ONTARIO COURT OF JUSTICE

Date: June 27, 2019

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

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DAVID SILLARS

Before: Justice Peter C. West

Evidence Heard on: October 17, 18, 22, 23, 24, and 26, 2018; November 1, 2, 5, and 6, 2018; and April 24, 2019

Oral Submissions heard on: April 25, 2019

Reasons for Judgment released on: June 27, 2019

Counsel:

• Mr. F. Giordano — counsel for the Crown
• Mr. J. Rosenthal, Mr. Wm. Thompson — counsel for the defendant David Sillars

WEST J.:

Introduction

[1] David Sillars is charged with impaired operation of a vessel causing death (ss. 253(1)(a) and 255(3)); operating a vessel with over 80 milligrams of alcohol in 100 millilitres of blood causing death (s. 253(1)(b) and 253(3.1)); dangerous operation of a vessel causing death (ss. 249(1)(b) and (4)) and criminal negligence causing death (ss. 219 and 220(b)). The Crown's case was presented over a number of days between October 17 and November 6, 2018.

[2] Mr. Sillars sought exclusion of the breath test results, the blood samples obtained at the hospital, the blood sample analysis performed by the hospital lab technologist, Peter Wood, and Mr. Sillars' medical Records from South Muskoka Memorial Hospital (SMMH) on the grounds his Charter rights were violated and their admission would bring the administration of justice into disrepute. In addition, Mr. Sillars sought to exclude statements and utterances he made to Sgt. Allison at the hospital on the grounds these statements/utterances were involuntary and were obtained in violation of his Charter rights. He conceded other statements/utterances made to police officers before and after his statements/utterances were made to Sgt. Allison were voluntary and not in violation of his Charter rights. Mr. Sillars chose not to testify on the Charter applications prior to the Crown closing his case. At the conclusion of the evidence called by the Crown, I heard oral submissions over two days, November 19 and 26, 2018, and subsequently received extensive written submissions from counsel respecting the Charter applications and voluntariness application brought by the defence to exclude evidence. I released two judgments respecting those applications on February 1, 2019, which are reported at R. v. Sillars, [2019] O.J. No. 602 (the voluntariness/s. 10(b) Charter statement judgment) and R. v. Sillars, [2019] O.J. No. 603 (the breath test results, blood sample and blood sample analysis Charter judgment). I dismissed all Charter applications and admitted the breath test readings and blood sample analysis into evidence and found Mr. Sillars' statement/utterances to Sgt. Allison of the O.P.P. were voluntary and dismissed the s. 10(b) Charter application respecting the same statement and held the statements were admissible.

[3] The trial was originally adjourned to dates early in March 2019, for the defence to call evidence and for final submissions to be made by counsel but these dates were later adjourned because of scheduling difficulties for defence counsel until April 24 and 25, 2019.

[4] On April 24, 2019, Jessica Hooper, mother of Thomas Rancourt, was called as the only defence witness, on the trial proper. Her evidence was completed before lunch and Mr. Thompson requested he commence final submissions on April 25, 2019. Final submissions were completed on that date and judgment was reserved until June 27, 2019, because of counsel and my schedules.

[5] This is a unique case in that it is the first time charges have been prosecuted respecting the operation of a canoe where the individual operating the canoe has consumed alcohol and marihuana prior to the operation of that canoe. In fact, the first issue raised by the defence was whether a canoe was in fact a vessel under the Criminal Code of Canada respecting charges of impaired operation, having a blood alcohol concentration greater than 80 milligrams of alcohol in 100 millilitres of blood and dangerous operation. After the presentation of the evidence called by the Crown, it was agreed by both counsel that I should hear submissions on whether a canoe was a "vessel" under the Criminal Code of Canada. I heard counsel's oral submissions on November 6, 2018 and my written reasons were provided on November 15, 2018, reported at [2018] O.J. No. 6121.

[6] As in any criminal case, David Sillars is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.), 63 C.C.C. (3d) 397, R. v. Lifchus, 118 C.C.C. (3d) 1 and R. v. Starr, 2000 SCC 40, 147 C.C.C. (3d) 449. Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[7] The defence called one witness, Jessica Hooper, and although David Sillars did not testify during the trial, as was his right, the principles enunciated in R. v. W.(D.), 63 C.C.C. (3d) 397 apply to my assessment of the whole of the evidence, including any defence evidence as well as any evidence called by the Crown.

[8] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit David Sillars of any of the offences he faces if the defence witness and/or any of the Crown witnesses' evidence raises a reasonable doubt after considering it in the context of the evidence as a whole. If it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[9] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between the witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen, 2000 SCC 56, 149 C.C.C. (3d) 77 at paras. 20-22, per Major J.

[10] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[11] However, such authorities do not prohibit the trier of fact from assessing a defence witness' evidence in light of the whole evidence, and in so doing comparing the evidence of the various witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[12] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[13] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[14] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56, is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence," (see R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15. In a recent decision, R. v. Bella-Santana, [2019] O.J. No. 1674 (OCJ), at para. 57, Felix J. provided a useful summary of the guidance on the appropriate analysis required when the prosecution's case depends on circumstantial evidence provided by the Supreme Court in Villaroman. I adopt this reasoning:

1. The trier of fact should be alerted to unconscious efforts to "fill in the blanks" or "bridge gaps" in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;

2. Reasonable doubt need not be based on an inference or a finding of fact at trial: Villaroman, at para. 28;

3. "A reasonable doubt is a doubt based on 'reason and common sense'; it is not 'imaginary or frivolous'; it 'does not involve proof to an absolute certainty'; and it is 'logically connected to the evidence or absence of evidence'": Villaroman, at para. 28;

4. Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not speculative simply because it arises from a lack of evidence: Villaroman, at para. 35-36;

5. Requiring proven facts as a pre-condition to support explanations other than guilt improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35;

6. When assessing circumstantial evidence the trier of fact should consider other "plausible theories" and other "reasonable possibilities" which are inconsistent with guilt: Villaroman, at para. 37; and,

7. In distinguishing between a plausible theory and speculation the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38.

[15] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[16] These are the principles I must use in my assessment of the totality of the evidence led during David Sillars' trial.

Position of the Parties

[17] Mr. Thompson made oral submissions on behalf of Mr. Sillars. First, he submitted the charge of over 80 simpliciter had been proven given my ruling, which found a canoe was a vessel and my Charter rulings respecting Mr. Sillars' blood alcohol concentration when the canoe capsized. It was his position the evidence did not prove Mr. Sillars caused the accident that resulted in Thomas' death as set out in s. 255(3.1).

[18] He submitted three broad points:

1. The Crown had not proved that the decision to go out in a canoe or the manner in which the canoe was operated was a marked and substantial departure or even a marked departure from the standard of a reasonable person in the same circumstances;

2. The evidence did not prove Mr. Sillars' ability to operate a canoe was impaired by alcohol or drug; and

3. The Crown had not proved the chain of factual and legal causation between Mr. Sillars' conduct and Thomas' death.

[19] The Crown submitted it was the totality of the evidence that must be examined to determine whether the essential elements of each offence have been proven beyond a reasonable doubt. The Crown pointed to a number of pieces of evidence, which when viewed cumulatively as a whole, prove beyond a reasonable doubt that Mr. Sillars demonstrated a marked and substantial departure from the conduct of a reasonably prudent individual from the norm in similar circumstances. It was the Crown's position that Mr. Sillars' decision to canoe to the yellow warning barrier, which was just above High Falls, having regard to all of the circumstances, including the nature and condition of the Muskoka River, was a marked and substantial departure from the conduct of a reasonably prudent person from the norm in similar circumstances, which showed a wanton and reckless disregard to the life and safety of Thomas Rancourt.

[20] It is my view based on the submissions of both counsel there is agreement as to the legal tests I must apply respecting criminal negligence and dangerous operation of a vessel, which I have set out below. It is further my view both counsel agree with how causation is proven respecting the added element of "cause death" in respect of each of the charges Mr. Sillars is facing as they cite the same caselaw, however, they interpret the facts differently on this issue.

[21] Mr. Thompson conceded the offence of operate a vessel with greater than 80 milligrams of alcohol in 100 millilitres of blood was made out based on the Intoxilyzer results and the SMMH blood analysis, which were converted by CFS into milligrams of alcohol in millilitres of blood. He argued for the first time that the Crown had failed to establish the continuity of the sample of blood seized by police from SMMH as being Mr. Sillars' blood. I will address those submissions later in my reasons. Further, the defence only conceded the over 80 charge simpliciter, arguing the chain of causation was broken based on the evidence and therefore the Crown had not proven beyond a reasonable doubt that Mr. Sillars' conduct or actions caused the death of Thomas Rancourt. I will address those submissions when I address generally the issue of causation in this case.

[22] Mr. Thompson argued the Crown had failed to prove Mr. Sillars' ability to operate the canoe was impaired by the consumption of alcohol and/or drugs. He pointed to the fact that no witness described Mr. Sillars exhibiting any indicia of impairment or intoxication before he set off down the river towards the yellow warning barrier and the waterfalls. It was the defence position the evidence of J.P. Palmentier, the CFS toxicologist, was too generalized to provide any evidence capable of proving Mr. Sillars was impaired.

[23] Mr. Giordano, for the Crown, submitted the evidence of the toxicologist was not too generalized as it related to the impact and effects of alcohol consumption and blood alcohol concentration together with consumption of marihuana on a person' intellectual abilities. It was his submission there was more than sufficient evidence to prove beyond a reasonable doubt impairment, however slight.

Factual Findings

[24] I fully set out the factual background of the charges facing David Sillars in the Charter judgment, R. v. Sillars, [2019] O.J. No. 603, at paras. 5 to 57; paras. 90 to 140; paras. 253 to 305 and any of the findings of fact I made throughout my analysis of the various defence Charter applications. I will briefly set what I believe to be the most salient facts to provide context, although I do not intend to reproduce every finding of fact. I rely on my findings of fact in the Charter application and do not intend to revisit them. I intend to only briefly set out the additional facts provided by Jessica Hooper of the events leading to Thomas Rancourt's death and I will deal more specifically with the facts as they relate to the defence submissions respecting whether the Crown has proven beyond a reasonable doubt the four criminal offences before the court.

[25] On Friday, April 7, 2017, David Sillars was staying at Jack Kapel's cottage on the Muskoka River. He had been dropped off at the cottage earlier in the week by his girlfriend Jessica Hooper. Jack Kapel arrived at the cottage sometime during the morning of April 7, 2017, and he testified he was coming up to check the water level and to make sure the water from the river had not flooded his cottage. His family had owned the cottage since he was 14 years old and he now owned it. Mr. Kapel testified he had been at this cottage on the Muskoka River for 29 years.

[26] Ms. Hooper testified she and David Sillars were dating and living together in April 2017. The school buses were cancelled on April 7, 2017, according to Ms. Hooper because of the road conditions, the amount of snow and slush on the roads had created dangerous driving conditions. As a result, Ms. Hooper had to drive her two children, William, age six, and Thomas, age eight, to school that morning. She picked them up after school finished, went home to pick up two life jackets, one for Thomas to wear and one for David Sillars to sit or kneel on and then she drove to Jack Kapel's cottage where she was planning to meet David Sillars. The two life jackets were children's life jackets. She testified she and David had discussed the day prior to her going to the cottage so that David could take Thomas out canoeing after she arrived. She described Thomas as being mature and well-behaved. Ms. Hooper described Mr. Sillars as being like a stepfather to Thomas, he spent time with him, taught him things and was a role model. Thomas looked up to David Sillars as a father figure. Ms. Hooper arrived at the cottage approximately an hour after school ended at 3:30 p.m. Ms. Hooper testified she did not recall if she heard on the radio there was a high water warning that day. Jack Kapel testified he does not listen to the radio but he recalled Ms. Hooper advising she had heard a high-water alert for the Muskoka River on the radio that day.

[27] Jack Kapel and another friend, Mike White, were in the living room drinking beer. Mike White lived with his mother on the Muskoka River not far from Mr. Kapel's cottage. David Sillars was in the kitchen when Ms. Hooper arrived. She observed an empty Vex cooler, which is what David drank and he had a Vex in his hand that he was drinking from. She thought he had consumed two Vex coolers before he went out in the canoe with Thomas, however, she never asked him how much he had consumed before she arrived at the cottage. It was Ms. Hooper's evidence it looked like a normal day at the river. She indicated she had canoed on the Muskoka River numerous times from "early, early summer, springtime, then all the way up until the fall." They would canoe down to the barrier above the falls and also away from the falls on the river. She has been in a canoe with David Sillars at least 30 times. She described David Sillars as a very capable canoeist. They would both paddle when she went with him in the canoe. She described Exhibit 1a and 1b (photographs taken April 13, 2017) as showing a stronger current than what she had observed on April 7, 2017. In the photographs Ms. Hooper testified you could see the water level was higher and there was more of a current on the surface. She had not observed the water level or current by the yellow warning barrier or at the waterfalls and dam.

[28] Shortly after Ms. Hooper arrived at Jack Kapel's cottage, David Sillars and Jack Kapel began to wrestle in the living room. Ms. Hooper testified David and Jack were always wrestling with each other, drunk or sober, so she did not draw any conclusions as a result of them wrestling. However, she did not like fighting around her children, so she left the cottage and she and the boys got in her car to leave to go home. She drove down Harmony Lane past some of the cottages. Thomas was upset and crying, as he wanted to go for the canoe ride. As a result of Thomas being upset, Ms. Hooper testified she turned around and returned to the cottage. When she got back to the Kapel cottage, she discussed with David Sillars outside the cottage the original plan they made concerning the canoe ride and she allowed Thomas to go for the canoe ride on the Muskoka River.

