Decisions

CAT File No. Q-0435-33
MoT File No. NAP6504-Z-24212

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Richard Noël, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s 7.7, 7.9(5), 8.5
Air Regulations, C.R.C. 1978,c. 2, s 101, 818, 819
Hang Glider and Ultra-Light Aeroplane Operations Order (Air Navigation Order, Series V, No 24) s 6b), 7f)

Unauthorized Operation in Controlled Airspace, Paraglider, Hang Glider, Due Diligence, Defences


Review Determination
Caroline Desbiens


Decision: March 31, 1995

TRANSLATION

The Minister's allegation is upheld. I also maintain the amount of the monetary penalty at $100. This amount, payable to the order of the Receiver General for Canada, must be received by the Civil Aviation Tribunal within fifteen days of service of the present Determination.

A Review Hearing on the above matter was held Tuesday, March 14, 1995 at 10:00 hours at the Federal Court in the Quebec City Courthouse in Quebec City, Quebec.

BACKGROUND

On September 14, 1994, Transport Canada, Regulatory Compliance, sent a Notice of Assessment of Monetary Penalty to Mr. Richard Noël. The Notice reads in part as follows:

(translation)

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):

the Hang Glider and Ultra-Light Aeroplane Operations Order (Air Navigation Order, Series V, No. 24, paragraph 6(b)).

On September 17, 1993, at approximately 11:30 hours local time, you operated a hang glider within the control zone of Quebec City Airport without obtaining air traffic control clearance.

For this offence, Transport Canada assessed a monetary penalty of $100 payable before October 17, 1994. As payment of the monetary penalty was not received by the prescribed date, procedures were taken to hold a Review Hearing pursuant to section 7.9 of the Aeronautics Act.

PREAMBLE

At the Review Hearing, the Respondent Richard Noël admitted at the outset the following facts relating to the Notice of Assessment of Monetary Penalty cited above:

  • The occurrence took place September 17, 1993, and at 11:30 hours local time he was intercepted by the Transport Canada inspector;
  • he was under a hang glider;
  • he was at Sainte-Foy on a slope located about 5 miles from Quebec City/Jean Lesage Airport;
  • he had not obtained air traffic control clearance.

In this regard, Mr. Tamborriello, Case Presenting Officer for Transport Canada, filed a letter dated March 6, 1995, and signed by Mr. Richard Noël (Exhibit M-1).

EVIDENCE

Evidence of the crown

Mr. Bernard Delisle

Mr. Bernard Delisle testified first for Transport Canada. On September 17, 1993, Mr. Bernard Delisle was a pilot for Aviation Portneuf at Saint-Augustin. At the time he was flying an Aviation Portneuf seaplane on tourist excursions over Quebec City from Saint-Augustin lake. On the morning of September 17, 1993, Mr. Delisle saw a paraglider in flight while on the return leg of one of his excursions. Mr. Delisle was westbound over the St. Lawrence River at the boundary between the cities of Cap-Rouge and Sainte-Foy at an indicated altitude of about 800 feet when he saw a paraglider 45° to the right front of his aircraft and north of his position.

Mr. Delisle indicated that the paraglider was east of the railway bridge (locally known as the "tracel") over the Cap-Rouge river. According to Mr. Delisle, the paraglider was between 300 and 400 feet below his horizon, so that it was flying at an approximate altitude of 400 feet indicated. Mr. Delisle, the pilot, could not indicate to the Tribunal whether the paraglider was climbing or descending when he saw it.

As Mr. Delisle had not been notified that the paraglider was in the area, he immediately called the Quebec City Airport control tower to advise them of this traffic. A control tower officer allegedly told Mr. Delisle that he also was unaware of the paraglider. Considering the hazard the paraglider could be to traffic operating in the area, Mr. Delisle immediately reported it to the other seaplane pilots scheduled to land on or take off from Saint-Augustin lake that day. Exhibit M-4, prepared and filed by Mr. Delisle, indicates that seaplanes were taking off from Saint-Augustin lake that day at regular 20-minute intervals.

Mr. Delisle landed in a northeasterly direction on Saint-Augustin lake. It is noted that Mr. Delisle had seen the paraglider only on the return leg of his excursion, and that he had not seen any paragliders in flight before taking off on that excursion. The duration of the seaplane excursion was 15 to 20 minutes.

After that flight, Mr. Delisle remained at the lake for about 10 minutes while his passengers disembarked and another group embarked for a second excursion flight. During the take-off for this second excursion flight, Mr. Delisle saw the paraglider on the ground on the shore of Jacques-Cartier beach in Cap-Rouge. At that time, three patrol cars and the Transport Canada car were with the paraglider pilot.

Mr. Ghislain Samson

Mr. Ghislain Samson, a civil aviation inspector for Transport Canada, testified next and filed his Detection Notice as Exhibit M-5. Mr. Samson indicated that Mr. Paul Lalande of the Quebec City control tower informed him around 11:35 hours that a paraglider had made a flight within the Quebec City Airport control zone without obtaining prior clearance.

Mr. Samson therefore proceeded to the landing site to meet with the paraglider pilot Mr. Richard Noël. Mr. Noël confirmed that he had not made prior arrangements with the Quebec City control tower and that he indeed had made a paraglider flight. Mr. Noël allegedly also told him that he was a paraglider instructor.

When Mr. Samson met with Mr. Noël, the latter's student Mr. Robert Bélanger was also present, but he had not flown. In addition to Mr. Robert Bélanger and Mr. Richard Noël, there were three police officers at the landing site. Mr. Samson could not remember whether Mr. Richard Noël was aware that he was required to obtain clearance from the control tower before flying a paraglider in the control zone. Mr. Samson further indicated that he met Mr. Noël on the shore of Jacques-Cartier beach beside the rock cliff. Mr. Samson estimated the height from the ground to the top of the cliff to be about 200 feet.

In cross-examination Mr. Samson admitted that Mr. Richard Noël did not spontaneously indicate that he had not made prior arrangements with the control tower. Rather, it was in response to a question in this regard from Mr. Samson that Mr. Noël replied that he had not obtained prior clearance from the control tower.

Mr. Claude Fiset

Mr. Claude Fiset testified next as an expert witness for Transport Canada. Mr. Fiset is a senior paraglider instructor recognized by the Hang Gliding Association of Canada. He has been practising the sport intensively for the past seven years. As Mr. Noël did not question Mr. Fiset's expert qualifications, his status as such was accepted by the Tribunal.

Mr. Fiset first explained paragliding terminology generally. He explained specifically that a paraglider has a flexible canopy with a leading edge (the front edge) and a trailing edge (the rear edge). The craft is steered via brake controls and is fitted with several suspension lines in the front and rear, which are attached to the front and rear risers. The brake lines (steering controls) are attached to the rear risers.

Mr. Fiset then explained that to launch a paraglider the pilot must first inflate the canopy. Inflating the canopy consists in stabilizing it above the pilot's head. The canopy is normally inflated facing into the wind. If there is no wind, the pilot has to run on the ground to inflate the canopy. The pilot must run down a slope if he wishes to take off. In fact, running can produce enough lift to support the paraglider, but then a steep slope is required for a successful launch. Inflating the paraglider is an essential manoeuvre before take-off.

If there is no wind, it is still possible to launch if the slope is steep enough. Launching from flat ground is therefore very difficult, if not impossible, unless thermal updrafts of substantial velocity are present. Thus, if the winds are light, take-off can be achieved with an easy run down a slope of at least 30°. In the presence of wind, the following conditions must be met to achieve flight:

  • minimum wind speed of about 15 km/h
  • minimum slope angle of 30°
  • when facing the slope from the top, the wind must come from within an arc extending 45° either side of the fall line of the slope.

