Should have asked for the option...

[Big Pistons Forever]

Is there not some CAR that says any CARs can be broken to ensure flight safety?

No. The defence of necessity is available, though. Per the Aviation Policy Enforcement Manual:

In certain cases where a contravention can be proven or is admitted, the alleged offender may be able to raise a defence based on necessity, due diligence, or officially induced error. Where the defence of necessity is established, the alleged offender cannot be found to have contravened the law because the contravention was necessary to avoid an immediate greater danger (in particular, death or injury).

Well I learned something today. Went through the CARs and can't find anything to contradict this. The only place in the CARs that specifically allows you to deviate from an atc clearance is for collision avoidance via ACAS RA or GPWS alert. Thanks photofly.

I would suggest Part 8.5 of the Aeronautics Act could be used.

Defence

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention

[photofly]

Due diligence and necessity are two different defences and apply in different circumstances.

Examples:

Open the throttle for takeoff and nothing happens: a defence of due diligence might apply.

Open the throttle for takeoff, then close it again because a ground vehicle had driven onto the runway in front of you: you could raise the defence of necessity.

There is a lot of jurisprudence about necessity and due diligence in TATC records. Pilots often claim one or the other, but it is rarely accepted because their actions don't meet the fairly tight requirements for either.

[Big Pistons Forever]

Due diligence and necessity are two different defences and apply in different circumstances.

Examples:

Open the throttle for takeoff and nothing happens: a defence of due diligence might apply.

Open the throttle for takeoff, then close it again because a ground vehicle had driven onto the runway in front of you: you could raise the defence of necessity.

There is a lot of jurisprudence about necessity and due diligence in TATC records. Pilots often claim one or the other, but it is rarely accepted because their actions don't meet the fairly tight requirements for either.

Photo

You raise a good point. This defense is far from a get out of jail free card, however the good news is there is some latitude in enforcing the CAR's providing the defendant can come up with a strong enough case.

TC enforcement policy is graduated response. Where a contravention did not great a significant hazard, the PIC took responsibility for their actions and where the likelihood of repeating the offense is low, enforcement action will generally not be taken. Assuming this event resulted in a CADOR the most likely action will be a call from the schools Transport Canada POI with some skill testing questions for the CFI.

In any case enterprises or pilots who engage TC in a co-operative, professional and polite manner will have more success than those who insist on being confrontational and rude,,,,

[photofly]

there is some latitude in enforcing the CAR's providing the defendant can come up with a strong enough case.

It's important to be aware of the difference between a statutory defence, such as necessity, and persuading TC that you don't deserve an enforcement action. If the defendant can raise an appropriate defence then TC's lattitude about whether to proceed with enforcement is relevant only to the extent of saving or causing everyone time and trouble; the outcome will be an acquittal.

In any case enterprises or pilots who engage TC in a co-operative, professional and polite manner will have more success than those who insist on being confrontational and rude,,,,

Necessity doesn't depend on being meek in the interview; it's a decision of fact at the time, not the pilot's attitude afterwards. It would apply equally to a rude and agressive pilot for whom it was their third infraction with enormous safety implications.

[Big Pistons Forever]

Photo

My only point is that I have observed that there is a subset of operators and pilots go out of their way to be antagonistic and uncooperative when dealing with TC

Personally I think this is foolish and counter productive. That being said you can absolutely push back with a reasoned and fact based argument without being a jerk.

[photofly]

I agree. You generally get further in life by being nice. But are there not some strange fish working for TC who bring their personal animosities to bear when acting on behalf of the Minister? It's one thing when an individual pilot crosses that line, but it should be intolerable to everyone when an agent of the state does it.

An enforcement action against a pilot can be a great personal burden to them; for the Minister it's all in a day's work, and I doubt his inspectors have difficulty sleeping at night.

[Big Pistons Forever]

Every large regulatory bureaucracy will have a range of personalities. Sadly there will be always be a minority who chose to be difficult and unreasonable. All I can say is that my personal experience dealing with TC over 33 years in commercial aviation a 42 years of flying, has generally been positive.

One of the challenges however is the CAR's are a very imperfect set of regulations. TC Inspectors can't change a CAR that is stupid, they are duty bound to require that it be followed which is obviously frustrating for all involved.

I will also note that again in my personal experience many of the individuals that are the most vociferous complainers about TC also seem to be the ones who have a less than stellar reputation in the industry.

[tsgarp]

Per 602.31, ACAS, TAWS, and GPWS are the only lawful reasons do deviate from a clearance, once you have accepted it. "Changing your mind" isn't included. If you change your mind, you should get a new clearance. Obviously there are times when it's correct to break the regulations, as this student did.

