Decisions

CAT File No. P-1822-33
MoT File No. EMIS 32237

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Douglas J.W. Collins, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, ss.7.7, 7.8(2)
Canadian Aviation Regulations, SOR/96-433, 403.03(1), 605.03(1)

Strict Liability, Pilot Licence, Justification, Certificate of Airworthiness


Review Determination
Keith Edward Green


Decision: October 12, 1999

Under the given circumstances, the Tribunal confirms the Minister of Transport's allegations that the Respondent contravened subsections 403.03(1) and 605.03(1) of the Canadian Aviation Regulations. The amount of the penalty is to be increased by $250.00 per count for a total of $1,750.00 for counts 2 and 4. That amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, September 22, 1999 at 10:00 hours, at the Court House, Law Courts Building in Fort St. John, British Columbia.

BACKGROUND

Mr. David J. Nowzek, Regional Manager Civil Aviation Pacific Region, issued on April 23, 1999 a Notice of Assessment of Monetary Penalty to Mr. Douglas J. W. Collins (Respondent).

The total assessed penalty was for $2,500.00 covering four alleged violations under Canadian Aviation Regulations (CARs), subsection 401.03(1) [counts one and two], and subsection 605.03(1) [counts three and four]. The above penalty was to be paid in full on or before May 24, 1999 to the Regional Manager, Civil Aviation Enforcement, Transport Canada.

The Notice 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 provisions:

See attached Schedule A

SCHEDULE A – ANNEXE A

Count # 1: (Not contested)

Count # 2: CARs subsection 401.03(1), in that, on or about September 11, 1998, at approximately 4:40 p.m., local time, while taking off at or near Fort Saint John, British Columbia, you did act as a flight crew member and did exercise the privileges of an aeroplane pilot licence without being the holder of an aeroplane pilot licence, namely that you acted as a pilot in command of an Aeronca Aircraft Corporation 11AC aircraft, bearing Canadian aircraft registration marks CF-YZH. $1,000.00

Count # 3: (Not contested)

Count # 4: CARs subsection 605.03(1), in that, on or about September 11, 1998, at approximately 4:40 p.m., local time, while taking off, at or near Fort Saint John, British Columbia you did operate an Aeronca Aircraft Corporation 11AC aircraft, bearing Canadian aircraft registration marks CF-YZH, in flight without a flight authority in effect in respect of that aircraft, namely the Certificate of Airworthiness was not in effect for that aircraft due to an unapproved engine installation.

$250.00

Mr. Collins admitted to counts #1 and #3, paying the designated penalty of $1,000.00 and $250.00 respectively, before the prescribed date. However, Mr. Collins declined to pay the amounts in counts 2 and 4 before the prescribed date, as it was his intention to contest the allegations. Therefore, as Mr. Collins had not paid the monetary penalty for counts 2 and 4, subsequently invokes subsection 7.8(2) of the Aeronautics Act.

THE LAW

Subsection 401.03(1) of the CARs:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising such privileges, the appropriate permit, licence or rating; and

(b) the person is the holder of, and can produce while so acting and while exercising such privileges, a valid and appropriate medical certificate.

Subsection 605.03(1) of the CARs:

605.03 (1) No person shall operate an aircraft in flight unless

(a) a flight authority is in effect in respect of the aircraft;

(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and

(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.

THE FACTS

Only the pertinent facts pertaining to counts 2 and 4, as deemed relevant by the Tribunal, will be reviewed for the purposes of this Determination.

The parties did not raise any preliminary motions. However, when asked by the Member if there were any pre-hearing agreements or settlements reached between the parties, Mr. Richard W. Newcombe, Case Presentation Officer (CPO), responded in the affirmative.

In the Minister's opening statement, Mr. Richard W. Newcombe answered the question of settlement. The Minister explained that Mr. Collins had agreed to render a change of plea and admit to counts 2 and 4, paying the requested penalties, dependent upon the verdict rendered in a civil court case against him from the previous day (September 21, 1999). In the advent that Mr. Collins was found guilty, then he would not contest the two alleged counts against him. As it turned out, the court case in question will be resumed in early January 2000. Therefore, Mr. Collins decided to continue with the Review Hearing and contest counts 2 and 4.