In the case at hand, the slope faced south, so that the wind had to come from the south ­ southeast or southwest ­ to create the conditions necessary for launch.

Mr. Fiset indicated that there must be a cliff less than 15 metres in front of the paraglider to permit take-off, as the paraglider canopy is normally seven metres above the pilot's head. It is noted that these conditions are the standard launch conditions for a paraglider wing with the appropriate surface area for the pilot, ie, when it has the correct wing loading[1].

Therefore, for a pilot of Mr. Richard Noël's weight, about 78 kg, the paraglider must have a surface area of about 28 square metres (m2). Mr. Fiset explained that if the wing area of Mr. Noël's paraglider was greater than 28 m2, a wind speed of less than 15 km/h would be sufficient to achieve a launch.

Mr. Fiset also testified that a pilot may inflate the paraglider without intending to fly. For example, inflating the paraglider is recommended if the pilot has never flown the paraglider or if the craft has never been used. Inflation allows the pilot to inspect and adjust the various components of the paraglider, as defects may occur in sewing or in the length of the suspension lines.

This inspection is best carried out on grassy terrain with a slight gradient. In fact, inflating the paraglider on a slope greater than 30° is not recommended, because the pilot would be in danger of inadvertently taking off.

Based on a description of the site where Mr. Noël made his launch, Mr. Fiset indicated that the site was not suitable for inflation because it exposed the pilot to the risk of taking off. It was Mr. Fiset's opinion, in fact, that the cliff behind which Mr. Noël inflated his paraglider had a slope of 45° to 60°, and therefore it could create updrafts which could cause Mr. Noël to take off. In addition, Mr. Fiset believes the winds behind that type of cliff are generally turbulent rather than smooth.

In cross-examination, Mr. Fiset acknowledged however that if the wind direction was not within 45° of the slope fall line, but was rather from the side, the possibility of take-off was low unless thermal updrafts were present. Thermal updrafts, or thermals, are rising currents of warm air caused by heat, ie, by a differential in air temperature. As an example, Mr. Fiset explained that a thermal could be created by the heat given off from a rock cliff warmed by the sun.

According to Mr. Fiset, although thermal updrafts occur naturally, they usually happen at regular intervals. According to him, the exact time that a thermal will be initiated cannot be predicted to the second, but because they are cyclical, their presence can easily be detected by prior observation of a site, that is, statistical data on the presence and duration of thermal winds can be compiled through observation of an area over approximately half an hour.

After examining the terrain at the site where Mr. Noël inflated his paraglider, Mr. Fiset noted that the site had several irregularities. These irregularities of the terrain, in combination with the effects of the sun, were conducive to the initiation of thermals. Thus Mr. Fiset concluded that, whatever the direction of the prevailing wind on September 17, the site chosen by Mr. Noël was not suitable for inflation because updrafts could be created by thermal currents or the prevailing wind direction could be modified by the nearby slope.

If it is assumed that the winds on September 17 were coming from the side (from the east) and were not within 45° of the direction of the south-facing slope, there were other natural features at the inflation site that could deflect the wind and cause rising currents, which are conducive to take-off. Mr. Fiset added that this site was not suitable for inflating because behind this type of cliff the winds are normally turbulent rather than smooth.

Mr. Fiset indicated that the site chosen by Mr. Noël is not an ideal or recognized location for flying paragliders, and, in any event, he would not recommend inflating a paraglider at that site.

In the event of an inadvertent launch of a paraglider during inflation, Mr. Fiset indicated that the flight can be terminated by stalling. This can be accomplished by activating the controls to deflect the trailing edge of the paraglider. He admitted, however, that terminating the flight might not be possible if the brake controls are not correctly adjusted and cannot effectively deflect the trailing edges. Aborting a flight might also be impossible if the climb is too rapid, ie, greater than one or two metres per second, or if the terrain is rugged.

In cross-examination, Mr. Fiset admitted that when a pilot is lifted one or two metres off the ground, stalling the paraglider becomes dangerous. He acknowledged that stalling is more common when the pilot is still on the ground.

Mr. Fiset indicated that the pilot can also execute a flight manoeuvre to return to the launch point if the area is sufficiently clear and if the steering controls are correctly adjusted. In this manoeuvre, the pilot generally flies a "figure-8" track, and the steering controls are therefore required to make the turns. For example, the paraglider pilot can break out of a thermal updraft and fly back behind it and land if the area is clear enough. The only other technique for escaping from a thermal updraft is to continue flying in a straight line.

Finally, Mr. Fiset testified that wearing a helmet is mandatory for flying a paraglider. Helmets are recommended but not mandatory for inflating a paraglider. Mr. Fiset knows Mr. Noël personally and acknowledged that the latter always wears a helmet when flying a paraglider.

Mr. Tamborriello

It was shown on the topographic map entered as Exhibit M-4 that the inflation site and the paraglider flight made by Mr. Richard Noël were within the Quebec City Airport control zone, that is, within a seven-mile arc centred on the geographic coordinates of Quebec City Airport, Quebec. This point was not questioned by Mr. Noël.

Evidence of Mr. Richard Noël

Mr. Richard Noël was a pioneer of paragliding in Quebec City. He has been practising the sport since 1987. He took his paraglider licence course in France and is certified by the Hang Gliding Association of Canada as a senior instructor in Canada for two-seat paragliders. He was Quebec Champion in 1989 and has participated in the world championships. His occupation is importing ITV-brand paragliders, manufactured in France, and has sold and adjusted more than 135 paragliders.

Mr. Noël testified that he never intended to make the subject paraglider flight on September 17, 1993. He had just received and delivered to his client Mr. Robert Bélanger an ITV two-seat paraglider. In fact, Exhibit T-3 (an invoice) indicates that Mr. Richard Noël, through his company, had ordered the paraglider on August 31, 1993. As inspecting the canopy for manufacturing defects is necessary for the paraglider vendor, Mr. Richard Noël made an arrangement with Mr. Bélanger that he would inflate the paraglider to carry out the usual checks. Accordingly, Mr. Bélanger telephoned Mr. Richard Noël to have his paraglider inflated on September 17, 1993.

Mr. Richard Noël went to Mr. Bélanger's home on chemin St-Louis in Sainte-Foy. The checks and adjustments of the canopy commenced around 10:00 hours. Before going to Mr. Bélanger's home, Mr. Noël checked the weather to confirm that the winds were unfavourable for paraglider flight but favourable for inflating, ie, Mr. Noël confirmed that the wind velocity was less than 15 km/h.

In support of his claim, Mr. Noël entered as Exhibit T-4 the monthly weather summary for September 1993. This summary, issued by Quebec City Airport, indicates the following for September 17, 1993:

  • at 9:00 hours - wind from the east at 9 km/h;
  • at 10:00 hours - wind from east-southeast (ESE) at 11 km/h;
  • at 11:00 hours - wind from ESE at 9 km/h; and
  • at 12:00 hours - wind from the east at 13 km/h.

Mr. Noël decided to inflate the paraglider near Mr. Bélanger's home. The inflation site was 1.7 km from the tracel, the railway bridge over the Cap-Rouge River. The site selected for the inflation was a grassy area located between two houses. It is oriented north-to-south and measures about 100 feet long by about 70 feet wide. There was a tree hedge at the south end of this area, and behind the hedge was a slight geodetic gradient leading to a railway about 30 feet wide, followed by a bank 40 feet high, followed by the rock cliff about 280 feet in height, which leads to Jacques-Cartier beach. The slope of the cliff was approximately 45° to 60°. The grassy area selected by Mr. Noël for the inflations was 30 feet higher than the railway. To describe the inflation site, Mr. Richard Noël made a sketch filed as Exhibit T-8 showing the land surface.

