Canadian employers and employees are subject to unique and far-reaching Criminal Code provisions regarding negligence causing bodily injury or death to workers and to others, arising out of the performance of work. The first jury trial ever under these provisions has delivered a significant conviction in a high-profile case.
The Queen of the North Disaster
B.C. Ferries' vessel The Queen of the North had 101 souls on board when it ran aground shortly after midnight on March 22, 2006. The ferry sank into the waters of Wright Sound. Two passengers were never found and were presumed dead. A subsequent internal investigation by B.C. Ferries found that required course changes were not made, driving the boat at full speed into Gil Island. B.C. Ferries blamed the mistake on human error. A 2009 Transportation Safety Board ("TSB") investigation report cited inadequate navigation practices by the crew.
Seven years later, the B.C. Supreme Court has come to the same conclusion: Karl Lilgert, navigation officer on the Queen of the North, was convicted of two counts of OHS criminal negligence on May 13, 2013, following 6 days of jury deliberation.1 The trial lasted over 4 months.
Lilgert was charged with criminal negligence causing death, four years after two people drowned when the Queen of the North veered off course and sank off the northern tip of Vancouver Island. Fifty-seven (57) passengers and forty-two (42) crew members abandoned ship before it sank. Two people — Shirley Rosette and Gerald Foisy — were never found and were declared dead. This is the first jury trial for an individual in an occupational health and safety related criminal negligence case since the Bill C-45 amendments to the Criminal Code in 2004. The Justice presiding over the case was B.C. Supreme Court Justice Sunni Stromberg-Stein.
During the course of the trial, it was determined that Lilgert was alone on the bridge with helmswoman Karen Briker when the vessel ran aground. Jurors heard testimony that Lilgert and Briker had previously had an affair. The Crown argued that Lilgert had 22 minutes to make a course correction, and that Lilgert and Briker were involved in a personal interaction at the time of the crash resulting in Lilgert's inattention and the cause of the crash.2
The Defence argued that the collision was the result of a combination of factors beyond Lilgert's control, including bad weather, inadequate training, unreliable equipment, and inadequate staffing policies.3 Lilgert testified that he thought he was keeping a distance from the islands based on readings from the ship's instruments, and that he only saw the island when it was too late to make the necessary correction.
At the sentencing hearing set for June 21, 2013, Lilgert faces possible life imprisonment. However, life imprisonment is an unlikely outcome, and he is more likely to be sentenced to a set period of jail time or probation. Currently, no individuals have been imprisoned following convictions for occupational health and safety related criminal negligence. Lilgert's lawyer stated that he plans to appeal the conviction, citing issues with the jury charge as a primary ground of appeal.4
Individual Responsibility and Liability
Section 217.1 of the Criminal Code imposes a duty on individuals and organizations to take "reasonable steps" to prevent "death" or "bodily harm" to a worker.5 This duty dovetails with ss. 219/220/221 of the Criminal Code (general criminal negligence provisions) to create the offence of occupational health and safety criminal negligence.
The law elevates OHS liability and stigma by imposing criminal penalties and a criminal record on the offender. This law supplements, rather than replaces, existing provincial and federal OHS legislation. It has application for both federal and provincial employers.
OHS Criminal Negligence is established where the individual, undertakes to direct how another person does work and:
- contravenes his or her duty to take "reasonable steps" to prevent bodily harm (s.217.1), and
- shows wanton or reckless disregard for the lives or safety of others (s.219)
An individual may be convicted of OHS criminal negligence if the Crown can prove beyond a reasonable doubt that there was a breach of duty to take "reasonable steps" to prevent the incident and that the individual showed "wanton or reckless disregard" for the safety of the worker. Generally, it must be shown that the individual had knowledge of the risk. However, it is important to remember that there is no need for the individual to specifically intend the harm that results in order to be convicted of such a charge.
Lessons for Organizations operating in Canada
Employers must be aware that neglect of OHS duties can lead to unlimited fines for the corporation and possible fines and jail time for individuals. Employers, supervisors, officers and directors carry a real risk of accountability. In order to minimize the risk of prosecution and conviction, organizations must be proactive in assessing and managing workplace risk.
The first and most effective method of complying with the law, is to ensure that the people performing work are trained, regularly re-trained, supervised and regularly assessed with respect to the performance of their duties. This is particularly important in safety-sensitive positions where the possibility of error poses risk not only to those doing the work, but also customers and other members of the public. Following that path not only minimizes the actual possibility of error, it also helps an organization insulate itself from culpability, if an error is occurred.
It is impossible to really prepare people for risk, however, unless those risks are regularly re-assessed. This requires a commitment on the part of organizations to re-examine their business practices in search of potential risks and errors, which in turn means investing time and money.
No amount of money can make for better weather or guarantee that key personnel will pay attention at a crucial moment. However, the multiple examinations of the Lilgert case show that complacency, a failure to ensure equipment is in ideal working and unpreparedness for an emergency can have fatal consequences. The unique and dramatic facts of the Queen of the North disaster do not alter the universal significance of its causes. The task of organizations is not to be perfect, but to be duly diligent, and that includes examining how it can reduce the possibility of disaster by identify risks, altering practices and equipping people to make better decisions.
1 "Mariner convicted in Queen of the North ferry death to appeal verdict", May 14, 2013 by Rod Mickleburgh.
2 "Canada navigator guilty of two deaths in 2006 ferry crash". May 14, 2013
3 "Karl Lilgert to Appeal Queen of the North Conviction" by the Canadian Press. May 14, 2013.
4 "Karl Lilgert to appeal conviction" by Andrea MacPherson. May 14, 2013.
5 217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
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