Jordan: The questions I’m about to ask are silly, but the reason I’m asking them will become clear during today’s episode. So have you ever had a beer while paddling a canoe? What about drinking in a kayak? What about cracking a cold one while lounging in your nearest lake on an inflatable mattress? For those of us lucky enough to have cottages or cabins, that’s kind of a summer weekend ritual, and although you know by now, or at least you really should, you can’t operate a motor boat after having a couple. A canoe is different, right? Or at the very least, a floating lounger certainly is right? Maybe. Right now it depends on the cops, and the courts, and the judge in a recent conviction that came about after a tragedy has now opened the door for just about anything involving watercraft and alcohol, from canoes to those loungers to pool noodles, technically. And yes, an impaired boating conviction will cost you your driver’s license, and leave you with a permanent criminal record. So, yeah, those questions not so silly anymore.
Jordan: I’m Jordan Heath Rawlings, and this is The Big Story. Week one of our Friday cottage and cabin specials. Brian Platt is an Ottawa based reporter with the National Post. Hi Brian.
Brian: Hello.
Jordan: Why don’t you start by just telling me because I hadn’t seen it until the ruling came down…. the story of David Sillars, and how all this began.
Brian: So this started in April 2017. It was originally a police call, just about somebody who seemed to be in distress on a freeway ramp in Ontario’s cottage country. So it’s near Bracebridge, and the Muskoka region of Ontario…. and when the police arrived, this guy was shivering cold, and he had no shoes on, and he was soaking wet. It was just barely above zero that day, and what eventually the police figured out from talking to him was he had been out on a canoe in the river, the canoe had tipped, and a boy, a young boy, eight years old, had been carried away on the river, and they were very close to a waterfall, and he went over; As it turned out, he went over the waterfall. So the police quickly conducted a search, found the young boy who was already dead in the water by that point, and the police then turned to the question of intoxication. Breathalyzed, David Sillars, who was 37 years old at the time. He was over the legal limit, and so he was charged with impaired operation of a vessel, and this ended up becoming the first case ever to go to court, at least that anybody confined in any court records, this is the first ever time a case has gone to court to test whether a canoe counts as a vessel in our impaired driving laws, because until this; Boats have counted in impaired driving laws since 1961 but until this point it had all been motorized boats, power boats and things like that. This was the first time that it had ever been tried on a canoe, and so the judge had to rule on whether canoe counted, and he ultimately ruled yes.
Jordan: So tell me how the police have traditionally dealt with incidents like these, if this had never been tested in court until now?
Brian: I think it really depends on the police force and the part of the country. But in Ontario, for whatever reason, Ontario police have been more likely, this includes both the Ontario Provincial Police and, I believe, also the regional police forces in the GTA, the greater Toronto area. So the Peel Region police, and I think even the Toronto police have also taken this stance, but especially the Ontario Provincial Police who patrol cottage country, and much of the Great Lakes areas, and a lot of waterfront in Ontario have long taken the stance that because vessel is not defined in the criminal code, which is the whole issue here, it’s just been an unclear term for the decades that it’s been in the criminal code. Ontario Provincial Police have long taken the view that canoes, and kayaks, and paddle boats all count as a vessel, but prosecute; so and they have laid charges before, we know I talked to an Ontario Police Marine unit coordinator, so in; Coordinates a lot of the marine enforcement activities that they do. He said he knows that they charged three people in 2011, but the prosecutors withdrew the charges because they didn’t think there was a reasonable chance of conviction in court. So basically police have been trying to make this happen for a while, but prosecutors felt that they didn’t have a very good chance of a conviction in court. In some ways, I think they may have been waiting for the right case to come along, because if you’re looking to set a legal precedent, you want what’s called a good set of facts, and so a case where an eight year old boy died because the person operating the canoe with him was intoxicated, that’s the kind of case I think prosecutors decided this is a serious enough case that we’re willing to take it to court.
Jordan: So what had to happen in the months between when the police investigated, and decided to lay the charges, and until it came in front of a judge for a ruling?
