Court File and Parties

Court File No.: Middlesex 19327P Date: 2020-03-10

Ontario Court of Justice

Between: Regina — and — Gurdeep Dhaliwal

Before: Justice of the Peace H.W. L. Phillipps

Heard: February 7, 2020

Reasons for Judgment Released: March 10, 2020

Counsel:

• T. Waugh, for the Crown
• J. Burness, for the defendant Gurdeep Dhaliwal

JUSTICE OF THE PEACE PHILLIPPS:

The Charge

[1] Gurdeep Dhaliwal is charged with a single count of driving a commercial motor vehicle on King's Highway 401 without due care and attention by driving in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle on the highway, contrary to section 172(1) of the Highway Traffic Act.

[2] The Highway Traffic Act sets out:

172 (1) No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

[3] Ontario Regulation 455/07 defines stunt:

(3) For the purposes of section 172 of the Act, "stunt" includes any activity where one or more persons engage in any of the following driving behaviours:

(8) Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

(iii) driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway.

[4] The prosecution bears the onus of proof and the standard of proof is beyond a reasonable doubt.

[5] A trial was held in this matter. Three police witnesses testified for the Crown. One defence witness testified.

The Offence

[6] It is alleged that Mr. Gurdeep Dhaliwal was operating a white tractor trailer unit on Highway 401 in Middlesex County, in the municipality of Thames Centre, on March 24, 2019, at 1:52 p.m.

[7] There are three eastbound and three westbound lanes for traffic on this portion of the highway with a cement restraining barrier in the centre. The lanes for traffic are separated by white hash marks. The motor vehicle was operated by the defendant in the centre lane of the three westbound lanes in the area of Elgin Road. The posted speed limit on this portion of Highway 401 is 100 km/hr.

[8] Ontario Provincial Police were conducting commercial motor vehicle enforcement using an aircraft and ground units that day.

[9] Constable Payette, his training officer Sergeant Hogg and a pilot were in the OPP aircraft which is equipped with a wing mounted FLIR camera and Churchill Navigation Augmented Reality Software. Sergeant Hogg tested the software that morning and found it to be working. He did this by having an OPP cruiser drive at 100 km/hr along the highway, he then tracked the cruiser with the camera software and obtained the correct speed.

[10] On the offence date, the officers observed a tractor trailer in the centre lane, Westbound, to be following another commercial motor vehicle at a close distance, so closely that it would constitute an offence. The camera was activated by Constable Payette who is trained and certified in the use of this equipment. The offending tractor trailer was targeted using the camera software. A speed reading was obtained of 102 km/hr. The officers observed that the gap between the trucks narrowed to a point where it is estimated that only 3 metres remained between the trucks travelling at 102 km/hr.

[11] The aircraft officers alerted an officer on the ground to intercept the truck and kept observation to guide the officer to the correct vehicle. They confirmed that the correct vehicle was stopped.

[12] On January 20, 2020, Sgt. Hogg reviewed the video recording of the incident and confirmed the speed by the use of a Robic stopwatch which he had tested according to the manufacturer's recommendations and found it to be operating properly. He was able to use the stopwatch to calculate the speed of the targeted truck as it passed hash marks on the highway that he knows to be 510 metres apart as he has personally measured the distance between them. The 4 calculations of speed that he obtained were all equal to or greater than 103 km/hr. This confirmed the speed obtained from the aircraft and that the speed was constant. For the purposes of my analysis, I will assume the lower, point in time, speed obtained from the aircraft software of 102 km/hr.

The Video

[13] The video is clear and uninterrupted from the point of targeting until the stop at the roadside. The hash marks on the roadway are visible and the evidence is that they are each 3 metres long and are spaced 9 metres apart in accordance with the Ontario Traffic Manual book 11, "Pavement, Hazard and Delineation Markings" (at exhibit 3).

[14] A reticle is displayed on the screen with a 60-metre diameter. This is equivalent to the minimum distance that a commercial motor vehicle driver would have to maintain when following another vehicle when exceeding 60 km/hr. The white tractor trailer and the vehicle in front of it are continually within the 60-metre reticle. As the gap between the vehicles narrows both transport trucks are almost completely within the reticle.

[15] The 3-metre-long hash marks are visible between the lanes of traffic. At the closest distance the evidence is that one hash mark, or 3 metres, is all that remained between the trucks. At the point when the trucks are closest together, it appears that a passenger vehicle would not fit between them. There is nothing apparent in the video that the driver of the white truck attempts to take any immediate evasive action when the closest distance is reached as there is no sudden increase in distance between the vehicles. The gap again widens, but not immediately. The driving continues to be close.

[16] The video is obtained over a distance of approximately 5 km.

[17] Other commercial motor vehicles and passenger cars can be observed near and around the transport trucks throughout.

[18] The video ends with the truck being stopped at the side of the roadway by police.

Identity

[19] Defence raises the issue of proof of identity.

[20] There is no doubt that the correct vehicle was stopped by the ground unit.

[21] In the video obtained from the aircraft the driver cannot be seen, nor was the ground officer in a position to observe inside the cab when positioned behind the trailer.

