CITATION: R. v. Tyska, 2017 ONSC 6736
COURT FILE NO.: 7615/15
DATE: 2017-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Karen Pritchard and Marie-Eve Talbot, for the Crown
- and -
GARY W. TYSKA
Kate D. Brindley, for the Accused
Accused
HEARD: September 5, 6, 7, 8, 11, 12, 13, 14 and 18, 2016
GAREAU J.
REASONS FOR JUDGMENT
THE CHARGES
[1] The trial of this matter proceeded on the basis of the accused being charged with a single count of criminal negligence causing death. The exact charge is set out in an indictment dated September 29, 2015, which reads as follows:
Gary W. Tyska stands charged that he on or between the 11th day of February 2013 and the 13th day of February 2014 at the Town of Blind River, in the said Region, did by criminal negligence in the operation of a commercial motor vehicle on Highway 17 and other highways cause the death of David Dennie, contrary to section 220(b) of the Criminal Code of Canada.
[2] On September 5, 2017 the accused entered a plea of not guilty to the aforementioned charge.
[3] Well into the trial, while still leading its case, the Crown indicated that it would be seeking a conviction on the charge of dangerous driving simpliciter, contrary to s. 249(1) of the Criminal Code of Canada. This offence is a lesser and included offence. The Crown indicated that in calling further evidence to support a conviction of dangerous driving, they did not intend to tender evidence as to how the accident occurred or how the death of David Dennie related to accident.
[4] The trial proceeded for nine days and concluded on September 18, 2017. The court reserved its decision and the matter was adjourned to December 14, 2017 for a decision.
FACTUAL BACKGROUND
[5] An agreed statement of facts was entered as Exhibit 1. This agreed statement of facts was entered in a binder which contained 11 separate tabs, many of which were documents which were referred to in some detail and explained through witnesses during the course of the trial. At Tab 1 of Exhibit 1 is the narrative of the agreed statement of facts, which reads as follows:
Gary Tyska performed services of long haul truck driving for ABI Trucking Inc. ABI Trucking Inc. was subcontracted by Maritime Ontario Freight Ltd. to complete a Purolator run between Thunder Bay and a number of Purolator hubs in Toronto. The mileage between Thunder Bay and the Purolator hubs in Toronto is approximately 1,377 km. The contract with Purolator imposed the following time constraints:
Rexdale Hub – located at 62 Vulcan Street, Toronto ON
− Drivers had to leave Thunder Bay no earlier than 10 p.m. and arrive at the Rexdale hub no later than 5 p.m. the following day
− In return from the Rexdale Hub, drivers had to depart no earlier than 11:30 p.m. and arrive in Thunder Bay no later than 6:30 p.m. the following day.
Metro West Hub – located at 800 Kipling Avenue, Toronto ON
− Drivers to pick up their load at the hub no earlier than 4:30 a.m. and arrive in Thunder Bay no later than 7:30 p.m. the following day. (Purolator Agreement amendment 2011 Schedule A)
Gary Tyska operated under this agreement as a solo driver of a commercial motor vehicle 11-13 February 2014. On this run, Tyska used two driver’s daily log books – one recording the trip from Thunder Bay to Sudbury, the other recording the trip from Sudbury to Toronto. From February 11 to February 13th Mr. Tyska drove his commercial motor vehicle in excess of the commercial driving regulations and used dual log books for this purpose.
On Tuesday February 11, 2014 Tyska was the solo operator of the commercial motor vehicle, AB106 Western Star, licence plate 121 2PM. (Log Book) Tyska completed a circle check of his commercial motor vehicle and departed the Purolator Hub in Thunder Bay at 10:00 p.m. (ECM data page 190)
Mr. Tyska left Thunder Bay hauling trailer 3214048, licence plate K6634. According to corporate credit card records, Tyska stopped for fuel at the Husky Travel Centre in Sault Ste. Marie, ON at 5:19 a.m. EST (3:19 MST). Tyska arrived at Purolator Depot at 62 Vulcan Street in Toronto, Ontario (Rexdale Hub) at 4:38 p.m. and deposited trailer 3214048. (Inbound Log) Tyska stopped for gas at the Dixie Road Husky Travel Centre in Mississauga, ON at 5:14 p.m. EST (3:14 p.m. MST). (Husky receipt) Tyska attended to the Purolator Depot at 800 Kipling Avenue, Toronto (Metro West Hub) and picked up a new trailer, 3214088, licence number L82804 leaving dock at 10:35 p.m. and actually departing at 10:54 p.m. (Outbound Log, Vehicle Exit Authorization, Bill of Lading) Tyska then commenced his return drive to Thunder Bay.
On February 13, 2014, at approximately 6:50 a.m. the commercial motor vehicle, Western Star AV106, licence plate 121 2PM, hauling trailer 3214088, operated by Mr. Tyska was involved in a collision with a Jeep on Highway 17 East situated east of Blind River, ON. The collision resulted in the death of the driver of the Jeep, David Dennie. Mr. Tyska’s commercial motor vehicle was subsequently removed from the scene at 6:48 p.m. and taken to Pineridge tow yard in Thessalon. The continuity of Mr. Tyska’s vehicle and the contents is not in issue.
THE LAW
[6] Section 249(1)(a) of the Criminal Code of Canada reads as follows:
249(1) – Every one commits an offence who operates
(a) 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 at the time or might reasonably be expected to be at that place.
[7] The court must bear in mind that although there may be civil consequences from the events that occurred on February 13, 2014, Gary Tyska is charged with a criminal offence and that a criminal standard must be applied, which includes the presumption of innocence and the requirement of proof of the essential elements of the offence of dangerous driving beyond a reasonable doubt.
[8] The distinction between the civil and criminal tests is set out clearly in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, where, at paras. 35 and 36, the Supreme Court of Canada makes the following comments:
[35] In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.
[36] For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances. As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out. The Court, however, added a second important qualification to the objective test – the allowance for exculpatory defences. [Emphasis in original.]
[9] As set out in Beatty, the offence of dangerous driving applies a modified objective test that requires the Crown to establish a marked departure from the norm and the requisite mental state. What is required in law to establish the actus reus for the offence of dangerous driving was reiterated in para. 43 of Beatty:
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “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”.
[10] As indicated in Beatty, the Crown must prove beyond a reasonable doubt the actus reus element of the offence of dangerous driving and then, the mens rea element of the offence if the actus reus of the offence is proven. Where the actus reus of the offence of dangerous driving has not been proven, the court does not have to consider the mens rea element of the offence.
[11] As to the mens rea element of the offence of dangerous driving, Charron J.A. made the following comments at para. 43 in Beatty:
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
[12] Chief Justice McLachlin of the Supreme Court of Canada wrote a concurring decision (supported by Binnie and LeBel JJ.) in R. v. Beatty in which she makes the following comments at para. 67:
[67] I therefore conclude that the correct statement of the law is as follows:
The actus reus requires a marked departure from the normal manner of driving.
The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.
[13] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, the Supreme Court of Canada reiterated and reinforced the principles that the court set out in Beatty. In discussing the actus reus element of the offence of dangerous driving, Cromwell J. makes the following comments at paras. 34 and 35 of that decision:
[34] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequences. There must be a meaningful inquiry into the manner of driving” (emphasis in original). 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, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
[35] To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving. [Emphasis added.]
[14] As to what is required for a conviction of dangerous driving, the Supreme Court of Canada provided a useful synopsis at para. 43 of R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, [1993] S.C.J. No. 29 (QL). Although Hundal was decided before the Roy and Beatty decisions, the summary provided in Hundal is still applicable and was not altered by subsequent decisions of the Supreme Court of Canada. It remains a useful synopsis of the law and reads as follows:
[43] It follows then that a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place”. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.
[15] The court must keep these principles in mind when assessing the evidence received at the trial of Mr. Tyska.
THE EVIDENCE
[16] The Crown called numerous witnesses who were able to describe the accident scene and the aftermath of the collision between the Tyska and Dennie vehicles. The collision occurred in the early morning of February 13, 2014. Melody Sayers testified that she had a clear recollection of the events of February 13, 2014. She was on her way to work, heading east on Highway 17 East. She stopped at the Tim Horton’s drive-thru in Blind River. In the parking lot she saw a green coloured jeep, which ended up being the Jeep driven by David Dennie. Ms. Sayers testified that, after stopping at Tim Horton’s, she stopped for gas in Blind River and saw the green Jeep go by the gas station. Ms. Sayers testified that, as she travelled outside of Blind River, she saw lights along the bush and saw the green Jeep on the side of the road upside down sitting on its roof. Ms. Sayers stopped and got out of her vehicle and assisted by holding a flashlight into the Jeep vehicle. Ms. Sayers described the operation of the green Jeep as it drove by her as “normal”. She described the highway as clear without snow on it. She described the visibility of the highway as “clear” although it was dark outside when she came upon the accident scene. Ms. Sayers indicated that she did not pay much attention to the transport on the side of the highway. Ms. Sayers testified that there were other vehicles that drove through the accident scene but did not stop although she was unsure about how many vehicles did this. Ms. Sayers described snow on the highway that “appeared out of place”, like someone had plowed it onto the highway. It was her belief that the snow was on the highway in this manner because of the collision.
