Jeremiah Perry drowned on a school canoe trip in Algonquin Park in July of 2017. He was 15 years old and new to Canada. Regardless of what is written below, the debate to follow and fall out from the court’s decision, we cannot lose sight of the fact that a young person lost their life, and for that there will always be pain and this deemed a tragedy. The imperative shifts to sorting out what we can learn from Jeremiah Perry’s death.
The teacher in charge of the canoe trip for the C.W.
Jefferys School, Nicholas Mills, was charged with Criminal Negligence. The charge
in itself was newsworthy and somewhat shocking, as this is possibly the first
time in Canada that a teacher was charged with a criminal offence while in the line
of their work, essentially for errors made on the job. From this perspective,
the case is important for all work related safety and accountability issues,
from which we can learn.
Below are the key lessons I have pulled from the detailed
decision written by Justice Forestell (R. v. Mills, 2021 ONSC 6492) (UPDATED: link to full decision here). Note, my
bias is fairly risk tolerant, is based upon over 30 years of professionally guiding
adults and youth on canoe expeditions, and academic research on safety and risk
management at the organization and system level. The details of the event and
actions of individuals is meticulously outlined in the Judge’s Decision, what
follows are the take aways. Quotations are direct from the Decision, cited as
page and paragraph number. (definitions: OPHEA: Ontario Physical Health
Educators Association; TDSB: Toronto District School Board)
1. Criminal vs. Civil Proceedings
The criminal standard must be proven “beyond a reasonable
doubt”, and must find an element of intent (p.3, 15). This is a high bar, one
the Crown failed to prove in this case. As such, criminal cases are found
either guilty or not guilty – there is no middle ground. Civil cases, on the
other hand, where questions of negligence are typically considered, require only
“probable” negligence (p.2, 11). In other words, criminal charges have to
convince the court 99%, while civil cases only require 51%. Criminal case guilty results in jail time or probation, while civil cases create a payment to the injured or deceased's family. Justice Forestall
wrote 62 pages detailing their rationale why the court was not convinced beyond a
reasonable doubt, but to summarize:
“Individual decisions of Mr. Mills can be justified as
reasonable in the circumstances… However, when considered cumulatively… created
a risk to the lives and safety of the students that would have been foreseen by
a reasonable teacher in the same circumstances (p.61, 413) … Mr. Mills’ failure
to reassess the risk [of allowing students to swim without lifejackets] was an
error in judgement (p.62, 416) … His decisions up to July 4th did
not meet the standard of ‘perfection or even optimum’, but there were
reasonable and fell within the standard of care. At the point of the July 4th
swim, he ought to have revisited his decision to allow Jeremiah in the water
without a lifejacket and he failed to do so. This failure brought his conduct
to the level of carelessness … and it resulted in the tragic death of 15-year-old
Jeremiah Perry. The conduct did not approach the level of departure from the standard
of care required for a criminal conviction” (p.61, 417).
So, not guilty of a crime, but negligent. Since this was pursued
as a criminal case, a finding of not guilty exonerates the individual charged.
Clearly, it is not that simple, and Mr. Mills’ negligence had tragic impact.
Had this case been pursued in civil courts as negligence, much more instructive
findings would have emerged. I propose that the school board, the principal, the
teachers and trip supervisors would all be found to some degree of fault; civil
law allows the apportionment of blame. Importantly, this would implicate the
upper organization layers in the case, and elucidate ‘system errors’ that allowed
this situation to unfold. From there improvements can be made.
Alas, there will be no civil proceedings. The TDSB negotiated
a settlement with the family of Jeremiah Perry before the trial which precludes
further civil proceedings. The settlement paid the family $30,000 - a fraction
of typical payouts in wrongful death suits. Outrageous. Interestingly, if a civil
suit were to follow, the TDSB would be obligated to defend their employee – the
same one they tried to throw under the bus in this criminal case.
2. Swim tests vs. Lifejackets
The Crown chose to make this case about the OPHEA swim test,
and the well published fact that several students did not pass it, which should
have precluded them from participating in the trip. The logic extends that if
Jeremiah Perry were not allowed to go on the trip, he would still be alive; therefore,
Mills’ allowing non-swimmers to participate was the cause of death. The court
disagreed.
“The decision by Mr. Mills to allow non-swimmers and weak
swimmers to participate was not, in itself, unreasonable although it did not
comply with OPHEA guidelines or TDSB rules.” (p.60, 403). The Justice focused
their decision very clearly on the direct context and issues at hand, and followed
the important legal principle that “failure to follow policy does not automatically
compel the conclusion that the standard of care was breached” (p.58, 396).
Regular readers of this blog will note I commented on the swim test versus lifejacket focus of this case way back in 2017, which garnered a lot of media attention and has since been read 13,000 times. http://adventureriskreport.blogspot.com/2017/08/algonquin-park-drownings-and-misguided.html
A ‘lifejacket on at all times on and in the water’ policy
would have kept Jeremiah Perry alive. “I am satisfied beyond a reasonable doubt
that Mr. Mills’ act of allowing Jeremiah to swim without a lifejacket and his failure
to adequately supervise Jeremiah caused Jeremiah’s death.” (p.47, 329), concluded
the Judge.
