COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Sillars, 2022 ONCA 510
DATE: 20220705
DOCKET: C67295
Benotto, Miller and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
David Sillars
Appellant
Frank Addario and William Thompson, for the appellant
Philip Perlmutter and Davin Michael Garg, for the respondent
Heard: May 30, 2022
On appeal from the convictions entered by Justice Peter C. West of the Ontario Court of Justice on June 27, 2019, with reasons reported at 2019 ONCJ 474 and from the sentence imposed on October 4, 2019, with reasons reported at 2019 ONCJ 710.
Benotto J.A.:
[1] The appellant took an eight-year-old boy canoeing on the Muskoka River during the April spring runoff. The water was frigid and moving swiftly. The boy did not know how to canoe and was a weak swimmer. They were headed towards High Falls to retrieve a piece of debris wedged against a yellow barrier warning of danger due to the falls. The canoe capsized, the child was swept over the falls and died. The appellant made it to shore. He had a blood alcohol content of 128 mg in 100 mg of blood.
[2] The appellant was charged and convicted of impaired operation of a vessel causing death and criminal negligence causing death. The charges of over 80 operation of a vessel causing death and dangerous operation of a vessel causing death were stayed pursuant to the Kienapple principle. He appeals the convictions and the sentence imposed of six years.
[3] The appellant submits that a canoe is not a vessel under the Criminal Code, R.S.C. 1985, c. C-46; that his s. 10(b) right to counsel was infringed by the failure of the police to advise him of his right to counsel before the approved screening device (ASD) test; and there was no expert evidence as to the standard of care on which a conviction for criminal negligence could be based. He also submits that the sentence is manifestly unfit.
[4] For the reasons that follow, I would dismiss the appeal.
FACTS
[5] On April 7, 2017, the appellant was at a friend’s cottage on the Muskoka River. A few other friends and the appellant’s girlfriend, Jessica Hooper, were also there. Ms. Hooper was with her two sons, aged eight and six. Thomas, her eight-year-old son, was hoping to go canoeing with the appellant. The appellant, an experienced canoeist, planned to teach Thomas how to paddle. Thomas did not know how to canoe and was an inexperienced swimmer.
[6] It was a cold day. The air temperature was three to four degrees Celsius. The roads were covered in slush and ice such that school buses were cancelled. The river was running high and fast with a strong current. The water was frigid and turbulent. It was estimated that hypothermia would set in after three to four minutes in the water. Jack Kapel, the owner of the cottage, testified that it was too dangerous to go out on the water before May because of the spring runoff, the cold and the strong current.
[7] Mr. Kapel and another friend, Mike White, told the appellant not to go out on the water. But the appellant wanted to retrieve a blue barrel he had seen on the river leading up to the falls. The barrel was wedged against a yellow floating barrier warning of the danger ahead.
[8] Mr. White and Mr. Kapel offered the appellant a lifejacket, but he declined because “he had done white-water rafting and stuff like that previously”. Thomas wore a lifejacket, but it was too small for his size. Underneath the too-small lifejacket he wore two layers and a winter jacket.
[9] The two friends and Ms. Hooper observed the appellant consume alcohol and one friend observed him smoke a marijuana cigarette.
The canoe trip
[10] The appellant removed his phone and keys from his pocket, and he and Thomas went down the river in a canoe at 4:45 pm. They paddled toward the barrier. The falls were visible. As they got closer to the barrier, the current was even stronger and the water more turbulent. Thomas leaned out of the canoe to put his paddle on the barrier and the canoe capsized.
[11] The appellant swam to shore. Thomas went over the falls and died.
[12] At 5:29 pm, the police were called about a man on shore. They arrived and found the appellant suffering from hypothermia. The appellant was transported to the hospital.
[13] At 5:46 pm the police saw Thomas in the water past the waterfall. PC Reading swam out into the river below the waterfalls to rescue him. Within a few minutes she had Thomas on shore. His vital signs were absent. Officers performed CPR. The ambulance arrived at 5:52 pm and took him to the same hospital as the appellant. He was pronounced dead at about 7:06 pm.
[14] PC Reading was unable to continue her shift because of the effects of the cold water.
