Canadian legal history was made last week after an Ontario man, David Sillars, was convicted of impaired operation of a canoe .
The case, which involved the death of an eight-year-old boy after the canoe tipped, required the Ontario Court of Justice to determine whether a canoe counts under Canada’s impaired driving laws. Justice Peter West had to issue a special ruling on this aspect of the case, and he concluded: yes, canoes count.
The decision is not binding on other courts, as it was made in Ontario’s lower court. But for now it stands as the best guide to how Canada’s impaired driving laws apply to watercraft, and it gives police a much stronger legal basis to charge paddlers.
There are many absurd scenarios and unanswered questions that flow from this decision. Recognizing this, West tried to address some of them in his ruling. Here are a few of the major issues:
If a canoe counts under impaired driving laws, what else does?
Parliament is to blame for this conundrum. It passed legislation in 1961 to include “vessels” under our impaired driving laws, but it never defined what a vessel is or whether it needs to be motorized.
The justice department tried to clear this up in 2017 with legislation specifying that vessels exclude anything “powered exclusively by means of muscular power.” But after protests from safe boating advocates, MPs removed that clause from the bill — and then declined to replace it with anything.
“It would have been a simple task for Parliament to clearly indicate in (the Criminal Code) a comprehensive and inclusive definition of the term ‘vessel,’ yet they did not,” West wrote with evident annoyance.
In his decision, West concluded that if it’s capable of navigating a waterway, it’s a vessel. This would mean canoes, kayaks, rowboats, paddleboats, and probably even stand-up paddleboards all count.
The defence team raised the example of an inflatable dinghy; West concluded it would count.
“Where the inflatable dinghy was being used as a ‘vessel’ to navigate down the lake or river or on a territorial waterway and the operator was impaired… a police officer would have to determine whether it was appropriate to charge that person considering the totality of the circumstances,” he wrote.
Does a surfboard count? Does a pool noodle count? Probably not, but you can see how a creative prosecutor could try to make the case. Ultimately, the lack of clarity from Parliament means the only certain answer is: it depends what police and prosecutors think they can get a judge to agree with.
Could you be charged in your backyard pool?
Sillars’ defence team raised the backyard pool scenario as an absurd consequence of allowing an expansive definition of vessels. But West rejected it, pointing to the fact he was partly relying on definitions contained in Canada’s marine regulations.
“The example provided was a person floating in an inflatable dinghy in a backyard pool after consuming more than three beers would be criminally liable for operating a vessel (while impaired),” West wrote. “In my view this suggestion is completely nonsensical and ridiculous. The Canada Shipping Act, 2001, would not define an inflatable dinghy being used in a backyard swimming pool or even in front of a cottage as a ‘vessel.'”
It would have to be used for the purpose of navigating along a waterway for the charge to count, he concluded.
What if you’re in the middle of the canoe?
The defence team also pointed out that unlike a motor vehicle or boat, there can be multiple people “operating” (i.e., paddling) a canoe at any given time. But West ruled that anyone paddling the canoe while impaired could potentially be charged, regardless of where they were sitting.
“The defence referred to the possibility of a person sitting in the middle of the canoe who is impaired and paddling,” he wrote. “Again, it would be up to the police officer investigating to determine which of the persons in the canoe should be charged, having regard to the totality of the circumstances involved.”
What does the science say about impaired canoeing?
In a separate ruling on the admissibility of the breath tests, West acknowledged there doesn’t appear to be any studies directly relating to impairment and paddling. He instead relied on evidence that one’s ability to manage complex tasks is affected at a certain level of impairment, regardless if you’re driving or paddling.
“The fact there were or were not studies concerning the impact of alcohol on a person’s ability to operate a canoe does not diminish or minimize the studies respecting impairment by alcohol, which have generally assessed alcohol’s ability to impair a person’s intellectual faculties relating to decision making, divided attention, vigilance, risk assessment, choice reaction time, vision or where the person is faced with sudden or unexpected tasks or events or emergencies,” he wrote.
Who will the police target?
This is the key question now. Impaired operation charges are a powerful enforcement tool. The penalties for impaired boating are the same as for impaired driving; a conviction comes with mandatory minimum fines, jail time in some cases, and a permanent criminal record. It can get someone deported if they don’t have citizenship. That’s all on top of the immediate provincial sanctions, such as a suspended driver’s licence.
The Sillars case was a particularly tragic one that involved the death of a young boy. But police are able to lay the impaired operation charge on any paddler shown to be impaired, regardless if there’s a child involved, and regardless if anyone gets hurt. It’s the act of paddling itself that is illegal under this charge. That’s why the justice department had suggested criminal negligence charges are more appropriate for impaired paddlers.
Now, it will be up to the discretion of police and prosecutors to decide which cases to take to court.
“There are still lots of courts this can go to, so we still have to be careful with the messaging to our officers,” said Sgt. Dave Moffatt, the provincial marine co-ordinator for the Ontario Provincial Police, referring to the fact the decision isn’t a binding precedent on other judges.
“However, if you have someone that’s impaired in a canoe in a busy channel and there could be injury, or someone’s life can be taken away, I think the messaging is very clear that that’s an appropriate charge. It’s up to the officer’s discretion on if they’re going to lay it, and then also the court jurisdictions that would have to support them on that charge.”
• Email: [email protected] | Twitter: btaplatt
Copyright Postmedia Network Inc., 2019
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In a case that made Canadian legal history, Ontario man convicted of impaired operation of a canoe
