Decisions

CAT File No. O-2293-33
MoT File No. PAP5504-042528

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Alain Tremblay, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, s. 602.01

Seaplane operating near swimmers, Negligent or reckless operation of an aircraft, Negligence


Review Determination
Suzanne Racine


Decision: November 22, 2002

TRANSLATION

We find that the Minister has proven, on a balance of probabilities, the offence of reckless conduct mentioned in the Notice of Assessment of Monetary Penalty issued May 24, 2001. We uphold the Minister's decision to assess the monetary penalty of $500. This amount must be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within 15 days of the receipt of this determination.

A Review Hearing on the above matter was held Tuesday, October 15, 2002, at 10:00 hours, on the 18th floor of the Standard Life Building in Ottawa, Ontario.

No agreement was reached by the parties prior to the hearing.

The witnesses were excluded.

OBJECT OF THE REVIEW HEARING

On May 24, 2001, the Minister of Transport served the Respondent, Alain Tremblay, with a Notice of Assessment of Monetary Penalty in the amount of $500 pursuant to section 7.7 of the Aeronautics Act for having contravened section 602.01 of the Canadian Aviation Regulations (CARs). According to the Minister, Mr. Tremblay had operated an aircraft in a reckless manner that could have endangered the life or property of certain people. The notice in fact states that Mr. Tremblay, as pilot-in-command of the LA-4-200 aircraft registered as C-FBPQ, flew this aircraft close to certain people at Constance Bay beach and that, as a result of this manoeuvre, one person was injured while attempting to flee the area and required medical attention.

As the Respondent had not paid the sum of $500 by the specified date of June 25, 2001, the Civil Aviation Tribunal duly convened this hearing.

PRELIMINARY MOTION

The member, prior to proceeding with the hearing, ruled on the Minister's written motion dated June 11, 2002. This motion sought to amend the Notice of Assessment of Monetary Penalty dated May 24, 2001, by adding to the second line of the count, the words "or negligent" after the word "reckless", in accordance with the provisions of section 602.01 of the CARs.

The Respondent, after being consulted, did not object to this. The member allowed the change requested as it was not unexpected, nor did it prejudice the Respondent, who had sufficient time to prepare a full defence.

THE LAW

Section 7.7 of the Aeronautics Act stipulates as follows:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,
(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and
(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Section 602.01 of the CARs reads as follows:

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

THE FACTS

Evidence of the Applicant

The Minister's representative called Ms. Oonagh Elliott, an inspector who has worked for Transport Canada for seven years and who headed the investigation of the accident that occurred August 12, 2000, at Constance Bay. She told the Tribunal that she interviewed two witnesses regarding the incident. She filed as Exhibit M-1 four Internet photographs of seaplanes. Ms. Elliott told the member that the two witnesses she met with identified the aircraft shown on page 3 as being the type of aircraft they had seen that day. Again, she filed in a bundle, as Exhibit M-2, four other photographs of seaplanes. Ms. Elliott said that the witnesses had identified aircraft no. 4 as being the one they had seen that day.

According to Inspector Elliott, the identified aircraft was a hulled, amphibious aircraft called the Lake Buccaneer (LA-4-200). She said there was only one Lake Buccaneer in the whole Gatineau region, and filed as Exhibit M-3 a colour photograph of a Lake Buccaneer bearing the letters BPQ. Ms. Elliott was very familiar with this aircraft as she had previously been involved in an investigation on one of these.

The witness then filed, as Exhibit M-4, a coloured photograph of the aircraft seen on August 12, 2000, at Constance Bay. This photograph originated from an amateur video (filed as Exhibit M-8) filmed by Shannon Suzuki, an eyewitness to the incident of August 12, 2000, at Constance Bay. According to Ms. Elliott, it is easy to see that the aircraft shown in Exhibits M-3 and M-4 is the same one. She testified that, in both cases, the aircraft is a dark colour, that the call letters are marked on the lower part of the tail, that a similar marking appears on the side of the aircraft and the engine, and that the design on the stabilizer is also similar.

The witness then filed a certified true copy of the aircraft journey log of C-FBPQ in evidence as Exhibit M-5. This log mentions that the said aircraft was flown by A. Tremblay on August 12, 2000, from Lac Simon. The computerized data of the aircraft movements recorded at the flight service station (FSS) for the Gatineau region, filed as Exhibit M-6, and the audio recording obtained from the same service and filed as Exhibit M-7, show that aircraft C-FBPQ flew over the area several times on August 12, 2000 (3 departures and 3 arrivals were recorded for August 12, 2000).

