Aeronautics Act (R.S.C., 1985, c. A-2)

Marginal note:On-board recording — board of inquiry

• 23 (1) The Authority shall make available to a board of inquiry convened under section 45 of the National Defence Act any on-board recording in respect of an aircraft, whether or not that aircraft has been involved in a military-civilian occurrence, if

  • (a) the president of that board makes a written request, together with reasons, for access to the on-board recording; and

  • (b) after considering the reasons, the Authority determines that

    • (i) the aircraft was operated by or on behalf of the Canadian Forces when the on-board recording was made, and

    • (ii) the public interest in the proper administration of the Canadian Forces outweighs in importance the privilege attached to the on-board recording by virtue of section 22.

• Marginal note:Notice of refusal

  (2) If the Authority refuses the request, he or she shall give written notice of the refusal to the president and reasons for it.

• Marginal note:Request to Minister

  (3) On receipt of the notice of refusal, the president may make a written request to the Minister for access to the on-board recording. If the president makes such a request, he or she shall include the written reasons originally submitted to the Authority, along with the Authority’s reasons for refusal, and may include additional written representations, a copy of which is to be provided to the Authority.

• Marginal note:Determination by Authority — additional representations

  (4) The Authority shall, on receipt of any additional representations, consider them and,

  • (a) if he or she determines that the representations raise a new issue and makes the determinations listed in paragraph (1)(b), he or she shall so notify the Minister and make available the on-board recording to the board of inquiry; or

  • (b) if he or she determines that the representations do not raise a new issue or determines that the representations do raise a new issue but does not make the determinations listed in paragraph (1)(b), he or she shall not make available the on-board recording to the board of inquiry, shall give written notice to the Minister of the determination and the reasons for it, and shall provide a copy to the president.

• Marginal note:Consideration by Minister

  (5) On receipt of a request under subsection (3) without any additional written representations, the Minister shall consider the reasons included with the president’s request. If a request under subsection (3) includes additional written representations, the Minister shall, on receipt of notice of the Authority’s refusal under paragraph (4)(b) to make available the on-board recording to the board of inquiry, consider the reasons included with the president’s request together with the additional written representations and the Authority’s written reasons for the refusal in response to those representations. The Minister may, in consideration of the request, examine the on-board recording in camera.

• Marginal note:Determination by Minister

  (6) The Minister shall

  • (a) direct the Authority to make the on-board recording available to the board of inquiry, subject to any restrictions or conditions that the Minister considers appropriate, if the Minister makes the determinations listed in paragraph (1)(b); or

  • (b) so notify the president and the Authority if the Minister does not make the determinations listed in paragraph (1)(b).

• Marginal note:Decision final

  (7) The Minister’s decision is final and binding and not subject to appeal or review by any court.

• Marginal note:Exception

  (8) Despite subsection 22(9), an on-board recording that is made available to a board of inquiry under this section may be used in other proceedings relating to the capacity or competence of any person who is subject to the Code of Service Discipline set out in Part III of the National Defence Act.

Definition of communication record

• 24 (1) In this section, communication record means the whole or any part of any record, recording, copy, transcript or substantial summary of any type of communications respecting air traffic control or related matters that take place between any of the following persons: air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters.

• Marginal note:Restriction

  (2) A communication record obtained in the course of an investigation of a military-civilian occurrence under this Part is not to be used against a member of the Canadian Forces or any person referred to in subsection (1) in any legal proceedings or, subject to any applicable collective agreement, in any disciplinary proceedings.

Definition of statement

• 24.1 (1) For the purposes of this section and section 14, statement means

  • (a) the whole or any part of an oral, written or recorded statement relating to a military-civilian occurrence that is given by the author of the statement to the Authority, an investigator or any person acting for the Authority;

  • (b) a transcription or substantial summary of a statement referred to in paragraph (a); or

  • (c) conduct that could reasonably be taken to be intended as such a statement.

• Marginal note:Statement privileged

  (2) A statement and the identity of the person who made it are privileged and, except as provided by this Part or as authorized in writing by the person who made the statement, no person, including any person to whom access is provided under this section, shall knowingly communicate a statement or permit it to be communicated to any person, or disclose the identity of the person who made it.

• Marginal note:Use by Authority

  (3) The Authority may use any statement as he or she considers necessary in the interests of aviation safety.

