[1] Is the appellant, who operates an aerial sightseeing flight company, entitled to benefit from the rule against multiple convictions, which was initially adopted in Kienapple v. The Queen, [1975] 1 S.C.R. 729, and subsequently applied and elaborated in a number of decisions by the Supreme Court of Canada, including R. v. Prince, [1986] 2 S.C.R. 480 and Krug v. The Queen, [1985] 2 S.C.R. 255?

[2] Generally speaking, the rule, broader than the one governing pleas of autrefois acquit and autrefois convict, and requiring identity of the charges, prohibits convictions for different charges under the same act or different acts, when those charges are brought as the result of one and the same action.

The charges and the initial determination

[3] The appellant was initially found guilty on the four counts brought against it under subsections 601.04(2) and 602.13(1) of the Canadian Aviation Regulations, SOR/96-433 (Regulations), for two acts committed on May 16 and 20, 1999, namely:

First offence

On or about May 16, 1999, according to an eyewitness, an aircraft registered C-FSSA, owned by your company, landed on the Welland River, east of Lyons Creek, in the city of Niagara Falls and then took off.

Second offence

On or about May 20, 1999, according to an eyewitness, an aircraft registered C-GMJH, owned by your company, landed on the Welland River, east of Lyons Creek, in the city of Niagara Falls and then took off.

Third offence

On or about May 16, 1999, according to an eyewitness, an aircraft registered C-FSSA, owned by your company, was operated without authorization in Class F Special Use Restricted airspace CYR518 at Niagara Falls, Ontario. In fact, it took off from the Welland River, east of Lyons Creek.

Fourth offence

On or about May 20, 1999, according to an eyewitness, an aircraft registered C-GMJH, owned by your company, was operated without authorization in Class F Special Use Restricted airspace CYR518 at Niagara Falls, Ontario. In fact, it took off from the Welland River, east of Lyons Creek.

[4] The offences of May 16 involved taking off from the Welland river, in a prohibited area. The two charges for operating the aircraft in regulated airspace are identical, both arising from the acts of taking off on May 16 and 20. The regulated zone is an exclusion zone protecting Niagara Falls, regulating overflights there.

[5] The Civil Aviation Tribunal (Tribunal), which made a determination on the four counts, assessed penalties of $500 for each of the two counts relating to the populated area (counts 1 and 2) and $1,000 for each of the two counts relating to the Special Use Restricted airspace (counts 3 and 4).

The determination of the Tribunal's Appeal Panel (Panel)

[6] On appeal, the Panel applied the rule in Kienapple, supra. As stated by the Panel: "It is the same act of flight on May 16th and the same act of flight on May 20th which grounds both sets of charges. To establish double jeopardy, there must be a legal nexus between the two offences charged. A sufficient nexus between counts 1 and 3 and of counts 2 and 4 will be satisfied if there is no additional or distinguishing element that goes to the culpability contained in the offences which are sought to be precluded . . . It is our view that the offences in counts 1 and 3 are alternative charges as are those found in counts 2 and 4. Hence, where offences overlap as they do in this case, unless there are additional or distinguishing elements, a conviction on both offences should not stand": see Appeal Book, page 62, the Panel determination at page 8.

[7] Accordingly, the Panel confirmed the convictions on counts 1 and 2, but allowed the appeal on counts 3 and 4. It selected the two most serious offences as the rule requires in such cases: see The Queen v. Loyer and Blouin, [1978] 2 S.C.R. 631. Paradoxically, because of the lesser initial penalty on counts 1 and 2, in comparison with counts 3 and 4, i.e. $1,000 in total, the appellant has a lower penalty to pay than the one it would have had to pay if the convictions on counts 3 and 4 had been selected, i.e. $2,000 in total. The Panel acknowledged this particular anomaly in this case and considered that the Aeronautics Act, R.S.C. 1985, c. A-3, did not allow it to intervene in the sentence.

The decision of the Federal Court

[8] The Federal Court allowed the appeal from the Panel's decision and reinstated the convictions on the four counts. It determined that there were distinguishing elements in terms of the legal nexus between the offences which prevented the application of the principle in Kienapple, supra.

[9] Essentially, the Federal Court identified a first distinction between the actus reus elements of the offences, i.e. taking off as opposed to operating an aircraft. Again in terms of the actus reus, it also recognized a difference between the areas constituting elements of the offences, one being a built-up area of a city or town, the other a Special Use Restricted area. On this second difference, the Federal Court wrote at paragraph 24 of its decision:

Operating an aircraft in a restricted air space does not necessarily entail operating the aircraft within a "built- up area of a city or town". It also follows that the air space within a "built-up area of a city or town" is not necessarily restricted air space. Consequently, the elements of the built-up area offence differ from the elements in the restricted airspace offence.

