Offences in a Marine Context
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The database contains 26 case summaries relating to Offences in a Marine Context. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
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Interjurisdictional immunity - Paramountcy - Provincial
R. v. Great Lakes Stevedoring Company Ltd., 2019 ONCJ 895
Précis: The Ontario Court of Justice refused to stay environmental charges against a stevedoring company on the grounds of federal paramountcy and interjurisdictional immunity.
Facts: The Applicants (Great Lakes Stevedoring Company Ltd. (“Great Lakes”) and its former vice-president, Quebec Stevedoring Company Ltd. and its founder and chairman, and Snider Marine Terminals Inc. (“Snider”) and its president) were charged with discharging a contaniment into the natural environment in violation of 14(1) of the Ontario Environmental Protection Act (the “Act”) and failing to report that discharge contrary to s. 92(1)(a) of the Act. The charges stemmed from a discharge of cement clinker which fell and was discharged on some neighboring properties near the Port Weller Marine Terminal (the “Terminal”). Great Lakes and Snider marine Terminals Inc. (“Snider”) both own a 50% stake in the Terminal, which is located along the St. Lawrence Seaway and on federal Crown land. Snider leases the lands from the Crown’s agent, St. Lawrence Seaway Management Corporation, and pays the rent to the agent. Great Lakes was contracted for stevedoring services to move the cement clinker through the Terminal. The Applicants argued that those sections of the Act do not apply on the basis of “interjurisdictional immunity” and “federal paramountcy”, as stevedoring activities on federally owned property come within the exclusive core of federal jurisdiction and application of the provisions would frustrate the purpose of the Canada Marine Act and Seaway Property Regulations.
Held: Application dismissed.
Decision: The Court outlined the principle of interjurisdictional immunity and reiterated that the doctrine protects the core of each head of legislative power in ss. 91 and 92 of the Constitution Act. In doing so, the Court rejected the Applicant’s argument that provincial authourities directed significant operational changes that ultimately undermined stevedoring activity, holding that the sections of the Act do not intrude on any matter that is indispensable for the loading and unloading of cargo from ships or removal of cargo from a port. All that is required is that the applicants load and unload cargo in a manner that does not discharge contaminants into the natural environment and report such discharges if they occur. On the federal paramountcy challenge, the Court noted that the Canada Marine Act’s preamble declares its purpose is to, among other things, provide for the commercialization of the St. Lawrence Seaway and also calls for a balance between economic objectives and other interests, including environmental concerns. The Court also noted that the Seaway Property Regulations charges the manager of the Terminal, as agent of the federal Crown, to harmonize those competing interests and that any activity produces prohibited results then the federal manager has jurisdiction to bar the activity or subject It to conditions to mitigate the results. As such there was no inconsistency with the Seaway Property Regulations as the permission of an activity by federal authourities does not mean the applicants were excused from compliance with valid provincial legislation.
Trespass - Nuisance - Logging
Her Majesty the Queen v. B & B Barges Ltd., 2019 BCSC 2160
Précis: The BC Supreme Court granted a mandatory injunction and ordered two barges be removed from crown land.
Facts: the Provincial Crown sought a mandatory injunction against the defendant owner of two barges situated on crown foreshore at Donkey Cove near Bella Bella. It was agreed that the barges were on Crown land and were a trespass and nuisance. The barges were used in 2016/2017 and in 2018 taken to be stored by the third party at Donkey Cove, however that third party did not hold a licence of occupation from the Crown and the presence of the barges at that location was illegal. The barges were also resting on beds of manila clam and eelgrass. When the provincial Crown found out about the barges in mid 2018, it issued three trespass notices and ordered the defendants to remove them but the defendants failed to do so. It was argued by the defendants that it lacked the funds required to move the barges and that the Crown could remove the barges at public expense under the provincial Land Act and pursue repayment from the defendants after.
Held: Injunction granted.
Decision: The Court wholly rejected the defendant’s arguments and in doing so noted that the defendant had recently raised over $280,000 for a timber licence for its logging operations. The judge rejected the Land Act argument and found that such measures produced no compliance or correction, and that an injunctive enforcement was a perfectly admissible next step. The test for the interlocutory injunction (under RJR-MacDonald) was met as there was no question to be tried between the parties, the barges were causing irreparable harm to the marine ecosystem including the manila clam and eelgrass, and the balance of convenience favored the Crown as the defendant never had any lawful right to leave the barges in Donkey Cove. Further, the Court found that this remedy would not affect the trial of the issues between the defendant and third party for negligence, breach of contract, breach of bailment, loss of income, loss of use of the barges and cost of their removal.
Handcuffs - Boat - Arrest
R. v. Vansickle, 2019 ONCJ 777
Précis: The Ontario Court of Justice found the accused's Charter rights were violated after being arrested for offences under the Canada Shipping Act.
Summary not yet available.
