Decisions

CAT File No. H-2424-33
MoT File No. 5504-X-1-44364

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Robert Brian Milton, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, ss. 602.39, 602.40(1), 602.73(4), 602.100, 602.101, 605.03(1)

Uncontrolled aerodrome, Ultra light aircraft, Pilot license, Operating in contravention of operating specifications, Landing at night at an unlighted aerodrome, Flight authority, Failure to report


Review Determination
Allister W. Ogilvie


Decision: April 10, 2003

The Minister has proven, on a balance of probabilities, charges 1 through 11. The sanctions as levied in the Notice of Assessment of Monetary Penalty are upheld. The Minister's charge 12 is dismissed as the allegation contained in the Notice is not contrary to the regulation alleged to have been contravened. Payment of the total penalty of $3,900 shall be made payable to the Receiver General for Canada and shall be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Thursday, January 23, 2003 at 10:00 hours at the Delta Beauséjour, in Moncton, New Brunswick.

BACKGROUND

The ghosts of great aviators haunt him, says Mr. Brian Milton. Among the ghosts who have haunted him are those of the famous pioneer aviators, Alcock and Brown.

Captain John Alcock and his navigator, Lieutenant Arthur Brown, were the British team that first flew non-stop across the North Atlantic, from St. John's, Newfoundland to the west coast of Ireland in June of 1919. They accomplished the flight over 1,915 statute miles of open water in a Vickers Vimy twin engine bomber.

Mr. Milton decided that he would like to follow those ghosts. However rather than piloting a vintage Vickers, Mr. Milton's challenge would be to replicate the flight in an ultra-light aircraft. He thought the flight to be within his and his aircraft's capabilities. He is a very experienced pilot/adventurer claiming to have been the first man to have flown an ultra-light around the world.

After having given the flight considerable thought and planning, he obtained sponsorship for his venture. He had decided to attempt the Atlantic crossing in the summer of 2001 and with that in mind arrived in Canada from the United States in June, flying a Mainair Blade 912 ultra-light registered G-BZUM. He held a British pilot licence.

His aircraft had become much more sophisticated than Alcock and Brown's Vickers Vimy. So too had the regulations as Mr. Milton quickly discovered. It was soon after his arrival in Canada that he ran afoul of the regulatory structure. Soon after landing in Halifax he was greeted by Transport Canada officials who requested the appropriate documentation to fly in Canada, which he was unable to provide.

After some consultations he was issued a valid flight authority to fly in Canada. However, upon further inquiry it was ascertained that his aircraft had been modified with large capacity fuel tanks to allow the long Atlantic crossing. The modification had not been authorized and thus his new flight authority was not valid. Mr. Milton reconfigured his aircraft back to the original design in order to once again regain a flight authority.

Mr. Milton and his supporters lobbied for an exemption from the regulations which restricted his crossing attempt. No exemption was forthcoming.

Mr. Milton found the myriad of regulations and unstinting regulators to be beyond his adventurer's patience. He surreptitiously reconfigured his aircraft back to the Atlantic crossing mode and decided to attempt the flight without official approval.

On July 7, 2001, he started his epic voyage. However, unlike his heroes Alcock and Brown, he did not end up in Ireland to a hero's welcome, but rather ended up off the end of the runway at the aerodrome in Exploits Valley, Newfoundland.

His adventures in Canada have come back to haunt him in the form of numerous allegations being brought against him by Transport Canada in the following form:

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):

SCHEDULE A

1. That on or about 1 June 2001, at or near Halifax, Nova Scotia, Canada, you operated aircraft, United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03(1).

Monetary Penalty: $ 500.00

2. That on or about 2 June 2001, at or near Sydney, Nova Scotia, Canada, you operated aircraft, United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03(1).

Monetary Penalty: $ 250.00

3. That on or about 6 June 2001, at or near Stephenville, Newfoundland, Canada, you operated aircraft United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03(1).

Monetary Penalty: 250.00

4. That on or about 1 July 2001, at or near Stephenville, Newfoundland, Canada, you operated aircraft United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03(1)

Monetary Penalty: $ 250.00

5. That on or about July 1 2001, at or near Stephenville, Newfoundland, Canada, you, as the pilot-in-command of a VFR aircraft, United Kingdom, G-BZUM, arriving at an uncontrolled aerodrome that lay within an MF area; failed to report:

(a) before entering the MF area, and at least five minutes before entering the area, giving the aircraft's position, altitude and estimated time of landing and your arrival procedure intentions;

(b) when joining the aerodrome traffic circuit, giving the aircraft's position in the circuit;

(c) when on downwind leg;

(d) when on final approach; and

(e) when clear of the surface on which the aircraft has landed, contravening Canadian Aviation Regulations subsection 602.101.

