COURT FILE NO.: CR-21-40000199-0000

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

NICHOLAS MILLS

reasons for judgment

table of contents

Page No.

I overview... 1

II Legal Principles. 2

General Principles that Apply to Criminal Cases. 2

Actus Reus of the Offence of Criminal Negligence Causing Death. 3

Fault Element of the Offence of Criminal Negligence Causing Death. 3

III Positions of the Parties. 4

IV issues to be determined.. 6

V Evidence and Findings of Fact with respect to the actus reus. 6

The REACH Program.. 6

Approval of the Trip by the Toronto District School Board (“TDSB”) 7

Information Provided to the Students and Parents. 12

Sparrow Lake Camp. 13

Testimony of Mr. Mills. 14

Testimony of Barbara Weeden. 16

Testimony of Clayton Freeborn. 19

Testimony of Christopher Mackie. 20

Testimony of Kassandra Espinola. 21

Other Evidence concerning the Sparrow Lake Camp. 21

Findings of Fact re Sparrow Lake Camp. 22

Preparation at C.W. Jefferys. 23

Communication of the Swim Test Results. 24

Safety Measures and Rules for the Trip. 24

Leaders and their Qualifications. 24

Rules for the Trip. 25

Findings of Fact with respect to the Rules. 28

Events of July 2nd and Jeremiah’s Ability to Swim.. 28

Findings of Fact with respect to Jeremiah’s Ability to Swim.. 32

Events of July 4th. 33

Alexander Panteleev. 36

Ariel Hart-Hypolite. 36

Robyn-Nicole Tyrell 37

Jahliel Lewis. 38

Jskeert Singh Rai 38

Boran Balci 40

Lucia Fernandez. 40

The Physical Characteristics of the Swim Site. 43

Findings of Fact with Respect to the Events of July 4th. 44

VI first issue: has the Crown proved the actus reus of the offence, i.e., was there conduct of Nicholas Mills (acts or omissions) that caused or significantly contributed to the death of Jeremiah Perry?. 46

VII Evidence and findings of fact Relating to the Standard of Care.. 48

Overview.. 48

Nancy Schad and the OPHEA Safety Guidelines for Physical Education. 48

George Kourtis and TDSB Policies and Procedures. 50

Michael Shane and the Lifesaving Society. 53

Barbara Weeden and Sparrow Lake Camp. 54

Christopher Mackie. 55

Bradley Ferguson and Scouts Canada. 55

Eren Howell and Commercial Outfitters. 55

Nicholas Mills. 57

VIII Legal principles relating to the fault element. 58

IX application of the principles to the fault element in this case.. 60

X Conclusion.. 62

COURT FILE NO.: CR-21-40000199-0000

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

NICHOLAS MILLS

Anna Stanford and Jenny Rodopoulos, for the Crown

Phillip Campbell and Neil Fitzmaurice, for Mr. Mills

HEARD: May 10-14, 17, 19-21, 25-28, 31; June 1, 3, 4, 10, 11, 14-17, 21-23, 25, 28-30; July 8 and 9, 2021

M. Forestell J.:

Reasons for judgment

I overview

1Jeremiah Perry was a vibrant, active, and engaging 15-year-old boy. He died by drowning on July 4, 2017 while swimming in Big Trout Lake in Algonquin Park.

2Jeremiah drowned on the third day of what was planned as a six-day wilderness canoe trip. The trip was planned, organized and led by the accused person, Nicholas Mills, a teacher at Jeremiah’s high school, C.W. Jefferys Collegiate Institute, in Toronto.

3When Jeremiah drowned, there were 16 students at a campsite with two supervising adults: Mr. Mills and his partner, Vera Souza.

4Lucia Fernandez was one of the students in the group. She was also a National Lifeguard (“NL”) certified lifeguard. She had been hired to act as a lifeguard on the trip. When it became known that Jeremiah was missing, there were seven students swimming in the lake and one student was on the shore about to enter the water. Mr. Mills and Ms. Souza were in the water standing near a drop-off into deep water. Lucia Fernandez was lifeguarding.

5None of the people at the swim site saw Jeremiah enter the deep water. He was last seen in shallow water and he was not wearing a lifejacket.¹

6Mr. Mills testified that he had given Jeremiah permission two days earlier to swim without a lifejacket after Jeremiah had demonstrated the ability to swim 50 meters without one.

7One of the students in the water when Jeremiah went missing was Boran Balci. Boran was in deep water wearing a lifejacket when he felt something pull his leg and pull him under the water. Boran was able to resurface and called to Mr. Mills for help. Jeremiah was noted to be missing right after this event. Despite a search by Lucia Fernandez and another lifeguard who attended from a neighbouring campsite, Jeremiah could not be located. His body was recovered by Ontario Provincial Police (“OPP”) divers the next day.

8Mr. Mills is charged with criminal negligence causing the death of Jeremiah. I will begin by reviewing the legal principles that apply to criminal cases generally and an overview of the law of criminal negligence in order to explain the framework of my approach to the evidence and issues. I will review the law with respect to the mental element of criminal negligence and the standard of care in more detail later in these reasons.

II Legal Principles

General Principles that Apply to Criminal Cases

9To decide the issues in this case, I must make findings of fact and I must assess the credibility and reliability of the witnesses.

10Credibility has to do with the truthfulness of the witness. Reliability has to do with the ability of a witness to observe, recall and recount events in issue.² The assessment of the evidence of a witness is not an all or nothing proposition. I may accept all, some, or none of the evidence of any witness.

11Mr. Mills is charged with a criminal offence. Certain fundamental principles apply in this and all criminal cases. Mr. Mills is presumed to be innocent of the charge against him. He can only be found guilty if the Crown proves his guilt beyond a reasonable doubt. The standard of proof of guilt beyond a reasonable doubt means that probable or likely guilt is not enough. The standard of probable negligence would be sufficient in a civil case, but it is not sufficient in a case of criminal negligence. The Crown must prove both the physical element (actus reus) and the mental element (mens rea) of the crime beyond a reasonable doubt.

Actus Reus of the Offence of Criminal Negligence Causing Death

12To prove the actus reus of criminal negligence causing death, the Crown must prove beyond a reasonable doubt that Mr. Mills did something that caused Jeremiah’s death or that he failed to do something that he had a legal duty to do and that failure caused Jeremiah’s death.³

13Negligent conduct that does not cause death or bodily harm is not a crime. A person is only liable for criminal negligence causing death if the negligent conduct causes death.⁴ It is therefore only the conduct of Mr. Mills that caused the death of Jeremiah that is considered in establishing the physical element of the offence.⁵

14The conduct that is considered need not be the sole cause of death, but it must be a significant contributing cause of death. The question of whether conduct caused death is generally resolved by asking, “‘But for’ the conduct, would the death have occurred?”⁶

Fault Element of the Offence of Criminal Negligence Causing Death

15In addition to proving that the conduct of Mr. Mills caused the death, the Crown must also prove the mental or fault element of the offence. The fault element of this offence is that the acts or omissions that caused the death “show a wanton or reckless disregard for the lives or safety of other persons”. This issue is determined by applying a modified objective standard of fault. A court must be satisfied that the conduct was a marked and substantial departure from that of a reasonable person in the same circumstances.⁷ This test asks two questions:

1. Whether the acts or omissions created a risk to others and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible; and,

2. Whether the failure to foresee the risk and take steps to avoid it, if possible, was a marked and substantial departure from the standard of care expected of a reasonable person in the same circumstances.⁸

16In applying the modified objective test, the conduct is measured against a reasonable person. The personal characteristics and background of the accused person are generally not relevant. However, in R. v. Creighton⁹ and more recently, in R. v. Javanmardi,¹⁰ the Supreme Court explained that the application of the reasonable person test is informed by the nature of the activity undertaken. Certain activities require special care and skill. If a person undertakes such an activity without the requisite qualifications or fails to exercise the special care required by the nature of the activity, that person may be found to have departed from the standard of a reasonable person in the circumstances. As stated by Abella J. in Javanmardi, “while the standard is not determined by the accused’s personal characteristics, it is informed by the activity” [emphasis original].¹¹

17The Supreme Court of Canada has also made it clear that the test for the fault element in the offence of criminal negligence is not applied in a vacuum. McIntyre J. wrote in R. v. Tutton:¹²

Events occur within the framework of other events and actions and when deciding on the nature of the questioned conduct surrounding circumstances must be considered. The decision must be made on a consideration of the facts existing at the time and in relation to the accused's perception of those facts. Since the test is objective, the accused's perception of the facts is not to be considered for the purpose of assessing malice or intention on the accused's part but only to form a basis for a conclusion as to whether or not the accused's conduct, in view of his perception of the facts, was reasonable ... If an accused under s. 202 [now 219] has an honest and reasonably held belief in the existence of certain facts, it may be a relevant consideration in assessing the reasonableness of his conduct. For example, a welder, who is engaged to work in a confined space believing on the assurance of the owner of the premises that no combustible or explosive material is stored nearby, should be entitled to have his perception, as to the presence or absence of dangerous materials, before the jury on a charge of manslaughter when his welding torch causes an explosion and a consequent death.

18Therefore, the activity in which the person is engaged, and the circumstances existing and known to the accused person are relevant considerations in determining whether the Crown has proven the mental element of the offence.

III Positions of the Parties

19The Crown alleges that the following conduct of Mr. Mills caused the death and was a marked and substantial departure from that of a reasonable person in the same circumstances:

(1) Failing to obtain informed consent from parents;

(2) Permitting an unreasonable number of non-swimmers to attend the canoe trip;

(3) Failing to attend to the results of the pre-trip swim test, including failing to identify the non-swimmers and failing to communicate the results of the swim test to the students, parents, lifeguards and trip leaders;

(4) Failing to articulate and enforce a clear rule about who should wear lifejackets when swimming; and

(5) Failing to take adequate precautions at the swim site to protect Jeremiah from the risk of drowning, including failing to require Jeremiah to wear a lifejacket.

20It is alleged that these acts and omissions individually or cumulatively caused Jeremiah’s death and that the conduct was a marked and substantial departure from that of a reasonable person in the circumstances.

21The Crown submits that the conduct was a marked and substantial departure from the minimum standard of common-sense safe practices to which any reasonable person, canoe tripper, teacher or parent would be held.

22Although evidence was called with respect to Mr. Mills’ failure to follow guidelines with respect to the canoeing part of the trip, the Crown ultimately argued that the alleged failure to meet the standard of care for the canoeing part of the trip was not a cause of death. The Crown does rely on the evidence relating to the preparation for canoeing as providing context to the swimming event and to establish a pattern of conduct on the part of Mr. Mills.

23The Crown also relies on the warnings that the Crown alleges were delivered to Mr. Mills by the staff at Sparrow Lake Camp during the trip preparation as evidence that is relevant to the foreseeability of the risk and the degree of departure from the standard of care.

24The position of the defence is that only the circumstances at the swim site should be considered in assessing the conduct of Mr. Mills because only those circumstances could be found to have caused the death of Jeremiah.

25The position of the defence is that the conduct of Mr. Mills at the swim site did not fall below the standard of a reasonable person in the same circumstances and it certainly was not a marked and substantial departure from that minimal standard. Mr. Mills knew that Jeremiah could swim and reasonably allowed him to swim without a lifejacket in a swim site supervised by a qualified lifeguard and two adult supervisors. He took steps to ensure the safety of the students by positioning himself and the other leader, Vera Souza, at the edge of the drop-off and warning the students not to go past him and Ms. Souza.

26Even if it is not accepted that Jeremiah demonstrated an ability to swim, the defence submits that allowing him to swim without a lifejacket under supervision was not a marked and substantial departure from that of a reasonable person in the same circumstances. Counsel for Mr. Mills points to broad societal practices of parents, commercial canoe trip operations and other youth organizations allowing teenagers to enter water without lifejackets regardless of swimming ability.

IV issues to be determined

27To decide the guilt or innocence of Mr. Mills, I must first decide whether the Crown has proved beyond a reasonable doubt that acts or omissions of Mr. Mills caused the death of Jeremiah.

28Assuming that this is proven, I must determine the relevant circumstances or context for the acts or omissions that caused the death.

29Finally, I must determine whether the acts or omissions in the circumstances that I find to exist have been proven beyond a reasonable doubt to be a marked and substantial departure from the standard of care of a reasonable person in the same circumstances.

30In the reasons that follow, I will begin by considering the evidence relating to the cause of Jeremiah’s death. I will review the evidence in relation to the chronological events, beginning with the approval and consent process and progressing to the Sparrow Lake Camp trip, the week-long preparation for the canoe trip and the events on the trip. I will make findings as to the conduct that caused the death of Jeremiah and the relevant circumstances before separately reviewing the evidence relating to the standard of care and determining whether the Crown has proven that Mr. Mills’ conduct was a marked and substantial departure from that standard.

V Evidence and Findings of Fact with respect to the actus reus

The REACH Program

31The REACH program was a leadership program run by Mr. Mills at C.W. Jefferys Collegiate Institute from 2013 to 2017. REACH stood for Relationship and Character development. According to Mr. Mills, the purpose of the program was to build character and to create connections for the students in the community.

32Police officers and counsellors from youth organizations joined teachers, students and student mentors in outdoor activities. The program began with bike riding, expanded to include a canoe trip, and then expanded further with additional funding to include winter weekend trips and a spring camping trip as well as the summer canoe trip.

33Students who were at risk of not getting the credits they needed in the school year or who had poor attendance were often identified as candidates for the trip. Successful completion of the REACH program entitled students to receive a school credit.

34As part of the REACH program, Mr. Mills first took an all-boys group on a canoe trip to Algonquin Park in 2013. The trip was successful and the next year he expanded it to include girls. Kelli Leizer, a teacher at Westview Collegiate Institute, became involved in the REACH programme in 2014. Ms. Leizer’s role in the REACH programme was to identify and recruit students from Westview to participate in the programme. Ms. Leizer also acted as a teacher/supervisor on the trips, including the 2017 trip.

35Several witnesses offered opinions on the educational value of the REACH programme and the canoe trip. The students who testified generally said that they found the trip, before the tragic death of Jeremiah, to be enjoyable and valuable to them. Dr. Monday Gala, the principal of C.W. Jefferys, expressed his opinion that it was important to offer the opportunity to the students. Mr. Mills clearly believed strongly that the programme benefitted the students.

36I have set out the general nature and purpose of the REACH programme as background. I make no finding as to the value of the programme. It is not relevant to the issues that I must decide. The degree of benefit or value of the programme to the students on the trip does not alter the standard of care that Mr. Mills had to meet.

Approval of the Trip by the Toronto District School Board (“TDSB”)

37The 2017 REACH summer programme had three components. The first part of the programme was a two-day, one night trip to Sparrow Lake Camp on June 21st and 22nd. At Sparrow Lake Camp it was planned that the students would take a swim test and learn canoe skills. From June 26th to 30th, the students would attend at C.W. Jefferys for further training and preparation for the trip. The trip itself was scheduled from July 2nd to 7th in Algonquin Park. The six-day canoe trip was planned to traverse five different lakes in Algonquin Park.

38The canoe trip to Algonquin Park was categorized as a high care activity under the excursion policy for the Toronto District School Board. High care activities are defined under the policy as, “Those types of activities that involve increased risk or special safety considerations, or activities in or on the water or that require special qualifications or certification for supervision.”

39The TDSB Operational Procedures required that the Superintendent of Education approve high care excursions.

40The process followed by Mr. Mills, Dr. Gala and the Vice-Principal, Mr. Gopal Devanabanda, to obtain approval from the TDSB, was largely the subject of admissions at trial. These are set out in Exhibit 26 as follows:

3. Nicholas Mills was the organizer, leader and teacher in charge of the 2017 REACH program canoe trip which included students from CW Jefferys and Westview Collegiate Institute. Nicholas Mills prepared all requests for approval and other Toronto District School Board (“TDSB”) forms associated with the trip. He led similar trips in 2013, 2014, 2015 and 2016.

4. In the summer of 2017, Karen Falconer was an Executive Superintendent with the TDSB, in charge of Continuing Education and therefore the Superintendent responsible for approval of the REACH canoe trip.

5. On May 31, 2017, Gopal Devanabanda, the vice principal at CW Jefferys, emailed Karen Falconer’s office to obtain approval for the 2017 Summer REACH program canoe trip. Monday Gala, the principal of CW Jefferys, was cc’d on the email. The following documents were attached to the email.

a. Form 511A - Request for Excursion Approval by Principal - signed by Nicholas Mills and Gopal Devanabanda on behalf of Monday Gala.

b. 2017 Summer REACH Program Itinerary (initial version)

c. Form 511B - Request for Excursion Approval by Superintendent of Education – signed by Nicholas Mills and Gopal Devanabanda on behalf of Monday Gala.

d. Form 511C - Parent/Guardian Permission for Excursion - signed by Nicholas Mills and Gopal Devanabanda on behalf of Monday Gala.

e. REACH Letter to parents/guardians from Nicholas Mills

f. Form 511E -Medical Information Form

g. Form 511G – Formal Contingency Plan for High-Care/Overnight Excursions

11. The 2017 Summer REACH program itinerary (initial version) that was submitted for approval on May 31, 2017 (item b, above) contained the following details:

Details

REACH PROGRAM PARTICIPANTS WILL COMPLETE SWIMMING LESSONS AND THE CANOE TRIP SWIM TEST AT SPARROW LAKE CAMP

ALL PARTICIPANTS MUST ATTEND ALL DAYS TO COMPLETE THE CREDIT.

PARTICIPANTS MUST PASS THE CANOE TRIP SWIM TEST AND CANOE TRIP SKILLS TEST TO PARTICIPATE IN THE PROGRAM

STUDENTS WHO DO NOT SUCCESSFULLY PASS THESE TEST [sic] WILL BE REMOVED FROM THE PROGRAM

12. Karen Falconer reviewed the submitted documents and expressed concerns, including the inability of students who did not pass the swim test to obtain the school credit that the program offered. Her concerns were discussed between Dr. Gala and Lorraine Linton, a Central Coordinating Principle at the TDSB assisting Karen Falconer, in a telephone call on June 12, 2017.

13. On June 13, 2017, Nicholas Mills emailed a revised REACH program itinerary to Gopal Devanabanda and Monday Gala that contained the following changes.

