COURT FILE NO.: 7615/15 DATE: 2017-06-26

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Mary E. Pascuzzi, for the Crown

- and -

IAN R. FUMMERTON Ronald J. Poirier, for the Defence Defendant

HEARD: April 6, 2017 Rasaiah J.

REASONS FOR SENTENCE

Overview

[1] Mr. Fummerton entered a plea of guilty to the offence that he,

On or between the 1st day of January 2014 and the 12th day of February 2014, in the Northeast Region, in the Province of Ontario, was a party to dangerous driving in relation to the operation of a commercial motor vehicle by failing to ensure compliance by drivers of ABI Trucking Inc. with the provincial laws and regulations for on-duty drivers, driver hours, and off-duty driver rest hours, in permitting single driver round trips between Thunder Bay and Toronto area, contrary to section 249 of the Criminal Code R.S.C. 1985, Chap. C-46 (“Criminal Code”).

[2] Mr. Fummerton is the owner and operator of ABI. The exhibits filed confirm Mr. Fummerton is president of ABI and that he is also the one and only shareholder and director of ABI.

[3] The charge stemmed from a fatal motor vehicle accident involving a domestic vehicle and a commercial motor vehicle combination operated by ABI Trucking Inc., which I will hereafter refer to as ABI.

[4] Before setting out further details, I state that my recitation of the background and summary of facts hereafter should be interpreted with the following caveats in mind. Mr. Fummerton is not charged with dangerous driving causing death. Further, the cause of the fatal accident is very much a live issue, including but not limited to the point of impact, and whether it was caused by driver fatigue or some other cause. These issues will be for another court to decide at the trial of the driver. As such, to make it abundantly clear, I state that I make no findings as to the cause of the accident and/or the death of Mr. Dennie and/or the admissibility and/or weight of the evidence pertaining to same. Any references to the accident and Mr. Dennie’s death are for purposes of setting out background.

[5] That being said, it has been clearly admitted that during the course of the investigation of the accident, it was determined that Mr. Fummerton breached his owner operator duties and obligations set by provincial legislation and regulations; that he did so in such a manner that his conduct is caught by the Criminal Code; that he was in fact, a party to, aiding and abetting, the offence of dangerous driving.

[6] The background and facts are from the agreed statement of facts read into the record and the exhibits filed at the time of the plea and the sentencing submissions. Mr. Fummerton agreed with all of the facts in the agreed statement of facts related to his misconduct. Regarding the exhibits, objection was made solely to the uses of and/or weight to be given, if any, to commercial vehicle operator records (“CVORs”) and Mr. Fummerton’s driving record, which I will address in my analysis.

Background/Summary of the Facts

[7] On February 13, 2014 the Ontario Provincial Police East Algoma Detachment, (“OPP”), was notified that a collision had occurred involving a commercial motor vehicle combination consisting of a truck tractor and semi-trailer, which I will refer to hereafter as “the transport”, and a Jeep Wrangler, which I will refer to hereafter as “the Jeep”.

[8] The collision took place on Highway 17, east of the Town of Blind River, Ontario.

[9] When officers arrived at the scene, they observed the Jeep on its roof, on a snowbank, on the south side of the Highway. The Jeep had extensive damage to the left side driver’s side of the vehicle. Officers observed the transport situated in the south ditch, upright on its wheels facing west. Tracks leading to the transport suggested that it was westbound on Highway 17, and that the transport entered the ditch on the south side of the highway.

[10] The driver of the Jeep was recognized by the first officers attending the scene as Mr. David Dennie. Mr. Dennie was a member of the OPP. He was off-duty on this date. Mr. Dennie was pronounced dead at the scene.

[11] The driver of the transport was identified by documentation as Gary Tyska of Thunder Bay, Ontario, and that he was employed at the time by, and that the transport was being operated on behalf of, ABI.

[12] Tyska did not have any visible injuries but he was transported to Blind River by ambulance for observation.

[13] Constables Carscadden, Brown and Yeomans, who are qualified OPP traffic collision investigators and reconstructionists attended the scene to investigate. During the investigation videos and photos of the scene and the vehicles were taken. The vehicles were also searched and examined.

[14] The vehicle air bag module of the Jeep was imaged and the engine control module of the transport was imaged. The electronic control module examined by police, reported data indicating that, starting on February 9, 2014, to the day of the collision on February 13, 2014, the transport never stopped being driven for a period of greater than 5.5 hours.

[15] The braking of the transport was analyzed. The analysis of the transports’ hard brake event indicated that the brake and clutch were never engaged throughout the accident, and that the throttle position was essentially at 100 percent all the way through the event and after impact. The throttle was either locked open by an object or the driver resting his foot on the pedal, relying on the transport’s speed limiter. The speed limiter was set at 104.8 kilometers per hour.

[16] The Ministry of Transportation (“MTO”) completed a mechanical inspection of the transport. During this inspection, Constable Carscadden observed three logbook pages in the cab of the transport dated February 11, 12 and 13, 2014. They included pre-trip inspections which indicated there were no defects with the transport. These documents were subsequently turned over to police.

[17] A criminal investigation started after a Mr. Ryan Schurr of Thunder Bay, Ontario contacted the OPP. He contacted the OPP because he learned from a newspaper article that ABI and Tyska were involved in a fatal motor vehicle collision.

