Decisions

TATC File No. A-3021-33
MoT File No. Z-5504-051459

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Francis Yvon Paquin, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(a)(iii)


Review Determination
James E. Lockyer


Decision: January 27, 2005

Francis Yvon Paquin did contravene subparagraph 602.14(2)(a)(iii) of the Canadian Aviation Regulations. The monetary penalty of $250.00 is upheld. That amount must be paid to the Receiver General for Canada and received by the Tribunal within thirty-five days of service of this determination.

A review hearing on this matter was held Monday and Tuesday, December 13 and 14, 2004 in the Restigouche Room at the Hotel Delta Beauséjour in Moncton, New Brunswick.

BACKGROUND

On June 28, 2004, a Notice of Assessment of Monetary Penalty was sent by the Minister of Transport to Francis Yvon Paquin, the pilot-in-command of a Hughes 369D helicopter carrying registration C-GSZN. It stated:

Contrary to subparagraph 602.14(2)(a)(iii) of the Canadian Aviation Regulations, at approximately 13:30 hours, local time, on or about July 20, 2003, at or near Pointe-du-Chêne, New Brunswick, you operated an aircraft, to wit, a Hughes 369D helicopter, registered as C-GSZN, over a built-up area at an altitude less than 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the helicopter.

A monetary penalty of $250.00 was assessed against Mr. Paquin.

A motion to amend the Notice of Assessment of Monetary Penalty to modify the hour of the alleged infraction from "13:30 hours local time" to "14:30 hours local time" was submitted on July 26, 2004. This motion was heard by me on October 6, 2004 by telephone conference call. A determination to allow the amendment was made at the conclusion of the telephone call with written reasons to follow. Those reasons were issued on October 18, 2004. The alleged infraction now reads "14:30 hours local time".

It bears mention that all proceedings in this matter prior to the date of the review hearing were conducted in the French language. However, on November 17, 2004, the registrar of the Transportation Appeal Tribunal of Canada issued a memorandum to the effect that pursuant to an arrangement on the part of the parties, all evidence and arguments in the proceedings before the Tribunal "will be given in English only, without the use of simultaneous interpretation."

THE LAW

Subparagraph 602.14(2)(a)(iii) of the Canadian Aviation Regulations (CARS) states:

(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

[...]

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft

This section presents a strict liability offence. If the Minister proves on a balance of probabilities that the elements of the offence as alleged occurred and that the pilot of the aircraft flew below 1,000 feet over a built-up area, the burden of proof shifts to the document holder to show that one of the defences included in the section or that the defence of due diligence as provided for in section 8.5 of the Aeronautics Act is applicable. If lawful justification of the act complained of cannot be established by the document holder, the Minister will have proved his case and the monetary penalty should be upheld.

Subparagraph 602.14(2)(a)(iii) of the CARs contains a defence to the offence. The introductory words of the subsection provide: "Except where conducting a take-off, approach or landing". If it can be shown that helicopter C-GSZN was conducting an approach or landing in an area which would allow the manoeuvre to be conducted safely and for which the pilot had the landowner's permission, the approach and landing is within the exception and there is no offence. If Mr. Paquin was involved in low flight over a built-up area he may exculpate himself from culpability if he can show he was in the process of conducting an appropriate approach or landing.

Section 602.15 of the CARs does not apply in the circumstances of this case.

THE FACTS

Mr. Brad Mundle, an investigator for Transport Canada, testified that on July 21, 2003 he received a complaint of low flight from a resident of Pointe-du-Chêne, N.B. The complainant said that he saw a small dark helicopter with two people on board fly over his residence at very low altitude the previous afternoon.

Mr. Mundle contacted the Greater Moncton International Airport control tower (CYQM) and a local aviation fuel supplier. He learned that on the afternoon of Sunday, July 20, 2003, a helicopter had been refuelled at the airport and later flew over the Pointe-du-Chêne area.

Mr. Mundle contacted NAV CANADA to obtain flight and radar data relating to the time and date of the complaint. He subsequently received from NAV CANADA, a flight plan printout (Exhibit M-6), an NCAMS report (Exhibit M-7), and a flight data strip (Exhibit M-8) prepared at the CYQM control tower by Mr. Dale Conrod, an air traffic controller on duty on the afternoon of July 20, 2003.

