C-62
First Session, Thirty-eighth Parliament,
53-54 Elizabeth II, 2004-2005
HOUSE OF COMMONS OF CANADA
BILL C-62
An Act to amend the Aeronautics Act and to make consequential amendments to other Acts
first reading, September 28, 2005
THE MINISTER OF TRANSPORT
90322
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Aeronautics Act and to make consequential amendments to other Acts”.
SUMMARY
This enactment deals with integrated management systems and authorizes the establishment of voluntary reporting programs under which information relating to aviation safety and security may be reported. It also authorizes the designation of industry bodies to certify persons undertaking certain aeronautical activities. Other powers are enhanced or added to improve the proper administration of the Act, in particular powers granted to certain members of the Canadian Forces to investigate aviation accidents involving both civilians and a military aircraft or aeronautical facility.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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1st Session, 38th Parliament,
53-54 Elizabeth II, 2004-2005
house of commons of canada
BILL C-62
An Act to amend the Aeronautics Act and to make consequential amendments to other Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. A-2
AERONAUTICS ACT
R.S., c. 33 (1st Supp.), s. 1; 2004, c. 15, s. 2(2)
1. (1) The definitions “aircraft”, “Canadian aviation document”, “commercial air service” and “Minister” in subsection 3(1) of the Aeronautics Act are replaced by the following:
“aircraft”« aéronef »
“aircraft” means any machine capable of deriving support in the atmosphere from reactions of the air, and includes a rocket;
“Canadian aviation document”« document d’aviation canadien »
“Canadian aviation document” means, subject to subsection (3), any licence, permit, accreditation, certificate or other document issued by the Minister under Part I to or with respect to any person or in respect of any aeronautical product, aerodrome, other facility, equipment or service;
“commercial air service”« service aérien commercial »
“commercial air service” means any use of aircraft for hire or reward but does not include use of an aircraft that
(a) is being used for private purposes under a fractional ownership program, or
(b) is operated on a cost-recovery basis and is being used for the conduct of services of Her Majesty in right of Canada or of a province, of an agency of Her Majesty in either of those rights, of other governments, of public organizations that provide services relating to aeronautics in Canada or abroad or of organizations responsible for doing so pursuant to an Act of Parliament or of a province;
“Minister”« ministre »
“Minister” means
(a) subject to paragraph (b), the Minister of Transport, and
(b) the Minister of National Defence — or, under the direction of the Minister of National Defence, the Chief of the Defence Staff appointed under the National Defence Act — with respect to any matter relating to defence, including any matter relating to any of the following:
(i) military personnel, a military aeronautical product, a military aerodrome, any other military facility relating to aeronautics or military equipment, of Canada or a foreign state, and
(ii) a service relating to aeronautics provided by such personnel, by means of such an aeronautical product or such equipment or at such an aerodrome or other facility;
(2) Subsection 3(1) of the Act is amended by adding the following in alphabetical order:
“fractional ownership program”« programme de multipropriété »
“fractional ownership program” means a program that conforms with the regulations and in which two or more aircraft are available, subject to certain conditions, for use by the participants in the program, who each own at least part of one of the aircraft;
“instrument”« texte d’application »
“instrument” means a regulation made under this Act, an order made under this Act by the Minister or a person authorized by the Minister to do so or a notice issued under section 5.1;
“violation”« violation »
“violation” means a contravention of this Act or of an instrument, a security measure or an emergency direction made under this Act that is designated as a violation by regulations made under paragraph 8(a).
R.S., c. 33 (1st Supp.), s. 1
(3) Subsection 3(2) of the Act is replaced by the following:
Other Minister
(2) Despite paragraph (a) of the definition “Minister” in subsection (1), the Governor in Council may designate any Minister other than the Minister of Transport as the Minister for the purposes of this Act.
2. The Act is amended by adding the following after section 3:
PURPOSE OF THE ACT
Purpose
3.1 The purpose of this Act is to provide for safe, efficient and environmentally responsible aeronautical activities, by means including
(a) promoting and providing for the safety and security of the public and persons who perform aeronautical activities or work in aerodromes or other facilities relating to aeronautics;
(b) recognizing the responsibility of persons regulated under this Act for the safety and security of their activities;
(c) encouraging the cooperation and participation of persons regulated under this Act and of other interested persons in the development and implementation of modern, flexible and efficient policies, programs and laws for the continuing enhancement of the safety and security of aeronautical activities;
(d) establishing effective and efficient compliance and enforcement processes; and
(e) ensuring that Canada can meet its international obligations relating to aeronautical activities.
1992, c. 4, s. 2
3. Subsection 4(1) of the Act is replaced by the following:
Application of Part
4. (1) Subject to any regulations made under paragraph 4.9(z), this Part applies in respect of aeronautics to all persons and to all aeronautical products and other things in Canada, to all persons outside Canada who hold Canadian aviation documents and to all Canadian aircraft and passengers and crew members on those aircraft outside Canada.
R.S., c. 33 (1st Supp.), s. 1
4. (1) Section 4.2 of the Act is renumbered as subsection 4.2(1).
R.S., c. 33 (1st Supp.), s. 1
(2) Paragraphs 4.2(1)(b) and (c) of the Act are replaced by the following:
(b) construct, operate and maintain aerodromes and, subject to section 10 of the Civil Air Navigation Services Commercialization Act, construct, operate and maintain other facilities relating to aeronautics and establish and provide services relating to aeronautics;
(c) establish and provide facilities and services, subject to section 10 of the Civil Air Navigation Services Commercialization Act, for the collection, publication or dissemination of information relating to aeronautics and enter into agreements with any person or branch of government for the collection, publication and dissemination of that information;
R.S., c. 33 (1st Supp.), s. 1
(3) Paragraphs 4.2(1)(e) and (f) of the Act are replaced by the following:
(e) control and manage aircraft and aeronautical equipment used for the conduct of services of Her Majesty in right of Canada or of a province, of other governments, of public organizations that provide services relating to aeronautics in Canada or abroad or of organizations responsible for doing so pursuant to an Act of Parliament or of a province;
R.S., c. 33 (1st Supp.), s. 1
(4) Paragraph 4.2(1)(g) of the Act is replaced by the following:
(g) provide services relating to aeronautics to Her Majesty in right of Canada or of a province, to other governments, to public organizations that provide services relating to aeronautics in Canada or abroad or organizations responsible for doing so pursuant to an Act of Parliament or of a province, or to international organizations;
R.S., c. 33 (1st Supp.), s. 1
(5) Paragraphs 4.2(1)(j) and (k) of the Act are replaced by the following:
(j) cooperate with the aeronautics authorities of other governments or with organizations acting on behalf of other governments, in Canada or abroad, or enter into administrative arrangements with them, with respect to any matter relating to aeronautics;
(k) investigate, examine and report on the operation and development of aeronautical activities;
R.S., c. 33 (1st Supp.), s. 1
(6) Paragraph 4.2(1)(n) of the Act is replaced by the following:
(n) subject to subsection (3), investigate matters concerning aviation safety or security; and
(7) Section 4.2 of the Act is amended by adding the following after subsection (1):
Investigations by Minister of Transport
(2) An investigation carried out by the Minister of Transport under paragraph (1)(n) may not have as its purpose the making of findings as to the causes and contributing factors of an aviation accident or incident.
Exception — investigations of military-civilian occurrences
(3) Investigations into military-civilian occurrences within the meaning of Part II shall be carried out in accordance with that Part by the Airworthiness Investigative Authority, designated by the Minister of National Defence under section 11.
5. The Act is amended by adding the following after section 4.3:
Subdelegation
4.31 Any person whom the Minister of National Defence has authorized to exercise or perform powers, duties or functions relating to airworthiness may, in accordance with the authorization, subdelegate any of those powers, duties or functions to any person under the person’s authority.
R.S., c. 33 (1st Supp.), s. 1
6. Subsection 4.4(6) of the Act is replaced by the following:
Security for payment of charges
(6) The Governor in Council may make regulations requiring persons who are subject to charges imposed under this section to deposit each year with the Minister security, in the form of a bond or letter of credit satisfactory to the Minister and in an amount satisfactory to the Minister, to ensure full payment of the charges to be imposed in the next following year.
Default of payment
(6.1) The Minister may suspend or refuse to issue, renew or amend a Canadian aviation document, or suspend or refuse to grant, renew or amend any privilege accorded by one, if the applicant for or the holder of the document, or the owner, operator or provider, as the case may be, of the aeronautical product, aerodrome, other facility, equipment or service to which the document relates, is in default of payment of any charge owed to the Minister under this section.
Notice
(6.2) The Minister shall serve the applicant, holder, owner, operator or provider, as the case may be, with notice of a decision made under subsection (6.1) and, in the case of a suspension, of the effective date of the suspension, which may not be earlier than 30 days after the notice is served.
Non-application of certain provisions
(6.3) Subsections (6.1) and (6.2) do not apply to a member of the Canadian Forces acting in the circumstances in the course of their duties in relation to a Canadian aviation document issued in respect of a military aeronautical product, a military aerodrome, any other military facility relating to aeronautics, military equipment, or a service relating to aeronautics provided by means of such an aeronautical product or such equipment or at such an aerodrome or facility.
R.S., c. 33 (1st Supp.), s. 1
7. (1) Subsection 4.5(1) of the Act is replaced by the following:
Seizure and detention for charges
4.5 (1) If the amount of any charge and interest on the charge due by a person that has been imposed under section 4.4 has not been paid, then, in addition to any other remedy available for the collection of the amount and whether or not proceedings in respect of it have already been begun, on application to the superior court of the province in which any aircraft owned or operated by the person is situated the Minister may obtain an order of the court, issued on any terms that it considers necessary, authorizing the Minister to seize and detain the aircraft.
R.S., c. 33 (1st Supp.), s. 1
(2) Subsection 4.5(2) of the English version of the Act is replaced by the following:
Application ex parte
(2) If the Minister has reason to believe that a person referred to in subsection (1) is about to leave Canada or take from Canada any aircraft owned or operated by them, then the application referred to in subsection (1) may be made ex parte but all the other provisions of that subsection remain unchanged.
R.S., c. 33 (1st Supp.), s. 1
8. (1) The portion of section 4.9 of the Act before paragraph (a) is replaced by the following:
Aeronautics regulations
4.9 The Governor in Council may make any regulation respecting aeronautics that prescribes anything that by this Part is to be prescribed or that is generally for the carrying out of the purposes and provisions of this Part, including regulations respecting
R.S., c. 33 (1st Supp.), s. 1
(2) Paragraphs 4.9(f) and (g) of the Act are replaced by the following:
(f) noise emanating from aerodromes and aircraft and aircraft engine emissions;
(g) the certification of air carriers and other persons that operate aircraft for passenger transportation;
R.S., c. 33 (1st Supp.), s. 1
(3) Paragraph 4.9(i) of the English version of the Act is replaced by the following:
(i) the conditions under which persons or goods, including personal belongings, baggage and cargo, may be transported by aircraft;
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 7(4)(F)
(4) Paragraphs 4.9(p) to (s) of the Act are replaced by the following:
(s) the keeping and preservation of records, documents and information relating to aerodromes, to activities with respect to aeronautics of persons who hold Canadian aviation documents and to aeronautical products and equipment and facilities used to provide services relating to aeronautics, and the provision to the Minister of the records, documents and information;
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 7(5)
(5) Paragraphs 4.9(v) and (w) of the Act are replaced by the following:
(v) measures to mitigate the negative impact of fatigue in respect of the aeronautical activities of crew members, air traffic controllers, persons engaged in the maintenance or installation of aeronautical products or any other person who provides services relating to aeronautics that have a direct impact on aviation safety or security;
(w) a requirement to subscribe for and carry liability insurance on the part of operators of aerodromes, of other facilities relating to aeronautics and of aeronautical equipment, on the part of providers of services relating to aeronautics and on the part of organizations designated under subsection 5.31(1), and the minimum amount of that insurance;
(x) a requirement to subscribe for and carry liability insurance on the part of registered owners and operators of aircraft, if they are not required to subscribe for and carry liability insurance by regulations made by the Canadian Transportation Agency, and the minimum amount of that insurance;
(y) the provision of aviation weather services by persons other than Her Majesty in right of Canada; and
(z) the application of the Convention on International Civil Aviation signed at Chicago, 7 December 1944, as amended from time to time.
9. The Act is amended by adding the following after section 4.9:
Investigations by Minister of National Defence
4.901 The Governor in Council may make regulations respecting investigations carried out by the Minister of National Defence under paragraph 4.2(1)(n), including regulations respecting:
(a) the preservation, protection and removal of an aircraft involved in an accident, of personal belongings, baggage and cargo on the aircraft, of any records relating to the aircraft or its flight and of any part of the aircraft, as well as the testing of any part of the aircraft and the protection of sites of aircraft accidents;
(b) the investigation of any accident involving an aircraft, any alleged contravention of a provision of this Act or of an instrument made under this Act, or any incident involving an aircraft that, in the opinion of the Minister, endangered the safety of persons; and
(c) the taking of statements by investigators for the purpose of an investigation referred to in paragraph (b).
