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Regulation of Drones

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Back to Regulation of Drones
Summary

In Canada, the regulation of unmanned air vehicles (UAVs) falls under the jurisdiction of the federal government. UAVs are mainly regulated by the Canadian Aviation Regulations (CARs) and standards, guidelines, and circulars issued by Transport Canada. The applicable rules and the necessity for a UAV operator to have a special flight operations certificate (SFOC) depend upon the use of the UAV (recreational vs. nonrecreational), its weight, and whether particular exemptions apply. Drones or model aircraft that weigh 35 kilograms or less and are used for recreational purposes do not require a government-issued SFOC but are subject to safety guidelines. Drones that are used for nonrecreational purposes, or that weigh more than 35 kilograms (irrespective of their purpose), require an SFOC to be flown. Specific directions for operating UAVs are set forth in a General Safety Practices circular issued by Transport Canada and in the SFOC. UAVs that weigh less than 2 kilograms or between 2 kilograms and 25 kilograms are subject to exemptions if the operator is able to follow the strict safety conditions outlined in the two exemptions.

Transport Canada is in the process of issuing new regulations for UAVs that weigh 25 kilograms or less that will eliminate the current distinction between recreational and nonrecreational use. The proposed changes provide a classification system based on the risks involved in the use of UAVS. UAVs weighing 25 kilograms or more will continue to be regulated by the SFOC requirements.

I. Introduction

A. Constitutional Jurisdiction

Canada's federal government has primary jurisdiction over matters related to aviation and aeronautics. Section 91 of the Constitution Act, 1867, gives the federal government the general power to make "Laws for the Peace, Order, and good Government of Canada." [1] In 2010, the Supreme Court of Canada held that aeronautics was in the exclusive jurisdiction of the federal government and "falls within a residuum of national importance, which brings it under Parliament's power to legislate for the peace, order and good government of Canada."[2]

Therefore, through the federal government's primary jurisdiction over aviation and aeronautics, the regulation of unmanned air vehicles (UAVs) also falls within the scope of the federal government's constitutional power. [3]

The main legislation that regulates aviation is the Aeronautics Act [4] and its subordinate regulations, the Canadian Aviation Regulations (CARs).[5] In addition, UAV operators must "follow the rules in all acts and regulations-including the Criminal Code, as well as all municipal, provincial, and territorial laws regarding trespassing and privacy."[6] Transport Canada, the government department that regulates the use of UAVs,[7] is "responsible for the issuance of transportation (including aviation) operating permits and certifications and for transportation safety oversight."[8]

The Canadian Aviation Regulation Advisory Council (CARAC) "is a joint undertaking of government and the aviation community" whose main objective is to "to assess and recommend potential regulatory changes through cooperative rulemaking activities." [9] In 2010 CARAC established the "Unmanned Aircraft System Program Design Working Group to develop new regulations to increase the safety, scope and regulatory efficiency of commercial UAV applications in Canada."[10]

Regarding the role of municipalities to regulate drones, municipal lawyer Carrie Moffat states that,

[w]hile Transport Canada generally regulates flying machines in air however they are defined, this does not preclude municipalities from regulating things and activities that are in, on or near public places or other matters liable to disturb the public. But as the case law illustrates, a bylaw that seeks to regulate whether, where and how drones can be operated in and near public space would likely be found valid under its public place powers in the Community Charter provided that is does not substantially interfere or conflict with federal authority or laws. The case law also indicates that a municipal bylaw that regulates activities such as the use of drones near airports would not fly. [11]

B. Drone Industry in Canada

Reflecting the "exponential growth" of the unmanned aircraft industry over the past few years, [12] the 345 special flight operation certificates (SFOCs) for UAVs that Transport Canada issued in 2012 had grown to 1,672 by 2014. [13] According to lawyers Sheehan and Parrish,

[t]he 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 focused economy, there are many potential applications for UAVs for Canadian businesses. . . . The number of UAV operations conducted in 2014 under the SFOC exemptions is not known but can be estimated to be in the thousands. This growth is expected to continue as UAV technology continues to develop. [14]

II. Regulation Based on Size and Use

Whether a UAV requires an SFOC depends on its use, its weight, and whether particular exemptions apply. [15]

