Final Authorities of the Pilot-in-command

[Close-your-eyes!]

Interestingly, the final authority of the PIC in Canada is not derived directly from the CARs, nor the Aeronautics Act, but instead originates from the ICAO Annex 2 (Rules of the Air). Here are some excerpts from an email exchange with Transport Canada—the well-written response from TC tracks the legal basis for PIC final authority:

Hi. While conducting some research for my pilot training publications, I note that the ability of pilots to override an ATC instruction for reasons of safety are not specified in CAR 602.31, yet this section is cross-reference in AIM RAC 1.7 with the add-on that compliance with instructions is not required where aircraft safety is in doubt.

Could you please verify that the aircraft safety provision for non-compliance in fact doesn't exist in the CARs, and instead relies only on the above AIM notation (which appears to be improperly cross-referenced).

In the case that some sort of transcription error may have occurred in the writing of CAR 602.31, I would invite you to contrast the CAR language with that of US FAR:

http://laws-lois.justice.gc.ca/eng/regu ... html#h-769

FAR:

https://www.law.cornell.edu/cfr/text/14/91.123

Thanks for your help in this!

Cheers,


Thank you for contacting the Transport Canada Civil Aviation Communications Centre. We regret the delay in processing your request.

In regards to your inquiry, you are correct in that the unlike FAR 91, which specifically states emergencies as a reason to deviate from an ATC clearance/instruction, the CARS only specifically mention reactions to ACAS or Terrain Warning systems.

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 and
(i) subject to subsection (2), in the case of an IFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, and
(ii) in the case of a VFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, when so requested by the air traffic control unit.
(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.

Avoidance of Collision

602.21 No person shall operate an aircraft in such proximity to another aircraft as to create a risk of collision.


CAR 602.21 specifies in a separate location the obligation of the PiC to avoid collisions. This is supported by the Right of Way CARS: 602.19, 602.20.

It would seem that some rule like the FAA FAR 9.3 would also add value.

§91.3 Responsibility and authority of the pilot in command.
(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.
(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.
(Approved by the Office of Management and Budget under control number 2120-0005)

However, if we look for an analogue to FAR 91.3 in the CARs, explains the PiCs responsibility and authority for safety of the aircraft, we do not find it explicitly mentioned. Same for the Aeronautics Act. However, if we look to our ICAO reference standards, ICAO Annex 2 Rules of the Air, is very specific. Canada is bound by and contracted to the Chicago Convention on International Civil Aviation (1944), specifically in this case Article 38 (Article 38 Departures from international standards and procedures. Since Canada has not filed a difference with respect to ICAO Annex 2 Rules of the Air 2.3.1 Responsibility of pilot-in-command, Annex 2 rules apply. Note that when the CARS were written to replace the previous Air Navigation Orders there was an intent to not replicate items already covered in ICAO rules for which we had no difference.

ICAO Annex 2, Rules of the Air States;

Chapter 1. DEFINITIONS
Pilot-in-command.
The pilot designated by the operator, or in the case of general aviation, the owner, as being in command and charged with the safe conduct of a flight.

Chapter 2. APPLICABILITY OF THE RULES OF THE AIR

2.3.1 Responsibility of pilot-in-command
The pilot-in-command of an aircraft shall, whether manipulating the controls or not, be responsible for the operation of the aircraft in accordance with the rules of the air, except that the pilot-in-command may depart from these rules in circumstances that render such departure absolutely necessary in the interests of safety.

2.4 Authority of pilot-in-command of an aircraft

The pilot-in-command of an aircraft shall have final authority as to the disposition of the aircraft while in command.
3.2 Avoidance of collisions

Nothing in these rules shall relieve the pilot-in-command of an aircraft from the responsibility of taking such action, including collision avoidance manoeuvres based on resolution advisories provided by ACAS equipment, as will best avert collision.
Note 1.— It is important that vigilance for the purpose of detecting potential collisions be exercised on board an aircraft, regardless of the type of flight or the class of airspace in which the aircraft is operating, and while operating on the movement area of an aerodrome.
Note 2.— Operating procedures for use of ACAS detailing
the responsibilities of the pilot-in-command are contained in
PANS-OPS (Doc 8168), Volume I, Part VIII, Chapter 3.
Note 3.— Carriage requirements for ACAS equipment are
addressed in Annex 6, Part I, Chapter 6 and Part II, Chapter 6.

Action by Contracting States

Notification of differences. The attention of Contracting States is drawn to the obligation imposed by Article 38 of the Convention by which Contracting States are required to notify the Organization of any differences between their national regulations and practices and the International Standards contained in this Annex and any amendments thereto. Contracting States are invited to keep the Organization currently informed of any differences which may subsequently occur, or of the withdrawal of any differences previously notified. Contracting States are also invited to notify the Organization of any differences between their national regulations and practices and the special recommendations contained in Attachment A to this Annex. A specific request for notification of differences will be sent to Contracting States immediately after the adoption of each amendment to this Annex.

I trust that the foregoing has addressed your questions. Should you need other information on civil aviation matters, please feel free to contact us via email at services@tc.gc.ca.

Again, thank you for writing.

Kind regards,

[cgzro]

It would seem to me that you can look at this another far simpler way. If you decide not to avoid a collision for whatever reason you have just committed suicide / manslaughter or murder which likely is illegal in whatever jurisdiction you find your self irrespective of the CARS/FARS etc.

