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CAT File No. A-2213-41 CIVIL AVIATION TRIBUNAL BETWEEN: Minister of Transport - and - Richard George Henderson Airline (Airlie) Aeronautics Act, R.S., c.33 (1st Supp). s. 7.7 Canadian Aviation Regulations, SOR/96-433, s. 601.09(1) Helicopter - Class D Airspace - VFR Flight - Unauthorized Operation in Controlled Airspace - Circumstantial Evidence The Member confirmed the Minister’s penalty of $100.00 when the Respondent failed to establish two-way radio contact with the ATC unit, before flying into Class D airspace. The Member found that the Respondent was operating a VFR helicopter near the area on the date of the incident, that the control zone around the Moncton airport is Class D airspace and that the Moncton tower is the appropriate place to contact before entering the Class D airspace. The issue on Review was whether the Respondent was flying the helicopter that was seen flying through the Class D zone. Although the evidence was circumstantial, the Member concluded that the Minister had established, on a balance of probabilities, that the Respondent was the pilot flying through the zone without any radio contact because the circumstances were consistent only with the event having occurred as alleged. The onus then shifted to the alleged offender to prove that he exercised due diligence to avoid the commission of the offence. There was no evidence presented by the Respondent therefore, the Member could not evaluate whether he had exercised due diligence. REVIEW DETERMINATION Ogilvie March 27, 2001 Moncton, New Brunswick contravened the provision. The defence of due The circumstances of the flight in evidence are diligence is not available in the circumstance. The consistent only with the conclusion that Mr. Airlie 2 Minister of Transport v. Richard George Henderson Airline Minister’s suggested penalty of $100.00 is confirmed. EVIDENCE The payment shall be made payable to the Receiver General for Canada and received by the Civil Evidence adduced by the Minister establishes the Aviation Tribunal within fifteen days of service of following facts: this determination. After having received an occurrence report from the BACKGROUND Moncton tower, Mr. Coomber, a Transport Canada investigator, created a series of Radex readouts of On September 13, 2000 around 10:00 a.m. the tower traffic in that general area. Exhibit M-6, a controller at the Moncton airport observed a target on compilation of these Radex readouts, shows a VFR radar. By visual observation the aircraft was target (squawking 1200) south east of the Moncton identified as a helicopter. The controller attempted to airport, which travels to the coast of the contact it by radio, as the helicopter had not Northumberland Strait and then turns more westerly, previously made radio contact with the tower. The inland. The target proceeded west and in doing so attempt was unsuccessful and the helicopter was recorded as having been south of the Moncton proceeded westward. The weather at Moncton was Very High Frequency Omnidirectional Range (VOR) less then the visual flight rules (VFR) minima. and to the north of the flight path of the Moncton airport. The target continued westerly towards the Transport Canada’s investigation of the Moncton Fredericton airport. occurrence lead them to believe that a helicopter which had landed in Fredericton not long after that The weather at both Moncton and Fredericton was incident was the same one which had traversed less than that required for VFR flight. The target was Moncton’s control zone unannounced. Having recorded at various times between 400 and 800 feet ascertained that it had been flown by a Mr. Richard above ground. George Henderson Airlie, Transport Canada made an allegation in the following form: The controller on duty in Moncton tower about 10:00 a.m. on September 13 noticed a target then visually “Pursuant to section 7.7 of the Aeronautics Act, observed a helicopter flying from east to west, the Minister of Transport has decided to assess a through the control zone, north of the runways. The monetary penalty on the grounds that you have helicopter had not contacted Moncton tower nor contravened the following provision(s): could the tower make radio contact with it. Schedule A: The control zone around the Moncton airport is classified as Class D airspace in the Designated Canadian Aviation Regulations subsection 601.09(1), in that at approximately 10:00 local Airspace Handbook. Moncton tower is the time (13:00 UTC) on or about September 13, appropriate air traffic control unit to contact prior to 2000, at or near the Moncton Airport, Moncton, entering the control zone. New Brunswick, you were operating VFR aircraft Canadian civil registration C-FLCN and Fredericton flight service station (FSS) personnel you entered Class D airspace when you failed to received radio contact from a helicopter, C-FLCN establish two-way radio contact with the that requested a clearance to land at Fredericton for appropriate air traffic control unit before refuelling. The helicopter was an EC-20 which had entering the airspace.” previously departed from Fox Harbour. The weather was below VFR in Fredericton, so a special VFR As Mr. Airlie did not pay the monetary penalty, clearance was requested. As instrument flight rules Transport Canada requested a hearing, which was (IFR) traffic was inbound there was delay in issuing then held on March 27, 2001 in Moncton, New the special VFR clearance, until the IFR traffic had Brunswick. landed. After arrival the helicopter pilot was asked to contact the FSS manager. The pilot was then Minister of Transport v. Richard George Henderson Airline 3 requested to contact Mr. Coomber of the Transport minutes. However if one takes the helicopter’s time of Canada Enforcement Branch. arrival in Fredericton and works back, that calculated time does not coincide with the time established on The pilot phoned Mr. Coomber, identifying himself the Radex plot for the target on the Northumberland as Mr. Richard Airlie. Mr. Airlie related that he coast. Therefore there is a doubt as to