Lilgert, the ferry's fourth officer, has been on trial since January for criminal negligence causing the deaths of two passengers, who haven't been seen since the ferry missed a turn and struck an island off northern British Columbia on March 22, 2006.
The Crown's case has focused in part on an affair between Lilgert and quartermaster Karen Briker, which began the previous September. The court heard the affair ended several weeks before the sinking, after Lilgert and Briker were each confronted by their spouses, and on the night of the sinking they were working alone together for the first time since the breakup.
But Justice Sunni Stromberg-Stein cautioned the jury not to use the affair as evidence of Lilgert's guilt.
"This evidence introduced by the Crown was to help prove an issue directly relevant to the Crown's theory that Mr. Lilgert was distracted by Ms. Briker's presence on the bridge and failed to navigate the vessel," Stromberg-Stein told jurors as she delivered her instructions ahead of the jury's deliberations.
"You cannot use that Lilgert may have been involved in a sexual relationship with Ms. Briker as evidence of his character or disposition. More specifically, you cannot infer from this evidence that Mr. Lilgert is a person who is more likely to have committed the offence."
The Crown has argued Lilgert was negligent when he failed to make a scheduled turn, leaving the ferry on a collision course with Gil Island. During Lilgert's cross-examination, a prosecutor suggested he was either arguing with Briker or having sex with her when the ship missed the turn, which he denied.
Lilgert and Briker both testified, each telling the jury there were no hard feelings after the affair ended and insisting it played no part in what happened. They each testified there was little conversation between them in the half-hour leading up to the collision, except for a brief discussion about Briker's recent decision to purchase a home with her spouse.
Stromberg-Stein began her instructions Monday morning, reviewing the evidence and explaining the law to the jury. She was expected to finish her instructions on Tuesday, leaving the case in the hands of the jury.
While Stromberg-Stein underscored that the burden of proof rests with the Crown, she also acknowledged the significance of Lilgert's own testimony.
Lilgert told the jury he was doing everything he could to navigate the ferry through rough weather and around as many as two small boats when, inexplicably, the ferry collided with Gil Island. He said strong winds, rain and sleet were interfering with his radar and pushing the ship off course, though he insisted he was confident he had successfully kept the ferry roughly half a kilometre away from Gil Island.
The Crown accused Lilgert of lying and colluding with Briker to concoct the story he told the jury, which Lilgert denied.
Stromberg-Stein told the jury if they believed Lilgert's testimony, they would have no other choice but to acquit him.
"You may accept all, parts, or none of Karl Lilgert's evidence," the judge said.
"Of course, if you believe the testimony of Karl Lilgert that he did not commit the offence he was charged with ... you must find him not guilty."
Stromberg-Stein also explained the definition of criminal negligence and precisely what the Crown must prove for the jury to convict him.
For a conviction, the Crown must prove Lilgert caused the ship either by improperly navigating the ship or failing to navigate the ship, the judge said. The Crown must also prove Lilgert's actions demonstrated a "wanton and reckless disregard" and represented a "marked and substantial departure" from the actions of a reasonable mariner in similar circumstances.
Finally, the Crown must prove the two missing passengers, Gerald Foisy and Shirley Rosette, are dead and that their deaths were the result of Lilgert's actions.
Last week, Lilgert's lawyer, Glen Orris, attempted to shift the blame to BC Ferries, telling the jury Lilgert was saddled with unreliable equipment, poor training and inadequate staffing policies.
Orris also suggested outside forces wanted to see Lilgert take the fall for the sinking, including BC Ferries.
But Stromberg-Stein told jurors to keep their focus squarely on Lilgert.
"There is no evidence of an agenda of anyone to implicate Mr. Lilgert of a crime, and you must disregard such a suggestion," she said.
The judge said the jury will also be able to consider lesser charge of dangerous operation of a vessel.
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