SUPREME COURT OF PRINCE EDWARD ISLAND. Before: The Honourable Justice Benjamin B. Taylor

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1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Wilson 2013 PESC 23 Date: Docket: S1-GC-1008 Registry: Charlottetown Between: And: Her Majesty the Queen James Frederick Wilson Informant Accused Before: The Honourable Justice Benjamin B. Taylor Appearances: Lisa Goulden, solicitor on behalf of the Crown Brendan Hubley, solicitor on behalf of the Accused Place and Date of Hearing Place and Date of Oral Decision Place and Date of Written Decision Charlottetown, Prince Edward Island September 16, 2013 & September 17, 2013 Charlottetown, Prince Edward Island October 21, 2013 Charlottetown, Prince Edward Island November 4, 2013

2 2 AREA OF LAW: CRIMINAL LAW - Dangerous Driver of a vessel - s. 249(1)(b) and 249(2)(a) - marked departure from level of care expected of a reasonable person in the same circumstances. CASES REFERRED TO: R. v. Beatty, [2008] 1S.C.R. 49 (S.C.C.); R. v. Roy, [2012] S.C.J. No. 26; R. v. Adams, 2012 PECA 15 (PEICA) STATUTES REFERRED TO: Small Vessel Regulations and Collision Regulations (CRC, C made pursuant to the Canada Shipping Act, 2001 (S.C. 2001, c. 26) TEXT REFERRED TO: Safe Boating Guide, Transport Canada Taylor J.: [1] This decision follows the trial on September 16 and 17, 2013 of a charge against James Frederick Wilson ( Mr. Wilson, or the Defendant ) that he did on or about the 5 th day of August, A.D. 2012, at or near Stratford (Hillsborough River), County of Queens, in the Province of Prince Edward Island operate a vessel on the internal waters of Canada to wit: Hillsborough River, in a manner that was dangerous to the public, contrary to Section 249(1)(b) and Section 249(2)(a) of the Criminal Code of Canada and amendments thereto. Background [2] Sunday, August 5, 2012, was a warm, sunny day in Prince Edward Island and many pleasure craft owners took the opportunity to take their vessels out to sea. Mr. Douglas Gaudet ( Mr. Gaudet ), the owner of a sailboat with an outboard engine ( the Sailboat ), his wife Helen, his friend Robbie Gill and minors E.B. and K.G., left Charlottetown Harbour in the sailboat around lunchtime and sailed to Holland Cove, a cove on the Northumberland Strait a couple miles from the entrance to Charlottetown Harbour. In addition to the Sailboat, they had a 10 foot inflatable dinghy ( the dinghy ), similar to a Zodiac, with an eight horsepower motor. When they got to Holland Cove, they swam off the boat, used the dinghy, greeted other people and relaxed. They had supper on board while in Holland Cove, and about 6:30 p.m. they started back for Charlottetown Harbour, with E.B., age 16, piloting the dinghy ahead of the sailboat, and K.G., age 14, as passenger. [3] In order to travel from Northumberland Strait to Charlottetown Harbour, a boat must travel through a channel between the harbour and the sea, over an area of water Mr. Gaudet referred to as the Narrows. [4] Mr. Gaudet stated there were quite a few other boats entering or leaving the harbour - sailboats and powerboats, big and small. One of the boats was a power