[29] It is my view this interaction between Ms. Hooper and Mr. Sillars concerning Mr. Sillars' wrestling match with Jack Kapel provides evidence of the effects and impact Mr. Sillars' alcohol and marihuana consumption had on his decision-making. Ms. Hooper testified she did not allow fighting in the presence of her children. This was something that upset her to the point, on this occasion, she packed her two children into her car and drove away from Jack Kapel's cottage. Mike White described Ms. Hooper and Mr. Sillars having an argument over this issue and Ms. Hooper left the cottage. Mr. White in my view would have no reason to make this argument up and he testified the argument was concerning Mr. Sillars and Mr. Kapel engaging in a "playful tussle" where some furniture was knocked over as a result. Ms. Hooper said, "Kids, let's go. We're leaving," and they left. Mr. Sillars had to go outside to talk to Ms. Hooper to "convince her everything is okay." I do not accept Ms. Hooper's characterization of this disagreement. Her response to the wrestling or playful tussle demonstrated that for her, it was more concerning to her than she testified to, as she was prepared to leave the cottage and go home. Mr. Sillars had to convince her everything was okay to get her to stay. Further, Mr. Sillars, according to Ms. Hooper, was aware of the purpose of Ms. Hooper coming to the cottage and that was to take Thomas for a canoe ride, yet he began to wrestle with Jack Kapel knowing Ms. Hooper did not approve of such conduct in front of her children. In my view this further supports the reasonable inference Mr. Sillars' consumption of alcohol and marihuana was affecting his decision-making.

[30] Ms. Hooper testified Mr. Sillars did not show any signs of impairment when she was with him, his speech was not slurred, his co-ordination was fine, he did not have any difficulty articulating his thoughts, his balance was fine and he had no difficulty pushing the canoe off from the shore and then kneeling from a standing position. She watched David Sillars paddling the canoe close to the shore on the right side of the river. She identified Exhibits 28a and 28b as photographs of the river (taken April 13, 2017) and showing the shore opposite the Kapel cottage and the river to the right of the Kapel cottage going towards the Highway 11 Bridge. The Bridge cannot be seen in Exhibit 28b as one looks down the river to the right of the cottage. Further, the yellow warning barrier cannot be seen from the Kapel cottage. Exhibit 5 is a Google Earth photograph showing cottages on the east side of the Muskoka River, some distance from the Highway 11 Bridge, the Highway 11 Bridge, yellow warning barrier just west of the Bridge and then High Falls.

[31] Ms. Hooper described April 7, 2017, as being sunny and it was not too cold. She saw David Sillars empty his pockets of his phone and keys in the cottage as he got ready to go for the canoe ride. Mike White offered to get David Sillars an adult lifejacket but David Sillars said no. Ms. Hooper testified she brought two children's lifejackets to the cottage. This meant the lifejacket Mr. Sillars planned to kneel on was her younger son, William's, lifejacket. This was confirmed by Mr. White and was the reason he offered to get Mr. Sillars an adult lifejacket. David Sillars told Mike White he did not want an adult lifejacket because he had white-water rafted previously, knew what he was doing and did not need one. Mr. Kapel also testified he told Mr. Sillars to take a lifejacket and offered him one. He had lifejackets at his cottage. Mr. Sillars refused the offers of an appropriately sized life jacket for himself.

[32] Both Jack Kapel and Mike White testified they told David Sillars when he indicated he was going to go canoeing on the Muskoka River that he should not go because of the spring run-off, the increased water levels – the water was too high, the stronger current and the cold water temperature. David Sillars brushed them off and said he was going to go down to the falls with Thomas. Jack Kapel testified he believed Jessica Hooper also told David Sillars it was not a good idea to go canoeing. Ms. Hooper denied expressing any reluctance to Mr. Sillars going down the river with Thomas.

[33] In cross-examination she agreed she provided a written statement to a police officer at the hospital but when she was asked if her memory was better and fresher than when she was testifying, she indicated it was very stressful when she provided the statement and that she "really wasn't thinking of what happened, all [she] was thinking is that [her] child was dead." She ultimately agreed she did not have a mindset to make things up or lie and she agreed she tried her best. She testified she did not recall telling the officer she and David Sillars were not together, they were only friends and he just does stuff around her house in exchange for staying with her. She testified they had a weird relationship, they were looking at the possibility of being together and they had not ruled it out completely.

[34] Ms. Hooper agreed there was an ongoing battle between her and other members of her family stemming from her actions in relation to Thomas that might ultimately lead to her losing custody of her son, William. She disagreed she was strongly motivated to make her actions look safe because if she told the truth she might lose William. She agreed in hindsight the tragic passing of Thomas was a massive problem in judgment on her part. When the Crown put to Ms. Hooper nothing surprising happened to Thomas as he was killed by circumstances that she could see, the river was there, the falls were there, it was no surprise, Ms. Hooper repeated a comment she made throughout her cross-examination, "I put him in a boat, I didn't put him in the water."

[35] She agreed she put a lifejacket on Thomas but would not initially agree she put it on him in case he fell in the water. She attempted to deflect this question by saying you put a seatbelt on a child in a car but then agreed she put a lifejacket on Thomas in case there was an accident. She testified however she did not believe Thomas was going to fall out of the boat. She testified it was "not a question of whether the conditions were proper or not," you always put a lifejacket on a child in a boat. She eventually agreed she put the lifejacket on Thomas in case he fell out but it was not the only reason and she did not put it on him so that he could fall out of the boat. In my view Ms. Hooper's evidence concerning the lifejacket was defensive and evasive and on many occasions her answers were not responsive to the questions being asked.

[36] This was a constant theme in Ms. Hooper's cross-examination. Other areas where she was in my view evasive and not forthright in her answers included the outside temperature being cold; the lifejacket being too small and too tight for her son because of its weight classification (Exhibit 20, shows the lifejacket Thomas was wearing was for child, 30 to 60 pounds, PC Woods, who carried Thomas' body after PC Reading retrieved him from the river below the waterfalls, estimated Thomas weighed perhaps as much as 80 to 90 pounds) Ms. Hooper said she did not know Thomas' weight, when pressed she said perhaps he was 75 pounds; the temperature of the water being extremely cold given the time of year and she initially testified in–chief she had canoed on the Muskoka River many times and was familiar with it but in cross-examination she changed her testimony to only being "somewhat" familiar with the Muskoka River. She claimed not to know what her son's weight was in 2017 and when pressed about the water temperature she responded she did not have a thermometer with her. In my view she was also evasive concerning the warnings printed on the yellow barrier (Dam Ahead – Keep Away) that floated on the top of the water from one side of the river to the other. It was her evidence that you cannot see the warnings on the buoys because they were under the water. This does not accord with the photographs of the yellow warning barrier, where these warnings are clearly visible on numerous buoys stretching across the river (see Exhibits 9a, 9b, 16-15, 16-16, 16-18) as well as the evidence of numerous police officers and Mr. Kapel.

[37] She finally agreed as a mother she would be concerned about what would happen if her son fell in the water but she responded she and Mr. Sillars had a plan of where Mr. Sillars and her son were going and how long they would be. When asked about what the plan was, Ms. Hooper testified she was planning on watching them paddle down the river and "they were staying close to the shore, in case she had to pick them up." In my view this response did not make sense as Exhibit 28b clearly showed the river bends as one proceeds in the direction of the Highway 11 Bridge. Ms. Hooper could not see the Bridge or the yellow warning barrier or High Falls from the Kapel cottage. How would she become aware to "pick them up" if they were experiencing a problem when she could not see to the Bridge or even very far down the river (see Exhibit 5)? Mr. Sillars took his cell phone out of his pocket, so he would not have been able to call Ms. Hooper for assistance. In my view Mr. Sillars taking out his phone and leaving it in the cottage leads to the reasonable inference he was aware of there being a real possibility of the canoeing capsizing or tipping and he and Thomas ending up in the water.

[38] Ms. Hooper in her evidence maintained she only recognized the risks after the fact despite having been on the Muskoka River many times. In my view it was particularly revealing that Ms. Hooper, when asked when she had paddled on the Muskoka River testified "early, early summer, springtime" without signifying what months she was speaking of. Mr. Kapel, who had cottaged on the Muskoka River for 29 years, testified he would not go on the river any earlier than May because of the spring run-off, the swollen water levels, the increased strong current and the very cold water temperature. He testified it was too dangerous to go on the river any earlier than May. Ms. Hooper's evidence as to the conditions of the river were completely contrary to that of all of the other witnesses who testified about this issue. She maintained the water level of the river on April 7, 2017, was not high at all. Jack Kapel testified the water was higher on April 13, 2017, when Exhibits 1a and 1 b were taken but the water was already quite high on April 7, 2017, and he could see the current was pretty strong – moving rapidly. He estimated the temperature on April 7 was 3 or 4 degrees Celsius.

[39] The water was not fast-flowing, according to Jessica Hooper but when pressed on this her evidence changed. She indicated the water was extremely fast-flowing at the waterfall but not by the cottage where they began canoeing. In fact, all of the photographs of the barrier, taken the day after (April 8, 2017) the canoe capsized, show the river's current at the yellow warning barrier was extremely fast-flowing (see Exhibits 9a, 9b, 16-14, 16-15, 16-16, 16-17, 16-18 and 16-5). Ms. Hooper did not go to see, prior to Mr. Sillars leaving the cottage, the area around the barrier or the area of the river just above High Falls or the turbulent nature of the waterfalls themselves caused by the high water level and the increased current, yet she knew David and Thomas were paddling towards these areas.

[40] Ms. Hooper in-chief testified there was a lot more snow and ice on the property around the cottage on April 7, 2017, than reflected in Exhibits 1a and 1b, which were taken on April 13, 2017. This evidence concerning the snow and ice on the land around the Muskoka River was consistent with the photographs filed of the area around High Falls (Exhibits 8a, 8b, 8d and 8e). Those photographs were taken on April 8, 2017, which showed both snow and ice on the land by the river. In fact, some of the photographs of the river below the falls where Thomas was located show ice chunks floating in the river (Exhibits 8d and 8e). The photographs of the river around the barrier and beyond the barrier towards the top of High Falls show a strong, turbulent current in the water. The photographs of High Falls (Exhibit 8a, 8b, 8d and 8e) clearly show the excessive amount of water flowing over the falls such that rocks that are normally visible in the summer and fall were completely covered in water (see Exhibits 2a and 2b and Exhibit 4: photographs on Google taken in October 2017). Many of the police witnesses described the Muskoka River as having elevated water levels and fast currents caused by the spring run-off.

[41] All of the witnesses described the temperature of the water itself to be extremely cold or frigid (including PC MacDonald, PC Woods, PC Maki, Jack Kapel and Mike White) PC Woods testified he was only in the river up to his waist and he was extremely cold and shivering when got out. He described PC Reading who swam out into the river below the waterfalls to rescue Thomas as also suffering from the very cold water. PC Reading was unable to continue her shift because of the effects of the cold water. PC Woods knew they had arrived at the location they saw Thomas in the water at 5:46 p.m. and a couple of minutes after they had Thomas out of the water, performing CPR. The EMS ambulance arrived on scene at 5:52 p.m. Both PCs Woods and Reading were in the water for approximately 4 minutes. Mr. Sillars himself believed he almost did not make it to the shore because the temperature of the water was so cold and PCs McDonald and Coles believed he was suffering from hypothermia and he was diagnosed by the ambulance attendants and by the doctor and nurses at the hospital as suffering from hypothermia.

[42] In my view there is a reasonable inference that Mr. Sillars knew just how rough and fast-flowing the Muskoka River was at the yellow barrier and above the High Falls as he knew there was a blue barrel hung up on and wedged against the yellow warning barrier by debris. The only way he would know of this blue barrel is if he either walked to the yellow barrier on shore and observed it or had gone out previously onto the river in a canoe and paddled to the barrier or he had seen it from the Highway 11 Bridge. He did not have a car as he was dropped off earlier in the week by Ms. Hooper. Mr. Kapel arrived at his cottage on April 7, 2017, a couple of days after Mr. Sillars had been dropped off by Ms. Hooper. Further, he was clearly aware of the danger associated with attempting to dislodge it from the yellow barrier, as from the photographs, Exhibits 16-14 to 16-18, the blue barrel is visibly wedged against the barrier by what appears to be a thick yellow hose, logs and branches and a staircase of some sort from a dock, as well as other debris. If he went to the barrier he would also have seen the increased amount of water going over High Falls at that time as well as the turbulent and swift current. I will deal with this evidence in greater detail later in my reasons.

[43] School buses had been cancelled on April 7, 2017, which Ms. Hooper was aware of, she testified this was because of slush and ice from the weather overnight, which made the road conditions dangerous. All of the police witnesses testified the air temperature at around 5:30 p.m. was 3 to 4 degrees Celsius, which in my view is still quite cold. All of the witnesses described the spring run-off occurring and the snow pack was melting, which significantly increased the water levels and strength of the river's current. PC Woods testified to the severe cold of the river itself and the force of the current, which was noticeable even though he was in the water by the shore, downriver from the waterfalls, holding onto the rope tied to PC Reading. In contrast to this evidence was Ms. Hooper's evidence that it was just a "normal day on the river." Ms. Hooper testified she did not see or go to look at the area around the barrier or High Falls, as she did not drive over the Highway 11 Bridge. As a result she did not have any idea of what the river's current was at the barrier or just before the waterfalls. I do not accept Ms. Hooper's evidence concerning the conditions of the Muskoka River on April 7, 2017. It is my view she was attempting to rationalize and minimize the dangerous conditions that clearly existed on the Muskoka River when she allowed her son to go for a canoe ride in the direction of the barrier and High Falls. It is my opinion that Ms. Hooper's reluctance to answer questions and her evasiveness was as a direct result of what she described as an on-going battle with members of her family over her continued custody of her son William and also the fact she allowed and encouraged Thomas to go canoeing with Mr. Sillars in the conditions that existed on the Muskoka River, which in my view clearly led to his death after the canoe capsized.

