Pilot found guilty of criminal negligence

Wilbur · Post by **Wilbur** » Wed Nov 07, 2007 10:42 am

Of all criminal charges, criminal negligence is probably the most difficult to prove in court. For any criminal charge there are two elements that must be shown; intent and action. For most crimes these are established by fairly straightforward, objective, analysis of the facts.

But for crim neg, the crown has to prove that your standard of performance was "markedly below the norm" in order to establish you had a "wanton disregard." This makes analysis of the facts much more subjective as a judge compares what the accused did against the mythical "reasonable person." What constitutes "markedly below the norm" performance?

In on example, a drunk driver ran a red light because he was fiddling with his CD player instead of paying attention and killed someone in the ensuing collision. He was not convicted of crim neg because what he did was not "markedly" below the norm. It isn't that unusual for people to run a red light because they aren't paying attention, nor is it that unusual for people to drive after drinking. He didn't intend to run the red light after making some sort of risk determination. Therefore, his intent to be reckless could not be sufficiently established. He was, however, convicted of dangerous driving causing death.

In the case of this pilot, some of his decisions were in violation of regs, but in themselves probably not markedly below the norm. For example, flying without the autopilot. But when you look at all of his decisions combined, what reasonable person would behave in this manner? How normal is it for pilots to do ALL, or most of the things he did on this single flight. No autopilot, much less than legal fuel, much less fuel than even a "corner cutter" pilot would probably have, over flying multiple fuel stops after knowing he might not make it, not declaring a fuel emergency after knowing he might not make it, planning a high steep approach because he knew he might well flame out and have to glide in. It's hard to imagine what else he could have done to stack the odds against himself, or behave more recklessly. I suppose he could have thrown some ballast on board to make sure he really got the weight up there too.

If there are many out there who see his conduct as "within the norm" or close to it, maybe the police need to be involved in one hell of a lot more aircraft accident investigations.

the_professor · Post by **the_professor** » Wed Nov 07, 2007 12:15 pm

Driving Rain wrote:the_proffessor wrote

If I was Moore, I'd have taken the $350k and used it to hire a hitman for Bertuzzi, who is a no-mind waste of skin.

Great advice from an anonymous internet poster.

Ok, so now you're comparing a quip about a reckless hockey player vs. the use of your personal definition of criminal negligence and why Tayfel was therefore not negligent?

On sale in time for Christmas: "Legal Terms And Definitions, as written by Driving Rain."

Give me a break.

Flybabe · Post by **Flybabe** » Wed Nov 07, 2007 12:21 pm

Very interesting discussion considering the outcome of the case.

There are still operators that belittle a PIC's decision to make fuel stops.

justplanecrazy · Post by **justplanecrazy** » Wed Nov 07, 2007 3:11 pm

Wilbur wrote:In on example, a drunk driver ran a red light because he was fiddling with his CD player instead of paying attention and killed someone in the ensuing collision. He was not convicted of crim neg because what he did was not "markedly" below the norm. It isn't that unusual for people to run a red light because they aren't paying attention, nor is it that unusual for people to drive after drinking. He didn't intend to run the red light after making some sort of risk determination. Therefore, his intent to be reckless could not be sufficiently established. He was, however, convicted of dangerous driving causing death.

Wilbur, what was the sentence he received? Has the pilot been convicted of crim neg or is he just charged? When can we expect a sentencing?

Driving Rain · Post by **Driving Rain** » Wed Nov 07, 2007 3:21 pm

justplanecrazy wrote:
Wilbur, what was the sentence he received? Has the pilot been convicted of crim neg or is he just charged? When can we expect a sentencing?

http://www.cbc.ca/canada/manitoba/story ... crash.html

Pilot convicted of criminal negligence in fatal Winnipeg crash
Showed reckless disregard for others, judge concludes in rare ruling
Last Updated: Friday, November 2, 2007
Citing reckless behaviour, a Manitoba court has convicted a pilot of criminal negligence after he crash-landed his plane on a high-traffic Winnipeg intersection in 2002, killing one man and hurting several others.

