Date: 20030612
Docket: T-1888-01
Citation: 2003 FCT 733
Ottawa, Ontario, this 12th day of June, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MINISTER OF TRANSPORT
Applicant
- and -
DELCO AVIATION LIMITED
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the decision of the Appeal Panel of the Civil Aviation Tribunal (the "Appeal Panel"). The Appeal Panel had partially allowed an appeal from the decision of the Civil Aviation Tribunal member (the "Tribunal member"), who had found the respondent guilty of four infractions under the Canadian Aviation Regulations, SOR/96-433 (the "Regulations").
Facts
[2] The Respondent Delco is a Canadian aviation company that operates tourist flights from its main base in Laval, Quebec. Delco was charged pursuant to ss. 601.04(2) and 602.13(1) of the Regulations concerning events that occurred on May 16 and 20,1999.
[3] The Minister alleged that on May 16, 1999, a Delco aircraft marked C-FSSA landed on and took off from the Welland River, in the town of Niagara Falls. This conduct was stated to be in violation of Regulations prohibiting (i) the landing or take off of an aircraft in a built up area of a city or town without authorization [ss. 602.13(1)], and (ii) the use of Class F Special Use Restricted airspace without authorization [ss. 601.04(2)]. Similarly, it was alleged that on May 20, 1999 a Delco aircraft marked C-GMJH landed on and took off from the Welland River in violation of the above two Regulations. The Department of Transport sent Delco a Notice of Assessment of Monetary Penalty for contravening the Regulations. The assessment stated penalties of $5,000 for each of counts 1 and 2, and $2,500 for each two counts 3 and 4, for a total of $15,000.
Decision of Tribunal Member
[4] A hearing was convened on February 29, 2000. On September 19, 2002 the Tribunal member, M. Beauchamp, determined that the constituent elements of the infractions had been met and imposed fines of $500 on account of the May 16 and May 20 landing and take off (counts 1 and 2), and $1,000 on account of the May 16 and 20 use of Class F airspace without authorization, for a total of $3,000.
Decision of the Appeal Panel
[5] Delco appealed to the Appeal Panel, and a hearing was held on January 16, 2001. The Appeal Panel upheld the rulings of the Tribunal member. The Appeal Panel accepted the analysis of the member and concurred with his conclusions. However, the Appeal Panel quashed the two $1,000 fines in respect of counts 3 and 4..
[6] The Appeal Panel stated that the two sets of charges were founded upon the same acts: a single flight on May 16 and a single flight on May 20 and held that, unless indicated by Parliament, two infractions cannot be held to emerge from the same act. Such a result would violate the rule against multiple convictions articulated in Kienapple v. The Queen, 30 C.C.C. (3d) 35.
[7] The Appeal Panel noted that in order to establish double jeopardy, there must be a legal nexus between counts 1 and 3 and between counts 2 and 4 such that there is no additional or distinguishing element that goes to the culpability contained in the second set of offences. The Appeal Panel stated at page 9 of its reasons:
We consider that there is a legal link in these multiple charges, all of which are found in the designated provisions. It is our view that upon considering the prior authorizations which were required, we conclude that had a prior authorization been obtained from the Minister regarding flight in Class F airspace, then it is not likely that the Minister would have pursued an allegation regarding flight in a built-up area, and vice versa. Essentially, where the required factual similarities found in the same act of the accused is the ground for each of the charges, short of a clearly expressed intention of Parliament to the contrary, the rule against multiple convictions will prevent a conviction on both offences arising out of the same fact situation. It is our view that the offences in counts 1 and 3 are alternative charges as are those found in counts 2 and 4. Hence, where offences overlap as they do in this case, unless there are additional or distinguishing elements, a conviction on both offences should not stand.
[8] As a result of this analysis, the Appeal Panel concluded that Delco had been placed in a position of double jeopardy and stayed the charges on counts 3 and 4. Consequently, the penalties of $500 each for counts 1 and 2 were confirmed and the penalties imposed on courts 3 and 4 were stayed. The Appeal Panel stated that the "flight within a built-up area is the subsuming charge and embraces elements giving rise to the charge of flight within Class F airspace".
