Chapter 9 - Deterrent Action
- 9.1 Introduction
- 9.2 Types of Deterrent Action
- 9.3 Cancellation of Documents
- 9.4 Defences - Necessity, Due Diligence and Officially Induced Error
- 9.5 Application of Defences
- 9.6 Limitation Period
- 9.7 Joint Direct and Vicarious Liability
- 9.8 Joint Judicial-Administrative Deterrent Action
- 9.9 Disclosure of Deterrent Action to Employers
- 9.10 Notification of Detection Source
When a violation of the Aeronautics Act or the CARs is confirmed at the conclusion of an investigation, the proper deterrent action to impose is determined. This is a critical decision in the enforcement process since it may significantly affect an individual's attitude towards aviation safety and towards compliance with the rules in future.
In keeping with Aviation Enforcement's policy of fairness and firmness, the ultimate goal of a deterrent action is to protect the individual and the public from possible harm. The other objectives are to encourage future compliance and to deter others from contravening aeronautics legislation.
- Judicial action refers to the prosecution of a person in the criminal courts and is available only for the seven hybrid offences under subsection 7.3(1) of the Aeronautics Act and the few non-designated provisions of the CARs. The actions that may be taken through the courts include fines, prohibition and prison terms for individuals and are available for hybrid offences only (Refer to Chapter 11 - Judicial Action).
- Administrative action comprises all measures pursuant to the provisions of the monetary penalties, the suspension of CADs, and oral counselling (Refer to Chapter 10 - Administrative Action).
Cancellation of a document of entitlement shall not be considered for matters of enforcement (i.e., contraventions).
In certain cases where a contravention can be proven or is admitted, the alleged offender may be able to raise a defence based on necessity, due diligence, or officially induced error. Where the defence of necessity is established, the alleged offender cannot be found to have contravened the law because the contravention was necessary to avoid an immediate greater danger (in particular, death or injury). The defence of due diligence is found under section 8.5 of the Aeronautics Act. In order to establish this defence, the alleged offender must show that all reasonable steps (due diligence) were taken to avoid committing the contravention.
The defence of officially induced error is available where an alleged offender has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law. It must be proved, on a balance of probabilities, that the alleged offender relied on the erroneous legal opinion or advice of the official and that this reliance was reasonable. The rationale will depend on several factors, including the efforts made by the alleged offender to ascertain the proper law, the complexity or obscurity of the law, the position of the official and the clarity, definitiveness, and reasonableness of the advice given. This defence may, at times, overlap with the defence of due diligence, but it is separate and distinct.
Any one of the previously mentioned defences can be raised by the alleged offender during the investigation or at any time before a decision to take enforcement action has been made. If the responsible manager is satisfied that a defence has been established and, therefore, no offence has been committed, the case must be closed. When defence of due diligence or necessity has not been proven, a mitigating circumstance may still exist. The defence then becomes a matter for the criminal court (judicial action) or the TATC (administrative action).
Section 26 of the Aeronautics Act stipulates a 12-month limitation period on institution of proceedings under sections 7.6 through 8.2 of the Aeronautics Act or by way of summary conviction. As a result, the 12-month period begins on the date of the infraction. The limitation period only applies to the imposition of a monetary penalty for contravention of a designated provision and court action by way of summary proceedings.
The limitation does not apply to proceedings brought by way of indictment or to administrative suspensions that address contravention of any provision. It is inappropriate, however, to impose a suspension instead of a monetary penalty on an alleged offender simply because the passage of time has made the limitation-period rule apply. Nevertheless, in certain cases where the infraction is discovered long after the event and suspension would have been contemplated because of the seriousness of the offence, it is appropriate to take action even though 12 months have passed.
Joint deterrent action may be taken against the party directly liable for a contravention and the party vicariously liable for a contravention. This may be done when both parties are responsible for causing the contravention to occur.
Judicial and administrative action may be taken simultaneously where evidence discloses that a person has contravened two or more different provisions arising from the same incident provided that each provision violated does not rely on the same facts. For example, if a charge of reckless or negligent flying under section 602.01 of the CARs relied in part on the fact that the pilot was low flying, the pilot could not also be proceeded against for low flying under section 602.12 of the CARs.
A prosecution for one offence may be accompanied by suspension for another offence only where common facts are not relied on. Judicial and administrative deterrent action shall not be taken in respect of the same contravention. Either one or the other shall be selected depending on the facts of the particular case.
Employers of CAD holders should be advised of the deterrent action taken if the contravention took place while the alleged offender was on company business. If the alleged offender was not on company business at the time of the contravention, the disclosure of deterrent action to his or her employer is prohibited unless an exception under section 8(2)(a) or subparagraph 8(2)(m)(i) of the Privacy Act applies. An exception may exist where the deterrent action taken against a professional pilot affects the pilot's employment, e.g., suspension of licence privileges. An exception may also exist where it would definitely be in the public interest, usually in terms of aviation safety, e.g., to inform the employer if one of his or her pilots has been detected flying while under the influence of alcohol. The question of whether or not to inform an employer must be addressed on a case-by-case basis. The RMAE will decide if disclosure to the employer is appropriate.
Employers of foreign document holders may be advised of deterrent action taken if the contravention took place while the alleged offender was on company business. The foreign country's cultural/political situation should be taken into consideration. The responsible manager will decide on a case-by-case basis.
The responsible manager shall ensure that the detection source is advised of the outcome of the case.
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