Court File and Parties

Court File No.: Central East Region: Oshawa Courthouse 18-00265-00 Date: 2019-10-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — David Sillars

Before: Justice Peter C. West

Oral Submissions on Sentence Heard: August 15, 2019

Reasons for Sentence Released: October 4, 2019

Counsel:

• F. Giordano, for the Crown
• J. Rosenthal and Wm. Thompson, for the defendant

Reasons for Sentence

Introduction

[1] David Sillars was charged with impaired operation of a vessel causing death; operating a vessel with over 80 mg of alcohol in 100ml blood causing death; dangerous operation of a vessel causing death and criminal negligence causing death. These charges arose because David Sillars decided to take his girlfriend's eight year old son, Thomas Rancourt, canoeing on the Muskoka River on April 7, 2017, in the direction towards High Falls, when the spring run-off was in full force, the water levels were highly elevated, the current was extremely fast flowing, powerful and turbulent, particularly the closer one approached the yellow warning barrier and the top of High Falls, and with frigid, hypothermia inducing water temperatures. I found this decision by David Sillars demonstrated a marked and substantial departure from the conduct of a reasonably prudent individual from the norm in similar circumstances and showed a wanton and reckless disregard for the life and safety of an eight year old little boy, where the risk of serious injury or death was reasonably foreseeable, particularly having regard to Thomas' age, his inexperience in canoeing, Mr. Sillars' intention and purpose in paddling towards the yellow warning barrier to retrieve a blue barrel, which was wedged in the debris caught on the barrier and the existing water conditions I found Mr. Sillars was aware of or was wilfully blind towards. This was not a normal typical day paddling on the Muskoka River considering the existing water conditions. David Sillars exacerbated the dangerousness and recklessness of his decision to paddle towards the warning barrier by consuming alcohol and smoking marihuana earlier that day such that his BAC was 128 mg of alcohol in 100 mL of blood at the time of operating the canoe and his blood drawn at the hospital approximately an hour and a half to two hours after he was operating the canoe on the river contained 14 ng of THC, the active ingredient in marihuana.

[2] As I have indicated previously, this was 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 had consumed alcohol and marihuana. The Crown's case was presented over a number of days between October 17 and November 6, 2018. 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, which are reported at [2018] O.J. No. 6121. I found that a canoe was a vessel for the purposes of the sections of the Criminal Code under which Mr. Sillars was charged.

[3] Mr. Sillars sought the exclusion of the breath test results, the blood samples obtained at the hospital, the blood sample analysis performed by the hospital lab technologist 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. Mr. Sillars also sought exclusion of his utterances to Sgt. Allison, who was the qualified breath technician. 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' statements to Sgt. Allison of the O.P.P. were voluntary and dismissed the s. 10(b) Charter application respecting the same statements and held the statements were admissible.

[4] The defence called Jessica Hooper, Thomas Rancourt's mother, as a witness on April 24, 2019, and I heard both counsel's final submissions on April 25, 2019, respecting whether the Crown had proven the charges beyond a reasonable doubt. I delivered my reasons for judgment on June 27, 2019, reported at R. v. Sillars, [2019] O.J. No. 3484, where I found David Sillars guilty of the four charges he was facing. I registered convictions on the charges of criminal negligence causing death and impaired operation of a vessel causing death. The sentencing was adjourned until August 15, 2019, on consent by all parties. After hearing oral submissions as to sentence I reserved judgment until October 4, 2019. These are my reasons for sentence, which I am delivering in the Bracebridge Ontario Court of Justice.

[5] I do not intend to go through my findings of fact in detail as they are set out in both the Charter judgment and in my reasons finding Mr. Sillars guilty of all four of the charges he was facing. I stayed the offences of operating a canoe with greater than 80 milligrams of alcohol in 100 millilitres of blood causing death and dangerous operation of a canoe causing death pursuant to the principles respecting multiple convictions, as set out by the Supreme Court of Canada in R. v. Kienapple. The sentence imposed is therefore only respecting the two offences of criminal negligence causing death and impaired operation of a vessel causing death.

[6] I recognize that regardless of the length of custodial sentence I impose, David Sillars will ultimately be released from jail, and he will be able to return to his home and his family and friends who love and support him. I am also profoundly aware from the victim impact statements that Thomas Rancourt's family members will forever be denied that opportunity. Unfortunately, the tragic consequence of David Sillars' decisions on April 7, 2017, is that Thomas' family will have to deal with Thomas' death and his absence for the remainder of their lives. The sentence I impose today can in no way change the catastrophic and tragic loss of such a young life. As was observed by Justice Fuerst in R. v. Muzzo, "While the criminal justice system can deter and denounce, it is ill-suited to make reparation for the harm of the magnitude involved in this case."

Circumstances of the Offences

[7] On April 7, 2017, David Sillars took Thomas Rancourt, Jessica Hooper's eight year old son, canoeing on the Muskoka River ostensibly to teach him how to paddle a canoe. They set out from a cottage on the Muskoka River, which was some distance from the Highway 11 Bridge and the yellow warning barrier, which consisted of buoys floating on top of the water and strung across the river warning persons to keep away because of the danger created by the falls and the dam. The warning barrier, from the photographs filed as exhibits, is quite close to the top of High Falls.

[8] David Sillars indicated to a number of police officers after the canoe capsized or tipped that he and Thomas were paddling to the barrier to retrieve a blue barrel, which, from the photographs, was wedged against the barrier by debris. He was warned by two individuals not to go canoeing because of the spring run-off water conditions, however, he ignored these warnings. He did not bring in the canoe the required safety equipment and refused the offer of an adult life jacket for him to wear after he insisted on canoeing on the river towards the falls. The life jacket worn by Thomas Rancourt was too small and was put on over three layers of clothes.

[9] As they got to the barrier the current became stronger and more powerful and turbulent and the canoe went sideways and was pushed against the barrier. David Sillars told an officer he tried to turn around to go back but the current was too strong. David Sillars told Jack Kapel Thomas stood up in the canoe and reached for the barrel. A canoe paddle can be seen wedged in the debris against the barrier, in the photographs entered as exhibits, close to the blue barrel. According to statements made by Mr. Sillars to police officers, this action by Thomas caused the canoe to tip or capsize and both David Sillars and Thomas Rancourt fell into the freezing water.

[10] David Sillars told one of the police officers he could hear Thomas calling for help but he decided to swim to shore to call 911, as he was not wearing a life jacket and Thomas had a life jacket on. Thomas slipped under the floating yellow warning barrier and went over the High Falls, approximately 15 metres high. The autopsy revealed Thomas drowned and sustained a serious skull fracture as a result of going over the water falls and his head striking the rocks. The death of Thomas can only be described as a devastating tragedy, which was directly caused by David Sillars' decision to canoe towards the warning barrier despite the warnings regarding the water conditions present in the river.