[44] Ms. Hooper agreed she knew the current in the river pushed you towards a waterfall. A rocky, steep, and dangerous waterfall. This was not a surprise to her. It was not a surprise to Mr. Sillars. When asked if she had discussed this with Mr. Sillars before he left with Thomas she said she had not because Mr. Sillars and Thomas were not going that far. All of Mr. Sillars statements to the different police officers advised he and Thomas were canoeing right up to the barrier, just above High Falls to retrieve a blue barrel that was hung up on the barrier and wedged against the barrier by the debris. From his statements the plan was for them to paddle to the barrier to extricate this blue barrel and it was during their attempt to free up the blue barrel that the canoe capsized or tipped.

[45] In my view it is significant that Ms. Hooper testified the plan she had discussed with Mr. Sillars was only to see if the blue barrel was still there and to only paddle to the cottage side (or east side) of the Highway 11 Bridge and then return to the cottage. These were the questions and answers relating to this issue in cross-examination:

Q. But in hindsight, you realize that if you admit he's going to that dangerous area to look for the barrel...

A. They weren't going for the barrel. They were going to look.

Q. To look. There's nothing that requires you to be in four-degree water to look, is there?

A. They weren't in the water. They were in a canoe.

Q. Ms. Hooper, you realize that putting your child in a canoe on that day...

A. You think I don't realize that? I just spent the last two years dealing with the loss of my son.

Q. And the only way you deal with it is by portraying it as innocent.

A. No.

Q. And not realizing the horrible mistake that you made.

A. I've said it over again and again and again, I allowed him to go. That's something I have to live with.

Q. You allowed him to go in frigid water temperature.

A. He was in a boat. Do you not understand that? He was in a boat. (Ms. Hooper screamed this answer)

Q. And people fall out of boats.

A. Apparently.

Q. You knew that. You knew it happens, right? You knew it was an incredibly dangerous thing, right?

A. After the fact, I knew it was incredibly dangerous, yes.

Q. Why after the fact?

A. Because I put him in a boat. I knew where he was going. He wasn't going down to the barrier to be flipped over.

Q. In fact, you said he wasn't going down to the barrier at all.

A. Exactly.

Q. Would it have been a bad idea to go down to the barrier?

A. If they were going down to the barrier, I would have said no.

Q. Because it's not a good idea to go to the barrier.

A. Obviously not.

[46] This was completely contrary to Mr. Sillars' statements to the police. He told PC MacDonald/PC Coles, PC Maki and Sgt. Allison he was canoeing to the yellow barrier to get a blue bucket or barrel. It was also contrary to what Jack Kapel testified Ms. Hooper told him, namely that David and Thomas were going down to the falls. Ms. Hooper was clear in her evidence that Mr. Sillars and Thomas were not supposed to go right up to the blue barrel or the yellow barrier. In fact, if Mr. Sillars had told her this was the plan, she testified she would not have let Thomas go for a canoe ride. She agreed she knew it was obviously not a good idea to go to the yellow barrier to get the blue barrel. Both versions of this plan cannot be true – either Mr. Sillars was just going to see if the barrel was still there and turn around before he got anywhere close to the barrier or Ms. Hooper and Mr. Sillars had both agreed he was going to the barrier to get the blue barrel. In my view Ms. Hooper's evidence on this issue is extremely revealing and significant. It demonstrates a recognition of the considerable danger of canoeing up to the yellow barrier to retrieve a blue barrel, having regard to the existing water conditions of the Muskoka River on April 7, 2017.

[47] It is interesting that when it was suggested to Ms. Hooper they could have seen the yellow barrier from the Bridge to see whether the blue barrel was still there, she said for the first time there was another reason why Mr. Sillars and Thomas were going towards the barrier and that was to see the beaver trails along the shore of the river. She testified they had watched the beavers in the winter and saw where they slide across the water. If the beavers were sliding across the water near the Kapel cottage this implied the water in the river was open and not covered with ice and snow, which leads to the obvious questions of how and where Ms. Hooper would have been able to see the beavers doing this. Certainly she was not in a canoe on the Muskoka River in the winter. She did not testify she had canoed on the Muskoka River in the winter. It is my view this was an after the fact rationalization by Ms. Hooper to try and justify and provide an innocent reason for Mr. Sillars taking Thomas in a canoe towards the yellow barrier and the waterfalls. Mr. Sillars never told anyone he was canoeing on the Muskoka River to see beaver trails.

[48] It could also be suggested that Ms. Hooper was aware David Sillars was paddling to the barrier to retrieve the blue barrel but she did not want to admit that she knew this because this was clearly a dangerous activity, which she ultimately testified she would not have allowed Thomas to do. Either way, it was Ms. Hooper's evidence she believed going all the way to the yellow barrier would have been very dangerous and she would not have allowed Thomas to go if that had been Mr. Sillars' stated plan.

[49] Ms. Hooper was asked if she saw Mr. Sillars put the canoe in the water and she said "no," however, the next question she was asked was did Mr. Sillars seem to have any difficulty putting the canoe in the water and she answered, "Not that I recall." Then she was asked what she was doing when David Sillars put the canoe in the water and she said, "Putting a lifejacket on Thomas." Both she and Mr. Kapel testified she put on Thomas' lifejacket inside the cottage, which would mean she was not in a position to see if Mr. Sillars had any difficulty getting the canoe and then putting it in the water. At one point in her evidence she testified the canoe just appeared by the water and she did not know how it got there. It is my view her response to whether Mr. Sillars had any difficulty putting the canoe in the water was a further example of Ms. Hooper trying to say things favourable for Mr. Sillars and by implication for herself, even when she was in no position to see what she was describing.

[50] Throughout Ms. Hooper's evidence she was clearly trying to rationalize her decision to allow her son to go for a canoe ride. She was not prepared to concede even the most logical and sensible suggestions made by the Crown relating to the air temperature, the increased water level caused by the snow melting and the spring run-off, the stronger current created by the increase in water being pushed towards the waterfalls and the frigid water temperature. Another frequent feature of Ms. Hooper's evidence in cross-examination was that she was combative with Mr. Giordano, who was quiet, calm and courteous towards her throughout his questioning. At one point in her cross-examination when she was asked if she disagreed or agreed with the suggestion put to her that "Thomas was not a particularly capable swimmer," Ms. Hooper responded: "I'm not going to agree with anything you're saying right now." In my view this demonstrated she had an agenda when she answered the questions put to her and it was my opinion she had become antagonistic and argumentative at that point.

[51] As I discussed earlier a repeated theme in Ms. Hooper's evidence was the fact she had put her son in a boat and had not put him in the water to swim. She had not put him in a boat to go in the water. "He wasn't going down to the barrier to be flipped over." This comment was inconsistent with her earlier testimony that the plan was for David Sillars to canoe to the cottage side of the Highway 11 Bridge, as she now seemed to be conceding the plan was to canoe to the yellow barrier. At one point Ms. Hooper screamed and yelled very loudly at Mr. Giordano, "He was in a boat. Do you not understand that? He was in a boat." Ms. Hooper's outburst was completely uncalled for and was frankly quite alarming and troubling. It was not responsive to the question the Crown was asking, which I find was a common feature of her manner of answering questions. I believe having regard to the totality of her evidence this was Ms. Hooper's way of coping with and rationalizing the loss of her son and that she was completely unable to address the obvious risks and dangers associated with putting her son in a canoe that was proceeding down a river towards a waterfall during spring run-off, with a swollen water level, increased current and frigid temperatures.

[52] In many respects, as I have discussed above, Ms. Hooper's evidence was not helpful to the defence position respecting the charges and in a great number of instances, as I have indicated, I do not accept her evidence. Ms. Hooper's evidence has not caused me to alter or change any of the findings of fact I made in the Charter ruling, reported at [2019] O.J. No. 603. It is my view Ms. Hooper was a partisan, biased witness who clearly had her own agenda, which was evidenced by the manner she answered questions and in her evasiveness. Her evidence was completely contrary to the other witnesses, Jack Kapel and Mike White and the police witnesses who provided evidence concerning the condition of the water in the river and it did not raise a reasonable doubt respecting any of the charges before the court. For the reasons indicated above I do not accept her evidence where it conflicts with the evidence of any other witnesses.

Continuity of Red Top Blood Vial Seized by PC McDonald from SMMH by Search Warrant

[53] Before setting out the applicable law as well as identifying my key findings of fact in this case, it is my view I should first deal with an issue raised by the defence during oral submissions after the completion of the evidence called on Mr. Sillars' trial.

[54] The defence position relates to two issues: first, the defence argued there was no evidence from the technician who, under the supervision of the original CFS toxicologist, Amanda Lowe, completed the testing of the red top (stopper) vial of blood to determine the blood alcohol concentration (BAC) and therefore I should not give any weight to Mr. Palmentier's evidence respecting the BAC obtained from this vial of blood or the analysis of the blood which determined there was 14 ng of THC. Second, the defence argued the Crown did not establish the continuity of this red top vial of blood in order to prove it was in fact from David Sillars. These issues were not raised during Mr. Palmentier's evidence or during submissions on the Charter applications seeking to exclude this red top vial of blood.

[55] Amanda Lowe was the original CFS toxicologist responsible for preparing an expert report concerning the analysis of the red top vial of blood delivered to the CFS laboratory for testing after it was seized from SMMH pursuant to a search warrant by PC McDonald. Mr. Palmentier was requested to review the complete file pertaining to the items delivered to the CFS that Ms. Lowe reviewed, supervised and reported on because Ms. Lowe was subsequently seconded to work with the OPP and could no longer provide the expert opinion in court. No complaint was made with respect to Mr. Palmentier's involvement in this matter. He testified it is common practice for the CFS scientist who is preparing an expert opinion on a matter to have individuals employed as analysts or technicians by the CFS to perform some of the initial testing and analysis, which was done in this case. The scientist responsible for the providing the expert opinion would review the testing that was performed by a CFS technician. Mr. Palmentier testified this was what occurred in this case and Amanda Lowe supervised and reviewed the work done before providing her letters of opinion. Mr. Palmentier reviewed the entire file, which was voluminous and determined he agreed with the conclusions of Amanda Lowe in her report. In my view this is a non-issue and if Mr. Palmentier's expert opinion was being challenged by the defence because he did not perform the scientific test (gas chromatography, which determined the milligrams of alcohol present in 100 millilitres of blood as well as the THC level) he should have been specifically challenged at the time he gave his evidence. He testified he reviewed the tests done and Ms. Lowe's expert opinions and he agreed everything had been done properly and he was in a position to provide for the court his expert opinion. In my view this complaint raises a Brown v. Dunn issue as the defence did not provide an opportunity for Mr. Palmentier to address the specific complaint made for the first time in submissions, which I find to be a non-issue. As a result, it is my view this argument raised by the defence must fail.

[56] In his questioning of Mr. Palmentier, Mr. Thompson established there is a chain of continuity established within the Centre of Forensic Sciences after the item has been delivered. There was no complaint respecting the continuity of the red top vial of blood within the CFS. Mr. Thompson submitted we do not know if the red top vial of blood was in fact from Mr. Sillars because it did not have any hospital sticker on it and PC McDonald did not observe the blood being taken from Mr. Sillars. In my view this flies in the face of the position taken by the defence in their Charter application when they attempted to exclude this vial of blood. It was the defence position that the hospital, and Ms. McPherson in particular, took an extra vial of blood from Mr. Sillars and breached his Charter rights. I made findings of fact in response to the defence submission as set out in my Charter ruling, [2019] O.J. No. 603, at paras. 306 to 313, which I adopt here.

[57] PC McDonald's evidence was clear that he approached Ms. McPherson in the hospital laboratory and inquired whether she had drawn blood from David Sillars. PC McDonald testified he further asked Ms. McPherson if there were any extra vials of blood taken from David Sillars that were not needed by the hospital for Mr. Sillars' medical treatment. Ms. McPherson told PC McDonald she had drawn blood from Mr. Sillars and she provided PC McDonald with a red top (stopper) vial of blood with a label on it with David Sillars name and other information. PC McDonald testified the red to (stopper) vial of blood had a hospital label that said "David Sillars" on it. PC McDonald testified he placed a CFS seal, #2F57321 over the hospital label. The CFS seal had David Sillars' name and birthdate as well as PC McDonald's name and badge number and the date and time. He told Ms. McPherson if this vial of blood was needed by the hospital she was to use it, otherwise he would return with a search warrant to seize this vial of blood. The vial was placed in a tray marked, "Save for Police" after PC McDonald placed the CFS seal on it and put into a fridge in the hospital laboratory.

