Date: 20040303
Docket: T-623-03
Citation: 2004 FC 263
Ottawa, Ontario, this 3rd day of March, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
ANDREW C. BOYD
Applicant
and
THE MINISTER OF TRANSPORT
Respondent
REASONS FOR ORDER AND ORDER
Overview
[1] This application for judicial review involves the interpretation and application of the Canadian Aviation Regulations, SOR/196-433 ("CARS"), a regulation that at times makes the Income Tax Regulations, C.R.C., c. 945 appear to be elegant prose.
[2] The core issue is whether the Applicant ("Boyd"), a self-represented party before this Court, was charged under the applicable provisions of the CARS and punished correctly. In fact, Boyd was charged with a breach of two provisions of the CARS which he successfully defended but was found to have contravened a different provision of the CARS for which he was never charged and of which he had no notice.
Background
[3] In August 2001, the CanAm Aerobatic Championship was held at the Hanover-Saugeen Aerodrome. On August 26, 2001, the weather deteriorated such as to cause cancellation of the flying competition.
[4] Boyd decided, at about noon that day, to takeoff and perform some low-level aerobatics. He held a personal SFOC (special flight operations certificate) which authorized him to perform low-level aerobatics in accordance with the conditions stated in his SFOC.
[5] For the purposes of this case, the pertinent conditions read:
This certificate is subject to the observation and performance by the certificate holder of the following conditions
(1) Aerobatics manoeuvres are prohibited
(a) over built-up areas or open-air assembly of persons
(b) where flight visibility is less then 3 miles ...
[emphasis added]
[6] Boyd was apparently satisfied with the weather conditions, however, other pilots either questioned his judgment or considered him to actually be reckless. The contest director reported the incident to Transport Canada who conducted an investigation which, ultimately, led to these proceedings.
[7] Transport Canada took two separate actions, as follows:
(1) Boyd was charged under s. 6.9 of the Aeronautics Act, R.S., c. A-2 with contravention of two regulations:
(a) section 602.01 of the CARS in that he operated his aircraft in a reckless or negligent manner by taking off and performing aerobatics when the aerobatics competition was cancelled and the weather conditions were such that the performance of aerobatics endangered or likely endangered life and the property of persons.
(b) subsection 602.27(c) of the CARS in that he operated his aircraft when flight visibility was less then three miles.
For these charges, Boyd's Airline Transport Pilot Licence ("ATPL") was suspended.
(2) Transport Canada cancelled Boyd's SFOC under paragraph 7.1(1)(b) of the Aeronautics Act because he ceased to comply with the condition in the certificate requiring flight visibility of not less then three miles.
[8] Boyd was required to take remedial training before the SFOC would be reinstated. The essence of all of the actions and proceedings commenced by Transport Canada was the operation of his aircraft in adverse weather conditions, particularly the absence of flight visibility of three miles.
[9] These matters were first heard by a single member of the Civil Aviation Tribunal ("CAT") who upheld Transport Canada's allegations of contravention. However, the member found that cancellation of the SFOC and suspension of the ATPL were penalties imposed for a single act. As such, the enforcement action constituted "double jeopardy" - more than one punishment for the same offence. Consequently, the contravention regarding the ATPL was quashed.
[10] On appeal, a three-member panel of CAT held as follows:
(1) Double jeopardy had no application because the suspension of the ATPL was punishment for breaches of the CARS whereas the cancellation of the personal SFOC was a safety matter, not punishment.
(2) The two matters related to flight visibility, the charge under paragraph 602.27(c) of the CARS and the breach of condition 1 (b) of the SFDC were dismissed because the member erred in the application of the law to the finding of flight visibility.
(3) The charge of negligence was sustained. However, in so doing CAT held that Boyd was in violation of section 602.115 of the CARS and condition 1(a) of his SFOC, which they readily admit were matters with which he was not charged.
(4) Specifically, Boyd was found to have flown over an "assembly of persons" in contravention of condition 1(a) of his SFOC which is also a contravention of paragraph 602.27(d) of the CARS.
[11] The basis upon which Boyd was said to have been in breach of the law shifted from flying in reduced visibility to negligent flying over assembled persons. In the result, Boyd was not found to have been in breach of either the regulations or of the licence conditions for which he was charged but was found to have contravened regulations and conditions which were never put to him.
[12] The CAT reinstated the 90-day suspension of the ATPL. No action was taken on the SFOC as Boyd had completed the remedial training and his SFOC had been reinstated.
