IMPAIRED CANOEING
Conviction a first in Canadian legal history
It was late afternoon in April 2017 when police dispatch received a report of a drunk man stumbling around on a freeway ramp in Ontario’s cottage country. Two Ontario Provincial Police constables were close by and responded within minutes. When they arrived, they found 37-year-old David Sillars soaking wet, shoeless and shivering in the cold April weather. He could barely form sentences due to hypothermia. But he eventually managed to get an urgent message to the officers: A young boy was still in the river.
This was the start of a chain of events that would make Canadian legal history. On Thursday, in a courtroom in Oshawa, Ont., Sillars became the first Canadian ever to go to trial and be convicted of impaired driving charges for the act of paddling a canoe.
The case is so novel that it required a special ruling last fall on whether the Criminal Code’s vague language around “vessels” means a canoe counts under impaired driving laws. Justice Peter West pored over dictionary definitions, shipping regulations and other marine laws. He also looked at the House of Commons, where in the fall of 2017 — just six months after Sillars was charged — MPs rejected a justice department proposal to clarify that paddling is not impaired driving.
Weighing all of this, Justice West concluded that yes, canoes count — and so does pretty much anything else that transports you over water. In the eyes of the law, then, being drunk while pad
dling an inflatable dinghy is the same thing as being drunk while driving a pickup truck. Smoking a joint and paddling a canoe is equal to smoking a joint and driving a car. All of the same penalties, including mandatory minimum sentences, apply. Yet you cannot be charged for impaired operation of a bike, because the Criminal Code says land vehicles must be motorized to count.
But all of this was still far off in the future on that afternoon in April, when Sillars was sitting in a police cruiser trying to warm up and explain what happened.
Sillars had been hanging out and drinking at a friend’s cottage when he decided to go canoeing on the Muskoka River with his girlfriend’s son, eight-year-old Thomas Rancourt. They paddled toward a floating yellow barrier that warned boaters about a dam and the High Falls waterfall that dropped 50 feet onto rocks.
They were at the barrier, possibly trying to dislodge some junk pressed up against it, when the canoe tipped. The river was swollen with snowmelt and the current was very strong. When he hit the water, Sillars struggled to get to shore and had to kick off his heavy boots. But Thomas was carried downriver, toward the falls.
The police quickly called for backup to search the area. At 5:46 p.m., just 20 minutes after Sillars was found, officers pulled Thomas’s lifeless body from the frigid water at the bottom of High Falls. He’d been wearing four layers: a T-shirt, a hoodie, a winter jacket and a life-jacket meant for a child 30 pounds lighter.
Once the canoe tipped and his thick clothing soaked up water in the rushing river, Thomas almost certainly never had a chance.
The police now turned to the question of whether Sillars was intoxicated. He had already admitted to drinking two coolers earlier that day (he doesn’t drink beer). At 7:47 p.m., a breathalyzer test registered a reading of 97 mg of alcohol in 100 mL of blood — above the legal driving limit of 80 mg. At 8:12 p.m., a second test registered a reading of 100 mg. Blood tests would show Sillars also had THC in his system and had likely consumed cannabis earlier that day.
Police laid four charges against Sillars: impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 mL blood, dangerous operation of a vessel, and criminal negligence causing death. He was convicted of all four and faces a maximum sentence of life imprisonment, though more likely a sentence in the range of two to 10 years.
The issue of whether paddlers can be charged with impaired operation is not new. Canada’s impaired driving laws have applied to “vessels” since 1961, but do not define what exactly a “vessel” is. Many police forces have long taken the view that canoes, kayaks and even stand-up paddleboards count as vessels; prosecutors, however, have been more skeptical, and have generally not proceeded with charges against paddlers.
At the very least, case law tells us this: Until Sillars, nobody had ever contested impaired paddling charges in court.
It is easy to laugh at the idea of drinking and canoeing. Some might even consider the activity a Canadian pastime. But the Sillars case does show how devastating the consequences of a boating accident can be.
The trial began in October 2018. It was emotionally fraught not only because of the death of a young boy, but also the wrenching conflict that comes when families fracture. Thomas’s mother, Jessica Hooper, defended Sillars’ actions and testified in his favour. Hooper’s own family was so furious at her for taking Sillars’ side that Hooper would only testify behind a screen. The judge had effectively banned Thomas’s father, Jamie Rancourt, from the courtroom over his outbursts.
When the convictions were announced on Wednesday, Sillars showed little reaction and left the courthouse without commenting. Jessica Hooper was not there. But the rest of Thomas’s family were overcome with emotion and relief.