Issue
[9] Did the Appeal Panel err in law in finding that there existed a legal link between the infractions stated in the Regulations ss. 602.13(1) and ss. 601.04(2) such that charges pursuant to both at the same time contravened the rule against double jeopardy?
Standard of Review
[10] The applicant notes that the pragmatic and functional approach articulated by the Supreme Court in Pushpanathan v. Canada, [1998] 1 S.C.R. 982, should govern the standard of review analysis. The applicant observes that the Aeronautics Act, R.S.C. 1985, c. A-2 (the "Act"), contains the following privative clause at ss. 37(9):
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A decision of the Tribunal on an appeal under this Act is final and binding on the parties to the appeal.; |
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La décision rendue en appel par le Tribunal est définitive.
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[11] Despite the existence of the privative clause, the applicant submits that the issue in the present case - the application of the Kienapple principle - is a question of law and therefore the appropriate standard of review should be correctness. The applicant notes that the Court has expertise relative to the Appeal Panel on questions of law, and refers to the statement by Major J. in Canada (Deputy Minister of National Revenue v. Mattel Canada Inc., [2001] 2 S.C.R. 100, [2001] S.C.J. No. 37 (QL), at para. 32.
The criteria of expertise and the nature of the problem are closely interrelated (Pushpanathan, supra, at para. 33). It is necessary "to focus on the specific question of law at issue to determine whether it falls within the tribunal's expertise and whether deference is warranted" (Pezim, supra, at p. 596).
[12] I am of the view that the case at bar presents a question of law that is within the expertise of the Court relative to the Appeal Panel. Consequently, I find that the standard of review is correctness.
Regulatory Framework
[13] The Regulations set out the offences at issue in the present case. Subsection 602.13(1), the "built-up area offence", provides:
| Except if otherwise permitted under this section, section 603.66 or Part VII, no person shall conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town, unless that take-off, approach or landing is conducted at an airport or a military aerodrome. |
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À moins d'indication contraire du présent article, de l'article 603.66 ou de la partie VII, il est interdit d'effectuer le décollage, l'approche ou l'atterrissage d'un aéronef à l'intérieur d'une zone bâtie d'une ville ou d'un village, à moins que le décollage, l'approche ou l'atterrissage soit effectué à un aéroport ou à un aérodrome militaire.
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[14] Subsection 702.22(1) provides
| For the purposes of subsection 602.13(1), a person may conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town at a place other than an airport or a military aerodrome, if the person
(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and
(b) complies with the Commercial Air Service Standards. |
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Pour l'application du paragraphe 602.13(1), une personne peut effectuer le décollage, l'approche ou l'atterrissage d'un aéronef à l'intérieur d'une zone bâtie d'une ville ou d'un village à un endroit qui n'est pas situé à un aéroport ou à un aérodrome militaire, si la personne respecte les conditions suivantes :
a) elle en a reçu l'autorisation du ministre ou elle y est autorisée aux termes d'un certificat d'exploitation aérienne;
b) elle satisfait aux Normes de service aérien commercial.
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[15] Subsection 601.04(2), the "restricted airspace offence", provides:
| No person shall operate an aircraft in Class F Special Use Restricted airspace unless authorized to do so by the person specified for that purpose in the Designated Airspace Handbook. |
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Il est interdit d'utiliser un aéronef dans l'espace aérien de classe F à statut spécial réglementé, à moins d'en avoir reçu l'autorisation de la personne indiquée dans le Manuel des espaces aériens désignés.
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Analysis
[16] The applicant submits that the Appeal Panel erred in law in concluding that the rule against multiple convictions, or Kienapple principle, applied in the present case. The applicant argues that there exists in one charge elements that do not appear in the other and therefore the Kienapple principle is inapplicable in this case. In addition, the applicant states that the two provisions have different authorization procedures and as such should be considered to have distinct elements.
