Toronto teacher found not guilty of negligence in teen student's drowning

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TORONTO — A Toronto teacher failed to properly assess the safety risks at a swim site where a 15-year-old student drowned during a school canoe trip but his actions did not meet the threshold for a criminal conviction, an Ontario judge ruled Wednesday.

Nicholas Mills was charged with criminal negligence causing death in the drowning of Jeremiah Perry, who died during an overnight trip to Algonquin Provincial Park in July 2017.

Mills, a teacher at C.W. Jefferys Collegiate Institute, planned the excursion and led a group of students that included Perry during the event.

Prosecutors alleged during trial that Mills ignored safety rules in planning and carrying out the multi-day excursion, and allowed Perry – who they argued could not swim – to go in the water without a life-jacket.

Defence lawyers, meanwhile, said the Crown failed to prove beyond a reasonable doubt that Perry couldn't swim, which they said is necessary to establish negligence. They also argued Mills shouldn't be held to a higher standard than the "average parent" conducting a similar trip.

Ontario Superior Court Justice Maureen Forestell found that Mills's decisions leading up to the incident, including in allowing weak swimmers to take part in the trip, were justifiable under the circumstances.

However, his conduct fell below the standard of care when he failed to reassess the risk at the swim site, the judge found. Given the conditions there, a reasonable teacher would have foreseen the risk of a student drowning, she said.

The boundaries of the swim site weren't marked, there were up to eight students to supervise, and Perry's experience in deep water wasn't well known, she found. There was a lifeguard present, but the lifeguard couldn't watch everyone at all times, she said.

Perry's "demonstrated swimming ability was, at best, that of a novice swimmer," Forestell found, noting Mills had seen the teen swim 50 metres without a life jacket two days before the drowning, but had not seen him tread water or swim in deep water without a life-jacket.

"Allowing students, including Jeremiah, (who) demonstrated a level of swimming ability to swim without a life-jacket 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 (given to students), and the supervision of additional adults," she said.

"However, the decisions when considered cumulatively, as they must be, created a risk to the lives and safety of the students that would have been foreseen by a reasonable teacher in the same circumstances ... In failing to foresee the risk created by the cumulative circumstances and failing to take steps to avoid it. Mr Mills fell below the standard of care."

That failure "brought his conduct to the level of carelessness," the judge found, but did not reach the level of "wanton and reckless disregard" required for a criminal conviction, nor did it represent a significant enough departure from the standard of care.

The judge also found Mills's actions in misleading the school board regarding preparations for the trip, and his failure to inform students and parents of the results of a mandatory swim test were "flawed" but played no role in Perry's death.

Perry disappeared in the water at Big Trout Lake on the third day of what was meant to be a six-day trip.

No one at the site saw him go into the deep water, Forestell said. The judge said Perry was last seen in shallow water, and Mills had given him permission to swim without a life-jacket after seeing him swim 50 metres earlier in the trip.

Mills and his partner were in the water standing near the drop off point, but they were positioned near the centre, leaving the sides open, the judge said.

Another student who was wearing a life-jacket felt something pull his leg under the water, and called Mills once he resurfaced, the ruling said. That's when the group noticed Perry was missing, the decision said.

Efforts to find him were unsuccessful, and his body was recovered by police divers the next day.

During trial, Mills acknowledged he did not follow some rules imposed by the Toronto District School Board because he believed them to be impractical or unnecessary. Some of the measures would have made it impossible to carry out the trip at all, he testified.

The teacher maintained, however, that the safety requirements he imposed went beyond what's commonly done in the private sector.

Court heard the trip was part of an ongoing program for underserved youth, and that students were required to pass a swimming test to participate.

Perry failed the test, as did nearly half of the students who took part in the excursion, the court heard. Several students also wore life-jackets during the assessment, which was against regulations established for overnight canoe trips.

Students who failed the test were supposed to be given swimming lessons and take part in a second assessment, court heard. Those who failed a second time were to be offered an alternate outing.

Mills testified he believed Perry passed the swim test, saying he saw what he thought was a "P'' for "pass'' next to the teen's name when he "scanned'' the results.

This report by The Canadian Press was first published Oct. 6, 2021.

Paola Loriggio, The Canadian Press

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