Why impaired boating includes basically everything now

The Big Story
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The differently questions I'm about to ask our silly but the reason I'm asking them will become clear during today's episode so have you ever had a beer while paddling a canoe what about drinking and a Kayak what about cracking a cold one while lounging in your nearest lake on an inflatable mattress for those of US lucky enough to have cottages or cabins and that's kind of a summer weekend ritual and although you know by now or at least you really should you can't operate a motorboat after having a couple. A canoe is different right or at the very least a floating lounger certainly is right. Maybe right now it depends on the cops and the courts the judge a recent conviction that came about after a tragedy has now opened the door for just about anything involving watercraft and alcohol from canoes is to those loungers two pool noodles technically and yes an impaired boating conviction will cost you your driver's license and leave you with a permanent criminal record so yeah was questions not so silly anymore Jordan Keith Rawlings. This is the big story week. One of our Friday cottage in-cabin Specials Ryan Platt is an Ottawa based reporter with the National Post Brian. Hello why don't you start by <hes> just telling me because I hadn't seen it until the ruling came down the story of David Cillers and how all this began so this started in April twenty seventeen it was was originally a police call just about somebody who seemed to be in distress on a freeway ramp in Ontario's cottage country so it's near <unk> brace bridge in the Muskoka region of Ontario and when the police arrived the sky was shivering cold hold and he had no shoes on and he was soaking wet. It was just barely above zero that day and what eventually the police figured out from talking to him was he had been out on a canoe in the river. The canoe had tipped and a boy a young boy eight years old had been <hes> carried away on the river and they were very close to a waterfall and he went over as it turned out he went over the waterfall so the police quickly conducted a search found the young boy who was who was already dead in the water by that point and the police then turn to the question of intoxication breathalysed David Sellers who was thirty seven years old at the time he was over the legal limit and so he was charged with impaired operation of a vessel Russell and this ended up becoming the first case ever to go to court <hes> at least that anybody can find in any court records is the first ever time cases gone to court to test whether a canoe counts as a vessel in our impaired driving laws because doesn't tell this boats have counted on impaired driving laws since the nineteen sixty one but until this point had all been motorized boats powerboats and things like that this was the first time that edit ever been tried on a canoe and so the judge had to rule on whether canoe who counted and he ultimately ruled yes so tell me <hes> how the police have traditionally dealt with incidents like these if this had never been tested in court until now I think it really depends on the police force in the part of the country but in Ontario for whatever reason. Season Ontario police have been more likely this includes both the Ontario provincial police and I believe also the regional police forces in the G._T._A.. The Greater Toronto area so the Peel region police and I think even the Toronto Police have also taken in the stands but especially the Ontario provincial police who patrol cottage country and much of the Great Lakes areas and a lot of waterfronts in Ontario have long taken the stance that because vessel is not defined in the criminal code which the whole issue here. It's just been a unclear term for the decades that it's been in the criminal code. Ontario provincial police have long taken the view that canoes and Kayaks and paddleboats all count as a vessel but prosecute prosecute so then they have laid charges before we know I talked to <hes> -Tario police <hes> marine unit coordinator so in in coordinates a lot of the marine enforcement activities that they do. He said he knows that they charged three people who in twenty eleven but the prosecutors withdrew the charges because they didn't think there was a reasonable chance of conviction in court so basically police have been trying to make this happen for a while but prosecutors felt that they didn't have a very good chance of a conviction court in some ways. I think they he may have been waiting for the right case to come along because if you're looking to set a legal precedent you want what's called a good set of facts and so a case where an eight year old boy died because the person operating the canoe with him <hes> was intoxicated. That's the kind of case I think prosecutors decided this is a serious enough case that we're willing to take it to court so what had to happen. <hes> in the months between when the police investigated and decided to lay the charges and until it came in front of a judge for a ruling what was interesting was there was a parliamentary bill that was being debated kind of alongside this as a criminal case was was playing out in fact so Cillers was charged in April twenty seventeen and it was in April two thousand seventeen at the same time the government introduced an impaired driving bill bill c forty six this hiding of the bill was totally coincidental. It was actually meant to coincide with the introduction of their bill to legalize marijuana so the same time the government legalizing marijuana it wanted to make sure that it was taking public safety very seriously so it introduced an impaired driving bill to go with it but what's interesting is that the bill c forty six contained all kinds of changes to impaired driving laws including to allow police to start checking for marijuana at the side of the road but it also looked to fix up a bunch of areas of the law and one of the areas that it looked to fix up. Was this long-standing issue that there's no definition of what a vessel is so at the same time that you had this precedent setting in case potentially coming forward to court because prosecutors had decided to go forward with charges against Mister Solarz you had parliament with a bill where the Justice Department was proposing. They said they're information was that prosecutors. Don't go forward with this charge in so they were proposing to clarify the definition of vessel to say doesn't count as anything that's powered exclusively by muscle power which is basically to say that if you're just paddling you're not counted impaired driving loss so so you had this bill that was going to clear up this point at the same time that this case had just been started in M._p.'s were ultimately convinced. This was about six