CAT File No. Q-1088-37
MoT File No. NAP6504-P383654-26307
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Louis Grenier, Respondent
Aeronautics Act, R. S. C. , c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c. 2, s.534(2)(b)
Low Altitude Flight, Evidence Of Complaint Report, Elsewhere Than Over A Built-Up Area
Decision: April 9, 1996
A Review Hearing in the above matter was held Monday, April 1, 1996, at 10:00 hours at the Federal Court of Canada, in Montreal, Quebec. All witnesses were duly sworn.
The Respondent, Mr. Louis Grenier, is alleged, pursuant to section 7.7 of the Aeronautics Act, of having contravened paragraph 534(2)(b) of the Air Regulations on March 5, 1995, at about 15:45 hours, as the owner of the Helio Courier-800 aircraft registered as C-FXOH.
The said aircraft allegedly flew over and near the residence of Mr. and Mrs. Pagé, of the municipality of Saint-Hippolyte, Quebec, at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.
As the assessed monetary penalty of $500.00 was not paid by the due date of July 21, 1995, the case was brought before the Civil Aviation Tribunal for review.
Section 7.7 of the Aeronautics Act stipulates, in part, as follows:
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 against the person ... specifying in the notice, ...
(a) ... the amount that is determined by the Minister, ... to be the amount that must be paid to the Minister by the person as the penalty ...
Pursuant to the Air Regulations, Series I, No. 3, paragraph 534(2)(b) is deemed to be a designated provision entitling the Minister to assess a monetary penalty of up to $1,000.00 in the case of an individual.
Paragraph 534(2)(b) of the Air Regulations states:
Except as provided in subsections (4), (5) and (6), or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft
(a) over the built-up area of any city, town ...; or
(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.
After the usual introductions, I summarized the Notice of Assessment of Monetary Penalty, explained the procedures I intended to follow and ensured that all the parties agreed on them. As my copy of the Notice of Assessment of Monetary Penalty was somewhat illegible, I was obliged to have the representatives of the two parties corroborate that the text I read was consistent with their copies.
The parties then confirmed that except for the documents prior to the hearing and those related to it, there had been no other document or written or oral exchange between the parties to the proceeding.
Finally, I asked that the witnesses be excluded, as they were eye-witnesses who were to relate the same events. I agreed, however, to allow a defence expert witness to remain in the hearing room.
II. First Witness for the Applicant: Mr. André Pagé
Mr. Pagé described the manoeuvres of a plane as observed from outside his house.
The date and time of the incident were rather imprecise. It was after lunch, in March (springtime, he added). He noticed, however, that during three passes, the plane circled at an altitude he thought low, that is, not quite twice the height of the trees about 50 to 60 feet high situated at the end of a pond behind his house.
Mr. Tamborriello then filed three (3) photographs (Exhibits M-1, M-2 and M-3) he himself took in January 1996, giving a general idea of the pond and trees described by Mr. Pagé.
On the fourth pass, the plane flew towards his house creating a lot of noise, which upset Mr. Pagé; at that point he was able to read the aircraft's registration markings, and he wrote them on a piece of paper.
He then telephoned the Sûreté du Québec and was given a telephone number at Transport Canada. As the incident occurred on a weekend, Mr. Pagé was unable to contact Transport Canada. It was therefore the morning of the following day that he filed his complaint. Mr. Tamborriello filed a complaint report to this effect (Exhibit M-4).
The witness Pagé indicated on a map (Exhibit M-5) the location of his house in relation to certain surrounding lakes, including Lac Pin Rouge.
On cross-examination, the witness confirmed that he is not a pilot, that he is a novice when it comes to aviation, but that he could describe the aircraft as a blue and white high-wing aircraft resembling a Cessna. He was unable to describe the type of landing gear. He was able to read the letters under the left wing. Although he is shortsighted, he was wearing his glasses that day and had no trouble reading the letters on the plane.
He was then asked to describe, with the help of photograph M-1, the pond across from his observation point as well as its orientation, i.e., east/west. With his finger, the witness showed on photograph M-1 the altitude at which the plane had flown over the trees (the red line drawn by the undersigned on M-1 indicates this altitude).
The witness repeated that he did not remember by heart the date of the incident, but the complaint report (Exhibit M-4) dated March 6, 1995, which he was seeing for the first time, made reference to it.
He also repeated that the plane first circled three times and made a fourth pass over his house. At the time, the plane appeared to be flying slowly, but he could not estimate the speed.