After these exhibits were filed, Mr. Alain Tremblay admitted to the member that he had indeed been the pilot of the aircraft shown in the photograph filed as Exhibit M-4 and of that heard on the audio tape filed as Exhibit M-7.

Ms. Elliott then filed two (2) videotapes; one filed as Exhibit M-8 shows the initial approach of aircraft C-FBPQ onto the waters of Constance Bay, on August 12, 2000, and the other, obtained from the Aylmer Police and filed as Exhibit M-9, is simply a copy of the videotape filed as Exhibit M-8.

The Respondent did not cross-examine Ms. Elliott.

The Minister's representative then called Don Dingwall, a witness present on August 12, 2000, when the incident took place at Constance Bay. He testified that there had been a number of people that day at Constance Bay, both on the beach and in the water. While taking a path down to the beach, Mr. Dingwall said that he heard and first saw Mr. Tremblay's aircraft flying low and at a high speed just above the trees heading northwest. On an enlarged aerial photograph of Constance Bay, filed as Exhibit M-10, Mr. Dingwall identified his position when he first saw Mr. Tremblay's aircraft, signing his initials (DD) followed by the number 1.

The witness then said he had lost sight of the aircraft behind the trees and saw it again a second time from the beach at the spot identified by his initials (DD) followed by the number 2. The aircraft was on the water facing southeast. He saw the aircraft make a 180-degree turn on the water towards the beach before initiating take-off. He testified that the aircraft was some 150 yards from shore during this manœuvre, the place being marked with an x and initialled DD on the photograph filed as Exhibit M-10. According to the witness, there were swimmers 20 to 50 feet from the aircraft when the pilot conducted this manœuvre. Mr. Dingwall had thought that the pilot was playing a "dangerous game" during that very crowded day at Constance Bay.

On cross-examination by Mr. Tremblay, Mr. Dingwall confirmed that Mr. Tremblay's aircraft was about 10 to 15 feet above the treetops the first time, and that, the second time, it was taxiing fairly fast on the water, at about 50 miles per hour. The witness said that the pilot continued to use the same engine speed while making his 180-degree turn towards the beach.

Ms. Hélène Gaudreau, the Minister's third witness, was also present on August 12, 2000, at the Constance Bay beach with her son, sister-in-law and her sister-in-law's son. She said she first saw Mr. Tremblay's aircraft and heard a tremendous noise while she was on the beach at the spot identified by her initials (HG) on the aerial photograph filed as Exhibit M-10. According to her, the aircraft was flying just above the trees along the beach and was making a lot of noise. She thought the aircraft was in difficulty. She then lost sight of it as it headed towards the west end of the beach.

The witness was in the water when she saw Mr. Tremblay's aircraft again, on the water moving in the opposite direction from before. Ms. Gaudreau testified that she then saw the aircraft make a 180-degree turn on the water towards the beach. The aircraft's engine was very noisy. She thought the pilot had lost control of his aircraft because he seemed to her to be about 20 or 30 feet from some swimmers. Frightened by the manœuvre, Ms. Gaudreau left the water very quickly with her sister-in-law, who injured herself in attempting to flee the area.

On cross-examination, Ms. Gaudreau again said that she was very surprised to see an aircraft flying so low above the tree line and was frightened by the noise of the engine. She went on to say that there had been a number of people in the water when she saw Mr. Tremblay's aircraft the second time. Asked to estimate the distance between the Respondent's aircraft and the watercraft shown in Exhibit M-4, she thought it was about 20 feet.

The Minister's representative then called Mr. Shannon Suzuki. He was taking part in a paragliding clinic on August 12, 2000, at Constance Bay at the time of the incident. Mr. Suzuki saw Mr. Tremblay's aircraft pass directly over his head going northwest at an altitude he put at between 50 and 100 feet. The engine was making a deafening noise. The witness marked with an "x" and his initials (STS) on the aerial photograph filed as Exhibit M-10 where he was when he saw and heard the aircraft. He saw the aircraft land on the waters of Constance Bay 400 yards away and make a 180-degree turn on the water. He then saw it travel southeast over the water, between the sandy point where a few people were walking and two or three swimmers were in the waters of Constance Bay. Mr. Suzuki was about 200 to 300 feet from the aircraft when he witnessed this manœuvre. A clip from a videotape he himself filmed and filed as Exhibit M-8 corroborates his version of events. The witness said he was first surprised and then genuinely afraid for the safety of the swimmers who were not far from the aircraft moving on the water.

