Regulations Amending the Canadian Aviation Regulations (Lasers): SOR/2020-124

Canada Gazette, Part II, Volume 154, Number 12

Registration

SOR/2020-124 June 1, 2020

AERONAUTICS ACT

P.C. 2020-405 May 30, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 4.9 footnote a of the Aeronautics Act footnote b, makes the annexed Regulations Amending the Canadian Aviation Regulations (Lasers).

Regulations Amending the Canadian Aviation Regulations (Lasers)

Amendments

1 Subpart 1 of Part VI of Schedule II to Subpart 3 of Part I of the Canadian Aviation Regulations footnote 1 is amended by adding the following after the reference “Section 601.15”:

Column I




Designated Provision

Column II

Maximum Amount of Penalty ($)

Individual

Corporation

Subsection 601.19(1)

5,000

25,000

2 The reference “[601.19 reserved]” after section 601.18 of the Regulations is replaced by the following:

Hand-held Lasers

601.19 (1) No person shall have in their possession a hand-held laser with a power output rating greater than 1 milliwatt (mW)

TABLE

Montréal region

Toronto region

Vancouver region

Boucherville

Brampton

Burnaby

Côte-Saint-Luc

Halton Hills

Coquitlam

Dollard-des-Ormeaux

Markham

Delta

Dorval

Mississauga

New Westminster

Hampstead

Toronto

North Vancouver (City)

Laval

Vaughan

Port Coquitlam

Longueuil

  

Richmond

Montréal

  

Vancouver

Montréal-Est

    

Montréal-Ouest

    

Pointe-Claire

    

Rosemère

    

Saint-Lambert

    

Westmount

    

(2) Subsection (1) does not apply if

Coming into Force

3 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The existing Interim Order No. 2 Respecting Battery-powered Hand-held Lasers expires on June 10, 2020. A regulatory amendment is required in order to maintain the prohibition on hand-held lasers in the vicinity of airports and heliports. There are challenges to timely responses to laser attacks and often offenders are not able to be identified in the act.

Description: The Regulations Amending the Canadian Aviation Regulations (Lasers) [the Regulations] will permanently prohibit the possession of hand-held lasers within a 10-km radius of the geometric centre of an airport or heliport in Canada and within the municipalities of the Montréal, Toronto, and Vancouver regions. In addition, the Regulations will improve the enforcement regime by making this prohibition enforceable by way of the issuance of Administrative Monetary Penalties (AMPs).

Rationale: With hundreds of incidents reported by pilots every year, laser attacks remain a persistent concern for the Canadian aviation community. The Regulations will help to improve aviation and public safety by restricting where individuals can be in possession of hand-held lasers over 1 milliwatt (mW), and will provide an option for enforcement officers to issue AMPs for the possession of a hand-held laser, rather than needing to witness the act of shining a light into navigable airspace (which is prohibited by existing laser attack provisions). Although the Regulations will not impose any cost on industries, it will lead to total present value costs of $3,984 to Transport Canada (TC) and Peace Officers over the 10-year analytical timeframe.

Issues

Hand-held lasers, when misused and directed at an aircraft, produce an intense, directional beam of optical radiation that can result in distraction, disruption, disorientation and flash blindness of the pilots. This impacts their ability to safely monitor flight instruments and maintain control of the aircraft during critical stages of flight, such as take-off, approach and landing. This has the potential for severe impacts on the safe operation of an aircraft, endangering the safety of the flight crew and passengers.

The reported number of laser attacks (the act of directing a laser beam at an aircraft) continues to remain a concern and risk to aviation safety. In Canada, there were 1 965 laser attacks reported to TC and published in the Civil Aviation Daily Occurrence Reporting System (CADORS) between January 2015 and the end of December 2019. All types of aircraft have been targeted. There were 590 laser attacks reported in 2015; 527 attacks in 2016; 379 attacks in 2017; 211 attacks in 2018 and 258 attacks in 2019.

