May 2010

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 Switzerland
  
  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 May 2010.
  

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 as follows:

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 again.

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 referred to.

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 mind (drunkenness).

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 legislation:

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 this case.

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.

Rui Fernandes

3. THE ETHICS OF AND RESPONSIBILITY FOR PILOTLESS DRONE WARFARE

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 military objective?

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.

Kimberly Newton

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 Airport.

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 crash.

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.

Sonny Ingram

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