[11] David Sillars had consumed alcohol prior to making his decision to operate the canoe towards the falls to retrieve the blue barrel and his blood alcohol concentration from his blood drawn at the South Muskoka Memorial Hospital (SMMH) for medical purposes and later seized pursuant to a search warrant, at the time of that operation of the canoe was 128 mg of alcohol in 100 mL of blood. The evidence of the CFS toxicologist was this reading was more accurate than the breath readings. In addition, the CFS tested the blood sample from SMMH, which analysis revealed a quantity of THC, the active ingredient in cannabis marihuana and determined it was 14 ng.

The Victim Impact Statements

[12] I was provided with eight Victim Impact Statements (VIS) from family members of Thomas Rancourt – his mother, Jessica Hooper; his aunt, Jenn Hooper; his maternal grandmother, Donna Posnikoff; step-grandfather, Glen Bayne; his father, Jamie Rancourt; grandfather, Moe Rancourt; grandmother, Sandra Rancourt and Krista Peterson, Jamie Rancourt's girlfriend. These statements demonstrate the profound catastrophic tragedy and loss that was caused by Thomas' death and how this has irrevocably altered and damaged his family members' lives. Any attempt to summarize the various victim impact statements would not do them justice and for this reason I do not intend to do so. However, I am making reference to some of their comments to provide some insight into the magnitude of their grief and loss.

[13] Thomas was described as an extremely happy little boy, with a beautiful smile. He was a well adjusted child, energetic, who loved school and his teachers and his friends. He loved animals and wild life and he loved nature and the outdoors.

[14] Ms. Posnikoff read her VIS in court and she described the tremendous and significant impact the loss of Thomas has had on herself and other family members who will miss Thomas' presence at family gatherings and celebrations forever. "These occasions should be happy, but they're not as its just a constant reminder of what is now missing for us and what Thomas never gets to enjoy."

[15] Glen Bayne, married to Donna Posnikoff and Thomas' step-grandfather, recalled Thomas driving by his plumbing shop everyday on the school bus and calling out to say hi. This always cheered him up, but nobody yells out to him when the school bus goes by now. He described how everyone is just existing to help William, Thomas' younger brother, but the pain of Thomas' loss will not end.

[16] Thomas' aunt, Jenn Hooper, wrote, "When Thomas died a big part of me died as well. Thomas and his brother William were my world, I was there from the day they were born I even lived with them for a total of just over 3 years…" Jenn Hooper talked about all of the things she taught Thomas and lamented the fact she no longer can teach Thomas such things.

[17] A sad consequence of Thomas' death has been the estrangement between Thomas' mother, Jessica, and her extended family because of her continued support of David Sillars. I was advised through the victim impact statements and when Jessica Hooper testified as to the ongoing family court proceedings respecting William.

[18] Jamie Rancourt, Thomas' father, discussed how happy he was to be Thomas' dad but now the photographs of Thomas, which used to bring him such joy and happiness make him cry with an unbearable sadness he cannot explain. Moe Rancourt and Sandra Rancourt, Thomas' grandparents also expressed how devastating the loss of their grandchild has been for them.

[19] Thomas' mother, Jessica Hooper, provided a victim impact statement where she described the traumatic impact of Thomas' death on her mental health. Since his death she requires medications to assist her in dealing with anxiety, depression, sleep issues and PTSD. She is seeing a number of therapists and social workers who support her.

Circumstances of David Sillars

[20] David Sillars is currently 40 years old and was 38 at the time the offences were committed. He was adopted by Duncan and Irene Sillars when he was a baby. He has an older adopted sister, who attended his trial with their mother. He was diagnosed at an early age with ADHD and was followed and treated by Dr. Wendy Roberts, who was connected to Toronto Sick Children's Hospital. He took Ritalin for a year when he was younger but discontinued its use because of its side effects. David Sillars graduated Grade 13 from Silverthorne Collegiate in Etobicoke. He operated his own landscaping business for several years and his father described his 80 plus clients as liking him and his work. He has not worked since the charges were laid in April 2017 and is currently receiving Ontario Disability Support Program payments.

[21] It was clear from the letters provided by David Sillars that he has from his family and his friends, who described him as a considerate person and a good neighbour. He is currently residing in Arden in a country setting in a home purchased for him by his parents. One of his neighbours, a retired farmer, Wally Blake, provided a letter (Tab 5, Exhibit 11), which described David Sillars as someone who has assisted him with jobs around his property, fixing his truck, splitting wood and building the roof of a gazebo for another neighbour Tim.

[22] I was advised that David Sillars has dealt with mental health issues since a very young age. Since the death of Thomas Rancourt and the charges were laid against David Sillars I was advised he has suffered from depression and suicidal thoughts. In Exhibit 11, Tab 1, Defence Sentencing Materials, Ms. Debi Hayes, BST, Rural Case Manager of Addiction & Mental Health Services (Kingston, Frontenac, Lennox & Addington (AMHS/KFLA) provided a letter as to Mr. Sillars' involvement with this agency since October 2, 2017. I was only advised of the diagnosis of ADHD made when he was in Grade 3, however, there was a suggestion in Ms. Hayes' letter that David Sillars described to her a long history of mental health challenges and various treatment methods. I am unaware of what other diagnoses have been made prior to the offences he committed. Mr. Sillars described to Ms. Hayes his difficulties with anxiety symptoms, bouts of depression and emotional deregulation, along with a history of substance use but there was no information of any formal diagnoses made by a psychiatrist or psychologist or of any treatment he received prior to April 2017. No earlier psychiatric or psychological reports were provided in the Defence Sentencing Materials. I am also unaware of what illicit substances David Sillars had problems with in the past. It appeared from Ms. Hayes' letter that David Sillars has been greatly impacted by the death of Thomas Rancourt and his involvement in causing Thomas' death such that he now suffers from Generalized Anxiety Disorder, ADHD and PTSD and the counselling he has received from AMHS/KFLA related to this impact.

[23] Mr. Sillars completed a 12 week (90 minutes per week) Psycho-Education group, Managing Powerful Emotions course. Subsequent to this, Ms. Hayes has been involved in providing weekly appointments at his home in Arden, as there are no other follow-up group programs available. Mr. Sillars was approved for and receives financial benefits from the Ontario Disability Support Program.

[24] The letters provided also reflect that David Sillars has expressed deep remorse concerning the death of Thomas Rancourt. His family and friends described in their letters how he was often moved to tears when he discussed or thought about his role in Thomas' death. His parents referred to concerns about David Sillars taking his own life because of the anguish and sadness he experiences. It is my view Mr. Sillars' feelings of grief and loss are what would be expected of someone who was in parental-type relationship with a young boy who died as a direct result of their conduct and decision-making.

