Although the B.C. Supreme Court sentenced the Fourth Officer (“FO”) of the Queen of the North on June 24, 2013, the reasons for this sentence were not available in writing until late July. Needing no editorial, the most significant portions of the Court’s reasons are captured by the excerpts below. While this tragedy has, in my view, received more than sufficient attention already, it is helpful to mariners to review this final chapter and understand the rationale of Courts when sentencing mariners.
“[The FO] was found guilty by a jury of two counts of criminal negligence causing the deaths of Gerald Foisy and Shirley Rosette, contrary to s. 220(b) of the Criminal Code. The offences arise from the sinking of the Queen of the North, a passenger ferry operated by BC Ferries. At 8:00 p.m. on March 21, 2006, the Queen of the North departed Prince Rupert for Port Hardy with 42 crew members, 59 passengers, and 16 vehicles. Fortuitously, this was a very light load for this passenger ferry. At about midnight, [the FO] assumed conduct of the ferry. He was alone on the bridge with [the Quartermaster] (“QM”), his former lover. This was the first time they had worked together since their recent breakup.
At about 12:07 a.m., now on March 22, 2006, the ferry exited Grenville Channel into Wright Sound, failing to make a necessary course change at or near Sainty Point. The Queen of the North traversed Wright Sound in a straight line, off course, until it struck Gil Island at approximately 12:21 a.m. The ferry sank in 430 meters of water about an hour later. Of the 101 passengers and crew, 99 successfully abandoned ship and were rescued by brave members of the Hartley Bay community, crew of the Lone Star, and Coast Guard personnel aboard the Sir Wilfred Laurier. Tragically, passengers Gerald Foisy and Shirley Rosette died as a result of the sinking of the ferry.
In arriving at its verdict, it is clear the jury rejected [the FO’s] evidence that he was carrying out his duties to the best of his ability. It is clear the jury rejected [the FO’s] explanation that he was fully engaged in navigating the vessel, trying to go around a fishing boat; that he hit a squall; and the radar screen had whited out. The jury accepted he had all the standard aids of navigation, and there was no failure of any of the navigation equipment that caused the ferry to hit the island.
In arriving at its verdict, it is clear the jury found that there was an extended period of time where [the FO] did not follow any of the steps, procedures, or policies of a professional mariner. The jury clearly found that [the FO] failed to navigate the vessel in any meaningful way and failed to pay attention to the navigation of the vessel. In doing so, it is clear the jury found he grossly neglected his duty, ignored or failed to implement standard policy and procedures, and operated a ferry vessel with 101 passengers, including crew, with a wanton and reckless disregard for the lives and safety of his passengers. In doing so, it is clear the jury found Mr. Foisy and Ms. Rosette perished as a result or [the FO’s] action or inaction.
The ECS evidence indicated that for a 12-minute period, the ship had left the navigation corridor. Given the proximity of the vessel to land, 12 to 14 minutes is an extraordinary amount of time to hurtle blindly through the night at a full cruising speed without ensuring the vessel was on course and taking action to safely navigate the vessel in that area. This is an area that is tricky to navigate in at the best of times. Even assuming a squall lasting from five to 30 minutes, with heavy winds and heavy rain, the ECS was available and would not be affected by those conditions; nor would a properly adjusted radar. The navigational aids, had they been used, or used properly, would have shown that the vessel was off course and headed for Gil Island.
Maintaining situational awareness at all times and in all circumstances is key to proper navigation. The evidence of the expert, Mr. Flotre, was [the FO] failed to comply with the collision regulations by not standing watch using his eyes, ears, the ECS, and radar. If he was experiencing heavy weather or restricted visibility, he failed to slow down; or stop; or call the second officer; or call the Master as dictated by the Master’s Standing Orders, standard practice, and the regulations; or call the standby deckhand; and he took no steps to avoid the collision by attempting to communicate with vessel traffic or other vessels; or notify the engine room to go on standby; and go on hand steering. There was a complete abandonment of “the rules of the road” by [the FO]. The only conclusion to be drawn from his inattention and inaction is that he demonstrated extreme and catastrophic dereliction of his duty.
