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									                                                                                     CAT File No. A-2213-41

                                   CIVIL AVIATION TRIBUNAL


                                         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
                                                          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
                                                          VFR helicopter (a helicopter by definition in
                                                          subsection 101.01(1) of the CARs is an aircraft) in
                                                          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
                                                          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.

     Harry Edward Joseph Shermet v. Minister of Transport, CAT File No. C-1021-02, Appeal.

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