DAOD 2015-2, Airworthiness Investigations, Reports and Privilege

Table of Contents

  1. Introduction
  2. Definitions
  3. Overview
  4. Legal Framework
  5. Reports and Privilege
  6. Operating Principles
  7. Compliance and Consequences
  8. Responsibilities
  9. References

1. Introduction

Date of Issue: 2020-09-23

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Approval Authority: Chief of the Air Force Staff (C Air Force)

Enquiries: Director Flight Safety (DFS)


2. Definitions

aeronautical product (produits aéronautiques)

Means any aircraft, aircraft engine, aircraft propeller or aircraft appliance or part or the component parts of any of those things, including any computer system and software. (Subsection 3(1) of the Aeronautics Act)

aircraft (aéronef)

Means any machine capable of deriving support in the atmosphere from reactions of the air, and includes a rocket. (Subsection 3(1) of the Aeronautics Act)

airworthiness instrument (document de navigabilité)

A regulation, order, instruction, standard, guideline, code or education and information campaign with respect to military aviation and airworthiness. (Defence Terminology Bank record number 37325)

civilian (civil)

Means a person who is not subject to the Code of Service Discipline set out in Part III of the National Defence Act. (Subsection 10(1) of the Aeronautics Act)

communication record (enregistrement contrôle)

Means the whole or any part of any record, recording, copy, transcript or substantial summary of any type of communications respecting air traffic control or related matters that take place between any of the following persons: air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters. (Subsection 24(1) of the Aeronautics Act)

military-civilian occurrence (accident militaro-civil)

Means

a) any accident or incident involving

(i)   an aircraft operated by or on behalf of DND, the CAF or a visiting force, or an installation operated by or on behalf of any of the above that is designed or used for the manufacture of an aircraft or other aeronautical product, or that is being used for the operation or maintenance of an aircraft or other aeronautical product, and

(ii) a civilian; or

b) any situation or condition that the Airworthiness Investigative Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a). (Subsection 10(1) of the Aeronautics Act)

military aviation (aviation militaire)

The set of activities, services and facilities associated with the design, manufacture, materiel support, maintenance and operation of military aeronautical products; the operation and maintenance of aircraft operated by or on behalf of the military; and the operation and maintenance of aircraft operated by or on behalf of a visiting force while in domestic airspace.

Note – The term “visiting force” is defined in section 2 of the Visiting Forces Act. (Defence Terminology Bank record number 37327)

on-board recording (enregistrement de bord)

Means the whole or any part of either a recording of voice communications originating from an aircraft, or received on or in the flight deck of an aircraft, or a video recording of the activities of the operating personnel of an aircraft, that is made, using recording equipment that is intended not to be controlled by the operating personnel, on the flight deck of the aircraft, and includes a transcript or substantial summary of such a recording. (Subsection 22(1) of the Aeronautics Act)

statement (déclaration)

Means

(a) the whole or any part of an oral, written or recorded statement relating to a military-civilian occurrence that is given by the author of the statement to the Airworthiness Investigative Authority, an investigator or any person acting for the Airworthiness Investigative Authority;

(b) a transcription or substantial summary of a statement referred to in paragraph (a); or

(c) conduct that could reasonably be taken to be intended as such a statement.

(Subsection 24.1(1) of the Aeronautics Act)

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3. Overview

Interpretation

3.1 In this DAOD:

Context

3.2 The Flight Safety Program (FSP) and airworthiness investigations are essential parts of the DND and CF Airworthiness Program, which is necessary to ensure that an acceptable level of aviation safety is achieved and maintained for military aviation. To that end, major amendments were made to the Aeronautics Act in 2015 to support the conduct of airworthiness investigations. These amendments permitted the making of the Military Airworthiness Investigation Regulations (MAIRs) in 2018.

3.3 The FSP and airworthiness investigations contribute to mission accomplishment by preventing accidental loss of aviation resources, while accomplishing missions within an acceptable level of safety. Full and thorough airworthiness investigations provide an effective force multiplier for the DND and the CAF.

3.4 This DAOD provides direction and guidance for DND employees and CAF members with respect to the FSP, airworthiness investigations, reports and privilege.

Just Culture

3.5 The FSP promotes a “just culture”, which is based on the free and open reporting and sharing of critical safety information between managers and operational personnel, without the fear of punitive action. However, a just culture is not a blame-free culture and leaders must be able to differentiate between acceptable and unacceptable acts. A just culture recognizes that, in certain circumstances, there may be a need for punitive action and defines the line between acceptable and unacceptable actions or activities.

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4. Legal Framework

Aeronautics Act

4.1 Subsection 4.2(1) in Part I of the Aeronautics Act provides that the Minister of National Defence (MND) is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics with respect to any defence matter. Paragraph 4.2(1)(n) provides that the MND may, subject to subsection 4.2(2), investigate matters relating to aviation safety. Subsection 4.2(2) provides that investigations of military-civilian occurrences are carried out in accordance with Part II of the Act by the AIA designated by the MND under section 12.

4.2 Pursuant to ministerial direction provided under the Aeronautics Act, the Chief of the Defence Staff (CDS) has delegated powers, duties and functions to the AIA in order for the AIA to independently investigate matters concerning aviation safety under paragraph 4.2(1)(n) of Part I of the Act. This includes the investigation under Part I of strictly military aviation occurrences, i.e. occurrences that do not involve a civilian. Military-civilian occurrences are investigated by the AIA under Part II of the Act.

Amendments to the Aeronautics Act

4.3 Given the increased number of civilian contractors providing support to Canadian military aviation activities, including flight training, strategic airlift, target towing and equipment maintenance, significant amendments were made to the Aeronautics Act by the Safeguarding Canada's Seas and Skies Act. These amendments, including a new Part II in the Aeronautics Act, came into force in 2015.

4.4 Part II establishes a new process in the Aeronautics Act for the investigation of accidents that involve a civilian and a military aircraft or installation, i.e. a military-civilian occurrence. New powers, comparable to those exercised by the Canadian Transportation Accident Investigation and Safety Board, were given to the AIA and AIA investigators to enable the full and thorough investigation of military-civilian occurrences. These powers provide for the search of premises, the seizure of documents and the taking of statements.

4.5 Under subsection 12(1) in Part II of the Aeronautics Act, the MND has designated DFS as the AIA for purposes of the Aeronautics Act. Under this subsection, the AIA is responsible for advancing aviation safety by:

(a)   investigating military-civilian occurrences, in order to find their causes and contributing factors;

(b)   identifying safety deficiencies as evidenced by military-civilian occurrences;

(c)   making recommendations designed to eliminate or reduce any of those safety deficiencies; and

(d)   providing reports to the MND on the investigation and the findings in relation to them.

4.6 While Part II of the Aeronautics Act sets out the powers of the AIA and AIA investigators with respect to military-civilian occurrences, section 24.8 of the Act makes specific sections of Part II applicable to the investigations of strictly military aviation occurrences conducted by the AIA under paragraph 4.2(1)(n) of the Act.

Military Airworthiness Investigation Regulations

4.7 The amendments made to the Aeronautics Act in 2015 provided for the making of regulations to set out detailed responsibilities with respect to military-civilian occurrences. The MAIRs were made under the Aeronautics Act and came into force in 2018. The objective of the MAIRs is to enable the carrying out of full and thorough investigations by the AIA and AIA investigators of both military-civilian occurrences and strictly military aviation occurrences.

4.8 The MAIRs ensure that the obligations of civilians involved in military-civilian occurrences are clear. More specifically, the MAIRs set out requirements with respect to the mandatory reporting by civilians of military-civilian occurrences to the AIA, the preservation of evidence, the keeping of records, the rights and privileges of observers at investigations, and the form of warrants and notices issued under Part II of the Aeronautics Act. The warrants provide for the search and seizure of things that are relevant to the investigation of a military-civilian occurrence. The notices provide for the production of information or attendance of a person before an investigator to give a statement, the medical examination of a person (including the requirement to provide a urine sample), the production by a physician or health practitioner of patient information and the performance of autopsies.

4.9 The warrants and notices in the MAIRs may also be used during the investigation of strictly military aviation occurrences with respect to CAF members. This permits the use of the same warrants, and of other forms and procedures, by AIA investigators with respect to both civilians and CAF members.

DAOD Assignment of Functional Area of Airworthiness

4.10 In DAOD 1000-8, Policy Framework for Safety and Security Management, the Deputy Minister and the CDS have assigned the functional area of "airworthiness" to the C Air Force. Under this assignment, airworthiness instruments respecting the investigation of any aviation-safety-related occurrence may be issued to DND employees and CAF members by or on behalf of the C Air Force.

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5. Reports and Privilege

Interim Report – Section 19

5.1 Subsection 19(1) of the Aeronautics Act provides that the AIA must, on a confidential basis, provide an interim report on the progress and findings of an investigation:

  1. to any minister responsible for a department that has a direct interest in the subject matter of the investigation, on written request made with respect to that investigation; and
  2. to any coroner investigating the military-civilian occurrence, if it involved a death and significant progress has been made in the investigation.

Limited Purpose Only of an Interim Report

5.2 Subsection 19(2) of the Aeronautics Act provides that a person, other than a minister, who is provided with an interim report under subsection (1) by the AIA must not use the report, or permit its use, for any purpose not strictly necessary to its examination. Contravention of subsection 19(2) is punishable under subsection 24.6(2) of the Act.

Draft Report – Subsection 18(2)

5.3 Before providing a final report, subsection 18(2) of the Aeronautics Act provides that the AIA must, on a confidential basis, send a copy of the draft report on the investigation’s findings and any safety deficiencies identified to each minister responsible for a department that has a direct interest in the findings, as well as to any other persons who, in the AIA’s opinion, have a direct interest in the findings. The AIA must give that minister and the other persons a reasonable opportunity to make representations to the AIA with respect to the draft report before the final report is prepared. More than one draft report may be provided by the AIA.

Confidentiality of Draft Report

5.4 Subsection 18(3) of the Aeronautics Act provides that a person must not communicate or use a draft report, or permit its communication or use, for any purpose, other than the taking of remedial measures, that is not strictly necessary to the study of the draft report or to the making of representations with respect to it. Contravention of subsection 18(3) is punishable under subsection 24.6(2) of the Act.

Note – The term “remedial measures” in subsection 18(3) of the Aeronautics Act does not refer to “remedial measures” initiated for purposes of DAOD 5019-4, Remedial Measures.

Final Report – Subsection 18(1)

5.5 The final report of an airworthiness investigation provided under subsection 18(1) of the Aeronautics Act sets out the AIA’s findings, including any safety deficiencies that the AIA has identified and any recommendations relating to aviation safety that the AIA considers appropriate. Final reports of airworthiness investigations are available to the public, subject to:

  1. any classified information; and
  2. any controlled goods as referred to in the schedule to the Defence Production Act.

Privilege and Restrictions with Respect to an On-Board Recording – Sections 22 and 23

5.6 The term “on-board recording” (OBR) is defined in subsection 22(1) of the Aeronautics Act. Subsection 22(2) of the Act provides that every OBR in respect of an aircraft is privileged, whether or not that aircraft has been involved in a military-civilian occurrence. Except as provided by sections 22 and 23 of the Act, a person, including any person to whom access is provided under those sections, must not knowingly communicate an OBR or permit one to be communicated to any person. Section 23 provides that an OBR must be made available to a board of inquiry convened under section 45 of the National Defence Act if a determination is made that the public interest in the proper administration of the CAF outweighs in importance the privilege attached to the OBR.

5.7 Annex F of Chapter 6 of A-GA-135-003/AG-001, Airworthiness Investigation Manual, lists the types of recording equipment that can make a recording that satisfies the OBR definition in subsection 22(1) of the Aeronautics Act as well as those that do not satisfy the definition.

Restrictions with Respect to a Communication Record – Section 24

5.8 The term “communication record” is defined in subsection 24(1) of the Aeronautics Act. Subsection 24(2) of the Act provides that a communication record obtained in the course of an investigation of a military-civilian occurrence under Part II of the Act is not to be used against a CAF member or any person referred to in subsection 24(1) in any legal proceedings or, subject to any applicable collective agreement, in any disciplinary proceedings.

Privilege and Restrictions with Respect to a Statement – Section 24.1

5.9 Subsection 24.1(2) of the Aeronautics Act provides that a statement and the identity of the person who made it are privileged and, except as provided in Part II of the Act or as authorized in writing by the person who made the statement, no person, including any person to whom access is provided under this section, may knowingly communicate or permit it to be communicated to any person, or disclose the identity of the person who made it. Subsection 24.1(6) of the Act provides that a statement made to the AIA or an AIA investigator is not to be used against the person who made it in any legal, disciplinary or other proceedings except in a prosecution for perjury or for giving contradictory evidence or a prosecution under section 24.6.

Defence of Privilege, Confidentiality and Restrictions

5.10 The AIA will defend the applicable privilege, confidentiality and restrictions with respect to reports, OBRs, communication records and statements to the full extent of the law.

Not Competent nor Compellable in Court – Section 24.3

5.11 Section 24.3 of the Aeronautics Act provides that, except for proceedings before and investigations by a coroner, neither the AIA nor an AIA investigator is competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for special cause.

Opinion Not Admissible – Section 24.4

5.12 Section 24.4 of the Aeronautics Act provides that an opinion of the AIA or an AIA investigator is not admissible in evidence in any legal, disciplinary or other proceedings. Flight safety and AIA investigation reports set out opinions of the AIA and AIA investigators.

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6. Operating Principles

Conduct of Investigations

6.1 The investigation of all aviation-safety-related occurrences must be conducted by DND employees and CAF members in accordance with the Aeronautics Act, the MAIRs, this DAOD and the instructions, processes and procedures set out in the following A-GA-135 manuals:

  1. A-GA-135-001/AA-001, Flight Safety for the Canadian Armed Forces;
  2. A-GA-135-002/AA-001, Occurrence Investigation Techniques for the Canadian Forces; and
  3. A-GA-135-003/AG-001, Airworthiness Investigation Manual (AIM).

Precedence of MAIRs

6.2 In the event of any conflict between the MAIRs and this DAOD or the A-GA-135 manuals, the MAIRs take precedence.

Prohibition

6.3 It is prohibited for any DND employee or CAF member to use a draft or interim report or any information in such a report, or direct or permit the communication or use of such a report or information, for any administrative, disciplinary or police investigation or prosecution.

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7. Compliance and Consequences

Compliance

7.1 DND employees and CAF members must comply with the Aeronautics Act, the MAIRs, this DAOD and the A-GA-135 manuals. Should clarification of the Act, the MAIRs, this DAOD or the A-GA-135 manuals be required, DND employees and CAF members may seek direction through their channel of communication or chain of command, as appropriate. Managers and military supervisors have the primary responsibility for and means of ensuring the compliance of their DND employees and CAF members with the Act, the MAIRs, this DAOD and the A-GA-135 manuals.

Consequences of Non-Compliance

7.2 DND employees and CAF members are accountable to their respective managers and military supervisors for any failure to comply with the Aeronautics Act, the MAIRs, this DAOD or the A-GA-135 manuals. Non-compliance may have consequences for both the DND and the CAF as institutions, and for DND employees and CAF members as individuals. Suspected non-compliance may be investigated. Managers and military supervisors must take or direct appropriate corrective measures if non-compliance has consequences for the DND or the CAF. The decision of a level one advisor or other senior official to take action or to intervene in a case of non-compliance, other than in respect of a decision under the Code of Service Discipline regarding a CAF member, will depend on the degree of risk based on the impact and likelihood of an adverse outcome resulting from the non-compliance and other circumstances of the case.

7.3 The nature and severity of the consequences resulting from non-compliance should be commensurate with the circumstances of the non-compliance and other relevant circumstances. Consequences of non-compliance may include one or more of the following:

  1. the ordering of the completion of appropriate learning, training or professional development;
  2. the entering of observations in individual performance evaluations;
  3. increased reporting and performance monitoring;
  4. the withdrawal of any authority provided under this DAOD to a DND employee or CAF member;
  5. the reporting of suspected offences to responsible law enforcement agencies;
  6. the application of specific consequences as set out in the Aeronautics Act, other applicable laws, codes of conduct, and DND and CAF policies and instructions;
  7. other administrative action, including the imposition of disciplinary measures, for a DND employee;
  8. other administrative or disciplinary action, or both, for a CAF member; and
  9. the imposition of liability on the part of Her Majesty in right of Canada, DND employees and CAF members.

Note In respect of the compliance of DND employees, see the Treasury Board Framework for the Management of Compliance for additional information.

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8. Responsibilities

Responsibility Table

8.1 The following table identifies the responsibilities associated with this DAOD:

The … Is or are responsible for …
C Air Force
  • approving airworthiness instruments respecting the investigation of aviation-safety-related occurrences.
DFS
  • developing airworthiness instructions respecting the investigation of aviation-safety-related occurrences;
  • providing airworthiness investigation training for flight safety and AIA investigators;
  • ensuring that the A-GA-135 manuals are updated and made readily available to concerned DND employees and CAF members;
  • developing, utilizing and displaying appropriate caveats, restrictions and warnings for flight safety and AIA investigation reports and other products;
  • defending the privilege and restrictions with respect to reports, OBRs, communication records and statements to the full extent of the law; and
  • reporting any non-compliance with the Aeronautics Act, the MAIRs, this DAOD or the A-GA-135 manuals to the C Air Force.
DND employees and CAF members
  • complying with the Aeronautics Act, the MAIRs, this DAOD and the A-GA-135 manuals;
  • seeking direction, assistance and guidance from their respective channel of communication or chain of command, or DFS, if required for clarification of the Aeronautics Act, the MAIRs, this DAOD or the A-GA-135 manuals; and
  • protecting information subject to privilege or restrictions in order to ensure that just culture and open reporting remain cornerstones of the FSP. 

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9. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

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