Drinking and Droning/Drugged Droning
By now everyone should know that drinking and driving is bad. The message about drinking and boating (including paddleboarding) is starting to spread as well. What people may not be thinking about is the issue of drinking and flying. While the occasional airline pilot makes the news, most of us do not fly things. However, with the rise of drone technology more and more people are operating aircraft. It may not seem obvious at first but a drone is an aircraft. The reason amendments to the Criminal Code deleted the definition of aircraft which was only that it did not include hovercrafts. Instead, to find the definition of aircraft in federal legislation we need to look at the Aeronautics Act (the Act). An aircraft is defined as “any machine capable of deriving support in the atmosphere from reactions of the air.” If you were hoping that the unmanned characteristic of a drone would exempt it from this definition, you would be wrong. Pursuant to the Canadian Aviation Regulation under the Act, an “unmanned air vehicle” is “a power-driven aircraft, other than a model aircraft, that is designed to fly without a human operator on board.” A “model aircraft” is “an aircraft, the total weight of which does not exceed 35 kg, that is mechanically driven or launched into flight for recreational purposes and that is not designed to carry persons or other living creatures.” What is consistent in all of these definitions is that a drone is an aircraft.
The amendments to the Criminal Code in Bill C 46 changes terminology relating to driving offences and now refers to a “conveyance” which includes “aircraft.” This mimics former wording which repeated the words motor vehicle, vessel, aircraft or railway equipment in each section. One might wonder if the interjection of the word conveyance might not include a drone as a drone does not convey anything from one place to another. However, a strict reading of the statutes would seem to suggest otherwise. As a result, it would seem that operating a drone or having care or control of it while impaired, being over the limit, while refusing a breath test, operating it dangerously or any other Criminal Code offence would leave a person liable to the consequences. Of interesting note in Ontario is that a Criminal Code offence involving an aircraft does not lead to a loss of a person’s driver’s license. Section 41 of the Highway Traffic Act automatically suspends a person’s driver’s license for virtually all criminal offences involving a motor vehicle and also boating offences involving drinking or drug consumption. However, it does not do so for persons operating aircraft. This may change as drones become more prevalent.
As recent events at Gatwick airport in the UK illustrate, drones can have significant impacts and create significant dangers. The size, speed and nature of the drone will all need to be assessed in cases involving dangerous operation of a drone. A 30 gram drone flown at 100 feet may not pose the same danger as a 5 kg drone at 1000 feet near an airport. However, when dealing with drinking and droning or drugged droning, the size will not matter. What is dangerous driving a mo-ped is different that when driving a transport truck but driving either under the influence falls under the same charge.
A reasonable hypothetical might be a drone operator who crashes his drone into the neighbour’s yard one night and decides not to retrieve it or wake his neighbor until the next morning. The neighbor sees the drone and calls police. Police attend and knock on the operator’s door. The operator has consumed alcohol in the hour since the crash and is now over the legal limit and admits to operating the drone. If the operator should have had a reasonable expectation that they would be required to provide a sample of breath due to the crash, then they are guilty under the new s. 320.14 of the Criminal Code. Recently, in R. v. Sillars, 2018 ONCJ 816, Justice Peter West confirmed that a vessel need not have a motor and referred to the moral culpability and risk that is present both in powered and unpowered vessels. The important lesson to take from this is that just because it may not seem criminal to every person, that does not mean that it is not so. As a result, it would seem prudent to avoid taking a drone out after drinking or consuming marijuana.