"ENFORCEMENT POLICY MANUAL"
TP 13794E (Revised 12/2004) AVIATION ENFORCEMENT POLICY MANUAL 1 TABLE OF CONTENTS FOREWORD AMENDMENT LIST GLOSSARY Part I—Introduction Chapter 1 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Policy Overview General Our Obligation Voluntary Compliance Fairness and Firmness Conflict of Interest Handling of Complaints Accessibility of Managers Amendment of the Policy Manual Part II—Prevention Chapter 2 2.1 2.2 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 Inspection Routine Inspection Inspection Authority Entry for Inspection Inspection Production of Documents/Records Obstruction Warrant Required to Enter a Dwelling-house—Inspections Use of Force Seizure of Evidence 2 2.2.8 Return of Evidence—Inspections 2.3 2.3.1 2.3.2 Urgent Action Detention Suspension Of CAD Chapter 3 3.1 3.2 3.3 3.4 Surveillance Presence Routine Surveillance Special-purpose Surveillance The Regional Enforcement Surveillance Plan Part III—Detection Chapter 4 4.1 4.2 4.3 4.4 4.5 4.6 Detection Introduction Initial Enforcement Process Oral Counselling Contraventions of Dangerous Goods Regulations Inspectors Flying as Passengers Inspector’s Liability and Off-duty Action Chapter 5 Analysis of Legislation Part IV—Investigation Chapter 6 6.1 6.2 6.3 6.4 6.5 Investigations Introduction Priorities for Investigation Monitoring of CADORS Exemption from Application of Civil Aviation Rules Warning and Canadian Charter of Rights and Freedoms 3 6.6 6.7 6.8 6.9 6.10 6.11 6.12 6.13 6.14 6.15 6.16 6.17 6.18 Co-ordination Case Reports Disclosure of Information Full Disclosure Exceptions to Full Disclosure Search Warrants—Investigations Return of Evidence—Investigations Medical and Optometric Information Handling of Tape Recordings Tape Recordings of Interviews and Conversations Cockpit Voice Recorder and Flight Data Recorder ATS Data Cases with Certification Implications Chapter 7 7.1 7.2 7.2.1 7.2.2 7.2.3 7.3 7.4 7.4.1 7.4.2 7.4.3 Special Investigations Policy Contraventions by Military Aircraft Contraventions By Canadian Aviation Companies General Contraventions Contraventions Detected During an Audit or Inspection Contraventions Involving Canadian Air Carriers Subject to Oversight by the Airline Inspection Division Contraventions of Foreign Aeronautics Legislation by CAD Holders Contraventions Involving Foreign Civil Aircraft Operators Foreign Commercial Operators With a CFAOC Foreign Commercial Operators Without a CFAOC Foreign Private Aircraft 4 7.5 7.6 7.7 7.8 7.9 Contraventions in Canadian Controlled Oceanic Airspace Balloon Operations, Ultra-light Aeroplanes, Unmanned Air Vehicles and Special Aviation Events Requests from Foreign Civil Aviation Authorities Contraventions involving Transport Canada Employee CAD Holders Investigation of Suspected Unapproved Parts Chapter 8 8.1 8.2 Covert Operations Introduction Policy Part V—Deterrent Action Chapter 9 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 9.10 Deterrent Action Introduction Types of Deterrent Action Cancellation of Documents Defences—Necessity, Due Diligence and Officially Induced Error Application of Defences Limitation Period Joint Direct and Vicarious Liability Joint Judicial-Administrative Deterrent Action Disclosure of Deterrent Action to Employers Notification of Detection Source Chapter 10 10.1 10.1.1 10.1.2 Administrative Action Types of Administrative Action Oral Counselling Administrative Monetary Penalties 5 10.1.3 Suspension of CADs 10.2 10.3 Policy for Selecting Administrative Action Non-payment of a Monetary Penalty Chapter 11 11.1 11.2 11.3 Judicial Action Judicial Action Policy For Selection of Judicial Action Liaison with DOJ/Attorney General Chapter 12 12.1 12.2 12.3 12.3.1 12.3.2 12.3.3 Sanctions General Factors Affecting the Choice of Sanctions Sanction Determination in Cases of Multiple Violations Administrative Action Prosecution Termination of a Continuing Violation 12.4 12.5 12.5.1 12.5.2 12.5.3 12.5.4 Flights with Intermediate Stops Sanction Negotiation (Informal Meeting) Entering into Sanction Negotiations Penalty Reduction Confidentiality of Discussions Contravention Disputed 12.6 Punitive Suspension of Documents Chapter 13 13.1 13.2 13.3 TATC Function of the TATC Burden of Proof CPO 6 13.4 13.5 13.6 13.7 13.8 13.9 Role of a Transport Canada Inspector Written Reasons for Determination Minister’s Decision Confirmed Request For Reconsideration—Immediate Threat Appeal of a TATC Determination Enforcement Division Appeal Process Part VI—Technical Information Chapter 14 14.1 14.2 14.3 14.4 14.5 14.6 Records Management Removal of Notation of Sanction Pardons—Custody of Records and Actions Retention of Records Destruction of Files De-identification of EMS Files Control of Enforcement Records Chapter 15 Chapter 16 Chapter 17 17.1 17.2 17.3 17.4 17.5 17.6 17.7 17.8 Official Forms Addresses Miscellaneous Communication with the Media Access to Information Personal Information Corporate Information Public Release—Enforcement Action RCMP / Other Police / Foreign Agency Investigation Report Third-party Interest Matters Before the Courts or TATC 7 17.9 Criticism of the Department 8 FOREWORD The Aviation Enforcement Policy Manual has been prepared for the use and guidance of all Civil Aviation personnel. The manual contains policies on the manner in which delegated enforcement duties and responsibilities are to be performed. All inspectors are to employ the applicable policies contained in this Manual. Art LaFlamme Director General, Civil Aviation Inquiries about availability or content of the Manual or suggestions for revisions should be directed to Chief, Aviation Enforcement Transport Canada Place de Ville, Tower C 330 Sparks Street, 5th Floor Ottawa ON K1A 0N8 9 Aviation Enforcement Policy Manual List of Amendments Amendment Number 01/0603 Amendment Name and Policy changes resulting from the implementation of the Transportation Appeal tribunal of Canada Update Policy manual 02/0104 Update of Chapter 7 Align subjects in Policy and Procedures Manuals 03/1204 Update of chapter 14 1 January 2004 1 December 2004 Date 30 June 2003 10 AL01/0603 Effective date: 30 June 2003 Reasons for changes: A. Implementation of Transportation Appeal Tribunal of Canada B. Update Policy Manual Chapter Entire Manual Para Change a. Name change to Transportation Appeal Tribunal of Canada b. Name change to TATC 1 6 1.4 6.8 6.13 Name change Name change Name change Name change New paragraph to reflect a. Serving of Notices b. Failure to pay penalty c. New authorities of Managers 9 10 9.5 10.3 12 12.3.1 12.5 12.5.2 Name change Name change a. Name change b. Maximum reduction 12.5.3 13 13.1 Name change a. Name change b. Onus on alleged offender c. Alleged offender not compelled to testify 13.2 13.3 13.4 Name change Name change Name change 11 13.6 13.7 13.8 Name change Name change a. Name change b. Right to appeal of alleged ofender 13.9 a. Name change b. Time to appeal increased to 30 days 14 17 RTF version 14.1 Refusal to remove sanction Name change Includes AL 01/0603 12 AL02/0104 Effective date: 01 January 2004 Reasons for changes: a. Chapter 7 Update – Policy Manual b. Align pages of Policy and Procedure Manuals 7 Title change Align Policy and Procedure Manuals 7.1 7.2 7.2.1 7.2.2 7.2.3 7.4 7.4.1 7.4.2 7.4.3 7.5 7.6 7.7 7.8 7.9 RTF version Text Changes New title and text New paragraph New paragraph replaces old paragraph 7.3 New paragraph New paragraph replaces old paragraph 7.6 New paragraph New paragraph New paragraph New paragraph replaces old paragraph 7.7 New paragraph New paragraph replaces old paragraph 7.9 New paragraph replaces old paragraph 7.4 New paragraph All Amendments posted as AL 02/0104 13 AL03/1204 Effective date: 01 December 2004 Reasons for changes: 1. Addition of an element to the procedure for removal of notation of sanction 2. Update of chapter 14 Chapter 14 Para 14.1.1 Change a. Rewriting of the text b. Addition of an element to criterion No.3 14 GLOSSARY administrative action—Deterrent action taken by or on behalf of the Minister, including oral counselling, suspension or cancellation of documents of entitlement, and imposition of a monetary penalty. Canadian aviation document—Any licence, permit, accreditation, certificate or other document issued by the Minister under part I of the Aeronautics Act to or with respect to any person or in respect of any aeronautical product, aerodrome, facility or service. A CAD includes virtually any document of entitlement that authorizes a person to perform functions on his or her behalf. civil aviation rules / rules—Parts I and III of the Aeronautics Act and all documents enabled pursuant thereto. compliance—Conformity with the provisions of the regulations.. comprehensive investigation—The follow-up to the initial violation during which conclusive evidence as to whether or not a violation occurred is obtained so that appropriate deterrent action can be taken. Crown Counsel—Any lawyer representing the interests of the government during criminal proceedings. designated provision—Regulations specified in section 103.08 of the Canadian Aviation Regulations for which deterrent action is limited to administrative measures; judicial action cannot be taken. The majority of the offence-creating provisions of the CARs have been designated. deterrent action—Administrative or judicial measures taken in response to a violation in order to encourage future compliance. enforcement action—The steps, including deterrent action, that must be taken from the moment a possible violation of the regulations has been detected until the case is concluded. functional authority—Technical services within Civil Aviation grouped by aeronautical knowledge or skills (such as General Aviation and Air Navigation) within which there may be further specialization (e.g., Personnel Licensing, Enforcement, and Aircraft Evaluation). Functional authority includes the prerogative of a functional specialist to prescribe how the activity within the specialist’s area of expertise should be carried out. functional direction—The exercise of functional authority through the issuing of and ensuring compliance with policies and procedures and through the provision of advice to line managers and subordinates. hybrid offence—An offence under subsection 7.3(1) of the Aeronautics Act that may be proceeded against by indictment, by summary conviction procedures, or by administrative process. incompetent—Lacking the knowledge, ability or fitness necessary for effective action; unable to meet specified requirements; not legally qualified. 