Canadian Pilot charged with Criminal Negligence in crash

[lead zeppelin]

Pilot charged in city plane crash

WINNIPEG - Winnipeg Police have laid charges against the pilot of a plane that crashed at Logan Avenue and McPhillips Street Winnipeg in June 2002.

The Piper Navajo Chieftan aircraft, owned by Keystone Air, was carrying six passengers and the pilot. It collided with several vehicles before coming to a stop in the middle of the street.

All of the passengers survived the crash with varying injuries, but one man, Chester Jones, died a few months after the accident as a result of his injuries.

After a lengthy investigation in co-operation with Transport Canada, police have charged the pilot – a 36-year-old Calgary man – with criminal negligence causing death, four counts of criminal negligence causing bodily harm, and dangerous operation of an aircraft.

In April 2003, the Transportation Safety Board released a report on the accident saying the pilot was flying too high and too fast to make a successful landing at the Winnipeg Airport, and when he tried to go around for another approach, both of the plane's engines stopped because they ran out of fuel.

The report also says the pilot didn't tell air traffic controllers about his critical situation soon enough, and the aircraft did not meet regulations for the flight because it did not have an autopilot system.

The pilot will appear in court in Winnipeg later this year.

[palgia]

... sounds like somebody is screwed...:rolleyes:

[surplus1]

Leadzepplin,

Could you possibly post the source of this article and the date it was published?

Criminal charges against pilots that make mistakes are extremely dangerous to professional airmen. I know there have been problems with this sort of thing before, particularly in Asian countries but I would never have expected it in Canada.

I'm trying to get legal help for the pilot so that we can avoid legal precedent should he be convicted. Any information you can give me as to the source and date of the story or the venue for the pending trial would be most helpful.

I'll check back to get the info.

Thank you.

[fokker]

I'm sorry? What "legal precedent" would that be, then? The one that says you have to answer for it when you f**k up? Everyone faces that, and the court will decide whether he is, in fact, culpable. Presumably, after this length of time, Transport Canada is not bringing the action just for the hell of it.

Welcome to the real world!

[bafanguy]

fokker,

"...answering for it..." is covered by civil penalties ( revocation of license, civil suits by next of kin, etc. ). Criminal penalties are quite another and are the precedent that must be avoided.

Criminal penalty for pilots is an ugly monster that must be stopped when it shows its head. Once this is allowed to take hold, you'll be facing criminal charges for the incident/accident no matter the circumstances.

Government pencil monkeys ( especially the elected ones ) get a lot of personal mileage out of "getting tough" on these darned pilots. Joe Sixpack really thinks his government reps are "there for him".

Bad deal...

[lead zeppelin]

Here you are, Surplus

http://winnipeg.cbc.ca/regionalnews/caches/mb_pilotcharged20041020.html

This news was on October 20, 2004

[oldebloke]

Ironically enough the 'legal' precedents have been raised in the UK.The helicopter crash where booze was thought to have been in influence,and the tragic(pilot wise)outcome from the BA captain that continued the unstable ,early morning,Cat2 and setting of the Car alarms in the Penta Hotel??carpark..The second Cat2 was normal. It has often been wondered if the Capt,after being charged by the police,recieved adequate defense from Balpa-compared to other Industrialized nations.
It is my understanding that Air transport comes under Federal juristdiction in the US,despite local district attorneys flying of the handle with arrest warrants:ok:

I can\'t recall any US prison penalties,despite the concentrated look at \'drug\' influence..Gen the FAA cancells the LIcence(livelyhood)of the guilty indiffidual..:rolleyes:

[lead zeppelin]

Here's a related link............

http://www.avweb.com/news/avlaw/181901-1.html

[411A]

Yes, indeed, there have been oldebloke.

Northwest pilots received jail for multiple cocktails prior to operating ex- South Dakota, with w/ B727 acft.

AmWest crew facing jail time for their escapades in MIA.

Drink and be merry...go directly to jail, if a pilot, and found out.

Now then, run out of fuel ...and crash?
Seems to me to be culpable manslaughter.

Run out...at your own risk. There can really be NO excuse, except perhaps mech/tech failure/wx.

And if you don't uplift enough...well, one Brit crew (BY/Girona for example) found out, bigtime. Poorly flown approach, no diversion fuel...crash.

[oldebloke]

Led' thanks a lot for that site-the article very educational!!
411-no argument but couldn't recall any case where the crew were penalised by prison for their operation of the Aircraft which led to an accident /incident....The booze cases were 'discovered'on the ground,or after a sucessful flight.(DWI)
Led's article covered several cases of'criminal' flying but no severe consequences..:ok:

[lead zeppelin]

Gentlemen, I've been "google"-ing around, trying to find out about another similar legal situation, but no luck.

