Her Majesty the Queen - v. -, 2012 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 024 Date: March 5, 2012 Information: 35963817 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Norman Edward Colhoun Appearing: David Rusnak For the Crown Self For the Accused CHARTER DECISION R. GREEN , J I. OVERVIEW [ 1 ] Norman Colhoun is charged under s. 7.3(1)(

e) of the Aeronautics Act with wilfully operating an aircraft on March 29, 2010 near Yorkton, when that aircraft had been detained under the provisions of that Act . During the course of the trial Mr. Colhoun claimed that his right to be secure from unreasonable search under s. 8 of the Canadian Charter of Rights and Freedoms had been violated by the manner in which inspectors from Transport Canada dealt with the aircraft in question - a Rockwell International S2R, bearing United States registration marks N4190X - on January 6, 2010 in Moose Jaw.

[ 2 ] Mr. Colhoun claims that the actions of these inspectors, which culminated in a notice of detention being attached inside the cockpit of this aircraft, constituted a search that violated his rights under s. 8. In particular he claims the actions taken by the Transport Canada inspectors, regarding this aircraft, were done without a search warrant and without his permission and contrary to Transport Canada policy MSI 46. He seeks to exclude the evidence that resulted from this Charter breach under s. 24(2) of the Charter , specifically the notice of detention. [ 3 ] Both the Crown and defence presented evidence on the Charter voir dire . On August 25, 2011, the Crown called as witnesses:

(1) Thomas Bennett, an employee of Transport Canada who was the inspector who detained this aircraft;

(2) Jonathon Plomp, an employee of Provincial Airways who was working at the Moose Jaw hangar on the day this aircraft was detained;

(3) Michael Yaholnitsky, owner of Miccar Aerial and Good Spirit Air Service in Yorkton; and

(4) Nicholas Denesowych, an aircraft maintenance engineer who worked on this aircraft in Yorkton. On the next court date of December 22, 2011, the Charter voir dire continued. Mr. Colhoun testified on the voir dire and then recalled Mr. Bennett as a witness and, in conclusion, called Captain James Wellwood as a witness. Captain Wellwood is the Acting Manager of Aviation Enforcement for Transport Canada in Winnipeg and was the official in charge of this investigation and the Informant on this Information. [ 4 ] With the exception of Mr.

Colhoun’s evidence, the evidence presented on the Charter voir dire was applied, with the consent of the parties, to the trial proper: with the evidence of Thomas Bennett (initially), Jonathon Plomp, Michael Yaholnitsky and Nicholas Denesowych forming the Crown’s case at trial, and the evidence of Mr. Bennett (when recalled by Mr. Colhoun) and of Captain Wellwood forming part of the defence evidence. Mr. Colhoun then sought to recall Mr. Yaholnitsky to testify as part of his defence case, and this trial was adjourned to March 5, 2012, so that Mr.

Colhoun could subpoena that witness and so that my decision on the Charter issue could be prepared for today. [ 5 ] Mr. Bennett, an aviation enforcement investigator and licenced aircraft maintenance engineer, said that he was tasked with doing a review of past issues with this aircraft. Given his understanding of the aircraft’s history and deficiencies, he formed the opinion that there were immediate safety concerns about this aircraft. As a result, on January 6, 2010, Mr.

Bennett, together with two other inspectors from Transport Canada, attended to the Provincial Airways hangar in Moose Jaw where this aircraft was in the course of repairs. [ 6 ] Upon a visual inspection of the aircraft, the inspectors noted a number of deficiencies in the condition of this aircraft. Mr. Bennett said all of these deficiencies were observed from the outside of the aircraft, including a concern about a lack of an installed compass, which he could not see in the cockpit of the aircraft when he looked through the window of the aircraft.

While some of the panels of the aircraft had been removed before the inspectors arrived, presumably by those mechanics working on the aircraft at this hangar, he denied that he or any of the inspectors removed any panel or any other part or piece of equipment from the aircraft. [ 7 ] Mr. Bennett said, based on what was learned from the inspection, a substantial amount of work was required on this aircraft to make it safe. He said the structural damage and defects observed during the inspection were written onto so-called snag sheets (Exhibits P-1 and D-1).

These concerns were described on the sheets as: (1) right hand brake pads require replacement; (2) belly skin cracks at cutout aft of hopper bottom and at boom mount struts; (3) right hand outboard boom hangar to wing attach bolt are not in safely; (4) tail brace wires and fittings are badly corroded; (5) tail brake flying wires are out of tension (loose); (6) number of tail wheel bolts/nuts are not in safely;

(7) right hand outboard elevator hinge worn; (8) left hand elevator trim tab linkage forward rod end is very loose, excess free play in trim tab; (9) no fuel filter placards as required by FAA type certificate A4SW Rev.

No. 28; (10) left hand wingtip has a dent in trailing edge, tear in leading edge, and corrosion on the lower surface; (11) no installed compass could be found; (12) left hand windscreen had a two inch square hole at the top and a three inch crack on the left edge; (13) unidentified open hoses suspended in cockpit; and (14) com unit and intercom units are a “tyrap” installation. [ 8 ] Based on the inspection, Mr. Bennett made the decision to detain this aircraft. The snag sheets together with the detention order were attached centrally in the cockpit of the aircraft (as pictured in Exhibits P-2 and P-3). Mr.