[58] Further, Mr. Wood, the hospital technologist, testified a vial of blood that was drawn from David Sillars was set aside by Ms. McPherson and a police officer [PC McDonald]. Mr. Wood, further testified if he had needed any extra blood from Mr. Sillars for tests that were ordered, he would have used this red top vial of blood. It had already been established by PC McDonald that he determined a vial of blood, the red stopper vial of blood was provided by Ms. McPherson and he put CFS seal #2F57321 on it and it was set aside for the police to return with a warrant. Mr. Wood testified the vial of blood set aside came from David Sillars and none of this evidence was challenged by the defence. The defence did not argue continuity respecting this vial of blood on the Charter application and as I found, continuity was proven beyond a reasonable doubt by the Crown. I accepted PC McDonald's and Mr. Wood's evidence, which established continuity of the red top (stopper) vial of blood seized by warrant from SHHM as being David Sillars' blood. In my view this is also a non-issue and I reject the defence submission.

"Causing Death"

[59] The defence submitted the Crown has not proven the chain of factual and legal causation between Mr. Sillars' conduct and Thomas Rancourt's death. Mr. Thompson argued if I found Mr. Sillars' conduct amounted to a "marked and substantial" departure where he showed a wanton and reckless disregard for the life and safety of Thomas Rancourt (criminal negligence) or a "marked" departure (dangerous operation) that Thomas' action of leaning outside the canoe or putting a paddle into the barrier causing the canoe to flip, broke the chain of causation.

[60] The Crown argued that David Sillars' decision to canoe to the yellow barrier to retrieve the blue barrel in the existing water conditions with an eight year old boy, as well as his decisions and actions when Thomas stood up in the canoe, leaned out and used a paddle to try to retrieve the blue barrel, were clearly "marked and substantial" departures from that of a reasonably prudent person from the norm and this demonstrated a wanton and reckless disregard for the life and safety of Thomas Rancourt and "but for" this decision Thomas Rancourt would still be alive. The Crown argued this showed that Mr. Sillars' unlawful acts were a significant contributing cause of Thomas' death.

[61] The leading cases on causation are Smithers v. The Queen, [1978] 1 SCR 506; and R. v. Nette, 2001 SCC 78, [2001] 3 SCR 488. The leading case on intervening acts is R. v. Maybin, 2012 SCC 24, [2012] 2 SCR 30. The test for causation in manslaughter (here, criminal negligence) is whether an accused person's actions were "a contributing cause of death, outside the de minimis range" (Smithers, supra, at p 519). This test has also been expressed as a "significant contributing cause" or "substantial cause" (R. v. Nette, supra, at para 72). As explained in R. v. Nette, causation has two components – factual causation and legal causation. Therefore, to determine whether a person can be held responsible for causing a particular result, in a prosecution of criminal negligence causing death, the trier of fact must decide whether that person caused death both in fact and in law (R. v. Nette, supra, at para. 44).

[62] Factual causation involves an inquiry about how the victim came to die, in a medical, mechanical or physical sense, and with the contribution of a person charged to that result: R. v. Nette, supra, at para. 44. This is the "but for" test or inquiry and is inclusive in scope: R. v. Maybin, supra, at para. 15. Furthermore, "factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause" (R. v. Maybin, supra, at para. 20). In any given case, the trier of fact will have to make an assessment of the medical cause of death, and consider the contribution of the accused to that result, usually by asking whether the deceased would have died "but for" the actions of the accused (see Maybin, supra, at para. 21). In the case at bar, portions of the pathologists' report were made an exhibit by way of an agreed statement of facts, Exhibit 22, which indicated Thomas Rancourt died as a result drowning and a skull fracture with underlying soft tissue injuries, which indicated he was still alive when these injuries occurred. The blunt impact trauma to his head may have led to concussive injury, with decreased or loss of consciousness and occurred from his striking rocks as during the descent over High Falls or at the bottom of the falls.

[63] Legal causation narrows the factual causes found to those warranting legal responsibility for the death of the deceased: R. v. Nette, supra, at paras. 45 and 83; R. v. Maybin, supra, at para. 16. As the Supreme Court held in R. v. Nette, supra, at para. 47: "The starting point in the chain of causation which seeks to attribute the prohibited consequences to an act of the accused is usually an unlawful act in itself. When that unlawful act is combined with the requisite mental element for the offence charged, causation is generally not an issue…." It is based on "concepts of moral responsibility and is not a mechanical or mathematical exercise" (Nette, supra, at para 83). As stated by Karakatsanis J in R. v. Maybin, supra, at para 29:

Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.

[64] Even though both factual and legal causation must be present, a distinct two-step inquiry is not required. The two inquiries may be joined into one by asking whether the accused person's actions significantly contributed to the victim's death (see R. v. Nette, supra, at para 46).

[65] It is my view based on the totality of the evidence that David Sillars' decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks (high water level, which caused the current to be fast-flowing, powerful and turbulent the closer one got to the barrier, the increased water flow towards High Falls and the frigid, hypothermia-inducing water temperatures), with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt's death. In my view I am satisfied beyond a reasonable doubt that but for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and would not have gone over the waterfalls and drowned. I am also satisfied beyond a reasonable doubt, considering the totality of the evidence, that Mr. Sillars decision was a significant contributing cause of Thomas' death. Further, I come to the same conclusion that Mr. Sillars' actions and decisions after the canoe capsized, which I will address in greater detail when I discuss the law respecting criminal negligence and dangerous operation, also were a significant contributing cause of Thomas' death.

[66] As indicated above, the defence contend that Thomas' actions of standing up in the canoe, leaning out of the canoe and putting his paddle into the barrier and as a result causing the canoe to flip or capsize as indicated in Mr. Sillars' statements these were intervening acts by Thomas Rancourt, which broke the chain of causation. Whether another event is an intervening act is part of the analysis as to whether legal causation has been established, and whether an accused person should be held legally accountable for the death (see R. v. Maybin, supra, at para 22). As explained by Cromwell JA (as he then was) in R. v. Tower (TJ), 2008 NSCA 3, at para. 25 (quoted in the majority judgment in R. v. Maybin, supra, at para 23):

[T]he law recognizes that other causes may intervene to "break the chain of causation" between the accused's acts and the death. This is the concept of an "intervening cause," that some new event or events result in the accused's actions not being a significant contributing cause of death.

[67] Due to the vast range of circumstances in which the issue of causation arises, there is no one test to determine whether an intervening cause interrupts the chain of causation (see R. v. Maybin, supra, at para 25). The determination as to whether an intervening act will absolve an accused person of criminal negligence will depend upon the factual context (see R. v. Maybin, supra, at para. 60).

[68] In R. v. Maybin, supra, at paras. 25-26, the Supreme Court held that one approach to determine whether a intervening act will break the chain of causation is whether the intervening act was objectively or reasonably foreseeable (see R. v. Shilon, [2006] O.J. No. 4896 (C.A.), at para. 33, where the Court held, "Reasonable foreseeability of harm, it seems to me, is relevant in the analysis of legal causation in negligence based offences.").

[69] In R. v. Maybin, supra, at para. 30, Karakatsanis J. held:

An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender of legal responsibility for the unintended result. This approach posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death.

[70] In R. v. Maybin, supra, the issue was whether the specific subsequent attack at the bar by the bouncer was reasonably foreseeable. Karakatsanis J. held for the Court, at para. 38:

…I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so, then the accused's actions may remain a significant contributing cause of death.

[71] As I found above, at paragraph 65, David Sillars' decision to canoe towards a yellow warning barrier, in the existing water conditions on April 7, 2017, with an eight year old boy, to retrieve a blue barrel from a yellow warning barrier a short distance before High Falls, was a "marked and substantial" departure from the conduct of a reasonable prudent person in the circumstances and that it showed a wanton and reckless disregard for the life and safety of Thomas Rancourt. The issue is whether Thomas standing up in the canoe, leaning out of the canoe and putting a paddle in the barrier to retrieve the blue barrel, which could result in the canoe tipping and that non-trivial injury could result, was reasonably foreseeable on Mr. Sillars' part. Further, was it reasonably foreseeable by Mr. Sillars that a canoe could capsize or tip, particularly in those water conditions, and result in non-trivial injuries? I find, on the totality of the evidence, these actions by Thomas, which led to the canoe capsizing or tipping causing them both to be tossed into the frigid waters of the Muskoka River were objectively foreseeable by Mr. Sillars, particularly having regard to Thomas' age, inexperience in canoeing, Mr. Sillars' intention and purpose going to the yellow barrier to retrieve the blue barrel and the existing water conditions I found Mr. Sillars was aware of or was wilfully blind towards. Further, it is my view Mr. Sillars was aware of the danger of a canoe capsizing or tipping, particularly having regard to the water conditions in existence and he was therefore aware of the potential for non-trivial injury, as referred to in Maybin. I find Mr. Sillars was aware or wilfully blind to the serious risk and catastrophic danger of both of them ending up in the water without Thomas doing any of the actions described by Mr. Sillars and the potential of them going over the waterfalls given the increased water levels, which resulted in the river at the waterfalls being turbulent, powerful and fast-flowing over the falls. The likelihood of non-trivial injuries would in my view be reasonably foreseeable.

[72] Consequently, I find the actions of Thomas, as described by Mr. Sillars in his statements, to be reasonably foreseeable and the chain of causation was not broken. Mr. Sillars' initial decision and his subsequent actions when the canoe capsized were also a significant contributing cause of Thomas' death. Further, I find Mr. Sillars' removal from his pockets of his cell phone and keys clearly demonstrated he was aware of the danger and risk of the canoe capsizing.

Impaired Driving Law and Findings of Fact

[73] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato (1993), 78 C.C.C. (3d) 380 affirmed, [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired.

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[74] The core issue is not whether the defendant drank and operated a canoe but whether that drinking impaired his ability to do so. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[75] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited R. v. Stellato, supra, and R. v. Censoni, [2001] O.J. No. 5189 (Hill J., SCJ) with approval and held, "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[76] In my view, the Crown has proven the charge of impaired operation of a vessel beyond a reasonable doubt based on the totality of the evidence for the reasons which follow. In my view based on the evidence of Mr. Palmentier, in conjunction with the statements made by Mr. Sillars after the incident, the statement of the law in Bush above is equally applicable to what I find is the only reasonable inference to be drawn from the evidence that Mr. Sillars intellectual abilities were impaired by his consumption of alcohol where his minimum BAC was 128 mg of alcohol in 100 mL of blood and his smoking marihuana such that at 6:45 p.m. there was 14 ng of THC in his blood.

[77] The defence argued the Crown failed to prove beyond a reasonable doubt that David Sillars' ability to operate a vessel, a canoe, was impaired by the consumption of alcohol and the consumption of marihuana. It was the defence position there was no evidence from any witness as to David Sillars exhibiting any of the usual indicia of impairment, such as slurred speech, unsteadiness in walking, difficulty with balance, blood shot or red or watery eyes and so on. Mr. White described Mr. Sillars as being intoxicated, however, it is my view he was not describing someone who clearly was "wasted" and demonstrating indicia of intoxication as indicated above. What he was referring to was someone who had consumed alcohol, was under the influence of alcohol and was more upbeat in their demeanour as a result. Mr. White referred to the incident of the play wrestling between David Sillars and Jack Kapel as an example of Mr. Sillars engaging in behaviour that was not really normal. Both Mr. Kapel and Ms. Hooper testified David Sillars was not intoxicated or showing signs of intoxication.

[78] In my view the incident involving the wrestling match with Jack Kapel in front of Ms. Hooper's children provides some evidence into how Mr. Sillars' consumption of alcohol and marihuana was affecting his intellectual abilities, as testified to by Mr. Palmentier. Mr. White described how the wrestling match resulted in some furniture being knocked over, which led to an argument between Mr. Sillars and Ms. Hooper. This was conduct that was not acceptable to Ms. Hooper in the presence of her two sons and Mr. Sillars, according to Ms. Hooper, was aware of her feelings about this. The whole purpose of Ms. Hooper coming and bringing Thomas and William to the cottage was so Thomas could go in the canoe with Mr. Sillars. This was something they had talked about previously. Mr. Sillars knew this was something Thomas wanted to do and he knew how Ms. Hooper viewed this type of conduct— wrestling and playing fighting – as being inappropriate in front of her children. In fact, Ms. Hooper packed up her things and took the boys out to the car and she actually left the cottage intending to drive home. David Sillars according to both Mr. White and Mr. Kapel chased after her and she ultimately decided to come back because Thomas became quite upset and Mr. Sillars had gone outside to persuade her to come back. Ms. Hooper described this conduct between Mr. Sillars and Mr. Kapel as to being quite common, it was something they often did together when they were drunk or sober. She responded in chief she did not conclude they were drunk or sober or anywhere in that spectrum.

[79] There was no evidence from any police officer as to any observations of indicia of impairment displayed by Mr. Sillars. It should be noted that the 911 calls concerning Mr. Sillars stumbling and wandering on the ramp onto Highway 11 all reflected concern over a possible impaired individual stumbling around in traffic, however, PCs McDonald and Coles immediately recognized when they got close to Mr. Sillars that he was suffering from hypothermia from being in the Muskoka River, as he was soaking wet and shivering uncontrollably. This presentation by Mr. Sillars took precedence over anything else and the officers called for an ambulance to deal with what they believed was a medical emergency. Consequently, his unsteadiness, his slurring of words, his red or glossy eyes, his confusion and so on, all of which could be interpreted as physical indicia of a person who is intoxicated by alcohol, were viewed by the officers as being symptoms of hypothermia.

