Drones in Canada: Who Can Regulate What? Or, Why Potatoes might be Good for Drone Regulation

Posted on Thursday, November 5, 2015

Canada’s Drone Rules

Canada has been an early adopter of flexible regulations for limited commercial drone operations. The Canadian Aviation Regulations require all commercial Unmanned Air Vehicle (UAV, or “drone”) operators to obtain special permission from Transport Canada before their respective flights. But, in 2014, Transport Canada carved out an exception to this requirement to allow some commercial operations to proceed without the delay. Commercial drones under 25kg no longer need special permission to fly, as long as they follow certain rules. These rules include: having a minimum of $100,000 liability insurance; operating only one UAV at a time; giving right of way to manned flights; and staying at least 30-150m away from people, buildings, animals and vehicles not involved in the operation (the full list can be found here). 

Recreational users have even fewer requirements. Drones flown for fun (i.e., not for research or profit) that weigh less than 35kg can be flown without permission provided they are flown safely. According to Transport Canada this includes, among other things, not flying at night, above populated areas, near moving vehicles, or higher than 90m.

Of course, Transport Canada’s relaxed rules still restrict a lot of potential operations through requirements to stay 9 km away from airports and built up areas, not fly over crowds, and keep the drone in visual line of sight.

Transport Canada is holding a consultation process to revise and update these rules in 2016. Some of the proposed new rules include marking and registration requirements, pilot training and licencing, design standards, maintenance requirements, and other general operating rules.  

Regardless of whether you find the rules too permissive or too restrictive, one thing is clear: these rules address safety concerns. Other than a brief hat-tip to privacy and a reminder to follow the law, there is no discussion on Transport Canada’s drone webpages or in its rules of the myriad other issues arising from the increasing prevalence of drones in the skies, including privacy, property rights, liability, noise pollution, enjoyment of public space, impact on local businesses, and so on. Existing laws do not address some of these concerns. And in other cases, it is unclear how the law will apply. While the current safety-specific focus is perhaps unsurprising given Transport Canada’s mandate to promote a safe and secure transportation system, a more robust regulatory framework is needed to address some of these other legal uncertainties.

Can Others Step In?

Public concerns about drones, and particularly their impact on privacy, have become a common feature of the discourse and media coverage of this technology, and local regulators are starting to act. Richmond, B.C. adopted municipal drone laws, banning them entirely from most public parks in the city to protect leisure and recreational environments. Toronto City Council has also considered adopting drone rules, citing both privacy and safety as the driving concerns. Local drone bans have become a common occurrence south of the border as well, in response to public outcry and slow federal action in regulating drones.

Widespread bans on drones, as a response to legal uncertainty, are not ideal from the perspective of fostering a new and thriving industry. But, in Canada, these rules may not mean anything. In 1952, back when Isaac Asimov and Philip K. Dick could only imagine little flying robots in the sky, the Supreme Court of Canada ruled that aeronautics falls exclusively within federal jurisdiction. In 2010, that determination was put to the test in two Supreme Court cases, one of which involved a provincial law targeting aeronautics. The other involved otherwise valid land management laws that impacted aeronautics, specifically the placement of a new airport. In both cases, the majority of the Supreme Court was clear that the provinces do not have jurisdiction to regulate aeronautics directly, and any provincial law that sufficiently trenches on the core of the federal power over aeronautics will be inapplicable to that extent.

Should Richmond’s drone ban get before the courts, the first question would have to be whether drones fall within the scope of “aeronautics”. Transport Canada seems to treat them as such. We tend to assume drones are mini-planes. In some cases, they are the size and shape of planes. But that does not automatically mean they are analogous to the technology the federal government is meant to exclusively regulate. Drones could also be perceived as flying computers, flying robots or flying cameras. The question then becomes: to what extent does and should the fact that drones are airborne guide their placement within the scope of aeronautics?

This question of whether a drone is an aircraft was recently addressed in the United States before the National Transportation Safety Board. The ultimate determination was yes, drones are indeed aircraft and therefore come within the jurisdiction of the Federal Aviation Administration (the U.S. equivalent of Transport Canada). But this came after an original determination that no, they are not “aircraft” as defined in the applicable legislation. The issue wasn’t as clear-cut as it may initially seem. Nevertheless, if the same is true here that drones come within the scope of aeronautics, then a municipal or provincial law banning drones could be invalid as it is outside provincial jurisdiction. Similarly, a valid provincial law that has a serious impact on drone use (e.g., rendering it impossible to use them somewhere) might also be inapplicable to that extent.

This raises all sorts of issues, given the drone’s local impact on privacy, public space, business, etc.­—all things the provinces can normally regulate—and its different potential implications depending on different topography and land use across regions (think film industry drones over downtown Vancouver compared to pipe-line monitoring drones in northern Alberta).  

But (here’s where the potatoes come in), all may not be lost for other levels of government seeking to fill the gaps in the law that concern their populations.  While delegation of legislative power by the federal government to the provinces is not constitutionally possible (see Nova Scotia (AG) v Canada (AG), [1951] SCR 31), co-operation between levels of government still is. In particular, back in the 1950’s the Supreme Court also rendered its decision in PEI Potato Marketing Board v Willis.  The court ruled that delegation of federal law-making power to a provincial administrative body was permitted, constitutionally speaking.

If the federal government is the sole source of legislative power over drones, then should it delegate some of its power to provincial administrative bodies that can address local concerns? This seems like a viable policy option. If a country as large and diverse as Canada is going to have a thriving drone industry, that accommodates both local and national needs, more comprehensive consideration of the permissible uses and impact of drones will be necessary. Meanwhile, there is also room for other federal bodies to step in and for Parliament to consider where and when additional national drone-specific rules might be needed, or even, whether a specialized body will be necessary to address the legal issues arising from the growth of the robotics industry as a whole.

In taking these next steps, it will be important to know who can and should regulate what, if Canada is to have a functional and comprehensive set of guidelines to support both a flourishing industry and a flourishing society.

* Kristen Thomasen is a doctoral student in Law at the Centre for Law, Technology and Society. She is supervised by Dr. Ian Kerr. Her research seeks to build frameworks for the regulation of domestic drones, and is generously funded by the Joseph-Armand Bombardier Canada Graduate Scholarship. She will present on the topic of who can regulate drones at The Ohio State’s Drones as Disruption Conference on November 6. The conference can be streamed here

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