Was drowning built into the school system?
When strict safety rules clash with the aim of offering equitable access, goals can get compromised, observers say
Believing in a “society of equal opportunities,” Toronto teacher Nicholas Mills wanted marginalized students to have a life-changing canoe trip so he ignored provincial rules that say those who fail a swim test couldn’t go.
Tragically, 15-year-old Jeremiah Perry drowned on one of those trips to Algonquin Park, and a Toronto judge is deciding whether Mills’ rule-breaking was criminal and responsible for the boy’s death. (Her ruling was tentatively set for Friday, when it was delayed to Oct. 6.)
Mills, 57, who estimated he has led 7,550 kilometres’ worth of canoe trips over the past 40 years, is the only one — at least publicly — shouldering the blame for Perry’s death on July 4, 2017. Said one lawyer following, but not involved in the case: “Fault is an interesting concept and, like talcum powder, settles on many when things blow up. The person closest to the explosion gets the most dust.”
Outside court, however, the question of what went wrong already has a broader answer: Within the outdoor adventure sector, there’s general consensus Mills was wrong to let the boy enter the water without a life-jacket, but there’s also agreement that the reasons behind Mills’ actions point to larger, more systemic problems.
“We need to look beyond blaming the operator, in this case, a teacher,” said Jeff Jackson, a professor in the Outdoor Adventure programs at Algonquin College in Pembroke. “We need to look at the system and look at all the factors that created the environment for this teacher to make a mistake.”
Mills is a “lightning rod for many, many of us who do this kind of work,” added Joe Pavelka, a professor of ecotourism and outdoor leadership at Mount Royal University in Calgary.
“If you do not have an institutional landscape that truly supports these extraordinary programs … then what you have are impassioned, well-intentioned leaders who are trying to make do. As soon as you do that, you open the door to compromises, and compromises sometimes can be addressed, and sometimes they end in tragedy.”
In a document filed in Ontario Superior Court, Jeremiah Perry’s father, Joshua Anderson alleged his son’s death occurred as a result of the combined negligence of Mills, the Toronto District School Board, C.W. Jefferys Collegiate Institute, the school’s former principal Monday Gala and Sparrow Lake United Church Camp, where a pre-trip swimming test was held.
In a January 2019 settlement, the parties agreed to pay $30,800 to be split by Perry’s two half-siblings, both minors, in damages for the “loss of care, guidance and companionship” they would have received and enjoyed had Perry not drowned. Perry and his brother moved from Barbados to Toronto in 2016.
The settlement also says Anderson will no longer be eligible to commence claims against the respondents. The personal injury lawyer who handled the action declined to make any comment related to the case, including whether any other money was paid out to the family.
During Mills’ trial, the teacher testified that then-principal Gala “was completely aware” that he had been operating canoe trips outside the bounds of the normal guidelines since 2013. Gala denied this, and Mill’s defence suggested this amounted to him “shading the truth” to protect his job. (Gala left C.W.
Jefferys and is a principal at another west-end Toronto high school.)
Several outdoor rec insiders say they believe the TDSB superintendent’s office should have known more about the “high risk, off-site excursion,” and suggested the board only paid attention when something bad happened. For its part, the TDSB has always maintained blame lies with Mills, who did not follow “critical safety” procedures.
Perry’s drowning stoked long-standing resentment toward the Ontario Physical Health Education Association (OPHEA). The organization is a registered charity that manages the Ontario Physical Activity Safety Standards in Education, which “represent the minimum safety standards for risk management practice for school boards in Ontario.”
Those standards apply to everything from climbing, cricket and curling to spikeball, and squash. A sample guideline states: synchronized swimmers must secure long hair with a device that “must not present a safety concern.”
OPHEA says the standards are intended to “provide the safest possible environment in which all students, regardless of their diverse backgrounds, can be physically active.”
Mills testified he thought OPHEA’s canoe tripping guidelines were too “onerous” and did not reflect the practices in the real-world canoeing community. During emotionally charged testimony, Mills suggested he’s far from the only well-meaning teacher who’s incentivized to bend the rules to provide equitable access to marginalized or racialized groups.
Most “on the ground” gym teachers looked at OPHEA “as a guideline, not hard and fast rules,” Mills testified.
Former Toronto phys-ed teacher Jalynn Bosley knows firsthand the challenges.
“I saw how hard it was to make all of this happen. That’s sort of the root of this business,” says Bosley, founder and executive director and owner of ALIVE Outdoors. The Toronto-based organization supports private and international schools get their students outdoor education experiences “and put into the hands of experts.”
“Tons of TDSB teachers … want to do these trips, it’s just hurdle, after hurdle, after hurdle,” said Bosley.
Nevertheless, as a TDSB teacher, Mills was required to follow the rules, prosecutors said during the seven-week trial.