Does anyone remember the British Midlands 737 that crashed about 15 years ago - as I recall, after an engine failure on takeoff, the crew shut down the good engine. I seem to also recall criminal charges were broght on that crew, but I'm not 100% sure.

Any insights?

[surplus1]

Lead zepplin,

Thank you. I could not get the first link to function. Would you please try again?

The second link was informative, thanks for including it.

TO fokker and the others:

I have no problem with criminal sanction of such things as operating aircraft under the influence of alcohol or drugs. However, criminal penalties for "pilot error" should not be sanctioned.

In the United States, ALPAUS has managed to preclude, in so far as I know, the filing of criminal charges at the Federal level as a consequence of aircraft accidents where pilot error is alleged or suspected. I believe that is true in most State courts as well. Police officers and District attorneys know next to nothing about aviation matters. Neither do judges or juries 99% of the time. A "fair" trial would be virtually impossible.

Perhaps the concept of a "fair trial" is lost on some nationalities but that is not a reason to subject US citizens to practices of those jurisdictions. Since we fly "abroad" it is in our interest to stop the practice of criminal indictment of errant pilots wherever possible. If we cannot avoid this in a country like Canada, what will we do if it happens in Lagos or Rydah and one suddenly finds himself subject to Islamic "law". Maybe you would like to be sentenced under Sharia to 150 lashes, spend 10 years in an Istambul dungeon or try your luck in a Rawandan prison. Would you like to be the JAL Captain who just went through hell in Tokyo because one of his flight attendants died in a clear air turbulence encounter?

If criminal indictments and sanctions cannot be precluded, there will be no cooperation whatever from pilots involved in any incident/accident, CB's on CVRs and FDRs will be routinely pulled, and accident investigation set back for years.

The subjective nature of "pilot error" detirminations also does not lend itself to criminal prosecution. Criminal prosecution is applicable to deliberate acts voluntarily committed. It should not be applicable to accidents resulting from human error.

ALPAUS and IFALPA as well have actively sort to avoid the same in countries other than the USA. I support that position.

Let us hope that those of you so quick to condemn never find youselves behind bars due to an operational error that you may one day make.

[Ignition Override]

Those NW guys who flew from Fargo to MSP all went to Federal Prisons for a full year. The Captain was sent to the one in Atlanta, where lots of really bad people reside (well...just nice people who did some bad things). So bad that he seriously considered suicide several times. And he was reportedly no wimp. Upon arrival, certain authorities extrapolated the crew's breathalyzer results, guessing how much it would have registered before the flight. The judge was "ALLEGEDLY" prejudiced, being quite familiar with a railroad accident in which the Engineer had a drug in his system, and wanted to find anyone suspected of being under the influence of whatever, especially in a public transportation industry.

The aircraft was not involved in any actual incident, otherwise, but an FAA "representative" had talked to the Captain just before the flight and mentioned that there was some sort of concern about or problem with the crew. The Captain never told the First Officer or Flight Engineer about the conversation. The Captain later earned all of his ratings back from scratch and became an instructor. The other pilots were never welcomed back because they had never confessed to a drinking problem-
sounds kind of like the "Peoples' Republic" of China mentality...? I read all of this somewhere.

[lead zeppelin]

A very interesting situation - Canada is a country of "common law", which comes from the UK (and similar in the USA), as both nations owe their ancestry to the UK.

I ask members of pprune - where do you stand with respect to pilots facing criminal charges for accidents?

[bjcc]

I have to ask, why should a pilot not face criminal charges if there is evidence of them committing a criminal offence?

If you drive your car and screw it up, you face criminal charges. If you are a train driver, the same, if you the captain of a ship and do something illegal...you end of in court. Why then should a pilot be iminune from prosecuction?


Oldbloke, the pilot of the BA 747 that went rather low over the Penta was charged by the CAA not police.

[Cosmo]

Some thoughts on the subject:

The article quoted in the first post infers that the pilot ran out of fuel. Try convincing a lawyer that there is no negligence embedded somewhere in that one (if that is the case).

