APRIL 13, 2017

Reasons for Judgment

MCCARTHY, J. (Orally)

The accused is charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death, (referred to as “dangerous operation causing death”), under section 220 and section 249(1)(a) respectively of the Criminal Code. Both charges stem from the accused's operation of a transport truck and two trailers owned by Wayne Smith Transport, (referred to as the “tractor trailer”), on March the 5th, 2014 and a rear-end collision that occurred on southbound Highway 400 (referred to as “the collision”) followed by a second collision in the northbound lanes of Highway 400 which resulted in the death of Karron Mitchell-Derbyshire (referred to as “the deceased”). The two collisions took place at or near the Innisfil Line 4 overpass.

It is admitted that the deceased was operating a silver Dodge Caravan (which is referred to as the “deceased’s vehicle”) northbound on Highway 400. It is also admitted and agreed that Dunkley Peart was operating a yellow International box truck southbound (referred to as the “Penske truck”); that Andrew Beaulieu was operating a white 2014 Dodge Caravan southbound (referred to as the “Beaulieu vehicle”); that Kevin Fields was operating a black 2011 Dodge Ram truck southbound (the “Fields truck”); and that Steven Morgan was operating a 2010 grey Honda Civic (the “Morgan vehicle”) northbound on the date in question and in the vicinity of the collisions. It is further admitted that the deceased passed away due to the injuries that she suffered in the second collision on March 6, 2014.

The Offence of Criminal Negligence Causing Death

In order for the accused to be found guilty of criminal negligence causing death, the Crown must establish beyond a reasonable doubt the following:

(a) that the accused had the care and control of the tractor trailer on March the 5th, 2014; (b) that while operating the tractor trailer, the accused showed a wanton or reckless disregard for the lives or safety of others; and (c) that the accused's conduct caused Ms. Derbyshire's death.

The first element has been admitted. The remaining two elements must be proven by the Crown beyond a reasonable doubt. The Crown may establish the wanton and reckless disregard by proving that the accused either recognized and ran an obvious and serious risk to the lives and safety of others or alternatively gave no thought to that risk: see R. v. Kresko, [2013] O.J. No. 1523, a decision of my sister, S.G. Himel J. citing R. v. Sharp, 1984 3487 (ON CA), [1984] O.J. No. 46, 12 CCC (3d) 428 (CA) at p. 436.

Criminal negligence requires a departure from the norm that is more marked in both physical and mental elements of the offence than that required for a finding of dangerous driving. This requirement is consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety of others: see Kresko, at para. 55. In respect of the requisite mens rea component, the consequence of death or bodily harm is an element of the actus reus and the mental element only requires objective foreseeability of a risk of bodily harm which is neither trivial nor transitory: R. v. Menezes, 2002 49654 (ON SC), [2002] O.J. No. 551 (OSCJ) at para. 73.

In respect to the causation element of the offence of criminal negligence causing death, for an act or omission to cause someone's death, it must be at least a significant contributing cause, one that is beyond something that is trifling or minor in nature: see R. v. Nette, 2001 SCC 78, [2001], 158 CCC (3d) 486 at 515 SCC. As well, there must not be anything that somebody else does later that results in the accused's act or omission no longer being a contributing cause of the death.

The Offence of Dangerous Operation Causing Death

While criminal negligence causing death involves "wanton or reckless disregard for the life or safety of others", dangerous operation requires only a "marked departure" from the standard of reasonable driving conduct. It being admitted that the accused operated the tractor trailer on March 5, 2014, it remains that in order for the accused to be found guilty of a dangerous operation of a motor vehicle causing death, the Crown must establish the following beyond a reasonable doubt:

(a) that accused operated the tractor trailer in a manner that was dangerous to the public; and (b) that the accused's operation of the tractor trailer caused the death of Ms. Derbyshire.

In assessing whether the actus reus of dangerous operation has been established, the question is whether the driving viewed objectively was dangerous to the public given all the surrounding circumstances. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment: see R. v. Roy, [2012] SCC 26 at para. 28.