Mr. Mundle testified that these exhibits (M-6, M-7, M-8) revealed that a Hughes H500 helicopter identified as C-GSZN arrived at the Moncton airport on July 20, 2003 at 13:35 local time and was refuelled by a local aviation fuel supplier. The helicopter was assigned a transponder code of 5136 by Mr. Conrod, and departed at 14:24 local time on a VFR flight in the direction of Shediac, Pointe-du-Chêne and Parlee Beach.

Mr. Conrod testified as to the information contained on Exhibits M-7 and M-8 and corroborated the testimony of Mr. Mundle. He stated that the radar system used by the control tower was functioning properly at all times on July 20, 2003.

Flight Path of C-GSZN

Mr. Mundle obtained the NAV CANADA radar files for the Pointe-du-Chêne area for the time and date of the complaint. His review of these files revealed that an aircraft bearing transponder code 5136 flew over the Pointe-du-Chêne and Parlee Beach area of south-eastern New Brunswick at low altitudes which varied from 500 feet to 100 feet for approximately 10 minutes on July 20, 2003, between the hours of 17:28:48 UTC (14:28:48 local time) to 17:38:03 UTC (14:38:03 local time). The helicopter and its transponder code 5136 were clearly visible throughout the flight on the radar files until the helicopter landed at approximately 14:40:00 local time at a site not far from Pointe-du-Chêne. The evidence of all parties is that the helicopter landed near Rings Corner behind a Petro-Canada service station and a cottage cluster known as Le Domaine Parlee Beach.

Mr. Mundle said that the dotted line discernable on the RADEX Report (Exhibit M-1) indicates the position of helicopter C-GSZN bearing transponder code 5136 at each sweep of the radar beam. Mr. Mundle testified that he froze the radar record on his computer at 11 different points during the ten-minute flight and produced a printout of 11 locations identified on pages R1 through R11. This printout was introduced in evidence as Exhibit M-1. It provides a clear depiction of the flight path of helicopter C-GSZN bearing transponder code 5136 through the ten minutes of flight over the area.

Exhibits M-2, M-11, M-12 and M-13 are extrapolations of flight information derived from the NAV CANADA radar files. Mr. Mundle explained that the RADEX Report (Exhibit M-1) does not contain topographical features. To obtain a picture of the actual flight path over land and water, he transposed the radar flight path of helicopter C-GSZN using the longitudinal and latitudinal data of the RADEX Report (Exhibit M-1), to an expanded photocopy of a 1:50 000 topographical map. This map was introduced into evidence as Exhibit M-2. It contains the hand drawn track made by Mr. Mundle through points R1 to R11 indicating the flight path and altitude of the helicopter bearing transponder code 5136 as established by Exhibit M-1. Regrettably 30% of the flight path is marked on the margin and corner of the map and is therefore incomplete with respect to the topography of that portion of the flight. Some compensation is provided by Exhibit M-13 which is another rendition of the same flight path on an expanded photocopy of the 1:50 000 topographical map and shows the full flight path and the geographical locations of points R1 through R11.

The flight path of helicopter C-GSZN was also manually plotted on a combination of three 1:10 000 orthophotographic charts (Exhibits M-18, M-19 and M-20). These charts give a photographic dimension to the areas over which the flight was made. It must be pointed out that the photography used to produce the orthophotographic charts (Exhibits M-18, M-19 and M-20) is dated 1970 and 1971. The Pointe-du-Chêne, Parlee Beach, and Cap Brulé areas are clearly visible on the charts. A close examination shows that each of these areas was well populated and built-up in 1970 and 1971. It is well known the population density of each of these areas has increased significantly over the last 30 years. Exhibit M-14 (videotape) and Exhibit M-15 (still photographs) produced by Transport Canada investigators in May of 2004 show the extensive development and increase in cottage and housing density which has occurred since 1970.

Mr. Jenner, representing Mr. Paquin, accepted during the direct testimony of Mr. Mundle that helicopter C-GSZN was in the Pointe-du-Chêne area at 14:30 local time on Sunday, July 20, 2003 and that Exhibit M-1 is an accurate radar record of the flight path of helicopter C-GSZN.

Mr. Jenner did not question or present contradictory evidence on any aspect of the flight path as depicted in Exhibit M-1 or as transposed on Exhibits M-2, M-11, M-12, M-13, M-14, M-15 or the series of orthophotographic charts identified as Exhibits M-18, M-19 and M-20. I can only conclude that Mr. Paquin accepts the flight path of helicopter C-GSZN as depicted on all of these exhibits and that the geographical points identified thereon are the points over which Mr. Paquin flew helicopter C-GSZN on the afternoon of Sunday, July 20, 2003.