[17] Dianne Pilon testified that she lived in Blind River but worked in Spragge, Ontario. Her usual route to work was to travel in an easterly direction along Highway 17 from Blind River to Spragge. Ms. Pilon testified that it was approximately 6:50 a.m. on February 13, 2014 when she passed the hospital at Blind River and was driving east to work. At that point it was still dark and Ms. Pilon noticed headlights coming toward her and then in toward the bush. As she got closer she observed a transport and trailer in the southbound ditch facing the tree line. Snow had crossed the highway and there was debris on the highway. Ms. Pilon testified that as she continued she saw a Jeep on its roof. She pulled her vehicle in behind a dairy transport that was parked. She saw a female she recognized as Melody Sayers who climbed into the back door of the Jeep and looked into the Jeep with a flashlight. It was the evidence of Dianne Pilon that she spoke to the driver of the transport trailer who was brushing his foot back and forth in the snow and indicated to her that he was looking for his glasses.
[18] Entered as Exhibit 8 is a Google map of the Trans-Canada Highway going from the Blind River District Health Centre in an easterly direction. Dianne Pilon marked with an “X” on this map where the collision site was and “Y” on the map where her vehicle was when she first saw the headlights coming toward her. Ms. Pilon described the morning as mild. The highway was wet but it was not snowing at the time. She described the highway as dark without lighting or lamps on the portion of the highway where the collision occurred. Ms. Pilon testified that at least one transport vehicle drove through the accident scene and did not stop while she was there. Ms. Pilon indicated the transport vehicle was going eastbound and she observed cars going through the scene travelling westbound, but no commercial vehicles travelling in that direction.
[19] Phillip Richard Bellerose is employed as a transport driver with Lock City Dairies in Sault Ste. Marie, Ontario. Mr. Bellerose testified that he was leaving Blind River just before 7:00 a.m. eastbound on Highway 17 when:
All of a sudden, I looked up and headlights were coming across into my lane and I swerved to avoid the collision and went around and as I was regaining control, I seen an SUV upside-down in the ditch on my right hand side and I pulled back over to my side and called 911 and started walking back.
(Transcript of September 5, 2017, Examination in-chief of Phillip Richard Bellerose)
[20] The call placed by Mr. Bellerose to 911 was at 6:48 a.m. according to his recollection of the phone log. Mr. Bellerose described “the transport coming into my lane” as a white 18-wheeler and indicated that he noticed a green and black Jeep upside down in the snowbank. The transport truck that Mr. Bellerose had to swerve to avoid ended up in the tree line, well off the road, according to the evidence of Mr. Bellerose.
[21] Phillip Bellerose described the conditions of the highway on the morning of February 13, 2014 as good with the highway being “damp and bare”. According to the evidence of Mr. Bellerose, it was not snowing at the time he encountered the accident scene. Mr. Bellerose described the lighting conditions as “dark” but with overall good visibility for driving. Mr. Bellerose recalls driving over some of the debris that was on the road from the accident.
[22] Mr. Bellerose indicated in his evidence that when he saw the other transport in his lane he did not slam on his brakes and he did not apply his brakes to avoid hitting the truck. In cross-examination Mr. Bellerose agreed with the suggestion that “there’s a difference in the way an 18-wheeler responds to braking at highway speeds compared to a regular truck”. Mr. Bellerose testified that his reaction to the transport in his lane was to swerve and that swerving was the preferred reaction rather than applying his brakes.
[23] Robert Alan Yates indicated in his evidence that he travels Highway 17 East from Iron Bridge to Elliot Lake for work. On the morning of February 13, 2014, Mr. Yates was just outside Blind River, just passing the Forest Glen subdivision, driving in an easterly direction. It was the evidence of Mr. Yates that shortly after 7:00 a.m. “I was outside of town heading east and oncoming truck was in my lane and I swerved to miss it and it continued down the highway.” Further on in his evidence, Mr. Yates provided this description of the near collision he was involved in:
I just put down my coffee and looked up and saw headlights and lots of chrome, swerved to miss it to the side of the highway and the truck went by and I pulled back out on the highway and continued on.
(Transcript of September 5, 2017, Examination in-chief of Robert Alan Yates)
[24] Mr. Yates described the commercial vehicle that he says was in the eastbound lane that he had to avoid as being white and “a long-nose truck, wasn’t a cab over, lots of chrome”. He indicated that the transport truck travelling west was completely in the eastbound lane in which he was travelling.
[25] After he arrived at work, Mr. Yates heard on the radio that the highway was closed. When he was returning home after work, he got to the accident scene between 4:30 p.m. and 5:00 p.m. that evening. A by-pass through the Forest Glen subdivision had to be taken as the highway was still closed. It was the evidence of Mr. Yates that he recognized the tractor trailer at the accident scene and that “it matched the same vehicle that I saw that morning”. In examination in-chief, Mr. Yates testified that he was “pretty confident” that it was the same vehicle. On Exhibit 7, which was a Google map of the Trans-Canada Highway outside Blind River, Ontario, Mr. Yates marked with an “X” where he says his near collision with the transport occurred and with a “Y” the location of the transport that he observed on his way home from work on February 13, 2014.
[26] In cross-examination, Mr. Yates indicated that he was not able to make out a licence plate or any names on the transport truck that almost collided with him, or to describe any distinctive symbols or company names on the transport truck. Mr. Yates indicated in his evidence that he saw none of this because he had just seconds to react when he saw the transport truck in his lane. After the near collision, Mr. Yates did not see any collisions behind him or hear anything that would indicate that there was a collision directly behind him.
[27] In cross-examination, Mr. Yates testified that he reported the incident of the near collision to the police on February 14, 2014, the day after the accident. By that time he was aware that there was a fatality. Mr. Yates indicted in cross-examination that, when he saw the tractor trailer on his trip back from work on February 13, 2013, it was on the side of the highway, not in the tree line or the tree covered portion of the highway. This was not consistent with the evidence of other witnesses who described the location of the transport at the accident scene.
[28] Robert Alan Yates was cross-examined about his level of certainty that the tractor trailer he saw on his way home on February 13, 2014 was the same tractor trailer he had the near collision with on the way to work during the morning of February 13, 2014. Particulars of the questions put to Mr. Yates by defence counsel and his responses are as follows:
Q. Mr. Yates, I’m going to suggested to you that you don’t know if the truck you encountered was the truck that was involved in the collision that you drove past later that night. That you don’t know that for sure. Do you agree or disagree with that?
A. I disagree with that.
Q. I’m going to suggest to you that you’re assuming it’s the same truck because of the similarity of the circumstances. Do you agree or disagree with that?
A. I disagree with that.
Q. Do you recall giving evidence at the preliminary hearing in September 2015?
A. Yes.
Q. And you recall being sked questions and giving some answers?
A. I do.
Q. So, I just handed you a copy of a transcript from the preliminary hearing and this is at page 49 – I’m going to draw your attention to approximately line 5 – I’m going to read to you what it says. “Q. And you are saying it was the same truck that you saw later. A. I’m assuming it would be as... Q. But you do not know. A. Well, the timing is correct, yeah. I didn’t see any other trucks until I got to Algoma Mills, which is about another 10 to 12 minutes down the road.” Are those the questions that you were asked and the answers that you gave?
A. Yes.
Q. And you were telling the truth at that time?
A. I was.
Q. Do you agree that you were making an assumption about whether it’s the same truck or not because of the similarity of the circumstances?
A. I’m pretty sure it was the same truck.
(Transcript of September 5, 2017, Cross-examination of Robert Alan Yates)
[29] Apart from Ms. Sayers, Ms. Pilon, Mr. Bellerose and Mr. Yates, the only other civilian witness who testified was Derrick Bates, who was the paramedic who treated David Dennie at the scene of the accident. Since the Crown is not seeking to prove the cause of death as it relates to the charge of dangerous driving, I do not intend to discuss the evidence of Mr. Bates.
