Decisions

CAT File No. O-1129-05
MoT File No. PAP6504-P-99442-25684

CIVIL AVIATION TRIBUNAL

BETWEEN:

Donald Doyle, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss 6.9, 8.4(1)
Air Regulations, C.R.C. 1978, c. 2, ss 534(2)(a), (b)

Low Flying, Double Jeopardy


Review Determination
Philip D. Jardim


Decision: October 16, 1996

With respect to the Minister's proceedings against Mr. Doyle for the identical offences in CAT File No. O-1131-37, I find that this is a clear case of "double jeopardy" against Mr. Doyle. I therefore dismiss this case in accordance with the Kienapple principle, (Regina v. Kienapple 15 c.c.c. (2d) 524.)

The Review Hearings on the above matters were held Wednesday, October 9 and Thursday, October 10, 1996 at the Police and Fire Building in Bowmanville, Ontario. Messrs. Pizzardi and Doyle arrived thirty minutes late on both days, so that proceedings were correspondingly delayed.

BACKGROUND

The Minister proceeded against Messrs. Pizzardi and Doyle jointly, and separately against Mr. Doyle, for the identical alleged infractions against paragraphs 534(2)(a) and (b) – Low Flying – of the Air Regulations. The question of "Double Jeopardy" in the case of Mr. Doyle arises and is dealt with later in this Review Determination.

CAT File Nos. O-1131-37 and O-1129-05

Offence 1

Air Regulations, s.534(2)(a), in that on or about September 20, 1994, at approximately 14:45 hours local time, a Cessna 172 aircraft registered C-GBPR was flown at an altitude of less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft over the built-up area of the settlement of Newcastle, Ontario.

Offence 2

Air Regulations, s.534(2)(b), in that on each flight detailed in the following counts, a Cessna 172 aircraft registered C-GBPR was flown at an altitude of less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Count 1: On or about September 5, 1994, at approximately 14:00 hours local time, over R.R. #1, Belwood, Ontario.

Count 2: On or about September 20, 1994, at approximately 15:10 hours local time, over R.R. #4, Durham, Ontario.

The Minister proceeded against Messrs. Pizzardi and Doyle jointly, under subsection 8.4(1) as registered owners of C-GBPR, assessing penalties of $ 750.00 on each of the three counts, totalling $ 2,250.00. The Journey Log for C-GBPR could not be located, so that it could not be proved who the Captain of the aircraft was on these occasions. It transpired that Messrs. Pizzardi and Doyle sold the aircraft in March 1995. The new owners said that Messrs. Pizzardi and Doyle had the log for the dates in question; they denied this, saying that the new owners, LeBlanc and LeFebvre had the log book!

The Minister also proceeded separately against Mr. Doyle under the identical legislation, as owner of the aircraft, and for the same infractions under reference above, assessing 30-day suspensions of his pilot licence, to be served concurrently, for a total suspension of thirty days.

The Minister adduced evidence before the Review Hearing from a total of eight witnesses, to prove the allegations against Messrs. Pizzardi and Doyle. The document holders did not present any defence to counter the evidence against them, despite my urging them to do so, in that my decision would have to be made solely on evidence presented at this hearing.

THE LAW

Paragraphs 534(2)(a) and (b) of the Air Regulations state:

(2) Except as provided in subsections (4), (5) and (6) or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft

(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; or

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Subsection 8.4(1) of the Aeronautics Act states:

8. 4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

THE MINISTER'S EVIDENCE

All witnesses except Ms. Elliott were excluded.

Mr. Oskar Binder, presenting the Minister's case sought to have Inspector Oonagh Elliott qualified as an expert witness on Aviation Documentation. This was accepted. Inspector Elliott has been with Transport Canada for twenty years, seven of them in the Enforcement Branch.

