An aviation company operating tourist flights (“Delco”) was charged with (i) landing or taking off an aircraft in a built-up area of a city or town without authorization, and (ii) the use of Class F Special Use Restricted Airspace. The Appeal Panel of the Civil Aviation Tribunal held that the two sets of charges were founded upon the same acts and that, due to the legal nexus between the counts, Delco had been placed in a position of double jeopardy. The Appeal Panel stayed two of the charges. The Ministry appealed to the Federal Court who held that a legal double jeopardy only exists if there are no additional and distinguishing elements between two charges. Although arising from the same transaction, the Act created separate and distinct offences as a “built up area” is not necessarily “Class F Airspace” and vice versa. The decision of the Appeal Panel was quashed and the decision of the Tribunal member was reinstated.

26. August 2003 0

Administrative law – Decisions of administrative tribunals – Civil Aviation Tribunal – Penalties – Double jeopardy – Kienapple rule – Judicial review application – Compliance with legislation – Standard of review – Correctness

Canada (Minister of Transport) v. Delco Aviation Ltd., [2002] F.C.J. No. 938, Federal Court of Canada – Trial Division, June 12, 2003, Blanchard J.

The Respondent, Delco, was a Canadian aviation company operating tourist flights. Delco was charged with four infractions under the Canadian Aviation Regulations. The Minister alleged that a Delco aircraft landed and took off from the Welland River in the town of Niagara Falls. The conduct was stated to be in violation of the Regulations prohibiting (i) the landing or take off of an aircraft in a built up area of a city or town without authorization, and (ii) the use of Class F Special Use Restricted Airspace without authorization. A hearing was convened in front of the Civil Aviation Tribunal and fines were imposed on counts 1 and 2. Delco appealed to the Appeal Panel of the Tribunal. The Appeal Panel quashed two of the fines on the grounds that two infractions cannot be held to emerge from the same act as this would violate the rule against multiple convictions articulated in Kienapple v. The Queen, 30 C.C.C. (3d) 35. The Appeal Panel noted that there was a legal nexus between landing or taking off of an aircraft in a built-up area, and the use of Class F Special Use Restricted Airspace such that there are no distinguishing elements and the conviction on both offences should not stand.

The Minister appealed the Tribunal’s decision to the Federal Court of Canada – Trial Division. The court noted that the pragmatic and functional approach articulated by the Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 S.C.R. 982, governed the standard of review and that since this was a question of law, the appropriate standard of review should be correctness. The court noted that in R. v. Prince, [1986] 2 S.C.R. 480, the Supreme Court articulated the principles governing the rule in Kienapple. The 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 offence at issue. 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.

The court found that the legal elements contained in the built-up area offence and the restricted airspace offence were distinguishable. Operating an aircraft in a restricted airspace does not necessarily entail operating the aircraft within a built-up area of a city or town. Consequently, the elements of the built-up area offence differ from the elements of the restricted airspace offence. The court concluded that the Kienapple principle does not apply to prevent a conviction for taking off and landing within a built-up area by reason of a conviction for violating restricted airspace. The court ordered that the decision of the Appeal Panel should be quashed and the decision of the Tribunal member reinstated.

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