Decisions

CAT File No. O-1428-33
MoT File No. 6504-P-398468-028408

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Leigh Benjamin Hutchins, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7, 7.9(2)
Air Regulations, C.R.C. 1978, c.2, s. 534(1), (2)(b), (4), (5)
Canadian Charter of Rights and Freedoms, s. 11

Standard of Proof, Special Purpose Operation, Due Diligence, Due Process, Low Flying, Pilot Training


Review Determination
Allister W. Ogilvie


Decision: June 12, 1997

I find that the Minister of Transport has established, on a balance of probabilities, that a contravention of paragraph 534(2)(b) of the Air Regulations occurred on June 21, 1996. The Respondent did not adduce evidence to establish that he fell within one of the exceptions of section 534. In the result, I confirm the assessed monetary penalty of $500.00. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this Determination.

A Review Hearing on the above matter was held May 21, 1997 at 10:00 hours at the town of Markham Civic Centre, in Markham, Ontario.

BACKGROUND

The allegation in this case arises from the conduct of a training flight on June 21, 1996, near the town of Brougham, Ontario.

An Agreed Statement of Facts provided that Mr. Leigh Hutchins was the pilot-in-command of a Cessna 150 aircraft, registration C-GGXN, on June 21, 1996 departing Toronto, Buttonville Airport at 15:45 local time. The Agreed Statement of Facts also stipulated that the pilot-in-command was a flight instructor, conducting flying training of a student. The lesson was to be Exercise No. 22 – Forced Approaches.

During that afternoon, a couple residing near the town of Brougham, Ontario reported to the Minister of Transport that an aircraft they identified as C-GGXN had flown very low over their property. The subsequent investigation into the incident resulted in the Minister of Transport issuing to Mr. Hutchins a Notice of Monetary Penalty 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):

Air Regulations, s.534(2)(b) in that on or about June 21, 1996 at or near Brougham, Ontario, you as pilot-in-command of a Cessna 150L, identified as C-GGXN, descended below 500 feet above the highest obstacle within a radius of 500 feet from the aircraft and in-so-doing created a hazard to persons and property.

As the monetary penalty was not paid, a Notice of Review Hearing was issued establishing May 21, 1997 as the day for the Tribunal to hear the allegations.

The Minister of Transport was represented by Case Presenting Officer Ms. K. Richter, and the Respondent, Mr. Hutchins, was represented by counsel, Mr. William Clark.

EVIDENCE

The Minister first called Mr. Jim Corbett, an employee of the Minister of Transport whose current primary duties lie in the investigatory and enforcement fields. Mr. Corbett testified to being an experienced pilot having a military background. He was qualified as an expert in regulations.

Mr. Corbett was the investigator on this file. It was initiated by a routine complaint. In the course of the investigation he interviewed Mr. Roberts and Mrs. Roberts, the people who initiated the complaint. He found sufficient reason to initiate the allegations that were the subject of this hearing.

Under cross-examination it was established that June 21, 1996 was the date of the occurrence, but the investigatory activity stretched into the next year. The letter of investigation to the alleged offender was dated October 17, 1996. It was established that throughout the investigation, no direct contact with the pilot was made prior to the letter being sent.

From the interview with the Robertses, Corbett felt that a hazard had been created.

The Minister next called Mr. Geoffrey Roberts, one of the complainants in the matter. A map of the general locale of Mr. Roberts' home, was entered as Exhibit M-2. He indicated his residence to be at the end of side road 20, about a mile north of highway 7. On an overhead projector, he drew a depiction of his property. It showed his residence and a barn to the west of the residence with a tree in between. A powerline ran between the house and barn. As well there were two trees and a hydro pole in front of the house. He estimated the distance to the barn to be 100 to 120 feet, and the height of the barn to be 30 to 35 feet. He estimated the height of the house at 35 to 40 feet, and the tree between the house and barn to be about 30 feet. The trees in the front were estimated at 15 to 20 feet high.