Brian: Well what was interesting was there was a parliamentary bill that was being debated kind of alongside as this criminal case was was playing out. In fact, so Sillar’s was charged in April 2017, and it was in April 2017 at the same time, the government introduced an impaired driving bill called Bill C46. The timing of the bill was totally coincidental, it was actually meant to coincide with the introduction of their bill to legalize marijuana. So the same time the government was legalizing marijuana, it wanted to make sure that it was taking public safety very seriously, so it introduced an impaired driving bill to go with it. But what’s interesting is that the bill C46 contained all kinds of changes to impaired driving laws including to allow police to start checking for marijuana at the side of the road, but it also looked to fix up a bunch of areas of the law, and one of the areas that it looked to fix up was this long standing issue that there’s no definition of what a vessel is. So at the same time that you had this precedent setting case potentially coming forward to court, because prosecutors had decided to go forward with charges against Mr Sillars, you had parliament with a bill where the Justice Department was proposing, they said their information was that prosecutors don’t go forward with this charge, and so they were proposing to clarify the definition of vessel to say it doesn’t count as anything that’s powered exclusively by muscle power, which is basically to say that if you’re just paddling, you’re not accounted in impaired driving laws. So you had this bill that was gonna clear up this point, but at the same time that this case had just been started, and MPs were ultimately convinced this was about six months later, there was a protest, they heard about this case for one thing, which I do think played a role. They also had protest from safe boating advocates, saying…. our messaging is that any; If you’re intoxicated, you shouldn’t go out on the water, and so this bill is a problem for us if you’re saying paddlers don’t count. MPs were convinced by that, they took that clause out of the bill, and so the part that would have cleared up what a vessel counts as was taken out of the bill, and so the definition remained vague, which meant the judge still had to rule on it.
Jordan: And so what did the judge rule, specifically?
Brian: The judge… There’s an; So there was a separate ruling on this aspect of the case. It came out in November 2018 and the judge had to…. he had invited arguments from both sides, from the crown about why canoes should count in our impaired driving laws, and from the defense about why it shouldn’t, and the judge had to because, like it just says vessels in the criminal code, it doesn’t say what a vessel is, and so the judge had to look through dictionary definitions, through legal definitions from other countries, and the two things though that I think were the most influential in the judge’s thinking was…. how are vessels treated in other laws in Canada. So not the criminal code, but like marine regulations that um…. are based on, you know, customs regulations and things like that, and also what happened at Parliament because at Parliament the MPs had the chance to remove paddling and chose not to. And so based on those two factors, the judge ruled that essentially, if you can use it to navigate on a waterway, it’s a vessel. And um, so that would mean canoes count, and it would also potentially include a lot of other things, but particularly kayaks, and rowboats, and things like that.
Jordan: So that was a separate ruling, and the trial had still not completed then, which came recently.
Brian: Exactly. So…. the crux of this is that Sillar’s was charged with basically two types of offenses, there are four charges in total. But the two types of offenses were impaired driving offenses, and then a criminal negligence causing death charge, and so if the judge had ruled that canoes don’t count, the criminal negligence charge would have gone forward but the other charges couldn’t have because they were impaired driving offenses. He ended up getting convicted of all four, and so when this was being debated that Parliament and Justice officials were explaining why they were gonna take paneling out of impaired driving charges, they said, our understanding is that prosecutors don’t use these charges anyway but even so, a criminal negligence charge seems like the appropriate charge to use in a case where somebody is intoxicated in a boat, and causes either bodily harm or death. The thing about a negligent; a criminal negligence charge is that there’s a high burden on the crown to prove it. They have to prove that somebody was acting not just carelessly, but in a marked departure from how a reasonable person would act in those circumstances, and recklessly endangered somebody’s life. And so it’s not just carelessness, it’s criminal action, and in this case, of course, they were I think based on following the case, they were easily able to meet that threshold to say that he acted in a criminally negligent way and that’s why this eight year old boy died. The impaired driving charge though, which he was also convicted of, it’s much easier for prosecutors to get that conviction because it’s the act; It’s not whether you endanger somebody’s life or not, it’s actually simply the act of paddling while you’re drunk or stoned that becomes illegal. And once they’ve got the Breathalyzer tests, and they can show you were indeed paddling or controlling the canoe in any way, you’re basically cooked. That is the illegal act right there, unless you can find some kind of procedural error which defense lawyers are very good at doing but it is it the reason why this is, I think an interesting legal conundrum is because impaired driving laws are extremely serious laws, and have gotten…. it seems like almost every year governments are increasing the penalties around them, but they’re meant, they’re designed for motorized vehicles that’s why they’re so serious because they endanger the public. And so now, if you have this applied to paddlers, are we really saying that you are guilty of this very, very seriously criminal offense just for paddling?
Jordan: Well and there are mandatory minimums, I mean, maybe not specifically, but acceptable mandatory minimums for any impaired driving conviction, right?
