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Sinking of B.C. ferry 'honest mistake,' not criminal action: defence

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(Globalpost/GlobalPost)

VANCOUVER - Karl Lilgert acknowledges he was in charge of the Queen of the North passenger ferry in the dying minutes of its final voyage seven years ago.

Lilgert even admits it may have been his own mistakes that caused the ferry to miss a scheduled turn and sail into a remote island, sending the ship sinking to the bottom of the ocean and leaving two passengers missing.

But none of that makes Lilgert a criminal, his lawyer told a jury Thursday, as the defence presented its closing arguments at his criminal negligence trial.

"Clearly — and he admits this — he must have made mistakes, but they were honest mistakes," defence lawyer Glen Orris told a B.C. Supreme Court jury, which has been hearing evidence since January.

"If we go to work and we try to do our work and we make mistakes, honest mistakes, or even for a moment we are careless and there are catastrophic results, that is not a crime."

Orris told the jury there was no evidence to indicate the sinking was anything more than a tragic accident that happened despite Lilgert's best efforts to navigate the ship.

He dismissed the notion that Lilgert's recent affair with the other crew member on the bridge, quartermaster Karen Briker, had anything to do with what happened.

He used his final submissions to deliver a scathing indictment of BC Ferries, blaming the former Crown corporation for unreliable equipment and poor staffing policies that he alleged placed cost ahead of public safety.

Orris also suggested the Crown had failed to prove the two missing passengers died on the ship in the first place.

Lilgert was on the bridge as navigating officer in the early hours of March 22, 2006, when the Queen of the North struck Gil Island and sank. He was charged with criminal negligence causing the deaths of two passengers, Gerald Foisy and Shirley Rosette, who were never seen again and presumed drowned.

Orris told the jury the evidence presented at trial indicated Lilgert was doing his best to navigate the ship around Gil Island as he coped with rough weather while also avoiding one or possibly two other vessels he believed were nearby.

Orris said that job was made considerably more difficult due to several pieces of inadequate equipment on the bridge, including an electronic chart system that was too bright to operate at night and was frequently inaccurate, and a recently upgraded radar system that was actually worse than the technology it replaced.

He also said staffing policies within BC Ferries, which required a minimum of only two crew members aboard the bridge, were insufficient and left Lilgert without the help he needed.

The ship's equipment and staffing policies were dictated by BC Ferries' desire to save money, Orris suggested, rather than what was best for the ship and its passengers.

"These people, Mr. Lilgert and other members of the crew, were operating on that bridge on the basis of the restrictions that BC ferries had imposed on them," said Orris.

"Why not err on the side of safety instead of erring on the side of cost?"

He noted BC Ferries has made a number of changes since the sinking, including now requiring at least three crew members on the bridge at all times, which he said was akin to an "admission" by the corporation that the old rules were wrong.

Lilgert testified in his own defence, telling the jury he was watching the radar and ordering course corrections to keep the ferry away from Gil Island, but, for reasons he couldn't explain, the ship suddenly collided with land.

He also insisted his sexual affair with Briker had nothing to do with the collision. He and Briker both said there were no hard feelings about the affair, which ended several weeks earlier after both of their spouses found out.

The Crown accused Lilgert of conspiring with Briker to come up with the story he told the jury, suggesting he was distracted because he was either having sex with Briker or arguing with her.

Orris told the jury the affair was irrelevant to the sinking. He pointed to testimony from other crew members, who recalled that Lilgert told them shortly after the collision that he was attempting to avoid a fishing boat — before he would have had any time to collude with Briker.

The Crown also said Lilgert never attempted to make any changes to the ship's course, citing data recovered from the ferry's navigation system, and rejected Lilgert's claim that there were any other ships in the area.

The trial spent considerable time attempting to determine what exactly happened to Foisy and Rosette — specifically, whether they died on the ship. Their bodies were never recovered, and the trial heard from several surviving passengers who thought they may have seen them in Hartley Bay, the First Nations community where survivors were taken.

Among the many facts the Crown must prove is that Foisy and Rosette did, in fact, die in the sinking. Orris said the Crown hadn't done that.

"If you find that Mr. Foisy and Ms. Rosette are dead, then you must find it didn't happen on the boat, or at least have a reasonable doubt," Orris told the jury.

"And if it didn't happen on the boat, then really it ends the matter, as far as we're concerned."

The Crown was expected to present its final submissions on Friday, with the case heading to the jury next week.

Lilgert was charged with two counts of criminal negligence causing death. The jury will also be able to consider the lesser charge of dangerous operation of a vessel.

http://www.globalpost.com/dispatch/news/the-canadian-press/130502/sinking-bc-ferry-honest-mistake-not-criminal-action-defence