Mr. Roberts testified that, on the afternoon in question, he was sitting on his veranda which faces south, when he heard a whistling noise. When he looked up, he saw an aircraft coming towards his house. He then heard the motor and saw the aircraft start to bank and climb between the tree and the barn, slightly over it. He could view two people in the aircraft. He stated the aircraft really banked, and made a steep climb. He was able to read the numbers off the wing.

His wife had joined him on the veranda, and he had asked her the time. It was 4:25 p.m. His wife phoned someone at Transport Canada to report the incident. Mr. Roberts made notes of the incident.

Mr. Roberts testified that the incident had scared him. At first, he did not know if the motor was going, and thought the aircraft was going to come into the house.

Cross-examination elicited more description of the general terrain. He guessed that the rise from Highway 7 to the house was 10 feet. More specifically, the witness was asked if the aircraft could have been west of the barn, but this was denied. When asked where he first viewed the aircraft, he stated it was just before the trees in front, perhaps 300-350 feet from him. He was wondering which way to go to get out of the way.

Mrs. Roberts was called as the next witness. On questioning about her specific memories of June 21, 1996, she testified to having been in the house when she noticed dishes and cupboards rattling, heard a loud roar and ran outside in fear. She then saw the aircraft just over the top of the barn. When asked for height estimates, she stated she was not good at judging heights, but said the aircraft just barely cleared the trees which were just even with the barn. She stated that, had it not turned, the aircraft might have hit the trees, if not her home first. She next telephoned Transport Canada and spoke to someone who advised her to hang up and write down her recollection of the incident immediately, and then call back.

She testified that the incident had terrified her as she feared the aircraft might hit her house.

On cross-examination, Mrs. Roberts was asked to restate where she observed the aircraft. She reiterated that, from the veranda, she saw it between the tree and the barn. She did not see it approach the house or, at any time, heading toward the house. Her estimate of the height of the barn would be less than 50 feet, and of the tree "maybe 50 feet" given 5 or 10 feet one way or another. She could not testify as to the drop in elevation between her house and Highway 7.

On redirect by the Minister, she stated that she had seen other aircraft in the area actually hit trees, and she feared this one would hit the house or the barn.

The Minister's next witness was Mr. Marc Saulnier, an inspector for the Minister of Transport, specializing in civil aviation flight training. His duties include conducting flight tests of various kinds, e.g., a multi-engine flight instructor. He has an extensive background in flight training. He was accepted as an expert in flight training standards.

Mr. Saulnier testified that, in the practice of forced approaches, one usually need not go below 500 feet unless a student was having a problem. Should the manoeuvre be practised below 500 feet, a sparsely settled area was preferable. A hazard of practising in populated areas was the possibility of unseen obstructions, such as hydro wires running between two buildings.

On cross-examination, counsel for the Respondent introduced an excerpt from the Transport Canada Flight Training Manual[1], Exercise Twenty-two, Forced Landing (Exhibit D-1). The witness acknowledged that the illustration (Figure 2-57, at p. 129) depicting Forced Landing Approach showed the type of area recommended, which included a house and a barn. The witness read into the record a paragraph at page 128 as follows:

Try to choose a landing site near houses or a road so help is readily available. This is particularly important in the winter, as what is a leisurely walk during the summer can become an almost impossible task under certain winter conditions. Although the possibility of having an engine failure may be remote, it cannot be ignored. Therefore, a pilot should always be aware of suitable forced landing sites and indications of surface wind.

He concurred that this was in accord with the Minister of Transport's viewpoint.

An excerpt from a Flight Instructor Guide regarding Exercise Twenty-two Forced Landings, was introduced as Exhibit D-2. Paragraph 5 under Advice to Instructors was read in as follows:

(5) Normally, once approach flap has been extended, it is rarely necessary to descend below 500 feet on final. However, if a student is consistently under or overshooting, it may be necessary to continue the approach to a lower altitude when conditions permit, to prove that the approach was unsuccessful.

Upon examination on the subject, Mr. Saulnier acknowledged that descent below 500 feet may be necessary. The "Key position" in the depiction in Exhibit D-1 would also show that an aircraft would turn final at 500 feet and then descend below 500 feet.