The mens rea required for dangerous operation of a motor vehicle is not proof of a positive state of mind, such as intent or recklessness; rather the court must be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by a degree of care that was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstance: see Kresko at para. 68 citing the SCC in R. v. Beatty, 2008 SCC 5, [2008] 1 SCR 49 at para. 43.

The causation element must be satisfied in a manner similar to that under the charge of criminal negligence.

Dangerous operation causing death being a lesser included offence of criminal negligence causing death, it follows that a finding of guilt on the latter must result in a finding of guilt on the former.

The Evidence

The evidence clearly establishes that the tractor trailer, operated by the accused, came into collision with the rear of the Penske vehicle, operated by Dunkley Peart, while they were both travelling southbound on Highway 400 approaching the Line 4 overpass. This first collision involved the left front portion of the tractor impacting the right rear portion of the Penske truck. This first collision caused the Penske truck to be pushed to its left, across the southbound lanes of travel. The force of the first collision pushed the Penske truck over the centre steel barrier where it came into collision with the deceased's vehicle and the Morgan vehicle, both northbound. This second collision appears to have occurred in lane 3 of the northbound lanes of Highway 400. Following the first collision between the tractor trailer and the Penske, the tractor trailer continued towards the centre steel barrier and came to rest straddling it. As well, one or both of the tractor trailer and the Penske vehicle appear to have contacted both the Fields vehicle and the Beaulieu vehicle, both of which were southbound. All of the photographs tendered, the debris field, the furrow marks left by the Penske truck and the evidence of the lay witnesses establish beyond question how the collisions took place.

Matthew Pinfold had a particularly good view of the entire accident. He was southbound in the left passing lane, or lane one, when he observed other vehicles ahead begin to slow down. He saw the accused’s tractor trailer 15 to 20 car lengths ahead to his right either in lane three or the middle lane. It began to slide towards the right and then to its left before it collided with the rear of the Penske truck. The Penske truck in turn climbed the centre steel barrier before colliding with the northbound vehicles just under the Line 4 overpass. Mr. Pinfold also observed the Beaulieu vehicle ahead being "spun" at the same time but he cannot say what caused that. Pinfold additionally noted that, although southbound traffic was forced to slow down in the seconds before the rear-end collision and despite the fact that the roads were partially wet, neither he nor any other southbound vehicles had any difficulty slowing down or stopping. This despite the fact that he described the traffic as slowing down abruptly and dramatically. While Mr. Pinfold had stated earlier in his will say statement that the tractor trailer drifted to the right and then to the left before the collision, I find that this makes little difference. Indeed, Mr. Pinfold confirmed that the tractor trailer drifted violently and that it was not a controlled movement. I accept the evidence of Mr. Pinfold and place great weight on it.

I would place considerable weight on the evidence of Kevin Fields, the operator of the black Dodge Ram truck pictured in a number of photos in lane one southbound on Highway 400. Mr. Fields spoke of having to come to an "abrupt" but safe stop while he was travelling in lane two for what appeared to be a minor incident on the southbound shoulder 50 yards down the highway. Mr. Fields was able to stop without difficulty; he witnessed other vehicles ahead of him having no difficulty stopping. The roads were wet but not slippery. Fields vaguely remembers the sound of the collision behind him; he did not see either the Penske truck or the tractor trailer until they hit him. Fields was pushed into the guardrail while the Penske truck slid diagonally in a southeast direction across the centre railing in front of Fields and into oncoming traffic. Fields described the front of the tractor trailer's driver side "pushing" the rear passenger side of the Penske truck through the guardrail with its nose as the two vehicles pushed past him. The tractor trailer was able to stay alongside the guardrail. Fields engaged the accused in a brief conversation after the vehicles had come to rest. The accused stated, "He knew he could not stop and tried to put the tractor trailer into the ditch but it bounced out."