Details

REACH PROGRAM PARTICIPANTS WILL COMPLETE SWIMMING LESSONS AND THE CANOE TRIP SWIM TEST AT SPARROW LAKE CAMP. ALL PARTICIPANTS MUST ATTEND ALL DAYS TO COMPLETE THE CREDIT.

PARTICIPANTS MUST PASS THE CANOE TRIP SWIM TEST AND CANOE TRIP SKILLS TEST TO PARTICIPATE IN THE PROGRAM. STUDENTS WHO DO NOT SUCCESSFULLY PASS THE INITAIL [sic] TEST WILL BE PROVIDED SWIM LESSONS / 1 ON 1 COACHING IN THE CWJ POOL FROM June 26 to June 30 STUDENTS WILL BE GIVEN MULTIPLE OPPORTUNITES (sic) TO PASS THE SWIM TEST. Students who are unable to pass the test will be provided different outdoor education opportunities at a later date.

14. Karen Falconer approved the revised itinerary and the trip on June 20, 2017.

15. Between June 22 and July 2, 2017, neither Nicholas Mills nor any teacher/leader associated with the trip provided remedial swim instruction to the students who failed the swim test administered by the Sparrow Lake Camp staff on June 21, 2017.

41In his testimony at trial, Mr. Mills was asked about the information in the first package that said swimming lessons would be provided and about the change in the wording in the June 13th information package that indicated one on one coaching and swim lessons would be provided and that students who still did not pass would not attend the trip but would be provided a different opportunity. He admitted that he did not at any point intend to provide lessons or to provide one on one swim coaching to the students who failed the Sparrow Lake swim test because they wore a lifejacket for the test, nor did he intend to exclude them from the trip. He was of the opinion that it was safe to bring the students on the trip if they were able to complete the test with a lifejacket even though that was technically recorded as a fail.

42Mr. Mills believed that allowing students to attend the trip when they could not pass a swim test without wearing a lifejacket would not be sanctioned by the TDSB. Mr. Mills knew it to be contrary to the Ontario Physical and Health Education Association (“OPHEA”) guidelines. OPHEA guidelines were considered to be mandatory for TDSB physical education activities and excursions. OPHEA guidelines for multi-day canoe trips or canoe trips that involved travel more than two hours from emergency services required that all students pass a swim test without wearing a lifejacket. For canoe excursions that did not involve overnight travel or travel more than two hours from emergency services students could participate if they completed the swim test with a lifejacket.

43Mr. Mills was aware that the information for the trip approval that he provided to the TDSB Superintendent through his principal and vice-principal was misleading.

44Ms. Leizer testified that in 2017 she was generally familiar with the OPHEA guidelines and the TDSB Excursion Policies and Operational Procedures. She did not remember if she reviewed them prior to the 2017 REACH trip. She did not remember reviewing any specific activity pages of the OPHEA guidelines before the trip. She did not remember if she discussed the OPHEA guidelines with Mr. Mills before the trip. She had no specific memory of discussing the OPHEA guidelines with Mr. Mills in earlier years but believed that she probably would have done so in the first year. Ms. Leizer did not participate in preparing the paperwork for the approval of the trip by the TDSB.

45Ms. Leizer asked Mr. Mills about the change in the language in the information package on the Monday before the Algonquin Park trip. This was during the five-day pre-trip preparation at C.W. Jefferys. Mr. Mills told her that the protocol would be the same and that the students would be wearing lifejackets. Ms. Leizer did not think that students who did not pass the swim test were to be excluded from the trip. She did not ask Mr. Mills about providing swim lessons or swim coaching prior to the trip.

46Mr. Mills testified that Dr. Gala was aware that Mr. Mills allowed non-swimmers to participate on the trip and that Dr. Gala supported this approach. The students who were unable to swim were generally students who had been unable to access swimming lessons because they were members of historically underserved groups. Mr. Mills testified that Dr. Gala had agreed with him, that it would be inequitable to deny these students the opportunity to participate in this leadership activity because they could not swim as long as the trip could be conducted safely with non-swimmers. Mr. Mills testified that he had explained to Dr. Gala that under the OPHEA guidelines students would be permitted to go on a canoeing day trip if they could pass the swim test with a lifejacket and that it made no sense to have a different rule for overnight trips. Mr. Mills testified that Dr. Gala agreed that it made no sense and agreed with Mr. Mills’ modification of the OPHEA guidelines.

47In his testimony, Dr. Gala denied that he was aware that Mr. Mills was not following the OPHEA guidelines. He said that he was not aware that the information provided to the Superintendent was misleading. He was not aware that non-swimmers were being allowed to attend the trip. Dr. Gala’s evidence was that prior to the 2017 trip, Ms. Linton from the Superintendent’s office asked him if the OPHEA guidelines would be followed and Dr. Gala told her that they would be followed. He testified that he believed Mr. Mills was following the guidelines.

48Under cross-examination, Dr. Gala agreed that in the early years of the trip the swim testing occurred in the school pool. He agreed that he saw students in the pool with lifejackets. He testified that he did not know if the students were being tested when he saw them with lifejackets. He denied that he was aware that the testing occurred with lifejackets. In a 2018 statement to the police, when asked if he was ever present during the swim testing, Dr. Gala replied that he did witness it in the first or second year at the C.W. Jefferys pool. When asked at trial to explain this prior statement, Dr. Gala testified that he saw the students in the pool but did not know if they were being tested at the time.

49I accept Mr. Mills’ account of his conversations with Dr. Gala. I find the inconsistency between Dr. Gala’s police statement and his testimony at trial about observing the swim testing in the pool in the first two years of the programme impacts on his credibility and reliability.

50I have also taken into account the testimony of Judyann Hypolite, the mother of Ariel Hart-Hypolite, who testified that she was concerned about the swimming on the trip and called Dr. Gala to ask about the swim test. She recalled that Dr. Gala told her that all the students took the test while wearing a lifejacket.

51In reaching the conclusion that Dr. Gala is not credible or reliable on the issue of his awareness of the nature of the swim testing with lifejackets, I have also taken into account problems with Dr. Gala’s evidence on other points.

52Dr. Gala testified that he did not know that Mr. Mills brought his dog on the trip and that he had told him not to do so. However, Dr. Gala received and printed flyers from Mr. Mills for the 2017 REACH trip to be posted at the school. These flyers included photographs from previous trips that showed Mr. Mills’ dog. Dr. Gala testified that he did not pay attention to the flyers. This is not consistent with his testimony that he was interested in and supportive of the programme.

53Dr. Gala testified that he did not know that Mr. Mills brought his son on the trip and that he had told Mr. Mills in 2016 that he could not bring his children on field trips. He testified that he only found out after the 2017 trip that Mr. Mills’ son had attended. He said that the issue had previously arisen when Mr. Mills’ ex-wife complained to Dr. Gala that her children had attended a field trip. Dr. Gala agreed that after he told Mr. Mills not bring his son on the trips, he received emails from Mr. Mills in 2016 about the fact that he needed his son to attend the trip or he would have to cancel because of childcare issues. The trips were not cancelled.

54I find that, as Mr. Mills testified, Dr. Gala relented and orally gave his permission to Mr. Mills to bring his son that year. Dr. Gala sent an email to Mr. Mills’ ex-wife who had raised an issue about the participation of Mr. Mills’ children in the activity. That email said that he had recommended against the attendance of the children. It did not say that he had prohibited the participation of Mr. Mills’ children.

55Mr. Mills made no secret of his son’s attendance on the trip in 2017. The vice-principal of the school co-signed a record of community hours for Mr. Mills’ son so that he would receive credit for 84 hours of community work for his participation as a leader on a wilderness canoe trip.

56Dr. Gala’s lack of credibility on these issues undermines his general credibility and reliability.

57Mr. Mills’ evidence with respect to Dr. Gala’s knowledge of the non-compliance with the OPHEA guidelines with respect to swim testing is consistent with the evidence of Judyann Hypolite and with the evidence that the swim testing was conducted on site in previous years with lifejackets. I accept Mr. Mills’ evidence.

58I find that Mr. Mills, with the explicit or tacit approval of Dr. Gala, made a considered decision to allow non-swimmers to participate in the canoe trip. I find that Mr. Mills, through Dr. Gala, misled the Superintendent when he indicated that students would not attend unless they passed the swim test. He was fully aware that he would not be following several of the OPHEA guidelines on the trip and he concealed that intention from the Superintendent who approved the trip.

59I do not find that the conduct of Mr. Mills in providing misleading information to the Superintendent was a significant contributing cause of Jeremiah’s death. I cannot find that ‘but for’ the misleading conduct the trip would not have occurred. The trip could have been cancelled or it could have been modified. If there was a requirement that students pass the swim test without a lifejacket, Jeremiah may have completed the test without one.

Information Provided to the Students and Parents

60The same information that was provided to the TDSB formed part of the information package sent home to parents with the permission forms. Mr. Mills, in his testimony, agreed that a parent could be misled by the suggestion that there was coaching for students who failed the swim test and the information that the student had to pass the test before they would be permitted to attend the trip.

61Parents were called as witnesses, and some testified that they did not know anything about Algonquin Park. They were not aware of the physical demands of the trip and they had not been adequately informed of the risks of a wilderness canoe trip.¹³

62The information package included information that the trip was a six-day canoe trip in Algonquin Park and that the students would be sleeping in tents. The itinerary listed the destination lakes in Algonquin Park for each day of the trip. The form also indicated that the students would be participating in high-care activities that involve increased risk and special safety considerations or require special qualifications or certification for supervision. The form indicated that appropriate supervision would be provided.

63Jeremiah’s father, Joshua Anderson, testified that he did not read the information package. He signed the permission forms for both of his sons to attend the trip. Mr. Anderson was not aware of his sons’ swimming abilities. Jeremiah and his brother had only recently come to live with their father. Jeremiah had come to Canada in September 2016. However, he returned to Guyana for a few months from December 2016 to March 2017. Around March or April of 2017, he returned to live with his father.

64At one point before the trip, Mr. Anderson had decided that he would no longer allow Jeremiah and his brother to attend the trip. This was a form of discipline because they were not applying themselves in school. Mr. Anderson believed that they were looking forward to the trip and that allowing them to attend would be a reward. Mr. Mills spoke to Mr. Anderson by telephone and convinced him to allow the boys to attend. He told him that they would get a school credit and he assured Mr. Anderson that although they would miss the beginning of summer school, he would clear this with their summer school teachers. Mr. Anderson relented and allowed the boys to attend the trip. At no point in the telephone conversation did Mr. Mills speak about the risks of the trip. He did not discuss the swim test. Mr. Anderson did not ask about the risks or seek any details about the demands of the trip or the results of the swim testing.

65Mr. Anderson testified that although he did not read the information package, he was familiar with the permission forms from the TDSB. He had experience with his children attending school excursions. He believed that there were safeguards that would be in place. He trusted that the school and the TDSB would ensure the safety of the students.

66Mr. Anderson was correct that the TDSB had guidelines and rules to ensure that excursions would be conducted safely. Those guidelines and policies will be discussed in more detail later in these reasons. They include the OPHEA guidelines. What Mr. Anderson was not told was that Mr. Mills had decided that the institutional safeguards were not necessary and that he would not follow them. As I have already found, he misled the Superintendent so that the trip would be approved even though the OPHEA guidelines would not be followed.

67I find that Mr. Anderson was not misled by the information package because he did not read it. However, I find that the conduct of Mr. Mills in misleading the Superintendent with respect to the safeguards in place impacted on the validity of the consent granted by Mr. Anderson for Jeremiah to attend the trip. Mr. Anderson testified that he did not read the information package, but he trusted that there would be safety precautions because it was a TDSB sanctioned trip. Mr. Mills knew that the institutional safeguards of the TDSB would not be followed. He did not alert Mr. Anderson to this fact. I find that as a result, Mr. Anderson’s consent was not an informed consent.

68Although there was no informed consent, I cannot find that the absence of informed consent was a significant contributing cause of the death of Jeremiah. I cannot conclude that Jeremiah would not have attended the trip had his father known that the OPHEA guidelines were not being followed.

Sparrow Lake Camp

69The Crown relies on evidence of the planning and organization of the training and swim testing at the Sparrow Lake Camp as evidence of a pattern of conduct on the part of Mr. Mills that demonstrated a wanton and reckless disregard for the safety of the students on the trip, including Jeremiah Perry. The Crown called evidence from Sparrow Lake staff that Mr. Mills was late, had not provided sufficient information in advance, did not participate in the canoe training, and did not closely observe the swim testing.

70Additionally, the Crown relies on the evidence of three Sparrow Lake staff members who testified that they warned Mr. Mills of the risks of taking the group on a wilderness canoe trip and that Mr. Mills appeared to dismiss their concerns.

71The Crown also called evidence of utterances made by Jeremiah Perry at Sparrow Lake Camp about his swimming ability and observations of the staff about Jeremiah’s comfort level in the water as evidence that Jeremiah could not swim. I will consider this evidence separately when I review the evidence of Jeremiah’s ability to swim.

Testimony of Mr. Mills

72In the first two years of the REACH program, Mr. Mills did the pre-trip training and swim test in the pool at C.W. Jefferys school. In the third year of the program (2015) he began taking the students to Sparrow Lake Camp for the swim test, canoe training and some team building exercises. In 2015 and 2016 the camp director was a man named Rob Crewe. He permitted Mr. Mills to design and run the program for the students. In those years, the swim test was conducted by Sparrow Lake staff but the lifeguards for the trip participated. The lifeguards took the test first and then remained on the dock with the Sparrow Lake lifeguard to observe the testing of the other students. In those years, Mr. Mills and Ms. Leizer were also on the dock observing the students.

73For the canoe skills training in 2015 and 2016, Mr. Mills was one of the instructors. The group was broken down into small groups with either a Sparrow Lake Camp instructor or Mr. Mills.

74In 2017 the REACH program again included a trip to Sparrow Lake Camp. A group of 38 students travelled to Sparrow Lake Camp on June 21, 2017. They arrived late in the morning on June 21st and left in the afternoon on June 22nd.

75Mr. Mills and Kelli Leizer attended that camp with the students. A volunteer youth worker from the Griffin Centre also accompanied the group. The other leaders for the canoe trip (Eren Howell, Vera Souza, Ron Reid and Bradley Ferguson) did not attend the Sparrow Lake Camp.

76Upon arrival there was a swim test for all the students. This was followed, after lunch, with canoe skills including paddling, portaging and a canoe tipping exercise.

77The swim test that was requested by Mr. Mills and administered by the Sparrow Lake lifeguards was one that allowed the students to wear a lifejacket if they wished to do so. The students were to slip or jump into the water, swim approximately 30 to 40 meters and tread water for one minute. The OPHEA swim test for a canoe tripping activity required the students to roll into the water, swim 50 meters and tread water for one minute, all with no lifejacket.

78Mr. Mills told the students prior to arriving at Sparrow Lake Camp that they could take the swim test in a lifejacket but that if they wore a lifejacket for the test, they would have to wear one when swimming on the trip.

79During the swim testing, Mr. Mills was on the beach near the dock where the groups of children were waiting for their turn to do the swim test. He testified that he was not permitted to be on the dock close to the testing. He was with Mr. Mackie, the program director of the camp, for most of the swim testing time. During some of that time, Mr. Mills and Mr. Mackie discussed the OPHEA guidelines. Mr. Mills expressed frustration with the OPHEA guidelines. Among other things, he said to Mr. Mackie that if the guidelines were followed, many students would be prevented from attending a canoe trip because they could not swim. Mr. Mackie also expressed some frustration with aspects of the OPHEA guidelines, including the requirements for kayak instructors.

80Mr. Mills testified that Mr. Mackie spoke to him about requiring students to wear a lifejacket whenever they were within three meters of the water because it was a requirement of the OPHEA guidelines. Mr. Mills dismissed this because he was familiar with the OPHEA guidelines and knew that this was not a requirement. He also believed that such a rule was not practical because of the nature of many of the campsites where they camped within three meters of the water.

81While the testing was being conducted, Mr. Mills was aware that Kelli Leizer was recording the results.

82Canoe skills training was conducted after the swimming tests. Mr. Mills testified that Ms. Weeden, the camp director, did not want him to deliver the canoe skills training as he had in the past. Instead, Ms. Weeden and Clayton Freeborn conducted the training.

83Ms. Weeden and Mr. Freeborn suggested teaching canoe over canoe rescue to the group. Mr. Mills told Ms. Weeden and Mr. Freeborn that it did not make sense to teach canoe over canoe rescue to the group because they would not be doing a canoe over canoe rescue and would not be able to master the skill in the time available. The leaders would do the rescue if necessary. Mr. Mills testified that Ms. Weeden also offered to teach him canoe over canoe rescue, but he declined because he already knew the skill.

84Mr. Mills suggested that every student should tip out of a canoe and try to get back in. It was agreed that this would be useful.

85Mr. Mills recalled that for the canoe tipping exercise there were two senior students who knew canoe over canoe rescue in a designated rescue canoe, Clayton Freeborn was in the water near where the students would tip out of their canoe, Ms. Weeden was in another canoe a bit further out and Mr. Mills was on the dock. Mr. Mills organized the students to get in the canoe and go out and tip. He watched the students tip out of the canoe, “monkey hang” from the rescue canoe and attempt to get back in their canoe. He saw Jeremiah do these things and Jeremiah appeared comfortable in the water during the exercise.

86As the group was leaving the camp, Mr. Mills had a conversation with Ms. Weeden and Mr. Freeborn. He recalled that while they were at the bus, Ms. Weeden said words to the effect of “these kids are a handful”. She had a “little smirk” on her face as she said this. Mr. Mills smiled and agreed, saying that he knew they were and that is one of the reasons he went to work in that neighbourhood. Next, either Ms. Weeden or Mr. Freeborn suggested that Mr. Mills should hire them to come on the canoe trip. This was said in a joking way and Mr. Mills took it as a joke.

87Mr. Mills would have liked the students to have had more time in the canoes but was of the view that the skills training had been conducted properly and that the students had received sufficient canoe training to undertake the trip.

88Mr. Mills scanned the swim test results that Kelli Leizer retained. He believed that he saw a ‘P” for pass by Jeremiah’s name. This made sense to him because he had seen Jeremiah move comfortably in the water with his lifejacket after tipping and because Mr. Mills knew of Jeremiah’s athleticism. Jeremiah had in fact worn a lifejacket for the test and had been recorded as a fail.