No intent to offend anyone, but it seems apparent that the arguments put forward in this thread of no criminal consequences for pilot error are not put forward by people with legal training. You have to understand that it sounds ridiculous, almost insulting, from a lawyer's perspective because that statement is essentially calling for immunity for a specific group of people. That argument will, most likely, never stick with any legal scholar.
Take a bus driver (a somewhat poor example, I know) who drives over someone at a bus stop. His actions, when determining criminal negligence/culpability, will be weighed against the performance of the average driver. How would an average bus driver have acted?
It should also be noted that criminal culpability for transport related incidents and accidents does not always (by that I mean "in many legal systems") contain a pre-requisite of intent (dolus): simple negligence can suffice.


If criminal indictments and sanctions cannot be precluded, there will be no cooperation whatever from pilots involved in any incident/accident, CB's on CVRs and FDRs will be routinely pulled, and accident investigation set back for years.

As it stands today, I would venture as far as to say that they cannot. This is perhaps a pessimistic view, but there you have it. Nothing guarantees indemnity (nothing in black and white letters in a legal document), we only have the assurance of aviation authorities of no consequences. Even the EU incident reporting directive is a compromise in that sense. It doesn't as such preclude administrative , not to mention criminal, sanctions following an incident report.

Note that “pilot error” is not legal terminology. It can equally be an act that does, and an act that does not, lead to criminal consequences.

[radeng]

There have been quite a lot of railwaymen prosecuted (and convicted) in the UK for causing accidents - that's been happening for well over a hundred years.

[SLFguy]

Thanks Cosmo, informative post.

[Burtonian]

Led
the incident you refer to was at East Midlands the full AAIB report can be found here
http://www.dft.gov.uk/stellent/groups/dft_avsafety/documents/page/dft_avsafety_502831.hcsp#P118_4495
Still searching for follow up re crew

[bjcc]

surplus1


I think you will find that many juries know nothing of the subject of a criminal charge 99% of the time. Take Fraud for example, or a major train crash. The suggestion that someone can not have a fair trail because a jury wont understand it, is therefore not valid.

Its part of the proescution and defences job to ensure that the jury do understand the facts and can therefore make judgment on those facts. Again prosecution and defence lawyers/solicitors/barristers really should ensure that they understand before any trail. They have access to expert witnesses who can explain.

As regards to another point you raise, US citizens in other countries, like visitors from any country are subject to local laws. If you are a US passport holder and you steal something in the UK you would not expect to be immune from prosecution, any more than the reverse. If the law in a country says you can't do something, and you don't believe that law is correct or you don't consider thier system of justice correct, then don't go there, and if you do, obey those laws.

You mention Pilot Error, which is a loose term and has been pointed out is not a legal term. Any prosecution is going to require more evidence than that term. Not uploading enough fuel for a flight may well be pilot error, but its also negligence. That negligence may well be criminal, depending upon the circumstances.

The assumption that a pilot will refuse to cooperate with an investigation into an incident because he may face criminal charges, doesn't hold up either. There is nothing to stop a pilot who has been negligent being sued, co operation doesn't stop because of that. In any case, if you have done nothing wrong, why should you not be willing to co operate.

[rotornut]

I think you will find that many juries know nothing of the subject of a criminal charge 99% of the time.
That's why criminal negligence cases are almost always heard before a judge alone in Canada (in crim neg, you can elect trial by judge alone, if you want).

[lead zeppelin]

Good post, Cosmo.

Here's a story that is basically the same situation, from a Canadian chat forum......

---------------------------------------------------------------------

Bus driver conveys condolences at trial opening

OTTAWA - The trial of an OC Transpo bus driver accused of criminal negligence in the death of a toddler from Toronto got underway Monday in Ottawa.

The bus slammed into the back of the Appuhamy's rental car, killing 18-month-old Chamin

Lawrence Burt, 49, is on trial for one count of criminal negligence causing death and two counts of criminal negligence causing bodily harm.

The bus he was driving on July 13, 2003, slammed into a car rented by the Appuhamy family, in Ottawa from Toronto for a wedding. Their car had run out of gas and was stranded in the bus lane on Regional Road 174.

The accident killed 18-month-old Chamin Appuhamy, and has left his father, Jude, with head injuries and paralyzed from the waist down. Chamin's mother, Kanchana, was also seriously injured but has more or less recuperated.

One of the first things the court heard was a message from Burt to the Appuhamy family.

"He's wanted to, since that very day, express his condolences and sympathies to the Appuhamy family and I did that on his behalf in the court session today," said lawyer Lawrence Greenspon.

But it wasn't an apology. Burt and his lawyer say this accident was not a matter of negligence.

As part of that, the court heard how a passenger was standing beside and speaking to the driver as the bus approached the Appuhamy's car at about 100 km/h.