Witness Adam Wood was equally articulate and credible. He was southbound in the far left lane of Highway 400 which was moving steadily until traffic ahead displayed brake lights. He could not see what it was ahead that was causing the traffic to slow down and stop. Nevertheless, he managed to come to a full stop. No other southbound vehicles ahead of him appeared to have any difficulty stopping. The tractor trailer which he had passed just moments earlier while it was in the slow lane passed him on his right. The tractor trailer ran into the back of the stopped Penske truck which caused it to be pushed into the northbound lanes. It appeared to Wood that the Penske truck was stopped directly in front of the tractor trailer in the slow lane. The tractor trailer was travelling at almost highway speed; when it struck the Penske truck it caused a loud collision and impact. The tractor trailer remained in contact with the Penske truck pushing it into the northbound lanes until the two vehicles separated. In the view of Mr. Wood, the momentum of the tractor trailer was the "driving force" in the accident and the Penske vehicle had no control over its course. In cross-examination, Wood confirmed that while the stopping was unexpected, he had time to do so. Other vehicles around him stopped abruptly, as well, with nobody appearing to have any issues. It was Wood’s impression that the tractor trailer attempted to stop far too late.

I found the evidence of Dunkley Peart, the operator of the yellow Penske truck, reliable and compelling. He described the roads as dry and visibility good. The traffic southbound was not heavy but it did begin to slow down and vehicles ahead had brake lights on. Using his brakes, he himself slowed down without difficulty to what he estimated to be 40 to 50 kilometres per hour. After some initial confusion, Mr. Peart confirmed that he moved from the right lane over into the middle lane. It was at that moment that he felt something hit his truck from behind. His truck was thrust into the far left lane. He lost control. He crossed over the centre barrier and into the northbound lanes. I accept Mr. Peart’s evidence that he was fully in the middle lane of southbound Highway 400 when he was contacted from behind. That is entirely consistent with the nature of damage to the tractor trailer, which was left front, and the Penske truck, which was right rear, as well as the location of the debris field left at the first collision site. The path which he travelled after the collision is also consistent with a right rear-end blow causing his vehicle to be forced off to the left by the force of the blow from behind. Indeed, both Mr. Pinfold and the accused recall the tractor trailer sliding or drifting first to the right and then to the left; this is consistent with the rear impact to the Penske coming more from the right than from directly behind or from the left.

Peart's recollection of his speed was likely flawed; it is highly improbable that he was travelling at 40 to 50 kilometres per hour when he was struck from behind. This is inconsistent with the evidence of other witnesses who saw the Penske truck stopped when the collision from behind occurred. It is more likely that Peart had slowed to that speed in the seconds prior to the rear-end collision. Nevertheless, I am not disturbed by this aspect of his evidence. Whether he was moving forward or not, he had no means by which to avoid being impacted from behind him. Nor am I disturbed by Mr. Peart’s evidence about seeing police lights further down the highway. He may simply have seen hazard lights activated on either the involved vehicles or the witness vehicles further down the highway. As well, there is evidence that witness Delbrocco detected police lights approaching northbound on Highway 400 at or about the same time. Nothing changes the fact that Mr. Peart was driving properly, within the speed limit and was simply the victim of a violent rear-end collision which caused him to lose control over his Penske truck as it pushed across the centre barrier and into the northbound lanes of Highway 400. Mr. Peart was forthright and entirely believable.

Police Constable Kostyra was qualified as an expert in commercial motor vehicle operation, fitness and safety inspections and air brake systems. Constable Kostyra, together with Police Constable Tara Bolstad, Police Constable Steve St. Amand and Police Constable Adam Smith were part of the investigative team called to the scene of the two collisions which closed Highway 400 northbound and southbound at about 11:30 a.m. on the morning of March the 5th, 2014.

