Court File and Parties

Ontario Court of Justice

Date: 2018-11-15

Court File No.: Central East Region: Oshawa Courthouse 18-00265-00

Between:

Her Majesty the Queen

— and —

David Sillars

Before the Court

Justice: Peter C. West

Oral Submissions Heard: November 6, 2018

Reasons for Judgment Released: November 15, 2018

Counsel

For the Crown: F. Giordano

For the Accused: J. Rosenthal and Wm. Thompson

Reasons for Judgment

WEST J.:

Introduction

[1] David Sillars is charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 ml of blood and dangerous operation of a vessel. He is also charged with criminal negligence causing death.

[2] One of the key issues raised by both counsel respecting the first three charges is whether a canoe is included in the term "vessel" contained in Part VIII – Offences Against the Person and Reputation (ss. 214 to 320.1). Counsel requested a ruling on this issue before oral argument is made on the Charter applications or the voir dire concerning Mr. Sillars' statement to Sergeant Greg Allison, the qualified breath technician. This is that ruling.

The Definition of "Vessel"

[3] Definitions for Part VIII are contained in s. 214, which provides:

"vessel" includes a machine designed to derive support in the atmosphere primarily from reactions against the earth's surface of air expelled from the machine.

[4] The definition of "vessel" only indicates through the description provided that a hovercraft is included. No other description of a vessel is set out in the definition section. On September 27, 2017, when the new provisions dealing with impaired operation and dangerous operation were before the Standing Committee on Justice and Human Rights, the initial draft of s. 320.11, the new definition section provided:

s. 320.11 "vessel" includes a hovercraft but does not include a vessel that is powered exclusively by means of muscular power (emphasis added).

[5] Mr. Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice, indicated the following to the committee when he was asked by Mr. Colin Fraser (West Nova, Liberal):

…One of the things I heard in testimony from the Canada Border Services Agency was the definition of vessel and the fact that has changed in section 320.11.

[6] Mr. Yost responded:

The reasoning was that the criminal law was aimed at those who were endangering the public. We have impaired operation of a motor vehicle. We don't have impaired operation of bicycles, scooters, etc.

The current definition of vessel isn't a definition. It just says that it includes a hovercraft. It's for the courts to interpret what a vessel is. The information we had from prosecutors was that impaired operation of canoes and kayaks was not charged. The information we received from the CBSA that you received, which I was listening to, appears to be contrary to that.

We thought that when someone was injured, or killed, criminal negligence could be laid. Nevertheless, returning to the status quo by eliminating the "doesn't include" would leave it to police to decide if they want to charge and prosecutors if they want to proceed with the charge.

[7] On October 4, 2017, the Standing Committee on Justice and Human Rights amended the definition of "vessel" under s. 320.11 to read: "includes hovercraft." The earlier comments by Mr. Yost, "It's for the courts to interpret what a vessel is" have taken on a new importance. I was advised by both counsel that no court has been called upon to interpret what a "vessel" is, as such this is the first occasion this issue has been litigated and decided.

[8] Both counsel are in agreement s. 214 does not provide a comprehensive or complete definition of "vessel," in fact, it does not provide any definition at all. Where the Criminal Code does not clearly indicate the meaning of a word or term or expression the court must be guided by the principles of statutory interpretation. It would have been a simple task for Parliament to clearly indicate in s. 214 a comprehensive and inclusive definition of the term, "vessel," yet they did not.

[9] The parties took completely divergent positions as to whether a canoe fell within the definition of vessel for criminal offences. I propose to address and resolve each submission and argument presented by the parties as I move toward my final conclusion as to whether the term "vessel" includes a canoe.

Statutory Interpretation: Section 4(4) of the Criminal Code

[10] Where a word or term or expression is not defined in the Criminal Code the Crown pointed to s. 4(4) of the Criminal Code, which provides:

Where an offence that is dealt with in this Act relates to a subject that is dealt with in another Act, the words and expressions used in this Act with respect to that offence have, subject to this Act, the meaning assigned to them in that other Act.

[11] The Crown argued this section permitted recourse to other federal enactments to assign or import meaning to the words and expressions used in the Criminal Code. He submitted the method of committing the offences set out in ss. 253(1)(a) and (b) and 249(1)(b) related to a subject-matter dealt with in another Act, in this case, the definition of "vessel." The meaning of the word "vessel" used in the Code in respect of those offences was the same as the meaning assigned to them in the other Acts, subject to Code provisions that indicated a contrary intention. There is nothing indicated in the Criminal Code that would indicate a contrary intention respecting the definition of "vessel."

[12] The Crown also pointed to s. 3(1) of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that the provisions of the Interpretation Act apply to every federal enactment, "unless a contrary intention appears." Further s. 15(2)(b) of the Interpretation Act provides: "Where an enactment contains an interpretation section or provision, it shall be read and construed (b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears." The Interpretation Act uses similar language as in s. 4(4) of the Criminal Code.

[13] The Crown submitted there were numerous acts where the subject-matter of the enactments dealt with the definition of what is a "vessel." The following examples were provided:

Canada Shipping Act, 2001 defines "vessel" as 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, and includes a vessel that is under construction. It does not include a floating object of a prescribed class.

Navigation Protection Act, RSC 1985, vessel includes every description of ship, boat or craft of any kind, without regard to method or lack of propulsion and to whether it is used as a sea-going vessel or on inland waters only, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast.

Excise Act: vessel, where used to indicate a craft for navigation of the water, includes any ship, vessel or boat of any kind, whatever, whether propelled by steam or otherwise and whether used as a sea-going vessel or on inland waters only, and also includes any vehicle.

