Canoe a ‘vessel’ under Criminal Code, lower court decision upheld

By Amanda Jerome

Law360 Canada (July 8, 2022, 9:52 AM EDT) -- The Ontario Court of Appeal upheld a lower court decision ruling a canoe is a vessel under the Criminal Code, dismissing the appeal of a man convicted of “criminal negligence causing death and impaired operation of a vessel causing death” after the canoe he was in with an 8-year-old boy capsized, leading to the boy’s death.

In R. v. Sillars, 2022 ONCA 510, the court heard that David Sillars, the appellant, was at a friend’s cottage on the Muskoka River in 2017. He was there with a “few other friends,” his girlfriend, Jessica Hooper, and her two sons, who were 6 and 8 years old at the time.

According to court documents, the 8-year-old, Thomas, was “hoping to go canoeing with the appellant.” Sillars, the court noted, was “an experienced canoeist” and “planned to teach Thomas how to paddle.”

Thomas, the court explained, did “not know how to canoe and was an inexperienced swimmer.”

It “was a cold day” in early April with an air temperature of “three to four degrees Celsius.”

“The river was running high and fast with a strong current. The water was frigid and turbulent. It was estimated that hypothermia would set in after three to four minutes in the water,” the court noted, adding that the cottage owner, Jack Kapel, testified that “it was too dangerous to go out on the water before May because of the spring runoff, the cold and the strong current.”

According to court documents, Kapel and “another friend, Mike White,” told Sillars “not to go out on the water.” However, Sillars wanted to get a “blue barrel he had seen on the river leading up to the falls.”

The barrel, the court noted, “was wedged against a yellow floating barrier warning of the danger ahead.”

The court also noted that Sillars was offered a lifejacket by White and Kapel, but “he declined because ‘he had done white-water rafting and stuff like that previously.’ ”

According to court documents, “Thomas wore a lifejacket, but it was too small for his size. Underneath the too-small lifejacket he wore two layers and a winter jacket.”

White, Kapel and Hooper “observed the appellant consume alcohol and one friend observed him smoke a marijuana cigarette.”

The court noted that Sillars then “removed his phone and keys from his pocket, and he and Thomas went down the river in a canoe at 4:45 pm.”

As they paddled toward the barrier, the “falls were visible,” but as “they got closer to the barrier, the current was even stronger and the water more turbulent.”

“Thomas leaned out of the canoe to put his paddle on the barrier and the canoe capsized,” the court explained, noting that Sillars was able to swim to shore, but “Thomas went over the falls and died.”

The police were called and Sillars was taken to the hospital with hypothermia.  

According to court documents, Sillars arrived at the hospital at 5:51 p.m. and the ER doctor “smelled alcohol on his breath and noted this on the hospital chart.” The doctor ordered a “trauma blood panel to be drawn from the appellant,” which was done at 6:45 p.m.

Sillars was spoken to by PC Maki, asking him “what had happened”. The court noted that at approximately 6:10 p.m., “Csts. MacDonald and Coles arrived at the hospital and interviewed Ms. Hooper, who by then had arrived.”

Hooper told the officers Sillars “had had two coolers at the cottage.” At around 6:50 p.m., Sgt. Allison, who had come to the hospital with an ASD (approved screening device) and blood kit, made “an ASD demand for a breath sample, reading from a pre-printed card.”

Sillars asked, “Won’t this get me in trouble?” Sgt. Allison, the court noted, responded that “it was a legal demand and explained the consequences for failing to provide a sample.”

“The appellant did not comply, but he did not refuse to do so. Sgt. Allison did not advise the appellant of his right to counsel,” the court added.

According to court documents, Sgt. Allison “left the room and requested Csts. MacDonald and Coles to attend the lab and see if there was extra blood that could be sealed. There was, and Cst. MacDonald placed a seal over a vial of blood identified as ‘David Sillars.’ ”

Sgt. Allison returned to Sillars’ hospital room and the appellant then agreed to provide a sample. His first ASD sample was taken at 6:57 p.m. and it was registered as a “fail.”

“The appellant,” the court noted,” was placed under arrest a couple minutes later for “impaired operation of a vessel and operating a vessel with over 80 mg of alcohol in his body.”

Sillars explained that he did not have a lawyer, so “Sgt. Allison arranged for PC Maki to call duty counsel” and then started to arrange for “another officer to bring in the Intoxilyzer 8000C.”

While Sillars was speaking with duty counsel, Thomas was pronounced dead, so “Sgt. Allison interrupted the appellant’s call with duty counsel to advise them of the change in circumstances and that there would be a charge of impaired operation causing death.”

The appellant provided two other breath tests, with the second test “registering 100 mg of alcohol in 100 ml of blood.”

According to court documents, the police executed a search warrant on the hospital a couple of months later and “seized the appellant’s hospital records, including a toxicological analysis of the appellant’s blood, which was later used by a toxicologist to identify the mg of alcohol per 100 ml of blood for the appellant. It registered 128 mg of alcohol per 100 ml of blood.”

Sillars was charged with “impaired operation of a vessel causing death; operating a vessel with over 80 mg; dangerous operation of a vessel causing death; and criminal negligence causing death.”

At the court below, Sillars argued that “a canoe is not a vessel under the Criminal Code” and there was “no evidence about what a reasonably prudent canoeist would do.” He also argued that “the delay in advising him of his right to counsel violated his rights under s. 10(b) of the Charter and the evidence of the breath and blood samples should be excluded.”

The trial judge, Justice Peter West of the Ontario Court of Justice, determined that “a canoe is a ‘vessel’ under the Criminal Code.”