Police Constable Kostyra provided detailed, informative and entirely persuasive testimony on the functioning of air brake systems and the difference in design and purpose between service brake chambers and spring brake chambers. Most importantly, he spoke of the importance of pushrod strokes in the operation of air brake systems. Basically, pushrod strokes must be kept within a normal operation range in order to ensure full or near-to-full brake force. Since a drop in brake force can be significant when push stroke exceeds the adjustment limits of a brake chamber, it is critical that brakes are correctly adjusted to ensure function is retained. This requirement is so important that it is made the subject matter of regulation under the Highway Traffic Act. Operators are required to maintain and inspect commercial motor vehicles according to strict guidelines. Daily under-vehicle inspections and reports must be conducted and maintained. Inspections are valid for 24 hours. Section 107(9) of the Highway Traffic Act forbids the operation of a commercial motor vehicle on highways unless the under-vehicle inspection and reports have been completed. Section 107(11) forbids the operation of a commercial motor vehicle on a highway if it has a prescribed defect. Section 7 of Regulation 199/07 under the Highway Traffic Act sets out the daily inspection requirements and section 8 requires the driver to monitor the condition of the commercial motor vehicle while driving in order to detect any defects. Of greatest significance for the purposes of this case is Part VI Schedule 1 of the Regulation which requires the daily inspection to include the air brake system and to check for major defects which includes the "pushrod stroke of any brake exceeding the adjustment limit”. According to Regulation 587, the pushrod stroke of an air brake service chamber must not be more than the prescribed measurements set out. It is thus clear from the Regulation 199/07 and the notes and schedules thereunder that systems and components to be inspected on a daily basis include the air brake system; and that a "major defect" includes a pushrod stroke of any brake exceeding the adjustment limit prescribed in the columns. Both Police Constable Kostyra and Police Constable Bolstad indicated that any tractor trailer with one brake out of adjustment should not be driven and, indeed, would not pass inspection. The Regulation makes that abundantly clear.

I accept as accurate the measurements made by the OPP investigation team on March the 5th and 6th, 2014 on the tractor trailer. The evidence of the officers involved was generally consistent and reliable. The testing method consisted of: releasing the brakes, marking the pushrod, then injecting air either in through the intact trailer lines or directly into the chambers in the tractor, ensuring that the air was at 90 pounds per square inch as a means of replicating the application of the service brakes. This was a valid and reliable way to measure the pushrod stroke. This method of testing was not challenged in cross-examination and I heard no evidence or suggestion that it was somehow flawed or unreliable. That testing established that of the 16 air brakes on the tractor trailer combination, 7 were out of adjustment, 4 were at re-adjustment, while only 5 were within the limits prescribed by Schedule 1 of the Ontario Regulation 587, RRO, 1990, section 5. This resulted in 43.75 percent of the brakes being out of adjustment or not working properly on the date of the accident in question. Add to this the evidence provided by Police Constable Smith that this would increase the demand on the brakes that were working properly and the weight of the load and we are left with a massive tractor trailer barrelling down the highway with a highly-compromised braking ability. According to Police Constable Smith, whose evidence I accept, this might translate into a decrease by almost half of the braking force of the tractor trailer combination on the date in question.

I accept the evidence of Police Constable Kostyra that a daily inspection of the air brake system of an eight-axle tractor trailer of the kind involved here, using the mark and measure method, would take between 10 and 20 minutes.

I accept the evidence of PC Vandeusen who impressed me with his extensive knowledge of GPS systems and how the data taken can be downloaded, interpreted and used to plot the course, average speed, elevation, position and direction of an equipped vehicle over any particular period of time. I accept that the GPS in this case would have been turned on when the engine of the tractor was powered on. In this case, on the morning of March 5, 2014, the engine of the accused's tractor was powered on at 7:26 a.m. I accept that, with the exception of some minor glitches for stated leg speed when the vehicle is stationary, the GPS then records the movements and speed of the commercial motor vehicle while it is on. That GPS data established to my satisfaction that the tractor trailer was being moved forward from a parked position within three minutes of being powered on; and within six and a half minutes of being powered on, it was moving at highway speed, consistent with it being on its journey south along Highway 69. That GPS also establishes to my satisfaction that in the moments before the accident further down the highway caused traffic behind it to slow, the accused was operating the tractor trailer at a speed of just over 100 kilometres an hour. That was at point number 966 at 11:31:44 a.m. Within a span of seconds at the location where the rear-end collision took place, the tractor trailer decelerated rapidly, first to 70 kilometres per hour and then from 70 kilometres per hour down to zero within ten seconds.