Fishing and Recreational Harbours Act: vessel includes every description of ship, boat, craft, floating home or other structure used or capable of being used solely or partly for aquatic navigation without regard to method or lack of propulsion.

Harbour Commissions Act: vessel includes any ship, boat, barge, raft, dredge, floating elevator, scow, sea-plane or other floating craft.

The Public Harbours Ports Facilities Act: vessel includes every description of ship, boat or craft used or capable of being used solely or partly for marine navigation without regard to method or lack of propulsion, a dredge, a floating elevator, a floating home, an oil rig, a sea plane, a raft or boom of logs or lumber or an air cushion vehicle.

[14] The Crown submitted s. 4(4) of the Code and s. 15(2)(b) of the Interpretation Act were the first mechanism to be considered in determining the meaning of a word or expression in the Criminal Code, which has not been defined.

[15] The defence submitted that because the other federal Acts were unrelated to the criminal law purpose of the Criminal Code offences charged, the definition of "vessel" contained within them could not and should not be imported into the offences Mr. Sillars was facing.

[16] Mr. Giordano argued the defence submission completely misunderstood what s. 4(4) was addressing. The common subject-matter between all of the federal enactments was the definition of "vessel," which was not contained in the Criminal Code.

[17] I agree with the Crown's submission on this point, s. 4(4) of the Code does not require the other federal enactment to be related to the criminal law purpose of the Criminal Code provision. Section 4(4) indicates where an offence relates to a particular subject-matter that is dealt with in another Act, the words or expressions used in the Criminal Code with respect to a particular offence (for example, in this case, impaired operation of a "vessel") can have, subject to the Criminal Code, the meaning assigned to them in that other Act. The section speaks to subject-matter not criminal law purpose.

The Defence Position and R. v. Bell

[18] The defence cited R. v. Bell, [1983] 2 S.C.R. 471, as support for their argument. The issue in Bell dealt with the crime of "import into Canada" any narcotic except as authorized by the Act or the regulations and the issue to be determined was whether the act of importing terminated upon the narcotic crossing the border into Canada or whether the act of importing carried on until the narcotic reached its intended final destination within Canada. The argument in the Supreme Court dealt with whether the trial judge erred in directing a verdict of acquittal prior to hearing all of the evidence. The majority in the Supreme Court held the temporary seizure of the imported narcotics by the R.C.M.P. was irrelevant and found the offence of importing a narcotic was not of a continuing nature. The ordinary meaning of "import" in s. 5 of the Narcotic Control Act made out the offence of importing upon the entry of the goods into the country.

[19] The defence in their factum made reference to Justice Dickson's (as he then was) separate judgment, which dealt with whether the definition of importing contained in s. 101(a) of the Customs Act should be applied in determining when the act of importing terminated, relying on s. 14(2)(b) of the Interpretation Act (now s. 15(2)(b)). He found contrary to the majority judgment that while the elements of the offence were present as soon as the goods crossed the border, the offence was not over and done with until the goods reached their intended final destination in Canada. He found the offence of importing narcotics into Canada was a continuing offence, so it could be laid relating to the point of entry or in respect of the final destination or anywhere in between. Although he reached the same decision dismissing the appeal and ordering a new trial, Justice Dickson's decision that "importing into Canada" was a continuing offence did not find approval in the majority decision.

[20] It is my view R. v. Bell does not stand for the proposition of law put forward by the defence and is not of assistance in determining whether s. 4(4) of the Criminal Code (which is not referred to in Bell) or s. 15(2)(b) has application in the circumstances of the case at bar. The issue before me is, what does the word "vessel" include? The subject-matter of the word or phrase in Bell related to the actual offence, namely importing narcotics into Canada and its meaning. Here, the word in question is "vessel," the conveyance by which the offences of impaired operation or over 80 or dangerous operation were committed.

[21] I do not agree with the defence submission I should not rely on s. 4(4) of the Criminal Code or s. 15(2)(b) of the Interpretation Act. One thing was clear from the 1961 Hansard debates provided by the Crown that when "vessel" was added to a number of offences in the Criminal Code, through Bill C-110, those offences were originally set out in the Small Vessel Regulations under the Canada Shipping Act and the definition of "vessel," in that Act at that time, included vessels without propulsion, such as a canoe. The debates reflected the large number of pleasure craft in use on the inland waterways of Canada in 1961. They also reflected the growing concern that members of the public were not taking those regulations seriously because they were only regulatory offences under the Canada Shipping Act. A number of MPs specifically referred to the increasing prevalence of motorboats on the lakes and rivers in Canada and their dangerous operation. It was believed by the drafters and members of Parliament to be necessary to move these offences contained in the Small Vessels Regulations to the Criminal Code to ensure members of the public recognized the seriousness of dangerous operation of a vessel and impaired operation of a vessel and operating a vessel with a BAC greater than 80 mg. In fact, a number of the MPs who spoke commented on the need for a criminal stigma to attach to these new offences involving "vessels" to cause members of the public to take more seriously the safe operation of pleasure craft.

Dictionary Definitions and Statutory Interpretation

[22] The defence referred to a number of dictionary definitions obtained from the internet, including Oxford English Dictionary, Merriam-Webster Dictionary, Cambridge Dictionary and Dictionary.com, which all defined a "vessel" as larger than a rowboat and as ships or large boats. The defence in their factum then concluded in "common, ordinary usage" "vessel" is understood to mean a boat that is larger than a canoe and requires non-muscular propulsion. From Sullivan on the Construction of Statutes the author indicates dictionary meanings "cannot, and do not purport to, indicate a word's meaning within a particular context." Sullivan sets out the "ordinary meaning rule," which consists of the following propositions:

1. It is presumed that the ordinary meaning of a legislative text is the meaning intended by the legislature. In the absence of a reason to reject it, the ordinary meaning prevails.