Spill - Diesel Fuel - Tug - Litres - Fine
R. v. Kirby Offshore Marine Operating LLC, 2019 BCPC 185
Précis: A tug owner pled guilty to three offences and was fined over $2.9 million in relation to the discharge of fuel and lubes from a sunken tug.
Facts: On 13 October 2016 the American flagged pusher tug Nathan E. Stewart ran aground and sank near Bella Bella on the traditional territory of the indigenous Heiltsuk Nation while pushing a barge. The tug was owned by the defendant company, Kirby Offshore Marine Operating LLC. The tug ruptured upon sinking and about 110,000 litres of diesel and 2,200 litres of lubes were released into the ocean. The sinking was caused by the tug operator falling asleep. The defendant pled guilty to three charges, those being an unlawful deposit of diesel fuel contrary to ss. 36(3) and ss. 40(2) of the Fisheries Act, unlawful deposit of diesel fuel contrary to ss. 5.1(1) and s. 13(1)(a) of the Migratory Birds Convention Act, 1994, and unlawful pilotage by proceeding through an area without a licensed pilot or the holder of a pilotage certificate contrary to s. 47 of the Pilotage Act. The Crown and defendant entered a joint submission on sentencing.
Decision: Joint submission on sentencing accepted, fine of $2,905,000.00 imposed.
Held: Sentencing was conducted in accordance with R v. Terroco Industries,  ABCA 141, which outlined five sentencing principles for environmental offences: i. culpability; ii. prior record and past involvement with authorities; iii. acceptance of moral responsibility/remorse; iv. damage/harm, and; v. deterrence. The offences were of a strict liability nature and although the offence was not intentional, the Court found that there was culpable conduct attracting a higher degree of blameworthiness. The offence could have been avoided with the use of technology to alert the operator for situational awareness during navigation, fatigue awareness programs or other preventative systems. The defendant had no past record or involvement with authorities. The guilty pleas reflected the defendant’s acceptance of responsibility and the post offence conduct also established the acceptance of the harm done, such as attempt to mitigate the diesel spill by pumping fuel from the tug to the barge and compensating government agencies for their response to the site as well as compensating the Heiltsuk first nations for their response and assistance in the cleanup. The damage caused by the sinking and resulting fuel and lube spill happened in an environmentally sensitive area on traditional indigenous territory and near Bella Bella, home to some 1,500 people. With regard to deterrence, the Court found that the message to others regarding pollution offences must be clear and unambiguous, as the site of the sinking and spill is part of a waterway used by cruise ships, passenger ferries, pleasure crafts, tugs and other vessels. In this regard the Court found that deterrence must show all others that they have a high duty to maintain a vigilant eye in protecting this sensitive environment and nothing less would suffice. In finding that the joint submission sentence was in line with the sentencing authorities for the three charges pled guilty to, the Court imposed a $2.7 million dollar fine for the Fisheries Act offence, a $200,000.00 fine for the Migratory Birds Convention Act offence, and a fine of $5000.00 for the Pilotage Act offence, with the fines paid to the Environmental Damage Fund which is to be administered for the benefit of the Heiltsuk First nations for the purposes of restoration of the habitat affected by the environmental damage.
vessel — imported — duties — mens rea — evade
R v. Woodward, 2019 BCPC 39
Précis: The B.C. Provincial Court found the accused guilty of a vessel importation offence.
Facts: The accused took delivery of the m/v Angelique (the “Vessel”) in 2007 in Seattle and moored it in Port Angeles thereafter. The Vessel was registered in New Zealand. Between 2007 to 2012 the Vessel was moored in Port Angeles but never moved beyond the port. American customs officials became aware of the Vessel and, in the absence of U.S. registration or a cruising licence, informed the accused on 9 October 2012 he had to leave the United States with the Vessel. The next day, the accused left the United States with the Vessel and headed north for Canada, eventually arriving in Sooke, British Columbia. The accused did not report to Canadian Customs upon arrival into Canada with the Vessel, or any other day thereafter. The accused was charged with two offences under the federal Customs Act, namely the offence of willfully evading the payment of duties (s.153(c)) and having in his possession an imported good in respect of which the provisions of the Customs Act have been contravened (s.155).
Decision: The accused was not guilty of the s.153(c) offence but was found guilty of the s.155 offence.
Held: On the first count, the Court could not come to the conclusion that the accused intended to evade the payment of duties. The accused testified that it was his intention to report the Vessel to customs, although he never managed to do so. In his testimony, he answered “definitely no” when asked if he was trying to evade, avoid or not pay duties on the Vessel.
On the second count, the Court found that the accused imported the Vessel into Canada on 10 October 2012, and did so by examining the definition of “import” under the Customs Act. The Court held that the accused had a duty to report the import of the Vessel and failed to do so in contravention of the Customs Act. Lastly, the Court found that the accused was at all times in possession of the Vessel, having practical control over it and having the Vessel moored up on his property.