[18] On March 30, 2014 Schurr provided a statement to police. Schurr provided the following information:

a) he worked for ABI from July 1st, 2013 to November 16th, 2013; b) ABI drivers engage in a single driver Purolator run from Thunder Bay, Ontario to Toronto, and back to Thunder Bay, with little or no sleep; c) ABI drivers carry two log books to purposely defeat the on duty/driving limits set for commercial motor vehicles; d) The company owner, Mr. Fummerton, condoned this practice of using two logbooks to make it look like the driver was in compliance with the regulations and the limits; e) Schurr personally performed the delivery run; f) Schurr would leave Thunder Bay at 10:00 p.m., drive straight through to Etobicoke, deliver his load, drop off the trailer at the Purolator hub at 5:00 p.m. that day, and then would sleep for about three hours. At 11:00 p.m. he would then proceed to another Purolator location in Toronto, pick up a trailer and start to drive north. At 3:00 a.m. he would continue his trip to Thunder Bay via Sudbury; g) on one occasion when he was on one of these runs when he arrived in Blind River at 7:00 a.m. he was forced to change drivers with another driver that came to meet him because he was too tired and too confused to continue on. This was the exact run Tyska was driving on February 13, 2014; h) he had driven with Tyska in the past. Tyska told him that he, Tyska, had a logbook that he used for east of Sudbury, and a second logbook that he used for west of Sudbury. Tyska completed the log book to show that he stayed in a hotel in Sudbury to make the trip “look legal”; i) this particular delivery run has a very strict timeline that is only designed for team driving; and j) he provided the approximate schedule that Tyska would have been driving on February 13th, 2014.

[19] On May 3rd, 2014, Constable McIssac conducted a traffic stop in the City of Sault Ste. Marie. The vehicle he stopped was a westbound ABI transport with a Maritime Ontario trailer. During this stop, the driver identified himself as Paul Rutter, of Thunder Bay, Ontario. Rutter provided a video statement to police indicating that:

a) he was employed by ABI for four years; b) he too had completed the same Purolator delivery run, most of the time on his own; c) he too used two log books; d) Mr. Fummerton provided him with the two log books; e) he only filed one of the two log books after completion of the trip; f) he received $650 for the roundtrip; and g) he was fully aware that he was breaking the law and he was permitted to do so, by Mr. Fummerton.

[20] At this time a more focused investigation commenced for the offence of criminal negligence causing death in relation to the accident.

[21] Items were seized pursuant to production orders and search warrants.

[22] The further investigation and items seized revealed the following.

(a) The transport was being operated by Tyska on February 11, 12 and 13, 2014, and he was driving the Purolator delivery run from Thunder Bay, Ontario to Mississauga, Ontario and back, alone. On the date of the collision, Tyska was returning north to Thunder Bay. (b) The total distance of the delivery run that Tyska was driving was approximately 2,800 kilometers. (c) There was a pattern of Tyska completing this delivery run by himself as a single driver, and doing so within 48 hours. (d) There was a pattern of Tyska not taking the provincially regulated required rest periods when completing this delivery run. (e) There was a pattern of Tyska maintaining two daily log books and deliberately falsifying his logs including his on-duty, off-duty and driving status. (f) Tyska prepared one set of logs reporting that he was driving solely from Thunder Bay to Sudbury and back with a required break in Sudbury, referred to hereafter as “the north end of the delivery run” and another set of logs reporting that he was driving from Sudbury to Mississauga, hereafter referred to as “the south end of the delivery run” as reported by Schurr. (g) By completing and keeping the two log books in this fashion, if stopped by MTO or a police officer, Tyska could produce the particular log book that matched the geographical area that he was in so that his hours of service “looked legal”, namely that he was within the hours of service limits and taking the required rest breaks mandated by Ontario Reg. 555/06 of the Highway Traffic Act R.S.O. 1990, c. H.8. (“Highway Traffic Act or HTA”). (h) Tyska submitted only one of the sets of logs to ABI, namely, the set reporting the north end of the run.

[23] The log books for the north end run for January were found at ABI’s place of business, Mr. Fummerton’s/ABI’s office which is located in Mr. Fummerton’s residence. Tyska’s second logbook, the logbook for the south end of the run, was located under clothing in a black bag in the transport itself.

[24] During the course of the investigation the police contacted experts.

[25] One expert was Alfred Brown, director of vehicle safety, Province of Alberta Transportation Safety. Brown’s experience included that he personally had assisted with the drafting of the hours of service regulations.

[26] Brown analyzed Tyska’s daily logs, the engine control module data, payroll records and other items that were gathered from the production orders and searches. Brown concluded that it was evident that Tyska was carrying two logbooks for the same time period, which in and of itself was an offence under the Highway Traffic Act. Brown noted that when looking at the logbook for one end there was between 700 and 900 kilometers missing between end day mileages and start day mileages the next day right on the face of the log books. He stated that the practice of carrying two logbooks is to hide the fact that the driver was driving over the permitted hours.

[27] Brown used the daily logs from January and February 2014, the engine control data, and payroll records, to recreate the trip made by Tyska from Thunder Bay to Mississauga and back to determine the violation of permissible hours of work and daily log requirements. He stated that Tyska was in violation of eight sections of the Highway Traffic Act and Ontario Reg. 555/06. In particular, Brown testified at the preliminary inquiry that at the time of the fatal collision, Tyska was in violation of the following: exceeding 13 hours of driving without taking the required 8 hours off; driving after 14 hours on duty without taking 8 hours off; driving after 16 hours since the last break without taking 8 hours off; exceeding 13 hours driving time in a day; driving after 14 hours on duty in a day; failing to take 10 hours off in a day; entering inaccurate or false information in a daily log; and being in possession of more than one daily log.

[28] Brown expressed that Mr. Fummerton as the operator of ABI had a duty to monitor Tyska’s driving and hours of service, to avoid having a tired driver operating a commercial motor vehicle. He noted that ABI was also in violation of the following: permitting a person to drive a commercial motor vehicle not in accordance with the regulations; and request or require or allow a driver to enter inaccurate or false information in a daily log.