2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations including purpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like.

3. In light of these considerations, the court may adopt an interpretation that modifies or departs from the ordinary meaning, provided the interpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning.

[23] The second proposition, set out above, includes language similar to s. 4(4) of the Criminal Code and s. 15(2)(b) of the Interpretation Act, which in my view supports the Crown's position.

[24] Further, the Crown was criticized by the defence for referring to Black's Law Dictionary, which was described as a "specialized American legal dictionary." Yet Dickson J. (as he then was) referred and cited Black's Law Dictionary's definition of "importing" as authoritative and supportive of his conclusion that importing was a "continuing offence." Black's Law Dictionary defines a "vessel" as "a ship, brig, sloop, or other craft used in navigation. The word is more comprehensive than 'ship.' The word 'vessel' includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water." This definition of "vessel" clearly includes a canoe. Similarly, in Duhaime's Legal Dictionary a "vessel" is defined as a "Watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Duhaime's Legal Dictionary, a British Legal Dictionary, is referred to by Oxford University School of Law and Cambridge University, England as a recommended resource for their law students. Again, any dictionary definition is only to be used as an aid to determining the definition of a particular word and not as conclusive proof as indicated by the defence. In Bell, McIntyre J. for the majority judgment, had this to say about whether he needed to use dictionary definitions:

I do not find it necessary to make extensive reference to dictionaries in order to define the word "import". In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country (at pp. 12-13).

[25] In my view it is also noteworthy that there is a United States federal law of "boating under the influence" (BUI), which pertains to all boats, from canoes to rowboats to the largest ships. The defence referred to a United States law, 1 U.S.C. s. 3: In that enactment the word "vessel" included every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. (July 30, 1947, Ch. 388, 61 Stat. 633.) This is the same definition provided in Black's Law Dictionary. The fact the United States has passed laws relating to boating while under the influence of alcohol, which applies to every description of watercraft, including canoes, in my view, is consistent with the Canadian Parliament adding "vessel," as an additional mode of transportation, to the Criminal Code offences of impaired, over 80, dangerous operation. Further, this is a definition which is similar to the definition of "vessel" contained in the Canada Shipping Act, 2001, which was where the original offences involving "vessels" originated in 1961.

The Purpose of the Legislation

[26] As I indicated above, defence counsel submitted the various federal enactments referenced by the Crown were unrelated to the criminal law purpose of the Criminal Code offences and therefore should have no application. Rather, the defence submitted the "narrower, ordinary usage" gleaned from the various dictionary definitions of "vessel" should be preferred. For the reasons set out above I do not agree with the defence submission. It may be true that the other federal enactments are not dealing generally with the criminal law, however, the word to be defined is not in respect of the offence itself. The word "vessel" refers to the mode of transportation or conveyance by which the offences are committed.

[27] The word in question, "vessel" has been defined in numerous federal enactments, which address various purposes to do with the waterways in Canada and the vessels that operate on those waterways. I agree with the defence submission that the definition of "vessel" contained in each of these federal enactments are worded in different ways, however, each definition included vessels that do not have propulsion, which meant the word "vessel" in each of the these other federal enactments included a canoe or "vessels" propelled exclusively by muscular power. It is my view this is important in determining the "grammatical and ordinary sense" of the word "vessel" and how it has been used in other federal enactments in determining its meaning in the Criminal Code.

[28] The Canada Shipping Act, 2001, provides detailed safety requirements and regulations for vessels operating on inland waterways and territorial waterways in Canada. In particular, the Small Vessel Regulations, enacted under the Canada Shipping Act, 2001 provide safety regulations for persons operating small vessels, including canoes, setting out safety rules and regulations and the penalties imposed for non-compliance. I agree with the defence, these safety requirements are analogous to the regulatory schemes for driving a motor vehicle created by provincial Highway Traffic Acts. The federal government has jurisdiction over the waterways in and around Canada and is responsible for enacting legislation dealing with those waterways and the vessels that travel and operate on them. In my view this does not detract or prevent the court from referring to the definition of "vessel" in the Canada Shipping Act or other federal legislation, to inform and clarify whether a canoe is included in the word "vessel" as it appears in the three offences in this case.

[29] As I have already indicated, it is clear from the 1961 Hansard parliamentary debates the addition of "vessel" in the Criminal Code offences came as a result of the increase in the number of pleasure craft being used on inland waterways and territorial waterways in Canada and the belief that the regulatory offences under the Canada Shipping Act were not preventing and reducing the number of people operating pleasure craft from consuming alcohol while operating them or from operating them in a dangerous manner. It was felt by creating criminal offences respecting the operation of "vessels" this would increase the public's awareness of the seriousness of these offences because there would now be a criminal stigma attached. The definition of "vessel" contained in the Canada Shipping Act at that time was the same as the current definition and in my view this provides a strong indication of Parliament's intention when these offences were amended to include "vessel."