Monetary Penalty: $ 250.00

6. That on or about 1 July 2001, at or near Stephenville, Newfoundland, Canada, you operated aircraft United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03 (1).

Monetary Penalty: $ 250.00

7. That on or about July 6, 2001, at or near Stephenville, Newfoundland, Canada, you, as the pilot-in-command of a VFR aircraft United Kingdom, G-BZUM, that was departing from an uncontrolled aerodrome that lay within an MF area, failed:

(a) before moving onto the take-off surface, to report your departure procedure intentions;

(b) before take-off, to ascertain by radio communication that there was no likelihood of collision with another aircraft or a vehicle during take-off; and

(c) after take-off, to report departing from the aerodrome traffic circuit, contravening Canadian Aviation Regulations subsection 602.100

Monetary Penalty: $ 250.00

8. That on or about 6 July 2001, at or near Stephenville, Newfoundland, Canada, you operated aircraft, United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03(1).

Monetary Penalty: $ 500.00

9. That on or about July 6, 2001, at approximately 2225 local, at or near Exploits Valley, Newfoundland, Canada, you conducted a landing in heavier-than-air aircraft, United Kingdom, G-BZUM, at night at an aerodrome when the aerodrome was not lighted in accordance with the aerodrome lighting requirements specified in Part III, contravening Canadian Aviation Regulations subsection 602.40(1)

Monetary Penalty: $ 500.00

10. That on or about July 7, 2001 at approximately 1115 local, at or near Exploits Valley, Newfoundland, Canada, you were the pilot-in-command of single-engined aircraft, United Kingdom, G-BZUM, and you commenced a flight that would leave Canadian Domestic Airspace and enter airspace over the high seas when you did not hold a pilot license endorsed with an instrument rating, and the aircraft was not equipped with a high frequency radio capable of transmitting and receiving on a minimum of two appropriate international air-ground general purpose frequencies; contravening Canadian Aviation Regulations subsection 602.39.

Monetary Penalty: $ 400.00

11. That on or about 7 July 2001, at or near Exploits Valley, Newfoundland, Canada, you operated aircraft, United Kingdom, G-BZUM, in flight when a flight authority was not in effect in respect of the aircraft, contravening Canadian Aviation Regulations subsection 605.03(1).

Monetary Penalty: $ 500.00

12. That on or about 7 July, 2001, at approximately 1115 local, at or near, Exploits Valley, Newfoundland, Canada, you were a pilot-in-command that planned to operated aircraft, United Kingdom, G-BZUM, between Canada and Shannon, Ireland when a flight plan had not been filed, contravening Canadian Aviation Regulations subsection 602.73(4)

Monetary Penalty: $ 250.00

A hearing into those matters was held in Moncton, New Brunswick on January 23, 2003.

EVIDENCE AND DISCUSSION

Mr. Milton did not attend the hearing.

Mr. Hector represented the Minister and through his witnesses entered evidence to establish the Minister's case. He also submitted as proof of certain matters, a copy of the book "Chasing Ghosts" authored by Mr. Milton. It purports to be an account of his attempt at flying the Atlantic by microlight aircraft.

As Mr. Milton did not appear, the references utilized for evidence from his tome are not sworn testimony but are more in the nature of hearsay evidence. In the limited circumstance of this case I have accepted references in the book as factual evidence for the following reasons: subsection 37(1) of the Aeronautics Act provides that the Tribunal is not bound by any legal or technical rules of evidence. However, that does not mean no evidentiary rules apply. The prime criterion for evidence to be accepted is that it be relevant. The passages that the Minister has selected to read into the record go to prove allegations raised in the Notice. Therefore, they are relevant.

Relevant evidence must be reliable. Some passages utilized have been corroborated by other testimony or documentary evidence which establishes its reliability. Some passages relied upon are the sole evidence of an alleged act. For example, where furtive activity succeeded without others witnessing it, such as the departure and arrival at uncontrolled aerodromes.

I take that evidence as reliable as well. When the allegations were brought against Mr. Milton, he replied to Transport Canada by sending them a copy of his book accompanied by a letter in which he stated:

A full account of what happened, how I managed to get into that state of affairs, and the actions I took to try and resolve the contradictions I faced, is in the enclosed book, 'Chasing Ghosts'. I kept extensive diaries, covering every day of that flight, starting at the end of May in New York, and via Nova Scotia and Cape Breton Island to Newfoundland, and these would be available if requested.

The revelations in his book may be characterized as admissions against interest since, if true, they would go to establishing his culpability. An admission against interest can be accepted into evidence as an exception to the strict evidentiary rules and thus is even less objectionable in the more relaxed evidentiary regime of the Tribunal.

Operation without a flight authority — June 1, 2, and 6 — Charges 1, 2 and 3

Subsection 605.03(1) of the Canadian Aviation Regulations (CARs):

Flight Authority

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.

The Minister must establish each element of the offence. In each of the allegations in this file under subsection 605.03(1) the Minister must establish: the identity of the person who operated the aircraft in flight, the time, the date and locations stated, when there was no flight authority in effect.

Evidence adduced at the hearing established the following:

Mr. Milton arrived in Halifax on June 1st. He proffered to the authorities a Civil Aviation Authority (CAA) permit to fly. Among the conditions of that permit were that modifications were not to be made to the aeroplane unless approved by the CAA.

On the strength of that permit, Transport Canada issued on June 2, 2001 a letter validating his United Kingdom (UK) permit to fly in Canadian airspace. Its issuance was conditional upon his UK, CAA permit being in force.

After some investigation regarding the enhanced fuel capacity of the aeroplane, Transport Canada discovered that the long range tank configuration had no approval. They subsequently suspended the flight authority by Notice of Suspension dated June 8, 2001.

However, the Canadian document was made conditional upon the validity of the UK permit. As the UK permit was not in force because of the unauthorized modification, the Canadian document had never come into force. Hence, from June 1st to June 6th, no flight authority was in effect for aeroplane G-BZUM (ZUM).

The aeroplane's movements in Halifax and Sydney, Nova Scotia on June 1st and 2nd respectively, were confirmed through NAV CANADA Aircraft Movement Statistics. A Transport Canada official, Mr. Baynes, was present in Halifax to meet ZUM and greet Mr. Milton.

ZUM arrived in Stephenville, Newfoundland on June 6th. Its arrival was recorded in the Daily Air Traffic Record of the Stephenville Airport and witnessed by the author of the report, Ms. Sherri Alexander.

Those aeroplane movements and Mr. Milton's operation of his aeroplane on those flights were corroborated in his book.

Held

The Minister has proved each element of the offences alleged in charges 1, 2 and 3.

Around June 24th, Mr. Milton decided to return ZUM to its original specifications. In the ensuing days he accomplished the refit. He had arranged for a Transport Canada inspector to inspect his work and clarify the craft's status. A Mr. Warren did so on June 27th. In consideration of the return to its original configuration the Notice of Suspension of June 8th was withdrawn and the letter of validation was again in force. He once again had a flight authority.

Operation without flight authority — July 1st — Charges 4 and 6

Charge 4 relates to flight out of Stephenville to Bay d'Espoir whereas charge 6 addresses the return flight.

Mr. Milton admits these flights in his book. The NAV CANADA Aircraft Movement Statistics and the Daily Air Traffic Record of the Stephenville Airport confirm the outbound flight of ZUM. There is no record of the return flight in those records.

Mr. Milton describes having problems with the "Flydat" system during these flights. It had failed because of a recurring electrical problem resulting in a blown fuse. The Minister has tendered evidence which I have accepted that shows the Flydat system needs to be operational for the flight authority to be in force. With it out of commission so was the flight authority.

Held

The Minister has proved each element of the offence in charges 4 and 6.

As Mr. Milton put it "It was here that the deception began". He had been informed that no exemption would be granted that would allow his proposed transatlantic flight. He decided to surreptitiously reconfigure ZUM back to its Atlantic crossing configuration. He decided to slip back into Stephenville from Bay d'Espoir, hopefully unnoticed. There he would secretly refit the craft with the long range tanks. That explains why there is no record of his return flight.

The explanation also grounds charge 5.

The pilot-in-command arriving at an uncontrolled acrodrome in an MF area failed to report as required.