A. Recreational Use

The Canadian Aviation Regulations defines a " model aircraft" as "an aircraft, the total weight of which does not exceed 35 kg (77.2 pounds), that is mechanically driven or launched into flight for recreational purposes and that is not designed to carry persons or other living creatures."[16] Model aircraft are usually described as devices that are used by hobbyists for recreational purposes. Therefore, if an aircraft weighs 35 kilograms or less and is used for " fun of flying only," a person does not need permission from Transport Canada for its use.[17] All that is required is to follow the law and fly safely according to safety guidelines. [18]

If an aircraft weighs more than 35 kilograms (irrespective of its use, whether recreational or otherwise) it is legally considered a UAV, [19] and owners must apply for an SFOC.[20]

B. Nonrecreational Use

Canadian Aviation Regulations define an "unmanned air vehicle" as "a power-driven aircraft, other than a model aircraft, that is designed to fly without a human operator on board." [21] According to section 602.41 of the Regulations, "[n]o person shall operate an unmanned air vehicle in flight except in accordance with a special flight operations certificate or an air operator certificate."[22]

Therefore, operators of UAVs used for nonrecreational purposes-namely, work or research-are legally required to apply for an SFOC.[23] According to Transport Canada, "[t]his applies to all UAVs used for anything but the fun of flying and regardless of how much they weigh. Transport Canada inspectors will review your SFOC application and determine what safety conditions are needed to reduce the risks."[24]

However, under what Transport Canada describes as "very specific, lower-risk circumstances," a person may qualify for exemptions. It is for this reason thatCanada is considered to have a permissive regulatory approach to the commercial use of drones. [25]

Persons who wish to fly drones that weigh between 2.1 kilograms and 25 kilograms can do so without permission, as long as they meet certain exemption requirements. This exemption "relieves persons conducting non-recreational UAV system operations utilizing a UAV with a maximum take-off weight not exceeding 2 kilograms, operated within visual line-of-sight [VLOS][,] from the requirement to obtain a Special Flight Operations Certificate (SFOC)." [26] Another exemption relieves persons "conducting non-recreational UAV system operations utilizing a UAV with a maximum take-off weight exceeding 2 kgs but not exceeding 25 kgs, operated within visual line-of-sight[,] from the requirement to obtain a Special Flight Operations Certificate (SFOC)."[27] Even though permission is not needed for drones weighing between 2.1 kilograms and 25 kilograms, a notification to Transport Canada that includes a description of the operation and geographical boundaries of the operation via a submission form is required.[28]

C. SFOC Certificate

According to Transport Canada, the SFOC "contains conditions specific to the proposed use, such as maximum altitudes, minimum distances from people and property, operating areas, and coordination requirements with air traffic services."[29] There are a "number of SFOC application processes depending on the nature and use of the UAV," and "the more complex and risky the proposed operation, the more thorough and onerous the application process."[30] Essentially the most important aspect of the SFOC application is the operator's proof to Transport Canada that he/she will be operating the drone safely and not disrupting air traffic.

The application for an SFOC for the purpose of operating a UAV requires the following information:

1. (a) the name, address, and where applicable, the telephone number and facsimile number of the applicant;

2. (b) the name, address, and where applicable the telephone number and facsimile number of the person designated by the applicant to have operational control over the operation (Operation Manager);

3. (c) method by which the Operation Manager may be contacted directly during operation;

4. (d) the type and purpose of the operation;

5. (e) the dates, alternate dates and times of the proposed operation;

6. (f) a complete description, including all pertinent flight data on the aircraft to be flown

7. (g) the security plan for the area(s) of operation and security plan for the area(s) to be overflown to ensure no hazard is created to persons or property on the surface;

8. (h) the emergency contingency plan to deal with any disaster resulting from the operation;

9. (i) the name, address, telephone and facsimile numbers of the person designated to be responsible for supervision of the operation area (Ground Supervisor), if different from the Operation Manager during the operation;

10. (j) a detailed plan describing how the operation shall be carried out. The plan shall include a clear, legible presentation of the area to be used during the operation. The presentation may be in the form of a scale diagram, aerial photograph or large scale topographical chart and must include at least the following information:

1. (i) the altitudes and routes to be used on the approach and departure to and from the area where the operation will be carried out;

2. (ii) the location and height above ground of all obstacles in the approach and departure path to the areas where the operation will be carried out;

