AIR LAW |
Canada (Minister of Transport) v. Delco Aviation Ltd.
T-1888-01
2003 FCT 733, Blanchard J.
12/6/03
10 pp.
Judicial review of Civil Aviation Tribunal Appeal Panel decision allowing appeal from Civil Aviation Tribunal member who found respondent guilty of four infractions under Canadian Aviation Regulations (May 16, May 20 landing on, taking off from Welland River, in town of Niagara Falls, without authorization; use of restricted airspace without authorization)--Appeal Panel quashed two $1,000 fines in respect of two of counts (unauthorized use of restricted airspace) on basis two sets of charges founded upon same acts: single flight on May 16, single flight on May 20, holding that unless indicated by Parliament, two infractions cannot be held to emerge from same act; such result would violate rule against multiple convictions (double jeopardy) articulated in Kienapple v. The Queen, [1975] 1 S.C.R. 729--Issue whether Appeal Panel erred in law in finding there existed link between infractions stated in Regulations, ss. 602.13(1), 601.04(2) such that charges pursuant to both at same time contravened rule against double jeopardy--Standard of review herein that of correctness--Application allowed--Offences arising from same transaction--However, legal elements contained in built-up area offence and restricted airspace offence distinguishable--Furthermore, area encompassed by restricted airspace near Niagara Falls differing from area encompassed by phrase "built-up area of city or town"-- Finally, compliance with Commercial Air Service Standards or taking off, approaching, or landing at airport or military aerodrome preclude charge under built-up area offence-- Therefore, distinguishing features preclude finding legal nexus between offences in question--Consequently, Kienapple principle not applicable to present case and Appeal Panel erred in determination that charges 3, 4 should be stayed-- Decision of Appeal Panel quashed, decision of Tribunal member reinstated--Canadian Aviation Regulations, SOR/96-433, ss. 602.13(1), 601.04(2).