[29] Tyska’s seized payroll records and logs for December 2013 and January and February 2014 indicate that he completed a number of theses delivery runs alone.

[30] Rutter’s seized payroll records and logs for January and February 2014 revealed that he also completed a number of these delivery runs alone, and that he filed only one log book for only one end of delivery run but was paid for both ends of the delivery run.

[31] Mr. Clinton Marquardt was the second expert contacted by police. He is a human fatigue specialist, in respect of types of fatigue and the role fatigue can play in major accidents. He works mainly with accident reconstructionists and progressive safety conscious organizations. He provided a report on his opinion as to the cause of the accident.

[32] Tyska was arrested and charged with criminal negligence causing death on May 29, 2014. On June 18, 2014, Mr. Fummerton was also arrested, and at that time was also charged.

[33] In respect of the Purolator delivery run itself, the investigation revealed that ABI had a contract with Maritime Ontario to carry out this delivery run. Maritime Ontario itself had the contract with Purolator directly. Search warrants were granted and executed to search the office of Maritime Ontario for: the sub-contracts between Maritime Ontario and ABI, monthly invoices, and GPS data for trucks used by ABI for Maritime Ontario. As well, a production order was granted for the ground carriage service agreement between Purolator and Maritime Ontario, and its schedules and amendments, and copies were provided to police.

[34] The seized records indicated that:

a) that Maritime paid ABI per mile for the Purolator run; b) run timelines were set requiring the approximately 2,800 km delivery run to be completed as follows: the first leg within 19 hours of pick up, followed by at minimum of a 3.5 hour re-load timeframe, followed by a second leg of 19 hours for a total of approximately 41.5 hours completion timeline; c) ABI billed on average $2,151.52 for a return trip from Thunder Bay to Mississauga for the Purolator run; d) Maritime paid ABI for fuel; e) ABI paid the drivers $650 to $675 for a complete round trip, approximately 31% of the foregoing payment per trip; and f) ABI was responsible for its own lease and maintenance expenses.

Legal Parameters:

[35] Section 21 of the Criminal Code provides:

Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Mr. Fummerton has been charged as a party and has admitted to aiding and abetting as charged.

[36] Subsection 249(1)(a) of the Criminal Code provides:

Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[37] Except for providing narrative, the cause of death of Mr. Dennie and the accident have been removed from the factual context of this case and I am bound by that in sentencing.

[38] Subsection 249(2)(a) of the Criminal Code provides:

Every one who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

[39] The available sentencing options include all of the sentencing options set by the Criminal Code.

[40] Generally speaking, the sentencing range for dangerous driving is broad. The sentences are motivated by the varied circumstances in which the offence can arise. Many of the cases provided to me or referred to by counsel included the element of a death or bodily harm or street racing or police chases. Most of the cases provided to me by counsel involved circumstances of single occurrences of dangerous conduct and/or conduct with different levels of moral culpability than the case at bar.

Positions of Crown and Defence:

[41] The Crown seeks a sentence of 12 months imprisonment followed by a probation order containing terms to address the circumstances of the offence, including but not limited to a term prohibiting Mr. Fummerton from employing or managing or supervising commercial motor vehicle drivers. The Crown submitted that incarceration was the fit and just sentence in the circumstances of this particular case, on the basis of the principles of general deterrence, specific deterrence and denunciation.

[42] Defence urged the court to choose an option that would result in no criminal record for Mr. Fummerton and to treat Mr. Fummerton as a first offender, based on his record and the pre-sentence report filed. Defence suggested that it would be appropriate to conditionally discharge Mr. Fummerton and place him on a probation order which could include the following: (a) that for two years someone other than Mr. Fummerton would deal with the management of the Highway Traffic Act regulations; (b) that Mr. Fummerton ensure that there are no single driver trips for this delivery run; and (c) that log books and explanations can be provided to the probation officer to ensure that regulations are being followed.

[43] Defence strongly submitted that this was not a case for incarceration, and that if the court did not find a conditional discharge as a just and fit sentence, that there were many other sentencing options other than incarceration that would be and ought to be considered just and fit. Defence submitted that deterrence and denunciation could be met by many other sentencing options. Finally, if the court accepted the Crown’s view that incarceration was a just and fit sentence, defence submitted that the court ought to impose a conditional sentence.

Law and Analysis

The Offence

[44] The dangerous driving sections of the Criminal Code exist to combat the operation of motorized vehicles in a manner that is dangerous to the public. The section focuses on the danger to the public; the nature of the place where the operation took place; the condition of the place where the operation took place; the use of the place where the operation took place and the amount of traffic that is or might reasonably be expected to be present; and finally, if the conduct engaged in reflects a marked departure from the expected standard of care of a prudent driver in the circumstances: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Hundal, 1993 SCC 120, [1993] 1 S.C.R. 867.

Manner of Driving and Risk of Harm

[45] A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving it must be borne in mind that driving is an inherently dangerous activity: R. v. Roy, 2012 SCC 26, [2012] SCJ. No. 26.

[46] The risk of damage or injury that can flow from the dangerous operation of a large conveyance, like the commercial motor vehicle combinations operated in this case, are obvious. Significant damage or injury could occur, including death.

[47] In addition to the consideration of the size of these vehicles, transports carry commodities, including but not limited to dangerous and hazardous goods. This is an added element of risk, an added element of potential gravity.

[48] Awareness of these risks does not apply solely to the driver. It applies equally to operators and/or those who manage commercial vehicles.

Circumstances of the Offender and Mitigating Factors

[49] A pre-sentence report was filed.

