Date: 20041208
Docket: A-178-04
Citation: 2004 FCA 422
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MINISTER OF TRANSPORT
Appellant
and
ANDREW C. BOYD
Respondent
Heard at Ottawa, Ontario, on December 8, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on December 8, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Date: 20041208
Docket: A-178-04
Citation: 2004 FCA 422
CORAM: LINDEN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MINISTER OF TRANSPORT
Appellant
and
ANDREW C. BOYD
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on December 8, 2004)
LINDEN J.A.
[1] The Federal Court Judge erred when he invoked the doctrine of double jeopardy in this case. The revocation or suspension of a licence permitting a person to engage in a regulated activity does not attract the prohibition against double jeopardy, a principle applicable only to criminal proceedings or other proceedings with truly penal consequences (R. v. Shubley, [1990] 1 S.C.R. 3, at p. 18).
[2] We are also of the view that the Federal Court Judge erred in deciding that natural justice was violated because Mr. Boyd had insufficient notice of the basis of the violation with which he was charged.
[3] The charge against Mr. Boyd was essentially that he was negligent and endangered life and property, contrary to section 602.01 of the Regulations under the Aeronautics Act, S.O.R. 96-433 which stipulates:
| 602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.
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602.01 Il est interdit d'utiliser un aéronef d'une manière imprudente ou négligente qui constituer un danger pour la vie ou les biens de toute personne.
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[4] The relevant charge reads:
Canadian Aviation Regulations section 602.01, in that on or about August 26, 2001, at approximately 1645 UTC, at or near the Hanover/Saugeen Municipal Airport, in the Province of Ontario, you operated a Pitts Special S-2B aircraft bearing US identification markings N278 in a reckless or negligent manner by taking off and performing aerobatics when the aerobatic competition was cancelled and the weather conditions were such that the performance of aerobatics endangered or likely endangered life and property of persons.
[5] The Civil Aviation Tribunal found that he was negligent as follows:
The Member found Mr. Boyd to have been negligent because he acted unreasonably and against the advice of his peers. There is no evidence that Mr. Boyd acted against the advice of his peers. He was castigated by some of them only after the flight. So we reject that finding. Did he act unreasonably?
The Decicco case at Appeal provides guidance on the subject. The Appeal Panel stated that in any consideration of what constitutes negligent or reckless conduct, we must review the conduct in light of what a reasonable and prudent pilot would do in the circumstances.
We believe that a reasonable and prudent pilot adheres to the regulations pertinent to his flight. Here the record shows that Mr. Boyd was in violation of section 602.115 of the CARs and condition 1(a) of his SFOC, although he was not charged with either.
What else would be indicative of a reasonable pilot's conduct in the circumstances? We can compare Mr. Boyd's conduct to that of the other pilots. Other than Mr. Ashwood-Smith, the witnesses, most of whom were also aerobatic pilots, stated in no uncertain terms that they thought it was unadvisable or even dangerous to have conducted that flight.
In considering that criterion we find Mr. Boyd's conduct fell below that expected of a reasonably prudent pilot in that he failed to exercise the degree of skill and care required of him.
[6] The respondent contends that a specific violation of a particular provision of the Regulations had to be the basis of any charge and that there must be proof of the violation of that specific charge before a finding of negligence can be made. This is wrong. Specific violations may be evidence of negligence, but it is not necessary to charge or prove violations of specific sections in order to prove endangerment. Section 602.1 is a general provision, not a specific one.
[7] Further on the notice issue, while the particulars of the charge were not set out in the charge, Mr. Boyd in fact received notice of all of the factual allegations being made against him. He was given full disclosure and he knew which of his acts were being challenged. He cross-examined witnesses on each of the allegations made against him. He called witnesses to contradict each allegation. There were no surprises at all. He had sufficient notice so as to preclude any holding of a lack of natural justice.
[8] This appeal will be allowed, the decision of the Federal Court Judge will be set aside, and the judicial review application will be dismissed.
[9] Costs of this appeal were not sought. Costs were requested, however, for the proceedings below. In light of the complex proceedings and the confusion surrounding some of the steps taken, no costs will be awarded for the proceedings below either.
"A.M. Linden"
__________________________________
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-178-04
APPEAL FROM A JUDGMENT OR AN ORDER OF THE FEDERAL COURT DATED MARCH 3, 2004, FEDERAL COURT FILE NO. T-623-03.
STYLE OF CAUSE: MINISTER OF TRANSPORT v.
ANDREW C. BOYD
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 8, 2004
REASONS FOR JUDGMENT OF THE COURT: LINDEN, EVANS, MALONE JJ.A.
RENDERED FROM THE BENCH BY: LINDEN J.A.
APPEARANCES:
Mr. R. Jeff Anderson for the Appellant
Mr. Andrew C. Boyd Respondent on his own behalf
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for the Appellant
Ottawa, Ontario
Mr. Andrew C. Boyd Respondent on his own behalf
Merrickville, Ontario
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