Directed Verdict of Acquittal - Undertaking - Summary Conviction - Accept Service
R. v. M/V The Marathassa, 2019 BCSC 386
Précis: The B.C. Supreme Court held that a second notice of appeal could be served on counsel for the defendant ship as personal service on the defendant ship was not realistically available to the Crown.
Facts: The Crown made an ex-parte application in B.C. Supreme Court to effect service of a notice of appeal of the lower Court’s decision to acquit the m/v Marathassa of all summary conviction charges in relation to a discharge of oil in Canadian waters in 2015. The Crown also sought an order to extend the time for service of the notice. As the vessel was not in Canadian waters at the time when Crown sought to serve the notice, personal service could not be effected as required by the Criminal Code rule governing summary conviction appeals. The B.C. Supreme Court Criminal Rules did allow for the Court to order for service on the defendant in the manner that the Court directs.
Decision: Orders granted.
Held Under the B.C. Supreme Court Criminal Rules, if personal service of a notice of appeal cannot be perfected then an ex-parte application can be made to a judge of the appeal court for an order to serve the defendant in a manner that the appeal court directs. In finding that the ship attorned to the lower Court’s jurisdiction and was represented by the solicitor, who had also accepted service of an earlier notice of appeal relating to a directed verdict of acquittal, the alternative to personal service was justified as personal service could not be achieved through no fault of the Crown. Despite an undertaking by the vessel’s solicitor to accept the originating summons in respect of the charges tried in the lower Court and to pay after final appeal the administrative monetary penalties, the B.C. Supreme Court held that an appeal from a summary conviction was not a new originating process but rather an extension of the trial process. In granting the order extending time to serve, the Court found that the Crown acted diligently in filing the notice of appeal, that the delay in service arose since the vessel was outside of the jurisdiction, the delay had been minimal, and the extension of time to serve would not prejudice the vessel as service of the notice of appeal in relation to the directed verdict of acquittal was already known and would not catch the vessel “by surprise”.
Vessel - Canoe - Impairment - Dangerous Operation Causing Death - Criminal Code
R v. Sillars, 2018 ONCJ 816
Précis: The Ontario Court of Justice held that the definition of "vessel" when used in ss. 253(1)(a), 253(1)(b) and 249(1)(b) of the Criminal Code is inclusive of a canoe.
Facts: This was a ruling on whether a canoe is included in the definition of “vessel” when used in sections 214 to 320.1 of the Criminal Code. The accused was charged with impaired operation of a vessel causing death, operating a vessel with over 80 mg of alcohol in 100 mg of blood, dangerous operation of a vessel and criminal negligence causing death. Crown and defence took different positions on whether canoe was within the definition of “vessel” for criminal offences. The Code defines vessel in s. 214 as “a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine”. Both counsel were in agreement -- and advised the Court -- that this was the first occasion in which the definition of “vessel” was to be litigated and decided. The Crown submitted that s.4(4) of the Code and s. 15(2)(b) of the Interpretation Act should be considered first to determine a word not defined in the Code, citing other Federal statutes in which “vessel” was defined which included the Canada Shipping Act, Navigation Protection Act, and the Public Harbours Port Facilities Act. Defence argued that since those other statutes were unrelated to criminal law, the definition of “vessel” should not be imported into the Code.
Decision: The Court found that the term “vessel” in s.253(1)(a), s. 251(b) and s.249(1)(b) of the Criminal Code includes a canoe.
Held: In reliance on s. 4(4) of the Code, the Court looked to other Federal statutes where the subject-matter was the same as that in the Code. In finding the subject-matter common to those statutes is the definition of “vessels” however propelled, the Court decided that a canoe fell within the term “vessel”. The Court agreed with Crown that the Code does not require other federal statutes to be related to criminal law to help define a term. The Court looked to the Hansard from 1961 which revealed that Parliament adopted offences from the Small Vessel Regulations and imported them into the Code, relying on the definition of “vessel” under the regulations, which included a canoe. A cross-jurisdictional analysis undertaken by the Court noted that the U.S. federal offence of “boating under the influence” pertained to all boats, ranging from canoes to the largest ships. The Court expressly rejected the defendant’s proposition that a person who is legally impaired and operating a vessel propelled by muscular power should not be punished for their conduct since it lacks the moral culpability to justify a criminal sanction.
Disturb a Marine Mammal - Whales - Tour Boats - Actus Reus - Judicial Consideration of Unreasonable Delay
R v. Reddick, 2018 CanLII 111732
Précis: The Provincial Court of Newfoundland and Labrador acquitted the accused when the Crown failed to prove beyond a reasonable doubt the alleged offence under the Marine Mammal Regulations.