The Minister asked the witness to clarify what "when conditions permit" meant in the context of paragraph 5 which had been read in "it may be necessary to continue the approach to a lower altitude when conditions permit, to prove that the approach was unsuccessful." (Emphasis added). Mr. Saulnier stated that those conditions contemplated an open area with no obstacles, such as trees or wires.

The Respondent called Mr. Chris English. He testified to being a student at Seneca College in the aviation field and that on June 21, 1996 he was a student pilot under instruction by Mr. Hutchins. The salient point of Mr. English's testimony was that he could not recall the specific flight in question, and the testimony of the Robertses did not evoke any memories. He was asked if he had been frightened by the flight would he have remembered it, and replied that he would have.

On redirect questioning, he stated that he estimated he had performed perhaps ten forced approaches dual and guessed at twenty approaches solo.

Mr. Hutchins testified on his own behalf. As per the Agreed Statement of Facts, he was the pilot-in-command of C-GGXN on June 21, 1996. He testified to having conducted six flights that day, with the flight in question being the 5th. Three of the six flights involved practice forced approaches. Having heard the evidence of the Robertses, he could not recall the flight. He testified that, if the circumstances were as they said, he would have remembered.

He first became aware of the investigation when Inspector Corbett made inquiries at Toronto Airways, Buttonville, regarding the dispatch sheets for that flight.

He testified to conducting more than 70 flights where forced approaches were practised.

ARGUMENT

The Minister argued that the aircraft and the pilot-in-command were identified. The manner in which it was established that the aircraft was below 500 feet and within 500 feet of objects on the ground was clear. The witnesses testified that they reported the aircraft to have created a hazard. Ms. Richter argued that paragraph 534(2)(b) of the Air Regulations allowed operation below 500 feet only where necessary and where it did not constitute a hazard. Thus, she argued all elements of the offence were made out, and she requested the sanction be upheld.

Mr. Clarke pointed to the discrepancies between the testimony of the witnesses regarding the height of objects, and the rise in land from highway 7 to the residence. He reminded the Tribunal that Mr. Roberts stated he took the numbers from the underside of the wing, the right wing being toward Mr. Roberts. However, the regulations require the registration to be on the underside of the left wing. Thus, he argues that for him to have seen the registration, the aircraft must have been much higher than the testimony indicated.

Although not directly on point to the allegation, Mr. Clarke stated that the pilot had never been interviewed regarding the allegation, but should have been the first to have been involved. He had no need to recall the incident until much later (October 17). With the amount of flying he does, he could not remember the flight and was therefore unable to defend himself. This situation was, in his view, unacceptable.

As well he argued that, since Mr. Hutchins had described his professional manner of conducting flight training, the defence of due diligence was appropriate.

THE LAW

Paragraph 534(2)(b) of the Air Regulations states:

(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

(...)

(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.

Subsections (4) and (6) are not pertinent to this case, but subsection (5) states:

(5) A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

Subsection 534(1) gives the following definition:

"special purpose operation" means an operation in which

(a) an aircraft is flown for the purpose of spraying, dusting, seeding, crop fertilizing, inspection of crops or livestock, pipeline or powerline patrolling, or any operation of a similar nature, rotorcraft external load operations, pilot training conducted by or under the supervision of a qualified flight instructor (Emphasis added)

There is then a general prohibition against a person flying an aircraft at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

An exception to that limit is created at subsection (5). A person may fly lower than the 500 feet if the flight is conducted without creating a hazard to persons or property, and the aircraft is flown in a special purpose operation that necessitates the flight to be lower.

Pilot training by a qualified instructor falls into that "special purpose" exception but only if the special operation necessitates that the flight to be lower and that the flight does not create a hazard to persons or property on the ground.

DISCUSSION

The Minister's two eyewitnesses place aircraft C-GGXN in close proximity to their residence at about 4:25 p.m. on June 21, 1996. Although their estimates of heights and distances differ, I take no adverse finding from that. Both admitted to guessing or estimating the heights. Both presented as straight forward and honest witnesses. Using either one's height estimates places the aircraft very close to their dwelling, at a low altitude.

