VANCOUVER - The judge overseeing the trial into the Queen of the North ferry sinking has told jurors they don't need to read Karl Lilgert's mind to find him guilty of criminal negligence causing death, if they find he should have recognized the risk his actions posed to people on board the ship.
Lilgert is on trial for the deaths of two passengers, Gerald Foisy and Shirley Rosette, who haven't been seen since the ferry struck an island and sank off British Columbia's north coast in March 2006. The judge continued her instructions to the jury Tuesday for the second day.
B.C. Supreme Court Justice Sunni Stromberg-Stein outlined the offence of criminal negligence causing death, explaining that the Crown must prove Lilgert's actions showed a "wanton and reckless disregard" for the safety of others and represented a substantial departure from what a reasonable person would have done.
Stromberg-Stein told the jurors much of that comes down to risk: should Lilgert have known his actions on the ship's bridge, as it sailed into an island in the middle of the night, put the ship and its passengers at risk?
"The focus is the failure to direct the mind to a risk which a reasonable person would have appreciated," Stromberg-Stein told the 12 jurors, who have been hearing evidence since January.
"The focus isn't what was actually in his mind, but what should have been there had he acted reasonably."
The jury has heard from dozens of witnesses describe what happened that night, including Lilgert himself, as well as experts who have criticized Lilgert's failure to steer the ferry clear of a remote island as an "extreme and catastrophic dereliction of duty."
Lilgert said he was doing everything he could to steer the ship through rough weather and around as many as two nearby boats, frequently checking the ship's radar and navigation systems while ordering course changes to keep the ferry a safe distance from Gil Island. Lilgert's lawyers have also suggested BC Ferries, the former Crown corporation that operates the province's ferry system, should be blamed for saddling the ship's crew with unreliable equipment, poor training and inadequate staffing policies.
The Crown has alleged Lilgert simply wasn't navigating the ferry, suggesting he was distracted from his duties by his former lover, quartermaster Karen Briker, who was the only other person on the bridge. The Crown has also alleged Lilgert fabricated the story he told the jury of his efforts to navigate the ferry.
Stromberg-Stein told the jurors even if they conclude Lilgert made a mistake, that doesn't make him guilty of criminal negligence.
"Simple carelessness or honest mistakes are generally not criminal," said Stromberg-Stein.
"Consider, was Mr. Lilgert's conduct a mere departure from the standard of care expected of a reasonable person in Mr. Lilgert's circumstances or (was it) markedly beyond mere carelessness?"
That point was central to the defence's final submissions, presented last week, in which Lilgert's lawyer told the jury Lilgert was an experienced mariner doing the best he could in the circumstances. Defence lawyer Glen Orris urged the jury not to punish Lilgert for "honest mistakes."
Stromberg-Stein told the jury they must answer several questions:
— Did Lilgert's conduct show a "wanton and reckless" disregard for the safety of the people aboard the ferry?
— Did Lilgert — either by improperly navigating the ship or failing to navigate as he should have — demonstrate a "marked and substantial" departure from what a reasonable person would have done in the circumstances?
— Are the ferry's two missing passengers dead, and did Lilgert cause their deaths?
Stromberg-Stein said the jury must be satisfied beyond a reasonable doubt that the answer to each of those questions is Yes in order to convict Lilgert of criminal negligence causing death.
The jury will also be able to consider the lesser charge of dangerous operation of a vessel.