The crew member convicted in the sinking of the Queen of the North passenger ferry was a regular marijuana user who routinely ended his shifts by smoking pot aboard the ship, the Crown contended before the start of his criminal negligence trial.
But the jury, which on Monday found Karl Lilgert guilty on two counts of criminal negligence causing death, never heard about the claims of marijuana use because the judge in the case ruled evidence on that point was inadmissible, shielding the allegations behind a publication ban until the jurors returned with their verdict.
There was no evidence Karl Lilgert was high when the ship ran aground seven years ago, but the Crown wanted to argue that Lilgert's willingness to violate company policies forbidding drug use suggested he would be more likely to flout other rules designed to keep the ship and its passengers safe. The defence claimed such evidence would unfairly prejudice the jury.
The Queen of the North missed a scheduled turn as it entered a body of water known as Wright Sound, collided with Gil Island and sank in the early morning of March 22, 2006, several hours after leaving the northern community of Prince Rupert en route to Vancouver Island.
Two passengers, Gerald Foisy and Shirley Rosette, were never seen again.
Prosecutors told a pre-trial hearing in January there were three witnesses, including Lilgert's former lover, Karen Briker, who were prepared to testify about Lilgert's marijuana use.
The Crown said those witnesses would testify Lilgert and other colleagues gathered after almost every shift at a spot on the ferry known as "Monkey Island" to smoke marijuana.
Staff on the ship lived aboard the vessel for two weeks at a time, rotating between 12-hour shifts and 12 hours of downtime. BC Ferries policy bans drug and alcohol use on its ships, even when employees are off shift, because they could be called to action in the event of an emergency, court heard.
"So for him to routinely ignore this rule, substituting his own judgment about what policies are worth following that directly relate to the safety of the passengers and the vessel, that directly relates to the same kinds of decisions he is making on the bridge," Crown lawyer Michel Huot told the January hearing.
"Almost every day, or at least on a regular basis, he was breaching this very important marine policy huddled away with his colleagues on Monkey Island, demonstrating a routine disregard for policy and the safety of the vessel."
A Transportation Safety Board report into the sinking, which was not presented at trial, noted crew aboard the ship frequently used cannabis, but it did not single out Lilgert or any other crew member and said there was no evidence to suggest pot use played a role in the sinking.
Huot noted there was no evidence to suggest Lilgert or Briker — the only two people on the bridge when the ship ran aground — were under the influence of drugs during the ship's final voyage, but he suggested the possibility couldn't be ruled out, either.
"What we do know that he wasn't present — he either wasn't physically present or mentally present — but we don't know what caused that," said Huot
Lilgert's defence lawyer, who stressed he wasn't conceding the allegations of marijuana use were true, objected to the evidence, saying it wasn't relevant because there was nothing to suggest Lilgert was under the influence at the time of the sinking.
Glen Orris said the evidence would encourage the jury to jump to the conclusion that Lilgert may have been high during the collision, or at the very least that his marijuana smoking made him a bad person who must be guilty.
"When we talk about the drug and alcohol policy — and we're not accepting that this information is accurate — regardless of it being a breach of policy, the fact that he's off duty, the fact that he's 12 hours away from reasonably being in charge of the vessel, it just doesn't amount to a wanton and reckless disregard," Orris told the court.
"In my submission, there is a real risk that the jury is going to take those circumstances (the allegations Lilgert smoked marijuana after his shifts) and have the irresistible urge to fill in that gap."
Judge Sunni Stromberg-Stein agreed with Orris, ruling the marijuana evidence must be kept away from the jury.
"Evidence of Mr. Lilgert's routine marijuana use on the Queen of the North ... is irrelevant, immaterial and highly prejudicial," Stromberg-Stein said in a ruling issued Jan. 15, two days before the trial began.
The Crown attempted again midway through the trial to have the evidence admitted, but Stromberg-Stein rejected that request.
Prosecutors alleged at trial that Lilgert was negligent when he missed the scheduled course alteration and then failed to take evasive action as the ferry sailed toward an island.
The Crown suggested he was distracted by Briker's presence on the bridge, either because they were arguing or having sex, which Lilgert denied. The pair's months-long sexual affair had ended several weeks earlier, the trial heard.
Lilgert's defence lawyers said the collision was the result of a combination of factors beyond Lilgert's control, including poor training, unreliable equipment, inadequate staffing policies on the ship and bad weather.
Lilgert testified in his own defence, telling the jury he was doing his best to navigate the ship through rough weather and around at least two boats, and he couldn't explain why the ferry struck the island. His lawyer told the jury the collision was the result of "honest mistakes."