[30] The lead officer at the scene of the collision on February 13, 2014 was Ontario Provincial Police Constable Chris Brown. Constable Brown is a qualified collision reconstructionist, although he did not provide expert evidence to the court as an accident reconstructionist. Constable Brown travelled from Sudbury to Blind River on February 13, 2014 and arrived at the accident scene at 10:15 a.m. He testified that the weather was overcast and that there was fresh snow on the roadway although it was not snowing when he arrived. Constable Brown described what he saw at the accident scene in a manner consistent with what other witnesses observed. The Chrysler Jeep vehicle was on its roof on the eastbound shoulder of the south side of the highway. In the south ditch there was a tractor trailer that was completely off the roadway in the tree line on that side of the road. Entered as Exhibit 4 is a Google map aerial photograph on which Constable Brown marked where the Jeep and the tractor trailer came to rest. Constable Brown walked through the accident scene simultaneously videotaping what he observed. The video taken by Constable Brown was watched by the court and a disc of the video was entered as Exhibit 5. It was very useful to watch the video to get a sense of the weather conditions, the state of the roadway and the location of the vehicles at the point where they came to rest.
[31] The video (Exhibit 5) reveals that the roadway was predominantly clear. There are snowbanks on each side of the roadway. The roadway was wet and the centre line in the roadway was clearly visible. There are three private driveways in the vicinity of the crash site: one driveway to the north, and two to the south. Entered as Exhibit 6 are still photos taken by Constable Brown. There were 87 photographs in total entered through Exhibit 6. These photographs provide a very informative and useful depiction of how the accident scene appeared from the various angles from which the pictures were taken. Perhaps the most telling photographs as to where the Jeep and the transport trailer came to rest after the accident is photograph 0001 of Exhibit 6A. This photograph was taken at approximately 10:54 a.m. on February 13, 2014 and was taken facing a westerly direction along Highway 17 East. I have attached a copy of this photograph as Appendix A to this judgment.
[32] Photograph 87 of Exhibit 6 shows damage to the front left corner and front left driver’s side of the tractor trailer unit, as does photograph 92. The damage to the Jeep is best depicted in the photographs taken at the Blind River Fire Hall, depicted in photographs 262 to 269 and the photographs taken at Jesse’s Towing Garage, photographs 282 to 302. These photographs depict extensive damage to the driver’s side of the Jeep. The front left corner of the driver’s side of the Jeep is extensively damaged. The front passenger side of the Jeep had little damage, as depicted in the photographs. In the front of the Jeep, the steering wheel air bag and the thoracic side air bag had been deployed.
[33] Although it is true that the accident scene itself had been disturbed, at least on the highway, by vehicles driving through the accident scene before Highway 17 was closed and traffic was diverted, this does not diminish what can be observed by the video entered as Exhibit 5 and the photographs, entered as Exhibit 6. These exhibits provide the court with very helpful assistance, especially with respect to where the vehicles came to rest after the collision and the location and extent of the damage to the Jeep, driven by David Dennie and the tractor trailer driven by Mr. Tyska.
[34] In cross-examination, Constable Brown indicated that he had no preconceived ideas about the accident and had not made any preliminary determination about how the accident occurred before arriving at the accident scene on February 13, 2014. After being on the accident scene and photographing the accident scene, Constable Brown indicated that it was a fair determination that the Jeep was travelling eastbound and that the trailer crossed into that lane. Constable Brown indicated that was a “fair determination” and would be “a determination I made that morning”. Although Constable Brown is a trained collision reconstructionist, it was decided that Constable Carscadden of the Ontario Provincial Police would do the accident reconstruction. Regrettably, the court did not have the benefit of Constable Carscadden’s evidence leaving the court with no expert opinion on how the Dennie and Tyska vehicles collided. Interestingly, the Ontario Provincial Police did not request an outside police force to do the accident reconstruction in this case given that David Dennie, who was driving the Jeep, was a police officer with the Ontario Provincial Police assigned to the Blind River, Ontario detachment.
[35] I found the evidence of Constable Brown most useful with respect to how the accident scene looked. Although Constables David Wilson, Paul Black and Christopher Pritchard arrived at the scene shortly after the accident occurred and well before Constable Brown arrived at the scene, their evidence had little to add to the evidence given by Constable Brown. The evidence of Constables Wilson, Black and Pritchard corroborated much of the evidence of Constable Brown as to road conditions, vehicle conditions and vehicle location. These officers described the roadway as wet but clear, with the centre line of the roadway being visible. The evidence of Constable Black was that the highway was straight and well maintained in the area that the collision occurred.
[36] Constable Terry Yeomans is a Constable with the Ontario Provincial Police who became involved in this matter as part of the investigation, well after the date of the collision. On February 21, 2014, he attended Pine Ridge Towing near Thessalon, Ontario to retrieve data from the commercial motor vehicle driven by the accused. Constable Yeomans conducted this data search pursuant to a search warrant.
[37] Constable Yeomans described the vehicle as a conventional tractor with three axles. The engine in the vehicle was a Detroit Diesel, a DD15 series, and it had an engine control module DEDEC6. Constable Yeomans testified that the engine is controlled by certain electronic components that monitor the performance of the vehicle and how it is operated. Constable Yeomans utilized a laptop computer to retrieve the data from the engine control modules within the tractor trailer.
[38] Constable Yoemans described the imaging process or the retrieval of data from the engine control modules in the commercial vehicle in the following way:
Imaging is an attempt to acquire the data without introducing further information or destroying any data. It is a process that we attempt to do with these – with acquiring data from commercial motor vehicles, but it is not the same as a passenger automobile. There are some inherent data that is written to the module when accessing the module itself.
[39] The data that Constable Yeomans retrieved from the modules was compiled into a bound exhibit containing nine separate tabs. This was entered as Exhibit 17. The data retrieved from the modules are in the written form of DDEC reports. Constable Yeomans indicated in his evidence that the whole premise behind DDEC reports is how the vehicle is being operated. The modules have the ability to monitor and record performance, engine performance, run times, stop and idle times and braking activity within the commercial vehicle. Essentially, these reports capture how the vehicle is being utilized.
[40] At Tab 2 of Exhibit 17 are DDEC reports related to daily engine usage. With respect to the daily engine usage report for February 13, 2014, it indicates a distance of travel of 433.24 kilometres, 178.86 litres of fuel used, and an average speed of 94.87 kilometres per hour travelled. The DDEC report also indicates a total drive time of 04:34, an idle time of 01:56, and an off time of 17:30. As to a breakdown of drive time on February 13, 2014, it appears that the entries run from midnight to 8:00 a.m., broken down as follows:
Total (hh:mm)
14:17
06:43
03:00
Hour (EST)
Drive (min)
Idle (min)
Off (min)
00:00-02:00 02:00-04:00 04:00-06:00 06:00-08:00
120 49 75 30
0 71 45 0
0 0 0 90
[41] As indicated by Constable Yeomans in his evidence, the vehicle has to be moving for the drive data to be recorded in that column. In idle time the vehicle is idling or travelling a speed less than two miles per hour. In off time, the key is off.
[42] That data for February 12, 2014 indicated a distance of 1245.95 kilometres was travelled at an average speed of 87.23 km/hour. As to total drive time for February 12, 2014, the vehicle was in drive mode for 14 hours, 17 minutes, idling for 6 hours, 43 minutes, and off for 3 hours. The specific breakdown for hours on February 12, 2014 is as follows:
Total (hh:mm)
14:17
06:43
03:00
Hour (EST)
Drive (min)
Idle (min)
Off (min)
00:00-02:00 02:00-04:00 04:00-06:00 06:00-08:00
98 120 97 103
22 0 23 17
0 0 0 0
08:00-10:00 10:00-12:00 12:00-14:00 14:00-16:00
121 73 36 51
0 47 84 29
-1 0 0 40
16:00-18:00 18:00-20:00 20:00-22:00 22:00-24:00
58 8 7 85
37 48 61 35
25 64 52 0
[43] The data for February 11, 2014 indicates a distance of 1600.01 kilometres were travelled at an average speed of 89.47 km/hour. As to total drive time for February 11, 2014, the vehicle was in drive mode for 17 hours, 53 minutes, and in idle mode for 6 hours and 7 minutes. The specific breakdown for hours on February 11, 2014 is as follows:
Total (hh:mm)
14:17
06:43
03:00
Hour (EST)
Drive (min)
Idle (min)
Off (min)
00:00-02:00 02:00-04:00 04:00-06:00 06:00-08:00
112 111 111 97
8 9 9 23
0 0 0 0
08:00-10:00 10:00-12:00 12:00-14:00 14:00-16:00
0 113 104 120
120 7 16 0
0 0 0 0
16:00-18:00 18:00-20:00 20:00-22:00 22:00-24:00
96 29 60 120
24 91 60 0
0 0 0 0
[44] The data retrieved by Constable Yeomans also included last stop and hard brake events for the commercial vehicle operated by Mr. Tyska. The last stop record from the DDEC report (Exhibit 17, Tab 7) was on February 13, 2014 at 6:29:51 AM-EST, at an odometer reading of 1,292,868 kilometres. In the last stop record the entry under the column “mode” is either a “no” or “yes” entry – simply indicating “no” for no brake application, and “yes” for brake application. This data indicates that no brakes were applied or throttle applied on the commercial vehicle immediately prior to the collision between the Tyska and Dennie vehicles.