[17] In R. v. Prince, [1986] 2 S.C.R. 480, [1986] S.C.J. No. 63 (QL), the Supreme Court articulated the principles governing the rule in Kienapple. This rule applies to preclude a second conviction where (i) the offences arise from the same transaction; and (ii) there is a nexus between the legal elements of the offences at issue: Prince, supra, at 490 and 493. Concerning the second prong, Dickson J. stated, at 498:
... [T]he requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
[18] In Krug v. The Queen, [1985] 2 S.C.R. 255, the Supreme Court focussed on distinguishing elements rather than shared elements in assessing the applicability of Kienapple: see Prince, supra, at 497.
[19] The applicant concedes that the first branch of the Kienapple test is met and that the factual elements on which the two sets of charges are based are identical: the respondent's plane took off from the Welland river on May 16 and on May 20, 1999 and these acts form the basis for the charges under the Regulations ss. 602.13(1) and 601.04(2). I agree with this assessment. Therefore, I will proceed to analyze whether there is a nexus between the legal elements of the regulatory offences.
[20] The elements of the built up area offence are as follows: (i) conduct a take-off, approach, or landing; (ii) within a built-up area of a city or town; and (iii) no authorization from the Minister AND does not comply with the Commercial Air Service Standards. If the take-off, approach, or landing is conducted at an airport or military aerodrome then no offence occurs.
[21] The elements of the restricted airspace offence are as follows: (i) operate an aircraft; (ii) in Class F Special Use Restricted airspace; (iii) no authorization from the person specified in the Designated Airspace Handbook.
[22] I find that the legal elements contained in the built-up area offence and the restricted airspace offence to be distinguishable.
[23] The built-up area offence requires take-off, landing, or approach, and thus differs from the element of "operating an aircraft" as specified in the restricted airspace offence. Simply operating an aircraft in a built-up area of a city or town may well establish the elements of the restricted airspace offence, but would not necessarily establish the elements required in the "built up area" offence, namely "take off, landing, or approach".
[24] Another distinguishing feature in the required elements of the offences is that the area encompassed by Class F Special Use Restricted airspace (in this case CYR518, an area near Niagara Falls) differs from the area encompassed by the phrase "a built-up area of a city or town". Operating an aircraft in a restricted air space does not necessarily entail operating the aircraft within a "built- up area of a city or town". It also follows that the air space within a "built-up area of a city or town" is not necessarily restricted air space. Consequently, the elements of the built-up area offence differ from the elements in the restricted airspace offence.
[25] In addition, I find that compliance with Commercial Air Service Standards or taking off, approaching, or landing at an airport or military aerodrome preclude a charge under the built-up area offence.
[26] I am of the view that these distinguishing features preclude the finding that there is a legal nexus between the offences in question. Consequently, I find that the Kienapple principle does not apply to the present case and the Appeal Panel erred in its determination that charges 3 and 4 should be stayed.
Conclusion
[27] The Kienapple principle does not apply to prevent a conviction for taking off and landing within a built-up area under ss. 602.13(1) of the Regulations by reason of the Respondent's conviction for violating restricted airspace as defined by ss. 601.04(2). The rule against multiple convictions applies only where there is both a factual and legal nexus existing between the offences. A legal nexus between the offences exists if there is no additional and distinguishing element that
goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. Although arising from the same transaction, separate and distinct offences are created by the two subsections, as illustrated above, each with their own penalty. The decision of the Appeal Panel must accordingly be quashed and the decision of the Tribunal member is reinstated.
ORDER
THIS COURT ORDERS that:
1. The decision of the Appeal Panel is quashed and the decision of the Tribunal member is reinstated.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Minister of Transport v. Delco Aviation Limited
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: April 23, 2003
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: June 12, 2003
APPEARANCES:
Mr. Bernard Letarte FOR APPLICANT
Mr. Édouard Baudry FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR APPLICANT
Deputy Minister of Justice
Ottawa, Ontario, K1A 0H8
Mr. Édouard Baudry FOR RESPONDENT
Lavery, De Billy
4000 - 1 Place Ville-Marie
Montréal, Québec H3B 4M4