Court File and Parties

Court File: Peterborough 110014 Date: June 21, 2012 Ontario Court of Justice

Between: Her Majesty the Queen And Jean Crowe

Before: Justice of the Peace S. Lancaster

Heard on: February 16, 2012

Reasons for Judgement released on: June 21, 2012

Charge: Operate Unsafe Vehicle s.84(.1), Highway Traffic Act

Counsel:

• Mr. A. Fordham, Crown Prosecutor
• Mr. C. Fisk, Counsel for the Defendant

Reasons for Judgement

A) ISSUE

[1] Jean Crowe is before the court charged under the Highway Traffic Act s.84 for operating of an unsafe motor vehicle on August 12, 2010 on Chemong Road in the City of Peterborough; the outcome was a single motor vehicle collision.

B) BACKGROUND

[2] Ms Crowe's trial was held on February 16, 2012 when the court heard from 1 Crown witness, the defendant Ms Crowe and 2 defence witnesses. This matter is returning today for final submissions and court judgement.

[3] An agreed set of facts were read into the record. Ms Crowe was driving her 1996 Chrysler Voyager van southbound on Chemong Road in Peterborough when she collided with a rock abutment near Applegrove Avenue. There was significant damage to the front-end of the vehicle, and injuries to the driver and passenger Mary Moore. Ms Moore succumbed to her injuries. Officer Sejrup attended as an Accident Reconstructionist. It was agreed that neither the road conditions nor Ms Crowe's driving behaviour were contributing factors to the collision. It was further agreed that Ms Crowe's brake system failed on this day.

C) EVIDENCE OF WITNESSES AND FACTS

Scott Fitzsimmons – Crown Witness, Fitzsimmons Motor Vehicle Collision

[4] The court heard from Scott Fitzsimmons, the owner and operator of Fitzsimmons Motor Vehicle Collision in Peterborough. He is licensed to conduct motor vehicle inspections in Ontario and has a class "H" license with work experience on heavy duty trucks and coaches. He has been a licensed mechanic since 1980 and follows the Safety Inspection Guidelines issued by the Ontario Government. On August 12, 2010 he was called to a collision scene to tow a motor vehicle to his shop followed by the police, and place the vehicle in a locked garage, providing the only key to officer Sejrup.

[5] On August 16, 2010 in the presence of officer Sejrup Mr. Fitzsimmons conducted an inspection of the noted van and authored a Report, noting the vehicle plate of ATZT934 and the odometer reading of 356,308 km. Problem areas were identified and photographed. Crown exhibits A1-A23 were filed with the court. Mr. Fitzsimmons observed damage to the front-end of the van he checked the tire pressure and tread depth, the front suspension, steering, frame structure, front and rear brakes, lights and the overall vehicle condition. He advised that with only one problem area, the van would not have passed a safety check. He has identified several areas of concern. The under-body had extensive corrosion with holes in the floor on both the left and right sides.

[6] Mr. Fitzsimmons noted there was no damage to the right rear wheel. When the right rear brake drum was removed to expose the brake shoes, wheel cylinder and spring; all three components were saturated with brake fluid, advising that this was not the result of the collision. The accumulated brake dust had become saturated over time, noting that brake dust and fluid would remain in the drum as brake fluid does not evaporate (or at least the glycol according to Mr. Shirer), and has been there for a long time. Brake fluid leaked out when the dust cover was removed and the ABS controller showed signs of leaking. The condition of the brakes would have lead to "totally improper braking". Brake fluid would have to have been added to the reservoir over time or the vehicle would have had no braking.

[7] There was evidence of "extensive heat" and pad burning from brake pad and rotor rubbing, and the rotor showed scaling and rust throughout, providing only half the brake rotor braking surface, and the right side calliper was seized. Brake pads are to "float" on the rotor and not rub; rubbing brake pads heat up, resulting in improper braking, possible brake fluid "boil" and brake loss.