Neither varied from their assertions on cross-examination. Although the hearing was held nearly a year after the event, they were aided by having written notes of the incident, contemporaneous with the event.

Both attested to being fearful for their lives and/or property due to the proximity of the aircraft to their home and property.

On the other hand, the pilot-in-command and student do not have any specific memory of the flight. Testimony was elicited to the fact that, should such a flight have taken place, they would have remembered it. However, the salient point is that neither remembers the flight and thus can neither confirm, deny nor enlighten me on the specifics.

An excerpt of the Flight Training Manual, Exercise Twenty-two, Forced Landing was entered as Exhibit D-1, and a portion was read into the record. Under the heading "Select a Landing Site" the paragraph read in begins "Try to choose a landing site near houses or a road so help is readily available."

As the manual suggests choosing a landing site near a house, the inference is that the pilot here was following the manual in choosing to be near the Roberts' residence.

However, the paragraph is referring to a forced landing, whereas, in the instant case, we are dealing with a practised forced landing. The object of the first is to land the aircraft close to a source of help; whereas the object of the latter is not to land at all, and hence there is no need to be close to any dwelling house. Therefore, I find the excerpt to be of no assistance to the Respondent.

Exhibit D-2 is a portion of the Flight Instructor Guide, again addressing Exercise Twenty-two, Forced Landings. It states:

(5) Normally, once approach flap has been extended, it is rarely necessary to descend below 500 feet on final. However, if a student is consistently under or overshooting, it may be necessary to continue the approach to a lower altitude when conditions permit, to prove that the approach was unsuccessful. (Emphasis added)

There was no evidence elicited to the effect that the student, Mr. English, was consistently under or overshooting, thereby necessitating a continued approach to a lower altitude.

When asked his opinion of the words "when conditions permit," from that excerpt, Mr. Saulnier, the Minister's expert on flight training stated the "conditions" would be an open area, with no obstacles, trees or wires.

In view of these observations, I do not find Exhibit D-2 to be helpful to the Respondent.

Counsel for the Respondent urged that the defence of due diligence pursuant to section 8.5 of the Aeronautics Act was applicable as the Respondent testified that his normal operation was, to paraphrase, by the book and wholly professional. However, it is due diligence for the alleged flight that must be shown, and the Respondent does not recall details of the flight. Thus, he cannot avail himself of the defence of due diligence in the circumstance.

The offence noted in the Notice of Assessment of Monetary Penalty, included the element of "creating a hazard to persons and property."

This language is found in subsection 534(5) of the Air Regulations which is one of the listed exceptions from the general prohibition of flying an aircraft at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft. It states:

(5) A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

ISSUES

Both parties referred me to jurisprudence which, in their view, would assist me in addressing the issue of "creating a hazard to persons or property." Two issues must be addressed: (1) what constitutes such a hazard, (2) how is the hazard, or lack of it, established.

From the jurisprudence proffered, I found the Minister of Transport v. David G. Peill, CAT File No. A-0083-33 to be helpful, not so much in of itself but by its adoption of reasoning found in Minister of Transport v. Gordon E. Boklaschuk[2].

The Boklaschuk case involved the alleged breach of paragraph 534(2)(b) of the Air Regulations but involved crop spraying rather than flight training, although both are "special purpose operations". The issues are identical, and I found the Appeal Determination to be helpful. The Appeal Panel reviewed section 534 in its entirety. [Note: the section has undergone amendment since Boklaschuk was decided, but the pertinent subsections remain the same.] The Tribunal was of the view that paragraphs 534(2)(a) and (b) covered the altitudes at which a pilot is permitted to fly over various areas, and that cumulatively they provided a rule covering flying altitudes everywhere. The Appeal Panel found subsections (4), (5) and (6) to be exceptions to the rule. After discussing the exceptions the Appeal Panel stated:

If Transport proves a breach of the rule, the onus shifts to the Respondent to establish that he falls within one of the exceptions. It is not up to Transport to prove the exception. (Page 6)

Regarding the issue of the creation of a hazard, the Appeal Panel stated:

