Decisions

CAT File No. A-2213-41
MoT File No. 5504-042811

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Richard George Henderson Airlie, Respondent

LEGISLATION:
Aeronautics Act, R.S., c.33 (1st Supp). s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 601.09(1)

VFR Flight, Unauthorized Operation in Controlled Airspace, Helicopter, Class D Airspace, Circumstantial Evidence


Review Determination
Allister W. Ogilvie


Decision: April 17, 2001

The circumstances of the flight in evidence are consistent only with the conclusion that Mr. Airlie contravened the provision. The defence of due diligence is not available in the circumstance. The Minister's suggested penalty of $100.00 is confirmed. The payment shall 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 Tuesday, March 27, 2001 at 10:00 hours at the Delta Beauséjour in the city of Moncton, New Brunswick.

BACKGROUND

On September 13, 2000 around 10:00 a.m. the tower controller at the Moncton airport observed a target on radar. By visual observation the aircraft was identified as a helicopter. The controller attempted to contact it by radio, as the helicopter had not previously made radio contact with the tower. The attempt was unsuccessful and the helicopter proceeded westward. The weather at Moncton was less then the visual flight rules (VFR) minima.

Transport Canada's investigation of the Moncton occurrence lead them to believe that a helicopter which had landed in Fredericton not long after that incident was the same one which had traversed Moncton's control zone unannounced. Having ascertained that it had been flown by a Mr. Richard George Henderson Airlie, Transport Canada made an allegation 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):

Schedule A:

Canadian Aviation Regulations subsection 601.09(1), in that at approximately 10:00 local time (13:00 UTC) on or about September 13, 2000, at or near the Moncton Airport, Moncton, New Brunswick, you were operating VFR aircraft Canadian civil registration C-FLCN and you entered Class D airspace when you failed to establish two-way radio contact with the appropriate air traffic control unit before entering the airspace.

As Mr. Airlie did not pay the monetary penalty, Transport Canada requested a hearing, which was then held on March 27, 2001 in Moncton, New Brunswick.

EVIDENCE

Evidence adduced by the Minister establishes the following facts:

After having received an occurrence report from the Moncton tower, Mr. Coomber, a Transport Canada investigator, created a series of Radex readouts of traffic in that general area. Exhibit M-6, a compilation of these Radex readouts, shows a VFR target (squawking 1200) south east of the Moncton airport, which travels to the coast of the Northumberland Strait and then turns more westerly, inland. The target proceeded west and in doing so was recorded as having been south of the Moncton Very High Frequency Omnidirectional Range (VOR) and to the north of the flight path of the Moncton airport. The target continued westerly towards the Fredericton airport.

The weather at both Moncton and Fredericton was less than that required for VFR flight. The target was recorded at various times between 400 and 800 feet above ground.

The controller on duty in Moncton tower about 10:00 a.m. on September 13 noticed a target then visually observed a helicopter flying from east to west, through the control zone, north of the runways. The helicopter had not contacted Moncton tower nor could the tower make radio contact with it.

The control zone around the Moncton airport is classified as Class D airspace in the Designated Airspace Handbook. Moncton tower is the appropriate air traffic control unit to contact prior to entering the control zone.

Fredericton flight service station (FSS) personnel received radio contact from a helicopter, C-FLCN that requested a clearance to land at Fredericton for refuelling. The helicopter was an EC-20 which had previously departed from Fox Harbour. The weather was below VFR in Fredericton, so a special VFR clearance was requested. As instrument flight rules (IFR) traffic was inbound there was delay in issuing the special VFR clearance, until the IFR traffic had landed. After arrival the helicopter pilot was asked to contact the FSS manager. The pilot was then requested to contact Mr. Coomber of the Transport Canada Enforcement Branch.

The pilot phoned Mr. Coomber, identifying himself as Mr. Richard Airlie. Mr. Airlie related that he had earlier departed Fox Harbour enroute to Montréal but poor weather had caused him to follow the Northumberland Strait coast line before turning for Fredericton. He stated that the transponder had been squawking 1200 and the flight conducted at about 500 feet above ground.

Documentary evidence shows that Mr. Airlie is a commercially licensed helicopter pilot with an endorsement on an EC-20 helicopter. Helicopter C-FLCN is a model EC-120B aircraft registered to Simgesco Ltée.

Mr. Airlie chose not to give evidence. On cross-examination of Inspector Coomber he established that from the bays on the Northumberland Strait coast to Fredericton was about 90 miles. Mr. Coomber agreed that at 120 KTS or about 2 miles a minute, the distance would be covered in 45 minutes.