The plane crash-landed on a busy Winnipeg intersection on June 11, 2002. Few commercial pilots have been convicted of criminal responsibility in air crashes.

Calgary-based commercial pilot Mark Tayfel was found guilty on Thursday of four counts of criminal negligence causing bodily harm, one count of criminal negligence causing death and dangerous operation of an aircraft.

In handing down her verdict, Justice Holly Beard rejected Tayfel's argument that it was simply an honest mistake that led to the fatal crash five years ago.

Balfour Derr, Tayfel's lawyer, told CBC News his client was hoping for an acquittal, describing the situation as an "accident."

"I know that he was very disappointed and obviously now very concerned as to what the next step might be," Balfour said Friday afternoon.

"He took it with a stiff upper lip, but I know that he's deeply affected by it."

Derr said he did not think his client deserved a jail sentence. A date for the sentencing has not been set.
Tayfel, 42, had been flying six American fishermen from a remote Manitoba fishing lodge on June 11, 2002, when his twin-engine plane ran out of fuel. Both engines cut out shortly after he missed the runway on his first attempt to land at Winnipeg's airport, and the plane eventually came to a rest in the middle of McPhillips Street and Logan Avenue, a busy downtown Winnipeg intersection.

Passenger Chester Jones, 79, died from his injuries in hospital several weeks after the crash.

Jones's grandson, Blake Floodman, was 16 when he was returning with his grandfather from the same fishing trip. In court, Floodman, 21, recounted the flight from Gunisao Lake to Winnipeg.

"I thought I was going to die — as simple as that. I didn't know anyone that had survived a plane crash, so I didn't think I was going to," he testified in April. "Then I looked up to the fuel gauge itself and they both read empty."

Counter to Tayfel's claims that he should not have been held responsible for what happened, Beard concluded he made too many misjudgments and showed a reckless disregard for the lives of others.

He miscalculated the amount of fuel needed given the weather conditions and also decided to press on with the flight despite being aware of the possibility that the Piper Navajo aircraft was not equipped with a mandatory auto-pilot system, she ruled.

Family pleased with decision
Sheila Floodman-McAllister, Chester Jones's daughter, said Friday she's satisfied with the conviction.

"I'm pleased by the decision, and significantly impressed … by the amount of work and the well-thought-out decision that the judge made in this case," she told CBC News.

"I've been an attorney engaging in trial work for 28 years and one of the great frustrations in the role is that it often seems that the obvious can get lost in the murkiness of the law," she said. "In this case, it has always seemed very obvious what happened … and after 5½ years, sometimes you begin to think the obvious somehow doesn't seem to matter, that the ability to confuse and obfuscate prevails.

"But in this situation, after and despite that length of time, it appears that perhaps it didn't, so that's a rewarding feeling."

Still, she found it difficult to say if the conviction brought a conclusion to the case for her family. Her brother and one of her sons were among the five other passengers injured on the ill-fated flight.

"You hear people talk about these kinds of experiences, and they talk about closure. But the reality is that it's a component of closure. There really never is closure, because the whole thing was unnecessary."

Rare ruling believed 1st in Canada
Thursday's ruling was rare, as few commercial pilots have been convicted of criminal responsibility in air crashes. It's believed to be one of the first cases of its kind in Canada and will likely have huge implications for pilots who work for small charter services.

Aviation experts testified during the trial that had the plane been equipped with auto-pilot, Tayfel would have probably been able to land the plane safely on his first try.

The defence argued that the flight operator, Keystone Air, should take the blame because Tayfel's bosses pressured him to go ahead with the flight as scheduled. During cross-examination, though, Tayfel admitted he did not push the issue of the auto-pilot system any further with the chief pilot.

