Chapter 6 - Investigations
- 6.1 Introduction
- 6.2 Priorities for Investigation
- 6.3 Monitoring of CADORS
- 6.4 Exemption from Application of Civil Aviation Rules
- 6.5 Warning and Canadian Charter of Rights and Freedoms
- 6.6 Co-ordination
- 6.7 Case Reports
- 6.8 Disclosure of Information
- 6.9 Full Disclosure
- 6.10 Exceptions to Full Disclosure
- 6.11 Search Warrants - Investigations
- 6.12 Return of Evidence - Investigations
- 6.13 Medical and Optometric Information
- 6.14 Handling of Tape Recordings
- 6.15 Tape Recordings of Interviews and Conversations
- 6.16 Cockpit Voice Recorder and Flight Data Recorder
- 6.17 ATS Data
- 6.18 Cases with Certification Implications
An investigation is a systematic search for documentation of the facts relevant to an event. All inspectors are responsible for detecting and reporting alleged violations by implementing the initial enforcement process. Only Aviation Enforcement inspectors, who have been trained as investigators, will conduct investigations. All investigations must be thoroughly and meticulously completed since the resulting action may affect both individual rights and public safety.
Priority shall be given to violations received from any Ministerial request. For all other violations, the RMAE shall assign an investigation priority level based on safety impact.
The Regional offices are to systematically monitor the CADORS and other reporting services in their Region in order to identify any possible violations concerning those reported incidents.
Additionally, following an accident, an EMS file must be opened and a systematic review of the validity of licences, ratings, certificates, etc., at the time of the accident must be carried out. This review must be done regardless of whether or not the accident was the result of a violation. As a matter of course, any perishable evidence, such as weather information, that might have a bearing on the accident must be secured without delay. Once the initial steps are complete, the EMS file should be kept open at least until the Transportation Safety Board of Canada (TSB) has issued their report, unless the evidence demonstrates that there was no violation.
Certain sections of the Aeronautics Act and the CARs provide for the granting of specific exemptions from the application of all or part of the offence-creating provisions. Usually the onus is on the alleged offender to provide proof of such an exemption.
In order to comply with the Canadian Charter of Rights and Freedoms, an investigator has the duty to advise and warn an alleged offender. To ensure that the rights of an alleged offender are not violated, a warning similar to the following should be given:
You may/will be charged with the offence of ________________________.
It is my duty to inform you that you need not say anything, you have nothing to hope from any promise of favour and nothing to fear from any threat whether or not you say anything; however, anything you do say may be used as evidence.
Do you understand?
It is my duty to inform you that you have the right to retain and instruct counsel without delay.
Do you understand?
Do you wish to contact counsel?
Do you wish to give a statement?
Co-ordination with Civil Aviation functional branches, the RCMP, provincial or municipal police forces, and other agencies is encouraged in order to maintain technical accuracy and perspective and to expedite the collection of all relevant facts.
A case report is a summary of the facts drawn up by the investigator for use by the RMAE. It is mandatory that a case report be prepared for each case when a sanction is contemplated.
The Transport Canada Civil Aviation policy is one of full disclosure to the CAD holder or his or her representative. The responsible manager shall disclose all evidence that may assist the CAD holder, even if Transport Canada does not propose to adduce it. However, file notes containing personal opinions as well as internal correspondence outlining how to proceed with sanctions shall not be disclosed.
If a TATC hearing is scheduled, the dispatch of the disclosed information should be arranged so that the CAD holder receives the information at least 30 calendar days before the hearing date or as soon as practicable if the hearing is to be held before 30 days. Full disclosure must be made at least seven days before the hearing. Full disclosure can occur at any earlier time on the request of subject of the investigation.
The purposes of the full disclosure policy are listed below:
- to ensure that the CAD holder knows the case to be met and is able to make full answer and defence;
- to encourage the resolution of facts at issue; and
- to encourage the resolution of the case prior to the hearing.