On cross-examination by the Respondent, Mr. Suzuki admitted that, despite some paragliding experience, he does not hold a private or commercial pilot licence. The witness confirmed that the Respondent's aircraft had flown 100 feet above him and that he was indeed a distance of 300 feet from the aircraft when he saw it heading southeast at the tip of the sandy point.

The Minister's last witness was Ms. Lise Corbett. Finding herself at Constance Bay to enjoy a day at the beach on August 12, 2000, she explained that there had been a lot of people and activity that day both on the beach and in the water. Ms. Corbett first saw Mr. Tremblay's aircraft fly above the treetops along the edge of the beach. At the time, she was at the spot identified by her initials (LC) on the aerial photograph filed as Exhibit M-10.

She confirmed that she was in the water up to her waist, about 50 feet from shore, when she saw Mr. Tremblay's aircraft for the second time. Ms. Corbett initialled photograph M-10 to indicate where she was swimming at the time. She testified that the aircraft was moving fairly quickly on the water. It made a 180-degree turn, full throttle, towards the beach no more than 70 feet away from her. This manoeuvre frightened her very much; she said she feared for her life. Panic-stricken, she injured a leg in attempting to get out of the water. Once she was at the clinic, the staff noticed a calf injury. Ms. Corbett had to move around with the aid of crutches for two weeks and on her doctor's recommendation, undergo a month of physiotherapy.

On cross-examination, Mr. Tremblay asked the witness to locate on photograph M-10 where his aircraft was when she saw it turn right towards the beach. Ms. Corbett placed the aircraft further from shore and further to the left of the "x" initialled (DD) by Mr. Dingwall, the Minister's second witness. Mr. Tremblay also questioned where the witness was swimming at the time of the incident. She conceded that it was not easy for her to transpose onto a photograph her perspective of where she had been swimming.

The Respondent's Evidence

Mr. Tremblay made the following comments to the member:

To date, he has accumulated 700 hours' flying time on the Lake Buccaneer, which is considerable for this type of aircraft. He is very familiar with this amphibious aircraft and regularly takes training courses.

Mr. Tremblay was with a friend when he flew the Lake Buccaneer bearing letters C-FBPQ on August 12, 2000. Having departed from Lac Simon, they decided to proceed to Constance Bay to see if they could find anyone they knew. Heading northwest, he landed his aircraft at the beginning of the lake, to the far right of the photograph filed as Exhibit M-10. He explained that there is no altitude to respect when landing on water. Once on the water, he headed southeast around the sandy point and taxied on the water. He told the member that the Lake Buccaneer's taxiing speed on water is between 10 and 45 mph; a speed of 50 mph is sufficient for take-off.

Mr. Tremblay, having spotted no acquaintances in the area, decided to make a 180-degree turn towards the beach, with a tailwind, to about the spot marked with an "x" and initialled DD by Mr. Dingwall, the Minister's witness. According to him, he was going 15 to 20 miles per hour during this manoeuvre, then took off heading northwest.

The Respondent also submitted that Ms. Corbett could not have been in the water at the spot she initialled on the photograph filed as Exhibit M-10. According to Mr. Tremblay, the water colour demarcation shows that the spot indicated by Ms. Corbett is in deep water. At that spot, she could not have been in the water up to her waist as she had stated. He said that Ms. Corbett must have been swimming closer to shore than she submitted and incorrectly estimated the distances. Mr. Tremblay then said that his aircraft had to have been at least 200 feet from Ms. Corbett when he turned towards the beach. He explained further that he is not permitted to come within 30 feet of a swimming area.

Mr. Tremblay attributed the panic and threat felt by Ms. Corbett to the surprising appearance of the Lake Buccaneer, with the motor sitting on top of the aircraft and its 200 horsepower (with no muffler). This appearance, together with the noise, would, in his view, explain why some people felt threatened by his manoeuvres while others, such as those strolling on the sandy point or other swimmers, were not affected and did not file a complaint against him.