[8] The inspection determined that the brake lines running from the front to rear had been changed, showing looping of brake lines and improper mounting. Some old unattached fasteners were observed. Proper fastening is necessary to prevent objects driven over from catching the lines, tearing them from the car and causing brake loss. Exhibit #2 shows the rusty right rear brake line kinked where it connects to the calliper; a kinked brake line would restrict the brake fluid flow to the calliper. The emergency brake is to be properly adjusted to provide a secondary braking system. The emergency brake cable was frayed, rusted and too slack to "… work at all".

[9] There was extensive front-end damage, mainly to the left side. The steering and suspension were checked with noted badly rusted upper strut mounts. While the struts had not pushed through the corrosion was such that the motor vehicle would not have passed a safety inspection.

[10] Mr. Fitzsimmons referred to O.Reg.611 regarding: under-body holes, brakes lines, emergency braking systems and suspension struts noting that the subject motor vehicle would not have been issued a safety certificate. One problem area alone would have caused the vehicle to fail the safety inspection, let alone the multiple problems areas identified. Mr. Fitzsimmons testified that there was no damage to the braking system caused by the collision.

[11] On cross examination the defence focused on what has been characterised as a "catastrophic failure" of the braking system. Mr Fitzsimmons agreed that such a failure would be rare and that there would be an absence of an advance warning to the driver. He also agreed that the master cylinder reservoir contained brake fluid and that the brake shoes were within the required specifications. He disagreed that a "catastrophic" brake failure could be caused by a manufacturing defect.

Jean Crowe – Defendant

[12] The court heard from the defendant, Jean Crowe who testified that she has been a licensed driver for 38 years and has a very good 5 year driving record. On August 12, 2010 she was driving from her Apsley home taking her friend Mary Moore to an appointment in Peterborough. She travelled south on HWY 28 making many turns and stops along the way. She drove along Chemong road when she lost her brakes at a traffic light, travelling through an intersection, changing lanes and pumping her brakes to no avail. She veered off of Chemong Road onto a parallel running street, honking her horn and screaming when her car hit a rock wall where she sustained injuries and fatally injuring Ms Moore. She noted that she didn't have any trouble braking earlier during the drive to Peterborough or during the week prior. There were no indications, e.g., brake fluid leak warnings, of the impending brake failure.

[13] She advised that she owns the 1996 Voyager, is the primary driver and is in charge of vehicle maintenance, but relies on her husband for most maintenance work. She advised that she only drives the van for short distances. Defence exhibits include receipts from several auto shops (Carquest, Vance Motors and Kawartha Chrysler Dealers, Walmart and Steve's Auto) dating from April 2009 to January 30, 2010. These invoices were for parts purchased (fluids, pressure hose, switches, used starter) oil changes, emission tests and air bag warrantee work. The last service was noted for 06/09/09 (denoting either June 9 or September 6 , 2009) at Walmart for an oil change with the odometer reading of 332,213 km, almost 23,000 km prior to the collision. There was a technician's comment regarding a power steering fluid leak. These invoices were tendered to demonstrate due diligence with regard to vehicle maintenance.

[14] On cross examination Ms Crowe noted that she purchased her van in 2005 and that she does not have a licensed mechanic that services her van, that her husband Dave Crowe does the maintenance work and that she generally does not discuss her vehicle maintenance with him beyond noting vehicle "noises, smells or vibrations". She noted that her husband is not a mechanic, that he has not received mechanic's training, although he does have a well-equipped vehicle repair shop and is familiar with the van and its service manual. She agreed that she didn't know for sure if the service shops that dealt with her car employed licensed mechanics, but agreed that items attended to at these shops were of a routine nature, the kind that she or the average person could check. She testified that her husband had serviced the brakes.

Dave Crowe – Defence Witness #1

[15] The court heard from Dave Crowe, who noted that he is familiar with his wife's van and that he only drives it on longer trips. Ms Crowe purchased the van from a colleague and that it was certified when she bought it, although it soon required a change in transmission and a front axle. In 2008 winter tires, a power steering pump and hose were installed and the brakes were checked. He noted that he has a "proper" equipped garage with a 4-post hoist, scanners and vehicle manuals, and that he has a "good standard of work", and works on vehicles under no time pressures.

