R. v. Cowan Date:, 2014 BCPC 334

Citation: R. v. Cowan Date: 20140205 2014 BCPC 0334 File No: FC635229 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v . WILLIAM CUNNINGHAM COWAN REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON

Counsel for Crown : Cristin J. Peel Appearing on his own behalf: W. C. Cowan Place of Hearing: Victoria , B.C. Date of Hearing: October 23, 2013 Date of Judgment: February 5, 2014 Introduction [ 1 ] This is a cautionary tale of an elephant and a turtle, in close quarter. It is not a fable but, unfortunately, a true tale. The elephant is a B.C. Ferry, the Spirit of British Columbia ( SOBC ). The turtle is a 38 foot sailboat, the Antares I . The close quarter is Active Pass, between Galiano and Mayne Islands, two of the Gulf Islands in the Salish Sea. [ 2 ] Mr.

Cowan is charged with operating the Antares I in a careless manner, without due care or without reasonable consideration for other persons, contrary to

section 1007 of the Small Vessel Regulations , enacted under the Canada Shipping Act, 2001 . Legislation [ 3 ] The provisions of two Regulations, made under the Canada Shipping Act, 2001 , are relevant in this matter. Small Vessel Regulations (SOR/2010-91) Prohibition Against Careless Operation 1007. No person shall operate a vessel in a careless manner, without due care and attention or without reasonable consideration for other persons. Collision Regulations (C.R.C., c. 1416)

SCHEDULE 1 INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972 WITH CANADIAN MODIFICATIONS PART A — GENERAL … 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. (

b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided. (

c) If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation. (

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. ( 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. (iii) A vessel the passage of which is not to be impeded remains fully obliged to comply with the rules of this Part when the two vessels are approaching one another so as to involve risk of collision.

Rule 9 Narrow Channels — International (

a) A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable. (

b) A vessel of less than 20 metres in length or a sailing vessel shall not impede the passage of a vessel which can safely navigate only within a narrow channel or fairway. (

c) A vessel engaged in fishing shall not impede the passage of any other vessel navigating within a narrow channel or fairway. (

d) A vessel shall not cross a narrow channel or fairway if such crossing impedes the passage of a vessel which can safely navigate only within such channel or fairway. The latter vessel may use the sound signal prescribed in Rule 34(

d) if in doubt as to the intention of the crossing vessel. ( e ) (

i) In a narrow channel or fairway when overtaking can take place only if the vessel to be overtaken has to take action to permit safe passing, the vessel intending to overtake shall indicate her intention by sounding the appropriate signal prescribed in Rule 34( c )(i). The vessel to be overtaken shall, if in agreement, sound the appropriate signal prescribed in Rule 34( c )(ii) and take steps to permit safe passing. If in doubt she may sound the signals prescribed in Rule 34( d ). (ii) This Rule does not relieve the overtaking vessel of her obligation under Rule 13. (

f) A vessel nearing a bend or an area of a narrow channel or fairway where other vessels may be obscured by an intervening obstruction shall navigate with particular alertness and caution and shall sound the appropriate signal prescribed in Rule 34( e ). (

g) Any vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel. Narrow Channels — Canadian Modifications … (

k) Notwithstanding paragraph (

a) and Rule 14( a ), in the Canadian waters of a narrow channel or fairway where there is a current or tidal stream and two power-driven vessels are meeting each other from opposite directions so as to involve risk of collision, (

i) the vessel proceeding with the current or tidal stream shall be the stand-on vessel and shall propose the place of passage and shall indicate the side on which she intends to pass by sounding the appropriate signal prescribed in Rule 34(

a) or ( g ), (ii) the vessel proceeding against the current or tidal stream shall keep out of the way of the vessel proceeding with the current or tidal stream and shall hold as necessary to permit safe passing, (iii) the vessel proceeding against the current or tidal stream shall promptly reply to the signal referred to in subparagraph (

i) with the same signal, if she is in agreement, and with the sound signal prescribed in Rule 34( d ), if she is in doubt. Evidence [ 4 ] Before reciting the evidence of what occurred that day, it is useful to describe Active Pass. Active Pass is a passage of water between Galiano and Mayne Islands and is the approximate half way point on the BC Ferry route between Tsawwassen and Swartz Bay. The Pass is essentially what in golfing terms would be described as a dogleg.

