Drone Law and Regulation in Canada

Transcription

1 Drone Law and Regulation in Canada Michael D. Parrish Fasken Martineau DuMoulin LLP A. Introduction Previously reserved for military applications, unmanned aerial vehicles (UAVs), also known as unmanned aerial systems (UAS), remotely piloted aircraft systems (RPAS) 1 or, most commonly, drones, are increasingly being used for commercial and recreational purposes in North America. A UAV is simply a powered, unmanned aircraft that is piloted remotely. There are numerous types of UAVs and UAV systems. The technology can range from small and simple remote controlled models (e.g., quadcopters) to large and complex unmanned aerial systems that operate at high altitudes and for long distances without direct human control (military UAVs). Only certain types of UAVs and UAV applications are currently permitted under Canadian law. The rapid technological development and increased accessibility of UAVs has fueled the expansion of commercial UAV use. Commercial quality UAVs can now be easily acquired at modest cost, particularly when compared to manned aircraft. UAVs are now used in many different commercial applications in Canada, including surveillance, construction, agriculture, resource exploration, meteorology, mapping and photography. Recreational use of UAVs has also grown significantly. A 2016 survey of commercial drone operations estimated that there were approximately 1700 commercial drone operators in Canada based on the number of formal approvals issued by the Canadian government in The growth of UAV use in the public realm has not been without issue. The most notable problem has been use of UAVs near populated areas and airports. For example, in January 2016 a Calgary man was charged with a number of offences under the Criminal Code for flying his toy drone near the Calgary Airport. While there fortunately have been no aviation accidents to date, the risk of a collision between an aircraft and a UAV remains. There have also been a number of incidents involving recreational and commercial UAVs crashing in populated areas, damaging property and injuring people. For example, in December 2015 a drone was reported to have crashed into a motor vehicle in Bellville, Ontario causing damage to the vehicle. Privacy concerns have also been raised by privacy commissioners and civil 1 RPAS is the most current term for drones used by the International Civil Aviation Organization (ICAO). It is unclear whether Canada will adopt the international term RPAS rather than UAV in future legislation and regulation. 2 DroneAnalyst, Research and Advisors, 2016 survey

2 liberties associations due to the potential surveillance applications of UAVs. 3 These incidents and concerns have put increased pressure on governments to better and further regulate UAV use. Businesses have also been pushing hard on the legal boundaries of drone use. Numerous companies, including Amazon, have sought to use autonomous (i.e., computer piloted) UAVs as delivery vehicles. The commercial attraction of using autonomous drones as delivery vehicles is obvious they have the potential to be cheaper and faster than human delivery systems, such as delivery trucks. While the law in Canada and the United States does not currently permit such use, it can be expected that the law will, at some point in the future, permit autonomous applications as the technology--and the public s acceptance of the technology develops and matures. B. Regulation of UAVs in Canada 1. Generally The Canadian federal government, through Transport Canada, has primary jurisdiction over the regulation of UAVs in Canada on the basis that UAVs fall within the scope of the federal government s constitutional power over aeronautics. 4 The principal federal legislation governing civil aviation in Canada are the Aeronautics Act 5 and the Canadian Aviation Regulations (CARs). 6 While Transport Canada has developed detailed regulations 7 and guidelines 8 governing the operation of UAVs, certain CARs respecting the operation of regular aircraft generally will also still apply. UAV operators must also comply with all other applicable laws and regulations, including the federal Criminal Code and provincial, municipal and common laws related to tort, trespassing, nuisance and privacy. 2. What Types of UAV Use is Subject to Regulation? The use of all UAVs, including model or toy drones, falls under the general jurisdiction of Transport Canada. The current regulatory regime regulates UAVs based on their size and use. This will likely be changed in forthcoming regulations which are anticipated to employ a risk based regulatory model. Drones under 35 kg used for recreational purposes are considered to be models under the regulations and are minimally regulated. Currently, there is no Canadian government registry for recreational drone users like the FAA. The main requirement is that recreational drone users must refrain from operating their aircraft in a manner that is, or is likely to be, hazardous to aviation safety. 9 This catch-all safety provision prohibits, for example, flying model UAVs near airports or commercial airspace. Where the UAV is being used for commercial applications, the aircraft is considered to be a UAV as defined in the regulations and thus subject to more comprehensive and onerous regulations based on the Constitution Act, 1867, ss. 91; Canada Transportation Act, SC 1996, c RSC 1985, c A-2. 6 SOR/ CAR ss , , , , CAR, s