15 indictable offence—Any offence that is considered very serious and that carries with it the possibility of a severe penalty. An indictable offence must be proceeded with by way of indictment. Several Criminal Code offences that are related to aeronautics are indictable offences. Some offences under the Aeronautics Act may be addressed by indictment. indictment procedure—The accused has a choice of courts in which he or she may be tried. Depending on that choice, the accused may have a preliminary hearing and a jury trial. (See Chapter 12 for more detail) initial enforcement process—The immediate actions taken on observing or being apprised of a violation. Information is gathered concerning the occurrence and, if an infraction has occurred, a decision is made to conclude the case with oral counselling or to send the information to Aviation Enforcement for further investigation. inspector—Any Transport Canada aviation official with appropriate authority under the delegation of authority document. investigator—An Aviation Enforcement inspector. line authority—The prerogative of line managers to direct the activities of the staff and resources over which they are responsible. Minister—The Minister of Transport. negligence—Conduct falling below the standard required for the protection of others against unreasonable risk of harm. non-designated provision—The sections of the CARs that have not been designated under CAR 103.08 and, therefore, if contravened, must be addressed by document suspension or through judicial action. offence-creating provision—A provision of the civil aviation rules that mandates a certain form of conduct or prohibits certain conduct and which, if contravened, can result in judicial or administrative deterrent action. reasonable grounds to believe—The knowledge of facts that would lead a reasonable person of ordinary intelligence and prudence to believe that an offence has occurred. recklessness—Any conduct that shows deliberate disregard of, or indifference to, the consequences of one’s actions under circumstances involving risk of harm to life or property. regulations—The Canadian Aviation Regulations. responsible manager—The Chief, Aviation Enforcement, or the Regional Manager, Aviation Enforcement, as appropriate. summary conviction offence—An offence that is considered to be less serious than an indictable offence and accordingly carries with it a less severe penalty. summary conviction procedure—There is no choice of court: the trial procedure takes place in a provincial court. There is no right to have a preliminary inquiry and there is no right to a trial before a jury. Transportation Appeal Tribunal of Canada —The TATC is an independent quasi-judicial body separate from Transport Canada. 16 Transport Canada Aviation Official—Any officer of Transport Canada, Safety and Security, whose duties on behalf of the Minister are related to the safe and lawful operation of the Canadian air transportation system. violation—The breach of any offence-creating provision of the regulations. The terms violation and contravention are used interchangeably. 17 Part I—Introduction 18 Chapter 1—Policy Overview 1.1 Gen er al Aviation Enforcement promotes the goal of improved aviation safety by encouraging voluntary compliance with and through the enforcement of Canada’s aeronautics legislation. When necessary, Aviation Enforcement investigates alleged violations of this legislation. 1.2 Ou r Obl i gat i on As a contracting State of the International Civil Aviation Organization (ICAO), Canada has an obligation to oversee the safe and efficient operation of aviation activity for which Canada is responsible. Further, as a signatory to the ICAO Convention on International Civil Aviation, Canada has agreed to the application of Article 12 of the Convention, “Rules of the air,” which states in part: Each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and maneuver of aircraft there in force. . . . Each contracting State undertakes to insure the prosecution of all persons violating the regulations applicable. Accordingly, the Aviation Enforcement function supervises and administers the Enforcement mandate inherent in the international agreement. Enforcement and sanctioning powers, provided by a legal framework, have been delegated to Aviation Enforcement inspectors, who have the responsibility and authority to conduct investigations. As a result of international agreement and domestic legislation, enforcement is not an option, it is an obligation. Vigorous enforcement action will be taken with respect to all deliberate breaches of the aviation safety standards. 1.3 Voluntary Compliance We recognize that voluntary compliance with the regulations is the most progressive and effective approach to aviation safety. Voluntary compliance is based on the idea that members of the aviation community have a shared interest, commitment, and responsibility to aviation safety, and that they will operate on the basis of common sense, personal responsibility, and respect for others. 1.4 Fairness and Firmness We are committed to enforcing the regulations in a fair and firm manner. Concern about potential political consequences should not be taken in to consideration when determining the appropriate enforcement action. We promote and apply a policy of fairness and firmness by 19 (a) (b) (c) (d) encouraging open communication between alleged offenders and enforcement inspectors, especially in cases where there are mitigating circumstances; providing oral counselling for minor violations where there is no threat to aviation safety; informing offenders of their right to have penalties reviewed by the Transportation Appeal Tribunal of Canada (TATC); and ensuring that repeat offenders and those who willfully disregard aviation safety are dealt with firmly. 1.5 C on fl i ct of In t er est Inspectors must take measures to prevent real, potential, or perceived conflicts of interest in accordance with the principles of conduct and measures in the Conflict of Interest and Post-Employment Code for the Public Service. If it becomes apparent there could be a possible conflict of interest during an investigation, the aviation inspector will inform his or her supervisor and request to be removed from the case. 1.6 Han d l i n g of C ompl ai n t s Complaints concerning Civil Aviation personnel shall be handled in accordance with Civil Aviation Directive No. 28. In this instance, a complaint is a formal expression of dissatisfaction with a Civil Aviation service, procedure, application of policy, or staff member. 1.7 Accessi bi l i t y of M an ager s Transport Canada Aviation Enforcement managers will be accessible to members of the public to explain the Enforcement policy process. Suggestions for improvement of this process are always welcome. 1.8 Amen d men t of t h e P ol i cy M an u al This Manual will be amended as required; however, from time to time Enforcement policies will be revised or modified. These revisions will be presented in the form of an Aviation Enforcement policy letter (AEPL). The content and format of AEPLs is contained in AEPL No. 1. AEPLs will supersede the related policy as stated in this Manual. The Chief, Aviation Enforcement (CAE), on behalf of the Director, Regulatory Services, will issue an appropriate amendment to this Manual as soon as practical after an AEPL has been issued. 20 Part II—Prevention 21 Chapter 2—Inspections 2.1 Routine Inspections Routine inspections should normally be conducted before issuing or renewing a Canadian aviation document (CAD) in order to confirm compliance with applicable standards. These inspections involve the examination of aircraft, aeronautical products (appliances, parts, components, etc.), cargo, premises and facilities relating to aeronautics. 2.2 Inspection Authority The Aeronautics Act authorizes the Minister of Transport to conduct inspections for the purpose of enforcing the Act. The delegation of authority document is used to authorize inspectors to carry out their respective inspection duties on behalf of the Minister. 2.2.1 Entry for Inspection For the purpose of carrying out an inspection, inspectors shall not enter aircraft or premises without the owner, employee or other representative of the owner being present or giving consent. An inspector’s authority to enter aircraft, aerodromes, facilities or premises to conduct inspections is found in paragraph 8.7(1)(a) of the Aeronautics Act. This is not only the authority to enter, but it is also deemed to be the authority for conducting an inspection. 2.2.2 Inspection Inspection powers are derived from paragraph 8.7(1)(a) of the Aeronautics Act. Examples of other delegated authorities from the Canadian Aviation Regulations (CARs) that facilitate inspection are listed below: (a) Section 103.02(1): The owner or operator of an aircraft shall, on reasonable notice given by the Minister, make the aircraft available for inspection in accordance with the notice. Section 602.144(2): The Minister may authorize a person to give an interception signal or an instruction to land if such authorization is in the public interest and is not likely to affect aviation safety. (b) 2.2.3 Production of Documents/Records An inspector’s authority to demand the production of documents or records is derived from section 103.02(2) and paragraph 103.04(b) of the CARs. 2.2.4 Obstruction Any person wilfully obstructing or impeding an inspector during an inspection contravenes paragraph 7.3(1)(d) of the Aeronautics Act. 2.2.5 Warrant Required to Enter a Dwelling house—Inspections 22 Where any place referred to in subsection 8.7(1) of the Aeronautics Act is a dwelling house, inspectors may not enter that dwelling house without the consent of the occupant except under the authority of a warrant issued under subsection 8.7(5) of the Aeronautics Act. This is a warrant for the purpose of carrying out duties under subsection 8.7(1) of the Aeronautics Act (inspections). If entry has been refused or there are reasonable grounds to believe that entry will be refused, the inspector should contact the Regional Manager, Aviation Enforcement (RMAE), for assistance in obtaining a warrant to enter the dwelling house. The warrant required to enter a dwelling house is not a search warrant as described in the Criminal Code (Refer to Chapter 6, section 6.11). 2.2.6 Use of Force If entry to a dwelling house has been refused or there are reasonable grounds to believe that entry will be refused, the use of force may be authorized under subsection 8.7(5) of the Aeronautics Act. Under subsection 8.7(6) of the Aeronautics Act, force shall not be used without the presence of a peace officer and may only be used if specifically authorized in the warrant. The request for a warrant to enter with the use of force must be authorized by the RMAE. Any use of force shall be carried out by a peace officer—the inspector shall not use force. 2.2.7 Seizure of Evidence For the purposes of inspection, paragraph 8.7(1)(c) of the Aeronautics Act gives inspectors the power to seize anything found in any place entered if they believe, on reasonable grounds, the item seized will afford evidence with respect to a contravention. Anything seized must have been found by the inspector without resorting to a search or must have been provided voluntarily by a representative of the premises or aircraft being inspected. 2.2.8 Return of Evidence—Inspections Any items seized during an inspection are subject to the conditions stipulated under CAR 103.09, Preservation and Return of Evidence and CAR 103.10, Preservation and Return of Aircraft. 