Facts: On 5 August 2014 the accused was alleged to have unlawfully disturbed a marine mammal contrary to s. 7 of the Marine Mammal Regulations in waters off the coast of Newfoundland and Labrador. At the time of the offence the accused was the captain of the "Cetacean Quest", a tour boat. A second boat, a speed boat, was also interacting with the whale. Another boat, a zodiac owned by the DFO and carrying DFO and CBC employees (who were recording), was also in the vicinity and allegedly witnessed the tour boat disturb the whale. The Crown called six witnesses and the trial lasted for 15 days.
Decision: The evidence led in the case failed to prove the actus reus of the offence beyond a reasonable doubt.
Held: The judge was unable to determine how close the tour boat came to the whale from the CBC video, filmed from the DFO vessel. Expert evidence on the whale's behaviour was incapable of proving beyond a reasonable doubt the accused's guilt, and the judge rejected the argument that the whale was interfered with because the tour boat was in close proximity to it. The judge also held that the presence of the speed boat raised reasonable doubt as to whether the whale disturbance was caused by the tour boat or the speed boat. After a review of the case law, the judge held that the accused's behaviour did not disturb or tended to disturb the whale to the level needed to be convicted of the offence.
Interestingly, the judge raised concern regarding the amount of court time used to complete this trial, bluntly stating that "The unnecessary use of court time causes systemic delays and prevents other accused persons from having their cases heard in a more timely fashion" (para. 33). In light of the decisions in R v. Jordan and R v. Cody, the judge was compelled to point out concerns about the manner in which this trial proceeded, questioning if Crown counsel should have proceeded with the trial after the judge refused to qualify its expert witness, and also pointing out that the Marine Mammal Regulations were being amended in June 2018 to provide clearer direction on what constitutes marine mammal disturbance- amendments released some 10 days before the conclusion of the trial.
Dangerous operation of vessel- Collision - Criminal Code - Evidence
R v. Gettle, 2018 BCSC 1221
Précis: The B.C. Supreme Court found the accused guilty of operating a vessel in a manner dangerous to the public and causing bodily harm.
Summary not yet available.
Criminal Proceedings - Pollution - Investigations - Unreasonable Search and Seizure
R v. MV Marathassa, 2018 BCPC 125
Précis: The court held that the Charter rights of the accused were infringed when Transport Canada inspectors seized evidence without a warrant.
Facts: In April of 2015 oil allegedly spilled from the ship “Marathassa” while at anchor in English Bay, Vancouver. Transport Canada Inspectors boarded the vessel and seized certain documents and evidence. The ship was later charged with various regulatory offences. During the course of the trial the Crown sought to introduce the evidence obtained from the vessel by the Transport Canada Inspectors. The accused applied to exclude the evidence on the basis that it was obtained in breach of the accused’s section 8 Charter rights which provide a right against unreasonable search and seizure.
Decision: The evidence is excluded.
Held:The first issue concerns the reason for the attendance of the Transport Canada inspectors on the “Marathassa”. The parties are agreed that if the inspectors were conducting a compliance inspection under s. 211 of the CSA, the seizures are lawful, however, if they were conducting an enforcement investigation under s. 219 (investigation into a shipping casualty or a contravention of regulation/statute), they were required to obtain a warrant or informed consent. The evidence is overwhelming that Transport Canada was conducting an enforcement investigation from the moment inspectors boarded the “Marathassa”. Therefore, a warrant or informed consent was required.
The second issue is whether there was a breach of the accused’s s. 8 Charter rights. This requires first that the accused establish it had an expectation of privacy. After the expectation of privacy is determined, the enquiry moves on to consider if the search was reasonable. Although the Marathassa was subject to inspections by Transport Canada and would have a diminished expectation of privacy on account of such inspections, it did have an expectation of privacy in relation to much of the conduct of the inspector. In respect of whether the searches were reasonable, there is a presumption that a warrantless search is unreasonable. The Crown has failed to discharge the onus on it of proving the search was reasonable.
The final issue is whether the admission of the evidence would bring the administration of justice into disrepute. This requires consideration of (i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the Charter-protected rights of the accused; and (iii) society’s interest in the adjudication of the case on its merits. In this case there was deliberate and repeated infringements of the accused’s charter rights which amounted to bad faith. The impact of these breaches was not trivial. Finally, considering that the exclusion of the evidence will not “gut” the prosecution's case and that the spill was “very, very small” a reasonable person would conclude that the evidence should be excluded.
Pollution - Offences - Service of Summons on Master - Service of Summons on Counsel
R v. Alassia New Ships Management Inc., 2018 BCPC 5
Précis: The court declared that service of a summons on the ship's Master was valid service on the accused operator of the ship.
Facts: The accused was the corporate manager/operator of the vessel "Marathassa" which was the alleged source of an oil spill in Vancouver Harbour. The accused had been charged with various offences in connection with the oil spill. The accused was served with the summons by serving the Master of another vessel also managed/operated by the corporate accused. That service has been the subject of various proceedings including a petition to quash the summons which was dismissed on 14 August 2017. The accused had not entered an appearance and the Crown now applied for an order for an ex parte trial.
