Decisions

CAT File No. Q-1535-52
MoT File No. NB 6504-LABBé A-5

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Aurèle Labbé, Respondent

LEGISLATION:
Aerodrome Security Regulations,SOR/87-452, VIII, NO. 2, s. 20(1), 20(3)
Aeronautics Act, S.C., c.A-2, s.7.7

Vehicle Corridor, Security Pass


Review Determination
Carole Anne Soucy


Decision: March 29, 1998

TRANSLATION

The Minister of Transport has shown, on a balance of probabilities, that the Respondent Aurèle Labbé contravened subsection 20(1) of the Aerodrome Security Regulations. The Tribunal therefore upholds the Minister's decision and confirms the $300.00 monetary penalty. The penalty is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen (15) days of service of this determination.

A Review Hearing on the above matter was held Tuesday, February 10, 1998, at 10:00 hours at the Federal Court of Canada, Palais de Justice de Québec, in Quebec City, Quebec.

BACKGROUND

On October 3, 1997, Transport Canada issued a Notice of Assessment of Monetary Penalty, which reads in part as follows:

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

Part III, subsection 20(1) of the Aerodrome Security Regulations (SOR/87-452).

Appendix A reads as follows:

On or about September 2, 1997, at about 6:35 hours, at the Jean-Lesage international aerodrome, in Sainte-Foy, Quebec, you were present in a restricted area without having in your possession a restricted area pass in respect of that restricted area and without complying with all conditions of issuance or approval of the pass.

THE LAW

Section 7.7 of the Aeronautics Act provides 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 in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Subsection 20(1) of the Aerodrome Security Regulations stipulates as follows:

20. (1) No person shall enter or remain in a restricted area unless the person has in his possession a restricted area pass in respect of that restricted area and complies with all conditions of issuance or approval of the pass.

Subsection 20(3) of the Aerodrome Security Regulations reads as follows:

(3) Where a restricted area pass has been designed to be worn on outer clothing, no person shall enter or remain in a restricted area unless the pass is visibly displayed on the person's clothing in a place where the pass is designed to be worn.

THE FACTS

On September 2, 1997, the Respondent Aurèle Labbé was driving without a revolving dome light in the vehicle corridor in the movement area of Jean-Lesage airport. He was preparing to deliver hot meals to various aircraft.

During his rounds, security officer Gaudreau passed the Respondent, stopped, and motioned for him to stop so he could tell him it was forbidden to drive without a revolving dome light and check his identification.

Mr. Labbé slowed down, told him his revolving dome light was being repaired, gave his name and immediately drove off. Mr. Gaudreau again asked him to stop so he could check his pass. The Respondent continued on his way without showing his pass.

Following these events, Mr. Gaudreau reported the incident by completing a Security Infraction(s) Report (Exhibit M-8) and an Incident Report, bearing no. 970902-16 (Exhibit M-9).

ARGUMENTS

The Transport Canada representatives spoke at length about the new regulations, specifically the procedure for the new pass system.

To this end, they called five witnesses and produced fourteen documents.

Documentary Evidence

Mr. Thivierge, for the Respondent, disputed the validity of certain documentary evidence filed by the Applicant, namely the document entitled Designated Provisions Regulations (Exhibit M-3) pertaining to the office consolidations and notices about the setting up of the new pass system (Exhibit M-10).

The other objections were clarified and ruled on from the bench.

It is important to recall that the Civil Aviation Tribunal is an administrative tribunal whose procedure allows considerable latitude and flexibility in applying the rules of evidence. Thus, the Tribunal is not obliged to apply the rules of evidence which prevail in civil or criminal actions.

Sections 19 and 21 of the Canada Evidence Act provide that every copy of any Act, regulation or order printed by the Queen's Printer is evidence of that Act, regulation or order.

With regard to Exhibit M-3, the Tribunal believes that the production of this document is complementary, for the sake of information, and therefore accepts its production.