Parliament in enacting the legislation clearly contemplated that special purpose operations would be flown at heights less than those prescribed by 534(2)(b). Conducting a special purpose operation at heights less than those prescribed in Section 534(2)(b) does not in itself constitute a hazard. Various Dictionary definitions of Hazard refer to A fortutious event [sic], chance accident; risk; peril, exposure to danger. To determine whether a hazard was created in a particular instance, the facts surrounding that case must be examined and each case decided on its own particular facts. For a hazard to be created, the chance of an accident, the risk or peril or the exposure to danger, must be real. To determine whether or not the operation in question created a 'hazard', the Hearing Officer must determine whether the manner in which the operation was conducted conforms to those standards that a reasonably competent Crop Sprayer would adhere to in the circumstances. If the operator in question can establish on a balance of probabilities that the operation in question conforms to those standards, the onus on him has been met. This is a matter which the Hearing Officer must determine based on the evidence adduced at the Hearing. (Page 7)

I find the reasoning of the Tribunal Members in Boklaschuk to be persuasive, and I adopt it in this instance.

To bring himself into the exception, the Respondent would have to prove that:

(a) the flight was conducted without creating a hazard to persons or property;

and

(b) the aircraft was flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

I note that the Respondent did not provide evidence in this regard. As regards the second requirement, the pilot training by a qualified flight instructor, is a special purpose operation. However, as previously discussed, Exhibit D-2 and the testimony of Mr. Saulnier establish that there was no necessity to be below 500 feet.

As regards the first requirement, I have adopted the reasoning in Boklaschuk which provides in part:

To determine whether or not the operation in question created a 'hazard', the Hearing Officer must determine whether the manner in which the operation was conducted conforms to the standards that a reasonably competent Crop Sprayer would adhere to in the circumstances.

In this instance, I must determine whether the manner in which the operation was conducted conforms to the standards that a reasonably competent qualified flight instructor would adhere to in the circumstances.

For the answer to this question, I refer again to the testimony of Mr. Saulnier and to Exhibit D-2, both of which establish that there was no necessity for the flight to be below 500 feet. Therefore, the operation was not conducted in a manner that would conform to the standard that a reasonably competent qualified flight instructor would adhere to in the circumstance. Thus I must find a hazard was created.

CONCLUSION

For the foregoing reasons the Minister of Transport has established, on a balance of probabilities, that a contravention of paragraph 534(2)(b) of the Air Regulations occurred on June 21, 1996.

The Respondent did not adduce evidence to establish that he fell within one of the exceptions of section 534.

In the result, I confirm the assessed monetary penalty of $500.00.

As an addendum, I must note the following. I referred to Mr. Hutchins having no memory of the flight in question. I find that this was so, but was not in the nature of his being evasive or contradictory. Mr. Hutchins presented himself as an earnest young professional pilot who stated the facts as he knew them. The numerous training flights, practising the same manoeuvre, made it the more difficult to remember a specific flight, which was to him, not unusual. The task may have been rendered more difficult because of the time between the event and his first knowledge of an alleged infraction. It may be noted that section 8.3 of the Aeronautics Act allows one to apply to have their record expunged after two years.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Transport Canada Flight Training Manual, 4th ed., at 127

[2] Minister of Transport v. Gordon E. Boklaschuk (Appeal), CAT File No. C-0141-33.


Appeal decision
Faye H. Smith, Samuel J. Birenbaum, Suzanne Jobin


Decision: November 20, 1997

The Appeal is denied. We confirm the Review Determination that Leigh Benjamin Hutchins contravened paragraph 534(2)(b) of the Air Regulations and that he did not adduce evidence to establish the application of the exemption set out in subsection (5) and did not establish that he exercised all due diligence to prevent the contravention. The assessed penalty of $500.00 is confirmed. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days following service of this determination.

An Appeal Hearing of the above matter was held before three designated Tribunal Members Tuesday, September 30, 1997 at 13:00 hours at the Federal Court of Canada, in the City of Toronto, Ontario.

BACKGROUND

The Appellant Leigh Benjamin Hutchins is appealing the determination of Vice-Chairperson Allister Ogilvie dated June 12, 1997 following a request for review by the Minister of Transport. The Appellant Hutchins was assessed a monetary penalty in the amount of $500.00 pursuant to section 7.7 of the Aeronautics Act for an alleged contravention on June 21, 1996 of paragraph 534(2)(b) of the Air Regulations being flight of an aircraft at an altitude of less than 500 feet above the highest obstacle within a 500-foot radius from the aircraft.

In his determination of June 12, 1997 the Tribunal Member confirmed the assessed monetary penalty by finding that the Minister of Transport had established, on a balance of probabilities, that a contravention of the said paragraph 534(2)(b) of the Air Regulations occurred on June 21, 1996. The Tribunal Member found that the Respondent (Appellant herein) did not adduce evidence to establish that he fell within one of the exceptions of section 534.

GROUNDS FOR APPEAL

From the Review Determination the Appellant requests relief on the following grounds as set out in his Notice of Appeal dated June 26, 1997:

  1. that the Tribunal Member erred in disallowing the Applicant's defence of due diligence;
  2. that the Tribunal Member erred in disallowing the Applicant's equitable defence based on the lapse of time between the incident and the request to the Applicant for recollection of the incident and therefore, the Applicant's inability to provide evidence of the actual incident due to that lapse of time;
  3. such further and other grounds that the written determination and transcript of the proceedings may disclose.

THE FACTS

The Tribunal Member at review referenced the following facts taken from an Agreed Statement of Facts: That Mr. Leigh Hutchins was the pilot-in-command of a Cessna 150 aircraft, registration C-GGXN, on June 21, 1996 departing Toronto, Buttonville Airport at 15:45 local time. The pilot-in-command was a flight instructor, conducting flying training of a student. During that afternoon, a couple residing near the town of Brougham, Ontario reported to the Minister of Transport that an aircraft identified as C-GGXN had flown very low over their property.

THE LAW

Paragraph 534(2)(b) of the Air Regulations states:

(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

(...)

(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.

Subsections (4) and (6) of the Regulations are not pertinent to this case, but subsection (5) states:

(5) A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

Subsection 534(1) of the Regulations gives the following definition:

"special purpose operation" means an operation in which

(a) an aircraft is flown for the purpose of spraying, dusting, seeding, crop fertilizing, inspection of crops or livestock, pipeline or powerline patrolling, or any operation of a similar nature, rotorcraft external load operations, pilot training conducted by or under the supervision of a qualified flight instructor (Emphasis added).

ARGUMENT

1. STANDARD OF PROOF

Counsel for the Appellant argued that the standard of proof cited by the Tribunal Member in his determination, specifically that the Minister had established the contravention on a balance of probabilities, was incorrect. The Appellant's counsel urged that the case of R. v. Sault Ste. Marie[1] specifically states that the prosecution must prove its case beyond a reasonable doubt.

The Minister's representative referred the Appeal Panel to the case of Thomas Ritchie Phillips v. Minister of Transport[2] which established the standard of proof for this Tribunal as being on a balance of probabilities.

DISCUSSION

This panel does not agree with the interpretation of the requisite standard of proof suggested by the Appellant's counsel. The case of R. v. Sault Ste. Marie did establish the three categories of offences: mens rea offences, offences of strict liability and offences of absolute liability.

Offences against the public's well being which threaten health or safety, and most of the offences committed under the Aeronautics Act, are invariably considered as offences of strict liability. There are no offences of absolute liability under the Aeronautics Act and related legislation. In the case before us, the offence is one of strict liability. In qualifying offences of strict liability, Justice Dickson wrote:

...the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application.[3]

Having established that the offence is one of strict liability, one must now review the standard of proof required of the Crown to prove such strict liability offences before the Civil Aviation Tribunal[4]. Offences before this Tribunal do not have the same standard required for their proof as do criminal offences but rather have the standard used for civil matters.

