Drone Regulation in Canada: Proposed Rules for BVLOS and Medium-Size Drones
In the climax of Dave Eggers’s 2013 dystopian novel, The Circle, protagonist Mae Holland, who is employed at the world’s most powerful tech company, The Circle (a malevolent combination of all of Big Tech), deploys a phalanx of drones against her ex-boyfriend Mercer to relentlessly record and livestream his movements and interactions. Mercer has been critical of the invasive surveillance and data-gathering practices of The Circle. These drones are equipped with high-resolution cameras and their footage is broadcast in real-time to The Circle’s global audience, turning Mercer’s life into a public spectacle. Mercer eventually loses his mind and fatally crashes his truck in a bid to flee the drones.
The kind of drones in that climax, known today as beyond visual line-of-sight (“BVLOS”) drones, are mostly used in the real world for rather benign and beneficial purposes. Yet, they are not beyond legal regulation chiefly for preventive reasons.
Canada quietly became one of the first countries globally to introduce rules for BVLOS and medium-size drone operations. The proposed amendments to the Canadian Aviation Regulations (“CARs”), announced on June 24, lay down new requirements to address the increased risks of:
- medium drones between 25 and 150 kgs flying within visual line-of-sight (“VLOS”) and over people in both controlled and uncontrolled airspace; and
- drones that weigh between 250 grams and 150 kgs flying beyond line-of-sight in unpopulated and sparsely populated areas, below 400 feet above ground level and in uncontrolled airspace.
Neither operation requires a Special Flight Operation Certificate (“SFOC”) anymore. SFOC is a permission – based on a case-by-case assessment – from Transport Canada for specific drone flight operations under special conditions.
Transport Canada groups the new requirements into “3 Ps”: the Pilot (pilot training and certification), the Product (aircraft and supporting systems) and the Procedures (operational rules). The three chief objectives of the amendments, according to Transport Canada, are:
- regulatory predictability, economic growth and innovation that allow the Canadian drone industry to remain competitive in the global drone market while allowing the safe use and testing of drones in lower-risk environments and ensuring a relevant knowledge base for pilots;
- safety risk mitigation for other airspace users and people on the ground while permitting the safe use and testing of drones in lower-risk environments; and
- introduction of new and updated fees for services related to drone activities. These fees aim to recover a share of the costs of Transport Canada providing services to those who benefit from the activities.
The amendments will have a staggered implementation. Certain provisions will be effective on publication in the Canada Gazette, Part II, such as the registrability of drones, submission of declarations and sitting for new pilot exams. Others will be effective April 1, 2025, namely carrying out operations with medium-size and BVLOS drones in lower-risk environments.
The 90-day consultation period ends on September 22, 2023.
In January 2019, the federal government, under Part IX (Remotely Piloted Aircraft Systems) of the CARs, published the first set of rules for VLOS drones that weigh up to and including 25 kg. The rules, which came into force on June 1, 2019, formed a baseline for future regulatory projects including the current proposed amendments, addressed safety concerns and created a flexible and predictable environment for small drones flown within the operator’s visual range.
The CARs do not make a distinction between recreational and non-recreational use (the former are likely to be “basic” operators and the latter “advanced”). They apply irrespective of whether drones are flown for research, recreation, business or commercial use. Transport Canada reports that nearly 90,000 drones have been registered in Canada to date and this number grows daily.
Subsequently, Transport Canada launched a secure Drone Management Portal for registering, deregistering, transferring ownership and viewing ownership certificates of drones, taking online pilot exams and to apply for and access pilot certificates.
The Purpose of Regulation
Transport Canada expressly declares that “drones are aircraft – which makes you a pilot.” The logic behind clubbing this piece of aerial equipment with large aircraft has been called into question in the past, and appositely so. The regulations, in general, beg the question whether Transport Canada is the appropriate authority to regulate drones’ movements in the uncontrolled airspace, i.e., airspace where no air traffic control is provided and is closest to the ground level.
BVLOS drones are not controlled within the operator’s direct visual range. Their movements can be monitored with a visual aid like a video feed or be programmed for flight, including to manoeuvre obstacles and return to base. To this end, easing the approval process by eliminating the need for a SFOC (subject to specific thresholds for altitude, weight and venue) is a step in the right direction for both the users and the government.
However, all pilots under the proposed amendments must undergo an updated pilot certification regime and other new operational procedures and requirements. It seems to be regulatory overreach that these requirements also apply to recreational users who fly drones at low altitudes and away from populated areas and away from aerodromes. Why govern such low-risk leisure activity with a bureaucratic hand?
One way to enforce safe recreational use of drones without encumbering the users with paperwork or process is to make remote ID technology mandatory. This would improve the users’ awareness of the airspace and enable authorities to identify and monitor recreational drones in real-time. Stringent regulations on geofencing – a geographical boundary-defining function that ensures the equipment does not fly beyond the boundaries – would go a long way in preempting untoward security incidents involving recreational drones. Industry associations have made proposals along these lines in the past and countries around the world are in the process of codifying these into law. Canada would do well to do the same, considering that most drone users in the country are recreational.