Regarding the telephone interview, Mr. Airlie asked whether he had stated that his aircraft was squawking 1200 at all times, but the witness was unable to remember.

ARGUMENT

Mr. Thompson argued the testimony and documentary evidence produced proved each element of the offence. The monetary penalty of $100.00 was appropriate in the circumstance.

Mr. Airlie presented argument on two bases. He submits that there was reasonable doubt as to the identity of the aircraft and secondly he argues due diligence.

The witnesses in the control tower did not identify the helicopter that they observed. They were unable to even establish its colour.

Given the distance from the Northumberland Strait coast to Fredericton of 90 nautical miles, an aircraft going 120 KTS would cover the distance in 45 minutes. However if one takes the helicopter's time of arrival in Fredericton and works back, that calculated time does not coincide with the time established on the Radex plot for the target on the Northumberland coast. Therefore there is a doubt as to whether or not it was Mr. Airlie's helicopter. There may be a gap in the radar coverage.

Together this all should establish a reasonable doubt regarding the identity of the helicopter. Mr. Airlie also submits that his flight was conducted with all due diligence, as illustrated by the appropriate contact with Fredericton FSS.

DISCUSSION

It is incumbent upon the Minister to prove on a balance of probability every element of the offence. Subsection 601.09(1) of the Canadian Aviation Regulations (CARs) states:

601.09 (1) Subject to subsection (2), no person operating a VFR aircraft shall enter Class D airspace unless the person establishes two-way radio contact with the appropriate air traffic control unit before entering the airspace.

Subsection (2) is inapplicable in this instance.

The evidence reveals that Mr. Airlie was operating a VFR helicopter (a helicopter by definition in subsection 101.01(1) of the CARs is an aircraft) in the area near Moncton on September 13, 2000.

It is established that the control zone around the Moncton airport is Class D airspace and that the appropriate air traffic control unit to contact before entering that Class D airspace is the Moncton tower.

The two tower controllers testified to seeing a radar target and then visually observing a helicopter transit the Moncton control zone. They were not able to identify the helicopter. It was not in two-way radio contact with the tower.

The issue to be resolved is whether the helicopter seen flying through the zone was that being flown by Mr. Airlie.

I find that the Minister has established, on a balance of probability, that Mr. Airlie was the pilot flying helicopter C-FLCN through the control zone, without being in radio contact with the Moncton tower.

The proof of that fact is circumstantial but the circumstances are consistent only with the event having occurred as alleged.

The Radex plot shows only one target squawking the VFR code of 1200. Mr. Airlie had told the inspector that his aircraft's transponder was set to 1200. The target indicated an altitude between 400 and 800 feet. Mr. Airlie's statement says he was at approximately 500 feet. This target commenced south east of Moncton, went towards and then followed the Northumberland Strait before turning west and traversing the Moncton control zone. Again Mr. Airlie had stated that deteriorating weather had caused him to follow the Northumberland Strait coast before turning for Fredericton. The time of arrival of helicopter C-FLCN in Fredericton is close to the time the Radex last shows a target enroute to Fredericton.

Mr. Airlie had sought to raise doubt in his argument. He is correct that no actual identification of the helicopter that traversed the control zone was made. In cross-examination he queried whether he had told the inspector that his aircraft was squawking 1200, at all times, on that morning. He posed a hypothetical time distance/equation regarding the target seen at the Northumberland Strait coast, enroute to Fredericton, that, if correct, could cause one to query if the target was indeed C-FLCN.

However the inspector could not remember if Mr. Airlie had qualified his statement. We are therefore left with the statement, as it was given. The time/distance equation was based on an aircraft speed of 120 KTS. But as Mr. Airlie did not testify, there is no evidence of what speed his helicopter did fly. Further to that point the Fredericton FSS was unable to give a special VFR clearance immediately which could have had the effect of one reducing speed from the optimum in order not to enter the control zone before clearance was granted.

The defence of due diligence was raised in argument. Civil Aviation Tribunal jurisprudence[1] provides that once a contravention has been proven the onus shifts to the alleged offender to prove, on a balance of probability, that he exercised all due diligence to avoid the commission of the offence. In the case at hand, there was no evidence presented by the alleged offender. Therefore there is no way for me to assess what action he did or did not take to avoid the commission of the offence.

Held: The circumstances of the flight in evidence are consistent only with the conclusion that Mr. Airlie contravened the provision. The defence of due diligence is not available in the circumstance. The Minister's suggested penalty of $100.00 is confirmed.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] Harry Edward Joseph Shermet v. Minister of Transport, CAT File No. C-1021-02, Appeal.