[50] Mr. Fummerton is 61 years old. Mr. Fummerton was born in Terrace Bay, Ontario and lived there most of his life with a fairly average upbringing. Mr. Fummerton dropped out of school during grade ten. However, after his early departure from high school, Mr. Fummerton has been steadily employed, with no lapses in employment in almost 44 years.

[51] Mr. Fummerton relocated to Thunder Bay in 1999 and began working as a short-haul and long-haul delivery driver, eventually taking ownership of ABI in 2010.

[52] Currently, Mr. Fummerton continues to be gainfully employed as a small business owner employing 4-5 drivers. The pre-sentence report suggested that should he be sentenced to a period of incarceration, Mr. Fummerton would be unable to maintain the operation of his business.

[53] Mr. Fummerton appears to have a stable home environment and good family support. Mr. Fummerton has two adult children, and a common law spouse. His son and daughter attended the sentencing submissions. Mr. Fummerton’s parents, two brothers and sister are deceased.

[54] Mr. Fummerton is reported as being well known in the community and liked by many. His good character attributes were stated repeatedly by all of the personal collaterals named in the pre-sentence report. Family, friends and colleagues reported Mr. Fummerton as having always worked very hard; as sincere, trustworthy and highly dependable; and as a good provider.

[55] Mr. Fummerton has been an active member of the community who has done charitable work. He has had active and long-term involvement with youth in his community as a minor hockey coach and referee for nearly 42 years. His efforts were described as ardent dedication, often attending out of town weekend tournaments without taking any monetary compensation for travelling. Mr. Fummerton was also a volunteer firefighter with the Schreiber Fire department for more than 10 years.

[56] Mr. Fummerton had a problem with alcohol in early adulthood. However he quit drinking on his own accord and has been sober since 1999. He otherwise has no health concerns.

[57] Mr. Fummerton reports these last three years as having been extremely stressful and emotionally taxing. He has felt overwhelmed and extremely stressed for the better part of this period.

[58] The author of the pre-sentence report expressed that it would be in the best interest of Mr. Fummerton to allow him to continue being a productive and contributing member of society, provided he accepts responsibility for his actions.

[59] While not charged with Mr. Dennie’s death, Mr. Fummerton expressed deep remorse for the loss of life and harm done to his family.

[60] In respect of his admission that employees were permitted to falsify information in their log books, Mr. Fummerton was reported as stating he should have been more diligent with record keeping and documentation.

[61] Mr. Fummerton acknowledged the gravity of the situation and the profound impact.

[62] Mr. Fummerton entered a plea of guilty to the offence of being a party to dangerous driving soon after the proposal was made for the plea.

[63] Mr. Fummerton has a criminal record, namely two prior criminal convictions (assault and obstruct a peace officer). These convictions are very dated, 40 years old in fact, and unrelated. He received 30 days custody for the two offences. He has had no involvement with the criminal justice system since that time. Given all of this, I am of the view that he can be viewed as a first offender.

Circumstances of the Offence

Mr. Fummerton’s Position

[64] Mr. Fummerton as owner and operator of ABI was personally in the position to and had a legal duty to direct how his employees performed. Section 217.1 of the Criminal Code provides that:

Every one 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.

[65] In addition, specifically in the trucking industry, 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, subsection 28(1). Section 190(6) of the Highway Traffic Act 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.

[66] The onus is high. This is reflected in the Highway Traffic Act, as an operator is both directly and indirectly responsible for the operation of a commercial motor vehicle including the conduct of the driver: section 16(1) Highway Traffic Act.

[67] Subsection 28(1) of O. Reg 555/06 states: an operator shall monitor each driver’s compliance with this Regulation.

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

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

[70] 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.

[71] These outlined regulation requirements, in my view, clearly place a high degree of responsibility on an operator and clearly reflect the purpose of the regulations, namely ensuring safety of the operator’s drivers and the public.

Commercial Motor Vehicle Background

[72] Mr. Fummerton is an experienced transport driver, short-haul and long-haul. To be a transport driver you undergo special training and have a special licence. The fact that Mr. Fummerton is an experienced transport driver is aggravating. Simply as a driver he has or ought to have knowledge of the hours of service regulation requirements and its purpose. Further, he is undoubtedly in a position of experience in understanding: how to complete log books and how to read them; that a driver is not permitted to maintain more than one daily log; and finally, that all logs must be submitted to the operator.

[73] Mr. Fummerton took over ABI approximately four years prior to the commission of this offence. He was not new to the business of operating a trucking business.

Employing Drivers and Aiding Drivers

[74] Mr. Fummerton knew he was employing drivers who were willing to breach the regulations; drivers who would willingly falsify log books with the sole purpose of concealing the practice of exceeding on duty/driving hour limitations under the provincial legislation and regulation. The evidence supports that the drivers performed these delivery runs with his permission and knowledge. The evidence supports that Mr. Fummerton provided the drivers with the tools and ability to engage in this practice. He provided two log books and repeatedly paid the drivers for making these single driver delivery runs.

Number of Employees Engaged in this Practice

[75] ABI is a small operation to monitor. It employs four to six drivers. From the evidence, the number of employees who engaged in this driving practice is three. On the facts of this case, there was a period of time that Schurr, Rutter and Tyska worked for Mr. Fummerton at the same time. In the context of six drivers, this amounts to 50% of his drivers prepared to engage in the single driver Purolator delivery run. In the context of four drivers, it is 75%. This is very concerning.

Frequency and Length of Time of the Conduct

[76] Rutter’s payroll records filed for the period December 21, 2013 to February 28, 2014 indicate that Rutter completed and was paid for these delivery runs thirteen times at $650 per trip. One was before, and eight were during the charge period. Four were after.

[77] Tyska’s payroll records for the period December 21, 2013 to February 12, 2014 indicate that Tyska completed and was paid for the single driver delivery runs fifteen times at $675 a trip; thirteen were during the charge period.