Mr. Jenner maintains that while the depiction of the flight path is accurate, his client Mr. Paquin, disputes the accuracy of the altitude readings on the RADEX Report (Exhibit M-1).

I therefore conclude that the flight path as identified on Exhibit M-2 and transposed on all the other Minister's exhibits identified above is an accurate depiction of the flight path and geographical location of helicopter C-GSZN through points RI to R11 on Sunday, July 20, 2003 between the hours of 14:28 and 14:38 local time.

Altitude

Mr. Mundle testified that the RADEX Report (Exhibit M-1) indicates that the altitudes of the helicopter C-GSZN at points R1 through R11 of the flight path were:

R1

500' ASL

R7

300' ASL

R2

400' ASL

R8

200' ASL

R3

300' ASL

R9

200' ASL

R4

300' ASL

R10

100' ASL

R5

400' ASL

R11

100' ASL

R6

200' ASL

   

Mr. Mundle also testified that a mode C transponder in an aircraft sends signals that read on a radar screen based on a barometric pressure of 29.92 in inches of mercury. He explained that if the barometric pressure on a given day was other than 29.92, the radar altitude readings on the screen would have to be adjusted mathematically to arrive at the proper altitude of the aircraft.

To determine whether an adjustment was necessary, Mr. Mundle obtained the METAR reports for CYQM from NAV CANADA for July 20, 2003 for 14:00 hours and 15:00 hours local time. These reports indicate that the atmospheric pressure was 29.92 at 14:00 hours and 29.91 at 15:00 hours (Exhibit M-3). His conclusion was that the altitudes depicted in Exhibit M-1 did not need to be adjusted because the atmospheric pressure at the time the readings were taken was consistent with the atmospheric pressure on which the radar altitudes were based. A variation of 29.92 to 29.91 over a one-hour period would only mean a difference of 10 feet in altitude. Mr. Mundle testified that the altitude readings in Exhibit M-1 are accurate as presented and display the actual altitudes above sea level that helicopter C-GSZN flew at points R1 through R11.

Mr. Jenner argued during his closing submission that the atmospheric pressure may not have been 29.92 in the Pointe-du-Chêne area at 14:00 hours local time. He said it may be different from the atmospheric pressure recorded at the same moment at the airport some 20 miles away. He said this would result in a different altitude reading. While this may be true, Mr. Jenner did not introduce any evidence to contradict the evidence put forward by the Minister. Therefore the evidence is, and I so find, that the atmospheric pressure over Pointe-du-Chêne (approximately 20 miles and 4 minutes flight time away from the airport) was 29.92 at 14:00 hours and 29.91 at 15:00 hours. l also find that the radar altitudes depicted on Exhibit M-1 do not need to be adjusted for atmospheric pressure.

Transport Canada called Mr. Hugh McCallum to provide expert evidence on the accuracy of radar. Mr. Jenner consented to Mr. McCallum being declared an expert witness. Mr. McCallum's curriculum vitae was entered as Exhibit M-21.

Mr. McCallum gave testimony on the capability and accuracy of radar. He provided Exhibits M-22 and M-23 as support for his statements on the accuracy of radar with respect to both position and altitude of target aircraft. Mr. McCallum indicated Exhibit M-1 was extracted from radar files using a transponder code of 5136. He corroborated Mr. Mundle's testimony that radar records are based on a constant pressure of 29.92 inches of mercury of barometric pressure and that on the date in question no corrections would be necessary. He testified that radar would present very accurate readings as to altitude and that radar altitudes identified in Exhibit M-1 at points RI through R11 would be accurate to 5 to 10 feet but that the radar system would round those indications off to the nearest 100 feet. Hence a 500-foot altitude could be displayed on the screen in a range of 550 feet to 450 feet.

In cross-examination, Mr. McCallum while pointing out that he was not an expert in the accuracy of transponders suggested that transponders are accurate to plus or minus 10 feet. He indicated he had never seen a 200-foot error and in fact had never heard of a 100-foot error.

Mr. McCallum said in cross-examination that altitude figures provided for in the RADEX Report (Exhibit M-1) are figures above sea level (ASL). He said that radar figures for flight over land must be reduced by the height of ground level above sea level. Aircraft flying over land would be closer to the ground than the altitude indicated on the radar screen. For example, if ground level was 200 feet above sea level, a 600-foot altitude shown on the radar screen must be reduced by 200 feet to determine altitude above ground level. The aircraft would be flying 400 feet above ground level.

