Introduction
Previously reserved for military applications, unmanned aerial vehicles (UAVs), also known as unmanned aerial systems (UAS), remotely piloted aircraft systems (RPAS)[1] or "drones", are increasingly being used for recreational and commercial purposes in North America.
A UAV is simply an unmanned aircraft that is piloted remotely. There are numerous types of UAVs and UAV systems. The technology can range from small and simple remote controlled models (e.g., quadcopters) to large and complex unmanned aerial systems that operate at high altitudes and for long distances without direct human control (military UAVs). Only certain types of UAVs are currently permitted for commercial applications under Canadian law.
The rapid technological development and increased accessibility of commercial UAVs has fueled the expansion of UAV use. Commercial UAVs can now be easily acquired at modest cost, particularly when compared to manned aircraft. UAVs are now used in many different commercial situations, including surveillance, construction, agriculture, resource exploration, meteorology, mapping and photography. Recreational use of UAVs has also grown significantly.
The growth of UAV use in the public realm has not been without issue. Most notably have been problems arising from the use of UAVs in populated areas and commercial airspace. There have been a number of reports of small drones being operated close to airports and commercial aircraft in Canada and elsewhere. While there fortunately have been no aviation accidents to date, the risk of a collision between an aircraft and a UAV remains. There have also been a number of incidents involving recreational and commercial UAVs crashing in populated areas, damaging property and injuring people. Privacy concerns have also been raised by privacy commissioners and civil liberties associations due to the potential surveillance applications of UAVs (PDF). These incidents and concerns have put increased pressure on governments to better and further regulate UAV use.
Business has also been pushing hard on the legal boundaries of drone use. Numerous companies, including Amazon, have sought to use autonomous (i.e., computer piloted) UAVs as delivery vehicles. The commercial attraction of using autonomous drones as delivery vehicles is obvious—they have the potential to be cheaper and faster than human delivery systems, such as delivery trucks. While the law in Canada and the United States does not currently permit such use, it can be expected that the law will, at some point in the future, permit such applications as the technology--and the public's acceptance of the technology—develops and matures.
Regulation of UAVs in Canada
The federal government, through Transport Canada, has primary jurisdiction over the regulation of UAVs in Canada on the basis that UAVs fall within the scope of the federal government's constitutional power over aeronautics.[2] The principal federal legislation governing civil aviation in Canada are the Aeronautics Act[3] and the Canadian Aviation Regulations (CARs).[4] While Transport Canada has developed specific regulations[5] and guidelines governing the operation of UAVs, certain CARs respecting the operation of regular aircraft generally may also still apply. UAV operators must also comply with all other applicable laws and regulations, including the Criminal Code and provincial and municipal laws related to trespassing and privacy.
What Types of UAV Use is Subject to Regulation?
The use of all UAVs, including model aircraft, falls under the general jurisdiction of Transport Canada. Operators of model aircraft (e.g., quadcopters) must refrain from operating their models in a manner that is, or is likely to be, hazardous to aviation safety.[6] This catch-all safety provision prohibits, for example, flying model UAVs near airports or commercial airspace.
There are more detailed and onerous regulations where the UAV: (i) weighs 35 kg or more; or (ii) is being used for commercial, industrial, training, inspection, or educational purposes. UAVs meeting this definition are classified as "Unmanned Air Vehicles" under the CARs and are subject to strict regulatory requirements before use is permitted.
Special Flight Operations Certificates
Operators of UAVs meeting the definition of "Unmanned Air Vehicles" under the CARS must obtain a Special Flight Operations Certificate (SFOC) from Transport Canada prior to use of the UAV unless an exemption applies. There are a number of SFOC application processes depending on the nature and use of the UAV. The more complex and risky the proposed operation, the more thorough and onerous the application process.
SFOC applications normally require the following information:
a) The name and contact information of the applicant;
b) The name and address of the person designated by the applicant to have operational control over the UAV system;
c) The method by which the operator may be contacted directly during operation;
d) The type and purpose of the operation;
e) The dates, alternate dates and times of the proposed operation;
f) A complete description, including all pertinent flight data on the aircraft to be flown;
g) The security plan for the area(s) of operation and the area(s) to be overflown to ensure no hazard is created to persons or property on the surface;
h) The emergency contingency plan to deal with any disaster resulting from the operation;
i) The name of the person designated to be responsible for supervision of the operation area during the operation, if different from the operator;
j) A detailed plan describing how the operation will be carried out, which must include a clear, legible presentation of the area to be used during the operation;
k) This presentation must include, among other information, the altitudes and routes to be used while carrying out the operation, and the planned take-off and landing locations;
l) The insurance coverage carried by the applicant; and
m) Any other information pertinent to the safe conduct of the operation requested by Transport Canada.
