Can police charge you with impaired driving if you drunkenly drift down a river on a raft or canoe?

In April 2017, Ontario Provincial Police laid impaired driving charges against a 37-year-old man (David Sillars) who was allegedly drunk and tipped a canoe on the Muskoka River near Bracebridge.  An eight-year-old boy who was in the canoe was swept over a nearby waterfall. Emergency crews tried CPR, and took the boy to the hospital, but he later died of his injuries.

Here are some links to a couple of the news articles around this incident: https://nationalpost.com/news/politics/canada-set-to-remove-drunk-canoeing-as-an-impaired-driving-offence;

https://globalnews.ca/news/3365913/boy-8-dies-after-canoe-capsizes-near-bracebridge/;

https://globalnews.ca/news/4569883/toronto-man-on-trial-for-impaired-operation-of-a-canoe-causing-childs-death/

The impaired driving legislation that went before Parliament in September-October 2017 sought changes to the definition of a vessel so that it “does not include a vessel that is propelled exclusively by means of muscular power.”  That didn’t sit well with the Canadian Safe Boating Council, who testified before the House of Commons committee studying the bill. This meant canoes and kayaks and other “vessels” propelled exclusively by muscular power would not be considered as “vessels” under the Criminal Code. During the Justice Committee hearings, a number of different agencies, including the Canadian Safe Boating Council, made submissions against this exclusion. The proposed definition excluding “vessels” propelled exclusively by muscular power was negatively reflected in a number of media reports provided by the Crown. Statistics were provided in the CSBC’s submissions, which reflected the increase in the number of non-motorized vessels propelled exclusively by muscular power. Ultimately, the exclusion of “vessels” exclusively propelled by muscular power was removed from the final draft of the definition of “vessel,” which was presented to Parliament for ratification.

Fast forward to this month, R. v. Sillars 2018 ONCJ 816. 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. One of the key issues raised by both counsel respecting the first three charges was whether a canoe is included in the term “vessel” contained in Part VIII — Offences Against the Person and Reputation. Both counsel were in agreement that s. 214 CC does not provide a comprehensive or complete definition of “vessel;” in fact, it does not provide any definition at all. It would have been a simple task for Parliament to clearly indicate in s. 214 a comprehensive and inclusive definition of the term, “vessel,” yet it did not (the definition does include a “hovercraft”).

The case is an interesting read for someone that wishes to know more on the judge’s reasoning, but in essence the judge said at para. 31:

It is my view, the danger of harm is equally present whether a person is operating a canoe or a motor boat with a 5 hp. motor or a 150 hp. motor and their ability to do so is impaired by alcohol, however slight. Operating a canoe while impaired is sufficiently morally culpable to warrant the stigma of a criminal sanction. The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

It was the judge’s finding that the term “vessel” contained in s. 253(1)(a), s. 253(1)(b), and s. 249(1)(b) CC includes a canoe. At para. 60:

Consequently, for all of the reasons set out in these reasons 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.”

“…any kind of activity involving the use of a vessel, including those propelled exclusively by muscular power, is inherently dangerous given the activity is on water, where the depth of the water is usually greater than a person’s height and the proficiency of members of the public respecting their ability to swim is considerably varied” (Sillars, at para. 48).

“…Certainly the purpose of the Criminal Code offences being considered here is to protect members of the public travelling on Canada’s waterways from harm, the operators themselves, passengers in the “vessel,” other operators of “vessels,” with or without passengers and anyone providing assistance when an emergency occurs as a result of the consumption of alcohol or drugs or both” (Sillars, at para. 57).

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