Prosecution of individuals responsible for laser attacks has proven to be a challenge. When an impacted flight crew member informs the control tower of an attack, follow-up actions are possible. NAV Canada would normally report footnote 2 (depending on the circumstances and operational priorities) the laser attack to the local police authority, which sends Peace Officers to locate and charge the offender. Historically, in order to enforce existing laser attack provisions footnote 3 (which prohibit the projection of a directed bright light source into navigable airspace in such a manner as to create a hazard to aviation safety or cause damage to an aircraft or injury to persons on board the aircraft) there would need to be sufficient evidence that the person found with a laser was the one who directed it at an aircraft. Laser attacks frequently occur at night and often without witnesses, making it difficult to prove individual responsibility even when someone is found in the vicinity with a laser in their possession.

Background

Since 2002, the Canadian Aviation Regulations (CARs) have contained requirements relating to the safe use of directed bright light sources, footnote 4 including lasers.

Laser attacks are hazardous to aviation safety. They have the potential to disrupt the safe operation of aircraft during critical phases of flight: at approach, landing and take-off. The closer the laser attack takes place to an aircraft and the stronger the output of the laser, the more severe the potential consequences are of such an attack.

When a flight crew member (pilot or co-pilot) is attacked with a laser, his or her vision can be significantly impaired. Depending on the power output of the laser, its colour (green is perceived more intensely than red or blue by the human eye) and the distance between the aircraft and the laser, cockpit illumination can reach different intensities. Visual effects include glare (obscuration of an object in the field of vision), flashblindness (visual interference experienced after the illumination) and afterimage (a reverse contrast shadow image left in the visual field). After exposure to a directed bright light, the eye needs time to readapt to its environment. Even a brief adaptation phase can break the flow of ongoing cockpit activities. While the visual effects of laser exposure are most often transient, flash blindness or afterimage can linger for several minutes or even a few hours. In rare instances, it may linger for several days.

In Canada, laser attacks are reported hundreds of times a year. Despite the existing regulations, the misuse of hand-held lasers remains an aviation safety issue. Numbers of reported laser attacks vary from year to year, but have consistently exceeded 200 per year since 2011, and rose to as high as 590 in 2015. Fortunately, the vast majority of laser attacks reported in Canada to date have not resulted in significant operational impacts. Nonetheless, piloting an aircraft is a vision-critical activity. As such, each laser attack puts flight crew at risk of eye damage and puts the aircraft occupants in danger.

Aviation regulators around the world are concerned about the misuse of hand-held lasers. In 2014, the International Civil Aviation Organization (ICAO), urged all civil aviation authorities to highlight this issue as a hazard to aviation safety and raise public awareness of the dangers posed by laser attacks against aircraft. In 2018, ICAO requested that all member states footnote 5 demonstrate progress and efforts to enforce legislation, penalties and outline any newly-developed and implemented legislative provisions to address laser attacks against aircraft.

In June 2018, TC implemented the Laser Attacks Strategy (the Strategy), to address this aviation safety risk. The Strategy consists of three key components: prohibiting hand-held lasers; increasing education and awareness; and strengthening enforcement. As part of this Strategy and in response to the immediate danger, the Minister of Transport, on June 28, 2018, issued an Interim Order footnote 6 prohibiting possession of all battery-operated hand-held lasers with an output greater than 1 mW within a 10-km radius from the geometric centre of an airport or heliport in Canada and within the prescribed municipalities of the Montréal, Toronto and Vancouver regions. In 2019, a second identical Interim Order footnote 7 was issued and approved by the Governor in Council, which expires on June 10, 2020. The Regulations are required to prohibit the possession of a hand-held laser in the vicinity of an airport or heliport and in the specified areas mentioned above as a permanent measure.

Actions taken to date

In response to the growing incidence of laser attacks on aircraft, TC established a public educational and awareness campaign called “Not a Bright Idea” in 2016. Information about the responsible use of hand-held lasers and the risks associated with directing laser beams at aircraft was made available through the TC website and social media.