CID · Post by **CID** » Wed Nov 07, 2007 4:13 pm

Aviation experts testified during the trial that had the plane been equipped with auto-pilot, Tayfel would have probably been able to land the plane safely on his first try.

I question that. Of course I wasn't there and I'm not the accident pilot, but my guess is that he was purposely approached hot and high to allow him some extra glide time in case he ran out of gas. Even if the autopilot was working I suspect it would have been turned off.

justplanecrazy · Post by **justplanecrazy** » Wed Nov 07, 2007 4:16 pm

Wow, so it actually stuck! I thought they'd drop it to the lesser charge. I wouldn't be surprised if we see jail time and an appeal.

The defence argued that the flight operator, Keystone Air, should take the blame because Tayfel's bosses pressured him to go ahead with the flight as scheduled. During cross-examination, though, Tayfel admitted he did not push the issue of the auto-pilot system any further with the chief pilot.

That last bit shows us how clearly we now have to make our own decisions... screw the company's opinion. Even thought it was considered fact that the company pressured him, it was the pilot's responsibility to say no.

Cat Driver · Post by **Cat Driver** » Wed Nov 07, 2007 4:20 pm

During cross-examination, though, Tayfel admitted he did not push the issue of the auto-pilot system any further with the chief pilot.

The auto pilot had no part in this accident as far as cause is concerned.

However it would appear that the chief pilot was aware the auto pilot was not working.

bob sacamano · Post by **bob sacamano** » Wed Nov 07, 2007 7:31 pm

I've asked this question from day one.

Why was the aircraft dispatched on an IMC day with no auto-pilot, for single pilot IFR flight?

The person in charge of dispatching that airplane while knowing it had no auto-pilot, should be standing in court as well.

People here seem not to give any importance to operational control. If that's the case, why have a chief pilot? ops manager? @#$! it, why have any rules at all.

justplanecrazy · Post by **justplanecrazy** » Wed Nov 07, 2007 7:46 pm

Bob, like wilbur said, its really hard to make a crim neg case stand up in court. A dispatcher is so far removed that it'd be very unlikely that he would be convicted. It was unlikely that the pilot would be convicted but if not, they could always convict him with dangerous driving causing death . They can't charge the dispatcher with a lesser crime.

shitdisturber · Post by **shitdisturber** » Wed Nov 07, 2007 9:09 pm

Cat Driver wrote:
During cross-examination, though, Tayfel admitted he did not push the issue of the auto-pilot system any further with the chief pilot.
The auto pilot had no part in this accident as far as cause is concerned.

However it would appear that the chief pilot was aware the auto pilot was not working.

He and the Ops manager (Fanny) were aware it wasn't working all right; if memory serves it had been removed, yet they dispatched the aircraft and Tayfel anyway.

bob sacamano · Post by **bob sacamano** » Wed Nov 07, 2007 9:16 pm

justplanecrazy wrote:Bob, like wilbur said, its really hard to make a crim neg case stand up in court. A dispatcher is so far removed that it'd be very unlikely that he would be convicted. It was unlikely that the pilot would be convicted but if not, they could always convict him with dangerous driving causing death . They can't charge the dispatcher with a lesser crime.

They use the pilot self dispatch method at keystone, no licenced dispatchers there, the closest they got is a secretary who answers the radio and writes down eta's, usually wrong too.

Point being, they have a head of maintenance, an operations manager, who is a journey log nazi, (i.e. checks all books to see if all paper work is ok, hence knowing the auto-pilot is not in the aircraft), and a chief pilot, at the time being Fanny, a.k.a. cliff arlt.

Those people allowed the aircraft to be scheduled for said flight, while knowing it was illegal to do so.

The pilot choosing to take that plane on that flight during IMC conditions was his mistake.

When people go to work parties, such as a Christmas party, and get served alcohol and later smash up their car, the company gets sued for offering drinks and not foreseeing this accident. Now we either get no alcohol, or we get limos/cabs to pick us up and drop us off.