1996, c. 20, s. 101
10. Subsection 4.91(1) of the Act is replaced by the following:
Regulations
4.91 (1) The Governor in Council may make regulations authorizing the Minister to make orders directing the ANS Corporation to maintain or increase the level of civil air navigation services that it provides, or introduce a civil air navigation service, in accordance with any terms and conditions that the Minister specifies in the orders. However, the Minister may make an order directing the introduction of a service only if an aeronautical safety study has been carried out and the Minister is of the opinion that the results of the study justify the introduction of the service.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 8; 1996, c. 10, s. 204, c. 20, s. 102; 2004, c. 15, s. 8
11. Sections 5 and 5.1 of the Act are replaced by the following:
Service — general
5. (1) Subject to subsection (2), all service of notices or other documents required or authorized to be served under this Act shall be by personal service, by registered mail sent to the recipient’s last known address or by any other means prescribed by regulations made under subsection (3).
Service on Minister
(2) All service of notices or other documents required or authorized to be served under this Act on the Minister shall be by registered mail sent to the Minister’s office, by the notice or other document being left at the Minister’s office or by any other means prescribed by regulations made under subsection (3).
Service — regulations
(3) The Governor in Council may make regulations respecting the service of notices or other documents required or authorized to be served under this Act, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served.
Restrictions and prohibitions for safety or security purposes
5.1 The Minister or any person authorized by the Minister may by notice prohibit or restrict the operation of aircraft on or over any area or within any airspace, either absolutely or subject to any exceptions or conditions that the Minister or authorized person specifies, if, in the opinion of the Minister or authorized person, the prohibition or restriction is necessary for aviation safety or security, is necessary for the protection of the public or is in the public interest.
12. The Act is amended by adding the following after section 5.3:
Designated Organizations
Designation
5.31 (1) The Minister of Transport may designate, from among organizations that meet the conditions prescribed by regulation, one or more organizations whose activities relate to aeronautics to exercise or perform any of the powers, duties and functions set out in subsection (2). The Minister shall give a designated organization a certificate of designation setting out its powers, duties and functions and the terms and conditions under which they may be exercised or performed.
Designated organizations
(2) A designated organization may exercise or perform the powers, duties and functions set out in its certificate of designation, which may be any of the following:
(a) the establishment of standards for the certification of persons undertaking aeronautical activities prescribed by regulation, and the certification of the persons;
(b) the establishment of rules governing the prescribed aeronautical activities; and
(c) the establishment of standards for the issuing of approvals and authorizations for activities that are subject to the rules or any regulations or orders made under this Part, and the issuing of the approvals and authorizations.
Powers necessary
(3) A designated organization has all the powers necessary to monitor compliance with the standards and rules that it establishes.
Certification
(4) A designated organization that is authorized under its certificate of designation to certify persons undertaking prescribed aeronautical activities may, in accordance with the certification standards that it has established, renew, amend, endorse, suspend or cancel the certification.
Authorizations and approvals
(5) A designated organization that is authorized under its certificate of designation to issue approvals and authorizations may, in accordance with the standards that it has established for issuing approvals and authorizations, renew, amend, suspend or cancel the approvals or authorizations.
Exercise of powers
(6) The designated organization shall exercise the powers and perform the duties and functions conferred on it in the manner prescribed by regulation.
Request for review
5.32 (1) An applicant for or holder of a certificate, approval or authorization may file a written request with the Tribunal for a review of a decision made by a designated organization under subsection 5.31(2) not to certify them or not to issue them an approval or authorization, or of a decision made by a designated organization under subsections 5.31(4) or (5), within 30 days after the day on which they were served with the notice of the decision or within any further time that the Tribunal allows on application.
Non-payment of charges
(2) An applicant or holder may not request under subsection (1) a review of a decision relating to the non-payment of charges imposed under section 5.35.
Time and place for review
(3) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review hearing and shall notify the designated organization and the person who filed the request of the time and place in writing.
Review procedure
(4) The member of the Tribunal assigned to conduct the review shall provide the designated organization and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Determination by member
(5) The member of the Tribunal may determine the matter by confirming the designated organization’s decision or referring the matter to the Minister for consideration.
Right of appeal
5.33 (1) Within 30 days after the day on which they received notice of the determination made under subsection 5.32(5), the applicant for or holder of a certificate, approval or authorization may appeal the determination to the Tribunal.
Loss of right of appeal
(2) An applicant or holder who does not appear at a review hearing may not appeal the determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal may dismiss the appeal or refer the matter to the Minister for consideration.
Minister
5.34 If a matter is referred to the Minister for consideration under subsection 5.32(5) or 5.33(3), the Minister may confirm, revise or rescind the designated organization’s decision. The Minister’s decision is final.
Charges
5.35 A designated organization may impose on persons — or classes of persons — undertaking prescribed aeronautical activities charges that relate to costs reasonably incurred by the designated organization in the performance or exercise of its powers, duties and functions and that it establishes in accordance with any charging principles prescribed by regulation.
Consultation
5.36 (1) Before establishing or revising a standard or rule referred to in subsection 5.31(2) or a charge referred to in section 5.35, a designated organization shall consult with persons undertaking the prescribed aeronautical activities.
Publication
(2) The designated organization shall publish those standards and rules and the amount of any charge on any Internet site that it uses to describe its activities, and shall make all information about the standards, rules and charges available to the public for consultation at its offices.
Review by the Minister
5.37 (1) The Minister may, on application by a directly affected person brought within 60 days after the day on which the amount of any charge referred to in subsection 5.36(2) was published, review the amount of the charge.
Notice
(2) The Minister shall as soon as possible notify the designated organization of the application.
Effect of application
(3) An application for review does not prevent the charge from becoming effective or prevent the designated organization from imposing the charge pending the outcome of the review.
Minister’s decision
(4) After examining the application and any supporting documentation, the Minister may confirm the amount of the charge or direct the designated organization to revise the amount and to refund any overpayment.
Notification of decision
(5) The Minister shall as soon as practicable notify the applicant and the designated organization of the decision and provide written reasons for it.
Compliance
(6) The designated organization shall comply with the Minister’s decision. If the Minister has directed the designated organization to revise the amount of a charge it need not conduct the consultation referred to in subsection 5.36(1), but shall publish the revised amount in accordance with subsection 5.36(2).
Decision final
(7) The Minister’s decision is final.
Regulations
5.38 The Governor in Council may make regulations
(a) prescribing the conditions an organization must meet for the Minister to designate it under subsection 5.31(1);
(b) respecting the manner in which a designated organization is to exercise or perform its powers, duties and functions;
(c) prescribing aeronautical activities for the purposes of section 5.31; and
(d) establishing charging principles for the establishment of charges referred to in section 5.35.
Management Systems
Regulations
5.39 The Governor in Council may make regulations respecting
(a) the establishment and implementation of management systems by holders of Canadian aviation documents to provide for the safety of aeronautical activities and compliance with this Part;
(b) the designation by a holder of a Canadian aviation document of an individual responsible for the establishment and implementation of management systems on the holder’s behalf; and
(c) reviews and audits by holders of Canadian aviation documents of their management systems.
Order
5.391 (1) The Minister may by order require a holder of a Canadian aviation document to enhance its management systems, or to take corrective measures respecting the systems, if the Minister considers that the systems have deficiencies that risk compromising the safety of aeronautical activities.
Compliance
(2) The holder of a Canadian aviation document shall comply with the order.
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to an order made under subsection (1).
Information confidential
5.392 (1) If a holder of a Canadian aviation document has a management system with a process that requires or encourages its employees to disclose to it any thing or circumstance that could present a risk to the safety of aeronautical activities, including the fact that there has been a contravention of a provision of this Act or of an instrument made under this Act, then any information disclosed under the process that comes into the Minister’s possession is confidential, and the Minister shall not disclose it or make it available except in the following circumstances:
(a) a court or other body that has jurisdiction to compel the production or discovery of information orders its disclosure;
(b) the information is disclosed or made available in a form that prevents it from being related to an identifiable person; or
(c) the Minister considers that disclosing the information or making it available is necessary for the purposes of section 7.1.
Use of information in proceedings
(2) Information disclosed under a process referred to in subsection (1) may not be used in the taking of any measure, or in any proceedings, against the document holder or the employee who disclosed it for a contravention of this Act or of an instrument made under this Act.
Information confidential
5.393 (1) If an operator of aircraft has a management system with a process for the collection, analysis and use of information derived from a flight data recorder, then any information collected under the process that comes into the Minister’s possession is confidential, and the Minister shall not disclose it or make it available except in the following circumstances:
(a) a court or other body that has jurisdiction to compel the production or discovery of information orders its disclosure;
(b) the information is disclosed or made available in a form that prevents it from being related to an identifiable person; or
(c) the Minister considers that disclosing the information or making it available is necessary for the purposes of section 7.1.
Use of information in proceedings
(2) Information collected under a process referred to in subsection (1) may not be used in the taking of any measure, or in any proceedings, against the operator, the operator’s crew members or other persons employed or engaged by the operator for a contravention of this Act or of an instrument made under this Act.
Flight Data Analysis Agreements
Agreements
5.394 (1) The Minister, for the purpose of promoting aviation safety, may enter into an agreement with an operator of aircraft respecting the collection, analysis, use and disclosure of information derived from a flight data recorder.
Information confidential
(2) Information disclosed to the Minister under an agreement referred to in subsection (1) is confidential and shall not knowingly be disclosed or made available except in accord­ance with the agreement, unless a court or other body that has jurisdiction to compel the production or discovery of information orders its disclosure.
Use of information
(3) Information disclosed to the Minister under an agreement referred to in subsection (1) may not be used in the taking of any measure, or in any proceedings, against the operator, the operator’s crew members or other persons employed or engaged by the operator for a contravention of this Act or of an instrument made under this Act.
Voluntary Reporting
Aviation safety and security program
5.395 (1) The Minister may establish, in accordance with the regulations, a program to promote aviation safety and security under which a person may report in accordance with the regulations any information relating to aviation safety and security, including the fact that they have contravened a provision of this Act or of an instrument or a security measure made under this Act.
Designation
(2) The Minister may designate a person or body to administer, in accordance with the regulations, the program set out in subsection (1).
Protection
5.396 (1) If a person reports a contravention under the program referred to in subsection 5.395(1), they may not, except in the circumstances specified in subsection (2), be found to have committed the contravention in any proceedings under this Act before any court or other body that has jurisdiction to hear the matter.
Exceptions
(2) A person does not have the protection of subsection (1) if
(a) the contravention that they committed was
(i) a contravention of this Act, or of an instrument or a security measure made under this Act, that relates to an aviation accident the reporting of which is mandatory under regulations made under section 24.1 of this Act or made under section 31 of the Canadian Transportation Accident Investigation and Safety Board Act,
(ii) an offence set out in subsection 7.3(1) or 7.41(1), or any other contravention of this Act, or of an instrument or a security measure made under this Act, that was committed wilfully, or
(iii) a contravention of any provision that is prescribed by regulation;
(b) within the two-year period before the contravention, they have been found to have contravened this Act, or an instrument or a security measure made under this Act, or they have made use of the protection of subsection (1) in any proceeding before a competent tribunal in respect of a contravention of this Act or of an instrument or a security measure made under this Act;
(c) their employer has a management system established under regulations made under section 5.39 with a process that requires or encourages employees to disclose to their employer any thing or circumstance that could present a risk to the safety of aeronautical activities, and they did not disclose the contravention to their employer in accordance with that process; or
(d) their employer has a security management system established under regulations made under section 4.71 with a process that requires or encourages employees to disclose to their employer any thing or circumstance that could present a risk to aeronautical security, and they did not disclose the contravention to their employer in accordance with that process.
Use of information
5.397 (1) The Minister and any person or body designated under subsection 5.395(2) may, subject to this section, make any use that they consider necessary in the interests of aviation safety and security of any information reported under the program referred to in subsection 5.395(1).
Information confidential
(2) Information reported under the program referred to in subsection 5.395(1) that could be related to an identifiable person is confidential and shall not knowingly be disclosed or made available.
Legal proceedings
(3) No person may be required, in connection with any legal, disciplinary or other proceedings, to give evidence relating to any information referred to in subsection (2) or to make any oral statement or produce any written statement containing such information.
Use prohibited
(4) Information reported under the program referred to in subsection 5.395(1) may not be used against the person who reported it in any legal, disciplinary or other proceedings.
Regulations
5.398 The Governor in Council may, by regulation,
(a) provide for the manner in which the program referred to in subsection 5.395(1) is to be established and administered;
(b) establish, for the program referred to in subsection 5.395(1), the time within which reports are to be made, the manner in which they are to be made and the manner in which they are to be dealt with; and
(c) specify, for the purpose of subparagraph 5.396(2)(a)(iii), contraventions for which a person does not have the protection of subsection 5.396(1).
