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One Brew in a Canoe – Boating and Drinking

By Lavinia Inbar & Richard J. Aitken

Boating season. For some, this is also the start of gin and tonic season.

Take note, in Ontario, drinking and boating can cost you your driver’s licence! Drinking and boating in Ontario triggers the same penalties as does drinking and driving.

In both cases, you don’t even have to be over the legal limit of .08% or more blood alcohol (80 or more mg of alcohol in 100 ml of blood) to lose your driver’s licence; you just have to be in the so-called “warning range” of between .05% and .08%.

What Happens When Drinking and Boating?

Here’s how it works. The driver of a motor vehicle or the operator of a vessel is stopped by the police and asked to provide a breath sample and “blows” 50 (.05%) or over, (indicating that the concentration of alcohol in his or her blood is 50 mg or more of alcohol in 100 ml of blood) but 80 (.08%) or under 80 (.08%).

The police officer then will request that the person surrender his or her driver’s licence. For how long do you lose your licence in this scenario? If it’s your first time, your licence will be suspended for three days.

Second time, for seven days, and third or more than third time, the suspension will be for thirty days. There is also a $250 fine for the first offence, a $350 fine for a second offence within five years and a $450 fine for third and subsequent offences within five years.

Drivers and boaters caught twice face mandatory alcohol education and treatment programs, in addition to the suspension and fine. Caught a third time and, after the 30 day suspension and the fine, you face having to do the alcohol education and treatment programs and having the Ignition Interlock device installed in your car for six months – all at your own expense.

If it is a fourth or subsequent offence within 10 years, you will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario. In addition to the penalties above, you will also face a licence reinstatement fee each time your licence is suspended.

What Are the Consequences for Drinking and Boating?

Remember, these are the penalties imposed even if you are NOT over the legal limit of 80or more mgs. What this means for many people, is that you can have two drinks, and lose your licence even though you were operating a vessel and not a car.

What if you blow “Over 80” (or refuse to provide a breath sample)? There is an immediate 90-day Administrative Driver’s Licence Suspension. Additionally, the police could charge you with two offences: the offence of “Impaired” and the offence of having a blood alcohol content 08% or over (or if you refuse to provide a breath sample potentially with the two offences of “Impaired” and “Refuse/Fail to Provide a Breath Sample”).

If you are then convicted, the penalties are as follows:

  • For a first offence, to a fine of not less than $1,000 for a BAC less than 120; $1500 for a BAC of 120 or over; or $2000 for a BAC of 160 or over, or for refusing/failing to give a breath sample;
  • For a second offence, to imprisonment for not less than 30 days;
  • For each subsequent offence, to imprisonment for not less than 120 days.
  • A maximum jail sentence of two years less a day if the Crown proceeds summarily. Or, if the offence is prosecuted by indictment, to imprisonment for a term not exceeding 10 years.
  • Your driver’s licence will be suspended for one year up to a lifetime and you face:
    • A mandatory alcohol assessment, education or treatment, and follow-up;
    • An Ignition Interlock device condition on your driver’s licence for one year to up to a lifetime.

These penalties apply to anyone who is caught drinking and operating motorized as well as non-motorized vessels, including paddle boats, canoes, kayaks, sailboats, dinghies and other inflatable boats and rafts. In terms of “Care and Control” cases, portaging a canoe or running the boat lift while impaired might be enough to get you charged. One brew in a canoe may mean that you cannot drive to work Monday morning.

If convicted of a drinking and boating offence, you will have a criminal record and you will not be able to operate a motor vehicle for a period of time. A prior for impaired boating also counts as a prior on a subsequent impaired driving offence; in other words, it could lead to your first drinking and driving offence being treated as a second offence for impaired driving purposes.

Naturally, you can expect your automobile insurance rates to skyrocket. Pretty sobering isn’t it?

Most people believe that for you to be convicted of this offence, your boat must have a motor. That is incorrect. On land, you could not be convicted of impaired driving of a bicycle as it is not a “motor vehicle.”

However, a vessel does not need to have a motor to be a “vessel.” Every year unsuspecting people are convicted of impaired operation of a canoe. Similarly, it could be a sailboat, kayak, or other vessel.

What to Do When Out on the Lake?

Getting out on the lake, having a beer in your canoe and fishing with friends, sounds like one of the best ways to spend a day off. It is also one of the most legally precarious.

The police have search powers on the lake, but these powers are mostly limited to ensuring compliance with safety equipment requirements or investigating if they have grounds to believe that there is evidence of open alcohol in a boat that is underway.

It is important to remember these limitations so that you don’t answer questions that you don’t have to answer. If the officer asks to see your safety gear, you must show it.

Anything beyond this, you should be asking the officer to articulate his or her grounds for the search. If you have shown the officer your safety gear there should be little reason for him or her to search the rest of the boat without some further grounds.

If the officer asks if you have alcohol on the boat, you don’t have to answer. In an Ontario Court of Appeal decision (Gentles v. Intelligarde International Incorporated, 2010 ONCA 797), this court, which is second only to the Supreme Court of Canada in its authority, indicated that a detained man who told the security guards detaining him: “FU, we don’t have to tell you f’ing anything,” was correct and that “Vulgarity aside, the statement…is an accurate statement of the law.”

You have to comply with the safety equipment requirements and the officer’s demands in that vein, but in general you should not be answering any other questions asked by the officer. You needn’t be vulgar about it, but you can insist that the officers tell you why they are asking the questions and if you have to answer them – this is an appropriate and encouraged action in our democratic society.

The only way to protect your rights is to know what they are and make the police do their job properly. Insist on your rights. If officers learn to do things properly in all cases, fewer truly guilty people will go free and the truly innocent will not be prosecuted and persecuted.

So, enjoy your pool or going out on the lake, do not consume too much alcohol and do not operate any vessel (motorized or not) on any lake, river or other body of water if there is any chance that you are impaired or have 80 mg or over of alcohol in your system.

Remember: if you are convicted of such a boating offence, it will affect your driver’s licence just like if you had been convicted of impaired driving of a motor vehicle.

Adriana & Richard with our great friend Sheila Beak.

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