A Kelowna man has been found guilty of operating a drone that interfered with a helicopter that was dousing the McDougall Creek wildfire in 2023.
Derek Leippi was deemed guilty by Judge C. Heinrichs in Kelowna Provincial Court on Monday, Feb. 9, about two and a half years after the incident.
On Aug. 27, 2023, Leippi was in his boat and operating a miniature drone just off the shore of Okanagan Lake Resort. Leippi was using the drone to take video of the wildfire with a focus on the damage to the resort from the blaze.
Although there was an active fire on the shore, Leippi saw helicopters bucketing water in the area that he was located. Because of this, he lowered his drone to just above water level “so that it would not disturb the helicopter.”
Two conservation officers named Plamondon and Beck were patrolling the area around Okanagan Lake Resort, mostly to ensure no one was trying to gain access as it was under an evacuation order. They spotted Leippi and asked him to leave the area. Leippi accepted and moved his boat.
Shortly after, the helicopter pilot saw the drone still in the air, above the water and attempted to douse it with a small bucket of water. After two unsuccessful attempts, the pilot went on to get a full bucket and to process firefighting efforts.
Plamondon and Beck were alerted about the drone and watched it return to Leippi’s boat and fly into his hand. The officers approached Leippi again, this time seizing the device, the controller, and his cell phone.
Throughout the process, Leippi was “cooperative and respectful.”
Three issues in determination
Judge Heinrichs stated he had three main issues to view from the charge in relation to his decision.
First, Heinrichs came to the conclusion that it is a regulatory offence, rather than a criminal one.
“It is clear that flying a drone is not an inherently wrongful conduct,” said Heinrichs. “However, in order to protect the public, and in the public interest, flying a drone in circumstances that interferes with firefighting could be conduct that the regulatory act attempts to prevent.”
After that decision, it had to be determined what kind of regulatory offence it is. Heinrichs found Leippi’s actions to be a “strict liability offence,” meaning Crown is only required to prove that the act occurred.
“Mr. Leippi has an opportunity to avoid liability if he had a mistaken belief in facts and took all reasonable steps not to cause the harm resulting from his act,” said Heinrichs.
Lastly, the judge determined that the drone did interfere with fire control.
Brett Mayden, a helicopter pilot for 36 years and with “significant experience” fighting wildfires was the pilot that late August day. He was collecting water in the area of the Okanagan Lake Resort and flying inland around four kilometres to douse the blaze. Each round-trip took around six minutes and he had already been flying for five or six hours.
Mayden said curious people in boats weren’t unusual and if boats were too close, he would usually move to a different location. He added that once before he saw a drone while on duty and did the same action, he tried to bucket the drone down. However, the first time he experienced this, he saw an officer’s boat and through the drone might belong to him.
Because of Mayden’s words, Heinrichs said, “if anything takes your mind off the task-at-hand, it is a distraction.” In the case of Aug. 27, Mayden said he found Leippi’s drone irritating.
“For those moments when Mr. Mayden was annoyed by the drone, his focus was no longer on the firefighting efforts,” said Heinrichs. “He took a few minutes to attempt to eliminate the drone, due to a potential risk to the helicopter, which prevented him from focusing on the firefighting work. During the time he was attempting to eliminate the drone, he could have been halfway back to the fire he was helping to suppress.”
“I conclude that the presence of the drone, operated by Mr. Leippi, interfered with the fire control efforts being carried out by Mr. Mayden’s operation of the helicopter,” Heinrichs added.
Not aware of active firefighting?
Leippi testified that he knew of the West Kelowna fire and was present when it started but was out of town for a few days between the start of the blaze and the incident. The damages to Okanagan Lake Resort drew Leippi’s interest.
Leippi stated he believed the wildfire was no longer active around the resort, as he did not see fire or smoke in the area and did not initially see a helicopter. Heinrichs did not accept the claim.
“A reasonable person would have made inquiries about the status of the fire and whether there was ongoing firefighting activity,” stated Heinrichs. “Information was readily available on the news and online.”
According to Leippi, the helicopter hovered above his boat, which he felt “was a direct attempt to intimidate him and get him to leave.” Mayden denied but admitted he operated the helicopter from one side, making his visibility somewhat restricted.
“Certainly, at that point, Mr. Leippi was aware that there was a helicopter with a 200 foot-line and a bucket attached, scooping up water from the lake,” said Heinrichs. “A reasonable person would put those pieces together and understand that neither his boat nor the drone should be in the area, lest they come in the way of the forest fire efforts.”
Leippi also received a formal notice of firefighting operations the first time Plamondon and Beck spoke with him. Leippi did not advise them that his drone was in the air and left it in the air while he moved his boat as directed.
Leippi added he didn’t want to interfere with the helicopter and that’s why he kept the drone stationary, hovering above the lake.
“This was not sufficient to prevent the harm,” said Heinrichs. “The pilot was none-the-less distracted by the drone, causing the interference.”
Heinrichs didn’t accept Leippi’s “mistaken belief” and didn’t take the reasonable steps to avoid harm, adding that he should have immediately moved the drone after the first visit from the conservation officers.
Leippi will be sentenced on Tuesday, Feb. 24.
According to the Conservation Office Service, the maximum penalty for interfering with fire control is a fine not exceeding $100,000, imprisonment for not more than one year, or both.
The decision can be found here.