• R v Shah, 2017 ABQB 144, per Antonio, J. and R v Shah, 2017 ABPC 259, per Hawkes, P.C.J. [4256]
  • January 4, 2018
  • I. FACTS AND ISSUES

    On the evening of January 17, 2016, Shah was flying a drone recreationally in a park in Northeast Calgary, south of a Calgary International Airport runway. A Calgary Police Officer on patrol as a passenger in a police vehicle, noticed lights in the sky that he estimated to be at a height at or above the trees in the area. He gave differing evidence of that height between the time of the first trial and second trial, eventually stating that the lights were seen at about 80 feet and then going down to the ground. The Officer directed his partner to drive to the park where they saw Shah walking to his car with a drone. The police seized the drone and charged Shah under several provisions in the Criminal Code and the Canadian Aviation Regulations. Shah’s drone weighed less than a pound.

    By trial, the only remaining charge before the Court was under section 602.45 of the Canadian Aviation Regulations, which, at the time, prohibited the operation of a kite, rocket or model aircraft to be flown “in a manner hazardous or likely hazardous to aviation safety.” Because Shah was not flying the drone for commercial purposes, it fell under the definition of a “model aircraft” and not a drone or UAV. At the first Provincial Court trial, the Judge Semenuk found that the provision had been contravened. His decision was appealed to the Court of Queen’s Bench.

    On appeal, the Queen’s Bench confirmed that section 602.45 required the Crown to prove beyond a reasonable doubt that the drone was operated “in a manner hazardous or likely hazardous to aviation safety” and that the Trial Judge had erred by failing to apply this standard or provide remarks as to whether the evidence before the judge was sufficient to meet the standard and ordered a new trial.

    When the matter returned to trial, Judge Hawkes considered all of the evidence, including new expert evidence provided by a Civil Aviation Inspector who testified about his direct experience flying manned and unmanned aircraft. This expert stated he was familiar with the type of drone used by Mr. Shah and opined that similar devices could fly to at least 500 feet. He indicated that if the drone was operating at 80 feet over the park, it would be at worst a nuisance or distraction to aircraft landing on runway 35 Left. There were no aircraft landing on this runway at the time Mr. Shah was flying his drone. Despite this evidence, Judge Hawkes found that the Crown had met the burden of proof.

    II. HELD: For the Crown; Shah found guilty but obtained a conditional discharge.
    1. In arriving at his decision, Judge Hawkes stressed the fact that Mr. Shah had been found guilty of creating a likely hazard to aviation safety.
    [45] In arriving at that conclusion I am aware of the fact that there were no departing aircraft using that runway at the time. However, as [the expert] testified, the assignment of runways is at the discretion of the control tower. Runways are assigned based on wind direction and other factors. The possibility that 17 Right could be used for departing aircraft is not so remote as to remove it from the continuum of “likely hazard”. I also note that the assignment of either of these runways for either arrival or departure would not be known to a drone operator at the park until he actually saw arriving or departing aircraft. By then it may be too late to avoid at least the likely if not the actual hazard posed by this conduct.

    III. COMMENTARY:

    After Shah was convicted at his first trial, Field Law’s Erika Carrasco represented him on the successful appeal such that it was sent back for a new trial.

    With respect, it appears that the Judge’s interpreted the words “likely hazardous” to be essentially equivalent to “possible”.

    While Shah’s case seems to have served as deterrent to all recreational drone operators to stay away from airports, Canada’s drone regulations are evolving. If Shah had been seen flying his drone today, he would not have been charged under section 602.45, or at all. In fact, section 602.45 of the Canadian Aviation Regulations no longer applies to drones, due to the effect of section 4 of “Interim Order No. 8 – Respecting the Use of Model Aircraft,” which is now in force across Canada. There is every indication that the legislature intends to continue with this trend. On July 15, 2017, Transport Canada proposed changesto the Canadian Aviation Regulations applicable to both commercial and recreational drone operators. These proposed changes were published in the Canada Gazette Part I and are predicted to enter into force sometime in 2018. Of note, these proposed changes include a provision which mirrors section 4 of the Interim Order, and will exempt drones less than .55 pounds (or 250 grams) from regulation whatsoever.