Oonagh Elliott, Inspector Transport Canada, testified that C-GBPR, a Cessna 172, was owned by Messrs. Pizzardi and Doyle in September 1994. The aircraft was sold on March 30, 1995 to Messrs. Stéphane LeBlanc and Yves LeFebvre of Laval Quebec. Copies of the Certificates of Registration were entered as exhibits.

Efforts to obtain the Journey Logs for the period July 1994 through July 1995, from both of the owners, proved fruitless. A discussion took place at the hearing today centering on the logs for G-GBPR. It transpires that this aircraft has several logs because of its frequent involvement in Transport Canada enquiries. Both owners, new and old, told Ms. Elliott that they did not have the log and that the "other owners must have it."

Transport Canada was therefore unable to establish who the Captain of the aircraft was on the dates in question and have therefore proceeded against the owners under "vicarious liability" as provided for in subsection 8.4(1) of the Act.

Peter Lomax, Gary Dusseldorp, Edward Donnelly and Mark Berney respectively, were the next witnesses to appear. They were all manning a fire engine, "Pump #1" of the Bowmanville Fire Department, returning from a call on September 20, 1994 at 15:10 hours, on Road 42 in R.R. #4, Durham Township. The weather was clear. The Captain of the fire engine was Mark Berney. They were excluded from the hearing to preserve the integrity of their evidence. They all gave highly credible and concurring evidence that they were returning from a call southbound on Durham Road 42 when they witnessed a single-engine high-wing aircraft, white with blue markings, flying low at a height they all estimated as "2 hydro poles", i.e., 80 to 100 feet high. They stopped the fire engine to observe the aircraft. The hydro poles in the area are some 45 feet high. The aircraft flew over their vehicle twice and seemed to them to be in difficulty as if it were looking for somewhere to land. The aircraft continued to circle and manoeuvre at low level over farms and homes in the area for five to ten minutes.

Captain Mark Berney radioed his dispatch to contact Oshawa Air Traffic Control to report that they had seen an aircraft in apparent difficulties in the area. The crew members of "Pump #1" reached a consensus that the aircraft registration was C-GBPR. They all agreed that the aircraft was single-engined, high-winged and white with blue markings.

These witnesses were all scrupulously cross-examined by the document holders and were asked whether the aircraft was landing, in their effort to justify its low flight path. While some of the firemen acknowledged that there were farm strips in the general area, the aircraft was never seen to land. None of the strips was near enough to justify the low level manoeuvres of the aircraft at that time.

Edward Donnelly wrote a statement (Exhibit D-3) in which he records the identification of the aircraft as "C.G.B.R." A discussion took place on this, with Mr. Doyle closely questioning Mr. Donnelly. It seems that this was a typographical error, as Mr. Donnelly concurred with his colleagues immediately after the incident that the registration was C-GBPR.

Gary Dusseldorp and Mark Berney both drew flight patterns of the aircraft. These were entered as Exhibits D-3 and M-5 respectively. Captain Berney also made a statement to the RCMP which is entered as Exhibit D-7. Further, in his cross-examination of Captain Berney, Mr. Doyle entered a photograph of a white Cessna 172 with blue markings. Captain Berney said that he recognised this aircraft as very similar to the aircraft that he had seen, except that the registration marks are different. This was entered by Mr. Doyle as Exhibit D-6.

All of the firefighters were questioned, principally by Mr. Doyle, as to whether there were any other aircraft in the area, and they all denied seeing any in the vicinity at the time.

Mr. Paul Snell was Transport Canada's next witness. He is a licensed pilot, has flown both Cessnas and Pipers, and was watching television at home at 168 Andrew Street in Newcastle, Ontario at 14:45 hours on September 20. He heard a low flying aircraft and rushed outside to see it. As he did so he saw a white Cessna 172, Registered C-GBPR passing over his house at a height of about 100 feet. The aircraft gave him the impression of being in difficulty, trying to make a landing in the built-up area. Mr. Snell drew a map and the flight path of the aircraft. This was entered as Exhibit M-9, along with a map of the Newcastle area, identifying the location of Mr. Snell's house – Exhibit M-8. C-GBPR remained in the area for a full ten minutes, manoeuvring with its flaps partially extended.

