Court File and Parties

Court File: Peterborough 1707585A Date: October 29, 2012 Ontario Court of Justice

Between: Her Majesty the Queen And Bradley Vannoord

Before: Justice of the Peace S. Lancaster

Heard on: September 13, 2012

Reasons for Judgement released on: October 29, 2012

Charge: Oversized Vehicle Violate Permit s.110(7), Highway Traffic Act

Counsel:

• Mr. P. Girrard, Crown Prosecutor
• Mr. J. Glick, Counsel for the Defendant

Decision

JUSTICE OF THE PEACE LANCASTER:

A) ISSUE

[1] Bradley Vannoord is before the court charged on August 31, 2011 under the Highway Traffic Act s.110(7) for operating a transport truck in contravention of the Permit on highway 115 in the City of Peterborough.

B) BACKGROUND

[2] Mr. Vannoord's trial was held on September 13, 2012 when the court heard from 1 prosecution witness, 1 defence witness and the defendant Mr. Vannoord. This matter is returning today for court judgement.

C) EVIDENCE OF WITNESSES AND FACTS

Rob Stickan – Crown Witness, MTO Transport Enforcement Officer

[3] The court heard from Rob Stickan, a MOT Transport Enforcement Officer since 1988. On August 31, 2011 at about 9:00 pm he was conducting area patrol operating a MOT vehicle southbound on highway 115 at the Parkway intersection in the City of Peterborough when he observed a northbound motor vehicle with a flashing amber warning light, travelling at the posted highway speed of 100 KPH. He conducted a "U" turn and followed the motor vehicle at a distance of ½ to ¾ km to Ashburnham Street losing sight of it on a curve for 15-20 seconds; there are no interchanges between him and the subject motor vehicle. He testified that it was dark out, tendering Exhibit 1 confirming that sunset that day was at 18:52 EST.

[4] Officer Stickan conducted a traffic stop noting the commercial 3 axel truck and trailer plates registered to JNB Heavy Haul (1247943 Ontario Ltd.) that included a float-type trailer. He was provided with a valid class "A" photo driver's licence, the vehicle registration and CVOR; he was satisfied with the identification of the driver, the defendant Bradley Vannoord. The officer's attention was drawn to the trailer that was carrying a large earth moving machine with a width that was wider than normal, per HTA s.109.(1), that specifies a maximum width of 2.6 meters. The subject load was 2.92 meters or .32 meters too wide. Mr. Vannoord was issued the offence notice before the court and was directed to remove his vehicle to a nearby parking lot until daylight.

[5] Exhibit 4, the Annual Permit issued to the numbered company, valid between May 12, 2011 and May 11, 2012 was tendered. This permit allows oversized loads on highway 115 with restrictions. Conspicuity requirements must be met for night moves noting ½ hour after sunset and ½ before sunrise and include the presence of a front and rear sign made of "high intensity retro-reflective material" that identifies "OVERSIZED LOAD". The 9:00 pm traffic stop falls within this timeframe. Also for night moves, conspicuity requirements include "… extremities being marked with a solid amber lamp(s) visible in the front and rear. For vehicles operating at speeds more than 20 kph below the posted speed limit, a 360 degree flashing amber warning light is required.

[6] Officer Stickan's testified that the front and rear signs were not retro reflective. Exhibit 5(a) and 5(b) photos show yellow "OVERSIZED LOAD" signs at the vehicle's front and rear extremities, respectively. Officer Stickan refers to the retro-reflective licence plates and the tape positioned above the trailer tail lights that reflect the light from the camera flash. The camera flash illuminates the OVERSIZED LOAD sign at close distance but offers no retro-reflection.

[7] Officer Stickan testified, and Exhibit 5(D) photo shows, that the machine's track hung beyond the trailer, noting the width of 2.92 meters extending beyond the 2.6 meter limitation, thereby requiring the affixed amber lights, given the night time driving hour.

[8] On cross examination Officer Stickan agreed that when he first observed Mr. Vannoord's truck they were travelling in opposite directions, that no other motor vehicles were present at the time, that a speed measuring device was not used, in fact no evidence was tendered to substantiate the defendant's speed.

[9] Officer Stickan was questioned regarding his familiarity with the Annual Permit and specifically that section 7 refers to "extremities" and not "load extremities". He was further questioned about the side light mirrors on the truck cab and if these lights extended beyond the load, to which Officer Stickan replied no.

