On March 22, 2006, the ferry “Queen of the North” ran aground and sank in Wright Sound, British Columbia.   Tragically, two passengers were lost and presumed drowned.

The ensuing Transportation Safety Board investigation concluded that the ferry’s navigation officer, Karl Lilgert, had at the time of the accident been engaged in conversation with Karen Briker, a female quartermaster with whom he had recently been involved in a romantic relationship, and that he had failed to make a critical course change before the ferry ran aground.

The matter was also investigated by the RCMP, and Mr. Lilgert was subsequently charged with criminal negligence causing death.

At trial, the Crown argued that Mr. Lilgert had fabricated testimony about making course corrections to avoid a smaller vessel prior to the ferry running aground, and submitted that electronic records demonstrated that he had not altered the ferry’s course at any time during the twenty (20) minutes preceding the crash.   In addition, the Crown introduced evidence of Ms. Briker’s presence on the bridge, and asserted that Mr. Lilgert was distracted at the time of the accident.

On May 13, 2013, the jury found Mr. Lilgert guilty on two (2) counts of criminal negligence causing death.  At the subsequent sentencing hearing on June 24, 2013, Madam Justice Sunni Stromberg-Stein held that:

“It is clear the jury rejected Mr. Lilgert’s evidence that he was carrying out his duties to the best of his abilities. . .  It is clear that the jury found that there was an extensive period of time where Mr. Lilgert did not follow any of the procedures, steps or policies of a professional navigator.”

and

“I do not need to speculate on what Mr. Lilgert was doing on the bridge that night.  I know what he was not doing. He was not doing his job.”

Her Honour characterized Mr. Lilgert’s negligence as “egregious” and an “extreme and catastrophic dereliction of his duty”, and she proceeded to sentence Mr. Lilgert to four (4) years’ imprisonment and to impose a ten (10) year ban on his operation of sea-going vessels.

At present, Mr. Lilgert is free on bail, and his lawyer has announced an intention to appeal the guilty verdict.

This decision represents a significant (albeit indirect) addition to the sparse body of case-law that has grown around the Bill C-45 amendments to the Criminal Code of Canada, which were enacted in 2004 to expand the scope of criminal liability for both corporations and individual supervisors in the occupational health and safety context.

In that regard, in the nearly 10 years that Bill C-45 has been in force, only a handful of criminal negligence prosecutions have proceeded under the amendments that it introduced.  Of those, only one has resulted in a conviction (as opposed to an acquittal or the entering of a guilty plea); and apart from the defendant in that case receiving a suspended sentence of two (2) years less a day, no Bill C-45 prosecution has resulted in any individual being sentenced to imprisonment.

Although the charges against Mr. Lilgert were not characterized as being in respect of a “workplace violation” per se, and although he was not prosecuted under Bill C-45, the fact is that he was convicted of criminal negligence arising out of work-related circumstances.

Accordingly, this decision (and the results of Mr. Lilgert’s appeal) will no doubt be a point of reference for future Bill C-45 cases in which imprisonment represents a potential outcome.

Although the fact remains that criminal conviction and imprisonment will represent potential outcomes in only the very few “extreme and catastrophic” occupational health and safety cases that are dealt with under  Bill C-45 (i.e. rather than under provincial occupational health and safety legislation, which is more typically relied upon, and pursuant to which provincial prosecutors can seek both fines and terms of imprisonment), Madam Justice Stromberg-Stein’s sentencing decision certainly indicates that imprisonment is not merely a notional consequence in Bill C-45 cases.  Rather, Her Honour’s ruling suggests that imprisonment will very much be “on the table”, particularly in circumstances where (as appears to have been the case here) a guilty party has repeatedly denied culpability and has offered evidence and explanations that are disbelieved by the court.

Jason Beeho