[45] It was noted from the data retrieved by Constable Yeomans (Exhibit 17, Tab 9) that there were no mechanical difficulties found with the tractor trailer operated by Mr. Tyska either at the time of the collision or immediately prior to the collision.
[46] Constable Lorea MacIsaac is a 15-year veteran with the Ontario Provincial Police. He was engaged after the February 13, 2014 collision in drafting the material required for the search warrant authorization to examine the vehicles involved in the collision. Constable MacIsaac was the lead investigator in the investigation resulting in the charge of criminal negligence causing death being laid against Mr. Tyska.
[47] Constable MacIsaac testified that on April 10, 2014 he seized logbooks and a binder from the commercial vehicle involved in the accident on February 13, 2014. A binder was seized from the front driver’s seat of the vehicle. Contained within that binder was a logbook under the name of Mr. Tyska for the month of February 2014. These logbook entries were on pages that resembled yellow carbon paper. A reproduction of those logbook pages is found in Exhibit 1, Tab 4. Constable MacIsaac testified that there was a sleeping compartment in the tractor trailer that was in the rear of the commercial vehicle. He testified that in that rear sleeper area he found a black bag that contained clothes and a blanket. It was the evidence of Constable MacIsaac that underneath these items in the black bag was a second logbook. The entries in the second logbook did not match the entries in the first logbook. There were conflicts and contradictions in the entries in the logbooks. Entries from the second logbook are filed as Exhibit 1, Tab 5. This second logbook has Mr. Tyska off duty for a full 24 hours on February 11, 2014. This is contrary to the entry in the first logbook for February 11, 2014. The location where the vehicle was inspected was contradictory in the two logbooks seized. Logbook number one indicates that location to be Sudbury, Ontario. Logbook number two indicates that location to be Etobicoke, Ontario.
[48] It is worthwhile to note that in the agreed statement of facts (Exhibit 1, Tab 1), the accused acknowledges that on the trip from February 11 to 13, 2014, he used two driver’s daily logbooks – one recording the trip from Thunder Bay to Sudbury, the other recording the trip from Sudbury to Toronto. As indicated in the agreed statement of facts, “from February 11 to February 13, Mr. Tyska drove his commercial motor vehicle in excess of the commercial driving regulations and used dual logbooks for this purpose.”
[49] Documentation was seized from the head office of the Corporation that Mr. Tyska was driving for in Thunder Bay, Ontario, that is, ABI Trucking Inc. Included in the documentation seized were pay stubs and a summary of deductions for Mr. Tyska for the pay period February 14, 2014 which matches in gross pay a payroll record and indicates that on February 11, 2014, Mr. Tyska was paid for a run from Thunder Bay to Mississauga, and that on February 12, 2014, he was paid for a run from Mississauga to Thunder Bay (Exhibit 1, Tab 3). Other items were seized as well as part of Constable MacIsaac’s investigation, including Global Positioning System (GPS) data for the commercial vehicle, Purolator bills of lading, and gas station receipts.
[50] The court was assisted in understanding the logbook entries by the evidence of Alfred Brown. Currently, Mr. Brown is the Director of Vehicle Safety for the Province of Alberta. Prior to going to Alberta, Mr. Brown was employed for 27 years with the Ontario Ministry of Transportation. Mr. Brown was asked to become involved in this matter by the Ontario Provincial Police, who requested his review of the daily logs and an analysis and explanation of them.
[51] Mr. Brown identified the daily logs contained in Exhibit 1, Tabs 4 and 5 as the logs that were provided to him for review and analysis. As indicated by Mr. Brown in his evidence, the law requires that the driver of a commercial motor vehicle complete a daily log when he is driving a commercial motor vehicle on a highway. Mr. Brown testified that O. Reg. 555/06, the hours of service regulation made under the Highway Traffic Act, R.S.O. 1990, c. H-8, would prescribe what information has to be contained in the log, as well as how the log has to be maintained.
[52] Mr. Brown testified that the regulation requires that a log be made for a 24-hour period. The entries are made, typically, from midnight to midnight. Mr. Brown described the daily log as “basically a story of what the driver does for the day in 15 minute increments”. The odometer readings at the start of the day and at the end of the day are recorded in the logbook entry. The difference between the two odometer readings is, obviously, the distance driven during the course of the day. The daily log also sets out the principal place of business of the vehicle. In the log entry for February 11, 2014 (Exhibit 1, Tab 4), the principal place of business is identified as 522 Kingsway Avenue, Thunder Bay, Ontario with ABI Trucking listed as the carrier. The daily log also indicates particulars of the commercial vehicle, such as a licence plate number. Mr. Brown described the “graph grid” on the daily log as 15-minute increments which indicate various activities performed.
[53] The log book entry for February 11, 2014 (Exhibit 1, Tab 4) indicates that Mr. Tyska was off-duty in Thunder Bay, Ontario until 8:30 p.m. At 8:30 p.m., he went from off-duty to on-duty but not driving, and completed a 30-minute inspection before driving commenced at 9:00 p.m. for the rest of the day, for three hours, until midnight.
[54] Mr. Brown testified that the logbook entries have four different statuses available for the driver, set out as follows:
(1) Off-duty time other than time spent in a sleeper berth;
(2) Off-duty time spent in a sleeper berth;
(3) Driving time;
(4) On-duty time other than driving.
Mr. Brown indicated in his evidence that these four categories cover everything that a driver could possibly do during a 24-hour period. In order to be off-duty, a driver would be relieved of the responsibility of the vehicle and do what he wished, such as have lunch in a restaurant. If a driver is in a sleeper berth and off-duty, the driver would have to record it in item (2) set out above. As Mr. Brown indicated in his evidence, “in order for a driver to log off-duty time in a sleeper berth, he physically has to be in a sleeper berth”. The “driving time” entry represents “any time he’s sitting in the driver’s seat with his foot on the gas pedal and the steering wheel in his hands driving a commercial motor vehicle on a highway”. The fourth entry above, “on-duty time other than driving”, represents any time the driver is performing an activity on behalf of the carrier or operator, such as loading the vehicle or inspecting the vehicle or putting fuel into the vehicle. At the end of the day, the driver has to total the hours in each of the four aforementioned duty statuses and the total must add up to 24 hours.
[55] The logbook entry for February 12, 2014 (Exhibit 1, Tab 4) was commented on by Mr. Brown. Mr. Brown’s evidence with respect to the logbook entry for February 12, 2014 is as follows:
A. So, it’s the same company, the same driver name, the starting odometer, ending odometer, the driver indicated that he drove 770 kilometers that day. It’s for February 12th and he’s operating on a 7-day cycle. So, the duty status, the driver’s indicating that he was driving from Jackfish, Ontario and then at 2:30 in the morning, he stopped in White River, Ontario – went off-duty for 15 minutes. And then at 2:45, he started driving again and he drove until he reached Sault Ste. Marie, Ontario and he went on-duty not driving from 5:15 in the morning until 5:45. Now the driver is indicating that he purchased fuel – you see down in the remarks, he – he said fuel Sault Ste. Marie, Ontario – so while he’s fueling the truck, he’s doing that for the – for the operator and he would – that would be deemed on-duty time other than driving. And then he’s indicating at 5:45 he starts driving again in Sault Ste. Marie and then at 9:30 a.m., the line goes from driving to off-duty and he’s indicating he – he is in Sudbury, Ontario at that time. So, then he totals up the columns and he spent 15 hours off-duty in that 24-hour period. He spent zero hours in the sleeper berth; 8 ½ hours driving and one-half hour on-duty other than driving. Also, it’s indicated that there’s no co-driver in this vehicle. And that’s about it.
