Decisions

CAT File No. O-1193-33
MoT File No. 6504-P229449-026158

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

John B. Brennan, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c.2, ss. 548(1)(b), 548(1)(c)

Instrument Approach Procedures, Double jeopardy, Air Traffic Control Clearance


Review Determination
Alfred R. Spence


Decision: October 25, 1996

I dismiss the monetary penalty of $250.00 regarding Offence #2: paragraph 548(2)(c) of the Air Regulations due to what appears to be double jeopardy. The Respondent did contravene Offence #1: paragraph 548(1)(b) of the Air Regulations. I confirm the monetary penalty of $100.00 assessed by the Minister. This amount, payable to the Receiver General for Canada, must be forwarded to the Civil Aviation Tribunal within fifteen days following service of this determination.

The Review Hearing on the above matter was held Friday, September 6, 1996 at 10:00 hours in the Central Library, in the city of Mississauga, Ontario.

BACKGROUND

The Notice of Assessment of Monetary Penalty reads in part 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):

OFFENCE # 1:

Air Regulations, s.548(1)(b) in that on or about November 24, 1994, in the vicinity of Montreal Dorval Airport, Quebec, you, as the pilot-in-command, operated an aircraft registered C-FHEL and identified as CANEX 993 in IFR flight and did not ensure that the aircraft was flown in accordance with an air traffic control clearance. Specifically, you descended to an altitude of approximately 5700 feet when your air traffic control clearance was to descend to an altitude of 6000 feet.

OFFENCE # 2:

Air Regulations, s. 548(1)(c) in that on or about January 11, 1995, in the vicinity of Kelowna Airport, B.C., you, as pilot-in-command, operated an aircraft registered C-FKFM and identified as CANEX 100 in IFR flight and you did not ensure that the aircraft was flown in accordance with the instrument approach procedure. Specifically, you did not comply with track and minimum altitude requirements specified in the LOC/DME 1 RWY 15 approach.

The monetary penalty is assessed as follows:

OFFENCE 1: $100

OFFENCE 2: $250

Total assessment $350

THE LAW

Section 548 of the Air Regulations reads as follows:

548. (1) The pilot-in-command of an aircraft that is in IFR flight or IFR weather conditions shall

(a) prior to entering or taking off from a point within a controlled airspace, ensure that an air traffic control clearance based on the flight plan filed for the flight is obtained;

(b) ensure that the aircraft is flown in accordance with the air traffic control clearance; and

(c) where the aircraft makes an approach to an aerodome or a runway, ensure that the approach is made in accordance with the instrument approach procedure, unless otherwise authorized by the appropriate air traffic control unit.

(2) No deviations shall be made from the requirements of any air traffic control clearance except in an emergency that necessitates immediate action, in which case, as soon as possible after any action has been taken in connection with such emergency, the pilot-in-command of the aircraft shall inform the appropriate air traffic control unit of the deviation and, if necessary, obtain an amended clearance.

DEFINITION

Section 3 of the Aeronautics Act defines "pilot-in-command" as follows:

"pilot-in-command" means, in relation to an aircraft, the pilot having responsibility and authority for the operation and safety of the aircraft during flight time;

THE EVIDENCE

This hearing consists of two infractions:

OFFENCE #1:

Paragraph 548(1)(b) of the Air Regulations resulted in an air traffic control infraction which may have resulted in a loss of IFR separation while landing at Dorval Airport, Montreal.

OFFENCE #2:

Paragraph 548(1)(c) of the Air Regulations an operations violation under IFR conditions resulting in an aircraft being flown at less than minimum procedure turn altitudes and less than minimum quadrant altitudes during a missed approach at the Kelowna Airport, B.C.

Pre-hearing Agreements for both offences:

(a) Mr. Brennan was pilot-in-command (Captain) of both flights;

(b) aircraft type was CONVAIR 580;

(c) all dates and times are correct;

(d) there is no fatigue evidence in either contravention; and

(e) different first officers were on the flights.

THE FACTS – OFFENCE #1

Identification of Aircraft: C-FHEL or CANEX 993

Captain: John B. Brennan

First Officer: Andy Gray

Airport of Intended Landing: Montreal (Dorval), Quebec

CANEX 993 received an IFR clearance to descend to 6,000 feet during an approach to Montreal (Dorval) Airport. Captain Brennan handled radio communications and selecting of appropriate navigational equipment. First Officer Gray was flying the aircraft.

Captain Brennan's statement (Exhibit M-4) taken on November 17, 1995 by Inspector Corbett clearly states CANEX 993 did descend well below 6,000 ft. to the 5,700 ft level.

CONCLUSION – OFFENCE #1

Evidence submitted during this hearing indicated First Officer Gray was flying CANEX 993 inbound to Montreal (Dorval).

Captain Brennan's question is: "What latitude do you allow a First Officer?" This question I would not attempt to answer, and leave this decision to others more qualified in that area.

The definition of "pilot-in-command" is clear. It states who is accountable for this flight. What level of responsibility Captain Brennan may assign to F/O Gray must be discussed and clearly understood prior to the commencement of flight.

I confirm the Minister's decision regarding Offence #1: paragraph 548(1)(b) of the Air Regulations.

THE FACTS – OFFENCE #2

Identification of Aircraft· C-FKFM or CANEX 100

Captain: John B. Brennan

First Officer: Andrew Gill

Airport of Intended Landing: Kelowna, B.C.

CANEX 100 inbound to Kelowna B.C. from Calgary Alberta received an IFR approach clearance to Kelowna Airport from Vancouver Centre. During this flight First Officer Gill handled radio communications and selecting the appropriate navigational equipment. Captain Brennan was flying the aircraft.

The "Incident Report" filed on January 10, 1995 (Exhibit M-16) by Captain Brennan identifies that several instruments were malfunctioning.

The resulting IFR approach as shown by the radar plot CANEX 100 into Kelowna Airport is not comparable with the published approach plate LOC/DEM 1 RWY 15 (Exhibit M10).

Several errors are very prominent and could have been fatal:

(a) heading inbound to airport,

(b) descent below 6300 ft when not on localized, and

(c) missed approach procedure.

Captain Brennan found himself in a difficult situation resulting from previous decisions, i.e.,

  1. Not to have remained/returned to Calgary when instrument errors identified.
  2. Not identifying approach facility properly.
  3. Descending below minimum altitudes in attempting to carry out an approach to Kelowna Airport.

The incident at the Kelowna Airport resulted in a suspension of Captain Brennan's instrument flight rating on January 20, 1995. Captain Brennan's instrument rating was reinstated after retraining requirements were met.

CONCLUSION – OFFENCE #2

The suspension of Captain Brennan's instrument rating is an applicable penalty. The monetary penalty does not upgrade a person's qualifications, but encourages a person to go with the "status quo" and pay the price. It is my opinion that the adage of "DOUBLE JEOPARDY" is apparent in this case. Therefore, I do not agree with the Minister and dismiss Offence #2: paragraph 548(1)(c) of the Air Regulations.

DETERMINATION

The Respondent did contravene Offence #1: paragraph 548(1)(b) of the Air Regulations. I confirm the monetary penalty of $100.00 assessed by the Minister.

Regarding Offence #2: paragraph 548(2)(c) of the Air Regulations, I dismiss the monetary penalty of $250.00 due to what appears to be double jeopardy.

Alfred R. Spence
Member
Civil Aviation Tribunal