R. v. Fummerton, 2016 ONSC 1107

CITATION: R. v. Fummerton, 2016 ONSC 1107

COURT FILE NO.: 7615/15

DATE: 2016-02-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

M. Pascuzzi, Counsel for the Respondent

Applicant

• and -

IAN FUMMERTON

J. Poirier, Counsel for the Appellant

Respondent

HEARD: January 27, 2016

RASAIAH J.

REASONS ON APPLICATION

INTRODUCTION

[1] The Applicant, Ian Fummerton, was committed to stand trial on one count of criminal negligence causing death contrary to section 220(b) of the Criminal Code of Canada. Mr. Fummerton seeks to quash his committal and be discharged.

[2] The central issue is whether there was any and/or sufficient admissible evidence on all of the essential elements, sufficient to commit the accused to trial.

OVERVIEW

[3] On February 12 and 13, 2014, the co-accused Mr. Tyska was driving, by himself, a commercial motor vehicle combination (“CMV”) consisting of a truck tractor and semi-trailer, to make a Purolator delivery run (mail and packages) from Thunder Bay, Ontario to Mississauga, Ontario and back to Thunder Bay.

[4] Mr. Tyska was employed by, and the CMV was being operated on behalf of commercial vehicle operator, ABI Trucking Inc. (“ABI”).

[5] Mr. Fummerton is the owner and president of ABI.

[6] On the morning of February 13, 2014, Mr. Tyska while completing this delivery run was involved in a collision. The CMV and a green Jeep Wrangler (“jeep”) collided on Highway 17 on the east side of Blind River, Ontario. The jeep was being driven by Mr. David Dennie, an off-duty OPP officer. Mr. Dennie died as result the injuries he sustained in the collision.

[7] The theory of the Crown’s case includes that Mr. Tyska fell asleep at the wheel, that Mr. Tyska was fatigued at the time of the crash and impaired by a brief period of sleep that caused him to drift into the oncoming lane into the jeep.

[8] The total distance of the delivery run that Mr. Tyska was driving was 2800 km. There was a pattern of Mr. Tyska completing this delivery run by himself as a solo single driver and doing so within 48 hours. By the applicable regulations, this trip could not be legally completed within 48 hours by one single driver if the regulation required rest periods were being taken for a single driver run.

[9] Mr. Tyska was in fact not taking the regulation required rest periods. Mr. Tyska was in fact maintaining two daily logs and falsifying his logs as to his on-duty time, off-duty time and driving time. He prepared one set of logs showing that he was driving only from Thunder Bay to Sudbury and back with a required break in Sudbury (which I will call the “north end” of the delivery run), and one set showing that he was driving from Sudbury to Mississauga (“south end” of the delivery run). He submitted only one set of daily logs to ABI, the set showing the north end of the run.

[10] Mr. Fummerton was charged that between the 1^st day of January, 2014 and 13^th day of February, 2014 at the Town of Blind River, Ontario, in the said Region [Northeast Region] and elsewhere in the province of Ontario, did by criminal negligence in relation to the operation of a commercial motor vehicle, to wit by failing to ensure compliance by and encouraging non-compliance by driver(s) of ABI Trucking Inc. with provincial laws and regulations for on-duty driver hours and off-duty driver rest hours and permitting single driver round trips between Thunder Bay and Toronto area, did at or on Highway 17, cause the death of David Dennie contrary to section 220(b) of the Criminal Code of Canada.

[11] The Crown’s theory in respect of the criminal negligence of Mr. Fummerton is that Mr. Fummerton, was the operator and directing mind of ABI; that Mr. Fummerton knew that Mr. Tyska was breaching the Act and regulations; that Mr. Fummerton facilitated the breaches and encouraged the breaches; and that Mr. Fummerton was aware that Mr. Tyska was getting tired doing these runs. Alternatively, they theorize that Mr. Fummerton, as the operator and directing mind of ABI had a legal duty to ensure that drivers were driving in accordance with the Act and Regulations and to monitor them; and that Mr. Fummerton was wilfully blind and failed to direct his mind to his duty and the consequences of permitting Mr. Tyska to operate the CMV as he was operating it.

