Court File and Parties

Ontario Court of Justice

Date: 2013-07-18

Court File No.: Kenora 122375

Between:

Her Majesty the Queen

— and —

Jeffrey Bath

Before: Justice Donald Fraser

Heard: May 17, 2013

Reasons for Judgment released electronically: July 8, 2013

Counsel:

• Josh McKay, counsel for the Crown
• Evan Roitenburg, counsel for the defendant Jeffrey Bath

Reasons for Judgment

Fraser J.:

[1] Jeffrey Bath admits that he was impaired by alcohol but denies being in care and control of his wife's 22 foot Sea Ray motor boat in the early morning hours of August 19, 2012.

[2] The only live issue in this trial is whether the Crown has proved care and control beyond any reasonable doubt on the evidence.

The Crown Position

[3] O.P.P. Constable Beth Chevalier testified that she observed Mr. Bath walk down the dock to the boat, untie the bow line and throw it into the boat, untie the stern line and throw it into the boat and then in one co-ordinated action, push the boat away from the dock and jump into it.

[4] She assumed that he intended to depart in the boat, and being satisfied that he was impaired by alcohol, she walked to the bow and grabbed a handhold and told Mr. Bath he was under arrest and to get out of the boat.

The Defence Position

[5] Mr. Bath testified that although he had memory gaps, he recalled deciding to go to the boat to collect his jacket before walking to a friend's place. On reaching the boat he discovered that the boat was rubbing against the dock because the fender had fallen off or been stolen. He untied the bow line and pushed the boat away from the dock and jumped in. He was standing in the rear part of the boat, behind the driver's seat, in a distracted state, thinking about looking for a spare fender or his jacket, when Constable Chevalier spoke to him. He firmly denied untying the stern line.

Analysis

[6] Recognizing that alcohol abuse is one of the leading causes of death by drowning for recreational boaters, I am satisfied that the Crown's case can be proved by simply taking Jeffrey Bath's admitted actions as the factual basis for a conviction. He had admittedly handled an essential fitting of the boat by casting off the bowline and then pushed the boat away from the dock and jumped in. There was a light breeze, it was dark and he was drunk and alone. This created a risk situation. Even if I assume he was not going to leave the dock area, the boat was not wholly secured and it is foreseeable that Mr. Bath could struggle to get this large, heavy boat back in proper alignment with the dock, stretching to pull on a rope or reaching to grab the bowline. In his drunken, clumsy state, he was at risk for falling in and it is foreseeable that he could be pinned between the boat and the dock and be at considerable risk for drowning. At 3 A.M., his cries for help would not likely be answered.

[7] Applying the recent Supreme Court of Canada decision R. v. Boudreault 2012 SCC 56, and especially paragraph 9 of Justice Fish's decision for the majority, I find:

1. An intentional course of conduct with respect to the vessel—namely the untying of the bowline, casting it off and pushing the vessel away from the dock and getting into the vessel.

2. By a person whose ability to drive is impaired by alcohol—admitted.

3. In circumstances that create realistic risk, as opposed to a remote possibility of danger to persons or property.

[8] The risk must be realistic and not just theoretical but realistic does not mean that the risk must be probable or serious or substantial. It is a low threshold (see paragraphs 34 & 35).

[9] I am satisfied that risk to persons or property does not exclude the Defendant and his property—the only person or property realistically at risk on the Defendant's admitted actions.

[10] Therefore, as noted above, I find as a fact that Mr. Bath created a realistic risk to himself by untying the bowline, casting it off and pushing the boat away from the dock before getting into the boat at a time when he was grossly intoxicated, when it was dark and he was alone and without immediate access to help should he fall into the water.

[11] This finesse to resolve the trial issue, while saying nothing more, will be unsatisfactory to the parties considering their focus on the trial evidence. For counsel conducted the trial on the basis that I resolve a factual question. If I find the stern line was not untied, then the defence submits I must at least have a reasonable doubt that Mr. Bath was in care and control and acquit. Resolution of this factual question hinges on my assessment of the trial evidence and the credibility of the key witnesses.

Constable Beth Chevalier

[12] Constable Beth Chevalier, a ten year veteran of the Ontario Provincial Police, testified that she had a clear memory of the incident, independent of her notes. I accept that this is likely because the incident was unusual. It involved a drunk and a boat and at the material time she was not assigned to a marine patrol.

