With the weather quickly heating up in Northern Ontario, the idyllic lake days of summer are around the corner. Paddlers and boating enthusiasts alike should take note that motorized or not, large or small, watercraft can carry people into serious danger. Whether you paddle a canoe or kayak, or a larger craft with a motor and room for a crowd, you take on responsibility for the lives of yourself and any passengers, and possibly others on the water. If your ability to operate a vessel, yes even a canoe, is impaired to any degree by alcohol and/or drugs, you may be charged with Impaired Operation, pursuant to Section 320.14(1)(a) of the Criminal Code of Canada.
In R v. Sillars, 2022 ONCA 510, the Court of Appeal for Ontario upheld the lower court’s decision, finding that canoes are “vessels,” and are therefore subject to the Criminal Code of Canada. Following a tragic sequence of events, the accused, David Sillars, became the first person in Canada to be convicted of Impaired Operation of a canoe.
On April 7, 2017, David Sillars was visiting a friend’s cottage on the Muskoka River with his then-girlfriend and her two sons, aged eight and six. The weather was cold and the roads were covered in slush and ice. The river was running high. The water was bitter cold and turbulent. Thomas, an eight-year-old boy, was an inexperienced swimmer, and wanted Mr. Sillars to take him canoeing. Mr. Sillars, an experienced canoeist, wanted to teach Thomas how to paddle.
Prior to the canoe trip, Mr. Sillars was observed by guests at the cottage to have consumed alcohol and marijuana. The owner of the cottage and another individual cautioned Mr. Sillars not to go, as the conditions were too dangerous. Nevertheless, with the mother’s permission, the accused and Thomas boarded the canoe. As the two paddled towards a yellow floating barrier of buoys, to retrieve a blue bucket in the water, the canoe tipped over. David Sillars swam to shore and was brought to the hospital to treat hypothermia. Thomas, however, was found by police down the river, with no vital signs. At the hospital, a sample of David Sillars’s blood was found to contain 128 mg of alcohol per 100 ml of blood.
David Sillars was charged with Impaired Operation of a Vessel Causing Death, Operating a Vessel with Over 80 mg alcohol/100ml blood Causing Death, Dangerous Operation of a Vessel Causing Death and Criminal Negligence Causing Death.
Faced with the surprising and tragic facts of this case, the courts had to provide an answer for an unprecedented legal question: whether muscle-powered water vessels are subject to the same laws as motor vehicles.
Justice West of the Ontario Court of Justice determined that a canoe is considered a “vessel” under the Criminal Code of Canada. At paragraph 108, Justice West found that “a ‘vessel’ included a canoe or any other ‘vessel’ powered exclusively by muscular power where it is used for navigation or transportation on inland or territorial waterways, [and that] canoeing is an inherently dangerous activity.”
Because an accused must not be subject to multiple convictions for the same conduct, the trial judge convicted Mr. Sillars of Impaired Operation of a Vessel Causing Death, and Criminal Negligence Causing Death. David Sillars was sentenced to six years of incarceration.
The Court of Appeal for Ontario dismissed Mr. Sillars’s appeal and held that if the legislature intended to limit liability to exclude “muscle-powered vessels or non-licensed conveyances, it would have done so.” The Supreme Court of Canada dismissed the application for leave to appeal from the judgment of the Court of Appeal for Ontario, without giving reasons, on March 30, 2023.
A vessel, for purposes of the Criminal Code of Canada, is now deemed to include anything that can be navigated down a waterway. This expanded definition includes canoes, kayaks, and even paddleboards. And so, if you plan to drink by the lake this summer, be aware, and don’t take control of any vessel, even one powered by a paddle, at a time when you could be impaired.
If you have questions about impaired operation and other less common criminal charges, Northern Law LLP is happy to offer experienced counsel to assist you. Contact us today at 705-222-0111 or info@northernlaw.ca.