[12] The Crown with its theory states that the actions of Mr. Fummerton, and/or the omissions of Mr. Fummerton in meeting his legal duties, amounted to a marked and substantial departure from the expected conduct of a reasonably prudent person in the circumstances, and that his conduct was serious, blameworthy conduct showing a wanton and/or wilfully blind reckless disregard for the lives and safety of other persons, which caused the death of Mr. Dennie.

[13] The preliminary inquiry in respect of Mr. Fummerton’s charge was held September 14, 2015 before the Honourable Justice R.A. Humphrey (“Justice Humphrey”). Justice Humphrey committed Mr. Fummerton to trial.

[14] The co-accused, Mr. Tyska, who was also committed to trial, had waived his right to a preliminary inquiry.

THE LAW

[15] Section 219 of the Criminal Code of Canada, R.S.C. 1985 Chap. C-46 (“Criminal Code”) states:

(1) Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For purposes of this section, a duty means a duty imposed by law.

Section 220(b) of the Criminal Code provides that every person who by criminal negligence causes death to another person is guilty of an indictable offence and is liable to imprisonment for life.

[16] The actus reus of the offence of criminal negligence will be established if it is proved that the accused was under a legal duty to do something; if from an objective standpoint, he failed to perform the duty: R. v. J.F. 2008 SCC 60, [2008] 3 SCR 215.

[17] Proof of mens rea will flow from a finding that the conduct of the accused was wanton or reckless. On this element, the Crown must establish a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances where, the person was aware of serious risk to the life and safety of other persons, and ran an obvious and serious risk to the life and safety of other persons, or failed to direct his mind to the life and safety of other persons: R. v. J.F. 2008 SCC 60, [2008] 3 SCR 215.

[18] If an accused is being accused of being a party to the offence of criminal negligence, the mens rea for a party to this offence requires the party to do something with the intent to assist conduct that is criminally negligent; to know sufficient details of the assisted conduct to render that conduct criminally negligent; and the conduct must constitute a marked and substantial departure from what is reasonable in the circumstances. It is not necessary for the party to have subjective foresight of the consequences of the criminally negligent act he is assisting. It is sufficient to show that a reasonable person, in all the circumstances would have appreciated a consequence – bodily harm that is not trivial or transient – would result: R. v. R.(M.) (2011), 2011 ONCA 190, 275 C.C.C. (3d) 45 (Ont. C.A.)

[19] Criminal negligence is a serious offence signifying more blameworthy conduct: R. v. J.F. 2008 SCC 60, [2008] 3 SCR 215. The degree of fault and moral blameworthiness are factors: R. v. Metron Construction Corp. 2013 ONCA 541, [2013] O.J. No. 3909 ONCA.

[20] The high standard of a “marked and substantial departure” from conduct of a reasonably prudent person applies to both the physical and mental elements of the offence: R v J.L. (2006), 2006 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.) at para 16

[21] Wilful blindness requires a real suspicion in the mind of the accused that is ignored: R. v. Lagace 920030, 2003 30886 (ON CA), 181 C.C.C. (3d) 12

[22] Reasonable foreseeability of harm is relevant in the analysis of legal causation in negligence based offences. Where conduct is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm, the test for legal causation will have been met: R. v. Shilon (2006), 2006 41280 (ON CA), 240 C.C.C. (3d) 401 (Ont. C.A.).

[23] Section 217.1 of the Criminal Code of Canada provides that:

Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

[24] “Operator” means the person directly or indirectly responsible for the operation of a commercial motor vehicle including the conduct of the driver: section 16(1) Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).

[25] An operator of a commercial motor vehicle is under a legal duty to ensure compliance of drivers. This duty is imposed by law in section 190(6) of the Highway Traffic Act and O. Reg. 555/06, section 28(1).

[26] Section 190(6) of the HTA states under the subtitle of “Operator’s duty”:

No operator shall permit a person to drive a commercial motor vehicle on a highway except in accordance with this section or the regulations made under this section.

[27] O. Reg. 555/06, is an hours of service regulation made under section 190 of the HTA. It addresses daily, shift, and cycle requirements including on-duty time, off-duty time and driving time, and record keeping including keeping a daily log. Section 28(1) states:

An operator shall monitor each driver’s compliance with this Regulation.