[10] Defence counsel referred Officer Stickan to Exhibit 5(D) and to the position of front right side mirror. The photo taken from the rear right side shows a faint white spot that Officer Stickan agreed could be the mirror marker light.

[11] Officer Stickan testified that given the 2 lanes, highway speed, and night darkness compromised visibility, the safety of the defendant, the officer and other drivers was at risk. Referring to Exhibit 5B, Officer Stickan notes the light shining through the banner from below the trailer bumper is evidence of the thinning quality of the banner.

Bradley Vannoord – Defendant

[12] The court heard from the defendant Bradley Vannoord who testified that he has been a professional truck driver for 20 years and has been employed by JNB Heavy Haul for 2 years. He noted that before driving he performs a routine vehicle check that includes a "circle check", and check of the load, Permit and flags; he noted that he is familiar with the Permit.

[13] He testified that on August 31, 2011 he was pulled over in a construction zone, was asked for his Permit and Log Sheet; he noted that all lights were working that night. He confirmed that his speed was 65-70 kph and his vehicle's 360 flashing light was activated.

[14] On cross examination Mr. Vannoord noted that the flags marked the extremities of the "over-width" and agreed no lights were on the load extremities, although lights were on his mirrors. He agreed that he knew that he would be travelling at night, and that he placed the "OVERSIZED LOAD" banner.

Sandra Bast - Defence Witness 1 - Safety & Compliance Manager

[15] The court heard from Sandra Bast who testified that she is employed with JNB Heavy Haul for 3 years and is the Safety and Compliance Manager with responsibilities for driver training, truck safety and compliance, driver logs and has direct communication with the drivers. She purchases truck safety signage from supplier "Burchalls" in Mitchell Ontario, including the "OVERSIZED LOAD" banner referring to a specific part number and price. She confirmed that the original banner used on Mr. Vannoord's truck was destroyed after the offence date as it was "tattered" and that as an 8-truck carrier these banners are re-used. She brought a new banner to court stating that it would have been similar to the one used by Mr. Vannoord when it was new. She further advised that the lights on the company's trucks come standard from the manufacturer.

[16] Exhibit 7A photo was tendered showing the same truck driven by Mr. Vannoord on August 31, 2011, displaying the same plate although taken 1 year later. This photo was tendered to show the lights from the front attached to the truck cab mirrors, as they would have been displayed on the offence date.

[17] On cross examination Ms Bast was questioned regarding the placement of these lights some 35-40 feet from the rear of the trailer. When asked about the state of the banner used on Mr. Vannoord's truck on August 31, 2011, she agreed that it was used and "probably" dirty, and that she did not speak with Mr. Vannoord about the worn and dirty banner.

Statutory Provisions

Highway Traffic Act s.110(7) states:

(7) Every person who operates or permits the operation of a vehicle or combination of vehicles contrary to any of the conditions of the permit is guilty of an offence

Highway Traffic Act s.109.(2) states:

Width of load

(2) Subject to sections 110 and 110.1, no load on a vehicle shall have a greater width than 2.6 metres while on a highway except,

(a) loads of raw forest products which shall not exceed a total width of 2.7 metres at point of origin and which shall not exceed a total width of 2.8 metres at any time during transit; or

(b) loads of loose fodder. R.S.O. 1990, c. H.8, s. 109 (2) ; 2002, c. 18 , Sched. P, s. 25 (2).

Mr. Vannoord's vehicle and contents does not fall into one of these exceptions.

D) ACTUS REUS

[18] The prosecution must prove all elements of the actus reus of the offence beyond a reasonable doubt. The prosecution must produce sufficient evidence that the width of Mr. Vannoord's vehicle load exceeded 2.6 meters on a highway and not saved by an exception set out in the Permit issued under HTA S.110. 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…"

E) DUE DILIGENCE – LEGAL PRINCIPLES

[19] 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.))

[20] 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"

F) COURT FINDINGS

[21] The court has heard testimony that on August 31, 2011 Mr. Vannoord was operating a commercial transport truck with trailer at night carrying heavy machinery with dimensions that exceeded the permitted width absent the required extremity warning lights and retro-reflective signage. It was alleged that Mr. Vannoord also activated his 360 degrees flashing warning lights under circumstances not permitted, and specifically when travelling at the speed limit.

[22] With respect to the charge relating to the use of the 360 degree flashing warning lights in contravention of section 8 of the permit, I find that there was no evidence to substantiate the speed travelled by the Mr. Vannoord. No speed measuring device was used, no testimony of pacing and the officer made initial observation while travelling in the opposite direction, whose attention would likely have been drawn to the flashing warning lights. The allegation is not supported by the evidence.