23 2.3 Urgent Action An inspector must take action without delay when encountering a situation where there is a threat to aviation safety. Most inspectors are delegated the authority to exercise the following safety powers: detention of aircraft and suspension of CADs. 2.3.1 Detention The authority for detention is found in paragraph 8.7(1)(d) of the Aeronautics Act. Inspectors may detain any aircraft they believe, on reasonable grounds, is unsafe or is likely to be operated in an unsafe manner, and they may take reasonable steps to ensure its continued detention. Once the grounds for detention (e.g., unsafe condition) have been removed, the aircraft must be released. 2.3.2 Suspension of CADs The Minister may suspend a CAD on the grounds that an immediate threat to aviation safety exists or is likely to occur as a result of an act or thing having been, being or proposed to be done under the authority of the CAD. The authority for this type of suspension is found in section 7.1 of the Aeronautics Act. The appropriate functional authority must be consulted prior to suspending a CAD (for an air operator certificate (AOC), Commercial and Business Aviation; for an aircraft maintenance organization (AMO), Maintenance and Manufacturing; etc.). Reinstatement of a CAD is considered by the appropriate functional authority and is not an Enforcement matter. Suspension of a CAD shall come into effect immediately and remain in effect until such time as the threat to aviation safety is removed. 24 Chapter 3—Surveillance 3.1 Presence The most effective method of enhancing safety within the aviation community is to provide a regulatory presence aimed at promoting voluntary compliance with the Aeronautics Act and the CARs. These aims can best be achieved by Civil Aviation personnel participating in structured surveillance activities. Surveillance may be either routine or special-purpose. 3.2 Routine Surveillance Routine surveillance, which includes audits, base inspections, CAD renewal inspections, and ramp checks, is conducted during the normal course of the Civil Aviation employee’s duties of monitoring day-to-day aviation activity. When contraventions of regulations are detected, inspectors are responsible for completing a detection notice (Refer to Chapter 4) for submission to the appropriate RMAE. These forms, collated and analyzed at the Regional Aviation Enforcement office, may reveal problems, trends or threats to aviation safety. Accordingly, this information can often provide the impetus for planned surveillance. Routine surveillance may be discreet. Discreet surveillance is conducted when an inspector does not publicize or hide the fact that he or she is a Transport Canada Civil Aviation inspector. No special authorization is required for this type of activity. 3.3 Special-purpose Surveillance Overt or covert surveillance is directed at specific areas, events and activities by Transport Canada Civil Aviation inspectors in support of Regional surveillance operations. Most surveillance done by inspectors is of an overt nature; that is, undisguised and designed to deter regulatory infractions and encourage compliance through a visible presence as much as it is designed to detect violations. There are, however, instances when covert surveillance may be appropriate or necessary to gather evidence. 3.4 The Regional Enforcement Surveillance Plan The Regional Enforcement Surveillance Plan (RESP) is a surveillance plan designed to establish a balanced and systematic approach to surveillance and make best use of available resources in the context of the National Civil Aviation Safety Plan. The Regional Directors, Civil Aviation (RDCA), are responsible for the development and administration of the RESP and are the approving authority in their respective Regions. Intelligence gained from the RESP may be used by management for setting objectives, planning strategy, and making regulatory decisions. 25 PART III—DETECTION 26 Chapter 4—Detection 4.1 In t r od u ct i on A detection is the discovery of a possible violation of the Aeronautics Act or the CARs. Sources of detection are diverse and may result from activities such as inspections, audits, and surveillance programs. Sources of detection also include the Civil Aviation Daily Occurrence Reporting System (CADORS) (Refer to TP 4044, CADORS Manual), police reports, and public complaints. 4.2 In i t i a l E n for cemen t P r ocess A Transport Canada inspector must take action on observing or being apprised of a contravention. All inspectors are responsible for completing a Detection Notice Form and forwarding it without delay to the RMAE. The inspector or his or her manager may address immediate operational considerations through the exercise of functional or safety powers under sections 7.1, or 8.7 or subsection 7(1) of the Aeronautics Act. If the contravention is considered minor, the inspector may simply orally counsel the CAD holder. If the contravention is of a more serious nature, the inspector must immediately refer the incident to the appropriate RMAE along with any notes or evidence, such as photographs, logs, and tapes. The decision to conclude the incident with oral counselling or to refer the matter to Enforcement for further investigation is entirely at the discretion of the inspector. Even when the matter does not require further action, as in the case of oral counselling, the detection notice must be forwarded to the RMAE. Upon receipt of a detection notice, the RMAE will determine if an investigation should be conducted. 4.3 Or al C ou n sel l i n g Oral counselling provides the CAD holder with immediate guidance on the need for future compliance. It is an option for inspectors when the imposition of a sanction is not considered necessary and when all of the following conditions are satisfied: (a) (b) (c) the contravention is minor and inadvertent; there is no direct flight safety hazard even though the violation is safety-related; and the CAD holder has no record of a similar type of violation and has a compliant attitude. Oral counselling is not an option when the alleged offender disputes the allegation. 27 This type of deterrent action does not become a part of the CAD holder’s record. However, a completed copy of the detection notice is required to maintain statistical records. After a statistical record has been made, all copies of the detection notice shall be destroyed in accordance with Departmental records’ management policy. Oral counselling shall not be recorded in the Enforcement Management System (EMS) in cases where no comprehensive investigation is conducted. 4.4 C on t r aven t i on s of Dan ger ou s Good s R egu l at i on s All Transport Canada aviation inspectors are responsible for promoting compliance with and detecting contraventions of the Transportation of Dangerous Goods Regulations. All inspectors, upon detection or receipt of a reported violation, shall immediately apprise a Regional Dangerous Goods inspector of the situation. Dangerous Goods inspectors are responsible for investigating infractions of the Transportation of Dangerous Goods Act, 1992. An Aviation Enforcement inspector may participate in a dangerous goods investigation at the request of a Dangerous Goods inspector and with the concurrence of the RMAE. 4.5 In spect or s F l yi n g as P assen ger s If inspectors detect a contravention while they are flying as passengers on an airline and they judge that it must be brought to the attention of the flight crew, they shall contact the pilot-in-command after the flight has terminated. A detection notice shall be forwarded without delay to the appropriate RMAE. The policy of post-flight notification does not apply where the contravention compromises aviation safety. An example of this would be contravention of CAR 602.11(2), which forbids any person from conducting or attempting to conduct a takeoff in an aircraft that has frost, ice or snow adhering to any of its critical surfaces. In such a case, the inspector shall take direct and immediate action. 4.6 In spect or ’ s Li abi l i t y an d Off -d u t y Act i on The liability of inspectors both on- and off-duty is addressed in pamphlet TP 11825, Liability Through the Exercise of Delegated Authority. 28 Chapter 5—Analysis of Legislation Analysis of legislation provides a procedure for examining offence-creating provisions to obtain a precise interpretation of a regulation and to determine if the facts and evidence support an allegation of a contravention. The decision to continue or terminate a case is often based on the results of the analysis of legislation. Enforcement inspectors will complete an analysis of each provision that has been contravened for each case where a comprehensive investigation is conducted. All other inspectors are encouraged to complete an analysis of the provisions they suspect have been contravened in order to ensure sufficient and appropriate evidence is gathered during the initial enforcement process. 29 Part IV—Investigation 30 Chapter 6—Investigations 6.1 In t r od u ct i on An investigation is a systematic search for documentation of the facts relevant to an event. All inspectors are responsible for detecting and reporting alleged violations by implementing the initial enforcement process. Only Aviation Enforcement inspectors, who have been trained as investigators, will conduct investigations. All investigations must be thoroughly and meticulously completed since the resulting action may affect both individual rights and public safety. 6.2 P r i or i t i es for In vest i gat i on Priority shall be given to violations received from any Ministerial request. For all other violations, the RMAE shall assign an investigation priority level based on safety impact. 6.3 Monitoring of CADORS The Regional offices are to systematically monitor the CADORS and other reporting services in their Region in order to identify any possible violations concerning those reported incidents. Additionally, following an accident, an EMS file must be opened and a systematic review of the validity of licences, ratings, certificates, etc., at the time of the accident must be carried out. This review must be done regardless of whether or not the accident was the result of a violation. As a matter of course, any perishable evidence, such as weather information, that might have a bearing on the accident must be secured without delay. Once the initial steps are complete, the EMS file should be kept open at least until the Transportation Safety Board of Canada (TSB) has issued their report, unless the evidence demonstrates that there was no violation. 6.4 E xempt i on fr om Appl i cat i on of C i vi l Avi at i on R u l es Certain sections of the Aeronautics Act and the CARs provide for the granting of specific exemptions from the application of all or part of the offence-creating provisions. Usually the onus is on the alleged offender to provide proof of such an exemption. 6.5 W ar n i n g an d t h e C a n a d i a n C h a rt er o f R i g h t s a n d Freed o ms In order to comply with the Canadian Charter of Rights and Freedoms, an investigator has the duty to advise and warn an alleged offender. To ensure that the rights of an alleged offender are not violated, a warning similar to the following should be given: You may/will be charged with the offence of ________________________. It is my duty to inform you that you need not say anything, you have nothing to hope from any promise of favour and nothing to fear from any threat whether or not you say anything; however, anything you do say may be used as evidence. 