Whether used to view real estate, monitor remote industrial operations, deliver goods, shoot scenes in the tv and film industry or assist with search and rescue, Canada’s flexible regulations and its focus on enabling drone operations have made it a leader in the nascent drone industry. This is only logical: in Canada’s remote and challenging terrain, the commercial use of drones makes a lot of sense. It may also be easier to integrate drones into our relatively uncrowded airspace. Other jurisdictions are working to catch up: for instance, on March 29 of this year, the Hong Kong Privacy Commissioner for Personal Data published a guidance note that supplements previous guidance on the use of closed circuit television systems and for the first time addressed the use drones.
Wherever located, all drone-using businesses face the challenge of navigating increasing safety and privacy concerns. Companies considering drone operations in Canada need to be aware of the rules.
Regulating by weight
In Canada, drone safety is often addressed by regulations specifying where drones may be flown. Most jurisdictions distinguish between drones flown for commercial purposes and those flown for recreational purposes, provided the drone is below a particular weight. In the U.S., that weight is 55 lbs, or just under 25 kgs. In Hong Kong, that weight is a much lower 7 kgs.
In Canada, drones under 35 kgs are classified as “model aircraft”, as long as they are flown recreationally. They must be flown in accordance with Transport Canada’s guidelines—for instance, they cannot be flown within 5 nautical miles of an aerodrome—but they are otherwise largely unregulated.
Drones that are flown for commercial purposes or that exceed 35 kgs, however, are “unmanned air vehicles” or “UAVs”. Up until November 2014, all UAVs could only be flown in accordance with a “special flight operations certificate” (SFOC). As of November 2014, however, blanket exemptions apply to UAVs weighing less than 25 kgs, provided certain rules are followed.
Flexible permits in Canada
For now, SFOCs offer regulators a flexible response to the rapidly-evolving drone industry. And they are popular. In 2014, 1,672 SFOCs were issued, up from 945 in 2013, and 347 in 2012. With an SFOC, Transport Canada can design rules that make sense for particular UAV pilots and for particular UAV flights. This is a major advantage over jurisdictions like the U.S., for instance, which until recently required drone operators to hold full-fledged private pilot licenses. In Canada, drone pilots are currently only required to have a “satisfactory level of knowledge, experience and skill”, although it is likely that UAV pilot permits will eventually be required.
Technology-neutral privacy laws
Addressing privacy concerns may be as simple as ensuring that existing laws encompass drones. This is the approach taken by Hong Kong in its recent guidelines.. Similarly, Canada’s Privacy Commissioner has opined that Canada’s existing privacy laws apply to drones. While “lateral surveillance”—private citizens surveilling other private citizens—is often not covered by privacy statutes, torts such as intrusion upon seclusion may fill that gap.
Even if existing laws apply, however, drones present a unique challenge for enforcement. Catching the drone—and its operator—is not always simple, as French authorities discovered when tracking drones in Paris. In fact, many police forces in Canada use drones themselves – which raises the spectre of police drones being used to track and chase scofflaw civilian drones and their operators.
Hong Kong’s new guidelines suggest using flashing lights or other methods to inform observers that the drone is recording video, much like the requirement in Japan and South Korea that all cell phone cameras emit a “shutter” sound when taking a photo. Similar suggestions have been made in the U.S., but so far have not been widely championed.
Flying beyond visual line-of-sight
Sending drones beyond the visual range of the pilot is key to the commercial use of drones. The point, after all, is to send drones to locations inaccessible by people. Such operations crystallize safety and privacy concerns, however—think of the mystery drone seen peering into apartments in Vancouver—and as a consequence, most regulators will not permit drone operations beyond visual line-of-sight. Even the recent U.S. draft drone regulations, published in February 2015, would restrict operations to visual line-of-sight.
Canada has taken a different approach. SFOCs may be issued for drone operations beyond visual line-of-sight, provided the drone has a “sense and avoid” system; the operations will be conducted entirely within restricted airspace; or the applicant has implemented some other method of mitigating collision risks. Looking to the future, Transport Canada’s Unmanned Air Vehicle Working Group is currently exploring regulations for drone operations beyond visual line-of-sight. We—and the drones—will be watching with interest.