He is the only one who noted the aircraft's identification. He met with Transport Canada inspectors about the incident just once, in January 1996.
Finally, the witness said that on other occasions, planes had flown by his house at low altitude, but he had not made anything of it until now. The last time, he was struck mostly by the noise.
The questioning was turned back over to Mr. Tamborriello, who had the witness repeat that he had called the Sûreté du Québec the day of the incident, but the witness no longer remembered whether he had tried to contact Transport Canada at that time.
III. Second Witness for the Applicant: Mrs. Francine Pagé
Mrs. Pagé, the wife of André Pagé, essentially provided the same testimony as her husband except that, while she did see the plane's letters, she could not read them.
With the help of photographs M-1, M-2 and M-3 and map M-5, she indicated the altitude at which the plane had flown over the trees and the location and position of their residence.
On cross-examination, she did not recall the date of the incident, except that it was sometime in March, after lunch. Having no knowledge about aviation, she could not describe the aircraft, but remembered that it was quite noisy.
On being questioned again by Mr. Tamborriello, she recalled that her husband (witness André Pagé) had telephoned the Sûreté du Québec the day of the incident and Transport Canada the following day. Moreover, she was present when these calls were made.
At this juncture, Mr. Doré asked the Tribunal to dismiss the allegation on the following grounds:
- the witnesses did not remember the date of the incident and had never stated the date in question; they had only the complaint report (Exhibit M-4) as a point of reference;
- this report (Exhibit M-4) is not signed, was not taken by the Applicant's representative, Mr. Tamborriello, and has not been authenticated by anyone;
- as it cannot be determined whether it was his client or someone else who was involved, he did not see why he should defend an incident that could not be clearly situated in time.
I adjourned for 15 minutes and asked to see the representatives of the two parties; after discussion, it seemed apparent to me that Mr. Doré was correct and that unless report M-4 could be authenticated, I had no choice but to dismiss the case for lack of evidence.
Mr. Tamborriello offered to contact and have the individual come forward who had received the complaint and prepared the report, and I agreed. As it was 11:45 hours, I adjourned until 13:00 hours.
IV. Third Witness for the Applicant: Mrs. Marielle Doyon
When the hearing resumed, Mrs. Doyon, a clerk at the Aviation Regulation office of Transport Canada, came and testified that, on March 6, 1995, she had indeed received Mr. André Pagé's complaint about a low-altitude flight on March 5, 1995.
On cross-examination, the witness reiterated that she remembered the telephone complaint from the municipality of Saint-Hippolyte, and that the information contained in the report conveyed what the complainant himself had said directly or in answer to her questions. Even though the report was not signed, it had been forwarded to Transport Canada authorities for appropriate action.
Obviously, after a year, she remembered little of her conversation with the witness Pagé, but she did remember the complaint. The only conversation she had since had about this report was with Mr. Tamborriello, shortly before the resumption of today's hearing.
Mr. Tamborriello then filed a document (Exhibit M-6), which is a copy of the Certificate of Registration of aircraft C-FXOH, a Helio Courier-800, which, at the time of the alleged offence, was owned by the Respondent, Mr. Louis Grenier.
This ended the evidence of the Applicant.
At this time, Mr. Doré again sought dismissal of the allegation claiming that, despite the testimony of Mrs. Doyon of Transport Canada, he was not convinced of the date of the incident and it may not have been his client who was involved.
I said that I was personally satisfied as to the date in question, but was prepared to adjourn the case sine die until the dispute was settled.
Mr. Doré decided to continue provided the witness André Pagé was reheard, and I agreed.
Mr. Tamborriello was the first to question the witness André Pagé, who repeated what he had said earlier: that he had written the plane's letters on a sheet of paper, that he did not remember the exact date of the incident, but that he had no doubt as to the identification of the aircraft when he wrote it down and passed it on to Transport Canada.
On cross-examination, Mr. Pagé said that he did not remember who at Transport Canada had taken the complaint, but was now sure it was the day after the incident that he telephoned Transport Canada, and at that time he had the paper on which he had written the plane's letters.
V. First Witness for the Defence: Mr. Louis Grenier, Respondent
Mr. Grenier confirmed at the outset that on March 5, 1995, at about 15:30 hours, he had indeed been at the controls of his aircraft, a Helio Courier-800, registered as C-FXOH; it was his birthday.
Mr. Doré had him describe his schooling, experience, pilot's licences and endorsements, his work, and so on; it may be concluded that Mr. Grenier is an educated businessman and a pilot with sufficient experience and qualifications to be considered a veteran of the activities to which he devotes himself.