3 3 cruiser ( the cruiser ) piloted by Steve LeClair ( Mr. LeClair ), an acquaintance of Mr. Gaudet. By the time Mr. Gaudet s sailboat got past the Narrows and was entering the harbour, he estimated the cruiser was feet ahead. He said the dinghy was beside the cruiser, maybe feet away, and it looked like the people on the two vessels were talking to each other. Mr. Gaudet estimated he was going about 6 knots (or 11 kilometres per hour), then Mr. Gaudet s wife stood up and said E.B. is in the water! [5] After E.B. and K.G. had motored through the narrows and got into the area of Charlottetown Harbour, they were overtaken by a power cruiser boat ( the cruiser ) owned by Stephen LeClair ( Mr. LeClair ). Mr. LeClair testified it was a busy scene on the water, there had been about 30 boats at Holland Cove and I gathered from him that the boats were making their way back to Charlottetown Harbour singly or in small groups - not in organized fashion. I note that as well, per Mr. Wilson s later testimony, there were sail boats in the water near Victoria Park - part of the Charlottetown Harbour area. The cruiser was going considerably faster than the dinghy when it overtook it, and Mr. LeClair was alone in the cruiser and on its second level. He sounded his horn and started by the dinghy on the dinghy s port or left side. In testimony E.B. testified to talking to Mr. LeClair for 5-10 minutes as Mr. LeClair s boat overtook the dinghy. E.B. s testimony is contrary to the testimony of Mr. LeClair and that of K.G. to be discussed below. I find E.B. is mistaken and attribute the mistake to injury suffered in the collision discussed below, which E.B. does not remember. There may have been a shouted greeting or a wave between the people on the two vessels but there was no conversation. The cruiser was not close alongside the dinghy, it was perhaps 30 or 40 feet away - the cruiser essentially pulled out to pass the dinghy, was doing so at a safe distance, and did not slow down to chat. [6] Mr. Steve MacDougall ( Mr. MacDougall ) testified that he and his friend, the defendant Mr. Wilson, each owned Sea-Doo jet ski (herein referred to as jet skis or Sea-Doos if referring to testimony), and they were both on the water on August 5, They got to Peake s Key a dock/restaurant/bar at 4-4:30 p.m., then went to Holland Cove on their jet skis and did some riding around, jumping waves. Mr. MacDougall said at that time it was cloudy with very little wind and the water was fairly calm. He said they jumped the wakes of some boats including a power yacht leaving the harbour. After that, Mr. MacDougall stated he and Mr. Wilson decided to head in. Going in, Mr. MacDougall was following Mr. Wilson. Mr. MacDougall says he saw a Sea Ray, which I understand to be the cruiser, and Mr. Wilson pursued the cruiser and travelled up the centre of its wake.

4 4 [7] At this point, Mr. Wilson on his jet ski attempted to jump the port (left) side of the wake of the cruiser. The jet ski hit the wake and became airborne briefly, then Mr. Wilson lost control of the jet ski, and fell off into the water. The jet ski then careened over to its right and collided with the dinghy, hitting E.B. and/or striking the dinghy in such a fashion that E.B. was tossed into the air. Mr. LeClair stated E.B. was tossed 10 feet in the air upside down and came down in the water on the other side of the dinghy. The jet ski then came to rest in the water with its engine stopped. [8] K.G., age 15 at the time of trial, gave testimony. K.G. was clear and confident in giving testimony and I accept the evidence K.G. gave of what happened, except for his estimate of speed. [9] K.G. says Mr. LeClair s boat overtook the dinghy. The dinghy was on the starboard (right) side of the LeClair powerboat to the back of his boat. There was a yacht 100 feet in length or so - not a cruise ship - leaving harbour, there were two jet skis jumping the wake of the yacht feet away from K.G. as they passed, then the two jet skis came to ride Mr. LeClair s wake and one jet ski left the water and went up in the air and the driver fell off into the water. K.G. stated the jet ski then turned towards the dinghy with no one on it and K.G. told E.B. watch out. The jet ski was still moving but its motor was not running; it came across to the starboard back corner of the cruiser, feet from the cruiser, hit the dinghy and E.B. and knocked her off into the water. K.G. was dropped down to the floor of the dinghy and E.B. was in the water on the dinghy side of the cruiser, between K.G. and the Sea- Doo. [10] Mr. MacDougall stated when the jet ski came back down to the water after jumping the wake, it turned hard right and Mr. Wilson fell off. The Sea-Doo crossed the wake and Mr. MacDougall saw it make contact with the dinghy. Mr. MacDougall stated he had not seen the dinghy earlier because he was directly behind Mr. Wilson. Mr. MacDougall then came to a quick stop, picked up E.B. and took E.B. to the cruiser, then picked up Mr. Wilson and took him to the cruiser. [11] Mr. MacDougall testified when the driver of a Sea-Doo falls off, the Sea-Doo engine shuts off and the Sea-Doo comes to a stop, clearly a variation on what is colloquially knows as a dead man s switch. Mr. MacDougall seemed to think the Sea-Doo ought to have continued in a straight line and did not stop as quickly as it should have in this case, but there was no evidence of any mechanical malfunction on which the accident could be blamed.

