Canada: Game of Drones: An Introduction on How to Navigate Legal Airspace

Last Updated: May 24 2016
Article by Laura Emmett

The fastest growing sector within the aerospace industry is undoubtedly Unmanned Aerial Vehicles, commonly known as drones. They are characterized as devices that can be used for multiple reasons including commercial, combat, real estate, emergency, academic, surveillance and recreational purposes. By definition, a drone is a term that refers to "any vehicle that can operate on surfaces or in the air without a person on board to control it".1

Given the wide array of shapes and sizes that drones can take on, they have become increasingly popular. They can be very inconspicuous depending on the design of the drone and may blend in with their surroundings. In fact, some drones operate almost silently and can include biomimetics, which enables the drone to look like wildlife and plants. If you have seen Helen Mirren's movie "Eye In the Sky" you have seen an example of this, where a drone disguised as a beetle infiltrates the house of a terrorist for reconnaissance purposes.

What are Drones Used For?

In the public sector, drones are frequently used for national security, intelligence gathering, public safety, infrastructure protection, crisis management and environmental research purposes.2 Privately, drones are used for research, exploration, image capturing, mapping and monitoring purposes, to name a few.

Drones can be customized to fit numerous technological devices so they can adapt to differing situations, with their only limitation being payload capacity (how much weight they can carry). The equipment that can be affixed to a drone includes cameras (with features such as night vision, thermal imaging, and infrared settings) and radar. When combined with wireless transmission functions, drones can send real time audio and visual data back to their operators. For instance, it was discovered that the Pentagon had spent millions of dollars on a hummingbird drone, amongst others, that had a 6.5-inch wingspan and weighed less than a AA battery. These drones can fly at speeds up to 11 miles per hour, all with a video camera affixed to its midsection. The hummingbird is remote controlled, and can fly vertically, sideways, forward, backward, and rotate in all directions.3

The Future of Drones

Industry Canada estimates that drone use is expected to grow domestically as the industry becomes more commercially viable and the regulatory environment becomes more accommodating.4 Current global drone production is estimated to be $4 billion annually, and is projected to grow to approximately $93 billion within the next decade.5 This represents a compound annual growth rate just shy of 40%!

What are the Drone Legal Considerations?

As drones become more prevalent, several legal considerations have emerged that impact drone operators, who must be cognizant of these risks and potential liability. The following are a few of the risks that must be planned for:

  • Drone makers must be aware of product liability laws that apply within the manufacturing, distribution and sale of drones.
  • There are insurance considerations involving first and third party property damage, first and third party personal injury and privacy violations.
  • Improper drone operation may trigger provisions contained in the Trespass Act and can even result in criminal charges.
  • Drones are further regulated by federal, provincial and municipal laws, which will vary geographically across Canada.

The consequences of failing to consider or understand these issues can result in significant exposure to liability for drone operators, both criminally and civilly. Drone operators who improperly use these devices could be subject to criminal charges, statutory fines and expensive civil litigation if their drones are not used responsibly.

The number of legal considerations that impact on drone use and operation are complex and frequently changing, thus a continued proactive approach must be adopted to minimize risk. Lerners LLP has adopted a focus on how the legal environment will impact the use of drones, and will release a series of blog articles over the next few months that provide discussion on some of these issues.

1Office of the Privacy Commissioner, Drones in Canada: Will the Proliferation of Domestic Drone use in Canada Raise New Concerns for Privacy: https://www.priv.gc.ca/information/research-recherche/2013/drones_201303_e.asp
2Office of the Privacy Commissioner, supra note 1.
3NBC News, On the wings of technology: Hummingbird drones: http://www.nbcnews.com/id/41837647/ns/technology_and_science-science/t/wings-technology-hummingbird-drones/#.Vyy5bf7mo3E
4Office of the Privacy Commissioner, supra note 1.
5Phil Finnegan, UAV Production Will Total $93 Billion: http://www.tealgroup.com/index.php/teal-group-news-media/item/press-release-uav-production-will-total-93-billion

www.lerners.ca

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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