Canoeing Under the Influence Is Now Illegal – Lowering the Bar

A man is being investigated for impaired operation of a vessel after creating a scene while drunk in a canoe on Christina Lake last week…. Sgt. Darryl Peppler, Kootenay Boundary Regional Detachment commander, admitted that he had to check the Criminal Code to determine if a canoe was considered a vessel under the law.

Drunk Canoe Man Arrested,” (July 4, 2023).

I feel like I should apologize to Sgt. Peppler (and his Lonely Hearts Club Band, if any), because if he actually had to check the Criminal Code to know this, then I haven’t been doing my job. And, in fact, I haven’t.

I have, of course, previously addressed Canadian law on canoeing under the influence. See Canada May Legalize Drunken Canoeing” (Sept. 29, 2017). At that time, there had been a number of cases in which Canadian canoeists had been charged with “operating” a “vessel” while impaired, even though the legal definition of “vessel” under that law was anything but clear (except that it specifically included hovercraft). Some believed the prosecutions under the ambiguous law were unfair, and a bill was introduced that would have amended the definition of “vessel” to exclude floating things that are “propelled exclusively by means of muscular power.” As I pointed out at the time, this was hardly adequate, but the bill didn’t pass anyway. The law thus remained ambiguous.

Since Canadians have continued to drink, and some of them also canoe, the intersection of these facts and the ambiguous law has continued to be a problem. I have no statistics on how big this problem has been, but it was a major issue in at least one serious case.

In 2017, David Sillars took his girlfriend’s eight-year-old son canoeing on the Muskoka River in Ontario. The river was high and so was Sillars, or at least he had “smoked cannabis” before heading out. He had also been drinking and was well over the limit. Given that he also then decided to paddle around near a significant waterfall with a boy he knew was not a good swimmer, it’s not too surprising that he was convicted of criminal negligence after the boy died. On appeal, he challenged that conviction by arguing that the prosecution should have been required to offer expert testimony to establish the standard of care for “a reasonably prudent canoeist.” Result: affirmed.

But what about the charge of “impaired operation of a vessel”? Impaired? Yes. Operated? Yes. Hovercraft? No. Vessel status therefore unclear.

Here’s the law. In Canada, it is illegal to “operate[ ] a conveyance while the person’s ability to operate it is impaired to any degree by alcohol [and/or] a drug….” Crim. Code § 320.14(1). “Conveyance” means “a motor vehicle, a vessel, an aircraft[,] or railway equipment. (moyen de transport).” Id. § 320.11. Well, a canoe doesn’t have a motor (or at least this one didn’t), and it doesn’t fly or run on rails (or at least it isn’t designed to). Hence the question whether a canoe is a “vessel.”

Sillars said no, because: (1) “vessels” are big, but canoes are small; (2) the other things in the list are all “modern modes of transportation” that you must be licensed to use, but canoes aren’t—they’re more like bicycles; and (3) “[t]he logic of regulation breaks down with canoes, as multiple people can control its [sic] speed and direction.” I don’t know about that last one, but the other two are pretty standard arguments: the first typically relies on dictionary definitions and the second (which has a Latin name I don’t want to look up) argues that words in a list should usually be construed similarly.

But last year, Ontario’s highest court rejected these arguments. See R. v. Sillars, 2022 ONCA 510 (July 5, 2022); see also Appeal dismissed in precedent-setting deadly impaired operation of a canoe case,Global News (July 5, 2022). (Note: If you have any spare hyphens lying around, please consider sending some to our Canadian friends, who seem to have run dangerously low.)

One problem with arguments based on dictionary definitions is that there are lots of dictionaries out there, and they don’t all agree. Sillars cited one that suggested “vessels” have to be big, but the court found others that don’t. For example, it pointed out, Merriam-Webster defines “canoe” as “a light narrow boat” and defines “boat” as “a small vessel for travel on water.”

The second argument also had problems, among them the evidence that back in 2017, Parliament had specifically considered amending the statute to exclude muscle-powered vehicles, but didn’t. Other relevant statutes also suggested that Parliament didn’t intend to limit impaired-operation liability in that way.

Interestingly, one of those statutes was in French. Specifically, the French version of the statute that authorizes testing for alcohol or drug use contains a similar list of “conveyances” (véhicule à moteur, bateau, aéronef ou matériel farroviaire), but it uses the French word for “boat” (bateau), not “vessel” (navire). It makes sense, I suppose, to conclude that Parliament wouldn’t have intended to impose different rules on English- and French-speaking canoeists. (Note: Google Translate is suggesting that navire can be translated as either “vessel” or “boat,” but I will defer to the presumably bilingual judges on this one.)

I doubt that victory on the canoe charge would have reduced the defendant’s six-year sentence much, but he did not prevail. It also seems unlikely that the Supreme Court of Canada will take this case, though you never know. But for now, Canadians should be on notice that this issue has been resolved.

At least with regard to canoes. What the result would be in an inflatable-raft case, for example, I think remains to be seen. Cf. Alaska Man Charged With Floating Under the Influence” (Aug. 2, 2012) (arguing that floating downriver on a raft is not “navigating a vessel”).

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