[30] The federal government is also responsible for enacting laws dealing with criminal law and has enacted offences relating to the "vessels" operating on Canadian waterways. The defence argued that the purpose of Criminal Code provisions is to punish misconduct that is sufficiently morally culpable to warrant the stigma of a criminal sanction. I agree that this is one of the purposes of the criminal law, together with the purpose of protecting persons from injury or death, including those who operate vessels, those who may be passengers, persons operating other vessels, and first responders who must respond to emergencies. There can be no doubt that operating any kind of vessel on a lake or river or sea involves a degree of dangerousness. Further, operating any type of vessel on a lake or river or sea requires some level of competency and knowledge as to the proper operation of the vessel and an awareness of the rules and regulations which govern safety on the water. This is why the federal government enacted a great number of safety regulations, which often included regulatory offences and penalties, to ensure compliance. I do not accept the defence position that a person who is impaired, as that term has been interpreted in the jurisprudence, or has a BAC over 80 mg of alcohol in 100 ml of blood when operating a vessel propelled by muscular power should not be punished for their conduct because it lacks the moral culpability to justify a criminal sanction. This same argument was originally raised when the offence of driving a motor vehicle while one's ability was impaired by alcohol was first introduced into the Criminal Code. The original jurisprudence required evidence of a marked departure from the norm because anything less would lack the moral culpability to justify a criminal sanction and stigma, however, this test has changed and evolved over time and currently the jurisprudence provides that even slight impairment is sufficient to make out the offence of impaired driving.

[31] It is my view, the danger of harm is equally present whether a person is operating a canoe or a motor boat with a 5 hp. motor or a 150 hp. motor and their ability to do so is impaired by alcohol, however slight. Operating a canoe while impaired is sufficiently morally culpable to warrant the stigma of a criminal sanction. The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

Rule of Law and Fair Notice

[32] The defence argued the criminal law must provide fair notice of what is prohibited and clear standards for enforcement and relied on R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584. In Mabior, the Supreme Court reconsidered an earlier decision, R. v. Cuerrier, [1998] 2 S.C.R. 371, which established that failure to advise a partner of one's HIV status may constitute fraud vitiating consent. Chief Justice McLachlin, for the court, held at paras. 14, 15 and 19:

14 …It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act. The rule of law requires that laws provide in advance what can and cannot be done.

15 The Cuerrier test gives rise to two uncertainties – what constitutes "significant risk" and what constitutes "serious bodily harm"? These terms are broad and different people can and do read them in different ways.

19 What emerges is a complex calculus that makes it impossible, in many cases, to predict in advance whether a particular act is criminal under s. 265(3)(c) or not. The second major criticism of Cuerrier relates to the scope of the conduct it catches. The danger of overbroad interpretation is the level of moral culpability and potential harm to others appropriate to the ultimate sanction of the criminal law. A criminal conviction and imprisonment, with the attendant stigma that attaches, is the most serious sanction the law can impose on a person, and is generally reserved for conduct that is highly culpable – conduct that is viewed as harmful to society, reprehensible and unacceptable. It requires both a culpable act – actus reus – and a guilty mind – mens rea – the parameters of which should be clearly delineated by the law.

[33] The Supreme Court determined, based on the above concerns that the Cuerrier requirement of "significant risk of serious bodily harm" should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. I take no issue with the fundamental requirement of the rule of law that a person is able to predict whether a particular act constitutes a crime when they commit the act or the danger of overbroad interpretation as to the scope of conduct that amounts to a crime.

[34] It is my view Mabior has no application to the nature of the charges facing Mr. Sillars. There are no uncertainties relating to the conduct or a particular act that constitutes the offence of impaired operation of a vessel, operating a vessel when BAC is over 80 mg of alcohol in 100 ml of blood or dangerous operation of a vessel. If a canoe is a vessel then everyone will know if they consume alcohol to the point of being impaired, as this has been defined by precedent, or has a BAC greater than 80 mg alcohol/100 ml blood or operates the canoe in a manner that is a marked departure from the standard of care that a reasonable person would observe in similar circumstances, they will know with certainty they have committed a crime according to the law relating to impaired operation, over 80 and dangerous operation of a vessel. The scope of the conduct that will result in someone committing the three offences referred to above is not overbroad, rather, it is clearly delineated and meets the requirement that the rule of law must provide in advance what can and cannot be done.

[35] I agree with the Crown's submission there is no ambiguity in the use of the term "vessel" in the three offences being discussed. There is no ambiguity because there is no definition at all, other than to say a hovercraft is included in s. 214 of the Criminal Code. If the term "vessel" in the three offences in question includes a canoe, there will be no ambiguity over what mode of transportation it is referring to.

Harmonious Interpretation and Legislative Intent

[36] I agree with both counsels' submission that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Rizzo and Rizzo Stores Ltd (Re), [1998] 1 S.C.R. 27 at para. 21 (see also R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014 LexisNexis Canada)).

[37] In 1961 Parliament added "vessel" as a further mode of transportation as a result of a concern about the rapidly rising number of pleasure crafts being operated on Canadian inland waterways and territorial waterways while persons were impaired or operating those "vessels" dangerously. This concern has not diminished over the ensuing years as evidenced by the newspaper articles included in the Crown's materials relating to police media releases about programs to reduce impaired operation of a vessel, whether or not the pleasure craft was motorized. The Canadian Safe Boating Council supports non-motorized "vessels," including canoes and kayaks, being included in the definition of "vessel" in the Criminal Code. In their submissions before the Justice Committee speaking against the exclusion of vessels propelled exclusively by muscular power, the CSBC indicated there were approximately 8.6 million boats in use in Canada, of which about 60 per cent were human-powered vessels. It was the representations and submissions of this organization, in large part that caused the Justice Committee to remove the exclusion of vessels propelled exclusively by means of muscular power (see below).