• Marginal note:Access by coroners and other investigators

  (4) The Authority shall make statements available

  • (a) to a coroner who requests access to them for the purpose of an investigation that the coroner is conducting; and

  • (b) to any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.

• Marginal note:Power of court or coroner

  (5) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of a statement is contested on the ground that it is privileged, the court or coroner shall

  • (a) examine the statement in camera; and

  • (b) if the court or coroner concludes that, in the circumstances of the case, the public interest in the proper administration of justice outweighs in importance the privilege attached to the statement by virtue of this section, order the production and discovery of the statement, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.

• Marginal note:Restriction

  (6) A statement is not to be used against the person who made it in any legal, disciplinary or other proceedings except in a prosecution for perjury or for giving contradictory evidence or a prosecution under section 24.6.

• Definition of court

  (7) For the purposes of subsection (5), court includes any person appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.

Marginal note:Reporting of military-civilian occurrences

• 24.2 (1) The Governor in Council may make regulations for the establishment and administration of systems for the mandatory or voluntary reporting by civilians to the Authority of any of the following:

  • (a) military-civilian occurrences;

  • (b) any other accident or incident involving an aircraft or installation referred to in subparagraph (a)(i) of the definition military-civilian occurrence in subsection 10(1);

  • (c) any situation or condition that the Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (b); and

  • (d) any classes of the occurrences, accidents, incidents, situations or conditions referred to in any of paragraphs (a) to (c) that are specified in the regulations.

• Marginal note:Use of reports

  (2) The Authority may, subject to this section, use any report made under regulations made under subsection (1) that he or she considers necessary in the interests of aviation safety.

• Marginal note:Protection of identity

  (3) Regulations made under subsection (1) may provide for the protection of the identity of persons who make a report under those regulations.

• Marginal note:Certain information privileged

  (4) If a person’s identity is protected by provisions referred to in subsection (3), information that could reasonably be expected to reveal that identity is privileged, and no person shall knowingly communicate it or permit it to be communicated to any person.

• Marginal note:Legal proceedings

  (5) No person is to be required to produce information referred to in subsection (4) or to give evidence relating to the information in any legal, disciplinary or other proceedings.

• Marginal note:Restriction

  (6) A report made under a voluntary reporting system established by regulations made under subsection (1) is not to be used against the person who made the report in any legal, disciplinary or other proceedings if the person’s identity is protected by provisions referred to in subsection (3).

Evidence of Authority and of Investigators

Marginal note:Appearance of investigator

24.3 Except for proceedings before and investigations by a coroner, neither the Authority nor an investigator is competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for special cause.

Marginal note:Opinions inadmissible

24.4 An opinion of the Authority or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings.

Regulations

Marginal note:Regulations

• 24.5 (1) The Governor in Council may make regulations

  • (a) prescribing the manner of exercising or performing any of the powers, duties and functions of an investigator designated under subsection 13(1);

  • (b) respecting the keeping and preservation of records, documents and other evidence relating to military-civilian occurrences;

  • (c) respecting the attendance of interested persons at tests to destruction conducted under subsection 14(6);

  • (d) respecting, for the purposes of an investigation of a military-civilian occurrence, the sites of such an occurrence and prescribing rules for their protection;

  • (e) defining the rights or privileges of persons attending investigations as observers or with observer status;

  • (f) respecting the tariff of fees and expenses to be paid to any witness attending at an investigation of a military-civilian occurrence, and the conditions under which fees or expenses may be paid to such a witness;

  • (g) respecting the forms of warrants issued under section 14 and the modifications to be made to section 487.1 of the Criminal Code in its application to section 14; and

  • (h) generally for carrying out the purposes and provisions of this Part.

• Marginal note:Publication of proposed regulations

  (2) A copy of each regulation that the Governor in Council proposes to make under subsection (1) or section 24.2 shall be published in the Canada Gazette at least 60 days before its proposed effective date, and interested persons shall be given a reasonable opportunity within those 60 days to make representations with respect to it.

• Marginal note:Exceptions

  (3) Subsection (2) does not apply in respect of a proposed regulation that

  • (a) has previously been published under that subsection, whether or not it has been changed as a result of representations made under that subsection; or

  • (b) makes no substantive change to an existing regulation.