The evidence of Police Constable St. Amand was somewhat problematic because in attempting to arrive at the brake force calculations of the tractor trailer, the officer was handicapped by not having accurate axle weights and brake drum temperatures to work with. Nevertheless, and in spite of that shortcoming, I found his evidence to be compelling and his calculations reliable. He concluded emphatically that only 3/16 of the brakes on the tractor trailer were capable of locking, that is, they were able to obtain their threshold limit. Ideally, all of the brakes should be capable of locking up if they were all properly aligned. I accept that the brake force calculations were reasonable estimates of the best that the tractor trailer could do on that day. I accept that the deceleration factors and total braking force properly took into account the push stroke measurements taken on the tractor trailer. It is evident that the tractor trailer was not capable of safely stopping within the parameters set out in a U.S. Society of Automobile Engineers study. That study established that safe stopping distances for a commercial motor vehicle travelling at 60 miles per hour or 96 kilometres per hour should be 250 feet or 76 metres with heavy brake application.

I found the conclusion reached by Police Constable Adam Smith to me most compelling. Qualified as an expert commercial motor vehicle mechanics with knowledge in commercial motor vehicle air brake systems and post-collision inspections, Constable Smith explained to the court the danger posed when pushrods are out of adjustments. Essentially, they lose their effectiveness. He corroborated the evidence of Police Constable Bolstad and Police Constable Kostyra on the method by which the air brake system was inspected in the post-collision period. He was confident that the pushrod stroke measurements were accurate. He had never seen a tractor trailer combination with this many brakes out of adjustment, 7/16. The readings at the scene would have been identical to the readings taken that morning. In fact, Constable Smith emphasized in cross-examination that even if these brakes had been inspected and passed in December 2013 or January 2014, they would not have deteriorated to that extent by March 2014. Not only did he conclude that 43.75 percent of the brakes on the tractor trailer were not working properly, but he stated clearly that this would have been quite noticeable to the driver because of increased stopping distances. Moreover, because brakes that are not functioning properly cause properly functioning brakes to work harder, this results in increased heat in the brake drums and brake fading. These translate into overall braking power being reduced by more than half.

I am led to the inexorable conclusion that the accused simply declined or neglected to carry out the inspection of the air brakes in the manner prescribed by the regulations on the morning of March 5, 2014. First, I have accepted as accurate and reliable the pushrod stroke measurements taken by Police Constable Bolstad and recorded by Police Constable Smith, coupled with the uncontroverted evidence that there would be no appreciable difference in any measurements that should have been taken earlier that morning and the measurements that were taken later that day. Based upon that, I cannot accept that the daily vehicle inspection report signed by the accused March 5, 2014 can serve as proof that the brakes were properly inspected. Second, the report itself is incomplete; the "no major or minor defects were found" section was not checked off or filled in. I cannot agree with counsel for the accused that I should read that absence of recorded defects as proof that the inspection took place. In my view, any reasonable person, having taken the time and effort to conduct a 15-minute brake examination, would have taken the time to verify that no defects were found by a simple tick of a box. Third, the GPS record shows that the tractor trailer started on its journey that morning within a few minutes of the GPS being powered on. I accept that the GPS was most likely powered on when the tractor was started up; since the inspection cannot take place without power to the unit, I would conclude that the inspection could not have taken place in the timeframe stated by accused on the report. The tractor trailer was moving forward within three minutes of being powered on. No inspection could have taken place. To the extent that the inspection report represents an exculpatory statement of the accused brought into evidence – and I am not convinced that it does since the document contains the ambiguity noted above - I may be required to do a limited W.(D.) analysis. I find that the accused did not perform the inspection of the brake system that he was required to do by law on March 5, 2014. There is no corroborating evidence that he did, rather; the evidentiary record convinces me that he did not. Nor am I left with any reasonable doubt that the accused failed to perform the inspection that morning in compliance with the Regulation. Indeed, the very fact that I accept the accuracy of the pushrod stroke measurements recorded by the investigative team precludes a finding that an inspection by the accused that morning even took place. If it had, the measurements taken by the accused would have been identical to the measurements taken hours later and would have been noted as defects on the daily inspection record. Again, the evidence is clear that there would have been no appreciable difference between the pushrod stroke measurements taken upon any inspection taken in the morning and those we know were taken in the afternoon and the next day. I am satisfied beyond a reasonable doubt that accused simply failed to inspect the air brake systems by measuring the pushrod strokes on each of the air brake chambers on March the 5th, 2014. In so doing, he breached his legal duty imposed under the Highway Traffic Act and the regulations thereunder to conduct an under-vehicle inspection in the manner prescribed.