At the hospital
[15] The appellant arrived at the hospital at 5:51 pm. The emergency room doctor estimated she spent 15 minutes assessing the appellant. She smelled alcohol on his breath and noted this on the hospital chart. Some time later, she ordered a trauma blood panel to be drawn from the appellant; this was performed around 6:45 pm.
[16] Once the appellant was sufficiently warmed up, PC Maki spoke with him “basically asking what had happened”. Around 6:10 pm, Csts. MacDonald and Coles arrived at the hospital and interviewed Ms. Hooper, who by then had arrived. She told the officers the appellant had had two coolers at the cottage. The constables called and informed Sgt. Allison, who was at the police detachment, that there was information the appellant had consumed two coolers at the cottage.
[17] Sgt. Allison attended the hospital with an ASD and a blood kit. He did a self-test and believed it to be working properly. Sgt. Allison entered the appellant’s room around 6:50 pm. He could not smell any odour of alcohol. Sgt. Allison asked the appellant to blow across his face. The appellant complied and Sgt. Allison observed a slight odour of alcohol. Sgt. Allison asked the appellant if he’d had anything to drink, and the appellant said he’d had two coolers.
[18] Sgt. Allison testified that as a result, he formed a reasonable suspicion that the appellant had alcohol in his body within three hours of operating a vessel. At 6:50 pm, Sgt. Allison made an ASD demand for a breath sample, reading from a pre-printed card. The appellant asked, “Won’t this get me in trouble?” Sgt. Allison responded that it was a legal demand and explained the consequences for failing to provide a sample. The appellant did not comply, but he did not refuse to do so. Sgt. Allison did not advise the appellant of his right to counsel.
[19] Sgt. Allison left the room and requested Csts. MacDonald and Coles to attend the lab and see if there was extra blood that could be sealed. There was, and Cst. MacDonald placed a seal over a vial of blood identified as “David Sillars”. The lab attendant set aside the vial of blood.
[20] When Sgt. Allison returned to the room, the appellant agreed to provide a sample. At 6:57 pm, the appellant provided a good sample into the ASD, which registered a “fail”. The appellant was placed under arrest at 6:59 pm for impaired operation of a vessel and operating a vessel with over 80 mg of alcohol in his body. Sgt. Allison read the appellant a caution from a pre-printed card and read the appellant his right to counsel from a pre-printed card. The appellant stated that he did not have a lawyer, so Sgt. Allison arranged for PC Maki to call duty counsel. Sgt. Allison began arranging for another officer to bring in the Intoxilyzer 8000C.
[21] Duty counsel was on the line at 7:04 pm, and the appellant spoke with duty counsel in private around 7:07 pm. At 7:06 pm, Thomas was pronounced dead. Sgt. Allison interrupted the appellant’s call with duty counsel to advise them of the change in circumstances and that there would be a charge of impaired operation causing death. Sgt. Allison then left to allow the appellant to finish the call in private; it concluded around 7:12 pm.
[22] Once the appellant had finished his call, Sgt. Allison returned to the appellant’s room around 7:15 pm and read him the formal demand for breath samples. Sgt. Allison called for the Intoxilyzer 8000C, performed the necessary diagnostic and calibration tests and self-test, and re-read the breath demand. The appellant began asking what would happen to him. Sgt. Allison explained the consequences of failing to provide a sample. At 7:47 pm, the appellant provided a good sample, registering 97 mg of alcohol in 100 ml of blood.
[23] Sgt. Allison asked the appellant a series of questions. Sgt. Allison then took a second good sample from the appellant at 8:12 pm, registering 100 mg of alcohol in 100 ml of blood. Sgt. Allison advised the appellant he blew over 80 mg and was being charged with impaired operation of a vessel causing death and operating a vessel with over 80 mg.
[24] Police executed a search warrant on the hospital on July 28, 2017 and seized the appellant’s hospital records, including a toxicological analysis of the appellant’s blood, which was later used by a toxicologist to identify the mg of alcohol per 100 ml of blood for the appellant. It registered 128 mg of alcohol per 100 ml of blood.
THE CHARGES
[25] The appellant was charged with impaired operation of a vessel causing death; operating a vessel with over 80 mg; dangerous operation of a vessel causing death; and criminal negligence causing death.