[22] Once the tractor trailer was stopped, the evidence is that the officer got out of the cruiser and walked up to the passenger side of the tractor, climbed up on the side and opened the passenger door to speak with the driver. Seated in the driver's seat was Gurdeep Dhaliwal who produced his driver's licence to the officer. The officer confirmed his identity by viewing Mr. Dhaliwal's Ontario driver's licence which had a photo of Mr. Dhaliwal. The officer testified that the image matched the person he was speaking with and he was satisfied by that. He seized the driver's licence and returned it to the Ministry of Transportation after having photocopied it. That copy was before the court and is exhibit 4 in these proceedings. I have no doubt that Mr. Dhaliwal produced the driver's licence.

[23] There was a second person in the cab of the tractor who was positioned in the back. The drivers work as a team so one can rest while the other drives. The cab of the tractor is large enough to stand in. It is equipped with 2 beds and a refrigerator.

[24] Defence submits that it is possible that the second person in the cab had changed positions with Mr. Dhaliwal while the officer was getting out of his cruiser and walking up to the tractor, a time period of approximately one minute.

[25] There is no evidence to suggest that this is actually what happened, nor was there any suggestion as to what would motivate Mr. Dhaliwal to attempt to obstruct the police officer in such a way. The suggestion that the defendant would commit a criminal offence in relation to this traffic stop is unfounded.

[26] The evidence of the officer was that he was approached back at his cruiser during the traffic stop by Mr. Dhaliwal who wanted him to speak with someone on the telephone. The officer accepted the phone from Mr. Dhaliwal and spoke to the person.

[27] Mr. Amandeep Singh Verdi testified for the defence. He is the Operations Manager for Verdi Trucking Company, the employer of Mr. Dhaliwal.

[28] Mr. Verdi testified that he spoke to the officer by telephone that day after having received a call from the driver. He testified that he did so via the driver's telephone. This further supports that Mr. Dhaliwal was indeed the driver having handed the phone to the officer. When asked directly who the driver was Mr. Verdi was unable to remember.

[29] I find that Mr. Verdi is not a credible witness on this point.

[30] As an Operations Manager Mr. Verdi was faced with a big problem. His responsibilities include dispatch, purchasing and handling issues at the roadside. He now had an expensive tractor that was being impounded; he had a driver who was off the road as the result of a roadside suspension who was supposed to be the co-driver to Minneapolis, according to the driver dispatch sheet (exhibit 6). He also had a loaded trailer with goods waiting to be delivered that was now also sitting at an impound lot waiting for pickup. One would expect that this serious incident would not only be logistically difficult and expensive for the company but that it would be memorable for Mr. Verdi. I would also expect that the driver responsible for all of this would face some consequences from Verdi trucking as a result.

[31] I also note that Mr. Verdi testified that the tractor is equipped with a dash camera that was working that day and that he viewed the video and saw nothing odd. That video, he testified, was not available at trial.

[32] Having considered the evidence, I do not have a reasonable doubt as to the identity of the driver and I am satisfied that Gurdeep Dhaliwal was the driver on the offence date.

Intent

[33] While the word intention is included in the legislation, it cannot be read on its own. Instead, the entire paragraph must be considered. It states, "driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway."

[34] There need not be proof of intent itself, only that there is an indication of intent derived from the manner of driving. I am directed by defence to R. v. Hundal, [1993] S.C.J. No. 29. While Hundal dealt with the criminal offence of dangerous driving causing death, the Supreme Court spoke of the clear distinction in the law between one who was aware (pure subjective intent) and one who should have taken care irrespective of awareness (pure objective intent).

[35] Justice Cory, in supporting a modified objective test when proving dangerous driving, states at paragraph 30 and 31:

(30) First, driving can only be undertaken by those who have a licence. The effect of the licensing requirement is to demonstrate that those who drive are mentally and physically capable of doing so. Moreover, it serves to confirm that those who drive are familiar with the standards of care which must be maintained by all drivers. There is a further aspect that must be taken into consideration in light of the licensing requirement for drivers. Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads.

(31) As a result, it is unnecessary for a court to establish that the particular accused intended or was aware of the consequences of his or her driving. The minimum standard of physical and mental well-being coupled with the basic knowledge of the standard of care required of licensed drivers obviate that requirement. As a general rule, a consideration of the personal factors, so essential in determining subjective intent, is simply not necessary in light of the fixed standards that must be met by licensed drivers.

[36] Justice Cory goes on to comment on the automatic nature of driving and that it is almost impossible to determine a particular state of mind of a driver at any given moment, calling driving primarily reactive and not contemplative.

(33) "Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B."

[37] It is, I believe, for these reasons that the legislature provided for an indication of intent rather than requiring proof of intent itself.

As Close as Possible

[38] The submissions of defence include that the Crown has failed to prove driving "as close as possible to another vehicle" as contemplated by Ontario Regulation 455/07 subsection 3, paragraph 8 sub paragraph iii, made under the Highway Traffic Act.