3. Rules vs. Guidelines
In my risk management role I talk with school boards and
teachers quite a bit. There is a very wide range of perspectives on OPHEA and
whether their guidelines are ‘guides’ or ‘rules’. This ambiguity was evident in
the decision, with the Justice showing the contrast between OPHEA documents
that suggest they “assist” (p.48, 334) and are “guidelines” (p.49, 342), and
how unevenly they are adhered to across the province (p.53, 355), yet OPHEA themselves
see what they produce as ‘rules’ (p.49, 342).
The TDSB stated that the Board “required strict compliance”
(p.52, 352) with OPHEA guidelines, yet examples were provided where the school had
students participate in activities not allowed by OPHEA (i.e. whitewater rafting,
p.57, 388). Even the language in the rules is ambiguous: “Supervisors should exercise
their discretion in determining the appropriate level of supervision during an excursion, having regard for the following factors…” (p.51, 350). This is not a
rule.
School boards are expected to have policies to direct
teacher decision making and practices. Some defer to OPHEA, some boards have
their own, some are not clear either way. Some principals treat OPHEA like the
law, while others don’t know they exist. Who is OPHEA? The Crown hung their
case on OPHEA swim test criteria – the suitability of the criteria itself was not questioned in this
case. Mr. Mills himself took issue with the OPHEA swim test and modified it to
suit his student group (which the Courts found reasonable, p.60, 403), but the wilderness
setting suitability of a test that requires treading water for 1 minute seems
inane with regards to practical application. I have commented on this in the past
link here https://adventureriskreport.blogspot.com/2017/08/algonquin-park-drownings-and-misguided.html
OPHEA has no accountability and sits outside of the school
system. They can recommend Gold Standard practices, but that is often not achievable, not necessary nor even desirable. Their work focusses on risk reduction, with no
concern for the reward side of the equation or practical application. Volleyball
‘guidelines’ are one thing; it is another to mandate lifeguards, high end
certification, group formations and irrelevant equipment requirements for
outdoor education activities.
UPDATED: Oct 2023, OPHEA has updated their guidelines with new canoe tripping criteria, which included lifejackets on at all times, modifications to the swim test (is it still needed if lifejackets at all times are required?), and more open interpretation of supervisor qualifications. Link here.
4. The Principal Gets Run Over by The Bus He Tried to Throw His Teacher Under
Dr. Monday Gala, the Principal of C.W. Jefferys School, at
trial unabashedly distanced himself from all aspects of this case, despite his explicit
and tacit endorsement of Mills’ canoe trip program (p.12, 58) and modification
of OPHEA swim test criteria. He threw Mills under the bus to avoid
accountability for his own lack of supervision with regards to Jeremiah Perry’s
death and Mills’ canoe trip program over the past years. In the end the Justice
found Dr. Gala as “not credible or reliable” in his testimony, and the Justice
pointed out the many inconsistencies and outright denials of fact in Gala’s
discovery and testimony. As a safety theorist who tries to see system
interaction, it pleases me that the supervisor gets called out for their role
and slapped for trying to blame their worker in the hopes of dodging
accountability themselves.
5. Youth, Self Regulation, and Safety Critical Decisions
When it came to swimming, swim testing, and lifejacket use, Mr.
Mills relied upon a “self regulation” model, as the Justice called it (p.28,
180). In other words, strong swimmers could go without a lifejacket, weak swimmers were expected to wear one, and those in between could
decide for themselves. In reading the decision, testimony showed students were
unclear on what the rules were, and some individuals wore a lifejacket for the swim
test but not while swimming at camp, and some vice versa. This is the ‘judgement’
model at work, and it does not work for novices or those with low experience
base. Safety critical decisions such as when to wear a lifejacket need to remain
in the hands of the supervisor when it comes to dealing with youth. Period. Youth
on wilderness canoe trips need to wear a lifejacket at all times in the water
(i.e. swimming or dipping), and it is the law in Canada that all ‘guided
excursion’ clients wear one while in a canoe (or any small vessel).
Court cases take a long time, and since 2017 TDSB has revised
their procedures and approval process, and doubled down on swim tests. As far
at TDSB is concerned (and OPHEA), a student proving their ability to swim
(several times under the new rules) is the key to safety on a wilderness canoe
trip. Ridiculous.
This is how structural inequity gets entrenched in a system. If only those fortunate enough to grow up near water or in a society that encourages (or even allows) swimming, a growing portion of our new urban Canadians will never get to see the Canadian wilderness via canoe. A lifejacket is a universal life saving device that works for people of all races, cultures, backgrounds, shapes and sizes. No lessons required, weekends at Grandpa’s cottage, or beach holidays. TDSB has very clear equity goals that it is striving for. Doubling down on swimming goes in the wrong direction. TDSB Equity Initiative here: https://www.tdsb.on.ca/Portals/0/AboutUs/Director/IEF_Interim%20Report_June%2017.pdf
7. Conclusion
So, what we know now is the TDSB negotiated an insulting settlement with the family pre-trial, the school board supervision system with regards to this trip was ineffective and inconsistent, lifejackets can ensure what swim tests never will, OPHEA either needs an overhaul or be distanced (relying instead on Board level decision making), and we can see how putting in place more rules creates structural inequity.
Those are my first thoughts.