Its entrance from the Tsawwassen side is in a north - south direction, it makes a 90° turn to the right at Mary Anne Point on Galiano Island, proceeds in an east - west direction before opening to the west of Helen Point on Mayne Island. Both these Points create a pinch point or knuckle that restricts the movement of vessels transiting the Pass. [ 5 ] Of significance also is the flow of water through the Pass. A good portion of the Gulf of Georgia empties (ebbs) and fills (floods) twice a day through both Active Pass and Haro Strait.

As a result, except at the times of change of direction of flow, the current flows through the Pass at a significant speed and turbulence. [ 6 ] I should state here that a ferry leaves Tsawwassen and Swartz Bay on the odd hours of each day. It is common for these ferries to pass each other in the middle of Active Pass. [ 7 ] The Crown called two witnesses; the Master of the Spirit of British Columbia (“ SOBC ”) on that voyage, Capt. Malvern Glentworth, and the 3 rd officer, Patrick Nobes. [ 8 ] Capt.

Glentworth testified he was called to the bridge of the SOBC as it was entering Active Pass on its voyage from Tsawwassen to Swartz Bay on July 2, 2012. The SOBC had left Tsawwassen at 11:00 am and was entering Active Pass at about 11:45 am. He had the crew make a call on Channel 16, the designated radio channel for marine traffic alerts. He was aware, particularly at this time of year, that vessels other than ferries might be in Active Pass at the same time, such vessels as whale watchers, pleasure craft and tow boats.

[ 9 ] Capt. Glentworth testified that as a rule of thumb, the ferries are to maintain a distance of not less than one cable (600 feet) from the starboard shore line. At its narrowest point, Active Pass is 3 cables wide. [ 10 ] As the SOBC passed Sturdies Bay on Galiano Island, it received a call from the BC Inter Island ferry Mayne Queen to advise that there was a higher than usual number of pleasure craft traffic in the Pass. That was a courtesy from the Mayne Queen as one cannot always rely on pleasure craft to do what they are supposed to do in transiting a channel such as Active Pass. Capt.

Glentworth ordered a crew member to give a long loud whistle as he approached Mary Anne Point, a blind point on the route. He reduced the speed of the SOBC to 6/10 full speed (or full pitch). [ 11 ] He saw on the electronic chart a vessel identified by the AIS [Automatic Identification System] as the Peregian approaching about mid channel. He then observed ahead and to his port side a cluster of 3 small vessels approaching the SOBC , slightly to the left of the centre of the passage, the lead vessel of which was the Peregian .

That left the 550 foot SOBC only the distance from them to Mary Anne Point to navigate a 90° turn to starboard, at approximately the speed of 14 knots, as it rounded the Point. [ 12 ] Capt. Glentworth then had the Chief Officer give a long loud blast of the whistle. The convention is that anyone hearing that whistle gives one long or 5 short whistles in response. He noted no response.

Although he had the warning from the crew of the Mayne Queen , he only knew of the presence of the SOBC ’s sister ship the Spirit of Vancouver Island approaching from the other end of Active Pass, the cluster of 3 vessels seen on the electronic chart and possibly a whale watching boat. [ 13 ] Shortly thereafter, Capt. Glentworth observed a small sailboat, under motor power, rounding Mary Anne Point approaching at close proximity to his starboard.

It was oriented toward the lighthouse on Mary Anne Point, but it appeared to him that the tide was slipping it sideways and he feared if nothing changed, it would go under the bow of the SOBC . [ 14 ] The sailboat’s direction altered between pointing toward the SOBC and away. He had the SOBC alter course to the left and away from the sailboat. Capt. Glentworth also reversed the port thrust to both slow the SOBC and assist in pulling it to the left.

The space he had to maneuver was constrained by the 3 pleasure vessels, including the Peregian , approaching closely and the Spirit of Vancouver Island rounding Helen Point in the opposite direction and which the SOBC intended to pass approximately mid point between Mary Anne Point and Helen Point. [ 15 ] This maneuver succeeded, the two vessels passed without colliding. [ 16 ] The third officer, Mr. Nobes, gave evidence next. He had been with BC Ferries for 27 years. [ 17 ] One of Mr. Nobes’ tasks is to be lookout on the bridge.

As such, when the Antares I was sighted, he stood on the starboard (right) wing of the bridge to view the Antares I , where he could monitor its positioning and obtain identifying information. After it passed his position, he could see the name of the sailboat on its stern. [ 18 ] Mr. & Mrs. Cowan also gave evidence. Their testimony did not significantly differ from that of Capt. Glentworth except for the actions of the Antares I and the closeness of it as it rounded Mary Anne Point. [ 19 ] Mr.

Cowan described himself as an experienced mariner, having had many years of local boating and also had experience sailing off-shore between BC and French Polynesia, since his retirement as a commercial pilot. He is familiar with Rules 8 and 9 of the Collision Regulations . He disagreed with the characterization of Active Pass as a “narrow channel” under Rule 9 and therefore its application. [ 20 ] He testified he carefully planned his transit from Montague Harbour on the west side of Galiano Island to Point Roberts across the Gulf of Georgia, a course he had made many times.

Based on the tide charts, the current at midday was low, about 3.1 knots. His plan was to hug the shoreline of Galiano Island through Active Pass, taking him on the left side of the channel, and then cross over the ferry route once well past the northern opening to Active Pass in continuing his route to Point Roberts. [ 21 ] Mr. Cowan deliberately did not cross the western opening of Active Pass which would have put him on the right side of the channel because he expected heavy boating traffic and he had a slow boat.

He also testified that he navigated on the assumption he may meet a BC Ferry at any point in Active Pass, including at Mary Anne Point. [ 22 ] As the Antares I rounded Mary Anne Point Mr. Cowan sighted the SOBC , noted how close it was coming to the Point and turned the sailboat to port to get closer to shore, then made a starboard turn to come parallel to the shore. [ 23 ] In his evidence in chief and in cross examination, Mr.

Cowan testified that he takes these matters seriously, that one has to know ahead of time what one is going to do in any circumstance, that one must obey the marine rules of the road, that he knew Rules 8, 9 and 34 and that it was his responsibility to stay clear of the SOBC . [ 24 ] One point of significance in his testimony is that he does not agree that Active Pass is a narrow channel and therefore Rule 9(

a) did not apply and so there was no correct side of the Pass for vessels to transit. [ 25 ] Mr. Cowan’s wife, Halina, was the final witness. She essentially corroborated the evidence of Mr. Cowan. One piece of evidence that may be telling is that at Mary Anne Point, as the Antares I was maneuvering to avoid the SOBC , she expressed nervousness to Mr. Cowan at how close they were to the shoreline. [ 26 ] The registration particulars of the Antares I were entered in evidence. The Antares I is an 11.58 m (38 foot) sailboat with a single screw 52 horsepower engine, with a maximum speed of 7.5 knots (although Mr.

Cowan described it as 6 knots). Analysis [ 27 ] Mr. Cowan is charged with operating a vessel in a careless manner, without due care and attention or without reasonable

consideration for other persons. [28] This wording is very similar to the offence in many Provinces, including British Columbia, of driving without due care andattention or driving without reasonable consideration for others using the highway. Decisions on those provisions can give guidance onthe principles to apply. [29] Like the provincial motor vehicle offence, I take this offence to be a strict liability offence, and so I take into consideration theprinciples that flow from R. v. Sault Ste. Marie (SCC), [1978] 2 S.C.R. 1299 and the subsequent decisions that haveconsidered and followed it.

In strict liability offences, the prosecution must prove that the offence took place and if it does so, in order tobe acquitted the accused must prove on a balance of probabilities that he or she exercised due diligence to avoid committing the offence. [30] In this case, I find on the evidence that transiting Active Pass on the Galiano Island side and placing the Antares I at the pinchpoint of Mary Anne Point at the precise moment the SOBC was rounding the Point in a 90° turn constituted operating a vessel in acareless manner without reasonable consideration for other persons. That leaves me to determine if Mr.

Cowan has established a defenceof due diligence. [31] Before turning to the due diligence defence, I will describe why I conclude the Crown has proven the offence. [32] Whether it is implied under Rule 9(

a) or applying the generally accepted Rules of the Sea, the rule is that in channels or in closeproximity, vessels pass port to port. Rule 9(

a) provides that a vessel proceeding along the course of a narrow channel or fairway shallkeep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable. Narrow channel isnot a defined term in the Regulations. I take the ordinary meaning of narrow: slender width or restricted, as the intended meaning. [33] Considering the evidence and having travelled Active Pass many times, the Pass in my view cannot be considered anything buta narrow channel.

And certainly in the context of the known shipping that transits Active Pass, including the large BC Ferries, it isnarrow in its ordinary meaning. [34] Further, Active Pass is dog-legged, so that a vessel’s view of opposing traffic can be obstructed at some points. And finally, itis well known to local boaters that often the water is fast flowing and turbulent, especially as the water makes 90° turns and passes pinchpoints such as Mary Anne Point. All of this is well known to Mr.

Cowan. [35] In my view, it is careless, and without reasonable consideration for persons navigating vessels the size of the SOBC, for aperson to navigate through Active Pass on the side of the channel such that vessels pass starboard to starboard, rather than port to port. Itis somewhat like riding a bicycle on the wrong side of a single lane road, a road which has a 90° bend. Doing so may not create anyparticular hazard most of the time, but once in a while the bike will meet a large truck at the bend. If there is oncoming traffic, thetruck’s ability to maneuver is very limited, and puts it and others at risk.

Just as it would be in the context of road traffic, in a marinecontext that in my view is a significant enough lack of consideration to constitute the offence of which Mr. Cowan is charged. [36] The facts in this case created the so-called perfect storm. The SOBC was proceeding at a significant speed through a twistingchannel, with small vessels on the oncoming side not too far off the centre line. The Master is taken by surprise by a low-poweredsailboat as the SOBC is about to make a 90° turn.

Because there is no communication between the navigators of the two vessels, Capt.Glentworth is left to guess what the sailboat will do, based on what he sees by its movements. The SOBC (the elephant) cannotmaneuver quickly because of its speed, mass and lack of options to where it can move. The Antares I (the turtle) cannot maneuverquickly because of its lack of power and agility and the current and turbulence at Mary Anne Point. [37] This situation illustrates, in my view, a reason why there are rules of the sea, including those in the Collision Regulations.

These rules contribute to safe passage of opposing vessels. Those navigating on the seas are entitled to navigate on them in theexpectation that the others also using the seas will follow the rules. Those that do not follow the rules do so at their peril, and if in doingso it puts others at risk, they must accept the penal consequences. [38] Turning now to whether the facts on a balance of probability establish a defence of due diligence for Mr. Cowan, I concludethey do not. [39] Mr. Cowan knew of the potential risk of meeting a large BC Ferry at Mary Anne Point.

He carefully planned his route fromMontague Harbour to Georgia Strait. He said several times he planned his route in the expectation he might meet one of the ferries atMary Anne Point. He said “you treat it as if a ferry was coming”. He said in his submissions: a. Vessel traffic in Active Pass can be extremely heavy in the summer. It includes various BC Ferry routes (ie. Tsawwassen to SwartzBay; many inter Island Ferry routes) along with heavy commercial and pleasure traffic.

Because of this a careful thought out Plan ofAction makes sense to us. [40] He says the reason he took the route he did was to avoid having to “cross” the western entrance to Active Pass under thecircumstances described in the paragraph above given the slow speed at which the Antares I can travel. [41] Mr. Cowan takes the position that Active Pass is not a narrow channel within the undefined meaning of the CollisionRegulations. He says there is no “correct side”.

In my view, by taking the route he did, he put himself in the position of not being ableto see any large vessel such as the SOBC until the last moment and of not being able to hear any warning whistle it might give, becauseof the sound barrier created by the intervening land barrier of Galiano Island and because of the high level of noise of his engine. [42] This is a case, I think, of an experienced local and international mariner and a skilled, highly regarded former commercial pilotwho knew of the potential hazard but who, despite the rules of the sea, relied on this skill and experience to avoid trouble.

In doing so heexercised poor judgment and breached the standard of care expected of mariners on the sea. The potential for grave harm wassignificant. The fact that no harm did occur is not an answer. Capt. Glentworth could have caused the SOBC to make a wider swingthan it did and collide with the on-coming pleasure craft. That there was no collision with the Antares I or other pleasure craft was due

partly to the skill of Capt. Glentworth and partly to good luck. [ 43 ] It is not enough to establish a defence that from Mr. Cowan’s perception, he had sufficient control of the Antares I at Mary Anne Point to avoid a collision. The Master of the SOBC , had the grave responsibility for the safety of hundreds of passengers on his ship and to avoid causing harm to other vessels around it. It was his perception from what he observed that the Antares I was putting itself on a potential collision course with the SOBC . He had no communication with Mr. Cowan to know his intentions.

He could only act on what he observed, and act quickly. [ 44 ] It is for these reasons I conclude that on a balance of probabilities, Mr. Cowan did not exercise due diligence in taking reasonable care to give reasonable consideration to Capt. Glentworth and others in Active Pass. Finding of Guilt [ 45 ] I find Mr. Cowan guilty of operating the Antares I in a careless manner, without due care or without reasonable consideration for other persons, contrary to

section 1007 of the Small Vessel Regulations . __________________________________ Judicial Justice H. W. Gordon