Mr. Jenner questioned Mr. McCallum on the speed of helicopter C-GSZN identified in RADEX Report (Exhibit M-1) and inquired specifically as to the speed of 170 knots purported to be the speed of helicopter C-GSZN at point R4. He introduced into evidence an extract from the Hughes MD500 Flight Manual (Exhibit D-3) which indicated that the maximum speed of the Hughes MD 500 helicopter was 130 KIAS and its Vne speed was 156 KIAS or less. While all other speeds suggested in the RADEX Report for positions RI through R11 ranged from 20 knots to 120 knots, Mr. McCallum could not explain the anomaly of 170 knots shown on profile for point R4.

Mr. Jenner called no witnesses to contradict the evidence of Mr. McCallum or Mr. Mundle as to the accuracy of the radar altitude data provided by the RADEX Report (Exhibit M-1). The only evidence called by Mr. Jenner on this issue was testimony of Mr. Paquin, who said he was not flying as low as the radar files suggest. Mr. Paquin testified that he was flying at an altitude of between 500 and 700 feet during his flight over the Pointe-du-Chêne, Parlee Beach, and Cap Brulé areas.

I find as a fact that Mr. Paquin flew helicopter C-GSZN below an altitude of 1,000 feet consistent with the radar readings provided by Exhibit M-1 at points R1 through to R11 and consistent with the admission in his testimony of flying not above 700 feet throughout the length of the flight path set out in Exhibits M-2 and M-13. Flight at this height is well below the permissible altitude of 1,000 feet above the highest obstacle over a built-up area as established by subsection 602.14(2) of the CARs.

Built-up Area

Mr. Alan Coomber, a Transport Canada investigator, arranged with Mr. Keith Whalen, a Transport Canada helicopter pilot, to replicate the flight conducted by Mr. Paquin. The coordinates based on the longitudinal and latitudinal information identified in the RADEX Report (Exhibit M-1) were put into a GPS unit. Mr. Whalen flew the flight path at an altitude of 1,000 feet in May of 2004. The purpose of this exercise was to videotape the flight path of C-GSZN, take still photographs of the points identified as RI through R11 and visually examine the area over which helicopter C-GSZN flew. The result would provide a clear indication as to whether the area overflown by Mr. Paquin fell within the definition of a built-up area within the context of subsection 602.14(2) of the CARs. The flight was conducted. A videotape and still photographs of the flight path were produced and introduced into evidence as Exhibits M-14 and M-15 respectively.

Mr. Coomber testified that he also established a new reference point on the flight path of C-GSZN. He took the longitudinal and latitudinal coordinates of the residence of the complainant and extracted from the radar file the altitude of C-GSZN as it flew over the complainant's residence in Pointe-du-Chêne. The new reference point was identified as R6B. Mr. Coomber introduced Exhibit M-16 which indicates helicopter C-GSZN flew at an altitude 300 feet above sea level over the complainant's residence at point R6B.

Mr. Coomber introduced into evidence Exhibit M-17 which showed that "transponder code 5136 (C-GSZN) was the only aircraft traffic in the vicinity of Pointe-du-Chêne, N.B. (July 20, 2003 @17:38:12 UTC)" (or 14:38:12 local time).

Pointe-du-Chêne is a community located, near Shediac New Brunswick, on a spit of land which juts out into the Northumberland Strait and forms the easterly boundary of Shediac Bay. The western end of the spit of land houses a sizable wharf and marina complex and a few restaurants. While not a city or town, Pointe-du-Chêne is a local service district having elected officials. It is a densely populated community containing both summer cottage residents and year round dwellers. Outside of the actual shoreline area there is very little open space.

On the northern shoreline of Pointe-du-Chêne beginning at the wharf and marina complex and stretching easterly for over two kilometres is Parlee Beach. This beach attracts huge numbers of visitors during the summer months. Attendance is particularly high on weekends. Behind the beach there are large parking lots. Inland from these parking lots is an extensive cottage area called "The Bluff" and a large trailer park. Adjacent to the trailer park is a large provincial campground. At the eastern end of Parlee Beach lies another densely populated cottage area known as Cap Brulé. Cottages and summer trailers are packed in most every available space.

Pointe-du-Chêne, its wharf and marina complex and Parlee Beach, are very well known as tourist destination sites. On summer weekends, the cottage area, beach area, parking lots, trailer park, campground and surroundings are usually filled to capacity. All of these areas are highly populated and bustling with activity. Exhibits M-14 and M-15 clearly show the built-up nature of these areas.

