Reasonable Doubt: What you need to know about drones in Canada

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      Drones are a type of unmanned air vehicle (UAV). In Canada, UAVs are defined as power-driven crafts (other than model aircraft) designed to fly without a human operator on board, required to operate in accordance with a Special Flight Operation Certificate (SFOC).

      They currently fall into two categories: (1) those weighing 25 kilograms or less to be used within one’s line of sight, which are currently exempt from requiring a SFOC; and (2) those weighing more than 25 kilograms to be used beyond the line of sight.

      Transport Canada created interim rules for UAVs in November 2014, their “interim strategy”, which expire in December 2016. In the meantime, proposed amendments to current laws were submitted for review. UAVs present unique opportunities and risks, and are met with mixed support.

      Let’s explore the world of drones in recreational, commercial and other settings.

      Recreational use of drones in Canada

      Recreational use of drones has become increasingly popular in the past few years. Although regulated by Transport Canada, these flying bots, most with cameras, can easily infringe personal, property, and privacy rights. Take for example the curious pubescent neighbour boy with his camera-equipped drone, hovering it over your backyard while your daughter sun bathes in her bikini. Or, what about a high-rise condo owner spotting a drone hovering outside his 30th floor living room window. And there are less innocent examples. How can one go about protecting their right of privacy and quiet use and enjoyment of their property?

      In a Kentucky case, a father who had witnessed a drone in his backyard on numerous occasions spying on his daughter took it upon himself to shoot the drone down. The Court acquitted him of any crime, but this might not reflect a typical outcome in Canada. Shooting down drones is extreme, is certainly not your only option, and should not be your knee-jerk reaction.

      Although recreational UAV users do not require a SFOC because of the exemption, they are not allowed to fly in the following “no drone zones”: they cannot be flown within nine kms of aerodromes (airports, heliports, or seaplane ports); they cannot go within 150 meters (approximately 492 feet) of people or near large groups, such as at beaches; and they should not be flown over moving vehicles, on highways, over bridges, or over busy streets. UAVs cannot be flown in Canadian National Parks without special permission, and they are not allowed to cross national borders.

      If you no longer meet a condition of the exemption for recreational use, you will be required to apply for a SFOC. If you fly a UAV without a SFOC the penalty is a fine of up to $5,000.00 for an individual, or up to $25,000.00 for a corporation. On the other hand, if you obtain a SFOC and do not follow its requirements, you may face a fine of up to $3,000.00 for an individual and up to $15,000.00 for a corporation.

      Given these rules, and in addition to these fines, those operating drones outside of the allowable parameters may face both criminal charges (including criminal harassment and voyeurism) or civil law consequences (including civil suits for trespass, breach of privacy, and nuisance), or both.

      On top of that, if a drone is being operated beyond these regulations, Transport Canada may investigate. In fact, it has launched 50 investigations since 2010 into incidents involving UAVs, for example, recklessness and negligence for flying too close to airports or at too high an altitude.

      The easiest way to determine if your UVA complies with the rules is the consult this information page on Transport Canada’s web site.

      Commercial uses of drones in Canada

      Commercial use of drones in Canada is tightly regulated, and requires an application for a SFOC for each use. If granted the SFOC sets out when and how the UAV may be operated. Growing popularity of commercial use is evidenced by the fact Transport Canada has issued a 485% increase in SFOCs since 2012.

      Practically speaking, one barrier to the use of drones commercially is their weight and distance capabilities. The upper limits seem to be 5 lbs and 15 miles (approximately 8 km). This is not necessarily a hindrance to companies whose items weigh less than that. Although a challenge for consumer deliveries, much more economical and, arguably, important uses include transport of medical goods, protection of the public, and academic and research initiatives.

      Another barrier is public support of drones by type and context of use. A survey conducted by the University of Nevada, Las Vegas, released in July 2014, showed that support for drones depends on what the drones are being used for. The results show that, from greatest support to least support, the public favours drone usage as follows:

      • Search and rescue in remote areas: 93 percent
      • Climate/geological mapping: 87 percent
      • Military operations: 73 percent
      • Traffic monitoring on major highway routes: 71 percent
      • International border patrol: 68 percent
      • Journalists’ reporting of news events: 56 percent
      • Detecting criminal activity in public places: 48 percent
      • Crowd monitoring at public events: 43 percent, and
      • Delivery services: 42 percent

      The study also explored the public’s level of concern regarding the monitoring of people’s daily activities and found that:

      • Monitoring in public places had 26 precent of people very concerned;
      • Monitoring at work had 46 percent of people very concerned; and
      • Monitoring around the home had 72 percent of people very concerned.

      Commercial and other drone usage abroad

      Some examples of drone usage abroad include Matternet’s medical transport drones in remote countries like Lesotho in South Africa; “ambulance drones” that transport defibrillators to heart attack victims; the tacocopter, touted to deliver tacos in San Francisco (ultimately deemed a hoax), as well as other food delivery schemes; and consumer delivery drones promised by some companies like Amazon and Google. Drones have also been discovered smuggling drugs across borders and smuggling contraband into prisons in Canada, the U.S., Ireland, Britain, and Australia.

      Drones used for medical initiatives have quickly overcome regulatory hurdles, and garner much more support from the public. Many people are suspicious and critical of drones being used in a more mainstream way, and typical concerns include malfunctions or unfavourable weather conditions that may cause drones to fall onto vehicles or children, causing property damage or personal injury. Others, however, believe that drones will become as prevalent is society as the automobile, which faced similar initial public skepticism.

      With evolving yet conservative regulations, mixed public support, and legitimate privacy and other concerns, it will be interesting to see whether more mainstream use ever gets off the ground.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.