Unsafe assumptions: Where Toufik Benhamiche went wrong

Toufik Benhamiche faces a four-year term in a Cuban prison. Family photo.

IN CANADA and other developed countries, we're accustomed to safeguards. 

Open the door of a microwave oven in mid-cycle and the device shuts down before damaging electromagnetic waves can escape. Lose your grip on a zip line and a harness keeps you from crashing to the ground. 

Such fail-safes are there to protect us from injury – and protect manufacturers and service providers from legal liability. Sometimes the measures and warnings seem ridiculous – "Do not use lit match or open flame to check fuel level" – but we accept them in the spirit of too much is better than too little.

It's when we carry our assumptions about safety elsewhere that we can get into trouble.

Toufik Benhamiche would have expected that driving a small boat with a big engine was simple and straightforward – otherwise, why would a Cuban tour operator allow a novice to take the controls after a few moments of dockside instruction?

He didn't know that in Cuba, a place of intersections without stop signs and beaches without lifeguards, the onus is on the individual to assess risks and act accordingly.

Such a look-after-yourself attitude might seem incongruous in a Marxist-Leninist state founded on the principle of the social safety net. It becomes easier to understand, however, when you see the island's crumbling infrastructure and realize just how stretched are its resources.

It was amid these conflicting assumptions that the Algerian immigrant to Canada, with no experience operating a boat, would find himself squeezed with his wife and two young daughters into a two-seat runabout with 40-horsepower Yamaha Enduro outboard motor.

Disaster came quickly.

"I followed the boat ahead of me, and at some point, for some unexplained reason, the boat turned and turned back towards the wharf," Benhamiche told the QMI news agency.

"I did not understand. It took two seconds and I hit the boat near the dock. We flew in the air and we came across the wharf."

The boat's propeller struck another Canadian, Jennifer Ann Marie Innis of Woodstock, Ont., on the head. The 33-year-old mother of three died of her injuries.

In two trials, Benhamiche's Cuban lawyer sought to show that the tour operator, a subcontractor to Canada's Sunwing Vacations, violated safety standards. Employees of the marina were unfamiliar with a procedures manual, the court heard, and the engine cut-off switch on Benhamiche's boat was never checked after the accident.

Twice, the court has found the Quebec man guilty of criminal negligence.

What would have happened if the same accident took place in Canada? First, a thorough investigation, with witness accounts gathered and the boat examined in minute detail. Given what we know, it would seem certain that the operators would be charged.

Benhamiche? Perhaps, if the Crown felt he was also culpable, and that there was a reasonable chance of conviction. Yet even with a guilty verdict, it's hard to imagine him serving time.

In Cuba, should his latest appeal fail and should the Canadian government be unable to extricate him, he could very well find himself in prison. Never mind the tour operator's part in this (and put aside, for a moment, the thought that the island would hardly want to admit that its attractions are inherently dangerous).

He was driving, and that makes him responsible.

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