Safeguarding Canada’s Seas and Skies Act (S.C. 2014, c. 29)
Full Document:
Assented to 2014-12-09
Consequential Amendments
R.S.C. 1970, c. W-3Marine and Aviation War Risks Act
3. The long title of the Marine and Aviation War Risks Act is replaced by the following:
4. Section 1 of the Act is replaced by the following:
Marginal note:Short title
1. This Act may be cited as the Marine War Risks Act.
5. (1) The definition “aircraft” in section 2 of the Act is repealed.
(2) The definition “Account” in section 2 of the Act is replaced by the following:
“Account”
« compte »
“Account” means the Marine War Risks Insurance Account established under section 5;
6. Section 3 of the Act is replaced by the following:
Marginal note:Insurance and reinsurance agreements
3. The Minister, for the purpose of securing that ships are not laid up and that commerce is not interrupted by reason of lack of insurance facilities, may enter into an agreement, in the form and containing the terms and conditions that may be prescribed by the regulations or otherwise approved by the Governor in Council, with any person or association of persons for the insurance or reinsurance by the Minister against any or all war risks of vessels or cargo.
7. Paragraph 4(c) of the Act is replaced by the following:
(c) respecting the designation of countries of registry for the purposes of paragraph (c) of the definition “vessel” in section 2.
8. The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Marine War Risks Insurance Account
5. (1) There shall be established in the accounts of Canada an account to be known as the Marine War Risks Insurance Account to which shall be credited
References
Marginal note:Reference replaced — Act
9. (1) Every reference to the Marine and Aviation War Risks Act is replaced by a reference to the Marine War Risks Act in any Act of Parliament other than the Marine War Risks Act and in any instrument made under an Act of Parliament or by or under the authority of the Governor in Council.
Marginal note:Reference replaced — Account
(2) Every reference to the Marine and Aviation War Risks Insurance Account is replaced by a reference to the Marine War Risks Insurance Account in any Act of Parliament other than the Marine War Risks Act and in any instrument made under an Act of Parliament or by or under the authority of the Governor in Council.
PART 2R.S., c. A-2AERONAUTICS ACT
Amendments to the Act
Marginal note:R.S., c. 33 (1st Supp.), s. 1
10. (1) The definition “Minister” in subsection 3(1) of the Aeronautics Act is replaced by the following:
“Minister”
« ministre »
“Minister” means
(a) subject to paragraph (b), the Minister of Transport or any other Minister that is designated by the Governor in Council as the Minister for the purposes of this Act, and
(b) the Minister of National Defence — or, under the direction of the Minister of National Defence, the Chief of the Defence Staff appointed under the National Defence Act — with respect to any matter relating to defence, including any matter relating to any of the following:
(i) military personnel, a military aeronautical product, a military aerodrome or military equipment of Canada or a foreign state, or a military facility of Canada or a foreign state relating to aeronautics, and
(ii) a service relating to aeronautics provided by such personnel, by means of such an aeronautical product or such equipment or at such an aerodrome or facility;
Marginal note:R.S., c. 33 (1st Supp.), s. 1
(2) Subsection 3(2) of the Act is replaced by the following:
“Minister” for certain purposes
(2) Despite the definition “Minister” in subsection (1), “Minister”, in relation to any matter referred to in paragraph 4.2(1)(n), 4.9(p), (q) or (r) or 8.7(1)(b), means the Minister of National Defence.
Marginal note:R.S., c. 33 (1st Supp.), s. 1
11. (1) Section 4.2 of the Act is renumbered as subsection 4.2(1).
Marginal note:R.S., c. 33 (1st Supp.), s. 1
(2) Paragraph 4.2(1)(n) of the Act is replaced by the following:
(n) subject to subsection (2), investigate matters relating to aviation safety; and
(3) Section 4.2 of the Act is amended by adding the following after subsection (1):
Marginal note:Exception — investigations of military-civilian occurrences
(2) Investigations of military-civilian occurrences, as defined in Part II, shall be carried out in accordance with that Part by the Airworthiness Investigative Authority, designated by the Minister under section 12.