5 5 [12] Mr. Wilson testified at his trial. He was a witness who was not entirely truthful and his testimony was subject to change. He said he had 5 years of boating experience with a 28 foot motor boat and recently a Sea-Doo. In examination in chief on September 16, 2013, he said he got the Sea-Doo two years ago which I took to mean Since the accident was on August 5, 2012, that would mean he had the Sea-Doo for about a year at the time of the accident. However, in crossexamination he admitted he got his PCOC (i.e. his license to power boat), on May 20,2012 and bought the Sea-Doo June 5, 2012, so in fact he got the Sea-Doo only two months before the accident. [13] When asked in cross-examination how many times he had the Sea-Doo in the water before the accident, he said maybe five or ten times, then said he had jumped wakes hundreds of times, then agreed that included up to the trial dates - 13 months after the accident. He said he did some of it before he purchased the Sea-Doo, on some kind of water craft, maybe not jumping a boat wake - just waves. In response to the follow-up- boat wakes? -he said not really, no. He agreed he had fallen off the Sea-Doo a number of times and knew when he jumped waves or wakes there was a risk he would fall off. [14] E.B. suffered minor injuries as a result of the collision: 1) E.B. was knocked out or disoriented briefly and E.B. does not remember the impact, 2) E.B. could not put weight on his or her left leg that night, but it got better over time, and 3) E.B. has a right hip scar caused by the collision. [15] In this case there were considerable variations in the evidence when it came to calculating distance and speed. In considering the different estimates of speed, I give greater weight to the evidence of Mr. LeClair. Mr. LeClair is a Staff Sergeant with the R.C.M.P. and is a trained witness used to noting and remembering key factors after an incident, with some experience in estimating speed and checking against instruments. I accept his evidence about the speeds at which his vehicle (48 km/h) and the dinghy (16-24 km/h) were travelling and I accept his estimate the jet ski was travelling at a much faster rate of speed, with a maximum as high as km/h which I gather was reached as the jet ski met and crested the cruiser s wake, and I accept his estimate that after Mr. Wilson fell off, the jet ski came within 15 feet of the cruiser. Shipping Act and Safe Boating Guide

6 [16] The Small Vessel Regulations and the Collision Regulations (CRC, C made pursuant to the Canada Shipping Act, 2001 (S.C. 2001, c. 26) state at s and at Rule 6 and Rule 7 as follows: 6 Prohibition Against Careless Operation No person shall operate a vessel in a careless manner, without due care and attention or without reasonable consideration for other persons. Rule 6 Safe Speed International Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions. In determining a safe speed the following factors shall be among those taken into account: (a) By all vessels: (i) the state of visibility, (ii) the traffic density including concentrations of fishing vessels or any other vessels, (iii) the manoeuvrability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions,... Safe Speed Canadian Modifications (c) In the Canadian waters of a roadstead, harbour, river, lake or inland waterway, every vessel passing another vessel...shall proceed with caution at a speed that will not adversely affect the vessel...

7 7 (d) For the purpose of paragraph (c), where it cannot be determined with certainty that a passing vessel will not adversely affect another vessel..., the passing vessel shall proceed with caution at the minimum speed at which she can be kept on her course. Rule 7 Risk of Collision (a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.... (c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information.... Rule 8 Action to avoid Collision (a) Any action to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.... (d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear. (e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.