[25] Mr. Sillars former girlfriend, Melissa McNeil and her daughter, Baily Howard (age 20), both spoke positively about David Sillars and his relationship with them. They both referred to the care he would take when taking young Baily canoeing, ensuring she wore a properly fitted life jacket when they went canoeing or that she wore the proper safety equipment for other activities they were involved in. In my view these comments demonstrate what occurred in this case, namely, David Sillars, because of the consumption of alcohol and marihuana, did not show the care he might have shown in the past, rather, his decision-making was impaired such that he showed a reckless and wanton disregard for the life and safety of Thomas Rancourt. I will address this in greater detail when I discuss the level of moral blameworthiness demonstrated by Mr. Sillars' conduct.

[26] David Sillars has a criminal record, which spans 2005 and 2011, with 15 convictions for assault, assault causing bodily harm, threatening offences, mischief under and failing to comply with court orders (probation and recognizance). There are no cognate offences. He has served jail sentences of ten months for assault causing bodily harm, uttering threats, fail to comply probation and disobeying order of court and 26 months (a penitentiary sentence) for uttering threats and disobeying a court order, which was consecutive to the remainder of the earlier jail sentence.

Position of the Parties

[27] The Crown is seeking a penitentiary sentence of six (6) to eight (8) years. The Crown is also seeking an order prohibiting David Sillars from operating a vessel for 20 years. Mr. Giordano submitted the paramount sentencing principles in this case involve denunciation and deterrence. He submitted the Court of Appeal in Ontario has indicated that sentences for criminal negligence causing death and impaired operation causing death have increased significantly in the past ten years, which "reflects society's abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists." Mr. Giordano argued sentencing decisions which pre-date the Ontario Court of Appeal's decisions in Ramage, Junkert, and Kummer have diminished value as providing guidance as to an appropriate sentence. The Crown submitted there was no difference between operating a motor vehicle while impaired by alcohol and operating a vessel while impaired. The Crown submitted that the offence of criminal negligence causing death where alcohol is involved and impaired operation causing death will attract substantial penitentiary sentences, even for first offenders of good character.

[28] The defence submitted this was the first occasion that an accused had been convicted of operating a vessel, namely, a canoe, while impaired by alcohol and/or drugs and causing death and for that reason this was a novel type of case, where denunciation and general deterrence were not as important as sentencing principles. The defence sought a two (2) year penitentiary sentence and relied on the fact that sentences for accidents involving vessels often resulted in sentences of less than two years. It was the defence position that boats are different than cars and power boats are not the same as canoes or other manual powered vessels. The defence also pointed to the fact that appellate courts have held it was difficult to establish a range of sentence for criminal negligence causing death as so many different types of conduct amounted to criminal negligence and the sentences ranged from suspended sentences to sentences of up to 15 years in the penitentiary. Finally, the defence referred to several cases pre-dating R. v. Ramage, where sentences involving impairment by alcohol where a death occurred resulted in either conditional sentences (sentences less than two years) or custodial sentences of eighteen months to two years less a day.

[29] The Crown is seeking a prohibition order pursuant to s. 259(2) of the Criminal Code, which deals with both the conviction under s. 220 (criminal negligence causing death) and s. 255(3) (impaired operation causing death) of 20 years. As Mr. Sillars was operating a vessel the prohibition should be in respect of a vessel. The defence submitted the prohibition order from operating a vessel under s. 259(2) should be five (5) years.

Mitigating and Aggravating Circumstances

[30] Mr. Sillars has expressed remorse for the death of Thomas Rancourt to his counsellor, his parents, Jessica Hooper, Thomas' mother, and to his friends. As I indicated earlier, his feelings of remorse and guilt are completely understandable, and I accept these expressions as being sincere. It is not an aggravating circumstance that Mr. Sillars elected to have a trial, which is his right. The Crown is not making that submission; however, Mr. Giordano submitted the level of mitigation to be considered should be attenuated or lessened from the mitigation that would have followed if David Sillars had pleaded guilty without having a trial. The defence submitted Mr. Sillars would have a life sentence of grief and remorse because of Thomas' death and its devastating impact on his life. Mr. Rosenthal conceded the impact experienced by Mr. Sillars could in no way be compared with the loss and grief experienced by Thomas' family members because of Thomas' death. It is my view that Mr. Sillars' remorse and feelings of guilt concerning Thomas' death, which was caused by Mr. Sillars' decision to take Thomas canoeing on the Muskoka River can be viewed to some extent as a mitigating circumstance to be considered in determining an appropriate, proportionate sentence.

[31] It is also my view, I must balance Mr. Sillars' remorse against the life long impact of loss and grief suffered by Thomas' family members, which was caused solely by David Sillars' decision to take Thomas canoeing on the Muskoka River, as mandated by s. 718.2(a)(iii.1). Words cannot not do justice to the anguish and pain caused to Thomas' family members.

[32] Although Mr. Sillars has a criminal record and has previously been sentenced in 2007 to a period of imprisonment for 10 months and in 2008 to a consecutive period of imprisonment of 26 months, he does not have a prior record for a drinking and driving offences. To some extent his previous criminal record is an aggravating circumstance.

[33] The evidence disclosed Mr. Sillars was in a romantic relationship with Jessica Hooper and that both of her boys, Thomas and William, looked at Mr. Sillars as a father figure. In fact, the defence characterized David Sillars as treating Thomas like his own child. In Jessica Hooper's Victim Impact Statement, she included numerous photographs, which depicted David Sillars with both Thomas and William in circumstances that supported this conclusion. In my view this is an aggravating circumstance having regard to s. 718.2(a)(iii) where David Sillars was clearly in a position of trust and authority in relation to Thomas. On the evidence, David Sillars was taking Thomas out in the canoe, according to Ms. Hooper's evidence, to teach him how to paddle a canoe. Thomas was had little if any experience with canoes. Mr. Sillars was described by Jack Kapel and Jessica Hooper as an experienced canoeist.

[34] A further aggravating circumstance is set out in s. 718.2(a)(ii.1), which refers to evidence that the offender, in committing the offence, abused a person under the age of eighteen years. Thomas Rancourt was eight years of age. David Sillars, as I have indicated above was in a position of trust or authority towards Thomas, and the purpose of taking Thomas out in this canoe at the beginning of April, during spring run-off, was to teach him about canoeing and how to paddle the canoe. As I have found, the level of dangerousness and risk associated with paddling a canoe towards a waterfall at this time of the year was extremely high without considering the consumption of alcohol and marihuana, which, in my view, greatly increased that risk. This aggravating circumstance recognizes the vulnerability of children who are in the care of adults, who must follow or comply with the directions of the adult person. Thomas, as an eight year old child, was entitled to be protected from the very risk and danger Mr. Sillars' conduct exposed him to. The tragic consequence of Mr. Sillars' decision to canoe towards a waterfall clearly demonstrates why this is an aggravating factor to be considered in determining a proportionate sentence in this case.