whether or not had earlier departed Fox Harbour enroute to Montréal it was Mr. Airlie’s helicopter. There may be a gap in but poor weather had caused him to follow the the radar coverage. Northumberland Strait coast line before turning for Fredericton. He stated that the transponder had been Together this all should establish a reasonable doubt squawking 1200 and the flight conducted at about regarding the identity of the helicopter. Mr. Airlie 500 feet above ground. also submits that his flight was conducted with all due diligence, as illustrated by the appropriate contact Documentary evidence shows that Mr. Airlie is a with Fredericton FSS. commercially licensed helicopter pilot with an endorsement on an EC-20 helicopter. Helicopter DISCUSSION C-FLCN is a model EC-120B aircraft registered to Simgesco Ltée. It is incumbent upon the Minister to prove on a balance of probability every element of the offence. Mr. Airlie chose not to give evidence. On Subsection 601.09(1) of the Canadian Aviation cross-examination of Inspector Coomber he Regulations (CARs) states: established that from the bays on the Northumberland Strait coast to Fredericton was about 90 miles. “601.09 (1) Subject to subsection (2), no person Mr. Coomber agreed that at 120 KTS or about 2 operating a VFR aircraft shall enter Class D miles a minute, the distance would be covered in 45 airspace unless the person establishes two-way minutes. radio contact with the appropriate air traffic control unit before entering the airspace.” Regarding the telephone interview, Mr. Airlie asked Subsection (2) is inapplicable in this instance. whether he had stated that his aircraft was squawking 1200 at all times, but the witness was unable to The evidence reveals that Mr. Airlie was operating a remember. VFR helicopter (a helicopter by definition in subsection 101.01(1) of the CARs is an aircraft) in ARGUMENT the area near Moncton on September 13, 2000. Mr. Thompson argued the testimony and It is established that the control zone around the documentary evidence produced proved each element Moncton airport is Class D airspace and that the of the offence. The monetary penalty of $100.00 was appropriate air traffic control unit to contact before appropriate in the circumstance. entering that Class D airspace is the Moncton tower. Mr. Airlie presented argument on two bases. He The two tower controllers testified to seeing a radar submits that there was reasonable doubt as to the target and then visually observing a helicopter transit identity of the aircraft and secondly he argues due the Moncton control zone. They were not able to diligence. identify the helicopter. It was not in two-way radio contact with the tower. The witnesses in the control tower did not identify the helicopter that they observed. They were unable to The issue to be resolved is whether the helicopter even establish its colour. seen flying through the zone was that being flown by Mr. Airlie. Given the distance from the Northumberland Strait coast to Fredericton of 90 nautical miles, an aircraft I find that the Minister has established, on a balance going 120 KTS would cover the distance in 45 of probability, that Mr. Airlie was the pilot flying 4 Minister of Transport v. Richard George Henderson Airline helicopter C-FLCN through the control zone, without that, if correct, could cause one to query if the target being in radio contact with the Moncton tower. was indeed C-FLCN. The proof of that fact is circumstantial but the However the inspector could not remember if circumstances are consistent only with the event Mr. Airlie had qualified his statement. We are having occurred as alleged. therefore left with the statement, as it was given. The time/distance equation was based on an aircraft speed The Radex plot shows only one target squawking the of 120 KTS. But as Mr. Airlie did not testify, there is VFR code of 1200. Mr. Airlie had told the inspector no evidence of what speed his helicopter did fly. that his aircraft’s transponder was set to 1200. The Further to that point the Fredericton FSS was unable target indicated an altitude between 400 and 800 feet. to give a special VFR clearance immediately which Mr. Airlie’s statement says he was at approximately could have had the effect of one reducing speed from 500 feet. This target commenced south east of the optimum in order not to enter the control zone Moncton, went towards and then followed the before clearance was granted. Northumberland Strait before turning west and traversing the Moncton control zone. Again The defence of due diligence was raised in argument. Mr. Airlie had stated that deteriorating weather had Civil Aviation Tribunal jurisprudence1 provides that caused him to follow the Northumberland Strait coast once a contravention has been proven the onus shifts before turning for Fredericton. The time of arrival of to the alleged offender to prove, on a balance of helicopter C-FLCN in Fredericton is close to the time probability, that he exercised all due diligence to the Radex last shows a target enroute to Fredericton. avoid the commission of the offence. In the case at hand, there was no evidence presented by the alleged Mr. Airlie had sought to raise doubt in his argument. offender. Therefore there is no way for me to assess He is correct that no actual identification of the what action he did or did not take to avoid the helicopter that traversed the control zone was made. commission of the offence. In cross-examination he queried whether he had told the inspector that his aircraft was squawking 1200, at Held: The circumstances of the flight in evidence are all times, on that morning. He posed a hypothetical consistent only with the conclusion that Mr. Airlie time distance/equation regarding the target seen at the contravened the provision. The defence of due Northumberland Strait coast, enroute to Fredericton, diligence is not available in the circumstance. The Minister’s suggested penalty of $100.00 is confirmed. 1. Harry Edward Joseph Shermet v. Minister of Transport, CAT File No. C-1021-02, Appeal.
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