Q. Thank you. So, can you tell us how does page two relate to page one?
A. So, page two is for February 12th; page one was for February 11th, so this is a continuous trip that the driver’s on. You can see on page one, February 11th, the driver’s indicating his ending odometer is 2000 – or sorry, 292,560...
Q. Um-hmm.
A. If you look on February 12th, his starting odometer is 292,560, so it’s a continuous trip and then he ends at 293,330 kilometers. So, this is basically one trip from the time he left Thunder Bay till the time he arrived in Sudbury.
[56] As to the entry in the logbook of Mr. Tyska for February 13, 2014 (Exhibit 1, Tab 4), Mr. Brown gave the following evidence:
A. Again, his log is indicating that he is starting in Sudbury and the plate tells me that he’s driving the same vehicle, the license plate is 1212PM, which is the same as the – on the 13th. His ending odometer on the 12th was 293 – 293,330; his starting odometer on the 13th was 294,118, which – which we would look – we would call that elapsed mileage, so there’s mileage missing. Unless somebody else drove that truck, the mileage should be the same when he started that day as it was when he ended that day. That log book is indicating that at midnight he was in Sudbury, Ontario off-duty, which corresponds with the day before and at 4:30 a.m., he started – he went from off-duty to on-duty other than driving for a half an hour in Sudbury, Ontario. The carrier’s the same as far as the principal place of business and it’s just the log book hasn’t been completed for the day.
[57] Mr. Brown noted in his evidence that the logbook entries in Exhibit 1, Tab 5 (which were from the second logbook found in the bottom of the black bag by Constable MacIsaac) were not consistent with the logbook entries for the same dates in Exhibit 1, Tab 4 (the first logbook). The evidence of Mr. Brown clearly confirms what is stated in the agreed statement of facts (Exhibit 1, Tab 1), namely, that the accused Gary Tyska used two driver’s daily logbooks as agreed to in Exhibit 1, Tab 1. This was for the purpose of driving the commercial motor vehicle in excess of the commercial driving regulations permitted in Ontario.
EXPERT EVIDENCE OF CLINTON MARQUARDT
[58] After a voir dire, Clinton Marquardt was qualified as an expert to provide opinion evidence to the court. Mr. Marquardt identifies himself as a human fatigue specialist. The term “human fatigue” was described by Mr. Marquardt as “sleep related fatigue”. As he indicated in his evidence, “I use it as a synonym for sleepiness and the range of sleepiness that I deal with or the range of fatigue I deal with is in the neighbourhood of anywhere from wide awake to fully asleep, so low levels of fatigue are synonymous with very low levels of sleepiness”. Mr. Marquardt’s curriculum vitae was entered as Exhibit 9. Although Mr. Marquardt’s curriculum vitae can be described as somewhat embellished after conducting the voir dire, the court was satisfied that Mr. Marquardt could provide opinion evidence to the court in the following areas: 1) the role of sleep-related fatigue in accidents and incidents and the resulting risks in performance impairment associated with that fatigue; and 2) the use of the fatigue avoidance schedule tool, otherwise known as FAST, in analyzing human fatigue and the resulting risk in performance impairments.
[59] Filed as Exhibit 10 was an agreed statement of facts related to prior driving conduct of Mr. Tyska solely for the purpose of providing an evidentiary foundation for Mr. Marquardt’s evidence related to sleep and fatigue. Exhibit 10 in addition to the agreed statement of fact (Tab 1) contained other tabs related to documents referred to by Mr. Marquardt in his evidence to the court.
[60] Filed as Exhibit 11 was the Truck Driver Assessment, dated July 30, 2014, prepared by Mr. Marquardt with respect to the accident that occurred on February 13, 2014. As noted on the cover page of the report, Mr. Marquardt was retained by the Ontario Provincial Police with respect to the preparation of this report.
[61] In his report, Mr. Marquardt identifies six fatigue risk factors normally considered and indicated that he could only comment on four of those factors in his report. Given the limitations on the data provided to him, Mr. Marquardt could not comment on whether Mr. Tyska had a sleep disorder or whether a medical/psychological condition was in play.
[62] In his evidence before the court, Mr. Marquardt reviewed the various stages for a full sleep cycle, which lasts for 90 minutes. Mr. Marquardt indicated that “most of your sleep is stage two sleep, followed by likely REM and deep sleep and then stage one”. Without brain wave recordings, the expert cannot ascertain what stage of sleep the person is experiencing. This being the case, assumptions are made, as described by Mr. Marquardt as follows: “normally, you don’t have access to that information, so you can’t really judge the quality of a person’s sleep, so I normally err on the side of extreme caution and assume that any sleep that they are getting is very good to – if not excellent quality of sleep.”
[63] Asked specifically about the assumptions he made concerning the quality of sleep that Mr. Tyska had, Mr. Marquardt provided the following response:
That any sleep taken at home was of excellent quality and taken in an excellent environment – we spoke, not yesterday, the day before about how environments affect sleep quality and, again, without having electrodes on the person’s scalp, you don’t know exactly what the quality is, but you can get an estimate or you can be comfortable assuming or concluding that if a person is sleeping in less than a stellar sleep environment, which is normally only found at home, that the quality of sleep is – is worse. So, in my assessment, I assumed that all sleep taken at home was in an excellent environment, which resulted in – in excellent quality of sleep and any sleep taken outside of that home environment was just slightly less than excellent.
In other words, the times that the expert attributed to sleep for Mr. Tyska were assumed to be high quality periods of sleep.
[64] Marquardt testified that there are biological factors which also impact upon an individual’s quality of sleep and propensity to be fatigued. This is discussed on pages 3 and 4 of the report (Exhibit 11) in which Mr. Marquardt makes the following comments:
There are numerous biological rhythms that fluctuate across a 24 hour period; they are referred to as circadian rhythms. These rhythms must be synchronized to each other for people to sleep well and reduce the risk of fatigue. For example, if sleep is obtained when the core body temperature is as its lowest, it is of higher quality than sleep taken at the highest point in core body temperature. The lowest core body temperatures occurs during a six hour circadian trough that occurs at the same time each night. People are biologically predisposed to sleep during the circadian trough and therefore, fatigue is at its highest during this six hour period. This is known as the circadian timing risk factor. The absolute lowest temperature, and therefore one of the highest levels of fatigue, can occur between 04:30 and 07:30.
Repeatedly changing the timing of sleep can desynchronize the timing of the circadian trough from the person’s current sleep-wake pattern. This circadian desynchronization increases the risk of fatigue. Collectively, the circadian timing and the circadian desynchronization fatigue risk factors are known as circadian rhythm effects.
[65] On page 4 of his report (Exhibit 11), Mr. Marquardt indicates that fatigue effects reaction time and vigilance and that “when people are fatigued, the increased reaction times and decreased vigilance can result in crashes with the following characteristics:
(a) No active pre-crash maneuver (e.g. Stopping, starting, changing lanes);
(b) Drifting out of lane (DOOL);
(c) No corrective action (e.g. braking, skidding)”.
Mr. Marquardt also identified the following other characteristics of fatigue related crashes:
(a) Driver is the only occupant of the vehicle causing the crash;
(b) Driver is male;
(c) Crash occurs between 00:00 and 08:00;
(d) Crash occurs in non-urban areas or roadways with speed limits between 88.5 and 104.6 km/hour;
(e) Crash likely to be considered a serious, which means likely to cause serious injury or death.
[66] Mr. Marquardt indicated in his evidence that he considered the performance impairments and how the accident of February 13, 2014 was described to him as preliminary matters within his knowledge prior to assessing the fatigue of Mr. Tyska. The way the accident was described to the expert prior to him making his assessment with respect to the level of fatigue of Mr. Tyska enabled him to place the events of February 13, 2014 within the list of characteristics set out in para. 65 of this judgment. The events of February 13, 2014, which formed the basis for Mr. Marquardt’s analysis, are set out in page 5 of his report (Exhibit 11) as follows:
At 06:50 on February 13, 2014 the tractor trailer crossed 40 cm over the centre line while travelling at 93 km/h on Highway 17, East of Blind River, Ontario. The tractor trailer collided with an oncoming sport utility vehicle (SUV). The truck driver was taken to hospital with minor injuries and later released. The driver of the SUV was killed.
Moments prior to the crash, the tractor trailer was involved in a near-miss collision according to another driver who stated “He just missed me”. There were no tractor trailer skid marks at the crash scene, nor was there any evidence of braking by the truck driver.