The Respondent also disputes the relevance of the notices produced in the bundle designated as Exhibit M-10. He maintains that none of them concerns him, although the name of the company Aéropro, of which he is President, appears on the distribution list attached to the notice.

The Tribunal believes it need not rule on this objection, as it accepts the Respondent's testimony that he received one or two notices about the new pass system.

Testimonial Evidence

With regard to the testimonial evidence, the Tribunal accepts the following main elements of the testimony heard:

In 1996, the Minister of Transport amended the Regulations respecting security at aerodromes by introducing a new pass system.

Operators were to notify tenants of the need to obtain new passes to gain access to restricted areas, before April 1, 1997.

Ms. Pauline Gagnon, an administrative assistant with Aéropro at the time, testified that she had notified the Respondent of the changes regarding the pass.

It was also put in as evidence that the Respondent spoke with Mr. Savard, the airport's head of security, on two occasions. In April and May 1997, Mr. Savard telephoned him to ask him to turn in his old expired pass (green) and pick up the new computerized pass (red).

The Respondent testified that he believed his pass was valid until March 1998. Although this was the expiry date shown on his old pass, the Tribunal has no reason to doubt the credibility of Mr. Savard's and Ms. Gagnon's testimony. In view of the testimonial evidence submitted, the Respondent cannot plead either ignorance or a lack of understanding.

The security officer who intercepted the Respondent's vehicle testified that he never saw the Respondent's pass and that the Respondent did not show it to him.

The Respondent disputes the Minister of Transport's claims and maintains he was in possession of the pass, that he wore it on the right side while driving his vehicle in the restricted area. However, he does not refute the security officer's claims to the effect that he did not show him his pass.

The Minister of Transport explained that one of the conditions of issuance of the pass is that it must be visible at all times so that security officers can check them when pass holders are moving about in restricted areas.

CONCLUSION

Subsection 20(1) of the Aerodrome Security Regulations provides that no person shall enter or remain in a restricted area unless the person has in his possession a restricted area pass in respect of that restricted area AND complies with all conditions of issuance.

According to the conditions of issuance, the holder of a restricted area pass must wear the pass visibly displayed at all times in a place where the pass is designed to be worn, as stipulated in subsection 20(3) of the Aerodrome Security Regulations, in Part III of the said Regulations.

Even assuming the Respondent was in possession of a pass, it is the Tribunal's opinion that he contravened subsection 20(1) by failing to comply with the conditions of issuance, as put in evidence by the Minister of Transport.

Any other interpretation of subsection 20(1) of the said Regulations would be contrary to the spirit of the law.

Aviation safety is of far too great importance to allow such departures. The pass is a privilege given to certain individuals, after investigation, to allow them access to very specific and restricted areas of airports. The pass holder enjoys the privileges of the pass provided he complies with the conditions of issuance.

In this case, the alleged contravention falls within the scope of Part III of the Aerodrome Security Regulations which govern security and safety at aerodromes. These regulations are designed to counter the threat to safety and security at aerodromes and to prevent the unlawful undermining of civil aviation posed by the presence of unauthorized individuals in the restricted areas of airports.

The Tribunal therefore upholds the decision of the Minister of Transport to assess a $300.00 monetary penalty against Mr. Aurèle Labbé.

DETERMINATION

The Minister of Transport has shown, on a balance of probabilities, that the Respondent Aurèle Labbé contravened subsection 20(1) of the Aerodrome Security Regulations. The Tribunal therefore upholds the Minister's decision and confirms the monetary penalty of $300.00.

Carole Anne Soucy
Member
Civil Aviation Tribunal


Appeal decision
Michel G. Boulianne, Pierre J. Beauchamp, Pierre Rivest


Decision: March 10, 1999

TRANSLATION

The appeal panel upholds the determination of the hearing officer in that the Appellant contravened subsection 20(1) of the Regulations and that he did not have in his possession a restricted area pass in respect of that restricted area since the only one he could have had was no longer in effect. The penalty of $300.00 is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen (15) days following service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members October 30, 1998 at 10:00 hours, at the Federal Court of Canada, in Quebec City, Quebec.

