R. v. Tayfel, 2007 MBQB 265, 2009 MBCA 124
The Manitoba Court of Appeal has overturned the conviction of a pilot for criminal negligence causing death and bodily harm for a crash landing in downtown Winnipeg, but has upheld a conviction of dangerous operation of an aircraft. In the circumstances, the court did not consider the pilot’s conduct blameworthy enough to constitute criminal negligence.
On June 11, 2002, Mark Tayfel was flying a Navajo Chieftain for Keystone Air Service on charter flights to and from a fly-in fishing camp northeast of Winnipeg.
As pilot in command, Mr. Tayfel was responsible for ensuring that there was enough fuel on board. Mr. Tayfel filed an IFR (Instrument Flight Rules) flight plan, in consideration of the weather in the Winnipeg area. This requires a pilot to ensure that there is more fuel than if flying VFR (Visual Flight Rules), so he can divert to an alternate airport if necessary. Mr. Tayfel did a pre-flight calculation of fuel by inspecting the gauges. By his calculation, he had enough fuel for a VFR flight but not enough for an IFR flight. Nevertheless, he took off from Gunisao Lake and flew direct to Winnipeg. 40 miles from Winnipeg, Mr. Tayfel noticed that the fuel gauges were dropping quickly. One of the engines quit approximately 15 miles from Winnipeg, but Mr. Tayfel was able to restart the engine. Mr. Tayfel then missed the approach on his initial attempt to land. Both engines quit after overshooting the runway. As a result, Mr. Tayfel performed a forced landing on a busy downtown street. His passengers were injured and one subsequently died as a result.
Mr. Tayfel was charged with criminal negligence causing bodily harm, criminal negligence causing death and dangerous operation of an aircraft. He was convicted at trial. The trial judge found him guilty of criminal negligence for his failure to ensure that there was sufficient fuel for the flight. This finding was based upon the way in which he calculated the amount of fuel prior to departure and his decision to fly VFR in IFR conditions. The judge found that it was unreasonable for Mr. Tayfel to simply rely upon the fuel gauges to calculate the amount of fuel remaining prior to departure. The judge also found that Mr. Tayfel acted unreasonably in deciding to fly VFR in known IFR conditions and, in doing so, put the lives and safety of other people at risk.
To prove criminal negligence, it has to be proven beyond a reasonable doubt that:
1. the accused was under a legal duty to do something;
2. he failed to fulfill that duty; and
3. in failing to fulfill the duty he showed a wanton and reckless disregard
for the lives or safety of other persons.
The trial judge found that the Crown had proven all the elements, but the Court of Appeal disagreed. They found that Mr. Tayfel did not show a wanton or reckless disregard for the lives or safety of others. No witnesses criticized Mr. Tayfel’s procedures before and during the flight other than his method of fuel calculation and his decision to fly VFR for an IFR flight. The evidence was that he did address safety issues before and during the flight. The Court of Appeal found that his conduct could not be said to completely disregard others. Although his fuel calculation was flawed, when all the evidence was considered, the Court of Appeal found that his conduct did not meet the very high threshold of “wanton or reckless disregard” for the lives and safety of other persons. However, the Court of Appeal confirmed a conviction for dangerous operation of an aircraft, which is a less serious offence with a lower level of moral blameworthiness. Although Mr. Tayfel had a mistaken belief as to the amount of fuel available, his decision to ignore the IFR fuel requirements was not the behaviour required of a reasonable and prudent pilot.
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