R.S., c. 33 (1st Supp.), s. 1
13. The heading before section 5.4 of the Act is replaced by the following:
Aerodrome Zoning
1992, c. 4, s. 10(1)
14. (1) The portion of subsection 5.4(1) of the Act before the definition “airport site” is replaced by the following:
Definitions
5.4 (1) The following definitions apply in this section and sections 5.5 to 5.85.
R.S., c. 33 (1st Supp.), s. 1
(2) The definitions “airport site” and “federal airport” in subsection 5.4(1) of the Act are repealed.
R.S., c. 33 (1st Supp.), s. 1
(3) The definition “éléments” in subsection 5.4(1) of the French version of the Act is repealed.
R.S., c. 33 (1st Supp.), s. 1
(4) The definition “owner” in subsection 5.4(1) of the Act is replaced by the following:
“owner”« propriétaire »
“owner”, in respect of land or a building, structure or object, includes any person — other than a lessee — who has a right, title or interest in the land, building, structure or object, or in the province of Quebec has a real right in it or is a trustee in respect of it;
(5) Subsection 5.4(1) of the Act is amended by adding the following in alphabetical order:
“aerodrome site”« aérodrome désigné »
“aerodrome site” means any land that is not part of an existing aerodrome, that is declared by order of the Governor in Council to be required for use as an aerodrome and that is either
(a) federal real property or a federal immovable within the meaning of section 2 of the Federal Real Property and Federal Immovables Act, or
(b) the subject of a notice of intention to expropriate registered under section 5 of the Expropriation Act;
“federal aerodrome”« aérodrome fédéral »
“federal aerodrome” means an aerodrome owned by the federal government and operated either by the federal government or by an airport authority pursuant to a lease;
(6) Subsection 5.4(1) of the French version of the Act is amended by adding the following in alphabetical order:
« ouvrages »“object”
« ouvrages » Est assimilée à un ouvrage la végétation.
R.S., c. 33 (1st Supp.), s. 1
(7) Subsections 5.4(2) and (3) of the Act are replaced by the following:
Zoning regulation
(2) The Governor in Council may make regulations for the purposes of
(a) preventing lands adjacent to or in the vicinity of a federal aerodrome or an aerodrome site from being used or developed in a manner that is, in the Minister’s opinion, incompatible with the operation of an aerodrome;
(b) preventing lands adjacent to or in the vicinity of an aerodrome or aerodrome site from being used or developed in a manner that is, in the Minister’s opinion, incompatible with the safe operation of an aerodrome or aircraft; and
(c) preventing lands adjacent to or in the vicinity of equipment or facilities used to provide services relating to aeronautics from being used or developed in a manner that would, in the Minister’s opinion, cause interference with signals or communications to and from aircraft, that equipment or those facilities.
Conditions precedent
(3) The Governor in Council may not make a zoning regulation under paragraph (2)(a) unless
(a) the Minister, after making a reasonable attempt to do so, has been unable to reach an agreement with the government of the province in which the lands are situated providing for the use or development of the lands in a manner that is compatible with the operation of an aerodrome; or
(b) in the Minister’s opinion, it is necessary to immediately prevent the use or development of the lands in a manner that is incompatible with the operation of an aerodrome .
R.S., c. 33 (1st Supp.), s. 1
15. Subsection 5.6(1) of the Act is replaced by the following:
Publication of zoning regulations
5.6 (1) In addition to the publication required by the Statutory Instruments Act, there shall be published as soon as a zoning regulation is made, in two successive issues of at least one newspaper, if any, serving the area to which the zoning regulation relates, either a copy of the zoning regulation or a notice indicating that the zoning regulation has been made and that its text is available at the official Internet site of the Canada Gazette.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 1, s. 5; 2001, c. 4, s. 54(F)
16. (1) Subsections 5.7(1) to (3) of the Act are replaced by the following:
Notice of entry to enforce compliance
5.7 (1) The Minister may by notice in writing to an owner or lessee who is using lands, or has or is using a building, structure or object on any lands, in contravention of a zoning regulation, advise the owner or lessee that the Minister intends to enter on the lands and take any steps that might be reasonably necessary to prevent the continuation of the contravening use or to remove, alter or destroy the building, structure or object unless, before the date that the Minister specifies in the notice — which may not be earlier than 30 days after the day on which the notice is served or last published under subsection (2) — the contravening use is permanently discontinued or the building, structure or object is removed, altered or destroyed to the extent described by the Minister in the notice, as the case may require.
Notice to contain statement
(2) The notice shall
(a) contain a statement of the provisions of subsection (3); and
(b) be served on the owner or lessee or, if the Minister is unable to serve the notice after reasonable attempts to do so, be
(i) posted on the land, building, structure or object to which the notice relates, and
(ii) published in two successive issues of at least one newspaper, if any, serving the area in which the land, building, structure or object is situated and in two successive issues of the Canada Gazette.
Objection
(3) The owner or lessee may, within 30 days after the day on which the notice is served or last published under subsection (2), serve on the Minister an objection in writing indicating the nature of the objection and the grounds on which it is based.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 1, s. 5
(2) Subsections 5.7(5) and (6) of the Act are replaced by the following:
Notice of intentions after objections
(5) The Minister shall, as soon as possible after providing a full opportunity to be heard to the owner or lessee in relation to the objection, serve notice on them indicating whether the Minister intends to give effect to the objection, and if not, the reasons why not.
Entry
(6) The Minister may, subject to subsection 8.7(4), enter on lands and take any steps that the Minister considers reasonably necessary to prevent the continuation of a contravening use, or to remove, alter or destroy a contravening building, structure or object, if
(a) a notice to the owner or lessee under subsection (1) has been served, or posted and published, in accordance with subsection (2);
(b) no notice of objection by the owner or lessee has been served on the Minister in accordance with subsection (3) or, if one has been, a full opportunity to be heard has been provided to the owner or lessee and the Minister has notified them in accordance with subsection (5) that the Minister does not intend to give effect to the objection; and
(c) the owner or lessee continues to use the lands, or to have or use any building, structure or object on the lands, in contravention of the zoning regulation in respect of which the notice was issued.
Claims of Her Majesty
(6.1) The expenses incurred by the Minister in taking steps to prevent the continuation of the contravening use or to remove, alter or destroy any building, structure or object referred to in subsection (1), and all associated costs, are claims of Her Majesty and are recoverable as such against the person referred to in subsection (1) in a court of competent jurisdiction.
1992, c. 4, s. 11
17. Section 5.81 of the Act is replaced by the following:
Agreements with a provincial authority
5.81 (1) The Minister may enter into an agreement with a provincial authority authorizing it to regulate the use and development of lands within its jurisdiction for the purposes of
(a) preventing lands adjacent to or in the vicinity of an aerodrome or aerodrome site from being used or developed in a manner that is incompatible with the safe operation of an aerodrome or aircraft; and
(b) preventing lands adjacent to or in the vicinity of equipment or facilities used to provide services relating to aeronautics from being used or developed in a manner that would cause interference with signals or communications to and from aircraft, to and from that equipment or to and from those facilities.
Procedures for provincial regulations
(2) The provincial authority may, under the agreement, exercise and administer the power to make regulations referred to in subsection (1) as if the power were within its jurisdiction, and make those regulations in accordance with that province’s applicable procedures for making regulations regulating the use or development of lands.
Regulations already in force
(3) If an agreement is made under subsection (1), any regulations made under paragraph 5.4(2)(b) or (c) continue to apply to the lands that are the subject of the agreement until regulations made by the provincial authority for the purposes set out in paragraph (1)(a) or (b) come into force, at which time the corresponding regulations made under paragraph 5.4(2)(b) or (c) cease to apply to those lands for the period in which the agreement is in effect.
Saving
(4) During the period in which the agreement remains in effect, subsections 5.4(4) and (5) do not apply in respect of the lands that are subject to the agreement unless the agreement provides otherwise, and sections 5.5 to 5.7 do not apply in respect of those lands at all.
Statutory Instruments Act
(5) The Statutory Instruments Act does not apply to regulations made by the provincial authority under the agreement.
Contravention
(6) Every person who contravenes a regulation made by a provincial authority under an agreement made under subsection (1) is guilty of an offence punishable on summary conviction.
Agreement for cutting natural growth
5.82 (1) If natural growth situated on lands adjacent to or in the vicinity of an airport is not subject to a zoning regulation or to a regulation made under an agreement made under subsection 5.81(1), and the Minister considers that the natural growth affects the safe operation of the airport or of aircraft at the airport, the Minister may after consultation with the operator of the airport enter into an agreement providing for the cutting and removal of the natural growth with the owner or lessee of the lands, and with the owner of the natural growth if not the same as the owner of the lands.
Compensation by the Minister
(2) The Minister shall pay for the cutting and removal of the natural growth that is affected by the agreement, shall compensate the owner or lessee for any reduction in the value of their interest or right in the lands that results from the cutting and, if the owner of the natural growth is not the same as the owner of the lands, shall compensate the owner of the natural growth for any reduction in the value of their interest or right in the natural growth that results from the cutting.
Operator of airport to pay
(3) The operator of the airport shall reimburse the Minister for every expense that the Minister incurs under subsection (2).
Debts due to Her Majesty
(4) An amount that the operator of the airport is required to reimburse to the Minister under subsection (3) constitutes a debt due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction.
If no agreement
5.83 (1) If no agreement has been made under subsection 5.82(1) within a period that the Minister considers reasonable, the Minister may serve notice on the owner or lessee of the lands referred to in that subsection, and on the owner of the natural growth on the lands if not the same as the owner of the lands, advising them that the natural growth on the lands affects the safe operation of the airport or of aircraft at the airport, that the Minister intends to enter on the lands in order to cut the natural growth and that the Minister will compensate them for the natural growth’s cutting. The notice shall include a statement of the provisions of subsection (3).
Time of entry
(2) The Minister may not enter on the lands earlier than 30 days after the day on which the notice was served and, if the owner or lessee of the lands — or the owner of the natural growth if not the same as the owner of the lands — objects to the Minister’s entering under subsection (3), then the Minister may not enter on the lands earlier than 30 days after the day on which the notice of the Minister’s intention not to give effect to the objection under subsection (5) was served.
Objection
(3) The owner or lessee of the lands — or the owner of the natural growth if not the same as the owner of the lands — may, within 30 days after the day on which the notice was served on them, serve on the Minister an objection to the Minister’s entering on the lands or to the Minister’s proposed steps referred to in subsection (1), indicating the nature of the objection and the grounds on which it is based.
Representations or objections
(4) On receipt of an objection under subsection (3), the Minister shall, within a reasonable time, provide the owner or lessee who made the objection with a full opportunity to be heard before the Minister concerning the objection’s nature and grounds.
Notice of intentions after objections
(5) The Minister shall, as soon as possible after providing a full opportunity to the owner or lessee to be heard, serve notice on them indicating whether the Minister intends to give effect to the objection and, if not, the reasons why not.
Notices not statutory instruments
(6) A notice under this section is not a statutory instrument for the purposes of the Statutory Instruments Act.
Entry on lands
5.84 The Minister may enter on lands in order to cut natural growth that affects the safe operation of an airport or of aircraft at the airport if the following conditions are met:
(a) a notice under subsection 5.83(1) has been served in accordance with that subsection; and
(b) no notice of objection has been served on the Minister in accordance with subsection 5.83(3) or, if one has been, a full opportunity to be heard has been provided to the owner or lessee who made the objection and the Minister has notified them in accordance with subsection 5.83(5) that the Minister does not intend to give effect to the objection.
Compensation by the Minister
5.85 (1) The Minister shall pay for the cutting and removal of the natural growth that is affected by the notice, shall compensate the owner or lessee for any reduction in the value of their interest or right in the lands that results from the cutting and, if the owner of the natural growth is not the same as the owner of the lands, shall compensate the owner of the natural growth for any reduction in the value of their interest or right in the natural growth that results from the cutting.
Operator of airport to pay
(2) The operator of the airport shall reimburse the Minister for every expense that the Minister incurs under subsection (1).
Debts due to Her Majesty
(3) An amount that the operator of the airport is required to reimburse to the Minister under subsection (2) constitutes a debt due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction.
2004, c. 15, s. 9
18. Subsection 5.9(3) of the Act is replaced by the following:
Incorporation by reference
(3) A regulation, an order, a security measure or an emergency direction made under this Part may incorporate by reference a classification, standard, procedure or other specification produced by the Minister and any material produced by a body or person other than the Minister, either as it exists on a particular date or as it is amended from time to time.
Incorporated material is not a regulation
(3.1) Material does not become a regulation for the purposes of the Statutory Instruments Act merely because it is incorporated by reference under subsection (3).
19. The Act is amended by adding the following after section 5.9:
Exemption by Minister of National Defence
5.91 (1) With respect to any matter relating to defence, the Minister of National Defence or an officer of the Department of National Defence or an officer of the Canadian Forces authorized by the Minister may, on any terms and conditions that the Minister or officer, as the case may be, considers necessary, exercise any of the powers set out in subsection 5.9(2).
Exemption from Statutory Instruments Act
(2) An exemption made under subsection (1) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.