The description of the aircraft is as follows: the Helio Courier-800 is a STOL (short take-off and landing) aircraft equipped with a 400 hp, 8 cylinder engine. Three articles describing the performance of this plane were filed in evidence (T-1, T-2 and T-3), as well as a copy of a page from the aircraft's flight manual (Exhibit T-4), which provides the performance on take-off (which, in other circumstances, would not be conclusive, the performance in the manual being for a wheel-mounted aircraft, while Mr. Grenier's aircraft was ski-wheel mounted, and for a 300 hp Helio rather than a 400 hp Helio).
On March 5, 1995, Mr. Grenier first went to pick up his friends at Lac Achigan, continued on to Lac Mont-Tremblant, and returned to Lac Achigan (see part of the route on map T-5); after receiving a call from another friend, Mr. Normand Goulet, he left again, alone, for Lac Pin Rouge where this friend, who wanted to give him a birthday present, lived. This was not the first time Mr. Grenier had flown his plane to this lake.
The witness described the manoeuvres he executed once he was over Lac Pin Rouge, estimated at about 2,700 feet long. He completed a total of four (4) circuits and passes:
- the first pass was an inspection pass at an altitude of about 500 feet (all altitudes are above ground level);
- he then completed a second pass at an altitude of between 50 and 70 feet over the lake to determine the surface condition; he noticed skiers at one end of the lake and snowmobiles at the other;
- after a third circuit, he began a final approach for landing, but, concerned about the snowmobilers, who would be behind him once he landed (snowmobilers like to race planes, which they can easily outdistance in such circumstances), he decided to pull up and regain altitude;
- he then made what is known as a procedure turn to try and land again in the opposite direction, facing the snowmobiles, as the wind had died down a bit;
- that is when he allegedly flew over the Pagé house, parallel to it;
- however, feeling he was too high and fast for a final approach, he decided to give up and return to his starting point without landing.
All these manoeuvres, which the witness described on a map (Exhibit T-5), allegedly lasted from 8 to 10 minutes. A photograph of Lac Pin Rouge (Exhibit T-6) also shows the Pagé house, and it is easy to determine how the witnesses were able to see Mr. Grenier's plane beyond the pond behind their house and over the trees. The plane of Mr. Goulet, Mr. Grenier's friend, can be seen (with some effort!) in photograph T-8. Also filed in evidence were an excerpt from a Transport Canada manual (Exhibit T-7) and a diagram (Exhibit T-9) showing the kind of circuits to be made in such circumstances.
At this point, Mr. Doré said he would call Mr. Normand Goulet, a waiting witness, to corroborate what the witness Grenier had just stated.
There was again reference to the performance of the aircraft which I will go over later with the expert witness. It should be remembered here that the Helio Courier-800 is a high-performance plane and this model is particularly powerful for its weight (wing loading and allowable weight) and therefore very noisy.
Finally, Mr. Grenier emphasized that he is a very prudent pilot and conscious of air safety, and that is why he decided not to land.
At 15:05 hours, I adjourned for 15 minutes.
On cross-examination, Mr. Tamborriello had the witness again go over all the manoeuvres described above, which he did without inconsistencies.
A long series of questions and exchanges followed to determine whether the witness was aware that Lac Pin Rouge is not a licensed aerodrome and what he knows about the regulations concerning the built-up areas of cities or towns.
It emerged that Lac Pin Rouge is not licensed but that, according to the witness, this lake could not be considered the built-up area of a city, even though he is not familiar with the Transport Canada criteria in this regard; the witness made a point of stating, however, that a number of planes go there fairly often and that his intention was to land as permitted in paragraph 534(2)(b) of the Air Regulations.
VI. Second Witness for the Defence: Mr. Normand Goulet
In the end, Mr. Goulet did not have to testify, as both parties agreed to acknowledge that Mr. Goulet lived at Lac Pin Rouge; that he keeps his plane (a Piper Cub) there; that he had indeed invited the Respondent on March 5, 1995; that, being a geologist, he could confirm the length of the lake at 2,700 ft.; that a Helio Courier plane would have no problem landing there; and that the manoeuvres described by the witness Grenier were those he had observed.
VII. Third Witness: Mr. André Bourassa, Expert Witness
After describing his educational background, expertise, qualifications and experience, Mr. Bourassa was accepted as an expert witness by the Applicant and the Tribunal.