3 weight and application of the aircraft. UAVs for commercial applications weighing between 2 kg and 25 kg are subject to significant regulation but can be operated without advance approval from Transport Canada under certain exemptions. UAVs for commercial applications weighing more than 25 kg are subject to strict regulatory requirements before operation is permitted. All UAVs weighing more than 35 kg for any application (including recreation) require formal approval from Transport Canada. 3. Special Flight Operations Certificates All commercial operators of UAVs must obtain a Special Flight Operations Certificate (SFOC) from Transport Canada prior to use unless an exemption applies. There are a number of SFOC application processes depending on the nature and use of the UAV. The more complex and risky the proposed operation, the more thorough and onerous the SFOC application process. SFOC applications normally require the following information: a) The name and contact information of the applicant; b) The name and address of the person designated by the applicant to have operational control over the UAV system; c) The method by which the operator may be contacted directly during operation; d) The type and purpose of the operation; e) The dates, alternate dates and times of the proposed operation; f) A complete description, including all pertinent flight data on the aircraft to be flown; g) The security plan for the area(s) of operation and the area(s) to be overflown to ensure no hazard is created to persons or property on the surface; h) The emergency contingency plan to deal with any disaster resulting from the operation; i) The name of the person designated to be responsible for supervision of the operation area during the operation, if different from the operator; j) A detailed plan describing how the operation will be carried out, which must include a clear, legible presentation of the area to be used during the operation; k) This presentation must include, among other information, the altitudes and routes to be used while carrying out the operation, and the planned take-off and landing locations; l) The insurance coverage carried by the applicant; and m) Any other information pertinent to the safe conduct of the operation requested by Transport Canada. UAV operators must submit to the Transport Canada Civil Aviation Office a SFOC application at least 20 working days prior to the date of the proposed UAV operation. Transport Canada personnel known as inspectors are responsible for reviewing SFOC applications. Transport Canada has a very wide discretion in reviewing and approving SFOC applications. There is an appeal process when SFOC - 3 -

4 applications are denied. However, due to the scope and breadth of Transport Canada s discretion, appeals would likely be difficult in most situations. In assessing SFOC applications, Transport Canada will consider all aspects of the proposed UAV operation, including the experience and qualifications of the applicant and the operator, the nature and complexity of the proposed operations, the type and size of the UAV and the command and control system for the UAV. There is a formal manual governing Transport Canada s review of SFOC applications. 10 The overall purpose of the SFOC application review is to ensure that the proposed operation is safe and associated risks have been adequately mitigated. Initially, a restricted SFOC will be issued for each discrete mission. Longer term SFOCs applicable to multiple operations may be issued after demonstration of a safe operating record, which can take time. Transport Canada generally does not issue restricted SFOC s for periods longer than one year. Once a SFOC has been issued, future applications may be expedited. Once operators have received SFOC authorization, they must contact the appropriate airspace controller (e.g., NAV Canada) to coordinate use of the airspace. SFOC holders may also be required to contact airports and Transport Canada s regional offices. Operators will also need to meet any other operating conditions identified in the SFOC. 4. SFOC Exemptions In 2014, Transport Canada introduced exemptions to the SFOC requirements as part of its ongoing review and development of the Canadian UAV regulations. 11 The stated purpose of the exemptions is to make it easier for Canadian businesses to operate small UAVs in commercial applications. There are two categories of exemption: (i) UAVs weighing less than 2 kg; and (ii) UAVs weighing less than 25 kg. Under the exemptions, SFOCs are not required for commercial UAV operations where all applicable exemption conditions are met and proper notice of the proposed operations is provided to Transport Canada. 12 Operators considering using UAVs for commercial purposes under an exemption should carefully confirm that the exemption applies. One of the key exemption requirements is the condition that the operator have $100,000 in liability insurance. 5. Who Can Operate a UAV? UAV controllers (aka pilots ) do not need to be licenced fixed or rotary wing pilots, although the fact that the operator is a pilot may be considered by Transport Canada in an SFOC application. While no pilot s licence is currently necessary, UAV operators must have adequate knowledge and training for UAV operations. The knowledge requirements can be self-taught, although there are a number of commercial UAV operator schools and programs in Canada which provide training and industry accreditation to UAV operators Transport Canada Staff Instruction SI The Review and Processing of an Application for a Special Flight Operations Certificate for the Operation of an Unmanned Air Vehicle (UAV) System