20. The Act is amended by adding the following after section 6.2:
Certificate
6.21 A certificate purporting to be signed by the Minister of National Defence or the Chief of the Defence Staff and stating that a notice containing the regulation or notice referred to in paragraph 6.2(1)(a) was given to persons likely to be affected by it is, in the absence of evidence to the contrary, proof that notice was given to those persons.
R.S., c. 33 (1st Supp.), s. 1; 1989, c. 3, ss. 39 and 40
21. The heading before section 6.3 and sections 6.3 and 6.4 of the Act are repealed.
R.S., c. 33 (1st Supp.), s. 1
22. (1) Subsections 6.5(1) and (2) of the English version of the Act are replaced by the following:
Minister to be provided with information
6.5 (1) If a physician or an optometrist believes on reasonable grounds that a patient is a flight crew member, an air traffic controller or other holder of a Canadian aviation document that imposes standards of medical or optometric fitness, the physician or optometrist shall, if in his or her opinion the patient has a medical or optometric condition that is likely to constitute a hazard to aviation safety, inform a medical adviser designated by the Minister without delay of that opinion and the reasons for it.
Patient to advise
(2) The holder of a Canadian aviation document that imposes standards of medical or optometric fitness shall, prior to any medical or optometric examination of his or her person by a physician or optometrist, advise the physician or optometrist that he or she is the holder of such a document.
R.S., c. 33 (1st Supp.), s. 1
(2) Subsection 6.5(4) of the English version of the Act is replaced by the following:
No proceedings lie
(4) No legal, disciplinary or other proceedings lie against a physician or optometrist for anything done by him or her in good faith in compliance with this section.
2001, c. 29, s. 34
23. Sections 6.6 and 6.7 of the Act are replaced by the following:
Canadian aviation document
6.6 A reference to the suspension or cancellation of a Canadian aviation document, or to the refusal to issue, renew or amend one, under sections 6.71 to 7.21 may be a reference to the suspension or cancellation of any or all of the privileges granted under one or to the refusal to issue, renew or amend any or all of them.
Non-application of certain provisions
6.7 Sections 6.71 to 7.21 do not apply to a member of the Canadian Forces acting in the circumstances in the course of their duties in relation to a Canadian aviation document issued in respect of a military aeronautical product, a military aerodrome, any other military facility relating to aeronautics, military equipment or a service relating to aeronautics provided by means of such an aeronautical product or such equipment or at such an aerodrome or facility.
2001, c. 29, s. 34
24. Subsections 6.71(1) and (2) of the Act are replaced by the following:
Refusal to issue Canadian aviation document
6.71 (1) The Minister may refuse to issue or to amend a Canadian aviation document on the grounds that
(a) the applicant is incompetent;
(b) the applicant or any aeronautical product, aerodrome, other facility, equipment or service in respect of which the application is made does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document; or
(c) the Minister considers that the public interest — which may include considering the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a) — warrants the refusal.
Notice
(2) The Minister shall serve notice of a decision made under subsection (1) on the applicant, or the owner, operator or provider, as the case may be, of the aeronautical product, aerodrome, other facility, equipment or service in respect of which the application is made. The Governor in Council may by regulation prescribe the form that the notice is to be in as well as information that it is to contain, but in any case the notice shall indicate, as the case requires,
(a) the nature of the applicant’s incompetence;
(b) the qualifications or conditions referred to in paragraph (1)(b) that are not met or fulfilled;
(c) the elements of the public interest on which the Minister’s decision is based; and
(d) except in the case of a document or class of documents prescribed under paragraph (3)(b), the date, which shall be 30 days after the day on which the notice is served, on or before which and the address at which the applicant, owner, operator or provider may file a request for a review of the Minister’s decision.
2001, c. 29, s. 34
25. Subsection 6.72(1) of the English version of the Act is replaced by the following:
Request for review
6.72 (1) Subject to any regulations made under paragraph 6.71(3)(b), an applicant, owner, operator or provider who is served with a notice under subsection 6.71(2) and who wishes to have the Minister’s decision reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal allows on application, file a written request for a review of the decision with the Tribunal at the address set out in the notice.
2001, c. 29, s. 34
26. Section 6.8 of the Act is replaced by the following:
Suspensions, etc., generally
6.8 In addition to any grounds referred to in any of sections 4.4, 6.71, 6.9 to 7.1 and 7.21, the Minister may suspend, cancel or refuse to issue, renew or amend a Canadian aviation document in the circumstances and on the grounds prescribed by regulation of the Governor in Council.
2004, c. 15, s. 12(1)
27. (1) Subsections 6.9(1) and (2) of the Act are replaced by the following:
Suspension, etc., where contravention
6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document because the Minister has reasonable grounds to believe that the holder, or the owner, operator or provider, as the case may be, of any aeronautical product, aerodrome, other facility, equipment or service in respect of which the document was issued, has contravened any provision of this Part or of any instrument, security measure or emergency direction made under this Part, the Minister shall serve on the holder, owner, operator or provider notice of the decision and of its effective date, which may not be earlier than 30 days after the day on which the notice is served.
Contents of notice
(2) The Governor in Council may by regulation prescribe the form that the notice is to be in as well as the information that it is to contain, but in any case the notice shall indicate
(a) the provision of this Part or of the instrument, security measure or emergency direction made under this Part that the Minister believes has been contravened; and
(b) the date, which shall be 30 days after the day on which the notice is served, on or before which and the address at which a request for a review of the Minister’s decision may be filed.
R.S., c. 33 (1st Supp.), s. 1
(2) Subsections 6.9(3) and (4) of the English version of the Act are replaced by the following:
Request for review of Minister’s decision
(3) A holder of a Canadian aviation document, or the owner, operator or provider, as the case may be, of any aeronautical product, aerodrome, other facility, equipment or service in respect of which a Canadian aviation document is issued, who is affected by a decision of the Minister referred to in subsection (1) may file with the Tribunal at the address set out in the notice, and within the period set out in the notice or any further time that the Tribunal allows on application by the holder, owner, operator or provider, a request for a review of the decision.
Request for review not a stay of suspension, etc.
(4) A request for a review of the Minister’s decision under subsection (3) does not operate as a stay of the suspension or cancellation of the Canadian aviation document to which the decision relates, but if a request for a review has been filed with the Tribunal, a member of the Tribunal assigned for the purpose may, subject to subsection (5) and on any notice to the Minister that the member considers necessary, direct that the suspension or cancellation of the document be stayed until the review of the Minister’s decision has been concluded. However, the member’s direction may be made only on application in writing by the holder of the document or the owner, operator or provider affected by the decision, as the case may be, and only after considering any representations by the holder, owner, operator or provider and the Minister that they wish to make in that behalf.
2004, c. 15, s. 12(2)
(3) Subsection 6.9(5) of the Act is replaced by the following:
Exception — stay direction
(5) No direction of a stay of a suspension or cancellation shall be made under subsection (4) if the member of the Tribunal considers that the stay would result in a threat to aviation safety or security.
R.S., c. 33 (1st Supp.), s. 1; 2001, c. 29, s. 35, par. 45(1)(a) and (2)(a)(F)
(4) Subsections 6.9(7) and (7.1) of the English version of the Act are replaced by the following:
Review procedure
(7) At the time and place appointed under subsection (6) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner, operator or provider affected by the decision, as the case may be, with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension or cancellation under review.
Holder, etc., not compelled to testify
(7.1) In a review under this section, a holder, owner, operator or provider referred to in subsection (1) is not required, and shall not be compelled, to give any evidence or testimony in the matter.
R.S., c. 33 (1st Supp.), s. 1; 2001, c. 29, s. 36(1); 2004, c. 15, ss. 13(1) and (2)(E)
28. (1) Subsections 7(1) to (2.1) of the Act are replaced by the following:
Suspension where immediate threat to aviation safety or security
7. (1) If the Minister decides to suspend a Canadian aviation document on the grounds that an immediate threat to aviation safety or security exists or is likely to occur as a result of an act or thing that was or is being done under the authority of the document or that is proposed to be done under the authority of the document, the Minister shall without delay serve notice of the decision on the holder of the document or the owner, operator or provider, as the case may be, of the aeronautical product, aerodrome, other facility, equipment or service in respect of which the document was issued.
Contents of notice
(2) The Governor in Council may by regulation prescribe the form that a notice under subsection (1) is to be in as well as the information that it is to contain, but in any case the notice shall indicate
(a) the threat and the nature of the act or thing; and
(b) the date, which shall be 30 days after the day on which the notice is served, on or before which and the address at which a request for a review of the Minister’s decision may be filed.
Effective date of Minister’s decision
(2.1) The Minister’s decision takes effect on the date of receipt of the notice under subsection (1) by the person on whom it is served, or on any later date that the notice specifies.
R.S., c. 33 (1st Supp.), s. 1
(2) Subsection 7(3) of the English version of the Act is replaced by the following:
Request for review of Minister’s decision
(3) A holder of a Canadian aviation document, or the owner, operator or provider, as the case may be, of any aeronautical product, aerodrome, other facility, equipment or service in respect of which a Canadian aviation document is issued, who is affected by a decision of the Minister referred to in subsection (1) may file with the Tribunal, within the period and at the address set out in the notice, a request for a review of the decision.
R.S., c. 33 (1st Supp.), s. 1; 2001, c. 29, par. 45(1)(b)
(3) Subsection 7(6) of the English version of the Act is replaced by the following:
Review procedure
(6) At the time and place appointed under subsection (5) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner, operator or provider affected by the decision, as the case may be, with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension under review.
2004, c. 15, s. 111(1)
(4) Subsections 7(7) to (8) of the Act are replaced by the following:
Determination of Tribunal member
(7) The member of the Tribunal conducting the review may determine the matter by confirming the suspension or by referring the matter back to the Minister for reconsideration.
Effect of decision pending reconsideration
(7.1) If the matter is referred back to the Minister for reconsideration under subsection (7), the suspension remains in effect pending the conclusion of the reconsideration.
Request for reconsideration
(8) If
(a) no appeal from a determination under subsection (7) confirming the Minister’s decision is taken under section 7.2 within the time limited for doing so under that section, or
(b) an appeal panel has, on an appeal under section 7.2, confirmed the Minister’s decision under this section,
the holder of the Canadian aviation document or the owner, operator or provider affected by the decision, as the case may be, may, in writing, request the Minister to reconsider whether the immediate threat to aviation safety or security that led to the suspension continues to exist or is likely to occur as described in that subsection.
R.S., c. 33 (1st Supp.), s. 1
(5) Subsection 7(9) of the English version of the Act is replaced by the following:
Reconsideration
(9) On receipt of a request under subsection (8), the Minister shall without delay reconsider the matter and give a notice of his or her decision to the holder, owner, operator or provider who made the request, and the provisions of this section and section 7.2 providing for a review of a decision of the Minister and an appeal from a determination on a review apply, with any modifications that the circumstances require, to and in respect of a decision of the Minister under this subsection.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 15(2); 2001, c. 29, ss. 37(1) to (3)
29. (1) Subsections 7.1(1) to (2.1) of the Act are replaced by the following:
Suspension, etc., on other grounds
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that
(a) the holder of the document is incompetent,
(b) the holder or any aeronautical product, aerodrome, other facility, equipment or service in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued, or
(c) the Minister considers that the public interest — which may include considering the aviation record of the holder or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a) — warrants it,
the Minister shall serve notice of the decision on the holder or the owner, operator or provider, as the case may be, of the aeronautical product, aerodrome, other facility, equipment or service in respect of which the document was issued.
Contents of notice
(2) The Governor in Council may by regulation prescribe the form that a notice under subsection (1) is to be in as well as information that it is to contain, but in any case the notice shall indicate
(a) the nature of the incompetence, the qualifications or conditions that are no longer being met or fulfilled or the elements of the public interest on which the Minister’s decision is based; and
(b) the date, which shall be 30 days after the day on which the notice is served, on or before which and the address at which a request for a review of the Minister’s decision may be filed.
Effective date of Minister’s decision
(2.1) The Minister’s decision takes effect on the date of receipt of the notice under subsection (1) by the person on whom it is served, or on any later date that the notice specifies.
R.S., c. 33 (1st Supp.), s. 1
(2) Subsection 7.1(3) of the English version of the Act is replaced by the following:
Request for review of Minister’s decision
(3) A holder of a Canadian aviation document, or the owner, operator or provider, as the case may be, of any aeronautical product, aerodrome, other facility, equipment or service in respect of which a Canadian aviation document is issued, who is affected by a decision of the Minister referred to in subsection (1) may file with the Tribunal, at the address and within the period set out in the notice or within any further time that the Tribunal allows on application by the holder, owner, operator or provider, a request for a review of the decision.
R.S., c. 33 (1st Supp.), s. 1; 2001, c. 29, par. 45(1)(c)
(3) Subsection 7.1(6) of the English version of the Act is replaced by the following:
Review procedure
(6) At the time and place appointed under subsection (5) for the review of the decision, the member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the Canadian aviation document or the owner, operator or provider affected by the decision, as the case may be, with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations in relation to the suspension, cancellation or refusal to renew under review.
