WHEN DOES A CASE OF pilot error become a case for the criminal courts? Mark Tayfel, a Canadian pilot, has been tried for criminal negligence causing death in Manitoba and, at this writing, was awaiting a verdict by the justice who heard three days of testimony. His aircraft crashed into a Winnipeg street intersection after running out of fuel during a second attempt at an IFR approach.

The criminalization of "pilot error" mishaps has troubled air safety investigators for some time now because aviators, fearing prosecution as criminals, are "lawyering up" and not talking to accident investigators. Until the late 1990s, pilot error cases usually ended up in civil courts as is the circumstance with most accidents. The concept of criminalizing operator error seems to be gaining popularity with prosecutors around the world, as was underscored when two ExcelAire pilots were indicted after surviving an inflight collision with a Boeing 737 over the Amazon in 2006.

In any event, here's how Tayfel got into trouble. The information that follows comes from Canada's Transportation Safety Board investigation. Once you've considered the facts, you decide if the matter should be in criminal or civil court. We'll let you know what the justice says as soon as she releases her findings.

The 3,000-hour, air-transport-rated pilot reported in at the Winnipeg airport at 0420 hours on June 11, 2002. His airplane, a Piper Navajo Chieftain PA-31-350, had been fueled at Keystone Air Service's base at Swan River, Manitoba, the previous night and was then positioned at Winnipeg by another company pilot. The positioning flight took one hour and 38 minutes. No fuel was added at Winnipeg.

The day's mission was an IFR round trip to a fishing lodge at Gunisao Lake -- a place without fuel services. The pilot checked the weather and noted that instrument meteorological conditions existed at Winnipeg and for part of his route. He filed IFR flight plans from Winnipeg to Gunisao Lake and return. The alternate airport filed for both flights was Island Lake, located about 258 nm north of Winnipeg. He completed preflight and run-up checks of the aircraft and noted that the total fuel was approximately three-quarters of the total capacity of the aircraft.

The pilot accepted seven passengers with baggage for the flight to Gunisao Lake; however, he did not complete weight and balance or fuel calculations on the company's operational flight plan and load control form. Later he would tell TSB investigators that he made a mental estimate that there was sufficient fuel to complete the round-trip to Gunisao Lake based on his belief that a full load of fuel would provide approximately five hours of flight time. He estimated that the three-quarter full tanks would allow him to return to Winnipeg with a fuel reserve of 50 minutes. Therefore, he did not top off before takeoff.

The pilot had been flying for 12 years and worked for Keystone for the previous 16 months flying both scheduled and charter flights. He had flown many similar flights into Gunisao Lake and was familiar with the routing and flight planning requirements of the trip. And, of course, he was aware that 100LL aviation gasoline was not available at Gunisao Lake.

The pilot's estimated flight time from Winnipeg to Gunisao Lake was one hour, 20 minutes. As it turned out, the actual flight time was approximately one hour and 31 minutes.

Six passengers and 450 pounds of baggage were loaded for the return flight to Winnipeg. The pilot made no further weight and balance or fuel calculations on the operational flight plan and load control form. He estimated the flight time from Gunisao Lake to Winnipeg on his operational flight plan as one hour and 20 minutes. Again, the actual time for the leg was about one hour and 30 minutes.

In any event, when the flight arrived in the Winnipeg area the weather was down to 300 feet overcast with one-mile visibility in light drizzle and mist. By this time, the pilot knew he had fuel problems. As he maneuvered for approach, the right engine fuel low-pressure light illuminated and the right engine sputtered. He selected fuel crossfeed. The fuel low-pressure light extinguished and the right engine smoothed out. The pilot did not tell controllers he was having problems.