BACKGROUND

The majority of facts that led to this appeal and to the review are not disputed by the parties.

On October 3, 1997, Transport Canada issued a Notice of Assessment of Monetary Penalty against the Appellant pursuant to section 7.7 of the Aeronautics Act and assessed a monetary penalty for having contravened Part III, subsection 20(1) of the Aerodrome Security Regulations (SOR/87-452).

The allegation against the Appellant states:

On or about September 2, 1997, at about 6:35 hours, at the Jean-Lesage international aerodrome, in Sainte-Foy, Quebec, you were present in a restricted area without having in your possession a restricted area pass in respect of that restricted area and without complying with all conditions of issuance or approval of the pass.

Following a review requested by the Appellant, the hearing officer, Carole Anne Soucy, upheld the Minister's decision and the alleged offender decided to appeal the case.

APPLICABLE LAW

Section 7.7 of the Aeronautics Act provides 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 in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Subsection 20(1) of the Aerodrome Security Regulations stipulates as follows:

20. (1) No person shall enter or remain in a restricted area unless the person has in his possession a restricted area pass in respect of that restricted area and complies with all conditions of issuance or approval of the pass.

Subsection 20(3) of the Aerodrome Security Regulations reads as follows:

(3) Where a restricted area pass has been designed to be worn on outer clothing, no person shall enter or remain in a restricted area unless the pass is visibly displayed on the person's clothing in a place where the pass is designed to be worn.

THE FACTS

The facts are simple and have in any case been admitted by both parties at the appeal hearing, except for a few details.

On September 2, 1997, security officer Gaudreau met the Appellant who was driving under normal circumstances in the movement area of Jean-Lesage airport, and he intercepted him because his warning light was not functioning as required by the existing regulations.

The Appellant slowed down and, while speaking with agent Gaudreau through the window, stated who he was and added that his warning light was being repaired. Whether he intended to do so or not, it was provided as common evidence and admitted at the hearing that agent Gaudreau never had a chance to ask of Mr. Labbé to identify himself with his pass, making it impossible to determine if the Appellant was contravening subsection 20(3) of the Regulations.

Also, as part of the facts, the process applied by the management of Jean-Lesage airport for renewing passes and changing them to a new type must be considered.

Following changes made to the regulations regarding security at aerodromes and the implementation of a new system for passes, it appears that official notification was sent to occupants of the airport and to all holders of existing passes to ensure that they take the necessary measures to obtain new passes to replace the ones they had.

According to Exhibit M-10, the deadline set by Mr. Claude Savard, security agent at the airport, was January 1, 1997.

However, on January 2, 1997, Mr. Claude Savard once again informed those affected, presumably to avoid possible nonconformity, that they had a new deadline of February 1, 1997 to conform to the new regulations. This letter, produced as Exhibit M-10, also points out that said green passes will be invalid and persons displaying them would be excluded from restricted areas.

This last document was backed up by a letter dated January 14, 1997 which informed holders of green passes that the passes would soon expire, no doubt referring to his preceding letter in which February 1, 1997 was referred to as the cutoff date.

Even though these dates had passed, on April 15, 1997, Mr. Claude Savard sent a fourth notice to those affected, referring to his letters of September 12, 1996 and January 2 and 14, 1997. An interesting fact is that he also stated that he informed other signatory aerodrome operators of the understanding that all expired passes from Jean-Lesage international airport should be seized. Finally, he ended his fourth notice by indicating that unless existing passes were renewed or returned, their holders would be billed at the same rate as for a lost pass. The evidence does not show that after April 21 or at any other time before the events of September 1997, a new bill was sent to the Appellant for his "lost" pass. In May and August 1997, Mr. Savard telephoned Mr. Labbé from Aéro-Pro asking him to return the old expired pass and to obtain a new computerized (red) pass.