Decision: Order granted.
Held: The Criminal Code permits service on a senior officer of a corporate accused. A senior officer is “a representative who plays an important role in the establishment of an organization’s policies or is responsible for managing an important aspect of the organization’s activities". The Master of a vessel qualifies as a senior officer of the accused within the meaning of the Criminal Code. Additionally, service of the Summons on counsel for the accused was also effective service.
Note: The decision of the British Columbia Supreme Court rendered on 14 August 2017 and relied upon in the above decision was later overturned by the British Columbia Court of Appeal (2018 BCCA 92). The reasons of the court of Appeal effectively invalidated the service of the Summons. Thus, this decision is effectively overruled and no longer good law.
Pollution - Offences - Service of Summons on Ship Manager - Certiorari - Prohibition
Alassia Newships Management Inc. v. British Columbia, 2017 BCSC 2181 2018 BCCA 92
Précis: The British Columbia Supreme Court dismissed an application for certiorari and prohibition relating to an order of a Justice of the Peace validating service of a summons against a ship manager by serving a Master of a managed ship. On appeal, the Court of Appeal held the ship manager had not been properly served and the Provincial Court was without jurisdiction.
Facts: In April of 2015 oil allegedly spilled from the ship “Marathassa” while at anchor in English Bay, Vancouver. An Information was subsequently sworn laying charges under various statutes against the “Marathassa” and against the applicant, her manager. A summons to appear was served on the applicant by personal service on the Master of the “Afroessa”, another ship managed by the applicant. At a hearing before the Justice of the Peace, the Crown advised the Court that the applicant had been served with the summons. The presiding Justice of the Peace confirmed the service and adjourned the matter to a future date. The applicant did not formally appear at that hearing to contest the service as such an appearance would have been an attornment to the Court’s jurisdiction. Subsequent to the hearing, the applicant applied to the Supreme Court of British Columbia for an order of certiorari quashing the order of the Justice of the Peace and for an order of prohibition prohibiting the Provincial Court from proceeding with the charges against the applicant until it had been properly served.
At first instance, the application was dismissed. The motions Judge held that certiorari and prohibition were available if the Justice of Peace had exceeded her jurisdiction but she had not done so by determining whether the service was valid. The ship manager appealed.
Decision: Appeal allowed.
Held: Section 703.2 of the Criminal Code, RSC 1985, c. C-46 permits service on an organization by serving “the manager, secretary or other senior officer of the organization or one of its branches”. The Master that was purportedly served was not a manager or secretary of the appellant and was not a “senior officer” since he did not play an important role in the establishment of its policies and was not responsible for managing an important aspect of its activities. The appellant was therefore not properly served under s. 703.2 of the Criminal Code. However, the Crown contends that service was nevertheless proper since the existence of the Summons came to the notice of the appellant. This is not correct. There is a distinction between notice in fact and notice in law. The notice given must be that which is authorized by law meaning service of a summons must be effected pursuant to s. 703.2. Accordingly, because the appellant was not properly served, the Justice of the Peace exceeded her jurisdiction. The Provincial Court is prohibited from proceeding with the prosecution until the appellant is properly served.
Collisions - Offences - Criminal Negligence
R v. Reinbrecht, 2015 BCSC 1960
Précis: The accused was found guilty of criminal negligence
The accused was charged with criminal negligence causing death and criminal negligence causing bodily harm. The charges arose out of a collision between the accused’s vessel and a houseboat on Shuswap Lake at 11:15 p.m. on 3 July 2010. As a result of the collision one person was fatally injured and several others were injured.
Decision: The accused is guilty on both counts.
Held: The evidence establishes that the defendant consumed some beer in the afternoon and during the evening of 3 July 2010 and smoked marijuana. However, no conclusions can be drawn as to the amount the accused consumed and it cannot be said his ability to operate his vessel was impaired by alcohol or marijuana. The evidence does establish that shortly before 11:00 p.m. the accused took two others out on a “joy ride” which involved high rates of speed, “donuts” and “zig zag” manoeuvres in close proximity to other boaters and boats moored near the shore. At the time of the collision the accused’s boat was proceeding at a speed of approximately 30 miles per hour and had just performed a “U” turn. Within seconds of the last “U” turn the boat collided with the starboard quarter of the houseboat. At the time the accused was sitting in the boat and had not seen the houseboat. The houseboat was proceeding at a speed slower than 8 miles per hour and had been following a consistent path of travel. The houseboat had its port and starboard lights and its stern light illuminated but not its mast light. It also had some interior lights on. The operator of the houseboat was impaired by alcohol and marijuana at the time of the collision. Considering all the evidence, the accused was operating his vessel in a manner that demonstrated wanton or reckless disregard for the lives or safety of other persons and constitutes a pattern of wanton or reckless behaviour that amounts to a marked and substantial departure from the standard of care of a reasonably prudent vessel operator in the circumstances. The accused “ought to have foreseen in the circumstances the obvious and serious risk of collision with any number of navigation hazards, lit and unlit, stationary and moving, that close to shore and the consequences to others as a result. Striking other vessels, even dimly lit ones, was well within the reasonably foreseeable risk of engaging in that kind of conduct in those circumstances. The risks were so obvious and serious that [the accused] either recognized them and ran them, or gave no thought to them at all.”