[38] The defence submitted the fact "vessels" is part of various modes of transportation (motor vehicles, aircraft and railway equipment) all of which are motorized or powered by something other than muscular power, this context supported the inference "vessels" under these sections included only "motorized vessels." It is my view the alternate interpretation is more probable and convincing, that Parliament modified "vehicle" with the word "motor", yet did not add "motorized" to modify the word "vessel" because all vessels capable of navigating on Canadian waterways, regardless of method or lack of propulsion, were to be included.

Recent Legislative Amendments

[39] The Crown pointed to the recent amendments to the Criminal Code respecting the offences of dangerous operation, impaired operation and operation with 80 or more mg alcohol/100ml blood involving conveyances pursuant to Bill C-46. It is important to note that an earlier draft of the definition of "vessel" stipulated it did not include a vessel that is propelled exclusively by means of muscular power. This amendment would have specifically excluded canoes, rowboats, standup paddleboards, kayaks and other vessels propelled exclusively by means of muscular power. Yet, as a result of representations by the Canadian Safe Boating Council, which indicated in their submissions to the Standing Committee on Justice and Human Rights, that between 1991 and 2010 there were 375 deaths in suspected and confirmed cases involving alcohol and unpowered vessels such as canoes and rafts in Canada. Further, a number of MPs on the Justice Committee considering the new bill C-46 spoke against the amendment. The amendment excluding vessels propelled exclusively by means of muscular power was removed in the final draft, which then received royal assent in June 2018 in Parliament and will come into force December 18, 2018.

[40] While this is not determinative of whether a canoe is included in the term "vessel," it does provide further background and history on this issue. In R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 at para. 51, the Supreme Court held:

The intention of Parliament can be determined with reference to the legislative history, including Hansard evidence and committee debates, although the courts should be mindful of the limited reliability and weight of such evidence.

[41] It is clear the issue of whether canoes and other non-propelled or non-motorized vessels are included in the term "vessel" in the Criminal Code provisions under consideration in this case cannot be decided solely from the Justice Committee debates in 2017. What is absolutely clear, however, is that vessels propelled exclusively by means of muscular power were not specifically excluded by C-46, s. 320.11. What was also clear from those debates was that this issue has, once again, been left to the courts to decide.

Constitutional Considerations

[42] The defence also submitted that the constitutionality of the impaired operation provisions is premised on the licensed nature of the activities of "motor vehicles." In R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37, the Supreme Court considered the issue of whether a detainee "should have been fully informed of their right to counsel at the roadside and given the opportunity to retain and instruct counsel before being asked questions about prior alcohol consumption or requested to perform sobriety tests" (para. 23). In considering this issue Charron J., for the Court, made these observations:

24 First, we are concerned here with the use of a vehicle on a highway. This Court has recognized that, while movement in a vehicle involves a "liberty" interest in a general sense, it cannot be equated to the ordinary freedom of movement of the individual that constitutes one of the fundamental values of our democratic society. Rather, it is a licensed activity that is subject to regulation and control for the protection of life and property: see Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35. The need for regulation and control of the use of vehicles on the highway is heightened both because of the high prevalence of the activity and its inherent dangers.

25 Second, the effective regulation and control of this activity give rise to a unique challenge when it comes to protecting users of the highway from the menace posed by drinking and driving. This challenge arises from the fact that drinking and driving is not in and of itself illegal. It is only driving with an impermissible amount of alcohol in one's body, or driving when one's faculties are impaired, that is criminalized. The line between the permissible and the impermissible is not always easy to discern, and the necessary screening can only be achieved through "field" enforcement by police officers. It follows that these officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist's Charter rights.

26 Third, the challenge in this area of law enforcement is increased by the fact that the activity in question is ongoing and the drinking driver who has exceeded permissible limits presents a continuing danger on the highway. The aim is to screen drivers at the road stop, not at the scene of the accident. Hence, effective screening at the roadside is necessary to ensure the safety of the drivers themselves, their passengers, and other users of the highway. Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway.

27 Fourth, it is important to recognize that the need for regulation and control is achieved through an interlocking scheme of federal and provincial legislation. The provincial legislative scheme includes driver licensing, vehicle safety and highway traffic rules. At the federal level, the primary interest lies in deterring and punishing the commission of criminal offences involving motor vehicles. Control of drinking and driving is not confined exclusively to the laying of criminal charges after a criminal offence has been committed. Roadside screening techniques contemplated by provincial legislation provide a mechanism for combatting the continuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level of impairment. Examples of such provisions in the Manitoba Highway Traffic Act applicable at the roadside include s. 263.1(1), which permits a peace officer to suspend a driver's licence if the officer has reason to believe that the driver's blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood or if the driver refuses to comply with a demand for a breath or blood sample made under s. 254 of the Criminal Code. Hence, although the issues on these appeals arise in the context of criminal trials, their resolution must nonetheless take into account both federal and provincial legislative schemes. The Court must carefully balance the Charter rights of motorists against the policy concerns of both Parliament and the provincial legislatures.

28 Another important contextual factor to consider is that both cases are concerned with the interaction between police officers and motorists at the roadside during this screening procedure from the time they are pulled over by the police to the time they are either allowed to continue on their way, or are arrested for a criminal offence related to drinking and driving. In each case, the driver was ultimately arrested and charged with impaired driving and driving "over 80". However, no issue is raised about compliance with the Charter upon and following the arrest and demand for breath samples. Both Orbanski and Elias were promptly and fully informed of their right to counsel upon arrest and given the opportunity to exercise their right before providing samples of breath for the purpose of analysis. The question is whether they should have been afforded their right before certain screening measures were effected -- in Orbanski's case, before he was asked to perform sobriety tests, and in Elias's case, before he was asked whether he had been drinking.