The incidence of laser attacks decreased following the introduction of the campaign, from 590 in 2015 to 371 in 2017. In 2018, TC implemented the Strategy, focusing on three main components: (1) prohibiting the possession of hand-held lasers; (2) increasing education and awareness; and (3) strengthening enforcement:

In June 2019, a second Interim Order was issued. After the introduction of the first Interim Order in June 2018 until the end of 2019, there were 376 reported laser attacks footnote 8 (an average of 20 per month). New occurrences continue to be reported regularly. A comparison of data between the 2018 and 2019 calendar years showed an increase of 47 attacks, or 22% in 2019. footnote 9 During the same period, delegated police forces did not issue fines or lay criminal charges. It remains challenging to swiftly identify the origin of a laser attack and its perpetrators. It is for this reason that the Strategy sought to increase deterrence through prohibited possession and increasing education and awareness.

Objective

The objective of the Regulations is to address the danger to aviation safety caused by laser attacks on aircraft by prohibiting the possession of hand-held lasers in the vicinity of airports, heliports and concerned municipal regions.

Description

The following changes will be introduced in the CARs under Part VI, Division II — Aircraft Operating Restrictions and Hazards to Aviation Safety to make the provisions of the Interim Order permanent under the CARs.

The Regulations permanently prohibit the possession of hand-held lasers with an output power greater than 1 mW within a 10-km radius from the geometric centre of airports and heliports, and in the municipalities of the Vancouver, Toronto and Montréal regions.

Recognizing that hand-held lasers have legitimate uses, the Regulations provide an exception that allows the possession of hand-held lasers for legitimate reasons. The exception will cover occupational, business or educational purposes, transportation in the course of employment, and will apply to members of an astronomy society. Furthermore, the exception will allow possession of a hand-held laser inside a dwelling house, during transportation between dwelling houses, and during transportation between the place of purchase and a dwelling-house.

Regulatory development

Consultation

Consultations on Interim Orders

Over the last two years, TC has undertaken extensive consultations with regards to the prohibition of possession of hand-held lasers in specified areas. These consultations took place while TC was examining options to reduce laser attacks and initiate the Strategy, to the issuance of the Interim Order Respecting Battery-powered Hand-held Lasers (2018) and the further issuance of the Interim Order No. 2 Respecting Battery-powered Hand-held Lasers (2019).

Consultations have included key groups of stakeholders: the aviation industry, law enforcement partners, Canadian citizens and other government departments. The aviation industry had called for action against laser attacks and thus is supportive of the measures to promote aviation safety. Law enforcement agencies welcomed additional enforcement tools.

The Royal Astronomical Society of Canada and the Fédération des astonomes amateurs du Québec expressed concern given that their members routinely use hand-held lasers for their demonstrations. TC addressed these concerns by explaining the conditions of the Interim Order (which allow for legitimate use) and existing regulations (sections 601.20 and 601.21 of the CARs). The Retail Council of Canada reported no concerns about the Interim Order, particularly because its members are also bound by the Canada Consumer Product Safety Act. Justice Canada, Health Canada, the Canada Border Services Agency and the Royal Canadian Mounted Police have been engaged and consulted where the Regulations pertain to their respective mandates, and are supportive.

On June 21, 2019, the Notice of Proposed Amendment on Battery-powered hand-held laser footnote 10 was published on the Canadian Aviation Regulation Advisory Council (CARAC) website and sent to its members for comment. Stakeholders were consulted on the current proposal, which permanently prohibits the possession of hand-held lasers and adds enforcement through the Contraventions Regulations (see the Compliance and Enforcement section of this document for more information). The consultation period lasted 69 days (from June 21 to August 30, 2019). Only two stakeholder submissions were received for a total of 8 comments:

No objections were raised to the proposed Regulations, and no comments were received on the proposed use of the Contraventions Act to enforce the Regulations. The participants were in support of the Regulations.

