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RUSSELL WANGERSKY: Court time is too precious to waste

Lady Justice. — SaltWire Network

I love the artificial construct of logic almost as much as I love the infinite variety of nature.

I love the idea that, for example, religious philosophers could actually spend time and effort calculating the number of angels that could dance on the head of a pin.

I’m not so sure I like having that kind of argument take valuable court time, especially when, as a result of the Supreme Court of Canada verdict in the Jordan case, judges across this country are being asked to halt trials and stay criminal charges because of pre-trial delay. And many cases are being stayed — not because the evidence isn’t strong, but because it’s taken so long to actually get a case to court.

Court time across the country is at a premium; criminal trials languish and civil trials can take several years to even glimpse a courtroom.

That’s why you have to wonder about the lengths some criminal cases go to — like a case going on now in Simcoe, Ont.

Part of the case involves the utmost seriousness: as a result of a canoeing accident, an eight-year-old was swept over a waterfall and died.

Court time across the country is at a premium; criminal trials languish and civil trials can take several years to even glimpse a courtroom.

The man piloting the canoe, David Sillars, was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 ml of blood, and dangerous operation of a vessel. He was also charged with criminal negligence causing death.

But the first order of business?

A day’s argument and judge’s ruling on whether or not a canoe is a vessel.

The argument isn’t completely frivolous, by the way: both the defence and the prosecution agreed that there was no clear definition of a vessel in sections of the criminal code that Sillars was charged under. (The only definition in the legislation was a section that clearly added a hovercraft in the definition of a vessel.)

If a canoe turned out not to be a vessel, then three-quarters of the criminal charges could simply have disappeared.

Ontario Court of Justice Judge Peter West ended up canvassing everything from law dictionaries to Hansard debate over the framing of the Criminal Code sections involved (from the federal Standing Committee on Justice and Human Rights) to scores of other pieces of legislation where the word “vessel” was used and defined.

There were a myriad of issues — everything right down to whether the definition of “vessel” hinged on whether the watercraft in question was powered by an engine, or whether it was “propelled exclusively by muscular power.”

At one point, the defence argued that including canoes as “vessels” would lead to a bizarre conclusion about swimming pools. Here’s Judge West’s take on that part of the argument: “The defence also argued that if the definition of ‘vessel’ captured all crafts capable of navigation regardless of the means of propulsion and because the Criminal Code applied throughout Canada and not just on navigable waterways then this would criminalize conduct that has no moral culpability. 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 with a (blood-alcohol count) greater than 80 mg alcohol/100 ml blood. In my view this suggestion is completely nonsensical and ridiculous.”

Judge West’s final decision was 9,990 words long, and found that a canoe was a vessel after all.

I realize that sometimes the courts are a matter of technicalities, rather than the last bastion of common sense. And certainly, when a defendant’s life and liberty are at stake, you can understand lawyers doing whatever they can to help their clients.

But I still wonder if that court day couldn’t have been better used.

There has to be a better way.

Recent columns by this author

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Russell Wangersky’s column appears in 36 SaltWire newspapers and websites in Atlantic Canada. He can be reached at — Twitter: @wangersky.

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