Appeal dismissed in precedent-setting deadly impaired operation of a canoe case

Ontario’s highest court has dismissed an appeal by an Etobicoke man found guilty and sentenced to six years in prison for impaired operation of a vessel and criminal negligence causing the death of his girlfriend’s eight-year-old son.

On April 7, 2017, David Sillars was at a friend’s cottage on the Muskoka River in the town of Bracebridge, Ont., and took his girlfriend’s son, Thomas Rancourt, canoeing on the river during the spring run-off.

The water was frigid and moving swiftly. Thomas did not know how to canoe and was a weak swimmer. Sillars and the child were paddling towards High Falls to retrieve a piece of debris wedged against a yellow barrier warning of danger due to the falls and the canoe capsized. The eight-year-old was swept over the falls and died.

Sillars managed to swim to shore. He had a blood alcohol content of 128 milligrams in 100 millilitres of blood, more than one-and-a-half times the legal limit.

On June 27, 2019, Sillars was convicted by Justice Peter C. West and on Oct. 4, 2019, he was sentenced to six years in prison.

In late May, lawyers for Sillars argued before the Court of Appeal of Ontario that a canoe is not a vessel under the Criminal Code. They also argued that Sillars’ right to counsel was infringed by the failure of police to advise him of his right to counsel before the approved screening device (ASD) and there was no expert evidence as to the standard of care on which a conviction of criminal negligence could be based. Sillars also argued the sentence is “manifestly unfit.”

The Court of Appeal agreed with the trial judge, who concluded that a canoe is a “vessel” under the Criminal Code. In their decision, Justice Mary Lou Benotto, Justice Bradley Miller and Justice Julie Thorburn wrote that “the object of the enactment is to protect the public from the consequences of impaired operation of conveyances on the water.”

“Impairment creates risks to passengers of a canoe, other watercraft, swimmers and first responders. Unlicensed conveyances, non-muscular-powered vessels and sailboats pose a risk of injury and death just as license and motor-powered conveyances do,” they added.

In regards to whether expert evidence was required to convict Sillars of criminal negligence, the judges found that expert evidence was not necessary given the extensive findings by the trial judge. Those include the fact that the outside temperature was between 3 C and 4 C on April 7, 2017. School buses had been cancelled because of slush and ice on the roads. The spring snow melt was in full force and the water level was high. The temperature of the Muskoka River was frigid and cold.

Sillars was cautioned by at least two people who were experienced with water conditions during spring run-off not to go canoeing because it was too dangerous. The life-jacket Thomas wore was too small. Sillars had consumed alcohol and had also smoked cannabis before the canoe trip. Thomas looked up to the appellant as a father figure and this relationship with Thomas created a duty of care for the appellant towards Thomas.

“The trial judge’s findings of fact lead to the inescapable conclusion that the appellant’s actions were a marked and substantial departure from the conduct of a reasonably prudent person and showed a wanton and reckless disregard for the life and safety of Thomas – a child who was owed a duty of care,” the appellate judges wrote.

The Court of Appeal agreed with the trial judge that a six-year sentence was appropriate, noting Sillars’ lengthy criminal record (including a former penitentiary sentence) and the appellant’s role as a father figure to Thomas, which put him in a position of trust and authority.

The appellate judges pointed out that denunciation and general deterrence are the paramount sentencing principles in motor vehicle cases, saying it applies equally to vessels.

“The fact that the conveyance here was a canoe did not detract from the potential danger posed by impaired operation and criminal negligence in its operation,” the judges wrote, noting the seriousness of the offences as high, as was the appellant’s moral blameworthiness.

Sillars, who has been out on bail pending the appeal, surrendered into custody on Tuesday morning and will begin serving his sentence. He has 60 days to file an application for leave to appeal with the Supreme Court. Sillars’ lawyer Frank Addario declined a request for comment on the appeal decision.

The family of Thomas Rancourt told Global News they are relieved.

“Justice for Thomas is what we wanted. I’m in shock, I’m shaking,” said Donna Posnikoff, Thomas’ grandmother, who is still grieving the loss of her grandchild.

“Dave Sillars, I’m so happy he’s in jail. You have no idea. Even though I’m crying for Thomas,” said Posnikoff.