[67] As part of his analysis, Mr. Marquardt conducted a reconstruction of Mr. Tyska’s sleep- wake history for February 11, 12 and 13, 2014 from the daily logs and data collected from the electronic control module of the transport trailer commercial vehicle. The sleep-wake history for February 11, 12 and 13, 2014 was replicated from previous trips Mr. Tyska took from Thunder Bay to Mississauga and back to Thunder Bay on February 4, 5 and 6, 2014, and on February 8, 9 and 10, 2014.
[68] Mr. Marquardt indicated in both his report and his viva voce evidence that certain assumptions were made to create the most favourable case scenario for Mr. Tyska. These assumptions are that he did not consume large amounts of caffeine, that he fell asleep instantly and did not experience any difficulty in maintaining sleep, that he was able to obtain 8 hours of quality sleep at home and supplement this with an early evening two-hour nap before the trip, that he slept in the truck’s berth during the trip, that this was a good environment in which to sleep, and that he did not consume alcohol throughout the trip. It was the evidence of Mr. Marquardt that since he did not have a lot of data about Mr. Tyska’s quality of sleep, he made assumptions that created the best case scenario for Mr. Tyska with respect to the analysis.
[69] Based on the aforementioned assumptions and an analysis of the sleep-wake history of Mr. Tyska, which is detailed on pages 8 and 9 of Mr. Marquardt’s report, the expert concludes that “across these 10 days leading to the crash at 06:50 on February 13, 2014, the truck driver would have obtained 69.5 hours of sleep and would have accumulated 153.33 hours of wakefulness” (see p. 11 of Exhibit 11).
[70] On the basis of the sleep-wake history and its analysis, Mr. Marquardt concluded with respect to the state of fatigue of Mr. Tyska, “I think it would be safe to conclude that given the degree of acute sleep disruptions of the qualitative type and as well, in the quantitative type given that there was very little sleep on the 13th and that it’s a best case scenario and that it occurred during the circadian rhythm trough, that the driver was significantly fatigued at 6:50 in the morning.”
[71] In his viva voce evidence at the trial and in his report (Exhibit 11) commencing at page 15, Mr. Marquardt tested his conclusions with a modelling software called Fatigue Avoidance Scheduling Tool, referred to simply as FAST. The sleep-wake history for Mr. Tyska with the four assumptions and best case sleep scenario for Mr. Tyska was inputted into the FAST system. The conclusions garnered by the FAST software program are indicated at page 17 of the July 30, 2014 report (Exhibit 11), which reads as follows:
At the time of the crash, FAST predicted that the truck driver’s effectiveness would have been at 71% with two fatigue risk factors present to a significant degree, the time of day and the truck driver being out of phase. Driving under these conditions increased the truck driver’s risk of an accident by at least 86%. In addition, FAST predicted that at the time of the crash, the truck driver would have been experiencing a chronic sleep debt of 6.78 hours. These conditions also mean that the driver was significantly fatigued at the time of the accident.
In other words, the FAST software calculation verified the conclusions reached by Mr. Marquardt on his analysis of the data, namely, that Mr. Tyska was significantly fatigued at the time of the accident and his performance was likely impaired by fatigue.
[72] Mr. Marquardt prepared an updated report dated August 20, 2017. This report was entered as Exhibit 13 at the trial. The updated report considered previous unavailable GPS data from the commercial vehicle involved in the accident for February 8 to 10, 2014. As noted on page 2 of Exhibit 13, a re-assessment of the truck driver’s fatigue that considered the GPS data was requested. The assumptions and best case scenarios that were applied in the July 30, 2014 report were applied in the August 20, 2017 report. The assessment made by Mr. Marquardt was once again validated by the FAST software in the August 20, 2017 report. The use of the GPS data did not substantially alter the bottom line position reached by Mr. Marquardt. As noted on page 8 of Mr. Marquardt’s report dated August 20, 2017:
As with the original FAST analysis and consistent with the current subject matter expert re-assessment, the re-validation with FAST indicated that the truck driver’s effectiveness would have been impaired by fatigue. Effectiveness was predicted to be at 75% at the time of the accident and fatigue would have been due to the same fatigue risk factors predicted in the original FAST validation.
[73] On page 10 of the August 20, 2017 report the following comments are made:
In addition to impaired effectiveness, FAST predicted that the truck driver’s reaction time would have been 132% longer and that he would have been four times as likely to have a lapse in attention due to a micro-sleep than a well rested person.
As with the original FAST validation, driving under these conditions would be very similar to driving with a blood alcohol concentration of between 0.05 and 0.08%.
In addition, and consistent with the original FAST validation, FAST predicted that the truck driver would have been driving in an impaired state for 100% of the duration of his last driving period before the accident.
[74] The overall conclusion reached by Mr. Marquardt in his August 20, 2017 report (Exhibit 13) is stated at page 16 of that report as follows:
The GPS data did not significantly change the results of the analysis. The truck driver’s fatigue related impairments were likely somewhere between those predicted using the best case scenario sleep pattern and the FAST auto-sleep predicted sleep pattern. The original conclusion does not need to be altered and can be restated: with the factual information available and the analyses performed for this assessment, it is the author’s professional opinion that the truck driver was fatigued at the time of the crash and that his performance was impaired by a brief period of sleep which caused him to drift into the oncoming lane and collide with the SUV.
[75] The difficulty with this conclusion is, of course, that it is predicated on the assumption of how the accident occurred as set out on page 5 of Exhibit 11, namely, that the tractor trailer crossed 40 cm over the centre line and collided with the oncoming vehicle. This is an assumption not supported by the evidence led at the trial. Well into the trial proceedings, the Crown indicated that it did not intend to call the accident reconstructionist, Constable Carscadden, or to ask the court to make findings of fact as to how the accident occurred. This was put to Mr. Marquardt in cross-examination and the Crown asked him for a clarification in its re-examination of Mr. Marquardt, the flow of which was as follows:
Q. And then my only other question is – with regard to the conclusion, it was put to you that if the point of impact is undetermined, then that has an impact with respect to the conclusion that you draw.
A. Yes.
Q. Can you tell me, if your conclusion with regard to the state of fatigue of the driver would be altered depending on the point of impact?
A. No. So, the process I use is two-fold – first test of existence, so did fatigue exist? Second test, did it influence the – the outcome? And in this case, I wouldn’t change my conclusion about whether or not the driver was fatigued at the time.
Q. So, then it would be the portion of your conclusion that indicates that “...his performance was impaired by the brief period of sleep causing him to drift into the oncoming lane and collide with the SUV...”, that would have to excised if the point of impact was undetermined.
A. I would still feel comfortable saying that he fell asleep, but I wouldn’t feel comfortable saying he fell asleep at the exact right time to allow that – that impact to happen, yeah.
(Transcript of September 8, 2017, Re-examination of Clinton Marquardt)
In the end, Mr. Marquardt cannot link the fatigue of Mr. Tyska to the collision or attribute that to how the collision occurred. He cannot do so without an accident reconstruction report or without independent validation of the assumptions he made under the “Vehicle Path” heading on page 5 of his July 30, 2014 report.
DISCUSSION/ANALYSIS
[76] The accused Gary Tyska was charged with criminal negligence causing the death of David Dennie, contrary to s. 220(b) of the Criminal Code of Canada. The accused was arraigned on that charge and entered a plea of not guilty to that charge. The trial proceeded on that charge. On the fifth day of trial, the Crown indicated that they were not calling Constable Carscadden as an accident reconstructionist and were no longer seeking to prove the cause of the collision or the cause of death. The Crown indicated to the court that it was seeking a conviction on the lesser and included offence of dangerous operation of a motor vehicle, contrary to s. 249(1)(a) of the Criminal Code of Canada.
[77] It is clear and undisputed that the offence of dangerous operation of a motor vehicle is a lesser and included offence to the charge of criminal negligence causing death. The exact wording of s. 249(1)(a) of the Criminal Code of Canada is important to consider and examine closely given the respective positions taken by the Crown and the defence. Section 249(1)(a) of the Criminal Code of Canada provides that:
Every one commits an offence who operates
(a) 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 be expected to be at that place.
[78] It is clear from the evidence that Mr. Tyska breached O. Reg. 555/06 in that during the time period from February 11, 2014 to February 13, 2014 he operated his commercial vehicle in excess of the hours permitted under those regulations. The position of the Crown is that by not getting sufficient sleep in contravention of the regulation, Mr. Tyska placed himself in a position of fatigue thereby operating his vehicle in a manner dangerous to the public. The position of the defence is that there is no reliable evidence of actual driving conduct of Mr. Tyska on which the court could conclude that his manner of driving was dangerous. The position of the defence is that the Crown has failed to establish the actus reus of the offence of dangerous operation of a motor vehicle.