ISSUES BEFORE THE TRIAL JUDGE
The charges involving a vessel
[26] The appellant argued that a canoe is not a vessel under the Criminal Code. There could therefore be no conviction for impaired operation, operation over 80 and dangerous operation of a vessel.
[27] He also submitted that the delay in advising him of his right to counsel violated his rights under s. 10(b) of the Charter and the evidence of the breath and blood samples should be excluded.
Criminal negligence causing death
[28] The appellant argued that there was no evidence about what a reasonably prudent canoeist would do.
DECISIONS BELOW
A canoe is a vessel
[29] The trial judge concluded that a canoe is a “vessel” under the Criminal Code.
[30] He reasoned that the fact that Parliament did not qualify “vessels” with a word like “motorized” or “motor” indicates that all vessels, regardless of their method of propulsion, were to be included in the offence.
[31] The trial judge also considered the 1961 Hansard debates on Bill C-110, which added “vessel” to a number of offences under the Criminal Code. This addition was intended to convey the seriousness of dangerous and impaired operation of pleasure craft vessels. On a similar note, an earlier draft of Bill C-46, which amended the offences in the present case in 2018, defined “vessel” to exclude vessels propelled exclusively by muscular power. This exclusion was removed after submissions by the Canadian Safe Boating Council indicating that a number of deaths occurred in cases involving alcohol and unpowered vessels. These concerns continue to persist.
[32] The trial judge rejected the appellant’s submission that the dictionary definitions of “vessel” indicate that it must be larger than a canoe and requires non-muscular propulsion. In any case, the definitions of “vessel” in Black’s Law Dictionary and Duhaime’s Legal Dictionary support an interpretation that includes canoes.
[33] Relying on s. 4(4) of the Criminal Code and s. 15(2) of the Interpretation Act, R.S.C. 1985, c. I-21, the trial judge looked at other statutes to confirm his conclusion.
[34] The trial judge concluded that the legal justifications and constitutionality for screening drivers at the roadside apply equally to conveyances on waterways, regardless of their method of propulsion.
Section 10(b)
[35] The trial judge concluded that the appellant’s s. 10(b) rights were not infringed. The request that the appellant blow across Sgt. Allison’s face was for the purpose of determining whether there were grounds to reasonably suspect the appellant had consumed alcohol. The appellant was not detained until Sgt. Allison formed a reasonable suspicion and made the ASD demand. There was no evidence to show that the appellant was psychologically detained before this point.
[36] Even if the request for the appellant to blow across Sgt. Allison’s face and the subsequent question asked were a detention, there was a permissible brief suspension of the appellant’s s. 10(b) rights: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Thomsen, [1988] 1 S.C.R. 640. The court in Orbanski held that such a suspension is a necessary implication of s. 254(2). The breath demand was minimally intrusive and for the specific and valid purpose of assessing whether the appellant had alcohol in his body while operating the canoe and the request was grounded in the reasonable suspicion Sgt. Allison had formed.
[37] The trial judge rejected the defence’s argument that Orbanski could not apply because the present case did not involve a roadside detention. A demand could not have been made at the waterfront because the appellant required medical treatment and the police were still investigating what had happened. It is not uncommon for screening measures which precede the demand to be conducted at a hospital.
Criminal negligence
[38] The trial judge found that the appellant was aware of the conditions on the water and would have known that retrieving the blue barrel was “an extremely risky endeavour”. The appellant insisted on going on the river and declined offers to take a lifejacket. The appellant had been drinking and smoked marijuana before setting out and had a blood alcohol content above the legal limit. This impaired his intellectual faculties. He was an experienced canoeist who would have known the safety equipment he was required to bring in the canoe; he did not do so. The fact that he removed his phone and keys before going on the river indicated an awareness that there was a risk of the canoe capsizing or flipping and a recognition of a reasonably foreseeable risk of danger that could result in non-trivial injuries or death.
[39] Based on these facts, the trial judge found that “a reasonable prudent person would have been aware of the obvious risks of the canoe capsizing or tipping with the result of a non-trivial injury occurring.” Potential non-trivial injuries were hypothermia, drowning, or serious injury or death if swept over the waterfall. The decision to take an eight-year-old boy, who was an inexperienced canoeist and swimmer solely to retrieve the blue barrel was a marked and substantial departure from the conduct of a reasonable prudent person in the circumstances and demonstrated a wanton and reckless disregard for the child’s life and safety.