“I’m overwhelmed,” said Donna Posnikoff, Thomas’s maternal grandmother, after the ruling. She was crying. “I wish I was going home and celebrating Thomas finishing Grade 4 today. But I’m not. I’m going home, thinking that people cared about Thomas, and his life mattered. It’s just been such a sad, hard two-and-a-half years.”
Thomas’s family wanted the harshest punishment possible for Sillars. They felt so strongly about this that in the fall of 2017, when they heard Parliament was considering a bill that would remove canoes from Canada’s drunk driving laws, they called their local MP Tony Clement to sound the alarm.
Bill C-46 consisted of tough new impaired-driving legislation brought in to coincide with the legalization of marijuana. It was also a chance for the justice department to address problems in the existing law. The department proposed to finally provide some clarity on the term “vessel,” and to exclude anything “powered exclusively by means of muscular power.”
Thomas’s aunt Jen Hooper met with Clement, and he urged the family to write letters about the case, which they did. Shortly afterward, the House of Commons justice committee voted unanimously to remove the muscle-power clause and just leave it up to the courts to define vessels.
During the justice committee meetings, Conservative MP Rob Nicholson cited the Sillars case as a reason for his vote to remove the muscle-power clause. Other MPs cited the testimony of the only group to appear before the committee on this issue: the Canadian Safe Boating Council, which argued that being out on the water is so inherently dangerous that impaired-driving charges are warranted.
When federal justice officials testified to MPs, however, they explained their justification for excluding canoes. “The reasoning was that the criminal law (on impaired driving) was aimed at those who were endangering the public,” said Greg Yost, department counsel for criminal law policy. “We have impaired operation of a motor vehicle. We don’t have impaired operation of bicycles, scooters, etc.”
Yost pointed out there is already a law that can be used in impaired-canoeing accidents: criminal negligence causing bodily harm or death, which carry maximum sentences of 10 years and life imprisonment, respectively.
The justice department’s advice was proven correct: prosecutors successfully convicted Sillars of criminal negligence causing death. But a criminal negligence charge requires proving that the accused acted in a “marked and substantial departure” from the conduct of a reasonable person, showing “reckless disregard” for the lives of others. In other words, it requires a lot of police and prosecutorial work to prove someone acted not just carelessly, but criminally — deserving of a permanent criminal record and all that entails.
By contrast, once police have breathalyzer results, impaired-driving charges are much easier to prosecute. Governments, responding to the extreme danger of impaired drivers on the roads, have repeatedly amended the law to the point where it is very hard to challenge it, unless you can find a procedural error. The Criminal Code sanctions have also steadily ratcheted up to include mandatory minimum fines and, in some cases, jail time. This is now often accompanied by immediate provincial penalties — licence suspensions, car impoundment, steep fees.
The big question is: Do we really want this harsh regime, designed to address the carnage caused by powerful motorized vehicles, applying to someone paddling? Why is the criminal negligence charge not enough?
In his final ruling, Justice West had no qualms about including canoeists in impaired-driving laws, pointing out that motor vehicles have safety features such as airbags and steel beams. He called canoeing “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 marijuana can and often do cause serious bodily harm and death,” he wrote.
It is not immediately known whether Sillars’ lawyers, William Thompson and Jonathan Rosenthal, will appeal.
The Sillars case was tried in Ontario provincial court, meaning its interpretation of impaired-driving law is not binding and could be overturned by higher courts. In the meantime, it will be a key guide to any future court decisions on this matter, and it means police have a much stronger legal basis for laying impaired-paddling charges.
“For us, it’s a fantastic decision that a vessel involving muscle power is still determined a vessel in the Criminal Code,” said Sgt. Dave Moffatt, the provincial marine co-ordinator for the Ontario Provincial Police, in an interview after the ruling came down.
“I’ve been a marine instructor for a long, long time. … In a canoe, in a vessel propelled by muscular power, you go into the water while you’re impaired, that can take your life away in minutes. So I’ve always had that attitude to lay the charge where it’s appropriate. And in this case, the Sillars case, it was a very appropriate charge.”
Moffatt said he believes the vessel ruling in the Sillars case means it is more likely police around the province, if not the country, will now lay charges of impaired paddling. He said it’s always up to the officer’s discretion in each case, but pointed out that 23 people in OPP-patrolled waters last year died in boating accidents, including three involving a canoe and three involving a kayak. “It’s a tool that we have in our tool box,” he said. “It’s another way that we can protect the general public.”