Mr. Richard Noël indicated that, when he arrived at Mr. Bélanger's home, the wind was from the east, that it subsequently shifted to ESE, and that the wind velocity was 10 km/h maximum. In his view, to launch from this site, the winds would have to be from the south or southeast.

Mr. Noël began by checking the suspension lines and attachment links and made appropriate corrections. He also installed the two saddles. As he did not intend to fly, he inflated the canopy three or four times to adjust the brake controls, but he did not don his helmet, radio, altimeter and other equipment required for a paraglider flight. Because of the light winds, inflating the paraglider was difficult. As the light prevailing winds were from the east, the paraglider canopy was to the west but faced east; the cliff faces south.

As he did not have his equipment, Mr. Noël weighed about 78 kg. The minimum weight recommended for flying this type of two-seat paraglider with a wing area of 40 m2 is 160 to 200 kg. Therefore, Mr. Richard Noël did not have the minimum wing loading required for safe flight.

While he was preparing to inflate the paraglider canopy, a thermal updraft with an approximate velocity of three metres per second suddenly lifted the paraglider. According to Mr. Noël, this thermal updraft came from the railway and was probably caused by the heat given off by that surface. As he was rising off the ground, Mr. Noël realized that, because the steering controls were too short, if he attempted to use them he would be in imminent danger of stalling.

According to Mr. Noël, a stall was not desirable and could even be dangerous because of the zone of turbulence created by the thermal current and because he suddenly found himself about 50 feet above the ground within a few seconds. As the brake controls were too short and Mr. Noël's ability to manoeuvre was therefore limited, he preferred to let the canopy pressurize to escape the turbulence zone. It is noted that Mr. Noël was also unable to reduce his rate of climb because the brake controls were too short and, as indicated above, there was a risk of stalling.

With the trees at the edge of the site and the houses and people close by, the only course open to Mr. Noël was to skirt the turbulence zone and head south, ie, toward the cliff, then look for a safe landing area. Mr. Noël's first action was to get the feel of his canopy and gain control of it to ensure his own safety and that of Mr. Bélanger and the other people close by. To gain control of the wing he flew back and forth three or four times (in his own words he made (translation) "three or four passes") to clear the site and the turbulent air zone. He then proceeded south toward the cliff to look for a landing site. As the tide was in at the time, the only place available for a landing was at the end of the Jacques-Cartier beach road. Therefore, Mr. Noël proceeded as quickly as possible toward that location, which was safer for landing.

Mr. Noël indicated that his paraglider flight lasted about 10 to 15 minutes. However, he could not confirm the duration of the flight because he was in a state of panic at the time. Indeed, he was not wearing a helmet, it was the first time he flew this type of paraglider, and the wing surface was much too large for his weight. In this regard, it is noted that Mr. Noël's descent with this 40 m2 paraglider was necessarily slower than it would have been with a 28 m2 paraglider, ie, with the correct wing surface for Mr. Noël's weight. The same was true of the time required to clear the thermals.

Mr. Noël admitted that he gained altitude with his paraglider but that he never climbed above the treetops. He estimated the height of the cliff at 280 feet and the trees at 70 feet, so that his altitude would have been approximately 350 feet above the St. Lawrence River.

In support of his testimony, Mr. Richard Noël filed a letter dated March 5, 1995, from Mr. Robert Bélanger. This letter was entered as Exhibit T-9. Mr. Robert Bélanger was not available to testify at the Review Hearing; therefore, he prepared a letter confirming Mr. Noël's statements. Mr. Bélanger indicates in his letter that a gust of wind lifted the paraglider with Mr. Noël on board, and that it was clear he did not intend to launch and fly the paraglider.

Mr. Noël confirmed that after the landing, a Transport Canada employee came to meet him, and he told him that he had not obtained clearance from the control tower before making the subject flight.

Under cross-examination by Transport Canada's Case Presenting Officer, Mr. Noël admitted that, on September 17, 1993, he did not know that he had made a flight within the Quebec City Airport control zone. He explained that he had not asked about whether the launch site was inside the control zone because initially he had not intended to fly on that day. In this regard, he repeated that he did not have his helmet, whereas he always wears his helmet when flying a paraglider, and that he had previously checked the weather forecast, particularly the wind direction and velocity, to confirm that wind conditions would be favourable for inflating.

As the winds were under 15 km/h from the east, Mr. Noël repeated that there was no risk of launching from the site referred to above, even if there was a cliff close by. According to him, the winds could not be ascending because they were coming from the east, not from the south. In cross-examination, however, Mr. Noël did not deny that taking off during inflation was not impossible.

Reexamination of expert witness Claude Fiset

After having heard the testimony of Mr. Richard Noël, Mr. Claude Fiset admitted that stalling would have been dangerous for Mr. Noël after he was lifted by the thermal. He also acknowledged that because of the trees and houses close by, there were few places for a safe landing.

He indicated that flying out of a thermal updraft normally requires 15 seconds at most. However, because Mr. Noël's wing loading was insufficient owing to the paraglider's large wing area, the time required to escape the thermal must have been greater than 15 seconds but less than one minute.

Considering the 10 km/h wind velocity and Mr. Noël's very low wing loading, Mr. Fiset estimated that the flight would have taken a total of two minutes in ideal conditions if Mr. Noël really intended to land immediately after his inadvertent take-off. Yet considering that the paraglider was probably not adjusted correctly, Mr. Fiset estimated that the flight would have lasted five minutes in the worst scenario.

If Mr. Noël's flight lasted more than 10 minutes, he must have been searching for thermal currents, according to the expert witness Claude Fiset. In brief, a flight lasting over five minutes must have been voluntary and intentional.

In conclusion, the expert witness indicated that he would not inflate a paraglider inside a control zone unless there was no risk of taking off, and that one should not expose oneself to even the slightest risk of take-off in a control zone. In this case however the risk of launch existed because of the cliff near the site and because of the terrain irregularities which could cause thermal updrafts.

THE LAW

Section 7.7 of the Aeronautics Act states:

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 ...

Subsection 3(1) of the Designated Provisions Regulations (Air Regulations, Series I, No. 3), reads as follows:

3. (1) The provisions listed in column I of the schedule are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in sections 6.7 to 7.2 of the Act.

Column I of the schedule indicates that paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order (Air Navigation Order, Series V, No. 24) is a designated provision.

Section 2 of the Designated Provisions Regulations defines "Act" as:

the Aeronautics Act

Paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order reads as follows:

6. Except as authorized pursuant to section 7, no person shall operate a hang glider or an ultra-light aeroplane

(a) ...

(b) in controlled airspace.

Paragraph 7(b) provides as follows:

7. A person may operate a hang glider or an ultra-light aeroplane

(a) ...

(b) within any control zone associated with a controlled airport if that person has obtained an air traffic control clearance, as defined in section 101 of the Air Regulations, by two-way radio voice communications from the airport control tower unit of that airport.