[16] Mr Crowe has been a licensed electrical technician for 15 years. He confirmed that he is not a licensed auto mechanic but has been working on cars, vans, trucks and tractors since 1965, servicing some 20-30 motor vehicles for family members. He has always purchased used cars doing all the repair work himself, and that he does not take his vehicles to licensed mechanics.

[17] Mr Crowe testified that he repaired the brakes on his wife's van in November or December 2008, replacing the front and back brakes lines and pads. When questioned about the installation of the brake lines he confirmed that the lines were custom-made, testifying that the lines were damaged due to collision compression and not because they were installed incorrectly, although he agreed there was possibly 3 excess inches in line length. On cross examination, Mr. Crowe agreed that not changing the van oil for some 23,000 km does not constitute proper maintenance.

[18] On cross examination, Mr. Crowe confirmed that his wife always advised him if she thought her van needed maintenance and that he would address any problem immediately, the same day. Despite Ms Crowe's evidence regarding the Walmart alert to a steering leak, and the Carquest invoice and steering fluid pump hose purchase, Mr. Crowe advised the court that he had not seen the invoice nor did he receive the hose part from his wife. His responses were confused regarding when he installed the hose, if he installed more than one, and testified that the hose installation was pro-active on his part; this is contrary to Ms Crow's evidence.

Robert Shirer – Defence Witness #2

[19] The court heard from Robert Shirer, a professional Consulting Forensic Engineer with 10 years of experience, and a trained accident reconstructionist. As a consulting engineer, Mr. Shirer must undergo recertification every 3 years, involving a peer review. Mr. Shirer was declared an expert witness for the purpose of this trial.

[20] Mr. Shirer authored Defence Exhibit #2 Report, dated January 11, 2012, after reviewing relevant reports, documents, photographs and notes as outlined in his report. On December 7, 2011 he attended the Crowe residence to examine the damage to Ms Crowe's van. He observed the vehicle firewall displaced toward the rear of the vehicle, bent and twisted brake lines pushed backwards an estimated 4 inches, although the lines were not measured. The collision impact caused the displacement of the engine, front bumper and front wheel toward the rear by some 1-1½ feet, including pushing the master cylinder into the firewall by inches.

[21] Mr. Shirer observed that the brake reservoir contained brake fluid despite expecting the level to be lower or empty given the fluid leaked findings by Mr. Fitzsimmons. He observed significant corrosion to the brake pads, rotors, the slackened emergency brake cable and slackened brake lines that he attributed to impact compression. On cross examination, Mr. Shirer agreed that given the passage of time (1½ years) the vehicle conditions would have changed since Mr. Fitzsimmons' inspection, e.g., degree of rust. At the time of his review the vehicle had been returned to the owner and lacked secure continuity.

[22] On cross examination, Mr. Shirer agreed that some conditions eg, under-body holes would have caused the vehicle to not pass the HTA roadworthiness requirements. He also agreed that the condition of the front right rotor, if burned, would justify its replacement. He contends that the source of the fluid leak and brake failure is not known, and while the master cylinder could have malfunctioned the damage to the engine compartment precluded further inspection of the master cylinder.

[23] Mr. Shirer contends that he sees no way to date the leaks and seizure of the braking system. He further contends that the collision was probably caused by a catastrophic brake failure of the primary system and attributes the emergency brake system failure to the collision.

D) STATUTORY PROVISION

[24] Highway Traffic Act s.84(.1) states:

"No person shall drive or operate or permit the driving or operation upon a highway of a vehicle, a street car or vehicles that in combination are in a dangerous or unsafe condition"

E) ACTUS REUS

[25] The Crown must prove all elements of the actus reus of the offence beyond a reasonable doubt. The Crown must produce sufficient evidence that Ms Crowe operated her motor vehicle on a highway in a dangerous or unsafe condition. As per R. v. Lifcus (1997), "proof must be logically connected to the evidence, or absence of the evidence, and does not involve proof of an absolute certainty…"

F) DUE DILIGENCE – LEGAL PRINCIPLES

[26] The charge before this court is a strict liability offence. Once the actus reus of the offence is proved a conviction must follow unless the defendant exercised due diligence to avoid the commission of the offence. (R. v. Sault Ste. Marie (City) (1978), 40 C.C.C.(2d) 353 (S.C.C.))