Because of the above, I find that the accused showed a wanton and reckless disregard for the lives or safety of others on March the 5th, 2014. Operating a fully loaded tractor trailer weighing 65,000 pounds at highway speed is a high-risk activity in and of itself. Operating such a commercial motor vehicle without ensuring compliance with regulations designed to ensure that air brakes are in proper working order is wanton and reckless and, indeed, criminal. I find that the accused either adverted to the risk of taking the tractor trailer out onto the highway without inspecting the brakes or failed to direct his mind to the risk and the need to take care. Either would amount to wanton and reckless disregard for the safety of others. Compounding the mens rea aspect of the offence, I find that the previous incident of July 25, 2013 would have imbued the accused with the knowledge, as if he would have needed it, that it was his daily responsibility to inspect brakes and record the findings, whether or not there were any defects found. As well, I accept the evidence of Police Constable Smith who testified that any reasonable operator operating the tractor trailer with 7/12 brakes out of adjustment would have detected that there was a problem sufficient to warrant an inspection, an adjustment or simply removing the tractor trailer from service until the problem could be investigated and rectified. I would infer from the GPS data that when the accused pulled the tractor trailer off the highway in Parry Sound earlier that morning, the accused would have had more than ample opportunity to assess his braking power. I am satisfied beyond a reasonable doubt on the second element of the offence of criminal negligence causing death and conclude that on March 5, 2014 the accused was criminally negligent because:

(1) he failed to inspect the brakes on the tractor trailer on the morning in question; (2) either knowing of the risk he was taking or giving no thought to it, the accused took the tractor trailer out onto the highway without conducting that critical inspection; and (3) upon operating the tractor trailer upon the highway, he failed to or neglected to monitor for defects and failed to remove the tractor trailer from the highway when he knew or must have known -according to the evidence of Police Constable Smith which I accept - that the tractor trailer did not have sufficient brake force to operate that commercial motor vehicle safely on the highway.

There remains the issue of causation, the third element of the offence. It is indisputable that the accused came into collision with the rear of the Penske truck, forcing it or pushing it into the northbound lanes where it became involved in the second collision. There is no evidence that any of the other vehicles involved in the series of collisions or the fatal collisions had any defects, such as tire tread problems. There is a straight red line between the actions of the tractor trailer and the collision in the northbound lane which claimed the life of the deceased. The demise of the deceased is directly related to the rear-end collision in the southbound lane caused by the accused. Causation in that simple sense is proven beyond a reasonable doubt.

Still, in order for the third element of the offence to be satisfied, it is the criminal negligence which must be a significant contributing cause of the death. In other words, the wanton and reckless act or omission of the accused must be a significant cause of the death, not just the more proximate and obvious fact of a second collision.