[39] The submission is that the tractor could have been closer to the trailer in front and therefore was not as close as possible. For instance, the evidence of driving within 3 metres of the tractor trailer unit in front was not as close as possible because 2 metres would be closer. I reject this argument.

[40] In fact, the section does not require proof that the vehicle was actually as close as possible, but merely that the manner of driving indicated an intention to drive as closely as possible. The vehicle following does not need to be as close as physically possible at any given moment since only the indication of intention is required by the regulation.

[41] The correct approach is on a case by case basis. It is the consideration of all the circumstances presented and a weighing of that evidence by which the court determines if there was the requisite indication.

[42] Factors in determining an intent to travel as closely as possible include the speed of the vehicle, length of time following, the road and weather conditions, other traffic in proximity, visibility, factors affecting the ability to stop, and of course, the actual distance between the vehicles. The consideration of these factors may form the indicators of an intention to drive as close as possible.

[43] In this case I find as fact that Mr. Dhaliwal was operating a loaded tractor trailer, which is a commercial motor vehicle, at 102 km/hr in the middle lane of highway 401 in Middlesex County. Over a distance of 5 kilometers the tractor trailer was continuously much closer than the minimum 60 metres distance he was legally required to maintain under section 158(2) of the Highway Traffic Act when travelling over 60 km/hr. The road conditions were dry and bare, the traffic was moderate. There were, in the other lanes, passenger cars and other commercial motor vehicles in close proximity throughout that time. A significant portion of the video shows the passing of another tractor trailer, thus making the right lane inaccessible to Mr. Dhaliwal. I can take judicial notice that the closer that one gets to a large non-transparent object the less visibility one would have beyond the object. Thus, the closer the defendant travelled to the back of the transport trailer, the more limited his visibility of the road in front of him would be. Given the size of the truck he was operating along with the load being carried, the ability to stop quickly would have been limited. At one point the following distance was reduced to about 3 metres.

[44] When Mr. Dhaliwal allowed the already illegally small gap between his commercial motor vehicle and the one in the lane directly in front of him to close, an ordinary prudent driver, exercising due care and attention, would have taken steps to increase the distance rather than limit it.

[45] The manner of his driving is a clear indication of his intent to drive as close as possible to the vehicle in front of him. He provided no justification for these actions and none is revealed by the video of the offence or in the evidence of the Crown.

[46] To indicate, according to the Merriam-Webster dictionary, is to point out or point to; to be a sign or symptom; to demonstrate or suggest the necessity or advisability of; or to state or express briefly.

[47] In this case the indicators of the intention included driving in a manner which was contrary to s. 158(2) from the beginning of the video. That is coupled with the evidence of the officers that they made observations of the behaviour even before the video was turned on and the truck targeted. Throughout the video, it is clear that the truck operated by Mr. Dhaliwal is well within the 60 metre limit of the transport truck ahead of him. The distance between the 2 trucks continues to decrease. The observations are made for more than 5 kilometres. Eventually the gap between the trucks is approximately 3 metres.

[48] These are indicators of an intention to drive as closely as possible to another vehicle.

[49] And let me be clear, I am not suggesting, nor does the evidence support, that the 3 metre distance was maintained throughout the 5 kilometres. It was not. But it is the narrowing of the distance to this very close proximity that is an indicator of the intent to drive as closely as possible. It is also this close distance that gives rise to the lack of due care and attention.

Due Care and Attention

[50] In Regina v. Beauchamp, [1953] O.R. 422-434 the Ontario Court of Appeal defined due care:

The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration. It is a question of fact, depending on the circumstances in each case.

[51] As I have noted, a reasonably prudent driver in a similar circumstance would have, at a minimum, maintained the required 60 metre distance and would not have allowed his truck to reach the dangerous following distance of approximately 3 metres. A driver exercising due care and attention would have reacted sooner to correct the pattern of driving.

Without Justification

[52] None of the evidence presented by the Crown or defence leads me to find that there was any justification for the manner of driving.

[53] Conditions were good, the traffic was moving well, there were no unusual movements of vehicles observed.

[54] The Crown is not required to prove a negative. When the Crown had proven a prima facie case, it was open to the defence to show that Mr. Dhaliwal was duly diligent. There was no evidence of due diligence called at trial.

[55] Section 47 of the Provincial Offences Act sets out that:

(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[56] It was also argued that the Crown and police had a duty to further investigate other users of the highway at that time. For instance, obtaining a statement from the driver of the truck ahead of Mr. Dhaliwal, checking to see if that truck had a CB radio, and taking a statement from Mr. Dhaliwal's passenger. I reject these arguments. Even if the police were authorized to do these things, there was no obligation on the Crown or police to do these things and to require them to do so would be unduly onerous and unnecessary.

Judgment

[57] Having considered all of the evidence I am satisfied that the Crown has proven, beyond a reasonable doubt, that on March 24, 2019, Gurdeep Dhaliwal, drove a commercial motor vehicle on King's Highway 401 without due care and attention by driving a transport truck in a manner that indicated an intention to drive, without justification, as close as possible to another vehicle on the highway.

[58] A conviction will be registered against him.

Released: March 10, 2020

Signed: "Justice of the Peace L. Phillipps"