The Minister stated that he would prove Mr. Collins was the pilot-in-command of the aircraft in question, that Mr. Collins did not hold a valid pilot licence and that the aircraft CF-YZH, after landing at Grand Haven Strip, attempted and succeeded in taking off from the same strip, heading for another destination.

The Respondent's (Mr. Collins) opening statement basically corroborated the Minister's statement. Mr. Collins admitted (at this time Mr. Collins was not under oath) to not having a current pilot licence or a current certificate of airworthiness for his aircraft. He also stated that it was his intention to remain at Grand Haven Strip and disassemble the aircraft for further transport to another location. Mr. Collins emphasized several times that he departed Grand Haven Strip because he felt personally threatened by the rapid approach of several unknown men, one of whom tried to physically restrain his aircraft.

The Minister called his first witness, Mr. Mike Hardie, Superintendent, Investigations Civil Aviation Enforcement, Transport Canada Safety and Security. After being sworn in, Mr. Hardie was questioned by Mr. Newcombe. The Minister's questions were directed at ascertaining the legitimacy of count 2, mainly whether Mr. Collins did take off in the Aeronca Aircraft Corporation 11AC, registered CF-YZH. Mr. Hardie, in his testimony, clearly indicated to the Tribunal that he was able to identify the aircraft and at one point, after having failed to stop the aircraft by raising his hand in a "STOP GESTURE", risked bodily harm in a rash and futile attempt to physically restrain the aircraft from taxiing. This action resulted in Mr. Hardie going underneath the left wing, grabbing hold of a strut and being dragged along with the aircraft for a short distance before letting go. This action failed to stop the aircraft from taxiing. Mr. Hardie is quoted as saying, "I will never do it again."

Mr. Collins conducted the cross-examination of Mr. Hardie, during which Mr. Collins tried to demonstrate to the Tribunal that Mr. Hardie could have been potentially hostile to Mr. Collins's person and/or his aircraft. During the course of the questioning some interesting facts emerged. Mr. Hardie recollected having "eye to eye contact" with the pilot as the aircraft was taxiing. He also agreed with Mr. Collins that the area where all this transpired was relatively confined and full of obstacles such as a gravel pile and picnic table, which might have hampered a pilot's vision. It was also revealed that the people who approached the aircraft were in normal attire and could not be identified as officials of any sort.

Mr. Newcombe called his second witness Staff Sergeant Jim Eglinski, Fort St. John Detachment, RCMP, who was sworn in. Staff Sergeant Eglinski testified that he witnessed Mr. Collins taxi the aircraft in question. He also testified that while acting on a complaint from a former acquaintance of Mr. Collins, one Shelly Wheeler, he had investigated the aircraft. In so doing he had recorded a serial number from the engine case. He then proceeded to contact Progressive Air for information pertaining to the engine. The Sergeant was informed by authorities at Progressive Air that the serial number was from a 0-200 engine, which was never certified for an Aeronca Aircraft Corporation 11AC. The Department of Transport also established that a type certificate or supplemental type certificate for the aircraft's modification had never been issued.

The cross-examination of Staff Sergeant Eglinski by Mr. Collins concentrated mainly on the aircraft's taxi, the location of various objects and the location of persons within the immediate vicinity. Mr. Collins asked Sergeant Eglinski several times what the Sergeant thought Mr. Collins's intent or reason might have been. At this point, the Member reminded Mr. Collins to try to ask questions pertaining more to fact and to avoid asking for opinion. The Staff Sergeant told the Tribunal that Mr. Collins's taxi to the parking area was "slow and controlled." He also related the positions of the various persons within the parking area while the aircraft was taxiing to and away from the parking area.

The third and final witness called to testify by the Minister was Mr. Chris Blanchard, Civil Aviation Safety Inspector, Aircraft Maintenance and Manufacturing, Transport Canada Civil Aviation.

Mr. Blanchard was asked by Inspector Newcombe, what type of engine should have been installed in the Aeronca Corporation 11AC aircraft. Mr. Blanchard replied that it should have been a Continental A-65. Further questioning by the Minister revealed that, with the 0-200 currently installed, the type approval was not met and that for an aircraft to be fit and safe for flight, the aircraft must be in compliance with a type certificate or other approval such as a supplemental type certificate or a limited supplemental type certificate. In addition, the annual inspections for the past three years had not been recorded as having been complied with, rendering the certificate of airworthiness not current.