The sentence
[40] The trial judge imposed a sentence of six years’ incarceration with ancillary orders. The convictions for operating a canoe over 80 causing death and dangerous operation of a canoe causing death were stayed under the Kienapple principle; therefore, the sentence was imposed only for criminal negligence causing death and impaired operation of a vessel causing death.
ISSUES ON APPEAL
1. Is a canoe a “vessel” under the Criminal Code?
2. Did the delay in advising the appellant of his right to counsel breach his 10(b) rights under the Charter? If there was a s. 10(b) violation, does the s. 1 justification advanced by the respondent save the breach of the right to counsel on the facts of this case?
3. Did the trial judge err in convicting the appellant of criminal negligence causing death without expert evidence about the standard of a reasonably prudent canoeist?
4. Did the trial judge err in sentencing the appellant to six years’ imprisonment?
ANALYSIS
I. Is a canoe a “vessel” under the Criminal Code?
[41] The appellant submits that there are several reasons why a canoe is not a vessel:
1. According to dictionary definitions the classification of a vessel is based on size;
2. The categories of transportation for which criminal liability exists share the common feature of being licensed, modern modes of transportation, whose impaired, negligent, or dangerous operation can have catastrophic consequences;
3. The scheme and object of former driving offence provisions are aimed at regulating licensed modes of transportation and operating a canoe does not require a licence;
4. The logic of regulation breaks down with canoes, as multiple people can control its speed and direction; and
5. A canoe is muscle powered and thus more analogous to a bicycle.
[42] These submissions do not survive a consideration of the principles of statutory interpretation and ignore the indicia of legislative intent.
Statutory interpretation
[43] The words of an Act are to be interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intention of Parliament. Section 12 of the Interpretation Act further provides that every enactment is deemed remedial and “shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. Statutory interpretation requires attention to text, context, and purpose.
[44] With respect to textual analysis, dictionaries can be a useful tool in statutory interpretation, but where – as here – a word might have narrower and broader meanings, a dictionary cannot resolve which meaning was intended by Parliament: Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed. (Markham: LexisNexis, 2022, at § 3.03.) While some dictionary definitions of “vessel” refer to size, others include any watercraft capable of transportation on water, and still others just say boat. For example, Merriam-Webster defines canoe as “a light narrow boat” and boat is “a small vessel for travel on water”.
[45] In determining whether Parliament intended a broader meaning of vessel that includes canoe, it is significant that the French version of s. 254(2) in effect uses the word for boat - “bateau”:
L’agent de la paix qui a des motifs raisonnables de soupçonner qu’une personne a dans son organisme de l’alcool ou de la drogue et que, dans les trois heures précédentes, elle a conduit un véhicule véhicule à moteur, bateau, aéronef ou matériel ferroviaire ... [Emphasis added.]
[46] It is uncontroversial that vessel and boat are synonymous in the context of s. 254(2). It is similarly uncontroversial that boat, in its ordinary meaning, carries no particular connotation of size, and that a canoe is a boat.
[47] The text of s. 254(2) thus suggests that canoe comes within the intended meaning of vessel. An analysis of the purpose or object of the enactment confirms this reading. The object of the enactment is to protect the public from the consequences of impaired operation of conveyances on the water. The scheme and object of the Act is clearly to address the public safety issue of impaired conveyances on the road and on the water. Impairment creates risks to passengers of a canoe, other watercraft, swimmers and first responders. Unlicensed conveyances, non-muscular-powered vessels and sailboats pose a risk of injury and death just as licensed and motor-powered conveyances do. The risks are not restricted to vessels that are required to be licensed.
Further indicia of legislative intent
[48] The appellant’s submissions ignore significant indicia of legislative intent in the legislative context.
[49] The word “vessel” is used several times in the legislation. There is no qualifier as there is where “vehicle” is qualified by “motor” (see e.g., ss. 253(1), 249(1) and 254(2)). Had the legislature sought to limit liability to exclude muscle-powered vessels or non-licensed conveyances, it would have done so. The legislation is remedial and is to be interpreted broadly.
[50] With respect to dangerous operation, the legislature included “water skis, surf-board, water sled or other towed object” in s. 249(1). Clearly, they are not motorized or licensed conveyances.