12. The Act is amended by adding the following after section 4.3:
Marginal note:Authorization by authorized person
4.31 Any person whom the Minister of National Defence has authorized to exercise or perform powers, duties or functions relating to airworthiness may, in accordance with the authorization, authorize another person under their authority to exercise or perform any of those powers, duties or functions.
13. The Act is amended by adding the following after section 5.9:
Marginal note:Exemption by Minister of National Defence
6. (1) With respect to any matter relating to defence, the Minister of National Defence or an officer of the Department of National Defence or of the Canadian Forces who is authorized by the Minister may, on any terms that the Minister or officer, as the case may be, considers necessary, exempt by order any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation, order or security measure made under this Part if the exemption, in the opinion of the Minister or officer, as the case may be, is in the public interest and is not likely to adversely affect aviation safety or security.
Marginal note:Exemption from Statutory Instruments Act
(2) An order made under subsection (1) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.
14. The Act is amended by adding the following after section 6.2:
Marginal note:Certificate
6.21 A certificate purporting to be signed by the Minister of National Defence or the Chief of the Defence Staff and stating that a notice containing the regulation or notice referred to in paragraph 6.2(1)(a) was given to persons likely to be affected by it is, in the absence of evidence to the contrary, proof that notice was given to those persons.
Marginal note:R.S., c. 33 (1st Supp.), s. 1; 1989, c. 3, s. 39
15. Section 6.3 of the Act and the heading before it are repealed.
Marginal note:1989, c. 3, s. 40
16. Section 6.4 of the Act is repealed.
Marginal note:2001, c. 29, s. 34
17. Section 6.7 of the Act is replaced by the following:
Marginal note:Non-application of certain provisions
6.7 Sections 6.71 to 7.21 do not apply to any military personnel of Canada or a foreign state acting in the course of their duties in relation to a Canadian aviation document issued in respect of a military aeronautical product, a military aerodrome, military equipment, a military facility relating to aeronautics or a service relating to aeronautics provided by means of such an aeronautical product or such equipment or at such an aerodrome or facility.
18. Section 8.7 of the Act is amended by adding the following after subsection (1):
Marginal note:Matters relating to defence
(1.01) The Minister of Transport may exercise the powers set out in subsection (1) with regard to any matter relating to defence with the authorization of the Minister of National Defence.
19. The Act is amended by adding the following after section 9:
PART IIMILITARY INVESTIGATIONS INVOLVING CIVILIANS
Interpretation
Marginal note:Definitions
10. (1) The following definitions apply in this Part.
“Authority”
« directeur »
“Authority” means the Airworthiness Investigative Authority designated under subsection 12(1).
“civilian”
« civil »
“civilian” means a person who is not subject to the Code of Service Discipline set out in Part III of the National Defence Act.
“department”
« ministère »
“department” means
(a) any department of the Government of Canada, including the minister responsible for it and any person acting on behalf of that minister;
(b) any body listed in the schedule to the Canadian Transportation Accident Investigation and Safety Board Act; and
(c) any fact-finding authority, body or person established or appointed by such a department, minister, person or body.
“military-civilian occurrence”
« accident militaro-civil »
“military-civilian occurrence” means
(a) any accident or incident involving
(i) an aircraft operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force, or an installation operated by or on behalf of any of the above that is designed or used for the manufacture of an aircraft or other aeronautical product, or that is being used for the operation or maintenance of an aircraft or other aeronautical product, and
(ii) a civilian; or
(b) any situation or condition that the Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).
“visiting force”
« force étrangère présente au Canada »
“visiting force” has the same meaning as in section 2 of the Visiting Forces Act.