[78] I did not receive the details regarding the number of occasions Schurr may have completed and was paid for these single delivery runs. His statement as presented implies it was more than once. At the very least, he referred to one specific occasion during which time he was not able to complete the run due to fatigue and confusion. This one run had to have occurred between July 1, 2013 and November 16, 2013, which represents the time frame during which Schurr worked for ABI.

[79] On the evidence, the least number of times that Mr. Fummerton allowed this single driver delivery run to be completed, is twenty-nine. Of the twenty-nine, twenty-one occurred during the charge period. This is not an insignificant number.

[80] The evidence demonstrates a prolonged, persistent and frequent practice.

The Motor Vehicles Used

[81] From January 1, 2014 to February 13, 2014, Rutter and Tyska’s log books indicate that two different commercial motor vehicle combinations were being operated for this single driver delivery run. In particular, the logs reveal two different Ontario marked truck tractors being operated during this time frame, both in conjunction with a trailer for each trip and sometimes on the same days or at least one of the two days it took to make the trip. I was not provided with evidence of the gross registered weight or actual weight for the vehicles in question for any given trip, but I believe it is quite evident and reasonable to state that these combinations likely weighed tens of thousands of kilograms.

The Delivery Run

[82] The full delivery run Tyska was driving February 12, 2014 was approximately 2,800 km. Against the applicable regulations, this trip by the required contract timelines could not be legally completed within 48 hours by one single driver. ABI entered into the contract with Maritime Ontario knowing the particular specifications for this delivery run. The contract sets this out clearly. Again, Mr. Fummerton as an experienced trained transport driver prior to becoming the owner of ABI and entering into this contract would appreciate or ought to have appreciated this.

The Geographical Reach of the Delivery Run

[83] The geographical reach of the delivery run is from Thunder Bay, Ontario to Mississauga, Ontario. Each leg includes the Trans-Canada Hwy 17 and Highway 400. It is not an exaggeration to say that these highways are travelled often and by many members of the public. It was not disputed that the delivery run includes a stretch of Northern Ontario which draws additional concerns for alert safe driving, namely wildlife and inclement weather.

Speed

[84] Transports travel the highway portions of their routes at high rates of speed. In this particular case, on February 12, 2014, it is known that the speed limiter for Tyska’s transport was set at 104.8 kilometers per hour. It does not take great imagination to appreciate the potential grave ramifications of an accident involving a large conveyance travelling full throttle at speeds up to 105 km per hour.

Violations of the Regulations and HTA

[85] O. Reg. 555/06, is an hours of service regulation made under section 190 of the Highway Traffic Act. 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. The regulation is in place to ensure safety to drivers and the public.

[86] From February 9, 2014 to the day of the collision on February 13, 2014, the transport operated by Tyska never stopped for a period greater than 5.5 hours.

[87] In respect of the February 12, 2014 delivery run, Tyska was in violation of eight provisions of the regulations. ABI was also in violation of the regulations and the HTA. Mr. Brown pointed out at least three. The total is eleven violations for this one trip. This number is not insignificant.

[88] It is not unreasonable to infer that the other twenty trips during the charge period would have also been in violation of a number of sections of the regulation.

Economic Interests

[89] I find that Mr. Fummerton’s conduct placed his economic interest ahead of his duties, ahead of the safety of his drivers, and ahead of the safety of the public. The evidence supports that twenty-one trips over forty-three days, for only these two transports (of the four to six transports he was running), after payment of the drivers, would have yielded thousands of dollars before any lease and maintenance expenses.

Conduct

[90] Mr. Fummerton’s conduct was unquestionably a substantial and marked departure from the conduct expected of a reasonably prudent commercial vehicle owner operator. Mr. Fummerton intentionally facilitated and encouraged not one, but at least three drivers to engage in this dangerous practice. He did it over a period of time. He did it at a disturbing frequency. He allowed it to happen with not one but two different transports on highly travelled highways. He did it in the name of economic gain. He is an experienced driver as well as an owner operator and knew better. I say “knew”, because he is an experienced driver, and he physically provided two log books. The purpose of carrying and completing two log books is to conceal the driver’s operation of the vehicle. Although he was provided with accolades by family and others in the pre-sentence report, there was clearly a different side to Mr. Fummerton when it came to operating ABI that they were not aware of.

[91] Again, the context of the conduct extends beyond permitting drivers to drive over hours. It extends to encouragement and facilitation to permit drivers to physically falsify logbooks, to knowingly conceal the true operation of the vehicle from MTO and/or police officers who may conduct an inspection to ensure compliance, and safety of the public.

Commercial Motor Vehicle Operator Record and Mr. Fummerton’s Driving Record

Admissibility of CVORs and Abstracts

[92] I am of the view that in this type of context, a CVOR has relevance and may be material to sentencing. It is quite evident from looking at the records filed, that generally speaking, a CVOR abstract contains a plethora of information, including but not limited to overall safety violation rate, carrier safety rating, number of kilometres travelled during the monitored periods, number of commercial vehicles being operated, collisions, inspections (and the results of those inspections), out-of-service rates (vehicle and driver), commodities being hauled, including dangerous goods, number of drivers, facility audits completed (and the results), and interviews and interventions taken with the operator in the last 24 months, such as warning letters.

[93] The information contained in a CVOR abstract is not just of beneficial use to a Crown. It could be equally as important in sentencing for defence in terms of rehabilitation (for example evidence of a Ministry sanctioned increase in safety rating post-offence) and gaps between infractions.

