Unmanned aerial vehicles (UAVs), more popularly known as drones, are power-driven aircraft that are designed to fly without a human operator onboard.
UAVs are increasingly being used in Canada for civil and commercial applications, such as aerial inspection, monitoring, mapping and surveying, communications and broadcasting, remote photography and filmmaking, and logistics. A diverse range of industries and sectors stand to benefit from the technology, including retail, energy, utilities, mining, agriculture, construction, telecommunications, shipping, environmental protection and emergency response. UAVs are popular because they can be rapidly deployed, particularly in difficult to access or unsafe environments, and have relatively low capital and operating costs.
Canada has, to date, adopted a relatively permissive approach to regulating UAVs that aims to strike a balance between promoting the commercial use of the technology and ensuring safety. Transport Canada, which is the government department responsible for regulating the use of UAVs, has established a regulatory regime premised on certification, but with various exemptions for recreational users and commercial operators flying small UAVs. However, the rapid rise in drone popularity (including both public recreational use and commercial use) has been accompanied by an increasing number of incidents related to reckless and negligent UAV use. Indeed, since 2010, Transport Canada has launched more than 50 investigations into incidents involving UAVs.
In response, Transport Canada announced in 2015 that it intended to introduce new drone regulations for drones that weigh 25 kilograms (55 pounds) or less and are operated “within the visual line of sight.” Transport Canada also issued a Notice of Proposed Amendment to its regulations, and throughout the summer of 2015, it engaged in an extensive consultation process with numerous stakeholders. The Department is now in the final stages of developing the proposed regulations that are expected to be made available to the public for formal comment in the Canada Gazette, Part I, in the spring of 2017.
1. Current Regulatory Framework
(a) Special Flight Operations Certificate
Under Canadian law, any person operating a UAV within Canadian domestic airspace must apply for and obtain a Special Flight Operations Certificate (SFOC) from Transport Canada unless the UAV is exempt from this requirement. An SFOC will specify the type of flight operation authorized and impose certain mandatory operating and flight safety conditions on the applicant. It may also impose additional optional conditions due to the nature and complexity of the operation(s), mission requirements, operating environment, aircraft performance capabilities and payload.
Penalties may be assessed in the amount of CA$5,000 for individuals and CA$25,000 for corporations for failure to obtain an SFOC.
(b) Exemptions from certification
(i) Recreational UAVs
UAVs with a maximum take-off weight of less than 35 kilograms (77 pounds) that are used for recreational purposes / personal enjoyment are considered model aircraft under Canadian law and are exempt from the requirement to obtain an SFOC. Exempt model aircraft must nevertheless operate pursuant to general flight safety standards established by Transport Canada.
(ii) Commercial / research UAVs
UAVs used for non-recreational purposes (i.e., commercial, flight training, inspection, academia / research, etc.) are eligible for an exemption from the requirement to obtain an SFOC. There are two classes of exemptions for non-recreational UAVs. The first exemption applies to Very Small UAVs with a maximum take-off weight of less than 2 kilograms (4.4 pounds) (the Exemption for Very Small UAVs). The second exemption applies to Small UAVs with a maximum take-off weight between 2 kilograms and 25 kilograms (55 pounds), and with a maximum calibrated airspeed of 87 knots (161 kilometres per hour) (the Exemption for Small UAVs).
The Exemption for Very Small UAVs and the Exemption for Small UAVs apply only if UAV operations are conducted in compliance with the terms and conditions of the respective exemption, which include general operating conditions, specific flight safety standards, pilot training conditions, UAV systems conditions and reporting conditions.
Importantly, a person operating under each exemption must be a minimum of 18 years of age (or at least 16 years of age if conducting research under the supervision of an academic institution), and must have liability insurance coverage for the operation of the UAV of at least CA$100,000.
(c) Flight safety standards
All UAVs are required to meet flight safety standards established by Transport Canada. These standards will be different for UAVs operating pursuant to an SFOC and for UAVs operating under one of the prescribed exemptions. By way of example, the following flight safety standards apply to commercial UAVs operating under an exemption:
- Operate within visual line-of-sight;
- Fly only during daylight and in good weather;
- Avoid restricted and controlled airspace;
- Operate only in Class G airspace;
- Operate at or below 91 metres (300 feet) above ground level;
- Operate at least nine kilometres (5.6 miles) away from the center of any aerodrome;
- Operate at least nine kilometres away from a built-up area;
- Operate at a lateral distance of at least 152 metres (500 feet) from any building, structure, vehicle, vessel animal or person, unless it is the subject of the aerial work (30 metres (100 feet) for Very Small UAVs);
- Operate at a lateral distance of at least 152 metres from the general public (30 metres feet for Very Small UAVs);
- Do not operate in a reckless or negligent manner so as to endanger or be likely to endanger the life or property of any person;
- Do not operate with any dangerous goods (e.g. explosives) or lasers on the aircraft; and
- Establish and adhere to an emergency contingency plan.