It is well established before the Civil Aviation Tribunal that the standard of proof is on a balance of probabilities. This standard was established in early jurisprudence of the Tribunal in the case of Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, quoted with approval in Minister of Transport v. Joanne M. Cameron, CAT File No. W-0017-33:

The burden of proof in this case is on the Minister. It is not necessary that the Minister prove the case 'beyond a reasonable doubt' which is the degree of proof required in criminal cases but the Minister must establish a case on a 'balance of probabilities.'

In the case of Norbert A. Selbstaedt v. Minister of Transport, CAT File No. C-0081-02, recently cited in Richard Pizzardi and Donald Doyle v. Minister of Transport, CAT File No. Q-0439-37, the Appeal Panel concurred as follows:

The Tribunal in weighing the document holder's right to procedural fairness and natural justice and the Minister's obligation to maintain an adequate level of public safety have determined that the standard of proof to be imposed on the Minister is not the criminal standard of 'proof beyond a reasonable doubt' but the civil standard of 'proof on a balance of probabilities'.

Hence the standard of proof for the crown before the Civil Aviation Tribunal is that of a balance of probabilities, and this standard is the one that also applies to the evaluation of a defence introduced by the document holder.[5]

2. DUE DILIGENCE

The Appellant's counsel next reviewed the evidence of the complainants and that of the expert witness who testified that there was no need to go below five hundred feet in the practice of forced approaches on the day in question. He reviewed as well the evidence of Mr. Hutchins who stated that this was the fifth of six flights conducted that day, of which three were forced approaches. He further testified that, if the flight had occurred as outlined by the complainants, he would have remembered it. He added that he had no recollection of it. The argument of due diligence was urged by the Appellant's counsel who implored the Appeal Panel to reject the Review Member's reasoning in this regard.

The Minister asked the Appeal Panel to uphold the Review Determination of the Tribunal Member in this respect on the basis that his findings of fact on the evidence presented by Mr. and Mrs. Roberts are valid and should not be overturned.

DISCUSSION

On a review of the facts, we find, as did the Tribunal Member at Review, that the Minister has established through the factual evidence of Mr. and Mrs. Roberts that the offence of low flying was made out, and that such facts tend to support the assertion of hazardous flight.

We concur as well with the interpretation of subsection 534(5) of the Air Regulations as set out in the case of the Minister of Transport v. Gordon E. Boklaschuk[6] that, once the Minister makes out the elements of the alleged offence of low flying, the onus then shifts to the Respondent (Appellant herein) to prove that he falls within the exception found in subsection 534(5) of the Regulations. It is not up to Transport to prove the exception.

It is an undisputed fact that the Appellant Hutchins was conducting a special purpose operation within the above-referenced definition. Having established that fact, the Appellant Hutchins must now prove that the flight in question was conducted without hazard and further that flight at the lower altitude was necessary for the conduct of this special purpose operation. The pilot has not proved these matters and quite simply stated his inability to do so as a result of the fact that he has no recollection of the specific flight. In the light of that fact and considering the evidence of the expert witness who has indicated his view that it was not necessary to go below five hundred feet to conduct the flight training indicated, we conclude that the pilot has failed to satisfy this panel that flight at such lower altitude was necessary. Accordingly, we find that the pilot has not brought himself within the exception found in subsection (5) of the Regulations, and we can find no error in the Review Member's conclusion that the Respondent (Appellant herein) in not recalling details of the flight cannot avail himself of the defence of due diligence.

3. DUE PROCESS – TIME LAPSE BETWEEN THE DATE OF OCCURRENCE AND THE DATE OF NOTIFICATION

The Appellant's Counsel submitted that Mr. Hutchins did not get due process because section 11 of the Canadian Charter of Rights and Freedoms was breached in that Mr. Hutchins was not charged within a reasonable time. In support of his submission counsel cites the notice provisions found in the Federal Contraventions Act and the excessive delay cited in the R. v. Askov[7] decision.

On behalf of the Minister it was argued that the limitation period of twelve months set out in section 26 of the Aeronautics Act governs proceedings initiated pursuant to section 7.7 of the Act. We were asked to reject the appellant's arguments on the basis that the action was commenced well within the limitation period.