Justice West “reasoned that the fact that Parliament did not qualify ‘vessels’ with a word like ‘motorized’ or ‘motor’ indicates that all vessels, regardless of their method of propulsion, were to be included in the offence.”

“The trial judge,” the court noted, “concluded that the legal justifications and constitutionality for screening drivers at the roadside apply equally to conveyances on waterways, regardless of their method of propulsion.”

Justice West also determined that Sillars was “aware of the conditions on the water and would have known that retrieving the blue barrel was ‘an extremely risky endeavour.’ ”

“The fact that he removed his phone and keys before going on the river indicated an awareness that there was a risk of the canoe capsizing or flipping and a recognition of a reasonably foreseeable risk of danger that could result in non-trivial injuries or death,” the court explained, further noting that the “decision to take an eight-year-old boy, who was an inexperienced canoeist and swimmer solely to retrieve the blue barrel was a marked and substantial departure from the conduct of a reasonable prudent person in the circumstances and demonstrated a wanton and reckless disregard for the child’s life and safety.”

Justice West further concluded that Sillars’ s. 10(b) rights “were not infringed” and he imposed a six-year sentence with ancillary orders.

According to court documents, the “convictions for operating a canoe over 80 causing death and dangerous operation of a canoe causing death were stayed under the Kienapple principle; therefore, the sentence was imposed only for criminal negligence causing death and impaired operation of a vessel causing death.”

Sillars appealed, advancing four issues: “Is a canoe a ‘vessel’ under the Criminal Code? Did the delay in advising the appellant of his right to counsel breach his 10(b) rights under the Charter? If there was a s. 10(b) violation, does the s. 1 justification advanced by the respondent save the breach of the right to counsel on the facts of this case?” Did Justice West “err in convicting the appellant of criminal negligence causing death without expert evidence about the standard of a reasonably prudent canoeist?” And did Justice West “err in sentencing the appellant to six years’ imprisonment?”

Justice Mary Lou Benotto, with Justices Bradley Miller and Julie Thorburn in agreement, were not persuaded and determined to dismiss the appeal in a decision released July 5.

With regards to the argument that a canoe is not a vessel, Justice Benotto noted that the appellant’s submissions “do not survive a consideration of the principles of statutory interpretation and ignore the indicia of legislative intent.”

Sillars argued that “[A]ccording to dictionary definitions the classification of a vessel is based on size; the categories of transportation for which criminal liability exists share the common feature of being licensed, modern modes of transportation, whose impaired, negligent, or dangerous operation can have catastrophic consequences; the scheme and object of former driving offence provisions are aimed at regulating licensed modes of transportation and operating a canoe does not require a licence; the logic of regulation breaks down with canoes, as multiple people can control its speed and direction; and a canoe is muscle powered and thus more analogous to a bicycle.”

Justice Benotto noted that it is “uncontroversial that vessel and boat are synonymous in the context of s. 254(2).”

“It is similarly uncontroversial that boat, in its ordinary meaning, carries no particular connotation of size, and that a canoe is a boat,” she added, noting that the “text of s. 254(2) thus suggests that canoe comes within the intended meaning of vessel.”

“The object of the enactment is to protect the public from the consequences of impaired operation of conveyances on the water. The scheme and object of the Act is clearly to address the public safety issue of impaired conveyances on the road and on the water. Impairment creates risks to passengers of a canoe, other watercraft, swimmers and first responders. Unlicensed conveyances, non-muscular-powered vessels and sailboats pose a risk of injury and death just as licensed and motor-powered conveyances do. The risks are not restricted to vessels that are required to be licensed,” she explained, concluding that “a canoe is a vessel within the meaning of s. 254(2).”

Turning to the alleged section 10(b) breach, Justice Benotto noted that, in this case, “the officer formed the suspicion less than a minute after 6:50 pm” and the demand for a breath test “was made immediately for a sample.”

“The sample was provided at 6:57 pm and he was arrested at 6:59 pm. There was no lengthy detention,” she wrote, determining that the “delay was short, and the officer was in a position to make the demand,” so there “was no s. 10(b) breach.”

As no breach had been found, Justice Benotto determined there was “no need to address the justification of s. 1, or the exclusion of evidence under s. 24(2).”

With regards to the expert evidence argument, the appellant submitted that Justice West “erred in finding him guilty without expert evidence to establish the conduct of a reasonably prudent canoeist.”

Justice Benotto reviewed the “extensive findings” of the trial judge, such as the temperature, the water flow, the consumption of alcohol and cannabis by the appellant, the warning of multiple people “not to go canoeing as it was too dangerous because of the water conditions at that time of year,” and the lifejacket worn by Thomas being “too small.”

“In the face of these findings, was expert evidence as to the standard of care required?” Justice Benotto queried.

“The evidence here could be easily understood by lay people without the opinion of an expert. Both the owner of the cottage and one of the guests testified that it was too dangerous to go out on the water that day. It was obvious to them. It was obvious to the trial judge,” she stressed, noting that expert evidence is “admissible when it is necessary.”

Turning to the sentence appeal, Justice Benotto noted that Justice West considered, among other things, Sillars’ “role as a father figure to Thomas which put him in a position of trust and authority.”

“The trial judge found that Thomas was entitled to be protected from the very risk and danger the appellant exposed him to,” she wrote, deciding not to interfere with the sentence.

“The seriousness of the offences was high, as was the appellant’s moral blameworthiness,” she concluded.

The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision. Counsel for the appellant did not respond to request for comment.

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