Toronto teacher charged in teen’s drowning shouldn’t be held to ‘optimal’ standard: defence

TORONTO — A Toronto teacher charged in the drowning of a teenage student shouldn’t be held to a higher standard than the “average parent” in assessing the care and supervision he provided on a multi-day school canoe trip, his lawyers argued Thursday.

While Nicolas Mills’s actions in planning and leading the July 2017 trip to Algonquin Provincial Park are “not immune from criticism,” they are also “nowhere near criminal,” defence lawyer Phil Campbell told a virtual court.

Mills has pleaded not guilty to criminal negligence causing death in connection with the drowning of 15-year-old Jeremiah Perry.

The teacher, who took the stand last week, has acknowledged he did not follow some rules imposed by the Toronto District School Board because he felt they were impractical or unnecessary, and would have made it impossible to carry out the excursion.

But he has maintained the trip was safe, and had stricter safety requirements in place than similar outings in the private sector.

In his closing arguments Thursday, Campbell argued the rules adopted by the board shouldn’t be viewed as the benchmark for reasonable behaviour because they go far beyond what others in the wilderness trip industry and the community do on canoe or swimming trips.

Campbell said the legal test for negligence isn’t whether the accused’s actions met some “optimal” standard, but rather whether they met the minimum for what would be reasonable under the circumstances.

The court should also refrain from measuring Mills against a higher standard of conduct due to his position and experience with such trips, the defence argued.

“Thus you do not hold Mr. Mills … to a higher standard by virtue of his training or expertise than you would hold the average parent running a canoe trip or a swim site with their friends or neighbours,” Campbell said.

“It cannot be right that Nicholas Mills can make the same choices or safer choices … than a couple of parents or members of a club or Scout leaders or commercial outfitters, with the same kinds of kids at the same kind of location, and one be deemed criminally negligent and the other, or others, not.”

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Prosecutors allege Mills neglected or ignored safety rules, including allowing students who had failed a mandatory swimming test to come on the trip, because he believed he “knew better.”

They also allege he made up having personal knowledge of Perry’s swimming ability in order to justify letting the teen swim without a life jacket on the day he drowned.

The defence, however, argued Thursday the Crown has failed to establish beyond a reasonable doubt that Perry did not know how to swim, which it says is necessary to establish negligence on the part of the teacher.

If Perry knew how to swim, then there would be no issue in letting him swim without a life jacket, as he did on July 4, the day he drowned, Campbell argued.

And had the teen not been able to swim, there would be no “satisfactory explanation” for how he managed to get to the spot where his body was found, which was in deeper water beyond the group’s designated swimming area, the defence argued.

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He further noted a lifeguard and two guides — Mills and his partner — were overseeing the group of seven students at the time that Perry drowned. “That’s a high level of protection,” Campbell said.

Court has heard Perry and more than a dozen others had failed a mandatory swimming test held before the trip. It has also heard the results of the test were not shared with the school’s principal, the other guides, or the lifeguard in Mills’s group.

Mills testified he “scanned” the results and believed he had seen a P for “pass” next to Perry’s name, but the Crown alleges he made that up after the teen’s death.