[13] On that night she was on "bar patrol" meaning that she was parked across the street from Shooter's Bar at closing time, watching patrons leave the area. Her attention was drawn to Mr. Bath because he was alone and not part of a group and he was older than the usual bar crowd. She watched him walk in an "unsteady" and "weaving" fashion toward the waterfront and she followed him to see where he was going. She saw him lie down in front of one of the vendor trucks by the waterfront. After a minute, he got up and walked around the vendor truck. She got out of her police vehicle and approached. First she spoke to two girls who came around the other side of the truck and cautioned them to be on their way home. As she got to the other side of the truck she could see Mr. Bath watching a couple having sex. He was about 8 to 10 feet away. Constable Chevalier spoke to the couple and sent them on their way.

[14] Mr. Bath remained standing there. Constable Chevalier spoke to him, established his identity and could observe all the usual signs of alcohol impairment. He told her his residence was on 4th street north (not the case) and she instructed him to go home. She then left the area but circled the block to see if Mr. Bath was going to leave the area.

[15] When she returned to the waterfront a few minutes later, she observed Mr. Bath "loitering" by the Whitecap Pavilion, on the waterfront side by the public docks. She observed him walking back and forth "as if trying to make up his mind" and then he approached a boat, untied it and jumped in. Constable Chevalier "recalled" that Mr. Bath untied the bowline and threw it in and then untied the stern line and threw it in before jumping into the boat. Constable Chevalier was at the head of the dock when Mr. Bath approached the boat and she was able to walk to the slip and grab a silver rail at the bow of the boat after Mr. Bath jumped in. She told him "You are under arrest for care and control of a boat. Get out and we will tie it up." He complied.

[16] Mr. Bath was brought up to the police vehicle and because he was so unsteady on his feet, Constable Chevalier had him sit on the curb while she read him his rights to counsel. A voir dire was conducted on a spontaneous utterance he made after his rights were read. He said "Is it illegal to paddle home?"

Jeffrey Bath

[17] Mr. Bath, the owner/operator of a local pharmacy, testified as one would expect from an intelligent, educated individual faced with an embarrassing dilemma.

[18] He admitted that he was very intoxicated. He admitted that it affected his memory, "quite a few parts are missing" and he didn't "have a recollection of a lot of what happened".

[19] He recalled leaving the bar, and asking other patrons if there was an afterhours house party going on in Keewatin, or a ride to Keewatin but he was very quickly alone. He wasn't anxious to go home. He lives on the waterfront in Keewatin, several miles away. He walked, the air was cool. He decided to go to the boat to get his fleece jacket and check on the boat.

[20] He thought he spoke to a male police officer just outside the bar. He did not recall lying down or watching the couple having sex. He recognized Constable Chevalier as someone he had spoken to earlier.

[21] When he got to the boat, he untied the bowline in order to insert a new bumper or fender and then sat on the dock and threw his feet onto the back bench seat of the boat. He put the stern pole light into the socket and turned the boat lights on in order to search the lockers for his jacket and a spare bumper. He admits he got distracted. He thought he was standing there for 3 to 5 minutes before hearing Constable Chevalier arrest him.

[22] He concedes that he must have got out of the boat on his own as he has no recall of the officer getting into the boat. He does not remember the officer tying the boat up.

Rae Bath

[23] The Defendant's wife testified that later that day in the early afternoon she came into town with her husband to collect the boat. She was not aware of any issue of the boat being damaged against the dock as he had not mentioned it. She could see that the boat had been scratched. She noticed that the stern line was tied to the dock cleat with a figure 8 times 4 knot, their usual style while the bowline was tied in a sloppy fashion with the line just wrapped around the cleat, "not our style".

Assessment of the Conflicting Evidence

[24] Constable Chevalier's evidence as to Mr. Bath's actions after leaving the bar until the moment he approaches the boat is unchallenged. Mr. Bath admits, because of alcohol abuse, he has gaps in his memory. Her evidence supports the inference that Mr. Bath's intentions once he left the bar were shifting and tentative. He largely admits as much. He was not anxious to go home. He thought about going to "check" the boat only after he had failed to get a ride to a house party or to Keewatin. This thought may have been linked to thinking about getting the jacket because he found the air cool.