2001, c. 29, s. 37(4)
(4) Subsection 7.1(8) of the Act is replaced by the following:
Effect of decision pending reconsideration
(8) If a decision to suspend or cancel a Canadian aviation document is referred back to the Minister for reconsideration under subsection (7), the Minister’s decision remains in effect pending the conclusion of the reconsideration. However, the member, after considering any representations made by the parties, may grant a stay of the decision until the reconsideration is concluded if satisfied that granting a stay would not result in a threat to aviation safety or security.
2004, c. 15, s. 111(2)
30. (1) Subsection 7.2(1) of the Act is replaced by the following:
Right of appeal
7.2 (1) Within 30 days after the day on which the determination was made, a determination made under subsection 6.72(4), 7(7) or 7.1(7) may be appealed to the Tribunal by a person affected, and a determination made under subsection 6.9(8) may be appealed to the Tribunal by a person affected or by the Minister.
2004, c. 15, s. 111(2)
(2) Subsections 7.2(3) and (4) of the Act are replaced by the following:
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may
(a) in the case of a determination made under subsection 6.72(4), 7(7) or 7.1(7), dismiss the appeal or refer the matter back to the Minister for reconsideration; or
(b) in the case of a determination made under subsection 6.9(8), dismiss the appeal, or allow the appeal and substitute its own decision.
Effect of decision pending reconsideration
(4) If a decision to suspend or cancel a Canadian aviation document is referred back to the Minister for reconsideration under paragraph (3)(a), the Minister’s decision remains in effect pending the conclusion of the reconsideration. However, the appeal panel, after considering any representations made by the parties, may grant a stay of a decision by the Minister under subsection 7.1(1) until the reconsideration is concluded, if it is satisfied that granting a stay would not result in a threat to aviation safety or security.
2001, c. 29, s. 38
31. Section 7.21 of the Act is replaced by the following:
Default of payment
7.21 (1) The Minister may suspend, or refuse to issue, renew or amend, a Canadian aviation document if a debt has been certified under subsection 7.9(1) in respect of the applicant for, or the holder of, the document or in respect of the owner, operator or provider, as the case may be, of an aeronautical product, an aerodrome, another facility, equipment or a service to which the document relates, or if they have been convicted of an offence under this Part but have not paid any fine that was imposed within the required period for paying it.
Notice
(2) The Minister shall serve the applicant, holder, owner, operator or provider, as the case may be, with notice of a decision made under subsection (1) and, in the case of a suspension, of the effective date of the suspension, which shall not be earlier than 30 days after the day on which the notice is served.
R.S., c. 33 (1st Supp.), s. 1; 1996, c. 20, s. 103; 2004, c. 15, s. 15
32. (1) Subsections 7.3(3.1) to (6) of the Act are replaced by the following:
Punishment — individuals
(4) An individual who is convicted of an offence under this Part punishable on summary conviction is liable to a fine not exceeding $100,000 or, in the case of an offence referred to in subsection (1), to imprisonment for a term not exceeding one year or to both fine and imprisonment.
Punishment — corporations
(5) A corporation that is convicted of an offence under this Part punishable on summary conviction is liable to a fine not exceeding one million dollars.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 16
(2) Subsections 7.3(7) to (8) of the French version of the Act are replaced by the following:
Exclusion de l’emprisonnement
(7) La personne déclarée coupable d’une infraction à la présente partie punissable sur déclaration de culpabilité par procédure sommaire ne peut encourir d’emprisonnement pour cette infraction ni pour défaut de paiement de l’amende imposée, sauf s’il s’agit d’une infraction visée au paragraphe (1).
Exclusion de l’emprisonnement
(7.1) La personne poursuivie en application de l’article 8.4 et déclarée coupable d’une infraction à la présente partie ne peut encourir d’emprisonnement pour cette infraction ni pour défaut de paiement de l’amende imposée.
Recouvrement des amendes
(8) Lorsqu’une personne déclarée coupable d’une infraction à la présente partie ne paie pas l’amende dans le délai imparti, la déclaration de culpabilité, sur présentation devant la juridiction supérieure, y est enregistrée. Dès lors, elle devient exécutoire, et toute procédure d’exécution peut être engagée, la condamnation étant assimilée à un jugement de cette juridiction obtenu par Sa Majesté du chef du Canada contre la personne en cause pour une dette dont le montant équivaut à l’amende.
1992, c. 4, s. 17
33. Section 7.31 of the Act is replaced by the following:
Continuing violation or offence
7.31 A violation or offence under this Part committed or continued on more than one day constitutes a separate violation or offence for each day on which the violation or offence is committed or continued or, in the case of a violation or offence committed or continued on a flight, for each flight or segment of a flight on which the violation or offence is committed or continued.
R.S., c. 33 (1st Supp.), s. 1
34. Subsection 7.5(1) of the Act is replaced by the following:
Prohibition by court
7.5 (1) If a person is convicted of an offence under this Part, the court may, in addition to any other punishment it may impose, make an order
(a) where the person is the holder of a Canadian aviation document or is the owner, operator or provider, as the case may be, of any aeronautical product, aerodrome, other facility, equipment or service in respect of which a Canadian aviation document was issued, prohibiting the person from doing any act or thing authorized by the document at all times while the document is in force or for any period or at any times or places that the order specifies; or
(b) prohibiting the person from operating an aircraft or providing services essential to the operation of an aircraft for any period or at any times or places that the order specifies.
Return of document
(2) A person who is subject to an order under paragraph (1)(a) shall, at the Minister’s request, return the document to the Minister for the period of the prohibition.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 21; 2001, c. 29, ss. 39, 40(E), 41 and 42; 2004, c. 15, s. 18
35. The heading before section 7.6 and sections 7.6 to 8.2 of the Act are replaced by the following:
Administrative Penalties
Notices of Violation Without Penalty, Assurances of Compliance and Notices of Monetary Penalty
Violation
7.6 (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may
(a) serve on the person a notice of violation without penalty that identifies the violation but indicates that no further proceedings will be taken against the person, and further sets out
(i) the period, which shall be 30 days after the day on which the notice is served, within which a review may be requested, and
(ii) particulars of how to request the review;
(b) enter into an assurance of compliance with the person that
(i) identifies the violation and provides that the person will comply with the provision to which the violation relates during the period, and be subject to the terms and conditions, specified in the assurance,
(ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and
(iii) sets out the amount that the Minister determines in accordance with the regulations that the person would have had to pay as the penalty for the violation if the assurance had not been entered into; or
(c) serve on the person a notice of monetary penalty that identifies the violation and sets out
(i) the amount that the Minister determines in accordance with the regulations that the person must pay as the penalty for the violation,
(ii) the date, which shall be 30 days after the day on which the notice is served, on or before which the penalty must be paid or a review requested, and
(iii) particulars of how the penalty is to be paid or the review requested.
Extension of period
(2) The Minister may extend the period specified under subparagraph (1)(b)(i) if the Minister is satisfied that the person with whom the assurance of compliance was entered into is unable to comply with it within that period for reasons beyond their control.
Short-form descriptions
(3) The Minister may establish, in respect of any violation, a short-form description to be used in notices of violation without penalty, assurances of compliance and notices of monetary penalty.
Assurance of compliance complied with
7.61 If the Minister considers that an assurance of compliance has been complied with, the Minister shall serve a notice to that effect on the person and, on the service of the notice,
(a) no further proceedings may be taken against the person with respect to the violation; and
(b) any security deposited under subparagraph 7.6(1)(b)(ii) shall be returned to the person.
Assurance of compliance not complied with
7.62 (1) If the Minister considers that a person who has entered into an assurance of compliance has not complied with it, the Minister may serve a notice of default on the person to the effect that, unless there is a determination under section 7.63 or a decision under section 7.68 that the assurance has been complied with,
(a) the person is liable to pay double the amount of the penalty set out in the assurance; or
(b) the security deposited under subparagraph 7.6(1)(b)(ii) is forfeited to Her Majesty in right of Canada.
Contents of notice
(2) A notice of default shall include the date, which shall be 30 days after the day on which the notice is served, on or before which a request for review may be filed and particulars of how the request may be filed.
No set-off or compensation
(3) On the service of a notice of default, the person served has no right of set-off or compensation against any amount that they spent under the assurance of compliance.
Request for review
7.63 (1) A person served with a notice of default under subsection 7.62(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a request for a review.
Time and place for review
(2) On receipt of the request, the Tribunal shall appoint a time and place for the review and notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and may not be compelled, to give any evidence or testimony in the matter.
Due diligence not a defence
(5) A person named in a notice of default does not have a defence that they exercised all due diligence to comply with the assurance of compliance.
Determination
(6) The member of the Tribunal may determine the matter by confirming the Minister’s decision or by determining that the person has complied with the assurance of compliance.
Return of security
7.64 Any security deposited under subparagraph 7.6(1)(b)(ii) shall be returned to the person if
(a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice of default under section 7.62; or
(b) there is a determination under section 7.63 or a decision under section 7.68 that the assurance of compliance has been complied with.
Deemed violation
7.65 (1) A person who is served with a notice of violation without penalty or who enters into an assurance of compliance is, unless a review is requested under subsection (2) or (3), deemed to have committed the violation in respect of which the notice was served or the assurance was entered into.
Request for review — notice of violation without penalty
(2) A person served with a notice of violation without penalty may, within the period set out in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a request for a review of the facts of the violation, in which case sections 7.67 and 7.68 apply.
Request for review — assurance of compliance
(3) A person who enters into an assurance of compliance may, within 48 hours after the assurance is signed, and unless a notice of default is served within that period under section 7.62, request a review of the facts of the violation, in which case the assurance is deemed to be a notice of monetary penalty served under paragraph 7.6(1)(c) and they are deemed to have requested a review under paragraph 7.66(1)(b) of the facts of the violation and the amount of the penalty.
Notice of monetary penalty
7.66 (1) A person served with a notice of monetary penalty under paragraph 7.6(1)(c) shall
(a) pay the amount of the penalty on or before the date set out in the notice; or
(b) at the address and on or before the date set out in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a request for a review of the facts of the violation or the amount of the penalty.
When review of facts not requested
(2) If a review of the facts of a violation is not requested, the person is deemed to have committed the violation.
Time and place for review
7.67 (1) On receipt of a request filed under subsection 7.65(2) or paragraph 7.66(1)(b), the Tribunal shall appoint a time and place for the review and notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(3) The burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and may not be compelled, to give any evidence or testimony in the matter.
Determination
(4) The member of the Tribunal may determine the matter by confirming the Minister’s decision or, subject to regulations made under paragraph 8(b), substitute his or her own determination.
Right of appeal
7.68 (1) The Minister or the person who requested the review may appeal a determination made under subsection 7.63(6) or 7.67(4) to the Tribunal within 30 days after the day on which the determination was made.
Loss of right of appeal
(2) A party that does not appear at a review hearing may not appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal may
(a) in the case of a determination made under subsection 7.63(6), dismiss the appeal or allow the appeal and substitute its own decision; or
(b) in the case of a determination made under subsection 7.67(4), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 8(b), substitute its own decision.
How contravention may be dealt with
7.69 If a contravention may be dealt with as a violation or as an offence or dealt with under section 6.9, proceedings may be commenced in respect of it as a violation or as an offence or it may be dealt with under section 6.9, but dealing with it in one of those three ways precludes dealing with it in the other two.
Violations are not offences
7.7 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Recovery of Debts
Debts due to Her Majesty
7.8 The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:
(a) unless a review of the amount of the penalty is requested under paragraph 7.66(1)(b), the amount of a penalty set out in a notice of monetary penalty, beginning on the day on which the notice was served;
(b) the amount that a notice of default served under subsection 7.62(1) provides that a person is liable to pay, beginning on the day on which the notice was served;
(c) the amount of a penalty determined by a member after a review under section 7.67 or decided by the Tribunal after an appeal under section 7.68, beginning on the day on which the respective determination or decision was made; and
(d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).
Certificate
7.9. (1) All or part of a debt referred to in section 7.8 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.
Judgments
(2) On production to the Federal Court, a certificate made under subsection (1) is to be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant in its registration.
Regulations
Regulations
8. The Governor in Council may, by regulation,
(a) designate, as a violation that may be dealt with under this section and sections 7.6 to 7.9, the contravention of any provision of this Act or of any instrument, security measure or emergency direction made under this Act; and
(b) prescribe, in respect of a violation, the maximum amount payable, which may not exceed
(i) $50,000, in the case of an individual, or
(ii) $250,000, in the case of a corporation.
