchewan control tower.

This report shows the arrival and departure sequences of N55833 for a period commencing on January 1, 1999 and ending on September 12, 2000.

There was considerable discussion to the accuracy of this report because on certain occasions two arrivals were recorded with no departure (page three) and two departures with no arrivals (page eight).

This report shows that the aircraft was flown between the dates of May 16, 2000 and September 12, 2000 which is in excess of the 90 days required for licensing.

Exhibit M-5 : Transport Canada request from Judy Mussell dated March 20, 1996 to Norm Colhoun of Lumsden Aero Ltd. to contact Wes Watson regarding the operation of a leased foreign registered aircraft by a Canadian air carrier.

Exhibit M-6 : A letter dated April 19, 1996 to Mr. Norm Colhoun, President of Farm Air Ltd., outlines the procedure for a ministerial authorization/exemption to use a foreign-registered aircraft in Canada.

Exhibit M-7 : Mr. Gaudry testified this is a copy of Farm Air Limited's air operator certificate dated 1997.07.09 showing that there is no approval to operate a PA36-285 aircraft.

Exhibit M-8 : Mr. Gaudry indicated that this Federal Aviation Administration (FAA) document titled Aircraft Registry indicates that the aircraft registered as N55833, a Piper PA-36-285, as of 04/17/1996 was owned by Skynorth Aviation Ltd. of Dover, DE. USA.

Contained in this exhibit is a report that Mr. Colhoun possesses an airline transport pilot licence #2327801 and showing his citizenship to be Canadian with his address to be in Lumsden.

Exhibit M-9 : Norman Edward Colhoun's licence information indicating that he is a Canadian citizen.

Exhibit M-10 : Mr. Gaudry testified that he sent this letter by registered mail dated October 4, 2000 to Mr. Colhoun informing him that he was investigating a possible violation of subsection 202.42(1) of the CARs.

Exhibit M-11 : Mr. Gaudry testified that he received this handwritten communication from Mr. Curtis Borsa, a Regional Intelligence Officer with Canada Customs located in Winnipeg, Manitoba.

The report indicates that on April 19, 2000, aircraft N55833 arrived at Lethbridge AB at 11:49 from Montana and was piloted by Allen Walls. The pilot told the inspecting officer that the aircraft was going to be leased to Colhoun Farms for the summer.

Exhibit M-12 : Mr. Gaudry indicated that this transmission verified aircraft N55833 had indeed arrived in Lethbridge, AB, on 1999/04/19 at 11:49 from Montana.

Exhibit M-13 : Confirmation that Skynorth Aviation Ltd. is incorporated in the State of Delaware and is in good standing.

Exhibit M-14 : Special airworthiness certificate for N55833 registered in the USA. This special airworthiness document also contains a directive that N55833 cannot be operated "over any foreign country without the special permission of that country."

Exhibit M-15 : Aircraft registration application forms for Skynorth Aviation Ltd. from Mesa AZ. and Dover Delaware for N55833.

Exhibit M-16 : Notice of assessment of monetary penalty dated May 10, 2001 to Norman Edward Colhoun with attached confirmation that the registered letter had been delivered to Mr. Colhoun.

Exhibit M-17 : Certificate from Transport Canada that no Canadian air operator was issued a temporary certificate to operate N55833.

Exhibit M-18 : Certificate from Transport Canada stating that no authorization in accordance with Chapter 12 and Annex I of the North American Free Trade Agreement was issued by the Minister of Transport to operate N55833.

Cross-examination

Mr. Colhoun questioned the mistakes on the NCAMS (M-4). Mr. Gaudry stated that the reason there were not any sequential arrival and departure times is because the tower was closed.

Mr. Colhoun stated that the date, April 19, 2000 should actually be April 19, 1999 as one can see that the original date showing 1999 has been written over to show the year 2000 (Exhibit M-11).

Mr. Gaudry testified that he had indeed changed the date and indicated that the date of April 19, 1999 was beyond the statute of limitations as Transport Canada can only go back one year in their investigations.