Bennett said he attached these documents to the yoke in the centre of the cockpit of the aircraft, by reaching into the aircraft and securing the notice and snag sheets with a piece of wire. He denied that putting his arm into the unlocked aircraft had any purpose other than securing these documents, and further denied that he, or any of the other inspectors, physically entered the aircraft. [ 9 ] The Crown - while maintaining that this was an inspection and not a search, that none of the inspectors including Mr. Bennett entered this aircraft and that any expectation of privacy Mr.

Colhoun may have had to the interior of this aircraft was at the low end of the scale, given the aircraft was located in a commercial hangar for purposes of repair - submitted that, regardless of how the actions of the inspectors were ultimately categorized, these actions were authorized by s. 8.7(1) of the Aeronautics Act , which provides: 8.7.

(1) Subject to subsection (4), the Minister may (

a) enter, for the purposes of making inspections or audits relating to the enforcement of this Part, any aircraft, aerodrome or other aviation facility, 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 or not 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, in the case of a document, copying; (

b) enter any place for the purposes of an investigation of matters concerning aviation safety; (

c) seize anything found in any place referred to in paragraph (

a) or (

b) that the Minister believes on reasonable grounds will afford evidence with respect to an offence under this Part or the causes or contributing factors pertaining to an investigation referred to in paragraph (b); and

(

d) detain any aircraft that the Minister believes on reasonable grounds is unsafe or is likely to be operated in an unsafe manner and takereasonable steps to ensure its continued detention. [10] The test I am to apply in determining whether Mr. Colhoun’s rights under s. 8 were violated is taken from R. v. Collins, (SCC), [1987] 1 S.C.R. 265. At para. 23, the Supreme Court of Canada held, in the context of a police search for narcoticswhich was claimed to be an unreasonable search contrary to Ms.

Collins’ rights under s. 8 of the Charter: [23] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search wascarried out is reasonable.

In this case, the Crown argued that the search was carried out under s. 10(1) of the Narcotic Control Act, supra.As the appellant has not challenged the constitutionality of s. 10(1) of the Act, the issues that remain to be decided here are whether thesearch was unreasonable because the officer did not come within s. 10 of the Act, or whether, while being within s. 10, he carried out thesearch in a manner that made the search unreasonable. [11] In this case, no challenge is taken to the constitutionality of s. 8.7 of the Aeronautics Act. As a result, the issues to bedetermined in deciding whether Mr.

Colhoun’s rights under s. 8 have been breached, are:

(1) Did the actions of the inspectors constitute a search?;

(2) If so, was the search conducted by the inspectors unreasonable because the inspectors did not act as authorized under s. 8.7?; and

(3) If this was a search authorized by s. 8.7, was it, nevertheless, done in a manner that made the search unreasonable? II. ANALYSIS OF WHETHER A S. 8 BREACH OCCURRED Did the actions of the inspectors constitute a search? [12] Mr. Colhoun argued that there was no distinction, in law, between an inspection and a search. However, in R. v. Hebb (1985), (NS CA), 17 C.C.C. (3d) 545, the Nova Scotia Court of Appeal held that a visual examination by a police officer ofthe interior of a vehicle from the outside did not constitute a search within the meaning of s. 8 of the Charter.

The Hebb case was citedwith approval by Gerein J. (as he then was) in R. v. Amundrud (1990), (SK KB), 88 Sask. R. 245 (Sask. Q.B.). In thatcase, a police officer observed Mr. Amundrud to be passed out on the front seat of his running automobile through the window of thatvehicle, and opened the door of the vehicle to see if this man needed assistance. Justice Gerein found, in the circumstances of this case,that the officer’s actions did not constitute a search. He noted that, when the officer opened the door of this vehicle, he was not seekingout evidence. [13] Further, in R. v.

Hufsky, (SCC), [1988] 1 S.C.R. 621, the Supreme Court of Canada held that a demand by apolice officer made to a driver to surrender his driver’s licence and insurance card, under provincial legislation, did not constitute asearch within the meaning of s. 8 of the Charter because “it did not constitute an intrusion on a reasonable expectation of privacy” (atpara. 23). [14] Based on the authority of Hebb and Amundrud, I am not satisfied that the visual inspection of this aircraft by the TransportCanada inspectors from the exterior of the aircraft constituted a search within the meaning of s. 8.

Regarding the actions of Mr. Bennettin reaching into the cockpit of this aircraft to secure the snag sheets and the detention notice, I accept his evidence that the sole reason hedid so was to secure these documents and that his actions did not form part of his inspection of the aircraft. Further, I am not satisfiedthat there was any reasonable expectation of privacy by Mr. Colhoun against this form of intrusion, considering both the purpose of Mr.Bennett’s actions in putting his arm into the aircraft and the location of this aircraft, in a commercial aircraft hangar where repairs werebeing conducted on it.

