Decisions

CAT File No. O-2029-02
MoT File No. PAP 5504-041065

CIVIL AVIATION TRIBUNAL

BETWEEN:

Roger Mark Beckett, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c.33 (1st Supp), s. 6.9
Canadian Aviation Regulations, SOR/96-433 s. 602.14(2)(b)

Low flying, Elsewhere than over a built-up area


Review Determination
Philip D. Jardim


Decision: July 21, 2000

The Minister has not proved on a balance of probabilities that Mr. Beckett contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations on February 12, 2000. I therefore dismiss the allegation against him and cancel the 7-day suspension.

A Review Hearing on the above matter was held Tuesday, July 18, 2000 at 10:00 hours at the John Sopinka Court House in Hamilton, Ontario.

BACKGROUND

On February 12, 2000, at approximately 10:50 hours, Roger Beckett was flying his Piper Colt PA 22-108, C-FNQS in the vicinity of Welland Airport. In the course of this flight, he flew over the farm of Gordon Redekop. Mr. Redekop alleges that the aircraft was flying too low and reported the matter to Welland Airport. Transport Canada conducted an investigation and suspended Mr. Beckett's private pilot licence. Mr. Beckett appealed this suspension to the Tribunal, and this resulted in this hearing.

THE LAW

Paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs) states:

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

EVIDENCE

The Minister's case was presented by Ms. Pat Pybus. She called three witnesses.

Mr. Gordon N. Redekop

Mr. Redekop owns the farm over which the alleged infraction took place. He testified that the Applicant flew his aircraft C-FNQS over his farm on the day in question at an altitude he estimates at 150 to 175 feet above the ground. The aircraft approached his farm from the west, flew over his house and barn very slowly and proceeded away to the north. He said that the approach of the aircraft disturbed his geese and that this sort of thing had happened before. He did not see the registration letters on the aircraft, but one of his friends (Mike Irek) did and they made a note of them.

He discussed this matter with his two friends, called Mr. Beckett's father and reported the matter to Welland Airport. At the time he reported the matter, the aircraft was just landing at Welland. He said that Mr. Beckett, Senior did nothing about it and he reported the matter. One of his friends has some flying experience and declared that the Applicant had "broken all safety rules."

Mr. Redekop said that he estimated the height of the aircraft at 150 to 175 feet above the ground by comparing it to the height of the trees which are about 100 to 125 feet high. The aircraft was a "creamy white colour."

In his cross-examination of Mr. Redekop, Mr. Beckett referred to an ongoing dispute between Mr. Redekop and his father, and asked Mr. Redekop why he had not approached him instead. Mr. Redekop did not answer the question directly, but said that he was "concerned at his family's well-being." On further questioning he said that Mr. Irek, his friend, had seen and taken note of the registration letters of the aircraft. He himself had not seen them.

Mr. Mike Irek

He was present on the day in question when the aircraft flew over his uncle's house. He saw the registration marks and estimated the height of the aircraft as 150 feet above the trees. It was white and red. Mr. Irek thought that the incident had taken place in the afternoon—he was somewhat unsure.

On cross-examination by Mr. Beckett, Mr. Irek stated that he read the registration marks off the right wing. (The marks are actually on the left wing.) He estimated the height of the aircraft from the height of the trees, which he knows to be about 100 feet high. (The mistake between right and left is understandable.) Mr. Beckett did say that he had established that the registration marks, which are 20 inches high, were read some 1,300 feet away, when the aircraft was landing at Welland.

Mr. Roman Bobelak

He was present at Mr. Redekop's farm on the day in question—February 12. He saw the aircraft over the driveway. He said "the aircraft was unusually low banking to the left in a steep turn—about 35 degrees—the aircraft was unusually quiet and flying unusually slow."

In cross-examination by Mr. Beckett, Mr. Bobelak estimated the speed of the aircraft to be 50 mph, in a steep turn. Later on Mr. Bobelak contradicted himself by saying that although the wings were banked, the aircraft was not turning. Mr. Beckett was not able to elicit from the witness how the wings were banked and yet the aircraft was not turning.

This ended the Minister's case.

Mr. Beckett's evidence

Mr. Beckett was duly sworn.

He said that he was at no time lower than 1,400 feet above sea level (ASL), which is 600 feet above ground level. He was always more than 2,000 feet horizontally from two towers and was always above them. He explained his flight path with the aid of two aerial photographs. He said that at no time was his engine throttled back, and his speed as he passed over the area was 105 to 110 mph. Engine rpms were 2,400.

In cross-examination of Mr. Beckett, Mr. Wilcox questioned him about his distance from the towers and height above them. Mr. Beckett maintained that he was 2,000 feet horizontally from them. At 1,400 feet ASL he would have been just 221 feet above one of the towers which is 1,179 feet high. However, being 2,000 feet horizontally from them, he was within the regulations.

Mr. Beckett called two witnesses, Ardell Beckett, his father, and Daniel Walters, a pilot with some 30 years' experience, who was with him in the aircraft on February 12. Both witnesses were duly sworn and testified that Mr. Beckett was not low flying.

CONCLUSION

In a situation such as this where there is conflicting evidence, witness credibility, flying experience, judgement and other influences such as feuds or ongoing disputes all bear particular relevance in determining guilt or otherwise.

Both Mr. Bobelak and Mr. Redekop commented on the slow speed and quietness of the aircraft. A low flying aircraft is always more noisy. I seriously question their judgment of the height of the aircraft. This is not to question their credibility.

The ongoing dispute between the two families cannot be ruled out.

I find Mr. Beckett's evidence credible and I accept his statement of the altimeter readings. He flew over the area just once, and this is not consistent with him intentionally wishing to "buzz" the area.

DETERMINATION

At the conclusion of this Review Hearing, I have determined that the Minister has not proved on a balance of probabilities that Mr. Beckett contravened paragraph 602.14(2)(b) of the CARs on February 12, 2000. I therefore dismiss the allegation against him.

Philip D. Jardim
Member
Civil Aviation Tribunal