The seven week criminal trial for Nicholas Mills (“Mills”), a Toronto teacher, who pleaded not guilty to criminal negligence causing death for the drowning of 15-year-old student Jeremiah Perry (“Perry”), has recently ended and Mills is awaiting a decision by the judge.
Mills, a teacher at C.W. Jefferys Collegiate Institute, organized and oversaw the week-long canoe trip to Algonquin Provincial Park in July 2017 as part of the summer-school curriculum. Six adults accompanied the 33 students on the trip.
Three days into the excursion, while Mills, a lifeguard and another adult were supervising seven students, Perry slipped under the water while swimming in Big Trout Lake and didn’t reemerge.
Mills is charged with criminal negligence causing death for failing to take reasonable steps to prevent bodily harm or safeguard the life of Perry.
CRIMINAL NEGLIGENCE CAUSING DEATH
The crime of criminal negligence causing death is contained in section 220 of the Criminal Code. In the case of R. v. Javanmardi, the Supreme Court of Canada commented on the elements of criminal negligence causing death and confirmed that this offence imposes a modified objective standard of fault. The Supreme Court stated:
As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. … [W]hether the accused’s actions created a risk to others, and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible.
CROWN PROSECUTOR’S CLOSING ARGUMENTS
Crown attorney Anna Stanford asked the judge to consider the totality of Mills’ actions that undermined the safety of the students while on the canoe trip, and not the swimming event in isolation. Stanford emphasized the following conduct by Mills:
- He ignored safety rules in planning and carrying out the trip;
- He allowed Perry to go in the water without a lifejacket;
- He did not share the list of students who had passed or failed their swim test with other supervisors on the trip;
- He failed to warn the students’ parents about the risks of the trip; and
- He failed to tell the students’ parents if their kids had failed the prerequisite swim test.
Stanford maintained that Mills’ role as a teacher affects the standard to which his conduct is held up to. She stated:
The complete and utter disregard for these rules put in place by Mr. Mills’ employer specifically to protect students – including Jeremiah Perry – is indicative of the wanton recklessness with which Mr. Mills approached these students’ safety.
DEFENCE’S CLOSING ARGUMENTS
During his closing arguments, Mills’ defence lawyer maintained that his client’s behaviour is “nowhere near criminal”. The defence argued that while Mills did not follow some of the rules required by the Toronto District School Board, his direction on the trip offered more protection for student safety compared to other canoe trips with young people.
Testifying on his own behalf, Mills admitted that he did not follow certain safety guidelines because they did not reflect industry standards and would have prevented some students from participating on the excursion. He testified that the guidelines for overnight canoe trips prescribed by the Ontario Physical and Health Education Association (“OPHEA”) do not correspond with those used by commercial excursions or outings organized by Scouts Canada. He stated that some guidelines are “not practical” or “not necessary”. He admitted that he did not follow the rules requiring students to pass a swimming test without wearing a lifejacket in advance of the trip. He saw the OPHEA guidelines as a “framework”. Mills compared allowing students to wear lifejackets for the swim test to allowing students with learning disabilities more time to take an exam. Thus resulting in more students being able to participate in the excursion.
He argued that Mills’ conduct should not be measured against the best practices of experts or some “optimal” standard, but measured against what would be reasonable of the “average parent”. He stated:
Thus, you do not hold Mr. Mills … to a higher standard by virtue of his training or expertise than you would hold the average parent running a canoe trip or a swim site with their friends or neighbours.
The defence lawyer, Phil Campbell, argued that the Crown prosecutor failed to establish beyond a reasonable doubt that Perry did not know how to swim. He contended that this issue is necessary to establish negligence on the part of Mills because if Perry knew how to swim there would not be an issue with letting him swim without a life jacket on. Furthermore, at the time of the incident a lifeguard, Mills and his partner were overseeing the group of seven students.
Mills’ case will return to court on September 3, 2021 at which time Justice Maureen Forestell will either provide her decision or ask questions of the lawyers and her decision will then be delivered several weeks later. We will continue to follow this case and will provide updates in this blog.
In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer. The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences. Contact our office today online or at 905-404-1947 to speak with out knowledgeable criminal defence lawyers. We offer a free initial consultation for all prospective clients.