Cross-examination of Mr. Blanchard by Mr. Collins revealed that Mr. Blanchard had not researched into the existence of a limited supplemental type certificate for the Aeronca Corporation 11AC with the 0-200 power plant installed. Mr. Blanchard defended his action for not researching a limited supplemental type certificate for Mr. Collins's aircraft, stating that it would have taken too long, as the records were located in the various regions, making the research time prohibitively long. This concluded the cross-examination.

The Minister had no further questions of Mr. Blanchard.

Mr. Collins then assumed the stand and was sworn in. Mr. Collins did not call any witnesses, preferring instead to testify on his own account.

In reference to a civil court case against Mr. Collins, on September 21, 1999, Mr. Collins, who had been asked by the Member to explain the agreement between himself and the Minister, stated that in the advent he was found guilty in the civil case, he would be obliged to pay his outstanding penalties and plead "No Contest" to counts 2 and 4. However, as the civil case was to be continued in early January 2000, and the verdict delayed until then, Mr. Collins wished to continue with the Tribunal and contest counts 2 and 4.

Mr. Collins testified that he had originally decided to fly his aircraft after having received threats against it and himself from a former acquaintance, Shelly Wheeler. Shortly after Shelly Wheeler's threats, Mr. Collins received another phone call, informing him that there had been a person about his aircraft (this person was probably Staff Sergeant Eglinski looking for the engine serial number). Mr. Collins decided at that point to remove his aircraft to a safer location by flying it away.

Mr. Collins stated that he was unable to get a certificate of airworthiness for his aircraft and recent engine conversion. However, he was under the impression that the laws pertaining to modifications were to soon change, which would allow him to use the 0-200 now installed in the Aeronca Corporation 11AC.

Mr. Collins recalled how the flight to Grand Haven Strip had hurt his back (due to a recent operation undergone in Vancouver) to such a degree that it was bleeding and had rendered movement to his legs difficult. During his taxi roll, Mr. Collins had noticed several people in the aircraft parking area approaching his aircraft. One man (later identified as Mr. Hardie) approached the aircraft from the front, contacted the wing and then disappeared from sight. It was later revealed that Mr. Hardie was under the wing holding onto the strut and being dragged along the ground by the aircraft, for a short distance.

Mr. Collins stated that his exit out of the parking area was more rushed and he was going faster then when he taxied in. The wind was from the west, which would have had the effect of lowering his left wing, therefore the additional weight of Mr. Hardie went unnoticed. Once Mr. Collins had cleared all obstructions within the parking area he taxied out and applied full power, taking off from Grand Haven Strip. Mr. Collins proceeded to a family farm where he landed and disassembled the aircraft for storage.

Mr. Collins stated that he did not know it was Transport Canada approaching his aircraft at Grand Haven Strip. He also testified that "I knew I was flying illegally, there is no question of that."

During his cross-examination, the Minister asked Mr. Collins if there was any truth that he left Grand Haven Strip because the Department of Transport was looking for him. Mr. Collins responded that he "did not know it was the Department of Transport — I was looking forward to talking to them." Mr. Collins also stated that he had been talking to Don Sherritt, Transport Canada, concerning his engine installation. When asked by the Minister "without a certificate of airworthiness you elected to fly the aircraft?" Mr. Collins replied in the affirmative "Yes."

MINISTER'S ARGUMENT

The Minister's argument was short, concise and to the point. The Minister restated that Mr. Collins did not have a pilot licence and was operating an aircraft without a current certificate of airworthiness, thereby violating subsections 401.03(1) and 605.03(1) of the CARs. The Tribunal was reminded that there was ample evidence as presented by the Minister to prove Mr. Collins's non-compliance. Mr. Newcombe also thought that Mr. Collins had several options open to him: Taxi the aircraft to another location and park or just stay in the aircraft, to name two. To conclude, the Minister stated that Mr. Collins broke the law in order to try to get away.