months later they there was protests. They heard about this case for one thing. which I do think played a role they also so how protests from safe boating advocates sane? We are are mass GINA's at any. If you're intoxicated you shouldn't go out on the water and so this bills a problem for us. If you're saying paddlers don't count M._p.'s were convinced by that. They took that clause. <unk> out of the bill and so the part that would have cleared up what a vessel council has was taken out of the bill and so the definition remained bag which meant the judge had to rule on it and so what did the judge rule uh specifically the judge it. There's an inch so there there was a separate ruling on this aspect of the case it came out in November twenty eighteen and the judge had to hid invited arguments for both sides from the crown about why canoe should counting are impaired driving laws and from the the defense about why it shouldn't and the judge had to because like it's just has vessels in the criminal code. It doesn't say what a vessel is and so the judge had to look through dictionary definitions through legal definitions from from other countries and the two things though that I think were the most <hes> influential in the judge is thinking was Howard vessels treated in other law laws in Canada so not the criminal code but like marine regulations said <hes> are based on <hes> customs regulations and things like that and also what happened at parliament because parliament the M._p.'s had the chance to remove paddling and chose not to and so based on those two factors the the judge ruled that essentially if you can use it to navigate on a waterway it's a vessel and <hes> so that would mean canoes count and it would also potentially include a lot of other things but particularly uh-huh kayaks and rowboats and things like that so that was a separate ruling and the trial had still not completed then which back came recently exactly so the crux of this is that slurs was charged with basically really two types of offenses the four charges and total but the two types of offenses were impaired driving offenses and then a criminal negligence causing death charge and so if the judge had ruled that canoes don't count the criminal negligence the charge would have gone forward but the other charges couldn't have because they were impaired driving offenses he ended up getting convicted of all four and so when this was being debated in parliament and justice officials were explaining why they were going to paneling out of impaired. We're driving charges. They said our understanding is that prosecutors. Don't use these charges anyway but even so at criminal negligence. Herge is is seems like the appropriate charge to us in a case where somebody is intoxicated about and causes either bodily godly harm or death the thing about an a negligent criminal negligence charge is that it there's a high burden on the crown to prove it. They have to prove that somebody was acting not just carelessly but in a marked departure from how a reasonable person person would act in those circumstances and recklessly endangered somebody's life and so it's not just carelessness. It's criminal action and in this case of course they were I think based on following the case they were easily easily able able to meet that threshold to say that he acted in a criminally negligent way and that's why this eight year old boy died the impaired driving charge though which he was also convicted of it's much easier for prosecutors to get that conviction because it it's the act it's not whether you endanger somebody's life or not it's it's actually simply the act of paddling while you're drunk or stoned that becomes illegal and once they've got the breathalyzer tests and they can show you were indeed paddling or controlling the canoe in any way. You're basically cooked. That is the illegal act right there unless you can find some kind of procedural error which defense lawyers are very good at doing but it is the reason why this is. I think an interesting legal conundrum is because impaired driving laws are extremely serious laws and have gotten it seems like almost every year governments are are increasing the penalties around them but they're meant. They're designed for motorized vehicles. That's why they're so serious because they endanger the public and so now if you have this applied to paddlers. Are we really saying that you are guilty of this very very serious criminal offence just for paddling we'll in there are mandatory minimums. I mean maybe not specifically but acceptable mandatory minimums minimums for any <hes> impaired driving conviction right Yup. It's <hes> so there's a judge's only have a certain amount of discretion under these laws because there are mandatory minimums and and having you know report a lot on the justice system in Ottawa and and <hes> you know legislation that would amend the Criminal Code. I personally don't believe that mandatory minimums unimpaired driving are ever going away. I think that this is one of the mandatory minimums that the government will always keep and and so it's a mandatory minimum fine for if it's just a basic I defense and you're driving of it's at least a thousand dollars. It might even be more than that. That's on a first offense on the second offense you quickly get into mandatory jail time and of course if there's any kind of bodily harm or death involved then jail time is almost given but this is the thing about impaired driving is that you don't even have to hurt anybody. If you get caught doing it. That's the criminal offense and so we now in the situation where even just paddling Adalina canoe or Kayak or almost anything else that you can use on the water you are subject to all these these mandatory minimum sentences and you don't even have to have heard anybody and so given the conviction and given the fluid the definition of vessel. What does this precedent actually opened the door for because I know I know paddlers and you could make a case for canoeing with children or row boating with children and putting people at serious risk of bodily harm but there are all sorts of other other vessels out there that I would have never imagined counting under this law yes and so the first thing that needs to be said here is that this was a decision of Ontario called the Ontario Court of Justice so it's the Lower Court Ontario okay with means it's not it's not a binding finding decision on other courts that doesn't Happen Front for the province of Ontario until it goes to a higher court such as the Ontario Court of Appeal and it wouldn't happen even for it wouldn't be binding on other provinces until the Supreme Court of Canada ruled on it so we may eventually get to that point but at this point a if a case comes to a different judge that judges

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