Criminal Law

Groundbreaking impaired canoeing ruling a warning to operators

By Peter Small, AdvocateDaily.com Contributor

Canada’s first conviction for impaired canoeing will likely lead to more charges against operators of human-powered watercraft, says Ottawa criminal lawyer Céline Dostaler.

“Now the police have clear direction from the court that says if it’s muscle-powered on the waterways and somebody is impaired, they can charge the individual,” Dostaler, founder of Céline Dostaler Professional Corporation, tells AdvocateDaily.com.

Justice Peter West of the Ontario Court of Justice convicted a Toronto man — of dangerous operation of a vessel causing death, criminal negligence causing death, impaired operation of a vessel causing death, operating a vessel with over 80 mg of alcohol in 100 ml blood causing death— after a canoe he was paddling tipped and resulted in the death of an 8-year-old boy who was on board.

The defendant’s decision in April 2017 to canoe with the child in the turbulent, frigid Muskoka River toward a yellow warning barrier near steep waterfalls was a “‘marked and substantial’ departure from the conduct of a reasonable, prudent person in the circumstances,” West wrote in his decision. “It showed a wanton and reckless disregard for the life and safety” of the boy.

This is the first time that alcohol and marijuana consumption charges have been prosecuted against a canoeist, the judge noted.

The defendant is to be sentenced in October. The Crown is asking for six to eight years in prison, while the defence is arguing for two years, reports Global News.

Canadian police and Crowns have been reluctant to press impaired charges against canoeists and other operators of muscle-propelled watercraft, largely because it was unclear that the word “vessel” in the Criminal Code included non-motorized devices, Dostaler says.

“Some officers have charged individuals, but it’s never gone through the court system,” says Dostaler, who has defended numerous impaired driving cases.

The boy’s “tragic drowning” is likely what brought this accident to trial, she says.

Of key importance is that the judge, in a mid-trial ruling, clarified that the term “vessel” in the Criminal Code does include non-motorized watercraft, Dostaler says.

The judge reviewed several pieces of marine-related legislation — including the Canada Shipping Act and the Navigation Protection Act — to determine the legal definition of a vessel.

The defence argued that vessel is commonly understood to mean a boat that is larger than a canoe and requires non-muscular propulsion. They submitted that its definition in other federal laws are unrelated to Criminal Code offences and therefore should have no application.

The judge disagreed, noting that a Parliamentary committee recently considered it, but decided against specifically excluding human-powered watercraft from Criminal Code offences.

“It is my view Parliament intended to include vessels propelled exclusively by muscular power, including canoes, in the Criminal Code offences of impaired operation of a ‘vessel,’ operating a ‘vessel’ with greater than 80 mg alcohol/100 ml of blood and dangerous operation of a ‘vessel,’” West wrote.

Dostaler says the ruling means that for impairment-related criminal charges, the term vessel applies to canoes, kayaks, dinghies and even paddleboards. However, she adds that users can only be charged if they are on public waterways.

The defence argued that if human-powered watercraft were caught by the Criminal Code, people could be charged with operating a vessel over 80 if they consumed more than three beers and were paddling an inflatable dinghy in their backyard pool, she says.

But the judge called this suggestion “completely nonsensical and ridiculous.”

Dostaler says the case breaks new ground in providing a clear definition of a vessel for purposes of criminal impairment offences.

Canadian police now have increased power to lay such charges, and we are likely to see more of them laid next summer, she says.

“At least we have clear direction now that anybody on a waterway with anything that can be muscle-powered could face charges if they are impaired,” she says.

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