The term "control zone" is defined in section 101 of the Air Regulations as follows:

"control zone" means a controlled airspace extending upwards vertically from the surface of the earth and designated as a control zone in the Designated Airspace Handbook issued under the authority of the Minister; (zone de contrôle)

The Designated Airspace Handbook issued under the authority of the Minister of Transport (Issue No. 134 effective 16 September 1993) defines the Class C control zone for Quebec City Airport as follows:

Quebec, Que. - 3500' ASL (3300' AAE) 46°47'36"N 71°23'29"W

The airspace within the area bounded by a line beginning at 46°45'00"N 71°14'04"W; thence clockwise along a 7-mile arc centred on the Quebec, Que. airport to 46°50'45"N 71°14'24"W to 46°52'05"N 71°10'30"W; thence along a 10 mile arc centred on the Quebec, Que. airport to 46°43'53"N 71°10'00"W to the point of beginning, excluding the airspace within CYR612.

It is noted that the Hang Glider and Ultra-Light Aeroplane Operations Order was made by the Minister of Transport pursuant to subsection 6(2) of the Aeronautics Act and section 104 of the Air Regulations.

Subsection 7.6(2) of the Aeronautics Act provides:

(2) A person who contravenes a designated provision is guilty of an offence and liable to the punishment imposed in accordance with sections 7.7 to 8.2 and no proceedings against the person shall be taken by way of summary conviction.

Subsection 7.9(5) of the Aeronautics Act provides:

(5) On a proceeding before a member of the Tribunal under subsection (4),

(a) the burden of proving that the person appearing before the member has contravened the designated provision that the person is alleged to have contravened is on the Minister; and

(b) the person is not required and shall not be compelled to give any evidence or testimony in the matter.

Finally, section 8.5 of the Aeronautics Act provides:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

Sections 818 and 819 of the Air Regulations read as follows:

818. (1) In complying with these Regulations due regard shall be had to all dangers of navigation and of possible collision, and to any special circumstances rendering non-compliance therewith necessary to avoid immediate danger.

(2) In any prosecution for a contravention of these Regulations or any order made by the Minister pursuant to these Regulations, it is a good defence if the person charged therewith establishes that the contravention took place due to stress of weather or other unavoidable cause as contemplated by this section.

819. Nothing in these Regulations shall be held to relieve the owner, operator or flight crew member of an aircraft of the consequences of any neglect in the use of lights or signals, or of any neglect to keep a proper lookout, or neglect of any precaution that is required by the ordinary practice of the air or by the special circumstances of the case.

Finally, the following definitions are given in the Air Regulations:

"hang glider" means a motorless heavier-than-air aircraft deriving its lift from surfaces that remain fixed in flight, designed to carry not more than two persons and having a launch weight of 45 kg or less; (aile libre)

"heavier-than-air aircraft" means any aircraft deriving its lift from aerodynamic forces; (aérodyne)

"aircraft" means any machine capable of deriving support in the atmosphere from the reactions of the air; (aéronef)

ARGUMENT

Argument of the Minister of Transport

The Minister of Transport submits that the paraglider used by Mr. Noël is a hang glider as defined by the Air Regulations, and that the site where the occurrence took place is within a control zone of a designated airport, ie, within a seven-mile arc centred on the geographic coordinates of Quebec City Airport.

The Minister of Transport further submits that he proved the contravention of paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order. In fact, Mr. Noël admitted that, on September 17, 1993, he had made a paraglider flight in controlled airspace and that he had not obtained prior clearance from Quebec City Airport air traffic control as required by paragraph 7(b) of the said Order.

In addition to the admission of Mr. Noël, the Minister of Transport stresses that the testimony of the seaplane pilot Mr. Bernard Delisle showed that Mr. Noël in fact had made a paraglider flight on September 17, 1993, and that he had not obtained clearance from the Quebec City Airport control tower before making the flight.

The Transport Canada inspector Mr. Ghislain Samson also confirmed that Mr. Noël had not obtained prior clearance from the Quebec City Airport control tower. Consequently, the Case Presenting Officer for the Minister of Transport indicated that the Minister had discharged the burden of proof in that an offence under the said Order was duly proved by the latter. The Minister submits in fact that an offence under subsection 7.6(2) of the Aeronautics Act is a strict liability offence and that there is no requirement for the Minister of Transport to prove the intention to commit the offence.

Further, the Case Presenting Officer for the Minister of Transport stresses that even if Mr. Noël did not intend to make a paraglider flight on September 17, 1993, he had not exercised all due diligence to ensure he complied with the Order as provided in section 8.5 of the Aeronautics Act. According to Transport Canada, Mr. Noël should first have determined whether the chosen inflation site was within a control zone. It was even more necessary for Mr. Noël to verify this aspect as he is an experienced paraglider instructor. Second, Transport Canada indicates that there is always a possibility that a take-off will occur when a paraglider canopy is inflated, and that possibility was especially significant on September 17, 1993, since the site selected to do the inflations was near a cliff.

The Case Presenting Officer for the Minister stresses that, in this regard, the expert confirmed that there is a possibility of take-off when an inflation is done near a cliff, and that there is also a possibility of thermal updrafts at that location. Although predicting precisely when they will occur is impossible, the presence of thermals can be detected easily by prior observation of the site, especially in sunlight, as the expert indicated. In summary, the Minister submits that the expert witness Claude Fiset indicated that the site chosen by Mr. Noël was unsuitable for inflation even if the prevailing winds on the morning of September 17 may not have been of sufficient velocity or from the direction required to achieve launch.

In addition, Transport Canada submits that Richard Noël indicated that he had made a paraglider flight lasting 10 to 15 minutes. Nevertheless, if Mr. Noël had not intended to fly the paraglider, the flight would not have lasted more than five minutes, as established by the expert Claude Fiset. Consequently, the Minister concludes that, after becoming airborne, Mr. Noël voluntarily made a paraglider flight instead of landing immediately, thereby creating a hazard to aviation safety in the control zone, and more specifically, in a zone where seaplanes were making several take-offs and landings on nearby Saint-Augustin lake.

In support of its argument that Mr. Noël committed an offence under the Hang Glider and Ultra-Light Aeroplane Operations Order, irrespective of whether he intended to make a paraglider flight, Transport Canada referred to the decision of this Tribunal in Minister of Transport v. Daniel William Haseloh dated November 29, 1993, CAT No. C-0339-33. In that matter the Tribunal found that a gyrocopter pilot had contravened subsection 534(7) of the Air Regulations, which is also a designated provision, although he did not have the intention of taking off and landing on a surface within a built-up area of a city.

In conclusion, the Minister of Transport recommends a monetary penalty of $100, as this is Mr. Noël's first offence. The Designated Provisions Regulations set a maximum penalty of $1,000 for such an offence.

Argument of Mr. Richard Noël

Mr. Noël stresses that he had no intention of making a paraglider flight on September 17, 1993. He admits, however, that he made a paraglider flight in the Quebec City Airport control zone. He explains that he did not obtain clearance from the airport control tower because he did not intend to fly, but rather to inflate the paraglider that he had just sold to his client. The two-seat paraglider was to be inflated to allow Mr. Noël to make the normal checks and adjustments before it was used for the first time.

Mr. Richard Noël indicates that he exercised due diligence in accordance with section 8.5 of the Aeronautics Act to avoid a launch within a control zone by checking the weather forecast before going to his client's home, more specifically, wind velocity and direction. In fact Mr. Noël indicates that he ensured that the meteorological conditions were favourable for inflating and not favourable for take-off by checking that the wind velocity was under 15 km/h and the winds were from the east. Therefore, the site chosen was favourable for inflating the paraglider, as the winds were light and blowing crosswise, ie, they were not coming from within 45° of the fall line of the cliff (south) near the inflation site.