[51] There is no ambiguity left after considering these components. I conclude that a canoe is a vessel within the meaning of s. 254(2).
II. Did the police breach s. 10(b)?
[52] The appellant submits that the police breached his right to counsel by delaying informing him of his right to counsel until after his arrest.
[53] Section 254(2) empowers an officer to demand a breath sample for analysis using an ASD. A “fail” on the ASD provides grounds to demand breath samples for analysis by means of an “approved instrument” (e.g., Intoxilyzer) under s. 254(3). The courts have long held that the right to counsel is suspended during compliance with the screening demand: see Thomsen; R. v. Seo (1986), 54 O.R. (2d) 293 (C.A.).
[54] The appellant does not challenge the constitutionality of s. 254(2). He submits that – in relation to his circumstances – it violated his s. 10(b) rights to counsel. He asks that the section be “read down” to apply only at the roadside or on the water, not in a hospital. Once the appellant was in the hospital, there was no longer an urgency to obtain the sample. He submits that the “forthwith” requirement is not necessary under these circumstances because the rationale for relieving the police from their s. 10(b) obligations is limited to roadside or waterfront demands. The appellant submits that he should have been advised of his right to counsel before the ASD test. In other words, the forthwith requirement would not apply in the hospital, and therefore the right to counsel was not suspended.
[55] A review of the jurisprudence and the legislation show why I conclude that the appellant’s right to counsel was suspended in the hospital.
[56] The relationship between the forthwith requirement and the right to counsel has been considered on several occasions. In Thomsen, the Supreme Court followed the decision of this court in Seo interpreting the predecessor to s. 254(2) as containing an implied exemption temporarily relieving the police from their s. 10(b) obligations. The court based the s. 1 justification for this limit on the right to counsel on the heightened public interest in detecting and deterring impaired driving and the practical impediments to implementing the right to counsel during what were intended to be brief roadside stops. Justice LeDain, at para. 18, adopted Finlayson J.A.’s conclusion in Seo that:
The right to retain counsel is incompatible with the effective use of this device on a random basis with the purpose of demonstrating a police presence so as to convince the driving public that there is a high probability of detection in the event that they drive after drinking.
[57] The appellant relies on Orbanski where the court spoke of the “highly regulated nature of driving on public roads” as a factor justifying the limit on the right to counsel. The appellant submits that when the person is in the hospital, there is no practical reason to suspend the right to counsel.
[58] Orbanski does not assist the appellant. It was based on different legislation which would have prevented a demand at the hospital at all. The legislation on which Orbanski was based required that when a police officer reasonably suspects that a person who is operating a motor vehicle has alcohol in their body, the person must comply with the demand forthwith
[59] Section 254(2) was amended after the Orbanski decision was released. The amended version, in force when these offences were committed, changed the wording from “is operating” to “within the preceding three hours”. The amendments permitted police to make the demand within three hours of the suspected offence and to investigate suspects wherever they found them. In the appellant’s case, this was at the hospital.
[60] In R. v. Macmillan, 2013 ONCA 109, 114 O.R. (3d) 506, Rosenberg J.A. addressed this change in legislation, at paras. 25-26:
[25] Under the predecessor provision, there was a relatively strict temporal limit because of the opening words of the provision: “Where a peace officer reasonably suspects that a person who is operating a motor vehicle... or who has the care or control of a motor vehicle, ... whether it is in motion or not, has alcohol in the person's body...” It would be absurd to interpret the provision so narrowly as to require that the officer made the demand while the motorist was still actually driving the vehicle; nevertheless, there was little leeway. The demand had to be made “as soon as is reasonably possible, that is, allowing only such delay as is reasonably necessary to enable the police officer to carry out his duties”.
[26] This strict temporal requirement is no longer found in the legislation... As a result, the temporal requirement that flowed from the “is driving” and “has the care of control” language no longer applies. [Citations omitted.]
[61] The legislation now reads:
254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel the peace officer may, by demand, require the person ...
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [Emphasis added.]
[62] The officer must have reasonable grounds to suspect that the person “has alcohol” in their body when the officer makes the demand and that the person “was operating the vessel within the preceding three hours”.