I don't remember the exact CAR and I don't have the energy to look it up, but there is one that says you can do whatever you need to in the interests of safety. If you think it's safer to turn the touch and go into a full stop on touch down then just do it. Aviate, navigate, communicate.

[photofly]

I don't remember the exact CAR and I don't have the energy to look it up, but there is one that says you can do whatever you need to in the interests of safety.

Hopefully you can summon the energy some time? I can't find one, but it's easy to overlook something. An actual regulation number would be more persuasive than just "there is one".

[ahramin]

Per 602.31, ACAS, TAWS, and GPWS are the only lawful reasons do deviate from a clearance, once you have accepted it. "Changing your mind" isn't included. If you change your mind, you should get a new clearance. Obviously there are times when it's correct to break the regulations, as this student did.

I don't remember the exact CAR and I don't have the energy to look it up, but there is one that says you can do whatever you need to in the interests of safety.

I did summon the energy and couldn't find it. Until you can find it I think we will have to assume you are wrong and it no longer exists.

[Scuderia]

Per 602.31, ACAS, TAWS, and GPWS are the only lawful reasons do deviate from a clearance, once you have accepted it. "Changing your mind" isn't included. If you change your mind, you should get a new clearance. Obviously there are times when it's correct to break the regulations, as this student did.

I did not know this until now, very interesting.

I don't remember the exact CAR and I don't have the energy to look it up, but there is one that says you can do whatever you need to in the interests of safety.

Something to this effect is found in many ground schools but like others I haven't found a CAR that strictly spells it out.

Perhaps a reverse argument from 602.01.1 No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

Note that the FAA includes an emergency as a lawful reason in their 602.31 equivalent: 14 CFR § 91.123.

[RedAndWhiteBaron]

I agree. You generally get further in life by being nice. But are there not some strange fish working for TC who bring their personal animosities to bear when acting on behalf of the Minister? It's one thing when an individual pilot crosses that line, but it should be intolerable to everyone when an agent of the state does it.

I've held this opinion of agents of the state for years - that an individual's attitude, or an agent's feelings, should have no bearing on the actions of the agent. I've never seen it put so eloquently. I'm going to save this one. But I digress.

Yes, I would say 602.01.1 would describe an emergency insofar as it relates to a defensible reason to deviate from ATC instructions. Section 6.1 of TCAIM also lists "an emergency that necessitates immediate action" as an exception but doesn't cite its source on that tidbit.

my license be damned.

You're a student pilot: you don't have one. But if you're the PIC of the aircraft then you're still liable to be fined or prosecuted and/or have your permit suspended for a violation.

It was more the sentiment - but actually, you're not quite right. I hold a GPL, although it is not what provides me student pilot privileges in my case. So I'm not sure how an enforcement action would affect me.

[photofly]

An enforcement action wouldn’t affect you any differently to anyone else, I don’t think; you’re PIC and can be given an administrative penalty, or for repeat offences, have your Student Pilot Permit suspended. I suspect that happens very rarely though. I doubt your GPL is at risk as you weren’t using its privileges at the time of your violation.

602.01.1 says what you mustn’t do. There no way to turn that into a argument about what you should do, or to use it as a shield to protect you from a different violation.

[Scuderia]

602.01.1 says what you mustn’t do.

Yes, exactly. I mustn't continue on this accepted clearance; to do so will endanger... etc.

There no way to turn that into a argument about what you should do, or to use it as a shield to protect you from a different violation.

(Quoted remainder for context.)

[RedAndWhiteBaron]

602.01.1 says what you mustn’t do.

Yes, exactly. I mustn't continue on this accepted clearance; to do so will endanger... etc.

There no way to turn that into a argument about what you should do, or to use it as a shield to protect you from a different violation.

(Quoted remainder for context.)

Agreed - unless there is a court opinion somewhere that lays down an interpretation of that section that says otherwise, it is perfectly within the letter of that regulation to argue that continuing would be reckless, given the weather and my lack of experience -- therefore, I mustn't do it. 602.01.1 requires me to disregard 602.31 if I believe following it would be reckless.

Oh but wait... perhaps the reckless action was accepting a touch and go clearance in those conditions with my experience in the first place. But I would still argue that the landing provided new evidence that required a re-evalutaion, and subsequent rejected takeoff.

[Schooner69A]

You CAN deviate from an accepted clearance, but you must communicate the reason...