Marginal note:Application
(2) This section and sections 11 to 24.7 apply in respect of military-civilian occurrences
(a) in or over Canada;
(b) in or over any place that is under Canadian air traffic control; and
(c) in or over any other place in any of the following cases:
(i) Canada is requested to investigate the occurrence by an appropriate authority,
(ii) the civilians involved are employed in that place by the Department of National Defence or by the Canadian Forces, or
(iii) the civilians involved are in Canada.
Authorization by Minister
Marginal note:Power
11. The Minister may authorize any person or class of persons to exercise or perform, subject to any restrictions or conditions that the Minister specifies, any of the powers, duties or functions of the Minister under this Part.
Airworthiness Investigative Authority
Marginal note:Airworthiness Investigative Authority
12. (1) The Minister shall designate from among the members of the Canadian Forces or the employees of the Department of National Defence an individual to be the Airworthiness Investigative Authority, who is to be responsible for advancing aviation safety by
(a) investigating military-civilian occurrences, in order to find their causes and contributing factors;
(b) identifying safety deficiencies as evidenced by military-civilian occurrences;
(c) making recommendations designed to eliminate or reduce any of those safety deficiencies; and
(d) providing reports to the Minister on the investigations and the findings in relation to them.
Marginal note:Restriction
(2) In making findings in an investigation of a military-civilian occurrence, it is not the Authority’s function to assign fault or determine civil or criminal liability, but the Authority shall not refrain from making a full report merely because fault or liability might be inferred from the Authority’s findings.
Marginal note:Restriction
(3) No finding of the Authority may be construed as assigning fault or determining civil or criminal liability.
Marginal note:Findings not binding
(4) The Authority’s findings are not binding on the parties to any legal, disciplinary or other proceedings.
Investigations of Military-Civilian Occurrences
Investigations
Marginal note:Investigators
13. (1) The Authority may act as an investigator under this Part with respect to a military-civilian occurrence, and may designate as an investigator to investigate such an occurrence in accordance with this Part on the Authority’s behalf any person, or member of a class of persons, that the Authority considers qualified.
Marginal note:Certificate
(2) The Authority shall give a designated investigator a certificate of designation specifying the terms of their designation.
Marginal note:Report
(3) A designated investigator shall report to the Authority with respect to the investigation of a military-civilian occurrence.
Marginal note:Definitions
14. (1) The following definitions apply in this section.
“information”
« renseignement »
“information” includes a record regardless of its form and a copy of a record.
“place”
« lieu »
“place” includes an aircraft, any premises and any building or other structure erected on those premises.
Marginal note:Powers of investigators
(2) If an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the investigator may, subject to subsection (3), enter and search that place for such a thing, and seize any such thing that is found in the course of that search, including an aircraft or part of one.
Marginal note:Conditions for exercise of powers
(3) An investigator shall not exercise the powers referred to in subsection (2) in relation to a particular place without the consent of the person apparently in charge of that place unless
(a) those powers are exercised under the authority of a warrant; or
(b) by reason of exigent circumstances, it would not be practical for the investigator to obtain a warrant.
Marginal note:Warrant
(4) If a justice of the peace is satisfied by information on oath that an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the justice may, on ex parte application, sign and issue a warrant authorizing the investigator to enter and search that place for such a thing and to seize any such thing that is found in the course of that search.
Marginal note:Warrants may be obtained by telephone, etc.
(5) The procedure set out in section 487.1 of the Criminal Code applies in relation to the obtaining of warrants under this section, subject to regulations made under paragraph 24.5(1)(g).
Marginal note:Power to test things seized, etc.
(6) If any thing is seized by an investigator under subsection (2), the investigator
(a) may, subject to paragraph (b), cause to be conducted on the thing any tests, including tests to destruction, that are necessary for the purposes of the investigation;
(b) shall, to the extent that it is practical and safe to do so without unreasonably impeding the progress of the investigation,
(i) take all reasonable measures to invite the owner of the thing, and any person who appears on reasonable grounds to be entitled to it, to be present at such tests, and
(ii) allow them to be present at those tests; and
(c) subject to the need to conduct such tests, shall cause the thing to be preserved pending its return under section 15.