[35] One of the most aggravating circumstances to be considered was David Sillars' decision to take Thomas out in a canoe on the Muskoka River despite the significant risk of death or serious injury having regard to the time of year, spring run-off was in full force, the water levels were high, the river's current was swift and fast-moving, and the water temperature was extremely cold at hypothermic-inducing temperatures. As I found, Mr. Sillars was fully aware of these inherent risks because he knew, prior to going out on the river with Thomas, there was a blue plastic barrel, which was hung up on the yellow warning barrier, floating on the water, just before High Falls. In fact, I found David Sillars' conduct demonstrated a wanton and reckless disregard for the life and safety of Thomas Rancourt, whose stated intention was to go to the barrier to retrieve this blue barrel. The current of the water by the warning barrier, from the photographs, reflected the increased turbulence, power and swiftness of the river. This was also confirmed by David Sillars' own words to Sgt. Allison, "the current was so fast and powerful" and "the current was so great. We tried to go back. We were sideways." David Sillars was fully aware of this because of his knowledge that the blue barrel was wedged against the floating yellow warning barrier by debris and if he saw the barrel, he saw the turbulence and swiftness of the river's current, as well as the fact the dam was overwhelmed by the amount of water from the spring run-off.

[36] Further, as I found it was reasonably foreseeable that eight year old Thomas would stand up and use his paddle to try and dislodge the blue barrel, as he was in the front of the canoe, and this in turn, given the strength of the water's current, could result in the canoe capsizing or tipping, throwing them both into the ice cold water just above a waterfall, where the dam was overwhelmed by the increased water levels caused by the spring run-off and the snow and ice melting. It is my view that this consequence and the resulting potential of serious injury or death was a reasonable foreseeability and is an aggravating circumstance.

[37] The Crown pointed to the fact Mr. Sillars' decision was made to paddle with a child passenger to the yellow warning barrier, "a dangerous activity given the river conditions, for what was a non-essential purpose – essentially to retrieve garbage floating in the river." I agree with the Crown's characterization of Mr. Sillars' purpose in paddling towards the barrier just above the waterfalls, which from the photographs showed the tremendous amount of water flowing over the rocks such that they were not visible. It is my view this is an aggravating circumstance to be considered by me in determining a proportionate sentence.

[38] Mr. Sillars was described as an experienced canoeist and would therefore have been aware of the safety regulations and requirements for canoeists – an appropriately sized life jacket or personal flotation device (PFD) for each person in the canoe (Jessica Hooper testified David Sillars brought her son William's (age 6) life jacket to kneel on and David Sillars refused the offer of an adult life jacket for himself), a whistle or horn to signal for assistance in an emergency situation, a throw rope, and a bailer or pail, to bail out the canoe if it capsized. None of this safety equipment was brought in the canoe by Mr. Sillars. He was offered an adult life jacket, which he refused, and Thomas' life jacket was clearly too small given his weight. It is my view this is an aggravating circumstance. Mr. Sillars was also warned by two friends, who were individuals aware of the dangers of going onto the Muskoka River in a canoe during the spring run-off. He ignored those warnings, which is also aggravating.

[39] A further serious aggravating circumstance was the alcohol consumed by Mr. Sillars prior to taking Thomas Rancourt canoeing on the Muskoka River. What further aggravates his decision was the fact he knew Thomas was coming to the cottage to go out in the canoe, yet he consumed alcohol in such a quantity his BAC was 1 ½ times greater than the legal limit. His BAC at the time of canoeing was 128 mg of alcohol in 100 mL of blood, which based on evidence routinely provided by toxicologists qualified as experts, would have required the consumption of considerably more than two Vex Vodka coolers as attested to by Mr. Sillars in his statements to the police. In addition, Mr. Sillars' blood had 14 ng of THC in it, which according to Mr. Palmentier's testimony meant Mr. Sillars had recently consumed or smoked marihuana, although he was unable to extrapolate this figure back to the time of canoeing to determine the actual quantity of marihuana Mr. Sillars had consumed prior to heading towards the yellow warning barrier, just above High Falls. In normal circumstances paddling a canoe towards a waterfall with an eight year old boy who was inexperienced in canoeing, would be a dangerous and risky activity. This danger, in my view, was significantly increased as a result of the water conditions present at that time of year and as I found, amounted to a marked and substantial departure from the conduct of a reasonably prudent person such that he showed a wanton and reckless disregard for Thomas Rancourt's life and safety. David Sillars' consumption of alcohol and marihuana increased to an even greater degree that significant risk because of the impact it had on David Sillars' intellectual abilities to perform what can only be described as a number of complex tasks.

Determining the Appropriate Sentence

(a) The Applicable Principles of Sentencing

[40] The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating that in Canada revenge or vengeance is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit and proportionate sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.

[41] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[42] The "fundamental principle" of sentencing pursuant s. 718.1 of the Criminal Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[43] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[44] It is my view that in cases of criminal negligence or impaired operation of a vessel, particularly where death has resulted, denunciation and deterrence are the paramount sentencing principles. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. Retribution, which is different from vengeance, requires that an appropriate and fit sentence properly reflect the moral blameworthiness of that offender. As indicated by Chief Justice Lamer in R. v. M. (C.A.):

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.

[45] It is my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender's ability, as in this case, to operate a vessel and the fact that a motor vehicle was not the "conveyance" involved makes no difference. Impaired operation cases are often committed by otherwise law-abiding members of the community whether the conveyance is by a vessel or a motor vehicle. Such individuals are most likely to be deterred by the consequences of a substantial penalty. I do not agree with the defence submission that deterrence and denunciation do not have the same importance as sentencing principles for cases involving impaired operation of vessels. It is my view because of the inherent dangers and risks associated with operating a vessel on an inland or territorial waterway the sentencing principles of deterrence and denunciation are the paramount sentencing considerations in determining a proportionate sentence. The defence during submissions throughout these proceedings attempted to denigrate, question and ridicule the fact a canoe was the method of conveyance used on the Muskoka River. As I indicated previously, the fact a canoe was being utilized to travel down the river, in the water conditions present, greatly increased the dangers and risks, rather than diminished them.

[46] Further, impaired operation causing death was not the only offence that Mr. Sillars was convicted of. I also found him guilty of criminal negligence causing death, as his conduct was a marked and substantial departure from the conduct of a reasonably prudent person in similar circumstances, which amounted to a wanton and reckless disregard for the life and safety of Thomas Rancourt. I will address this issue in greater detail later in these reasons.