Why is this any different from aviation? Didn't the chief pilot know that scheduling this aircraft on an IMC day, (he knew it was IMC because he was there that morning getting ready for his flights, which would make me think that he had checked the weather himself that morning), would be an illegal act.

Widow · Post by **Widow** » Wed Nov 07, 2007 9:46 pm

Full Title of Proceedings (CI03-01-35372)

BETWEEN: STEPHEN WAYNE JONES ROBERT FOREST HADDORFF BRADLEY DANIEL HOFMEISTER EDWARD LEON HEENE BLAKE ANDREW FLOODMAN, WHO SUES BY LITIGATION GUARDIAN, SHEILA JONES FLOODMAN JOYE RUTH JONES, AS EXECUTRIX OF THE ESTATE OF CHESTER WAYNE JONES, DECEASED PLAINTIFF, -AND- KEYSTONE AIR SERVICE LTD. TRANSPORT CANADA THE ATTORNEY GENERAL OF CANADA DEFENDANT -AND- CLIFFORD WILLIAM ARLT AND ANDREW ARLT THIRD PARTIES.

Details of document #1: STATEMENT OF CLAIM

Party Name For/Against Amount Cost
KEYSTONE AIR SERVICE LTD, Against $2,050,000.00 0.00
JONES, STEPHEN WAYNE For 0.00 0.00
HADDORFF, ROBERT FOREST For 0.00 0.00
HOFMEISTER, BRADLEY DANIEL For 0.00 0.00
HEENE, EDWARD LEON For 0.00 0.00
FLOODMAN, SHEILA JONES For 0.00 0.00
JONES, JOYE RUTH For 0.00 0.00
TRANSPORT CANADA, Against $2,050,000.00 0.00
ATTORNEY GENERAL OF CANADA, THE Against $2,050,000.00 0.00

58 12-Mar-2007 Winnipeg-QB NOTICE OF RESERVED JUDGMENT 12MARCH2007; JEWERS, J
59 27-Mar-2007 Winnipeg-QB REASONS FOR JUDGMENT JEWERS, J; 26MARCH2007
60 27-Mar-2007 Winnipeg-QB DISPOSITION SHEET JEWERS, J; 12MARCH2007; RULE 45 TO APPLY SUBJECT TO THE FILING OF THE STMNT OF CLAIM (BY SOLICITOR) SOLICITOR WILL ALSO HAVE A LIEN ON THE SETTLEMENT PROCEEDS (AMOUNT YET TO BE DETERMINED)
61 08-Jun-2007 Winnipeg-QB ORDER JEWERS J, 26MAR2007
62 11-Jun-2007 Winnipeg-QB NOTICE OF SATISFACTION UNREPORTED

http://www.jus.gov.mb.ca/

I "heard" there was a settlement. Anyone?

bob sacamano · Post by **bob sacamano** » Thu Nov 08, 2007 7:12 am

cliff's logged more hours in courtrooms than in airplanes.

2R · Post by 2R » Thu Nov 08, 2007 9:18 am

Do the Court Parties still fly north on their airplanes ???

bob sacamano · Post by **bob sacamano** » Thu Nov 08, 2007 9:26 am

2R wrote:Do the Court Parties still fly north on their airplanes ???

Prisoners do with the guard or cop.

Judges fly on the king air with fast air.

snaproll20 · Post by **snaproll20** » Thu Nov 08, 2007 9:32 am

It is so easy for all of us, with 20-20 hindsight to be critical with this issue.
Still "Let he who is without sin cast the first stone....."
Many people condemn Tayfel without hesitation. Some have some sympathy because everyone knows it was company culture that put him in a place where he had to make a decision.
If the autopilot was truly out of the aircraft, the Company should have ensured it was either only used single pilot VFR, or given him a second pilot for IFR flight (and some more fuel). However, we all know that would have meant ditching two passengers. We all know THAT was not going to happen!!!!!!!! Fuel is the last onboard consideration with cheap operators and customers.
Then, he made several contributing errors. A more experienced pilot would likely have hauled the speed back to 90 kts and flown the ILS down to 50 feet, if necessary, to break cloud. (IF they got caught in such a predicament). Then, everyone would have walked away, no repercussions and the accident would have lain in wait for some other pilot down the road. (There but for the grace of God...etc.)

