Canada: R v. Shah – Lessons Learned From Canada's First Drone Case

Last Updated: June 7 2019
Article by Kathryn McCulloch and Rachael Andrew

Few judicial decisions exist in Canada relating to the operation of drones or remotely piloted aircraft systems (RPAS). In R v. Shah, the Provincial Court of Alberta released its decision on the first reported case on drones in Canada.1 Although the key charging section in this case has since been revised, and this case was decided before the most current regulations came into force, the decision in Shah offers valuable insight into the unique risk factors associated with drone operations. The discussion in Shah has significant implications relating to airspace safety as drones continue to integrate into Canada's airspace.

Facts and law

On the night of January 17, 2017, Mr. Shah was operating a drone in a park located close in proximity to the Calgary International Airport (YYC). A member of the air support unit of the Calgary Police Service noticed the blinking lights of the drone while patrolling the surrounding area.  

The police were concerned that the drone was being illegally operated in the restricted area near the airport. The police seized the drone and charged Mr. Shah with a summary offence under section 602.45 of the Canadian Aviation Regulations (CARs). The regulation prohibited the flight of a model aircraft "in a manner that is or is likely to be hazardous to aviation safety."2 Under the current regulations, a comparable prohibition under section 900.06 states that "no person shall operate a remotely piloted aircraft system in such a reckless or negligent manner as to endanger or be likely to endanger aviation safety or the safety of any person."

Risks to aviation safety

The Court heard expert evidence provided by Mark Wuenennberg, a Civil Aviation Inspector with Transport Canada. The testimony was necessary to understand the interrelationship between drones, and the landing and departing aircraft at the Calgary International Airport.3 Not only was Mr. Wuenennberg a licensed pilot with more than 4000 flying hours, he also had extensive experience with drones. He had previously authored advisory circulars on drones as a subject matter expert for Transport Canada.4

Mr. Wuenennberg identified two primary risks associated with drone operations: (i) loss of link; and (ii) "fly away":

  1. Loss of link occurs where a drone loses connection with the device controller.5 Some models are equipped with special features that deal with loss of link by automatically returning the drone to its point of origin in the event of loss of link; and
  2. "Fly away" refers to a situation where the device experiences a total loss of control and does not behave predictably.6 Interestingly, this type of problem occurs more often than may be expected. Mr. Wuenennberg testified that the occurrence rate for such instances could be as high as 40 percent with certain types of drones.

Evidently, these situations can be extremely dangerous. An operator losing control of their device without the proper safety features could potentially pose a significant risk to aviation safety. This is especially true in cases such as Shah occurring in close proximity to airports.

Factors of significance

Mr. Wuenennberg acknowledged three additional factors of significance in Shah that are applicable to the general safety and everyday operation of drones:

Night Operations: Because the incident occurred at night, the depth perception of both the operator and pilots of manned aircraft could have been negatively impacted. Darker conditions make it difficult for drone operators to accurately estimate the height and relative distance of their own aircraft, as well as other aircraft nearby. Furthermore, pilots of manned aircraft in the area would experience similar difficulties.

Cold Air: The air temperature in a cold winter's night can also play a role in safely operating a drone. Colder temperatures increase the density of the air, and consequently, the efficiency of the propellers on a drone.7 Colder air enables a device to operate at even higher altitudes, which could lead to interference with other aircraft in the area. This factor is of particular concern when operating a drone close to an airport, due to increased air traffic where planes are departing and landing frequently.

Airworthiness issues: Many drones available to the public are not built or designed in compliance with any recognized standards.8 Though the incoming drone regulations (which come largely into force on June 1, 2019) require that drones used in commercial operations comply with certain manufacturing specifications, many drone flights will still be able to take place with drones that adhere to specific standards.

Insight into drone regulatory offences

Transport Canada stated that in 2015, the number of reported incidents more than doubled from 2014 to a total of 86. In 2016, 148 incidents occurred specifically near aerodromes alone. A great majority of the incidents have been from recreational and non-compliant drone operators, and occurring within 5NM (9.25 km) of the center of aerodromes and at excessive altitudes. Thus, although the charging provisions in Shah have since been reformed, the decision discusses several risks and circumstantial factors that are unique to drones. Indeed, the emphasis on safety and operations at excessive heights or within a certain distance of an aerodrome is a significant focus of the recent amendments to Canada's drone regulations that will soon be in force.

Key takeaways for drone operators

The discussion in Shah regarding strict liability offences provides valuable insight into how courts may consider and decide drone regulatory offences, particularly the offences pertaining to flying a drone within a certain distance of an aerodrome or other area. For strict liability offences, the Crown only needs to prove beyond a reasonable doubt that an act violates the regulations. However, once the act is proven, the defendant can establish a due diligence defence or reasonable excuse on a balance of probabilities.

Drone operators must comply with the rules for operations as set out in the regulations and other applicable laws; they should also consider whether their conduct is reasonablein the circumstances. As drones become even more commonplace in Canada's airspace, more cases will be decided and will provide more guidance to drone operators on how to comply with the current drone regulations.

Footnote

1 2017 ABPC 259 [Shah].

2 Ibid at para 3.

3 Ibid at para 10.

4 Ibid at para 11.

5 Ibid at para 21.

6 Ibid.

7 Ibid at para 23.

8 Ibid.

About Dentons

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com

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. Specific Questions relating to this article should be addressed directly to the author.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions