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Canada: Man gets lower fine, in part because pilot did not lose control

In a case which may have Canadian implications for laser users’ defense, a judge reduced the fine for an Edmonton man charged with creating a hazard to aviation safety.

Provincial Judge Paul Sully said the August 19 2009 incident was "not as serious” as the prosecutor described, since the pilot did not lose control, but instead was "momentarily blinded from viewing his instruments [and] was able to complete his orbits.” In addition, the judge noted that the pilot was familiar with the dangers of laser light.

Judge Sully also rejected the prosecution’s notion that the man should have culpability: “The offender had a momentary loss of common sense which resulted from his failure to recognize the high standard of care needed when handling a laser.”

Background of the case

38-year-old Alvin Bautista had originally been charged on two counts:
  • Count 1 was a violation of section 7.41(1) of the Aeronautics Act, intentional “...behaviour that endangers the safety or security of an aircraft in flight or of the persons on board an aircraft in flight....” Maximum penalty is a fine of $100,000 and 5 years in prison.
  • Count 2 was a violation of section 7.3(3) of the Aeronautics Act (also section 601.20 of the Canadian Aviation Regulations), “project[ing] a bright light source ... to create a hazard to aviation safety or cause damage to an aircraft or injury to persons on board the aircraft.” Maximum penalty is a $5,000 fine.
Count 1 was dismissed April 1 2010 by Judge Sully because there was no intentional endangering behavior. On June 23 2010, Bautista was found guilty of Count 2.

Sentencing considerations

For the sentencing phase of Count 2, the prosecutor wanted a fine of $2500 and forfeiture of the laser. Bautista’s lawyer, Lloyd Nelson, sought dismissal of the charge.

A key fact, not disputed by the prosecution, was that Bautista had been testing his son’s laser by aiming it at a tree. The laser light went through the tree leaves and illuminated an Edmonton Police Service helicopter approximately 4 km (2.5 miles) away. The helicopter then flew towards the laser light to determine the source. It took the pilot about one minute to fly to the source; during the first 45 seconds of this flight, the helicopter “was struck on and off with the light from the laser.”

Bautista did not know at any time that there was a helicopter in the area. When stopped by police on the ground, he thought he had committed a traffic offense. He immediately admitted having used the laser and turned it over to police.

Nelson argued that his client’s case was different from other Canadian laser incidents where aircraft were deliberately targeted. Nelson said Bautista “knew the seriousness of the prohibited conduct [his father was a pilot and he knew about laser hazards] but he ‘unknowingly’ committed the offense” since he was unaware of the laser light going through the tree onto an unseen helicopter. Nelson said “the circumstances of the present case would not repeat themselves for another 100 years or so.”

The prosecution claimed there was damage: “the aircraft was distracted from its regular duties.... the pilot momentarily lost control of the aircraft.” The judge disputed this: “[a]t no time did the pilot lose control of the aircraft.... the pilot immediately pursued the source of the laser.”

Although the judge did not specifically mention the pilot’s actions, Sully may have felt the pilot brought on some of the hits since 1) Bautista was scanning onto a tree without knowing what was behind it and 2) the pilot flew in a straight line towards the laser.


On February 18 2011, Judge Sully handed down his sentencing decision: a fine of $500 plus forfeiture of the laser. The fine was not specifically to deter the offender -- the judge felt Bautista would not do it again -- but as a “need for general deterrence” in order “to make the public aware of the potential consequences of a laser of aircrafts.”

From court records, and a telephone interview with lawyer Lloyd Nelson on March 21 2011 by LaserPointerSafety.com. For more details see an article in the Edmonton Sun (earlier story here) and commentary in a law firm newsletter article written by Carlos P. Martins of Bersenas Jacobsen Chouest Thomson Blackburn LLP. The full text of the judge’s sentencing decision in R. v. Bautista, 2011 ABPC 59 is online here, and is in a PDF file that can be found on the Files and downloads page.