In this case, the repetitive process of risk taking to make a buck caught the full media attention. Don't think for one minute it has not escaped the attention of the ambulance-chasing legal rats.
This precedent is going to ensure that pilots are named as defendants in law suits......so be ready!!!!
It may be as simple as some clown reading in a newspaper that the flight they were on was almost "hit" (media expression) in a runway excursion not the pilots' fault and then being so 'traumatized' that five psychiatrists,
seven family members and three business partners will show up to plead their incapacitation.

It does not matter WHY someone is suing you, you HAVE to hire a lawyer and you quickly go five figures to defend yourself. Ask yourself if you have the money.

If you project the accident into future time frame, how does this sit with SMS? Does pilot Tayfel refuse the flight and then 'without penalty' report to Transport Canada? Does he write a report, complying with whatever gobbldygook Keystone writes into their SMS procedures? Certainly, he might as well start mailing resumes because he is the most vulnerable link in the chain.

Don't care what you say, any one of us going to speed if we know the traffic cops are not out there.

As a sobering thought: The airline hiring binge might have ensured that Tayfel is coming up Captain on some heavy iron. Would he have 'learned' from his mistake and been a more cautious pilot (like many of us, come-on admit it!!!) or would he still be potentially a risk?

xsbank · Post by **xsbank** » Thu Nov 08, 2007 12:58 pm

Good post, Snaproll.

Cat Driver · Post by **Cat Driver** » Thu Nov 08, 2007 1:16 pm

SMS will solve all these problems.

We just must learn to trust the people who are instituting SMS.

I have changed my mind and now have complete faith in the regulator to do the right thing for aviation and feel very contrite for having had doubts.

I took the time to read the link that CID posted in another forum and all my doubts have now vanished.

Lets all move on into the future secure in the knowledge that everything will be better under SMS.

Doc · Post by **Doc** » Thu Nov 08, 2007 5:22 pm

Cat...move away from the bottle. Put the joint down. Dump the rest of the drugs down the toilet. Now flush the toilet. I know cold turkey is tough on cats, but YOU WILL make it through this!

Driving Rain · Post by **Driving Rain** » Thu Nov 08, 2007 10:02 pm

Cat Driver wrote:SMS will solve all these problems.

We just must learn to trust the people who are instituting SMS.

I have changed my mind and now have complete faith in the regulator to do the right thing for aviation and feel very contrite for having had doubts.

I took the time to read the link that CID posted in another forum and all my doubts have now vanished.

Lets all move on into the future secure in the knowledge that everything will be better under SMS.

END OF DISCUSSION

Hot Fuel · Post by **Hot Fuel** » Thu Nov 08, 2007 11:20 pm

I second the motion.

CID · Post by **CID** » Fri Nov 09, 2007 7:57 am

Those people allowed the aircraft to be scheduled for said flight, while knowing it was illegal to do so.

An airplane without an autopilot isn't unairworthy. Neither is an airplane with no anti-icing or without radios. It's up to the pilot to determine if the weather will require certain equipment or extra guy in the right seat.

It would have been wrong for the chief pilot or dispatcher to ground the airplane just because the autopilot didn't work. The pilot should have stuck to VFR or had another pilot on board. Neither of which would necessarly have prevented him from running out of gas. That was just plain stupidity.

Flying Low · Post by **Flying Low** » Fri Nov 09, 2007 9:57 am

Basically folks...it has come down to this...