[28] An operator further has an obligation to ensure drivers maintain the integrity of and keep a daily log in accordance with the regulations: O. Reg. 555/06, sections 17(2) and 27(2).

[29] An operator is required to ensure he is receiving and keeping drivers’ daily logs and supporting documentation pursuant to O. Reg. 555/06, sections 24(2) and 25(1).

[30] An operator is required to designate a driver’s start of day and driving cycle which is not to be changed except in accordance with section 14 of O. Reg. 555/06, sections 4, 12 and 14.

[31] Section 219 of the Criminal Code does not distinguish between provincial statutes and federal statutes and/or the common law. Behaviour that constitutes a breach of a statutory or common law duty may meet the standard of criminal behaviour and constitute a crime. The Ontario Court of Appeal addressed the issue of breaches of provincial statutes constituting a crime in R. v. Peterson, 2005 37972 (ON CA), [2005] OJ No 4450 at paragraph 40, wherein Weiler, J.A. wrote:

The mere breach of a federal or provincial statute […] does not constitute a crime. It is nevertheless proper for the trier of fact to consider legislation governing the Applicant to determine whether the Applicant’s actions or inactions show a “marked departure” from the conduct expected.

[32] In respect of applications for certiorari and preliminary inquiries, the applicable law was summarized by the Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3SCR 635. The salient points were:

The purpose of the preliminary inquiry is to ensure that there is sufficient evidence to commit the accused to trial.

If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to trial. Guilt or innocence is determined at trial.

The test for committal and the corresponding onus falls on the Crown.

Where the evidence is circumstantial, the justice must engage in some weighing of the evidence but only to a very limited extent.

A preliminary inquiry judge is not permitted to assess credibility or reliability, and that where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction.

The preliminary inquiry is not the proper forum for weighing competing inferences or choosing among them. The justice is not to consider whether there is a rational explanation for the evidence other than the guilt of the accused.

The Crown’s case must be taken at its highest and considered as a whole. If the evidence is reasonably capable of supporting an inference of guilt, a committal must ensue even if the evidence is also capable of supporting an interference otherwise.

While the decision to commit can be challenged by way of certiorari, the reviewing court should only intervene where the preliminary inquiry judge committed a jurisdictional error. The scope of this review however is extremely narrow.

It is a jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essential element of the charge.

[33] In respect of circumstantial evidence, reasonable inferences are not necessarily likely or probable inferences. Difficult inferences to draw may still nonetheless be reasonable: R. v. Dwyer, 2013 ONCA 368, [2013] O.J. No. 2554 ONCA, paragraph 4.

[34] The preliminary inquiry stage is not the stage for weighing competing inferences or for choosing among them. Nor is the justice to consider whether there is a rational explanation for the evidence other than the guilt of the accused. If the evidence is reasonably capable of supporting an inference of guilt, a committal must ensue even if the evidence is capable of supporting an inference of “non-guilt”. It is at the trial stage where the decisions as to who to believe and what evidence is to be accepted or rejected are made: R. v. Jenkins, [2008] O.J. No 3460 ONSC, paragraphs 14 and 15.

[35] The preliminary inquiry justice is not to consider whether or not the evidence is strong enough to abolish reasonable doubt or overcome competing inferences: R. v. Quinn 2007 55366 ONSC, affirmed [2008] O.J. No. 3621 ONCA.

[36] Facts are not to be examined in isolation with respect to the criminal standard: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345.

[37] A preliminary inquiry justice is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 SCR 601 SCC, paragraph 34.

[38] When sufficiency of evidence is raised this court must determine if there was admissible evidentiary basis upon which the court below could form the opinion that the evidence was sufficient to justify a committal for trial. See R. v. Manickavasagar, [2004] O.J. No 600 ONCA.

[39] The decision whether to grant or not to grant a prerogative remedy is ultimately a matter of discretion exercised by the superior court as a part of its general and inherent jurisdiction: R. v. Papadopoulous 2005 ONCA 8662.

ANALYSIS

[40] On reading the transcripts, I am of the view that Justice Humphrey was cognizant of the law, his duties and his jurisdiction as the preliminary inquiry justice.