Mr. Paquin testified that on July 20, 2003 he had been commissioned to fly a Hughes 369D helicopter, registered as aircraft C-GSZN, from his home base in Québec to Pointe-du-Chêne, New Brunswick. The purpose of the flight was to meet with the proprietor of Le Domaine Parlee Beach, a cottage cluster located behind the Petro-Canada service station at Rings Corner.

In the upper right hand corner of the photocopied photograph on page 24 of Exhibit M-15 is the intersection at Rings Corner. The Petro-Canada service station is seen in the lower right hand corner of the intersection and Le Domaine Parlee Beach is directly behind the service station. This was the destination of helicopter C-GSZN.

The landing site was behind the cottage cluster in the small field identified by two evergreen trees. The evidence of Mr. Coomber, was that this site was "an area that would not be considered built-up" (See Exhibit D-2). Transport Canada deemed the area behind the Le Domaine Parlee Beach cottage cluster a permissible landing site providing the landing was carried out properly and safely. I am satisfied that the actual landing site behind the Le Domaine Parlee Beach cottage cluster was not a built-up area and that a properly conducted approach to that site would fall within the exception contained in subsection 602.14(2) of the CARs.

An examination of the evidence, as well as common knowledge of that area, satisfies me that the flight path (R3 through to R11) flown by helicopter C-GSZN as depicted on Exhibit M-1, consisted of flight on at least three occasions over Pointe-du-Chêne and at least three times over

Parlee Beach and two flights over the Cap Brulé area prior to proceeding to the landing site behind Le Domaine Parlee Beach at Rings Corner.

I have no difficulty in coming to the conclusion, consistent with the jurisprudence as outlined in Minister of Transport v. Farm Air Ltd.,[1] that Pointe-du-Chêne, Parlee Beach and Cap Brulé were, on July 20, 2003, built-up areas and fall within the ambit of subsection 602.14(2) of the CARs. The only area that would not be considered built-up would be the eventual landing site near Rings Corner behind Le Domaine Parlee Beach.

Approach and Landing

Mr. Keith Whalen was declared an expert witness in "the operation, approach and landing of helicopters" for the Minister of Transport. His curriculum vitae was introduced into evidence as Exhibit M-24. Mr. Whalen was the Transport Canada helicopter pilot engaged by Mr. Coomber to replicate the flight of helicopter C-GSZN used to produce Exhibits M-14 and M-15.

Mr. Whalen testified that a helicopter landing on the unprepared surface near trees and shrubbery behind the cottage cluster at Le Domaine Parlee Beach should use the "confined area" landing procedure. This would include performing a high reconnaissance of the landing site at an altitude of 1,000 feet above ground while maintaining visual reference with the landing site. The high reconnaissance would be followed by a low reconnaissance from a height of 300 to 500 feet above ground. If there were no obstructions and the landing could be performed in safety, the helicopter would descend slowly to the landing site while maintaining constant visual contact with the site. Mr. Whalen stated that a final approach in this circumstance should be less than ½ mile in distance. He said that flight to the landing area prior to performing reconnaissance should be at an altitude of 1,000 feet.

Mr. Whalen testified that a regular helicopter circuit for landing at Rings Corner would not include low passes over the Pointe-du-Chêne and Parlee Beach areas and would not include low flight along the flight path between points R7, R8, R9, and R10 to R11. He stated these areas are highly populated and there is no area to set the helicopter down in an emergency.

Exhibit M-25 consists of excerpts from the Transport Canada Helicopter Flight Training Manual dated May 1992. The confined area landing procedure described by Mr. Whalen is found at page 113 and is identified as "Exercise 25 - Confined Areas".

It should be pointed out that this excerpt also states:

The height may be that of arrival at the area but should generally be in the order of 1000 feet AGL. If you are already flying at about 500 feet AGL then you may consider combining the high and low recess [sic] (recon) into one. Combining the two as you gain more experience will become the normal technique. (emphasis is original)

There is a handwritten annotation in the margin of the exhibit next to the excerpt which states: "Usually 500' is used and the two procedures are combined."

Mr. Paquin testified that he is a resident of the province of Québec and is the proprietor of an aerial services company employing helicopters located in Grand-Mère, Québec. He is a private pilot holding both fixed wing and helicopter licences. He has 2,500 hours on fixed wing aircraft and 1,200 hours on helicopters. Mr. Paquin indicates he has not had any violations of any aviation regulations over his flying career.

