In this issue:
1. Firm and Industry News
2. False Declarations at an Airport
3. Ethics and Responsibility for Pilotless Drone Warfare
4. Court Orders "Black Box" Produced in Plane Crash Litigation
1. FIRM AND INDUSTRY NEWS
- June 3rd, 2010 Canadian Maritime Law Association
Seminar - Current Developments in Canadian Maritime Law, Halifax
- June 4th, 2010 Canadian Maritime Law Association
Annual General Meeting, Halifax
- September 12-15 IUMI Conference, Zurich
Fernandes Hearn LLP Named One of Top 6 Maritime Boutique Firms
in the Country. "This boutique came on the scene in 1996,
when Rui Fernandes and Gordon Hearn left Cassels Brock & Blackwell
LLP. Maritime law is a major component of its general transportation
law practice, which also deals with matters involving aviation,
trucking, and rail carriage. Its nine lawyers serve key clients
such as Royal & Sun Alliance Insurance, Allianz Insurance,
Chubb Group of Insurance Companies, JEVCO Insurance Co., NYK Logistics,
Quik X Transportation Inc., and Whirlpool Jet Boat Tours. Fernandes
has helped solidify the firm's strong reputation by publishing
five texts on transportation law." - Canadian Lawyer Magazine
2. False Declarations
at an Airport
The accused Ephraim Philip Konigsberg was charged
with making a false declaration at an airport to the effect that
he was carrying a weapon, a firearm, contrary to s. 13 (a) of the
Canadian Aviation Security Regulations, SOR/2000-111. Section 13
(a) [now s. 11] provided:
11. A person who is at an aerodrome or on
board an aircraft must not falsely declare that
(a) they are carrying a weapon, an explosive
substance, an incendiary device or any other item that could
be used to jeopardize the security of an aerodrome or aircraft
or that such an item is contained in goods in their possession
or control or in goods that they have tendered or are tendering
for screening or transportation;
The Court describes the amazing behaviour of the accused
The evidence can be summarized as follows.
At this stage, I will only refer to the evidence that is relevant
to the guilt or innocence of the Accused. The evidence that is
solely relevant to the motion for staying the proceedings is not
to be taken into account on the merits, since it is not relevant
to the issue I now need to decide.
Upon returning from a trip in Florida and
after his flight landed at Montreal-Trudeau Airport, the Accused,
much to his dismay and displeasure, is referred to the customs
secondary counter by the customs officer who welcomes him in Canada
at the primary counter. This decision by the customs officer is
not well received by the Accused and he makes sure to show his
disagreement with the decision. As the events will show, he would
not be an easy customer for the officers who would have to deal
with him at customs.
Upon entering the secondary area, the Accused
is immediately noticeable. He immediately starts swearing and
shouting, and shows abuse towards the officers.
The Accused is then called to the counter occupied by customs
officer Villamagna. The Accused keeps using verbal abuse towards
officer Villamagna. He is angry and inquires as to the reason
why he was referred to the secondary.
Villamagna then asks the Accused to put the
golf bag he is carrying on the counter so that it could be searched.
Before doing so, Villamagna asks the Accused if the golf bag contains
any kind of sharp object that can be harmful to him. The Accused
answers no. Villamagna then proceeds to search the bag and gives
it back to the Accused, who throws it against a mirror situated
in the area.
Villamagna then asks the Accused for his second
piece of luggage. As an answer to Villamagna's request, the Accused
throws his luggage on the counter. Again, Villamagna inquires
as to the presence of sharp objects inside the luggage. Obviously,
the Accused is not pleased with being asked the same question
It is then that, according to Villamagna,
the Accused declares that he has a sub-machine gun and 150 rounds
of ammunition. Villamagna adds that the Accused did not retract
his declaration and has no mention of that fact in his notes.
At that point, given the declaration made
by the Accused, Villamagna puts his hand on the bag, directs the
Accused to step back and away from the bag, and calls in his supervisor.
Officer Plourde then arrives and Villamagna tells Plourde what
the Accused had just said. Plourde asks the Accused if this is
what he has just said. The Accused answers yes. Plourde then asks
the Accused to turn around and land down on the floor with his
arms against his body. Villamagna handcuffs the Accused, advises
him that he is being detained for obstruction, and tells him he
would read him his rights later in a more secure area.
Villamagna then proceeds to frisk search the
Accused, to no avail. A subsequent search of the Accused luggage
also proves to be negative. No sub-machine gun or pieces of ammunition
would be found in possession of the Accused.