[80] Mr. Palmentier's evidence dealt with a further impact of the consumption of alcohol and marihuana to an individual's intellectual faculties. Mr. Palmentier was accepted by the defence as an expert witness respecting the following areas of expertise:

1. The absorption, distribution, and elimination of alcohol, drugs and poisons in and by the human body;

2. The effects of alcohol, drugs and poisons on the human body;

3. The analysis of alcohol, drugs and poisons in biological samples; and

4. The theory, use and operation of the Intoxilyzer 8000C and the Dräger Alcotest Model 6810.

[81] Mr. Palmentier testified that an individual who has consumed alcohol can be impaired without showing outward signs of intoxication or what are often described as indicia of impairment. Mr. Palmentier testified that impairment is recognized as a "decrease in the ability to perform a task due to the effects of alcohol or a drug on a person's central nervous system, which essentially is your brain and your neural network that runs from there because, of course, your brain controls bodily function. A person can develop tolerance of the outward physical signs of intoxication but still be impaired because a person cannot develop tolerance to the impairment of alcohol or drugs on the intellectual faculties required for performing complex tasks because these intellectual faculties are not under conscious control." He testified a person cannot control things such as divided attention, choice reaction time, risk assessment, decision making, vigilance, judgment and perception of speed and distance.

[82] The defence attempted to restrict Mr. Palmentier's expert opinion as to how a person's intellectual abilities are impacted and affected by alcohol and/or drugs to a person driving or operating a motor vehicle but Mr. Palmentier's evidence was clear that the intellectual abilities he was referring to apply to any kind of complex task, not just driving or operating a vehicle. Despite vigorous cross-examination on this issue his evidence did not waiver or change. A complex task is anything that might require an emergency response. Mr. Palmentier testified "...emergency situations are unpredictable and require rapid and appropriate responses and alcohol and THC both separately [and combined] can impair a person's ability to respond in an emergency situation." I accept Mr. Palmentier's expert opinion that the consumption of alcohol and THC will impair a person's intellectual faculties and the degree of impairment increases as the quantities of alcohol and THC increase.

[83] It was Mr. Palmentier's opinion that the intellectual ability of divided attention is not just required for operating a motor vehicle, but "it's any complex task." Mr. Palmentier testified if a person's divided attention, which refers to a person's ability to multitask, is impaired then it affects a person's ability to perform any task that's complex in nature. He provided an example of a person driving a car having to be aware of what is in front of the car, looking out the side mirrors and rear mirror but also being aware of what is happening inside the vehicle and with the other vehicles on the road, maintaining speed and distance and so on. In my view, based on the expert opinion of Mr. Palmentier, similar issues arise where the consumption of alcohol in combination with THC impairs a person's intellectual ability to multitask, as in the case of an adult person operating a canoe with an eight year old child, where the operation of the canoe is affected by a fast-flowing, turbulent current, which is caused as a result of the spring run-off, as the river approaches a waterfall because the water level is high, where the fast-flowing, powerful current caused the canoe to turn sideways at the yellow warning barrier, the young child stood up and reached with a paddle to try to dislodge a blue barrel wedged against the yellow barrier by debris, causing the canoe to tip and both persons are tossed into the water. In my view this is an example of the kind of complex task arising in an emergency situation testified to by Mr. Palmentier where the consumption of alcohol would impair that person's divided attention or ability to multitask.

[84] Mr. Palmentier also talked about choice reaction time: the ability to make appropriate decisions in a timely manner. Alcohol slows down the functioning of the brain such that less information is able to get in, a person is not able to look at all of the sources of information and one's ability to make appropriate decisions, particularly in an emergency situation, is diminished.

[85] In addition, Mr. Palmentier made reference to decision making, which is the ability to assess risk and risk-taking behaviour. He testified, "Alcohol causes an individual to overestimate their abilities and underestimate the level of risk associated with the task or the difficulty of the task, which results in increased risk taking." He provided an example of a person who, in a sober state, would not jump off the roof of their house into a pool because it is too far but after the person has consumed some alcoholic drinks, that same person becomes disinhibited and their ability to assess risk-taking behaviour is impaired, resulting in that individual thinking they can actually do it, so they jump and land on the hard part of the pool surface.

[86] Complex tasks, according to Mr. Palmentier's evidence, can include anything that might require an emergency response. Where a person's blood alcohol concentration is at 50 or 80 milligrams of alcohol in 100 millilitres of blood it was Mr. Palmentier's opinion that an individual would be impaired or significantly impaired in one or more of the faculties required to perform complex tasks. As the concentration of alcohol increases from zero, the effects of alcohol on impairment increase such that at 15 milligrams of alcohol in 100 millilitres of blood, an individual may be impaired in divided attention and as that concentration continues to rise, that faculty becomes more impaired. He testified as the alcohol concentration increases to 30 or 40 milligrams of alcohol in 100 millilitres of blood, choice reaction time can start to be impaired, which would mean potentially two faculties are impaired. As the alcohol concentration rises further to 60 milligrams of alcohol in 100 millilitres of blood, risk assessment is impaired. It was his evidence that these opinions were the result of years of scientific testing and study and these opinions were clearly indicated and supported in the literature.

[87] It was Mr. Palmentier's opinion that without taking an individual into the laboratory and testing them it is not possible to say to what extent their intellectual abilities would be impaired. However, in science and medicine, he testified it is valid to compare an individual to a population that has been studied. Scientists rely on the literature that is available and as a result are able to conclude that the likelihood that an individual's intellectual abilities would be impaired becomes significant at 50 milligrams of alcohol in 100 millilitres of blood and increases from that point onward such that the likelihood they are not impaired decreases with increasing blood alcohol concentration, and that is regardless of the absence of physical signs of intoxication because that can occur because of tolerance. Mr. Palmentier testified alcohol is not a performance-enhancing drug, as it does not make you better at something. It was his opinion alcohol will always impair a person's ability as the alcohol concentration increases from zero and as tasks become more complex and unpredictable as it impairs the individual's ability to respond to that particular situation.

[88] The evidence of David Sillars' blood alcohol concentration from the blood sample taken from him at SMMH at 6:45 p.m. and read back by Mr. Palmentier to the time of operation of the canoe (4:45 to 5:29 p.m.) was 128 milligrams of alcohol in 100 millilitres of blood to 170 milligrams of alcohol in 100 millilitres of blood. Therefore, the minimum BAC at the time David Sillars decided it was a good idea to canoe on the Muskoka River towards High Falls – when the river's water level was very high because of the spring run-off (snow melt), the water was extremely cold and hypothermia occurred within minutes of exposure, its current was fast-flowing and swift, particularly the closer one got to the yellow warning barrier and the waterfalls, where the current was described as turbulent, stronger than normal – was 128 milligrams of alcohol in 100 millilitres of blood, a reading that was considerably higher than 50 or 80 milligrams of alcohol in 100 millilitres of blood. The other two results from the breath reading and the conversion of 30 millimoles to milligrams of alcohol to millilitres of blood also indicated minimum BACs of 90 and 119 milligrams of alcohol in 100 millilitres of blood.

[89] In my view there is a reasonable inference based on the evidence that David Sillars' intellectual abilities, particularly in respect of choice reaction time and decision making were significantly impaired. In addition, David Sillars was told by at least two individuals, who were quite familiar with the condition of the river during the spring run-off that it was too dangerous to take a canoe on the Muskoka River and travel towards the waterfalls because of the river's water level being high, the water was extremely cold and the fast-flowing current. Mr. Sillars ignored these cautions and in my view this was an example of someone who had consumed alcohol and whose decision making ability to assess risk and risk-taking behaviour was impaired. I find on the evidence there is a reasonable inference David Sillars overestimated his canoeing abilities and underestimated the level of risk associated with the task he intended to undertake. That level of risk increased significantly when he decided it was okay to take an eight year old boy, who was an inexperienced canoeist and swimmer, where the intention was to dislodge and retrieve a blue barrel, with more than half of it submerged under water and wedged against a floating yellow warning barrier, not far from the top of a turbulent, raging waterfall.

[90] Further, David Sillars was aware of the blue barrel and its location because he told everyone afterwards he was going to the yellow barrier to retrieve the blue barrel. I find from this evidence there is a reasonable inference he was fully aware of the increased water level, the turbulent and fast-flowing current yet he made the decision to canoe towards the waterfalls. This provides evidence of how his decision-making faculties were impaired by his consumption of alcohol and marihuana. In my view this is the only reasonable conclusion available from the totality of the evidence. The police officers who observed the river in the area of the yellow barrier described the water as being turbulent and further described the water going over the falls as "overwhelming" the dam. Mr. Sillars himself described the current as being too strong and powerful to be able to turn around. As I have set out previously the photographs taken on April 8, 2017, show just how swift and turbulent and fast-flowing the river was at the yellow barrier, as well the significantly increased amount of water going over the waterfalls. Further, those photographs illustrate the extreme risk David Sillars' decision to attempt to retrieve the blue barrel created for himself and Thomas Rancourt. Again, the only reasonable conclusion is that Mr. Sillars' decision to attempt to extricate a barrel submerged and wedged against a warning barrier by debris with an eight year old child was extremely dangerous and created a significant risk of the canoe capsizing or tipping.

[91] David Sillars himself recognized in the hospital after being treated for hypothermia just how dangerous and risky his decision to canoe to the yellow barrier was. He told PC Maki, how "it was stupid, it was stupid he took Thomas, a child, with him and that they went to get a blue barrel. This was when the canoe flipped over." He also told Sgt. Allison, "I should know better....It's my fault." It is my view these comments by David Sillars represent a recognition by him that he took a serious risk he should not have taken, canoeing to an area of the river he knew was dangerous because of the current, the high water level and the extreme cold of the water and the risk was increased exponentially by his decision to retrieve the blue barrel.

[92] Mr. Thompson submitted the canoe flipping or tipping was Thomas' fault and this broke the chain of causation. I found earlier in my reasons that if Thomas stood up in the canoe, leaned out of the canoe and attempted to us his paddle to extricate the blue barrel that these actions were reasonably foreseeable and did not break the chain of causation. It is important to note as well that David Sillars was the adult who Ms. Hooper testified was looked up to by Thomas as a father-figure, David Sillars was the person teaching Thomas how to do things. Canoeing was one of the things David Sillars was going to teach Thomas. David Sillars made the decision to ignore the obvious serious risk that was clearly apparent to any reasonable prudent canoeist and it is my view there is a reasonable inference he overestimated his own abilities and underestimated the serious risk he undertook with an eight year old child because of the impairing effects of the alcohol and THC he consumed earlier that afternoon.

[93] A further piece of evidence that demonstrates in my view how the alcohol and marihuana David Sillars had consumed impaired his decision making ability was when Mike White offered to get him an adult lifejacket if he insisted he was going to canoe to the yellow barrier. David Sillars told Mike White he did not want a lifejacket as he had gone white-water rafting previously, he was experienced and he did not require one. He also turned down Jack Kapel's offer of an adult lifejacket as well. His decision to refuse an appropriately fitted PDF or lifejacket also reflects how his decision-making abilities were impaired.

[94] As an experienced canoeist there is a reasonable inference he knew he was required to bring in the canoe a buoyant heaving line, minimum length 15m; a personal flotation device (PDF or lifejacket) for each person on board the canoe, specifically one for himself; a bailer to assist in removing water out of the canoe if it tipped; and a sound-signalling device, for example a whistle or horn all of which were required by the Small Vessel Regulations under the Canada Shipping Act, 2001. He brought none of these things. Again, it is my view there is a reasonable inference this reflects how his consumption of alcohol and marihuana impaired his decision making ability. Mr. Thompson argued there was no evidence called by the Crown as to what items were required to be brought in a canoe. As I indicated all of those items were required by Regulation and Ms. Hooper described Mr. Sillars as an experienced canoeist. Furthermore, ignorance of the law is no excuse.

[95] Further, it is my view there is evidence from which there is a reasonable inference that David Sillars' consumption of alcohol and marihuana impaired his ability to react quickly to the emergency situation presented when the canoe was first caught up in the fast-flowing current of the river as it approached the floating yellow warning barrier. This evidence comes from Mr. Sillars' own words trying to explain what happened. In his statement to Sgt. Allison he said the "current was so fast and powerful." Mr. Sillars continued, "The current is so great. We tried to go back. We were sideways. He leaned and we tipped." Mr. Sillars made similar comments to other officers about Thomas leaning over and the canoe tipping (PC Maki and what PC Baril overheard him say to Ms. Hooper) and he told Jack Kapel about Thomas putting his paddle in the barrier and that was why the canoe flipped. In fact, there is a paddle visible, sticking perpendicularly out of the debris against the yellow barrier – close to where the blue barrel was wedged. In my view in light of the above evidence there is a reasonable inference this paddle is Thomas' paddle.

[96] Mr. Sillars' statements to the police concerning how he reacted to the emergency situation that occurred when the canoe tipped or capsized, throwing him and Thomas into the frigid, fast-flowing waters of the river also demonstrated in my view impairment of his choice reaction time. He described Thomas floating away and thought he went under the yellow barrier. Mr. Sillars did not have a lifejacket. He was able to remove his jacket and shoes so he could swim to shore. He told police he almost did not make it. Thomas was not able to swim to shore. Mr. Sillars told police he thought to swim after Thomas but Thomas had a lifejacket on so he went to call 911. Thomas may have had a lifejacket on but after going under the yellow barrier there was only one place he was going to go and that was over the waterfalls, which had so much water flowing over it that the rocks normally visible were completely covered by water and the water was overwhelming the dam. It is my view there is a reasonable inference that this demonstrates Mr. Sillars' consumption of alcohol and marihuana impaired his choice reaction time and judgment in terms of how he responded to the emergency he was presented with. I accept the expert opinion of Mr. Palmentier concerning how the consumption of alcohol and marihuana will impair a person's ability to respond quickly and appropriately to emergency situations. The evidence disclosed by Mr. Sillars in his police statements in my view clearly demonstrated Mr. Palmentier's expert opinion.

