In 2010 Transport Canada's Civil Aviation Daily Occurrence Reporting System recorded 209 incidents in which ground-based lasers were pointed at aircraft, thereby disrupting flight. Many of these incidents affected commercial and air ambulance operations. This figure is an 88% increase on the 2009 reports, and there has been a exponential increase in reports of this behaviour since 2005 (when only three incidents were recorded). Some may argue that the courts have been unduly lenient towards offenders - and this trend continues, as evidenced in a recent Alberta decision.(1)
One evening in Edmonton in August 2009, Alvin Vargus Bautista sat in his car in the parking area of an apartment complex, waiting for his wife who was assisting a friend. To pass the time, he began "testing" a malfunctioning laser pointer that he had stored in his glove compartment. It is common ground that Bautista had been explicitly warned that the laser could pose a serious hazard to a person's eyes and the safety of aircraft in flight.
Feeling crowded in the car, Bautista decided to continue with the testing outside. Before exiting his car, he removed the tip of the device, which was designed to cause a dispersion of the light from the laser, resulting in the laser being able to emit a stronger beam. After initially testing the laser on some trees, he decided to continue the experiment by pointing it straight up into the sky, but only after he had checked for aircraft. After a short while, he heard a helicopter coming and discontinued all further testing.
Around this time, Constables Chaulk and Bohochyk of the Edmonton police force were in flight in a police helicopter not far away. Chaulk, the pilot, was struck in the eyes with the green light from the laser several times, causing him to lose sight of his instruments and the horizon. The flight officer took control of the helicopter and flew in the direction of the light source using his peripheral vision.
Baustista was apprehended, charged and ultimately convicted under Section 601.20 of the Canadian Aviation Regulations, which prohibits a person from "projecting… a directed bright light source into navigable airspace in such a manner as to create a hazard to aviation safety". This is a strict liability offence, meaning that the prosecutor need not prove that the offender intended to create the hazard, but only that the hazard was created.
The court considered a number of factors in determining the sentence, in accordance with the usual Canadian jurisprudence on sentencing. The court also examined previous cases in which offenders were found to have pointed laser beams at aircraft. One such case was R v Mackow (2008 ABPC 204), in which the accused intentionally struck a commercial aircraft and a helicopter and, as a result, was fined C$1,000. Bautista's counsel characterised this sentence as a "starting point" in the matter at hand.
Also referred to were the unreported cases of R v Pelaez, in which the accused pleaded guilty to the same charge and was fined C$1,000, and R v Cote, in which the accused was found to have intentionally pointed the beam at an aircraft and received a suspended sentence with probation.
In sentencing Bautista, the court noted that the incident was "not as serious as made out by [the prosecutor]". The sentencing judge noted that the pilot did not lose control of the aircraft, but was merely "momentarily blinded from viewing his instruments", and added that the pilot recognised the light as being from a laser and was familiar with the dangers of lights from lasers.
The judge also commented that he was not satisfied, from the records submitted by the prosecutor, that a prevalence of "unintended interference [with aircraft] by the use of lasers" was demonstrated. In Bautista's favour, the judge found, among other things, that:
- he possessed no prior criminal record;
- he had "a momentary loss of common sense" (even though he had been specifically warned about the dangers of laser pointers);
- he was remorseful, in that he had apologised; and
- he had given the laser to the officer voluntarily.
The sentencing judge rejected the defence argument that the offence was committed "unknowingly"; rather, he held that "the offender failed to recognise the dangerous nature of… the laser and he did not proceed with a high degree of caution".
Bautista was fined C$500 and his laser was forfeited.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).