The Crown argued he neglected to do this by not communicating the swim test results with students and parents and by allowing half of the 30 students who failed (including Perry) to go to Algonquin.
It’s unfortunate that while Mills broke OPHEA guidelines because he felt they were too rigid, things have gotten more restrictive as a result, said Bob Henderson, a retired McMaster University outdoor education professor. “He’s a renegade guy and we’re all suffering from it.”
Soon after Perry’s death, the TDSB announced policy changes, including the need for a second swim test at the excursion site. Henderson called that nonsensical, particularly if a canoe trip is scheduled during the spring or fall when the water is frigid.
“We are effectively locking kids out of school canoe trips with the stringent requirements,” he explained.
That makes sense from the perspective of policymakers, says Pavelka, Mount Royal’s ecotourism professor. “They want to protect themselves. That’s part of human nature. You create a really high bar because you’re worried about liability coming back to you. And then you can walk away.”
Swim tests are by no means universally regarded as the best way to prevent people from drowning. And there’s controversy over what constitutes an effective swim test, and whether it should be in a lake or pool.
Moreover, swim tests present an obstacle for non-swimmers to participate in canoe trips. For some observers, that may seem reasonable, but the outcome also undermines OPHEA and school board efforts to provide equitable access to outdoor education, said David Goldman, a retired teacher, canoeist and member of a grassroots organization Get Kids Paddling.
“Kids don’t need to know how to swim in order to go on a canoe trip. What they need and what we need from them is that they’re not afraid of the water … and that they’re prepared to wear a properly fitting, personal flotation device.”
For decades, Canadian kids grew up with swimming lessons. We can no longer make that assumption with the country’s changing and diverse population, says Pavelka. “The question is: Do institutional structures recognize these changing circumstances?”
Perry’s mother testified she could not afford swim lessons for her boys in Barbados. In Toronto, there are long waitlists for City of Toronto aquatic programs.
Chris Markham, executive director and CEO of OPHEA, said he was unable to respond to the Star’s questions about outdoor education rules, including swim tests, while the trial is still active. But he added in an email: “The standards are intended to assist educators in fulfilling their obligation … to provide the safest possible environment in which all students, regardless of their diverse background, can be physically active.”
If OPHEA is committed to that goal, insiders hope it will do what other provinces have done and drop the swim test requirement for paddling, which “makes things difficult for administrators and outdoor leaders ... who really just want to make the opportunity available for everyone,” said Steven Gottlieb, executive director of Boundless outdoor education school in eastern Ontario.
Instead of swim tests, ensuring nonswimmers wear a life-jacket whenever they’re near the water is a simple solution and saves lives, Gottlieb wrote in an email. Personal flotation devices are “the low hanging fruit of risk management policy for water-based activities as an alternative to those who do not possess swimming skills,” he wrote.
ALIVE Outdoors has many “different policies to keep safety in tact that don’t require swimming ability” — though swim tests will be conducted if requested by a school, says Ryan Howard, ALIVE’s director of research, risk and innovation. He’s another believer that life jackets, not “exclusionary” swim tests, keep kids safe, and notes it’s rare that drowning fatalities are tied to canoe or kayaking.
What research does show is anytime someone is wearing a life-jacket or if they’re being supervised by an appropriate person, “their chances of drowning are minimal, almost negligible.”
Life jackets are a no-brainer, agrees Henderson.
But that doesn’t mean Mills was justified circumventing OPHEA rules so he could get kids to Algonquin. “With that many non-swimmers, I’d be looking for another experience other than canoeing,” perhaps hiking or camping, said Henderson.
Pavelka says he would allow nonswimmers on trips as long as they wore life jackets. But faced with such a large group of non-swimmers, he wonders if Mills had enough authority and “support” to ask for two trips, “one for kids who can swim, and one for those who can’t.”
TDSB teacher-led canoe and camping trips have continued since Perry’s drowning in 2017 (pre-pandemic) using the revised excursion policy and procedures policy as well as all OPHEA guidelines, TDSB spokesperson Ryan Bird wrote in an email.
“While there were specific requirements in place at the time — that we know were not followed — we have further strengthened our requirements around water-based activities, including mandatory Principal sign-off on swim test results and the sharing of all results with parents/guardians prior to any activity taking place.”
Bird said Mills has been on unpaid leave since 2017. Asked if he would be reinstated if acquitted, Bird wrote: “Once the judge provides a ruling, the TDSB can complete the final piece of its investigation and can move forward with next steps.”
“We need to look at the system and look at all the factors that created the environment for this teacher to make a mistake.”
JEFF JACKSON
PROFESSOR IN THE OUTDOOR ADVENTURE PROGRAMS AT ALGONQUIN COLLEGE