[97] Mr. Palmentier was asked about the impairing effects of THC on a person's intellectual faculties. He testified the greatest effect of THC in terms of impairment occurs between 30 to 40 minutes after consumption ends and then continues for two to four hours after that. The effects would be diminishing towards the end of that time. Typically a person's blood 30 minutes after consumption would reflect 100s of nanograms of THC. Mr. Palmentier could not provide any evidence respecting how the marihuana was ingested by Mr. Sillars, he either ingested it orally, smoked or vaped it. Mr. Kapel testified Mr. Sillars mixed marihuana with tobacco and smoked it. In terms of timing the evidence disclosed a rough timeline for when Mr. Sillars smoked the marihuana. It was prior to Ms. Hooper arriving at the cottage sometime between 3:30 and 4:00 p.m. and was prior to Mr. White arriving at the cottage, which was an hour or two before Ms. Hooper arrived but he was unsure of times or how long he was at the cottage before she arrived. Mr. Kapel could not recall when he arrived at the cottage but Mr. Sillars was already there. Therefore, from the evidence there is a reasonable inference Mr. Sillars consumed marihuana sometime prior to but perhaps as late as 3:00 p.m. It is unknown exactly when the marihuana was consumed. Individuals who consume marihuana regularly also build up a tolerance for outward signs of indicia and a small amount of THC will remain in a person's body who is a regular user, around 2 ng.

[98] Mr. Palmentier testified one cannot say if a person is impaired at a particular drug concentration of THC. The drug concentrations in THC when you smoke marihuana increase very rapidly and decline very rapidly but the effects can last much longer than the concentration that is detected in the blood. 14 nanograms of THC per millilitre of blood would indicate there was recency of use of marihuana by David Sillars. Mr. Palmentier testified this level of THC could not come from second-hand smoke or be a quantity remaining in the blood of a regular user. Ms. Hooper testified she did not smell marihuana at the cottage when she was there. When it was suggested to Mr. Kapel he was wrong about Mr. Sillars and him smoking marihuana he said, "No." When Mr. Thompson suggested again no one was smoking marihuana at the cottage, Mr. Kapel said, "Possibly, I don't remember." It is my view Mr. Kapel was very certain in his evidence in-chief and initially in cross that he and Mr. Sillars smoked marihuana. The fact is the evidence disclosed that Mr. Sillars did recently consume marihuana as evidenced by the 14 ng of THC found in his blood drawn at 6:45 p.m. at the SMMH. I find that David Sillars consumed both alcohol and marihuana when he was at Jack Kapel's cottage prior to deciding he was going to canoe with Thomas Rancourt to the yellow barrier to retrieve the blue barrel wedged in the debris.

[99] If a person is consuming alcohol and marihuana (THC) together and they are both producing an impairing effect on the person's intellectual faculties that effect becomes even greater than either of the two drugs alone because they both impair the same sort of intellectual faculties like divided attention, choice reaction time and decision making. Emergency situations are unpredictable and require rapid and appropriate responses and alcohol and THC both separately [and in combination] can impair a person's ability to respond in an emergency situation. It was Mr. Palmentier's evidence that if alcohol and THC are taken together they would impair a person's intellectual faculties even more.

[100] Mr. Palmentier referred to a study where BAC readings were compared to levels of THC in a person's blood. This study, in relation to driving within a lane and how much the car position changes in relation to BAC and level of THC found that 8.2 ng of THC in one mL of blood had a similar effect on a person whose BAC was 50 mg of alcohol in 100 mL of blood. The study also found 13.1 ng of THC produced a similar effect on driving as did 80 mg of alcohol in 100 mL of blood.

[101] I was provided by the defence the decision of the Ontario Court of Appeal in Smith v. Safranyos, 2018 ONCA 760, [2018] O.J. No. 4765, a civil case, which dealt with an issue of the test for non-repair by a municipality in assessing liability apportionment in a serious traffic accident. This issue is not relevant to the case at bar. The court also dealt with the trial judge's findings respecting the other driver, Mr. McHugh, who was also involved in the accident, who had a blood alcohol concentration of between 66 to 82 milligrams of alcohol in 100 millilitres of blood at the time of the accident as testified to by a toxicologist.

[102] The facts are important to an assessment of whether Paciocco J.'s reasoning has applicability to the facts of this case. Ms. Safranyos was driving a motor vehicle with four children in the vehicle. Ms. Safranos turned in front of the Mr. McHugh's motor vehicle. Mr. McHugh had the right of way and Ms. Safranyos created an immediate hazard. The trial judge found Ms. Safranos 50% liable, the City of Hamilton 25% liable (as a result of the non-repair issue) and Mr. McHugh 25% liable because of his alcohol consumption, which affected his "reaction and perception time, his speed, his inattention, and the fact that he had a last clear chance to avoid a collision [which] were causes of this accident." Paciocco J. found three errors in the trial judge's findings of fact relating to: i) the trial judge's finding that Mr. McHugh could have avoided the collision; ii) the trial judge's finding the collision would not have occurred had Mr. McHugh been travelling at the speed limit and iii) the trial judge's misuse of the evidence of Mr. McHugh's intoxication, particularly his BAC.

[103] The first two errors related to the trial judge not properly considering evidence supporting Mr. McHugh's position that he could not have avoided the accident and because he could not have avoided the accident his speed was irrelevant. The third error arose because of the trial judge's finding of impairment was not supported by the evidence of the toxicologist on the facts disclosed during the trial. The trial judge found based on Mr. Kupferschmidt's read back of 66 to 82 mg of alcohol in 100 mL of blood that Mr. McHugh "would have been impaired according to the Highway Traffic Act of 0.05 blood alcohol level" and that, if charged criminally he would have been convicted based on his blood alcohol readings of impaired driving. Neither of those conclusions were available to the trial judge. Justice Paciocco found that the factual question of whether Mr. McHugh was impaired by alcohol was to be determined on the evidence not by legislated levels of tolerance for blood alcohol and the trial judge's use of the legislation showed a material misunderstanding of these provisions and their application.

[104] In Smith v. Safranyos, the trial judge's finding that Mr. McHugh would be convicted of impaired driving because of his breath reading was wrong in law. The evidence was that McHugh's readings "straddled" the legal limit. The possibility Mr. McHugh's BAC was under 80 mg could raise a reasonable doubt in appropriate cases: R. v. Ibanescu, 2013 SCC 31, [2013] 2 S.C.R. 400; and R. v. Roberts, 2018 ONCA 411, at paras. 111-13. An important consideration is the extent to which the range exceeds the legal limit: R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, at para. 73. Mr. McHugh's range falls predominantly below the legal limit. The trial judge's claim that he would have been convicted if he had been criminally charged was therefore highly questionable. Paciocco J. found even if Mr. McHugh could be found guilty because of his blood alcohol range, it would not be for impaired driving. The evidence of the toxicologist could not be linked in any way to the evidence relating to Mr. McHugh.

[105] Justice Paciocco made the following finding based on the evidence of the toxicologist led during the trial and the trial judge's use of that evidence.

In my view, the trial judge misused this evidence. In effect, she reasoned that since the unspecified odds are that Mr. McHugh would be one of those people who has impaired faculties at the blood alcohol range he exhibited, he should be treated as impaired. This was not appropriate. The trial judge had no evidence before her about whether Mr. McHugh exhibited any physical signs of impairment, or any other indicia of impairment to ground her finding. Indeed, the police and hospital records taken on the night of the accident did not indicate that Mr. McHugh was impaired. Care has to be taken in using general probabilities as proof capable of forensic application in particular cases. In my view the trial judge did not properly understand the limits of the expert evidence.

[106] It is my view there was ample evidence in Mr. Sillars' case, as I have discussed above, linking Mr. Sillars' consumption of alcohol and marihuana (THC) to the reasonable inference of his intellectual faculties relating to divided attention, choice reaction time, decision-making being significantly impaired as well as his ability to respond to emergency situations. As I have found above, the only reasonable conclusion available on the totality of the evidence is that David Sillars' decision – to take an eight year old little boy in a canoe on the Muskoka River, in early April, when there was still snow and ice on the land around the river, during the spring run-off, with highly elevated water levels, frigid, hypothermic-inducing water temperature and a substantially increased, fast-flowing, turbulent and powerful current, which was moving towards High Falls, where the only thing preventing the canoe from plunging over the waterfalls was a yellow warning barrier, which floated on the water and was clogged with debris, including tree limbs, logs, dock stairs, and other garbage, with his stated intention of retrieving a blue barrel, which was half-submerged in the water and wedged in by the debris against the barrier – was made by him as a direct result of his consumption of alcohol and marihuana, which impaired his intellectual faculties, in particular his decision-making, choice reaction time and judgment abilities, having regard to his minimum BAC of 128 mg of alcohol in 100 mL of blood and his THC level of 14 ng, which were acquired from the CFS testing of the blood sample of Mr. Sillars obtained by SMMH.

[107] It is also my view that Mr. Sillars' decision to ignore the warnings of his friends not to go canoeing because of the dangerous water conditions and his refusal to then accept the offer of an adult lifejacket, which he could have worn because of the dangerous water conditions, as well as his failure to bring in the canoe the required safety equipment, demonstrated how the alcohol and marihuana impaired his decision making faculties. Further, it is my view Mr. Sillars' description to a number of police officers and Mr. Kapel of what happened to cause the canoe to tip or capsize as a result of Thomas standing up and attempting to use his paddle to retrieve the blue barrel as well as his actions allowing Thomas to float away under the yellow barrier towards the waterfalls because Thomas was wearing a lifejacket and he was not, so he decided to swim to shore and call 911, demonstrated how his choice reaction time and his response to an emergency situation were impaired by his consumption of alcohol and marihuana. Thomas was in the front of the canoe, according to Ms. Hooper, and Mr. Sillars was supposedly an experienced canoeist who would have been aware of the significant danger created by Thomas standing up and leaning out of the canoe after the canoe had turned sideways, as he described in his various statements because of the strong and powerful current, yet he did not promptly react in an appropriate manner to stop Thomas and tell him to sit down and not stand up or lean out of the canoe. It is my finding the actions taken by Thomas as they approached the blue barrel were reasonably foreseeable by David Sillars, as was the consequence of the canoe tipping either from Thomas standing up in the canoe or his reaching out with his paddle to try to dislodge the blue barrel or simply as a result of the increased water level and the fast-flowing, powerful and turbulent current of the river from spring run-off. In my view common sense dictated that an experienced prudent adult canoeist would respond to these actions by Thomas by telling him to immediately sit down, to not lean out of the canoe because of the reasonable foreseeability the canoe would capsize or tip, which I find occurred because of the impairment of David Sillars' intellectual faculties, as a direct result of his earlier consumption of alcohol and marihuana and their combined impact and effect.

[108] In Stellato and Bush the Ontario Court of Appeal held "slight impairment relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road." This case is not dealing with a motor vehicle, rather, it deals with how Mr. Sillars regarded the safety requirements for operating a canoe, which he completely ignored. The operation of a car requires a driver to drive within a lane properly, at a speed in accordance with the existing conditions or the posted speed limit, being aware of and having regard for others on the roadway, either pedestrians or other drivers, and paying attention to any obstacles or traffic lights or road signage. The defence in their submissions has treated canoeing as an activity that does not require the same kind of vigilance and/or skill as that of operating a motor vehicle. As I indicated in my ruling, R. v. Sillars, [2018] O.J. No. 6121, at paras. 30 and 48, in which I held a "vessel" included a canoe or any other "vessel" powered exclusively by muscular power where it is used for navigation or transportation on inland or territorial waterways, canoeing is an inherently dangerous activity:

[30] …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.

[48]… 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 (PDF) 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….

[109] It is my view one of the most important decisions made by a person intending to operate a canoe on a waterway is the determination of whether the water conditions are such that it would be extremely dangerous and highly risky to embark upon the waterway without taking the appropriate precautions. Fast-moving, turbulent water, high water levels which create difficulties and dangerousness in safely operating the canoe, especially when the water is flowing towards a waterfall or rapids with rocks and other obstacles, as well as the temperature of the water itself, are all conditions that must be assessed before making the decision to go for a canoe ride. In many instances the decision will be, as it should have been in this case, not to embark upon the ride in the canoe because the conditions were too dangerous and the risk was too great. Further determinations and decisions respecting risk and dangerousness would include: who will be going for the canoe ride, what their level of skill is, what are the objective hazards in terms of water conditions and weather conditions, and where are you intending to go. These are only common sense determinations and decisions and in my view it is not necessary, as argued by Mr. Thompson, for an expert witness in canoeing to provide evidence as to what would amount to risky and dangerous behaviour. Similar considerations and decisions are regularly made respecting the operation of a motor vehicle, for example, a person would not venture out in a snow storm or blizzard or serious thunderstorm. Further, as I have indicated the danger associated with certain water conditions and the risk of bodily harm or death are reasonably foreseeable by a reasonable prudent canoeist. A buoyant throw line is also an important safety requirement, as is a whistle or air horn to call for assistance in an emergency, both pieces of safety equipment were not brought by Mr. Sillars in the canoe. The primary danger and risk to someone going for a canoe ride is having the canoe capsize or tip causing the occupants to end up in the water, where the risk of bodily harm or death are reasonably foreseeable.