5 In 2014, Transport Canada issued formal and comprehensive Knowledge Requirements for all pilots of UAVs. 14 These Knowledge Requirements reflect the current best practices for UAV operation in Canada. While no formal UAV pilot certification is currently required by Transport Canada, it is anticipated that a formal UAV pilot s permit based on the Knowledge Requirements will be required for certain operations under the new proposed regulations. It is also anticipated that commercial operators of UAVs will require some type of formal operator s certificate issued by Transport Canada. 6. UAV Operating and Flight Rules The general aircraft operating and flight rules set out in the CARS governing the use and operation of fixed and rotary wing aircraft do not apply to UAVs. As a result, there is currently no comprehensive statutory or regulatory code governing the operating and flight rules for UAVs in Canada. While some CARs are applicable to all UAV operations, the majority of Transport Canada s guidelines respecting flight rules and safety practices for UAVs is set out in Transport Canada advisory circulars which are intended to provide general information and guidance. Where the operation is conducted under a SFOC, in additional to any specific directions respecting operations set out in the SFOC and the underlying application, the General Safety Practices Model Aircraft and Unmanned Air Vehicle Systems 15 will apply. Where the UAV operation is performed under an SFOC exemption, the governing guidelines are set out in the Guidance Material for Operating Unmanned Air Vehicle Systems. 16 Both of these advisory circulars were updated in November The best practices set out in the Transport Canada Knowledge Requirements also contain significant information respecting UAV operation. Key UAV operating guidelines set out in the advisory circulars include the following: a) A human operator is required at all times; b) Operators must be at least 18 years of age; c) Operators cannot be impaired by drugs or alcohol; d) Autonomous (i.e., computer or GPS controlled or guided) operation is not permitted. UAVs must be directly controlled by a human operator at all times; e) Beyond-line-of-sight operation is not permitted. Live and direct sight of the UAV by the operator is required at all times; f) Operation and control of UAVs through on-board camera, monitor or smartphone is not permitted; g) UAVs may only be flown during daylight and in good weather (not in clouds or fog); h) UAVs must be in safe and working condition before operating. However, the CARs relating to aircraft certification and airworthiness do not apply to UAVs;

6 i) UAV s cannot be used to transport dangerous goods; j) UAVs cannot be operated: i) closer than 9 km from any airport, heliport, or aerodrome; ii) iii) iv) higher than 90 metres from above the ground; closer than 150 metres from people, animals, buildings, structures, or vehicles; in populated areas or near large groups of people, including sporting events, concerts, festivals, and firework shows; v) near moving vehicles, including roads and highways; and vi) within restricted airspace, including near or over military bases, prisons, and forest fires. k) Operators must have adequate liability insurance; and l) Operators must obtain permission from the owner(s) of the property from which a UAV intends to take-off/launch and land/recover on. 7. Regulatory Non-Compliance, Criminal Offences and Civil Liability Transport Canada has a broad jurisdiction to investigate and enforce non-compliance with federal aviation law and regulations. Since 2010, Transport Canada has launched over 50 investigations into reported incidents involving UAVs. Transport Canada's Civil Aviation Daily Occurrence Reporting System (CADORS) reveals over 100 reported incidents involving UAVs in 2014 and Under the Aeronautics Act and CARs, where an operator who is required to have a SFOC operates a UAV without one, or fails to comply with the requirements of the SFOC exemption, Transport Canada can issue fines of up to $5,000 for an individual and $25,000 for a company. Further, if an operator does not follow the requirements of the SFOC, Transport Canada can issue fines of up to $3,000 for an individual and $15,000 for a company. Additionally, operating a UAV improperly can be an offence under the Canadian Criminal Code. Section 77 of the Criminal Code makes it an offence to: (i) damage an aircraft while in service in a manner that could endanger the safe operation of the aircraft; or (ii) interfere with the operation of any air navigation facility in a manner likely to endanger the safety of an aircraft in flight. Section 249 of the Criminal Code make it an offence to operate an aircraft in a manner that is dangerous to the public. More general offences such as criminal negligence causing bodily harm or death could also apply. Operating a UAV can also lead to civil liability under Canadian statutory and common law for negligence, trespass, nuisance, and breach of privacy. C. Regulatory Developments On May 28, 2015, Transport Canada published a Notice of Proposed Amendment 17 to the regulatory framework for UAVs. The proposed framework is intended to apply to all UAVs weighing less than 25 kg 17 Canadian Aviation Regulations Advisory Council reporting notice

