Jeremiah Perry drowned on a school-run camping trip in 2017.Handout
A Toronto teacher failed to properly assess the safety risks at a swim site where a 15-year-old student drowned during a school canoe trip, but his actions did not meet the threshold for a criminal conviction, an Ontario judge ruled Wednesday.
Nicholas Mills was charged with criminal negligence causing death in the drowning of Jeremiah Perry, who died during an overnight trip to Algonquin Provincial Park in July, 2017.
Mr. Mills, a teacher at C.W. Jefferys Collegiate Institute, planned the excursion and led a group of students that included Jeremiah during the event.
Prosecutors alleged during trial that Mr. Mills ignored safety rules in planning and carrying out the multiday excursion, and allowed Jeremiah – who they argued could not swim – to go in the water without a lifejacket.
Defence lawyers, meanwhile, said the Crown failed to prove beyond a reasonable doubt that Jeremiah couldn’t swim, which they said is necessary to establish negligence. They also argued Mr. Mills shouldn’t be held to a higher standard than the “average parent” conducting a similar trip.
Ontario Superior Court Justice Maureen Forestell found that Mr. Mills’s decisions leading up to the incident, including in allowing weak swimmers to take part in the trip, were justifiable under the circumstances.
However, his conduct fell below the standard of care when he failed to reassess the risk at the swim site, the judge found. Given the conditions there, a reasonable teacher would have foreseen the risk of a student drowning, she said.
The boundaries of the swim site weren’t marked, there were up to eight students to supervise, and Jeremiah’s experience in deep water wasn’t well known, she found. There was a lifeguard present, but the lifeguard couldn’t watch everyone at all times, she said.
Jeremiah’s “demonstrated swimming ability was, at best, that of a novice swimmer,” Justice Forestell found, noting Mr. Mills had seen the teen swim 50 metres without a lifejacket two days before the drowning, but had not seen him tread water or swim in deep water without a lifejacket.
“Allowing students, including Jeremiah, [who] demonstrated a level of swimming ability to swim without a lifejacket can be seen as reasonable when considered in the context of the presence of a lifeguard,” Justice Forestell said. “Allowing students to swim where there was a steep drop off can be seen as reasonable when considered in the context of the warning [given to students], and the supervision of additional adults.
“However, the decisions when considered cumulatively, as they must be, created a risk to the lives and safety of the students that would have been foreseen by a reasonable teacher in the same circumstances … . In failing to foresee the risk created by the cumulative circumstances and failing to take steps to avoid it. Mr Mills fell below the standard of care.”
That failure “brought his conduct to the level of carelessness,” the judge found, but did not reach the level of “wanton and reckless disregard” required for a criminal conviction, nor did it represent a significant enough departure from the standard of care.
Justice Forestell also found Mr. Mills’s actions in misleading the school board regarding preparations for the trip, and his failure to inform students and parents of the results of a mandatory swim test were “flawed” but played no role in Jeremiah’s death.
The teen disappeared in the water at Big Trout Lake on the third day of what was meant to be a six-day trip.
No one at the site saw him go into the deep water, Justice Forestell said. She said Jeremiah was last seen in shallow water, and Mr. Mills had given him permission to swim without a lifejacket after seeing him swim 50 metres earlier in the trip.
Mr. Mills and his partner were in the water standing near the drop off point, but they were positioned near the centre, leaving the sides open, the judge said.
Another student who was wearing a lifejacket felt something pull his leg under the water, and called Mr. Mills once he resurfaced, the ruling said. That’s when the group noticed Jeremiah was missing, the decision said.
Efforts to find him were unsuccessful, and his body was recovered by police divers the next day.
During trial, Mr. Mills acknowledged he did not follow some rules imposed by the Toronto District School Board because he believed them to be impractical or unnecessary. Some of the measures would have made it impossible to carry out the trip at all, he testified.
The teacher maintained, however, that the safety requirements he imposed went beyond what’s commonly done in the private sector.
Court heard the trip was part of a continuing program for underserved youth, and that students were required to pass a swimming test to participate.
Jeremiah failed the test, as did nearly half of the students who took part in the excursion, the court heard. Several students also wore lifejackets during the assessment, which was against regulations established for overnight canoe trips.
Students who failed the test were supposed to be given swimming lessons and take part in a second assessment, court heard. Those who failed a second time were to be offered an alternate outing.
Mr. Mills testified he believed Jeremiah passed the swim test, saying he saw what he thought was a “P” for “pass” next to the teen’s name when he “scanned” the results.
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