[110] A motor vehicle is equipped with many safety features, like air bags and steel beams in the doors, front and rear bumpers that absorb the force of another motor vehicle crashing into the vehicle and engineering specifically designed to prevent the vehicle's engine from coming into the interior of the motor vehicle in a head on collision to name just a few safety features of motor vehicles. A canoe has no such safety features. If the operator of a motor boat did not see a canoe and then crashed into the middle of the canoe, the canoe would be cut in half, severely damaged causing it to capsize, throwing its occupants into the water. A canoe does not protect those in it from the weather conditions in the same way a motor vehicle can. The most important piece of safety equipment for a canoeist is a properly fitted lifejacket or personal flotation device, which is designed to prevent a person from sinking under the water and drowning. It is my view from a common sense perspective, canoeing is an extremely dangerous activity even in favourable conditions. In many ways the risks and dangers involved in canoeing are greater than those involved in driving a motor vehicle such that impairment caused by the consumption of alcohol and marihuana can and often do cause serious bodily harm and death.

[111] Mr. Palmentier testified as to the impairing effects of persons whose BAC is greater than 50 mg of alcohol in 100 mL of blood and that the impairing effects become more significant as the BAC increases. The minimum BAC for Mr. Sillars was 128 mg of alcohol in 100 mL of blood. This BAC is one and a half times greater than 50 milligrams of alcohol in 100 millilitres of blood. Under the new legislation such a reading is viewed as an aggravating factor on sentence and the minimum fine has been increased. I have referenced the BAC result determined from testing Mr. Sillars' blood, which Mr. Palmentier testified is more accurate than breath readings obtained from an approved instrument, such as an Intoxilyzer 8000C, which underestimates a person's blood alcohol concentration. Further, he testified when THC is added to the BAC of a person, the effect is "additive." Considering the totality of the evidence it is my finding the Crown has proven the charge of impaired operation causing death beyond a reasonable doubt. It is my opinion the only reasonable conclusion available on the totality of the evidence, is that David Sillars' ability to operate the vessel was impaired by his consumption of alcohol and THC. It is also my view considering the totality of the evidence that the impairment of his intellectual faculties was significant and that his impairment was much greater than "slight."

[112] A conviction will therefore be entered on the charge of impaired causing death.

Over 80 Causing Death

[113] The defence conceded the charge of over 80 but argued the Crown had not proven the chain of factual and legal causation between Mr. Sillars' conduct and Thomas Rancourt's death.

[114] Section 255(3.1) indicates:

Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.

[115] As a result of my findings above concerning causation, it is my view the Crown has proven beyond a reasonable doubt that David Sillars operated a canoe when the level of alcohol in his body was in excess of 80 milligrams of alcohol in 100 millilitres of blood (over 80), which resulted in an "accident," namely the capsizing of the canoe, which was reasonably foreseeable having regard to the dangerous water conditions and other factors indicated during my discussions of the impaired operation causing death charge, resulting in the death of Thomas Rancourt.

[116] Consequently, David Sillars is found guilty of the charge of operating a vessel when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres causing the death of Thomas Rancourt. I have entered a conviction already on the charge of impaired operation of a vessel causing death and therefore I impose a conditional stay on the charge of operating a vessel having consumed alcohol in such a quantity that the concentration in the person's blood exceeds 80 milligrams of alcohol in 100 millilitres of blood causing death (R. v. Keinapple, [1974] S.C.J. No. 76 and R. v. Prince, [1986] 2 S.C.R. 480).

Key Findings of Fact Based on the Evidence

[117] As I indicated at the outset of my reasons, this is an unusual and unique case, given as far as I have been able to determine, as well as both counsel, there has never been a case in Canada involving a canoe as the means of conveyance. The factual circumstances of this case led to the tragic death of Thomas Rancourt, an eight (8) year old boy, who drowned as a result of the canoe, in which he was in the front seat, capsizing or tipping, upending both Thomas Rancourt and David Sillars, the adult at the stern of the canoe, into the Muskoka River on April 7, 2017.

[118] There are a number of key factual findings that I make respecting the evidence I heard during Mr. Sillars' trial and I have set them out below:

1. The outside temperature was between 3 and 4 degrees Celsius on April 7, 2017.

2. School buses had been cancelled on April 7, 2017, as a result of slush and ice on the roads that made travel dangerous.

3. The spring snow melt was in full force although there was still some snow and ice on the shore and land around and along Muskoka River.

4. The majority of any ice on the Muskoka River had melted and had thereby increased the water level of the river. There were small chunks of ice visible in the water of the Muskoka River below High Falls in the area where Thomas Rancourt's body was retrieved by police. There is a reasonable inference that this demonstrates the water in the river was extremely cold as testified to by a number of witnesses.

5. The temperature of the Muskoka River was frigid and extremely cold. The water temperature was so cold hypothermia was a serious risk within 3 to 4 minutes of being in the water, according to Mike White's evidence, which I accept. This was evidenced as well by PCs Woods and Reading who were briefly in the river to retrieve Thomas Rancourt's body and by Mr. Sillars, whose body temperature was at significantly low temperatures caused by hypothermia as a result of his being in the water of the river for as long as 10 minutes. In his statements to police Mr. Sillars indicated he almost did not make it to shore because of the water's temperature.

6. The water levels of the Muskoka River on April 7, 2017, were very high. Spring melt had increased water level and the evidence disclosed that numerous lakes and rivers emptied into the Muskoka River, above High Falls, where those lakes' and rivers' water levels would also be similarly increased. Mr. Kapel testified he was coming to his cottage to ensure the river had not flooded it.

7. The direction of the water flow in the Muskoka River from the Kapel cottage is towards the waterfall, High Falls. The current always flowed towards High Falls but the speed and strength of the current was increased and became faster flowing during the spring run-off and snow/ice melt according to the evidence. PC Woods testified even below the waterfalls and downstream there was a strong current, which he felt when he was holding the rope attached to PC Reading as she swam out to retrieve Thomas.

8. The current in the river was swift, extremely fast-flowing and really strong, as described by all of the witnesses with the exception of Ms. Hooper, whose evidence I do not accept. As one drew closer to the yellow warning barrier that floats on the top of the water as a warning to keep away, the current became even stronger and more turbulent, as evidenced by the photographs and the evidence of PC McDonald, PC Coles, PC Maki and PC Woods, as well as Mr. Sillars' statements to police officers.

9. The yellow barrier is only a warning barrier cautioning boaters to keep away because of the danger created by the water flowing towards the High Falls and the dam. The amount of water flowing over the waterfalls was greatly increased as seen in the Google photos taken in October 2017, compared with the photos of the waterfalls taken on April 8, 2017. I accept the evidence of those witnesses who testified there was no change in the water levels and the speed, strength and turbulence of the current of the river, particularly by the yellow barrier and as one got closer to the High Falls from April 7, 2017 when Thomas Rancourt drowned and April 8, 2017 when the photographs were taken. I do not accept the submissions of the defence on this issue.

10. High Falls itself was much more turbulent, with a significantly increased quantity of water flowing over the rocks that in summer and fall were exposed but during the spring run-off were completely covered in fast-flowing, turbulent waters. As a result of the increased water flow and greater current the water in the area by the yellow barrier and the waterfalls were significantly more dangerous, creating increased risk, particularly in respect of canoe being paddled by an eight year old child and an adult.

11. High Falls Dam was overwhelmed by the quantity of water going through it as a result of the increased water levels caused by the spring run-off and snow and ice melting.

12. Mr. Sillars was cautioned by at least by two individuals (Jack Kapel and Mike White) who were experienced with the water conditions during spring run-off, not to go canoeing as it was too dangerous because of the water conditions at that time of year. Both men testified they would not canoe on the Muskoka River in April because of the water conditions, which were quite dangerous. Mr. White told of an occasion the previous spring when he attempted to pull out a paddleboat stuck in the yellow barrier with a six (6) horsepower motorboat by attaching a rope to the paddleboat. He was unable to pull it free because of the current in the river and he estimated the current was similar in April 2017 although he was not sure.

13. Mr. Sillars was offered an adult lifejacket by Mike White and also Jack Kapel as a safety precaution, given his insistence of canoeing towards the yellow warning barrier, however, he turned down those offers. Mr. Sillars advised Mr. White he did not need a lifejacket as he had done "white-water rafting and stuff like that previously." In my view Mr. Sillars' explanation for refusing the lifejacket indicated an awareness on his part of the swift current and fast-flowing waters as one approached the yellow barrier. I find Mr. Sillars as an experienced canoeist would have been aware of the safety equipment he was required to bring in the canoe, namely, a properly fitted lifejacket for each participant, a buoyant throw line, minimum length 15 metres, a bailer bucket tied to the canoe so it does not float away if the canoe capsizes, a whistle or air horn to use in an emergency situation, as well as a reboarding device if the freeboard of the canoe is greater than 1'8". Mr. Sillars, who was described as an experienced canoeist, did not bring in the canoe a buoyant heaving line, minimum length 15m; a personal flotation device (PDF or lifejacket) for each person on board the canoe, specifically for himself; a bailer bucket; and a sound-signalling device, for example a whistle or air horn as required by the Small Vessel Regulations under the Canada Shipping Act, 2001. Ignorance of the law is no excuse.

14. There is a reasonable inference available David Sillars was aware of the high water levels, the increased water flow, the increased turbulence, faster and the strong current, as a result of his being aware the blue barrel was hung-up on the yellow barrier just above High Falls. He told a number of people of his intention to go to this area to retrieve the blue barrel and bring it back to the Kapel cottage. There is a reasonable inference from photographs and all of the circumstances surrounding the condition of the water that this was an extremely risky endeavour, which he would have been aware of but ignored.

15. Mr. Sillars removed his cell phone and keys before he headed out with Thomas Rancourt in the canoe. Because of this it is my view there is a reasonable inference Mr. Sillars was cognizant of the real risk of the canoe capsizing or flipping resulting in he and Thomas Rancourt ending up in the water of river. I find this was a reasonably foreseeable risk of danger that could result in non-trivial injuries or death.

16. Mr. Sillars told Jack Kapel, when asked how the canoe capsized, that Thomas put his paddle in the barrier and the canoe flipped. He told two of the police officers the canoe tipped because of Thomas leaning out of the canoe, which is consistent with what he told Jack Kapel. I accept Jack Kapel's evidence concerning this. There is a wooden paddle, which is stuck perpendicular in the debris at the barrier close to where the blue barrel is located (see Exhibits 9a, 9b 16-15, 16-16 and 16-18). Although no one was directed to this paddle and asked if it came from Jack Kapel's cottage, it is my view there is a reasonable inference this is the paddle referred to by David Sillars when he explained how and why the canoe capsized to Jack Kapel.

17. The PDF (lifejacket) worn by Thomas Rancourt was too small (Thomas Rancourt weighed between 75 to 90 pounds on the evidence and the lifejacket was for a child who weighed 30 to 60 pounds), particularly given the amount of clothing (3 layers, including a winter jacket) he was wearing under the lifejacket, which was described as being quite tight. The lifejacket Mr. Sillars used to kneel on was Ms. Hooper's son, William's, lifejacket and he was six years old, which was in my view wholly and completely inadequate for Mr. Sillars. There is no evidence Mr. Sillars attempted to use this lifejacket as a life-saving apparatus.

18. David Sillars had consumed alcohol such that his BAC at the time of operating the canoe (4:45 to 5:29 p.m.) was between 90 to 150 mg of alcohol in 100 mL of blood (based on the Intoxilyzer breath results of 97 and 100); the 30 millimoles of alcohol in 1 litre of plasma was translated by CFS test to be 119 mg of alcohol in 100 mL of blood and his BAC at time of operating the canoe was between 119 to 161 mg of alcohol in 100 mL of blood. I accept the evidence of Mr. J.P. Palmentier, CFS toxicologist, as it relates to his evidence respecting the BAC analysis of the red top vial of blood performed by a CFS technician as being done correctly with a result of 128 mg of alcohol in 100 mL of blood and his read back to the time of operating the canoe as being between 128 to 170 mg of alcohol in 100 mL blood. I find based on Mr. Palmentier's evidence the BAC from the blood sample of 128 mg of alcohol in 100mL of blood was the most accurate result as breath readings from an approved instrument, the Intoxilyzer 8000C underestimates BAC because it is obtained from a person's breath.

19. Further, I accept the evidence of Mr. Palmentier, CFS toxicologist, as it relates to his evidence respecting the testing by a CFS technician of the red top vial of blood seized by warrant from SMMH as containing 14 ng of THC, which he testified indicates recency of use by Mr. Sillars. I accept this evidence.

20. I find Mr. Sillars' consumption of alcohol and THC impaired his intellectual faculties as demonstrated by his decision to canoe to the yellow warning barrier with an eight year old boy, Thomas Rancourt, to retrieve a blue barrel wedged in by other debris, in the extremely dangerous water conditions described above.

21. I further accept the evidence of Mr. J.P. Palmentier, CFS toxicologist, respecting the impact of alcohol and THC on an individual's intellectual faculties to perform complex tasks, including divided attention, choice reaction time, decision making, vigilance, judgment and perception of speed and distance.