In support of his argument that he did not intend to fly the paraglider, Mr. Noël submits that he was not wearing a helmet or the other equipment required on a paraglider flight, like a radio and an altimeter. He also submits his client's letter, filed as Exhibit T-9, confirming that he inadvertently left the ground during inflation procedures on September 17, 1993.

In defence, Mr. Noël also submits that a paraglider is a hang glider that is dependent on the weather because it has no engine, and that on September 17 he was inadvertently and abruptly thrust into the air under his client's paraglider by unforeseeable thermal updrafts. In this regard, he submits that the offence was due to an unavoidable cause, ie, thermal currents, and that this constitutes a good defence against this contravention under subsection 818(2) of the Air Regulations.

He further submits that he could not abort the flight by stalling because he was thrust up very rapidly to a height of about fifteen feet in two or three seconds, and stalling would have been very dangerous at that height. In addition, the area where the thermals originated was a dangerous zone of turbulence that should be avoided; thus the best course of action was to let the paraglider fly and steer around the zone.

Finally, he submits that it was also impossible for him to return immediately to the take-off site because the terrain was not sufficiently clear and the steering controls were too short, so that his ability to manoeuvre was limited and he could not turn easily in flight. In this regard, he submits that he had no alternative but to make a paraglider flight to avoid immediate danger. According to Mr. Noël, he was permitted under subsection 818(1) of the Air Regulations not to comply with the Hang Glider and Ultra-Light Aeroplane Operations Order because he had to avoid immediate danger, ie, an imminent stall and crash.

With respect to the duration of the flight, Mr. Noël indicates that, because he was in a state of panic, he merely made an approximation and that the flight may have lasted less than 10 minutes. He explains that if the flight lasted over five minutes, it is because he had to take the time needed to get the feel of the wing and control it to avoid crashing. He indicates that after getting control of the wing in flight, his sole objective was to find a safe landing spot, and therefore he never had the intention of looking for more thermals to prolong his flight.

Reply argument of the Minister of Transport

In reply, the Minister of Transport adds that under section 8.5 of the Aeronautics Act Mr. Noël is required to show that he exercised all due diligence to prevent the contravention. Accordingly, even if Mr. Noël's intention was to carry out an inflation, he should have inquired or determined whether the inflation site was in a control zone of a controlled airport. Moreover, even if the risk of launch was minimal, it did exist, and Mr. Noël should not have done inflations in that area because he was exposing himself to the risk of flying in an air traffic zone. Finally, Mr. Noël should have had his radio with him to advise the control tower in case of take-off. Consequently, the Minister submits that Mr. Noël did not exercise all due diligence to prevent a contravention of the Order.

According to Transport Canada, the derogations and exemptions allowed under section 818 of the Air Regulations do not apply if the contravener has not taken all the precautions required in the particular circumstances, and, therefore, Mr. Noël's arguments in defence, namely that the contravention was due to an unavoidable cause and that he committed it to avoid immediate danger, would be invalid. Otherwise stated, section 819 sets out a prerequisite to the application of section 818 of the Air Regulations. Finally, Transport Canada stressed that as an instructor Mr. Noël was even more aware of the precautions to be taken in such situations.

THE ISSUES

  1. Did Transport Canada demonstrate on a balance of probabilities that Mr. Noël contravened paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order?
  2. If so, did Mr. Noël demonstrate on a balance of probabilities that he exercised all due diligence to ensure compliance with the Order within the meaning of section 8.5 of the Aeronautics Act?

CONCLUSION

The Hang Glider and Ultra-Light Aeroplane Operations Order is a designated provision the contravention of which may be dealt with under and in accordance with the procedure set out in sections 6.7 to 7.2 of the Aeronautics Act. Contraventions of paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order are prohibited in the public interest and are not subject to proof "beyond a reasonable doubt" as are criminal acts. The concept of guilt in regulatory offences is based on criteria of reasonable diligence. This Tribunal made a similar determination based on the decision of the Supreme Court of Canada in Sault Ste-Marie. This issue was dealt with more particularly in Minister of Transport v. Canadian Airlines International, a decision dated July 22, 1992, CAT File No. O-0300-50. As then determined, the criteria for the defence in "strict liability" matters allow the accused to demonstrate on a balance of probabilities that they exercised reasonable diligence to prevent the wrongful act.

The element of fault or negligence arises when the Applicant has established that the Respondent has done the act which violates the provision, the onus then shifts to the regulatee to establish that he was not negligent ­ in other words, he exercised due diligence to avoid the act. The onus of persuasion in proffering this defence rests with the Respondent.[2]

The same burden applies to the provisions of section 8.5 of the Aeronautics Act, which expressly provides that the Respondent must have exercised all due diligence to prevent contravention of the strict liability provision.

The paraglider used by Mr. Noël is a hang glider and, as such, is an aircraft within the meaning of the Air Regulations; therefore, Mr. Noël is subject to the provisions of the Hang Glider and Ultra-Light Aeroplane Operations Order.

There is no doubt that the inflation site and the location where Mr. Noël made the flight are within the control zone of a designated airport, ie, within a seven-mile arc centred on the geographic coordinates of Quebec City Airport.

The Minister of Transport also proved the offence under paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order. In fact, Mr. Noël admitted making a paraglider flight in controlled airspace on September 17, 1993, without obtaining prior clearance from Quebec City Airport air traffic control. Moreover, this offence was duly demonstrated in the testimony of Mr. Bernard Delisle and the Transport Canada Inspector Mr. Ghislain Samson. As Transport Canada, for the reasons set out above, is not required to prove that Mr. Noël intended to make a paraglider flight on September 17, 1993, the Department discharged its burden of proof, and the onus shifted to Mr. Noël, requiring him to demonstrate that he exercised all due diligence to prevent the contravention.

In his testimony, Mr. Noël demonstrated on a balance of probabilities that he did not intend to make a paraglider flight on September 17, but merely to do inflations. Indeed, Mr. Noël was not wearing his equipment, his helmet in particular, which he required to make a safe flight, and the expert witness, who knows Mr. Noël, acknowledged that the latter always wears his helmet when flying a paraglider.

In addition, as all conditions were unfavourable for safe paraglider flight, it is more probable that Mr. Noël intended only to inflate the paraglider canopy to check and adjust its components before his client first used it. Indeed, the wing loading provided by Mr. Noël was not sufficient for safe flight, and the unadjusted steering controls dangerously limited the pilot's ability to manoeuvre, and he could not control the paraglider properly. Further, the expert witness Claude Fiset admitted that a paraglider pilot can do inflations without intending to launch.