[47] The Supreme Court of Canada has provided guidance to sentencing judges in the difficult task of determining an appropriate and fit sentence for an individual convicted of a crime. In R. v. Nasogaluak, the Court stated commencing at para. 40:

[40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", with particular attention paid to the circumstances of aboriginal offenders.

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Understood in this latter sense, sentencing is a form of judicial and social censure...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[48] Finally, the principle of proportionality was defined by the Supreme Court in R. v. Ipeelee, as follows:

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[49] While deterrence and denunciation may be significant sentencing principles to be applied when determining a proportionate sentence, they should not be over-emphasized, I recognize that the sentencing principles of rehabilitation and restraint cannot be discounted or ignored. I recognize I am only to interfere with Mr. Sillars' liberty to the extent necessary and required to achieve the sentencing objectives in this case.

(b) Sentencing Parameters

[50] It is important to note as well that sentencing is not an exact science and no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.):

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[51] The Supreme Court in R. v. Lacasse, has held "the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation."

[52] As indicated by Justice Fuerst in R. v. Muzzo:

One measure of the seriousness of a particular kind of offence is its maximum penalty. The maximum penalty for impaired driving causing death was increased by Parliament in 2000, from fourteen years in jail, to life imprisonment. The fact that a life sentence is, as the Court of Appeal for Ontario put it, "within the realm of possibility" for the offence of impaired driving causing death signals Parliament's intention that offences of impaired driving causing death be treated severely by the courts.

[53] Justice Fuerst's observation is equally applicable to impaired operation of a vessel causing death, which has the same penalty as Impaired driving causing death – life imprisonment. Criminal negligence causing death also has a maximum sentence of life imprisonment. What does not follow is that the maximum penalty will be imposed in a given case. In fact, none of the previous decisions provided by counsel involving impaired operation causing death or criminal negligence causing death led to the imposition of a life sentence and the Crown in this case is not seeking such a sentence.

[54] Judges often refer to appellate decisions to assist in the determination of an appropriate sentence for a particular offence. Both the Ontario Court of Appeal and the Supreme Court of Canada have concluded for the offence of impaired operation causing death the sentencing range is quite broad – low penitentiary sentences of 2-3 years to more substantial penitentiary sentences of 8-10 years – because courts have recognized that they cover a broad spectrum of offenders and circumstances. Further, the Ontario Court of Appeal has held it is difficult to establish a range of sentence for the offence of criminal negligence causing death given this offence can be committed in an infinite variety of circumstances. It is also important to note that even if a range of sentence has been established for a particular offence it is only a guideline and not a hard and fast rule.

Analysis

[55] I was provided numerous cases by both Crown and defence to support their respective positions as to the appropriate sentence to be imposed. I agree with both counsel when they submitted this case was a unique case and there are no precedents dealing specifically and particularly with criminal negligence causing death or impaired operation causing death where the operation and capsizing of a canoe was involved. However, it is my view that the underlying facts of David Sillars' case bear great similarities and parallels with those cases where decisions were made by persons who consumed alcohol, which resulted in their BAC being over 80 or who ingested drugs or both, such that their ability to operate their motor vehicle was impaired by that consumption and they engaged in conduct, which amounted to a marked and substantial departure from the conduct of a reasonably prudent person such that he showed a wanton and reckless disregard for the life and safety of other persons.

[56] As I found, the decisions made by David Sillars showed a wanton and reckless disregard for the life and safety of an eight year old child, which caused his tragic death. The defence submitted there was no doubt David Sillars made a "stupid mistake" that day, however, it is my opinion the description of Mr. Sillars' decisions on April 7, 2017, as being a "stupid mistake" does not properly describe his conduct's moral blameworthiness or his level of culpability for Thomas Rancourt's death.

[57] First, according to Ms. Hooper's evidence, the decision for David Sillars to teach Thomas Rancourt how to paddle a canoe was made prior to Mr. Sillars arriving at Jack Kapel's cottage earlier that week, several days before April 7, 2017. Yet on the day he knew Thomas was coming to the cottage, David Sillars consumed enough alcohol to reach a BAC, at a minimum, of 128 mg of alcohol in 100 mL of blood, as well as smoke a quantity of marihuana, which resulted in 14 ng of THC remaining in his blood approximately an hour and a half to two hours after he began canoeing. Second, David Sillars decided to paddle towards the yellow warning barrier to retrieve a blue barrel, which, according to Jessica Hooper, was contrary to her understanding of where David Sillars was planning to go in the canoe with her son Thomas. She testified she believed he was only paddling to the cottage side of the Highway 11 Bridge, which was still some distance from the yellow warning barrier and High Falls. It was her evidence that if she had known David Sillars intended to paddle to the yellow warning barrier she would not have allowed Thomas to go, as this would have been too risky and dangerous. Third, as I indicated above, it is my view Mr. Sillars was fully aware, or at a minimum was wilfully blind because of his impairment, of the significant danger the river's water conditions created, yet he chose to ignore this danger. Fourth, David Sillars was aware it was reasonably foreseeable the canoe could capsize – upending them into the frigid waters of the Muskoka River, with the reasonably foreseeable consequence of serious injury or death being caused by either suffering from hypothermia or going over the waterfalls. The most telling evidence demonstrating David Sillars' awareness was his removal of his cell phone, keys and wallet from his pockets and leaving them in the Kapel cottage.

[58] I found David Sillars' decision to canoe towards the yellow warning barrier, in the existing water conditions on April 7, 2017, with an eight year old boy, to retrieve and extricate a blue barrel, which was wedged by debris against this floating barrier, a short distance from High Falls, amounted to criminal negligence causing death. David Sillars made these decisions as an adult in a position of trust and authority towards an eight year old boy and he was completely responsible for the tragic and catastrophic consequences that occurred. It is my view this was not just a "stupid mistake" and it would be inappropriate to refer to the tragedy that occurred as an "accident." I agree with Justice Trotter in R. v. Luskin, where he indicated in respect of a charge of criminal negligence causing death:

That word ["accident"] trivializes the serious nature of these offences, which are characterized by a wanton and reckless disregard for the safety and lives of others.

[59] The defence attempted to distinguish David Sillars' case from the impaired driving causing death cases where sentences have steadily increased since R. v. Ramage. Mr. Rosenthal pointed to the relatively few cases involving vessels where alcohol was involved. Mr. Rosenthal submitted the cases referred to by the Crown all reflected the need for deterrence and denunciation because of the carnage on the highways caused by impaired drivers. He argued every drinking driver is a potential killer. He submitted operating a canoe was unlike operating a car or a power boat and therefore the need for denunciation and deterrence was not as pressing.