There appears to be no further administrative activity between the events of April and August 1997 and when Mr. Labbé was intercepted on the taxiway of the aerodrome.

DISCUSSION

After hearing the arguments of both parties in the appeal, the following points were noted:

  1. The Appellant was a holder of a valid green pass until March 1998, except for the security marking which was valid until the year 2000. On this point, we take into consideration the distinction made by the departmental representative about the security marking being different from the validity period of the pass.
  2. The Department implemented a new pass system without, it seems, providing a clear application guideline in the sense that a deadline was not established. In good faith and with the purpose of finding a logical application when implementing the new system, those responsible for security instead proceeded by using incentives and persuasion to convince pass holders to conform to the new legislation.
  3. The various notices sent between September 1996 and April 1997, as well as meetings held following the last notice of April 1997, demonstrate the flexibility shown by departmental representatives in getting holdouts to comply with the new legislation.
  4. This flexibility and diplomacy used by departmental representatives, while they might have contributed to the ambiguity regarding the renewal of the document in question, cannot, in our opinion, diminish the Appellant's obligation to make every effort to change the document he had and which was no longer recognized. The granting of additional extensions does not constitute permission to override the deadline by the permit holder.
  5. The accusation set forth against the Appellant is not pursuant to subsection 20(3) of the Regulations because the security agent never saw the pass and cannot confirm that it was not worn on the outside of the Appellant's clothing because he could not see the Appellant's right side. Moreover, the evidence shows that the pass may be worn either on the left or on the right.
  6. The only accusation that should have been brought related to the application of subsection 20(1) of the Regulations and it is important to read it carefully. To remain in a restricted area, the person must have in his possession a restricted area pass in respect of that restricted area and comply with all conditions of issuance or approval of the pass.
  7. There is no doubt in our minds that the term "issuance" refers to issuance of the permit, but as is usually interpreted, in our opinion, an issued pass refers to a pass that is in effect.
  8. The departmental representative tried to refer to the conditions of issuance of said permit, which would most likely have made it possible to establish if the holder was contravening the conditions in the application form or in a document attached to the permit; however, neither the documents filed nor the evidence provided before the hearing officer who heard the case at review referred to these conditions and it appears, based on the arguments made in appeal, that they were never filed.
  9. Based on established precedents before the Civil Aviation Tribunal, the Appeal Tribunal cannot allow the introduction of new documents unless it is demonstrated during the hearing that this would be new evidence which was not available during the review. The departmental representative could not provide this evidence and consequently the Tribunal had to allow the Appellant's objection and did not allow the introduction of any additional documents that would tend to establish the conditions of issuance of the permit. However, these conditions are not required considering the interpretation we provided earlier in subsection 20(1).

CONCLUSION

In addition to the offence the Appellant might have committed due to his defective warning light or for not having displayed the pass issued pursuant to subsection 20(3) of the Regulations, it is alleged that the Appellant did not have in his possession a valid restricted area pass in respect of that restricted area and that he did not comply with all conditions of issuance or approval of said pass.

Since the evidence shows that the new permit had not been obtained by the Appellant because he did obtain it in the following days, regardless of whether or not he wore a permit, it is a fact that at the time he was intercepted, he was not holding a valid permit for this purpose.

Was there noncompliance with the conditions of issuance of the certificate? This is possible. Possibly one of the conditions related to not fully meeting the Department's requirements for modifying the pass, but we will never know since the conditions were not filed at the review and their filing was not authorized for the appeal because of rules in force with the Tribunal.

DECISION

The appeal panel therefore upholds the determination of the hearing officer in that the Appellant contravened subsection 20(1) of the Regulations and that he did not have in his possession a restricted area pass in respect of that restricted area since the only one he could have had was no longer in effect.

Reasons for appeal determination:

Michel Boulianne, Chaired the panel

Concurred:

Pierre Rivest, Member
Pierre Beauchamp, Member