Although Mr. Noël checked the wind velocity and direction before proceeding to the home of his client Mr. Bélanger, to ensure, as he says, that the winds were not favourable for paraglider flight, I feel Mr. Noël did not exercise all due diligence to ensure compliance with the said Order and prevent the offence as committed. One precaution that Mr. Noël omitted to take is to check and ensure that his chosen inflation site was not within a control zone of a controlled airport. I distinctly noted the fact that Mr. Noël had not checked this point because he did not intend to make a flight. However, this member believes that Mr. Noël should have taken this precaution for the following reasons:

  1. Mr. Noël admitted that, as paragliders are not equipped with engines, they are hang gliders dependent on the weather, particularly uncontrollable winds; he was therefore aware of the risk of taking off when inflating a paraglider.
  2. Irrespective of the wind direction, the expert witness Claude Fiset recommended against the inflation site selected by Mr. Noël because it was near a cliff with a slope of over 30° that could cause updrafts or deflect the wind that prevailed on that day, thus creating a risk of take-off.
  3. The expert witness also recommended against the inflation site behind a cliff because the winds at that location are usually not smooth, ie, they are turbulent.
  4. Even if the prevailing winds were not sufficiently strong to cause the paraglider to take off, the expert witness Claude Fiset also demonstrated that the unusual terrain features at the inflation site chosen by Mr. Noël, in combination with the sunshine on the morning of September 17, could create thermal updrafts sufficient to cause Mr. Noël to take off.
  5. Mr. Noël was even more vulnerable to the risk of take-off with the subject two-seat paraglider because he did not have sufficient wing loading, ie, the surface of the paraglider canopy was much too large for Mr. Noël's body weight, and, therefore, wind velocity of less than 15 km/h was enough to launch it. In light of the foregoing, was the 11 km/h wind from ESE that prevailed at 10:00 hours sufficient to cause the 40 m² paraglider to take flight? Mr. Noël did not concern himself with this possibility. In fact, Mr. Noël offered no evidence that he actually considered how much wind velocity would be required to launch a 40 m² two-seat paraglider with just one person holding it during inflation. According to the expert witness Mr. Fiset, a two-seat paraglider with that wing surface required a wind of less than 15 km/h to launch. Nevertheless, Mr. Noël indicated that a 15 km/h wind was required to launch it, (rather, this is the standard for a 28 m² paraglider, the canopy size for Mr. Noël's weight) and that he checked the weather to ensure that the winds were under 15 km/h.
  6. Although a pilot cannot predict when thermals will occur, their presence can be detected easily by prior observation of the site. Mr. Noël did not carry out such observations, and he did not deny that these cyclical thermal currents can be detected.
  7. As an experienced instructor, it was even more necessary for Mr. Noël to be aware of all the factors that could cause the paraglider to take off, even if the prevailing winds on the morning of September 17 may not have been from the direction required to cause it to take off.

Further, I cannot ignore the danger to which Mr. Noël exposed himself and other air traffic on September 17 by flying in a control zone. As seaplanes were taking off from Saint-Augustin lake every 20 minutes that day, there was a risk of collision with the paraglider.

The particular circumstances set out above, which show a risk of take-off while Mr. Noël's paraglider was being inflated, lead the Tribunal to conclude that Mr. Noël should have had his radio with him, allowing him to notify the control tower of his inadvertent flight. In addition, before inflating the paraglider he could have taken the necessary precautions whereby his client Mr. Bélanger would know how to contact air traffic control in case of a take-off. Nevertheless, Mr. Noël, who bore the burden of showing that he exercised all due diligence to prevent the contravention, did not demonstrate that this precaution was taken.

Finally, I cannot accept the argument of Transport Canada that Mr. Noël hunted thermals to prolong his flight. The Minister of Transport did not establish the duration of Mr. Noël's paraglider flight. For his part, Mr. Noël gave his version in a highly credible manner, and indicated that he was unable to assess the duration of the flight with certainty because of the dangerous situation and his state of panic on September 17. He also indicated that the maximum height he attained during the flight was treetop height, and that he was at an altitude of about 350 feet above the St. Lawrence River, which is consistent with the testimony of the seaplane pilot Mr. Delisle. In this regard, I find that Mr. Noël demonstrated that his only intention was to find a safe landing area when he was in flight.

In concluding, I am also of the view that aborting his paraglider flight was not possible for Mr. Noël or to return immediately to the take-off site to avoid flying the paraglider in the control zone. Having heard the testimony of Mr. Noël, the expert witness Claude Fiset acknowledged that it would have been very dangerous for Mr. Noël to induce a stall because the terrain was rugged and that Mr. Noël was probably thrust up to a height at which stalling is dangerous. The Transport Canada expert also acknowledged that the area chosen by Mr. Noël was not sufficiently clear to allow him to return immediately to the launch site after the take-off, and, in any event, such a manoeuvre is impossible when the steering controls are not adjusted.

I do not accept Mr. Noël's arguments that the offence was due to an unavoidable cause, ie, thermal currents, and that the offence was committed to avoid immediate danger. The derogations and exemptions permitted under section 818 of the Air Regulations do not apply if the offender did not exercise all due diligence in the particular circumstances to prevent the contravention. I am therefore of the view that Mr. Noël did not exercise all due diligence in these particular circumstances, which show that there was a risk that Mr. Noël would take off on September 17, 1993. In any event, thermal currents cannot be described as an "unavoidable cause" because they are cyclical and their presence can also be detected by observation of the site, as demonstrated by the expert witness Claude Fiset.

DETERMINATION

Consequently, the allegation of the Minister is upheld. I also maintain the amount of the monetary penalty at $100, since this is Mr. Noël's first offence.

Caroline Desbiens
Member
Civil Aviation Tribunal


[1] Wing loading: ratio of gross weight to total wing area.

[2] Page 17 of the Review Determination in Minister of Transport v. Canadian Airlines International, July 22, 1992, CAT File No. O-0300-50.


Appeal decision
Faye H. Smith, Guy Racicot, Michel Larose


Decision: June 25, 1996

TRANSLATION

The appeal is upheld, and the assessment of a penalty in the amount of $100 is dismissed.

The Appeal Hearing on the above matter was held Tuesday, February 13, 1996 at 10:00 hours at the Federal Court of Canada, in Quebec City, Quebec.

PRELIMINARY MOTION

The Appeal Panel at the commencement of the hearing dismissed three requests for the introduction of new evidence; namely, photographs of the take-off site, the hearing of a new witness and a request to view the site. Following submissions by the parties, the Appeal Panel indicated that in the absence of exceptional circumstances, no new evidence could be introduced on appeal. In the case at hand, nothing prevented the introduction of these photographs at the time of the review, at which time the Appellant could also have presented his witness. More particularly, with respect to the request to view the site and in light of the general principle concerning the introduction of new evidence, the Panel noted that the time of year at which the site visit had been requested did not correspond to the time of year when the alleged offence had taken place.

REASONS FOR THE MAJORITY DETERMINATION

by Mr. Guy Racicot

with the concurrence of Dr. Michel Larose

After reviewing the exhibits, reading the transcripts of testimony and hearing the submissions of the parties, the undersigned makes the following determination.

THE FACTS

On September 17, 1993, the Appellant, Richard Noël, flew a paraglider within the control zone of the Quebec airport. This fact was observed by a floatplane pilot who was about to land on Lac Saint-Augustin, also located within the control zone of the Quebec airport. Following the transmission of this information to the air traffic controller at the Quebec control tower, a Transport Canada inspector and a police patrol were dispatched to the site. Contrary to what the inspector believed, this flight had not originated from the top of the cliff overlooking the spot where Mr. Noël had landed, but at some distance from there.

The description of the point of origin of the flight was provided only by Mr. Noël. At the close of the Minister's evidence, including the testimony of a paraglider expert who had never seen the point of origin of the flight, the Appellant testified in his own defence.

Mr. Noël's testimony clearly establishes that he had no intention of undertaking the flight he is alleged to have made. Mr. Noël stated that he wanted to test the paraglider that he was going to deliver to a client and that, to do so, he had to inflate the canopy in order to ensure delivery of a safe product, free of workmanship faults and appropriately adjusted. The evidence showed that this inflation can be done anywhere, as long as there is sufficient space to lay out the canopy on the ground and as long as the area is sufficiently open so as to allow the dynamic effect of the wind to inflate the canopy. The selection of such a location is critical. While the wind must be strong enough to permit the inflation, it must not be too strong or combine with other elements, such as a nearby slope or thermal conditions such that simply inflating the canopy would result in an unexpected take-off.