Cleared for take-off: "XYZ is aborting take-off; engine problems". Or, "Nose wheel shimmy". Or, "No airspeed indication". Or...

Cleared for landing: "XYZ is going around; unstable". Or "split flap". Or, simply: "Going around".

YOU are the PIC; you are flying the airplane, not someone on the ground. However, be prepared to defend your reasons.

ATC is there to help, not to hinder; when they are in the loop, they are extremely helpful.

In IFR flight, it gets a bit more sticky; if you deviate from an accepted clearance, you better have a damn good reason... (Busting an IFR altitude while looking for VFR traffic isn't one of them...)

[Scuderia]

RedAndWhiteBaron,

Did I miss somewhere in this thread where you described what actually went wrong? You said "This'll be a full stop for FABC" then what was ATC's response? Was there a lengthy delay in communication? Did you occupy the runway for a long time figuring out where to taxi off?

This was a violation insofar as doing a California stop to get out of the way of a firetruck is. No sweat.

You might have caused ATC some grief, but so what? You took a safe course of action, you did your job. They control the safe flow of traffic, they'll do their job. Aviation is not a perfect, pre-orchestrated choreography. Things change and flight crews and ATC alike are trained to adjust for those changes. What we owe to each other is clear communication because, like Schooner69A said, this works best when they're in the loop. Now if ATC is upset that you didn't say the best thing possible at the best possible time, try not to worry about it. Think of it like you said the second best thing at the second best time.

You are learning not only physical flying skills but decision making skills. Don't start thinking you shouldn't have accepted the T&G clearance - hindsight is 20/20 as they say. You made the right decision on the runway. Looking to the future, I suspect you may have already figured out what you will be changing about your radio work.

Don't worry about being the subject a CADOR. It is simply a report of an occurrence with no prejudice. One is often generated when there is an operational impact or potential for one, but that's not of your concern at all. You do you and if TC calls a simple explanation will be the end of it.

[digits_]

And if they do call and tell you that's the end of it, make sure you get the contact info of the inspector you are talking to, or even better, record the conversation if you can.

[photofly]

Nope, you can't deviate from an accepted clearance. The rules are very clear.

it is perfectly within the letter of that regulation to argue that continuing would be reckless, given the weather and my lack of experience -- therefore, I mustn't do it.

Breaking the CARs are offences of strict liability. The only defences that you can successfully raise are those given by the SCC in La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers. Somehow, necessity got added too, and I need to research where that one comes from. You won't get it past any kind of tribunal or court if you try to invent a new one.

But the good news is that in your situation, you don't need to. If it would be reckless to continue then necessity applies, and there's no need to try to invent some argument that mentions 601.01.1.

[RedAndWhiteBaron]

RedAndWhiteBaron,

Did I miss somewhere in this thread where you described what actually went wrong? You said "This'll be a full stop for FABC" then what was ATC's response?

They were very obviously irritated. Other than that, just the regular "FABC, exit foxtrot, monitor ground 123.4"

Was there a lengthy delay in communication? Did you occupy the runway for a long time figuring out where to taxi off?

This was a violation insofar as doing a California stop to get out of the way of a firetruck is. No sweat.

You might have caused ATC some grief, but so what? You took a safe course of action, you did your job. They control the safe flow of traffic, they'll do their job. Aviation is not a perfect, pre-orchestrated choreography. Things change and flight crews and ATC alike are trained to adjust for those changes. What we owe to each other is clear communication because, like Schooner69A said, this works best when they're in the loop. Now if ATC is upset that you didn't say the best thing possible at the best possible time, try not to worry about it. Think of it like you said the second best thing and the second best time.

You are learning not only physical flying skills but decision making skills. Don't start thinking you shouldn't have accepted the T&G clearance - hindsight is 20/20 as they say. You made the right decision on the runway. Looking to the future, I suspect you may have already figured out what you will be changing about your radio work.

Don't worry about being the subject a CADOR. It is simply a report of an occurrence with no prejudice. One is often generated when there is an operational impact or potential for one, but that's not of your concern at all. You do you and if TC calls a simple explanation will be the end of it.

Nah I don't think you missed anything. I'm not at all worried about getting violated for this because I know I have a perfectly valid defense. I mostly thought it would be a good conversation starter - it would appear I wasn't entirely wrong there. That, and there's things to learn from it, and learning is better accomplished when you have other minds to bounce your thoughts off of. The Internet happens to be great for that purpose.

As for what actually went wrong, I did somewhere come to the conclusion that my original mistake was twofold - 1)allowing the flight to continue to the point where a rejected takeoff became necessary, and 2)I missed the fact that the winds were veering and increasing drastically and so was unprepared.