Offences - Criminal Negligence – Elements of Offence - Charter of Rights – Appeals – Raising New Issue on Appeal
R v. Lilgert, 2014 BCCA 493
Précis: The British Columbia Court of Appeal upheld the conviction of the Fourth Officer of the “Queen of the North” on two counts of criminal negligence causing death and leave to appeal to the Supreme Court of Canada was denied.
Facts: The accused was the fourth officer of the passenger ferry, “Queen of the North”, and the officer on watch and in command of the bridge when the “Queen of the North” struck Gil Island and sank on 22 March 2006. At the time there were 101 passengers and crew on board the ferry. Two individuals lost their lives. The accused was charged and convicted by a jury of two counts of criminal negligence causing death and was sentenced to a prison term of four years. (The sentencing decision is reported at 2013 BCSC 1329.) The accused appealed the conviction on four grounds, namely:
(1) the sections of the Criminal Code pertaining to criminal negligence causing death were contrary to the Charter of Rights (an issue not raised at trial);
(2) the trial Judge failed to properly instruct the jury with respect to the legal duty of the accused and the standard of care;
(3) the trial Judge failed to properly instruct the jury with respect to the essential elements of criminal negligence; and,
(4) the trial Judge failed to instruct the jury on the defence of mistake of fact.
Decision: Appeal dismissed.
(1) The accused challenges the sections of the Criminal Code pertaining to criminal negligence causing death arguing these sections are contrary to s. 7 of the Charter of Rights because they are vague, offend the presumption of innocence and permit an accused to be convicted without a finding of mens rea. This issue was not raised at trial and, generally, a new issue cannot be raised on appeal unless all relevant evidence is in the record. A new charter defence may only be raised on appeal in exceptional circumstances. It is only in circumstances where “balancing the interests of justice to all parties leads to the conclusion that an injustice has been done”, that a new ground may be raised on appeal. The test is not met in this case. There is insufficient evidence to raise this issue on appeal and it is not apparent that refusing to hear the charter issue will lead to an injustice. There are numerous precedents where the Supreme Court of Canada has carefully considered the mens rea component of criminal negligence causing death which the accused impugns.
(2) The accused submits the trial Judge erred in her charge to the jury by stating the accused had a duty to “safely” or “properly” navigate the vessel, as opposed to a duty to simply navigate the vessel. Although the accused argued these adjectives implied guilt regardless of fault, they do not. They are mere forms of speech used to describe an obligation to be careful. Moreover, the Crown’s expert stated the duty as being one of “safe navigation”. The accused also argues the trial Judge failed to properly describe the standard of care by suggesting the accused was bound to follow the Collision Regulations. However, there was no real controversy at trial as to the scope of the duties of a professional mariner. The jury was under no doubt that they were to compare the appellant’s conduct against the standard of a reasonably prudent mariner.
(3) The accused argues the trial Judge conflated the mens rea and actus reus elements of the offence of criminal negligence but the Judge correctly made clear to the jury that they must find both elements and left nothing out of the charge. There is no requirement that these elements be satisfied independently from one another. The Judge’s charge closely followed the model instruction prepared by the Canadian Judicial Council. To prove the accused showed a wanton or reckless disregard for the lives or safety of others, the Crown is not required to prove the accused intended to kill or seriously harm. It is sufficient if the Crown proves, beyond a reasonable doubt, that the accused’s conduct showed a marked and substantial departure from the conduct of a reasonable person and that a reasonable person in the same circumstances would have foreseen that this conduct posed a serious risk of bodily harm.
(4) The accused contends that his evidence of what transpired supported a defence of mistake of fact and that this defence ought to have been put to the jury. The evidence of the accused was that the he had given instructions for a course change prior to the collision. However, the evidence of the Crown did not support this testimony. The Judge instructed the jury that if they believed the accused, they should acquit him. The jury must have accepted the Crown’s evidence and rejected the testimony of the accused.
Comment: An application for leave to appeal to the Supreme Court of Canada was dismissed at 2015 CanLII 26235.
Offences – Operating a Vessel in a Careless Manner – Collision Regulations – Narrow Channels - Passing
R v. Cowan, 2014 BCPC 334
Précis: A small vessel operator was found guilty of careless operation of a vessel for transiting a narrow pass on the wrong side and creating a close quarters situation with a large passenger ferry.