Ross Molot, the Appuhamy's lawyer, said the family is keeping an open mind and is "just trying to find out what happened."
"We're frankly looking for more information about what happened and [to] discover why this accident happened in the first place," said Molot.

"That's really what we're trying to get out of this trial. Nobody's looking for any kind of conviction per se, nobody's looking for any kind of retribution."

This criminal trial, by judge, is scheduled to last two weeks.
Later this week, the family plans to file a $10-million civil suit against Burt, the City of Ottawa, and a city employee.

[bjcc]

rotornut

That may be the case in Canada, I have no idea. In the UK on inditment (trail by the Crown Court) there is always a jury. As I said, there is no need, and I can see some argument for saying it is better that they don't know anything about the subject of a trial, it means they would not be swayed by thier own opinons. In any case the idea of the jury system is to give a verdict based on what the reasonable man belives. Not what an expert thinks.
If the lawyers/barristers/Solicitors are doing thier jobs properly, they will have explained what is nessesary, expert witnesses in my experience are very good at explaining matters to perplexed jurys.

[iqit]

......pilot s may not co operate and get sued anyways....
but,
the rest of us pilots ,may never find out what happened . safety in the aviation world is based on the lessons that we learn from other peoples mistakes and when we stop talking about our mistakes then people get to make the same ones (not that you make your self accident proof ,but you minimize the risk)
and ,
we should stop using the term pilots error ....it never was a true statment to begin with .......the term is human error....cause if you look deeper, its the human' nature of the individual that gets him in to trouble ....i cannot posibly imagine a normal ,sane,human beeing wanting to kill himself and others by causing an accident .
its easy to critisize someone ,but if we look deep in our selfs ,we can recall of things we have done that we r not proud of ......sometimes the chain of events breaks before the accident ,sometimes ,for some,it never does .
for those interested in reading about known accidents from a different prospective i suggest "the naked pilot" (and no it does not contain any naked pictures!)

[rotornut]

bjcc

In Canada for the more serious crimes, the accused always gets to elect his (or her) mode of trial except for murder, high treason, and a few other offences which must go before a jury. There's even an exception to this rule but I won't go into that right now.

For some interesting reading here is the last word on criminal negligence causing death from the Supreme Court of Canada:

http://www.lexum.umontreal.ca/csc-scc/cgi-bin/disp.pl/en/pub/1989/vol1/html/1989scr1_1392.html?query=tutton&langue=en&selection=&database=en/jug&method=any&retour=/csc-scc/cgi-bin/srch.pl?database=en%2Fjug~~query=%22tutton%22~~language=en~~ method=any~~x=12~~y=5

Hope you don't fall asleep;)

[bjcc]

Yes, thanks, I've read the Naked Pilot, and your right didn't have any photos of undressed pilots...

I take your point, however there are ways round it. Firstly, under UK law now, you no longer have a right to silence as such. So if there is a criminal enquiry, unless you are guilty, then you are lightly to answer questions. The answers to those questions could well help you, and other pilots find out what happened.
At the moment, the fact a pilot may be sued after an incident, or may have his lience removed does not deter them from telling all. So they already stand the chance of losing all. OK, the possibility of a prison term may not may not make some one feel co operative if they are guilty of something, but it is always good mitigation that you co operated with any investigation. In any event there is nothing at the moment to prevent a pilot, in the UK from being prosecuted. It doesn't seem to stop them co operating with AAIB. I suppose its proffesionism.

Another way round it, is to have 2 sepeate investigations. the accident investigation not being released until after a criminal investigation has been completed and any trials concluded. That may well be what happens now, I don't know, but it would stop any worry that co operating with an accidnt investigation would impair someone's ability to defend against a criminal action

[oldebloke]

LED,in IFALPA circles the fact that Canada followed 'common law' became very evident when comparing judicial policies elsewhere.'innocent until proven guilty',this depends on the defence one puts up,ergo the unions!!once over the channel one is condidered guilty until proven innocent(even in upright Germany).....Canada's'act' on CVR privelege was regarded as a corner stone for Common sense with it regard to immunity for Safety..This too has been wittled down now in that the TSB can refer to the CVR in'reportable' Incidents,which might be regarded as the thin edge of the wedge towards unnecessary exposure..
BJCC,the BA case eventually led to the COURT fineing the Captain 2000 pounds.....
:ok:

[bjcc]

Oldbloke

Yes I am aware of what happened to him in court. I was sat in the police station canteen when it thundered over our heads (That being next to the Penta as it was then)....and I doubt anyone there was chuffed about it.