[43] The issue in Orbanski was whether the two drivers should have been provided their right to counsel under s. 10(b) prior to the screening procedures put in place by the Criminal Code and related provincial legislative schemes permitting police officers to randomly stop drivers to assess their sobriety. The decision recognized the increasing prevalence of drivers who consume alcohol and the serious and inherent danger posed by this conduct. In my view similar concerns exist respecting the operation of pleasure crafts or small vessels, including canoes, on the rivers and lakes throughout Canada and the territorial waterways around Canada.

[44] Currently, the federal government has passed regulations for persons who operate pleasure craft with motors in Canadian waters to write a written test, either on the internet or in person through an accredited agency to obtain a Pleasure Craft Operator Card. This card is not a license. There is no required boating test where a person has to actually operate a motorized pleasure craft to demonstrate their ability to operate a motorized pleasure craft as there is in order to obtain a driver's license for a motor vehicle. In fact, the test only consists of 36 questions and the passing grade is only 75%. Persons who operate canoes or other vessels propelled exclusively by muscular power are not required to write this test as they are not required to have a Pleasure Craft Operator Card to operate a vessel propelled exclusively by muscular power. However, there are still regulations for non-propelled vessels, which can lead to penalties if they are not followed, which deal with safety equipment required to be carried on board when they are operating the non-propelled "vessel" on water. Recently the federal government amended the Small Vessel Regulations under the Canada Shipping Act, 2001, to provide for regulations dealing with Stand-up Paddleboards concerning the types of safety equipment required to be carried on board. This amendment was made because of the increased popularity of this type of vessel. Canoes, kayaks, paddleboats, rowboats and stand-up paddle boards are all "vessels" under the Canada Shipping Act, 2001. The fact that a person does not need a Pleasure Craft Operators Card to operate a vessel propelled exclusively by muscular power does not, in my view, lead to the conclusion a canoe cannot be a "vessel" under the Criminal Code.

[45] In Ontario there are other Acts, which give police officers authority to stop "vessels", to determine the sobriety of the operators under the Ontario Highway Traffic Act, for example, and the Liquor License Act, section 32, which allows for "vessels" to be stopped "where a police officer has reasonable grounds to believe liquor is being kept unlawfully in a vehicle or boat and the police officer can, without warrant, enter and search the vehicle or boat or search any person found in it." The O.P.P. and municipal police forces regularly patrol waterways to investigate the sobriety of persons operating a "vessel," including canoes and kayaks. Often these patrols are publicized through the media to make citizens aware of their responsibilities and increase awareness of the inherent and growing dangers of operating a small "vessel" on water when combined with alcohol or drugs.

Specific Statutory Provisions

[46] The defence argued it was inappropriate and unreasonable for a person who was operating a canoe to be required to provide a sample of breath into an approved screening device and if the ASD registered a Warning (50 mg to 99 mg) they would, pursuant to s. 48(4) of the Ontario Highway Traffic Act, lose their driving license for a period of time. This criticism, of course, has nothing to do with whether a canoe is included in the definition of "vessel" in the Criminal Code. This was a decision the Ontario legislature made in 2006 in respect of persons who are either charged with impaired operation of a "vessel" or operating a "vessel" with over 80 mg alcohol/100 ml blood or who register a Warning after providing a breath sample into an ASD. This was also a recognition by the Province of Ontario of the increased prevalence and the serious dangers associated with boating and the consumption of alcohol or drugs or both. The Ontario Highway Traffic Act provide for the same definition for vessel as is currently set out in s. 214 of the Criminal Code. Despite this provincial and municipal police forces take the position that canoes and other non-motorized "vessels" are included in the definition of "vessel." The Crown included in his materials a number of media articles publicizing police programs to combat drinking and boating. Some of those articles reflect that a canoe is a vessel.

[47] In my view the legal justifications set out in Orbanski, (paras. 24-28, set out above) for the Charter-infringing powers of police when they are conducting the screening of drivers at roadside are equally applicable to the police exercising those same screening powers and procedures on a lake or river or territorial water, whether the vessel is a ship, a yacht, a powerboat or a canoe. If this screening procedure results in an arrest because of a failure of an approved screening device or the police officer forms reasonable and probable grounds the operator of the vessel is impaired, then, as in Orbanski and Elias, the police officer is required to advise the arrested person of their right to counsel, provide a caution and read the formal approved instrument demand. As the Supreme Court indicated, there was no complaint in the two cases (Orbanski and Elias) respecting what occurred after the two persons' arrest, in terms of being advised of their Charter right to counsel or of the police providing an opportunity to exercise that right prior to requiring them to provide samples of their breath into an approved instrument. The arrested individual, if they request to speak to counsel, either a personal lawyer or duty counsel, the police are required to facilitate and implement that request before any breath samples are obtained. I fail to see how the legal justifications set out in Orbanski would be undermined by including canoes in the definition of "vessel." The constitutionality of the screening provisions in the Criminal Code have been determined by the Supreme Court and it is my view including canoes in the definition of "vessel" does not change the reasoning in that judgment.