Mr. Paquin testified that he had never flown in New Brunswick before and did not have a personal knowledge of the area. He said that after departure from the Moncton airport he used a GPS and a VNC chart (Exhibit D-4) to locate the Pointe-du-Chêne area.

Mr. Paquin testified he was commissioned to fly to New Brunswick from his base in Québec, find the Petro-Canada service station located "at Pointe-du-Chêne/Parlee Beach" and land the helicopter in the open field behind the Le Domaine Parlee Beach cottage cluster. He was to meet the owner of the facility at the landing site and testified he was given prior authority to land at that location by the owner.

Mr. Paquin accepted the flight path of his helicopter as portrayed on the relevant radar files and exhibits presented by Transport Canada. He accepts as well, that he did make a series of low passes over Pointe-du-Chêne and Parlee Beach on July 20, 2003, as reflected by the points identified as R3 through R11 on Exhibits M-1, M-2 and M-13. He states that from points R3, R4, R5, R6, to R7, he was "searching" for the Petro-Canada service station at Parlee Beach. He says he could not find it at Parlee Beach on the first two passes. He finally located it near Rings Corner when he reached point R7. He then continued his flight on to Cap Brulé and R8, back along the entire length of Parlee Beach from R9 to R10, over Pointe-du-Chêne to R11 and proceeded to the Rings Corner area and landed behind the Le Domaine Parlee Beach cottage cluster.

The evidence is that Mr. Paquin made two low passes over Pointe-du-Chêne, Parlee Beach and Cap Brulé before he located the Petro-Canada service station at Rings Corner and a third low pass over Parlee Beach and Pointe-du-Chêne as he was flying to the landing site he finally located. The flight from R1 to R11 took approximately ten minutes.

Mr. Paquin admitted in evidence that he flew his helicopter over R3 at less than 1,000 feet above ground level. He testified that he was flying his helicopter at a height of 500-600 feet over points R4 and R5. He states that contrary to the radar information, at no time did he fly over these areas at an altitude of 300 feet above ground level.

ARGUMENT

Mr. Jenner agreed that much of the Pointe-du-Chêne, Parlee Beach and surrounding area is a built-up area. He also agreed that Mr. Paquin flew at less than a 1,000-foot altitude over this area.

He argued that the words "approach and landing" as they appear in the exception in subsection 602.14(2) of the CARs are not related and should be considered as separate events in the landing process. He justifies this interpretation by indicating that a landing may be aborted after an approach. He also argues that the word "approach" in the section should be liberally construed and that it should not be restricted in any way.

Mr. Jenner suggests that much of the flight from R3 to R11 should be considered an approach within the exception contained in subsection 602.14(2) of the CARs. Succinctly put, he argues that the flight of helicopter C-GSZN from point R3 through to R11 was an "approach" to the eventual landing site behind Le Domaine Parlee Beach. If this argument were to be accepted, Mr. Paquin would be conducting a continuous approach throughout his entire flight over the Pointe-du-Chêne, Parlee Beach and Cap Brulé areas while he was searching for the Petro-Canada service station at Rings Corner. This argument suggests that an approach may be a process of unlimited duration and attempts to expand the approach exception contained in subsection 602.14(2). It also attempts to legitimize continuous and prolonged low level flight over an area where such flight is prohibited by subsection 602.14(2).

I do not accept Mr. Jenner's argument that the process of an "approach" is to be interpreted in such large terms. Mr. Paquin's testimony was that he was "searching" for his intended landing site while he was proceeding along his flight path from R2 to R7. He did not testify that he was conducting an approach. His testimony was that part of the flight was a search being conducted at 500 to 700-foot altitude over a built-up area.

A review of subsection 602.14(2) of the CARs indicates that a search for a landing site is not included as an exception to the prohibition on flying below 1,000 feet over a built-up area. Only an approach or landing is an exception. In order to come within the exception, a pilot must show he or she was conducting an approach. Mr. Paquin was not conducting an approach at this point in the flight. Conducting a search is not sufficient to come within the exception in subsection 602.14(2) and is therefore not protected.

Mr. Paquin identified the potential landing site at Rings Corner when he reached R7, but he did not proceed directly to the landing site when the opportunity presented itself. Instead he turned away and proceeded to point R8 over Cap Brulé, to point R9 over Parlee Beach and then flew in the opposite direction away from his landing site along the full length of Parlee Beach to R10 before turning back to relocate his landing site at Rings Corner. The act of flying away from the landing site for such a length of time and distance as indicated by Exhibits M-1 and M-2 falls well outside the definition of an approach.

