Canadian Lawyer

RegIoNal wRap-up Model aircraft club in legal dogfight a legal dogfight is brewing in the skies over farmland in B.C.'s interior with a model aircraft club claiming it is entitled to operate non-scheduled flights from designated runways on agricultural reserve lands as its model aircraft should be considered within the legal definition of a user. The case created a buzz as local farmers claim the model aircraft noise was scaring their livestock, in some cases literally to death. Kelowna lawyer Barry Williamson admits it is one of his more usual cases. "It is getting there," says Williamson, who acted for the municipality and is now preparing to tackle the club's appeal after it lost its case in October at the B.C. Supreme Court. But, it is also launching a second court challenge claiming aeronautics is the legal domain of the federal government not local authorities. The issue landed in Supreme Court when the Kelowna Ogopogo Radio Controllers Association leased approximately three hectares of land in the Lake Country District municipality from cRoWn successfuLLy aPPeaLs LaWyeR's jaiL teRM T he British Columbia Court of Appeal has allowed a Crown appeal of the sentencing of Vernon, B.C.'s william Mastop, the first lawyer in Canadian history to plead guilty to participating in the illicit activities of an organized crime group. Mastop, 46, was originally sentenced to one year in prison after providing support to a gang known as the Greeks but the Crown successfully sought to have the sentence overturned and a 2.5-year prison term imposed. The appeal justices ruled the original trial judge erred by "under-emphasizing the seriousness of Mr. Mastop's actions." In her decision, Justice Sunni Stromberg-Stein wrote: "The sentencing judge described Mr. Mastop as acting as a conduit of information for the criminal organization but considered his role to be 'peripheral' and not 'directly integrated into furthering the organization's criminal objective.'" The sentencing judge also felt Mastop's actions were related to a lack of sensible judgment and his conduct was unprofessional rather than criminal. In sentencing, he considered Mastop's loss of career, his livelihood, and his standing in the community as a result of his actions. Stromberg-Stein said she agreed with the Crown's position that lawyers are duty bound to protect the administration of justice within their community. She noted Mastop was "uniquely positioned" as a criminal lawyer in the community to assist the Greeks in their drug trafficking, enforcement, and discipline activities which provided a level of intelligence to the organization. She said Mastop "deliberately undermined the administration of justice" and his offence deserved "a significant deterrent sentence." "I conclude the judge erred in principle by focusing on the consequences or effect of Mr. Mastop's actions thereby diminishing the seriousness of his actions and the offence. This focus wrongly placed the crux of the offence; that is Mr. Mastop used his position as a respected, trusted lawyer to obtain information not otherwise available and passed it on to the criminal organization. The sentence of one year is demonstrably unfit as it does not recognize the gravity of the offence and the degree of responsibility of the offender," said Stromberg-Stein when handing down the 2.5-year sentence. — JS Kathleen Holt, who owns 20 hectares within the agricultural land reserve (ALR). The municipality's zoning for agricultural land parallels that found in the ALR Commission Act and regulations The regulations. act allows for an "unpaved airstrip and helipad" to be located on agricultural land for unscheduled flights. The club mowed an area of Holt's land as a runway and began launching its models. "Once they started using this plot of land complaints started coming in," says Williamson. District of Lake Country Mayor James Baker said negotiations to restrict the club's activities broke down resulting in court action. Rather than looking at a noise infraction, the municipality asked the court to rule on a question of law in the form of a special case and whether the club use of the airstrip contravened municipal bylaws. "The core of the Club's argument is there is no definition of airstrip, or aircraft, with the bylaw and thus the bylaw should be given a broad interpretation," ruled Justice F.W. Cole. A broad definition could permit model aircraft to launch off the runway. The club argued aircraft included model aircraft while the municipality argued aircraft meant some kind of passenger craft. The judge found fault with both arguments: "Most people today are fully aware of the existence of drones." Instead, he reverted to a person-on-the-street view of an airstrip, which he felt was included in the act to allow for agriculturalrelated flights of full-scale craft. "Most people would not think that model aircraft require an airstrip," he said. Cole reasoned an airstrip can be put on the agricultural land to facilitate agricultural uses, not recreational. He said social activities could take place on ARLs, such as weddings, barn dances, and music festivals, if they were related to fostering a sense of community among farmers. However, a difference existed when a license is granted to operate on a regular basis. The justice issued an injunction against the club's activities, but delayed its implementation until the club could launch a constitutional challenge. — JEAN SoRENSEN jean_sorensen@telus.net PrOFESSIOnaL DIrECTOry Supreme Court of Canada Counsel and Agency Services D. Lynne Watt Henry S. Brown, QC Graham Ragan Guy Régimbald Matthew Estabrooks With the assistance of: Brian A. Crane, QC Eduard J. Van Bemmel, Law Clerk 160 Elgin Street Suite 2600 Ottawa Ontario K1P 1C3 T 613-233-1781 montréal ottawa toronto hamilton www.CANADIAN ntitled-2 1 waterloo region calgary vancouver L a w ye r m a g . c o m beijing moscow Jan uary london 2014 13 13-01-14 2:30 PM

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