3. (iii) the exact boundaries of the area where the actual operation will be carried out;

4. (iv) the altitudes and routes to be used while carrying out the operation;

(k) any other information pertinent to the safe conduct of the operation requested by the Minister.[31]

An application for an SFOC for the purpose of flying a UAV has to be "received by the appropriate Regional Transport Canada General Aviation Office, at least 20 working days prior to the date of the proposed operation or by a date mutually agreed upon between the applicant and Transport Canada." [32]

III. Restrictions on Drone Use

A. Restrictions on Recreational Use

Recreational drone operators must follow Transport Canada's safety guidelines [33] and the rules found in the advisory circular on General Safety Practices - Model Aircraft and Unmanned Air Vehicle Systems.[34]

The safety guidelines advise that the following rules be kept in mind before a flight:

b. Seek permission from the property owner on which you intend to operate your model aircraft.

c. Know the classification of the airspace you want to fly in. It would be inappropriate and unsafe for you to operate in airspace with heavy aircraft traffic, such as around airports.

d. Confirm that there is no radio frequency interference (from a nearby radar site for example) that will interfere with the control of your aircraft.

e. Have an emergency plan just in case.

i. This means know the people and equipment available that could help you respond to an incident, accident, medical emergency, you have a fly-away or if your model aircraft becomes uncontrollable. [35]

These rules also recommend that operators fly their drones during daylight hours and in good weather. [36] During a flight drones should be kept in sight, "where you can see it with your own eyes-not only through an on-board camera, monitor or smartphone."[37] Drone operators should respect the privacy of others and should not operate the drone "with any dangerous goods or lasers on the aircraft." [38]
The guidelines also state that drones should be flown at least 9 kilometers away from airports, heliports, or airfields. They should be no higher than 90 meters above the ground and at least 150 meters away from people, animals, buildings, structures, or vehicles. [39] They should not be flown near moving vehicles, highways, bridges, busy streets, or anywhere they could endanger or distract drivers. They should also not be flown "within restricted and controlled airspace, including near or over military bases, prisons, and forest fires." [40] Drones should not be flown anywhere where they may interfere with first responders. Recreational drones are also prohibited from use in national parks.

B. UAV Operators Who Have Been Issued an SFOC

Where a drone is operated under an SFOC, "in addition to any specific directions respecting operations set out in the SFOC and the underlying application," the advisory circular on General Safety Practices-Model Aircraft and Unmanned Air Vehicle Systems apply. [41]

C. UAV Operators Under an SFOC Exemption

If the UAV is operated under an SFOC exemption, the governing guidelines are set out in the Guidance Material for Operating Unmanned Air Vehicle Systems Under an Exemption.[42] This advisory circular sets out all the conditions that must be complied with "in order to use the exemption as your authority to operate a UAV." The circular contains detailed general conditions, flight conditions, and pilot training conditions.

UAV operating guidelines set out in the advisory circular include some of the following rules:

1. a) A human operator is required at all times;

2. b) Operators must be at least 18 years of age;

3. c) Operators cannot be impaired by drugs or alcohol;

4. 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;

5. e) Beyond-line-of-sight operation is not permitted. Live and direct sight of the UAV by the operator is required at all times;

6. f) Operation and control of UAVs through on-board camera, monitor or smartphone is not permitted;

7. g) UAVs may only be flown during daylight and in good weather (not in clouds or fog);

8. 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;

9. i) UAVs cannot be used to transport dangerous goods. [43]

A pilot can operate a UAV only at or below 300 feet above ground level (AGL). Moreover, a pilot operating under this exemption must not operate a UAV over a forest fire area, or over any area that is located within 5 nautical miles (nm) of a forest fire area. According to the circular, a UAV is prohibited in airspace that has been restricted by the Minister or the Aeronautics Act. A UAV must be flown at least 5 nm away from a built-up area or from the center of any airfield. A drone can be flown only at a lateral distance of at least 500 feet from the general public, buildings, structures, vehicles, vessels, animals, or persons unless certain exceptions apply. (For a UAV not exceeding 2 kilograms, the lateral distance for UAVs is reduced to 100 feet.) [44] A person cannot operate a UAV over an open-air assembly of persons.