Marginal note:Power to prohibit or limit access
(7) An investigator may, in the course of an investigation of a military-civilian occurrence, and for the purposes of preserving and protecting any thing involved or likely to have been involved, whether or not the thing has been seized under this section, prohibit or limit access to the area immediately surrounding the place at which the thing is located for any period that is necessary for the purposes of the investigation.
Marginal note:Disruption to be minimized
(8) In exercising the power conferred by subsection (7), an investigator shall have regard to the desirability of minimizing any resulting disruption to transportation services.
Marginal note:Prohibition
(9) No person shall knowingly enter an area in contravention of a prohibition or limitation of access under subsection (7).
Marginal note:Additional powers of investigators
(10) An investigator may do any of the following, on notice in writing to the person concerned, if their belief is based on reasonable grounds:
(a) if the investigator believes that a person has information relevant to an investigation,
(i) require the person to produce the information to the investigator or to attend before the investigator and give a statement referred to in section 24.1, under oath or solemn affirmation if required by the investigator, and
(ii) make any copies of and take any extracts from the information that the investigator considers necessary for the purposes of the investigation;
(b) require a person who is directly or indirectly involved in the operation of an aircraft to submit to a medical examination, if the investigator believes that the examination is or might be relevant to the investigation;
(c) require a physician or health practitioner to provide information concerning a patient to the investigator, if the investigator believes that the information is or might be relevant to the investigation; or
(d) require the person who has custody of the body of a deceased person or other human remains to permit the performance of an autopsy on the body or other medical examination on the remains, and cause it to be performed, if the investigator believes that the autopsy or other medical examination is or might be relevant to the investigation.
Marginal note:Offence — paragraph (10)(a), (c) or (d)
(11) No person shall refuse or fail to produce information to an investigator, or to attend before an investigator and give a statement, in accordance with a requirement imposed under paragraph (10)(a), to provide information in accordance with a requirement imposed under paragraph (10)(c) or to make the body of a deceased person or other human remains available for the performance of an autopsy or other medical examination in accordance with a requirement imposed under paragraph (10)(d).
Marginal note:Offence — paragraph (10)(b)
(12) No person shall refuse or fail to submit to a medical examination in accordance with a requirement imposed under paragraph (10)(b), but information obtained as a result of such an examination is privileged and, subject to the Authority’s power to make any use of it that the Authority considers necessary in the interests of aviation safety, no person shall knowingly communicate it or permit it to be communicated to any person.
Marginal note:Legal proceedings
(13) No person is to be required to produce information referred to in subsection (12) or to give evidence relating to it in any legal, disciplinary or other proceedings.
Marginal note:Certificate to be produced
(14) Before acting under this section, an investigator shall, on request, produce their certificate of designation to any person in relation to whom the investigator acts.
Marginal note:Meaning of medical examination
(15) The requirement under paragraph (10)(b) that a person submit to a medical examination does not require the person to submit to any procedure involving surgery, perforation of the skin or any external tissue or the entry into the body of any drug or foreign substance.
Marginal note:Use of force
(16) In executing a warrant under this section, an investigator shall not use force unless the investigator is accompanied by a peace officer and the use of force is specifically authorized in the warrant.
Marginal note:Failure to produce document, etc.
(17) If an investigator has required a person to do something under subsection (10) and the person has refused or failed to do as required, the investigator may make an application to the Federal Court or a superior court of a province setting out the facts, and the court may inquire into the matter and, after giving the person an opportunity to comply with the requirement, take steps for their punishment as if they had been guilty of contempt of the court, or may make any other order that it considers appropriate.
Marginal note:Return of seized property
15. (1) Anything seized under section 14 — except on-board recordings as defined in subsection 22(1) — shall, as soon as possible after it has served the purpose for which it was seized, be returned to the owner or the person who appears on reasonable grounds to be entitled to it, or to the person from whom it was seized, unless
(a) the owner or the person who appears on reasonable grounds to be entitled to it consents otherwise in writing; or
(b) a court of competent jurisdiction orders otherwise.