Testimony of Barbara Weeden

89In 2017, Barbara Weeden took over as camp director at Sparrow Lake Camp. Ms. Weeden had about 30 years of experience in wilderness camping, wilderness canoe tripping and canoe instruction. She had her Wilderness First Responder qualification in First Aid. She was an Ontario Recreational Canoeing and Kayaking Association (“ORCKA”) instructor in canoe tripping and lake water canoeing.

90Ms. Weeden testified about the preparation and arrangements for the program at the camp and the events that occurred at the camp.

91Ms. Weeden was aware that the students were preparing for a canoe trip and that the purpose of the Sparrow Lake Camp training was to teach canoeing skills, portaging and canoe over canoe rescue and to administer swim tests.

92In her testimony at trial, Ms. Weeden said that the number of students that were brought to Sparrow Lake Camp created a problem because she was conducting staff training at the time of the REACH program. The two lifeguards who administered the swim tests had to stay back from the staff training and Ms. Weeden and Mr. Freeborn also had to stay back from the staff training to facilitate the program for Mr. Mills and the students. Ms. Weeden testified that the group arrived late on June 21st and that she did not know until the last minute that a second school was involved. Ms. Weeden said that when they arrived, they did not have any paperwork.

93In cross-examination, Ms. Weeden agreed that Mr. Mills had returned the booking form as requested on June 15th. She agreed that she had not sent the form to him until June 14th. Upon being taken to an email dated June 17th, she agreed that he had told her there was another school involved and that he had told her about the number of people who would be attending the trip.

94Ms. Weeden testified that when Mr. Mills and the group arrived at Sparrow Lake Camp, he was asked whether he had any lifeguards with him, and he said that he did not. Ms. Weeden could not recall if she was physically present for this question and answer or whether Mr. Mackie asked Mr. Mills and Ms. Weeden overheard the answer. Ms. Weeden testified that Mr. Mills had told her originally that there would be lifeguards attending but there were no lifeguards. As a result, she had to pull an additional lifeguard off camp training. Later in the cross-examination, Ms. Weeden said, “Christopher Mackie asked Mr. Mills and I’m pretty sure I was there when that conversation occurred.”

95At the preliminary inquiry, Ms. Weeden testified that prior to the arrival of the group, she had expected Mr. Mills to do the swim testing and that it was only after they arrived that she discovered they did not have the qualified personnel to do the testing. At trial, Ms. Weeden testified that she never planned to have Mr. Mills do the testing and that she must have been confused at the preliminary inquiry.

96Ms. Weeden was not present at the swim test, but she testified that she was involved because Christopher Mackie consulted her by walkie talkie about the swim test. On Ms. Weeden’s evidence, Mr. Mackie was “quite upset” that Mr. Mills did not want to do the OPHEA swim test because most of the students would not pass it. Ms. Weeden testified that Mr. Mackie was “very adamant that they do the OPHEA test”. They talked it through, and it was agreed that the lifeguard would administer a camp test and the students could take the test with a lifejacket, but that it would automatically be recorded as a fail.

97Mr. Mackie testified that he inquired about what test was to be administered and that he learned from Mr. Mills that the camp test would be administered because most students would not pass the OPHEA canoe tripping test. Mr. Mackie did not testify that he was upset about the test or that he was adamant that the OPHEA test be used.

98Ms. Weeden testified that Mr. Mills did not participate in the canoe skills training. In her examination-in-chief when asked why Mr. Mills did not participate, she said, “I ... I'm not sure. I -- I -- I don't know why he didn't participate. He didn't come out in the canoes. I would have had 18 -- 18 or 19 participants, which was a big group. So, I split them in half, and he stayed on -- on land while I did the instruction.”

99She agreed, however, that she would not have permitted him to conduct the training himself. She did not view him as qualified to instruct although he had his ORCKA Level 3 canoe tripping qualification which qualified him to instruct according OPHEA standards.

100Ms. Weeden was taken to her evidence at the preliminary inquiry where she was asked about Mr. Mills’ participation in the swim testing and canoe skills training:

QUESTION: And he came up to the lake and it was your expectation as of his arrival that he would do the testing?

ANSWER: Yes.

QUESTION: And then you decided that he didn't have the personnel, qualified personnel, to do it.

ANSWER: Correct.

QUESTION: And you understood he'd done it in the past. Right?

ANSWER: Yes.

QUESTION: With your predecessor, Rob Crewe?

ANSWER: Yes.

QUESTION: And that was for a couple of years he had done the canoe training at the lake.

ANSWER: Yes.

QUESTION: And the swim testing?

ANSWER: Yes.

QUESTION: All right. And in what way was he -- was his group unqualified to do the testing this year?

ANSWER: There was no proof of any current certification.

QUESTION: Of who?

ANSWER: Of anyone on the trip, including the teachers.

QUESTION: So, Mr. Mills had told you that he was ORCKA qualified, but you didn't accept that without a certificate; is that right?

ANSWER: And through our conversation that we had, I knew that he wasn't a current ORCKA certified trip leader.

QUESTION: You knew he was not a current ORCKA certified trip leader as of June 21st, 22nd, 2017?

ANSWER: Correct.

QUESTION: And how did you determine that?

ANSWER: Through our conversation. And there was no proof of current certification either.

QUESTION: So, you're saying he took back in his own conversation, what he had suggested in his e-mail.

ANSWER: Yes.

101Ms. Weeden’s testimony at the preliminary inquiry is not consistent with her testimony at trial. She agreed that Mr. Mills had his ORCKA Level 3 canoe tripping qualification and that he had told her about his qualification in the March 31st email. Ms. Weeden tried to explain her earlier testimony by saying that she meant that Mr. Mills did not have his canoe instructor qualification.

102She said in her testimony at trial, “…it would be great in my mind for them to help us out. That would have been fantastic. But that never happened.” Ms. Weeden agreed under cross-examination that Mr. Mills had offered, in his email correspondence, to be involved in the canoe instruction.

103Ms. Weeden testified that the students each only had about 20 minutes on the water practicing canoe skills because of the size of the group and the limited time available. She said that she would not have allowed Mr. Mills to instruct a separate group in order to reduce the size of the groups and to give the students more time on the water. Mr. Mills had asked that the students be permitted to canoe into the lake to practice but Ms. Weeden said no, because it was too windy and too risky.

104Ms. Weeden testified that Mr. Mills did not want the students to be taught canoe over canoe rescue because there was insufficient time to learn the skill. He suggested canoe tipping and Ms. Weeden agreed that the canoe tipping exercise was useful. Ms. Weeden and Clayton Freeborn demonstrated a canoe over canoe rescue and then the students all did a canoe tipping exercise.

105Ms. Weeden testified that the students only tipped out of the canoe and hung on to the canoe and then got out of the water. There was no attempt to get back in.

106Ms. Weeden was situated in her canoe set back from the tipping while the canoes were tipped. Clayton Freeborn was in the water near the canoes. Ms. Weeden testified that many students came up from the water reaching as if climbing a ladder. Ms. Weeden remembered Jeremiah Perry expressing fear during the canoe instruction and she remembered Clayton Freeborn coaching Jeremiah through the canoe tipping.

107Ms. Weeden testified that at some point over a meal she said to the two teachers, Mr. Mills and Ms. Leizer, that they had their hands full and that this is a big risk, taking the group into Algonquin Park.

108Ms. Weeden also said that before Mr. Mills left the camp, she and Mr. Freeborn said to Mr. Mills, “you should hire us to help you” or “you should hire us to go along”. She testified that they said this in a joking way.

Testimony of Clayton Freeborn

109Clayton Freeborn was a canoe skills instructor at the camp. He taught portaging and he assisted with the canoe tipping exercise.

110Clayton Freeborn said that he made the suggestion to Nicholas Mills that the students do the canoe tipping. He also testified that the students simply tipped out of the canoe and then walked out of the water. After being taken to a previous statement, he agreed that the students tipped out of the canoe and hung on to a rescue canoe, but he did not agree that they got back into the canoe.

111Clayton Freeborn testified that Jeremiah Perry gasped and showed a “swimmer’s reach” grasping at the water when he came up. He also testified that Jeremiah recovered quickly and remained in the water to assist with the canoes.

112Mr. Freeborn testified that he and Ms. Weeden tried to warn Mr. Mills, that the students were not prepared for the trip. He testified they told Mr. Mills that the students were not ready and that he needed more people on the trip or should be hiring himself and Ms. Weeden. Mr. Freeborn disagreed that he said this in a joking way. In cross-examination, he was taken to an earlier statement in which he said that they “semi-joked about hiring us”. Mr. Freeborn testified that he said that in his statement because he was concerned about being implicated in the drowning. This explanation makes no sense. If he was concerned about being implicated, it would make sense that he would tell the authorities that he issued a serious warning, not that he ‘semi-joked’.

Testimony of Christopher Mackie

113Christopher Mackie was the program director at Sparrow Lake Camp. Mr. Mackie planned the itinerary for the visit to the camp. He was present for the swim testing but not for the canoe skills portion of the program. He testified that many students were nervous and did not want to swim. He recounted a conversation with Jeremiah Perry in which Jeremiah said that he and his brother could not swim. Mr. Mackie facilitated the swim test by providing lifejackets for those who were not comfortable swimming without a lifejacket and by encouraging the students to take the test. Mr. Mackie testified that he and Mr. Mills discussed OPHEA guidelines and that Mr. Mills was critical of many of the guidelines.

114Mr. Mackie testified that he was not aware that Mr. Mills was bringing lifeguards. He had been told in a meeting with Barbara Weeden that Mr. Mills would be able to assist the Sparrow Lake lifeguard who was going to do the test. However, he learned that Mr. Mills did not have a current NL certification or Bronze Cross. Mr. Mills had OTAS certification which was not a qualification with which Mr. Mackie was familiar. As a result, Mr. Mackie arranged for a second lifeguard to assist Ms. Kassandra Espinola, the Sparrow Lake lifeguard who had already been scheduled to do the testing.

115Mr. Mackie testified that until he had a conversation with Mr. Mills just before the swim testing, he had been unaware that the group was preparing for a six-day wilderness canoe trip. Mr. Mackie testified that he thought the students were attending the camp to learn some outdoor skills. It was pointed out to Mr. Mackie in cross-examination that he had prepared the itinerary for the group. The itinerary noted “students are here to learn tripping skills, upcoming six-day canoe trip”. Mr. Mackie's only explanation for this inconsistency was that he must have forgotten what he had written on the itinerary. Mr Mackie could not explain how it was that he had prepared Ms. Espinola to administer the OPHEA canoe trip swim test in spite of the fact that he was unaware that the students were preparing for a six-day wilderness canoe trip.

116Mr. Mackie testified that they clearly explained to the students that if they were not comfortable in the water, they could wear a lifejacket. He also testified that the students were clearly told that if they wore a lifejacket it would be an automatic fail.

117Mr. Mackie testified that he told Mr. Mills he thought that the students, while on the trip, should wear a lifejacket whenever they were within three meters of the water. In a statement to the police on August 31, 2017, Mr. Mackie told the police that he had reminded Mr. Mills that OPHEA standards state that anyone within three meters of the water must be wearing a lifejacket. When it was suggested to Mr. Mackie at trial that he told Mr. Mills this was an OPHEA standard, he denied saying this. He testified that he only told Mr. Mills that the children should be wearing lifejackets when within three meters of the water. He agreed that he had believed this was an OPHEA standard but had later learned that he was wrong. Mr. Mackie testified that Mr. Mills appeared to dismiss his warning.

Testimony of Kassandra Espinola

118Kassandra Espinola was the lifeguard who administered the swim test. Miss Espinola testified that she explained to the students before the test that if they were not comfortable in the water, they could wear a lifejacket for the test. She also explained that if they wore a lifejacket it would be an automatic fail. Ms. Espinola agreed that not all the students appeared to be paying attention as she explained this. Many of the students wore lifejackets for the test.

119Students came down the dock in groups of five. The five students would slip into the water and then would swim to the buoy line and back. After that, the students would have to tread water for one minute.

120Ms. Espinola conveyed the results of the tests to Kelly Leizer who appeared to be recording them on a sheet of paper.

121Ms. Espinola made observations of Jeremiah’s comfort in the water during the swim test. She testified that he did not know how to tread water and although she tried to explain it to him, he could not master the skill. Instead, she had him float and do a “starfish”. I will review that evidence in more detail later in these reasons when I address the issue of Jeremiah’s swimming ability.

Other Evidence concerning the Sparrow Lake Camp

122The evidence of the weather reports shows that the day of the Sparrow Lake swim testing was cold and windy. Mr. Mackie, Mr. Mills and Ms. Espinola testified that many of the students were expressing reluctance to enter the lake and had to be encouraged to take the test.

123Jahliel Lewis, one of the students who attended Sparrow Lake Camp and went on the Algonquin Park trip, testified that he took the test in a lifejacket even though he could swim. Ariel Hart-Hypolite, another student on both trips, testified that she could swim but took the test in a lifejacket. None of the students who testified recalled being told by Sparrow Lake staff that if they wore a lifejacket, they would fail the test.

124Jahliel Lewis testified that he and everyone else tipped out of a canoe, hung from the canoe and then got back in. Reduan Damile recalled tipping out of the canoe, swimming to another canoe and hanging from the canoe in the exercise at Sparrow Lake. Ariel Hart-Hypolite and Robyn Tyrell did not remember doing the tipping exercise at Sparrow Lake. Adrian Coufadis recalled demonstrating for the other students how to tip out of the canoe and hang onto it and flutter kick it to the shore or dock. He did not recall the other students doing the exercise. Aalyha Charles recalled being taught to tip out and get back into the canoe at Sparrow Lake.

Findings of Fact re Sparrow Lake Camp

125I make the following findings of fact with respect to events at Sparrow Lake Camp.

126I accept Mr. Mills’ evidence, that he had told the students before their arrival at Sparrow Lake that they could take the swim test with a lifejacket and it would not affect their ability to attend the trip. He told them that if they wore a lifejacket during the test, they would have to wear one while swimming on the trip. The subsequent information from Sparrow Lake staff, that wearing a lifejacket on the test would result in a “fail”, was largely irrelevant to the students and therefore they did not pay attention to it.

127I find that Mr. Mills communicated the number of attendees, the fact that there were two schools, the nature of the skills they hoped to gain and the qualifications that he held that would allow him to assist with the program. He communicated his intention to bring lifeguards and did bring lifeguards. Until he arrived on the day the program was to start, he had not been told that he or his lifeguards could not assist in the program. The evidence of Ms. Weeden, that Mr. Mills failed to bring lifeguards, was inconsistent with the evidence of Mr. Mackie and with the evidence of Mr. Mills. The testimony of Mr. Mills on this issue was consistent with the email correspondence and with the records that show that the lifeguards attended Sparrow Lake Camp.

128I accept the evidence of Mr. Mackie, that he told Mr. Mills he thought that the non-swimmers should have to wear a lifejacket when they were within three meters of the water. I find that he tied this to OPHEA guidelines but that the suggestion was not limited to a statement of the OPHEA guideline requirements. Mr. Mills’ evidence, that Mr. Mackie was stating an OPHEA guideline and for that reason Mr. Mills paid no attention to it because he knew it was not an OPHEA guideline, does not make sense. Mr. Mills had already determined that he would ignore or modify other OPHEA guidelines. There would be no purpose in Mr. Mackie simply reciting a guideline. The fact that the suggestion made by Mr. Mackie was not part of the guidelines would not be a reason for Mr. Mills to reject it. I do accept that Mr. Mills rejected the suggestion, but this was because he decided that the three meter rule was impractical.

129Ms. Weeden failed to communicate to Mr. Mackie or Clayton Freeborn that Mr. Mills held qualifications as a canoe tripper. Ms. Weeden chose to divide the large group into two and to split the training between herself and Clayton Freeborn rather than use Mr. Mills to help with the training. To the extent that this reduced the training time for the students, this was not the fault of Mr. Mills. I do not find Ms. Weeden’s evidence, that she believed Mr. Mills lacked the qualifications to instruct as a canoe tripper, to be credible and reliable. Her testimony on this point was internally inconsistent and it was inconsistent with her prior testimony at the preliminary inquiry.

130I find that Mr. Mills would have been happy to participate but that it was made clear to him that only Sparrow Lake staff would conduct the programs. I accept Mr. Mills’ evidence in this regard. It is logical and consistent with other evidence. Mr. Mackie also testified that Mr. Mills spoke to him at Sparrow Lake Camp and described that in previous years he had run the program himself. Mr. Mackie explained to Mr. Mills that under the new executive director, the Sparrow Lake staff were more involved and following better guidelines. They were no longer allowing people to have “free rein” around the campsite.

131I find that in her testimony, Ms. Weeden suggested that Mr. Mills allowed too little time for skills training, failed to provide correct and timely information, and showed a lack of interest in participating in the program. I do not accept Ms. Weeden’s evidence. She showed a willingness to testify as to events or utterances that simply did not occur. She testified repeatedly that she heard Mr. Mills say that he did not bring any lifeguards. This did not happen. She later appeared to say that she may have heard this from Mr. Mackie. Mr. Mackie never asked Mr. Mills about lifeguards.

132Overall, Mr. Freeborn’s credibility and reliability were also weak. He appeared to have significant difficulty remembering the canoe tipping exercise. He had no recollection of the students hanging off the rescue canoe or attempting to reboard the canoe. He recalled that he suggested the exercise, but Mr. Mills and Ms. Weeden recalled Mr. Mills suggesting canoe tipping. Mr. Freeborn insisted that he and Ms. Weeden had issued a serious warning about the preparedness of the students, but this is not consistent with his prior statement, and it is not consistent with the evidence of Mr. Mills nor that of Ms. Weeden on this point. Mr. Freeborn’s explanation, that he previously told investigators that the warning was made in a joking manner because he was concerned about liability, makes no sense. I find that the conversation between Mr. Mills, Ms. Weeden and Clayton Freeborn was a joking conversation and was taken as such by Mr. Mills.

133I accept the evidence of Mr. Mills, that Jeremiah seemed comfortable in the water after the canoe tipping exercise. Mr. Freeborn’s evidence on this point was unreliable as he had little accurate recall of the exercise. I find that Ms. Weeden was not in a position to make reliable observations of the students as they came out of the water.