In considering the nature and circumstances of the offences at bar, having regard to the manner in which the deaths were caused, the degree of harm is severe. [The FO’s] conduct led to the deaths of two innocent passengers. He engaged in conduct that created a grave risk to and, in fact, doomed the vessel, and passengers Mr. Foisy and Ms. Rosette with it, to a watery grave, putting the remaining passengers and crew at extreme risk. Being overwhelmed with personal matters, he failed to navigate the vessel. His was not a split-second error in judgment or an inadvertent lapse of care. This is not a case closer to accident than an intentional act. [The FO] was a paid professional mariner engaged in the conduct of a passenger ferry and failed to navigate it, with predictable and devastating consequences.
BC Ferries has changed many things since the sinking, including requiring three officers on the bridge at all times. These changes will likely avoid a similar scenario in the future as there will never be a situation where two lovers, or former lovers, will be alone on the bridge of a passenger ferry. The changes have nothing to do with the fact [the FO] abdicated his duty to safely navigate the vessel. This is not simply a case of exercising bad judgment, or mere recklessness, or momentary inattentiveness. He did nothing he was supposed to do in the circumstances.
Criminal negligence causing death has a maximum penalty of life imprisonment.
The position of the Crown is that the appropriate sentence is six years imprisonment. The Crown points out there are no criminal negligence sentencing precedents where 100 people put their trust in a professional mariner and as a result of his wanton or reckless disregard for their lives, two people died. The Crown submits [the FO’s] moral blameworthiness is at the high end given the intentional risk taken, the degree of harm, and the extent his conduct deviated from acceptable standards. The position of the defence is that an appropriate sentence is a conditional sentence of two years less one day to be served in the community.
The sentencing provisions are set out at s. 718 and following of the Criminal Code. The fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful, and safe society. This is achieved by imposing sentences which have the following objectives: denouncing unlawful conduct; general and specific deterrence; separating offenders from society where necessary; rehabilitation; providing reparations for the harm done to victims and the community; and promoting a sense of responsibility in offenders.
In summary, [the FO] had been involved in a personal relationship with [the QM]. At the critical time, he had sole responsibility for navigating the vessel and for the lives and safety of the passengers and crew. He was a highly qualified and experienced professional mariner who was entrusted to navigate a large commercial ferry in coastal waters. He was paid to transport ferry passengers safely to their destination. He had thousands of hours of training and experience. He was familiar with the area of Wright Sound and Gil Island. He was familiar with the operation of and the navigational equipment on the Queen of the North. He was completely capable and qualified to navigate the vessel in any of the circumstances he faced, or says he faced, that fateful night.
I agree with the Crown that this is not a case of an honest but mistaken belief; of someone trying their best but failing; or a lapse of attention. This was not an error in a judgment call. This was a case of complete abdication of responsibility by [the FO]. Shortly after joining [the QM] on the bridge, he completely failed to take any steps to navigate the vessel. He ignored his responsibility to safely navigate a passenger ferry travelling at night at full cruising speed in waters with land nearby, knowing full well the risks and the possible, in this instance the inevitable, disastrous consequences. Whatever occupied [the FO’s] attention on the bridge that night, it was not the navigation of the vessel. I do not need to speculate what [the FO] was doing on the bridge that night. I know what he was not doing. He was not doing his job. He was not navigating a passenger ferry with 101 persons aboard who had entrusted their lives and safety to him.
Although there is nothing mitigating in the circumstances of the offences, [the FO] comes before this court with no criminal record or driving record and support from family, friends, and community. He has expressed remorse but has demonstrated a lack of insight in terms of his responsibility in the circumstances. He minimized his responsibility and attempted to deflect blame to others, including [the QM], suggesting it was her poor training; poor equipment; practices, policy, and procedures of BC Ferries; the weather; and other vessels that were the cause of the crash. The fact [the FO] testified and lied, or minimized his responsibility, cannot be considered an aggravating factor.
Sentencing is an individualized process that takes into account the totality of circumstances, including the nature of the offences and the role of the offender in the offences. Having regard to [the FO’s] high degree of moral blameworthiness, the focus is on deterrence and denunciation. Considering all the factors, including the aggravating and mitigating factors in this case, I conclude that the appropriate sentence is four years on each count concurrent. [FO], I sentence you to four years. For 10 years, I prohibit you from operating a vessel pursuant to s. 259(2) of the Criminal Code.”
Darren Williams is a founding partner of League and Williams where he operates the largest marine law practice on Vancouver Island and also practices personal injury law and estate disputes. Darren can be reached at dwilliams@leaguelaw.com or by phone at 250-888-0002.