The Specific Commercial Vehicle Operator Registration Records and Abstracts Filed

[94] The registration record indicates that currently Mr. Fummerton is the owner or president of the following active status commercial motor vehicle operators: Ian R. Fummerton as an individual, having CVOR #073-026-769; I.R.F. Enterprises Inc. having CVOR #181-158-051 (effective October 16, 2014), ABI having CVOR #170-428-768 (effective August 4, 2011), and that he is affiliated in some fashion with active status commercial motor vehicle operator Ian Fummerton Fuels Inc. having CVOR #100-749-510. I am satisfied that this is relevant admissible information for purposes of sentencing in that it speaks to Mr. Fummerton’s current ownership interests in commercial vehicle operations.

[95] In respect of abstracts, CVOR abstracts for ABI and I.R.F. Enterprises Inc. were filed. In this case, the Crown sought to rely solely on particular conviction entries related to compliance with regulations and hours of service, and to have them viewed as an aggravating factor, or in the context of specific deterrence, rehabilitation, conditional sentence, or at the very least rebuttal against the suggestion that Mr. Fummerton has been and continues to be a model citizen.

[96] I am of the view that in this particular case, I cannot classify any of the CVOR abstracts as an aggravating factor. I am led to this conclusion for the following reasons:

a) Most of the pre-offence convictions reflect absolute and strict liability offences, prompted primarily by actions of drivers and not Mr. Fummerton personally. The abstracts do not prove beyond a reasonable doubt that Mr. Fummerton permitted these driver infractions at the time they were undertaken. b) as for pre-offence carrier charges, to the date of the accident, the carrier was directly charged only once (over the reported period of November 24, 2011 to February 13, 2014), namely on May 8, 2013. I acknowledge that one may reasonably think that this may be in respect of hours of service regulations from an event involving a driver who was charged that same day with driving after 16 hours on duty. However, the charge of permit operation of commercial motor vehicle contrary to the regulations does not set out the particular regulation for which the company permitted non-compliance. It could well have been some other regulation, there are many; c) The convictions have not been explained and in particular the involvement of Mr. Fummerton, if any, with them; and d) I am without evidence establishing that no due diligence was engaged in by Mr. Fummerton which may affect how these convictions ought to be viewed by a court.

[97] In addition, for the same reasons, I find I cannot and do not draw an inference that Mr. Fummerton viewed incurring provincial offence infractions as the cost of doing business. Further explanation or supporting documentation would be required.

[98] As background, regarding ABI and I.R.F., I find it is fair to say that Mr. Fummerton according to the registration records is an operator and as such he is directly and indirectly responsible for the operations of the companies. As background, I find it is fair to say that these CVORs indicate that there are safety issues within the companies, and that operations are certainly were not being performed as carefully as one would want to see.

[99] At the end of the day, without having any regard to these abstracts, the evidence demonstrates that Mr. Fummerton was not respecting the law and his duties, and his conduct in terms of operating ABI was not pristine.

Personal Driving Record

[100] Mr. Fummerton’s certified personal driving record for the time frame August 8, 1983 to November 15, 2015 was filed. The record reflects 33 infractions, including approximately: 22 speeding infractions; an overweight vehicle infractions (commercial motor vehicle); a seatbelt infraction; four collisions; a driving left of centre infraction; a radar warning device offence; a drive commercial motor vehicle contrary to the regulations offence in 2008; a commercial vehicle push rod stroke infraction in 2012; and a following too close infraction in 2015, which is the last entry. His total demerit points stand at 4.

[101] I agree with defence that Mr. Fummerton’s personal driving is not in issue in this case. Accordingly, this driving record ought not to be considered an aggravating factor from that perspective.

[102] This information however is background information concerning Mr. Fummerton. As with the CVOR, it is fair to say that this record demonstrates that Mr. Fummerton was not as careful with adhering to the rules of the road as one would like.

[103] Again, at the end of the day, without having any regard to this record, the evidence demonstrates that Mr. Fummerton was not respecting the law persistently over a period of time, and his conduct in operating ABI was not exemplary.

Victim Impact

[104] There were two victim impact statements filed without objection, one prepared by Mr. Dennie’s wife and one by his mother. Both statements were very moving.

[105] In this case, specifically with this consideration, I again acknowledge that Mr. Fummerton has not been found guilty of an offence causing Mr. Dennie’s death. Further, at this time, the charge against the driver Tyska is still pending and there has been no finding made as to the cause of the accident.

[106] That being said, I wish to state clearly to the family that these two considerations should not be interpreted in any way minimizing your profound sense of loss arising from Mr. Dennie’s death. It is evident that Mr. Dennie was a loving husband, father, son, friend, respected member of the community, respected member of the Ontario Provincial Police, and that he is and will continue to be greatly missed by many.

Principles and Issues

[107] It has been written many times that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the result, the sentence imposed must respect the fundamental principle of proportionality. This has long been a central tenet of the sentencing process: section 718.1 of the Criminal Code, R. v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.), at paras. 40-41; R. v. Ipeelee (2012) 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.) at paras. 37-39.

[108] The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence: R. v. Hamilton, 2004 ONCA 5549, para 90.

[109] The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime: Doherty J.A., R. v. Hamilton, 2004 ONCA 5549, para 91.

[110] In R. v. Priest (1996), 1996 ONCA 1381, 30 O.R. (3d) 538, 110 C.C.C. (3d) 289 (C.A.) at pp. 546-47 O.R., pp. 297-98 C.C.C., Rosenberg J.A. described the proportionality requirement in this way:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[111] In some circumstances, one side of the proportionality inquiry will figure more prominently in the ultimate disposition than the other: R. v. Hamilton, 2004 ONCA 5549, para 94.