Exercise your command judgement...or the courts will hold you responsible.

We have said for years that pilots need to work together to stand up to operators that push you to do stuff that is illegal, stupid or both. It is extremely difficult to prove you were pressured into doing something. The ONLY way to ensure these operators can't operate this way is if the PIC refuses to fly. Unfortunately we, as a group, have been unble to do this so it really doesn't surprise me that the courts have stepped in to make an example.

Remember...it's your ass on the plane as well...not only do you risk criminal conviction but you could lose your life. Personally, it's not worth it. I want to be around for a long time for my wife and our "soon to arrive" child.

goldeneagle · Post by **goldeneagle** » Fri Nov 09, 2007 10:55 am

CID wrote:
If justice was indeed metered out evenly in this country, then, the only differences between this and gimli, are the 'causing death' parts.
Not so my friend. The 767 crew didn't know they were short on gas until the engines quit. The Navajo pilot was well aware of his fuel emergency yet he failed to do the right thing. He didn't even bother declaring minimum fuel or an emergency or ask for alternate routing (not over the city) on the return after his missed approach.

They didn't know they were short on fuel? They dipped the tanks, and made conversion errors calculating the fuel load. In any other industry, that is the DEFINITION of professional incompetence. An engineer that made a similar conversion error calculating stress loads for a structure, and subsequent collapse of the structure, would be liable for the damages. They would indeed lose the license to work in the field, and, likely NEVER get it back.

This whole disussion has completely re-inforced my opion that pilots in general should not be considered 'professionals' in any shape or form. The effort that they put into passing the buck in this type of case sure proves it.

Be it a navajo, or a 767, to blame the dispatch system for running out of fuel, is akin to a professional engineer trying to blame the secretary for a bridge collapse. No other industry would tolerate it, why does this industry not only tolerate, but promote it ????

Read over this thread. Folks want to blame the CP and OM, because the airplane was dispatched without a functioning autopilot. Would the autopilot have forced a fuel stop ?? Would the lack of autopilot have made the airplane non-airworthy ? Simple answer, No to both of the above.

As a CP and OM, when I assign a professional pilot to an aircraft, I EXPECT them to be able to properly manage fuel for the trip. It is part of the job description. If I have to ride along on every flight to make sure they are doing the job, then, I may as well do the flights myself. The whole point of hiring a licensed professional, is to pass the workload on to them. The whole point of the license, is, they have demonstrated to TC the ability to perform the duties of a professional, and, it is a part of the process I should be able to take for granted.

You folks go ahead and continue trying to rationalize the 'pass the buck' mentality. If a bridge collapses some day, and your family gets killed in the process, just remember, you will be the FIRST in line hunting for the engineer that certified that bridge as 'safe'. If an airplane falls down for lack of fuel, the families of those concerned want to go after those responsible. Pass the buck all you want, but, autopilots etc are all red herrings in this case. The airplane fell down for lack of fuel. Read the regulations, the final responsibility for fuel loads falls on the flight crew. Understanding this was part of the examination process that got you the license in the first place.

You can slice and dice the words all day long, but, in the end, one fact is indisputable. If an airplane falls down for lack of fuel, there was negligence involved. The neglegent party is the one qualified and licensed to make the fuel load decisions. in the case of an airplane, when the 'captain' calls for engine start, that person accepts the fuel load as sufficient for the trip. That is a professional decision, which should carry the liability consequences associated with it. In every other industry, it does. How this one got away from that, is just beyond me, but, the courts are likely to correct this problem now, the industry certainly hasn't.

I stand by the original comments. The gimili glider was a glaring example of negligence. If the industry had persued that example from the start, then we likely wouldn't have this kind of discussion today. The gimli glider is a classic case of pass the buck, and for some reason, it was tolerated. To blast off with insufficient fuel after tanks were dipped, is an absolute GLARING examle of professional incompetence, and no different from a ho blasting off with insufficient fuel.