134There is no issue that Jeremiah Perry and others completed the swim test wearing lifejackets. I find that some of the students who wore lifejackets could, in fact, swim but were uncomfortable in the open water or misunderstood the instructions. Both Ariel and Jahliel believed that they were required to wear lifejackets.

135I find that the canoe skills portion of the program was adequate to prepare the students for the trip when considered in the context of the five-day pre-trip preparation at the school.

Preparation at C.W. Jefferys

136Following the Sparrow Lake Camp weekend, the students attended C.W. Jefferys School for five school days to prepare for the trip. This included shopping, packing and meal planning. The equipment for the trip was checked.

137There was some discussion of safety rules at the campsites and on the water. The students were given information about Algonquin Park, about the routes and about the campsites.

138Kelli Leizer described meetings with lifeguards and student mentors to review their roles.

Communication of the Swim Test Results

139Ms. Leizer believed that the students were within earshot when Kassandra Espinola told Ms. Leizer whether a student passed or failed. None of the students recalled being told whether they passed or failed the test. The students all believed that completing the test with a lifejacket did not mean that they failed. This makes sense because they had been told that they could take the test with a lifejacket and still attend the trip.

140Parents were not told by Mr. Mills or the school whether their child took the test with or without a lifejacket.

141Lifeguards and leaders were not told whether the students they supervised took the test with or without a lifejacket. Lucia Fernandez testified that the level of swimming ability of the students made no difference to her actions in lifeguarding. The leaders of the other groups also testified that the swim tests results would not affect their supervision of the students.

Safety Measures and Rules for the Trip

Leaders and their Qualifications

142There were six adults leading the trip. The students were broken into five groups. There were three co-ed groups that travelled together in one direction on the trip and one all-girls group and one all-boys group that travelled together in the opposite direction.

143Mr. Mills led one co-ed group of eight students that included Lucia Fernandez, who was the lifeguard for the group. Jeremiah was in Mr. Mills’ group.

144Mr. Mills possessed certifications in two areas related to canoeing – one in “canoe tripping” and one in “paddling”. His canoe tripping qualification was the highest level available in Ontario. Mr. Mills also held a certification as a Wilderness First Responder which qualified him to provide advanced first aid in a wilderness setting.

145By the time he began the REACH Programme, Mr. Mills had many years of experience leading wilderness canoe trips.

146Mr. Mills had previously obtained his Life Saving Society Bronze Cross but had not recertified since 1993. His only swimming qualification in July of 2017 was “OTAS” or Ontario Teachers Aquatic Standard. This standard did not qualify Mr. Mills as a lifeguard. Nor did it qualify him to administer swim tests.

147Vera Souza led a co-ed group of seven students. This group had no lifeguard.

148Vera Souza did not have formal canoe tripping certifications but had experience leading canoe trips and had a certification for Wilderness Advanced First Aid and CPR. Ms. Souza had no qualifications as a lifeguard but was a strong swimmer who had previously swum competitively at a high level.

149Bradley Ferguson led a group of six students that included Rotimi Osagie and the lifeguard for the group. Bradley Ferguson held Scouts Canada certifications. He had basic First Aid and CPR certification. He did not have any formal swimming training.

150Ron Reid and Kelli Leizer jointly led an all-girls group of five students that included a lifeguard.

151Ron Reid held Scouts Canada certifications and had years of experience leading canoe trips.

152Ms. Leizer was an experienced teacher who had taught physical education and leadership since 1998. She did not have canoe tripping experience before her first REACH canoe trip in 2014 but had some canoeing experience. She had her Wilderness Advance First Aid qualification by 2017.

153Eren Howell led an all-boys group of six students that also included a lifeguard.

154Eren Howell had qualifications as an Outdoor Recreation Technician through Seneca College. He had also completed some ORCKA canoe instructor certifications and some swimming certifications, but those certifications had lapsed by 2017. Mr. Howell had considerable experience as a canoe trip leader. He owned and operated a commercial outfitting operation that ran trips for customers who wanted to take canoe trips with their dogs.

Rules for the Trip

155Mr. Mills, Ms. Leizer, Mr. Ferguson, Mr. Howell and all students who testified were clear that two rules had been articulated and were understood by the trip participants: lifejackets had to be worn and properly done up while in the canoe and no one could swim without a lifeguard present.

156Mr. Mills testified that the rule for swimming was that all students who took the swim test in a lifejacket had to wear a lifejacket while swimming. He also testified that, with respect to the group of eight students that he led, regardless of the swim test results or whether they wore a lifejacket for the test, students could only swim without a lifejacket if he personally knew that they could swim. He believed that Ron Reid, Bradley Ferguson and Eren Howell would require all students to wear lifejackets to swim.

157Ms. Leizer testified that the rule in her group was that all non-swimmers had to wear a lifejacket when they were in or near the water. She instructed the lifeguard for the group that this was the rule. Those who could swim could decide whether to wear a lifejacket or not.

158Mr. Ferguson led a group of six students, one of whom was a lifeguard. Mr. Ferguson explained that on Scouts Canada trips there is no swim test and non-swimmers are permitted to participate. He also testified that there are no lifeguards on Scouts Canada canoe trips. Participants must always wear lifejackets while canoeing and while swimming.

159Mr. Ferguson testified that he was not told what the rule was for swimming on the REACH trip and he had no information about the swimming abilities of any of the students in his group.

160Mr. Ferguson was asked what his practice would be with respect to requiring a lifejacket for swimming on a trip that was not a Scouts Canada trip if he had a non-swimmer or weak swimmer and a lifeguard. He testified that he did not know what he would do. It would be a judgment call based on the circumstances including the depth of the water, the hazards in the water, the views of the lifeguard and the experience of the lifeguard.

161Eren Howell testified that his group swam but he required them all to wear lifejackets. He did not recall being told a rule with respect to lifejackets and swimming. His own rule was that everyone had to wear a lifejacket unless he knew that they could swim well.

162Many of the students who testified had little recollection of the rules around swimming with a lifejacket.

163Nina Ngo, who was in Kelli Leizer’s group, believed that everyone had to wear a lifejacket when they were in or near the water.

164Aalyha Charles, who was in Bradley Ferguson’s group, testified that it was not a “said rule” that they had to wear lifejackets while swimming. She was taken to an earlier statement in which she had said that Bradley Ferguson had required that their group wear lifejackets to swim. She ultimately said that she did not remember.

165Aaliyah De Freitas testified initially that she did not remember a rule with respect to lifejackets and swimming but she then adopted an earlier statement in which she said that Mr. Mills had told them that if they wore a lifejacket for the swim test they had to wear a lifejacket when in and around the water. She believed that he had told them this at Sparrow Lake Camp and at other times, but she could not remember when.

166Alexander Panteleev was in Vera Souza’s group. He could not remember a rule about swimming with a lifejacket. He was a strong swimmer who swam without a lifejacket on the third day of the trip.

167Ariel Hart-Hypolite was also in Ms. Souza’s group. She testified in examination-in-chief that she believed that lifejackets were optional for swimming. Under cross-examination, she said she believed that if a student wore a lifejacket for the test at Sparrow Lake Camp, they were supposed to wear one when swimming on the trip unless they were very close to shore. Ariel had worn a lifejacket for the test, and she wore a lifejacket when she swam on the third day of the trip, but she took it off when she was very close to shore.

168Jahliel Lewis was in Ms. Souza’s group. He believed that the rule was that if you did not do well on the swim test you had to wear a lifejacket to swim. He thought that Ms. Leizer had told them this, but he could not remember when she told them. He testified that he did not pay close attention to the rules for weak swimmers because he did not believe that the rule applied to him. He was a strong swimmer. Jahliel also testified that he took the swim test at Sparrow Lake Camp with a lifejacket because he was told to do so by the lifeguards. This is not consistent with the record from the testing which indicates a pass for Jahliel on the test. I cannot determine if Jahliel was mistaken in his recollection that he wore a lifejacket on the test or whether the result was improperly recorded. Jahliel testified that he told both Ms. Leizer and Mr. Mills that he was a strong swimmer.

169Reduan Damile was in Eren Howell’s group. He testified that the rule for their group was that they had to wear a lifejacket at all times.

170Adrian Coufadis was in Mr. Mills’ group. He testified that the rule was that if you needed a lifejacket for swimming you should wear one. He testified that he heard the rule for the first time at the campsite from Mr. Mills and he could not remember the rule ‘word for word’. He did not wear a lifejacket because he was a strong swimmer. He had taken the test at Sparrow Lake Camp without a lifejacket.

171Robyn Tyrell was also in Mr. Mills’ group. Her recollection of the rule with respect to wearing lifejackets while swimming was that if the student did not feel confident swimming, they could wear a lifejacket. She said that she was not 100% sure and was foggy about this. She thought that the rule with respect to lifejackets and swimming was related to the student’s ability to swim and to the test at Sparrow Lake. She also said that although she was a strong swimmer and had taken the test at Sparrow Lake without a lifejacket, she asked Mr. Mills for permission to swim without one.

172Jskeert Singh Rai was also in Mr. Mills’ group. He recalled that the rule was that if you could not “keep yourself up” you should wear a lifejacket to swim. He recalled that Mr. Mills said this at Sparrow Lake Camp before the swim test and that it applied to Sparrow Lake Camp and to the trip to Algonquin Park. Jskeert recalled that Mr. Mills repeated the rule at the first campsite. When he was taken by the Crown to an earlier statement to refresh his memory, he said that after reading the statement he guessed it was just at Sparrow Lake Camp. In cross-examination, he confirmed that he had a recollection of the rule being repeated.

173Lucia Fernandez was the lifeguard for Mr. Mills’ group. She was also lifeguarding for Ms. Souza’s group on the third day of the trip when Jeremiah drowned. Lucia recalled that lifejackets were optional while swimming. However, Lucia also described seeing Jeremiah swim the first day of the trip with a lifejacket and without one. She testified that she was “confused” about him swimming with and without a life jacket and that she considered it “a bit iffy”. She testified that they questioned Jeremiah as a group, but she could not recall specifically who questioned him. She said it was her and ‘possibly’ Adrian’. They asked Jeremiah if he knew how to swim and he said words to the effect of “yeah, don’t worry. I can swim”. Lucia did not relate the questioning of Jeremiah to any rule that she was supposed to enforce.

174Boran Balci was in Ms. Souza’s group. Boran could not swim and wore a lifejacket when he swam on the third day of the trip. He could not recall if there was a rule with respect to wearing a lifejacket while swimming.

Findings of Fact with respect to the Rules

175I accept the evidence of Mr. Mills, that he had a rule that if students wore a lifejacket during the test at Sparrow Lake Camp, they had to wear a lifejacket to swim on the trip. I also accept that his rule was that they had to wear a lifejacket unless he personally knew of their swimming ability and gave them permission to swim without a lifejacket. Mr. Mills’ evidence was consistent on this issue. It also is consistent with the understanding of some of the students on the trip.

176Many of the students were unclear about the rules around swimming with a lifejacket. The strong swimmers: Alex Panteleev, Jahliel Lewis, Robyn and Adrian Coufadis had little reason to pay attention to the rule because it did not apply to them. They were strong swimmers and knew that they were permitted to swim without a lifejacket.

177Several of the students were able to link the rule to the swim test although they were unable to recall the rule with clarity.

178Unlike the rules regarding lifejackets while canoeing and the need to have a lifeguard present before entering the water, the rule with respect to swimming with a lifejacket was not repeated enough to make an impression upon them. This was at least in part because there was little opportunity to swim.

179The rule in Mr. Mills’ group and Ms. Souza’s group was not the same as the other groups. The lifeguard, Lucia Fernandez, was not told of the rule in Mr. Mills’ group.

180The rule itself relied upon the students to self-regulate. Mr. Mills, on his evidence, had only “skimmed” the results of the swim test. Mr. Mills could not have remembered the results for all the students in his group and in Ms. Souza’s group.

Events of July 2nd and Jeremiah’s Ability to Swim

181There is a conflict in the evidence concerning Jeremiah’s ability to swim. I will now address this factual issue and the evidence of the events of July 2nd.

182The evidence of Jeremiah’s mother, Melissa Perry, was that Jeremiah could not swim. Before moving to Canada in 2016, Jeremiah lived with his grandmother in Guyana during the school year and in Barbados with his mother during the summers. Melissa Perry took her sons to the ocean to go in the water, but they did not go into deep water and generally had some kind of flotation device. When they went to the ocean, Ms. Perry would generally stand in the deeper water to act as a barrier and to watch her sons so that they did not go too far into the deeper water. Ms. Perry agreed that Jeremiah had expressed a desire to learn to swim but she could not afford to have him take swimming lessons. He was used to floating in the water with a lifejacket or other flotation device. Although she had not seen him in the water for over a year by the time of his death in 2017, Ms. Perry did not believe that in the intervening time he had learned to swim.

183Joshua Anderson, Jeremiah’s father, had no knowledge of Jeremiah’s swimming ability. It was only when he called Jeremiah’s mother after Jeremiah went missing in Algonquin Park on July 4, 2017, that he learned from Ms. Perry that Jeremiah could not swim.

184Ariel Hart-Hypolite was a classmate of Jeremiah’s. She was also present on the canoe trip. She testified that prior to the trip, in the first term of school, she saw Jeremiah in the pool at C.W. Jefferys. She recognized him because she knew him from one of her classes. Ariel was on her way from the change room to the gym and passed the entrance to the pool area. She watched Jeremiah in the pool for a very short time – about 30 seconds. She saw him move from one side of the shallow end of the pool to the other side of the shallow end. She recalled that he was a “decent” swimmer. I find Ariel’s observation and opinions to be of little value. I accept that Ariel would have been able to recognize Jeremiah. However, she had a very short time to observe and Jeremiah’s movement through shallow water for a very short distance provides a poor foundation to assess swimming ability.

185Kassandra Espinola was the swim instructor and lifeguard at Sparrow Lake Camp who administered the swim test. She testified that she recalled that the last group to take the test was very nervous. Jeremiah was part of that group. She had to encourage everyone in the group to undertake the test. In particular, she recalled that Jeremiah did not know how to tread water. She tried to explain to him how to move his legs in an eggbeater motion. Eventually, she taught him how to float in the lifejacket and do a “starfish”. She had to reassure him that the lifejacket would hold him up. She testified that he seemed pleased to learn how to float in this way. Ms. Espinola testified that she later recognized the boy who had trouble floating as Jeremiah when she saw his photograph in the media after he drowned.

186I find that Ms. Espinola’s identification of the boy who had difficulty floating as Jeremiah is not reliable. I find this for several reasons. Ms. Espinola agreed that the conduct she observed was not consistent with a boy who had experience floating in the water with lifejackets and other flotation devices. Jeremiah had that experience. His mother testified that Jeremiah was able to float with a lifejacket or other flotation device and this is what he and his brother did when they went to the ocean with her. Ms. Espinola was dealing with five boys, all of whom were strangers to her. All of them were hesitant to enter the lake and do the swim test. Her attention was necessarily divided between the five swimmers. The test itself took a matter of minutes. Ms. Espinola did not initially identify Jeremiah as the boy who had difficulty floating when she spoke to the lawyer for Sparrow Lake Camp or to the police in 2017. She only mentioned that he was not comfortable with swimming and that the entire group was wearing lifejackets. I find that while Ms. Espinola has come to believe that the boy who had difficulty floating was Jeremiah, her recollection is not reliable.

187Clayton Freeborn, the canoe instructor, assisted with the exercise at the camp in which students were tipped out of a canoe so that they would know what to do if the canoe tipped on the trip. He recalled Jeremiah coming up from the water with a big gasp and a ‘swimmer’s reach’ where he reached up as if climbing a ladder in a panicked fashion. After Jeremiah was reassured that he could touch bottom he relaxed and remained in the water, assisting with the canoes until Mr. Freeborn told him to get out. There were problems with Mr. Freeborn’s memory of the canoe tipping exercise. He remembered only that the children were tipped out of the canoe and then waded into shore. In fact, as others testified, the students learned to hang from a rescue canoe and to get back into the canoe. Mr. Freeborn’s memory of the details of the exercise is not reliable. However, even if his observation of Jeremiah gasping and reaching after being tipped from the canoe with a lifejacket was reliable, it tells me little about Jeremiah’s ability to swim. It would not be surprising that a 15-year-old would have a moment of panic when first experiencing being tipped into the water from a canoe.

188Adrian Coufadis saw Jeremiah in the water on July 2, 2017 when they were bringing the canoe into shore. Jeremiah jumped into the water and swam to the canoe wearing a lifejacket to help bring the canoe into shore. Adrian described Jeremiah as “swimming the canoe to shore”. Adrian testified that Jeremiah did not move well in the water and did not make much progress. He saw Jeremiah put his face in the water and flutter kick. Jeremiah did not use his arms. Adrian made a joke about Jeremiah’s swimming. Adrian testified that it was possible that Jeremiah responded that he was a good swimmer. Adrian agreed that six days after Jeremiah drowned, he told the TDSB investigator that Jeremiah said that he was a good swimmer.

189I find this observation to be of little assistance in determining whether Jeremiah could swim. Jeremiah was in the water with a lifejacket and he was attempting to reach and assist in retrieving a canoe, an endeavor that would have been unfamiliar to him. There was very limited time for Adrian to observe Jeremiah. In addition, slow progress in a lifejacket does not provide reliable information about Jeremiah’s ability to swim without a lifejacket.

190Mr. Mills testified that on July 2, 2017, he allowed students in his group to swim. Jeremiah was one of those students. Jeremiah swam with Aiden, Robyn and Adrian. Mr. Mills testified that he saw Jeremiah wearing a lifejacket while swimming. Mr. Mills told the students to end the swim when dinner was ready. Jeremiah then asked Mr. Mills for permission to swim without a lifejacket. Mr. Mills was surprised that Jeremiah was swimming with a lifejacket because he believed (incorrectly) that Jeremiah had passed the swim test at Sparrow Lake. Mr. Mills had scanned the list of test results and believed that there was a ‘P’ beside Jeremiah’s name. When Jeremiah asked to swim without a lifejacket, Mr. Mills required Jeremiah to demonstrate his swimming ability by swimming approximately 50 meters with a lifejacket and then another 50 meters without a lifejacket.

191Mr. Mills testified that Jeremiah was able to swim 50 meters although it was “not pretty” and Jeremiah was not using any particular stroke. Jeremiah completed the 50 meters with a “sort of breaststroke” with his arms and a flutter kick. On Mr. Mills’ evidence, Lucia Fernandez was present for the swim test and agreed that Jeremiah could be permitted to swim without a lifejacket.