Full disclosure means that the CAD holder will be given at least the following, as relevant to the case:
- particulars of the circumstances surrounding the case;
- copies of relevant written statements (these may include witness statements, investigative notes, and summaries);
- an appropriate opportunity to examine electronic statements and/or other medium, i.e., air traffic service (ATS) tapes;
- a copy of relevant electronic evidence, where such taped evidence exists;
- particulars of the CAD holder's enforcement record, if applicable;
- copies of relevant expert witness reports - caution should be exercised so that privileged information is not released or that it is not released to the wrong parties;
- copies of relevant documents and photographs that the case presenting officer (CPO) intends to introduce into evidence during the hearing;
- a copy of any search warrant obtained and executed during the investigation - caution must be exercised where privileged information is at issue, i.e., in-camera hearing;
- copy of the Notice of Suspension or Notice of Assessment of Monetary Penalty;
- particulars of relevant evidence intended to be relied on at the hearing and any information known to the CPO that the CAD holder may use to impeach the credibility of a Department witness in respect of the facts at issue in the case;
- if applicable, a copy of the flow chart relating to an airworthiness matter; and
- the names of witnesses, their employment and their address, unless there is evidence to indicate that the witness will be harassed or intimidated prior to the hearing. The witnesses should be informed of the action, and inquiries should be made as to whether there is any problem anticipated.
The information that is disclosed should be sent to the CAD holder by registered mail.
Certain information that is related to items of public interest may be exempt from following:
- information concerning a confidential informant, an ongoing investigation, or investigative techniques;
- information that may be considered a confidence of the Queen's Privy Council for Canada; and
- information that cannot lawfully be disclosed or that would be injurious to international relations, national defence or security if disclosed.
During the course of an investigation, the powers of entry and seizure available to an inspector conducting an inspection are no longer applicable (Chapter 2 - Inspections, section 2.2(5)).
- If entry or surrender of evidence is refused by the occupant or there are grounds to believe that entry or surrender of evidence will be refused, authorization for entry, search and seizure must be obtained through a search warrant issued pursuant to sections 487-492 of the Criminal Code;
- The approval of the RMAE shall be obtained prior to requesting a search warrant;
- The authority for the use of force is inherent in a search warrant. Any use of force shall be carried out by a peace officer. The investigator shall not use force;
- The assistance of a peace officer is not required if the use of force is not necessary; and
- A search warrant is only used by the Minister of Transport to support Enforcement investigations and, as a result, its use is limited to Enforcement staff.
Because a search warrant is obtained under the Criminal Code, anything seized during the search is subject to the provisions stipulated under section 489.1, Restitution of Property or Report By Peace Officer, and/or section 490.1, Detention of Things Seized, of the Criminal Code.
Evidence that was obtained with the consent of the owner shall be returned in the same manner as items seized under paragraph 8.7(1)(d) of the Aeronautics Act. CAR 103.09 details the procedure to be followed.
Information provided pursuant to subsection 6.5(1) of the Aeronautics Act (medical hazards to aviation safety) is privileged and no person shall be required to disclose it or give evidence relating to it in any legal, disciplinary or other proceedings. The information so provided shall not be used in any such proceedings (subsection 6.5(5) of the Aeronautics Act).
If the Minister requires the medical records of a CAD holder to substantiate a case before the TATC or in court, the custodian of the records or the physician in question shall be subpoenaed. This action is not necessary where the CAD holder voluntarily provides the records or gives permission to release the records.
When these methods are not likely to produce results, a search warrant may be used by the RMAE pursuant to a charge under CAR 602.02(b). Whenever a search warrant is required to obtain medical records, the RMAE shall inform the CAE and the RDCA, who will notify the Director General, Civil Aviation (DGCA), with a briefing note well in advance of obtaining the search warrant.
If there are reasonable grounds to believe that a physician is withholding information regarding a medical condition that is likely to constitute a hazard to aviation safety, the Regional Aviation Medical Officer (RAMO) will inform the Director, Civil Aviation Medicine (DCAM), who will initiate the appropriate action.
Tape recordings constitute a record, as defined in TP 104 (Administrative Policy Manual) and TP 111 (Records Scheduling and Disposal). As such, they must be handled in accordance with those publications.
- A witness or CAD holder must consent to a recording being made; and
- A recorded telephone conversation with a witness or CAD holder may be used as evidence in circumstances where a personal interview cannot be arranged.
Cockpit voice recorder / flight data recorder recordings shall not be used by Transport Canada Civil Aviation in any Enforcement matters.
Recordings of ATS radio communications, transcripts of the recordings, and Radar Data Examination (RADEX) program data may be used as evidence in any proceedings but shall not be used to detect contraventions.
Upon request, an investigator shall provide copies of a recording of ATS radio communications or a transcript of the recording to an alleged offender or his or her representative. Except where required by law, copies of the tape or transcripts shall not be disclosed for civil proceedings.
Where Canadian operators are involved in contraventions that may have certification implications (e.g., AOC, AMO), the RMAE shall advise the appropriate functional branch with operational authority for that certificate holder.