Careless or reckless driving remains a serious issue in Canadian society, and not just for the operation of automobiles and motor vehicles. Particularly in the summer months when many spend time up at the cottage, boat accidents can happen all too frequently, often from careless and/or impaired operation of a watercraft.

There is a high profile trial before the courts at the time of writing concerning a charge of careless operation of a vessel under the Canada Shipping Act, with the accused being the wife of former Dragon’s Den star (and host of its American equivalent, Shark Tank), Kevin O’Leary. With the trial put over until September 14th, it is far too soon to discuss the outcome or verdict of that case, but nevertheless, the incident serves as a reminder of the need for caution and diligence when operating a boat. Many people tend to feel safer and more relaxed on the water than on Ontario’s roads, however, these accidents can have fatal consequences.

It also needs to be said that it is not just the operation of a motorized watercraft or boat that needs care and a sober mind. As demonstrated by another Ontario case, the careless or impaired operation of water vessels other than speed boats, including the seemingly innocuous canoe, can be just as disastrous. The 2019 case of R. v. Sillars was notable for breaking new ground in Canadian law, as it grappled with the question of whether a canoe was in fact a “vessel” under the Criminal Code of Canada respecting charges of impaired operation, or to put it another way, whether paddling a canoe can fall within the definition of impaired “driving”.

Impaired Operation of a Vessel as it Applies to Boats

The tragic events of the Sillars case concerned a 37-year old man who took the young son of the woman he was dating out for a canoe trip from a friend’s cottage situated at the Muskoka River. Sillars had the mother’s permission to take her son canoeing, while Sillars himself had consumed both alcohol and marijuana at the cottage prior to the outing. The trip occurred in early April, with the water level of the river being high in part due to the melting of snow and ice that often occurs at that time of the year. The river current at the time was strong enough to push a boat towards a “rocky, steep, and dangerous waterfall”. Sillars paddled the canoe to a spot where he was trying to reach a blue barrel that had become wedged near a barrier constructed to block watercraft from the waterfall. The 8-year old boy stood up in the canoe to help Sillars reach the barrel, which caused the canoe to tip over. Tragically, the boy drowned.

The accused was charged under section 253(1) of the Criminal Code of impaired operation of a vessel causing death and operating a vessel with over 80 milligrams of alcohol in 100 millilitres of blood causing death. He was also charged with the dangerous operation of a vessel causing death and criminal negligence causing death. The unique consideration was whether, for the purposes of these sections of the Code, a canoe counted as a “vessel”, which the required its own separate judgment.

Statutory Interpretation Principles

The Criminal Code wasn’t that much help in defining the term. The definition of a vessel in section 214 of the Code (as it then was – the statute has been significantly amended since 2019) indicated that the definition of a vessel included a hovercraft, but did not provide a comprehensive definition of what was included and what was not. In situations where the Criminal Code does not clearly indicate the meaning of a word or term or expression, the courts then look to be guided by the principles of statutory interpretation in order to determine what the word or expression means or might be defined as.

The Crown, seeking a conviction, naturally argued that a canoe does count as a vessel. They pointed to six other statutes in Canadian law (including the aforementioned Canada Shipping Act), which each had a more comprehensive definition of a vessel which all would include a canoe (even though none of them specified the term “canoe” in the wording). The Canada Shipping Act definition, for example, indicated that a vessel is “a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion”, which would include a canoe.

The Defence in turn argued that none of these other statutes (the other five being the Navigation Protection Act, Excise Act, Fishing and Recreational Harbours Act, Harbour Commissions Act, and Public Harbours Ports Facilities Act) were related to criminal law or intentions and therefore the definition of “vessel” from those acts should not be imported into the criminal offences that Sillars was charged with.

Parliamentary Intent

In the end, it was the Crown’s argument that proved to be persuasive to the Court, which looked at the historical context for parliament’s intention when they added the impaired operation of a vessel as an offense under the Criminal Code way back in 1961. At the time, the offences related to a “vessel” had already been part of the Small Vessels Regulations under the Canada Shipping Act, and the definition of “vessel” in those regulatory offences clearly included (and still include) all non-propelled “vessels”. This was considered salient enough to be determinative that vessels were meant to include muscle-powered watercraft such as canoes and kayaks.

This case is a stark reminder not only of the need for caution in operating any type of vessel or boat on the water, but also that novel and uncertain areas of the law can emerge all the time, even when the subject matter is something as traditional and old-fashioned as a canoe. Canoes have been around longer than any of us reading this can remember, but this was the first time a “driving under the influence” charge related to a canoe came before the courts.

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any new or novel situation resulting in criminal charges. We defend individuals charged with a variety of offences, including driving under the influence. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.