The accused testified and admitted that he had behaved
badly! His excuse was that at the airport of departure, he had a
sandwich and a rum drink called a "Miami Hurricane" which
unbeknownst to him contained at least four ounces of rum. He explained
that at customs he became "an angry drunk" and "poured
his anger on his golf bag." He added that when officer Villamagna
asked him the "famous" question as to the sharp objects
that could be in his golf bag, and asked the same question before
searching each piece of luggage, he then became sarcastic towards
the officer. He also explained that he could not control his mouth
anymore. He explained that he lost it and told the officer "You
know what? I have a machine gun and ammunition." He could not
remember in his testimony how many pieces of ammunition he then
The accused stated that he immediately retracted his
declaration and told the officer he was sorry and that he did not
mean to say what he had said. He testified that he immediately ceased
to be sarcastic. The accused argued at his trial that he did not
have the mens rea [Latin term for "guilty mind"]
required by the Regulation.
The Court had to decide whether there was a retraction
of the declaration and whether the accused had the culpable intent
required to be found guilty given his retraction and his state of
The Court gave the accused the benefit of the doubt
as to whether he retracted his declaration, but went on to find
that the declaration was made and the retraction had no bearing
on his criminal responsibility. Mens rea was present since,
according to the accused, after making the declaration, he immediately
told officer Villamagna that he was sorry and that he did not mean
to say what he had just said. In those circumstances, he must have
known what he had just said and realized the trouble he had just
put himself in. He ceased to be sarcastic. This was not a sign of
an altered mind (by alcohol).
The Court summarized the object and intent of the
It is apparent to me that the scheme, the
object and the intent of the drafters of the Canadian Aviation
Safety Regulations is to prohibit any kind of false declaration
relating to the possession of a weapon when made within an airport,
and wherever the declaration is made within the airport, be it
in the area of the airport accessible to the general public, at
the security check-in areas, during the boarding process, while
on board of an aircraft, or when at the customs counters, as in
It cannot be required that the violator "affirme
avec force" that he/she has a weapon in his/her possession
to contravene Section 13a) of the Regulations. As stated before,
this does not correspond with the clear intent shown by the words
used in the Section and would defeat the very purpose of
the Section and of the Regulations. An airport is
a location where it cannot be tolerated that a person make a false
declaration as to the possession of a weapon, whether it is made
jokingly, or whether the violator did not mean to utter the words
he/she did. And it is so for obvious reasons.
The accused was found guilty of making a false declaration
publicly and openly with the knowledge that it was false.
3. THE ETHICS OF AND RESPONSIBILITY FOR PILOTLESS
A recent article in The Economist on pilotless
war planes, or drones, that understand human ethics and the laws
of war brings to light interesting dilemmas regarding responsibility
for autonomous robots. Pilotless drones are increasingly used in
Afghanistan to eliminate al-Qaeda targets. While this has the advantage
of keeping a highly-trained pilot out of harm's way, the targeting
of the attack and the collateral damage caused by the attack may
not conform to the international laws of war.
New software developed by Ronald Arkin of the Georgia
Institute of Technology's School of Interactive Computing would
involve the drone itself in the decision to attack by programming
it with information about the capabilities and effects of the weapons
it deploys, and about the laws of war. Interestingly, Mr. Arkin
modeled his software on the human emotion of guilt - as the collateral
damage increases, the drone will become more "guilty"
and choose weapons less likely to cause collateral damage, or even
refuse to engage altogether.
The use of pilotless drones with such autonomy and
decision-making capabilities raises interesting questions about
who is responsible if the drone makes a wrong decision - the operator,
his or her commanding officer, the strategic officer who decided
to employ drones in that theatre of war, or the software engineer
who programmed the drone? This is a legal grey area that will become
more important as drones take on an increasingly important role
in Afghanistan and other war zones.
PILOTLESS DRONES TAKE ON AFGHANISTAN
The pilotless drone has an ever more important role
in Afghanistan. The United States arms such drones as the "Predator"
and "Reaper" with Hellfire missiles for targeted assassinations
of al Qaeda targets. Again, while the advantage is keeping military
personnel off the battlefield, any collateral damage may not conform
to the "laws of war".
It may seem counterintuitive to say that war is governed
by laws, but beginning with the Lieber Code in 1863 international
law began to recognize that there are some basic rules that should
govern war lest we retreat into barbarity. The most well-known rules
on conduct during war were drafted in 1949 - the Geneva Conventions.
Additional Protocol I to the Geneva Conventions proscribes
certain principles governing the law of war, including those of
military necessity and proportionality.