Modern treaty obligations and Indigenous engagement and consultation

The Regulations will not adversely impact potential or established Aboriginal or treaty rights or particular interests. Canadians will benefit from a reduction in laser attacks, and these regulations will not impact any Aboriginal group in a way that differs from other Canadians.

Instrument choice

The options examined to address the risk associated with laser attacks on aircraft include a voluntary approach, the continued use of Interim Orders, and a permanent regulatory approach. The following options have been considered:

Voluntary approach

This approach involves no changes to the existing regulations. Sections 601.20 and 601.21 of the CARs would remain in force, meaning that shining a laser at an aircraft (or into navigable airspace) is prohibited unless an authorization issued by the Minister has been obtained. However, after the expiration of the current Interim Order on June 10, 2020, possession of a hand-held laser with an output greater than 1 mW within a 10-km radius from the centre of an airport or heliport or in the municipalities of the Montréal, Toronto and Vancouver regions would no longer be prohibited. There would be no enforcement action for such possession - it would no longer be possible to issue an AMP to someone in possession of a hand-held laser while in one of the areas specified in the Interim Order.

TC would continue to promote education and awareness concerning the use of hand-held lasers in relation to aviation safety, and continue to hear feedback from stakeholders.

This would be a low-cost option for TC, however, this approach would not be comparable to efforts made to reduce laser attacks by other ICAO member states (see section on regulatory cooperation and alignment). One of TC’s core responsibilities is ensuring a safe and secure transportation system for Canadians, and industry has communicated the need for a stronger deterrent against laser attacks. Taking a voluntary approach to decrease attacks does not meet that need, and was therefore not chosen.

Continued use of Interim Orders

Interim Orders are temporary measures that address a recognized and immediate risk. The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has clarified the intent of Parliament where Interim Orders are concerned, and has communicated to TC the need to take steps to permanently address issues dealt with temporarily in Interim Orders. footnote 12 The SJCSR is of the opinion that Interim Orders should not be used as a substitute for regulations. footnote 13

The existing Interim Order respecting the use of battery-powered hand held lasers prohibits the possession of hand-held lasers (as described in the Interim Order) and makes it an offence for which delegated peace officers are able to issue an immediate AMP for the duration of the interim order.

TC could try to continue to prohibit the possession of hand-held lasers through the issuance of subsequent Interim Orders over time. There is risk to this approach — while the Minister may approve of the issuance of a third Interim Order for a period of 14 days, it needs to be approved by the Governor in Council in order to be extended to a one-year period. If the Governor in Council does not approve the order, then the Minister would need to re-issue interim orders every 14 days, which is not only inefficient, but also not in keeping with the intended purpose of such an instrument.

Regulatory approach: Regulate the possession of hand-held lasers in the CARs

This approach involves two amendments to the CARs: firstly, the content of the Interim Order becomes permanent by introducing section 601.19 into the CARs, and secondly, this provision becomes designated as enforceable under the CARs. An Interim Order would no longer be necessary.

This would mean that enforcement by AMP is possible. Individuals found to be in contravention by delegated peace officers or TC inspectors could be issued an AMP via ticket books provided by TC.

Regulatory analysis

The Regulations will prohibit the possession of hand-held lasers with an output greater than 1 mW within a 10-km radius from the geometric centre of airports and heliports and in the specified areas (with exceptions as noted in the Description section of this document). The introduction of the prohibition into the CARs will result in some safety and economic benefits. Although the Regulations will not impose any cost on industries, it will lead to a total present value cost of $3,984 to TC and Peace Officers over the 10-year analytical timeframe.

Baseline and regulatory scenarios

The current provisions of the CARs prohibit the projection of a directed bright light source into navigable airspace in such a manner as to create a hazard to aviation safety or cause damage to an aircraft or injury to persons on board the aircraft. To address the imminent threats to aviation safety, the Minister of Transport issued two Interim Orders that prohibited the possession of hand-held lasers with an output of greater than 1 mW within the specified areas. In these Interim Orders, exemptions were available for the possession of hand-held lasers for legitimate purposes, including occupational, business or educational purposes, transportation in the course of employment, or for use by a member of an astronomy society. The Regulations replicate the content of the Interim Orders, with an added exception for transportation of hand-held lasers between place of purchase and a dwelling-house, and transportation between dwelling-houses.

