INTRODUCTION AND BRIEF DESCRIPTION
An accused shall not be convicted of an offence under this section if they establish they used all reasonable means to ensure the safety of vessels, aircraft, or railway equipment.
SECTION WORDING
251(2) An accused shall not be convicted of an offence under this section where the accused establishes that, (a) in the case of an offence under paragraph (1)(a), (i) the accused used all reasonable means to ensure that the vessel was seaworthy, or (ii) to send or take the vessel while it was unseaworthy was, under the circumstances, reasonable and justifiable; (b) in the case of an offence under paragraph (1)(b), (i) the accused used all reasonable means to ensure that the aircraft was fit and safe for flight, or (ii) to send or operate the aircraft while it was not fit and safe for flight was, under the circumstances, reasonable and justifiable; and (c) in the case of an offence under paragraph (1)(c), (i) the accused used all reasonable means to ensure that the railway equipment was fit and safe for operation, or (ii) to send the railway equipment for operation or to operate it while it was not fit and safe for operation was, under the circumstances, reasonable and justifiable.
EXPLANATION
Section 251(2) of the Criminal Code of Canada provides a defense for individuals accused of offenses under Section 251. Section 251 deals with operating or causing the operation of a vessel, aircraft, or railway equipment while impaired by alcohol or drugs. Under Section 251(2), an accused may not be convicted of an offense if they can establish that they used all reasonable means to ensure the vessel, aircraft, or railway equipment was seaworthy, fit and safe for flight or operation respectively, or if sending or taking it while it was unseaworthy, unfit, or unsafe was justifiable and reasonable under the circumstances. This defense recognizes that in some cases, individuals may be required to send or operate transportation equipment despite its unseaworthy or unsafe condition due to emergency situations or other extenuating circumstances. It also places an onus on individuals responsible for transportation equipment to take all necessary steps to ensure that it is safe for operation and use. Overall, Section 251(2) serves to balance the need for safe transportation with the recognition that unforeseen circumstances can sometimes create situations where the use of unseaworthy or unsafe transportation equipment is justifiable.
COMMENTARY
Section 251(2) of the Criminal Code of Canada provides a defense for individuals accused of offenses related to the transportation of dangerous goods. This defense is based on whether the accused took all reasonable measures to ensure the transportation vessel or equipment was safe and fit for use. This section recognizes that unforeseeable events may occur during transportation, which may cause the vessel or equipment to become unsafe. Therefore, it is reasonable to afford a defense to the accused in these circumstances. The Section is divided into three paragraphs, each related to the nature and mode of transportation. Paragraph (1)(a) refers to the transportation of dangerous goods by sea. It requires the accused to ensure that the vessel used for transportation is seaworthy. If the vessel is found to be unseaworthy, the accused must demonstrate that either they took all reasonable means to ensure the vessel was seaworthy, or it was reasonable and justifiable to operate the vessel knowing it was unseaworthy under the circumstances. Paragraph (1)(b) relates to aviation, and it requires the accused to ensure the aircraft carrying the dangerous goods is fit and safe for flight. If the aircraft is unsafe, the accused needs to demonstrate either they took all reasonable means to ensure the safety of the aircraft, or it was reasonable and justifiable to operate the aircraft while it was unfit for flight under the circumstances. Lastly, paragraph (1)(c) relates to the transportation of dangerous goods by rail. In this case, the accused needs to ensure the railway equipment is safe and fit for operation. If it is not, the accused must demonstrate that they took all reasonable means to ensure that the railway equipment was fit and safe for operation, or it was reasonable and justifiable to operate it while it is unsafe under the circumstances. Transporting dangerous goods carries a risk of harm to people, animals, and the environment. Although transporting dangerous goods is necessary, it should be done with the highest level of safety measures. That is why Section 251(2) is crucial in maintaining safety in the transportation of dangerous goods. It sets a standard of care for shippers, carriers, and operators of dangerous goods transportation, such as ensuring vessels, aircraft, and railway equipment are fit and safe for their respective operations. In conclusion, Section 251(2) is a necessary provision of Canadian criminal law that balances the importance of transporting dangerous goods with the protection of people, animals, and the environment. It recognizes the potential for unforeseeable events that may cause a transportation vessel or equipment to become unsafe and provides a defense to the accused if they took all reasonable measures to prevent such an occurrence. It serves to set a standard of care for those involved in dangerous goods transportation, ensuring that the operations are conducted with the highest level of safety measures.
STRATEGY
Section 251(2) of the Criminal Code of Canada is a critical legal provision for any individual or organization that ships goods or provides transportation services. This section establishes a legal defence against charges of operating an unseaworthy vessel, unsafe aircraft or railway equipment. However, successfully using this defence requires a strategic approach. The following are some strategic considerations and strategies that individuals or organizations should consider when dealing with this section of the Criminal Code of Canada: 1. Know the legal provisions: The first critical step in building a legal defence under this section is to know the legal provisions and what they require. This includes understanding the legal elements, requirements, and exceptions of this section. 2. Documentation and evidence: The use of all reasonable means must be documented and maintained to substantiate claims of safety diligence. The importance of establishing and maintaining this documentation can't be overstated. The documentation must also be regularly reviewed and updated to ensure it remains relevant. 3. Consultation with experts: Experts can be an invaluable resource in providing evidence and testimony to support the defence of using all reasonable means to ensure the seaworthiness of vessels, the fitness and safety of aircraft or railway equipment. 4. Conduct a thorough risk assessment: Management needs to conduct a thorough risk assessment of the risks associated with their operations. Addressing these risks before they occur will reduce the likelihood of injuries or damage and potentially justify the action taken. 5. Promote a Safety-Centered Culture: Implementing a safety culture within the organization that emphasises the importance of taking reasonable measures to ensure the safety of the vessels, aircraft or railway equipment goes a long way in preparing for prosecution and in building a safety-driven culturing. 6. Retain legal counsel: Retaining legal counsel with experience in transportation law and representing clients in cases resulting from damage, injury or any other liability should an unfortunate occurrence result from the activities of the operational company. 7. Plan and train staff: The staff operating the vessels, aircraft or railway equipment are the primary resources for ensuring that all reasonable means to ensure safety, fitness, and seaworthiness have been taken. These individuals are in the best position to recognise any potential weaknesses in the system's operating characteristics. With regular training, the staff can ensure that they take steps to mitigate risks or hazards that could interfere with safety. Ever since the enactment of Section 251(2), seizing the defence discussed above right from the initial stage of commencing operations has become increasingly popular. In doing so, compliant businesses remain safe from all legal consequences, and the legal defence provides protection from potential future charges, litigation, and legal action. Understanding and following the strategies discussed above serve to mitigate the potential risks and reduce the likelihood of costly litigation while building a safety-driven organisation committed to compliances.