The accused suggests that I should be left with a reasonable doubt that the condition of the brakes on the tractor trailer was a cause of death. In cross-examination, Police Constable St. Amand conceded that even if the accused's brakes were within proper working order, it would not have prevented the collision, it would have just meant that the speed at impact would have been less because the tractor trailer would have been able to stop seven metres sooner. One cannot know if the course of events that followed would have been the same or entirely different. To put the accused's position on this point rather crassly, the death might just as easily have ensued in these circumstances had the brakes on the tractor trailer been in proper working order. We cannot know; any attempt to determine that question would involve unwarranted speculation.

The truth of the matter, however is that a high-speed rear-end impact did occur between a fully-loaded tractor trailer combination, which was witnessed to be travelling at almost highway speed in the seconds before impact, and the fully-stopped or near-to-fully-stopped Penske truck in front of it. That first collision involved sufficient forces to push the large Penske truck across a southbound lane of traffic, through a centre guardrail and across two lanes of northbound traffic. The brakes on the tractor trailer were out of adjustment leaving it with a braking force, which according to Police Constable St. Amand's testing estimate, was compromised by at least 23 percent, and depending on the temperature of the brakes, possibly more. There is uncontradicted evidence from investigating officers that 7 of the tested brakes were out of adjustment; according to Police Constable Smith only 3 out of 16 brakes were capable of locking up; 7 out of 16 fell below the push stroke adjustment limit called for in the Regulations. This led Constable Smith to provide the rather simple but compelling calculation that 43.75 percent of the brakes were not properly adjusted. His rather more alarming conclusion was that because of heat factors, et cetera, the brakes were compromised by as much as 50 percent. Although there would at first appear to be discrepancy between Police Constable St. Amand’s brake force findings after testing and Police Constable Smith’s estimate of brake force based on the inspection, in reality they are very close since it is entirely possible that the temperature within the brake drums was at 400 degrees Fahrenheit. This would bring Police Constable St. Amand’s brake force estimate more in line with the 50 percent figure.

I found compelling the evidence of Police Constable Kostyra who recounted his experience of conducting a skid test drive of a commercial motor vehicle with 7 out of 12 brakes out of adjustment. At 40 kilometres per hour, he described the experience as scary. Even when standing on the brake pedal as hard as he could, he described it like trying to stop a car on ice. The test commercial motor vehicle came to a very gradual and slow step, not an aggressive one. It was extremely noticeable.

I am unable to find the statement of the accused which made its way into evidence in any way exculpatory. For the sake of any W.(D.) analysis, I am prepared to accept it as true. But the evidence of the accused contained in the statement supports the finding that the brakes completely or partially failed to arrest the forward motion of the tractor trailer. Responding to traffic ahead slowing down pretty fast, the accused first pressed on his service brake, to no avail; he then noticed traffic in front stopping quickly and he responded by stepping down harder on the service brake. He noticed that this was not stopping as quick and felt that he was sliding, so he pulled towards the west ditch. After that, he pulled on the dash brakes, (which I find would mean the spring brakes). He pulled towards the shoulder to avoid the Penske truck in front but clipped its back right side. In addition, the accused stated to witness Fields in the immediate aftermath of the collision that "he knew he could not stop. He tried to put the rig into the ditch but it bounced out." The accused’s own evidence is entirely compatible and consistent with the brakes having failed to stop the tractor trailer in a safe manner. It is thus entirely consistent with the conclusions of the investigating officers that the brakes were severely compromised. We know that no other southbound vehicles identified had any apparent difficulty stopping safely, even though the stop was an abrupt one. This can only serve to reinforce my finding that the brakes on the tractor trailer were highly deficient. One would have expected a good number of rear-end collisions to have ensued in those circumstances if, in spite of properly functioning brakes, safe stopping was, in fact, impossible.

I am not prepared to speculate about what a rear-end collision involving the same tractor trailer with properly adjusted brakes might have produced. Logically, such a collision would have been less severe and would have involved lighter forces. We cannot know what the end result might have been. We do know that the tractor trailer would have been able to stop approximately seven metres earlier and that any impact with the Penske truck would almost certainly not have been as violent or at such a rate of speed.

