Facts: The accused was charged with two counts of criminal negligence and lesser included offences of dangerous operation of a vessel causing death as a result of a collision between two commercial lobster fishing vessels in the waters offshore Prince Edward Island in June 2018. The accused, master of the Forever Chasin’ Tail, set straight-line course on autopilot for a buoy at the mouth of Murray Harbour. Conditions and visibility were good and the Forever Chasin’ Tail had no mechanical issues. The accused was in the wheelhouse transcribing logbooks and looking up to scan the horizon every thirty seconds or so. The Forever Chasin’ Tail made good on the course for approximately 15-20 minutes when it struck the port side of the Joel ’98, which was in the process of hauling traps. The collision resulted in the sinking of the Joel ’98 and the death of two deckhands onboard.
Decision: Accused not guilty on two counts of criminal negligence; guilty on lesser included.
Held: The Court found beyond a reasonable doubt that the accused was operating the Forever Chasin’ Tail and that death was caused by the accused’s manner of operating the same. The conduct element of criminal negligence was made out. However, the mental element of the offence did not amount to a marked and substantial departure from the standard of a reasonable fishing vessel operator since looking up from the logbooks every thirty seconds or so did not entirely abandon the obligation to maintain situational awareness that the standard of conduct requires. Therefore, the accused could not be charged with criminal negligence. The Court then turned to the lesser included offences and found that the conduct of dangerous operation had been made out for the offence of dangerous operation of a vessel causing death. In respect of the mental element of the offence, the Court held that the accused’s conduct was a marked departure from the standard of conduct based on his transcribing of the logbooks which prevented him from maintaining situational awareness while operating the Forever Chasin’ Tail.