[41] I further find that there was sufficient admissible evidence, direct and circumstantial, to justify committal for trial; some evidence on each element that would permit a reasonable jury properly instructed to convict.

[42] As to the admissible circumstantial evidence considered, Justice Humphrey appropriately weighed this evidence, namely in a limited sense of assessing whether it was capable of supporting the inferences the Crown would be asking be drawn.

[43] I also find that there is no error warranting interference by this Court.

[44] In coming to my conclusion, I considered the following.

A. Elements of Date/Time/Jurisdiction

[45] These were admitted.

B. Elements of Identity/Legal Duty/Operator/Directing Mind

[46] The Crown adduced direct evidence through: the accident scene witnesses; officers; information seized and filed, namely, log books, payroll records, Articles of Incorporation, gas receipt, GPS data, ECM data, and accident scene evidence (photographs and reports); and witness, Mr. Alfred Brown, Enforcement Officer and Provincial Trainer, and expert in hours of service that: Mr. Tyska was the driver of the CMV that, on February 13, 2014, was involved in a motor vehicle accident in the District of Algoma, as a result of which Mr. Dennie died; that the registered commercial motor vehicle operator of the CMV was ABI; that Mr. Tyska was an employee of ABI; that an operator has a legal duty to monitor and ensure a driver’s compliance with provincial laws pursuant to the HTA made thereunder; and that Mr. Fummerton was the owner, and president of ABI.

[47] Mr. Fummerton argues there was no real evidence to support that he was a directing mind of ABI. I disagree. There was some circumstantial evidence.

[48] The evidence was that ABI’s head office was at Mr. Fummerton’s residence. Mr. Fummerton signed pay cheques, along with his spouse. Mr. Fummerton provided log books to drivers.

[49] Former ABI driver Mr. Rutter gave evidence that he dealt with Mr. Fummerton at ABI regarding his truck runs and dropped off his logs to Mr. Fummerton’s residence.

[50] Former ABI driver, Mr. Schurr gave evidence that he dealt with Mr. Fummerton in respect of his truck runs. He also specifically addressed a team driver issue he had with Mr. Fummerton directly.

[51] Mr. Schurr was helped during and with some of his truck runs by Mr. Fummerton himself (Mr. Fummerton driving with Mr. Schurr, and arranging for a relief driver when Mr. Schurr needed one).

[52] Mr. Schurr was told by Mr. Fummerton that Mr. Tyska contacted Mr. Fummerton by telephone during some of Mr. Tyska’s truck runs. Mr. Fummerton talked to Mr. Schurr about how he [Mr. Fummerton] would have to deal with Mr. Tyska and put him with a team driver due to concerns. Accordingly there was no jurisdictional error on this point by Justice Humphrey.

[53] All of the foregoing is admissible evidence which in combination with the Articles of Incorporation, is evidence on which a reasonable inference may be drawn that Mr. Fummerton was a directing mind of ABI and/or directly or indirectly responsible for the operation of the commercial motor vehicles and the drivers. There may be other inferences and/or other explanations as Defence has alluded to in respect to how ABI operated, however the foregoing evidence meets the test.

C. The Accident and Causation (how the death occurred and the accused’s contribution, if any, to that result)

[54] The Defence concedes that the actus reus of the collision was the driving of Mr. Tyska and that this driving can meet the element of wanton and reckless disregard for the safety and lives of other persons per the offence of criminal negligence.

[55] The Defence concedes that Mr. Tyska was breaching the regulations: driving longer hours than permitted; keeping two log books, and not taking the regulation required rest periods and as such, mens rea flows to Mr. Tyska.

[56] Mr. Fummerton argues however that the act of Mr. Tyska, and mens rea do not flow to Mr. Fummerton.

[57] Justice Humphrey wrote:

The evidence before this court would support an inference that the truck driven by the accused, Tyska caused the accident and the consequent death of Mr. Dennie. The reconstruction evidence and the evidence of the civilian drivers, indicates that the truck driven by the accused Tyska crossed the center line of the Highway and into the eastbound lane striking Mr. Dennie’s vehicle.

There was nothing in the condition of the vehicles, the weather conditions, or the configuration and condition of the road that would explain why this occurred.

