Offences in a Marine Context
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The database contains 14 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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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.
Offences - Fatal Injury - Criminal Negligence - Dangerous Operation of a Vessel
R. v. MacKay, 2008 NSPC 8
The accused was the owner and operator of a pleasure craft that collided with a buoy in Halifax Harbour. A passenger was killed in the collision. With respect to the test for criminal negligence, the Court said “if his operation of the vessel was a marked and substantial departure from the standard of the reasonable operator in circumstances where he should have either recognized, knew of and ran an obvious and serious risk to the lives and safety of others or gave no thought to that risk or was wilfully blind and the consequences were the natural result of the conduct creating the risk, only then could it be said that the accused is at fault for criminal negligence". Although the Court found as a fact that the vessel was proceeding at an unsafe rate of speed, the Court also found that the buoy with which the vessel collided had shifted its position unbeknownst to the accused. The accused was familiar with the area and had a reasonably held belief that it was safe to operate the vessel in the direction he was proceeding. Accordingly, the Court held the accused’s conduct was not such as to support a charge of criminal negligence. However, the Court did find the accused guilty of dangerous operation of a vessel the test for which is whether the conduct of the accused was "a marked departure from the conduct of a reasonable prudent operator in all the circumstances".
Offences - Collision - Breach of Collision Regulations – Offence – Due Diligence
R. v. Bridle, 2008 BCPC 52
This case arose out of a collision at night between two pleasure craft, one of which was at anchor. At the time of the collision the anchored vessel was not displaying the all-round white light required by the Collision Regulations. The accused was the owner/operator of the anchored vessel. The accused said that he only learned the anchor light was not working the night of the collision and attempted but was not able to repair it. He left an interior bathroom light illuminated in place of an anchor light. The Court found that the accused had not used due diligence in that the accused could have returned to a dock rather than stay anchored without a proper light. The accused was convicted.
Offences - Collision - Breach of Collision Regulations - Due Diligence
R. v. Cloutier, 2007 QCCQ 13533
This case arose out of a collision in the St. Lawrence Seaway between a freighter and a sail boat. Two of the four crew of the sailboat died as a result of the collision. The Pilot of the freighter was charged with failing to comply with the Collision Regulations. The Court extensively reviewed the evidence and ultimately dismissed the charges against the Pilot holding that he exercised the degree of diligence expected of a seaman.
Forfeiture - Fisheries Act
R v. Ulybel Enterprises Ltd., 2001 SCC 56
This case concerned the interpretation of the forfeiture provisions of the Fisheries Act. Specifically, the issue was whether, upon conviction for a Fisheriforfeiture of the proceeds of sale of a vessel sold under the jurisdiction of the Federal Court of Canada. The Supreme Court of Canada thoroughly reviewed the forfeiture provisions of the Fisheries Act and concluded that s. 72(1) did authorize the forfeiture.
Crimes - Extradition - Jurisdiction
Romania v. Cheng, 1997 CanLII 9867
This is the decision of the Nova Scotia Supreme Court in the extradition hearing relating to the "Maersk Dubai"; a case involving allegations of murder on the high seas. Seven officers of the Taiwanese registered "Maersk Dubai" were accused of throwing Romanian stowaways overboard while en route to Canada. Canadian authorities arrested the seven officers in Halifax. The State of Romania charged all seven officers and brought proceedings to have them extradited. The issue was whether the Court had jurisdiction to extradite the officers. The Court held that it did not have jurisdiction to extradite because the Extradition Act requires that the offence occur in the jurisdiction of the requesting state. The alleged murders occurred at Sea, not within the jurisdiction of Romania, and the officers were therefore discharged. The Court noted that but for the lack of jurisdiction it would have committed all of the officers.
Seizure - Fishing Licence
Joys v. Canada,  1 FC 149
This unusual case concerned whether a commercial fishing licence could be seized under the provisions of the Customs Act. The facts of the case were that the fishing vessel "Lloyd B. Gore" had been spotted by the U.S. Coast Guard returning from the South China Sea. The vessel was tracked and was ultimately seized with a cargo of marijuana. The vessel and her commercial fishing licence were subsequently declared forfeit. The vessel had a value of $85,000 and the licence had an estimated value of between $300,000 and $400,000. The Court of Appeal held, however, that the licence was not a "conveyance" under the Customs Act and was therefore not subject to forfeiture.