[112] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered. Parity, totality, and restraint are also principles which must be engaged when determining the appropriate sentence. Subsections 718.2 (b),(d) and (e) of the Criminal Code provide respectively: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[113] The fundamental principle of sentencing is intimately tied to the fundamental purpose of sentencing, namely, respect for the law and the maintenance of a just, peaceful and safe society through the imposition of just sanctions. These sanctions should reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders from society when necessary, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community: Section 718 of the Criminal Code; R. v. Ipeelee (2012) 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.) at paras. 37-39.

[114] The relevance and relative importance of each of the objectives identified in s. 718 will vary according to the nature of the offence and the circumstances of the offender: R. v. Lyons, 1987 SCC 25, [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1, at p. 329 S.C.R.; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, 148 C.C.C. (3d) 1, at pp. 116-18 S.C.R., p. 23 C.C.C.: R. v. Hamilton, 2004 ONCA 5549, para 102.

[115] The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender: R. v. Currie, 1997 SCC 347, [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at pp. 278-80 S.C.R., p. 219 C.C.C.; R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, at para. 80 S.C.R.; R. v. Proulx, supra, at pp. 105-08 S.C.R., pp. 485-86 C.C.C.; R. v. Borde (2003), 2003 ONCA 4187, 63 O.R. (3d) 417, 172 C.C.C. (3d) 225 (C.A.) at pp. 429-30 O.R., p. 238 C.C.C., R. v. Ipeelee (2012), 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.) at paras. 37-39.

[116] Doherty J.A., in R. v. Hamilton, 2004 ONCA 5549, at para 111 wrote:

Fixing the range of sentences for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the "objective seriousness" of the crime: R. v. H. (C.N.), supra, at pp. 574-75 O.R., p. 266 C.C.C. Once the range is identified, the sentencing judge must consider specific aggravating and mitigating [page 32] factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range.

[117] General deterrence is aimed at discouraging others from engaging in criminal conduct by sending a message to those who may be inclined to engage in similar conduct: R. v. P (B.W.) (2006), 2006 SCC 27, 209 C.C.C. (3d) 97 (S.C.C.), at para. 2.

[118] In R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 (S.C.C.) Wagner J. stated at paragraph 73, that the objectives of deterrence and denunciation “are particularly relevant to offences that might be committed by ordinarily law abiding people”.

[119] In R. v. Proulx, supra, at paragraph 129, the court wrote:

… dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), 1985 ONCA 115, 22 C.C.C. (3d) 145 (Ont. C.A.) at p. 150; R. v. Biancofiore (1997), 1997 ONCA 3420, 119 C.C.C. (3d) 344 (Ont. C.A.) at paras. 18-24; R. v. Blakeley (1998), 1998 ONCA 6218, 40 O.R. (3d) 541 (Ont. C.A.) at pp. 542-43.

[120] Specific deterrence is aimed at the offender himself to prevent the offender from repeating the offence.

[121] Denunciation is aimed at communicating society’s condemnation of the offender’s conduct. It is well established that denunciation focuses on the conduct assessed on the particular facts of the case, and preservation of the continued confidence of the public in the administration of the justice system by the imposition of sentences which are proportionate to society’s reasonable and fair-minded condemnation of the conduct: R. v. Latimer (2001) 2001 SCC 1, 1 S.C.R. 3, at para. 86.

[122] Rehabilitation and promoting a sense of responsibility in an offender have restorative objectives aimed at promoting correction and re-integration, and countering recidivism.

[123] If the appropriate range of sentence includes potential imprisonment, and if the trial judge, in determining where within that range the offender should be placed, excludes the need for a sentence of two years or more, the trial judge must then consider whether to impose a conditional sentence: R. v. Proulx, supra, at pp. 97-99 S.C.R., p. 479 C.C.C. If the prerequisites of s. 742.1 of the Criminal Code are met, the judge must decide whether a conditional sentence is consistent with the statutory scheme of sentencing described in ss. 718 to 718.2 of the Criminal Code: R. v. Proulx, supra, at pp. 97-99 S.C.R., p. 479 C.C.C.: R. v. Hamilton, 2004 ONCA 5549, para 112.

Fit Sentence

[124] What is fit for this offence and this offender in the circumstances under which this offence was committed?

[125] I have considered all of the sentencing options as requested as submitted by the defence.

[126] I reject discharge as fit sentence. The need for deterrence and denunciation in this case is inconsistent with discharge. The circumstances of the offence are serious and aggravating. While it may be in the best interests of Mr. Fummerton, discharge in this case would not be in the public interest. The registration of a conviction in my view would not be disproportionate given the facts of this case.

[127] I reject a fine alone or combined with probation, and the suspension of sentence as not being appropriate in this case for the same reasons.

[128] That leaves incarceration.

[129] I reject a penitentiary term as an appropriate sentence since death and/or serious bodily harm are not factors in this sentencing.

[130] I find a reformatory term to be an appropriate sentence in this case.

[131] Absent mitigating factors, I find the submission of the Crown of 12 months incarceration to be reasonable as to length of sentence.

[132] I must therefore consider whether conditional sentence would be appropriate in the circumstances of this case.

[133] I am well aware that the stigma of a conditional sentence with house arrest and other strict terms should not be underestimated. Moreover, living in a community under strict conditions where one’s fellow citizens are aware of an offender’s criminal misconduct can provide ample denunciation in many cases while permitting the offender to maintain his or her livelihood. I acknowledge and agree that a conditional sentence can achieve rehabilitation and reparation, and can promote a sense of responsibility in an offender.