The theory of the Crown is that the accused Tyska fell asleep at the wheel, thus causing the accident. This theory is bolstered by the fact that the accused driver had been operating his motor vehicle for an extensive period of time in excess of that allowed by law, and that he was deprived of sufficient sleep by reason thereof. It is also supported by the accused Tyska’s utterance immediately after the accident that he had not fallen asleep but was uncertain who had crossed the center line. It was also supported as well by the evidence of Mr. Marguardt. There was no application of the truck’s brakes nor any indication of avoidance manoeuver.

[58] As to the act of Mr. Tyska, the Defence asserts that there is a flaw in the structure of the Crown’s argument which calls into question its theory, and hence the flow of responsibility to Mr. Fummerton. Mr. Tyska, he says, gave another explanation for the collision; he said he was playing with his windshield wipers. The Defence argues that there is no evidence that Mr. Tyska actually fell asleep; there is no evidence that Mr. Tyska was tired; and/or that Mr. Tyska’s ability to drive was impaired. The Defence argues that each individual has different sleep patterns and requirements to be rested; and that Mr. Marquardt’s report on Mr. Tyska’s level of impairment does not exceed legal limits and is based on probabilities. He argues the Crown’s case is based on speculation and assumptions; evidence that is not case specific to Mr. Tyska, and finally, that Mr. Marquart’s evidence fails to meet criminal standards.

[59] Whether or not a flaw exists in the Crown’s theory and/or another explanation exists for cause of the accident, is not the test. In this certiorari application, I am to review the issue of sufficient admissible evidence capable of supporting or reasonably inferring the Crown’s theory on this element, namely that Mr. Tyska fell asleep and his ability to drive was impaired by a brief period of sleep at the wheel. There exists sufficient evidence, namely: the evidence of the civilian witnesses Robert Yates and Philip Bellerose; the log books; the payroll records; Mr. Schurr’s September/October 2013 conversation with Mr. Fummerton which was specifically about a concern that Mr. Fummerton himself had that Mr. Tyska was not getting enough sleep on a run that normally two people would have to do; the evidence of the reconstructionist; and Mr. Marquardt’s report.

[60] The argument regarding Mr. Marquardt’s report in my view suggests that the report be examined separately and in isolation with reference to the criminal standard. The evidence as a whole is what ought to be examined by the preliminary inquiry justice, which he did. The additional evidence the Crown relied on, as stated above, taken as a whole with the report which is capable of supporting a reasonable inference that Mr. Tyska fell asleep, as identified by Justice Humphrey. The report is just one piece.

[61] I also am not of the view that there was no evidence case specific to Mr. Tyska and tiredness from which a reasonable inference can be drawn. Again, it is not about strength or weakness of the inference. There was some evidence meeting the preliminary inquiry standard of measure. Again, Mr. Schurr’s September/October 2013 conversation with Mr. Fummerton was specifically about a concern that Mr. Fummerton himself had that Mr. Tyska was not getting enough sleep on a run that normally two people would have to do. The payroll records for December 2013, and January and February 2014 for Mr. Tyska demonstrated a number of these solo trips being undertaken within two week spans. The electric control module of the CMV showed that from the time the CMV was being driven on February 9, 2014 to the crash on February 13, 2014, the CMV never stopped driving for a period greater than 5.5 hours. Justice Humphrey alluded to this evidence and this was all before him.

[62] Mr. Fummerton also raised the issue of Mr. Tyska’s utterances being relied on as evidence against Mr. Fummerton on this element. While I agree that Justice Humphrey, referred to Mr. Tyska’s utterances, the remaining pieces of evidence he referred to are sufficient to meet the test, namely: the reconstruction evidence; Mr. Marquardt’s evidence; two civilian drivers’ evidence; condition of the vehicles; weather conditions; configuration of the road; condition of the road; Mr. Tyska unquestionably operating the CMV contrary to the regulations; no application of the truck’s brakes; and no indication of avoidance manoeuver during the accident.

[63] Mr. Fummerton states that Justice Humphrey although he referred evidence, did not really set out the specific evidence he was referring to in his decision to commit Mr. Fummerton to trial. Justice Humphrey heard four days of evidence. He is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence. He did this in my view. And while some of the evidence was pointed to in a general or categorized way in his reasons, based on my review of the evidence and the categories he referred to, they are supported. However, as a result of this submission, I go through the following.