After hearing the testimony, he testified as follows:
- the procedures Mr. Grenier had followed were in all respects consistent with official procedures;
- the performance of the Helio Courier-800 allows amply for landing and take-off at a location such as Lac Pin Rouge, particularly as the aircraft was not at its maximum allowable weight;
- as for what the witnesses Pagé saw, he did not question their good faith, but pointed out that because of the distance between the plane and the observation point, if an angle and tangent were drawn based on the witnesses' demonstration with photograph M-1, the resulting triangulation would place the aircraft far higher than it was or than might have seemed at first glance; furthermore, depending on the size of the aircraft, all sorts of illusions can often be created;
- moreover, to be accurate regarding the above-ground altitude, it was necessary to know the precise distance between the observer on the ground and the plane, as well as the precise angle;
- as for the pass over the house, the noise, certainly considerable, caused by the aircraft (400 hp) would add to the impression that it was low rather than high, as the experience of most inexpert witnesses shows;
- Mr. Bourassa did not doubt, however, that the witnesses Pagé had been impressed and disturbed by the manoeuvres and noise of the plane, but that did not mean the manoeuvres were dangerous and unacceptable;
- as for whether Lac Pin Rouge and the surrounding area constitute the built-up area of a city, he is convinced they do not, particularly as all kinds of errors are made in this regard. For example, he said that according to certain maps and to the 1996 edition of the "Canada Flight Supplement," and the symbols and colours used to describe the built-up area of a city, Montreal would not qualify! There is no definition in the regulations.
He concluded by saying that the manoeuvres executed by the Respondent were safe, consistent with what is recommended and taught, and that in his opinion, in his last pass, because of the topography of the location, Mr. Grenier could not avoid flying over the Pagé's house, parallel to the road.
On cross-examination, Mr. Tamborriello returned to the matter of built-up areas of a city, trajectories and directions followed by the plane, the pilot's manoeuvres and safety.
Relying on the excerpt from page 136 of the Transport Canada manual (Exhibit T-9), the witness again stated that the procedures, as followed by the witness Grenier, fully met the standards. As for the other points, he did not deviate from what he had said on examination.
This ended the evidence of the Respondent; at 16:45 hours, I adjourned to give the two representatives of the parties time to prepare their oral arguments.
I. Oral Argument for the Applicant by Mr. Tamborriello
In his oral argument, the Applicant made the following points:
1. The incidents did indeed take place on March 5, 1995, at about 15:45 hours.
2. The plane was a Helio Courier-800, registered as C-FXOH, belonging to the Respondent, Mr. Louis Grenier.
3. A pass was made near the municipality of Saint-Hippolyte at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.
4. During the investigation prior to today's hearing, the Respondent never answered the question of whether or not he had intended to land at Lac Pin Rouge.
5. Furthermore, based on the case law (Mr. Tamborriello cited none, but it is true it is known), Lac Pin Rouge was the built-up area of a town and no landing attempt should have been made.
6. The assessed monetary penalty of $500.00 is in accordance with a Transport Canada policy for a first offence, although the Act provides for a maximum of $1,000.00; this penalty is intended to deter further offences and the regulation is there to protect air safety.
II. Oral Argument for the Defence: Mr. Gilles Doré
Mr. Doré made the following points:
1. He corroborated all the facts as to the date, the aircraft, the manoeuvres and the owner.
2. He disputed, however, the credibility of the witnesses Pagé concerning the aircraft's altitude and certain directions in which it allegedly flew, particularly with respect to the pass over the Pagé's house, citing as reasons perception (distance, altitude, angle, size of the aircraft, etc.) and the fact that they did not remember what happened very well.
3. The manoeuvres executed by the Respondent, Mr. Grenier, were in all respects consistent with the rules in use, as shown by the witness Bourassa; his concern for the snowmobilers proves the serious mindedness and cautiousness of the Respondent.
4. Other planes have landed before at Lac Pin Rouge which, according to the definition in subsection 101(1) of the Air Regulations, is an aerodrome:
"aerodrome" means any area of land, water (including the frozen surface thereof) or other supporting surface used or designed, prepared, equipped or set apart for use either in whole or in part for the arrival and departure, movement or servicing of aircraft ...
Mr. Doré stressed the wording "used ... or ... or" which implies an alternative, a choice, not a set circumstance or obligation.
5. With respect to the matter of a built-up area, the wording of the allegation is such that we must conclude it refers to paragraph 534(2)(b) of the Air Regulations, which states, "elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet...", and the Notice of Assessment of Monetary Penalty states, "... at an altitude less than 500 feet". The altitude of 500 feet confirms, then, that it concerns flying other than over a built-up area.