Subsection 602.101 of the CARs:

MF Reporting Procedures on Arrival

602.101 The pilot-in-command of a VFR aircraft arriving at an uncontrolled aerodrome that lies within an MF area shall report

(a) before entering the MF area and, where circumstances permit, shall do so at least five minutes before entering the area, giving the aircraft's position, altitude and estimated time of landing and the pilot-in-command's arrival procedure intentions;

(b) when joining the aerodrome traffic circuit, giving the aircraft's position in the circuit;

(c) when on the downwind leg, if applicable;

(d) when on final approach; and

(e) when clear of the surface on which the aircraft has landed.

The Minister must establish the identity of the pilot-in-command, of a VFR aircraft, at the time date and location stated, who arrived at an uncontrolled aerodrome, that the aerodrome was within a mandatory frequency (MF) area, which pilot failed to report before entering the MF, the aircraft's position and estimated time of landing, when joining the circuit, when on downwind, on final approach and when clear after landing.

Evidence adduced reveals that: Stephenville Airport is uncontrolled. It lies within an MF area. The flight was VFR. Mr. Milton, the pilot-in-command, describes in some detail his efforts to land undetected at the aerodrome on July 1st. He succeeded. The Aircraft Movement Statistics for Stephenville recorded only his departure earlier in the day. The aerodrome Daily Air Traffic Record also shows only the departure from Stephenville of BZUM on July 1st. Mr. Milton described his communications upon his arrival, not on the MF, but on a different frequency with one of his local supporters who was awaiting his return at the hangar where the reconfiguration was to be made. He candidly stated in a warned statement to Transport Canada that he had not communicated on the mandatory frequency upon his arrival.

Held

The Minister has proved each element of charge 5.

Between July 1st and the 6th, the aeroplane was refitted with the long range tanks while Mr. Milton continued to plan and monitor the weather, awaiting favourable conditions.

A window of opportunity presented itself on the 6th. His weather observers thought that a crossing attempt could be made. He was first to fly to Springdale, Newfoundland on the evening of the 6th, a trip which would reduce the total journey by 126 miles. His departure from Stephenville in an attempt to reach Springdale brought about charges 7 and 8.

The pilot-in-command of an aircraft departing from an aerodrome in an MF area failed to report as required — July 6th — Charge 7

Subsection 602.100 of the CARs:

MF Reporting Procedures on Departure

602.100 The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall

(a) before moving onto the take-off surface, report the pilot-in-command's departure procedure intentions;

(b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or a vehicle during take-off; and

(c) after take-off, report departing from the aerodrome traffic circuit.

It is established that Mr. Milton was the pilot-in-command of the aircraft departing Stephenville on the date and at the time in question.

Stephenville Airport is uncontrolled. There is a mandatory frequency upon which the pilot-in-command of a VFR aircraft must report his intentions as prescribed in (a), (b) and (c) above. Mr. Milton described his departure as having got away safely, fast and low, probably unseen by the people at the other end of the airfield. I accept that he was unheard as well. That he did not make the reports required by the paragraphs noted above is established.

Held

The Minister has proved each element of the offence.

Operation without flight authority — July 6th — Charge 8

Subsection 605.03(1) as above:

On the departure from Stephenville described in charge 7 above ZUM had once again been fitted with the non-approved long range tanks which rendered the flight authority out of effect. Mr. Milton conceded that fact in his warned statement. The other facets of the elements are established as above.

Held

The Minister has proved all elements of the offence.

He had anticipated being in Springdale by 8:30 p.m., but as the sun was setting he encountered fog and low cloud setting in. Mr. Milton descended over Springdale but was prevented from landing by enveloping cloud. He proceeded toward Gander in increasing darkness. With the aid of a global positioning system (GPS) he was able to locate an alternate airfield, Exploits Valley. In his book he describes landing there with the headlight of the craft illuminating the ground at an otherwise darkened aerodrome. That flight grounds charge 9.

Conducting a landing at Exploits Valley at night when the aerodrome was not lighted in accordance with the requirements — July 6th — Charge 9

Subsection 602.40(1) of the CARs:

Landing at or Take-off from an Aerodrome at Night

602.40 (1) Subject to subsection (2), no person shall conduct a landing or a take-off in a heavier-than-air aircraft at night at an aerodrome unless the aerodrome is lighted in accordance with the aerodrome lighting requirements specified in Part III.

The Minister must establish: the identity of the person, that person conducted a landing in a heavier-than-air aircraft, at night, at an aerodrome which was not lighted in accordance with the requirements.

Mr. Milton admits in the book that he flew his aircraft into Exploits Valley aerodrome after dark, when the aerodrome was not lighted.

