March 16 2011
On April 14 2010 Fourth Officer Karl Lilgert pleaded not guilty to charges of criminal negligence causing death in connection with the March 22 2006 sinking of the British Columbia Ferries passenger ferry the Queen of the North. The criminal justice branch of the British Columbia Ministry of the Attorney General appears to have concluded that the available evidence does not support the charging of any officer or crew member other than Lilgert with respect to the sinking.
The charges came four years after the Queen of the North grounded and sank off Gil Island in the Inside Passage in British Columbia coastal waters. Of the 103 passengers and crew on board, all but two were brought to safety during the 80 minutes before the ferry sank. The remaining two passengers were presumed drowned. Lilgert served as the navigating officer and was, according to the crown, "responsible for steering the vessel at the time of the incident".
The charges against Lilgert were laid under Section 219 of the Criminal Code, which makes it an offence to do anything or omit to do anything that one has a duty to do in a way that shows "wanton or reckless disregard" for the lives or safety of other persons. Under Section 220(b), a person whose criminal negligence leads to death may be liable to life imprisonment.
In respect of the charges filed against Lilgert, the crown said that it had conducted a "detailed and involved" investigation into evidence gathered by the police. In a statement to the press, Lilgert's lawyers responded that the puzzle was "what evidence the Crown feels it has that elevates this to a criminal negligence level, as opposed to simply somebody who may have made a mistake".
Charges under Section 219 of the code are more commonly associated with motor vehicle deaths and, occasionally, deaths associated with the operation of pleasure craft. It is extremely rare in Canada to see criminal negligence cases involving commercial crew members, which makes the Lilgert case of particular interest from a legal perspective.
Commercial voyages generally involve a full complement of trained and experienced crew, sophisticated navigational equipment and shipboard policies, procedures and standing orders, most of which do not exist in the context of a collision involving a single-operator pleasure craft.
In its report following its investigation of the sinking, Canada's Transportation Safety Board found that the following factors contributed to the sinking:
While the board addressed specific criticism towards the fourth officer, it also identified the following additional contributing causes of the sinking:
In light of some of the operational issues associated with commercial vessels, the lawyers in Lilgert's case will look to the case involving the Griffon, a coastguard icebreaker that patrols Canada's Great Lakes.(1) In this case, Captain Stogdale and Third Officer William Bennett were each charged with three counts of criminal negligence causing death and dangerous operation of a vessel causing death as a result of the Griffon's collision with the fishing vessel Captain K.
The Griffon, 234 feet long with a maximum speed of 12.5 knots, set out on March 18 1991 to put seven navigation buoys in place at various locations.
Despite increasing fog conditions, Stogdale ordered Bennett to use the foghorn only if a radar echo was encountered. The foghorn sounded for four to six seconds every two minutes and interfered with communications on the vessel. This was considered a danger to the deck crew who were engaged in the difficult activities of rigging, hoisting and placing the heavy, expensive buoys. Preparatory activities were performed on the ship's deck while it sailed between buoy locations.
Stogdale went below for a lunch break, leaving Bennett as the officer on watch. At the time, the vessel was running on full cruising speed. Three other experienced crew members were also on the bridge. None of them questioned the speed or the fact that the foghorn was not being sounded. At trial, a number of experts agreed that the appropriate speed of the Griffon and its use of the foghorn were matters of judgement, not express rules.
After an unsuccessful day of fishing, the Captain K was running at maximum speed of 8.5 knots. It did not have radar or a radar deflector. It was also not using its foghorn.
The Captain K was suddenly sighted off the Griffon's starboard bow on an opposite course. The Griffon was put full astern, but the vessels collided and the Captain K quickly sank. All three crew were killed.
Bennett, as the officer on watch, and Stogdale, as the master, faced criminal charges as the operators of the vessel at the material time. Although Stogdale was not on the bridge at the time of the collision, the crown took the position that Bennett was following his orders, so Stogdale remained its operator.
The trial judge found that the material causes of the collision were the speed of the Griffon and the failure to sound its foghorn. The court acknowledged that the cavalier navigation of the fishing vessel Captain K was a hazard to itself and other vessels around it. However, it was acknowledged that the conduct of the fishing boat could not excuse the operation of the Griffon if it was criminal.
With respect to the standard of conduct by the accused facing such criminal charges, the court in Stogdale stated as follows:
"The offences charged are criminal negligence. The Ontario Court of Appeal in R v Gingrich and McLean on discussing criminal negligence stated that negligent conduct is elevated to a crime by the magnitude of the omissions or commissions of the accused that show a wanton or reckless disregard for the lives and safety of others. It is stated in Tremeear's Criminal Code, 1993, at page 401 referring to the decision R v Hnatiuk that 'mens rea' (which means guilty mind) is required for both criminal negligence and dangerous driving, but that there is a greater moral fault for criminal negligence, often exemplified by some gross features in the manner of driving such as greatly excessive speed or impairment by alcohol or drugs. In determining whether there has been a marked departure by each of the accused from the norm, I apply the objective standard and I look at all the circumstances in their totality. I find that to establish the offences charged, the Crown must satisfy me that there has been a marked and substantial departure by an accused from the norm."