Brian: Yep, it’s a…. so there’s a; judge’s only have a certain amount of discretion under these laws because there are mandatory minimums and and having, you know, I report a lot on the justice system in Ottawa and, um, you know, legislation that would amend the criminal code. I personally don’t believe that mandatory minimums, unimpaired driving are ever going away, I think that this is one of the mandatory minimums that the government will always keep, and so it’s a mandatory minimum fine, for if it’s just a basic first offense and your impaired driving of, it’s at least $1000 it might even be more than that. That’s on the first offense, on the second offense, you quickly get into mandatory jail time, and of course if there’s any kind of bodily harm or death involved, then jail time is almost a given. But this is; The thing about impaired driving is that you don’t even have to hurt anybody. If you get caught doing it that’s the criminal offence, and so we’re now in the situation where even just paddling a canoe or kayak or almost anything else that you can use on the water, you are subject to all these these mandatory minimum sentences, and you don’t even have to have hurt anybody.
Jordan: And so given the conviction, and given the fluid definition of vessel, what does this precedent actually open the door for? Cause I know paddlers, and you could make a case for canoeing with children, or row boating with children, and putting people at serious risk of bodily harm but there are all sorts of other vessels out there that I would have never imagined counting under this law.
Brian: Yes, and so the first thing that needs to be said here is that this was a decision of Ontario, it’s called the Ontario Court of Justice, so it’s the lower court in Ontario. Which means it’s not a binding decision on other courts. That doesn’t happen for the province of Ontario until it goes to a higher court such as the Ontario Court of Appeal, and it wouldn’t happen even for; It wouldn’t be bonding on other provinces until the Supreme Court of Canada ruled on it. So we may eventually get to that point, but at this point if another case comes to a different judge, that judges may rule differently because this is not a binding legal precedent, but I think it will be very influential because it’s the first case that’s ever dealt with this. So having established that, it basically comes down to what prosecutors think a judge will agree is a vessel, because there’s not a clear definition in the criminal code because Parliament has never given a clear definition. So does a stand up paddleboard count, for example? I think it probably does. Does a surfboard say or I mean, I used an example of my article, a somewhat ridiculous example of a pool noodle but if you’re using it to float and to navigate in a channel, does that mean that you’re included in impaired driving laws? I mean where exactly do we draw the line here? I think a judge is unlikely to sign off on something such as a pool noodle but a stand up paddleboard I think if you do it after you’ve had, you know, four beers, I think you’re probably guilty of a criminal offense as it currently stands.
Jordan: Well then to your point earlier, I mean, if you end up with a good enough set of facts in which a minor or somebody is hurt or killed, there’s now a legal precedent at least to make that argument.
Brian: Well, this is; We are basically in the realm now of, you know, prosecutorial discretion on what a prosecutor decides is a good enough case that they want to bring forward, and I do suspect that for the most part, prosecutors wouldn’t bring forward a case unless they believe that it is an egregious case that deserves prosecution. I think they will tread carefully, in other words, but they don’t have to, and this is why you always have to be careful about how the criminal code is structured right? Because you don’t want to open cases up where people are persecuted unfairly, and I think now if you have a situation where police are upset at you in any way or even just in a bad mood it really messes up your life to even get charged with impaired driving because it’s an automatic license suspension in most provinces. I believe boating laws are definitely included in Ontario, I think that’s the case with most provinces. There’s all these mandatory penalties that kick in right away, and then a conviction I mean, it’s a permanent criminal record, it also makes it sometimes comes with driving prohibitions, it could be very expensive to get your driver’s license back again. An impaired driving charge, let alone a conviction, can really mess up your life, and the police now are within their rights, really to lay it on anybody they find out on the water who can’t pass a breathalyzer test.
Jordan: So this might seem like a self evident question based on what you just told me but just to be clear it’s a driver’s license that we’re talking about here, so you could lose your ability to drive a car for operating theoretically at least a paddleboard while intoxicated?