Analysis of the Federal Court's decision

[10] In our opinion, the Federal Court misinterpreted the elements and the legal scope of the rule against multiple convictions. Had it not been for this legal misinterpretation, it would have had no choice but to dismiss the appeal.

[11] The Panel as well as the Federal Court recognized that two conditions must be satisfied in order for the rule against multiple convictions to apply. There must be sufficient proximity between the facts forming the basis of at least two offences. In this case, the existence of this factual nexus is admitted since the charges result from the same act by the appellant, i.e. taking off in an aircraft in a prohibited area. That act forms the basis of the four counts.

[12] As a second condition, there must also be a relationship of sufficient legal proximity between the offences to determine, as stated by the Supreme Court of Canada in Prince, supra, at page 498, that those offences do not have additional and distinguishing elements that go to guilt. It was on this point that the Federal Court erred.

(a) the aircraft taking off versus operating and using the aircraft

[13] Krug, supra, established that an element of the offence is not an additional and distinguishing element if it only particularizes another element. It was therefore decided that pointing a firearm is not an additional element added to the offence of using a firearm. It is only a particular way to use a firearm or make use of it.

[14] Like the decision in Krug, in our opinion the taking off element which we find in the first two offences are only a particularization and specification of the element of operating or using that we find in the third and fourth counts.

[15] Moreover, just like in Prince, supra, and paraphrasing one of its passages at paragraph 36 regarding Parliamentary intent, we do not see in the legislation under review any Parliamentary intent that there be "multiple convictions or added punishment in the event of an overlap". Accordingly, the particularization or specification (taking off) of a more general element (operating) "ought not to be taken as a sufficient distinction to preclude the operation of the Kienapple principle". There remains at issue the other element determined to be distinctive by the Federal Court: the built-up area as opposed to the Class F airspace.

(b) operating in the built-up area versus operating in the Class F Restricted airspace

[16] The Federal Court was not wrong to determine in theory that the airspace inside the built-up area of a city is not necessarily Class F Restricted airspace. Crossing two distinct areas sequentially can give rise to two charges. The legal reality is different, however, when one airspace alone is subject to two use restrictions. Then there is only a single offence for using a restricted area for more than one reason of aviation safety. In such a case, the double violation results from a single act, without an additional or distinguishing element in terms of guilt, i.e. the act of operating an aircraft in an area prohibited by two provisions of the same Regulations. In our opinion, such a situation gives rise to the application of the principle in Kienapple, supra.

[17] In this case, to benefit from the rule against multiple convictions, the appellant had to establish that the act of taking off could not take place without automatically violating both subsections of the Regulations. In other words, there must be an overlap of the two regulated areas where the impugned operation of the aircraft took place, such that it was impossible to take off from that place without contravening both provisions of the Regulations at the same time.

[18] The evidence - undisputed on this point - established that the place of take off on the Welland river, which is in a built-up area of a city, is also located inside the Class F Special Use Restricted airspace CYR518. Under those circumstances, the Panel was correct to apply the rule against multiple convictions to the act of the aircraft taking off.

[19] The respondent's counsel argued that there was a distinguishing element in terms of the two operating prohibitions for the area at issue because, in the case of the two first offences, authorization to use the area had to be given by the Minister while, in the case of the two other offences, it had to be obtained from a designated person in the Designated Airspace Handbook.

[20] With respect, this argument must fail because the important element in terms of authorization is the very lack of authorization. This lack of authorization is a common element of the actus reus for each of the four charges against appellant. On that point there is no distinguishing element to justify excluding the principle in Kienapple, supra.

[21] Finally, the respondent acknowledged that the last distinguishing factor accepted by the Federal Court pertained to a defence rather than to an element of the offence, the result being that that factor cannot be taken into consideration.

[22] For these reasons, the appeal will be allowed with costs, the order by the Federal Court dated June 12, 2003, will be set aside and the decision by the Civil Aviation Tribunal Appeal Panel dated September 19, 2001, will be restored.

"Gilles Létourneau"

J.A.

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET: A-409-03

STYLE OF CAUSE: DELCO AVIATION LIMITED v. MINISTER OF TRANSPORT

PLACE OF HEARING: Montréal, Quebec

DATES OF HEARING: January 10 and 13, 2005

REASONS FOR JUDGMENT LÉTOURNEAU J.A.

OF THE COURT: NOËL J.A.

PELLETIER J.A.

DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.

DATE OF REASONS: January 13, 2005

APPEARANCES:

Stéphane Gauthier FOR THE APPELLANT

Bernard Letarte FOR THE RESPONDENT

Marie-Eve Sirois Vaillancourt FOR THE RESPONDENT

SOLICITORS OF RECORD:

CAIN LAMARRE CASGRAIN WELLS FOR THE APPELLANT

Montréal, Quebec

John Sims FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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