UAV operators must submit to Transport Canada a SFOC application at least 20 working days prior to the date of the proposed UAV operation. Transport Canada personnel known as "inspectors" are responsible for reviewing SFOC applications. Transport Canada has a very wide discretion in reviewing and approving SFOC applications. There is an appeal process when SFOC applications are denied. However, due to the scope and breadth of Transport Canada's discretion, appeals would likely be difficult in most situations.
In assessing SFOC applications, Transport Canada will consider all aspects of the proposed UAV operations, including the experience and qualifications of the applicant and the operator, the nature and complexity of the proposed operations, the type and size of the UAV and the command and control system for the UAV. There is a formal manual governing Transport Canada's review of SFOC applications.[7] The overall purpose of the SFOC application review is to ensure that the proposed operation is safe and associated risks have been adequately mitigated.
Initially, a restricted SFOC will be issued for each discrete mission. Longer term SFOCs applicable to multiple operations may be issued after demonstration of a safe operating record, which can take time. Transport Canada generally does not issue restricted SFOC's for periods that are longer than one year. Once a SFOC has been issued, future applications may be expedited.
Once operators have received SFOC authorization, they must contact the appropriate airspace controller (e.g., NAV Canada) to coordinate use of the airspace. SFOC holders may also be required to contact airports and Transport Canada's regional offices. Operators will also need to meet any other conditions identified in the SFOC.
SFOC Exemptions
In 2014, Transport Canada introduced exemptions to the SFOC requirement as part of its ongoing review and development of the Canadian UAV regulations. The stated purpose of the exemptions is to make it easier for Canadian businesses to operate small UAVs. There are two categories of exception: (i) UAVs weighing less than 2 kg; and (ii) UAVs weighing less than 25 kg. Under the exemptions, SFOCs are not required for commercial UAV operations where all applicable exemption conditions are met and, in the event of UAVs weighing between 2 and 25 kg, proper notice of the proposed operations are provided to Transport Canada. Operators considering using UAVs for commercial purposes under an exemption should carefully confirm that the exemption applies.
Who Can Operate a UAV?
UAV operators (aka "pilots") do not need to be licenced fixed or rotary wing pilots, although the fact that the operator is a pilot may be considered by Transport Canada in an SFOC application. While no pilot's licence is currently necessary, UAV operators must have adequate knowledge and training for UAV operations. The knowledge requirements can be self-taught, although there are a number of commercial UAV operator schools and programs in Canada which provide training and industry accreditation to UAV operators (PDF).
In 2014, Transport Canada issued formal and comprehensive Knowledge Requirements for all "pilots" of UAVs. These Knowledge Requirements reflect the current best practices for UAV operation in Canada. While no formal UAV pilot certification is currently required by Transport Canada, it is anticipated that a formal UAV pilot's permit based on the Knowledge Requirements will be required in the near future for UAV operation. It is also anticipated that commercial operators of UAVs will require some type of formal operator's certificate issued by Transport Canada.
UAV Operating Rules and Procedures
The general aircraft operating and flight rules set out in the CARS governing the use and operation of fixed and rotary wing aircraft do not apply to UAVs. In Canada, there is currently no comprehensive statutory or regulatory code governing the operating and flight rules for UAVs. While there are some CARs applicable to all UAV operations, the majority of Transport Canada's direction respecting flight rules and safety practices for UAVs is set out in Transport Canada advisory circulars which are intended to provide general information and guidance.
Where the operation is conducted under a SFOC, in additional to any specific directions respecting operations set out in the SFOC and the underlying application, the General Safety Practices—Model Aircraft and Unmanned Air Vehicle Systems will apply. Where the UAV operation is performed under an SFOC exemption, the governing guidelines are set out in the Guidance Material for Operating Unmanned Air Vehicle Systems. Both of these advisory circulars were updated in November 2014. The best practices set out in the Transport Canada Knowledge Requirements also contain significant information respecting UAV operation.
Key UAV operating guidelines set out in the advisory circulars include the following:
a) A human operator is required at all times;
b) Operators must be at least 18 years of age;
c) Operators cannot be impaired by drugs or alcohol;
d) Autonomous (i.e., computer or GPS controlled or guided) operation is not permitted. UAVs must be directly controlled by a human operator at all times;
e) Beyond-line-of-sight operation is not permitted. Live and direct sight of the UAV by the operator is required at all times;
f) Operation and control of UAVs through on-board camera, monitor or smartphone is not permitted;
g) UAVs may only be flown during daylight and in good weather (not in clouds or fog);
h) UAVs must be in safe and working condition before operating. However, the CARs relating to aircraft certification and airworthiness do not apply to UAVs;
i) UAV's cannot be used to transport dangerous goods;
j) UAVs cannot be operated:
i) closer than 9 km from any airport, heliport, or aerodrome;
ii) higher than 90 metres from above the ground;
iii) closer than 150 metres from people, animals, buildings, structures, or vehicles;
iv) in populated areas or near large groups of people, including sporting events, concerts, festivals, and firework shows;
v) near moving vehicles, including roads and highways; and
vi) within restricted airspace, including near or over military bases, prisons, and forest fires.
k) Operators must have adequate liability insurance; and
l) Operators must obtain permission from the owner(s) of the property from which a UAV intends to take-off/launch and land/recover on.