Prevalence and Danger

[48] The defence argued that canoeing is not as prevalent an activity as driving a car. This statement may be true, however, canoeing and kayaking are very common activities on the lakes and rivers in Ontario and throughout Canada. As I indicated earlier, any kind of activity involving the use of a vessel, including those propelled exclusively by muscular power, is inherently dangerous given the activity is on water, where the depth of the water is usually greater than a person's height and the proficiency of members of the public respecting their ability to swim is considerably varied. This is one of the reasons underlying the safety regulations respecting personal flotation devices (PFD) or life jackets and the requirement for all persons in a vessel, of any type, to be either wearing or have available a PFD in the vessel. The water in Canadian lakes and rivers and seas can be slow moving or fast moving, with rapids, waterfalls, obstacles and barriers, and the water can be extremely cold at all times depending on the location of the lake or river or territorial waterway or just during the spring and fall months before the weather warms the water. The combination of alcohol or marihuana or other illicit substances with activities on the water can only increase that inherent danger. As I indicated earlier in these reasons, operating a canoe after consuming alcohol in excess of the legal limit or while one's ability to operate a canoe is impaired by alcohol or a drug or a combination of both or operating a canoe dangerously in a marked departure from the norm, all of these types of conduct, in my view, are sufficiently morally culpable to warrant the stigma of a criminal sanction.

Section 250 and Towing Provisions

[49] Mr. Rosenthal made reference to s. 250 of the Criminal Code, which provides:

250 (1) Every one who operates a vessel while towing a person on any water skis, surf-board, water sled or other object, when there is not on board such vessel another responsible person keeping watch on the person being towed, is guilty of an offence punishable on summary conviction.

(2) Every one who operates a vessel while towing a person on any water skis, surf-board, water sled or other object during the period from one hour after sunset to sunrise is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 250; R.S., 1985, c. 27 (1st Supp.), s. 36.

[50] He submitted if a canoe or kayak was included in the definition of vessel this could lead to the situation where a canoeist lost his/her paddle and a kayaker who came to the canoeist's aid and attached a rope from the canoe to the kayak in order to tow the canoe to shore, the kayaker would be committing a criminal offence. He argued this would be an absurd result. I agree if the kayaker was charged that would be an absurd situation because s. 250 is clearly directed at activities such as water skiing, using a water sled, or surf-board or other similar objects towed behind a "vessel." It does not relate to a non-motorized "vessel" going to the aid of another person operating a non-motorized "vessel" and towing them to shore. Since these provisions were included into the Criminal Code, I believe in 1961, there have been many additional objects that are currently being towed behind pleasure craft, which are not set out in s. 250, such as knee boards, wake boards, tubes, both single and multiple person or banana boats, to name just a few. It is my view only certain "vessels" would be able to tow these objects. A canoe in the example above, in my view, would not be the type of object described in s. 250 that would require a person to keep watch of the person or persons being towed. Mr. Rosenthal clearly described a situation where a canoeist needed to be rescued or needed a tow assist by a slow moving vessel like a kayak or canoe. In my view this type of conduct does not fall within the conduct described in s. 250 and no charges would or should arise on the example he provided. I am sure there are other equally absurd examples, which the provision is not directed towards.

Section 249 and Dangerous Operation

[51] Section 249, the dangerous operation section, supports and illustrates my view respecting objects towed by a "vessel".

249 (1) Every one commits an offence who operates

• (b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;

[52] Under s. 249(1)(b) a person who operates a vessel or a person who is using water skis, a surf-board, water sled or other towed object on or over the internal waters of Canada or territorial sea of Canada, in a manner dangerous to the public, clearly describes the person operating a vessel, either towing someone or not, or the person on the water skis or other towed object, if they are operating those objects dangerously. Each of those persons could be charged with this criminal offence under s. 249(1)(b). For example, a person operating a vessel towards and through a group of swimmers or a person being towed behind a vessel who, using the water skis, plays "chicken" with a group of swimmers in the water, could be charged with the offence of dangerous operation of a vessel or dangerous operation of water skis. In my view the operator of a canoe or kayak could be operating their canoe or kayak in circumstances or in a manner that could also lead to a charge of dangerous operation "having regard to all the circumstances, including the nature and condition of those waters or seas and the use that at the time is or might reasonably be expected to be made of those waters or sea."

Multiple Operators and Practical Considerations

[53] The defence argued that because a canoe can have several persons operating it, this should disqualify a canoe from being included in the definition of a "vessel." In my view, the fact that the paddler in the stern or the bow was impaired or had a BAC greater than 80 mg of alcohol in 100 ml of blood, makes no difference in terms of the police investigation and whether a police officer was able to form the necessary reasonable suspicion if making a demand under s. 254(2) or reasonable and probable grounds to believe one or the other's ability to operate it was impaired. The defence referred to the possibility of a person sitting in the middle of the canoe who is impaired and paddling. Again, it would be up to the police officer investigating to determine which of the persons in the canoe should be charged, having regard to the totality of the circumstances involved.

Absurd Results and Scope

[54] The defence also argued that if the definition of "vessel" captured all crafts capable of navigation regardless of the means of propulsion and because the Criminal Code applied throughout Canada and not just on navigable waterways then this would criminalize conduct that has no moral culpability. The example provided was a person floating in an inflatable dinghy in a backyard pool after consuming more than three beers would be criminally liable for operating a vessel with a BAC greater than 80 mg alcohol/100 ml blood. In my view this suggestion is completely nonsensical and ridiculous. The Canada Shipping Act, 2001, would not define an inflatable dinghy being used in a backyard swimming pool or even in front of a cottage as a "vessel." However, where the inflatable dinghy was being used as a "vessel" to navigate down the lake or river or on a territorial waterway and the operator was impaired or had consumed sufficient alcohol to put his/her BAC over 80 mg, a police officer would have to determine whether it was appropriate to charge that person considering the totality of the circumstances.

