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Trend toward criminal liability in transportation industry

In decades past, transportation accidents, especially those involving fatalities resulted in detailed regulatory investigations by public safety regulators. The most serious transportation accidents often resulted in public hearings and recommendations to improve the safety of the mode of transportation, be it road, rail, sea or air. Public hearings also resulted in legislative and regulatory improvements, increased budgets for transportation regulators, and, on balance, improved overall public safety.

However, more recently the trend is a greater inclination on the part of police, prosecutors and transportation regulators to conduct criminal investigations and lay charges under the Criminal Code. A rise in criminal investigations in this area has had a concurrent effect of increasing the number of criminal prosecutions, trials and criminal convictions. Convictions result in criminal records, jail terms and the ending of many careers.

A recent example is the prosecution of Karl-Heinz Arthur Lilgert in the sinking of the Queen of the North ferry, which raises important issues about the role of criminal prosecutions in the transportation sector.

In 1990, Lilgert began working for the British Columbia Ferry Services. He moved up the ranks to a fourth officer on the Queen of the North ferry. At 12:21 am, on March 22, 2006 — 16 years after he began working for BC Ferries — Lilgert was navigating the Queen of the North when it struck Gil Island, off the coast of B.C. The ferry sank 430 meters in about one hour. Of the 100 passengers and crew, 98 successfully abandoned ship and were rescued. Tragically, passengers Gerald Foisy and Shirley Rosette were presumed drowned.

The B.C. government held public hearings into the cause of the sinking of the Queen of the North. After the highly publicized public hearings, and four years after the sinking of the ferry, Lilgert was charged with criminal negligence causing the deaths of passengers Foisy and Rosette. Although the Queen of the North sank after the Bill C-45 amendment the Criminal Code — which resulted in a formula for establishing guilt for organizations and easier conviction of corporations — there was no specific reference to the new duty under section 217.1 in the charges laid against Lilgert. The charges simply alleged a contravention of section 220(b) of the code.

At trial, the prosecution was required to prove, beyond a reasonable doubt, the following three elements of the offence:

• Lilgert improperly operated or navigated the Queen of the North ferry which, as the navigating officer, he had a legal duty to do

• he improperly operated, navigated, and safely directed the Queen of the North ferry, demonstrating wanton or reckless disregard for the lives or safety of others

• his conduct caused the death of two passengers.

On June 24, 2013, a jury found Lilgert guilty. A jury does not provide reasons for its decision; however, in the sentencing hearing held before the trial judge, Justice Stromberg-Stein, a number of factors relating to the evidence were reviewed by the court.

Specifically, seven errors were identified in the reasons for sentencing, each of which also related to Lilgert’s legal responsibility ultimately leading to his conviction:

• he failed to slow down during heavy weather for restricted visibility

• he failed to call a second officer for assistance on the deck

• he failed to call the master, according to standard practice and BC Ferries regulations

• he took no steps to avoid the collision by attempting to communicate with other vessel traffic

• he failed to notify the engine room to go on standby

• he failed to call the standby deckhand for assistance

• he failed to go to hand steering and left the vessel on automatic pilot.

Lilgert testified that he was navigating the ship the best he could in inclement weather, and was challenged by unreliable equipment. Justice Stromberg-Stein held the following:

“He failed to navigate the ferry. In the result, he drove the Queen of the North, on autopilot, at full cruising speed, into Gil Island with catastrophic circumstances.”

In the sentencing phase of the trial, the consequences of the errors of Lilgert’s ill-fated voyage were considered for the purpose of assessing an appropriate penalty. His legal team argued that this was a unique circumstance, where Lilgert had done everything reasonable in the circumstances, and should not be given a term of imprisonment.

On the other hand, the prosecution was able to persuade the court that the criminal negligence of Lilgert was on the higher end of moral responsibility. In particular, the crown persuaded the court to consider the aggravating factors, including that the scope and duration of his negligence was high, his experience and knowledge placed him in a position of trust, he was a professional mariner and that the death of two passengers was foreseeable.

Ultimately, Lilgert received a four-year jail term, two years for each of the two offences causing the deaths of passengers Foisy and Rosette, to be served concurrently.

Accidents involving the passengers of any public transportation system evoke serious emotional responses and sustained public and media outcry. As a result, the Queen of the North incident has substantially changed the BC Ferries procedures, increasing the number of officers on the bridge of a ferry at all times, and also ensuring that members of the crew are not involved in personal relationships to avoid potential interpersonal issues and conflicts of interest.

Clearly, we have an emerging trend in the transportation industry that if an accident occurs and if criminal charges are laid, they will tend to be against the individual worker — the operator of the mode of transportation, be it truck, train, sea vessel or aircraft. But if it is an occupational health and safety regulator who examines the facts and this results in occupational health and safety regulatory charges, it is more frequently the employer, rather than the individual worker or operator of the mode of transportation who is charged and prosecuted.

The mindset of police and criminal investigators is to focus primarily on individual responsibility. This individual criminal liability remains the traditional role of criminal law in Canada. Although the Bill C-45 was passed as an amendment to the Criminal Code, there have been very few prosecutions of corporate employers under the Code, and none in the transportation industry.

The case of Lilgert and the Queen of the North ferry incident indicates criminal law liability will be brought on operators of various modes of transportation where their alleged negligence has resulted in harm, specifically, with regards to the members of the travelling public.

To reduce criminal exposure, workers in the transportation industry must take their responsibilities with the public and their employers very seriously and corporate employers must properly train, establish procedures, supervise and ensure transportation equipment is properly maintained in the course of its operation. The Lilgert incident reinforces the importance of both workers and their corporate employers in the transportation industry in understanding and complying with all regulatory and criminal standards of behaviour. This will help ensure the safety of the travelling public in a world that will not tolerate accidents, injuries or fatalities.

Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in occupational health and safety, environmental, workers' compensation, and workplace risk management litigation. He advises and represents clients in regulatory and corporate criminal investigations and charges. Norm received his Canadian Registered Safety Professional (CRSP) designation in 1998, making him the first practising lawyer in Canada to achieve the CRSP designation.

This article was co-authored by Deanah Shelly, an associate at Fasken Martineau DuMoulin in Toronto. She can be reached at dshelly@fasken.com or (416) 868-7010.

Norm Keith

Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information.
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