[64] Justice Humphrey referred to evidence of the civilian witnesses. Civilian driver, Robert Allan Yates gave evidence and described having a close call on his way to work with a vehicle similar to Mr. Tyska’s on the same highway shortly before the accident and in the vicinity of the route Mr. Tyska’s vehicle was driving before the accident. The CMV came into the lane that Mr. Yates was driving in and Mr. Yates had to take evasive action by swerving right to avoid a collision. Mr. Yates saw nothing to cause this truck to go into the oncoming lane.

[65] The other civilian driver, Philip Bellerose was working and driving an eighteen wheeler on the date in question on Highway 17. He was a kilometer or two outside of Blind River, east of Blind River travelling towards Sudbury. While he was adjusting his radio, heater and/or looking in his mirror, when he looked up there were lights and the transport coming across the road towards him at a 45 degree angle. It was Mr. Tyska’s transport. It was still travelling at a great rate of speed, at highway speed, and he knew it was going to go through the snowbank at the speed it was travelling. He reacted and swerved into Mr. Tyska’s lane against the snowbank on the other side. As he was travelling into the other lane to swerve he saw the jeep upside down in the ditch.

[66] Justice Humphrey referred to accident conditions and the reconstruction evidence. Constable Tim Carscadden gave that evidence. He prepared a collision reconstruction report based on the information set out on page 6 of his report, which if accepted it could support that Mr. Tyska crossed the center lane and caused the accident. He concluded that the weather was clear and not a factor in the collision; the road conditions were good and not a factor in the collision; Mr. Dennie’s vehicle was eastbound in the eastbound lane travelling at 88 km/h; the commercial motor vehicle combination was travelling westbound and was partially in the eastbound lane by approximately 1.4 meters at the time of the collision; the commercial motor vehicle combination was travelling at approximately 104 km/h; and there were no mechanical issues with either vehicle that would have been contributing factors for the collision. There was a small gouge and a scrape mark found on the road which started approximately 1.42 meters south of the center line and proceeded in a southeast direction ending near the snow bank on the south side of the road approximately 6.63 meters from the center line. The gouge was at the beginning of the scrape mark which was approximately 15.96 meters long. Debris was located primarily in the eastbound lane and along the eastbound shoulder. The analysis of the hard brake event by Mr. Tyska’s vehicle showed that the brake and clutch were never engaged throughout the event and the throttle position was essentially at 100% all the way through the event and after impact, leading the officer to report that the throttle was either locked open by object or the driver resting his foot on the peddle, relying on the speed limiter. The speed limiter was set at 104.8 km/h. The electric control module of the CMV showed that from the time the CMV was being driven on February 9, 2014 to the crash on February 13, 2014, the CMV never stopped driving for a period greater than 5.5 hours.

[67] Justice Humphrey referred to Human Fatigue Specialist, Mr. Marquardt, who testified and provided expert opinion evidence using the ECM “driving mode” data, fuel receipts, vehicle exit authorization forms, and liberal assumptions he said in favour of Mr. Tyska. He opined that Mr. Tyska was fatigued at the time of the crash and that his performance was impaired by a brief period of sleep which caused him to drift into the oncoming lane and collide with the vehicle being driven by Mr. Dennie. He said that although it is not improbable that Mr. Tyska did not fall asleep, the chance in his view was very slim.

[68] Justice Humphrey referred to the breaches of Mr. Tyska. The logs filed clearly demonstrate break of the regulations and support driving by Mr. Tyska contrary to the regulations and driving without the regulated rest periods.

[69] Finally, although not referred to by Justice Humphrey on this particular element, Mr. Schurr’s evidence of his conversations with Mr. Fummerton were with respect to a concern that Mr. Fummerton had that Mr. Tyska was not getting enough sleep on a run that normally two people would have to do. Mr. Fummerton also described other concerning behaviour of Mr. Tyska, namely that Mr. Tyska was calling Mr. Fummerton at all hours during the night expressing random thoughts that did not make sense.