Analysis and Conclusions
[13] In light of the nature of the questions which the Court must rule on, the appropriate standard of review is correctness. The Court agrees with counsel for the Respondent that if the issues were of pure fact, the standard would be patent unreasonableness; if the issues were mixed law and fact, the standard would be reasonableness simpliciter (see Asselin v. Canada (Minister of Transport), [2000] F.C.J. No. 256 paras 10-11). However, the issues here are purely ones of law and particularly general public law principles.
[14] Given the ultimate disposition of this application, the matter of double jeopardy has only limited relevance but is worthy of comment.
[15] There is no basis for any suggestion that on this issue the CAT had some ulterior motive to punish Boyd. I cannot find any evidence of such a motive on the part of Transport Canada, although, it is evident that certain officials did not appreciate Boyd's attitude toward the enforcement staff.
[16] The principle of "double jeopardy" or the "rule against multiple convictions" or the "Kienapple Principle" are all description of a basic rule emanating from criminal law that a person can only be punished once for the same act. The principle is applicable in the public law context, particularly in regulatory offence proceedings.
[17] The CAT held that there was no double jeopardy because the cancellation of the SFOC was a safety matter while the suspension of the ATPL was punitive. However, the nexus to the two is precisely the same act of flying over an assembly of persons.
[18] With all due respect to the CAT, this conclusion cannot stand on the facts of this case. The SFOC was issued to Boyd in his personal capacity, therefore, the cancellation was directed personally at him. The cancellation had a direct bearing on his own ability to fly.
[19] The suspension or cancellation of an aviation document, such as an operating certificate, on the grounds of safety is to address prospective harm to the public resulting from unsafe operations. Suspension or cancellation pursuant to s. 6.9 of the Aeronautics Act for past actions are inherently punitive.
[20] In this case, the Boyd's SFOC was cancelled, not because of any threat to safety in the future or some other prospective concern. It was cancelled because Transport Canada alleged that he had breached a condition of the SFOC in the past. The suspension of his ATPL was also based on his past contravention for exactly the same activity.
[21] Therefore, I find that the CAT erred in respect of the issue of double jeopardy. One must examine the true nature of the enforcement action, its real purpose and intent.
[22] Dealing with the merits of this application for judicial review, the CAT found Boyd to have contravened the CARS and the SFOC conditions on a very different basis than that alleged by Transport Canada. Transport Canada based its allegations on weather/visibility issues; the CAT found Boyd in breach because he flew close to people on the ground and into cloud. There is no correlation between the two activities.
[23] Transport Canada had all the facts available to it from which it could at least have made the allegation of contravention. It chose not to do so. This may well be a matter of prosecutorial discretion, as claimed by the Respondent. However, having chosen the grounds upon which Transport Canada wished to proceed, it must accept the consequences of its choices.
[24] It is not the role of the CAT to substitute its view of what the allegations should have been, which charges should have been laid, and then to make a determination that those allegations had been established. In this case, it assumed the role of prosecutor and judge.
[25] At a bare minimum, Boyd was entitled to be notified of the new basis for the allegations and to have been afforded an opportunity to defend against those allegations. This is a simple issue of fairness and natural justice. The concept of "notice" and "an opportunity to be heard"on that issue is so fundamental to public law as to admit of no debate.
[26] In this case, Boyd was provided with neither. Therefore, the CAT decision must be quashed in respect of this aspect of the decision.
ORDER
THIS COURT ORDERS that:
(a) This application for judicial review of the CAT finding that Boyd operated his aircraft in a negligent manner, contrary to s. 602.01 of the CARS is allowed. The reinstatement of the ninety-day suspension of his ATPL is hereby quashed.
(b) The Minister of Transport is enjoined from taking any enforcement action against Boyd as a result of any reconsideration of CAT File No. 0-2418-71.
(c) Boyd is entitled to reimbursement of his reasonable disbursements in respect of this application but is not otherwise entitled to costs of counsel.
"Michael L. Phelan"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:T-623-03
STYLE OF CAUSE:ANDREW C. BOYD
Applicant
and
THE MINISTER OF TRANSPORT
Respondent
PLACE OF HEARING:OTTAWA, ONTARIO
DATE OF HEARING:FEBRUARY 17, 2004
REASONS FOR ORDER
AND ORDER BY : PHELAN J.
DATED:MARCH 3, 2004
APPEARANCES:
Mr. Andrew C. Boyd
FOR APPLICANT,
ON HIS OWN BEHALF
Mr. Jeff Anderson
FOR RESPONDENT
SOLICITORS OF RECORD:
Andrew C. Boyd
Merrickville, Ontario
FOR APPLICANT,
ON HIS OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario
FOR RESPONDENT
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