[ 15 ] In total, I am not satisfied that the actions of any of the Transport Canada inspectors, on January 6, 2010 in Moose Jaw, constituted a search within the meaning of s. 8 of the Charter . Were their actions authorized by s. 8.7 of the Aeronautics Act ? [ 16 ] If I am wrong in my conclusion that the actions of the inspectors did not constitute a search, nevertheless, there is no question in my mind that the actions of the inspectors were authorized by s. 8.7 of the Aeronautics Act . That

section provides that the Minister, whose powers I am satisfied can be exercised through Transport Canada inspectors, provides the authority to: (1) enter a hangar such as the one in this case for the purpose of an investigation of matters concerning aviation safety; and (2) detain any aircraft that the Minister believes on reasonable grounds is unsafe or is likely to be operated in an unsafe manner. That, in my view, was exactly what Mr. Bennett and the other inspectors did in Moose Jaw on January 6, 2010.

If the actions of the inspectors constituted a search, was that search unreasonable? [ 17 ] If I am wrong in my conclusion that the actions of the inspectors did not constitute a search, I am nevertheless not satisfied that the search, as authorized by s. 8.7, was unreasonable. [ 18 ] Mr. Colhoun submitted that an unreasonable search occurred because: the actions of the inspectors were contrary to portions of a written policy of Transport Canada, entitled “Maintenance and Manufacturing Staff Instructions, MSI 46" (Exhibit D-3).

The subject of this policy, which was issued July 31, 2004, is stated to be “Suspension or Cancellation of Flight Authorities”. In particular, Mr. Colhoun submits that the inspectors violated ss. 9.1(

a) and (

b) of that policy, which appear under the heading: “9. Foreign Registered Aircraft”. These subsections read: 9.1 The foregoing procedure for suspending Certificates of Airworthiness and Flight Permits is not applicable to foreign registered aircraft. In its place, the following procedure is to be used: (

a) Civil aviation safety inspectors may inspect foreign registered aircraft under subsection 8.7(1) of the Aeronautics Act , demand the owner/operator or an authorized representative to produce certificates, documents and logbooks under subpart 103 of the CAR’s and seize them under paragraph 8.7(1)(

c) of the Aeronautics Act , if they believe that such material will afford evidence with respect to an offence under

Part I of the Act . If inspectors suspect that an offence has been committed they must obtain a warrant to enter and search the aircraft. (

b) If, upon inspection, the foreign registered aircraft is found to be unsafe for flight, the inspector should record the defects on a Letter of Notification 24-0018 and present a copy to the owner/operator or authorized representative. A copy of the letter should be sent by the quickest means to Headquarters attention the Director, Maintenance and Manufacturing. The person who receives the Letter of Notification should be advised of a course of action acceptable to Transport Canada.

Should any maintenance work be required on an aircraft registered in a state with which Canada has a bilateral airworthiness agreement, the owner/operator should be reminded of the agreement. Mr.

Colhoun submits that the inspectors in this case violated this policy, as they searched this aircraft without a warrant, without his consent, and, following the search, without providing a Letter of Notification 24-20018. [ 19 ] Regarding this policy, Captain Wellwood testified that MSI 46 was not a policy he was aware of, as it applied to the Maintenance and Manufacturing Division of Transport Canada, and not to the Aviation Enforcement Division, of which he was Acting Manager for the prairie provinces and the three northern territories of Canada. After reviewing the policy, he said this policy had to do

with the suspension of flight permits and authorities, and not to the detention of an aircraft as was done by the inspectors this day. He said the Aviation Enforcement Division was charged with the responsibility of ensuring that an aircraft is mechanically safe, and that his inspectors have a duty to detain an aircraft if they believe it is unsafe or is about to be operated in an unsafe manner.

In connection with that responsibility, he said his division responds to complaints from the public, and did so in this case. [ 20 ] Based on Captain Wellwood’s evidence, I accept that policy MSI 46 was not intended to govern the form of investigation undertaken by Mr. Bennett and the other investigators, on behalf of the Aviation Enforcement Division. As a result, I am not satisfied that Mr. Bennett was obligated by Transport Canada policy to obtain a warrant before entering the aircraft or to provide a Letter of Notification 24-0018 to the owner/operator.

Nor am I satisfied that the inspectors required any consent from Mr. Colhoun to enter the hangar in Moose Jaw. [ 21 ] In my view, the actions of the inspectors, regarding this aircraft, were minimally intrusive: visually inspecting the aircraft and reaching into an unlocked cockpit to attach the detention order and snag sheets.

Taken together with what I find was a limited expectation of privacy to this aircraft - left in the custody of Provincial Airways in a commercial hangar for purposes of repair - I am not satisfied that the actions of the inspectors, if indeed they did constitute a search, were unreasonable. III. CONCLUSION [ 22 ] Given my analysis, above, I am not satisfied that Mr. Colhoun’s rights under s. 8 of the Charter were violated by the actions taken by the inspectors on January 6, 2010 in Moose Jaw. The defence application under s. 24(2) is therefore dismissed. ______________________ R. Green, J