31 Do you understand? It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand? Do you wish to contact counsel? Do you wish to give a statement? 6.6 C o-or d i n at i on Co-ordination with Civil Aviation functional branches, the RCMP, provincial or municipal police forces, and other agencies is encouraged in order to maintain technical accuracy and perspective and to expedite the collection of all relevant facts. 6.7 C ase R epor t s A case report is a summary of the facts drawn up by the investigator for use by the RMAE. It is mandatory that a case report be prepared for each case when a sanction is contemplated. 6.8 Di scl osu r e of In for mat i on The Transport Canada Civil Aviation policy is one of full disclosure to the CAD holder or his or her representative. The responsible manager shall disclose all evidence that may assist the CAD holder, even if Transport Canada does not propose to adduce it. However, file notes containing personal opinions as well as internal correspondence outlining how to proceed with sanctions shall not be disclosed. If a TATC hearing is scheduled, the dispatch of the disclosed information should be arranged so that the CAD holder receives the information at least 30 calendar days before the hearing date or as soon as practicable if the hearing is to be held before 30 days. Full disclosure must be made at least seven days before the hearing. Full disclosure can occur at any earlier time on the request of subject of the investigation. The purposes of the full disclosure policy are listed below: (a) (b) (c) to ensure that the CAD holder knows the case to be met and is able to make full answer and defence; to encourage the resolution of facts at issue; and to encourage the resolution of the case prior to the hearing. 6.9 F u l l Di scl osu r e Full disclosure means that the CAD holder will be given at least the following, as relevant to the case: (a) particulars of the circumstances surrounding the case; 32 (b) (c) (d) (e) (f) (g) (h) (i) (j) copies of relevant written statements (these may include witness statements, investigative notes, and summaries); an appropriate opportunity to examine electronic statements and/or other medium, i.e., air traffic service (ATS) tapes; a copy of relevant electronic evidence, where such taped evidence exists; particulars of the CAD holder’s enforcement record, if applicable; copies of relevant expert witness reports—caution should be exercised so that privileged information is not released or that it is not released to the wrong parties; copies of relevant documents and photographs that the case presenting officer (CPO) intends to introduce into evidence during the hearing; a copy of any search warrant obtained and executed during the investigation—caution must be exercised where privileged information is at issue, i.e., in-camera hearing; copy of the Notice of Suspension or Notice of Assessment of Monetary Penalty; particulars of relevant evidence intended to be relied on at the hearing and any information known to the CPO that the CAD holder may use to impeach the credibility of a Department witness in respect of the facts at issue in the case; if applicable, a copy of the flow chart relating to an airworthiness matter; and the names of witnesses, their employment and their address, unless there is evidence to indicate that the witness will be harassed or intimidated prior to the hearing. The witnesses should be informed of the action, and inquiries should be made as to whether there is any problem anticipated. (k) (l) The information that is disclosed should be sent to the CAD holder by registered mail. 33 6.10 E xcept i on s t o F u l l Di scl osu r e Certain information that is related to items of public interest may be exempt from the disclosure policy. This information includes but is not limited to the following: (a) (b) (c) information concerning a confidential informant, an ongoing investigation, or investigative techniques; information that may be considered a confidence of the Queen’s Privy Council for Canada; and information that cannot lawfully be disclosed or that would be injurious to international relations, national defence or security if disclosed. 6.11 S ear ch W ar r an t s — In vest i gat i on s During the course of an investigation, the powers of entry and seizure available to an inspector conducting an inspection are no longer applicable (Chapter 2—Inspections, section 2.2(5)). (a) If entry or surrender of evidence is refused by the occupant or there are grounds to believe that entry or surrender of evidence will be refused, authorization for entry, search and seizure must be obtained through a search warrant issued pursuant to sections 487–492 of the Criminal Code; The approval of the RMAE shall be obtained prior to requesting a search warrant; The authority for the use of force is inherent in a search warrant. Any use of force shall be carried out by a peace officer. The investigator shall not use force; The assistance of a peace officer is not required if the use of force is not necessary; and A search warrant is only used by the Minister of Transport to support Enforcement investigations and, as a result, its use is limited to Enforcement staff. (b) (c) (d) (e) 6.12 R et u r n of E vi d en ce — In vest i gat i on s Because a search warrant is obtained under the Criminal Code, anything seized during the search is subject to the provisions stipulated under section 489.1, Restitution of Property or Report By Peace Officer, and/or section 490.1, Detention of Things Seized, of the Criminal Code. Evidence that was obtained with the consent of the owner shall be returned in the same manner as items seized under paragraph 8.7(1)(d) of the Aeronautics Act. CAR 103.09 details the procedure to be followed. 6.13 M ed i cal an d Opt omet r i c In for mat i on Information provided pursuant to subsection 6.5(1) of the Aeronautics Act (medical hazards to aviation safety) is privileged and no person shall be required to disclose it or give evidence relating to it in any legal, disciplinary or other proceedings. The information so provided shall not be used in any such proceedings (subsection 6.5(5) of the Aeronautics Act). 34 If the Minister requires the medical records of a CAD holder to substantiate a case before the TATC or in court, the custodian of the records or the physician in question shall be subpoenaed. This action is not necessary where the CAD holder voluntarily provides the records or gives permission to release the records. When these methods are not likely to produce results, a search warrant may be used by the RMAE pursuant to a charge under CAR 602.02(b). Whenever a search warrant is required to obtain medical records, the RMAE shall inform the CAE and the RDCA, who will notify the Director General, Civil Aviation (DGCA), with a briefing note well in advance of obtaining the search warrant. If there are reasonable grounds to believe that a physician is withholding information regarding a medical condition that is likely to constitute a hazard to aviation safety, the Regional Aviation Medical Officer (RAMO) will inform the Director, Civil Aviation Medicine (DCAM), who will initiate the appropriate action. 6.14 Han d l i n g of Tape R ecor d i n gs Tape recordings constitute a record, as defined in TP 104 (Administrative Policy Manual) and TP 111 (Records Scheduling and Disposal). As such, they must be handled in accordance with those publications. 6.15 (a) (b) Tape R ecor d i n gs of In t er vi ews an d C on ver sat i on s A witness or CAD holder must consent to a recording being made; and A recorded telephone conversation with a witness or CAD holder may be used as evidence in circumstances where a personal interview cannot be arranged. 6.16 Cockpit Voice Recorder / Flight Data Recorder Cockpit voice recorder / flight data recorder recordings shall not be used by Transport Canada Civil Aviation in any Enforcement matters. 35 6.17 ATS Dat a Recordings of ATS radio communications, transcripts of the recordings, and Radar Data Examination (RADEX) program data may be used as evidence in any proceedings but shall not be used to detect contraventions. Upon request, an investigator shall provide copies of a recording of ATS radio communications or a transcript of the recording to an alleged offender or his or her representative. Except where required by law, copies of the tape or transcripts shall not be disclosed for civil proceedings. 6.18 Cases with Certification Implications Where Canadian operators are involved in contraventions that may have certification implications (e.g., AOC, AMO), the RMAE shall advise the appropriate functional branch with operational authority for that certificate holder. 36 Chapter 7—Special Investigations Policy 7.1 C on t r aven t i on s by M i l i t ar y Ai r cr aft CAR 102.01 acknowledges the exemption of military aircraft from the CARs. The Minister of National Defence exempts NATO Airborne Early Warning Forces and aircraft from the following countries:Australia, Belgium, Federal Republic of Germany, Greece, Italy, the Netherlands, New Zealand, Norway, Saudi Arabia, Singapore, the United Kingdom, and the United States of America. The point of contact for investigation of any incident involving Canadian military aircraft or for any incident involving exempted foreign military aircraft operating in Canadian Domestic Airspace is: 1 Canadian Air Division Headquarters Box 17000, Station Forces Winnipeg, Manitoba R3J 3Y5 Attention: A3 Combat Readiness / DICP 7.2 Contraventions By Canadian Aviation Companies 7.2.1 General Contraventions During a routine visit or inspection, an audit, or any other occasion, when a Transport Canada inspector becomes aware of a contravention by an air carrier crewmember or employee, the inspector is obligated to make note of and report the essential facts of the situation. A Detection Notice is the preferred document to use to record the incident. Pertinent evidence must also be seized and forwarded with the Detection Notice to the RMAE for further investigation. The inspector or the inspector’s manager may address immediate operational or safety considerations in accordance with their Delegation of Authority. It is the RMAE, however, who has the power to take punitive action for the contravention under s. 6.9 of the Act. 7.2.2 Contraventions Detected During An Audit or Inspection TP 8606, the Inspection and Audit Manual shall be followed when an audit or inspection team detects an apparent contravention of the regulations. The convening authority and appropriate regional managers, including the RMAE, will determine which contraventions require investigation by the Aviation Enforcement Division. 37 7.2.3 Contraventions Involving Canadian Air Carriers Subject to Oversight by the Airline Inspection Division The Airline Inspection Division, operating from Transport Canada Headquarters in Ottawa, is responsible for oversight of certain commercial operators located in various regions. The jurisdiction to investigate an alleged contravention by one of these carriers remains with the RMAE for the region in which the carrier is based. The RMAE shall inform the Chief, Aviation Enforcement (CAE) of the occurrence and will co-ordinate investigative activities with the CAE, as required, when cross-regional activities are required. 