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On the evening of January 17, 2016, Shah was flying a drone recreationally in a park in Northeast Calgary, south of a Calgary International Airport runway.
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III. EMERGING TECHNOLOGY ISSUES
A. After the first
reported decision on drones in Canada, the drone operator was found
guilty of flying his drone "in a manner hazardous or likely
hazardous to aviation safety" under section 602.45 of the
Canadian Aviation Regulations as it then was for flying
his drone south of an airport runway.
On the evening of January 17, 2016, Shah was flying a drone
recreationally in a park in Northeast Calgary, south of a Calgary
International Airport runway. A Calgary Police Officer
on patrol as a passenger in a police vehicle, noticed lights in the
sky that he estimated to be at a height at or above the trees in
the area. He gave differing evidence of that height between the
time of the first trial and second trial, eventually stating that
the lights were seen at about 80 feet and then going down to the
ground. The Officer directed his partner to drive to the park where
they saw Shah walking to his car with a drone. The police seized
the drone and charged Shah under several provisions in the
Criminal Code and the Canadian Aviation
Regulations. Shah's drone weighed less than a pound.
By trial, the only remaining charge before the Court was under
section 602.45 of the Canadian Aviation Regulations,
which, at the time, prohibited the operation of a kite, rocket or
model aircraft to be flown "in a manner hazardous or likely
hazardous to aviation safety." Because Shah was not flying the
drone for commercial purposes, it fell under the definition of a
"model aircraft" and not a drone or UAV. At the first
Provincial Court trial, the Judge Semenuk found that the provision
had been contravened. His decision was appealed to the Court of
Queen's Bench.
On appeal, the Queen's Bench confirmed that section 602.45
required the Crown to prove beyond a reasonable doubt that the
drone was operated "in a manner hazardous or likely hazardous
to aviation safety" and that the Trial Judge had erred by
failing to apply this standard or provide remarks as to whether the
evidence before the judge was sufficient to meet the standard and
ordered a new trial.
When the matter returned to trial, Judge Hawkes considered all of
the evidence, including new expert evidence provided by a Civil
Aviation Inspector who testified about his direct experience flying
manned and unmanned aircraft. This expert stated he was familiar
with the type of drone used by Mr. Shah and opined that similar
devices could fly to at least 500 feet. He indicated that if the
drone was operating at 80 feet over the park, it would be at worst
a nuisance or distraction to aircraft landing on runway 35 Left.
There were no aircraft landing on this runway at the time Mr. Shah
was flying his drone. Despite this evidence, Judge Hawkes found
that the Crown had met the burden of proof.
II. HELD: For the Crown;
Shah found guilty but obtained a conditional discharge.
In arriving at his decision, Judge Hawkes stressed the fact
that Mr. Shah had been found guilty of creating a likely hazard to
aviation safety.
[45] In arriving at that conclusion I am aware of the fact that
there were no departing aircraft using that runway at the time.
However, as [the expert] testified, the assignment of runways is at
the discretion of the control tower. Runways are assigned based on
wind direction and other factors. The possibility that 17
Right could be used for departing aircraft is not so remote as to
remove it from the continuum of "likely hazard". I
also note that the assignment of either of these runways for either
arrival or departure would not be known to a drone operator at the
park until he actually saw arriving or departing aircraft. By
then it may be too late to avoid at least the likely if not the
actual hazard posed by this conduct.
III. COMMENTARY:
After Shah was convicted at his first trial, Field Law's Erika Carrasco represented him on the
successful appeal such that it was sent back for a new
trial.
With respect, it appears that the Judge's interpreted the words
"likely hazardous" to be essentially equivalent to
"possible".
While Shah's case seems to have served as deterrent to all
recreational drone operators to stay away from airports,
Canada's drone regulations are evolving. If Shah had been seen
flying his drone today, he would not have been charged under
section 602.45, or at all. In fact, section 602.45 of the
Canadian Aviation Regulations no longer applies to drones,
due to the effect of section 4 of "Interim Order No. 8 –
Respecting the Use of Model Aircraft," which is now in force
across Canada. There is every indication that the legislature
intends to continue with this trend. On July 15, 2017, Transport
Canada proposed changes to the Canadian Aviation
Regulations applicable to both commercial and recreational drone
operators. These proposed changes were published in the Canada
Gazette Part I and are predicted to enter into force sometime in
2018. Of note, these proposed changes include a provision which
mirrors section 4 of the Interim Order, and will exempt drones less
than .55 pounds (or 250 grams) from regulation whatsoever.
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