What is certain is that the accused, having decided to put the tractor trailer on the road that day, adverted to the risk that the brakes would be inadequate for stopping in traffic conditions which, if somewhat unanticipated and out of the normal, are nonetheless common enough on Highway 400 so as to be reasonably foreseeable. Both the actus reus and the mens rea of criminal negligence are present.

I am satisfied beyond a reasonable doubt that the criminal negligence of the accused as set out above was a significant contributing cause of the death of Karron Mitchell-Derbyshire. There is nothing on the evidence which leaves me with a reasonable doubt on any of the three elements of the offence of criminal negligence causing death.

The Crown has made out its case and a conviction shall enter in respect of count 1 on the Indictment.

The offence of dangerous operation causing death is a lesser-included charge. It follows that criminal negligence in the operation of a commercial motor vehicle would qualify as a marked departure from the conduct of a reasonable person in similar circumstances. I, therefore, find that the accused operated the tractor trailer in a manner that was dangerous to the public. I find that he failed or neglected to conduct an inspection of the air brakes as mandated by the regulation. As well, I find that he brought the tractor trailer onto the highway knowing that the brakes had not been properly inspected; lastly, he failed to remove the commercial motor vehicle from the highway when it would have been obvious and apparent to him that the brakes were not in proper working order. This is clearly a marked departure from the standard of a reasonably prudent driver in the circumstances. Causation having been established for the reasons set out above under criminal negligence causing death, a conviction shall enter, as well, on count number 2, dangerous operation causing death.

And those are my reasons. Before we move on, is there any concerns with – and I’m not revisiting my ruling, obviously, but any concerns with the wording of it, or the details of it, or the dates, or anything like that?

MR. PICKARD: Nothing that caught my ear, Your Honour.

THE COURT: Thank you. Nothing from the Crown?

MR. PETERS: Nothing stands out, Your Honour, thank you.

THE COURT: All right. So we have a conviction to enter on count 1 and a conviction to enter on count 2. I assume that it being a lesser and included offence, we’ll hear something about Kienapple on sentencing?

MR. PETERS: I can deal with it now, if you like, or if you’d like to defer?

THE COURT: It would be stayed? It gets stayed?

MR. PETERS: Yes. Just formally request that the dangerous driving – since it’s a different count, it should be conditionally stayed according to the principles in the case known as Kienapple, please.

THE COURT: Mr. Pickard, is that agreeable wording?

MR. PICKARD: Yes, Your Honour.

THE COURT: That count number 2 be conditionally stayed in light of the fact that it’s a lesser included offence under count 1.

Certificate of Transcript

form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2) Evidence Act

I Phyllis Torrance (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. GERALD QUIGLEY in the SUPERIOR COURT OF JUSTICE (Name of Case) (Name of Court) held at 75 Mulcaster Street, Barrie, Ontario (Court Address) taken from Recording 3811-15-20170413-13342130-MCCARTJOH, which has been certified in Form 1 by P. Torrance. May 22, 2017 PHYLLIS TORRANCE, ACT ID 4026163594

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN v. GERALD QUIGLEY

Proceedings

[Reasons for Judgment]

BEFORE THE HONOURABLE JUSTICE J.R. MCCARTHY on April 13, 2017 at Barrie, Ontario

APPEARANCES: C. Peters Counsel for the Crown J. Dafoe G. Pickard Counsel for Gerald Quigley

SUPERIOR ONTARIO COURT OF JUSTICE

Table of Contents

Exam. Cr.- Re- WITNESSES: In-Ch. exam. exam.

EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE

Transcript Ordered: . . . . . . . . . . . .. April 18, 2017 Transcript Completed: . . . . . . . . . . . .May 22, 2017 Notified Ordering Party:. . . . . . . . . . .May 23, 2017