Brian: Yes, so the driver’s licenses is a provincial question. When we’re talking about the criminal code, it’s federally regulated. The driver’s license suspensions are administered under the Highway Traffic Act, which is a provincial act. So these are all called; They’re called administrative penalties. and provinces because of that reason, it’s different in every province. But by this point most provinces have automatic roadside suspensions that kick in a soon as you’re even charged with impaired driving, and so, in other words, if you get charged with impaired; If you fail a Breathalyzer test on the side of the road, you can’t drive away. Your driver’s license gets immediately suspended, and often your car gets impounded. I don’t know, 100% how many provinces this is the case for, but I know it’s the case in Ontario. The same penalties that kick in at the roadside for your car, kick in for boating. So if you are caught, if you are charged sorry with impaired operation of a vessel, and you’re out on the water all the same automatic driver’s license suspensions kick in, and the police could even impound your car if they wanted to. They’re within their rights to do it.
Jordan: When you talk to people in the legal community about this ruling and the questions it raises, what’s their reaction?
Brian: You know, there’s a really mixed reaction to this. I mean, a lot of defense lawyers, unsurprisingly, think that this is a step too far. But, you know, a lot of those lawyers would include people who are defending impaired driving clients all the time, and so they’re already very skeptical of how much power police have when it comes to impaired driving enforcement. It’s a little more interesting, and I and I think generally prosecutors, police are certainly, I mean, you look at the Ontario Provincial Police. Um, they’re already out on social media promoting the fact that they can charge you with impaired paddle.
Jordan: Really?
Brian: They’re thrilled with this yes. And I talked to the coordinator for Marine Enforcement and he said it’s a fantastic decision, and thinks that it will mean that they can start charging more paddlers now, because they tried to do it before, of course, and just it was prosecutors who would bring it forward.
Jordan: Because it’s a point that you raised in one of your pieces, if vessels is so open for definition, is there anything that prevents us from having the same open definition applied to waterways? Like what is a waterway?
Brian: If the criminal code is not clear on this right? I mean it will be up to judges to decide, and so, in his ruling, I mean, the defense raised, they said well this doesn’t mean you get charged for floating in a rubber dinghy in your backyard pool.
Jordan: Well yeah.
Brian: And the judge said no, based on his interpretation of the Canada Shipping Act, which he was relying on heavily for what counts as a vessel or not? It would need to be on a navigable waterway, so something that you are using to basically transport people or goods, and the public is using it, and commerce is using it, and so on, so your backyard pool doesn’t count. But that’s not based on anything in the criminal code, that’s based on this one judge’s work to interpret a very vague phrase in the criminal code, and another judge might come at this differently, there’s no guarantee, and so ultimately this is the fault of Parliament because Parliament never defined this properly in the criminal code and that’s something that Parliament is supposed to do. It’s gonna be up to judges to figure out what counts, and what doesn’t count, and one judge may have a different opinion about this than another judge.
Jordan: And so what’s immediately next for this ruling? You mentioned that each province would kind of have to decide whether or not it would be binding on their own. Do the people you talk to, and the stuff you found in your reporting give you any indication of whether this will actually end up being something that’s binding or if this is just a sort of weird ruling that will eventually be clarified?
Brian: I suspect that for now, it’s gonna depend on the case. I mean, a lot of people when they look at the Sillar’s case, feel that this was such a sad and tragic case, that the charges seemed appropriate. What’s going to really test the system is when you have something where somebody has not hurt anybody, has not done anything, has not really endangered the public but has been charged with impaired operation save a canoe, and in fact it already appears to have happened in one case, because there was a report in the Thunder Bay newspaper that a Sula coat man. So it’s a small community north west of Thunder Bay, has been charged because police saw around midnight he was paddling, no lights or anything out of the water, but he was impaired, um, and was charged with impaired operation of a canoe. That’s a case where nobody’s been hurt, but maybe you argue it’s a dangerous enough activity, it’s something especially you shouldn’t be doing at night that the charges were justified but as these cases start to come forward, that’s where it’s gonna be very interesting to see if a judge decides this is an inappropriate charge. But until Parliament either clarifies the law or a higher court weighs in, it’s gonna be a case by case basis.
Jordan: Thanks Brian.
Brian: Thank you.
Jordan: Brian Platt is a National Post reporter based in Ottawa. That was The Big Story, live from the cottage. Okay, not live. If you want more of them, you can find them at thebigstorypodcast.ca, or you can hit us up on Twitter @thebigstoryfpn. You can also subscribe, rate, review, do all of it for free wherever you get your podcasts. That’s Apple, or Google, or Stitcher, or Spotify. Claire Boussard is the lead producer of The Big Story, Ryan Clarke and Stephanie Phillips are our associate producers, and Annalise Nielsen is our digital editor. I’m Jordan Heath Rawlings, thanks for listening. Enjoy the weekend, we’ll talk Monday.
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