THE COURT CASE AGAINST AN ONTARIO TEACHER CHARGED WITH CRIMINAL NEGLIGENCE AFTER A STUDENT DROWNED ON A SCHOOL TRIP LAST SUMMER WILL BE A TRICKY AND COMPLICATED PROSECUTION, SAY LEGAL EXPERTS.
STUDENT DROWNED Criminal negligence alleged
The court case against an Ontario teacher charged with criminal negligence after a student drowned on a school trip last summer will be a tricky and complicated prosecution, say legal experts.
The case hinges on the degree to which the teacher’s behaviour was not only out of the ordinary, but whether it was substantially different from what a reasonable person would have done.
Another key component will be whether the drowning was just a terrible accident or whether or not the accused’s actions led to the boy’s death.
“In isolation, you’re like, ‘Man that’s terrible, there was a death and someone should be responsible for it.’ But the question that we as society need to ask is, ‘Should that be through the criminal law?’ ” said Lisa Silver, a University of Calgary law professor.
Ontario Provincial Police said Thursday that Nicholas Mills, 54, of Caledon, Ont., has been charged with criminal negligence causing death. Police said Mills, a certified teacher for 20 years, was responsible for planning a trip to Ontario’s Algonquin Park last July where C.W. Jefferys Collegiate Institute student Jeremiah Perry, 15, disappeared underwater and never resurfaced. Police divers found his body the next day.
Weeks later, the Toronto District School Board said 15 of the 32 students from the college had not passed a mandatory swim test. John Malloy, the board’s director of education, said an initial swim test took place in a lake and that students who did not pass the first test should have been required to take a second test at school. But, Malloy said, the second test was neither provided nor offered.
“The OPP conducted a thorough and professional investigation, which included over 100 interviews, along with the execution of one search warrant and four production orders,” said Ontario Provincial Police Const. Catherine Yarmel announcing the charge against Mills.
Silver described criminal negligence as a “complicated charge,” a serious one that’s punishable by up to life in prison.
The Crown will have to show beyond a reasonable doubt a few things en route to securing a conviction.
“You’re not supposed to start with the consequence — death — and work back, you’re supposed to start with the acts and work forward,” Silver said. Yes, the Crown will have to prove death, but they’ll also have to show that the accused’s conduct was “a significant contributing cause of death,” she said.
That’s the hard part. “The death part unfortunately is not hard to prove,” Silver said.
Peter Sankoff, a University of Alberta law professor, added: “What the courts do is try and focus on the conduct and they say, ‘Well, was the conduct so risky in the way in which it was done and so beyond what the ordinary person would do in terms of putting in precautions that this person deserves to face criminal sanctions?’ ”
He said there were two ways of being criminally negligent. The first was by doing something — driving like a maniac and killing somebody — and the second was by failing to do something — a lapse in attention while driving that kills somebody — that was your duty to do.
This duty, Silver said, is a failure to fulfil a duty imposed by law. “Typically the Crown will have to look for a statutory duty that the accused failed to do,” Silver said. For parents, that could be failing to provide the necessaries of life, for example. It’s less straightforward for others.
There are two factors in proving this failure, once the specific duty in question is sorted out, Silver said: in failing to live up to that duty, the accused must show “wanton or reckless disregard for the lives or safety of others” and “that conduct has to be a marked and substantial departure from what a reasonable person would have done in those circumstances.”
This is where, Sankoff said, a baseline of reasonable behaviour will have to be established in court, and then the degree to which the accused’s behaviour departed from that standard, and where it would have to be so out of the ordinary as to justify criminality.
“What really controls this is the basic idea that we don’t normally punish people for accidents. We don’t,” he said.
Toronto Mayor John Tory said Thursday that communities “have an obligation to keep kids safe.”
“I went to the funeral for that boy and I met his family and I stood next to his casket quite frankly and it was just one of those things where you said to yourself that kind of thing shouldn’t happen,” Tory said.
Mills is scheduled to make his first court appearance in Toronto on Sept. 11.
WE DON’T NORMALLY PUNISH PEOPLE FOR ACCIDENTS. WE DON’T.