Several witnesses claim he was going back and forth over and over again while the whale was surfacing and spouting, so he definitely saw that there was a whale there. Being extremely close to the whale was 100% intentional, and going way too fast was 100% intentional.
Did he hit it on purpose? No, probably not. But was every action that led to the collision intentional and avoidable? Absolutely.
DFO should throw the book at this asshole. Maximum every available consequence.