DISCUSSION

Counsel for the Appellant acknowledged that in the case at hand the reference is to precharge delay, while the Askov case refers to the delay encountered between the date of the charge and the date of the trial or pretrial delay. He has asked that we apply the same concept. It is the view of the panel that the thirty-day time frames governing the service and filing of tickets in the Federal Contraventions Act have no application in the instant case. It is equally clear that the thirty-four-month delay between the time of the laying of the charge and the date of trial for the indictable offence in the Askov case bears no likeness to the case at hand. Applied to precharge delays, this example of excessive delay would be outside the twelve-month limitation period for the commencement of proceedings indicated at section 26 of the Aeronautics Act in any event. Moreover, the words "charged with an offence" found in section 11 of the Charter refer only to criminal or quasi-criminal proceedings giving rise to penal consequences, namely, imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere.[8]

Upon consideration of the issue of delay, it is obvious that promptly alerting the person whose conduct is complained of is desirable in all cases. This enables one to record recent events so as to fix the memory of witnesses and to preserve evidence which may otherwise perish. While section 26 of the Aeronautics Act sets the limitation period for this type of proceeding at twelve months, in the majority of cases it is not necessary to wait until the last days before the expiration of this prescription to initiate proceedings.

In the United States, the National Transportation Safety Board's Rules of Practice in Air Safety Proceedings include under Rule 821.33[9] a stale complaint rule. Hence while the limitation period for the commencement of the proceeding in that jurisdiction may in fact be two years, there is in the aforementioned rule the requirement for notification as to the reasons for the proposed action within six months of the occurrence in cases where the complaint does not allege lack of qualifications. Failure to do so risks having the complaint dismissed as a stale complaint.

In the case before us, the alleged offence occurred on June 21, 1996. A letter of investigation was forwarded to Mr. Hutchins in October, and the actual date of the Notice of Assessment of Monetary Penalty was January 14, 1997. The delay prior to notification to Mr. Hutchins by letter is in the nature of four months, and the time lapse between the date of occurrence and the date of the Notice of Assessment of Monetary Penalty is just short of seven months. While many cases which come before this Tribunal demonstrate lengthy delays and would benefit from the adoption of a notification process like the stale complaint rule mentioned above, the case before us does not appear to benefit from that consideration.

Even ignoring for the moment the suggested guidance of the twelve-month limitation period set out in section 26 of the Aeronautics Act, we do not find the delay in this case to be unreasonable and conclude that the Appellant was not deprived of due process in the result. While it is regrettable that Mr. Hutchins could not remember the flight, we appreciate as did the Tribunal Member at review that the case before us is further complicated by the conduct of repeated flying training procedures the details of which could not be severally recalled by the pilots.

CONCLUSION

We confirm the Review Determination that Leigh Benjamin Hutchins contravened paragraph 534(2)(b) of the Air Regulations and that he did not adduce evidence to establish the application of the exemption set out in subsection (5) of the Regulations and that he did not establish that he exercised all due diligence to prevent the contravention. The assessed penalty of $500.00 is confirmed.

DETERMINATION

The Appeal is denied.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Suzanne Jobin, Member
Dr. Samuel Birenbaum, Member


[1] [1978] 2 S.C.R. 1299

[2] 1987 CAT File No. C-0014-33 Appeal Determination

[3] [1978] 2 S.C.R. at 1302, cited in Richard Noël v. Minister of Transport, CAT File No. Q-0435-33, Appeal Determination at page 3.

[4] In R. v. Sault Ste. Marie, supra, the offences were proceeded with by way of summary conviction and tried in Provincial Court (Criminal Division).

[5] Minister of Transport v. Thomas Ritchie Phillips, 1987 CAT File No. C-0014-33, Appeal Determination.

[6] CAT File No. C-0141-33, Appeal Determination

[7] R. v. Askov [1990] 2 S.C.R. 1199.

[8] R. v. Wigglesworth (1987), 37 C.C.C. (3d) 385, [1987] 2 S.C.R. 541, 60 C.R. (3d) 193.

[9] 49 C.F.R. § 821.33 (Code of Federal Regulations).