Decisions

CAT File No. A-1708-33
MoT File No. 6504-X-2495481-31885

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Darrell Allen Sewell, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(a)(i)

Open Air Assembly, Low Flying


Review Determination
Faye H. Smith


Decision: February 15, 1999

By reason of the fact that there is insufficient evidence to establish flight over "an open-air assembly of persons", the Tribunal finds that Mr. Sewell did not contravene the provision as alleged and the assessed monetary penalty of $250 is dismissed.

A Review Hearing on the above matter was held Tuesday, January 5, 1999, at 10:00 hours at the Carleton Civic Centre, in Woodstock, New Brunswick.

BACKGROUND

The Minister of Transport issued a Notice of Assessment of Monetary Penalty dated September 29, 1998 to Mr. Darrell Allen Sewell assessing a penalty of $250 as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Schedule A

Canadian Aviation Regulations section 602.14(2)(a)(i) in that on the 16th day of August, 1998, while acting as Pilot-In-Command of an aircraft, to wit: a Cessna 182, bearing American Registration marks N5359B, you flew the aircraft over an open-air assembly of persons gathered in the vicinity of the Woodstock Airport at an altitude of less than 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane, thereby committing an offense contrary to section 7.6(2) of the Aeronautics Act, R.S., c. A-3, s.1.

THE LAW

Section 602.14 of the Canadian Aviation Regulations (CARs) reads in part as follows:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

(b) 2,000 feet from an aircraft other than a helicopter or balloon.

(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

(...)

THE EVIDENCE

The Minister called two witnesses, the first being Inspector Montplaisir who has worked with the Department of Transport since 1986 following his career of twenty-four years in the military. He indicated that while he has done most of his flying in helicopters he is dually qualified and holds a fixed wing licence as well.

He testified that on August 16, 1998 he was attending a fly-in at the Woodstock Airport. While there he heard a pilot transmit on the radio over the public announcement system as follows: "I'm doing a low and over". Inspector Montplaisir saw the aircraft overhead flying to the opposite end of the button and it then pulled left and proceeded downwind. The Inspector then went to the tower to see the manager and asked the pilot's name, and they identified the aircraft which had now set down. Inspector Montplaisir immediately spoke to Mr. Sewell, the pilot, who had stated that he had flown the aircraft and said that he didn't see anything hazardous in the procedure. On request, the pilot produced his licence and medical certificate but did not produce the aircraft registration. The Inspector noted the details and returned the documents to the pilot who left.

Inspector Montplaisir indicated that he had watched the aircraft as it went by and he estimated that it was well below 1,000 feet probably at a height of 200 to 300 feet. The Inspector indicated that he did not see the aircraft coming toward him as the hangar blocked his view. He said that there were no other structures there and that the aircraft was at a small angle to the runway and was coming at an angle of about 20 degrees off the runway. Inspector Montplaisir concluded by stating that in his view this would be a hazardous manoeuvre.

On cross-examination Inspector Montplaisir stated that he was at the Woodstock Airport on August 16, 1998 because he was asked to monitor a fly-in in his capacity as a Transport Canada Inspector. In response to the question of whether this was just some government people, he replied that it was a breakfast meeting of pilots being people from general aviation.

Queried as to the aircraft identification, the Inspector stated that when the aircraft flew over, he did not get the call numbers though he recognized it as a Cessna. Inspector Montplaisir indicated that he was walking towards the tower and it was the only aircraft in the circuit and he saw the aircraft land and he watched to see where it was going to park. Inspector Montplaisir repeated his former evidence that he had spoken to Mr. Sewell immediately thereafter and had asked for his licence. He recalled asking Mr. Sewell if he had been the pilot-in-command and recalled asking him why he had flown low over the crowd. Mr. Sewell produced his licence but not his registration and said that what he did was not hazardous. The Inspector advised Mr. Sewell that he would be filing this in Moncton and he testified that at the time of his conversation with Mr. Sewell, he believed that Mr. Sewell was in breach of the regulations.

Inspector Terry Thompson, a Civil Aviation Safety Inspector in the Moncton Aviation Enforcement office was the investigator assigned to this matter. He introduced three exhibits the first two being photocopies of sections 102.01 and 602.14 of the CARs and the third being a copy of the Federal Aviation Administration (FAA) regulation 91.703[1] regarding the operations of civil aircraft of U.S. registry outside of the United States.

Inspector Thompson stated that on August 18, 1998 he sought a printout for aircraft N53596. He was unable to find the aircraft in the Canadian aircraft registry and had called the RCMP in Woodstock for assistance and he also called the FAA. The Inspector subsequently learned from RCMP Officer Cole that the aircraft registration was N5359B. Mr. Sewell then called Inspector Thompson on August 21 and in that telephone conversation, Inspector Thompson advised Mr. Sewell that he was conducting an investigation and that he would be forwarding a letter of investigation. Inspector Thompson subsequently confirmed with the FAA that aircraft serial number N5359B was a Cessna 182 and was registered to an owner in Maine, USA and that its records were clean.