Held

The Minister has proved all the elements of the offence.

Mr. Milton enlisted the aid of a local gentleman to assist him in obtaining and refuelling ZUM in anticipation of commencing his Atlantic crossing the next day. It was to be from Exploits Valley rather than Springdale or St. John's.

Early the next morning the forecast proved to be promising as it anticipated a substantial tail wind for him at the 50th North parallel over the Atlantic. Locally the fog had cleared up, but the winds became southwesterly at 15 gusting to 25 knots.

Mr. Milton commenced the epic journey sometime in the late morning. However, like the rest of his adventure, it did not go smoothly. The heavy aeroplane and gusting winds challenged him on the take-off. As ZUM would not climb sufficiently, he decided to land while there was still runway remaining. He skidded off the end of the runway with ZUM sustaining some damage to its structure. Mr. Milton however was unscathed. That flight grounds the remaining charges.

The pilot-in-command commenced a flight that would leave Canadian Domestic Airspace and enter airspace over the high seas when the pilot was not appropriately licensed and the aircraft not properly equipped — July 7th — Charge 10

Section 602.39 of the CARs:

Transoceanic Flight

602.39 No pilot-in-command of a single-engined aircraft, or of a multi-engined aircraft that would be unable to maintain flight in the event of the failure of any engine, shall commence a flight that will leave Canadian Domestic Airspace and enter airspace over the high seas unless

(a) the pilot-in-command holds a pilot licence endorsed with an instrument rating;

(b) the aircraft is equipped with

[...]

(ii) a high frequency radio capable of transmitting and receiving on a minimum of two appropriate international air-ground general purpose frequencies, and

[...]

The Minister must establish the identity of the pilot-in-command, of a single-engined aircraft, who commenced a flight that would leave Canadian Domestic Airspace and enter the airspace over the high seas, when the pilot-in-command did not hold an instrument rating, and the aircraft was not equipped with a high frequency radio.

Mr. Milton admits not being instrument rated. The aeroplane ZUM was not equipped with a high frequency radio as required by subparagraph (b)(ii). His book makes clear his take-off from Exploits Valley was the commencement of a flight that would have left Canadian Domestic Airspace and entered the airspace over the high seas.

Held

The Minister has proved each element of the offence.

Operation without a flight authority — July 7th — Charge 11

Mr. Milton chronicles his July 7th departure attempt from Exploits Valley in ZUM which again had the long range tanks installed. That installation had the effect of invalidating the flight authority.

Held

The Minister has proved all elements of the offence.

Pilot-in-command planned to operate ZUM between Canada and Shannon Ireland when a flight plan had not been filed — July 7th — Charge 12

Subsection 602.73(4) of the CARs:

Requirement to File a Flight Plan or a Flight Itinerary

602. 73 (1) Subject to subsection (3), no pilot-in-command shall operate an aircraft in IFR flight unless an IFR flight plan has been filed.

[...]

(4) Notwithstanding anything in this Division, no pilot-in-command shall, unless a flight plan has been filed, operate an aircraft between Canada and a foreign state.

The Minister must establish: the identity of the pilot-in-command, who operated a flight between Canada and a foreign state, at the date time and place stated, when a flight plan was not filed. The aborted flight, with Mr. Milton as pilot-in-command, starting in Exploits Valley with an intended destination of Ireland is established in the book. The Minister secured evidence which establishes that a flight plan was not filed. That is consistent with the secretive nature of the intended flight.

However, I am unable to find that the Minister has proved each element of the offence. The regulation states:

(4) Notwithstanding anything in this Division, no pilot-in-command shall, unless a flight plan has been filed, operate an aircraft between Canada and a foreign state.

The salient portion of the allegation states: "... you were a pilot-in-command that planned to operat[e] aircraft, United Kingdom, G-BZUM ...". The offence is to operate an aircraft between Canada and a foreign state without a flight plan. The Minister has alleged that he planned to operate such a flight without a flight plan. Planning to operate is not an offence within the ambit of subsection 602.73(4). Further the flight did not operate between Canada and a foreign state as it never left Canada.

Held

The Minister has not proved the offence alleged.

DETERMINATION

The Minister has proved, on a balance of probability, charges 1 through 11. The sanctions as levied in the Notice of Assessment of Monetary Penalty are upheld.

The Minister's charge 12 is dismissed as the allegation contained in the Notice is not contrary to the regulation alleged to have been contravened.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal