Following discussion at the Fisheries Management Roundtable on Saturday, the ACA released this statement today.
"AERATION AND ISSUES ARISING FROM SECTION 263 OF THE CRIMINAL CODE. OCTOBER 20, 2015 PROPOSED ACTIONS
Background:
Alberta Conservation Association (ACA) aerates 16 lakes across Alberta using surface aerators. These surface aeration systems discharge water into the air, like a fountain, and create open water (a polynia) in a lake. In July 2015, ACA became aware of potential liability issues under Section 263 of the Criminal Code associated with making a hole in ice. Section 263 reads:
“Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under legal duty to guard in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.”
In August 2015, ACA received an initial opinion from Dentons Canada LLP regarding the impacts of Section 263 with respect to ACA aeration operations. In part, their opinion read “While it would make sense that a fence could work to prevent liability under s.263, we cannot be certain; it is difficult to say exactly what type of fence ‘would be adequate to prevent persons from falling in by accident’ and ‘adequate to warn them that the opening exists.’ “ The Criminal Code provides that “everyone who fails to perform a duty imposed by Section 263 is guilty of manslaughter, if the death of a person results.”
Based on the issues raised by Dentons Canada LLP, ACA sought a second opinion from McLennan Ross which was received on September 25, 2015. In reviewing case law associated with excavations on land (a subsection of 263) the McLennan Ross opinion notes: “…The Court’s reasoning suggests that the fact of the boys falling in the excavation was in and of itself proof that guarding was in adequate (although the Court says the warning was adequate).” The Court used the same reasoning in a second case referenced by McLennan Ross. In layman’s terms “guarding” has been considered inadequate because someone has fallen in, regardless of what type of guarding has been put in place. As a result a “due diligence” defence is not be possible under this section of the Criminal Code. McLennan Ross goes on to state: “Accordingly, it does not appear that there can be any assurance that any additional mitigative steps, including fencing, would prevent charges from being laid (if someone is hurt or killed – this would go towards a due diligence defence to any charge in the absence of harm). Arguably, should an individual climb the fence, and then accidentally fall in a hole in the ice and be injured or die, the warning and guarding could still be considered inadequate. Although this seems unfair, the reality is that it is the way the provision is currently worded.” And: “Accordingly, from a legal perspective, we do not believe that it is possible to eliminate the risk of criminal charges. Obviously, effective fencing or other steps such as those recommend by the cottage owners associations or followed under the B.C. policy would significantly reduce the practical likelihood of anyone being injured or dying, and may give rise to an argument that the duty to warn and guard never arose in the first place because the opening was not open to the public. However, if the duty is established, there appears to be no legal defence, other than the possible constitutional challenge, in the event that an incident actually happens, assuming the victim fell in ‘accidentally.’”
Based on two legal opinions, ACA has determined that the risk of criminal charges arising from someone being injured or dying in a hole created by aeration is low; however, the consequences of charges being laid is severe (manslaughter in the case of death) and would fall upon ACA’s staff, management and Directors. As such, ACA has decided that for the winter of 2015/16 surface aeration will be suspended while issues related to Section 263 are resolved. It is our intent to ensure our aeration program is running again at full capacity by the winter of 2016/17 at the latest.
Proposal for dealing with Section 263 of the Criminal Code:
The following is ACA’s proposed eight point plan which has been reviewed by the ACA Board of Directors, Alberta Environment and Parks and the Fisheries Round Table.
1) Starting immediately, attempt to super-saturate all lakes prior to ice-on then shut surface aerators off. Historical records show that a portion of the lakes ACA aerates did not winterkill every winter and we believe some lakes can survive successfully (the type of winter we have will play a major role).
2) Aerate eight lakes using bubble diffusers with enclosed polynia. Bubble diffusers are relatively simple to install and operate; however, they will create a hole in the ice. We believe we can contain the polynia within a 40 ft x 40 ft square created by floating dock material and then covered with chain link fencing material. Creating a floating, enclosed square should eliminate any possibility of people from falling in the open hole. A person would have to cut the chain link to access the hole in the ice. Pros: If the polynia becomes too large the aerator can be temporarily shut-down. Aeration can occur during thin ice periods with no risk of people falling in the hole. The floating docks can be reconfigured in the spring and used as casting platforms. Cons: The lakes we are aerating are relatively shallow (< 8 m) and as a result there is limited data on the rate of oxygen diffusion that will take place using the bubble diffusers or the size of the polynia that will be created. Based on the information we have, we believe the diffusers should provide sufficient aeration and the polynia can be contained within a 40 ft x 40 ft square, but both of these assumption need to be tested.
The eight lakes chosen for aeration are: Beaver Lake, Fiesta Lake, Ironside Pond, Muir Lake, Mitchell Lake, Millers Lake, Figure Eight Lake, East Dollar Lake
3) Increase the fish stocking program in the spring of 2016. Work towards having larger fish to stock, to replace the growth that an over wintering fish would be expected to have. Finding larger fish on short notice may be an issue.
4) Immediately inform stakeholders of the aeration plan.
5) Engage a lawyer to draft a proposed amendment to Section 263 that allows for a due diligence defence. Based on initial conversations there is a relatively minor wording change required.
6) Engage stakeholders, Provincial Government and other jurisdictions to help in persuading the Federal Government to amend Section 263 as proposed. We will need stakeholders to contact their local MP’s and ask for their support in making a change to a law that will benefit anglers across the country.
7) Continue to test new aeration techniques to implement for the winter of 2016/17.
8) Ensure the aeration program is fully operational by the winter of 2016/17 (all 16 lakes).
Our lawyers are working on the wording for a proposed amendment to Sec 263. As soon as I have that I will pass it along so that everyone can begin the process of talking to their new MP to try and get this law changed so that we don’t have issues in the future.
|
Hybrid Mode
