A jury convicted Karl Lilgert last year in the deaths of passengers Gerald Foisy and Shirley Rosette, who haven't been seen since the sinking in March 2006. He was sentenced to four years in prison.
The ferry struck an island after it missed a routine turn during an overnight voyage to Vancouver Island from Prince Rupert. The trial heard the ship travelled for at least 14 minutes in a straight line, without slowing down or making any evasive manoeuvres, before the collision.
Lilgert's defence lawyer argued earlier this week that the trial judge made several mistakes in her instructions to the jury, particularly when she outlined what the Crown needed to prove for a conviction of criminal negligence causing death.
Defence lawyer Glen Orris said the judge incorrectly told the jury Lilgert had a legal duty to follow marine rules known as collision regulations and to operate the vessel safely and properly. With that standard, Orris argued, any accident could be considered criminal.
But Crown counsel Mary Ainslie said there was no issue during the trial about whether Lilgert was duty-bound to follow the collision regulations, and even Lilgert acknowledged it was his job to ensure the safety of the ferry and its passengers. The jury was also told that honest mistakes or momentary lapses in judgment would not be enough for a criminal negligence conviction.
"The actual duty and standards would have been well understood by the jury and they were given the proper tools to assess them," said Ainslie.
The defence also argued in the appeal that the judge should have told jurors they could consider Lilgert's explanation for what happened as a mitigating factor.
Lilgert testified in his own defence, claiming he was actively navigating the ship, including ordering at least two turns, as the ferry sailed toward the island. He said he didn't know why the ship ran aground, with data recovered from the ferry indicating it did not change course.
Ainslie said Lilgert never actually attempted to explain his failure to navigate the ship.
"It was negligent conduct that stood unexplained because he denied engaging in negligent conduct," she said. "There was no explanation. There was simply his version of events."
Ainslie said the jury clearly rejected Lilgert's testimony about what happened.
Lilgert was on the bridge with quartermaster Karen Briker, his ex-lover. The pair had ended an affair several weeks earlier and the night of the sinking was their first time working alone together.
The Crown alleged Lilgert failed to navigate the ship because he was distracted by Briker, either because they were arguing or possibly having sex.
Lilgert and Briker both denied their relationship had anything to do with the sinking. The Crown argued they were both lying.
Foisy and Rosette, a common-law couple from 108 Mile House, B.C., are believed to have gone down with the ship, though their bodies were never recovered.
The Appeal Court judges are expected to release a ruling at a later date.
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