Conclusion

[55] Considering the totality of the materials before me and considering that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is my finding that the term "vessel" contained in s. 253(1)(a), s. 253(1)(b) and s. 249(1)(b) includes a canoe. When "vessel" was first introduced through an amendment to the Criminal Code in 1961 to include the offences of impaired operation of a "vessel", operate a "vessel" with a BAC over 80 mg and dangerous operation of a "vessel" those offences as they related to a "vessel" were already part of the Small Vessels Regulations under the Canada Shipping Act, in which the definition of "vessel" clearly included all non-propelled "vessels." In my view this historical background is quite significant in determining what Parliament's intention was when this amendment was passed.

[56] Section 4(4) of the Criminal Code permits the court to look to other federal enactments where the subject-matter of those Acts is the same as the Criminal Code. Looking to other Acts is also permitted by the Interpretation Act, s. 15(2)(b). I find that the subject-matter common to all of these federal enactments is that the definition of "vessel" includes all "vessels" however propelled, which consequently includes a canoe. The subject-matter common to these federal enactments was a mode of transportation or conveyance, namely "vessels," used on Canadian waterways. When the amendment was first made to the Criminal Code it was because there was a significant increase of the number of pleasure craft using the inland waterways of Canada and territorial waterways of Canada and a concern about the dangerous operation of those pleasure craft and the consumption of alcohol by the operators. These concerns have not diminished but have increased as time has passed, similar to the increased concerns respecting drinking and driving offences involving motor vehicles.

[57] In fact, recently Parliament has completely re-written the law relating to impaired operation of a number of different conveyances, including "vessels" (see Bill C-46, s. 320 Criminal Code). The original draft of the definition of "vessel" in Bill C-46, under s. 320.11, excluded vessels propelled exclusively by muscular power. This meant canoes and kayaks and other "vessels" propelled exclusively by muscular power would not be considered as "vessels" under the Criminal Code. During the Justice Committee hearings a number of different agencies, including the Canadian Safe Boating Council, made submissions against this exclusion. The proposed definition excluding "vessels" propelled exclusively by muscular power was negatively reflected in a number of media reports provided by the Crown. Statistics were provided in the CSBC's submissions, which reflected the increase in the number of non-motorized vessels propelled exclusively by muscular power. Ultimately the exclusion of "vessels" exclusively propelled by muscular power was removed from the final draft of the definition of "vessel," which was presented to Parliament for ratification. Having considered this in light of Summers and other cases, it is my view this decision by the Standing Committee is something I should consider in determining Parliament's intention concerning which "vessels" are included in the Criminal Code offences respecting criminal conduct affecting the operation of vessels. Certainly the purpose of the Criminal Code offences being considered here is to protect members of the public travelling on Canada's waterways from harm, the operators themselves, passengers in the "vessel," other operators of "vessels," with or without passengers and anyone providing assistance when an emergency occurs as a result of the consumption of alcohol or drugs or both.

[58] It is my view the constitutionality of the screening procedures contained in the Criminal Code have already been determined. Police are permitted to randomly detain persons operating "vessels" or motor vehicles to determine or investigate sobriety. The detainee must be advised of the reason for the stop (s. 10(a) of the Charter) but the right to counsel (s. 10(b)) is delayed until an officer determines there is a reasonable suspicion the person has alcohol or a drug in their body within the preceding three hours, at which point the officer can make an ASD demand pursuant to s. 254(2). If the person fails the ASD then the officer will have reasonable grounds to believe the person's BAC is 100 mg or more and he/she can arrest the person for the offence of over 80 mg. It is upon arrest that the person must be advised of their right to counsel. The police officer who stops a person operating a "vessel" (again advising them of the reason for the stop, s. 10(a)) may form reasonable grounds to believe that the person's ability to operate the "vessel" is impaired by alcohol or a drug or both. The officer must then advise this person of their right to counsel after the arrest on the charge of impaired operation of a "vessel." The constitutionality of these provisions has been determined by the Supreme Court in Orbanski. As I have found, including canoe in the definition of "vessel" will not undermine the legal justifications discussed in Orbanski.

[59] The operation of a "vessel" is controlled and regulated by both federal and provincial regulatory schemes, which for some "vessels" requires registration of the specific "vessel," safety requirements for all "vessels," and rules governing the use of Canadian waterways, not unlike regulations governing driving of motor vehicles on roadways and highways. The Pleasure Craft Operators Card is not a license. The fact is, like impaired drivers, the impaired operator of a pleasure craft presents a continuing danger on the waterway. The goal is to screen operators of a vessel before there is an accident or emergency situation. These inherent dangers of operating a "vessel" on water affect all operators of small vessels on Canada's lakes and rivers and territorial waterways. Allowing police to briefly stop persons operating canoes to determine their sobriety falls clearly in what was envisioned by the Supreme Court in Orbanski respecting motor vehicles. The stopping of small vessels is currently being done by provincial and municipal police forces that patrol the waterways. In my view it is not necessary for there to be an "epidemic of danger" created by intoxicated canoeists as submitted by the defence. Further, as I indicated, I fail to see how the legal justifications set out in Orbanski would be undermined by including canoes in the definition of "vessel."

[60] Consequently, for all of the reasons set out in these reasons it is my view Parliament intended to include vessels propelled exclusively by muscular power, including canoes, in the Criminal Code offences of impaired operation of a "vessel," operating a "vessel" with greater than 80 mg alcohol/100 ml of blood and dangerous operation of a "vessel."

Released: November 15, 2018

Signed: Justice Peter C. West