Mr. Snell called Oshawa ATC to see if they had any reports of an aircraft in difficulty, but there were none. Mr. Snell, under cross-examination by the document holders, said he knew of no airstrips in the immediate vicinity where the aircraft might have landed. The aircraft is shown in Exhibit M-9 as flying in a racetrack-shaped pattern, in slow flight with its flaps partially extended.

Mr. Snell was carefully cross-examined by the document holders as to the registration of the aircraft, its height and proximity to the built-up area, but he remained steadfast in his evidence.

The Review Hearing was adjourned until the next day – Thursday, October 10, 1996.

Lynn Corbett and Fred Corbett were called as the Minister's next witnesses. Mr. Corbett was excluded during his wife's testimony.

Lynn Corbett was the Minister's next witness. She lives with her husband and family on a farm near Belwood, Ontario. On Labour Day, September 5, 1994, she was on the deck behind her house when she saw a white and blue single-engine aircraft proceeding at low level directly at her. She screamed for her husband who was in the barn, and the aircraft altered course, passing 150 feet away, avoiding the trees near to the house. Mrs. Corbett estimated the height of the aircraft at no more than 100-120 feet. She estimated this by the height of the trees on her property which are in the order of 80-100 feet high. She said that the aircraft had to bank to avoid hitting the trees, and it was gone within a minute or so. Mrs. Corbett drew a diagram of the property and her estimate of the aircraft's flight path (Exhibit M-11). She did not notice the registration markings on the aircraft, as she was too terrified.

Less than two weeks later, a salesperson for Skyview Aerial Photo Service of Hawkesbury, Ontario appeared at her door offering an aerial photograph of the farm (Exhibit M-12). She and her husband bought it for $50.00 + $7.50 tax, and paid by cheque. Her husband's signature appears on the Purchase Order, and the words "Paid by Cheque" were written across it by the salesperson. The Corbetts buy aerial photographs of their property every five years, but they had never seen an aircraft approach their property at such a low level.

The address of Messrs. Pizzardi and Doyle on the Certificate of Registration of Cessna 172 C-GBPR is identical to that on the purchase order issued by Skyview Aerial Photo Service. Mr. Binder, in his questioning of Mrs. Corbett, asked her whether she was of the opinion that this photograph was taken on that same day. She replied that she thought that it almost certainly was.

The document holders cross-examined Mrs. Corbett thoroughly to the point where I had to intervene to stop them from harassing the witness. This did not in any way prevent them from achieving their objective in seeking to undermine her testimony.

Mr. Fred Corbett followed his wife onto the witness stand. Mr. Corbett was in his barn on September 5, 1994 when he heard his wife scream. His daughter came into the barn almost simultaneously, and he ran out to see an aircraft departing the property at low level. He jumped into his truck and proceeded to follow it across country for twenty minutes, losing sight of it for only a minute or so during this period. He eventually caught up to it over the Tychynksi farm where it was circling. It was at a height of 2-3 telephone poles, i.e., 120 to 150 feet. As the aircraft circled the Tychynksi farm, Fred Corbett wrote down its registration from the left wing – C-GBPR. He said that it was a Cessna 172 – 185, single-engine, high-wing aircraft, white with blue trim. Its flaps were deployed as it circled. The aircraft was within 200 feet (2 road widths) of the Tychynksi property. Mr. Corbett confirmed that the photograph, Exhibit M-12, was of his property, and that he had paid for it by cheque, and signed the purchase order.

Under cross-examination by the document holders, Mr. Corbett said that there was a glider strip in the general area, but that he did not see the aircraft land. The glider tow plane was a different type, and it was not in the area at the time. Mr. Corbett was positive that the aircraft which had flown over his farm was C-GBPR.