[Meatservo]

I'm actually very impressed by the detailed and well-thought-out response you received from Transport Canada. The idea that someone took the time to research and respond in that level of detail, well, it warms the cockles of my withered heart.

[digits_]

This is very interesting information, thank you for sharing!

[pdw]

It would seem to me that you can look at this another far simpler way. If you decide not to avoid a collision for whatever reason you have just committed suicide / manslaughter or murder which likely is illegal in whatever jurisdiction you find your self irrespective of the CARS/FARS etc.

Here's one not quite so straight forward:

I came across a report where it's not so obvious life-or-death at the moment (where a pilot needed to act contrary to ATC order), which occurred at the west end of Lake Erie in the mid 1990's. The pilots of the small commuter approached near the eye of an Alberta clipper and are asked to slow down in high groundspeed prior to the end of a longer descent and then again immediately following a levelling turn to 090, ... for landing rwy 3 at which point are 10-15 miles out. Coming out of the turn (while picking up the greater tailwind and maintaining 145kts) they're given the repeated/imperative directive to slow it down while cutting into a stronger WSW component ~30kts there but still headwind at airport/rwy3. They stalled there, in icing. Here speeding up/airspeed was needed instead of slower, yet only the pilots could really know this at that critical point despite so close to the tower.

It reads there like the pilots realized it, and were a second away from saying it .. ' we can't slow any more with the icing and need more IAS ' ... which would mean execute the AS-increase asap and respond can't comply. Seems obvious at that precise time the tower would be unaware of this nasty windvector just above / so close to them ... that is affecting a concern for the inbound's excessive speed. It would be up to the pilot to counter their demand .. and perhaps there would previously have had to be the assurance for such action to be non-punitive ?

[AuxBatOn]

It would seem to me that you can look at this another far simpler way. If you decide not to avoid a collision for whatever reason you have just committed suicide / manslaughter or murder which likely is illegal in whatever jurisdiction you find your self irrespective of the CARS/FARS etc.

You really need a piece of paper to tell you this?! Safety trumps any instruction. Period.

[Rockie]

While there is nothing in the CAR's, the Aeronautics Act does provide something in the form of a definition. It's not as detailed as the FAR or ICAO documents but I would be comfortable using it as my only protection in court.

“pilot-in-command” means, in relation to an aircraft, the pilot having responsibility and authority for the operation and safety of the aircraft during flight time;

[Panama Jack]

I agree with Rockie.

It is very unfortunate that neither the CARs nor the Aeronautics Act codify the Pilot-in-Command authority in their regulations as do the Federal Aviation Regulations 91.3. Unfortunately, this is a common problem, worldwide, with the result being that companies or employers sometimes overrule the PIC or put pressure on the Captain.

I recall a legal challenge in the US a number of years ago where a well-known cargo company penalized a Captain for refusing to carry horse handlers in the cockpit (horses were being transported as air freight) because the cockpit access policy did not allow such people. The FAA came down hard on the carrier and reaffirmed that thr PIC's authority was absolute and may not be chilled.

Such regulatory language would be a welcome safety improvement in Canada, where it is not unusual for pilots to hear "if you don't do it, we'll have to find someone else who will."

[TFTMB heavy]

PIC has final authority, one of your responsibilities as PIC is to notify ATC if you cannot comply with an instruction. If time is of the essence (TCAS for instance) you do what you gotta do and advise them after. Their job is not easier than ours but it's our butt that's in the sky, keep it safe and all will be fine. Cover your butt with a report is always a good idea these days.

[Tanker299]

The PIC in Canada gets their power from the criminal code.

The PIC in Canada is a Peace Officer, as a peace officer you have a very wide birth and makes all your orders lawful commands. This makes you the final authority when it comes to safety and also
gives you the power to charge detain and arrest.

Look under the definition of peace officer in the CC.

[Rockie]

The PIC in Canada gets their power from the criminal code.

The PIC in Canada is a Peace Officer, as a peace officer you have a very wide birth and makes all your orders lawful commands. This makes you the final authority when it comes to safety and also
gives you the power to charge detain and arrest.

Look under the definition of peace officer in the CC.

Incorrect. The "peace officer" designated authority to detain (restrain) someone is, fortunately, something that is very rarely necessary to exercise. The criminal code has nothing to do with command authority and responsibility regarding the operation of the aircraft.

[photofly]

You can't marry people, though. Disappointing.

[switchflicker]

The PIC in Canada gets their power from the criminal code.

Have you got a link to verify the above statement? Seems like quite a stretch to me.

[TFTMB heavy]

You are a peace officer once the door is closed, you can then place somebody under arrest, until it's closed you call the cops. It has nothing to do with not following ATC instructions for safety reasons, that's just common sense.

[Tanker299]

It's an alphabetic list

http://laws-lois.justice.gc.ca/eng/acts ... age-1.html

[Rockie]

I'll say it again, while the criminal code defines a pilot in command as a "peace officer" allowing them to act as a "peace officer" while in flight, it does not assign their authority or responsibility as "pilot in command". It is the Aeronatics Act which does that.

The peace officer designation derives from the 1963 Tokyo Convention (article 6) which sought to give PIC's the authority to deal with unruly passengers and other people related inflight threats.

https://treaties.un.org/doc/db/Terroris ... nglish.pdf