Each exemption also contains specific training requirements. [45] For example, according to Transport Canada,

to fly a UAV that weighs between 2 kg and 25 kg without permission, the UAV pilot must be trained to understand:

airspace classification and structure

weather and notice to airmen (NOTAM) reporting services

aeronautical charts and the Canada Flight Supplement

relevant sections of the Canadian Aviation Regulations. [46]

As stated in Part II(B), above, drones that weigh between 2 kilograms and 25 kilograms used for nonrecreational purposes are also subject to reporting requirements, including notifying the Minister of the type of work being conducted and specific incidents of injury to any person requiring medical attention or other collisions.

D. Other Applicable Laws

The Criminal Code of Canada contains several offenses "involving the dangerous operation of aircraft and endangering the safety of other aircraft." Punishments for these offenses consist of "monetary penalties and/or jail time including imprisonment for life." [47] According to Transport Canada, "[v]iolations of the model aircraft regulation are handled by the courts or judicial action. Endangering the safety of aircraft is a serious offence under the Aeronautics Act and is punishable by a fine."[48]

The private use of jamming equipment to disrupt drones also appears to be illegal in Canada. [49]

Transport Canada has stated that it is working with the Office of the Privacy Commissioner to ensure that drone operators respect Canada's privacy laws. Privacy concerns have been raised by provincial-level privacy commissioners. [50] A 2013 report from the Privacy Commissioner of Canada stated that the current regulations did little to address privacy concerns and that,

[a]s drones are acquired and put to use in Canada's public and private sectors, it will be important to circumscribe their use within an accountability structure that ensures they are justified, necessary and proportional, and that the necessary checks and balances fundamental to a democratic society are in place to stave off proliferation of uses, abuses, and function creep. Canada's privacy laws will, and do apply to UAVs deployed by public or private sector organizations to collect and/or use personal information about citizens. [51]

IV. Enforcement and Noncompliance

According to Transport Canada, if an incident is reported to the police department, an inspector

will verify that the operator followed the rules and used the drone safely. Local police may also verify if other laws were broken, including the Criminal Code and privacy laws. If you fly a drone for recreational purposes (for the fun of flying), it's illegal to do anything that puts aviation safety at risk. [52]

News reports indicate that enforcement of some of these laws may be lacking. [53]

The use of a UAV without an SFOC may result in a fine of Can$5,000 (approximately US$3,850) for individuals and $25,000 (approximately US$19,240) for corporations. [54] Transport Canada requires SFOCs so that it can verify operators can use their UAV reliably and safely. If an operator does not follow the requirements and conditions of the SFOC, Transport Canada can issue fines of up to Can$3,000 (approximately US$2,310) for an individual and Can$15,000 (approximately US$11,545) for a company.[55] A person who is under an exemption yet operates a UAV in a reckless or negligent manner (e.g., not complying with the conditions in the exemptions) can be subject to a fine of Can$5,000 for individuals or Can$25,000 for corporations.

Since 2010, Transport Canada says it has investigated some fifty incidents involving unmanned aircraft across the country. [56]

V. Proposed Changes

As noted in Part I(A), above, in 2010, Transport Canada established a joint industry and federal government working group to develop recommendations for regulatory changes.[57] This led to proposed changes, which were made public on May 2015 in the Notice of Proposed Amendment on Unmanned Air Vehicles[58] and on which Transport Canada invited comments from aviation stakeholders across Canada. [59]

According to lawyer Kathryn McGoldrick, the proposed changes would "replace the current 'exemption' scheme, which was intended to be a temporary solution while Transport Canada introduced more rigorous safety requirements and created greater awareness of UAV operators' legal obligations." [60] The changes would apply to any UAV with a total weight at takeoff of 25 kilograms or less and which is operated in VLOS. They would also eliminate the current distinction between recreational and nonrecreational use. [61] UAVs weighing 25 kilograms or more would continue to be regulated by the SFOC requirements.[62]

The proposed changes provide a new classification system based on the risks involved in the use of UAVs. There are two categories for UAVs weighing 25 kilograms or less, which are described as (a) "Small UAVs used in complex operations," and (b) "Small UAVs used in limited operations." UAVs in the first category would be used in and around urban or built-up areas and would allow operations near to airfields and would have "the most comprehensive set of regulatory requirements which, in turn, would provide for the greatest level of safety and operational flexibility. [63] The second category would apply to UAV use limited to remote areas and would have fewer regulatory requirements. [64]

