COVID-19 Announcement
RE: ESSENTIAL SERVICES

To Your Defence Paralegal Services is an essential service, available for business, while operating in accordance with Order issued by the Premier of Ontario, and is practicing and encouraging social distancing measures for the safe health of all persons. Learn More [61] Essential services include professional and social services that support the legal and justice system;
[65] Professional services including lawyers and paralegals, engineers, accountants, translators.
Order of the Premier of Ontario | March 23 2020 8:00PM

 


WaterskiingImagine a scenario where an operator of a watercraft is charged under s.250(1) of the Criminal Code of Canada, R.S.C.  1985, c.  C-46 for operating a watercraft while towing a water-skier without another person onboard acting as the spotter and wherein such a scenario the operator, spotter, and skier are all the same person?  This scenario did actually occur and was the issue of concern in the case of R.  v. Gatt, 1992 CanLII 1105 wherein the Supreme Court of British Columbia found that the law can be interpreted in a manner that makes the operator/spotter/skier both guilty as well as not-guilty at the very same time.  Luckily for the operator/spotter/skier, when a criminal law can be interpreted in a way that creates guilt while a not guilty interpretation also exists, the not-guilty interpretation is the interpretation that is applied.

Per s.250(1) of the Criminal Code of Canada:

Every one who operates a vessel while towing a person on any water skis, surf-board, water sled or other object, when there is not on board such vessel another responsible person keeping watch on the person being towed, is guilty of an offence punishable on summary conviction.

On a strict review of the law as written, the law applies clearly to create guilt.  Quite simply, the operator of the vessel (boat) was operating the vessel without "another responsible person keeping watch".  Very clearly this true and therefore a verdict of guilty should apply.  However, there is also the qualifier of "when there is not on board such vessel another responsible person".  This additional qualifier creates an almost paradoxical 'chicken and egg' type confusion.  How could there be "another" person on board when there is not even any person on board in the first place?   A mathematician might see this scenario as equivalent to the mathematical problem of multiplying any number by zero - the answer is always zero.

While interpreting the law, the British Columbia Supreme Court noted:

It is implicit in the use of the word "another" that it presupposes a person other than the watcher is also on board the vessel and that that person is the operator of the vessel which as already mentioned was the likely intention of Parliament.  Under this interpretation, a person who operates the vessel while not on board and without a watcher, would not be caught by the provisions of s.  250.(1).  However, one could, with some effort, interpret "every one" so as to mean that whenever a person operates the vessel, regardless of whether on board or off the vessel, that there must when towing a water skier be another responsible person on board the vessel keeping watch on the water skier.  This interpretation would of course include a water skier who is operating a Ski-Free and if without a watcher on board would be caught by s.  250(1).  Of the two interpretations the first, while perhaps not preferable from a practical viewpoint, is the more reasonable, not only on the basis of the words and language used in s.  250.(1), but also on considering the apparent purpose of the section.  Its object is to prevent danger or situations of harm to water skiers and others using the waterways by requiring the operators of vessels towing a water skier to watch the navigation before them and another responsible person on board to keep watch of the person being towed.  It makes little sense to require another person to be on board the vessel to keep watch on the operator of the vessel. Regardless, where a reasonable doubt or ambiguity appears in the interpretation of a penal statute with one interpretation leading to innocence and the other to guilt, it must be resolved in favour of the person charged. 

Accordingly, the law works such that operator/spotter/skier is guilty and not-guilty at the same time and is therefore an ambiguity that causes a judicial paradox and brings a not-guilty decision.

For more information, fill out the form below to send a direct inquiry to To Your Defence

ATTENTION: Confidential information regarding your case must not be sent through this website.  This website is not intended as providing legal advice nor intended as a method to establish a legal-representative/client relationship.  Do not include confidential details about your case by email or phone.  Use this website form only to arrange an introduction with a To Your Defence Paralegal Services representative, before taking any steps to discuss the particulars of your legal case.  Legal advice cannot be provided to you via reply email or over the phone.  Your IP Address is: 3.235.24.23
Mailing Address

Post Office Box 99
Britt, Ontario,
P0G 1B0

P: (705) 346-4644
E: info@toyourdefence.com

Meeting Location

1500 Paris Street, Unit 13
Sudbury, Ontario,
P3E 3B8

P: (705) 346-4644
E: info@toyourdefence.com

Hours of Business:

9:00AM – 5:00PM
9:00AM – 5:00PM
9:00AM – 5:00PM
9:00AM – 5:00PM
9:00AM – 5:00PM
Monday:
Tuesday:
Wednesday:
Thursday:
Friday:

By appointment only.  Please call for details.

Providing Legal Help within these Areas and More:

Among other areas in Ontario, Canada

To Your Defence
Paralegal Services

SSL Secured Trust https://toyourdefence.com


Animated Spinner