The fact remains that yes he was taken to court, by the CAA not as the result of Police investigation or charge. In actual fact he was, as I recall, summonsed...Yes he was fined, why was that? Because the jury found him guilty. It is sad that finding had such an effect on him, but that was not what the jury was there to consider.

I presume he cooperated with the investigation into the incident....

Differant countries have differant ways of trying people. Actualy I think Germany has innocent until proven guilty, although France does the opposite. Either way, thier systems of justice are established and work perfectly well, Europe has a convention on human rights, at least in theory giving one the right to a fair trial.

I doubt you or anyone else would complain if that system found a person guilty of any other offence, why should it be different for pilots.

I take your point on safety, however that claim can be made by many other occupations, train drivers, coach drivers ships captains. None of these make the same claims for immunity for thier actions.

[Sunfish]

bjcc, might I respectfully suggest that there is a difference between "screwing up" and knowingly committing a criminal offence?

[bjcc]

You can suggest it yes and sometimes you are absolutly right, there are such things as pure accidents.

However there are other occations when the 'screw up' is foreseeable and not stopped, or the appropriate action was not taken to prevent the situation happening or from getting worse.

It is these cases there may, depending on the circumastances attract criminal proccedings. And rightly so.

I emphisise that each case is differant, just as in any accident. Sometimes someone is criminaly culpable, they should not be given blanket protection on the grounds that there may be lessons to be learned, that argument could be applied to any occupation or activity where someone could be injured or killed, albeit on a greater or lesser scale.

If you apply it to aircrew then, no doubt train drivers would want the same, as would bus and coach drivers, apply it to them, and why not apply the same to any vehicle driver.....All could use the same argument, 'Others could learn safety lessons, therefore I should not be prosecuted'

[exeng]

Sunfish is quite possibly referring to the distinct possibility that the Captain in the Penta incident made a mistake - a serious one it has to be said, but I believe it was a mistake nevertheless.

The jury found him guilty, but that does not necessarily mean he was in fact guilty of the offence in moral terms. It seems strange that our legal system allows a jury with no specialist knowledge to make a judgement that requires just that knowledge. I accept that they will probably have been given some brief on the technical details but it must be difficult to turn a bricklayer or a bank manager into an aviation specialist in a few hours.

I wonder why thoughts were not given into criminal proceedings against British Airways following this incident.

I operated as an F/E on the 747 fleet at the time and I was not surprised when the 'All Weather Ops' procedures were changed significantly, and very shortly after this event.

You should note also that the fleet office were in the habit of allowing a dispensation (over the radio) if a crew member was not qualified for all weather ops, as was the case of the Penta F/O. I myself have operated a flight as an F/E when this very procedure took place - I didn't agree with it at the time but as third in command there was little I could do to influence the situation.

There is also the fact that both the F/O and F/E were unwell through a stomach bug, but I would imagine you were aware of that.

This Captain took his job seriously but made a mistake. After the event he chose a path that in hindsight seems ill advised.

This poor fellow’s life, and that of his family, was destroyed by one mistake. That this man was driven to suicide may be hard to understand, but it may just be a measure of how seriously he felt towards the professional side of his life. May he rest in peace.


Regards
Exeng

[bjcc]

Exeng

I don't know, he may have meant thats yes....

I have no idea why BA were not prosecuted, although I am struggling to think of something criminal to prosecute them for.

I don't want to go into the specifics too much about the Penta incident, mostly because I don't recall the reported details. However in general terms, the jury would have been told what the captain should have done, he would have said what he did do, and the jury would have made thier decision on that and evidence from the investigation.
He did not appeal as I recall, which tends to mean that everyone was happy that the jurys decision was made correctly. I accept that does not mean he was happy with the verdict, which he obviously was not.


There are many cases which go before a jury which are technical in nature, and provided the lawyers do thier jobs then its not nessesary to turn a bricklayer or bank manager into an expert on the subject in order to understand the issues they are deciding.

A mistake can be criminal if it is made where a reasonable person in the same circumstances would not or should not have made the same error. I can see what you mean by not moraly guilty, but the courts don't make such a distinction.

[The_Cutest_of_Borg]

I read a fairly comprehensive report of the Penta incident years ago and I don't recall a jury being involved. From memory, it was just the judge.

[peatair]

Criminal charges (including manslaughter) are possible in English law against those who conduct their activities with GROSS negligence. What amounts to that degree of negligence is, at the end of the day, a matter decided by the jury. Nevertheless, it has to be of a very very high degree. Canadian law will be very similar. Many professionals have found this out including the medical profession.