7.3 Contraventions of Foreign Aeronautics Legislation by CAD Holders When a CAD holder is alleged to have violated foreign aeronautics legislation that has a direct Canadian equivalent, the investigation shall proceed under the applicable Canadian provision as if the contravention had occurred in Canada. Where allegations relate to a regulation without a Canadian equivalent and where the contravention is confirmed, the RMAE may proceed administratively or judicially under subsection 4(2) of the Aeronautics Act. 7.4 Contraventions Involving Foreign Civil Aircraft Operators While in Canada, pilots and operators from foreign countries are required to comply with the applicable sections of the Aeronautics Act and the CARs. Aeronautical operations by foreigners in Canada are predominantly commercial operations and almost all of those operations require the operator to hold a Canadian Foreign Air Operators Certificate (CFAOC). Where a contravention of any of the Canadian aviation rules occurs, the RMAE is responsible for conducting the investigation. 7.4.1 Foreign Commercial Operators With a CFAOC The validity of the CFAOC must be confirmed with the Foreign Inspection Division and crosschecked against the existence and validity of a certificate issued by the country authorizing the operator to conduct operations. The investigation shall be conducted by a regional office. Prompt and comprehensive liaison with Headquarters is mandatory when dealing with foreign operators because an occurrence that comes to the attention of Enforcement may also require other functional branch intervention. 7.4.2 Foreign Commercial Operators Without a CFAOC In order for a commercial operator to operate in Canada, that operator must have an authorization from Canada. That authorization may be in the form of a letter or an e-mail simply stating that the Canadian authority has “no objection” to the proposed activity. The status of the authorization can usually be confirmed with the Foreign Inspection Division. The investigation shall be conducted by a regional office. Liaison with the CAE is mandatory to confirm the operator’s presence in Canada is in itself not a contravention. 38 7.4.3 Foreign Private Aircraft Foreign private aircraft include corporate aircraft and those operated by the recreational flyer. These operators may or may not hold an operating certificate from their home country and are not required to hold a Canadian authority. Regional offices shall investigate alleged contraventions and advise the CAE as necessary. 7.5 Contraventions in Canadian Controlled Oceanic Airspace (1) (2) (3) Alleged contraventions by Canadian aircraft and operators will be investigated in the normal manner. Reports of alleged contraventions by Canadian military aircraft or exempt foreign military aircraft will be forwarded to 1 Canadian Air Group in accordance with s. 7.1. Reports of alleged contraventions by foreign civil and non-exempt foreign military aircraft will be forwarded to the CAE for investigation. 7.6 Balloon Operations, Ultra-light Aeroplanes, Unmanned Air Vehicles and Special Aviation Events Special Aviation Events include air shows, balloon festivals, aerobatic competitions, low level air races, fly-ins and demonstration parachute descents. The Recreational Aviation and Special Flight Operations section of the General Aviation Division authorizes and oversees operations of these air vehicles and events. 7.7 Requests From Foreign Civil Aviation Authorities Full cooperation shall be provided to foreign civil aviation authorities who request assistance from Transport Canada Civil Aviation Enforcement. 7.8 Contraventions Involving Transport Canada Employee CAD Holders The responsibility for investigation of alleged violations by Transport Canada CAD holders shall normally be determined by discussion between the CAE and the RMAE in the Region where the alleged violation occurred. The CAE shall be responsible for the investigation of alleged violations by CAD holders employed at Regional Aviation Enforcement offices. The Regional Aviation Enforcement office in the Region where the offence occurred shall investigate alleged violations by CAD holders employed at Headquarters, Aviation Enforcement. 7.9 Investigation of Suspected Unapproved Parts The CARs require certain Canadian Aviation Document (CAD) holders to report the discovery of a suspected 39 unapproved part to Transport Canada. These CAD holders are required to report using the service difficulty reporting (SDR) method described in the Airworthiness Manual (AWM), chapter 591. Although the SDR program has been developed to identify technical and design shortcomings with civil aircraft, they can also be used for reporting the use of suspected unapproved parts that might be used on those aircraft, and as a result, may occasionally report technical problems that are related to contraventions of the Canadian Aviation Regulations. In order to avoid duplication of effort as well as to integrate the procedures of the various functional branches of Civil Aviation that are responsible the SDR program, Aviation Enforcement will follow the specific procedure related to investigation of Suspected Unapproved Parts outlined in the Aviation Enforcement Procedures Manual. 40 Chapter 8—Covert Operations 8.1 In t r od u ct i on Most surveillance done by Transport Canada aviation officials is of an overt nature; that is, undisguised and designed to encourage compliance through a visible presence to deter and detect regulatory infractions. There are, however, instances where covert operations may be appropriate or necessary in order to gather evidence. Covert operations are surveillance activities during which inspectors intentionally represent themselves as being someone other than a Transport Canada aviation official. 8.2 P ol i cy Covert operations may be conducted in order to gather evidence of continuing willful violations of the aviation safety regulations. Covert operations shall be conducted only when a threat to aviation safety exists and when normal investigative means have been ineffective or are likely to be ineffective to stop the unsafe activity. The decision to conduct a covert operation shall be made by the RDCA on the advice of the RMAE. The RDCA shall inform the DGCA of the particulars of the case. Prior to participating in a covert operation, inspectors shall take a training program approved by Headquarters. Transport Canada Civil Aviation will conduct joint covert operations with other agencies when deemed necessary. Participation shall be restricted to ensure that the inspector will not be placed in physical danger during the operation. No inspector shall obtain employment in an aviation company for the purpose of gaining access to information or evidence otherwise unavailable. 41 Part V—Deterrent Action 42 Chapter 9—Deterrent Action 9.1 In t r od u ct i on When a violation of the Aeronautics Act or the CARs is confirmed at the conclusion of an investigation, the proper deterrent action to impose is determined. This is a critical decision in the enforcement process since it may significantly affect an individual’s attitude towards aviation safety and towards compliance with the rules in future. In keeping with Aviation Enforcement’s policy of fairness and firmness, the ultimate goal of a deterrent action is to protect the individual and the public from possible harm. The other objectives are to encourage future compliance and to deter others from contravening aeronautics legislation. 9.2 (a) Types of Det er r en t Act i on Judicial action refers to the prosecution of a person in the criminal courts and is available only for the seven hybrid offences under subsection 7.3(1) of the Aeronautics Act and the few non-designated provisions of the CARs. The actions that may be taken through the courts include fines, prohibition and prison terms for individuals and are available for hybrid offences only (Refer to Chapter 11—Judicial Action). Administrative action comprises all measures pursuant to the provisions of the Aeronautics Act, other than judicial action. It includes the assessment of monetary penalties, the suspension of CADs, and oral counselling (Refer to Chapter 10— Administrative Action). (b) 9.3 C an cel l at i on of Docu men t s Cancellation of a document of entitlement shall not be considered for matters of enforcement (i.e., contraventions). 9.4 Defences—Necessity, Due Diligence, and Officially Induced Error In certain cases where a contravention can be proven or is admitted, the alleged offender may be able to raise a defence based on necessity, due diligence, or officially induced error. Where the defence of necessity is established, the alleged offender cannot be found to have contravened the law because the contravention was necessary to avoid an immediate greater danger (in particular, death or injury). The defence of due diligence is found under section 8.5 of the Aeronautics Act. In order to establish this defence, the alleged offender must show that all reasonable steps (due diligence) were taken to avoid committing the contravention. The defence of officially induced error is available where an alleged offender has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. It must be proved, on a balance of probabilities, that the alleged offender relied on the erroneous legal opinion or advice of the official and that this reliance was reasonable. The rationale will 43 depend on several factors, including the efforts made by the alleged offender to ascertain the proper law, the complexity or obscurity of the law, the position of the official and the clarity, definitiveness, and reasonableness of the advice given. This defence may, at times, overlap with the defence of due diligence, but it is separate and distinct. If an informal meeting is requested by the CAD holder, the policy laid out in Chapter 12, sections 12.5 and 12.6 shall be followed. 9.5 Appl i cat i on of Defen ces Any one of the previously mentioned defences can be raised by the alleged offender during the investigation or at any time before a decision to take enforcement action has been made. If the responsible manager is satisfied that a defence has been established and, therefore, no offence has been committed, the case must be closed. When defence of due diligence or necessity has not been proven, a mitigating circumstance may still exist. The defence then becomes a matter for the criminal court (judicial action) or the TATC (administrative action). 