Constable Mervin Lane, Federal Enforcement Section, RCMP was the last witness to appear at the Review Hearing. He was called by the document holders. He testified that the statements he had taken from the firefighters were as a result of a complaint by someone. The statements were originally handwritten, and he had typed them up himself. Mr. Doyle was concerned that the preamble to his report containing the statements detailed the registration of the aircraft, and that, on reading this, the witnesses might come to know the registration by reading it here rather than having seen it on the aircraft itself. Mr. Lane said that he had obtained it from Transport Canada.

Mr. Binder, in cross-examination of Mr. Lane, showed him a copy of a letter from the RCMP. Mr. Binder stated that Oshawa ATC had reported the matter to the RCMP. ATC had in turn received the identification marks from the witnesses who had reported the incidents to them.

The document holders then questioned Ms. Elliott under oath as to the low flying regulations, aerodromes, farmers' strips, and sequencing of aircraft registration.

The Minister having closed its case, I invited the document holders to offer their defence against the evidence of the Minister's witnesses. They declined to do so. They would not take the stand and make statements in their defence. I reiterated that my decision could only be made based on the evidence presented before me.

DOUBLE JEOPARDY

I must now turn my attention to the issue of Double Jeopardy. In his Review Determination, Tribunal member R.J. Rushford, Q.C. dealt with this matter in the case of Stewart Lake Airways Limited and Minister of Transport, CAT File No. C-0334-10. The law relating to double jeopardy is as follows:

Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence. (Emphasis added)

This rule against multiple convictions for the same cause or matter was dealt with by the Supreme Court of Canada in Regina v. Kienapple 15 C.C.C. (2d) 524. This rule is now entrenched in Canadian jurisprudence.

The suspension of Mr. Doyle's licence for thirty days is a serious penalty. A document holder under the Aeronautics Act should have no less protection against multiple convictions for the same offences. Like my learned colleague, Mr. Rushford, I conclude that Mr. Doyle is being punished twice for the same infraction.

CONCLUSION

In the face of highly credible, consistent and overwhelming evidence by the Minister's witnesses, I have no doubt that the alleged infractions did occur on the dates and at the times stated. The Minister has proved its case.

It is regrettable that Messrs. Pizzardi and Doyle do have an unfortunate record of similar offences, as detailed by Inspector Binder during his summation, dating back to 1987.

Further, I gave them every opportunity to defend themselves against the allegations made by the Minister. Further, I went out of my way to advise them of the dispensations available to them in the future, should they choose to register their aircraft commercially for aerial photography. While they alluded to or inferred to a number of circumstances that might have occurred during their thorough cross-examination of the witnesses, they would not say what had happened to the aircraft logs, nor would they say whether or where the aircraft might have landed during its low level manoeuvres, nor would they say who the pilot-in-command was on these occasions.

In their summation, the document holders complained about the length of time it has taken for this issue to be finally heard by the Tribunal. Notwithstanding that there have been three postponements at their request, they further alleged some unfairness in the way the Tribunal has come to some or all of its previous decisions, namely "on a balance of probabilities." I tried to explain this legal terminology, but I am not sure that they accepted it. The evidence in this case has been certainly overwhelmingly against them, such that the balance of probabilities is as near 100% as it might ever be.

DETERMINATION

(CAT File No. O-1131-37)

I have no alternative but to confirm the Minister's allegations against Messrs. Pizzardi and Doyle and the monetary penalty of $2,250.00. There must be a continuing deterrent to them and others that the regulations will be enforced and upheld in a fair and just manner.

(CAT File No. O-1129-05)

I conclude that Mr. Doyle is being punished twice for the same infraction. The duplicated allegations against him under CAT File No. O-1129-05 and MoT File No. PAP6504-P-99442-25684, Notice of Suspension dated September 1, 1995, are hereby quashed in accordance with the Kienapple principle.

Philip D. Jardim
Member
Civil Aviation Tribunal