Marginal note:Application for return
(2) A person from whom anything was seized under section 14 — except on-board recordings as defined in subsection 22(1) — or the owner or any other person who appears on reasonable grounds to be entitled to it may apply to a court of competent jurisdiction for an order that the seized thing be returned to them.
Marginal note:Order for return
(3) If, on an application under subsection (2), the court is satisfied that the seized thing has served the purpose for which it was seized or should, in the interests of justice, be returned to the applicant, the court may grant the application and order the seized thing to be returned to the applicant, subject to any terms that appear necessary or desirable to ensure that the thing is safeguarded and preserved for any purpose for which it might subsequently be required by the Authority under this Act.
Marginal note:Exception
(4) This section does not apply in respect of anything seized and tested to destruction in accordance with subsection 14(6).
Miscellaneous Provisions
Marginal note:Notification of Authority
16. (1) If a department is notified of a military-civilian occurrence, the department shall
(a) immediately provide the Authority with particulars of the occurrence; and
(b) as soon as feasible after complying with paragraph (a), advise the Authority of any investigation that it plans to conduct and of any remedial measures that it plans to take.
Marginal note:Investigator as observer
(2) An investigator authorized by the Authority may attend as an observer at an investigation conducted by the department or during the taking of remedial measures by the department following a military-civilian occurrence.
Marginal note:Authority may review and comment
(3) Subject to any other Act or law, the Authority shall, on request, be provided with, and may review and comment on, any interim or final report prepared in respect of an investigation conducted by the department.
Marginal note:Notification by Authority
17. (1) If the Authority is notified of a military-civilian occurrence, the Authority shall
(a) immediately provide particulars of the occurrence to any minister responsible for a department that has a direct interest in the occurrence; and
(b) as soon as feasible after complying with paragraph (a), advise the ministers referred to in paragraph (a) of any investigation that the Authority plans to conduct and of its scope.
Marginal note:Observers
(2) Subject to any conditions that the Authority imposes, a person may attend as an observer at an investigation of a military-civilian occurrence conducted by the Authority if the person
(a) is designated as an observer by the minister responsible for a department that has a direct interest in the subject matter of the investigation;
(b) has observer status or is an accredited representative or an adviser to an accredited representative, under an international agreement or convention relating to transportation to which Canada is a party; or
(c) is invited by the Authority to attend as an observer because, in the Authority’s opinion, the person has a direct interest in the subject matter of the investigation and is likely to contribute to achieving its object.
Marginal note:Observer may be removed
(3) The Authority may remove an observer from an investigation if the observer contravenes a condition imposed by the Authority or if, in the Authority’s opinion, the observer’s participation is likely to create a situation of conflict of interest that will impede the conduct of the investigation.
Marginal note:Report to the Minister
18. (1) On completion of an investigation, the Authority shall provide a report to the Minister on the Authority’s findings, including any safety deficiencies that the Authority has identified and any recommendations relating to aviation safety that the Authority considers appropriate.
Marginal note:Representations on draft report
(2) Before providing the report to the Minister, the Authority shall, on a confidential basis, send a copy of the draft report on the investigation’s findings and any safety deficiencies identified to each minister responsible for a department that has a direct interest in the findings, as well as to any other person who, in the Authority’s opinion, has a direct interest in the findings, and shall give that minister or other person a reasonable opportunity to make representations to the Authority with respect to the draft report before the final report is prepared.
Marginal note:Confidentiality of draft report
(3) No person shall communicate or use the draft report, or permit its communication or use, for any purpose — other than the taking of remedial measures — that is not strictly necessary to the study of the draft report or to the making of representations with respect to it.
Marginal note:Manner of dealing with representations
(4) The Authority shall
(a) receive representations made under subsection (2) in any manner the Authority considers appropriate;
(b) keep a record of those representations;
(c) consider those representations before providing the final report to the Minister; and
(d) notify in writing each of the persons who made those representations, indicating how the Authority has disposed of the representations made by that person.