[79] The inquiry to be made with respect to the actus reus of the offence of dangerous driving is discussed by the Supreme Court of Canada in paras. 34 and 35 of the Roy decision. It is worthwhile to consider those paragraphs in their entirety:
[34] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it at para. 46 of Beatty, ‘the court must not leap to a conclusion about the manner of driving based on consequences. There must be a meaningful inquiry into the manner of driving’. 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, but one that is both legal and of social value (Beatty at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [Emphasis added.]
[35] To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.
[80] What reliable evidence is before the court as to how Mr. Tyska operated his commercial motor vehicle between February 11, 2014 and February 13, 2014? The court knows where Mr. Tyska travelled to and from during this period of time. The court knows that Mr. Tyska did not get the required hours of sleep thereby breaching the Ontario Regulations. From the totality of the evidence, the court may even conclude that Mr. Tyska was fatigued at the time of the accident on February 13, 2014. But what about how Mr. Tyska operated his vehicle and whether the manner in which he operated his vehicle, viewed objectively, could be considered dangerous? In my view, there is very little reliable evidence before the court on that point.
[81] The court has the evidence of Mr. Bellerose that Mr. Tyska’s vehicle was in his lane coming directly toward him and that Mr. Bellerose had to take evasive action to avoid a collision with Mr. Tyska. It is clear on the evidence that this was after Mr. Tyska’s vehicle collided with the Dennie vehicle. It was post collision and there could be a host of reasons why Mr. Tyska’s vehicle was in the oncoming east bound lane. The court does not have accident reconstruction evidence. It is impossible to determine the reason why, at that point in time, the Tyska vehicle was in Mr. Bellerose’s lane of traffic.
[82] The court heard the evidence of Mr. Yates. The court cannot place much reliance on the evidence of Mr. Yates. His timing is off. The event could not have occurred shortly after 7:00 a.m. on February 13, 2014 as he testified. From the totality of the evidence, it is clear that the accident occurred before that time. Mr. Yates is unable to particularize any identifying information that would lead to the conclusion that the truck he saw was Mr. Tyska’s truck. Mr. Yates could not identify any markings, insignias, company logos or anything apart from the fact that it was white and that the truck in his lane was “a long-nose truck, wasn’t a cab over, lots of chrome”. That description could apply to a great many of the commercial vehicles that travel along the highway. I do not intend to be critical of Mr. Yates. His limited description of the commercial vehicle can only be expected given the fact that he had only a split second to react and was traumatized by the experience. Undoubtedly, Mr. Yates received some information about the accident from the time he left Blind River in the morning of February 13, 2014 to the time he returned back on the same highway later that evening.
[83] Mr. Yates testified at the trial that he was “pretty confident” the commercial vehicle he saw on the highway in the evening at the accident scene was the same vehicle he had to avoid on his way to work earlier that morning. I have already discussed Mr. Yates’ evidence on his level of certainty that this was the same vehicle at para. 28 of these reasons. At the preliminary hearing, Mr. Yates testified that he was “assuming” it was the same commercial vehicle that he saw later in the day. When asked at the trial, “Do you agree that you were making an assumption about whether it’s the same truck or not because of the similarity of the circumstances”, Mr. Yates replied, “I’m pretty sure it was the same truck.” Being “pretty sure” is not comforting to the court when the standard of proof is one beyond a reasonable doubt.
[84] Mr. Yates did not hear a noise or a collision directly behind him. This is hard to accept if in fact it was Mr. Tyska’s truck that he had to avoid. Given the time and the location that Mr. Yates places this close encounter (see Exhibit 7) the collision between the Tyska and Dennie vehicles would have happened almost immediately after the Tyska vehicle passed Mr. Yates. It is difficult to understand how Mr. Yates would not have heard the collision or known that a collision had occurred if in fact it was the vehicle of Mr. Tyska that was in his lane.
[85] Given these concerns, especially the fact that Mr. Yates cannot say with certainty and clarity that the commercial vehicle he saw later on February 13, 2014 was the same commercial vehicle he saw earlier in the day on February 13, 2014, this court is not prepared to place any reliance on the evidence of Mr. Yates when it comes to considering the manner in which Mr. Tyska operated his commercial vehicle.
[86] Constable Yeomans retrieved data from the commercial vehicle operated by Mr. Tyska. The data retrieved and referred to by Mr. Yeomans was compiled in Exhibit 17 and filed with the court. That data indicates that just before the accident and at the time of the accident the brakes were not applied on the commercial vehicle nor was the throttle reduced, being at 100%. It is the position of the Crown that this is evidence reflects on how the vehicle was operated by Mr. Tyska and that the court can find that the brakes were not applied or that the throttle to the engine was not reduced as a result of the fatigued state that Mr. Tyska was in at the time of the accident, all of this pointing to the fact that Mr. Tyska’s operation of the commercial vehicle was dangerous to the public.
[87] It is dangerous for the court to view the engine control module information (Exhibit 17) in isolation. Considering the totality of the evidence, there may be reasons, other than fatigue, that account for Mr. Tyska not applying the brakes or reducing the throttle immediately prior to or at the time of the collision with the Dennie vehicle. Mr. Bellerose is a commercial vehicle driver with some experience. When he found Mr. Tyska’s vehicle in his lane, Mr. Bellerose did not apply the brake on his vehicle. He had seconds to react and rather than braking, he took evasive action by swerving to take his vehicle out of the path of Mr. Tyska’s vehicle. It was the evidence of Mr. Bellerose that sometimes when operating a commercial vehicle, braking is the wrong course of action to take. As Mr. Bellerose put it in his evidence, “there’s a difference in the way an 18-wheeler responds to braking at highway speeds compared to a regular truck”. On the totality of the evidence, I am unable to conclude, beyond a reasonable doubt, that Mr. Tyska’s failure to brake or apply the throttle just prior to or at the time of the collision was a result of fatigue or indicates driving that is dangerous to the public. The court might have concluded differently on convincing accident reconstruction evidence but such evidence was not before the court to consider.
[88] As indicated earlier in these reasons, the court received opinion evidence from Mr. Marquardt, who describes himself as a “human fatigue specialist”. It is fair to say that the conclusions reached by Mr. Marquardt in his reports dated July 30, 2014 and August 20, 2017 have been substantially undermined given the fact that there is no evidence before the court with respect to the collision or how the collision occurred. At page 27 of his July 20, 2014 report, Mr. Marquardt concludes that:
With the factual information available and the analyses performed for this assessment, it is the author’s professional opinion that the truck driver was fatigued at the time of the crash and that his performance was impaired by a brief period of sleep which caused him to drift into the oncoming lane and collide with the SUV.
In the August 20, 2017 report, Mr. Marquardt indicates that the GPS data now received and considered by him in that report “did not significantly change the results of the analysis” and in that more recent report, repeats and restates the conclusion recited above.
[89] As indicated in para. 75 of these reasons, the conclusions reached by Mr. Marquardt in his two reports is predicated on the assumption of how the accident occurred, namely, that the tractor trailer crossed 40 cm over the centre line and collided with the oncoming vehicle. Without the accident reconstruction evidence, this assumption is not supported by the evidence led at trial. When asked about how the point of impact between the Tyska and Dennie- vehicles being undetermined would affect the aforementioned conclusion reached by Mr. Marquardt, the following exchange occurred between counsel for the defence and Mr. Marquardt during his cross examination:
Q. And again, you’ve already indicated that if the point of impact is not determined, that that would affect how you correspond the fatigue to actual impairment driving.
A. Yes, I refer to that as the test of influence, so it would be difficult to make – to do that test at that point.
Q. Because people drive fatigued without collision all the time.
A. Yes.
THE COURT: So, in other words, if the point of impact isn’t – isn’t as you understood it originally, then you’d have to go back to the drawing board.
A. Yes, I’d have to try and understand the dynamics of the accident differently or, again. Yes.
THE COURT: So, that would materially change your report...
A. Yes.
THE COURT: ...potentially.
A. It could, yes.
THE COURT: All right.
[90] The evidence of Mr. Marquardt on this point was that if the accident did not occur as he understood it to occur then this would “materially” change his report. The Crown attempted to rehabilitate this evidence of Mr. Marquardt in re-examination, the particulars of which are set out earlier in para. 75 of these reasons. In re-examination, Mr. Marquardt indicated that he would “still feel comfortable saying he fell asleep, but I wouldn’t feel comfortable saying he fell asleep at the exact right time to allow that impact to happen”. In other words, Mr. Marquardt cannot tie the fatigue to the driving of Mr. Tyska or to the collision that occurred on February 13, 2014.