22. I also accept Mr. Palmentier's evidence that 14 ng of THC in David Sillars blood (drawn by hospital staff at 6:45 to 6:50 pm) reflected recent consumption of cannabis by Mr. Sillars. This was confirmed by the evidence of Jack Kapel, which I accept that Mr. Sillars smoked a marihuana cigarette mixed with tobacco. I recognize that the quantity of THC in the blood cannot be read back to a time in the past in the same way that alcohol in blood can be, however, the consumption of the marihuana was when Jack Kapel and David Sillars were at the cottage prior to Mike White arriving. I accept Ms. Hooper's evidence that she arrived at the cottage between 3:30 and 4:00 p.m. and Mike White's evidence that Ms. Hooper arrived an hour or two after he arrived, which meant the marihuana was consumed by Mr. Sillars sometime prior to 3:00 p.m. I accept the evidence of Jack Kapel that David Sillars smoked marihuana, mixed with tobacco, during the time he was at the cottage prior to Mike White arriving.

23. The intention by David Sillars to paddle a canoe to the yellow barrier in the water conditions, which I find were clearly evident and known to him, for the expressed purpose of retrieving this blue barrel, which from the photographs was clearly wedged in by debris, tree limbs, logs, stairs from a dock and was partially submerged under water, displayed a willingness on his part to engage in a highly dangerous and extremely hazardous undertaking regardless of the consequences. This decision was exacerbated by his refusing an adult lifejacket given the obvious and known water conditions and by the fact Mr. Sillars did not bring in the canoe the required safety equipment. I find his decision to engage in such an endeavour with an eight (8) year old boy, inexperienced in canoeing and swimming, to be a "marked and substantial" departure from the conduct of a reasonably prudent person in the circumstances and that it showed a wanton and reckless disregard for the life and safety of Thomas Rancourt.

24. The purpose of Thomas Rancourt going in the canoe with David Sillars, according to Ms. Hooper, was for him to learn about how to paddle a canoe. I find there was no necessity for Mr. Sillars to canoe, with Thomas, towards the yellow barrier to retrieve the blue barrel and I have already found this decision was caused by the consumption of alcohol and marihuana, which impaired his intellectual faculties. I find Mr. Sillars could have paddled on the Muskoka River in the opposite direction, away from the yellow barrier and High Falls. In fact, Ms. Hooper testified it was her understanding Mr. Sillars was planning to only canoe to the cottage side of the Highway 11 Bridge and if she had known Mr. Sillars was planning to go to the yellow barrier to retrieve the blue barrel she would not have allowed Thomas to get in the canoe as that would have been too dangerous. In my view this is another example of how the alcohol and marihuana impaired Mr. Sillars' intellectual abilities.

25. Ms. Hooper was called as a witness by the defence. It is my view her evidence concerning her understanding of the plan she and Mr. Sillars agreed to in respect of Thomas' canoe ride with David Sillars was completely inconsistent with what David Sillars told the police or Mr. Kapel and Mr. White. Ms. Hooper testified she recognized how dangerous it would be for Mr. Sillars to try and attempt to retrieve a blue barrel from the yellow barrier and she would not have allowed Thomas to go canoeing if Mr. Sillars had told her his intention. This evidence is important and significant in assessing and determining what a prudent reasonable person would do in similar circumstances and whether it was reasonably foreseeable the canoe could tip and result in non-trivial injury. It is my view Ms. Hooper volunteered this evidence not realizing its significance. As I indicated above, I viewed Ms. Hooper as a partisan, biased witness with an agenda of supporting Mr. Sillars such that her decision to allow her son to go canoeing could not be criticized or faulted. This evidence, however, did not support the defence position as she indicated an awareness of the dangerousness and serious risks associated with attempting to retrieve the blue barrel. It is difficult to ascertain where the truth lies in this aspect of Ms. Hooper's evidence but the weight of all of the other evidence led during the trial supports her recognition of the serious risks and dangerousness of trying to retrieve the blue barrel. It is my view the only reasonable conclusion available on the totality of the evidence is that Mr. Sillars' decision to canoe to the yellow barrier to retrieve the blue barrel in light of the existing water conditions could only be found to be a "marked and substantial" departure from the reasonable prudent person in similar circumstances and that it demonstrated a wanton and reckless disregard for the life and safety of Thomas Rancourt. To the extent Ms. Hooper's evidences agrees with that finding I accept her evidence concerning her recognition of the danger associated with canoeing to the yellow barrier and attempting to retrieve the blue barrel.

26. Ms. Hooper testified that Thomas looked up to David Sillars as a father figure and Mr. Sillars did not shy from that role in that he was actively teaching Thomas how to track animals in the snow and how to do woodworking and building things and how to cook. David Sillars was described by Ms. Hooper as a role model to Thomas at that time, like a stepfather. I find that David Sillars' relationship with Thomas created a duty of care for Mr. Sillars towards Thomas.

Criminal Negligence causing Death ss. 219 and 220

[119] Criminal negligence is defined in s. 219 of the Criminal Code of Canada as follows:

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

Definition of duty

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

[120] On a charge of criminal negligence, the Crown must show that the accused's act or omission represented a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances and that this act or omission demonstrated a wanton or reckless disregard for the lives or safety of other persons. See: R. v. J.F., 2008 SCC 60, [2008] S.C.J. No. 62 at par. 7-10; R. v. A.D.H., 2013 SCC 28, [2013] S.C.J. No. 28, at para. 61; R. v. Waite, [1989] 1 S.C.R. 1436, at paras. 10 and 13 and R. v. Tutton, [1989] 1 S.C.R. 1392, at para. 15. In a criminal negligence case the Crown must prove either that the accused was aware of the obvious risk to the lives and safety of others, but went ahead anyway, or gave no thought to that risk.

[121] In R. v. J.L., [2006] O.J. No. 131 (C.A.), Weiler J.A. noted, at para. 14, that "criminal negligence causing death is at the high end of a continuum of moral blameworthiness," cascading down to dangerous driving and then careless driving under provincial statutes. The departure from the norm must be more marked in both the physical and mental aspects of the behaviour. To prove criminal negligence the Crown must show that an accused's act or omission represented a marked and substantial departure from the norm, this is a significantly elevated standard from the marked departure for dangerous operation. The mental element, requires the Crown to demonstrate the accused showed a wanton and reckless disregard for the lives or safety of others. Justice Weiler continued at para. 18:

The fact that a reasonable person would realize that there is a risk of injury would also support a finding of dangerous driving. To establish that conduct is wanton or reckless the consequences must be more obvious. The greater the risk of harm the more likely it is that the consequences are the natural result of the conduct creating the risk. It is from this conduct that the conclusion that the accused had a wanton or reckless disregard for the lives or safety of others is drawn.

[122] Justice Weiler cites Hill J.'s decision in R. v. Menezes, [2002] O.J. No. 551, at para. 72 where he defined wanton and reckless:

The term wanton means "heedlessly" (Regina v. Waite (1996), 28 C.C.C. (3d) (Ont. C.A.)) "ungoverned" and "undisciplined" (as approved in Regina v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.) at 430, Morden J.A.) or an "unrestrained disregard for the consequences" (Regina v. Pinske (1988), 6 M.V.R. (2d) 19 (B.C.C.A.) at 33, Craig J.A. (affirmed on a different basis , [1989] 2 S.C.R. 979, Lamer J. The word "reckless" means "heedless of consequences, headlong, irresponsible."

[123] In evaluating whether the appellant's conduct amounted to a wanton and reckless disregard for the lives and safety of others, all of the circumstances surrounding the offence must be examined, R. v. J.L., supra, at para. 20.

[124] In R. v. M.R., [2011] O.J. No. 1017 (C.A.), at paras. 30 and 31, O'Connor A.C.J.O. in dealing with the mental element of criminal negligence cause death held:

30 …In considering this issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused's conduct or omission: see R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J.

31 An additional question concerns what mental element is required to establish liability as a principal offender for criminal negligence causing death as related to the consequence of the criminally negligent act: the death. In R. v. Creighton, at pp. 41-45, the majority of the Supreme Court of Canada dealt with this issue in relation to a charge of unlawful act manslaughter. The court held that the test is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory. As stated by McLachlin J., at p. 75, the question is "whether the reasonable person in all the circumstances would have foreseen the risk of bodily harm". I see no reason why the reasoning in Creighton on this issue should not apply equally to the offence of criminal negligence causing death. The offences of unlawful act manslaughter and criminal negligence causing death have much in common. Importantly, for present purposes, both involve a dangerous or unlawful act that causes death. From both a logical and policy standpoint, it makes sense that the mental element relating to the consequence of the offending conduct be the same for both offences.

[125] As I have discussed above, David Sillars made a decision to take an eight year old boy canoeing, during spring run-off with all of the described dangers and risks, for the sole purpose of retrieving a blue barrel that was wedged against a yellow warning barrier and partially submerged in the water, a short distance from a raging and turbulent waterfalls. Further, a reasonable prudent person would have been aware of the obvious risks of the canoe capsizing or tipping with the result of non-trivial injury occurring. The risk of hypothermia was reasonably foreseeable as demonstrated by anyone who was in the frigid waters of the Muskoka River on April 7, 2017. The risk of drowning, having regard to the likelihood of a person succumbing to hypothermia in a matter of minutes, was also a reasonable foreseeable significant danger, together with the real risk of serious injury or death for a person going over the waterfalls given the high water levels, which appeared to be overwhelming the dam, the strength of the current and the large rocks covered in water and significant height of the waterfalls above the river below. As I have found David Sillars' decision was a "marked and substantial" departure of a reasonable prudent person in the circumstance and this demonstrated a wanton and reckless disregard to the life and safety of Thomas Rancourt.

[126] In paragraph 118 of my reasons I set out the key factual findings based on the totality of the evidence heard in this trial. It is my view this is the only reasonable conclusion available on the totality of the evidence. The significant risk of harm, which would result in non-trivial injuries, associated with Mr. Sillars' decision in all of the circumstances were reasonably foreseeable by a reasonable prudent person in similar circumstances. I find Mr. Sillars was aware of those very real risks but chose to ignore them as is further evidenced by his decision not to bring and wear a properly fitted PFD or bring the other safety equipment required by Regulation. In my view the reasonable foreseeability of non-trivial injury, which was ignored by David Sillars as a result of his consumption of alcohol and marihuana, which impaired his intellectual faculties as I found above, demonstrated a wanton and reckless disregard for Thomas Rancourt's life and safety.

[127] Consequently, I find the Crown has proved beyond a reasonable doubt the charge of criminal negligence causing death against David Sillars and there will be a conviction registered.

Dangerous Operation of a Vessel Causing Death s. 249(1)(b), (4)

[128] Dangerous operation of a vessel is defined in s. 249(1) (b) of the Criminal Code as follows:

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…

By virtue of s. 249(4), when death is caused in these circumstances, the maximum penalty is 14 years' imprisonment.

[129] In Beatty, Justice Charron, for the majority, indicated it was necessary to restate the summary of the test for both the actus reus and mens rea for the offence of dangerous operation, which she did as follows:

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[130] The fault requirements for s. 249(1) are discussed in R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5 and in R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26. In R. v. Roy, supra, the Supreme Court stressed it is "critically important to ensure that the fault requirement has been established." Cromwell J, for the Court, held:

[131] The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

[132] In terms of the actus reus, Cromwell J. in R. v. Roy, supra, held that dangerous driving requires an objective inquiry into whether the conduct was dangerous to the public. In paragraph 34, he cautioned, "The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved." Although in Beatty, at para. 46, Justice Charron also observed:

The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.

[133] The mens rea component of dangerous operation turns on whether the conduct was "a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances": R. v. Roy, supra, at para. 36 and R. v. Beatty, supra, at para. 36. In approaching this issue Justice Cromwell suggested it is helpful to ask two questions:

The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[134] In determining whether a marked departure has been proved, a modified objective standard is employed. The modified objective standard means that while the reasonable person is placed in the in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (see R. v. Roy, supra, at para. 38 and R. v. Beatty, supra, at para. 40). In R. v. Roy, supra, at para. 40, Justice Cromwell further elaborated on the proof of this fault requirement, where he held generally the existence of the objective mens rea can be inferred from the fact that the accused conducted himself or operated the motor vehicle (or vessel here) in a manner that constituted a marked departure from the norm. However, even where the conduct or the operation of the vessel is a marked departure from the norm, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the conduct or the operation of the vessel. Justice Cromwell held:

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

[135] The precedents are clear if the Crown proves guilt beyond a reasonable doubt in respect of a charge of criminal negligence causing death then the offence of dangerous operation causing death has also been proven beyond a reasonable doubt as a result of criminal negligence causing death being at "the high end of a continuum of moral blameworthiness," cascading down to dangerous driving and then careless driving under provincial statutes. The standard for guilt on a charge of dangerous operation is a "marked" departure from what is expected of a reasonable person in the circumstances. This standard is clearly subsumed in the required standard in a criminal negligence case.

[136] Consequently, there will be a finding of guilt respecting the charge of dangerous operation of a vessel causing death. The rule against multiple convictions requires that I enter a conviction on only one of the offences of dangerous operation causing death and criminal negligence causing death. I have entered a conviction already on the charge of criminal negligence causing death and therefore I impose a conditional stay on the charge of dangerous operation of a vessel causing death (R. v. Keinapple, [1974] S.C.J. No. 76, and R. v. Prince, [1986] 2 S.C.R. 480). The Crown is entitled to have a conviction registered on the most serious offence, determined by the maximum punishment: R. v. Loyer, [1978] 2 S.C.R. 631.

Released: June 27, 2019

Signed: Justice Peter C. West