Facts: The accused was charged with operating a vessel in a careless manner contrary to s. 1007 of the Small Vessel Regulations passed under the Canada Shipping Act, 2001. The charge arose out of a close quarters situation that developed between the accused’s sailboat and a large ferry in Active Pass. The ferry was transiting the pass westbound from Tsawwassen to Swartz Bay on Vancouver Island. The accused was transiting the pass eastbound but was on the North side of the pass at the pinch point at precisely the time the ferry needed to execute a 90 degree turn.
Decision: The accused is guilty.
Held: This offence is a strict liability offence meaning the prosecution must prove the offence took place and, once it does so, the accused is guilty unless he proves on a balance of probabilities that he exercised due diligence. The act of transiting Active Pass on the North side at the pinch point at precisely the time the ferry was executing a 90 degree turn was operating a vessel in a careless manner. The pass is a narrow channel and the rule is that vessels are to pass port to port. “It is careless, and without reasonable consideration for persons navigating vessels the size of the [ferry], for a person to navigate through Active Pass such that vessels pass starboard to starboard, rather than port to port.” The accused has failed to establish a defence of due diligence. He was aware of the risk of meeting a ferry and, having taken the route he did, he put himself in a position of not being able to see it until the last moment.
Offences - Criminal Negligence - Sentencing
R. v. Lilgert, 2013 BCSC 1329
Précis: The fourth officer of the passenger ferry “Queen of the North”, which struck Gill Island and sank on 22 March 2006, was sentenced to four years imprisonment for criminal negligence causing death.
The accused was the fourth officer of the passenger ferry, “Queen of the North”, and the officer on watch and in command of the bridge when the “Queen of the North” struck Gill Island and sank on 22 March 2006. At the time there were 101 passengers and crew on board the ferry. Two individuals lost their lives. The accused was charged and convicted by a jury of two counts of criminal negligence causing death. Following the conviction, this sentencing hearing was held to determine the appropriate sentence. The Crown sought a sentence of six years imprisonment. The defence argued for a conditional sentence of two years less a day to be served in the community.
Held: The accused was sentenced to four years.
Decision: It is clear the jury rejected the evidence of the accused that he was carrying out his duties to the best of his abilities and found he grossly neglected his duty. He failed to make a required course change and allowed the vessel to travel on autopilot at full cruising speed straight into Gill Island. The vessel was off course for 12 to 14 minutes. Had the navigational aids been used or used properly, they would have shown the vessel was off course. He demonstrated extreme and catastrophic dereliction of duty. He was clearly distracted by personal issues related to his relationship with the Quartermaster, who was the only other person on the bridge with him and with whom he had had an affair. The objectives of sentencing are: denouncing unlawful conduct; general and specific deterrence; separating offenders from society where necessary; rehabilitation; providing reparations for the harm done to victims and the community; and promoting a sense of responsibility in offenders. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender. “This is one of those cases … where rehabilitation and other restorative factors will not take precedence over the factors of denunciation and deterrence in the face of an avoidable, senseless crime.” “This was a case of complete abdication of responsibility.” Although the accused has no criminal record and has expressed remorse, “he has demonstrated a lack of insight in terms of his responsibility”. Due to the high degree of moral blameworthiness on the part of the accused, the focus is on deterrence and denunciation.
Note: An appeal from the conviction was dismissed at 2014 BCCA 493 and is summarized separately on this site.
Offences – Canada Shipping Act Violations
R. v. Ralph, 2011 NLTD 10 2013 NLCA 1
Précis: Convictions for various offences under the Canada Shipping Act against the master of a vessel that rolled over and sank were mostly upheld.
The accused was the skipper of a sixty-five foot vessel that rolled over and sank. At the material time, the skipper was in the galley making a sandwich and no-one was on the bridge of the vessel. The accused was charged with eight offences under the Canada Shipping Act and convicted in Provincial Court of five offences, namely: (1) operating the vessel without certified crew to ensure a proper deck watch; (2) failure to maintain a proper deck watch; (3) failure to keep a proper lookout; (4) failure to ensure the crew understood lifesaving and firefighting equipment; and (5) operating a steamship without a valid certificate. An appeal from the convictions was taken to the provincial Superior Court where all convictions were confirmed except for operating a steamship without a valid certificate. Both the Crown and the accused further appealed to the Newfoundland and Labrador Court of Appeal.
Decision: The accused’s appeal is allowed, in part. The Crown’s appeal is dismissed.