[63] The other temporal requirement in s. 254(2) is the timing of the demand. In R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, this court considered the effect of delay in fulfilling the forthwith requirement on the right of counsel. The court set out the factors to be considered, at paras. 45-49:
1. The context;
2. The immediacy requirement which commences at the stage of reasonable suspicion and must take into account all the circumstances;
3. The time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample. This must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2); and
4. Consideration of whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample.
[64] Justice Rosenberg in Macmillan referred to Quansah at para. 35:
In my view, greater flexibility in the forthwith requirement can be tolerated where the suspect has not been detained between the time the officer forms the grounds and when the officer makes the demand. After all, the primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel.
[65] Here, the officer formed the suspicion less than a minute after 6:50 pm. The demand was made immediately for a sample. The sample was provided at 6:57 pm and he was arrested at 6:59 pm. There was no lengthy detention.
[66] The appellant submits that, because duty counsel was in fact reached quickly, there was no need for the suspension of the appellant’s s. 10(b) rights. However, the officer testified that there is usually a delay in reaching counsel. The fact that duty counsel was reached quickly did not undermine his belief at the time – and accepted by the trial judge – that he was in a position to require the person to provide the sample before there was any realistic opportunity to consult counsel. In R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571, this court said, at para. 9:
In R. v. Latour, supra, this court held that in deciding whether, in any particular case, there was a realistic opportunity to consult with counsel, all the circumstances must be considered, including the time which in fact elapsed between the demand and the taking of the breath sample. In so concluding, at p. 287 Charron J.A. rejected the proposition that “unless the peace officer reasonably believes that he or she can make the demand good’ at the time it is made, the demand is not valid even if the sample is, in actual fact, received into an approved screening device a few moments later.” Rather, as she explained at p. 288:
If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.
[67] The trial judge specifically referred to the Quansah factors and concluded that the delay in providing the right to counsel was no more than reasonably necessary to enable the officer to discharge his duty under s. 254(2). The delay was short, and the officer was in a position to make the demand. There was no s. 10(b) breach.
[68] Since I have concluded that there was no breach, there is no need to address the justification of s. 1, or the exclusion of evidence under s. 24(2).
[69] I therefore move to the next issue, the criminal negligence conviction.
III. Was expert evidence required to convict the appellant of criminal negligence?
[70] The appellant was charged as follows:
That David Sillars of Etobicoke Ontario, on or about the 7th day of April 2017, at the Muskoka River, Town of Bracebridge, Ontario, did by criminal negligence to wit operate a vessel on a river near a hydroelectric dam and waterfalls cause the death of Thomas Rancourt, Contrary to Section 220(b) of the Criminal Code of Canada.
[71] 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] 3 S.C.R. 215, at paras. 7-10; R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 61. 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.
[72] The appellant submits that the trial judge erred in finding him guilty without expert evidence to establish the conduct of a reasonably prudent canoeist.
[73] It is important here to review the facts. The trial judge made extensive findings many of which were not disputed by the appellant. I summarize them as follows:
1. The outside temperature was between three and four degrees Celsius on April 7, 2017.
2. School buses had been cancelled because 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. Most 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’s body was retrieved by police.
5. The temperature of the Muskoka River was frigid and extremely cold. The water temperature was so cold hypothermia was a serious risk within three to four minutes of being in the water.
6. Numerous lakes and rivers emptied into the Muskoka River, above High Falls, where water levels would also be increased.
7. The direction of the water flow in the Muskoka River from the Kapel cottage is towards the waterfall. 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.
8. The current in the river was swift, extremely fast-flowing and strong. 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.
9. The yellow barrier is a warning barrier cautioning boaters to keep away because of the danger created by the water flowing towards High Falls.
10. High Falls itself was much more turbulent, with a significantly increased quantity of water flowing over the rocks that were completely covered in fast-flowing, turbulent waters. As a result of the increased water flow and greater current, the waterfall was significantly more dangerous, creating increased risk.
11. High Falls Dam was overwhelmed by the quantity of water going over.
12. The appellant was cautioned by at least 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 dangerous water conditions.
13. The appellant, 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 with a minimum length of 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” as required by the Small Vessel Regulations, S.O.R./2010-91 under the Canada Shipping Act, 2001, S.C. 2001, c. 26.