Marginal note:Protection of representations
(5) A representation is privileged, except for one made by a minister responsible for a department that has a direct interest in the findings of the investigation. Subject to any other provisions of this Part or to a written authorization from the author of a representation, no person, including any person to whom access is provided under this section, shall knowingly communicate it or permit it to be communicated to any person.
Marginal note:Use by Authority
(6) The Authority may use representations as the Authority considers necessary in the interests of aviation safety.
Marginal note:Making representations available to coroner
(7) If requested to do so by a coroner conducting an investigation into any circumstances in respect of which representations were made to the Authority, the Authority shall make them available to the coroner.
Marginal note:Prohibition of use
(8) Except for use by a coroner for the purpose of an investigation, no person is to use representations in any legal, disciplinary or other proceedings.
Marginal note:Notification of findings and recommendations
(9) The Authority shall
(a) during an investigation of a military-civilian occurrence, immediately notify in writing any minister or person who, in the Authority’s opinion, has a direct interest in the investigation’s findings, of any of his or her findings and recommendations, whether interim or final, that, in the Authority’s opinion, require urgent action; and
(b) on completion of the investigation, notify in writing any minister or person who, in the Authority’s opinion, has a direct interest in the investigation’s findings, of his or her findings as to the causes and contributing factors of the military-civilian occurrence, any safety deficiencies he or she has identified and any recommendations resulting from his or her findings.
Marginal note:Minister to reply to Authority
(10) A minister, other than the Minister of National Defence, who is notified under subsection (9) of any findings and recommendations on matters relating to defence shall, within 90 days after the day on which they were notified,
(a) advise the Minister and the Authority in writing of any action taken or proposed to be taken in response to those findings and recommendations; or
(b) provide written reasons to the Minister and the Authority if no action will be taken or if the action to be taken differs from the action that was recommended.
Marginal note:Extension of time
(11) If the Authority is satisfied that a minister is unable to reply within the period referred to in subsection (10), the period may be extended as the Authority considers necessary.
Marginal note:Interim report
19. (1) The Authority shall, on a confidential basis, provide an interim report on the progress and findings of an investigation
(a) to any minister responsible for a department that has a direct interest in the subject matter of the investigation, on written request made in respect of that investigation; and
(b) to any coroner investigating the military-civilian occurrence, if it involved a death and significant progress has been made in the investigation.
Marginal note:Limited purpose only
(2) A person, other than a minister, who is provided with an interim report under subsection (1) shall not use the report, or permit its use, for any purpose not strictly necessary to its examination.
Marginal note:Power to reconsider
20. (1) The Authority may, at any time, reconsider any findings and recommendations made on the basis of an investigation of a military-civilian occurrence under this Part.
Marginal note:Duty to reconsider
(2) The Authority shall reconsider the findings and recommendations made on the basis of an investigation under this Part if, in his or her opinion, new material facts appear.
Marginal note:Power to authorize
21. (1) Subject to subsection (2), the Authority may authorize any person, subject to any limitations specified in the authorization, to exercise or perform any of the powers, duties or functions conferred or imposed on the Authority under this Part, other than the power of authorization under this subsection.
Marginal note:Revocation
(2) The authorization may be revoked by the Authority in writing.
Privilege
Definition of “on-board recording”
22. (1) In this section and in section 23, “on-board recording” means the whole or any part of either a recording of voice communications originating from an aircraft, or received on or in the flight deck of an aircraft, or a video recording of the activities of the operating personnel of an aircraft, that is made, using recording equipment that is intended not to be controlled by the operating personnel, on the flight deck of the aircraft, and includes a transcript or substantial summary of such a recording.