192Lucia Fernandez did not recall this swim test. Ms. Fernandez testified that Robyn Tyrell, Aiden Mills, Adrian Coufadis and Jeremiah all swam on July 2nd. Lucia guarded. Trina and Sandy were on the shore. Lucia testified at one point that she did not recall who wore a lifejacket. Her memory was refreshed by the Crown and she testified that she recalled that all of the swimmers wore lifejackets for the swim. Under cross-examination, she said that she did not remember if everyone wore a lifejacket. Robyn and Adrian both testified that they swam without lifejackets and that Jeremiah swam with a lifejacket. Robyn recalled that Aiden also swam without a lifejacket.

193Lucia testified that Jeremiah swam at one point with a lifejacket and at another point without one. She did not recall if he swam first with a lifejacket and then without, or first without a lifejacket and then with one. Lucia testified that she and others, possibly Adrian, questioned Jeremiah. They asked him if he could swim and he said something like “yeah, don’t worry, I can swim”. Neither Adrian nor Robyn recalled any conversation with Jeremiah about his swimming ability at the July 2nd swim.

194Lucia testified that at most she “potentially” saw Jeremiah doggy paddle. She testified that she did not recall any other conversation with Jeremiah about his swimming skills. She did not recall any conversation with Mr. Mills while she was at the water that day. She did not recall seeing Mr. Mills speak to Jeremiah about his swimming. She recalled that Mr. Mills was cooking behind her while the swim occurred and that the swim ended when Mr. Mills called everyone to eat.

195Lucia testified that the people in the water stayed quite close together. The swim area was small. There was no room for anyone to do any proper swimming. When she was shown photographs and a video of the site, she said that the area was bigger than she remembered.

196Adrian could not remember how the swim ended but believed that they had to get out to have dinner. He could not remember if he left with others. He went to the tent to change. Jeremiah was one of his tentmates, but Jeremiah was not at the tent when he went there. The next time he saw Jeremiah was around dinner and Jeremiah was in dry clothes.

197Robyn believed that the swim ended when the group decided to get out. She believed that they all dried off together at the shoreline.

198There was evidence in the trial of statements made by Jeremiah about his ability to swim. These were the following:

(1) To his friend Reduan Damile before the Sparrow Lake swim test, he said that he did not know how to swim or that he was not a good swimmer.

(2) To Christopher Mackie at Sparrow Lake Camp on the way from the cabin to the lakefront for the swim test: “I can’t swim” or “I can’t really swim”.

(3) To Adrian Coufadis while trying to bring in the canoe: “I am a good swimmer.”

(4) To Lucia Fernandez at the first swim: “Don’t worry, I can swim.”

(5) To Nicholas Mills at the first swim: “I am a good swimmer.”

199I do not find any of these statements to be of value in determining the swimming ability of Jeremiah. At Sparrow Lake Camp, Jeremiah was with a group of students who were reluctant to enter the Lake for the test. He had a reason to downplay his ability to swim in order to avoid the test or to avoid doing the test without a lifejacket even if he was able to swim.

200When Jeremiah spoke to Adrian Coufadis, he had reason to exaggerate his swimming ability. Adrian was teasing him about his swimming, albeit in a lighthearted way.

201The statement to Lucia Fernandez is problematic for several reasons. As I will explain further, I find the testimony of Lucia Fernandez to be unreliable. Lucia described a conversation with Jeremiah at the swim site on the first day with Adrian and possibly Robyn present. Neither Adrian nor Robyn recalled the conversation. Lucia described the comment as occurring at a time when Jeremiah was swimming both with and without a lifejacket. This accords somewhat with the account of Mr. Mills, that Jeremiah swam with and without a lifejacket and demonstrated his swimming to Mr. Mills. However, Lucia adamantly denied that Mr. Mills was present for the comment and denied that Jeremiah showed his swimming ability at that point.

202I find that Lucia was very upset and traumatized by the drowning death of Jeremiah. She was the lifeguard on duty, and this was her first experience as a lifeguard. After the death, she was repeatedly questioned about the events of the trip. She also testified that after Jeremiah’s death, students criticized her on social media, and this was extremely upsetting. Counsel for Mr. Mills submitted that Lucia deliberately lied about the events of July 2nd and the events of July 4th. I do not find that Lucia deliberately lied to protect herself from criticism. I find that her memory of events has been distorted by the shock of the events, including the attacks on social media after the drowning.

Findings of Fact with respect to Jeremiah’s Ability to Swim

203I have concluded, based on all of the evidence concerning Jeremiah’s ability to swim and the observations of the students present at the July 2nd swim site, that Jeremiah could swim 50 meters and did so as described by Mr. Mills.

204I accept Melissa Perry’s evidence, that Jeremiah could not swim in 2016 but wanted to learn.

205I find the observations of other students and the Sparrow Lake Camp staff to be of little value in determining whether Jeremiah could swim. I also find the statement of Jeremiah about his swimming ability to be of little value. I have considered carefully the testimony of Mr. Mills and Lucia Fernandez about the events of July 2nd and I have assessed their testimony in the context of the evidence of the students who were present before and after the swim test described by Mr. Mills.

206Mr. Mills’ account of the swimming on July 2nd is not without issues. Mr. Mills testified that he scanned the results of the Sparrow Lake swim tests and believed that Jeremiah passed. He also said that he paid little attention to the results because he did not rely on them. His approach was that students would wear a lifejacket to swim unless he personally knew that they were competent swimmers. This is not consistent with his testimony, that he was surprised to see Jeremiah swimming with a lifejacket on July 2nd because he believed that Jeremiah had passed the Sparrow Lake test without a lifejacket. If, in fact, his rule was that he had to personally know that Jeremiah could swim, he should not have been surprised. I find that Mr. Mills’ rule that students could swim without a lifejacket only if he personally knew of their ability was a rule that was not clearly articulated or consistently enforced. I find that Mr. Mills relied on the students to self-regulate and wear a lifejacket if they knew that they had worn one at Sparrow Lake.

207I accept, however, that Jeremiah asked for permission to swim without a lifejacket and that Mr. Mills administered the test that he described. Mr. Mills’ testimony on this point was internally consistent and it was consistent with the evidence of Jskeert Singh Rai. Jskeert testified that Mr. Mills was preparing dinner while keeping an eye on the swimming and that Jskeert was with him and helping until Mr. Mills asked him to stir something and Mr. Mills left the area. Jskeert did not know where he went. I find that this is when Mr. Mills went to the swim area and told the students that it was time for the swim to end and for them to have dinner. This is also consistent with Adrian’s evidence, that the swim ended when they went for dinner. Adrian went to the tent to change and Jeremiah was not there. He only saw Jeremiah later at dinner. Robyn believed that the group ended the swim on their own initiative and that they all dried off together, but this was not a detail that she was certain about.

208As I have set out above and as I will describe in relation to Lucia’s account of the events of July 4th, there are significant problems with the reliability of the evidence of Lucia Fernandez. Lucia did, however, describe seeing Jeremiah swim with and without a lifejacket and she described some conversation about his ability to swim. No other student present at the swim saw Jeremiah swim without a lifejacket and no other student heard a discussion of Jeremiah’s swimming ability. I accept that Lucia saw Jeremiah swim both with and without a lifejacket and that she was involved in some discussion with him about his swimming ability. I find that Lucia did not accurately remember who was present for these events and that it was Mr. Mills who was present.

209Mr. Mills gave Jeremiah permission to swim without a lifejacket and told him to be careful. I accept that Lucia was present when this occurred, but I do not accept that she had any meaningful input into the decision to give Jeremiah permission to swim without a lifejacket. Lucia was a student and Mr. Mills was a teacher. Mr. Mills was responsible for setting the rules for the trip. Lucia did not, even on Mr. Mills’ evidence, have any role in deciding the test that was to be administered. Jeremiah asked Mr. Mills, and not Lucia, for permission to swim without a lifejacket.

210I find that on July 2nd, Jeremiah demonstrated an ability to swim about 50 meters without a lifejacket. His ability to swim was limited and was, as described by Mr. Mills, “not pretty”. He did not swim using any recognized swim stroke. He was not required to demonstrate an ability to tread water. Essentially, Jeremiah showed a very basic level of swim ability. He could not be described as a competent swimmer and was at best a novice swimmer.

Events of July 4th

211After the day of paddling on July 4, 2017, Mr. Mills’ group of eight students and Ms. Souza’s group of seven students found a campsite together. Some of the students had been asking to swim earlier in the day. Some students asked again when they were at the campsite. Mr. Mills told the students that they could swim after the campsite was set up.

212It is an agreed fact that seven students from the group swam that day: Robyn Tyrell, Aiden Mills, Alexander Panteleev, Ariel Hart-Hypolite, Jahliel Lewis, Boran Balci and Jeremiah Perry. Jskeert Singh Rai was not in the water but was about to enter the water when it was realized that Jeremiah had gone missing.

213There is no dispute that Lucia Fernandez was present and lifeguarding at the point that Boran Balci was grabbed in the water and the point shortly thereafter, when the alarm was raised that Jeramiah was missing. As will be discussed below, Lucia Fernandez testified that she was not present when the swim began although all other witnesses who were present testified that Lucia was at the swim site throughout the swim.

214Not surprisingly, each of the individuals present at the swim site when Jeremiah drowned gave slightly different accounts of the events.

215Mr. Mills testified that on the third day of the trip after the campsite was set up, he told the students that if they wanted to go swimming they should get changed and come back to meet at an area near the campfire. Mr. Mills was aware that the water was shallow near the shore but that the bottom of the lake dropped off into deeper water. He had noticed the different levels as he had paddled into the campsite. When the students came back, he told them that he and Vera Souza would be in the water and Lucia would be on shore. He told them that the water got deeper, and he did not want anyone to go past him and Ms. Souza. He also reminded them that there were some slippery rocks further out.

216They then went to the water. He saw that Lucia positioned herself on the shore in an area that was slightly elevated. Some of the students were splashing each other. He recalled Jeremiah and Aiden splashing. He believed Robyn may have also been involved in the splashing. He thought that possibly Alex was also part of the splashing, but he was not sure. The water was about ankle deep at the location of the splashing.

217Mr. Mills testified that no students entered the water before Lucia was present.

218In cross-examination, he was taken to his statement to the police in which he said:

“A couple of kids went down and we're just, you know, we have buckets, like our cooking pots actually, because kids would go in and then come out, soap up and then get dumped on so", [inaudible] "So, they started a water fight just at the edge of the shore, uhmm, and by then Lucia came down with the rest of the kids." [emphasis added]

219Mr. Mills explained that what he was trying to describe in that portion of his statement was that these events occurred at the same time.

220Mr. Mills testified that he walked out into the lake until he was about chest deep in the water and turned to face the shore. Ms. Souza also entered the water and positioned herself to Mr. Mills’ left and closer to shore. A few feet behind Mr. Mills and Ms. Souza was the first of the drop-offs that would have taken students over their heads. He did not want anyone to go past his location.

221The splashing was dying down as Mr. Mills got into position. The students then began moving a bit further out and getting their whole bodies into the water. Some were squatting, some floating and some swimming.

222The splashing had occurred on a plateau that was about ankle deep. Next was an area that dropped down to about knee deep and then there was a third drop to about waist deep. When the students moved further out, most moved to the area that was about waist deep. Mr. Mills recalled Aiden, Robyn, Alex, Jahliel and Jeremiah in the waist deep area. Mr. Mills recalled that Ariel did not move into the deeper area or may have moved into the deeper area and then returned to the shallower water. Boran was in the area of the waist deep water at some point but was not with the others.

223Mr. Mills remembered seeing Jeremiah standing in the water and swimming and playing around.

224Mr. Mills testified that Alex swam past him into the deeper water and he called Alex back. Mr. Mills recalled Alex then standing near him for the rest of the swim. Mr. Mills recalled speaking to Alex at that time about acting as a role model in order to recover his leadership credit.

225Mr. Mills believed that Jahliel may have passed the boundary for a second or two, but he came back.

226Robyn was swimming close to Mr. Mills.

227Boran went past Mr. Mills in a lifejacket, trying to rinse his head.

228Mr. Mills first became aware of a problem when he heard Boran calling, “Mr. Mills, Mr. Mills.” Boran was behind him in the deeper water and Mr. Mills turned to him. He saw Boran who looked startled and was trying to move towards the shore. Mr. Mills took a step and reached out and grabbed Boran’s hand. He pulled him in. Boran said that something had grabbed his leg. Mr. Mills told him that there were no animals or fish or turtles that would grab him. He thought that perhaps Boran had felt seaweed or been brushed by a fish. Boran looked very panicked.

229Mr. Mills then looked around and did not see Jeremiah. He called out to ask where Jeremiah was. Someone said that they saw him go up towards the campfire.

230Mr. Mills then told everyone to get out of the water. He asked Lucia if she had seen Jeremiah and she had not. He told Lucia that she needed to start diving. Boran pointed out where he had been grabbed and Lucia began diving.

231Mr. Mills asked other students to search on land and then sent students to the neighbouring campsite to get another lifeguard to assist in the search in the water. Rotimi Osagie, the lifeguard from Bradley Ferguson’s group, came to help search in the water. Ms. Souza and Alex Panteleev also searched in the water for a short time. Eventually, Mr. Mills told Lucia to come out of the water because she was exhausted and upset. He was concerned for her safety. Rotimi searched somewhat longer, but Mr. Mills eventually convinced him to stop because he was too tired.

232Mr. Mills then took steps to contact help using the satellite phone.

233That night the students were all upset. Most were together around the campfire. Lucia was off by herself and was very upset. Mr. Mills spoke with her and assured her that she had done everything that could be expected of a lifeguard. He told her that she would not be blamed. Part of the conversation was about the fact that they had tested him two nights before and he could swim.

Alexander Panteleev

234Alexander Panteleev testified that he participated in the swimming on the third day of the trip. When he went to the water to swim, he encountered Mr. Mills, Ariel, Jskeert and Boran. He also testified that when he arrived at the water the lifeguard, Lucia, was already there.

235Alex went in the water. He did not wear a lifejacket. Jeremiah was in the water near the shoreline where the water was at about shin level. Alex was a bit further out. He did not remember if Jeremiah was wearing a lifejacket.

236Alex testified that the water was cold, and Jeremiah was hesitant to get in. He testified that they were splashing each other. He did not remember whether other students participated in the splashing. Alex could not remember if Robyn or Aiden were in the water at the time of the splashing.

237After the splashing, Alex went out for a swim. He believed that he swam past everyone, but he was not paying attention. He swam into the deeper water where the water was over his head.

238Alex recalled that Mr. Mills was in the water, but he did not remember where Mr. Mills was situated in the water. He did not remember if Ms. Souza was in the water.

239After swimming out into the deep water for a couple of minutes, Alex swam back to tie back his hair. When he was tying back his hair Mr. Mills was to his right.

240Alex believed that Boran said something touched his foot. Alex saw Boran to his left and closer to shore.

241Alex testified that very shortly after he returned to shore, he heard Mr. Mills say that Jeremiah was missing. After that, everybody got out of the water and Alex went to search for Jeremiah on land.

242Alex denied that Lucia ever said to him that he had to get out of the water because she was leaving. He remembered that when people were in the water, Lucia was present.

Ariel Hart-Hypolite

243Ariel Hart-Hypolite testified that Mr. Mills announced that they could swim, and she went to get changed. She did not remember if Mr. Mills said anything else about swimming when he announced that they could swim.

244Ariel testified that after changing, she went to the water. She saw Jeremiah, Robyn, Aiden, Alex, Boran, Mr. Mills and Ms. Souza in the water. The students in the water were all splashing. Lucia was on the rock watching the swimmers. Ariel wore a lifejacket. She went into the water and was talking to people. She then swam out into deeper water. When she realized that she could no longer touch bottom, she swam back into the shallow water. She was near Robyn and Aiden and then went onto shore and took off her lifejacket. She went back in the water after taking off her lifejacket and then stayed in the water close to shore. About five to ten minutes later, she was alerted to Jeremiah being missing because people were asking, “Where’s Jeremiah?” Ariel recalled Lucia saying that she thought she had seen Jeremiah come out of the water and go up on land.

245Ariel could not recall where people were placed in the water, but she recalled Boran being out past the others. She did not remember seeing Jeremiah after the splashing.

Robyn-Nicole Tyrell

246Robyn Tyrell testified that on July 4th, many of the students had asked to swim. Mr. Mills said that they could swim after they set up camp. She did not remember a discussion of the conditions of the water or any drop-off in the lake bottom. They were told in general to be careful and that there would be rocks and algae. She recalled a discussion of the swim area. That area included the area of the drop-off.

247Robyn went to the water with Aiden, Jahliel, Jeremiah and Lucia. When they got to the water, Boran, Alex and Mr. Mills were there. She could not remember who else was there. Robyn, Aiden, Jahliel and Jeremiah went into the water and were splashing. She did not know where Alex was. Boran was by the shore wading. Mr. Mills was by the shore on land.

248Robyn testified that she swam further out in the water but then came back into the shallower water. She wore no lifejacket. Aiden had no lifejacket. Boran had a lifejacket. She did not believe that Jeremiah wore a lifejacket.

249Robyn remembered Jeremiah taking his shoes off at the shore and she remembered him being by the shore in ankle deep water after the splashing.

250She remembered Mr. Mills being on the shore with Lucia the whole time. She did not remember Mr. Mills being in the water, but she said that she was not 100% sure. She was unsure where Ms. Souza was.

251Robyn testified that Boran said that he felt something pull his leg. She was 80% sure that she personally heard him say this. Shortly after Boran said this, they were all told to get out of the water. Lucia checked the water for Jeremiah and others checked the land.

252Robyn testified that there was no time that anyone was in the water without Lucia lifeguarding.

Jahliel Lewis

253Jahliel Lewis testified that when they reached the campsite on July 4th, students asked Mr. Mills if they could swim and he said that they could swim after they set up camp. When the site was set up, Jahliel, Robyn and Jeremiah approached Mr. Mills and asked if they could swim. He said they could. There was a discussion by the campfire. Mr. Mills warned them that there were rocks and they were pointy. He also said there was a drop-off to the bottom of the lake and to be aware of it if they swam out from the shore.