General Provisions
Disclosure of notations of violations
8.1 The Minister shall keep a public record of notations of suspension or cancellation of a Canadian aviation document under section 6.9, notations of violation and notations of notices of default under subsection 7.62(1) kept on any record that the Minister keeps respecting a person.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 1, s. 5; 2004, c. 15, s. 19
36. (1) Subsections 8.3(1) and (2) of the Act are replaced by the following:
Records
8.3 (1) Any notation of a suspension by the Minister of a Canadian aviation document under section 6.9, notation of a violation or notation of a notice of default under subsection 7.62(1) shall, on application by the person affected, be removed from the record respecting that person kept by the Minister if
(a) at any time after the expiry of the suspension, the service of a notice of violation without penalty or notice of compliance or the payment of the amount of the monetary penalty, there has been a period of at least two years in which there has been no notation of a suspension under section 6.9 or violation in respect of that person; and
(b) in the opinion of the Minister, the removal from the record would not be contrary to the interests of aviation safety or security.
Notice of decision
(2) The Minister shall, as soon as possible after receiving the application, serve a notice on the applicant of the Minister’s decision in relation to the application.
(2) Section 8.3 of the Act is amended by adding the following after subsection (4):
Minister’s decision overturned
(5) The Minister shall remove from the affected person’s record any notation of a decision relating to a Canadian aviation document, of a violation or of a notice of default under subsection 7.62(1), as the case may be, in any of the following cases:
(a) a member of the Tribunal has substituted his or her determination for the Minister’s on review under subsection 6.9(8) or 7.67(4), as the case may be, with regard to whether the contravention or violation was committed, and the period for an appeal has expired;
(b) a member of the Tribunal has determined that the person has complied with an assurance of compliance under subsection 7.63(6), and the period for an appeal has expired;
(c) the Tribunal has on appeal substituted its decision for the Minister’s with regard to whether the contravention or violation was committed, or with regard to whether the assurance of compliance referred to in subsection 7.62(1) has been complied with; or
(d) the Minister has rescinded the decision on reconsideration of the matter.
R.S., c. 33 (1st Supp.), s. 1; 2004, c. 15, s. 20
37. Sections 8.4 and 8.5 of the Act are replaced by the following:
Owner of aircraft may be found liable
8.4 (1) The registered owner of an aircraft may be proceeded against in respect of, and found to have committed, a violation or offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the violation or offence, the aircraft was in the possession of a person other than the owner without the owner’s consent, and, if found to have committed the violation or offence, the owner is liable to the penalty provided as punishment for it.
Operator of aircraft may be found liable
(2) The operator of an aircraft may be proceeded against in respect of, and found to have committed, a violation or offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the violation or offence, the aircraft was in the possession of a person other than the operator without the operator’s consent, and, if found to have committed the violation or offence, the operator is liable to the penalty provided as punishment for it.
Pilot-in-command may be found liable
(3) The pilot-in-command of an aircraft may be proceeded against in respect of, and found to have committed, a violation or offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless the violation or offence was committed without the consent of the pilot-in-command, and, if found to have committed the violation or offence, the pilot-in-command is liable to the penalty provided as punishment for it.
Operator of aerodrome, etc., may be found liable
(4) The operator of an aerodrome or other facility relating to aeronautics may be proceeded against in respect of, and found to have committed, a violation or offence under this Part in relation to the aerodrome or other facility for which another person is subject to be proceeded against unless the violation or offence was committed without the consent of the operator, and, if found to have committed the violation or offence, the operator is liable to the penalty provided as punishment for it.
Provider of service may be found liable
(5) The provider of a service relating to aeronautics may be proceeded against in respect of, and found to have committed, a violation or offence under this Part in relation to the service for which another person is subject to be proceeded against unless the violation or offence was committed without the consent of the provider, and, if found to have committed the violation or offence, the provider is liable to the penalty provided as punishment for it.
Defence
8.5 No person may be found to have contravened a provision of this Part or of any instrument, security measure or emergency direction made under this Part, other than a provision set out in subsection 7.3(1) or 7.41(1), if they exercised all due diligence to prevent the contravention.
R.S., c. 33 (1st Supp.), s. 1; 2004, c. 15, s. 21(1)
38. (1) Subsection 8.7(1) of the Act is replaced by the following:
Powers to enter, seize and detain
8.7 (1) Subject to subsection (4), the Minister may
(a) enter, for the purposes of making inspections or audits relating to compliance with this Part, any aircraft, aerodrome or other facility relating to aeronautics, any premises used for the design, manufacture, distribution, maintenance or installation of aeronautical products or any premises used by the Canadian Air Transport Security Authority, regardless of whether the inspection or audit relates to that place or to the person who possesses or controls it;
(a.1) remove any document or other thing from the place where the inspection or audit is being carried out for examination or copying;
(b) enter any place for the purposes of an investigation of matters concerning aviation safety or security;
(c) seize anything found in any place referred to in paragraph (a) or (b) that the Minister believes on reasonable grounds might be evidence with respect to a contravention of this Part or of an instrument, a security measure or an emergency direction made under this Part; and
(d) detain any aircraft that the Minister believes on reasonable grounds is unsafe or is likely to be operated in an unsafe manner or without the Canadian aviation documents required for the lawful operation of the aircraft, and take reasonable steps to ensure its continued detention.
Matters relating to Defence
(1.01) The Minister of Transport may exercise the powers set out in subsection (1) with regard to any matter relating to defence with the authorization of the Minister of National Defence.
2004, c. 15, s. 21(2)
(2) Paragraph 8.7(1.1)(a) of the Act is replaced by the following:
(a) use or cause to be used any computer system, data processing system or other electronic system at the place to examine any data contained in, or available to, the system;
R.S., c. 33 (1st Supp.), s. 1
(3) Subsection 8.7(2) of the French version of the Act is replaced by the following:
Mandats
(2) Les articles 487 à 492 du Code criminel s’appliquent aux infractions — prétendues ou commises — à la présente partie.
2004, c. 15, s. 22
39. Paragraph 8.8(b) of the Act is replaced by the following:
(b) provide the Minister with any information relevant to the administration of this Part and the instruments, security measures or emergency directions made under this Part that the Minister might reasonably require.
40. The Act is amended by adding the following after section 8.8:
Application of Canadian Transportation Accident Investigation and Safety Board Act
8.9 The provisions of section 28 of the Canadian Transportation Accident Investigation and Safety Board Act relating to on-board recordings — within the meaning of that section — originating from the flight deck of an aircraft, or received on or in the flight deck of an aircraft, apply with any necessary modifications in respect of an investigation by the Minister concerning aviation safety or security.
41. The Act is amended by adding the following after section 9:
PART II
MILITARY INVESTIGATIONS INVOLVING CIVILIANS
Interpretation
Definitions
10. (1) The following definitions apply in this Part.
“civilian”« civil »
“civilian” means a person who is not subject to the Code of Service Discipline set out in Part III of the National Defence Act, or who is subject to the Code of Service Discipline but in the circumstances is not acting in the course of their duties.
“department”« ministère »
“department” means
(a) any department of the Government of Canada, including the minister responsible for it and any person acting on behalf of that minister;
(b) any body listed in the schedule to the Canadian Transportation Accident Investigation and Safety Board Act; and
(c) any fact-finding authority, body or person established or appointed by such a department, minister, person or body.
“military- civilian occurrence”« accident militaro-civil »
“military-civilian occurrence” means
(a) any accident or incident involving
(i) an aircraft operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force, or an installation operated by or on behalf of any of the above that is designed or used to manufacture an aircraft or other aeronautical product, or that is being used for the operation or maintenance of an aircraft or other aeronautical product, and
(ii) a civilian; or
(b) any situation or condition that the Airworthiness Investigative Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).
“visiting force”« force étrangère présente au Canada »
“visiting force” means a visiting force as defined in section 2 of the Visiting Forces Act.
Application
(2) This section and sections 11 to 24.6 apply in respect of military-civilian occurrences
(a) in or over Canada;
(b) in or over any place that is under Canadian air traffic control; and
(c) in or over any other place in any of the following cases:
(i) Canada is requested to investigate the occurrence by an appropriate authority,
(ii) the civilians involved are employed in that place by the Department of National Defence or by the Canadian Forces, or
(iii) the civilians involved are in Canada.
Airworthiness Investigative Authority
Airworthiness Investigative Authority
11. (1) The Minister shall designate from among the members of the Canadian Forces or the employees of the Department of National Defence an individual to be the Airworthiness Investigative Authority, who is to be responsible for advancing aviation safety by
(a) investigating military-civilian occurrences in order to find their causes and contributing factors;
(b) identifying safety deficiencies as evidenced by military-civilian occurrences;
(c) making recommendations designed to eliminate or reduce any of those safety deficiencies; and
(d) publishing reports on the investigations and the findings in relation to them.
Restriction
(2) In making findings in an investigation of a military-civilian occurrence, it is not the Airworthiness Investigative Authority’s function to assign fault or determine civil or criminal liability, but the Airworthiness Investigative Authority shall not refrain from making a full report merely because fault or liability might be inferred from the Airworthiness Investigative Authority’s findings.
Restriction
(3) No finding of the Airworthiness Investigative Authority may be construed as assigning fault or determining civil or criminal liability.
Findings not binding
(4) The Airworthiness Investigative Authority’s findings are not binding on the parties to any legal, disciplinary or other proceedings.
Investigations of Military-Civilian Occurrences
Investigations
Investigators
12. (1) The Airworthiness Investigative Authority may act as an investigator under this Part with respect to a military-civilian occurrence, and may designate as an investigator to investigate such an occurrence in accordance with this Part on the Airworthiness Investigative Authority’s behalf any person, or member of a class of persons, that the Airworthiness Investigative Authority considers qualified.
Certificate
(2) The Airworthiness Investigative Authority shall give a designated investigator a certificate specifying the terms and conditions of their designation.
Report
(3) A designated investigator shall report to the Airworthiness Investigative Authority with respect to the investigation of a military-civilian occurrence.
Definitions
13. (1) The following definitions apply in this section.
“information”« renseignement »
“information” includes a record regardless of form and a copy of a record.
“place”« lieu »
“place” includes an aircraft, any premises and any building or other structure erected on those premises.
Powers of investigators
(2) If an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the investigator may, subject to subsection (3), enter and search that place for such a thing, and seize any such thing that is found in the course of that search.
Conditions for exercise of powers
(3) An investigator shall not exercise the powers referred to in subsection (2) in relation to a particular place without the consent of the person apparently in charge of that place unless
(a) those powers are exercised under the authority of a warrant; or
(b) by reason of exigent circumstances, it would not be practical for the investigator to obtain a warrant.
Warrant
(4) If a justice of the peace is satisfied by information on oath that an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the justice may, on ex parte application, issue a warrant signed by the justice authorizing the investigator to enter and search that place for such a thing and to seize any such thing that is found in the course of that search.
Warrants may be obtained by telephone, etc.
(5) The procedure set out in section 487.1 of the Criminal Code applies in relation to the obtaining of warrants under this section, subject to regulations made under paragraph 24.4(1)(g).
Power to test things seized, etc.
(6) If any thing is seized by an investigator under subsection (2), the investigator
(a) may, subject to paragraph (b), cause to be conducted on the thing any tests, including tests to destruction, that are necessary for the purposes of the investigation;
(b) shall, to the extent practical and safe to do so without unreasonably impeding the progress of the investigation,
(i) take all reasonable measures to invite the owner of the thing, and any person who appears on reasonable grounds to be entitled to it, to be present at such tests, and
(ii) allow them to be present at those tests; and
(c) subject to the need to conduct such tests, shall cause the thing to be preserved pending its return under section 15.
Power to exclude persons from particular areas
(7) An investigator may, in the course of an investigation of a military-civilian occurrence, and for the purposes of preserving and protecting any thing involved or likely to have been involved, whether or not the thing has been seized under this section, prohibit or limit access to the area immediately surrounding the place at which the thing is located for any period that is necessary for the purposes of the investigation.
Disruption to be minimized
(8) In exercising the power conferred by subsection (7), an investigator shall have regard to the desirability of minimizing any resulting disruption to transportation services.
Offence in respect of exclusion order
(9) No person shall knowingly enter an area in contravention of a prohibition or limitation of access under subsection (7).
Additional powers of investigators
(10) An investigator may do any of the following by notice signed by them, if their belief is based on reasonable grounds:
(a) if the investigator believes that a person has information relevant to an investigation,
(i) require the person to produce the information to the investigator or to attend before the investigator and give a statement referred to in section 24, under oath or solemn affirmation if required by the investigator, and
(ii) make any copies of and take any extracts from the information that the investigator considers necessary for the purposes of the investigation;
(b) require a person who is directly or indirectly involved in the operation of an aircraft to submit to a medical examination, if the investigator believes that the examination is or might be relevant to the investigation;
(c) require a physician or practitioner to provide information concerning a patient to the investigator, if the investigator believes that the information is or might be relevant to the investigation; or
(d) require the person who has custody of the body of a deceased person or other human remains to permit the performance of an autopsy on the body or another medical examination on the remains, and cause it to be performed, if the investigator believes that the autopsy or other medical examination is or might be relevant to the investigation.
Offence — paragraph (10)(a), (c) or (d)
(11) No person shall refuse or fail to produce information to an investigator, or to attend before an investigator and give a statement, in accordance with a requirement imposed under paragraph (10)(a), to provide information in accordance with a requirement imposed under paragraph (10)(c) or to make the body of a deceased person or other human remains available for the performance of an autopsy or medical examination in accordance with a requirement imposed under paragraph (10)(d).