Marginal note:Privilege for on-board recordings
(2) Every on-board recording in respect of an aircraft is privileged whether or not that aircraft has been involved in a military-civilian occurrence and, except as provided by this section and section 23, no person, including any person to whom access is provided under those sections, shall knowingly communicate an on-board recording or permit one to be communicated to any person.
Marginal note:Legal proceedings
(3) Except as provided by this section and section 23, no person is to be required to produce an on-board recording or to give evidence relating to one in any legal, disciplinary or other proceedings.
Marginal note:Use authorized by Authority
(4) The Authority may, subject to any restrictions or conditions that he or she specifies, authorize any person or class of persons to make use of any on-board recording in the interests of aviation safety.
Marginal note:Access by investigator
(5) Any on-board recording that relates to a military-civilian occurrence being investigated under this Part shall be released to an investigator who requests it for the purposes of the investigation.
Marginal note:Use by Authority
(6) The Authority may make any use that he or she considers necessary in the interests of aviation safety of any on-board recording obtained by an investigator under this Part but, subject to subsections (7) and 23(1), (4) and (6), shall not knowingly communicate or permit to be communicated to anyone any portion of it that is unrelated to the causes or contributing factors of the military-civilian occurrence under investigation or to the identification of safety deficiencies.
Marginal note:Access by coroners and other investigators
(7) The Authority shall make available any on-board recording obtained in the course of an investigation of a military-civilian occurrence
(a) to a coroner who requests access to it for the purpose of an investigation that the coroner is conducting; or
(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
(8) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall
(a) cause notice of the request to be given to the Authority, if the Authority is not a party to the proceedings;
(b) examine the on-board recording in camera and give the Authority a reasonable opportunity to make representations with respect to it; and
(c) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, 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
(9) An on-board recording is not to be used against any of the following persons in disciplinary proceedings, in proceedings relating to their capacity or competence to perform their functions, or in legal or other proceedings: 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.
Definition of “court”
(10) For the purposes of subsection (8), “court” includes any person appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.
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.
Offences
Marginal note:Offences
24.6 (1) Every person is guilty of an indictable offence and liable on conviction to a term of imprisonment not exceeding two years, or is guilty of an offence punishable on summary conviction, who
(a) contravenes subsection 14(9), (11) or (12);
(b) without lawful excuse, intentionally resists or otherwise obstructs an investigator in the exercise or performance of powers, duties or functions under this Part;
(c) knowingly gives false or misleading information in any investigation of a military-civilian occurrence under this Part; or
(d) makes a report under section 24.2 that they know to be false or misleading.
Marginal note:Offence
(2) Every person who contravenes a provision of this Part, or of the regulations made under this Part, for which no punishment is specified is guilty of an offence punishable on summary conviction.
Marginal note:Evidence
24.7 (1) Subject to subsections (2) and (3), the following reports and documents are admissible in evidence in any prosecution for an offence under this Part without proof of the signature or official character of the person appearing to have signed the report or certified the document, and are, in the absence of evidence to the contrary, proof of the statements contained in such a report or the contents of such a document:
(a) a report purporting to have been signed by an investigator stating that the investigator has exercised any power under section 14 and stating the results of the exercise of the power; and
(b) a document purporting to have been certified by an investigator as a true copy of or extract from a document produced to the investigator under subsection 14(10).
Marginal note:Notice
(2) No report or document is to be received in evidence under subsection (1) unless the party intending to produce it has, at least seven days before producing it, served on the party against whom it is intended to be produced a notice of that intention, together with a copy of the report or document.
Marginal note:Cross-examination
(3) The party against whom a report or document is produced under subsection (1) may require the attendance, for the purposes of cross-examination, of the person who appears to have signed the report or certified the document as a true copy or extract.
Military Investigations under Part I
Marginal note:Application of certain provisions
24.8 Section 14, subsections 18(1) to (9) and sections 22 to 24.4 apply, with any necessary modifications, in respect of an investigation of an accident or incident relating to aeronautics that the Minister of National Defence has directed the Authority to carry out other than an investigation of a military-civilian occurrence.
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