Mr. Sewell's Counsel elected to call no evidence.

REPRESENTATIONS OF THE PARTIES

In his closing argument, Inspector Noel submitted that the Minister had proved the elements of the offence. He argued that the error in the aircraft registration provided by Inspector Montplaisir to Inspector Thompson was irrelevant since Inspector Montplaisir had visually kept in contact with the aircraft and had later approached the aircraft and the pilot Sewell. He stated as well that the aircraft was low and was adjacent to the runway where people were assembled and that this constituted an open-air assembly of persons.

Additionally, he stated that the pilot had broadcast his intention to make a low and over. He concluded that the breach was substantiated by the Minister in that the aircraft was operated by the pilot Sewell and that this was over an open-air assembly of persons as confirmed by the evidence of Inspector Montplaisir who also stated that this was a hazardous manoeuvre as it was well below 1,000 feet being at a height described as 200 to 300 feet. He stated that the assessment of $250.00 was based on the fact that this was a first offence and urged that the decision of the Minister be upheld.

Defence Counsel McCue argued that Inspector Montplaisir was present and said what he thought he saw, that he could only guess as to the letters on the aircraft and stated that his assertion that there was a crowd of people was not corroborated by witnesses. Mr. McCue argued that the Inspector must have lost sight of the aircraft and in any event he related a different type of plane to Inspector Thompson. He further indicated that sometime later the RCMP obtained this information. He concluded that the Minister did not prove its case. He further invoked the Canadian Charter of Rights and Freedoms and while he refused to specify which section of the Charter he was relying upon, he did urge that Mr. Sewell's conversation with Inspector Montplaisir be excluded and that Inspector Thompson should have read him his rights.

DISCUSSION

In this matter the burden is on the Minister to prove its case not to the criminal standard of beyond reasonable doubt but rather to the civil standard of balance of probabilities. This civil standard of proof was established in the early case of Minister of Transport v. Thomas Ritchie Phillips[2] which has been upheld in all subsequent Tribunal jurisprudence. The elements that the Minister must prove are set out in the paragraph referred to above as 602.14(2)(a)(i), specifically, that the identified pilot flew the identified aircraft over an open-air assembly of persons at an altitude of less than 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane.

The evidence of Inspector Montplaisir confirmed that he personally had viewed the aircraft flight path and obtained the pilot's name from the tower manager. Additionally he saw the aircraft set down and immediately spoke to the pilot who produced his pilot licence confirming his identification. Subsection 103.02(2) of the CARs provides that a pilot is obliged to produce documents to the Minister upon demand in accordance with the terms of the demand. These powers are general in scope and require production for inspection without reference to whether or not there is a supposed breach of the Act or its subordinate legislation.

Counsel for the defence stated that the pilot's rights had been infringed in that the Inspector did not read him his rights and urged that the pilot's statement that he was the pilot of the aircraft and that he personally did not see anything hazardous in the procedure of the flight ought to be disregarded by the Tribunal. There is no evidence that the Inspector read the standard warning to the pilot during their conversation following the alleged low flight. Neither is there evidence that the pilot's statement was made involuntarily. This issue was not pursued in the course of evidence but only on argument. I am satisfied that the identity of the pilot was established by Inspector Montplaisir visually, through confirmation with the tower and by the production of documents. Accordingly, the content of the pilot's statement to the Inspector is not relevant to my determination of the pilot's identity.

The registration number of the aircraft given to Inspector Thompson was N53596 which was later determined to be incorrect and the correct one obtained from the RCMP was N5359B. Inspector Montplaisir had indicated to Inspector Thompson that the aircraft was a Cessna 172 and it was later determined that it was a Cessna 182. I am satisfied that the Minister's representatives have proved on a balance of probabilities that the aircraft identification and description set out in the Notice of Assessment of Monetary Penalty is correct and is the same aircraft viewed by Inspector Montplaisir on the date of the alleged infraction.

I am also satisfied that Inspector Montplaisir has provided credible evidence to substantiate the fact of the low flight of the aircraft. It was his direct evidence that he had watched the aircraft as it went by and he estimated that the aircraft was well below 1,000 feet probably at a height of 200 to 300 feet. He testified that he did not see the aircraft coming toward him as the hangar blocked his view and stated that there were no other structures there and that the aircraft was at a small angle of about 20 degrees off the runway.

The element of the offence for which I find the department's direct evidence to be wanting is that establishing that the flight was "over an open-air assembly of persons gathered in the vicinity of the Woodstock Airport" as alleged in the Notice of Assessment of Monetary Penalty. The direct evidence of Inspector Montplaisir was his testimony that on August 16, 1998 he was attending a fly-in at the Woodstock Airport when he saw the aircraft overhead flying to the opposite end of the button and it then pulled left and proceeded downwind. This evidence taken alone does not satisfy me that the flight was over an open-air assembly of persons. However, evidence in cross-examination in answer to the question of whether this was just some government people elicited the response that it was a breakfast meeting of pilots being people from general aviation.