[exeng]

The vast majority of incidents/accidents have not one contributary cause but many. (Holes in the cheese lining up etc)

I do not believe that proceedings should have been brought against British Airways for their unintended contributions to this incident, however nor do I believe it was correct to single out the Captain for criminal proceedings.

Those in B.A. fleet management saw fit to approve the F/O to operate in conditions that he was not qualified for. That decision was based on commercial grounds, however I have no doubt that those who made that decision on the day felt that their decision would not erode safety standards significantly. Whether in fact that decision was a truly contributary factor I don't think we will ever now know.

In my previous post I was attempting to draw some sort of parallel between legal action against one individual and the lack of it against other individuals or the company in this case.

I'm certainly no expert on the law, but from what I know about the incident it seems to me that no individual, be it the Captain, F/O, F/E or member of fleet management was guilty of gross negligence. The fact that a Judge, Jury and appeal court found that to be the case with the Captain does not necessarily mean he was in fact guilty (just that the legal process at the time found him to be so)- I could point you to many cases in history (some quite recent) where it would appear that the legal process was flawed, and that may be also be the case here.


Regards
Exeng

[bjcc]

The_Cutest_of_Borg

He pleaded not guilty and the case was heard at Isleworth Crown Court. Yes there was a jury (as there is in all cases where there is a not guilty plea at Crown Court). He was found guilty by the jury, and sentenced by the Judge.

exeng

He was charged with, as I recall Endangering the Safety of the Aircraft.

I can see your point, however the jury who had access to all of the facts and had no axe to grind one way or the other found him guilty. There was no appeal as I recall, therefore everyone must have been satisfied that the jury understood the issues which they had to decide upon. In view of the charge they would have been looking at evidence of what HE did or did not do which led the aircraft to be placed in danger. I didn't hear that evidence, just read about it at the time, gross negligence may have been part of that, without access to the court records I don't know.


I don't know why BA were not prosecuted, there may well have been no evidence to do so on, it may be because although they were in the wrong, there was no offence as such to prosecute with. Thats doesn't help answer your question, sorry.

Sorry to be blunt about this, but there is no other way of putting it, yes he was guilty, because a jury have found him to be. There has been and wont be an appeal now, and so that finding stands. The evidence in his defence was aired at the time of the trial, the jury found against him.

I accept that there are miscarriges of justice, and it may be that this is one of them. Of course it equally may not, and unless I can find some more info about it, then I can't comment further.

[411A]

If I recall correctly, this incident was reported extensively in Flight International.
As I remember, the autopilots were engaged rather late, and as a result the aircraft did not obtain autoland track properly, as was the case with an RAF TriStar some years later.

The operating manuals for most aircraft capable of automatic approach/landing maneuvers are quite specific in the proper sequence of events to achieve the desired action, so I can well see the reason for the Crown Court's decision.

IE: fly in by the book, or pay the consequences.

[Ranger One]

I-FORD:

In this legal enviroment (Italian) it is quite normal to negate anything related to safety unless advised by a lawyer.

Well Italy is the country where prosecutors have indulged in preposterously protracted criminal cases concering deaths in motor racing - Ronnie Peterson and Ayrton Senna come to mind - if they will prosecute to that extent in cases involving an activity in which a significant element of danger is acceptable, God help any poor pilots who come to their attention!

(digression: I'll never forget the day Senna died; I was at Bruntingthorpe - we had Lightning and Vulcan doing high-speed taxiing for the public - and trying to follow the race on a tiny LCD portable TV. Couldn't see bugger all, but the shock and grief in Murray Walkers voice as they worked on Senna told me what the score was... )

R1

[peatair]

Prosecuting a COMPANY has proved to be very problematic in English law. The prosecution have to be able to show, beyond a reasonable doubt, that a "controlling mind" of the company knew of the problem which, for example, led to an accident. The "Herald of Free Enterprise" prosecution failed on this basis.

Companies have now covered their backs quite well by having a Safety Management System etc.

Much easier to "pin" the individual - consultant surgeon / anaesthetist, ship's captain, aircraft pilot in command etc. etc.

The present government appears to have put changes to the law relating to "Corporate Manslaughter" on the back burner. This is basically because they have come to realise that either H.M. Government or even individual Ministers might be liable. Wouldn't want that - now would they?

[Sunfish]

The cost of charging people with offences outside their immediate, direct and knowledgable control will simply be met by the public in the form of higher insurance costs, iIncreased compliance costs, and perhaps an increase in "unexplained" accidents.