The trial judge acquitted Bennett on all charges on the basis that it was reasonable for him to rely on the much greater experience of his master with respect to the decisions on speed and whether to sound the foghorn. The trial judge found that Bennett had an honest belief that the orders were lawful and it was reasonable for him not to reject the orders. He did not have the necessary mens rea or mental intent to be convicted of either criminal charge.
At trial, Stogdale was acquitted of criminal negligence, but the judge still convicted him of dangerous operation of a vessel based on his orders. However, that lone conviction was reversed on appeal.
The court of appeal found that if Stogdale's operating orders were not so dangerous or unreasonable that Bennett should have ignored them, the orders themselves could not establish dangerous operation of the vessel in a criminal sense.
The court of appeal found that the dismissal of the charges against Bennett and the conviction of Stogdale on the same facts were inconsistent verdicts and could not be upheld.
The Griffon prosecution may well have affected how charges were laid in the Queen of the North sinking.
In its report on the sinking, the Transportation Safety Board noted that Lilgert and the ferry's quartermaster, Karen Bricker, were engaged in a personal conversation that had lasted 14 minutes before the grounding, and that this was their first shift alone on watch since the end of a "recurrent relationship" between them two weeks before.
The board also found that although Lilgert thought that he had ordered Bricker to make an essential course change away from Gil Island, he had in fact not done so. He then failed to realise that the turn had been missed for 14 minutes. It was determined that the vessel's off-course alarm was not switched on, nor was the danger alarm on the electronic chart system, which would have alerted the bridge crew to their close proximity to Gil Island. There is also evidence that Bricker may have been confused about how to disengage the autopilot when it was realised that the grounding was imminent and a manual change of course was required.
In this context, the crown will have to prove beyond reasonable doubt that Lilgert's actions, or inactions, were accompanied by the requisite mental element of the criminal charge, which, as discussed in Stogdale, may be exemplified by a "gross feature" in the manner of navigation.
However, even if the crown fails to prove criminal negligence, Lilgert may still be convicted of dangerous operation of a vessel causing death. This lesser included offence carries a punishment of up to 14 years' imprisonment and requires only that the navigation of the vessel be a "marked departure" from the appropriate care required in the circumstances.
The charge of criminal negligence causing death and even the lesser charge of dangerous operation of a vessel causing death are rare in Canada. Apart from Stogdale, the reported judgments are cases where the charges were against pleasure craft operators and not commercial seafarers.
Charges of criminal negligence causing death in a quasi-commercial maritime case were laid in R v Broadwith (2007 BCSC 1910).
Broadwith bareboat chartered a houseboat and then sold tickets to passengers for a party on the boat. The houseboat was loaded with too many guests and capsized shortly after leaving the dock. One passenger died. In describing the charges, Justice Beames noted as follows:
"Negligent driving or negligent operation of a vessel 'can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless [operation of a vessel, under the Canada Shipping Act] to dangerous driving' (R v Hundal, 1993 CanLII 120 (SCC),  1 SCR 867 at para 35), and culminating in criminal negligence which is conduct that shows a wanton or reckless disregard for the lives or safety of other persons (para 35)."
The defendant's behaviour was found not to have reached the criminal end of this continuum and, as with the officers of the Griffon, he was ultimately acquitted of all charges.
The crown may already have relied on the Griffon decision by electing not to charge other officers on the ferry when it charged Lilgert. The Ontario Court of Appeal held that if Bennett had taken his orders from Stogdale and followed those orders without concern, and the trial judge had dismissed the charges against Bennett on the basis that his actions or inactions failed to warrant a conviction for dangerous operation of a vessel, it was unreasonable for the trial judge also to hold that Stogdale's behaviour constituted dangerous operation of a vessel. Justice Austin held that the divergent verdicts against the two officers could not stand:
"As both the appellant and Bennett were operators of the Griffon at the time of the collision, and by Bennett's own admission he had authority to change the operation of the Griffon and chose not to do so, a position which implicitly recognized that the appellant's orders were not unreasonable, the results at trial represent inconsistent verdicts."
This risk of divergent verdicts does not arise when only one officer is charged. The crown, by not charging Bricker or the second officer and alleging that either of them was also an operator of the vessel, has made it less likely that a verdict against Lilgert will be overturned for analogous reasons to the verdict against Stogdale.
Whether the human error allegedly committed by Lilgert was so egregious as to be criminal remains to be seen. In the meantime, maritime lawyers will be keeping a close watch on the progress of what is likely to be a very important case.
For further information on this topic please contact M Clete Purcell or Shelley Chapelski at Bull, Housser & Tupper by telephone (+1 604 687 6575), fax (+1 604 641 4949) or email (email@example.com or firstname.lastname@example.org).
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