To determine the legality of a military attack, four
considerations are taken into account:
1. Is the target protected, i.e. is the target a civilian,
or a facility with both a civilian and military use, or a proper
2. Can the target in fact be targeted, i.e. is it
a proper military target, and is the attack discriminate?
3. Is the attack militarily necessary?
4. Is the attack proportionate to the objective?
The concerns arising from the use of pilotless drones
in Afghanistan are primarily whether the attack is militarily necessary
and whether it is proportionate.
The principle of military necessity says that the
only legitimate object that states should endeavour to accomplish
during war is to weaken the military forces of the enemy. Civilian
objects are not to be targeted or attacked. Attacks are therefore
to be strictly limited to military objectives:
military objectives are limited to
those objects which by their nature, location, purpose or use
make an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage.
Where there is doubt whether an object has a civilian
or military use, such as a place of worship, a house or other dwelling,
or a school, the presumption is that the object does not have a
military use. Furthermore, it is prohibited to destroy cultural
objects and places of worship.
This requirement often poses problems to forces in
the Afghan conflict, as al-Qaeda operatives are not conventional
military forces and therefore do not have conventional military
targets. They may be using homes, schools, or places of worship
as military bases, but it is difficult to prove this is the case.
In any event, using a drone to remotely attack a civilian target
where there is doubt as to its military use, or the extent of such
military use, violates the laws of war. Remote operators of these
drones may be more inclined to attack these targets, however, because
they are removed from the sights and smells of the battlefield and
therefore may be less affected by battlefield casualties and damage.
Military actions must also be proportional to the
objective sought. Those who plan or decide to attack must "refrain
from deciding to launch any attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive
in relation to the concrete and direct military advantage anticipated."
The concern with military drones is that operators
of pilotless drones may decide to attack a target where the incidental
loss of civilian life or property is greater than would otherwise
occur, due to the distant nature of the relationship between the
operator and the battlefield.
GUILTY DRONES AND ETHICAL ARCHITECTURE
As discussed in The Economist, Ronald Arkin
of the Georgia Institute of Technology's School of Interactive Computing
has developed software, which he calls Ethical Architecture, to
deal with some of these issues. Ethical Architecture involves the
drone itself in the decision to attack.
The drone would be programmed to understand both the
operative capabilities of any weapon it deploys (which would also
be linked to GPS) and the laws of war. In the battlefield, the drone
would locate a target using a GPS pre-programmed with military targets,
then use its pre-programmed laws of war to determine the legitimacy
of the target. The drone would then choose a weapon that would achieve
the objective with the least amount of collateral damage.
An interesting element of Ethical Architecture is
that Mr. Arkin modeled it on the human emotion of guilt. After each
strike, the drone assesses battlefield damage and uses its algorithms
to calculate the appropriate level of guilt based on civilian casualties
and harm to civilian property. As the level of guilt increases,
the drone will choose weapons with less risk of collateral damage,
or may refuse to engage a target altogether.
A drone equipped with Ethical Architecture has a more
thorough knowledge of the laws of war, the capabilities and actual
battlefield effect of the weapons it deploys, and of legitimate
military targets, than any human is capable of possessing, and it
can process that information incredibly fast.
However, the prospect of deploying pilotless drones
without any human oversight is unpalatable. The use of Ethical Architecture
raises the question of who is responsible for attacks made by pilotless
drones when the drone is permitted such latitude to engage the enemy.
Is it the operator who "pushes the button" to deploy the
drone? Is it the operator's commanding officer who gives the tactical
battlefield order to deploy the drone? Is it the officer who makes
the strategic decision to deploy drones to that particular theatre
of war? Or is it the software developer who programmed the drone's
software program that governs its rules of engagement?
The concept of "superior responsibility"
says that the operator who deploys the drone cannot relieve him
or herself of criminal responsibility for violating the laws of
war because he or she was merely following orders of a superior.
If an order is manifestly unlawful, the operator has no obligation
to follow it. Similarly, a superior cannot issue vague or indirect
orders that may result in illegal acts, such as an order to deploy
a pilotless drone with no or insufficient oversight to ensure legitimate
military targets are engaged.
These issues are as yet unresolved and constitute
a legal grey area. These as yet uncharted territories will become
more important in the upcoming years as pilotless drones are increasingly
used in various theatres of war.