California stop

Is that what I call a Newfie stop?

[photofly]

Summary of the defence of necessity in Canadian Law:
https://en.wikipedia.org/wiki/Necessity_in_Canadian_law

[A346Dude]

If the controller was annoyed, that suggests to me he thought you intended to do a full stop the whole time. It is not uncommon that a pilot is cleared to land then does a touch and go (or vice-versa), without ever communicating that was their intent. I suspect it was not apparent to the controller that your landing was due to the conditions and your assessment it was unsafe to continue.

In the future, "student pilot" or "the winds are a bit sketchy" ends a lot of issues. No controller wants a student in the air in conditions that are beyond their abilities.

[ATC_Anstey]

I don't have enough knowledge of what the normal TZ circuit traffic is like, but had this happened to me at my tower I would not be the least bit upset at you. In fact the circuit is usually busy enough here that I suspect any controller would be more happy that there's 1 less aircraft in the circuit than they would be about potentially about having to tell the aircraft behind you to go around because you had to exit the runway. The only situation where this would cause me any particular grief is if I had an IFR aircraft behind you, particularly something way faster like a jet. In which case if I had to pull them because it took you too long to get off the runway after making a full stop I screwed up more than you did leaving too little space behind you and failing to protect for the potential of an IFR overshoot had you done the touch and go. Like I said I have no idea what the staff at TZ are like so perhaps it does but this would never get written up at my tower. The last thing we want is a student in over their head in windy conditions in an already busy circuit.

Like someone else said I would hazard a guess that having to deal with the flight check put whoever was working in a bad mood and that likely caused them to sound like they were upset at you.

[boogs82]

Compliance with Air Traffic Control Instructions and Clearances
602.31 (1) Subject to subsection (3), the pilot-in command of an aircraft shall

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command...

...(3) The pilot-in-command of an aircraft may deviate from an air traffic control clearance or an air traffic control instruction to the extent necessary to carry out a collision avoidance manoeuvre, if the manoeuvre is carried out

(a) in accordance with a resolution advisory generated by an ACAS; or

(b) in response to an alert from a TAWS or a Ground Proximity Warning System (GPWS).

(4) The pilot-in-command of an aircraft shall

(a) as soon as possible after initiating the collision avoidance manoeuvre referred to in subsection (3), inform the appropriate air traffic control unit of the deviation; and

(b) immediately after completing the collision avoidance manoeuvre referred to in subsection (3), comply with the last air traffic control clearance received and accepted by, or the last air traffic control instruction received and acknowledged by, the pilot-in-command.

Regardless of all of the discussion, deviation is permissible when necessary to avoid collision. It does not specify what type of collision the pilot is trying to avoid. Just to avoid the collision. If the pilot in this case has determined that the flight conditions have created a hazard that would make it difficult to avoid a collision then the pilot is covered.

Pushing your own limits is a good thing in order to improve. Recognizing when to push those limits is a key to survival.

[digits_]

Compliance with Air Traffic Control Instructions and Clearances
602.31 (1) Subject to subsection (3), the pilot-in command of an aircraft shall

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command...

...(3) The pilot-in-command of an aircraft may deviate from an air traffic control clearance or an air traffic control instruction to the extent necessary to carry out a collision avoidance manoeuvre, if the manoeuvre is carried out

(a) in accordance with a resolution advisory generated by an ACAS; or

(b) in response to an alert from a TAWS or a Ground Proximity Warning System (GPWS).

(4) The pilot-in-command of an aircraft shall

(a) as soon as possible after initiating the collision avoidance manoeuvre referred to in subsection (3), inform the appropriate air traffic control unit of the deviation; and

(b) immediately after completing the collision avoidance manoeuvre referred to in subsection (3), comply with the last air traffic control clearance received and accepted by, or the last air traffic control instruction received and acknowledged by, the pilot-in-command.

Regardless of all of the discussion, deviation is permissible when necessary to avoid collision. It does not specify what type of collision the pilot is trying to avoid. Just to avoid the collision. If the pilot in this case has determined that the flight conditions have created a hazard that would make it difficult to avoid a collision then the pilot is covered.

But, as you quoted, technically only if:

(a) in accordance with a resolution advisory generated by an ACAS; or

(b) in response to an alert from a TAWS or a Ground Proximity Warning System (GPWS).

If you see traffic coming right at you, without a TCAS-like warning, you can't legally deviate.

Which is weird and silly, and I hope everybody would break that rule, but very interesting nonetheless.