Lastly, Mr. Tremblay felt he had done nothing wrong on August 12, 2000, at Constance Bay. He admitted, however, that his private pilot licence had been suspended by Transport Canada for various incidents, including this one. It had, however, been reinstated after he took the course on pilot decision-making recommended by the department. He said he had learned to be especially careful not to frighten people with his aircraft. According to him, he had "paid" by means of his suspension.

On cross-examination, Mr. Tremblay explained that it is not dangerous to operate the Lake Buccaneer near people in the water as it has good forward visibility, there being no engine or propeller in the nose of the aircraft. He said he could easily see the swimmers' heads and ducks on the water. He considers Constance Bay to be a very large bay, he had made a quite normal water landing and he was not in an emergency situation on August 12, 2000. He added that he was not required to fly over the vicinity before landing, and had not intended to frighten anyone at all.

Mr. Tremblay also acknowledged that he had pleaded guilty in the Court of Quebec, District of Hull, to the alleged offence against him today, in order to end the criminal proceedings brought against him for dangerous operation of an aircraft under section 249 of the Criminal Code. He went on to say, however, that he had pleaded guilty in his lawyer's absence because he was under pressure to do so. Mr. Tremblay's guilty plea, signed October 15, 2001, in Hull, was filed as Exhibit M-12.[1]

THE MINISTER'S ARGUMENTS

Mr. Béland argued that the Minister had established, on a balance of probabilities, that Mr. Tremblay, who himself acknowledged having flown aircraft C-FBPQ, did so recklessly or negligently at Constance Bay on August 12, 2000.

According to the Minister's representative, the eyewitness testimony referring to the incident on August 12, 2000, shows:

  • There were a lot of people on the beach and in the water at Constance Bay on August 12, 2000.
  • For the first time, they all saw Mr. Tremblay's aircraft flying low and coming very close to the trees along the edge of the beach at Constance Bay.
  • Everyone reported that they saw the aircraft make a 180-degree turn towards the beach before taking off.
  • Mr. Suzuki feared for the safety of the swimmers in the water near the aircraft when it went around the sandy point and headed southeast.
  • Ms. Corbett truly believed that the aircraft, which was 50 to 70 feet from her, was going to hit her. She was terrified and injured herself as she was leaving the water.

Mr. Tremblay was reckless and negligent, according to Mr. Béland, in deliberately choosing to operate his aircraft in this way in such a populated area. Constance Bay is a large bay. Mr. Tremblay had no valid reason for coming so close to the people. He was not conducting an emergency water landing and was not compelled to land on the water. Through his manœuvres, he endangered the safety of the people who were at Constance Bay that day.

Arguments Regarding the Sanctions

The Minister is fully justified in assessing a penalty of $500 against the Respondent. This penalty should serve as a deterrence to any recurrence likely to endanger the life or safety of people.

THE RESPONDENT'S ARGUMENTS

Mr. Tremblay again stated that he committed no offence at Constance Bay on August 12, 2000. He conducted his manoeuvres quite legally and safely. He did not endanger anyone. He expressed sympathy towards Ms. Corbett, who injured herself. He believed, however, that she was more panic-stricken about the appearance of his aircraft and the noise of the engine than by his manoeuvres. He also noted that not all the witnesses were of the same opinion regarding the distances.

Arguments Regarding the Sanctions

Mr. Tremblay believes that he cannot be punished twice by the Minister for the same offence: once with a suspension of his private pilot licence, and again with a penalty of $500.

REASONS

As Mr. Tremblay has admitted that he was the pilot of aircraft C-FBPQ at the time of the incident that occurred at Constance Bay on August 12, 2000, it is now for us to rule, in light of the evidence, whether Mr. Tremblay flew his aircraft in that area and on that day in a reckless and negligent manner that endangered or could very well have endangered the life or property of certain people.

The Minister's testimonial evidence unequivocally shows that there were a number of people at Constance Bay on August 12, 2000, both on the beach and in the water, when Mr. Tremblay conducted his manoeuvres. All witnesses of the incident said they saw Mr. Tremblay's aircraft flying low a first time. This altitude varied depending on the witness, from "very close to the treetops" to "0-15 feet above the trees." The witnesses of the incident said they had various reactions when he was flying over: "the pilot is playing a dangerous game," "the aircraft is going to crash," "the pilot is surely in danger."