[134] In this case, in terms of safety of the community, with appropriate terms attached, the risk of recidivism may be minimal to none. Mr. Fummerton is associated with four commercial vehicle operations, two of which clearly are active. It has been submitted on Mr. Fummerton’s behalf that he has changed the manner in which this delivery run is performed. Now, Mr. Fummerton proposes a plan of supervision of his management of his drivers, and is open to terms that would help ensure that this practice will never recur. He is not opposed to community service. Mr. Fummerton has expressed remorse and understanding for the gravity of the offence. There are programs the court could require Mr. Fummerton to attend to educate himself. Finally, there are other terms the court can impose to address supervision, promote rehabilitation and promote sense of responsibility going forward.

[135] As to gravity of re-offence, the risk of harm in the event of re-offence cannot be overstated, and it could be extremely serious if Mr. Fummerton were to re-offend in this way.

[136] That being said, it appears to me that the prerequisites of conditional sentence can be met in this case.

[137] I still must consider whether a conditional sentence is consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[138] I find that in this case, the need for deterrence and denunciation figure most prominently and remove conditional sentence as a fit sentence. In my view, general deterrence and denunciation are pressing, and require incarceration.

[139] While valid considerations, the concerns relating to the effect of a conviction and the impact of imprisonment on Mr. Fummerton and the operation of his business in my respectful view, do not outweigh these fundamental principles in this particular fact scenario.

[140] The gravity of the offence is serious.

[141] Driving is inherently dangerous activity. There are many users of the roads and highways who are vulnerable to large commercial motor vehicles. The legislation and regulations reflect an aim to make the roads safe for all and to assure that drivers will abide by the rules and the operators in charge will ensure their compliance.

[142] While not agreeing that incarceration would be a fit sentence by any means, the defence in this case acknowledged that they would be blind not to recognize that there are many infractions committed by and many public complaints regarding commercial motor vehicles, and that the specific purpose of the legislation is to attempt to minimize the harm committed by commercial motor vehicles.

[143] The circumstances are aggravating and the offence serious. While he has only been charged as party, Mr. Fummerton’s degree of responsibility and culpability was high. The risk of harm created by his conduct in encouraging and condoning such dangerous practices on the part of his drivers cannot be ignored.

[144] It is necessary to make it clear to all persons in Mr. Fummerton’s position that they have a serious obligation to put the safety of their drivers and the public before their economic interests. It needs to be made clear to persons such as Mr. Fummerton that calculated non-compliance that can lead to terrible consequences for innocent users of the highways will not be tolerated.

[145] In all of the circumstances of this case, taking all of the above factors into account, the least sentence that I find to be appropriate to emphasize the overriding principles of deterrence and denunciation is one of six months incarceration.

SENTENCE

[146] Mr. Fummerton, will you please stand.

[147] On the sole count on the indictment of being a party to dangerous driving, I sentence you to six months incarceration.

[148] Following that period of incarceration, I am placing you on a period of probation for 18 months.

[149] In respect of the terms that I am putting into place, I comment as follows. A probation officer is not an MTO officer who can determine if the regulations are being met. MTO officers receive special training to understand log books and hours of work regulations, especially sleeper-berth and other exceptions to hours of service. The suggestion by counsel to have someone else in his businesses to manage the hours of service regulations is a good idea, but this plan’s effectiveness will be subject to that individual’s qualifications. The fact remains that the individual will be an employee of Mr. Fummerton just like his drivers and this must be considered. I am of the view that education is important in this case. Lastly, Mr. Fummerton is associated with four active commercial vehicle operator’s registrations.

[150] Accordingly the terms of the probation order shall be as follows:

a) You shall keep the peace and be of good behaviour. b) You shall appear before the court when required to do so by the court. c) You shall notify your probation officer in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation. d) In respect of any and all actively registered and operating commercial vehicle operations in which you have an interest and/or are operated by you, you shall:

1. Through a recognized accredited trucking association approved by the Ministry of Transportation of Ontario, complete a course which provides a full understanding of how to comply with the Ontario Hours of Service regulations, and you shall provide proof of completion of the course to your probation officer;
2. Obtain an up-to-date copy of a commercial vehicle operator’s safety manual from the Ministry of Transportation and keep it in your office;
3. Hire and maintain at least one qualified operational staff member, preferably a qualified safety manager, who shall be responsible for overseeing and supervising compliance by all drivers and the active companies with all regulations for the duration of the order’s operation;
4. Develop and implement written policies and procedures to ensure compliance by drivers with the regulations and distribute a copy to all of your existing and new drivers and to provide a copy to the probation officer as well;
5. For the duration of the order’s operation, use an hours of service tracking system, whereby every driver shall call in on a daily basis, to report his or her accumulated on-duty hours for the previous day. You shall record same to enable you to monitor compliance and to calculate and keep track of the driver’s available hours remaining in his or her on-duty hours or set cycle;
6. Arrange for and provide regular effective training for operational staff responsible for driver supervision and dispatch, and effective training for existing and any new drivers to ensure that all of your personnel has a knowledge and understanding of the regulations, and are aware of the policies, procedures;
7. Every three months, order a CVOR abstract, review it and monitor it with your operational staff member; and
8. After six months from the date of the order, complete and submit to the Facility Audit Administrator of the Carrier Enforcement Program Office of the Ministry of Transportation of Ontario a voluntary request for a facility audit and arrange for one to be completed and provide proof of same to your probation order.

[151] Further, a victim fine surcharge is hereby imposed which you shall pay in the amount of $200. Nine months will be provided for payment.

[152] Lastly, in the particular circumstances of this case, Crown and defence agree that on the basis that you did not commit this offence while driving or having the care, charge or control of a motor vehicle there should be no order made pursuant to section 259 of the Criminal Code. I agree and I make no such order.

Rasaiah J. Released: June 26, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – IAN R. FUMMERTON REASONS FOR SENTENCE Rasaiah J. Released: June 26, 2017