You cannot legislate "safety" because you cannot legislate for the elimination of all risk.

[rotornut]

Question for you pilots/legal experts:

What would happen if Capt. Piche had NOT safely landed the Atlantic Glider? Say they ditched resulting in death or injuries and Piche survived. Would he be guilty of criminal negligence?

(Under s. 219 of the Criminal Code of Canada, (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, "duty" means a duty imposed by law.)

[411A]

Wouldn't think so, rotornut, because there was a technical fault(fractured fuel pipe) which was beyond his control.
In addition IIRC, the Airboos software was a bit vague (at the time) regarding this fault, so the good Captain was left high and dry....literally.

What they needed was a Flight Engineer, who kept track of the fuel ahh....slightly more closely.

A legal expert however might view this slightly differently.

[lead zeppelin]

Rotornut;

An interesting question, but one we can't answer - that's what a proper trial is for.

Sunfish;

I find your statement odd - you say you can't legislate safety, but why do we have governing bodies in all our countries issuing crew licences, operators' certificates, and auditing them all the time?

Also, you say "The cost of charging people with offences outside their immediate, direct and knowledgable control will simply be met by the public in the form of higher insurance costs,...", but insurance doesn't cover criminal acts.

[rotornut]

411A - Good point.

My feeling is that if he went for a jury trial, he would never be convicted in Canada, despite any degree of fault on his part. That's because he's a bit of a hero now in Canada in spite of the recent report.

[Sunfish]

Zep, I say that you cannot legislate safety because you can minimise, but not entirely remove, risk through legislation.

The trouble is that legislators, in their attempts to get re-elected, are sometimes tempted to try and eliminate this last unavoidable risk by blaming the pilot.

This is in the sense of "You crashed, therefore you must have done something wrong, since doing something wrong is illegal, you have committed a criminal or civil offence".

My second point is that if such a logical fallacy is enshrined in law, then pilots and airlines will compensate for this percieved risk of litigation usually through increased charges.

The classic case is Obstetricians, at least in the U.S. and Australia, who are now in short supply because of the astronomical insurance premiums they must pay.

As I understand it, part of the reason for talking about human error instead of pilot error, is to emphasize the fact that there are some types of errors that pilots (being humans?) cannot avoid.

[lead zeppelin]

Sunfish;

I see what you are trying to say, and I do agree sometimes legislators have ulterior political motives ('google' Attorney General of New York Eliot Spitzer). Unfortunately, without some legislation public interest is not served. But, there will always be risk in whatever you do - legislation is just one means to control/reduce it.

The issue here is "intent', as has been mentioned earlier in this thread. A human error occurs and there was no intent, this is an accident.

If there was an act committed where the crew knew is was dangerous, and continued with the action then this is criminal.

[bjcc]

Sunfish

While I can see what you are saying, I don't think its as simple as you crashed therefore you must have done something wrong.

As far as the UK is concerned,, then there would have to be more evidence than a 'crash for no reason' to justify a conviction. Most UK legislation would cover anyone, not just aircrew. For example Endangering the safety of an aircraft, is an offence that can be committed by any doing something, or ommitting to do something which led to an aircraft being put in danger.

The test is not one of human error, its a test related to what an avarge, or reasonable person having that qualification would or should have done.

That test would apply to every occupation or activity, aircrew are not being singled out for any underhand treatment.

[innuendo]

Rotornut, your question may yet be answered as I believe that there are lawsuits pending on behalf of some of the passengers on the AT flight. You know, compensation for the mental stress and trauma of the experience etc. (and I am not suggesting that it was not a terrifying experience for many of those on board.)
I expect that there will be a case made that the technical causes of the incident not with standing, the outcome should have been at worst, an engine out diversion and landing. In fact is this point not raised in the report from the official investigation?
Perhaps we will see how a court looks on such a claim.

[lead zeppelin]

Innuendo, the lawsuit filed by the Air Transat pax is a civil action.

Rotornut's question was whether Captain Piche would have charged with Criminal Negligence - which would be a criminal matter, not civil.

[innuendo]

Thank you Zep, shows my lack of knowledge on the differences between criminal and civil actions. Perhaps this is an unfair speculative question, but can you tell me, if the plaintiffs win a case based on a claim that the fuel starvation could have been avoided by the crew, does that then establish it as fact?
I ask this because I suspect that this argument will be made in the lawsuits.

