Chapter 12 - Sanctions
- 12.1 General
- 12.2 Factors Affecting the Choice of Sanctions
- 12.3 Sanction Determination in Cases of Multiple Violations
- 12.4 Flights with Intermediate Stops
- 12.5 Sanction Negotiation (Informal Meeting)
- 12.6 Punitive Suspension of Documents
To ensure uniformity when applying sanctions, it is recommended that Departmental procedures be adhered to as closely as possible. The responsible manager may use his or her discretion to vary the sanction from what is recommended. However, this variation must be justified.
The following will be considered in the interpretation and use of the recommended sanction:
- The sanction may be moderated in light of mitigating circumstances (events that were inadvertently caused by misunderstanding, misconception or an honest mistake);
- In some circumstances, the pilot-in-command, registered owner, operator, or operator of an aerodrome or other aviation facility may be proceeded against for the actions of another person;
- A second offence is considered to have taken place when the record of a previous similar offence is still on the offender's file; and
- Sanctions for a third and all subsequent offences should be higher than previous sanctions.
12.2.1 The facts surrounding the commission of the offence:
- What was the role of the offender - perpetrator or accomplice?
- Was there any pressure or undue influence exerted by an employer or an employee?
- Were there any mitigating circumstances (e.g., poor weather, improper air traffic control instructions, etc.)?
12.2.2 The gravity of the offence:
- Was there threat to safety?
- Was there any actual harm done?
- Was there careless or reckless conduct?
12.2.3 The premeditation or deliberateness of the offence and attitude of the offender:
- Was recklessness involved or plain negligence?
- What is the offender's attitude toward safety?
- What is the offender's attitude toward future compliance?
Note: While the mental element is not relevant to guilt, in strict liability offences it may be indicative of the offender's attitude.
12.2.4 The offender’s personal characteristics to be considered:
- Experience level, knowledge and skill in aeronautics.
- Training record.
- Whether or not there is an admission of the offence.
- Employment - is a licence required to hold employment?
- Work in relation to any CADs.
- Financial position in regard to the ability to pay a fine or penalty.
12.2.5 The record of the offender:
- Are there any prior sanctions on record?
- Is this an isolated act or is this person a repeat offender?
- Are there any related offences?
- Is there any question of competence or qualification involved?
What is the minimum sanction recommended?
12.2.7 Public safety:
- Would the recommended sanction achieve public safety?
- Will the sanction act as deterrent?
Will the sanction promote future compliance on the part of the offender?
Multiple violations involve a series of distinct and separate contraventions of a particular regulation or regulations over a period of time. Each time the circumstances of the offence may be different. For example, an aircraft could be operated in an overloaded condition each time it was flown during a certain period. Each time the amount of overload could be different but there would be a violation every time. The contravention was not caused by something inherent in the aircraft; rather, it was caused by factors present during the preparation of the flight.
In cases of multiple violations, the following policy shall apply:
For multiple violations of the designated provisions, the Notice of Suspension or the Notice Assessment of Monetary Penalty shall include in the statement of offence:
- the particulars of each offence, including the date and time of each flight in violation; and
- the sanction proposed in respect of each violation.
Evidence to prove each individual infraction shall be secured so that, in the case of a review by the TATC, the evidence can be presented.
In the case of a summary conviction offence involving multiple violations where prosecution is the desirable option, the DOJ shall be advised of Transport Canada's intention to lay charges in respect of each flight conducted in contravention of the regulations; that is, each flight should be set out as a separate count.
A continuing violation that was the subject of enforcement action but has not ceased may need further action to secure compliance. If the violation was in respect of provisions not affecting airworthiness requirements, detention of an aircraft pursuant to section 8.7 of the Aeronautics Act may not be possible. When the violations involve an air operator, a viable option is to suspend the air operator certificate relating to the particular aircraft operation under paragraph 7.7(1)(b) of the Aeronautics Act in addition to any enforcement action.
Notwithstanding section 7.31 of the Aeronautics Act, flights involving intermediate stops made on a scheduled or unscheduled basis may, where circumstances warrant, be treated as one flight. Where the facts giving rise to the violation remain the same on a flight with intermediate stops, it may be appropriate to lay charges in respect of the entire flight, as opposed to considering separate offences for each segment of the flight. A submission may be made when speaking to sentence, emphasizing the fact that during each segment of the flight there was a decision to operate in violation of the regulations.
The informal meeting offers an opportunity for the alleged offender who has received a Notice of Assessment of Monetary Penalty or a Notice of Suspension to discuss the sanction.
The alleged offender normally has 30 days from the date the notice is served, or sent, to accept the offer and meet with the RMAE. If a TATC hearing date has been set, the informal meeting can take place anytime before the TATC hearing.
During an informal meeting, the RMAE may enter into sanction negotiations with a view to reaching a settlement in the case and closing the file. Sanction negotiations shall not be entered into if
- the finding of a contravention is disputed; or
- the violation is associated with the cost of doing business (curfew violations).
The following factors shall be considered when deciding if the original penalty should be reduced:
- evidence of mitigating factors not previously identified during the investigation;
- the alleged offender's enforcement record;
- the seriousness of the offence;
- the attitude of the offender toward future compliance;
- whether deterrence can still be achieved through a negotiated settlement;
- the financial burden of costs associated with TATC proceedings on the alleged offender; and
- whether negotiations with a particular alleged offender would bring the enforcement program into disrepute.
The RMAE must not reduce the penalty by more than 30 percent except in extraordinary circumstances.
Discussions held during negotiations are without prejudice. Should no settlement be reached, new evidence revealed by the alleged offender during penalty negotiations shall not be disclosed by the Minister at subsequent proceedings. Under no circumstances shall the substance of negotiations, an agreement, or any matter relating to a negotiated penalty be discussed with or provided to the TATC.
An agreement shall not be conclusive, and a revised Notice of Assessment of Monetary Penalty or Notice of Suspension shall not be issued until the licence is surrendered or monetary penalty paid.
Should the alleged offender dispute the finding of a contravention, the sanction negotiations shall terminate. If new evidence of a statutory defence is presented, the matter shall be referred for further investigation prior to a determination of whether to withdraw or amend the original notice. Subsequently, the option to reopen negotiations would remain.
The authority to suspend under section 6.9 of the Aeronautics Act has been delegated to the CAE and the RMAEs. A punitive suspension of documents such as AOCs, AMOs, and POCs should only be considered when the CAD holder has a history of repeat offences (two or more significant offences) and when, in the opinion of the suspending authority, other measures (e.g., monetary penalties) would not promote future compliance. The suspending authority is responsible for reviewing the factors affecting the choice of sanction before the decision is made to suspend such a document. The suspending authority should consult with the functional managers responsible for certificate oversight to discuss the following:
- the co-ordination of concurrent regulatory actions, if applicable; and
- the severity of the sanction as a response to the violation.
Once a final decision to suspend has been made, the suspending authority is responsible for following the guidelines. Standard practice provides an opportunity for an informal meeting with the CAD holder. The suspending authority may involve the functional managers responsible for certificate oversight in the meeting with the CAD holder or his or her representative.