AIR LAW |
Canada (Minister of Transport) v. Delco Aviation Ltd.
A-409-03
2005 FCA 7, Létourneau J.A.
13/1/05
9 pp.
Appeal of decision by F.C.T.D. ((2003), 237 F.T.R 279) setting aside decision by Appeal Panel of Civil Aviation Tribunal--Whether appellant, operating aerial sightseeing flight company, entitled to benefit from rule against multiple convictions, initially adopted in Kienapple v. The Queen, [1975] 1 S.C.R. 729--Rule prohibiting convictions for different charges under same Act, different Acts, when charges brought as result of same action--Appellant initially found guilty on four counts brought under Canadian Aviation Regulations, ss. 601.04(2), 602.13(1)--Civil Aviation Tribunal, making determination on four counts, assessing penalties of $500 for each of two counts relating to populated area (counts 1 and 2), $1,000 for each of two counts relating to Special Use Restricted airspace (counts 3 and 4)--Panel applying Kienapple rule, confirming convictions on counts 1 and 2, allowing appeal on counts 3 and 4--Federal Court allowing appeal against Panel's decision, reinstating convictions on four counts--Determining distinguishing elements in terms of legal nexus between offences prevented application of principle in Kienapple--Federal Court misinterpreting elements, legal scope of rule against multiple convictions--Two conditions to satisfy for rule against multiple convictions to apply--First, sufficient proximity between facts forming basis of at least two offences--In this case, existence of factual nexus admitted since charges resulting from same act by appellant, i.e. taking off in aircraft in prohibited area--Act forming basis of four counts--Also required relationship of sufficient legal proximity between offences to determine offences not having additional, distinguishing elements going to guilt--Taking off element found in first two offences only particularization, specification of element of operating, using found in third, fourth counts --Other element determined distinctive by Federal Court built-up area as opposed to Class F airspace--To benefit from rule against multiple convictions, appellant must establish act of taking off could not take place without automatically violating both subsections of Regulations--Place of take-off on Welland river, in built-up area of city, also located inside Class F Special Use Restricted airspace CYR518--Panel correct to apply rule against multiple convictions to act of aircraft taking off--Important element in terms of authorization very lack of authorization--Lack of authoriza-tion common element of actus reus for each of four charges against appellant--On that point, no distinguishing element justifying exclusion of Kienapple principle--Appeal allowed --Canadian Aviation Regulations, SOR/96-433, ss. 601, 602.