Drones to the rescue: Legality of innovative drone uses to battle COVID-19

The rapid spread of COVID-19 has drastically changed society, requiring us to minimize human contact to prevent further transmission. Drones are the perfect “front line defenders” in this context, and are among the new and innovative applications of existing technology being deployed to fight COVID-19.

With these new applications of drone technologies, several potential regulatory issues arise. Even though Canada’s regulatory framework was transformed in 2019 with the enactment of the new Part IX of the Canadian Aviation Regulations (CARs), some of the potential applications remain unaddressed by or outside of the current regulatory scheme.

This article examines some of the recent applications of drones in response to COVID-19, and whether they may or may not technically be “legal” within Canada.

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a. Delivery of goods

While delivery-by-drone has been on the agenda for many years, the current public health crisis may just be the catalyst to make it a reality, allowing for contactless delivery of essential goods.

The contactless delivery that drones can facilitate is especially promising in the medical context. Drones have proven to be an effective way to deliver critical medical supplies, samples and other equipment. One drone company has already made its first delivery of medical supplies to the People’s Hospital of Xingchang in Shaoxing. Closer to home, Drone Delivery Canada, a company based out of Toronto, announced on March 25, 2020, that it has reached out to the healthcare industry to offer delivery of medical supplies and samples.

While vehicle and pedestrian traffic is not much of an issue in the deserted streetscape of many cities these days, drones have the added benefit of being able to shortcut across the city skies to promote faster delivery of urgently needed supplies. Canadian companies are paving the way for commercialized, autonomous drone delivery in urban environments. One example is Air Matrix, which builds “millimeter-precise drone highways on a multi-layered grid system, helping high-density cities create a safe, scalable and efficient transportation system.” Air Matrix has already mapped three Canadian cities (Toronto, Ottawa and Montréal) and is accelerating the deployment of its technology in the midst of the COVID-19 public health crisis.

From a legal perspective, in order for drone delivery to become a reality, regulations permitting beyond-visual-line-of-sight (BVLOS) operations will be necessary. Such regulations would permit flight outside of the physical sight of the operator and allow for the autonomous operation of drones. At present, Canada only has specific regulations for the operation of drones within the operator’s visual-line-of-sight (though Transport Canada has indicated the BVLOS regulations can be expected in the not-so-distant future). Additionally, drones (including all attachments to the drone) that weigh more than 25kgs must operate pursuant to a Special Flight Operations Certificate (SFOC) from Transport Canada. Drones and all attached items, whether that be a parcel for delivery or otherwise, would therefore need to weigh less than 25kgs in order to fit within the existing regulatory framework.

The regulatory framework for drones may evolve more quickly in Canada than expected due to the ongoing COVID-19 crisis. According to a recent statement by Air Canada regarding its partnership with Drone Delivery Canada to facilitate cargo delivery, Transport Canada is operating under a “slightly relaxed” regulatory framework to assist in moving drone delivery forward.

b. Spraying disinfectant

Drones have been put to use to provide at-a-distance sanitization to public spaces and surfaces. Research and testing have been carried out to develop best practices for modifying drones to spray disinfectant in areas prone to greater human contact, such as factories, residential areas, hospitals and waste treatment plants.

Equipping a drone with spraying technology would require special permission from Transport Canada by obtaining an SFOC. Currently, the regulations do not contemplate that an operating drone would emit any substance whatsoever. Additionally, environmental regulations and municipal by-laws would likely come into play when determining what chemicals can be sprayed and where they may be sprayed. Given the current circumstances, Transport Canada may be amenable to providing the regulatory means to support this type of technology because of the public good that could result.

c. Broadcasting messages

Governments and police forces in several countries (including Belgium, Spain, France and China) are using drones to convey important messages and reiterate government mandates to citizens. For example, in China, drones have been used to fly banners advising people about how to find out more information about the outbreak and preventing its spread. As well, loudspeakers mounted on drones have been used to help disperse prohibited public gatherings while maintaining a distance from them. A recent article highlighted that police in Nice, France have been using drones equipped with loudspeakers to remind people to maintain a safe distance from others and to abide by the terms of the government confinement order.

As with the other applications for drones already mentioned, visual-line-of-sight and weight requirements apply to drones used for this purpose (along with all other regulatory and legal obligations, such as the necessity to maintain distance from bystanders when the drone is in operation). Generally speaking, using drones to convey important messages and assist in enforcement efforts presents relatively few regulatory concerns and is likely legal in Canada.

d. Thermal readings

While testing people for COVID-19 usually involves direct contact, drones can relieve the need for some close face-to-face transactions. Because a symptom of COVID-19 is fever, drones have been modified to take human temperature readings at a distance. On March 26, Draganfly began working with the Australian Department of Defence to monitor coronavirus-related symptoms, including elevated body temperature.

After the acute stage of the COVID-19 epidemic is over and daily routines resume, temperature testing of individuals in public may become part of Canada’s strategy to rapidly identify illness. While this application for drones can be deployed almost immediately (as the technology exists and the drone regulatory framework likely permits it), drone operations are subject to the overlay of various laws in Canada, including privacy laws (both federal and provincial).

Canadian privacy laws are based in large part on the level of privacy citizens reasonably expect in a given set of circumstances. People today likely do not reasonably expect to have their temperature taken as they walk through a public space, and it may be considered to be an unreasonable intrusion on personal privacy. Consent of the person whose temperature is being taken may be required. This specific issue has never been decided or addressed by the courts.

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