[60] Half of the vessel cases provided by the defence involved dangerous operation of a vessel causing death charges, which is a less serious offence than criminal negligence causing death or impaired operation causing death. In fact, in most of the boating cases referred to by the defence there was no evidence that the accused's ability to operate the vessel was impaired by the consumption of alcohol and/or drugs, rather, the cases involved excessive speed and failing to keep a proper lookout. Although, in some of those cases alcohol had been consumed and this was a factor the sentencing judge considered, no alcohol testing had been done to determine the blood alcohol concentration of the accused as in this case. As I indicated above, it is my opinion, operating a vessel, whether it is a power boat, or a vessel powered by muscular power, like a canoe, is inherently a dangerous and risky activity because the vessel is operated on water, which in most cases is over the heads of those persons operating the vessel or the passengers in the vessel. Consequently, it is my view anyone who drinks alcohol to excess and then operates a vessel is also a potential killer to any passengers or to other persons operating vessels on the waterway or to first responders responding to an emergency created by the impaired individual.

[61] I have summarized below the vessel cases provided by the defence:

R. v. Bjorgaard, a British Columbia County Court decision from 1990, involved the accused taking some friends down a river on what was described as a "glorified toy," a large inflated tube, which the sentencing judge referred to as an act of "sheer stupidity." The judge characterized the occasion as a social one amongst four young people. There was no evidence of any consumption of alcohol. The trial judge imposed a six (6) month jail sentence after a trial, on a charge of criminal negligence causing death. It is my view, this case is completely different from Mr. Sillars' case in terms of moral blameworthiness. Having found the accused showed a complete disregard for the dangers associated with the activity and without taking any precautions for his friend's safety the judge found the accused guilty because he had a blameworthy mind, although his acts were not calculated to kill. It is my view the sentence in this case today, almost 30 years later, would be much greater, even without the consumption of alcohol or drugs.

R. v. MacKay, a Nova Scotia Provincial Court decision, after a lengthy trial, the trial judge found the accused guilty of dangerous operation of a vessel causing bodily harm and dangerous operation of a vessel causing death in 2008. This was a case where the accused operator of the vessel struck an unlit marine buoy in Halifax Harbour. There had been some consumption of alcohol but there was no evidence the accused's ability to operate the vessel was impaired by alcohol or what the accused's actual BAC was. In fact, the surviving passengers testified they were never concerned about the accused's ability to operate the vessel and had confidence in the manner he was operating it. The buoy had moved from its usual spot because of tidal ebb and flow. The accused had set a navigational course he was familiar with and had navigated previously without difficulty. At the time of the collision the judge found he was driving the vessel at a rate of speed that in the prevailing set of circumstances was unsafe and dangerous as it did not allow him to stop within his vision distance or to safely avoid the collision as he was not keeping a proper lookout. The trial judge found "this was not a case of a deliberate and callous disregard for the life and safety of others," which would have amounted to criminal negligence. A conditional sentence was available and the judge determined the appropriate sentence was less than two years. The sentence imposed was an eighteen month conditional sentence. There was a five year prohibition from operating a vessel. It is my view this decision does not assist in determining an appropriate sentence in Mr. Sillars' case given the alcohol did not impair the accused and the conduct that led to the collision was excessive speed and not keeping a proper lookout – the charge was dangerous operation of a vessel causing death not criminal negligence causing death, which David Sillars was convicted of. The movement of the location of the buoy was also something beyond the accused's control. Finally, a conditional sentence is no longer available for any of the offences I found Mr. Sillars guilty of.

R. v. Escott, following a trial the accused was convicted of dangerous operation of a vessel causing death. The case involved the collision between two motor vessels on the west coast of Vancouver Island. The accused's motorized vessel was not displaying navigation or running lights. The trial judge found the accused was operating his vessel at an unsafe speed with no running lights in a narrow channel, which was a marked departure from the norm. There was no evidence of consumption of alcohol on the part of the accused. The trial judge indicated the Crown did not seek to prove any aggravating factors. The Crown and defence jointly recommended a sentence of two years in the penitentiary with a four year prohibition from operating a vessel. At this point a conditional sentence was no longer available for this offence. Again, the factual circumstances are significantly different from Mr. Sillars' case and the aggravating factors in Mr. Sillars' case, as I have found them are far more serious.

R. v. MacGillivray, was an appeal against conviction by the accused and the Crown appealed the sentence, for dangerous operation of a vessel causing death. A number of young people were swimming off a point and some decided to swim into the bay. A power boat came around the point and proceeded towards some of the swimmers. Despite people on shore and in the water attempting to warn the operator of the boat of the swimmers in the water, he struck one of the swimmers, who died from his injuries. The weather conditions were excellent and the seas relatively calm. The boat was going fast with its bow elevated, which prevented the operator from seeing what was in front of the boat. The area was a common area where people swam. Eight witnesses testified the operator was looking at the shore and waving at those persons trying to get the boat to stop or slow down. The trial judge found the operator was not keeping a proper lookout. He was found guilty and sentenced to 90 days to be served intermittently. There was no mention in the factual circumstances of any consumption of alcohol by the operator. The appeal against conviction was dismissed as there was clear evidence of excessive speed and not keeping proper lookout. The Crown's appeal as to sentence was also dismissed where the Nova Scotia Court of Appeal made reference to the fact the accused's conduct did not reach the standard of criminal negligence.

R. v. Reinbrecht, after a lengthy trial the accused was found guilty of criminal negligence causing death. The case involved a nighttime collision by a speedboat with a houseboat, which caused a death and several other individuals to be injured. There was a fireworks display and both boats had passengers watching the fireworks. The bay was congested with about 100 to 200 boats. After the fireworks were finished, the accused dropped off some passengers on shore and then took a joyride out in the bay. This consisted of the boat going back and forth across the bay at different rates of speed and doing donuts and U-turns. The joyride lasted 10 to 15 minutes. The accused was operating the boat at such high speeds he had to hold onto one of the passengers, so she was not flung from the boat. Other boaters testified the accused's operation of his boat caused them to be frightened for their safety. After completing the joyride, the accused and his two passengers were looking to shore trying to discern lights to determine how best to get back into the bay. The accused was seated while he was doing this – operating the boat at approximately 30 miles per hour. The houseboat struck by the accused boat was operating in a straight path travelling slower than 8 miles an hour. The motorboat struck the houseboat on its bow towards the centre of the houseboat and travelled through the interior until it was completely embedded inside the houseboat. The person operating the houseboat was killed and others were injured. The accused displayed no symptoms of being impaired by alcohol or drugs. The operator of the houseboat was impaired by alcohol and drugs. The houseboat had its red and green sidelights and its sternlight but did not display its masthead light. The interior of the houseboat was dimly illuminated. The accused had a criminal record, which included three convictions for over 80 (1982, 1989 and 2000) for which he received fines. He had never been to jail. The Crown sought a sentence of 2.5 to 3.5 years in the penitentiary referring to denunciation and deterrence being the paramount sentencing principles and pointed to the accused's high degree of moral blameworthiness, given the risks taken by him, the degree of harm and the extent of his conduct. The defence sought a sentence of two years in the penitentiary, recognizing the paramountcy of denunciation and deterrence but urged the judge not to lose sight of the principles of rehabilitation and other restorative principles. The trial judge referred to numerous British Columbia Supreme Court and Court of Appeal cases where sentences ranged from two (2) years (a joint submission) to four years for offences involving criminal negligence causing death and dangerous operation causing death. The sentence imposed was three years in the penitentiary.