THE RESPONDENT - Mr. Norman Edward Colhoun

Mr. Colhoun was sworn as a witness and entered the following exhibits:

Exhibit D-1: Mr. Colhoun presented a copy of a logbook belonging to Allen Walls together with an unsworn statement that he, Allen Walls, was not flying a PA-36 registration N55833 at any time during the year of 2000.

Exhibit D-2: Division V-Operation of Foreign Aircraft, subsection 202.42(1) - proposed regulation not in effect.

Exhibit D-3: Agreement Concerning the Airworthiness and Environmental Certification.

Exhibit D-4: Section 507.05 of the CARs on the Validation of a Foreign Flight Authority.

Exhibit D-5: Model (TCDS) (type certificate data sheet) Information indicates that the PA-36-285 is certified under Federal Aviation Regulations (FAR) Part 23.

Redirect

The question to Mr. Colhoun queried "where in regulations does it state either in the CARs or the Free Trade Agreement can you operate a foreign aircraft without a permit?" Answer: there is no regulation covering this.

Mr. Colhoun stated that he personally did not operate the aircraft (N55833). He further stated that Colhoun Farms Ltd. operated the aircraft. He stated that he was President and Operations Manager of Skynorth Aviation Ltd.

The evidentiary record was closed.

CLOSING STATEMENTS

Mr. Moyse stated that the aircraft, N55833 operated in Canada for a period in excess of 90 days (M-4). He further stated Mr. Colhoun is the President of Skynorth Aviation Ltd. and the principal of Farm Air Ltd, and Colhoun Farms.

He indicated that the Registry from the United States of America required the aircraft to be in possession of a Canadian operating permit. He stated that no operating permits had been applied for aircraft N55833 (M-17 and M-18).

Mr. Colhoun indicated that there were errors in the NCAMS (M-4). He further stated that Mr. Gaudry had altered a document received from a Canada Customs inspector to further and justify his own case.

ANALYSIS

The first decision must be made as to who was operating the aircraft. In assessing the monetary penalty, Transport Canada assumes that is Mr. Colhoun. Yet we have evidence that the aircraft is owned by Skynorth Aviation Ltd. and operated by Colhoun Farms Ltd.

It is Mr. Colhoun's evidence that Colhoun Farms Ltd. operated the aircraft during the period it was in Canada. There is no evidence to the contrary, and there is no evidence from Transport Canada as to who actually operated the aircraft.

I refer to Minister of Transport v. Lindbergh's Air Service.[1] "For purposes of proceedings under the Act a 'corporation' is the same as a 'person' and both can commit offences under the Act."

The Interpretation Act defines the following:

"person", or any word or expression descriptive of a person, includes a corporation;

The next decision concerns the validity of Transport Canada's evidence, specifically M-4 and M-11.

Mr. Gaudry testified under oath that he altered M-11 to further his own case. To change a year from 1999 to 2000 is not a responsible act. The testimony in the case of M-4 indicates that this is a typewritten copy interpreted from the original NAV CANADA report. Because of the actions taken by Mr. Gaudry in M-11 I give little weight to any documents prepared by Transport Canada that are not certified copies of original documents.

The final decision is to determine if the aircraft required a permit to operate in Canada. This aspect the Minister did prove through M-14 which is the current registration of the aircraft in the United States of America.

I am also convinced that Mr. Colhoun knew that he or his corporations required a permit to operate the aircraft.

DETERMINATION

The Minister must prove, on a balance of probabilities, each element of the offence. The proof must come from the evidence presented, whether through witness testimony or documentary evidence such as exhibits or through other acceptable means.

I find that there is no evidence Mr. Colhoun operated the aircraft. Whichever person or corporation operated the aircraft is still a mystery.

By altering a Canada Customs document the witness destroyed his credibility. Thus I have no evidence as to how long the aircraft was actually operating in Canada and whether it returned to the USA during the period in question.

Mr. Colhoun knew of the requirement to obtain a permit. His evidence is that he did not operate the aircraft and the Minister should have charged the responsible party.

The monetary penalties listed as counts #1 and #2 assessed by the Minister are cancelled.

E. David Dover
Member
Civil Aviation Tribunal


CAT File No. O-0025-10 (Appeal).