A review of jurisprudence discloses that some earlier court cases dismissed because the flight was not directly over the "assembly of persons" are now caught by the deeming provision regarding radius found in subsection 602.14(1) cited above. While the findings in some cases may be distinguished on that basis, I think that earlier jurisprudence is still worth consideration for interpretation of the words "open-air assembly". In R. v. Joronen[3] the charge was dismissed because the court held that the group of people over which the aircraft flew did not constitute an "open-air assembly" of people. "Open-air assembly" was defined in this case as "... a substantial number of persons ... a gathering of persons, a concourse, throng". The judge dismissed the charge where there were five or six people in the immediate area over which the accused flew and thirty or more in the immediate vicinity. The judge also stated that the assembly must be easily discernible by the pilot from the air. In R. v. Best[4] an even greater number of people were involved. The accused attempting to locate a friend's car at a cottage had flown low over a beach twenty feet wide and a quarter mile long which was occupied by 50 to 100 people. In addition there were cottages lining the beach. The Judge cited R. v. Wyndells[5] wherein it was apparently concluded that 200 to 300 persons in a 150 acre area was not an open-air assembly ... the Judge was of the opinion that an open-air assembly would constitute a large group of individuals.

A review of Civil Aviation Tribunal jurisprudence interpreting "assembly of persons" discloses that an ultra-light flying 10 to 50 feet above persons fishing on the ice of a bay was held to be a contravention for which a penalty of $500 was assessed.[6] As well, flight at 100 to 150 feet over a crowd of strikers (estimated to be about 100 in number) was found to be in contravention and carried a penalty of $250.[7] Additionally, flights at altitudes of less than 500 feet above the surface of a lake passing almost directly over a police boat and several other boats were held to be a contravention for which the Minister assessed a penalty of $250.[8]

Turning to the facts of the case before me, I acknowledge that the term "fly-in" connotes a specific meaning to those associated with aviation, however, I do not believe that the term is sufficiently notorious to warrant a fixed or even an approximate number of attendees in the absence of direct evidence of these facts.

When we look to the interpretation given to "assembly of persons" as a substantial number of persons, a gathering of persons, a concourse, a throng, then we can apply those concepts to the case at hand. Moreover, to state, as the Judge did in the Joronen case that the assembly must be discernible by the pilot from the air, we approach the reason for the enactment of the legislation and as well gain an appreciation of the fact that cogent evidence of numbers must be provided.

In this case, there is the evidence of Inspector Montplaisir that the pilot announced his intention to do a "low and over" on the public address system prior to the alleged low flight but since we do not know the size of the gathering or the number of persons attending the fly-in, we cannot infer that the number was sufficiently large to constitute "a substantial number of persons, a gathering of persons, a concourse, throng". That is to say that the number of persons must be large enough to be discernible at the minimum height so that the pilot knows they are there without requiring his descent below 1,000 feet. I cannot accept the opinion of Inspector Thompson that one or two persons could constitute "an assembly of persons" as the foregoing analysis of jurisprudence indicates that the number of persons must be sufficient to be discernible by the pilot without requiring his descent below 1,000 feet.

On review of the Minister's proof of the elements of the offence, I find no evidence of actual or estimated numbers of persons constituting an open-air assembly. Direct evidence and that elicited by cross-examination reveals that the alleged low flight was at a fly-in at the Woodstock Airport, and that it was a breakfast meeting of pilots from general aviation. I have no evidence of numbers of persons at the location and consequently, I do not find that the Minister has proved this element of the offence on a balance of probabilities as I find the reference to "fly-in" too vague for me to conclude that this constitutes an "assembly of persons" so as to make the low level flight a prohibited act.

CONCLUSION

By reason of the fact that there is insufficient evidence to establish flight over "an open-air assembly of persons", the Tribunal finds that Mr. Sewell did not contravene the provision as alleged and the assessed penalty of $250 is dismissed.

Faye Smith
Chairperson
Civil Aviation Tribunal


[1] 14 CFR § 91.703 (Code of Federal Regulations) (1-1-92 Edition).

[2] CAT File No. C-0014-33, Appeal Determination, January 26, 1987.

[3] [1972] 5 W.W.R. 367 (B.C.S.C.)—prior to the set up of the Civil Aviation Tribunal where cases proceeded in courts of criminal jurisdiction for the province.

[4] Unreported August 6, 1976 (Ont. Prov. Ct.).

[5] [1976] 1 W.W.R. 243 ( Man. C.A.).

[6] Minister of Transport v. Gilles Amyot, CAT File No. O-0302-33, Review Determination, May 8, 1992.

[7] Minister of Transport v. Normand Dubé, CAT File No. Q-0190-33, Review Determination, July 5, 1990.

[8] Minister of Transport v. Ervin W. Dyck, CAT File No. P-0036-33, Review Determination, March 25, 1988.