MR. COLLINS'S ARGUMENT

Mr. Collins's argument was also short, though not quite so direct. Mr. Collins stated that he did not understand the Department of Transport's position and went as far as to say "I was bushwhacked" by the Department of Transport, who he thought did not act in a professional manner.

DISCUSSION

In rendering a determination of this type, the Tribunal must first decide whether the Minister has proved, on a balance of probabilities, that all elements of the allegations under review constitute a contravention of subsections 403.03(1) and 605.03(1) of the CARs. It must also be kept in mind that, as a strict liability offence, the Minister need only prove that the allegations were conducted and not that the alleged perpetrator had intent to act them out.

I find that Mr. Collins's testimony concerning his taxi to the parking area and his subsequent exit from the area, is lacking in substantial evidence to support the defence that Mr. Collins did not commit the allegations for counts 2 and 4. In fact, I feel his testimony and subsequent admission to having taken off in his Aeronca aircraft, as alleged by the Minister in counts 2 and 4, to be highly incriminating. I cannot help but feel Mr. Collins misunderstood the Minister's requirement for proof of the case against him even though this was read to him during the Member's opening address. In addition, if we examine the "pre-hearing agreement", related first by the Minister and later affirmed by Mr. Collins while under oath, I am left with no doubt that Mr. Collins did fly the Aeronca Corporation 11AC from Grand Haven Strip without a pilot licence and without a current certificate of airworthiness. In addition to Mr. Collin's testimony presented to the Tribunal during the course of the Review Hearing, the evidence submitted by the Minister (Secretary's Certificates), bore sufficient weight to prove that CF-YZH was not issued a certificate of airworthiness and that Douglas John Wayne Collins was not the holder of a current Canadian pilot licence, authorising Mr. Collins to act as a flight crew member. Mr. Collins, while under oath, testified that he was the pilot-in-command. The date, time and location of the occurrence have also been amply proven and were uncontested.

Mr. Collins's defence rests primarily with trying to justify his course of action to the Tribunal. Justification for doing an act is insufficient with respect to having committed the act for a strict liability offence. Mr. Collins's defence falls well short of proving to the Tribunal that he was incorrectly accused of committing counts 2 and 4.

Mr. Collins could have found another solution to his unfortunate dilemma without breaking the law and endangering the general public in the process. This is especially relevant if Mr. Collins's back condition is taken into account. One can only wonder why someone might attempt to take off in an aircraft and fly that aircraft with a condition as severe as Mr. Collins had reported his back and legs to be in, post landing at Grand Haven Strip.

In assessing and determining penalty, two major principles are involved: maintaining aviation safety to protect society and prevention to avoid a second offence. These two principles having been established, the penalty must meet the objective of the deterrence and rehabilitation.

It is not without sympathy that this determination is rendered. Mr. Collins, as personified by Staff Sergeant Eglinski's comment concerning 'luck', was clearly having a rough day; however, evidence with or without intent establishes Mr. Collins's guilt as having perpetrated the allegations of counts 2 and 4. The Minister has made his case.

In reflecting upon my determination, I believe Mr. Collins knew he was responsible and could offer the Tribunal little in the way of his defence. Instead, Mr. Collins decided to continue with the Review Hearing, even after having admitted to perpetrating counts 2 and 4. This shows a great lack of concern for everyone involved, including the Canadian taxpayer. Had Mr. Collins elected not to contest the two counts and then present his reason(s) to the Tribunal, asking for a review of sanction, the Tribunal might have asked the Minister to look more favourably upon the penalties. However, this was not the course of action taken. Mr. Collins proceeded once again without regard for others, as he did when piloting his aircraft from the Grand Haven Strip.

The penalty was assessed at $1,000.00 for count 2 and $250.00 for count 4. In the interest of public safety and to act as a deterrent for future offences, I am therefore increasing the penalty by $250.00 for each of the two counts, equalling $1,250.00 for count 2 and $500.00 for count 4.

DETERMINATION

Under the given circumstances, the Tribunal confirms the Minister of Transport's allegations that the Respondent contravened subsections 403.03(1) and 605.03(1) of the Canadian Aviation Regulations. The amount of the penalty is to be increased by $250.00 per count for a total of $1,750.00 for counts 2 and 4.

Keith Edward Green
Member
Civil Aviation Tribunal