An approach is not a tool to be used for searching for a proposed landing site. Searching for a landing site and conducting an approach are two different procedures. I am of the view that an "approach" is a distinct manoeuvre. An approach cannot be started until the landing site has been identified. It is a process used to land an aircraft once the actual landing site has been determined after the search for the landing site has been completed. The approach is the descent from altitude immediately preceding the landing and in my view limited to that purpose. While it varies with circumstances of each case, it does not require an inordinate length of time or, in the case of a helicopter, an inordinate distance.

I also believe that an approach may not be unlimited in duration and in length. It is a specific and deliberate process designed for a specific purpose. It is an exception to the prohibition on low level flight. It cannot be used as an excuse to maintain indefinite low level flight where such flight is prohibited by legislation. The approach in order to be protected by the exception found in subsection 602.14(2) of the CARs must be minimal in distance in order to ensure public safety. It is my view that only the distance which is reasonably necessary to accomplish the approach safely is allowed under the section. An interpretation otherwise would have the effect of nullifying the low flight prohibition contained in subsection 602.14(2), which was established to protect the public and to ensure safe flight over a built-up area. In interpreting subsection 602.14(2), the interest of public and safety are paramount.

Taking Mr. Jenner's argument to its fullest would suggest that as long as Mr. Paquin was unable to find the landing site behind the Petro-Canada service station at Rings Corner he would have authority to fly below 1,000 feet over a built-up area without any limitation. I cannot believe that was the intent of the legislator. I respectfully disagree with Mr. Jenner and would suggest that safe practice and the public interest require the approach exception to the prohibition on low flight provided for in subsection 602.14(2) of the CARs be construed restrictively. This conclusion is supported by the Transport Canada Helicopter Training Manual (Exhibit M-25) which states a ½-mile distance should be the norm for virtually every type of approach.

It may be argued that the provisions contained in "Exercise 25 - Confined Areas" at page 113 in Exhibit M-25 relating to the combination of a high and low reconnaissance at an altitude of 500 feet, suggest that this procedure may be permitted to conduct an indefinite search at a 500-foot altitude over a built-up area for a landmark designating a possible landing site. I do not share that view. These provisions must be considered in light of any altitude prohibitions that come into play and must respect legislative enactments. I do not consider them as having sufficient force as to constitute exceptions to subsection 602.14(2) of the CARs. Landing procedures and techniques must be read in concert with relevant legislation.

I read the provisions relating to a combination of a high and low reconnaissance at 500 feet as applying in circumstances where flight at 500 feet is permitted by subsection 602.14(2) of the CARs, such as in a non built-up area. I do not see that procedure as a negation of the prohibition of flight below 1,000 feet over a built-up area. Once again, the overall goal of subsection 602.14(2) is to ensure public safety. In my view, the passage at page 113 of Exhibit M-25

applicable to altitude over a built-up area states: "The height may be that of arrival at the area but should generally be in the order of 1000 feet AGL." This provision is consistent with subsection 602.14(2) and describes the proper procedure in the circumstance of flight over a built-up area.

My read of the provisions at page 113 of Exhibit M-25 is that the purpose of the high reconnaissance procedure set at the 1,000-foot altitude is to search for the location of the landing site. It is then permissible to descend below 1,000 feet maintaining visual reference with the site and using the confined area procedure to conduct a low level examination of the actual site for obstacles such as space, trees, buildings, wires and similar obstacles. This process would respect the spirit and intent of subsection 602.14(2) of the CARs and its exceptions.

It is therefore my view that the flight path of helicopter C-GSZN in its search for the Petro-Canada service station at Rings Corner on July 20, 2003 cannot be considered as a combination high and low reconnaissance at an altitude of 500 feet as outlined on page 113 of Exhibit M-25.

Mr. Jenner in an attempt to cast the area for the landing of the helicopter as large as possible argues there was no need to conduct a confined space circuit and approach behind Le Domaine Parlee Beach. He justifies his argument by saying that the confined space procedure is limited to areas which are confined by buildings. He suggests that because the actual landing site was unimproved, it was not a confined area thereby allowing Mr. Paquin to conduct an unlimited or extended circuit. The inference being that the landing circuit could be as extended and irregular as the flight of C-GSZN over the Pointe-du-Chêne, Parlee Beach, and Cap Brulé area.