Offence — paragraph (10)(b)
(12) No person shall refuse or fail to submit to a medical examination in accordance with a requirement imposed under paragraph (10)(b), but information obtained as a result of such an examination is privileged and, subject to the Airworthiness Investigative Authority’s power to make any use of it that the Airworthiness Investigative Authority considers necessary in the interests of aviation safety, no person shall knowingly communicate it or permit it to be communicated to any person.
Legal proceedings
(13) No person may be required to produce information referred to in subsection (12) or to give evidence relating to it in any legal, disciplinary or other proceedings.
Certificate to be produced
(14) Before acting under this section, an investigator shall, on request, produce their certificate of designation to any person in relation to whom the investigator acts.
Meaning of medical examination
(15) The requirement under paragraph (10)(b) that a person submit to a medical examination does not require the person to submit to any procedure involving surgery, perforation of the skin or any external tissue or the entry into the body of any drug or foreign substance.
Things seized
(16) For greater certainty, a thing seized under subsection (2) may be an aircraft or part of one.
Use of force
(17) In executing a warrant under this section, an investigator shall not use force unless the investigator is accompanied by a peace officer and the use of force is specifically authorized in the warrant.
Failure to produce document, etc.
(18) If an investigator has required a person to do something under paragraph (10)(a), (b), (c) or (d) and the person has refused or failed to do as required, the investigator may make an application to the Federal Court or a superior court of a province setting out the facts, and the court may inquire into the matter and, after giving the person an opportunity to comply with the requirement, take steps for their punishment as if they had been guilty of contempt of the court, or may make any other order that it finds appropriate.
Limitation
14. An investigator may exercise the powers granted under section 13 only in respect of a civilian.
Return of seized property
15. (1) Anything seized under section 13 — except on-board recordings as defined in subsection 22(1) — shall, as soon as possible after it has served the purpose for which it was seized, be returned to the owner or the person who appears on reasonable grounds to be entitled to it, or to the person from whom it was seized, unless
(a) the owner or the person who appears on reasonable grounds to be entitled to it consents otherwise in writing; or
(b) a court of competent jurisdiction orders otherwise.
Application for return
(2) A person from whom anything was seized under section 13 — except on-board recordings as defined in subsection 22(1) — or the owner or any other person who appears on reasonable grounds to be entitled to it may apply to a court of competent jurisdiction for an order that the seized thing be returned to them.
Order for return
(3) If, on an application under subsection (2), the court is satisfied that the seized thing has served the purpose for which it was seized or should, in the interests of justice, be returned to the applicant, the court may grant the application and order the seized thing to be returned to the applicant, subject to any terms or conditions that appear necessary or desirable to ensure that the thing is safeguarded and preserved for any purpose for which it might subsequently be required by the Airworthiness Investigative Authority under this Act.
Exception
(4) This section does not apply in respect of anything seized and tested to destruction in accordance with subsection 13(6).
Administration
Notification of Airworthiness Investigative Authority
16. (1) If a department is notified of a military-civilian occurrence, the department shall
(a) immediately provide the Airworthiness Investigative Authority with particulars of the occurrence; and
(b) as soon as possible after complying with paragraph (a), advise the Airworthiness Investigative Authority of any investigation that it plans to conduct and of any remedial measures that it plans to take.
Investigator as observer
(2) An investigator authorized by the Airworthiness Investigative Authority may attend as an observer at an investigation conducted by the department or during the taking of remedial measures by the department following a military-civilian occurrence.
Airworthiness Investigative Authority may review and comment
(3) Subject to any other Act or law, the Airworthiness Investigative Authority shall, on request, be provided with, and may review and comment on, any interim or final report prepared in respect of an investigation conducted by the department.
Notification by Airworthiness Investigative Authority
17. (1) If the Airworthiness Investigative Authority is notified of a military-civilian occurrence, the Airworthiness Investigative Authority shall
(a) immediately provide particulars of the occurrence to any minister responsible for a department that has a direct interest in the occurrence; and
(b) as soon as possible after complying with paragraph (a), advise the ministers referred to in paragraph (a) of any investigation that the Airworthiness Investigative Authority plans to conduct and of its scope.
Observers
(2) Subject to any conditions that the Airworthiness Investigative Authority imposes, a person may attend as an observer at an investigation of a military-civilian occurrence conducted by the Airworthiness Investigative Authority if the person
(a) is designated as an observer by the minister responsible for a department that has a direct interest in the subject-matter of the investigation;
(b) has observer status or is an accredited representative or an adviser to an accredited representative, pursuant to an international agreement or convention relating to transportation to which Canada is a party; or
(c) is invited by the Airworthiness Investigative Authority to attend as an observer because, in the Airworthiness Investigative Authority’s opinion, the person has a direct interest in the subject-matter of the investigation and is likely to contribute to achieving its object.
Observer may be removed
(3) The Airworthiness Investigative Authority may remove an observer from an investigation if the observer contravenes a condition imposed by the Airworthiness Investigative Authority on the observer’s presence or if, in the Airworthiness Investigative Authority’s opinion, the observer’s participation is likely to create a situation of conflict of interest that will impede the conduct of the investigation.
Report made public
18. (1) On completion of an investigation, the Airworthiness Investigative Authority shall prepare and make available to the public a report on the Airworthiness Investigative Authority’s findings, including any safety deficiencies that the Airworthiness Investigative Authority has identified and any recommendations that the Airworthiness Investigative Authority considers appropriate and that relate to aviation safety.
Representations on draft report
(2) Before publishing a report under subsection (1), the Airworthiness Investigative Authority shall, on a confidential basis, send a copy of the draft report on the investigation’s findings and any safety deficiencies identified to each minister responsible for a department that has a direct interest in the findings, as well as to any other person who, in the Airworthiness Investigative Authority’s opinion, has a direct interest in the findings, and shall give that minister or other person a reasonable opportunity to make representations to the Airworthiness Investigative Authority with respect to the draft report before the final report is prepared.
Confidentiality of draft report
(3) No person shall communicate or use the draft report, or permit its communication or use, for any purpose — other than the taking of remedial measures — that is not strictly necessary to the study of the draft report or to the preparation of representations concerning it.
Manner of dealing with representations
(4) The Airworthiness Investigative Authority shall
(a) receive representations made under subsection (2) in any manner the Airworthiness Investigative Authority considers appropriate;
(b) keep a record of those representations;
(c) consider those representations before publishing the final report; and
(d) notify in writing each of the persons who made those representations, indicating how the Airworthiness Investigative Authority has disposed of the representations that that person made.
Protection of representations
(5) A representation is privileged, except for one made by a minister responsible for a department that has a direct interest in the findings of the investigation. Subject to any other provisions of this Part or to a written authorization from the author of a representation, no person, including any person to whom access is provided under this section, shall knowingly communicate it or permit it to be communicated to any person.
Use by Airworthiness Investigative Authority
(6) The Airworthiness Investigative Authority may use representations as the Airworthiness Investigative Authority considers necessary in the interests of aviation safety.
Making representations available to coroner
(7) If requested to do so by a coroner conducting an investigation into any circumstances in respect of which representations were made to the Airworthiness Investigative Authority, the Airworthiness Investigative Authority shall make them available to the coroner.
Prohibition of use
(8) Except for use by a coroner for the purpose of an investigation, no person may use representations in any legal, disciplinary or other proceedings.
Notification of findings and recommendations
(9) The Airworthiness Investigative Authority shall
(a) during an investigation of a military-civilian occurrence, immediately notify in writing any minister or person who, in the Airworthiness Investigative Authority’s opinion, has a direct interest in the investigation’s findings of any of its findings and recommendations, whether interim or final, that, in the Airworthiness Investigative Authority’s opinion, require urgent action; and
(b) on completion of the investigation, notify in writing those ministers and persons of its findings as to the causes and contributing factors of the military-civilian occurrence, any safety deficiencies it has identified and any recommendations resulting from its findings.
Minister to reply to Airworthiness Investigative Authority
(10) A minister who is notified of the findings and recommendations of an investigation under paragraph (9)(a) or (b) shall, within 90 days after the day on which they were notified,
(a) advise the Airworthiness Investigative Authority in writing of any action taken or proposed to be taken in response to those findings and recommendations; or
(b) provide written reasons to the Airworthiness Investigative Authority if no action will be taken or if the action to be taken differs from the action that was recommended.
In either case, that minister shall make the reply available to the public.
Restrictions
(11) If obligations are imposed on the Minister of National Defence under subsection (10), those obligations are subject to any restrictions in the interests of national security that are provided by the National Defence Act or by regulations made under that Act, or that the Governor in Council prescribes by order, which the Governor in Council is hereby authorized to do.
Extension of time
(12) If the Airworthiness Investigative Authority is satisfied that a minister is unable to reply within the period referred to in subsection (10), the period may be extended as the Airworthiness Investigative Authority considers necessary.
Interim report
19. (1) The Airworthiness Investigative Authority shall, on a confidential basis, provide an interim report on the progress and findings of an investigation
(a) to any minister responsible for a department that has a direct interest in the subject-matter of the investigation, on written request made in respect of that investigation; and
(b) to any coroner investigating the military-civilian occurrence, if it involved a death and significant progress has been made in the investigation.
Limited purpose only
(2) A person, other than a minister, who is provided with an interim report under subsection (1) shall not use the report, or permit its use, for any purpose not strictly necessary to its examination.
Power to reconsider
20. (1) The Airworthiness Investigative Authority may, at any time, reconsider any findings and recommendations made pursuant to an investigation of a military-civilian occurrence under this Part, whether or not the Airworthiness Investigative Authority has made public a report of those findings and recommendations.
Duty to reconsider
(2) The Airworthiness Investigative Authority shall reconsider the findings and recommendations made pursuant to an investigation under this Part if, in the Airworthiness Investigative Authority’s opinion, new material facts appear.
Delegation of powers
21. (1) Subject to subsection (2), the Airworthiness Investigative Authority may authorize any person, subject to any limitations specified in the authorization, to exercise or perform any of the powers, duties or functions conferred or imposed on the Airworthiness Investigative Authority under this Part, other than the power of authorization under this subsection.
Revocation
(2) The authorization may be revoked by the Airworthiness Investigative Authority in writing at any time.
Privilege
Definition of “on-board recording”
22. (1) In this section, “on-board recording” means the whole or any part of
(a) a recording of voice communications originating from an aircraft, or received on or in the flight deck of an aircraft, or
(b) a video recording of the activities of the operating personnel of an aircraft,
that is made, using recording equipment that is intended to not be controlled by the operating personnel, on the flight deck of the aircraft, and includes a transcript or substantial summary of such a recording.
Privilege for on-board recordings
(2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access is provided under this section, shall knowingly communicate an on-board recording or permit it to be communicated to any person.
Legal proceedings
(3) Except as provided by this section, no person may be required to produce an on-board recording or to give evidence relating to it in any legal, disciplinary or other proceedings.
Access by investigator
(4) Any on-board recording that relates to a military-civilian occurrence being investigated under this Part shall be released to an investigator who requests it for the purposes of the investigation.
Use by Airworthiness Investigative Authority
(5) The Airworthiness Investigative Authority may make any use that the Airworthiness Investigative Authority considers necessary in the interests of aviation safety of any on-board recording obtained by an investigator under this Part but, subject to subsection (6), shall not knowingly communicate or permit to be communicated to anyone any portion of it that is unrelated to the causes or contributing factors of the military-civilian occurrence under investigation or to the identification of safety deficiencies.
Access by coroners and other investigators
(6) The Airworthiness Investigative Authority shall make available any on-board recording obtained in the course of an investigation of a military-civilian occurrence to
(a) a coroner who requests access to it for the purpose of an investigation that the coroner is conducting; or
(b) any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.
Power of court or coroner
(7) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall
(a) cause notice of the request to be given to the Airworthiness Investigative Authority, if the Airworthiness Investigative Authority is not a party to the proceedings;
(b) in camera, examine the on-board recording and give the Airworthiness Investigative Authority a reasonable opportunity to make representations with respect to it; and
(c) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.
Use prohibited
(8) An on-board recording may not be used against any of the following persons in disciplinary proceedings, in proceedings relating to the capacity or competence of an officer or employee to perform the officer’s or employee’s functions, or in legal or other proceedings: air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters.
Definition of “court”
(9) For the purposes of subsection (7), “court” includes a person or persons appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.
Definition of “communication record”
23. (1) In this section, “communication record” means the whole or any part of any record, recording, copy, transcript or substantial summary of any type of communications respecting air traffic control or related matters that take place between any of the following persons: air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters.
Use prohibited
(2) A communication record obtained in the course of an investigation of a military-civilian occurrence under this Part may not be used against any person referred to in subsection (1) in any legal proceedings or, subject to any applicable collective agreement, in any disciplinary proceedings.