[70] The Defence asked that I review the indictment, which I did. I do not find that the drafting of Mr. Tyska’s charge by the Crown is relevant to the analysis of whether or not there was sufficient evidence for Justice Humphrey to commit Mr. Fummerton to trial.

D. Actions, and/or omissions (wilful blindness) to meet his legal duties and serious, blameworthy, marked and substantial departure of expected conduct of the reasonably prudent person, showing wanton or reckless disregard for the lives or safety of other persons such as to establish criminal negligence

[71] Justice Humphrey wrote:

The accused Fummerton was the operator of the trucking company pursuant to the regulations as evidenced by the Commercial Vehicle Operators Registration Application found at tab 15 of Exhibit 11. As such he had a statutory duty to ensure the regulations were being complied with. In holding this capacity it is reasonable to assume that he had knowledge of the safety purpose of the regulations dealing with restrictions on a driver’s duty hours and off duty driver rest requirements.

He was also the director and operating mind of the corporation known as ABI Trucking Inc., which was the owner of the truck involved in the accident.

There is evidence to suggest that the accused was aware or ought to have been aware that his drivers were breaching the regulations. There is evidence that he facilitated that conduct. This came from the evidence of Mr. Schurr and Mr. Rutter. It is supported by payroll records which show that Tyska was paid for round trips from Thunder Bay to Toronto and back, notwithstanding the fact that his trip logs submitted referenced trips between Thunder Bay and Sudbury and back only.

There is evidence of a wanton and reckless disregard for the lives and safety of others on the part of Mr. Tyska which the accused, Fummerton was a party or wilfully blind to or for which he had moral and statutory duty to protect against. The evidence creates a reasonable inference that the accused’s commission or omission created a nexus between the actions of Mr. Tyska, the accident that ensued and the consequent tragic death of Mr. Dennie. For the sake of greater certainty this court concludes that there is evidence concerning the actus reus to suggest that the accused Fummerton was under a legal duty as prescribed by the regulations, that he failed objectively to perform that duty and in failing to perform that duty he showed from an objective standpoint, a wanton and reckless disregard for the lives and safety of other persons. Proof of the mens rea will flow from the accused’s wanton and reckless conduct.

[72] Mr. Fummerton argues that the evidence of Mr. Rutter and Mr. Schurr regarding Mr. Fummerton having encouraged them and/or facilitated them in breaching the regulations in the same/similar manner as Mr. Tyska was breaching the regulations is presumptively similar fact evidence and presumptively inadmissible and the Crown needed to have taken some steps to introduce that evidence at the preliminary inquiry and to show that the prejudicial effect of this evidence does not outweigh its probative value. The Crown does not concede that the evidence is similar fact evidence and/or if it was that it would be inadmissible; notes that there was no objection to its introduction at the preliminary inquiry, and finally states that even if this evidence was to be found to be inadmissible similar fact evidence, there remains other evidence, from which a reasonable inference can be drawn to support the Crown’s theory.

[73] It appears that Justice Humphrey accepted and treated the evidence as admissible evidence. I am not privy or informed of any discussion that the Crown and/or Defence may have had with respect to the introduction of this evidence at the pre-liminary inquiry or that either put their minds to it. There was no objection to this evidence at the preliminary inquiry. That being said, I do not find that it is necessary or an issue for me to decide on this certiorari application on the basis that review is of jurisdictional errors and further, there remains other evidence taken as a whole from which a reasonable inference can be drawn to support the committal per the test. There is the evidence of Mr. Fummerton being the President and owner of ABI; evidence of the September/October 2013 conversation between Mr. Schurr and Mr. Fummerton; Mr. Schurr’s complaint about his team drivers to Mr. Fummerton, Mr. Tyska’s log books found at ABI office at Mr. Fummerton’s home; evidence of Mr. Schurr and Mr. Rutter that logs were dropped off to Mr. Fummerton; Mr. Tyska’s payroll records; evidence that Mr. Fummerton signed pay cheques; and some evidence of Mr. Fummerton’s hands on involvement with ABI drivers.