[27] As per R. v. Sault Ste. Marie (City), "In a normal case, the accused alone will have knowledge of what he has done to avoid the breach, and it is not improper to expect him to come forward with evidence of due diligence"

[28] As evidence credibility is an issue in this trial the court has considered R. v. W(D) to determine which evidence the court finds more credible and reliable:

1. Where I believe the defendant's evidence, I must acquit

2. Where I don't believe the defendant's testimony, but I'm left in reasonable doubt, I must acquit

3. Where I don't believe the accused's evidence, but on the balance of the evidence I have reasonable doubt, I must acquit

G) COURT FINDINGS

[29] The court has heard testimony that the collision on August 12, 2010 was caused by the catastrophic brake failure. When Ms Crowe realized that she was unable to stop she pumped her brakes, sounded her horn, screamed to pedestrians and changed lanes to avoid hitting other users of the road, striking a rock wall stopping her van with significant force. Her last ditch efforts may have saved pedestrian lives.

[30] The mechanical investigation by Mr Fitzsimmons and later by Mr. Shirer raises questions about the cause of the brake failure. Mr. Fitzsimmons concluded that Ms Crowe's van was in a general mechanical state of disrepair that it would not have passed the safety standard requirements. Mr. Fitzsimmons referenced under-body holes, extensive corrosion, and the malfunctioning braking systems due to maintenance neglect, including long-standing brake fluid leaks, evidenced by saturated break dusk within the brake housing, incorrectly installed "looping" brake lines, and seized braking components, and the inoperative emergency brake, that at best would lead to reduced braking capacity, and at worst a total brake failure.

[31] Defence counsel contends that the braking failure was catastrophic and that Ms Crowe had no warning of the impending failure. Jean and Dave Crowe testified that in addition to some minor work done by a couple of service shops that Dave Crowe attended to the maintenance needs and that due diligence was exercised and that the brake installation work was done with care and attention.

[32] Regarding the floorboard holes, there was prosecution viva voce evidence, although no photographic evidence. This evidence was not challenged by the defence. Mr. Shier testified that he didn't observe the floorboard holes, this despite the van being on a hoist.

[33] Regarding the Airbag non-deployment, there was no evidence tendered to determine why the Airbag didn't deploy. Mr. Shier testified that given the low-level rock wall that the Airbag sensors may not have been activated.

[34] Morton v. Sykes (1951) O.W.N. 687 (HC) - the owner and driver of the motor vehicle cannot be expected to be an insurer of its mechanical perfection at all times. It is sufficient that he uses reasonable care and skill to ensure that it operates safely on the highway.

[35] The limited vehicle maintenance records, the absence of certified mechanic's involvement with this vehicle, the time lapse between oil changes, tire rotation and the Walmart technician's alert to a power steering leak and the actual hose purchase and later still installation all raise concerns that vehicle maintenance was not a high priority and indicates a general lack of due diligence, especially given Ms. Crowe's husband's reported familiarity with vehicle maintenance. I would not characterize the Crowe's maintenance efforts as using reasonable care and skill, per Morton v. Sykes.

[36] Mr. Crowe and Mr. Shirer contend that the loose and damaged brake lines was the result of compression caused by the front-end collision with sufficient force to push the engine and braking components toward the rear of the car. On cross examination, Mr. Shirer agreed that there was substantial intrusion at the front-end of the van, although the intrusion impacts the vehicle to a lesser degree as you move toward the back of the van.

[37] Ms Crowe's van was 14 years old at the time of the collision and had an odometer reading of 356,308 km. A vehicle of this vintage and use would demand regular mechanical service. The holes in the floor boards, the seized right brake calliper, the brake fluid-soaked brake dust is evidence of long standing maintenance problem, and I would agree that given the leakage the brake reservoir would have required replenishing, and was clear evidence of a problem that required immediate repair.