[bjcc]

innuendo

I have to presume that Canada and the UK work to the same levels of proof in Civil and Criminal cases, if thats is so, then in a Civil claim (ie not a criminal action, but one made for compensation) the standard of proof required ins 'On the Balance of Porbability'. In a Criminal trial the standard would be beyond reasonable doubt.

So the answer is Probably.

[G SXTY]

A few years ago there was a train crash at Purley, south of London. It was caused by a driver passing a signal at danger, and resulted in the deaths of several passengers.

The signal in question was poorly sited and had a long history of being passed at danger. Management knew this, but had not taken any corrective action - such as moving it or installing a repeater signal. The driver relied only on his lookout and an ‘automatic warning system’ whose deficiencies were so well known that his own management had rejected it as being inadequate some 20 years previously. In spite of this, the driver was convicted of manslaughter and sent to prison.

Did he screw up? Yes.
Was he simply the last link in a long error chain? Absolutely.
Should he have carried the can for an inadequate signalling system? No.

If one contrasted our record of prosecuting blokes at the sharp end with the history of corporate manslaughter, one might conclude that English law is very effective at nailing individuals who make tragic mistakes, whereas their employers – who set the traps into which they fall – generally walk away scot-free. Unfair, unjust, but ‘twas ever so.

[lead zeppelin]

A good question, Innuendo. In most civil suits, a settlement is reached 'out of court' by the insurance companies, the details of which are not disclosed. I can't recall off the top of my head any civil verdicts being used as evidence in a criminal trial, but I'll poke around.......

On a tangent here, one prominent example is good old OJ Simpson. This 'circus' had so many twists it's not really relevant in my opinion, but it is one example of civil and criminal cases with different outcomes.

[lead zeppelin]

Here's the actual TSB report

http://www.tsb.gc.ca/en/reports/air/2002/A02C0124/A02C0124.asp

[eight iron special]

You Canadians! Gotta love ya........

These backwoods operations in your frozen tundra have always operated like cowboys in the wild west. It is no surprise that these careless accidents happen in Canada on a daily basis due to the lax regulatory environment, but it is surprising that this particular accident should involve the police.

Something's amiss here, chaps!

[Tan]

Yup you got that right something is really amiss here...

[STC]

However, criminal penalties for "pilot error" should not be sanctioned.

This is not a simple case of "pilot error". There enough evidence to convince the courts to proceed with the trial.

The burden on the court is to establish if the pilot knowingly operated the aircraft in a dangerous configuration.

If it is shown that he was aware of the operating regulations and knowingly operated the aircraft in spite of not conforming, he is probable guilty of negligence causing the death of one of the passengers.

He may even be liable for damage to the airplane and anything else he smashed with it.

This is not a campaign to litigate against "pilot error". Pilot error accidents are typically not the result of gross negligence or intentional rule breaking, but if they are, they litigation should be pursued.

This will make the industry safer and better. If you are a responsible pilot you really don't have to worry about it.

By the way, why don't some of you consider the family of people who are killed and injured by the negligent actions of pilots? What exactly are they supposed to do if they pilots are immune from prosecution?

[paco]

Quite agree! Of all the unforgiveable things in Aviation, running out of fuel in flight without a good excuse has got to be one of them, particularly in a helicopter.

Phil

[lead zeppelin]

Here's the link to TC's website dealing with enforcement.

http://www.tc.gc.ca/civilaviation/RegServ/Enforcement/About.htm

-----------------------------------------------------------------

Enforcement Actions

Upon completion of an investigation the RMAE will review the case to determine the appropriate deterrent action to impose if the evidence indicates that an individual has contravened a provision of the Aeronautics Act or the CARs. This decision may significantly affect the individuals attitude towards aviation safety and voluntary compliance in the future.

The RMAE will decide whether to proceed administratively or judicially. Judicial action involves the prosecution of the alleged offender in the criminal courts and is only applicable to a few of the provisions of the Aeronautics Act and the CARs. Administrative action comprises all other measures taken by the Minister pursuant to the provisions of the Aeronautics Act, and includes oral counseling, the suspension of documents and the assessment of monetary penalties.

[mattler906]

The fact remains that the pilot willfully obeyed the CARs in operating the a/c single pilot IFR without an autopilot. Furthermore, the pilot only went as far as to mentally calculate how much fuel would be required, thus violating the funamental CAR that says 'thou shalt not take off unless you have enough fuel to get to your destination, miss, get to your alternate, plus 30 minutes'.

Now if I disobey an equally fundamental highway law and kill someone while I'm speeding, I may also be charged as a criminal... so what's the diff? ;)

Cheers!