8 8 (f) (i) A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other vessel. (ii) A vessel required not to impede the passage or the safe passage of another vessel is not relieved of this latter obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the rules of this Part. [17] Mr. Wilson has not been charged with an offence under the Shipping Act or its regulations, but the jet ski is a pleasure craft and a vessel, and the above regulations are informative as to the standards of operation which apply. [18] Transport Canada publishes Safe Boating Guide, a detailed and illustrated guide written to promote safe and responsible boating practices among Canada s pleasure craft users. (including jet skis). It was placed in evidence by agreement of counsel. At page 50, it states: Be Aware and Polite Never buzz, try to spray swimmers or cut in front of or try to jump the wake of other vessels. Some of the worst boating incidents happen when speed or distance is misjudged. A) Criminal Code [19] Section 249 of the Criminal Code states, in part: DANGEROUS OPERATION OF MOTOR VEHICLES, VESSELS AND AIRCRAFT/Punishment/Dangerous operation causing bodily harm/dangerous operation causing death (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

9 9 (b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;... (2) Every one who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. (3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.... [20] The Defendant is charged with an offence under s. 249(1)(b) and 249(2)(a) of the Code. At the trial, E.B. testified to suffering bodily harm as described above, but the Crown did not pursue a charge of dangerous operation of a vessel causing body harm pursuant to s. 249(1)(b) and 249(3). B) Legal Precedents Re Jet Skis [21] In quoting the relevant parts of the Criminal Code, I have included s. 249(1)(a) re motor vehicles because there is little reported law in Canada on dangerous driving of jet skis. Counsel did not cite any cases. I note in the Atlantic provinces the Nova Scotia Court of Appeal considered a jet ski accident case which resulted in a conviction under ss. 249(1)(a), 249(1)(b) and 249(3), and dismissed the appeal against conviction (R. v. Ward, (NSCA), [1993] NSJ No. 119), but without getting into any analysis of the evidence. [22] In my view, the legal principles involved are the same for jet skis as for motor vehicles.

10 10 Supreme Court of Canada and Prince Edward Island Court of Appeal Cases [23] In R. v. Beatty, [2008] 1S.C.R. 49 (S.C.C.), Charron J. stated at paragraph 43: (a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. (emphasis added) and at paragraphs 7-8: [7]... A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind. [8]... Objective mens rea is based on the premise that a reasonable person in the accused s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal... [24] In R. v. Roy, [2012] S.C.J. No. 26, the Supreme Court of Canada considered a case in which Mr. Roy pulled his motorhome out from a stop sign, was hit by a tractor trailer, and was convicted of dangerous driving. [25] Cromwell J. delivered the decision of the Court and beginning at paragraph 24 stated:

11 my view is that the trial judge did exactly what the Court unanimously said in Beatty must not be done: without further analysis of the fault component of the offence, he inferred simply from the fact of driving that was, objectively viewed, dangerous, that the appellant's level of care was a marked departure from that expected of a reasonable person in the same circumstances In Beatty... the Court unanimously upheld the trial judge's finding that Mr. Beatty's momentary lapse of attention did not constitute a marked departure from the standard of care of a prudent driver even though it had tragic consequences.... [26] Justice Cromwell then summarized para. 43 of Beatty quoted above and continued at para. 28:...The mens rea is that the degree of care exercised by the accused's was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). (emphasis added)... (2) The Importance of the Fault Requirement for Dangerous Driving 30 A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established... The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

12 [In] Beatty... The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment. As Charron J. put it on behalf of the majority, at paras : If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.... (3) The Actus Reus 33 Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(a) of the Code, that is, driving "in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place" (para. 43). 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving" (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.... (4) The Mens Rea

13 13 36 The focus of the mens rea analysis is on 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 (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is 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. If so, the second question is 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 marked departure from the standard expected of a reasonable person in the same circumstances -- a modified objective standard -- is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea -- that is, deliberately dangerous driving -- would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras , and Fish J., at para. 86). (5) Proof of the "Marked Departure" Fault Element 39 Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind (para. 43). 40 Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

14 14 41 In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. 42 Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference. 43 I now turn to the question of whether the trial judge committed reversible error in this case. (6) Did the Trial Judge Err With Respect to the Fault Element? 44 The Court of Appeal found that the trial judge erred by equating the fault component of the offence with the question of whether there was an explanation for the accused's conduct (para. 21). I agree. But I also agree with the appellant that the trial judge's error goes beyond that. In my respectful view, the trial judge erred in law by failing to conduct any meaningful inquiry into whether the appellant displayed a marked departure from the standard of care to be expected of a reasonable person in the same circumstances. Specifically, he inferred the marked departure simply from the fact that the driving was, objectively viewed, dangerous: trial judge's reasons, at paras This is precisely what all of the members of the Court held in Beatty must not be done. Of course, the trial judge did not have the Court's decision in Beatty. [27] In R. v. Adams, 2012 PECA 15 (PEICA), the PEI Court of Appeal considered a case in which a man was acquitted on charges of dangerous driving of a motor vehicle causing death and dangerous driving of a motor vehicle causing bodily harm. The Court of Appeal upheld the acquittal. McQuaid J. for the Court reviewed dangerous driving decisions in the Supreme Court of Canada and the British Columbia Court of Appeal over the last 20 years and stated: [64] Viewing all the evidence with respect to the circumstances of this accident, aside from the tragic consequences, the trial judge effectively found that the respondent should have foreseen the risk of attempting to pass when he did and that he should have taken steps to avoid that risk.

15 15 [65] The respondent s failure to foresee the risk was, therefore, a departure or a mere departure from the normal manner of driving. This being so, however, the trial judge had a reasonable doubt that the failure of the accused to foresee this risk was a marked departure from the standard of care of a reasonable driver in those circumstances. What constitutes a marked departure is a matter of degree - a question of fact beyond the power of this court to review on an appeal from an acquittal. [66] The trial judge correctly applied the legal principles set down in R. v. Beatty. Even though he found the respondent s driving was dangerous, the trial judge was not prepared to infer from this fact that the respondent possessed the necessary degree of criminal fault. On all the evidence, the trial judge had a reasonable doubt that the respondent's manner of driving markedly departed from the standard of care of a reasonable person in the circumstances. [67] In the result, the trial judge acquitted the respondent of both charges. In doing so, the trial judge did not err in law. I would dismiss the appeal. Discussion and Findings [28] It is not necessary for the Crown to prove Mr. Wilson intended to hit a child with his Sea-Doo. Rather, the Crown must prove Mr. Wilson s conduct was a marked departure from the standard of care a reasonable person operating a jet ski would observe in the circumstances. [29] Although the defendant testified in this case, I do not believe this is a case in which the approach and reasoning set out in R. v. W.(D) S.C.R. 742 should be applied. In this case, the evidence of both the prosecution and the defence witnesses, including the evidence of Mr. Wilson, was much the same. Mr. Wilson s defence, as I understand it, was that his actions and his manner of driving the jet ski were not a marked departure from the standard of care to be expected of a reasonable person in the same circumstances. Mr. Wilson did not deny what he had done and agreed he had attempted to jump the wake of Mr. LeClaire s cruiser, rather his counsel argued other jet skiers do the same things. Clearly, where a defendant agrees with the facts asserted by the Crown, but differs on interpretation of those facts, the Court cannot simply follow the first step of R. v. W.(D.) and find the defendant not guilty. [30] Counsel for the Defendant suggested jet skis were the dirt bikes of the sea. I note dirt bikes are not allowed to do their stunts on public highways or other areas occupied by the public.