4. Court Orders "Black Box" Produced
in Plane Crash Litigation
Last December, in Société Air France
et al. v. Greater Toronto Airport Authority et al., Mr. Justice
Strathy of the Ontario Superior Court ordered the production of
the cockpit voice recorder ("CVR"), part of the aircraft's
"black box", from Air France Flight 358 in the litigation
over Flight 358's crash landing at Toronto's Pearson International
This decision marks a departure from previous cases
where courts held that the statutory privilege attached to CVRs
would be overridden only in the most exceptional cases.
In August 2005, Flight 358 (an Airbus A340) overshot
the runway during a severe thunderstorm, crashing into a ravine,
bursting into flames and resulting in a number of injuries to both
passengers and crew.
Since then, at least four separate actions have been
commenced. In one of those actions, Air France and its insurers
are suing NAV Canada, the Greater Toronto Airport Authority, Environment
Canada and the Ministry of Transportation claiming damages for the
loss of the aircraft and indemnity for all the claims paid as a
result the crash.
In an effort to bolster its defence, NAV Canada moved
before Mr. Justice Strathy seeking production of Flight 358's CVR
and its corresponding transcript.
By way of background, the Canadian Transportation
Accident Investigation and Safety Board Act, (the "TSB
Act") is the enabling statute for the Transportation Safety
Board ("TSB"), whose mandate is to advance transportation
safety by conducting independent investigations into accidents,
reporting publicly on their causes and making recommendations. In
an effort to provide the TSB with unfettered access to accident
data, any TSB finding shall not be used to assign fault or determine
blame in either the civil or criminal courts.
NAV Canada's motion highlighted section 28 of the TSB Act, which provides that every CVR is privileged and
not to be produced in any legal proceeding except by order of the
court. Before a court will order production of a CVR, the judge
must first listen to the contents of the CVR in camera and
consider the circumstances of the particular case after hearing
submissions from the TSB and the party seeking production. Then
the court must determine whether, in the circumstances, the public
interest in the proper administration of justice outweighs the importance
of the privilege attached to the CVR.
Previous judicial consideration of section 28 and
similar provisions of the TSB Act often denied production
of privileged communications among pilots or with TSB investigators
on the basis that the information in question could otherwise be
obtained and that the failure to disclose the information would
not result in a miscarriage of justice.
Mr. Justice Strathy found both of these standards
too stringent. He held that requiring the moving party to demonstrate
that there was insufficient available information without the benefit
of the CVR amounts to an impossible hurdle, as a party could not
know about the existence of information comparable to that which
is contained in the CVR without first knowing what the CVR contains.
Second, he held that the miscarriage of justice threshold is too
difficult to apply on a prospective basis.
After listening to the CVR, Mr. Justice Strathy determined
that it contained no personal, irrelevant communications that were
embarrassing to the pilots. Instead, he found the CVR data to be
highly relevant, probative and reliable. He also noted that the
CVR data had already been used by the TSB during interviews with
the pilots of Flight 358 and therefore, it was unclear whether the
court, at trial, could rely on the recollection of the pilots without
the assistance of the CVR.
Section 28 has two purposes: (1) to protect pilots'
privacy; and (2) to encourage free and uninhibited communications
between the pilots.
In ordering production of the CVR, Mr. Justice Strathy
rejected the arguments of the TSB, the Air Canada Pilots Association
and the Canadian Air Line Pilots Association (collectively the "Associations")
who argued that the production of the CVR is detrimental to aviation
safety because it prevents an open exchange of information between
pilots that is essential to flight safety.
Mr. Justice Strathy found the concern for pilots'
privacy to be largely illusory as much of their communication was
previously disclosed in the TSB report on the crash of Flight 358,
which is already publicly available. As well, he noted that CVR
transcripts are frequently included in investigations in other jurisdictions.
There was no evidence that communications between pilots has been
impaired since the introduction of CVRs in the 1960's.
In the context of section 28, public interest in the
proper administration of justice refers to the public interest in
the fairness of the trial process. In this instance, the court held
that without the CVR evidence, there was a real risk that the court
and the parties to the litigation would not have the best and most
reliable evidence surrounding the circumstances of Flight 358's
Although, the court rejected the "insufficient
available evidence argument", its decision does not completely
eliminate that line of reasoning. Instead, in the future, parties
and their counsel may want to focus on demonstrating that the CVR
contains the best evidence of the circumstances of a particular
crash. Ultimately, production of the CVR from Flight 358 and its
transcript was ordered subject to a confidentiality order previously
in place in the litigation.
As mentioned above, this decision is significant because
it appears to lower the threshold for overriding the statutory privilege
afforded to cockpit communications.
Recently, an appeal of this decision was heard but
the Court of Appeal has not yet released its decision.
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