7 regardless of type of use. UAVs weighing more than 25 kg will continue to be governed by the current SFOC requirements. The proposed new regulations adopt a classification based on the size of the UAV and an operational risk assessment. The proposed framework creates three broad categories of UAVs: (i) very small UAVs; (ii) small UAVs in limited operations; and (iii) small UAVs in complex operations. The increased regulations focus on aircraft marking and registration, pilot knowledge and training and flight rules. The criteria for very small UAVs have not yet been finalized but it is anticipated that it will include UAVs of less than 2 kg. These aircraft would be permitted to operate with minimal regulation so long as the operating conditions were met. It is anticipated that very small UAVs will need to have some type of identification and operators will need to be registered with Transport Canada (similar to the current FAA registry). Insurance is not required. Small UAVs (limited operations) are defined as UAVs weighing less than 25 kg being operated in rural and unpopulated areas. These UAVs will require identification, marking and registration with Transport Canada. Pilot permits are not required but pilots must complete knowledge testing and be at least 16 years of age for unsupervised operation. Flight rules permit daylight visual line of sight (VLOS) operations with stipulated maximum ceiling, airspeed and scope of operation. Insurance is required. Small UAVs (complex operations) are defined as UAVs weighing less than 25 kg being operated in urban and populated areas. These UAVs will require identification, marking and registration with Transport Canada as well as meeting specified design standards. Pilots must be at least 14 years of age for supervised operations and 16 years of age for unsupervised operations. Pilots must obtain a formal pilot permit which will require the pilot to pass standardized testing and medical requirements. Flight rules are more expansive permitting night operations in a broader spectrum of airspace; however, VLOS operation is still mandatory. Insurance is required. Transport Canada anticipates the new regulations will be implemented sometime in It can be anticipated that Canada and the United States will continue to collaborate through the Regulatory Cooperation Council in effort to harmonize their respective new UAV regulations to facilitate the integration and regulation of commercial aviation in North American. D. Conclusion The expansion of commercial UAV use in Canada in the last 10 years has been dramatic. Due to Canada s large geography, small population and resource focussed economy, there are many potential applications for UAVs for Canadian businesses. Between 2007 and 2015, commercial UAV operation in Canada has grown almost 1000 percent based on the number of SFOCs issued by Transport Canada. While the current rules for UAV use in Canada are fairly restrictive, there still remains significant opportunity for Canadian companies to currently use UAVs in their businesses. Complex UAV operations can be achieved through use of SFOCs and simpler day-to-day operations can often be performed under the SFOC exemptions. The anticipated new regulatory regime will likely remove a number of the current regulatory hurdles to commercial operation, while adding new requirements to maximize public safety. This will provide - 7 -

8 Canadian businesses with even greater accessibility, flexibility and opportunity for commercial UAV applications. As a result, it can be expected that commercial use of drones in Canada will continue to rapidly expand. However, the proposed new regulations do not appear to permit beyond VLOS or autonomous operations. Accordingly, the dream of commercial door-to-door deliveries by autonomous drone will likely remain a dream for some time, at least in Canada. Our firm can assist companies interested in using UAVs in navigating all aspects of the Canadian UAV regulatory landscape