Dec 6, 2018

Impaired canoeing and bilingualism in statutory interpretation: going beyond R. v. Sillars, 2018 ONCJ 816

R. v. Sillars, 2018 ONCJ 816 (CanLII)

There you have it folks: canoes are vessels (in French, bateaux) under the Criminal Code, and as such it is notably illegal to be drunk-paddling (s. 253 C.C.), to paddle dangerously (s. 249 C.C.), to hit-and-paddle (s. 252 C.C.), or to be impaired with a paddle in hand, i.e., having the care or control of a canoe, even a motionless one, while being impaired (s. 253 C.C.).

Or at least, in English. The argument does not seem to have been raised, though vessels include canoes, whether the crimes we mentioned, which can be committed with vessels, can actually be committed with a canoe. The French versions of some of them make us question the conclusions of this case.

Some vessels cannot be used to commit some infractions that can be committed with a vessel. As an example, this case found that canoes might not be vessels capable to be used to illegally tow "a person on any water skis, surf-board, water sled or other object" [par. 50]. It stands to reason that other infractions similarly need to be deconstructed to determine if a canoe is a vessel that may be used to commit them.

Hit-and-paddle, first. Though maybe unlikely in the real world, such an offence seems to be possible. It requires a person "who has the care, charge or control of [...] vessel [...] that is involved in an accident with (a) another person, (b) a vehicle, vessel or aircraft [though good luck with that last one... Maybe a landed hydroplane?], [...] and with intent to escape civil or criminal liability fails to stop the [...] vessel [...], give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance." Similar language is used in the French version of s. 252 C.C. («ayant la garde, la charge ou le contrôle [...] d’un bateau» and «arrêter son [...] bateau», specifically), and nothing else would lead us to exclude canoes from its application.

But let's now turn to impaired canoeing. The English version of s. 253 C.C. does appear to make it a crime, as it merely requires that the accused "operates a [...] vessel (a) while the person’s ability to operate the [...] vessel [...] is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood." A canoe can be operated. Yet, the French version does not use the translation «opère». Rather, it uses «conduit» in its place, meaning "drives". We would seriously doubt that a canoe can be thought of as being driven, as opposed to a motorised boat. Impaired canoeing would as such not be a criminal offence under 253 C.C.

The same way, it is possible to "ha[ve] the care or control of a [...] vessel [...], whether it is in motion or not, (a) while the person’s ability to operate the [...] vessel [...] is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood." But (a) is translated as «a) lorsque sa capacité de conduire [...] ce bateau [...] est affaiblie par l’effet de l’alcool ou d’une drogue;», again implicitly referring to a drivable vessel only. Your ability to "drive" a canoe cannot be impaired, because there is no way to drive a canoe, and as such no ability to do so to be impaired in the first place. No such specification exists at (b), however, even in French: «b) lorsqu’il a consommé une quantité d’alcool telle que son alcoolémie dépasse quatre-vingts milligrammes d’alcool par cent millilitres de sang.» This would lead us to consider that one can only be charged with having the care of a canoe with over 0.8g/L of blood alcohol content, regardless of their ability to paddle, but not if they have a lower blood alcohol content, even if they are nonetheless impaired to the point of being unable to paddle.

Drunk canoers, maybe other statutory interpretation techniques failed to broadly protect you, as Justice Peter C. West found canoes to be vessels for the purpose of the Criminal Code. But bilingualism just may, on an infraction by infraction basis. We will have to wait for future cases where the argument is developed more fully.

EDIT: This analysis of the potential linguistic problems with canoes as vessels has since been supplanted by the coming into force of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21. Indeed, it defines for the purpose of the new impaired driving infractions, in the new section 320.11 of the C.C., that "operate means [...] (b) in respect of a vessel or aircraft, to navigate it, to assist in its navigation or to have care or control of it; [...]."