The witnesses stated that they later saw the same aircraft again, on the water, making a 180-degree turn towards the beach before taking off. Mr. Tremblay agreed that he did indeed make his turn towards the beach, to the spot identified by the initials (DD) and followed by the number 2 written by Mr. Dingwall, the Minister's witness. In his testimony, Mr. Dingwall said that the Respondent's aircraft was some 150 yards from the shore and between 20 and 50 feet from the swimmers. Ms. Gaudreau estimated the distance from the swimmers to be between 20 and 30 feet. According to Ms. Corbett, the aircraft came to within at least 70 feet of her, close enough to frighten her and prompt her to leave the water in haste, injuring herself in the process. Mr. Suzuki confirmed that Mr. Tremblay's aircraft, while going around the sandy point on the water, came close to two or three swimmers for whom he was afraid. His testimony is supported by a video clip (M-8) in which swimmers can be seen near the aircraft moving on the water.

Mr. Tremblay tried to undermine the credibility of the Minister's witnesses with regard to their distance estimates, especially that of Ms. Corbett, who injured herself in attempting to flee the area. In the photograph filed as Exhibit M-10, she did indeed place the aircraft's turn a little further away and a little further east than the spot indicated by Mr. Dingwall and to which Mr. Tremblay agreed. In addition, the spot where she was swimming, identified by her initials (LC), Mr. Tremblay placed in deeper water owing to the water demarcation, whereas she said she had been in water up to her waist. In any event, it is important to point out that the distance she established between herself and the aircraft at the time of Mr. Tremblay's turning manoeuvres, whether from a position closer to shore or further into deep water, at this point comes to the same thing as it results, in our view, more from an error of transposition than one of estimating distances. Moreover, Ms. Corbett has admitted to finding it difficult to transpose these locations onto the photograph filed as Exhibit M-10.

The eyewitnesses also agreed that the Respondent's aircraft seemed to taxi "fairly quickly" on the water. Ms. Corbett even thought the aircraft was going to hit her. On cross-examination, Mr. Dingwall added that the aircraft must have taxied about 50 miles per hour and that the same engine speed was maintained during the turn.

Mr. Tremblay, for his part, maintained that the "taxi" speed of his aircraft was between 10 and 45 miles per hour, the same as a watercraft, and that his turn towards the beach was made without endangering anyone, at a speed of 15-20 miles per hour. However, witnesses of the incident all reacted to this manoeuvre ranging from amazement to fear, fright and panic. The apparent threat of this aircraft moving close to her was particularly felt by Ms. Corbett, who was in the water when she injured herself while fleeing from the area.

Mr. Tremblay believed that the threat felt by the witnesses of the incident was due more to the unusual appearance of his aircraft and the engine's noise rather than his manoeuvres. He also tried to explain that his manœuvres on the water were no different from those of a watercraft (motorboat/Sea-Doo) which, however, "cohabits" well with swimmers. This comparison strikes us as rather lame. The Lake Buccaneer, while it is a hulled amphibious aircraft that combines the pleasure of a boat with that of a aircraft, is nevertheless an aircraft capable of taking off, landing on land or water, with components, features and behaviours that are generally associated with an aircraft. We find it hard to believe that a Lake Buccaneer can manoeuvre with the same ease as a motorboat or Sea-Doo, despite its "taxiing" speed of about 10-45 miles per hour. In addition, the range required to make a 180-degree turn in this type of aircraft on floats is necessarily greater than that required by a Sea-Doo.

The evidence also revealed that Mr. Tremblay was not making an emergency water landing and was not compelled to land on the water. Mr. Tremblay flew over the Constance Bay beach and landed on the water 150 yards from shore hoping to see someone he knew. Having spotted no one, he made his 180-degree turn towards the beach and decided to take off. He confirmed that he did this manoeuvre in order to have a tailwind to assist him on take-off. Yet the evidence revealed that Constance Bay is a very large bay; the Respondent understood this. We might therefore very well wonder why the pilot did not conduct his take-off away from shore, away from the swimmers so as not to needlessly frighten people.

The fact that some people did not complain about Mr. Tremblay while others did, is not sufficient to justify that he had not operated the aircraft in a reckless or negligent manner. It should not be construed in such a way as to minimize the feelings of fear and fright of the witnesses who reported the incident. As well, Mr. Tremblay's lack of intent does not relieve him of his duty to act prudently.

To determine whether this is a case of reckless or negligent conduct, it is necessary to consider this conduct in light of what a reasonable and prudent pilot would do in similar circumstances.