16 16 [31] There are no highways, lanes, crosswalks, or pedestrian sidewalks on Canada s inland waters. As is illustrated by the evidence given about what was happening in the area of Charlottetown Harbour on the day in question, inland waters may be used by swimmers, rafts, dinghies, canoes, water skiers, all manner of sailboats, small and big, and small, large and very large power vessels, from jet skis to huge ships, all on the same waters. Jet ski operators must be alert to who or what is on or in the water, whether big or small. [32] The decisions I rely on in this decision stress that consequences (i.e. damages, injuries or death) are not to be considered as they are not part of the actus reas or the mens rea. By the same token, the minor injuries suffered by E.B. cannot figure in a consideration of whether or not the evidence proves the charge of dangerous driving. Depending on things not related to the offence, the same dangerous driving could result in death, or no injury at all. [33] I make the following findings about the actus reus and the mens rea or fault element: (1) the Defendant s action was not a momentary lapse in judgment or observation - he and his friend on their waterskis chased the large yacht leaving the harbour and jumped its wake an unknown number of times. When it was gone, they looked for another opportunity, identified the motor cruiser and chased it down so as to jump its wake. It was a course of conduct which took time to carry out. As they approached it from behind they had time to see what was in the water around the cruiser, but did not. (2) Consent is an important issue in this case. In my view, motor vehicles, vessels or aircraft, like jet skis, dirt bikes, stunt planes and race cars, may engage in risky behaviour, and so long as they do not include involuntary participants in their risk, as opposed to participants or voluntary spectators of the events, that may be their own business, and while they may have civil liability, they may not be committing a crime. Specifically, it seems to me where a jet ski driver jumps the wake of a powerboat whose operator and passenger(s) consent, there may be no criminal offence if injury or damage restricted to the powerboat or its passenger(s) results.

17 17 In this case, Mr. Wilson jumped the wake of a powerboat without consent, and collided with another vessel whose occupants did not consent. (3) Mr. Wilson says he did not see the dinghy and the two children on it, but they were there to be seen. In my view, whether he did not look, did not see, or did not take steps to determine what was there to be seen, he was operating his jet ski in a manner dangerous to the public. (4) Mr. Wilson drove or piloted his jet ski in a careless manner at high speed. He failed to observe what was going on, attempted a stunt near a power boat, failed to obtain consent and exposed others to the risk he was taking. All of those actions together amount to dangerous driving. [34] Per Beatty and Roy, I find the degree of care exercised by Mr. Wilson was...a marked departure from the standard of care that a reasonable person would observe in the accused s circumstances (Beatty at paragraph 43, and Roy at paragraph 28. According to Roy, the care exhibited by Mr. Wilson is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm...the lack of care must be serious enough to merit punishment (Roy at paragraph 28, Beatty at paragraph 48). [35] And at paragraph 34 of Roy, A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of the subsequent accident. [36] And at paragraph 37 of Roy, Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. [37] And at paragraph 39 of Roy, Of course, proof of subjective mens rea - that is, deliberately dangerous driving - would support a conviction for dangerous driving, but proof of that is not required. [38] I find Mr. Wilson s purpose was to go fast enough so as to become airborne when jumping the wake of the power cruiser, and to pass close enough to the cruiser so the wake would be high enough to cause the jet ski to become airborne. I find Mr. Wilson s driving was dangerous to the public in all of the circumstances.

18 [39] In my view, the following are the particulars of Mr. Wilson s departure from the standard of care a reasonable person would observe in the circumstances: 18 Conclusion (1) he attempted to jump the wake of a power boat - thus coming quite close to another vessel at a high rate of speed. (2) he did not have the consent of the operator of the power boat to attempt this stunt. (3) he attempted the stunt when multiple other vessels were in the area. (4) he failed to properly reconnoitre the area to determine what vessels were in the area. (5) he failed to see the dinghy. (6) he failed to obtain consent from the dinghy operator. (I recognize the failure to get consent from the dinghy occupants presents a problem - realistically he could not get consent from two minors) (7) he was a novice operator with minimal experience in jumping waves or wakes and ought not to have attempted stunts. (8) he failed to maintain control of his jet ski causing him to fall off and causing it to turn hard right leaving the pilotless jet ski to careen into the dinghy and injure E.B. A reasonable person or a reasonably prudent driver would not have attempted to jump a boat s wake given these circumstances. [40] Based on the evidence presented in this case, and pursuant to the findings which I have made, I find the Defendant James Wilson guilty of dangerous driving of a vessel on the internal waters of Canada contrary to s. 249(1)(b) and 249(2)(a) of the Criminal Code of Canada. November 4, 2013 J.