254Jahliel testified that he went to change. He met up with Jeremiah after he changed, and they went to the water. When he got to the water, he was with Robyn, Jeremiah and Aiden. There were other people there but those were the people with whom Jahliel was interacting.

255Mr. Mills and Vera Souza were in the water when Jahliel got there. Lucia was sitting on some rocks.

256Jahliel, Robyn, Aiden and Jeremiah entered the shallow water and threw water on each other. Jeremiah was getting wet, but he was not throwing water. They were all within arm’s reach of each other and the water level was up to about Jahliel’s calf. Jahliel did not wear a lifejacket.

257After the splashing, Jahliel saw Jeremiah on the shore.

258After the splashing, Jahliel and Robyn swam out to where Mr. Mills and Ms. Souza were located in the water. Jahliel was treading water. He was not sure if Mr. Mills was standing or treading water. Mr. Mills and Ms. Souza were to his right. He was talking to them about the depth of the water and the drop-off. Robyn swam back in towards the shore where Aiden was swimming.

259While Jahliel was standing next to Mr. Mills, Boran grabbed Jahliel’s right shoulder and Mr. Mills’ left shoulder. Boran said that he felt something grab his legs and pull him under the water. Jahliel made a joke about river monsters. Mr. Mills said that there was nothing like that in the lake. Mr. Mills started looking around and said, “where’s Jeremiah?” Mr. Mills then told everyone to get out of the lake.

260Jahliel went to the thunderbox¹⁴ with Alex and Aiden to see if Jeremiah was there. They went back to tell Mr. Mills that he was not there.

Jskeert Singh Rai

261Jskeert Singh Rai testified that after the campsite was set up, Mr. Mills said that if they wanted to swim this was the time.

262Jskeert testified initially that when they were at the firepit, Mr. Mills warned them not to go too far from shore, not to go too deep, and to stay in boundaries where everyone can see each other. He testified that Mr. Mills said this just before stepping into the water for the swim. When asked again in examination-in-chief where the instruction was given, he said that the instruction was given near the firepit. He was taken by the Crown to his police statement from September 2017 and to his preliminary inquiry transcript from September 2019, in order to refresh his memory. He was asked if that assisted him. He said, “I guessed I mixed it up with Sparrow Lake…’cause you know how there were borders around. I was explaining…I believe in that area it was said to stay in between and stuff, so I think I might have mixed that up…On 4th of July specifically no, I didn’t hear anything like that based on what I read.” He was then asked, “Is that your evidence today, now that you’ve refreshed your memory that you didn’t hear anything?” And his answer was, “No, not personally no.”

263In cross-examination, he was asked if his evidence that he heard a warning from Mr. Mills before the July 4th swim was something that was in his memory. He said that it came to his mind as something that happened on July 4th.

264Jskeert explained that the group looked like a group that had received a warning because they did not go too deep.

265Jskeert testified that when he got to the water, he saw Mr. Mills, Trina, Ms. Souza, Robyn, Boran and Deniz. Lucia was lifeguarding. He did not recall seeing Aiden but believed that he might have been there.

266Jskeert testified that most people were in water that was about knee-deep. Robyn had gone out further.

267Jskeert had a lifejacket. He saw that Boran also had a lifejacket.

268Jskeert saw Jeremiah close to shore in water up to his knees and in the middle of everyone. He was being splashed and was laughing.

269Jskeert was on the shore cleaning up and getting ready to go in the water. By the time he began to go in, he heard Boran say that he felt a tug on his leg, and someone said, “where’s Jeremiah”? Lucia began to search the water, and everyone came out of the water. Jskeert helped to search on land and then went with Alex and Aiden to the neighbouring campsite to get Rotimi to help search the water.

270Jskeert was asked if he saw Jeremiah leave the water and he said that he could not remember but “for some reason it seems like there might have been a moment”.

271Jskeert testified that Lucia was at the swim site continuously.

272Jskeert described the locations of all the people he remembered being in the water, including Trina and Deniz. He testified that Alex was in the water when he first came to the water, but that Alex left. He also recalled Adrian and Sandy being in the water.

273It is an agreed fact in this case that the only people in the water were Jeremiah, Mr. Mills, Ms. Souza, Robyn, Alex, Aiden, Ariel and Jahliel. Trina, Deniz, Adrian and Sandy were not in the water.

Boran Balci

274Boran Balci testified that before the swim there was a discussion at the campfire. He recalled being told that they had to wait for Lucia, but he could not recall the rest of the discussion. He went to the water and there were people already there. Mr. Mills, Ariel, Alex and Ms. Souza were in the water. Lucia was on the shore. Mr. Mills’ dog was in the water splashing.

275Jeremiah was “running around” near the shore where the water was shallow, between Ariel, who was close to shore, and Alex who was further out. Boran last saw Jeremiah running around and splashing his feet. He did not see Jeremiah go into the deep water.

276Boran floated out into the water, rinsing his head, and then felt something pulling him down. He tried to get help but there was water in his mouth. He was shocked and could not think. He finally was able to call out that something had pulled him down. Mr. Mills said that it was the dog. Boran noticed that Jeremiah was missing. He called out to his friend Deniz in Turkish to ask if Jeremiah was on the island.

277Lucia began searching in the water and Boran pointed out where he had been pulled.

278Boran testified that the people he clearly remembered being in the water were Alex, Ariel, Jeremiah and Mr. Mills. He did not remember where Lucia was, but he was sure she was there. Boran was behind Mr. Mills and Alex in the deeper water. Jeremiah and Ariel were closer to the shore and Lucia was on the shore.

Lucia Fernandez

279Lucia, in her evidence, said that before the trip and going into the trip she had discussions with Mr. Mills about her role and responsibilities as a lifeguard. She said that it was “nothing really in depth”, “just that I had to keep an eye on people…and perform as a lifeguard”. She knew that she could not enter the water to swim while she was acting as a lifeguard. She knew this from her training, and she believed that Mr. Mills also told her that.

280In her testimony concerning the swim testing at Sparrow Lake Camp, Lucia could not remember whether she wore a lifejacket for the swim test. She was sure she would not have worn one if she had been given the option not to wear one, but she could not remember if she had been given the option or not. She remembered that there was a tipping exercise at Sparrow Lake but could not remember the specifics.

281Lucia Fernandez gave an account of events at the swim site that was very different from all of the other witnesses who were present.

282She said that while they were setting up camp, Mr. Mills said that it was likely that people would want to swim so Lucia should be ready to guard.

283She thought she had grabbed her goggles and sunglasses, changed from sweatpants to shorts and went to the waterfront. She may have walked to the water with Alex and Boran but in any event, she recalled that Alex and Boran were at the waterfront with her. No one else was at the waterfront. Alex and Boran went into the water. They were not in for too long — about 5 to 10 minutes — because Lucia realized that she did not have her bathing suit on and decided to put it on. She asked Alex and Boran to come out of the water and she headed to her tent to change. As she headed to the campsite to change, she reminded people not to go in the water until she returned. She testified that she was “pretty sure” she told Alex and Boran and that she had likely told Mr. Mills, but she could not remember.

284She returned to the waterfront about 5 to 10 minutes later after changing. There were a lot of people in the water. She recalled Alex, Boran, Ariel, Robyn, Aiden, Mr. Mills and Ms. Souza being in the water upon her return.

285Lucia testified that when she saw the people in the water, she questioned why people were in the water but then just positioned herself to lifeguard. She was initially unclear on whether she said anything aloud to the group about being in the water without a lifeguard. After refreshing her memory, Lucia testified that she blurted out, “oh, like you guys shouldn’t be in the water”. She did not direct this remark at anyone in particular.

286The people in the water were standing around, talking and moving around. Alex and Mr. Mills were furthest out. She did not remember where Boran was when she arrived at the waterfront. Lucia could not recall who, if anyone, was wearing a lifejacket.

287When asked about whether she saw students splashing each other, Lucia said that she could not remember.

288When asked whether she saw Jeremiah in the water, she initially testified that she could not remember. She was taken to her July 5, 2017 police statement to refresh her memory. She was next asked:

Q. Do you have any memory of Jeremiah being at the water or in the water during the swim site on July the 4th?

A. No, not during the swim site.

289Lucia testified that the last place she saw Jeremiah was on shore, but she could not remember when that was. Later in her evidence, she said that she saw him on shore much earlier in the day.

290In a photo that she had marked two and one-half months after the drowning, she placed Jeremiah on the shore near the swim site. On the same photo she placed all of the swimmers except Alex, between the shore and the area in the water where Mr. Mills and Ms. Souza were located. She placed Alex past Mr. Mills and Ms. Souza. She placed Boran just in front of Mr. Mills and Ms. Souza.

291Lucia agreed that she thought the swimmers were in an area that was safe. It was not too deep. She felt that she had a good view of the people in the water even though there was a glare from the sun on the water.

292Lucia testified that she tried to keep a head count but had difficulty because people were moving around and because of the glare on the water. She was unsure, but believed she counted seven to eight people. She moved around to avoid the glare. She did not remember Mr. Mills’ dog being by the water.

293Within 5 to 15 minutes after she arrived at the waterfront, Lucia recalled that Boran said that something had grabbed at his ankles or feet, but she did not remember if she heard this directly from Boran or from someone else.

294She recalled Boran being around the area where Alex was standing, but not as far out as Alex, when he said that something grabbed him.

295Almost immediately, Mr. Mills called out for people to search the campsite for Jeremiah and to leave the water.

296Lucia said in cross-examination that when people began looking for Jeremiah, she did not say that Jeremiah was up on land. When it was put to her that another witness heard her say that, Lucia said,

I don't think I said that. I might have said, as I said to you guys, like oh, the last, I, I could have sworn he was on land or something like with the point that I made on the diagram. Because that was just the last time that I remembered seeing him. But it wasn't that I had seen him on land. Like during that time.

297Lucia agreed that she told the TDSB investigator that when people began searching for Jeremiah, someone had seen him step out and Lucia thought that she had seen him on shore previously. She didn’t even know he was in the water. The investigator then asked her: “So you thought you saw him on shore?” and she responded, “I thought I saw him. I personally thought he was outside.”

298Lucia testified that what she meant, when she said she thought she saw him outside, was that she saw him out of the water much earlier.

299As other people searched for Jeremiah on land, Lucia began searching in the water. She began by searching the area where she saw Boran which was not over her head. She then moved into deeper water. Boran also directed her.

300The water was so deep that she was unable to reach the bottom. The water was murky, and she could not see. She searched for 15 to 35 minutes. She asked for someone to get the lifeguard, Rotimi, from the other site to help her. Lucia was emotional and had to stop searching because it was not safe. Rotimi arrived and searched for 20 to 40 minutes more.

301Lucia testified that Mr. Mills did not give her any directions or instructions about boundaries for the swim on July 4th. Mr. Mills did not discuss using a buddy system. Lucia had no opportunity to check the area for underwater hazards and was unaware of the drop-off in the water before she searched the water for Jeremiah.

302Lucia testified that Mr. Mills never discussed the OPHEA guidelines for swimming with her. Lucia had no input into who should or should not wear a lifejacket while swimming.

303Lucia Fernandez was extremely distraught after Jeremiah went missing. After the drowning of Jeremiah, there was media attention and there was commentary on social media about the drowning. In some of the social media commentary, Lucia’s peers placed blame on Lucia for the drowning and this was extremely upsetting for her. Lucia agreed that she had been concerned that people would blame her, as the lifeguard, for Jeremiah’s drowning. She did not agree with the suggestion that she was concerned that the police would blame her.

304Lucia agreed that her memory was unclear about a lot of the events surrounding the canoe trip.

305Lucia agreed that if Jeremiah had entered the water from the area to her right as she looked out at the water and not where the other swimmers were concentrated, she would not have seen him enter. If he had gotten into trouble in that area, away from the other swimmers, she would not likely have noticed it.

The Physical Characteristics of the Swim Site

306The bottom of the lake at the swim site was described by all witnesses as a rocky plateau that was very shallow near shore with progressive drop offs. The slab of rock that formed the plateau is visible in the photographs filed as exhibits. The bottom of the lake can be seen where the water is shallow. The water becomes darker and the bottom is not visible further from shore. The rock formation does not extend uniformly from the shore.

307Jeremiah’s body was found by the OPP Underwater Search and Recovery Unit the following day. Jeremiah’s body was at the bottom of the lake, approximately 42 feet from the shore in the area of the swim site. The depth of the water where his body was recovered was 23 feet. His body was at the bottom of an underwater cliff.

308PC Dunlop measured the progressive depths at the swim site two years after the drowning. The depths would not have been the same as in 2017 but would be similar. The measurements were taken from the area where Jeremiah’s body was found, directly into shore and did not include the areas to the left and right of the central swim site.

309The measurements of PC Dunlop in 2019 are set out below:

Distance from Shore (in feet)

Depth (in feet)

20.5

4

25

5

27.5

6

30

8

32

10.5

35

12

40

22

42

23

Findings of Fact with Respect to the Events of July 4th

310I do not accept Lucia’s evidence that the swimmers were in the water when she arrived at the waterfront after leaving to change her clothes.

311Lucia Fernandez’s memory was unclear on most of the central events that occurred at the swims on July 2nd and on July 4, 2017. I have already rejected her evidence that there was no assessment of Jeremiah’s swimming ability on July 2nd. In assessing Lucia’s overall credibility and reliability, I have considered the following difficulties with her evidence:

(1) Lucia’s answers to questions were vague and at times contradictory. For example, she testified that Boran and Alex were both positioned past Mr. Mills, but then said that Boran was closer to shore. When asked, “Is that where you remember Boran?”, she responded, “Most likely yes, at the time.” Lucia testified at one point that all the swimmers on the first day of the trip wore lifejackets. In cross-examination, she testified that she did not remember if everyone was wearing a lifejacket. (Robyn and Adrian both testified that they did not wear lifejackets and Robyn testified that Aiden did not wear a lifejacket that day. The other students recalled that Jeremiah wore a lifejacket the first day.)

(2) Lucia’s evidence was inconsistent with other reliable evidence. For example, with respect to the July 2, 2017 swim site, Lucia testified that the site was small and cramped with no room to swim any distance. When shown a photograph of the area, she conceded that there was more room than she remembered.

(3) Lucia appeared to speculate about events rather than admit that she had no memory. For example, Lucia recalled going over to the neighbouring campsite by canoe after dinner on the first day. She said that she thought it was because she had forgotten to put food away and they went to give it to the other group so that it would not stay out. Jskeert and Mr. Mills testified that they went to the other group to get Jskeert’s bag. In another part of her evidence, Lucia testified that wearing a lifejacket while swimming was optional. When asked why, Lucia responded: “Um, that’s just to my recollection really. I don’t remember.”

312While Lucia may have initially gone to the waterfront and then left to change her clothes, I do not accept her evidence that when she returned, the larger group of swimmers, including Mr. Mills and Ms. Souza, had entered the water without her being present.

313The rule that the lifeguard had to be present for the swim was known to every student on the trip and was a rule that was often repeated. Like the rule about always wearing a lifejacket in the canoes, the rule about requiring the presence of a lifeguard was clear. I find the evidence of Lucia to be unreliable on this point. I accept the evidence of Mr. Mills and the other students, that Lucia was present and positioned on shore when the swim began. She was present for the splashing at the outset of the swim although she did not remember the splashing. I accept Lucia’s evidence, that she has no recollection of seeing Jeremiah in the water. Lucia also has no recollection of seeing Jahliel Lewis in the water.

314The people in the water were moving around and splashing and talking. Lucia took head counts but did not keep track of the location of individuals who were moving within the water.

315I find that, as described by Mr. Mills and the students, there was splashing at the outset of the swim with Jeremiah being splashed by other students while he was in the shallow water. After the splashing, Alex, Robyn and Jahliel all swam into deeper water. Aiden and Ariel also moved into deeper water but then came back closer to shore. Robyn also returned to an area closer to shore after swimming out.

316By the time the splashing had ended, Mr. Mills and Ms. Souza had positioned themselves near the drop off.

317I accept that Mr. Mills warned the students as a group before the swim that there was a drop-off and that they should stay close together and avoid the drop-off. Mr. Mills testified that this occurred and Jskeert and Jahliel remembered the discussion. Boran remembered that there was a discussion but could not remember the details.

318I find that after the splashing, Jeremiah was in the shallow water near the shore.

319I cannot make a finding of fact with respect to how Jeremiah moved from the shallow water near the shoreline of the swim site into the deep water 42 feet from shore where his body was found.

320The area where Boran felt a pull on his leg cannot be determined with certainty, but was likely about 35 to 40 feet from shore. Mr. Mills testified that he was standing in chest deep water and facing the shore when Boran yelled from behind him. Mr. Mills took a couple of steps and then reached out and grabbed Boran’s hand. Based on the measurements taken by the OPP and by the defence and based on the general placement of Mr. Mills as described by Jahliel Lewis, Alex Panteleev and Boran Balci, Mr. Mills was likely standing about 25 feet from shore. He had to move and reach further to reach Boran’s extended hand. Boran had been attempting to move towards shore as he called for Mr. Mills. Boran placed himself about three to four meters behind Mr. Mills.

321Mr. Mills and Jahliel were facing the shore before Boran called out. Neither saw Jeremiah move past them. Alex was also in the general area but was paying little attention to the others and was tying his hair back when Boran raised the alarm.

322It is unlikely but possible that Jeremiah moved through the center of the swim area past Mr. Mills, Ms. Souza and Alex into the deep water without being seen by them. It is also possible that he moved to one of the sides of the swim area and then walked or swam to the deeper water. He could either have left the water and re-entered it or, he could have moved through the water to the far side of the swim area and out of the immediate sightlines of Mr. Mills watching from the water and Lucia watching from the shore.

323Mr. Mills’ attention was focused on the swimmers who were further out in the deeper water: Alex and Jahliel. Lucia saw Robyn, Aiden and Ariel all in the same general area between the shore and Mr. Mills. Her attention was focused on the swimmers in that central area during the time period just before Boran raised the alarm and said that he had been grabbed.

VI first issue: has the Crown proved the actus reus of the offence, i.e., was there conduct of Nicholas Mills (acts or omissions) that caused or significantly contributed to the death of Jeremiah Perry?

324As outlined earlier in these reasons, the Crown must prove beyond a reasonable doubt that the conduct of Mr. Mills caused the death of Jeremiah — an act or acts, or a failure to do something that he had a legal duty to do.