On the day of the alleged occurrence, Mr. Noël chose to test the canopy on a private, residential lot which was situated within the control zone of the Quebec airport. He examined the field and its surroundings and checked wind direction and velocity before undertaking to inflate the canopy. The lot, as it was subsequently established in evidence provided by the prosecution's expert and by the defence, did not present the usual characteristics for a paraglider take-off area, nor did it present the basic characteristics of such an area: a border of high trees, limited space, the absence of a nearby slope, closeness to the river, the presence of a nearby railway, absence of a landing area.

Both the prosecution and the defence attempted to explain how this flight could have happened, contrary to all expectations. Mr. Noël was unable to provide an explanation, advancing the hypothesis that it was caused by the combined effect of the wind and an unexpected thermal current resulting from the specific topography of the location. He maintains that this flight should never have happened, according to the known criteria for this sport. Mr. Fiset, the expert witness called by the Minister, could not explain this flight either. He advanced several hypotheses, but it must be remembered that he has never seen the take-off area. Accordingly, his testimony must be evaluated with reservations. The undersigned is absolutely convinced that Mr. Noël had no intention of taking off. One could not imagine that a sensible person, even with bravado, would undertake such flight with untested equipment, calibrated for tandem use and without wearing usual flight clothing and accessories such as a helmet and appropriate footwear.

THE LAW

The question which this Tribunal must ask and which it must answer is as follows: "Is Mr. Noël guilty of having committed the alleged offence, even though he had no intention of committing it? And if yes, does he have a good and valid defence?"

The first step requires qualification of the alleged offence. The Supreme Court of Canada decision R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299 establishes three categories of offences: mens rea offences, offences of strict liability and offences of absolute liability.

Offences against the public's well-being which threaten health or safety, and most of the offences committed under the Aeronautics Act are invariably considered as offences of strict liability. There are no offences of absolute liability under the Aeronautics Act and related legislation. In the case before us, the offence is one of strict liability.

We believe it necessary to quote certain passages taken from the Sault Ste.Marie decision in order to provide proper understanding of the doctrine of due diligence which applies to offences of strict liability under the Aeronautics Act. In qualifying offences of strict liability, Justice Dickson wrote:

... the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application.[1]

In dismissing the obligation of the prosecution to prove negligence in a case involving an offence of strict liability, Justice Dickson added:

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken ... While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.[2]

The Judge went on to define due diligence as follows:

This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused ... took all reasonable steps to avoid the particular event. (underlining by the undersigned)

Many subsequent decisions have provided clarification of the notions of "reasonable care" and "due diligence".

While the undersigned does not propose to undertake an exhaustive study of the judisprudence since the 1978 Supreme Court decision, it is important to review several widely-known principles which have been applied since the decision and have been written up in the Code de procédure pénal annoté et jurisprudence.

  • Reasonable care must be considered in the context in which it must be exercised and take into account the agencies charged with ensuring regulatory compliance as well as their habits and customs;[3] [translation]
  • Reasonable care, as it applies, is that which must be shown by a reasonably prudent person who practices the occupation in which reasonable care must be exercised;[4] [translation]
  • It is however open to the defence to introduce evidence that shall be referred to as proof of reasonable care or good faith, that is to say that the accused has done all that a reasonable person would have done in similar circumstances and had no intention of committing the offence;[5] [translation]
  • The test to determine whether the defendant assumed his obligations is not that of the care exercised by a reasonable person, but being in the automotive trade, the defendant should have taken the additional precautions that a garage owner would have taken;[6] [translation]
  • It is the degree or reasonableness within a specialty where a special skill or knowledge or ability is involved;[7]
  • Has the defence proved reasonable care with respect to taking all the necessary precautions in order to comply with the law?;[8] [translation]

More specifically, with respect to the burden of proof in the case of a due diligence defence, it is critical to quote certain extracts of the Honourable Judge Houlden's judgment in the decision R. v. Ellis Don Ltd [1990] 61 C.C.C.. (3d) 423 (C.A. Ont.):

  • To avoid a conviction, the accused must prove on the balance of probabilities that he exercised due diligence. If, at the end of the case, the trier of fact has a reasonable doubt, but the accused has not proved on a balance of probabilities that he exercised due diligence, there must be a conviction.[9]
  • An accused will be convicted unless he has taken as much care as a reasonable person would have taken in the circumstances.[10]
  • The evidential burden will shift to the accused to adduce sufficient evidence to raise the issue that he was not negligent.[11]
  • If he does adduce sufficient evidence to raise the issue, the persuasive burden will be on the prosecution to prove beyond a reasonable doubt that the accused was negligent. At the end of the case, if the trier of fact has a reasonable doubt on the issue, it will acquit.[12]
  • In deciding whether or not it has a reasonable doubt, the trier of fact will be able to rely on common-sense inferences from the proven facts.[13]

In the Supreme Court of Canada Decision R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, Chief Justice Antonio Lamer wrote the following with respect to the burden of the prosecution:

  • ... conviction may follow merely on proof beyond a reasonable doubt of the prohibited act. However, it is open to the defendant to avoid liability by proving on a balance of probabilities that all due care was taken. This is the hallmark of the strict liability offence: the defence of due diligence;[14]
  • While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.[15]

The Appellant's arguments also include another defence, referenced in jurisprudence; namely, the defence of necessity. This defence is admissible only in the case of exceptional circumstances where the alleged offender is not at fault and can establish that he was obliged to commit the prohibited act to avoid serious injury or significant damage.

It is important to recall, in finalizing this analysis, that the standard of proof for the crown before the Civil Aviation Tribunal, is that of the balance of probabilities and that this standard applies as well to the evaluation of a defence introduced by the alleged offender.

DETERMINATION

Consequently, in the present case, the undersigned is convinced that the Minister of Transport has proven on the balance of probabilities that the Appellant committed the alleged offence. Accordingly, the burden of proof shifts to the alleged offender who must also prove, on the balance of probabilities, that he acted with reasonable care to avoid committing the alleged offence and that he was not negligent.

The due diligence defence and the absence of negligence on the part of the alleged offender consistent with the criteria of balance of probabilities must be evaluated on the sum of the evidence. We have before us evidence that the alleged offender did not intend to fly, that he checked the field and its surroundings prior to inflating the canopy, that the flight was caused by a series of unpredictable circumstances and that the flight lasted a few minutes because an immediate landing would have endangered the pilot's life. On the other hand, we have the opinion of an expert who has never seen the site and whose opinion is based solely on the alleged offender's testimony and his own personal experience.

On a balance of probabilities, where does the preponderance of evidence lie in this case with respect to negligence and due diligence?

The undersigned finds that preponderance of evidence lies with the alleged offender because it is based on a direct experience of the facts and circumstances.

The site where the flight occurred could add to the seriousness of the offence if it were established that the alleged offender had been negligent, but this does not change the standard of proof in a case of a due diligence defence; that is, the balance of probabilities.

For these reasons, the appeal is upheld and the complaint is dismissed.

REASONS FOR MINORITY JUDGMENT

by Ms. Faye Smith

I am in substantial agreement with the facts stated in the majority determination of this panel subject to additional facts below.

SUMMARY OF ADDITIONAL FACTS

Mr. Richard Noël stated that he has been flying since September 17, 1987, he is a senior instructor of paraglider pilots and resides near the area where the incident occurred. On the date in question he was at the site (located within the control zone of the Quebec airport) to test a paraglider and was accompanied by the purchaser of that paraglider.