R. v. Angeconeb, the accused pleaded guilty to criminal negligence causing death of three individuals. The case involved eight drunken individuals getting into a fishing boat designed for six, with two life jackets, heading out on a lake with severe winds and high waves. They were apparently going out in the boat to a liquor store. The motor was faulty. Two police officers expressly warned the accused not to go on the water that day. They went anyway. It was only after a new fuel line and new gas tank was attached to the motor that it started. When the boat reached the middle of the lake the motor stopped and would not restart. The boat was swamped, and the parties were in the water for five hours. It was June in Northwestern Ontario and the water was not warm. The accused's 15 year old daughter swam 450 meters to shore to get help. By the time help came, two of the party had drowned and a third died later. Mr. Angeconeb and the other 7 persons in the boat were Indigenous, and the sentencing was delayed waiting for a Gladue report to be completed. The sentencing judge found the accused's Indigenous background played a significant role in determining an appropriate sentence. The accused was impaired by alcohol. What is surprising about this case is that the two police officers who told the accused not to go out onto the water did not charge him with impaired operation of a vessel, which would have avoided this tragedy. The accused was sentenced to 18 months in the reformatory, where the judge indicated he could avail himself of suitable initiatives geared to First Nations offenders. A recommendation was made by the judge for the accused to serve all or a portion of his sentence at Algoma Treatment Center. The sentencing judge made reference to how this sentence was seeking to moderate the number and time spent by Indigenous offenders in Canada's prisons. In addition, Mr. Angeconeb was placed on probation for three years with conditions addressing his addiction issues. Again, it is my view this case is in no way similar to David Sillars' case.

[62] It is my view the defence submissions completely ignore the factual circumstances underlying David Sillars' convictions for criminal negligence causing death and impaired operation of a vessel causing death. He was in a position of trust and authority towards Thomas Rancourt and he completely ignored the significant risk and danger created by his decision to canoe towards the warning barrier and High Falls. His conduct was a marked and substantial departure from the conduct of a reasonable prudent person in like circumstances, which showed a wanton and reckless disregard for the life and safety of the child he had care of and was obligated to protect. David Sillars compounded the danger and risk of serious injury or death to Thomas Rancourt by his consumption of alcohol and marihuana knowing he was to take this eight year old child on the Muskoka River to teach him how to canoe. His consumption of alcohol impaired his intellectual abilities to handle complex tasks respecting decision-making, risk assessment, choice reaction time, emergency response and his ability to multitask. As I found the significant risk of serious injury or death resulting from the canoe capsizing was a reasonably foreseeable consequence of carrying through with his intention of attempting to retrieve this blue barrel wedged against the barrier by debris. Whether a person is operating a motor vehicle or a vessel in my opinion makes no difference in terms of the moral blameworthiness of the person engaging in conduct that is criminally negligent. Considering the circumstances present, the only logical conclusion is that David Sillars' moral blameworthiness is very high. He made the decision for Thomas Rancourt to paddle towards the barrier, which had catastrophic consequences. The inevitable foreseeable result of David Sillars' pointless risk-taking clearly led to the death of Thomas Rancourt.

[63] The majority of the vessel cases provided by the defence all reflected that the sentencing principles of denunciation and general deterrence were paramount in determining a fit and appropriate sentence, which is inconsistent with the defence submission that deterrence and denunciation are not important sentencing principles to be applied because Mr. Sillars' case was a unique or "novel" case. The only unique aspect of Mr. Sillars' case is that the method of conveyance was a canoe. It is my view, the underlying facts of David Sillars' impaired decision-making are similar to the circumstances surrounding the impaired decision-making of the accused persons in the drinking and driving cases set out by the Crown, in terms of the dangerousness of the conduct and the risks taken because of their impairment by alcohol and/or drugs. The fact a canoe does not travel at high rates of speed or does not have to comply with certain rules of the road such as stopping at a red light/stop sign or must operate in a particular lane to avoid head-on collisions does not diminish the dangerousness or riskiness of a canoe operator's decisions to paddle towards a waterfall during spring run-off water conditions or to paddle to a warning barrier only a few feet from the top of the waterfall to attempt to dislodge a barrel, which is wedged against the barrier by other debris or to attempt to do this with an inexperienced eight year old boy, whose weight differential will also create significant hazards given the intended task and water conditions. It is my view the sentencing principles referred to in the drinking and driving cases referred to by the Crown are equally applicable and relevant to the factual circumstances of David Sillars' case. As I have indicated a number of times in these reasons, operating a vessel of any kind is a dangerous and risky activity having regard to the fact it occurs on water, which in most cases is over a person's head, such that a person's swimming ability becomes very important. When one considers the water conditions present on April 7, 2017, the danger and risk is multiplied significantly. Where a person's ability to operate the vessel is impaired by alcohol and/or a drug the danger and risk becomes even greater.

[64] The defence also provided several cases where sentences were imposed for criminal negligence causing death, which I have summarized in the footnote because the facts of each of those cases in no way approximated the facts of David Sillars' case and did not involve impairment by alcohol and/or drugs. In my view they provided no assistance in determining a proportionate sentence for David Sillars. I do not intend to address these cases as in my view they confirm the decision in R. v. J.L., where the Ontario Court of Appeal held:

…The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise. The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed.

[65] The Court of Appeal in R. v. J.L., went on to indicate for criminal negligence cases where death was caused and alcohol and/or drugs were also involved:

The only principle that can be stated with assurance concerning this offence is that, where the offence involves not only reckless driving conduct but the consumption of alcohol, the sentences have tended to increased severity over the past twenty years. Otherwise, the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct. The more that the conduct tends toward demonstrating a deliberate endangerment of other users of the road and pedestrians, the more serious the offence and the more likely that a lengthy prison term will be required.