325I do not find that the preparation for the canoeing part of the trip played any role in causing the death of Jeremiah, either as a cause or as a relevant contextual fact.

326While I have found that the approval and consent process preceding the trip was flawed, I do not find that this played any role in causing the death of Jeremiah. It is possible that the trip might not have been approved had the correct information been provided. It is also possible that the trip would have been modified. It is possible that Mr. Anderson would have withheld consent and not permitted Jeremiah to go on the trip had he known that the OPHEA guidelines were not being followed, but it is also possible that an assurance that the trip would be safe would have been sufficient to satisfy any concerns. The possibility of other outcomes makes the connection between the conduct and the death too tenuous to be considered a cause of Jeremiah’s death or a part of the relevant context. It should not be taken by this finding to be in any way condoning the conduct of Mr. Mills in misleading the Superintendent and by extension, the parents.

327I also find that the failure of Mr. Mills to tell the students that they had failed the swim test if they wore a lifejacket played no role in the death of Jeremiah. The students knew that they would be permitted to attend the trip if they wore a lifejacket. They were told by Kassandra Espinola and Christopher Mackie that wearing a lifejacket would be a technical failure, but this had no relevance to them, and they ignored it. The failure to tell parents and other leaders also played no role in the death. The failure to tell Lucia Fernandez, the lifeguard, was not relevant because on July 4, 2017, when Jeremiah drowned, Lucia was aware of Jeremiah’s swimming ability having observed him swimming on July 2nd.

328The evidence is clear that Jeremiah died by drowning while he was not wearing a lifejacket. Mr. Mills gave Jeremiah permission to enter the water without a lifejacket and Mr. Mills was responsible for the supervision of Jeremiah during the swim.

329I 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.

330Contextual facts that are relevant to the issue of whether the conduct that caused the death was a marked and substantial departure from the standard of care of a reasonable person in the circumstances are the following:

• Christopher Mackie suggested to Mr. Mills at Sparrow Lake Camp that Mr. Mills should implement measures for the non-swimmers on the trip, including requiring them to wear lifejackets when they were in the water or within three meters of the water. (I do not find that Ms. Weeden and Mr. Freeborn issued a serious warning to Mr. Mills.)

• There were seven bathers in the water when Jeremiah drowned. Two of the bathers (Ariel and Boran) were weak or non-swimmers. A third weak or non-swimmer (Jskeert) was on the shore, about to enter the water.

• Mr. Mills, with the approval of Dr. Gala, had permitted a large number of non-swimmers to participate in the trip.

• Mr. Mills was aware that half of the students on the campsite and half of the students in or near the water at the time of Jeremiah’s death were weak or non-swimmers.

• Jeremiah had demonstrated to Mr. Mills an ability to swim 50 meters without a lifejacket, but he had not demonstrated an ability to tread water and he had not demonstrated an ability to swim in deep water without a lifejacket. His demonstrated swimming ability was, at best, that of a novice swimmer.

• Mr. Mills was aware that Jeremiah was unlikely to have any familiarity with Ontario lakes beyond his experience at Sparrow Lake Camp.

• Jeremiah and the other children were warned by Mr. Mills that there was a steep drop-off and told to remain together and to avoid the deep water.

• Despite the warning, Alex, Jahliel and Boran all went into the deep water with Mr. Mills’ knowledge.

• At the time of Jeremiah’s drowning, Lucia Fernandez was lifeguarding the group and Mr. Mills and Ms. Souza were supervising.

• The drop-off was marked by Mr. Mills and Ms. Souza, but only in the centre of the swim area, leaving the sides open to enter.

• At the time of Jeremiah’s drowning there were no safeguards such as a buddy system or bather counting system in place.

• Mr. Mills had the qualifications and experience necessary to undertake the wilderness canoe trip.

• Mr. Mills was aware of the OPHEA guidelines and he was aware of the practices of Scouts Canada and other organizations with respect to rules around swimming on canoe trips. I will consider these practices in more detail in my review of the evidence relating to the standard of care.

VII Evidence and findings of fact Relating to the Standard of Care

Overview

331The final issue that I must determine in this case is whether Mr. Mills’ conduct in permitting Jeremiah to swim without a lifejacket in the circumstances was a marked and substantial departure from the standard of care of a reasonable person.

332Having found that the canoeing part of the trip played no role in Jeremiah’s death, I will not review the evidence of the standards relating to canoeing and canoe skills.

333The standards that are relevant to this case are those relating to the participation of weak or non-swimmers on wilderness canoe trips and those relating to the supervision of swimmers at a wilderness waterfront location.

Nancy Schad and the OPHEA Safety Guidelines for Physical Education

334The Ontario Physical and Health Education Association (“OPHEA”) is a registered charity whose mandate is to assist educators in providing resources and assistance to allow children to engage in healthy and safe physical activities.

335The OPHEA Physical Activity Safety Guidelines are guidelines that were developed by a committee of OPHEA and were first published in 1999. The Safety and Injury Prevention Advisory Committee of OPHEA updates the guidelines on an annual basis.

336The intent of the guidelines as they existed in June of 2017 is set out in the Generic section as follows:

The primary responsibility for the care and safety of students rests with the school board and its employees. An important aspect in fulfilling this role is to recognize that there is an element of risk in all physical activity and to take action accordingly. To this end, the safety guidelines writing team and physical educators across Ontario have identified and analyzed reasonable foreseeable risks and have developed these guidelines to reflect a consensus among qualified persons about procedures that help minimize, to the greatest extent possible, the risk of a preventable accident or injury. A guideline alone does not eliminate risk regardless of how well it is written or how effectively it is implemented. Safety awareness, practised by the teacher, based on up-to-date information, common sense observation, action, and foresight, is the key to safe programming. The intent of the Curricular Safety Guidelines is to provide a reference document that will assist the teacher to focus on safe instructional practices for each class activity in order to minimize the inherent element of risk. By implementing safe instructional practices, such as use of logical teaching progressions, as well as inclusion of age appropriate activities in program preparations, planning and daily teaching, the educator will guard against foreseeable risks. It is hoped that through this implementation process, this document will assist educators in fulfilling their obligation to provide the safest possible environment in which all students, regardless of physical, mental, emotional abilities/challenges or cultural background, can be physically active.

337Nancy Schad, a safety consultant with OPHEA, explained the history, purpose, and development of the OPHEA Safety Guidelines. Ms. Schad was a teacher and instructional leader at the TDSB and sat as a member of the OPHEA Safety Committee until 2006 when she retired from the TDSB. Ms. Schad continued to play a role as a consultant to the OPHEA Safety Committee after her retirement from the TDSB in 2006.

338Ms. Schad explained that the guidelines for each activity have five criteria or safety components listed: equipment, facilities, clothing, special rules, and supervision. The guidelines were available on-line in 2017.

339Ms. Schad also explained that school boards in Ontario are required by the Ministry of Education to have and implement safety protocols and to address each of the five safety components, but they are not required to adopt the OPHEA guidelines. She believed that most, but not all Ontario public schools boards adopted the OPHEA safety guidelines. She was not aware of the number of school boards that did not adopt the OPHEA safety guidelines. Private or independent schools are not required to adopt the OPHEA safety guidelines, but Ms. Schad testified that a number of independent schools follow the guidelines.

340The activity guidelines are updated in consultation with experts, administrators and educators and take into account other sources such as coroner’s inquests.

341Ms. Schad agreed that some of the guidelines go much further than provincial regulations or practices of other organizations. For example, the requirement for two lifeguards to guard 1 to 25 students exceeds the requirements of the Ontario Public Pools regulation; the requirement that all students wear lifejackets at all times in the canoe is more strict than the law governing small vessels in Ontario; and the requirement that all lifeguards be at least 18 years of age is not consistent with the age requirements for lifeguards at camps and public pools.

342Ms. Schad testified that the name of the Safety Guidelines changed in 2019 to Safety Standards. Prior to 2019, OPHEA treated the guidelines as mandatory and the language within the document conveyed that the guidelines were mandatory, but the title of “guidelines” was used. Ms. Schad did not know if the reference to guidelines caused teachers and schools to treat them as optional.

343The Safety Guidelines for the activity of canoe tripping require that students successfully complete a swim test without a lifejacket. The student must execute a rolling entry into deep water, tread water for one minute and swim 50 meters continuously. The test must be administered by a certified swim instructor. Students who do not pass the test are not permitted to go on the canoe trip. The guidelines for canoeing allow the student to complete the same test with a lifejacket. Canoeing is defined as a single day trip in a location which is within two hours of medical assistance. Canoe tripping is defined as a day trip involving travel to a location which is more than two hours from the arrival of emergency medical assistance and multi-day trips.

344The swimming guidelines provide a process for determining the swimming ability of the student before the student is designated a swimmer. The student must demonstrate an ability to tread water for one minute and to swim 50 meters. The testing must occur in shallow water and must be administered by a certified swim instructor or lifeguard. Non-swimmers must be identified and wear a lifejacket for recreational swims. Lifeguards must be made aware of the swim test results. The minimum number of lifeguards is two lifeguards for 1 to 25 students. Students are required under the guidelines to swim with a partner. It is also required that a bather counting system be used (for example giving the student’s each a number and requiring them to count off at regular intervals.) When swimming in areas not specifically designated for swimming, such as a campsite, the lifeguard must set boundaries for swimming and check the area for underwater hazards. Students must be told of all the rules and regulations for the swimming area.

345Outside providers must be made aware of the OPHEA guidelines for the activity.

George Kourtis and TDSB Policies and Procedures

346George Kourtis is a physical education teacher with the TDSB working in central administration as program coordinator overseeing health and physical education curriculum and all athletics in all elementary and secondary schools. Mr. Kourtis testified concerning the policies and procedures of the TDSB for excursions. Mr. Kourtis also testified that he found an email exchange from 2013 in which Mr. Mills was provided with the OPHEA Guidelines for canoe tripping and canoeing in moving water.

347He explained that there were two levels of excursions: standard and high care. Anything outside the GTA was considered high care. Canoe trips and swimming were considered high care.

348The Excursion policy of the TDSB contained in the Operational Procedure Manual for the Board requires that student safety be the priority in the planning and implementation of all excursions. It requires that planning shall include careful consideration and preparation in relation to supervision and risk management. The TDSB Policies in 2017 also required that the teacher follow the OPHEA Physical Education/Outdoor Education Elementary and Secondary Curricular Safety documents. The policies required that teachers make every effort to inform students and parents of the details of the excursion and any risks associated with it. The permission form is required to contain information about any special risks and any information that could have some bearing on whether the parent would give or withhold consent.

349The OPHEA Safety Guidelines were considered by the TDSB to be the minimum level that a teacher had to follow. Mr. Kourtis testified that the policies and the OPHEA Guidelines were made known to new teachers through the teacher’s Assistant Curriculum Leader and periodically to teachers through TDSB communications and professional learning days. Updates to the Guidelines were sent out by Mr. Kourtis to department heads each September.

350The Operational Procedure provisions also set out the principles and guidelines of supervision as follows:

G.1. Principles of Supervision

(a) All activities, facilities, and equipment have inherent risks, but the more effectively they are supervised, the safer they become.

(b) Supervisors should be aware of, and incorporate, the three categories of supervision set out in the TDSB Physical Education/Outdoor Education Elementary and Secondary Curriculum/Interschool/Intramural Safety documents, including:

(i) Constant visual: The supervisor is physically present, watching a single activity.

(ii) On-site/In-sight: The supervisor is present, but not necessarily constantly viewing a single activity.

(iii) In-the-area: The supervisor may be in one area while activity is taking place in another area nearby.

(d) Supervisors should exercise their discretion in determining the appropriate level of supervision during an excursion, having regard to the following factors, among others:

(i) the risk level of the activity;

(ii) nature of the destination and/or travel;

(iii) safety gear;

(iv) the participants’ special needs, skill level; competence and capacity;

(v) the participants’ ages and maturity.

(f) The supervisor shall make students aware of the rules and safety considerations of any activities engaged in during the excursions. Rules may be modified to suit the age and physical abilities and exceptionalities of the students, but once made, they shall be strictly enforced.

(h) The supervisor shall be vigilant to prevent one student from pressuring another into trying skills or activities for which he or she is not ready or not able to perform.

(i) The supervisor shall provide for a mandatory “buddy system” so that student numbers can be determined quickly in the event of an emergency.

G.2. General Guidelines Regarding Supervision

(a) When supervising students on excursions, teachers and other school authorities shall comply with the common-law standard of care of a reasonably careful or prudent parent in the circumstances.

351The Operational Procedure specifies the approval process for various activities and lists activities that will never be approved, stating: “Certain excursion activities will not be approved, as they are deemed to be unsafe because of high and/or multiple risk factors. Examples of such activities include, but are not limited to: whitewater canoeing; whitewater rafting; parasailing; parachuting; gliding; hang gliding; bungee jumping; swimming parties at private or non-regulated pools, rivers, or lakes; hot-air balloon rides; snorkeling; and scuba diving.”

352Mr. Kourtis said that the operational procedures required strict compliance with OPHEA Guidelines. He said that the TDSB communicated to teachers that they could not reduce the level of safeguards below the OPHEA guidelines.

353He was asked whether in practice, teachers treat OPHEA Guidelines as a minimum standard rather than a framework within which discretion can be exercised. Mr. Kourtis testified that there was no survey of teachers, but that compliance was expected.

354He confirmed that after the summer of 2017, the TDSB had conducted a scan of 11 school boards to see how different boards were using the guidelines.

355The scan found differences between the approach of different boards to the OPHEA Safety Guidelines, saying:

Almost every board’s excursion policy made explicit reference to OPHEA-OPESG as a standard with regards to safety. Some boards (e.g. Bluewater DSB, Toronto Catholic DSB, Waterloo DSB, York DSB) were clear that OPESG must be adhered to for every activity, while other boards merely referenced OPHEA regulations as ‘guidelines’ or ‘reference tools’ for the creation of safety procedures (e.g., Halton DSB, Upper Grand DSB).

356The scan found that some boards used the Guidelines as guidelines rather than as minimum standards.

357With respect to water-based safety, the scan concluded as follows:

Provisions surrounding excursions in, on, or near water were very inconsistent among the boards in this scan. While most have separate safety procedures in place for water-based activities, only four (4) Boards (e.g., Halton DSB, Thames Valley DSB, Toronto Catholic DSB, Upper Grand DSB) made any reference to swimming tests as a requirement for participation. Further, two (2) boards (e.g., Halton DSB, Upper Grand DSB) clearly outlined what the required swimming tests would involve in their procedural documents. One school board (i.e., Halton DSB made it clear about the necessity of communicating test results back to parent(s)/guardian(s) as well as the additional inclusion of Ontario Regulation 565 — Public Pools as safety guidelines for water-based activities.

Michael Shane and the Lifesaving Society

358Michael Shane is the Safety Standards and Management Training Director of the Lifesaving Society and is responsible for the Society’s safety management service programmes in Ontario.

359The Lifesaving Society is a national, charitable organization working to prevent drowning and water-related injuries through its lifesaving, lifeguarding and leadership training programs and public education. It is involved in research and development of aquatic lifesaving, learn to swim, lifeguard training, and public education programs.

360The Lifesaving Society delivers a training progression of awards encompassing water rescue, resuscitation, and emergency care. The Society establishes the standards for the National Lifeguard program.

361Mr. Shane was qualified as an expert to give opinion evidence on water safety. He testified that drowning is the third leading cause of accidental death in Canada and there are about 500 drowning deaths in Canada each year and about 160 in Ontario. About 43% of those drownings occur in lakes and rivers.

362Mr. Shane described the Swim to Survive program which teaches the basics of survival in about three to four hours. The program teaches non-swimmers how to roll into the water and swim 50 meters. It is designed to prevent weak or non-swimmers from drowning if they fall into the water.

363Mr. Shane also described the additional training provided to lifeguards in waterfront certification. Waterfronts present different challenges such as currents, winds, watercraft and underwater hazards. It is more difficult to locate a submerged victim in a lake or river than it is in a pool. It is easier to notice a victim who is in distress or drowning in a pool. He confirmed that fewer lifeguards take the waterfront training and it is challenging to staff waterfronts with lifeguards who have the specialized training. There is nothing to prevent pool certified lifeguards from lifeguarding at waterfronts and this is commonly done.

364Mr. Shane testified that it takes between and 10 and 60 seconds to drown and most of that time is spent below the surface.

365Mr. Shane was asked about drowning prevention methods. He said that there are a number of ways to prevent drowning, but four key approaches are: direct supervision, wearing a lifejacket, swimming in a supervised area and learning to swim.

366While Mr. Shane endorsed the importance of lifeguards, he also said that lifeguards cannot watch everyone at the same time and parents remain responsible for their children – especially non-swimmers.

367Mr. Shane testified that lifejackets should be worn by non-swimmers. When asked if it would ever be appropriate for a young non-swimmer to not wear a life jacket, he said that in shallow water where you can see the bottom or in a public pool under direct supervision it would be fine.

368Mr. Shane confirmed that the regulation in force in 2017 for waterfront camps required two supervisors at a waterfront with bronze medallion or higher but there was no requirement for an NL certified lifeguard. Neither swim tests nor lifejackets were mandated.

369The Lifesaving Society recommends lifejackets for weak or non-swimmers at a waterfront.

Barbara Weeden and Sparrow Lake Camp

370Barbara Weeden testified about the standards to which she adhered in her role as a camp director and as an experienced canoe instructor and canoe tripper.

371Ms. Weeden testified that she would never take a non-swimmer on a wilderness canoe trip. She agreed that this was her personal standard and was not an industry standard. She expressed the belief that organizations that took non-swimmers on canoe trips would increase the staff to participant ratio, would require lifejackets to be worn whenever participants were near the water and that they might bring lifeguards.

Christopher Mackie

372Christopher Mackie had training in therapeutic education and had worked in therapeutic education and outdoor recreation and leadership in Australia since 2007. He came to Canada in 2011 and worked in outdoor education for various organizations from the Fall of 2012. He was Program Director at Sparrow Lake Camp in June of 2017.