9.6 Li mi t at i on P er i od Section 26 of the Aeronautics Act stipulates a 12-month limitation period on institution of proceedings under sections 7.6 through 8.2 of the Aeronautics Act or by way of summary conviction. As a result, the 12-month period begins on the date of the infraction. The limitation period only applies to the imposition of a monetary penalty for contravention of a designated provision and court action by way of summary proceedings. The limitation does not apply to proceedings brought by way of indictment or to administrative suspensions that address contravention of any provision. It is inappropriate, however, to impose a suspension instead of a monetary penalty on an alleged offender simply because the passage of time has made the limitation-period rule apply. Nevertheless, in certain cases where the infraction is discovered long after the event and suspension would have been contemplated because of the seriousness of the offence, it is appropriate to take action even though 12 months have passed. 9.7 Joi n t Di r ect an d Vi car i ou s Li abi l i t y Joint deterrent action may be taken against the party directly liable for a contravention and the party vicariously liable for a contravention. This may be done when both parties are responsible for causing the contravention to occur. 44 9.8 Joi n t Ju d i ci al -Ad mi n i st r at i ve Det er r en t Act i on Judicial and administrative action may be taken simultaneously where evidence discloses that a person has contravened two or more different provisions arising from the same incident provided that each provision violated does not rely on the same facts. For example, if a charge of reckless or negligent flying under section 602.01 of the CARs relied in part on the fact that the pilot was low flying, the pilot could not also be proceeded against for low flying under section 602.12 of the CARs. A prosecution for one offence may be accompanied by suspension for another offence only where common facts are not relied on. Judicial and administrative deterrent action shall not be taken in respect of the same contravention. Either one or the other shall be selected depending on the facts of the particular case. 9.9 Di scl osu r e of Det er r en t Act i on t o E mpl oyer s Employers of CAD holders should be advised of the deterrent action taken if the contravention took place while the alleged offender was on company business. If the alleged offender was not on company business at the time of the contravention, the disclosure of deterrent action to his or her employer is prohibited unless an exception under section 8(2)(a) or subparagraph 8(2)(m)(i) of the Privacy Act applies. An exception may exist where the deterrent action taken against a professional pilot affects the pilot’s employment, e.g., suspension of licence privileges. An exception may also exist where it would definitely be in the public interest, usually in terms of aviation safety, e.g., to inform the employer if one of his or her pilots has been detected flying while under the influence of alcohol. The question of whether or not to inform an employer must be addressed on a case-by-case basis. The RMAE will decide if disclosure to the employer is appropriate. Employers of foreign document holders may be advised of deterrent action taken if the contravention took place while the alleged offender was on company business. The foreign country’s cultural/political situation should be taken into consideration. The responsible manager will decide on a case-by-case basis. 9.10 Not i fi cat i on of Det ect i on S ou r ce The responsible manager shall ensure that the detection source is advised of the outcome of the case. 45 Chapter 10—Administrative Action 10.1 Types of Administrative Action by Aviation Enforcement Offices There are three courses of administrative action that may be taken by Aviation Enforcement offices when a contravention has occurred. Determination of the appropriate action depends on policy considerations and the circumstances of each contravention. 10.1.1 Oral Counselling Oral counselling is primarily used when a CAD holder commits a minor inadvertent violation where the imposition of a sanction is not considered appropriate. It provides the document holder with immediate counselling on the necessity for compliance. All Civil Aviation inspectors can provide oral counselling relevant to their respective delegation of authority. Chapter 4, section 4.3, contains the criteria used to select this type of action. 10.1.2 Administrative Monetary Penalties Administrative monetary penalties may be assessed where there has been a violation of a designated provision. The monetary penalty procedures are set out in sections 7.6-8.2 of the Aeronautics Act. Monetary penalties will be applied in accordance with the Canadian Aviation Regulations schedule found in the Schedule - Designated Provisions. 10.1.3 Suspension of CADs CADs may be suspended in respect of any contravention of a provision of part I of the Aeronautics Act. The authority for this action is found in section 6.9 of the Aeronautics Act. 10.2 Policy for Selecting Administrative Action When Civil Aviation inspectors detect a violation, they are to exercise their delegated authority to make decisions with respect to the contravention. All available facts should be considered in order to determine whether oral counselling would be appropriate to achieve compliance from the alleged offender in the future. This action may be used to provide the alleged offender with the knowledge required for future compliance. Where violations may have an impact on safety, alleged offenders found in contravention of a designated provision shall be dealt with either by suspension of their CAD or by assessment of a monetary penalty. Suspension of the CAD is the appropriate action when (a) (b) a monetary penalty would be inadequate to achieve compliance; or the document holder is a repeat offender against whom monetary penalties have previously been assessed. 46 10.3 Non-payment of a Monetary Penalty Where a monetary penalty has been assessed against an alleged offender, the RMAE shall send a Notice of Monetary Penalty to the alleged offender. This Notice shall be personally served or sent by Registered or Certified Mail. If the penalty is not paid by the due date, and the alleged offender has not requested a TATC review, the alleged offender is deemed to have committed the offence. In such a case, the RMAE has the authority to order the suspension, refusal to issue, amend or renew the appropriate Civil Aviation Document until the penalty is paid in full. 47 Chapter 11—Judicial Action 11.1 Ju d i ci al Act i on Judicial action is available only for the seven hybrid offences under subsection 7.3(1) of the Aeronautics Act and the non-designated provisions of the CARs. Depending on the seriousness of the contravention, certain hybrid offences listed under subsection 7.3(1) of the Aeronautics Act may be prosecuted by indictment or by way of summary conviction. Non-designated provisions are prosecuted by way of summary conviction. 11.2 P ol i cy for S el ect i on of Ju d i ci al Ac t i on Where a person contravenes a non-designated provision, the RMAE must determine whether to administratively suspend a CAD or to initiate judicial action. The Department of Justice (DOJ) has the final decision on whether or not to prosecute. However, three classes of criteria shall be considered in all cases where judicial action is being contemplated. 11.2.1 Judicial action is mandatory where the alleged offender does not hold a CAD and wilfully does any act or thing in respect of which a CAD is required. Judicial action is recommended where (a) in the opinion of the RMAE, the offence committed by an air operator is such that a penalty of up to $25 000 should be sought in a court prosecution by way of summary conviction (fines on a prosecution by indictment could conceivably be greater); the case has been initiated or conducted by the RCMP, and it is mutually agreed that judicial action is appropriate; or the alleged offender has committed one of the hybrid offences. 11.2.2 (b) (c) 11.2.3 Judicial action may be considered where (a) in the opinion of the RMAE, a suspension would not provide a sufficient deterrent (e.g., the alleged offender has an extensive history of violating the regulations and previous administrative sanctions have not been effective in deterring non-compliance); the nature and magnitude of the offence requires court prosecution and national publicity; or the alleged offender has a non-compliant attitude. (b) (c) 48 The decision of the responsible manager to initiate prosecution should be based on the factors listed above and the recommendations of the regional DOJ counsel; the investigator; and the Director, Regulatory Services; or the RDCA. 11.3 Liaison with DOJ/Attorney General Advice on case specifics, such as particular charges, should be obtained by the RMAE from the DOJ Regional office. The RMAE shall be the formal liaison office with the DOJ and shall keep the DOJ informed of all essential developments in the case as they occur. The DOJ has made it clear that once a case is turned over to Crown Counsel, it becomes the responsibility of DOJ employees. Communication with a Transport Canada office is strictly at the discretion of Crown Counsel. 49 Chapter 12—Sanctions 12.1 General To ensure uniformity when applying sanctions, it is recommended that Departmental procedures be adhered to as closely as possible. The responsible manager may use his or her discretion to vary the sanction from what is recommended. However, this variation must be justified. The following will be considered in the interpretation and use of the recommended sanction: (a) The sanction may be moderated in light of mitigating circumstances (events that were inadvertently caused by misunderstanding, misconception or an honest mistake); In some circumstances, the pilot-in-command, registered owner, operator, or operator of an aerodrome or other aviation facility may be proceeded against for the actions of another person; A second offence is considered to have taken place when the record of a previous similar offence is still on the offender’s file; and Sanctions for a third and all subsequent offences should be higher than previous sanctions. (b) (c) (d) 12.2 12.2.1 Factors Affecting the Choice of Sanctions The facts surrounding the commission of the offence: (a) (b) (c) What was the role of the offender—perpetrator or accomplice? Was there any pressure or undue influence exerted by an employer or an employee? Were there any mitigating circumstances (e.g., poor weather, improper air traffic control instructions, etc.)? 12.2.2 The gravity of the offence: (a) (b) (c) Was there threat to safety? Was there any actual harm done? Was there careless or reckless conduct? 50 12.2.3 The premeditation or deliberateness of the offence and attitude of the offender: (a) (b) (c) Was recklessness involved or plain negligence? What is the offender’s attitude toward safety? What is the offender’s attitude toward future compliance? Note: While the mental element is not relevant to guilt, in strict liability offences it may be indicative of the offender’s attitude. 12.2.4 The offender’s personal characteristics to be considered: (a) (b) (c) (d) (e) (f) 12.2.5 Experience level, knowledge and skill in aeronautics. Training record. Whether or not there is an admission of the offence. Employment—is a licence required to hold employment? Work in relation to any CADs. Financial position in regard to the ability to pay a fine or penalty. The record of the offender: (a) (b) (c) (d) Are there any prior sanctions on record? Is this an isolated act or is this person a repeat offender? Are there any related offences? Is there any question of competence or qualification involved? 12.2.6 Punishment: What is the minimum sanction recommended? 12.2.7 Public safety: (a) (b) 12.2.8 Would the recommended sanction achieve public safety? Will the sanction act as deterrent? Rehabilitation: Will the sanction promote future compliance on the part of the offender? 51 12.3 S an ct i on Det er mi n at i on i n C ases of M u l t i pl e Vi ol at i on s Multiple violations involve a series of distinct and separate contraventions of a particular regulation or regulations over a period of time. Each time the circumstances of the offence may be different. For example, an aircraft could be operated in an overloaded condition each time it was flown during a certain period. Each time the amount of overload could be different but there would be a violation every time. The contravention was not caused by something inherent in the aircraft; rather, it was caused by factors present during the preparation of the flight. In cases of multiple violations, the following policy shall apply: 12.3.1 Administrative Action For multiple violations of the designated provisions, the Notice of Suspension or the Notice Assessment of Monetary Penalty shall include in the statement of offence: (a) (b) the particulars of each offence, including the date and time of each flight in violation; and the sanction proposed in respect of each violation. Evidence to prove each individual infraction shall be secured so that, in the case of a review by the TATC, the evidence can be presented. 12.3.2 Prosecution In the case of a summary conviction offence involving multiple violations where prosecution is the desirable option, the DOJ shall be advised of Transport Canada’s intention to lay charges in respect of each flight conducted in contravention of the regulations; that is, each flight should be set out as a separate count. 12.3.3 Termination of a Continuing Violation A continuing violation that was the subject of enforcement action but has not ceased may need further action to secure compliance. If the violation was in respect of provisions not affecting airworthiness requirements, detention of an aircraft pursuant to section 8.7 of the Aeronautics Act may not be possible. When the violations involve an air operator, a viable option is to suspend the air operator certificate relating to the particular aircraft operation under paragraph 7.7(1)(b) of the Aeronautics Act in addition to any enforcement action. 12.4 Flights with Intermediate Stops Notwithstanding section 7.31 of the Aeronautics Act, flights involving intermediate stops made on a scheduled or unscheduled basis may, where circumstances warrant, be treated as one flight. Where the facts giving rise to the violation remain the same on a flight with intermediate stops, it may be appropriate to lay charges in respect of the entire flight, as opposed to considering separate offences for each segment of the flight. A submission may be made when speaking to sentence, emphasizing the fact that during each segment of the flight there was a decision to operate in violation of the regulations. 52 12.5 S an ct i on Ne got i at i on ( In for mal M eet i n g) The informal meeting offers an opportunity for the alleged offender who has received a Notice of Assessment of Monetary Penalty or a Notice of Suspension to discuss the sanction. The alleged offender normally has 30 days from the date the notice is served, or sent, to accept the offer and meet with the RMAE. If a TATC hearing date has been set, the informal meeting can take place anytime before the TATC hearing. 12.5.1 Entering into Sanction Negotiations During an informal meeting, the RMAE may enter into sanction negotiations with a view to reaching a settlement in the case and closing the file. Sanction negotiations shall not be entered into if (a) (b) the finding of a contravention is disputed; or the violation is associated with the cost of doing business (curfew violations). 12.5.2 Penalty Reduction The following factors shall be considered when deciding if the original penalty should be reduced: (a) (b) (c) (d) (e) (f) (g) evidence of mitigating factors not previously identified during the investigation; the alleged offender’s enforcement record; the seriousness of the offence; the attitude of the offender toward future compliance; whether deterrence can still be achieved through a negotiated settlement; the financial burden of costs associated with TATC proceedings on the alleged offender; and whether negotiations with a particular alleged offender would bring the enforcement program into disrepute. The RMAE must not reduce the penalty by more than 30 percent except in extraordinary circumstances. 53 12.5.3 Confidentiality of Discussions Discussions held during negotiations are without prejudice. Should no settlement be reached, new evidence revealed by the alleged offender during penalty negotiations shall not be disclosed by the Minister at subsequent proceedings. Under no circumstances shall the substance of negotiations, an agreement, or any matter relating to a negotiated penalty be discussed with or provided to the TATC. An agreement shall not be conclusive, and a revised Notice of Assessment of Monetary Penalty or Notice of Suspension shall not be issued until the licence is surrendered or monetary penalty paid. 12.5.4 Contravention Disputed Should the alleged offender dispute the finding of a contravention, the sanction negotiations shall terminate. If new evidence of a statutory defence is presented, the matter shall be referred for further investigation prior to a determination of whether to withdraw or amend the original notice. Subsequently, the option to reopen negotiations would remain. 12.6 Punitive Suspension of Documents The authority to suspend under section 6.9 of the Aeronautics Act has been delegated to the CAE and the RMAEs. A punitive suspension of documents such as AOCs, AMOs, and POCs should only be considered when the CAD holder has a history of repeat offences (two or more significant offences) and when, in the opinion of the suspending authority, other measures (e.g., monetary penalties) would not promote future compliance. The suspending authority is responsible for reviewing the factors affecting the choice of sanction before the decision is made to suspend such a document. The suspending authority should consult with the functional managers responsible for certificate oversight to discuss the following: (a) (b) the co-ordination of concurrent regulatory actions, if applicable; and the severity of the sanction as a response to the violation. Once a final decision to suspend has been made, the suspending authority is responsible for following the guidelines. Standard practice provides an opportunity for an informal meeting with the CAD holder. The suspending authority may involve the functional managers responsible for certificate oversight in the meeting with the CAD holder or his or her representative. 54 Chapter 13—TATC 13.1 F u n ct i on of t h e TATC The TATC is a quasi-judicial body, established in accordance with the Aeronautics Act, whose principal mandate is to hold review and appeal hearings at the request of interested parties with respect to certain administrative actions taken by the Minister of Transport. The TATC provides the aviation community with a forum where enforcement and licensing decisions of the Minister of Transport may be reviewed by an independent body. These decisions are reviewed through a two-level hearing process: review and appeal. All hearings should be held expeditiously, informally and in accordance with the rules of natural justice and fairness. The onus is on the alleged offender to request a TATC hearing. The alleged offender cannot be compelled to testify at these hearings. 13.2 B u r d en of P r oof At a TATC hearing, the burden of proof is on the Minister except in the case of failure to renew on medical grounds. The standard of proof that must be established is simply proof on a balance of probabilities. 13.3 CPO The CPO represents the Minister of Transport at TATC hearings, presents evidence and makes representations in support of the Minister’s decision under review by the TATC. The responsible manager shall appoint a qualified CPO. An investigator involved in the case shall not act as CPO. The effectiveness of case presentation can be seriously reduced by having the investigator wear two hats: that of witness and that of case presenter. Refer to the Case Presenting Officer Course Participant’s Manual for further information on responsibilities. 13.4 R ol e of a Tr an spor t C an ad a In spect or Any Transport Canada aviation inspector may be called on to give testimony at the TATC, either as an eyewitness or as an expert witness. Eyewitnesses attempt to reconstruct a series of events that occurred at a particular point in time. Expert witnesses, on the other hand, give opinion evidence based on their education and experience and attempt to assist the TATC member to understand the evidence or to make a finding of fact based on the expert opinion. 55 13.5 W r i t t en R eason s for Det er mi n at i on On receipt of a review determination, the responsible manager shall forward a copy to the Advisory and Appeals Division for compilation and distribution. If there is a possibility of an appeal, the matter shall be discussed with the Advisory and Appeals Division as soon as possible because of the 30-day time limitation on requesting an appeal. 13.6 M i n i st er ’ s Deci si on C on fi r med Where the TATC member confirms the Minister’s decision, the CPO shall note the effective date of the suspension or the time for payment of a penalty and inform the responsible manager. 13.7 R eq u est for R econ si d er at i on — Immed i at e Th r eat In the case of a suspension on the grounds of an immediate threat to aviation safety, on review, the TATC member may determine the matter by confirming the suspension or by substituting the TATC member’s determination for the decision of the Minister. Where no appeal from the confirming determination is requested or when the TATC confirms the suspension on an appeal, the CAD holder may request a reconsideration from the Minister. The responsible manager is responsible for the reconsideration. If an appeal was requested and the TATC referred the matter back to the Minister for reconsideration, the Director, Regulatory Services, or the RDCA is responsible for the reconsideration. 13.8 Appeal of a TATC R evi ew Det er mi n at i on An appeal by Transport Canada of a TATC review determination shall be considered where the TATC: (a) (b) (c) (d) (e) erred in law when making a determination or an order, whether or not the error appears on the face of the record; based its determination or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for material before it; introduced new evidentiary procedures that are disputable or require clarification; exceeded its jurisdiction or refused to exercise its proper jurisdiction; or decided inappropriately the issue as to sanction or based its determination on irrelevant considerations, in light of the severity of the contravention. An appeal by the alleged offender of a TATC review determination shall not be considered when the alleged offender fails to attend the TATC review without suitable justification. 