Criminal code section on holes in ice draws reaction

A provision in the criminal code is attracting attention as people who enjoy ice-fishing learn more about the legal obligations concerning openings in the ice.

Section 263 of the Criminal Code notes that anyone "who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it".

That section has led to warnings, in Alberta, where a conservation group expressed concerns Monday that serious charges including manslaughter could arise if someone were to accidentally fall through ice. The association aerates shallow lakes to provide oxygen for fish but has scaled back the program after a warning from lawyers that the group could be held liable if someone were to accidentally fall through ice on an aerated lake.

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In Saskatchewan, many people venture onto Last Mountain Lake in the winter. They fish through holes that range in sizefrom 15 to 25 cm.

"You'd have to be a pretty skinny guy to fall down that hole," Dean Bakke, who was ice fishing o Wednesday, told CBC News.

Andy Kozey, who was also on the lake, said he has never heard of a person falling through an ice-fishing hole.

"No humans, but last winter when we were ice fishing my wife did drop her glasses down the hole," Kozey recalled. "I don't think even a small child could fit through a ten inch hole."

Some of the fishermen added that people who use larger holes usually work from inside fishing huts, which are locked.

CBC News learned, from the Saskatchewan Ministry of Environment, that when it comes to aeration, warning signs and barriers are put up to advise people of the activity.

An official added that there were no plans to change the aeration program.

"Without any concerns or complaints expressed at this time we don't expect to push for any real changes," Brent Webster, an official from the ministry, said.

Here is the Criminal Code section:

Duty to safeguard opening in ice

263(1)Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.

Marginal note:Excavation on land

(2)Every one who leaves an excavation on land that he owns or of which he has charge or supervision is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the excavation exists.

Marginal note:Offences

(3)Every one who fails to perform a duty imposed by subsection (1) or (2) is guilty of

(a)manslaughter, if the death of any person results therefrom;

(b)an offence under section 269, if bodily harm to any person results therefrom; or

(c)an offence punishable on summary conviction.