373Mr. Mackie, in his testimony, indicated that in his work he took students on wilderness canoe trips who were not capable of passing a swim test. Mr. Mackie had taken 100 or more children on canoe trips by the time that he testified. He had experience working with a range of international students, many of whom could not swim and did not know about Canadian waters. He indicated that the programs that he worked for and the camps that he worked for followed Ontario Camping Association (“OCA”) standards and not OPHEA standards. On his evidence, passing a swim test was not a prerequisite for participating in a canoe trip under the OCA standards. Mr. Mackie was of the opinion that non-swimmers could safely participate in a canoe trip, but with other safeguards in place.

374On the trips that he led, Mr. Mackie required that non-swimmers wear lifejackets whenever they were within three meters of the water. He also kept the non-swimmers in his canoe or another guide’s canoe. He required all participants in the trip to wear lifejackets when swimming, even if they were strong swimmers. He had a leader to participant ratio of 1:4 and a lifeguard with at least Bronze Cross guarding certification during recreational swims.

Bradley Ferguson and Scouts Canada

375Bradley Ferguson was one of the trip leaders on the trip. He was an experienced canoe tripper. He had been going on wilderness canoe trips for at least 17 years. He also completed training with Scouts Canada where he was a volunteer. He testified that he took many canoe trips as a leader or guide with Scouts Canada. The trips were to various locations, including approximately four trips to Algonquin Park.

376Mr. Ferguson testified that Scouts Canada does not require participants to pass a swim test in order to participate in a canoe trip. They do not take lifeguards on the canoe trips. They have extensive preparation and skills training for the trips and provide detailed information to the participants and to their parents. Lifejackets are mandatory at all times when in the canoes and when swimming. Mr. Ferguson testified that he would require lifejackets when swimming, even if it was not a Scouts Canada trip, if the water had a steep drop off or if he did not know the swimming ability of the participants. He also agreed that the decision whether to allow children to swim and whether to require a lifejacket would be affected by the presence of a lifeguard, the area before the drop off or deep water and the visibility of the drop off.

Eren Howell and Commercial Outfitters

377Eren Howell was one of the trip leaders/guides on the REACH trip. In 2017 he worked as residential coordinator at the Griffin Centre, a youth mental health agency that worked with the TDSB. He received a degree in 1999 from Seneca College that qualified him as an Outdoor Recreation Technician. He had many certifications over the years, including wilderness first aid and advanced medical first responder first aid; a hike leader certificate through Hike Ontario; Swift Water Rescue certificate; and a canoe instructor certification from the Ontario Recreational Canoeing Association.

378He worked for a company called Canadian Wilderness Trips for summers in 2000 and 2001 as a canoe guide in Algonquin Park and elsewhere. The trips were predominantly adult trips but there were also some family trips. The trips were generally for one week. Flatwater trips had a ratio of one guide to as many as eight participants. He started his own company called Dogpaddling Adventures in 2002. In summers he led canoe trips in various locations including Algonquin Park. The trips were generally three to four-day trips with some longer trips. The ratio was generally one guide to five clients with Dogpaddling Adventures. Mr. Howell had his Bronze Cross in 1999 and he recertified for about nine years until around 2008.

379He testified as to his practices around lifejackets on his trips with the two outfitters. He said that he recommended lifejackets and shoes on any canoe trip. He said that anytime anyone was in the canoe, a lifejacket was required. For swimming, he recommended lifejackets. He said, however, that if someone was a strong swimmer and a “self-determining adult” they might not wear a lifejacket to swim.

380Mr. Howell also described his practice with respect to lifejackets from his work through the Griffin Centre with an organization called Northern Lights. Lifejackets were recommended for adults and children for both canoeing and swimming.

381He had taken lots of non-swimmers and weak swimmers on canoe trips. For students, there was an opportunity to assess the ability of the participant. He would have everyone attempt a swim test. On the trip he would require everyone to put on a lifejacket. He testified that this was “kind of industry standard”. It was what most outdoor adventure companies and guiding outfits followed. He testified that the rule that participants wear a lifejacket was “100%” in the canoe and it was his goal and preference for swimming, especially with a group with whom he was unfamiliar. Mr. Howell testified that if he had an opportunity to assess the swimming ability of individuals and he felt comfortable with their ability, he would allow people to swim without a lifejacket. He would not allow a weak swimmer to swim without a lifejacket.

382Mr. Howell had, in the past, made considered decisions to allow canoe trip participants to swim without lifejackets. In his view, relevant considerations are the ratio of supervisors to swimmers, the proximity of supervisors to swimmers and the comfort level of the person in the water.

383There were a very small number of students who would ever swim without a lifejacket. To permit a student to swim without a lifejacket, the student would have to be a great swimmer with someone in the water close to them and the swim would be brief.

384Mr. Howell received no information from Mr. Mills about the specific swimming ability of members of his group. He was told that they had some experience in the water. They spoke about the overall competence of the group and what had been done to prepare for the trip. Mr. Howell did not have a discussion with Mr. Mills about OPHEA Guidelines. Mr. Howell had heard about OPHEA but did not ask a great deal about it. He had a discussion with Mr. Mills about best practices and industry standards.

385Mr. Howell knew from Mr. Mills that lifejackets were expected to be worn. He could not recall any discussion with respect to the use of lifejackets and swimming.

386Mr. Howell did not ask for the swim test details or results because he would not have allowed anyone to swim without a lifejacket unless he had assessed their swimming ability himself.

Nicholas Mills

387Mr. Mills testified that he viewed the OPHEA guidelines as a framework within which a teacher could use their own personal skills, experience, and knowledge to create safe experiences.

388Mr. Mills was aware of the OPHEA Guidelines not being followed in various contexts aside from canoe tripping. The OPHEA Guidelines did not allow students to engage in the activity of whitewater rafting. However, students from C.W. Jefferys went annually to Boundless School and the activities included whitewater rafting. The Guidelines for biking required the leader to be at the back of the group. Mr. Mills’ experience was that this did not work.

389He viewed some of the canoe tripping guidelines as practical and others as impractical, especially in a community such as the one served by C.W. Jefferys. Many of the guidelines did not, in Mr. Mills’ opinion, reflect what he understood to be the standards and practices in the canoeing community or the outdoor recreation sector. He believed that the trips he organized were above the standards followed in the industry.

390Mr. Mills agreed that a rule that lifejackets be worn at all times in the canoe is a standard in the industry.

391Mr. Mills testified that it was not the standard in the canoe tripping community to require that participants pass a swim test, nor was it a standard to have a lifeguard on the trip. It was, however, Mr. Mills’ practice to always have lifeguard. The requirement that the lifeguard be at least 18 years of age was not an industry standard.

392Mr. Mills’ practice was to allow a lifeguard to watch swimmers alone if the swim site was flat and shallow, but he would always be situated so that he could also see the swimmers. If the swim site was not flat and shallow, he would personally be in the water.

393As set out earlier in these reasons, Mr. Mills’ practice was to require students to complete a swim test which they could complete with or without a lifejacket. He also required the students to tip out of a canoe wearing a lifejacket. These exercises allowed an assessment of the students’ comfort in the water and their ability to move to a rescue canoe if they capsized on the trip. His rule with respect to swimming was that all students on the trip would wear a lifejacket to swim if they wore a lifejacket on the swim test. All students would wear a lifejacket to swim in any event unless he personally knew that they could swim. As I have already found, the second part of this rule was not clearly articulated or consistently enforced.

VIII Legal principles relating to the fault element

394To determine whether Mr. Mills’ conduct in allowing Jeremiah to swim without a lifejacket in an area with deep water in all of the circumstances was a marked and substantial departure from the standard of care, I must first identify that standard.

395Under the Education Act and Regulations, teachers have a legal duty to ensure that all reasonable safety procedures are carried out in the courses and activities for which they are responsible.¹⁵ Under the common law, teachers are under a duty to exercise the standard of care of a careful or prudent parent when undertaking the supervision of students.¹⁶

396While the standard of care may be easily articulated, giving meaningful content to the standard as it applies in the unique circumstances of this case, is more difficult. The British Columbia Court of Appeal, in the case of Bergen v. Guliker Estate,¹⁷ described this process:

109 Translating the general standard into particular obligations imposed on a defendant in a given case (i.e., the content of the standard) and the determination of whether the defendant has met those obligations (i.e., whether there is a breach), are questions of fact…

110 External indicators of reasonable conduct, including professional standards and internal policy, may inform the content of the standard and whether it was breached. However, policies and statutory standards, while instructive, are not definitive of the content of the standard of care…[citations omitted]

111 Similarly, while compliance with policy may be an important factor to consider in determining whether the standard of care has been met, failure to follow policy does not automatically compel the conclusion that the standard of care was breached.

397While, generally, expert evidence is called to establish the parameters of the standard of care in a case of criminal negligence in the context of a trade or profession, determining the standard of care of a careful or prudent parent does not generally require expert evidence.¹⁸ As the Alberta Court of Appeal held in R. v. Clark:

Expert evidence is antithetical to the standard of the reasonable person, or the reasonably prudent parent. The conduct of the accused is to be measured against something that is commonly understood by members of society — a ‘societal minimum which has been established for conduct’ or a ‘uniform minimum level of care’. An expert in parenting does not set the standard under this section, nor does a medical doctor. It is the conduct of the reasonably prudent parent that is the measure.¹⁹

398Although the standard of care for a teacher is that of a careful and prudent parent, the Supreme Court of Canada has cautioned that the application of the standard will vary from case to case and “will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent standard to the conduct of the school authority in the circumstances”.²⁰

399In applying the standard, I must also bear in mind that the standard is “… not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable [person], judged in the circumstances prevailing at the time…”.²¹

400Falling below the minimal standard is enough to establish negligence on the civil standard. It is not enough to establish the offence of criminal negligence causing death or bodily harm.

401To constitute a criminal offence, the conduct must show a “wanton and reckless disregard for the lives and safety of others”. The Crown must prove that the conduct not only fell below the minimal standard but fell so far below that it shows this level of moral blameworthiness. Healy J.A., in the case of R. v. Fontaine²² from the Quebec Court of Appeal, gave this explanation of the difference in the levels of negligence:

These differences of degree cannot be measured by a ruler, a thermometer or any other instrument of calibrated scale. The words ‘marked and substantial’ departure are adjectives used to paraphrase or interpret ‘wanton or reckless disregard’ in section 219 of the Code but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one case to another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirely contextual. [para. 27]

IX application of the principles to the fault element in this case

402I will now apply the legal principles set out above to the circumstances of this case.

403I find that the OPHEA guidelines were, in 2017, viewed by many teachers and administrators as a framework within which to exercise discretion and that modifications were accepted as reasonable and necessary. TDSB students regularly attended Boundless School where they participated in whitewater rafting, a prohibited activity under the OPHEA guidelines. Some schoolboards in Ontario did not adopt OPHEA guidelines. Many private and independent schools did not adopt the OPHEA guidelines. Ms. Leizer, an experienced physed teacher had no concerns about compliance with OPHEA guidelines on the trip and Dr. Gala agreed with the modifications made by Mr. Mills. 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. The noncompliance with OPHEA guidelines and TDSB policies is a factor in assessing reasonableness but it is not determinative.

404I accept that non-swimmers can and do participate in canoe trips safely. The evidence before me is that Scouts Canada, in 2017, permitted non-swimmers to participate in canoe trips and did not conduct swim testing or bring lifeguards. Commercial enterprises take non-swimmers on canoe trips without swim testing and did so in 2017.

405It was reasonable and within the standard of care to take weak and non-swimmers on the trip. However, the number of weak and non-swimmers on the trip is a relevant circumstance for me to consider in assessing the reasonableness of the conduct of Mr. Mills.

406Similarly, allowing students to swim without a lifejacket following an assessment of their swimming ability was not conduct that, in itself, fell below the standard of care. Commercial outfitters permitted clients on trips to swim without lifejackets. Careful and prudent parents permit children to enter the water without lifejackets at a variety of swim sites.

407The presence of a lifeguard is an important feature of this case. It is undisputed that the presence of a lifeguard enhances the safety of a swim site. It is not something that is required to meet the standard, but it is a factor that weighs in favour of reasonableness in this case.

408The presence of one 17-year-old lifeguard, rather than two 18-year-old lifeguards, did not meet the requirements of the OPHEA guidelines but I find that having one 17-year-old lifeguard was reasonable and met or exceeded the standards at many similar swim sites. The presence of a lifeguard does not, in itself, mean that the conduct of Mr. Mills met the standard of care, it is merely one factor that I must weigh in the reasonableness analysis.

409Mr. Mills had knowledge of the swimming ability of Jeremiah. He made a brief observation of Jeremiah when he tipped out of the canoe at Sparrow Lake Camp and assessed Jeremiah’s swimming at the swim site on July 2nd, two days before the drowning. He was aware that Jeremiah could keep himself afloat and move 50 meters through the water without a lifejacket. The distance of 50 meters is a standard distance used in swim tests. The OPHEA swim test requires a 50 meter swim, as does the Swim to Survive test described in the testimony of Michael Shane. Although a test administered by a qualified lifeguard that included treading water would have been a better test of Jeremiah’s swimming ability, allowing him to swim without a lifejacket after he demonstrated an ability to swim 50 meters met the standard.

410As set out in the caselaw, the first question in determining the fault element is whether the conduct of allowing Jeremiah to swim without a lifejacket in the circumstances created a risk and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

411A reasonable person in the same circumstances as Mr. Mills would be a teacher on a wilderness canoe trip at a swim site with eight students at or near the water with a steep drop off into deep water. That teacher would be aware that about half of the students are weak or non-swimmers who are unfamiliar with Ontario Lakes. A further contextual fact is that it had been suggested to him that the weak or non-swimmers should wear lifejackets within three meters of the water. He would be aware of guidelines that recommend additional safeguards. That teacher would know that there is a lifeguard on duty. He would have warned the students of the drop off and positioned himself and the other adult trip leader at one part of the drop off with instructions not to go past them. The conduct in issue is that of allowing Jeremiah, a 15-year-old novice swimmer to swim without a lifejacket in that context.

412I have concluded that a reasonable teacher in these circumstances would have foreseen the risk of a student drowning. The swim site boundaries were unmarked and there were seven to eight students to watch. The swimming ability of Jeremiah was known to some extent, but his experience in the open water was not well known. The presence of a lifeguard enhanced safety, but the lifeguard could not watch everyone at all times.

413Individual decisions of Mr. Mills can be justified as reasonable in the circumstances. Taking non-swimmers on the trip and 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. Allowing students to swim where there was a steep drop-off can be seen as reasonable when considered in the context of the warning 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. A reasonable teacher would have taken additional steps to avoid the risk. 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.

414If this was a case of civil negligence, the test would be met. This is a criminal case. It is not enough for the Crown to prove that Mr. Mills fell below the standard. The Crown must prove beyond a reasonable doubt that the failure to foresee the risk and take steps to avoid it, if possible, was a marked and substantial departure from the standard of care expected of a reasonable person in the same circumstances. As I have said earlier in these reasons, this is a matter of degree. The conduct must show “wanton and reckless disregard” for the lives or safety of others.

415Justice Cromwell, in R. v. Roy,²³ said:

Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v. Beatty, 2008 SCC 5, [2008] 1 SCR 49 (SCC), at para. 34, ‘If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.’ Giving careful attention to the fault element of the offense is essential if we are to avoid making criminals out of the merely careless.

416I cannot conclude that the Crown has proven beyond a reasonable doubt that the conduct of Mr. Mills was a marked and substantial departure from the standard of care of a reasonable person in the same circumstances. As I have said, Mr. Mills made individual decisions that were justifiable such as permitting weak and non-swimmers to attend the trip and permitting students to swim without lifejackets. His conduct fell below the standard when he failed to reassess risk at the July 4th swim site where the steep drop-off to deep water added to the cumulative circumstances to increase the risk and make the situation unsafe for Jeremiah Perry. Mr. Mills’ failure to reassess the risk was an error in judgment that occurred within a time period of about one hour during which time the decision was made to allow swimming, the swim site was chosen, and the students entered the water.

417The degree of departure from the standard does not reach the significant level of wanton and reckless disregard or a marked and substantial departure from the standard of care of a reasonable person in the same circumstances. It does not reach the level of moral blameworthiness necessary for criminal liability. I do not find that Mr. Mills made a series of unreasonable decisions culminating in the death of Jeremiah. His decisions up to July 4th did not meet the standard of “perfection or even optimum”, but they 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 described by Justice Cromwell in Roy 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.

X Conclusion

418I therefore find Mr. Mills not guilty.

M. Forestell J.

Footnotes

1. 1Witnesses in this trial used the terms lifejacket and PFD or Personal Flotation Device interchangeably. I will use the term lifejacket in these reasons to mean a properly certified personal flotation device.
2. 2R. v. C.(H.), 2009 ONCA 56, at para. 41
3. 3R. v. Javanmardi, 2019 SCC 54 at para. 19
4. 4R. v. M.R., 2011 ONCA 190 at para. 25
5. 5In these reasons when I refer to the ‘conduct’ of Mr. Mills, I intend for that term to encompass both acts on the part of Mr. Mills and omissions where he had a duty to act.
6. 6R. v. Maybin, 2012 SCC 24 at para. 17
7. 7R. v. Javanmardi, at paras. 19-23
8. 8Javanmardi, at para. 22; R. v. Roy, 2012 SCC 26 at para. 36
9. 9[1993] 3 S.C.R. 3, at pp. 42-43
10. 10Javanmardi, at para. 37
11. 11Javnamardi, at para. 38
12. 12R. v. Tutton, [1989] 1 S.C.R. 1392
13. 13For example: Sharda Singh, the mother of Bhavini Deonarine.
14. 14Portable toilet.
15. 15Education Act, R.S.O. 1990 C. E.2 s. 264 and R.R.O. 1990 Reg. 298. 20(g)
16. 16Myers (Next friend of) v. Peel Country Board of Education, [1981] S.C.R. 21
17. 172015 BCCA 283 at paras. 109-111
18. 18R. v. Gardner and Fraser, 2021 NSCA 52, 2021; R. v. Clark, 2020 ABCA 356
19. 19R. v. Clark, 2020 ABCA 356 at para. 26
20. 20Myers v. Peel County Board of Education, [1981] 2 S.C.R. at para. 31
21. 21Hill v. Hamilton-Wentworth, 2007 SCC 41, at para. 73
22. 22R. v. Fontaine, 2017 QCCA 1730 at para. 27, cited with approval in R. v. Javanmardi, at para. 23
23. 23R. v. Roy, 2012 SCC 26 at para. 2