56 13.9 E n for cemen t Di vi si on Appeal P r ocess If the responsible manager is of the opinion that there are grounds to appeal a TATC review determination, the following process shall apply: (a) (b) On receipt of a TATC review determination, a copy of the determination must be forwarded to the Chief, Advisory and Appeals, immediately; The responsible manager shall consult with the Chief, Advisory and Appeals, immediately to determine whether any of the grounds to appeal as set out above apply. If there are grounds to appeal and the responsible manager is of the view that the interests of aviation safety would be served by appealing the TATC review determination, the responsible manager shall forward a written recommendation for an appeal, with verbal confirmation of receipt, to the Director, Regulatory Services; and The Director, Regulatory Services, shall, in consultation with the CAE and the Chief, Advisory and Appeals, consider the recommendation and related advice provided by the DOJ, Legal Services, if necessary, and direct the Chief, Advisory and Appeals, to initiate appeal action, as appropriate. (c) The Chief, Advisory and Appeals, shall consult with the responsible manager on the content of the notice of appeal, shall ensure that the notice of appeal is filed with the TATC within the statutory 30-day limitation period, and shall send a copy of the notice to the responsible manager. If a decision is made not to appeal the TATC review determination, the Chief, Advisory and Appeals, shall inform the responsible manager of the rationale for the decision. 57 Part VI—Technical Information 58 Chapter 14—Records Management 14.1 R emoval of Not at i on of S an ct i on Pursuant to Section 8.3 of the Aeronautics Act, any notation of a suspension by the Minister of a Canadian aviation document, or of a penalty imposed in accordance with sections 7.6 to 8.2 shall, on request from the person affected by the suspension or penalty, be removed from the record if: 1. At least two years have transpired since the date the suspension expired or the penalty amount was paid; No additional suspension or penalty has been recorded against that person after that date; and The removal of the record would not be contrary to the interest of aviation safety or security; if that person is subject to an investigation under the Aeronautics Act or its related Regulations (CARs) at the time of the request, it could be considered contrary to the interest of aviation safety or security. 2. 3. Other records such as "No Investigation Conducted" (NIC) and "No Further Action" (NFA) must be retained for two years in accordance with the Privacy Act, but may be removed earlier with the consent of the individual to whom the record pertains. An individual, who has requested the removal of a notation of sanction that has been denied by the Minister for just cause, may request a TATC review. A denied request cannot be resubmitted until an additional two years have expired from the date of the original application. If an individual makes an application for the removal of notation of sanction within a reasonable time before the two-year waiting period has expired, the application will be retained and acted on when the two-year limit has been reached. The decision to remove a notation of sanction from an individual's record shall be made on behalf of the Minister by the Chief, Aviation Enforcement. Removal of a notation of sanction means destroying the enforcement file that refers to the sanction, as well as all documents referring to the notation of sanction, from any other record. The circumstances of the infraction will remain in the EMS for statistical purposes. 14.2 Pardons—Custody of Records and Actions The Solicitor General may notify Aviation Enforcement in writing that the Governor in Council has granted a pardon to an individual pursuant to subsection 6(2) of the Criminal Records Act for a violation of the Aeronautics Act or an aeronautics-related offence under the Criminal Code. Any record of a conviction in respect of which a pardon has been granted that is in the custody of Transport Canada, Aviation Enforcement, shall not be disclosed to any person, nor shall the existence of the record or fact of the conviction be disclosed to any person without prior written permission of the Solicitor General. 59 14.3 Retention of Records Aviation Enforcement case files shall be retained for the minimum time required by law. 14.4 Destruction of Files Aviation Enforcement staff at Headquarters shall review EMS case files on a regular basis to identify and list case files that are eligible for destruction. The lists will be forwarded to the Regions for reexamination. RMAEs who have dissenting opinions on the case files in question may make their concerns known to the CAE who shall make the final determination. 14.5 De-identification of EMS Files Only Headquarters shall de-identify EMS files. Regions are to advise Headquarters of the record(s) requiring de-identification. 14.6 Control of Enforcement Records All Aviation Enforcement records and CADs shall be treated as protected documents. Enforcement personnel shall ensure that these documents and records are secured when work areas are left unattended. 60 Chapter 15—Official Forms Where there exists an official form, these forms are to be used whenever practical 61 Chapter 16—Addresses Avi at i on E n for cemen t Offi ces Headquarters Chief, Aviation Enforcement Tel.: (613) 990-1188 Fax: (613) 990-1198 Tel.: (613) 990-1218 Fax: (613) 990-1198 Chief, Transportation Appeal Tribunal of Canada Appeals Transport Canada Place de Ville, Tower C 330 Sparks Street, 5th Floor Ottawa ON K1A 0N8 Pacific Region Regional Manager, Aviation Enforcement Transport Canada 800 Burrard Street, Room 620 Vancouver BC V6Z 2J8 Prairie and Northern Region Regional Manager, Aviation Enforcement Canada Place 1100-9700 Jasper Avenue Edmonton AB T5J 4E6 Tel.: (403) 495-3479 Fax: (403) 495-5378 Tel.: (604) 666-5668 Fax: (604) 666-3982 Winnipeg Area Regional Superintendent, Aviation Enforcement P.O. Box 8550 344 Edmonton Street, 3rd Floor Winnipeg MB R3C 0P6 Tel.: (204) 983-6984 Fax: (204) 983-6987 62 Ontario Region Regional Manager, Aviation Enforcement Transport Canada 4900 Yonge Street, 4th Floor North York ON M2N 6A5 Tel.: (416) 952-0090 Fax: (416) 952-0088 London Area Aviation Enforcement Inspector London Transport Canada Centre 2901-1 Observer Road London ON N5V 3Z9 Tel.: (519) 452-4014 Fax: (519) 452-3598 Ottawa Area Aviation Enforcement Inspector Ottawa Transport Canada Centre 39 Camelot Drive, Suite 400 Ottawa ON K2G 5W6 Quebec Region Regional Manager, Aviation Enforcement Transport Canada 700 Leigh Capreol Street Dorval QC H4Y 1G7 Atlantic Region Regional Manager, Aviation Enforcement Transport Canada P.O. Box 42 Heritage Court 95 Foundry Street, 6th Floor Moncton NB E1C 8K6 Tel.: (506) 851-6736 Fax: (506) 851-2527 Tel.: (514) 633-3533 Fax: (514) 633-3666 Tel.: (613) 952-5194 Fax: (613) 998-7382 63 Chapter 17—Miscellaneous 17.1 Communication with the Media In instances where communication with the public and news media arise, inspectors shall refer to the current Departmental policy. 17.2 Access t o In for mat i on The Access to Information Act provides any Canadian citizen or permanent resident of Canada the right to examine or obtain copies of records of any federal government institution except in limited and specific circumstances. Wherever practical, Aviation Enforcement shall freely provide any information that is not of a sensitive nature (informal process), thus minimizing the need for the public to rely on the rights and remedies provided by the legislation (formal process). Headquarters and Regional Access to Information and Privacy (ATIP) coordinators are responsible for performing advisory and control functions in support of the ATIP program and shall be consulted for guidance. 17.3 Personal Information Personal information is protected under the Privacy Act and may only be released with the written consent of the individual to whom the information relates. However, paragraph 8(2)(e) of the Privacy Act states that personal information may be disclosed ―to an investigative body specified in the regulations, on written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed‖. For this reason, the ATIP coordinators should be consulted before the release of personal information. Requests for personal information from other agencies shall conform to the provisions of the Privacy Act and the Access to Information Act. 17.4 C or por at e In for mat i on The names of corporate offenders, along with a summary of the offence and resulting sanctions, are published on the Transport Canada Web site on a monthly basis. The names will be published in accordance with the following criteria: (a) (b) (c) after payment of a monetary penalty; acceptance of suspension of a document; or final determination of the TATC or a court only after all appeals have been exhausted. This information will be available on the Web site for 12 months. The CAE is responsible for the publication of this data. 64 17.5 Public Release—Enforcement Action Court trials and TATC reviews are a matter of public record. A court decision or TATC determination may be used for compliance publicity purposes where it would be in the interest of aviation safety and in the public interest to do so. Information about administrative sanctions taken against a licence holder and accepted without recourse to the TATC must not be the subject of a press release unless the value of releasing this information is clearly in the public interest. In such cases, the approval of the Director, Regulatory Services, should be obtained prior to involving the ATIP coordinator’s office. 17.6 RCMP / Other Police / Foreign Agency Investigation Report Information contained in the RCMP, other police and foreign agencies’ investigation reports sent to a Transport Canada Aviation Enforcement office shall not be released without the approval of the referring authorities. 17.7 Third-party Interest Requests from purchasers of aircraft, parties repossessing aircraft, trustees in bankruptcy, etc., to obtain aircraft journey and technical logbooks or other CADs should be referred to the ATIP co-ordinator. 17.8 Matters Before the Courts or TATC Facts and opinions on matters before the courts or the TATC shall not be discussed with the public until the conclusion of the case. The responsible manager may discuss a concluded case with the public, subject to section 17.1 of this Manual. Communication with the media is subject to current Departmental policy. 17.9 Criticism of the Department When the Department of Transport comes under criticism during the course of an inspector’s duties, the inspector should calmly acknowledge the comments and pass them along to his or her supervisor. 65