Held: The accused is acquitted of operating the vessel without the properly certified crew on the basis that the Crewing Regulations were misinterpreted by the courts below. The conviction was premised on an interpretation that the regulations required that the Mate have a certificate of at least “fishing master, fourth class”. There is no such requirement. With respect to the charge of failing to maintain a proper lookout, the Crewing Regulations and the Seafarer’s Training, Certification and Watchkeeping Code require that a person be on the bridge at all times. This requirement is not satisfied by monitoring instruments located elsewhere on the vessel. There was no-one on the bridge and the accused is guilty of not maintaining a proper deck watch. Similarly, the requirement in the Collision Regulations to maintain a proper lookout is not satisfied when there is no one on the bridge. With respect to the charge of failing to ensure the crew understood lifesaving and firefighting equipment, the trial Judge found as a fact that the accused made only “passing efforts” in this regard. There is ample evidence to support such findings. With respect to the final charge of operating a steamship without a valid certificate, the accused was initially convicted because he had not complied with a condition of the certificate requiring that the Mate have a 4th class certificate. This was an error. The charge was not that the accused failed to comply with his certificate but that he did not have a certificate. As he had a certificate, he must be acquitted on this charge.
Offences - Dangerous Operation of a Vessel Causing Death
R v. Escott, 2012 BCSC 1922
The accused was charged with dangerous operation of a vessel causing death. The charge arose out of a collision between a vessel being operated by the accused and another vessel. A passenger in the accused’s vessel died as a result. The collision occurred at night in total darkness. The accused’s vessel was displaying no navigation or running lights. The accused’s evidence was that the running lights impeded his night vision and his practice was to turn them off in conditions of reduced visibility. The accused’s vessel was proceeding at a speed of 26 miles per hour and the other vessel was proceeding at 32 miles per hour.
Decision: Accused guilty.
Held: The Crown must prove both the actus reus (the act) and the mens rea (the mental element) of the offence beyond a reasonable doubt. In this case the actus reus is the operation of a vessel in a manner that is dangerous to the public having regard to all the circumstances. The focus is on the risks created by the manner of driving not the consequences. The focus of the mens rea is whether the manner of operation is a “marked departure” from the standard of care of a reasonable person. It is not required to prove the accused deliberately operated the vessel in a dangerous manner. The accused was operating his vessel at an unsafe speed, without navigation lights, in a narrow channel where there was a risk of collision and he did not keep a proper look-out. This is operation of a vessel in a manner dangerous to the public and the actus reus is proved. With respect to the mens rea element, the accused’s manner of operation of the vessel displayed a reckless disregard of extreme risk and in the circumstances, exhibited a marked departure from the norm.
Comment: The accused was later sentenced to two years in prison. The reasons can be found at 2013 BCSC 555.
Offences - Dangerous Operation of a Vessel
R v. Kerr, 2012 BCSC 1311
The accused was charged with dangerous operation of a vessel causing death and two counts of dangerous operation of a vessel causing bodily harm. The charges stem from an incident on 1 August 2008 when a vessel he was driving collided with an island at night. At the time the vessel was proceeding at a rate of speed of approximately 30 miles per hour. The accused admitted that he did not have a complete understanding of navigation lights and buoys and no understanding of the colours of the lights. He merely knew they marked a hazard. The accused also had no navigation charts.
Decision: Accused acquitted.
Held: The Court reviewed the various authorities and noted that the Crown must prove both the actus reus of the offence (ie. whether the driving viewed objectively was dangerous to the public in all of the circumstances) and mens rea (ie. whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances). The Court held that the actus reus had been proven in that operating the vessel at 30 miles per hour at night was dangerous. Turning to the issue of mens rea, the Court said this depended on two questions: (1) whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible; and (2) whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. The court noted that the conduct must go significantly beyond negligence but that the difference between a mere departure and a marked departure is one of degree. In making this assessment the court must look at all the circumstances including the accused’s frame of mind. In this case the accused believed he had clear water ahead of him. Accordingly, although the accused’s conduct went beyond mere negligence and the case was “close to the line”, the Court concluded that there was reasonable doubt as to whether the mens rea had been proven.
Offences – Sentencing Principles
R. v. Atlantic Towing Ltd., 2011 NSPC 10
The defendant was charged under s. 118 of the Canada Shipping Act with having taken actions “that might jeopardize the safety of a vessel or of persons on board”. The charges stemmed from a sinking of one of the defendant‟s vessel in adverse weather. All crew members were saved. At the time of the sinking the vessel did not have a valid inspection certificate and was sailing 20 miles offshore whereas its documents restricted it to 15 miles. The defendant pleaded guilty to the charge but contested sentencing. The Court reviewed the principles of sentencing in safety legislation as being denunciation, deterrence, proportionality (the sentence is to be proportional to the gravity of the offence), parity (the sentence should be similar to that imposed in other cases) and restraint (the sentence should be a measured response). When dealing with corporations the Court noted that regard should be had to the conduct, circumstances and consequences of the offence, the terms and aims of the legislation and the participation, character and attitude of the corporation. In applying these principles, the Court said that a deliberate decision had been made to undertake a voyage in the face of gale warnings and farther from shore than it was supposed to be. Although there was no intention to jeopardize the safety of the crew, the risk assessment was seriously flawed. The fact that the defendant pleaded guilty was a mitigating factor as was the company‟s clean safety record. Ultimately, the Court held a fine of $75,000 was appropriate.