It was the evidence of Mr. Noël that he checked the area of the intended test. He also checked the weather conditions and wind direction and velocity. He was satisfied that it was impossible to take off from that site, that there was no risk of take-off. He said that he had no intent to fly that day and that it was not a site for flight.

It was Mr. Noël's testimony that in the course of inflating the canopy of the paraglider, suddenly a thermal wind arose at a speed of about three metres per second causing the paraglider to take off. Apparently, the flight lasted about 10 to 15 minutes.

The presence of the paraglider in the control zone was reported to air traffic control by the pilot-in-command of a floatplane at an altitude of 800 feet who advised that the paraglider was at an altitude of 300 to 400 feet at a 45-degree angle from his aircraft. The pilot of the floatplane indicated that he was flying that day as a tourist excursion between Quebec City and Lac Saint-Augustin and that he notified the control tower at the Quebec airport who advised that they were unaware of the presence of the paraglider. It was the evidence of this pilot by way of Exhibit M-4 that such excursions were taking off at Lac Saint-Augustin at 20-minute intervals.

THE ISSUES

I concur that the issues to be determined in this case are correctly stated by Ms. Desbiens at page 17 of the Review Determination:

  1. Has Transport Canada demonstrated on a balance of probabilities that Mr. Noël has contravened paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order?
  2. If yes, has Mr. Noël demonstrated on a balance of probabilities that he has taken all necessary measures to conform to the Order in accordance with section 8.5 of the Aeronautics Act?

It is settled law before this Tribunal that the standard of proof is on the balance of probabilities. This standard was established in early jurisprudence of this Tribunal in the case of Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33, quoted with approval in Minister of Transport v. Joanne M. Cameron, CAT File No. W-0017-33:

The burden of proof in this case is on the Minister. It is not necessary that the Minister prove the case 'beyond a reasonable doubt' which is the degree of proof required in criminal cases but the Minister must establish a case on a 'balance of probabilities'.

In the case of Norbert A. Selbstaedt v. Minister of Transport, CAT File No. C-0081-02, recently cited in Richard Pizzardi and Donald Doyle v. Minister of Transport, CAT File No. Q-0439-37, the Appeal Panel concurred as follows:

The Tribunal in weighing the document holder's right to procedural fairness and natural justice and the Minister's obligation to maintain an adequate level of public safety have determined that the standard of proof to be imposed on the Minister is not the criminal standard of 'proof beyond a reasonable doubt' but the civil standard of 'proof on a balance of probabilities'.

On the basis of the uncontroverted evidence and by Mr. Noël's own admissions, I am satisfied that the Minister has proved on a balance of probabilities that there was a contravention of paragraph 6(b) of the Hang Glider and Ultra-Light Aeroplane Operations Order. During the investigation following the air traffic control report to the authorities, Mr. Noël admitted that he had no prior contact with the air traffic control tower and further that he had operated the paraglider.

DEFENCE OF DUE DILIGENCE

The onus now shifts to Mr. Noël who may avoid liability by demonstrating on a balance of probabilities that he exercised all due diligence to prevent commission of the offending act. This defence of due diligence afforded to strict liability offences has also been included specifically as section 8.5 of the Aeronautics Act which states:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

To determine whether Mr. Noël has exercised all due diligence in the circumstances, we must ask whether he did what a reasonably prudent paraglider pilot would have done in this case. When dealing with specialty areas, it is the degree of reasonableness expected of a person with his special skill or knowledge.

At page 7 of the Review Determination, the Tribunal Member summarizes the credentials of Mr. Noël. He was one of the pioneers of paragliders in Quebec, having been involved in the sport since 1987. He is certified by the Hang Gliding Association of Canada as a senior instructor for two-seater paragliders. He was Quebec champion in 1989 and has competed in world championships. He imports paragliders from France and has sold about 135 of them.

Mr. Noël under cross-examination revealed that he did not know that he had made a flight inside the control zone of the Quebec airport. He explained that he had not checked to see if the take-off site was in the control zone or not since he had no intention of flying on that day. As proof he indicated that he did not have his helmet which he always wears when flying a paraglider and that he had verified weather conditions and wind velocity to be satisfied that these were favourable for inflation of the paraglider.

An expert witness was called on behalf of the Minister who discussed at length the variable factors affecting the take-off of the paraglider on the day in question. This witness had not seen the take-off site but offered his evidence on the basis of its description and the prevailing meteorological conditions. He concluded that the site was not a good choice to inflate the paraglider having regard to possible wind variables.

He stated that in this case, the risk of taking off was there by reason of the fact of the hill situated close to the take-off site and by reason of the deformations in the land which could cause thermal air currents.

CONCLUSION

Upon consideration of the foregoing facts, I am of the view that Mr. Noël did not exercise all due diligence in the circumstances. He checked the area intended for verification of the paraglider which is an indication of some diligence but not all due diligence as required by the wording of section 8.5 of the Aeronautics Act.

The fact that he arrived unprepared for flight is indication that he did not intend flight, a fact which was presumably taken into account by the investigating authorities in not pursuing other requirements of the Order relating to flight equipment. Additionally, Mr. Noël may have assumed that the risk of flight was not great; however, even in the absence of the expert witness testimony, one must conclude that the risk was there, and he assumed that risk in choosing the site which was not known to him and which he was unaware was within a control zone.

By his own admission under cross-examination, Mr. Noël was, on September 17, 1993 at the time that he made the inflation of the paraglider, totally unaware that he was in the control zone at the Quebec airport. Mr. Noël is a paraglider pilot with seven years experience and has been certified as a senior flight instructor by the Hang Gliding Association of Canada. It is my view that Mr. Noël failed to exercise the requisite due diligence because he failed to verify that the site chosen to effect the inflation of the paraglider was within the control zone of the Quebec airport.

For these reasons, I respectfully dissent from my colleagues' conclusion respecting the defence of due diligence. Accordingly, I would dismiss the appeal and confirm the determination of the Tribunal Member at review in upholding the decision of the Minister to assess a monetary penalty in the amount of $100.

DETERMINATION

The appeal is hereby upheld, and the allegation is dismissed.

Reasons for the majority determination:
Mr. Guy Racicot, Member

with the concurrence of:
Dr. Michel Larose, Member

with the minority judgment of:
Ms. Faye Smith, Chairperson


[1] [1978] 2 S.C.R. Supra, p. 1302

[2] Supra, p. 1325

[3] Éditions F.D., division de formulaire Ducharme Inc., p. 108, referencing the decision Office de la Construction du Québec vs. Marcel Trépanier, Q.S.C. (Quebec) 27-7228-80, January 20, 1981

[4] Supra, p. 108

[5] Supra, p. 108, in reference to the decision P.G. du Québec c. Boucherie Guillemette inc. J.E., 81-947, C.S. (Richelieu) 765-27-000702-80, August 27, 1981

[6] Supra, p. 109, in reference to the decision R. c. Légaré auto ltée, J.E., 82-191, C.A. (Quebec) 200-10-000054-804, January 19, 1982

[7] Supra, p. 109

[8] Supra, p. 115, in reference to the decision Procureur général c. Investissements Contempra ltée, [1989] R.J.Q. 2527, (C.S. Montréal)

[9] Supra, p. 119, in reference to the decision R. vs Ellis-Don Ltd., [1990] 61 C.C.C. (3d) 423, (C.A. Ont.)

[10] Supra, p. 119

[11] Supra, p. 119

[12] Supra, p. 119

[13] Supra, p. 119

[14] Supra, p. 121, in reference to the decision Q. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154

[15] Supra, p. 122