Non-Compliance
If an operator who is required to have a SFOC flies a UAV without one or fails to comply with the requirements of his or her exemption, Transport Canada can issue fines of up to $5,000 for an individual and $25,000 for a company. If an operator does not follow the requirements of the SFOC, Transport Canada can issue fines of up to $3,000 for an individual and $15,000 for a company. Operating a UAV too close to commercial aircraft, less than nine kilometres from an airport or in restricted airspace can lead to criminal charges and significant fines for both individuals and companies.
Regulatory Developments
While Transport Canada has been a world leader in the development of regulations for the commercial use of UAVs, it has acknowledged that the current regulatory regime in Canada has not kept pace with the rapid development in technology and the growing demand for commercial UAV use. In 2010, the Canadian Aviation Regulation Advisory Council (CARAC) established the Unmanned Aircraft System Program Design Working Group to develop new regulations to increase the safety, scope and regulatory efficiency of commercial UAV applications in Canada. In 2012, the working group released its phase 1 report (PDF) which outlines the overall proposed revisions to the Canadian regulatory regime. The working group is currently in the process of drafting the revised regulations contemplated in the phase 1 report with the objective of introducing the new regulations before 2017. The new regulations are intended to be consistent with the international UAV regulatory model established by the International Commercial Aviation Organization (ICAO). There will likely be significant advance notice and consultation with the public before the new regulations are implemented.
The United States Federal Aviation Administration (FAA) has also been actively developing new regulations to keep pace with expanding UAV growth. In February 2015 the FAA released a comprehensive proposed framework of regulations for small UAV use in the United States. The purpose of the proposed framework is to obtain feedback from the public with the objective of developing comprehensive, modern and flexible regulations governing UAV use in the United States. While the proposed framework does not go as far as many American businesses would like (for example, it does not permit night-time, autonomous or beyond-line-of-sight operations), the overall reaction from industry appears to be positive due to the expanded scope of application and streamlined regulations and red-tape. What new regulations are ultimately implemented by the FAA remains to be seen. The new regulations are expected to become law in 2016.
In can be anticipated that Canada and the United States will collaborate through the Regulatory Cooperation Council in effort to harmonize their respective new UAV regulations to facilitate the integration and regulation of commercial aviation in North American.
Conclusion
The expansion of commercial UAV use in Canada in the last 10 years has been dramatic. Due to Canada's large geography, small population and resource focussed economy, there are many potential applications for UAVs for Canadian businesses. Between 2007 and 2012, Transport Canada issued 293 SFOCs. In 2013, 1,672 SFOCs were issued. The number of UAV operations conducted in 2014 under the SFOC exemptions is not known but can be estimated to be in the thousands. This growth is expected to continue as UAV technology continues to develop.
While the current rules for UAV use in Canada are fairly restrictive, there still remains significant opportunity for Canadian companies to use UAVs in their businesses. Complex UAV operations can be achieved through use of SFOCs and simpler day-to-day operations can often be performed under the SFOC exemptions. The forthcoming revised regulations will likely provide Canadian businesses with even greater accessibility, flexibility and opportunity for commercial UAV applications. However, whether the new regulations permit, for example, beyond line-of-sight use or operation in urban areas (both of which would create extensive new opportunities for business) remains to be seen. Based on the recent Transport Canada and FAA policy papers, it is likely that these applications will not be widely permitted in the next generation of regulations.
Our firm can assist companies interested in using UAVs in navigating all aspects of the Canadian UAV regulatory landscape.
[1] RPAS is the most current term for "drones" used by the International Civil Aviation Organization (ICAO). As Canada seeks to harmonize its UAV regulatory regime to be consistent with international regulation, it is anticipated that future Canadian legislation and regulation will use the term RPAS rather than UAV.
[2] Constitution Act, 1867, ss. 91; Canada Transportation Act, SC 1996, c. 10.
[3] RSC 1985, c A-2.
[4] SOR/96-433
[5] CAR ss. 101.01, 602.41, 603.65-67, 606.02, 623.65.
[6] CAR, s. 602.45.
[7] Transport Canada Staff Instruction SI 623-001 – The Review and Processing of an Application for a Special Flight Operations Certificate for the Operation of an Unmanned Air Vehicle (UAV) System.