With respect, I do not agree. The Helicopter Flight Training Manual (Exhibit M-25) does not support such a position. It states at page 113 that confined areas may be bordered by "buildings, high trees or other obstacles". Common sense suggests that "obstacles" refers to anything which will impede a safe landing. A built-up area will impede a safe landing and therefore is an obstacle to a landing.

The landing site behind Le Domaine Parlee Beach was triangular in nature. It was bordered on two sides by trees and on the remaining side by buildings (See photograph 24 of Exhibit M-15). The site was not large. It was a confined area. I conclude that the appropriate landing procedure to be used at the site behind Le Domaine Parlee Beach was a confined area landing procedure. The circuit should be small and restricted in nature.

Mr. Paquin was looking for the Petro-Canada service station. The search took him far beyond the area needed to conduct a circuit, approach and landing as set out in the confined area landing procedure. The flight path flown by Mr. Paquin does not reflect the confined area, racetrack or square circuit patterns outlined on page 55, 56 or 113 of the Helicopter Flight Training Manual (Exhibit 25). Mr. Paquin was not conducting a circuit; he was conducting a search. I do not accept the contention that the entire flight consisting of multiple passes over the built-up areas of Pointe-du-Chêne, Parlee Beach and Cap Brulé was an extended circuit.

In my view the extensive built-up area, the applicability of subsection 602.14(2) of the CARs and the nature of the landing site called for a confined area landing procedure as provided for at page 113 in Exhibit M-25. This required flight of at least 1,000 feet above ground obstacles until the Petro-Canada service station at Rings Corner was located. The appropriate confined area landing procedure could then be initiated. The approach procedure would be limited to that distance from the landing site that is reasonably and safely necessary to conduct the approach.

The minimum altitude Mr. Paquin would be permitted to fly over the Pointe-du-Chêne, Cap Brulé and Parlee Beach areas until the point of commencement of the final approach would be 1,000 feet above the highest obstacle. Mr. Paquin admits he was at an altitude of 500 to 700 feet throughout the flight. Therefore all flight up to the point of the beginning of his final approach to the landing site at Rings Corner is a violation of subsection 602.14(2) of the CARs.

Length of the Approach

The Helicopter Flight Training Manual (Exhibit M-25) at page 56, paragraph 3 states in the case of a racetrack pattern circuit, an approach should be commenced at "approximately one-half mile back from the landing point". In the case of a square pattern circuit, the manual states, in paragraph 4 at page 57, that the approach should be commenced "approximately one half mile back". While an approach distance for the confined area landing procedure is not identified in Exhibit M-25, the testimony of the Minister's expert, Mr. Whalen, suggests it should be limited to approximately ½ mile. Mr. Whalen testified such an approach would not include flight over Pointe-du-Chêne and Parlee Beach. Exhibit M-25 goes so far as to suggest an approach to a confined area might even be vertical in nature.

I find that the maximum length of the approach which should have been conducted by Mr. Paquin to land the helicopter in the landing site behind Le Domaine Parlee Beach was ½ mile. That distance on Exhibits M-2 and M-13, using the appropriate measure of scale for a 1:50 000 topographical map would put the proper location for the beginning of the approach approximately halfway between points R3 and R7. Based on this conclusion the approach phase should have commenced at an altitude of 1,000 feet somewhere near the most inland or easterly point of South Cove as identified on Exhibits M-2 and M-13.

I find that all flight by helicopter C-GSZN from R3, R4, R5, R6, R7, R8, R9, R10, to South Cove was flown at an altitude below 1,000 feet above the highest obstacle over a built-up area and as such constitutes a violation of subparagraph 602.14(2)(a)(iii) of the CARs.

I find that all low level flight after passing South Cove constituted the approach to the landing site behind Le Domaine Parlee Beach. This phase of the flight would fall within the approach exclusion contained in subsection 602.14(2) of the CARs and would not constitute a violation of the section.

By virtue of the findings of fact, the defence of due diligence as provided for in section 8.5 of the Aeronautics Act is not applicable in this case.

SANCTION

The Minister assessed a fine of $250.00 for this violation. Mr. Paquin testified that he came to the hearing to explain why he flew at the altitude he did and while accepting he did fly at a low altitude, he felt he was not at the altitude advanced by the Minister. In the course of his testimony he apologized to the complainant saying he did not wish to disturb him that afternoon. In these circumstances, I see no reason to modify the amount of the penalty assessed by the Minister.

James Lockyer
Member
Transportation Appeal Tribunal of Canada


[1] Minister of Transport v. Farm Air Ltd., [2004] TATC File No. C-2810-41.