Benefits and costs

The Regulations will introduce the prohibition of hand-held lasers into the CARs which is intended to deter to potential laser attackers. Prohibiting the possession of hand-held lasers may allow enforcement actions to be taken more often when a laser attack has occurred. Strengthening enforcement is expected to reduce the number of laser attacks, which will lead to the following benefits:

In addition to those benefits mentioned above, the Regulations will work to address the concerns of ICAO which urged civil aviation authorities to highlight this issue as a hazard to aviation safety. ICAO has also requested that its Member States (including Canada) make efforts to enforce legislation, penalties, implement and develop new legislative provisions to address laser attacks against aircraft.

Although the Regulations will prohibit the possession of hand-held lasers in specified areas, an exception is carved out to allow legitimate uses of hand-held laser in these specified areas. As a result, the Regulations are permissive and will not impose any cost on in-scope industries.

It is expected that TC will need to issue up to 20 letters of authorization to Peace Officers so they may issue the AMPs introduced in the Regulations. TC previously designed a template for those letters under the Interim Orders. The present value costs of issuing letters of authorization will be $733 for TC and $644 for Peace Officers. It is not expected that the Regulations will result in hiring new Peace Officers.

Under the Interim Orders, TC designed and delivered ticket books to Peace Officers. The same ticket books will be used when the Regulations come into force. It is expected that TC will print and deliver 1 250 new ticket books between 2020 and 2029. The total present value costs of printing and delivering will be $2,608 (printing: $2,341, delivering: $267).

Small business lens

The prohibition of possession of hand-held lasers in specified areas will not impose any cost on small business. Although the possession of hand-held lasers will be prohibited in specified areas, an exception will be carved out to allow for the use of hand-held lasers for legitimate reasons. Consequently, the small business lens does not apply to the Regulations.

One-for-one rule

The one-for-one rule does not apply to the Regulations, as there are no additional administrative costs imposed on businesses.

Regulatory cooperation and alignment

ICAO harmonization

Canada strives for cooperation and alignment with the global aviation community wherever practical. There are no ICAO International Standards and Recommended Practices (SARPS) to address laser attacks against aircraft. However, ICAO recognizes the seriousness of this issue. In 2014, it urged all civil aviation authorities to highlight laser attacks against aircraft as a hazard to aviation safety and raise public awareness of the dangers they pose. In 2018, ICAO requested that all Member States demonstrate progress and efforts to enforce legislation, penalties and outline any newly-developed and implemented legislative provisions to address laser attacks against aircraft. Canada responded to ICAO outlining its current legislation, penalties, progress to date, and intention to implement a comprehensive laser attacks strategy footnote 14 as discussed in this statements’ background section.

International action

Over the past several years, various ICAO member states have taken measures to regulate the sale, possession and importation of hand-held lasers. Existing regulations vary from country to country. For example, the United States made it a federal crime to aim a hand-held laser at an aircraft under the Federation Aviation Administration Modernization and Reform Act. American law enforcement is heavily engaged with a reward offered to anyone with information leading to an arrest. The penalty for a laser offence against an aircraft is punishable by up to five years in prison and/or a fine up to $250,000. Additionally, offenders may be subject to an $11,000 civil penalty.

In the European Union, individual member states have specific laws against the dangerous use of hand-held lasers. For example, Germany uses criminal code provisions to prosecute offenders. Whoever interferes with the safety of air traffic or endangers the life of another person is liable to imprisonment from 6 months to 10 years. France has restrictions on purchasing, possessing, or using a hand-held laser not intended for specific legitimate uses. A fine of €7,500 and six months imprisonment are possible. The same penalties may apply to anyone importing, fabricating, distributing or selling hand-held lasers.