14. The appellant was aware that retrieving the barrel was an extremely risky endeavour but went anyway.
15. The appellant knew there was a risk of capsizing. That is why he removed his phone and keys. Capsizing in these conditions was a reasonably foreseeable risk of danger that could result in non-trivial injuries or death.
16. The lifejacket worn by Thomas was too small. He weighed between 75 to 90 pounds and his lifejacket was for a child who weighed 30 to 60 pounds. Thomas also had three layers of clothing on, including a winter coat.
17. The appellant had consumed alcohol. The trial judge accepted the evidence of the toxicologist that his blood alcohol at the time of the test was 128 mg of alcohol in 100 mL of blood and the toxicologist’s read back to the time of operating the canoe as being between 128 to 170 mg of alcohol in 100 ml of blood.
18. The consumption of alcohol impaired the appellant’s intellectual faculties, reaction time, decision making, vigilance and judgment.
19. The appellant had also smoked cannabis before the canoe trip.
20. The decision to engage in such an endeavour with an eight-year-old boy, inexperienced in canoeing and swimming, is a “marked and substantial” departure from the conduct of a reasonably prudent person in the circumstances and it showed a wanton and reckless disregard for the life and safety of Thomas.
21. Thomas looked up to the appellant as a father figure and this relationship with Thomas created a duty of care for the appellant towards Thomas.
[74] In the face of these findings, was expert evidence as to the standard of care required?
[75] Expert evidence is admissible when it is necessary. To be necessary, the subject matter must be such that ordinary people are unlikely to form a correct judgment about it without guidance from an expert. In other words, it is outside the knowledge and experience of the trier of fact: R v. Mohan, [1994] 2 S.C.R. 9, p. 23.
[76] The evidence here could be easily understood by lay people without the opinion of an expert. Both the owner of the cottage and one of the guests testified that it was too dangerous to go out on the water that day. It was obvious to them. It was obvious to the trial judge.
[77] Based on the trial judge’s findings, it is also plain and obvious that any lay person would come to the same conclusion. This court in R. v. Clare, 2013 ONCA 377 dealt with an appellant who had been driving a tractor in a dangerous manner. The court held that, in light of the trial judge’s findings, expert evidence was not necessary to establish the elements of the offence. At para. 10, Strathy J.A. (as he then was) said:
In my view, this was a case in which the risks of the accused’s driving and the means of avoiding them were plain and obvious and did not call for expert evidence.
[78] Here, the trial judge’s findings of fact lead to the inescapable conclusion that the appellant’s actions were a marked and substantial departure from the conduct of a reasonably prudent person and showed a wanton and reckless disregard for the life and safety of Thomas – a child who was owed a duty of care.
Sentence appeal
[79] The trial judge considered the appellant’s sincere expressions of remorse and guilt, the impact on the family, the appellant’s lengthy criminal record (including a previous penitentiary sentence), and the appellant’s role as a father figure to Thomas which put him in a position of trust and authority. The trial judge found that Thomas was entitled to be protected from the very risk and danger the appellant exposed him to. The foreseeability of capsizing was an aggravating circumstance. It was also an aggravating factor that the purpose of the trip was “essentially to retrieve garbage floating in the river”. The appellant’s failure to bring the appropriate safety equipment was a further aggravating circumstance, as was his failure to wear a lifejacket and ensure Thomas’s was the correct size. Moreover, the appellant had consumed alcohol and marijuana before going out on the canoe.
[80] Denunciation and general deterrence were the paramount sentencing principles. The importance of these principles in motor vehicle cases applies equally to vessels, and the fact that the conveyance here was a canoe did not detract from the potential danger posed by impaired operation and criminal negligence in its operation. The trial judge found that the circumstances in this case were very distinguishable from those in the cases put forward by the defence. The seriousness of the offences was high, as was the appellant’s moral blameworthiness.
[81] I see no error of law or an error in principle that has an impact on the sentence. Nor is the sentence demonstrably unfit as set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[82] I would not interfere with the six-year sentence.
CONCLUSION
[83] I would dismiss the appeals as to convictions and sentence.
Released: July 5, 2022 “M.L.B.”
“M.L. Benotto J.A.”
“I agree. B.W. Miller J.A.”
“I agree. Thorburn J.A.”