Jury retires to deliberate verdict at trial for crew member on sunken B.C. ferry

VANCOUVER – Karl Lilgert’s future will largely depend on whether a jury believes his account of what happened the night the Queen of the North passenger ferry struck an island and sank or a piece of equipment that was retrieved from the ship’s wreckage hundreds of metres below the ocean surface.

Lilgert, who was charged with criminal negligence causing the deaths of two passengers, told jurors he was doing everything he could to navigate the ship through rough weather and around two nearby boats off British Columbia’s northern coast. He ordered at least two turns as the ship was pushed off course by strong winds, he told the jury, checking to ensure the ferry steered clear of nearby Gil Island.

The ship’s electronic chart system, in contrast, recorded a straight line from the entrance of Wright Sound, where the ferry was scheduled to make a left turn, until it struck Gil Island. The data, recovered from the sunken ferry’s bridge using an underwater submarine, did not indicate any turns or changes in speed.

The 12 jurors hearing the case, who retired Tuesday to consider their verdict, must decide which is closer to the truth.

Lilgert, 59, is charged with two counts of criminal negligence causing the deaths of passengers Gerald Foisy and Shirley Rosette, who haven’t been seen since the ferry sank on March 22, 2006. The ferry was several hours into a routine overnight voyage from Prince Rupert in the province’s north to the Vancouver Island community of Port Hardy.

The trial has spent nearly four months hearing from dozens of witnesses, including surviving passengers and crew, fishermen and coast guard members who aided in the rescue, marine safety experts, and relatives of Foisy and Rosette.

They also heard from Lilgert, who was on duty as the fourth officer, and quartermaster Karen Briker, the only other person on the ferry’s bridge who until several weeks earlier, had been in a sexual affair with Lilgert.

The Crown’s most significant piece of evidence has been the data from the electronic chart system, which prosecutors have argued is proof Lilgert was not navigating the ship in the lead-up to the collision and that he fabricated the story he told the jury. The course recorded by the chart system, the Crown told the court, is the exact same route the ferry would have followed if there had been no turns or weather pushing the ferry off course.

Lilgert’s lawyers have attempted to cast doubt on the accuracy of the system, noting some crew members didn’t trust the device to rely on it to navigate the ship — at least one referred to it as a “box of lies” — and calling into question the credibility of an expert who used the data to conclude Lilgert neglected his duties.

Judge Sunni Stromberg-Stein spent two days delivering her instructions to the jury, summarizing the evidence and explaining the law that relates to the charge of criminal negligence causing death.

Stromberg-Stein told the jury if they believe Lilgert’s testimony, they must acquit him. On the other hand, if they conclude Lilgert’s actions caused the sinking, they would still have more work to do before they could find Lilgert guilty.

“Simple carelessness or honest mistakes are generally not criminal,” Stromberg-Stein told the jury, made up of six men and six women.

“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?”

Stromberg-Stein posed three questions to the jury, telling them they can only convict Lilgert if they are convinced the answer to each question is yes:

— 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?

The Crown argued in its final submissions last week that the electronic chart data provides easy answers the first two questions.

Crown counsel Robert Wright provided the jury with a map that plotted the GPS data recorded by the system, describing the result as a “straight line to negligence.” The only explanation for that straight line, Wright said, was that Lilgert was not doing his job, and he asked the jury to compare that possibility to a list of marine laws and regulations that govern how mariners should behave while on the water.

He also suggested Lilgert was distracted by Briker. Their sexual affair had ended several weeks earlier after each of their spouses found out about it, and the ferry’s final voyage marked their first time working alone together since the breakup.

Lilgert was asked on the stand about that straight line and why the ferry still collided with Gil Island if he was tracking its position and ordering corrections to the ship’s heading.

Lilgert said he could not explain it, though his lawyers have narrowed in on testimony that raised questions about the electronic chart system’s reliability.

The final question, about the fate of Foisy and Rosette, has been the topic of considerable discussion at the trial. Their bodies have never been recovered, and some passengers said they believed they may have spotted the couple in Hartley Bay, the small First Nations community where survivors were taken.

The Crown pointed out no witnesses recalled seeing the couple on the life rafts and life boats after the evacuation, and Wright argued the witnesses who claimed to see them in Hartley Bay, often vague accounts based on sightings from a distance, were clearly mistaken. The couple’s families have not heard from them since the sinking, said Wright, who argued it was “common sense” that Foisy and Rosette went down with the ship.

Lilgert’s lawyer, Glen Orris, told the jury last week there is enough evidence to conclude Foisy and Rosette made it off the Queen of the North, or at the very least to raise reasonable doubt about what happened to them.

The defence has also attempted to shift the blame to BC Ferries, the Crown corporation that runs the province’s ferry system, which lawyer Orris said saddled the ship’s crew with unreliable equipment, poor training and inadequate staffing policies. Orris suggested BC Ferries was eager to see Lilgert convicted.

That theory prompted the judge to instruct jurors to disregard any suggestion that outside “agendas” have influenced the trial and instead to keep their focus squarely on Lilgert.

Lilgert is charged with two counts of criminal negligence causing death.

The jury can also consider the lesser charge of dangerous operation of a vessel.

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