Definition of “statement”
24. (1) For the purposes of this section and section 13, “statement” means
(a) the whole or any part of an oral, written or recorded statement relating to a military-civilian occurrence and given by the author of the statement to the Airworthiness Investigative Authority, an investigator or any person acting for the Airworthiness Investigative Authority;
(b) a transcription or substantial summary of a statement referred to in paragraph (a); or
(c) conduct that could reasonably be taken to be intended as such a statement.
Statement privileged
(2) A statement and the identity of the person who made it are privileged, and, except as provided by this Part or as authorized in writing by the person who made the statement, no person, including any person to whom access is provided under this section, shall knowingly communicate a statement or permit it to be communicated to any person, or disclose the identity of the person who made it.
Use by Airworthiness Investigative Authority
(3) The Airworthiness Investigative Authority may use any statement as he or she considers necessary in the interests of aviation safety.
Access by coroners and other investigators
(4) The Airworthiness Investigative Authority shall make statements available to
(a) a coroner who requests access to them for the purpose of an investigation that the coroner is conducting; and
(b) any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.
Power of court or coroner
(5) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of a statement is contested on the ground that it is privileged, the court or coroner shall
(a) in camera, examine the statement; and
(b) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the statement by virtue of this section, order the production and discovery of the statement, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.
Use prohibited
(6) A statement may not be used against the person who made it in any legal, disciplinary or other proceedings except in a prosecution for perjury or for giving contradictory evidence or a prosecution under section 24.5.
Definition of “court”
(7) For the purposes of subsection (5), “court” includes a person or persons appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.
Reporting of military-civilian occurrences
24.1 (1) The Governor in Council may, on the recommendation of the Minister of National Defence, make regulations for the establishment and administration of systems for the mandatory or voluntary reporting by civilians to the Airworthiness Investigative Authority of military-civilian occurrences or any classes of them that are specified in the regulations.
Use of reports
(2) The Airworthiness Investigative Authority may, subject to this section, use any report made under regulations made under subsection (1) as the Airworthiness Investigative Authority considers necessary in the interests of aviation safety.
Protection of identity
(3) Regulations made under subsection (1) may provide for the protection of the identity of persons who report military-civilian occurrences.
Certain information privileged
(4) If a person’s identity is protected by provisions referred to in subsection (3), information that could reasonably be expected to reveal that identity is privileged, and no person shall knowingly communicate it or permit it to be communicated to any person.
Legal proceedings
(5) No person may be required to produce information that could reasonably be expected to reveal the identity of a person who has made a report under regulations made under subsection (1), or to give evidence relating to the information in any legal, disciplinary or other proceedings.
Use prohibited
(6) A report made under a voluntary reporting system established by regulations made under subsection (1) may not be used against the person who made the report in any legal, disciplinary or other proceedings if the person’s identity is protected by provisions referred to in subsection (3).
Evidence of Airworthiness Investigative Authority and of Investigators
Appearance of investigator
24.2 Except for proceedings before and investigations by a coroner, neither the Airworthiness Investigative Authority nor an investigator is competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted orders so for special cause.
Opinions inadmissible
24.3 An opinion of the Airworthiness Investigative Authority or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings.
Regulations
Regulations
24.4 (1) The Governor in Council may, on the recommendation of the Minister of National Defence, make regulations
(a) prescribing the manner of exercising or carrying out any of the powers, duties and functions of an investigator designated under subsection 12(1);
(b) respecting the keeping and preservation of records, documents and other evidence relating to military-civilian occurrences;
(c) respecting the attendance of interested persons at tests to destruction conducted under subsection 13(6);
(d) defining, for the purposes of an investigation of a military-civilian occurrence, the site or sites of such an occurrence and prescribing rules for the protection of those sites;
(e) defining the rights or privileges of persons attending investigations as observers or with observer status;
(f) respecting the tariff of fees and expenses to be paid to any witness attending at an investigation of a military-civilian occurrence, and the conditions under which a fee or expenses may be paid to such a witness; and
(g) respecting the forms of warrants issued under section 13 and the modifications to be made to section 487.1 of the Criminal Code in its application to section 13.
Publication of proposed regulations
(2) Subject to subsection (3), a copy of each regulation that the Governor in Council proposes to make under subsection (1) or section 24.1 shall be published in the Canada Gazette at least 60 days before its proposed effective date, and interested persons shall be given a reasonable opportunity within those 60 days to make representations with respect to it to the Minister of National Defence.
Exceptions
(3) Subsection (2) does not apply in respect of a proposed regulation that
(a) has previously been published under that subsection, whether or not it has been changed as a result of representations made under that subsection; or
(b) makes no substantive change to an existing regulation.
Offences
Offences
24.5 (1) Every person who
(a) contravenes subsection 13(9), (11) or (12),
(b) without lawful excuse, wilfully resists or otherwise obstructs an investigator in the execution of powers or duties under this Part,
(c) knowingly gives false or misleading information at any investigation of a military-civilian occurrence under this Part, or
(d) makes a report under section 24.1 that they know to be false or misleading
is guilty of an indictable offence and liable on conviction to a term of imprisonment not exceeding two years, or is guilty of an offence punishable on summary conviction.
Offences
(2) Every person who contravenes a provision of this Part, or of the regulations made under this Part, for which no punishment is specified is guilty of an offence punishable on summary conviction.
Evidence
24.6 (1) Subject to subsections (2) and (3),
(a) a report purporting to have been signed by an investigator stating that the investigator has exercised any power under section 13 and stating the results of the exercise of the power, or
(b) a document purporting to have been certified by an investigator as a true copy of or extract from a document produced to the investigator under subsection 13(10)
is admissible in evidence in any prosecution for an offence under this Part without proof of the signature or official character of the person appearing to have signed the report or certified the document and is, in the absence of evidence to the contrary, proof of the statements contained in the report or proof of the contents of the document.
Notice
(2) No report or document shall be received in evidence under subsection (1) unless the party intending to produce it has, at least seven days before producing it, served on the party against whom it is intended to be produced a notice of that intention, together with a copy of the report or document.
Cross- examination
(3) The party against whom a report or document is produced under subsection (1) may require the attendance, for the purposes of cross-examination, of the person who appears to have signed the report or certified the document as a true copy or extract.
Military Investigations under Part I
Application of subsections 18(1) to (9) and sections 22 to 24.1
24.7 Subsections 18(1) to (9), the provisions of sections 22, 23 and 24 relating to on-board recordings, communication records and statements, within the meaning of those respective sections, and the provisions of section 24.1 relating to reporting by civilians under that section apply, with any necessary modifications, in respect of an investigation of an accident or incident relating to aeronautics that the Minister of National Defence has directed the Airworthiness Investigative Authority to carry out other than an investigation of a military-civilian occurrence.
R.S., c. 33 (1st Supp.), s. 4; 1992, c. 4, s. 24(F); 1996, c. 10, s. 205
42. Sections 26 to 28 of the Act are replaced by the following:
Limitation period
26. (1) No measures under section 6.9, proceedings for a violation or proceedings by way of summary conviction under this Act may be instituted later than 12 months after the time when the subject-matter of the measures or proceedings arose.
Exception
(2) The Governor in Council may by regulation specify provisions in respect of which measures under section 6.9, proceedings for a violation or proceedings by way of summary conviction may be instituted within 12 months after the day on which the Minister became aware of the subject-matter of the measures or proceedings.
Certificate of Minister
(3) A document that purports to have been issued by the Minister and certifies the day on which the Minister became aware of the subject-matter of the contravention, violation or offence is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the subject-matter on that day.
Proof of documents
27. (1) In any action or proceeding under this Act, any document purporting to be certified by the Minister of Transport, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency — or, with respect to any matter relating to defence, by the Minister of National Defence or the Chief of the Defence Staff — to be a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document,
(a) evidence of the original document of which it purports to be a copy;
(b) evidence that the original document was made, given or issued by or by the authority of or deposited with the person named in it and was made, given, issued or deposited at the time stated in the certified copy, if the certified copy states a time; and
(c) evidence that the original document was signed, certified, attested or executed by the persons and in the manner shown in the certified copy.
Certificate
(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister of Transport or the Secretary of the Department of Transport — or, with respect to any matter relating to defence, by the Minister of National Defence or the Chief of the Defence Staff — stating that a document, authorization or exemption under this Act
(a) has or has not been issued to or in respect of any person named in the certificate or in respect of any aeronautical product, aerodrome, other facility, equipment or service identified in the certificate, or
(b) having been issued to or in respect of any person named in the certificate or in respect of any aeronautical product, aerodrome, other facility, equipment or service identified in the certificate, has expired, or has been cancelled or suspended as of a date stated in the certificate, and stating, in the case of a suspension, the period of the suspension,
is evidence of the facts stated in it, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof of the certificate.
Document entries as proof
28. In any action or proceeding under this Act, an entry in any record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated in it as against the person who made the entry or was required to keep the record or, if the record was kept in respect of an aeronautical product, an aerodrome, another facility relating to aeronautics, aeronautical equipment or a service relating to aeronautics, against the owner, operator or provider, as the case may be, of the product, aerodrome, other facility, equipment or service.
CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
Access to Information Act
43. Schedule II to the Access to Information Act is amended by replacing the reference to “subsections 4.79(1) and 6.5(5)” opposite the reference to the “Aeronautics Act” with a reference to “subsection 4.79(1), sections 5.392 and 5.393, subsections 5.394(2), 5.397(2), 6.5(5), 22(2) and 24.1(4) and section 24.7”.
1996, c. 10
Canada Transportation Act
2001, c. 29, s. 52(1)
44. The portion of subsection 180(2) of the Canada Transportation Act before paragraph (a) is replaced by the following:
Application of Aeronautics Act
(2) Sections 7.8 to 8.2 of the Aeronautics Act, as those sections read on May 1, 2005, apply to the contravention of a provision, requirement or condition designated under section 177, with any modifications that are necessary, and a reference in any of those provisions or in any document issued under any of those provisions to
1989, c. 3
Canadian Transportation Accident Investigation and Safety Board Act
45. Subsection 18(4) of the Canadian Transportation Accident Investigation and Safety Board Act is replaced by the following:
Investigations to be coordinated
(4) Where a transportation occurrence referred to in subsection (3) is being investigated by the Board and by the Department of National Defence, the Canadian Forces or a visiting force, the Board and the Minister of National Defence — or the Airworthiness Investigative Authority designated under section 11 of the Aeronautics Act, as the case may be — shall take all reasonable measures to ensure that the investigations are coordinated.
R.S., c. P-36
Public Service Superannuation Act
46. The definition “air traffic controller” in section 15 of the Public Service Superannuation Act is replaced by the following:
“air traffic controller”« contrôleur de la circulation aérienne »
“air traffic controller” means a contributor who is or was licensed as an air traffic controller pursuant to regulations made under subparagraph 4.9(a)(i) of the Aeronautics Act;
TRANSITIONAL PROVISIONS
Existing investigations — military-civilian occurrences
47. (1) On the coming into force of Part II of the Aeronautics Act (referred to in this section as “the Act”), as enacted by section 41 of this Act, that Part applies to any investigation already begun of an accident or incident relating to aeronautics that would have been a military-civilian occurrence within the meaning of that Part, and the Airworthiness Investigative Authority designated by the Minister of National Defence under section 11 of the Act shall continue the investigation in accordance with that Part.
Completed investigations — military-civilian occurrences
(2) If, on the coming into force of Part II of the Act, an investigation referred to in subsection (1) has been completed but no report on it has been made, then, on the coming into force of that Part, subsections 18(1) to (9) of the Act and the provisions of sections 22, 23 and 24 of the Act relating to on-board recordings, communication records and statements, within the meaning of those respective sections, and the provisions of section 24.1 of the Act relating to reporting by civilians under that section 24.1 apply.
Existing military investigations
48. If, on the coming into force of Part II of the Aeronautics Act (referred to in this section as “the Act”), as enacted by section 41 of this Act, an investigation by or under the authority of the Minister of National Defence of an accident or incident relating to aeronautics that would not have been a military-civilian occurrence within the meaning of that Part has been begun, or one has been completed but no report on it has been made, then, on the coming into force of that Part, subsections 18(1) to (9) of the Act and the provisions of sections 22, 23 and 24 of the Act relating to on-board recordings, communication records and statements, within the meaning of those respective sections, and the provisions of section 24.1 of the Act relating to reporting by civilians under that section 24.1 apply.
COORDINATING AMENDMENT
1996, c. 10
49. If Bill C-44, introduced in the 1st Session of the 38th Parliament and entitled the Transportation Amendment Act (the “other Act”), receives royal assent, then, on the later of the coming into force of section 35 of this Act and section 68 of the other Act, section 180.1 of the Canada Transportation Act is replaced by the following:
Delegation by Minister
180.1 In the case of a violation referred to in subsection 177(2), the Minister may delegate to the Agency any power, duty or function conferred on the Minister under this Part and under sections 7.8 to 8.2 of the Aeronautics Act, as those sections read on May 1, 2005.
COMING INTO FORCE
Order in council
50. The provisions of this Act, other than section 49, come into force on a day or days to be fixed by order of the Governor in Council.
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