[23] Regarding defence counsel's reference to s.7 of the Permit and the absence of the word "load" in relation to "extremities" I'm of the view that there is no ambiguity. The HTA S.109.(1) specifies that subject to S.110 and 110.1 no vehicle including load or contents shall have a greater width than 2.6 meters while on a highway. It is under s.110 that the Permit is issued and s.7 of the Permit relates to conspicuity requirements for night time driving that the extremities are to be marked with a solid amber lamp(s). The HTA and the Permit are clear that the amber lamps are referring to the vehicle and the load, and I'd suggest to mark whichever is greater.

[24] With respect to the conspicuity requirements, and specifically the absence of solid amber lights marking the extremities, the viva voce and documentary evidence support the need for a warning that the load exceeded the width requirements and presented a hazard to other drivers. The defence suggest that the lights on the truck cab mirrors would serve this safety purpose and that the truck was purchased and maintained as designed by the manufacturer, including the lights. Exhibit 5(D) shows a faint white spot that may be the cab's right mirror marker light that at best marks the mirror edge or serves some ornamental purpose but would not alert other drivers to the hazard of equipment extending beyond the trailer edge. Also, this mirror marker would move in and out of view of drivers behind when the truck turns, largely negating the warning benefit at every turn. These mirror lights clearly don't meet the permit requirements, in terms of proper positioning vis-à-vis the load.

[25] With respect to the conspicuity requirements, and specifically the retro-reflective "OVERSIZED LOAD" sign, the evidence indicates that Mr. Vannoord was aware that his load exceeded the required width as he placed the banner at the front and rear of his truck and trailer; he also placed the flags as required at the load extremities as a daytime warning. He testified that he knew that he would be driving at night and at the time of the traffic stop he had activated his 360 degrees flashing warning lights – all suggestive that Mr. Vannoord is an experienced truck driver of large loads. The court heard that Mr. Vannoord's company has a safety and compliance manager responsible for purchasing the safety banner from their supplier. The prosecution's evidence including the exhibit photos shows a banner used by Mr. Vannoord was badly worn, thinning and soiled and while the banner once served its purpose, that time has passed and its retro-reflective qualities have degraded rendering it ineffective for its intended purpose. Ms Bast, the company's Safety and Compliance Manager, confirmed that this banner has been destroyed given its poor condition.

[26] Defence counsel contends that Mr. Vannoord exercised due diligence by putting the banner in place and was perhaps lead to believe that the worn banner and the truck mirror lights would satisfy the permit requirements. Neither Mr. Vannoord's nor Ms Bast's testimony was persuasive in this regard. Mr. Vannoord's routine vehicle circle check, and check of the load, permit and flags and noted familiarity with the Permit indicate that he is responsible for his own truck and load safety requirements. Ms Bast indicated that she had not spoken with Mr. Vannoord that day, and no other evidence of safety policies or practices was tendered that would indicate that the company takes the lead in the day-to-day truck safety inspection.

[27] It is not inherently reasonable given his years of truck driving experience for Mr. Vannoord to claim familiarity with the Permit, undertake the vehicle checks noted and believe that the cab's small mirror marker lights would serve to illuminate and demarcate an overhanging load some 35-40 feet to the rear of the trailer. The defence submits that there was evidence that the sign was made of reflective material. The Permit refers to "high intensity retro-reflective material" indicating the importance of being seen when for example, vehicle headlights contact the banner, similar to the truck's licence plate and tape. The evidence supports the worn-out and non-reflective quality of the banner and its need for replacement.

[28] Mr. Vannoord was either distracted that day or made a poor judgment to drive that night in contravention of the Permit requirements, both in terms of extremity lighting and use of the worn out OVERSIZED LOAD sign. While the Permit's section 17 dictates that "The flag(s) must be kept in good and clean condition so as to not diminish their effectiveness", it is reasonable that the same attention should be paid to the banner, by an experienced and informed truck driver.

G) COURT JUDGEMENT

[29] This court finds that the Crown prosecution has provided a prima facie case, proving its case beyond a reasonable doubt, that Mr. Vannoord operated his commercial vehicle in contravention of the MTO permit respecting load widths. There will be a finding of guilty and a conviction will be registered.

Signed

Stephen Lancaster, Justice of the Peace

Released: October 29, 2012