[66] It is my view this observation by the Ontario Court of Appeal applies to the factual circumstances present in David Sillars' case. As I indicated earlier, the fundamental principle of sentencing is proportionality, which refers to the moral blameworthiness or degree of culpability of the offender and the seriousness of the offence. In this case the seriousness of the offences Mr. Sillars has been found guilty of is very high. The seriousness is also dictated by the harm done by the offender's conduct, here Mr. Sillars' conduct directly caused the death of an eight year old boy, with whom David Sillars was in a position of trust and authority. David Sillars' conduct in my view demonstrated a deliberate endangerment of eight year old Thomas, as David Sillars ignored the warnings of two individuals who were knowledgeable with the serious risks and dangers associated with the existing water conditions during the spring run-off. His insistence in canoeing on the Muskoka River despite these warnings and his refusal, despite those conditions, to accept the offer of an adult life jacket for himself to wear, and as an experienced canoeist, his failure to ensure the appropriate safety equipment required by regulation was brought in the canoe, also increases his level of culpability and moral blameworthiness. Further, David Sillars' stated purpose in paddling towards the yellow warning barrier and High Falls was to retrieve this blue barrel, which I found to be criminal negligence that showed a wanton and reckless disregard for the life and safety of Thomas, who he was in a position of trust towards. His consumption of alcohol and marihuana knowing he was going to take Thomas in a canoe to teach him how to paddle further exacerbates his moral blameworthiness. I find David Sillars' moral blameworthiness in this case to be very high.

[67] The defence also provided a number of cases, which involved drinking and driving where death resulted, however, these cases pre-dated the Ramage case. Conditional sentences were imposed initially in two of those cases, jail sentences were substituted for the conditional sentences originally imposed, which were found by the Ontario Court of Appeal to be manifestly inappropriate and demonstrably unfit having regard to the circumstances of the cases. In another case the Ontario Court of Appeal upheld a sentence of imprisonment of two years less a day, holding a conditional sentence was not appropriate. In the final case of impaired driving causing death the Ontario Superior Court judge imposed a conditional sentence, holding such a sentence could properly address the principles of deterrence and denunciation. It is difficult to see how the Doust decision would have withstood an appeal in light of the two cases in the Ontario Court of Appeal referred to above where conditional sentences were overturned.

[68] I frankly do not understand why these four decisions were included in the defence casebook. A conditional sentence is not available for either criminal negligence causing death or impaired operation causing death where the maximum sentence currently is life imprisonment. The length of the sentences imposed in those four decisions, having regard to the trilogy of cases referred to by Justice Fuerst in R. v. Muzzo, all pre-date these cases, where she found:

64 …recent decisions of the Court of Appeal for Ontario provide some guidance as to the just and appropriate sentence in this case. In particular, two propositions emerge from those decisions.

65 The first is that the offence of impaired driving causing death will attract a substantial penitentiary sentence, even for first offenders of good character. Three cases are particularly relevant. [She then summarized Ramage, Junkert, and Kummer.]

69 The second proposition that emerges from the jurisprudence is that sentences for impaired driving causing death have increased in recent years. This reflects society's abhorrence for the often tragic consequences of drinking and driving, as well as concern that even though the dangers of impaired driving are increasingly evident, the problem of drinking and driving persists. For this reason, sentencing decisions that pre-date Ramage, Junkert, and Kummer have diminished value as guidelines.

[69] Although Justice Fuerst was sentencing an accused for four counts of impaired driving causing death and two counts of impaired driving causing bodily harm and the trilogy of cases all dealt with impaired causing death and dangerous driving causing death, the sentencing principles discussed in these cases are equally applicable to the factual circumstances present in David Sillars' case, as I have found.

[70] The Crown provided numerous decisions, which demonstrated and reflected the conclusions of Justice Fuerst in Muzzo, set out above. I do not intend to go through those decisions. The sentencing principles reflected in those cases in my view are applicable to the factual circumstances present in David Sillars' case.

Sentence Imposed

[71] Sentencing is an individualized process. The charges of criminal negligence causing death and impaired operation of a vessel causing death I found Mr. Sillars guilty of, are both extremely serious offences, and the sentence imposed must address denunciation, which reflects the community's abhorrence and condemnation of Mr. Sillars' conduct and will also serve as a general deterrent to other like-minded individuals. Mr. Sillars' conduct was a marked and substantial departure from a reasonable prudent person in similar circumstances and showed a wanton and reckless disregard to the life and safety of Thomas Rancourt. I found his intellectual abilities to make appropriate decisions, to respond quickly to emergency situations and risk assessment were impaired by his consumption of alcohol and marihuana. I must look to the underlying factual circumstances and balance the aggravating and mitigating factors present in determining an appropriate and fit sentence. Denunciation and general deterrence are the paramount sentencing principles.

[72] I recognize the sentencing principles of denunciation and general deterrence cannot be overemphasized by sentencing judges and that rehabilitation and restraint cannot be discounted or ignored. It should be noted this is not Mr. Sillars' first sentence in the penitentiary, as in 2008, he was sentenced to a 26 month custodial sentence for non-cognate offences. It is important to note as well there is a considerable gap in his criminal record. In the report of his counsellor, Ms. Hayes, Mr. Sillars reported a history of substance abuse and his consumption of alcohol and marihuana was a significant contributing factor underlying his conduct on April 7, 2017. It is my view a sentence in the upper end of the Crown's range would have had the effect of giving too much prominence to denunciation and deterrence. Section 718.2 (d) and (e) both dictate I am only to interfere with Mr. Sillars' liberty to the extent necessary and required to achieve the sentencing objectives in this case.

[73] It is my view, having regard to the serious nature of the offences I found Mr. Sillars guilty of, the harm caused by his conduct and his high degree of moral blameworthiness that the appropriate and proportionate sentence is one of six (6) years in the penitentiary. This custodial sentence will be concurrent on each of the charges I entered convictions on.

[74] In addition, I am making the following ancillary orders. Under ss. 487.04 and 487.051(3) of the Criminal Code, the offences of criminal negligence causing death and impaired operation of a vessel causing death are "secondary designated offences" and I am exercising my discretion to make an order requiring that samples of bodily substances be taken from David Sillars for purposes of forensic DNA analysis.

[75] Further, under s. 259(2) (a.1) I order that David Sillars be prohibited from operating a vessel for a period of 10 years, which will be in addition to the sentence of imprisonment I am imposing. It is my view both of the two offences Mr. Sillars has been convicted of are referred to in s. 259(2); namely, s. 220 and s. 255(3) and under s. 259(2) (a.1) I have the discretion to impose a prohibition order for any period I consider proper, as the maximum sentence for both of these offences is life imprisonment.

[76] I do not believe there are any further ancillary orders being sought or which are appropriate concerning the offences Mr. Sillars was convicted of.

Released: October 4, 2019

Signed: Justice Peter C. West