A third category is being considered for very small UAVs, which could be based "on weight or [on] . . . an alternative approach, such as kinetic energy." [65] Other considerations in the proposed regulations include the following:

Other than the ability of UAVs in the "complex operations" category to operate in closer proximity to built-up areas and aerodromes [airfields], a primary difference between the requirements for the "complex operations" and "limited operations" categories is pilot training. For all operations, Transport Canada has proposed that UAV pilots be considered a "pilot" as defined by the Aeronautics Act and the CARs. However, operators in "complex operations" would be required to obtain a "pilot permit." Suggested requirements for a pilot permit include a minimum age of 14 (with adult supervision) or 16 (without adult supervision), a category 4 medical certificate, successful completion of a course of instruction in specific aviation knowledge areas and a written examination, practical training on the specific category of UAV, and demonstrated competency in the performance of normal and emergency procedures.

In contrast, a pilot operating a UAV in either the "limited operations" or "very small UAVs" category would not be required to obtain a pilot permit or medical certificate, and there would be no minimum age requirement provided there is adult supervision. However, the operator would be required to demonstrate aeronautical knowledge in specific subject areas, such as airspace classification and structure.

The other principal difference between the three proposed categories is with respect to marking, registration, and identification. Transport Canada has proposed that UAVs in both the "limited" and "complex" operations categories be required to be marked and registered. They would be required to have a unique series of four-letter registration marks, and to be registered in accordance with the requirements for aircraft registration in the CARs. These include that the registrant be at least 16 years of age and a Canadian citizen or permanent resident, and, if the operator is a corporation, it must meet certain requirements of Canadian ownership and/or incorporation.

Operators of very small UAVs would not be required to register their aircraft, but would be required to have a permanent marking for identification, including the name of the pilot and his or her contact information, on the UAV. [66]

Prepared by Tariq Ahmad
Foreign Law Specialist
April 2016

[6]Flying a Drone Recreationally , Transport Canada, http://www.tc.gc.ca/eng/civilaviation/standards/standards-4179.html (last updated Feb. 9, 2016), archived at https://perma.cc/PG92-CSXT. The laws that may apply include, but are not limited to, the Charter of Rights and Freedoms, Criminal Code of Canada, Privacy Act, Personal Information Protection and Electronic Documents Act, Customs Act, Trespass Act, Radiocommunication Act, National Parks Aircraft Access Regulations, Environmental Protection Act, Transportation of Dangerous Goods Act, and Canadian Transportation Accident Investigation and Safety Board Act.

[16] Canadian Aviation Regulations § 101.01(1).

[21] Canadian Aviation Regulations §101.01(1).

[26] Transport Canada,Exemption from Sections 602.41 and 603.66 of the Canadian Aviation Regulation, "Purpose," http://www.tc.gc.ca/civilaviation/regserv/affairs/exemptions/docs/en/2880.htm (last updated Nov. 27, 2014), (providing an exemption for a UAV with a maximum take-off weight not exceeding 2 kg), archived at https://perma. cc/4J2Y-NHHD. In both exemptions "visual line of sight" (VLOS) is defined as "unaided (corrective lenses and/or sunglasses exempted) visual contact with the UAV sufficient to be able to maintain operational control of the aircraft, know its location, and be able to scan the airspace in which it is operating to decisively see and avoid other air traffic or objects." Transport Canada, id., "Interpretation."

[38] Advisory Circular (AC) No. 600-002, § 4.2, "During Your Flight" (k).

[41] Advisory Circular (AC) No. 600-002.

[44] Advisory Circular (AC) No. 600-004, ¶ 4.2(27), "Note."

[47] Transport Canada, Staff Instruction (SI) No. 623-001, ¶ 3.8.

[48] Transport Canada, Advisory Circular (AC) No. 600-002, § 4.3(1).

[54] Canadian Aviation Regulations app. A, sched. II, subpt. 2 - Operating and Flight Rules.

[55] Transport Canada, Advisory Circular (AC) No. 600-002.

# data[].attributes.attachment_link.description
Back to Regulation of Drones In Canada, the regulation of unmanned air vehicles (UAVs) falls under the jurisdiction of the federal government. UAVs are mainly regulated by the Canadian Aviation Regulations (CARs) and standards, guidelines, and circulars issued by Transport Canada.