[74] On the issue of wilful blindness, Mr. Fummerton argues that there was insufficient evidence capable of supporting a finding or reasonable inference that Mr. Fummerton had actual suspicion that Mr. Tyska was driving tired. Fummerton’s counsel referred to R. v. McLeod, [2014] O.J. No. 4477 ONCA. I agree with the Crown that Mr. Fummerton’s conversation with Mr. Schurr four to five months earlier is sufficient evidence for committal purposes.

[75] If Mr. Fummerton was being accused of being a party as opposed to the principal offender, was there any admissible scintilla of evidence at the preliminary inquiry capable of supporting a finding or reasonable inference that Mr. Fummerton did anything or omitted to do anything for the purpose of aiding Mr. Tyska to commit the offence? The answer in my view is yes. The evidence relied on by the Crown includes: the legal duty of an operator to ensure drivers are driving in accordance with the HTA and regulations and to monitor; Mr. Fummerton’s position; Mr. Tyska’s log books; Mr. Tyska’s payroll records; and the September/October 2013 conversation Mr. Fummerton had with Mr. Schurr.

[76] Mr. Tyska’s sets of daily logs for the period commencing January 1, 2014 and ending February 13, 2014 were filed. He had two log books that he was maintaining at the same time. They show a pattern of trips from Thunder Bay to Sudbury and back. Looking at odometer reading entries, between 700 to 900 km were missing between the ending odometer reading the previous day and the starting odometer reading of the day he made his return trip to Thunder Bay. While the daily logs for February were found in Mr. Tyska’s truck (seized pursuant to search warrant), the daily logs for January were found at ABI’s place of business, Mr. Fummerton’s residence.

[77] Some payroll records for Mr. Tyska were filed for the three months prior to the collision. Mr. Tyska was paid per trip. The trips were round trips, single driver. On the face of the payroll records, it appears that Mr. Tyska is regularly being paid full trips from Thunder Bay to Mississauga and back in December of 2013, and January and February of 2014, when the logs Mr. Tyska was surrendering only showed him driving to Sudbury and back. Mr. Fummerton signed pay cheques, along with his spouse.

[78] Mr. Brown stated that he received and reviewed Mr. Tyska’s daily logs, the ECM data, Mr. Tyska’s payroll records and GPS data. With this information he was able to recreate the trip by Mr. Tyska from Thunder Bay to Mississauga and back to determine violation of permissible hours of work and daily log requirements. He noted that Mr. Tyska was in violation of 8 sections of the HTA and O. Regulation 555/06. He opined that a review of the daily logs and supporting documents would have indicated that the logs were being falsified and/or inaccurate information was being entered. Mr. Fummerton given that he had one business office, should have obtained copies of daily logs every 20 days. Operators have a duty to monitor. The purposes of the regulations and laws on hours of service are clearly for road safety. They never want a tired driver operating a commercial motor vehicle. Often times, drivers are paid by the mile or trip to give them more incentive to keep going.

[79] While I agree with Mr. Fummerton’s counsel that there was no evidence as to whether or not Mr. Fummerton delegated monitoring and/or payroll or was capable of each of these, the preliminary justice must examine the HTA definition of operator which captures more than direct responsibility and captures indirect responsibility as well. And again, the evidence tendered was that he was the President and owner of ABI and was directly involved in activities related to the operation of ABI, the CMVs and the drivers. Justice Humphrey made no error in this regard on the test for committal.

[80] Also, while not referred to specifically by Justice Humphrey, there was other evidence. It was suggested that it is well known that some drivers engage in a practice of completing two logs. Mr. Rutter gave this evidence and Mr. Brown touched on this as well. Mr. Brown also testified that he has personally travelled the route in question when he moved out west and knows it could not be done in compliance with the regulations by a solo driver. Mr. Fummerton drove the route himself with Mr. Schurr before. Lastly, Mr. Schurr also said that he told Mr. Fummerton a few times about a complaint he had about his [Mr. Schurr’s] team drivers falling asleep and “the response he got was “it’s quite normal for drivers to fall asleep at the wheel”. This was all before Justice Humphrey.

ORDER

[81] The Application is dismissed.

Rasaiah J.

Released: 2016-02-18

CITATION: R. v. Fummerton, 2016 ONSC 1107

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

IAN FUMMERTON

REASONS on application

Released: February 18, 2016