Additionally, all UAVs are required to refrain from flying in areas popularly referred to as “no drone zones,” unless specific permission is obtained from Transport Canada. These zones include:
- Aerodromes (airports, heliports and sea plane bases) – all drone operators must refrain from flying within nine kilometres from aerodromes;
- National parks – drones may not be operated in national parks unless specifically authorized by a Field Unit Superintendent. Drone users should contact Parks Canada for additional information;
- Outside Canada – cross-border drone regulation is not the same and no cross-border flight of drones is permitted;
- Restricted or controlled airspace (near or over military bases, prisons, and forest fires);
- Other – it is generally good practice to refrain from flying drones over populated areas, moving vehicles, highways and busy roads.
For more information, drone operators are advised to consult Transport Canada’s Do’s and don’ts for flying your drone. Operating a UAV in a dangerous or unsafe manner may attract regulatory penalties and/or be punishable by monetary penalties and/or jail time under the Criminal Code of Canada.
2. Current issues in drone operations
(a) Beyond Visual Line-of-Sight
An important issue for commercial UAV operations is whether UAVs can fly beyond an operator’s visual line-of-sight. In Canada, the general rule is that UAVs can only be operated within visual line-of-sight, which means continuous unaided visual contact with the UAV sufficient to be able to maintain operational control of the UAV, know its location, and be able to scan the airspace to see and avoid other air traffic or objects.
However, a UAV operator may apply for an SFOC permitting operations beyond visual line-of-sight (BVLOS). Among other things, the operator must be able to demonstrate that the UAV employs an acceptable sense and avoid system that provides traffic separation and collision avoidance. This requirement may be relaxed for BVLOS operations in restricted airspace.
(b) Privacy concerns
UAVs with imaging / camera payloads have raised privacy concerns among the general public. While all UAV operators, including individuals, must respect the privacy of others, private organizations that use UAVs for commercial purposes are governed by the federal and provincial privacy legislation including the Personal Information Protection Electronic Documents Act (PIPEDA). Under PIPEDA, organizations must obtain consent for the collection and use of personal information, which likely includes images and videos of identifiable individuals captured by commercial UAVs. UAV operators should also be aware of Canadian Criminal Code prohibitions related to covert video surveillance, voyeurism and interception of private communications. Thus far, the Office of the Privacy Commissioner has not yet set out specific privacy rules for UAV operators.
(c) Municipal regulation
Given the privacy and safety concerns associated with UAVs, municipalities are starting to set their sights on regulating the recreational use of drones in public areas. Richmond, BC has passed a bylaw banning the flying of UAVs in city parks and on school grounds. Toronto City Council is considering a strategy to govern the use of UAVs over Toronto's outdoor spaces. However, it is unclear whether municipalities have jurisdiction to regulate the use of UAVs, which are aeronautics and fall under the jurisdiction of Canada's Federal Government.
3. Future regulation
In 2017, Transport Canada intends to update the regulatory regime regarding UAV operations in Canada. Specifically, it has indicated that it will revise and streamline the regulatory requirements for all UAVs, regardless of purpose, with a maximum take-off weight of under 25 kilograms that are operated within visual line-of-sight, while preserving the SFOC process primarily for UAVs larger than 25 kilograms and those operated as BVLOS.
According to Transport Canada, the aim of the new rules is to regulate UAV operations based on the level of risk involved. UAV operations that could cause limited damage to people, property or other aircraft would be subject to lesser regulation, whereas more complex and heavier UAV operations that could cause a greater amount of damage to people, property or other aircraft would see additional restrictions to mitigate the greater risks associated with these operations. Some of the amendments proposed by Transport Canada are as follows:
- The creation of two main categories for UAVs weighing 25 kilograms or less: (1) “complex operations with small UAVs” – operations in and around urban or built-up areas and operations close to aerodromes; and (2) “limited operations with small UAVs” – lower risk operations limited to remote areas. A third category with a lower threshold, “operations with very small UAVs”, is being considered, and such a category would be based on weight or on an alternative approach such as kinetic energy.
- All UAV operators will be considered as “pilots” as defined under the Aeronautics Act and the Canadian Aviation Regulations and operators falling into the “complex operations” category will be required to obtain a “pilot permit”.
- UAVs in both the “limited” and “complex” operations categories will be required to be marked with a series of four-letter registration marks and registered in accordance with the requirements for aircraft registration in the Canadian Aviation Regulations.
A formal comment period will open after the release of the draft regulations in the Canada Gazette, Part I, in the spring of 2017. Further updates to this article will be provided as more information becomes available on the new regulations.