Negligence consists of not doing something that a reasonable person would do or of doing something that a reasonable person would not do. The notion of recklessness is linked to indifference with regard to the consequences, and has a stronger meaning than negligence. Recklessness in fact includes the meaning of gross negligence, namely, doing something that actually entails a risk, whether the doer is aware of it or not.[2]

It is our view that Mr. Tremblay operated his aircraft without any consideration for the people who were on the beach and in the water of Constance Bay that day. His manoeuvres worried, even frightened the witnesses of the incident. The Respondent, even if the visibility was good and he knew the area and his aircraft well, did not have to fly so low over the people and come that close to the swimmers. The Respondent's manoeuvres, intended first and foremost to see whether he could find anyone he knew in a very busy area that day, entailed a needless risk for the safety of the people near the aircraft. The threat was, moreover, felt to be very real by the witnesses of the incident.

There is, in our view, no obvious inconsistency in the statements of the eyewitnesses. The events that took place at Constance Bay on August 12, 2000 were all related in similar fashion, aside from a few differences apparently due to their perspectives and perceptions. Their version of the findings seems entirely credible and consistent and the evidence we have, both direct and on cross-examination, does not allow us to doubt their credibility.

Under the circumstances, we cannot accept Mr. Tremblay's version. We are satisfied with the Minister's submission, which, on a balance of probabilities, has proven the alleged offence.

We must now rule on the Respondent's argument that he is being penalized twice for the same offence, once with the suspension of his private pilot licence, and again with the assessment of a penalty of $500.

On September 1, 2000, Transport Canada did indeed serve Mr. Tremblay with a notice of suspension of his private pilot licence pursuant to subsection 7.1(1) of the Aeronautics Act, for having previously been accused and found guilty of various safety offences. In the schedule of the notice of suspension, the Minister stated that more recent allegations showed that Mr. Tremblay continued to commit safety offences. Among these recent offences, we find reckless or negligent operation of an aircraft during the incident at Constance Bay on August 12, 2000. This alleged offence, still undergoing investigation at the time, presented a risk to the public to such a degree that it became necessary to suspend Mr. Tremblay's private pilot licence. The suspension of Mr. Tremblay's licence PA 730494 was indeed confirmed by a decision of the Civil Aviation Tribunal in June 2001.[3]

To this effect, the Respondent's reckless or negligent conduct at Constance Bay on August 12, 2000, did give rise to two actions brought by the Minister against Mr. Tremblay.

Firstly, under subsection 7.1(1) of the Aeronautics Act, reckless or negligent conduct is not in itself considered an offence, but rather an evidentiary element of a safety problem designed to protect the public from various lapses on the part of the Respondent.[4] Under subsection 7.1(1) of the Act, the Minister may suspend a Canadian aviation document when the alleged circumstances are sufficient to endanger the public and its safety. Obviously, the incident of August 12, 2000, contributed to the suspension of Mr. Tremblay's private pilot licence. The Minister did not, however, base its suspension of Mr. Tremblay's private pilot licence on the incident at Constance Bay on August 12, 2000, but rather on all the various safety offences (confirmed and/or alleged) previously committed by him.

Secondly, the assessment of the monetary penalty pursuant to section 7.7 of the Act is punitive and intended to deter and specifically prevent the alleged offence, in this case the reckless or negligent conduct that occurred at Constance Bay on August 12, 2000.

To make a finding of double jeopardy, we must be of the opinion that the two charges are based on a single act on the part of the accused.[5] We are not dealing with double jeopardy in the present case; therefore, the Minister was entitled to issue this suspension.

DETERMINATION

We find that the Minister proved, on a balance of probabilities, the offence of reckless conduct mentioned in the Notice of Assessment of Monetary Penalty issued May 24, 2001. We uphold the Minister's decision to assess the penalty of $500.

Suzanne Racine
Member
Civil Aviation Tribunal


[1]La Reine c. Alain Tremblay, file 550-01-003649-003.

[2]Francis Dominic Decicco v. Minister of Transport, CAT File No. C-1316-02 (appeal).

[3]Alain Tremblay v. Minister of Transport, CAT File No. O-2162-17.

[4]Jelle Dykstra v. Minister of Transport, CAT File No. W-0213-04.

[5]R. v. Prince [1986] 2 S.C.R. 480.