6. The Respondent's intention to land was indeed shown, judging by the description of the manoeuvres he executed; moreover, the very definition of the term "landing" in subsection 101(1) of the Air Regulations confirms what is entailed:
"landing", in respect of an aircraft, means the act of coming into contact with a supporting surface and includes the immediately preceding and following acts....
7. Mr. Doré then made the following additional points:
- the prosecution was unsuccessful as it failed to show that the Respondent was not entitled to go to Lac Pin Rouge;
- Lac Pin Rouge is not the built-up area of a city;
- the Respondent complied with section 8.5 of the Aeronautics Act in exercising all due diligence to prevent a contravention of the Act;
- based on the balance of probabilities, the credibility of the defence witnesses weighs in their favour compared to that of the Applicant's witnesses (even though they acted in good faith). There is no doubt as to the competence and prudence of the pilot Grenier; he cites the following case law in support of his statements:
Minister of Transport and Everett Allan Patterson Potter, which states on page 6:
The Respondent is a qualified and experienced pilot ... and the evidence attempts to show that the job was completed in a competent and professional manner.
With respect to the ability to judge the altitude of a plane, Mr. Doré cites the following case:
Minister of Transport and Target Airspray Ltd.:
It is difficult, if not impossible, to estimate the altitude of an aircraft and its distance in relation to an observer.
Finally, Mr. Doré cited the case of Roger Hitchon, which appeared in an article published in the journal Canadian Flight, concerning an appeal before the Civil Aviation Tribunal. It mentions the difficulty of judging distance, speed and altitude, particularly because of the different sizes of aircraft which can change all perspective.
Mr. Doré concluded his oral argument by saying that the Respondent did not contact Transport Canada to explain the purpose of his manoeuvres on March 5, 1995, on the advice of his lawyer, to ensure he did not incriminate himself; it is not in itself wrong to take advantage of the right to be heard.
ANALYSIS AND CONCLUSION
I find very few discrepancies in the testimony of the two parties to the case, except that the prosecution witnesses were rather imprecise and suffered some memory loss owing to the excessively long interval (one year) between the incident and the hearing.
There is no longer any question as to the date of the incident.
It therefore seems apparent to me that on March 5, 1995, for 8 to 10 minutes, a plane flew over the region where the plaintiff, Mr. André Pagé, lives, at altitudes that were rather low but difficult to gauge.
The registration, type and owner of the aircraft are not in dispute.
What remains to be determined is the purpose of this flight. The defence witnesses seemed to me to be clear, consistent and credible; there is no doubt in my mind that the Respondent executed the manoeuvres with a view to landing.
The prosecution having cited paragraph 534(2)(b), I conclude that the area is elsewhere than the built-up area of any city or town; moreover, the witness Bourassa established this.
According to paragraph 534(2)(b) of the Air Regulations, it is possible, in attempting to land elsewhere than the built-up area of a city or town, to fly at an above-ground altitude of less than 500 feet.
The fact that Lac Pin Rouge is used fairly often for the arrival and departure of aircraft allows me to conclude, referring to the definition in the Air Regulations, that it is an aerodrome.
Moreover, I found that the manoeuvres executed by the pilot Grenier were consistent with those recommended by Transport Canada in such circumstances, and found nothing that might have created a hazard to persons or property on the ground (also stipulated in subsection 534(6) of the Air Regulations).
I do have reservations, however, about the case law submitted by Mr. Doré because it concerns a special purpose operation (commercial spraying or spreading), also covered by subsection 534(5) of the Air Regulations, but is difficult to compare with the circumstances of March 5, 1995; however, this case law does allude to the difficulty of determining the altitude of a flying plane, which is more relevant to the instant case.
I therefore conclude that the Respondent was entitled to do as he did, and did not contravene paragraph 534(2)(b) of the Air Regulations.
I would add, however, that pilots, in similar circumstances, should demonstrate better airmanship and do their utmost to avoid harming or disturbing, by noise or their manoeuvres, persons on the ground. This lack of airmanship is too often present and leads to legal actions which, as in this case, might have been avoided.
For all the foregoing reasons, I dismiss the Minister's allegation that the Respondent, Mr. Louis Grenier, contravened paragraph 534(2)(b) of the Air Regulations, as well as the monetary penalty assessed.
Civil Aviation Tribunal
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