[38] The state of the rusted brake rotors would have lead to reduced braking capacity, even with brake pads that were within required specifications. The excess brake line length, the absence of proper line fasteners and the kinked right rear line at the calliper combined with the loose emergency cable suggest more than just an impact compression problem. I found Mr. Crowe evasive when questioned about when the brakes and the power steering hose were installed. He denied that his wife purchased and supplied him the steering hose several months prior to installation, this despite his testimony that he addresses maintenance matters the same day.

[39] While Mr. Crowe advised that his wife purchased the van with high km, he testified that the van was not "a daily driver, e.g., not used for work", and that his use "tends to be for longer trips", although he didn't use the van to drive to his work in Lakefield some distance away. Ms Crowe's testimony that she only drives short distances and couldn't say that she drove the van during the 5 month period prior to the installation of the steering hose. The 23,000 km travelled over the 11-14 month period (depending on how the Walmart invoice date is read) prior to the collision is not an insignificant use and seems contrary to Jean and Dave Crowe's testimony that the van sees limited use. This conflicting testimony raises credibility issues for both witnesses in the eye of this court. With the poor state of vehicle repair and its apparent extensive use they placed themselves, their passengers and everyone they passed on the road at risk. By several accounts this vehicle was well-used and unsafe.

[40] Regarding replaced brake lines, and while this issue was not specifically addressed in expert testimony, I question that the compression of brake lines from a front-end collision that pushed the engine and brake lines rear-ward would also cause drooping and a kinked brake line in the opposite direction, at the back of the vehicle.

[41] From the evidence tendered, there are two reasonable explanations for the brake failure with both accounting for non-depletion of the brake fluid reservoir:

1. There was a breach in the brake system when the brake pedal was depressed causing brake failure although not in sufficient quantity to deplete the brake fluid reservoir; there was evidence of several leakage points.

2. The heat generated by the brake pad and rotor friction due to the seized calliper caused the brake fluid to boil, vaporize and compress within the lines when Ms Crowe applied the brakes on Chemong Road causing brake failure. The distance and frequent stops between Apsley and Peterborough would have been sufficient to generate heat build-up.

[42] The court heard that a motor vehicle has a primary and secondary braking system. The primary system distributes hydraulic brake fluid to the 4 wheel brakes and prevents a leak at one brake or at the front or back brake from depleting the fluid to the remaining brakes due to the compartmentalized fluid reservoir. The secondary emergency mechanical cable braking system provides a back-up system. For Ms Crowe's van evidence shows that both systems were inoperative.

[43] Given the extensive damage, and without further investigation that neither the prosecution nor the defence undertook the true cause of the brake failure cannot be determined with certainty. That said the court finds that Mr. Fitzsimmons' evidence to be more credible and reliable than that produced by the defence. Mr. Fitzsimmons investigation followed the collision by a few days in a controlled environment compared to the defence investigation 1½ years later at the home of the defendant. Mr. Fitzsimmons' evidence supported the conclusion that the problems were long-standing. While I agree with Mr. Shirer that dating the leak or the calliper seizure is not possible, this court concludes that the unsafe conditions existed on the date of the collision, and it is reasonable to conclude the same conditions existed for some time prior.

[44] The collision is not by itself a determining factor that Ms Crowe's van was unsafe to operate that day. While the evidence supports the conclusion that the collision was caused by brake failure, the court must determine if in fact Ms Crowe's van was in a dangerous or unsafe condition that day given the totality of the evidence.

H) COURT JUDGEMENT

[45] This court find that the Crown prosecution has provided a prima facie case, proving its case beyond a reasonable doubt, that Ms Crowe operated her motor vehicle upon a highway while her vehicle was in an unsafe condition. There will be a finding of guilty and a conviction will be registered.

Signed

Stephen Lancaster, Justice of the Peace

Released: June 21, 2012