In Australia, possession (without a permit) and importation of hand-held battery-operated lasers over 1 mW has been banned by federal law since 2008, and possession in a public space can lead to fines up to $55,500 AUD or 2 years imprisonment. footnote 15

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, and the TC Policy Statement on Strategic Environmental Assessment (2013), the strategic environmental assessment (SEA) process was followed for this proposal and a Sustainable Transportation Assessment was completed. No environmental effects are anticipated as a result of this proposal. The assessment took into account potential effects to the environmental goals and targets of the Federal Sustainable Development Strategy (FSDS).

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this proposal. As the proposal deals exclusively with addressing prohibited laser attacks on aircraft, no differential impacts are anticipated on the basis of gender or other identity factors.

Rationale

The Regulations will provide additional enforcement options by giving enforcement officers the power to issue AMPs for the possession of a laser, rather than needing to witness the act of shining a light into navigable airspace.

The Regulations prohibit possession of hand-held lasers within a 10-km radius of the geometric centre of an airport or heliport in Canada and within the municipalities of the Montréal, Toronto, and Vancouver regions (where aircraft are at the critical phases of flight). The 10-km radius from airports and heliports was identified by TC subject matter experts as being adequate to mitigate the visual effects of a 5 mW footnote 16 green-coloured footnote 17 laser attack. A key consideration for determining the scope of the radius in terms of immediacy and risk is that the closer the laser attack takes place to the landing area, the less time there is for the flight crew members to recover from the visual effects of the attack.

Prohibiting possession of lasers within a 10-km radius from the geometric centre of an airport or heliport is necessary to effectively mitigate the risk from laser attacks. This distance ensures that the brightness of the laser is reduced to safe levels (assuming the power output of the laser is not greater than 5 mW).

The municipalities of the Toronto, Vancouver and Montréal regions experience the highest reported rates of laser attacks — over 60 percent of all laser attacks across Canada occur in these areas. In these regions, the 10-km radius from all airports and certified heliports results in a blanket over all of the city and surrounding municipalities, with the exception of some very small areas. footnote 18 In order to avoid confusion, it was decided that the prohibition should completely encompass these regions. The safety-case analysis completed by TC’s subject matter experts justified applying a ban on the possession of hand-held lasers across these municipalities due to their high rates of reported laser attacks.

Section 601.20 of the CARs already prohibits projecting a directed bright light source, including lasers, into navigable airspace without an authorization. These prohibitions apply to the entire Canadian navigable airspace — not only in the vicinity of airports and heliports. The introduction of section 601.19 is an additional prohibition that can be enforced, and is intended to deter the misuse of hand-held lasers, in areas where the laser attacks have increased potential of interference with cockpit activity.

Implementation and compliance and enforcement

Implementation

The Regulations come into force on the day they are published in the Canada Gazette, Part II.

Compliance and enforcement

The Regulations amendments willould be enforced through the issuance of AMPs. These provisions carry a maximum penalty of $5,000 for individuals and $25,000 for corporations. Under subsection 7.6(2) of the Aeronautics Act, when a provision is designated as an AMP, no proceedings can be taken by way of summary conviction.

It should be noted that amendments to the Contravention Regulations (the addition of sections 601.19 and 601.20 of the CARs as designated provisions) are in the process of being sponsored by Justice Canada. This process is taking place simultaneously but separately to the Regulations. Enforcement of these provisions (by issuance of AMPs) will be possible by all Canadian Peace Officers, without special delegation or TC-issued ticket books should the Contraventions Regulations be amended in this way.

Contact

Chief
Regulatory Affairs (AARBH)
Civil Aviation
Safety and Security Group
Transport Canada
Place de Ville, Tower C
330 Sparks Street
Ottawa, Ontario
K1A 0N5
Telephone: 613‑993‑7284 or 1‑800‑305‑2059
Fax: 613‑990‑1198
Email: carrac@tc.gc.ca
Website: www.tc.gc.ca