[25] He asks the court to accept that although his memory was badly compromised by alcohol that night, his memory was best when he was in the boat. As this is critical to his defence, it is hardly a persuasive assertion. He wants the court to accept that his actions with the boat had an organized purpose, to get his jacket, to deal with the boat rubbing against the dock. Yet his actions as described by Constable Chevalier indicate a tentative approach to the dock. He lies down briefly at the Waterfront. He stands and watches the couple having sex. He doesn't mention getting the jacket to the officer when she first speaks to him. She watches him as he is by the Whitecap Pavilion as he "loiters" and walks back and forth as if he is trying to make up his mind.

[26] It is puzzling to me that Mr. Bath would need to untie the bowline to insert a replacement fender. If there had been a fender in that location as he asserts, then there would be enough of a gap to insert a new one, for ropes tend to stretch under load, not shrink. Even if he needed to ease the bowline to do what he proposed, the usual course would be to let out more slack and then re-secure the boat, not let the bowline go so that the bow would swing out of control. He describes an improbable course of action on the part of an experienced boater if inserting a replacement fender was truly his intention.

[27] It is significant that although he was prepared to ask the officer, after arrest, a theoretical question about whether it was legal to paddle home, he didn't mention that all he was doing was looking for his jacket and looking for a spare fender to protect the boat.

[28] The fact that the stern line was found the next day tied with a figure 8 knot in the fashion the family routinely employed while the bow line was not could be compelling corroboration for the fact that the stern line was not untied. But this evidence loses its force because Constable Chevalier, without being aware of the significance of this pending defence evidence, testified that she recalled Mr. Bath tying the stern line at her direction while she tied the bowline.

[29] I was not persuaded by the defence argument that Mr. Bath was too drunk to tie the stern line in the usual fashion and it would be unlikely that the officer would allow him to do so after arrest. The figure 8 knot was no more challenging to tie than untie and he admitted untying the bowline. If it was such a routine, muscle memory would be in play.

[30] The Crown made a good point in noting that if protecting the boat from damage was the motivation for Mr. Bath untying the boat, why did he not tell his wife about the problem. Why was the boat left until early afternoon to continue to suffer hours of damage?

[31] Defence counsel conceded that Constable Chevalier was "a very good witness", "polished".

[32] I accept the evidence of Constable Chevalier. She was subjected to a careful, probing cross-examination that would have rattled many officers. The cross-examination was exceptionally skilful and in my opinion could hardly have been bettered. Yet notwithstanding this challenging cross-examination, Constable Chevalier was unshaken in her assertion that she had a clear memory of the incident and specifically recalled Mr. Bath untying the stern line and throwing it into the boat after doing the same thing to the bowline, pushing off and jumping in. The fact that some of these details may not be in her notes did not cause her to waiver in her assertions.

[33] Mr. Roitenberg pounced when he got her to agree that she had dated certain documents during the release process and then established that she had failed to correctly date the documents. He pressed her hard that if she could make a mistake like that then clearly she could be mistaken about other aspects of her evidence. Constable Chevalier did not waiver under this considerable pressure, maintained her composure and I agree with her the date issue was a trifling matter and something that she was understandably casual about without it undercutting her essential credibility.

Conclusion

[34] Mr. Bath received superb representation. Evan Roitenberg's advocacy was admirable in a very challenging case for the defence. Mr. Bath was unlucky in that his arresting officer was Constable Beth Chevalier. Mr. Roitenberg's cross-examination would have broken a lesser officer.

[35] In the result, I do not believe nor do I have a reasonable doubt that Jeffrey Bath left the stern line tied when he entered the boat. I accept and believe Constable Chevalier's evidence on that point. I am satisfied that Mr. Bath, in his drunken state dithered over whether to take his boat home after drinking in town and finally entered the boat and untied it and pushed it away from the dock with the intention of doing just that but fortunately Constable Chevalier was there to prevent him. This police action may well have prevented a tragedy.

[36] I find him guilty as charged.

[37] I will register a conviction on the over 80 charge and conditionally stay the impaired charge, pending the lapse of any appeal period.

Released: Electronically July 8, 2013

Signed: Justice Donald Fraser