[91] Without dissecting the strengths and weaknesses of Mr. Marquardt’s analysis or the computer generated results of the fatigue avoidance scheduling tool (FAST), the very most the court can conclude from Mr. Marquardt’s evidence is that Mr. Tyska was fatigued on the morning of February 13, 2014.
[92] There is jurisprudence, which I have considered, where the courts have looked at fatigue as it relates to the offence of dangerous driving. The headnote in the case of R. v. Whone, [2007] Carswell Ont. 5986 indicates that “accused’s reckless disregard for his own fatigue and exhaustion was serious ongoing lapse in judgment and amounted to dangerous driving”. This court must be careful in the weight to be paced on the headnote in that case. Whone was primarily a sentencing case where the court was asked to consider whether a conditional sentence was the appropriate sentence to be imposed. The accused entered a plea of guilty to the offence of dangerous driving. In Whone it was established as a fact that the accused’s vehicle crossed the centre line and collided with a vehicle in the eastbound lane. It was determined that the accused had fallen asleep while operating his vehicle.
[93] In the case of R. v. Webb, [1995] Carswell Ont. 444, the court referred to the case of R. v. Zavitz (1972), 1971 CanLII 1234 (ON CA), 5 C.C.C. (2d) 348 (Ont. C.A.) as authority for the proposition that falling asleep at the wheel can constitute dangerous driving.
[94] The Webb case was a case where the commercial truck driver operated his vehicle in contravention of the Ontario Regulations designed to prevent driver fatigue. Mr. Webb, as in the case at bar, completed his log books in a manner to conceal that he was not getting the sufficient amount of rest. At para. 41 of the Webb decision, Eberhard J. of the then Ontario Court of Justice (General Division) makes the following observation:
Violation of the regulation cannot be simply equated with either criminal negligence or falling below a standard of a reasonable person such that driving that follows is necessarily dangerous in the criminal sense.
Madam Justice Eberhard goes on to state at para. 47 of her reasons:
If I were persuaded beyond a reasonable doubt that Mr. Webb fell asleep at the wheel, I would have no hesitation in finding that the accumulation of hours of work, the heightened awareness of concern about driver fatigue brought about the regulations and the necessary inference that before sleep would come a drowsiness sufficient to make the accused subjectively aware that continuing the conduct of driving constituted actual risk, taken together constituted dangerous operation of a motor vehicle.
[95] R. v. Bhangal, 2013 S.C.O. 92/11 is a sentencing decision which focuses on the appropriate sentence for convictions for dangerous operation of a motor vehicle causing death and criminal negligence causing death. In that case, the driving logs that the accused was obliged to keep as a commercial vehicle operator were not accurate and did not reflect his actual driving times. In addition, the accused was not in compliance with the regulations regarding hours of service for commercial motor vehicle drivers. In Bhangal, there was evidence that the accused had difficulty keeping his vehicle in his lane and would drift out of his lane. The facts of the case involved a motor vehicle accident and there was evidence at trial that at the point of impact of the collision the accused was in the other driver’s lane. It was on these facts that the jury convicted Mr. Bhangal of dangerous driving and criminal negligence. The decision in Bhangal was appealed to the Ontario Court of Appeal, and is cited as R. v. Bhangal, 2016 ONCA 857, [2016] O.J. No. 5852. The appeal focused on alleged errors in the charge to the jury and on the sentence imposed. The appeals as to conviction and sentence were dismissed by the Ontario Court of Appeal. That court noted in its endorsement at paras. 1 and 2:
[1] The appellant was a truck driver. His truck drifted into oncoming traffic and collided, head-on, with a mini-van, killing the driver.
[2] The jury apparently accepted the Crown’s position that the appellant knowingly breached the rules and regulations governing truck driver’s sleep requirements and put incorrect information into his driving logs and fell asleep at the wheel[…] [Emphasis added.]
[96] A review of these cases and consideration of the totality of the evidence lead this court to believe that a breach of the Ontario Regulations as to the sleep mandated by commercial drivers and the fact that a driver is fatigued are not sufficient to establish the operation of a motor vehicle “in a manner that is dangerous to the public” as required under s. 249(1)(a) of the Criminal Code of Canada. In my view, there must be evidence of driving by the accused that is a marked departure from the norm to establish the actus reus of the offence of dangerous operation of a motor vehicle.
[97] In the case at bar, the evidence at its highest level is that Mr. Tyska drove above the hours allowed by regulation, was impaired by fatigue as a result, operated two log books to conceal his actions, and did not brake or apply his throttle to reduce his speed immediately prior to or at the time his vehicle collided with the vehicle operated by David Dennie in the early morning hours on February 31, 2014. These activities by Mr. Tyska are not sufficiently tied to the driving conduct of Mr. Tyska to establish proof of dangerous driving beyond a reasonable doubt. There is no reliable evidence of erratic driving by Mr. Tyska. There is no reliable evidence that Mr. Tyska fell asleep while driving his commercial vehicle. At best, if we accept the evidence of Mr. Marquardt at its highest, we can conclude that Mr. Tyska was fatigued at the time of the collision. There is no accident reconstruction evidence that establishes how the collision occurred which could then lead the court to the manner in which Mr. Tyska operated his vehicle and the connection of the fatigue to the manner of the operation of the vehicle by Mr. Tyska. In my view, the facts in the case at bar require accident reconstruction evidence to allow the court to determine the cause of the collision and to assess the standard of care and determine whether the driving actions of Mr. Tyska represented a marked departure from what we would expect from a reasonable driver in the circumstances.
[98] Overall, when assessing the totality of the evidence, there is no reliable evidence that establishes the actus reus of the offence of dangerous driving as it pertains to the driving of Mr. Tyska, on a standard that is beyond a reasonable doubt.
CONCLUSION
[99] Upon reflecting on all of the evidence I have heard at this trial, I am unable to conclude with the degree of certainty required in law to establish beyond a reasonable doubt that the manner in which Mr. Tyska operated his vehicle was dangerous to the public as contemplated by s. 249(1)(a) of the Criminal Code of Canada. I am of the view that the Crown has failed in its onus to establish the actus reus of the offence beyond a reasonable doubt. Having found that the actus reus of the offence has not been established, it is not necessary for the court to comment on the mens rea element of the offence.
[100] I want counsel and the accused, Mr. Tyska, to understand that I have agonized greatly over my decision in this case. It was not an easy decision to make, and, in some respects, not an easy decision to accept. My decision is not to be taken to minimize or condone what occurred on the morning of February 13, 2014 outside Blind River, Ontario. Mr. Tyska is the only person who knows with certainty what transpired that morning. He has chosen not to testify, which is his right and a right to be respected. I have my suspicions as to what occurred and how this accident happened but they are only suspicions and cannot be relied upon. Only Mr. Tyska knows for sure and he must carry that knowledge around with him, for the rest of his life.
[101] I could not help but notice that Corrine Dennie, the spouse of David Dennie, was present in court each and every day of this trial. Mrs. Dennie and her children experienced a terrible tragedy and suffered the loss of a husband and a father. I cannot even try to imagine how painful their loss is. It is difficult for me to remove the images of Mrs. Dennie’s face from my mind when the paramedic Derrick Bates testified how he found her husband in the Jeep, upside down and impacted by snow. On hearing the evidence of Derrick Bates, Mrs. Dennie’s face was tortured with pain and it is not an image that I will soon forget. I hope that Mrs. Dennie realizes that I have struggled with my decision. I did not take my responsibility to her or to the administration of justice lightly. She was likely hoping that my decision would provide closure to her and her children. I truly hope that despite my decision, Mrs. Dennie and her family will find closure, peace and acceptance.
[102] As a judge I must apply the law to the facts as I find them, no matter how unpleasant or unpopular the result. For the reasons set out in this judgment, there will be a finding of not guilty to the offence as set out in Count 1 of the indictment dated September 29, 2015, including to the lesser and included offence of dangerous operation of a motor vehicle, contrary to s. 249(1)(a) of the Criminal Code of Canada, and an acquittal registered.
Gareau J.
Released: December 14, 2017
CITATION: R. v. Tyska, 2017 ONSC 6736
COURT FILE NO.: 7615/15
DATE: 2017-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GARY W. TYSKA
Accused
REASONS FOR JUDGMENT
GAREAU J.
Released: December 14, 2017