COURT FILE NO.: CR-23-17
DATE: 20240712
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
MILTON URGILES
Defendant
Indy Kandola and Raffi Dergalstanian, for the Crown
Alonzo Abbey, Counsel for Mr. Urgiles
HEARD: Sept. 11-13, 18-22, Oct. 26, 31, Nov. 16, Dec. 11, 14, 2023, Mar. 4-7, 14-15, Apr. 2-3, 2024
REASONS FOR JUDGMENT
VALLEE J.
[1] The trial in this matter has taken a significant period of time to complete. It began on September 11, 2023 and ended on April 3, 2024, not including the verdict. Given the length of time elapsed, I will briefly review the key events in order to provide context to what might otherwise raise concerns about unreasonable delay. The following is a summary of the proceedings.
a) The trial was scheduled for two weeks, from September 11 – 22, 2023. Defence counsel requested two days “off”, September 14 and 15 so that he could attend to another matter. He stated that the trial could be completed in 8 days. His request was granted on the condition that if the trial did not finish, he would not raise a delay issue.
b) From September 11 – 19, 2023, the Crown’s witnesses testified.
c) On September 19, 2023, a voir dire was held regarding service of a subpoena on Janeth Zambrano, common law spouse of the accused.
d) On September 21, 2023, the Crown provided evidence of unsuccessful attempts made to have Ms. Zambrano attend at trial. The Crown applied to have her evidence from the preliminary inquiry entered as evidence in the trial. A voir dire began. The defence requested time to respond. The Crown requested a warrant for her arrest as a material witness. A ruling was provided granting the request.
e) On September 22, 2023, Defence counsel advised that he did not oppose nor consent to the application. A ruling was provided allowing Ms. Zambrano’s evidence to be admitted. The Crown closed its case. This was the last day scheduled for trial. It was adjourned to September 26, 2023.
f) On September 26, 2023, the Defence proposed Tariq Mahmud as a defence expert. A voir dire was held regarding his qualifications. A ruling was provided that he was not qualified. The trial was adjourned to October 31, 2023.
g) On October 31, November 26 and December 11, 2023, the accused testified.
h) On December 11, 2023, the Defence proposed Norris Tennent, as a tire expert. He was located in Tennessee so he attended by zoom. A voir dire was held regarding his qualifications. Mr. Tennent was qualified as requested. His report was made Exhibit 17. Mr. Tennent testified for remainder of the day. The trial was adjourned to December 14, 2023.
i) The Crown ordered the transcript of Mr. Tennent’s testimony and learned that his voice had not been recorded on the court room recording equipment.
j) On December 14, 2023, an attempt was made to begin anew with Mr. Tennent; however, problems persisted with the court room recording equipment. His voice was not recorded. The trial was adjourned to March 4, 2024 for Mr. Tennent to attend in person.
k) On March 4, 2024, Defence counsel stated he had requested high resolution photos from the Crown. They were provided in December along with a number of new photos that were not in a Crown expert’s report. The Crown stated that he received them only on December 15, 2023. Mr. Tennent attended in person. The voir dire regarding his qualification as an expert began. The Crown requested and Mr. Tennent agreed to produce materials from other cases in which he had testified under oath. Some materials were provided in the evening and the next morning.
l) On March 5, 2024 at 9:30 a.m. the Crown requested additional time to review the materials. The Defence consented. At 11:50 a.m. the Defence requested time to review the materials. After lunch, Defence counsel requested an adjournment until the next day because some materials provided might affect Mr. Tennent’s credibility.
m) On March 6, 2024, the Defence brought an application for a mistrial based on the late disclosed police photos. During the morning, the application was argued. The application was denied; however, the Defence was granted leave to recall the Crown’s expert witnesses. In the afternoon, the voir dire for Mr. Tennent resumed.
n) On March 7, 2024, Defence counsel withdrew his request to have Mr. Tennent qualified as an expert. He stated that he wished to have Mr. Tennent testify as an instructor regarding the courses he had taught to the Crown’s expert witness. A recess began at 9:48 a.m. for the Crown and Defence to have discussions. At 11:48 a.m. the Crown advised that there was an agreed statement of fact regarding Mr. Tennant’s “participation in a seminar for the OPP” (Exhibit 18). Defence counsel advised he wished to recall the Crown’s experts and requested time to prepare for their cross-examinations. He could not be ready to proceed on the next day, March 8, 2024. March 11, 12 and 14, 2024 were offered as continuation dates. Defence counsel selected March 14, 2024. The trial was adjourned to March 14 at 9:30 a.m.
o) The trial continued on March 14, 15 and April 2 and 3. It was adjourned to June 21, 2024 for delivery of the verdict. (The trial judge had surgery scheduled for April 17, 2024.)
p) Subsequently, Defence counsel requested that the verdict date, June 21, 2024, be adjourned to July 10, 2024, to permit him to attend a family event. The trial was adjourned to July 10, 2024, today’s date.
The Collision
[2] This matter concerns a fatal single vehicle collision of a Freightliner dump truck that occurred on September 22, 2020 in the morning, on the Adjala-Tecumseth Town Line north of Line 2 South. The Freightliner, which was owned by Ecuacan Excavating Inc. and driven by Denis Garant was proceeding north. Its front left tire exploded, causing it to veer across the oncoming lane. It went into a ditch and struck a tree. Mr. Garant died instantly. Milton Urgiles, who was Ecuacan’s supervisor, is charged with criminal negligence causing death, pursuant to s. 219 of the Criminal Code[^1].
Applicable Criminal Code provisions
[3] Section 217.1 of the Criminal Code states,
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.
[4] Section 219 (1) of the Criminal Code states,
Every one is criminally negligent who
a) in doing anything, or
b) in omitting to do anything that is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
Other Applicable Legislation
Occupational Health and Safety Act, R.S.O. 1990, c. O.1
[5] Section 1 defines a “supervisor” as “a person who has charge of a workplace or authority over a worker.” Section 27 further provides that:
(1) A supervisor shall ensure that a worker,
(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and
(b) uses or wears the equipment, protective devices or clothing that the worker’s employer requires to be used or worn.
(2) Without limiting the duty imposed by subsection (1), a supervisor shall,
(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware; ... and
(c) take every precaution reasonable in the circumstances for the protection of a worker.
Highway Traffic Act, R.S.O. 1990, c. H.8
[6] Regulation 625 entitled Tire Standards and Specifications, applies to this matter. Section 2(a) of this regulation prescribes that “[a] tire shall have no exposed cord”. Section 3(2) prescribes that:
A front tire on a motor vehicle having a gross vehicle weight rating of more than 4,500 kilograms shall not be worn to the extent that less than three millimetres of tread depth remains in any two adjacent major grooves at three equally spaced intervals around the circumference of the tire.[^2]
Issues to be determined
[7] Did Mr. Urgiles have authority to direct how Mr. Garant did work or performed a task?
[8] If so, did Mr. Urgiles fail to take reasonable steps to prevent bodily harm to Mr. Garant?
[9] If so, did Mr. Urgiles show wanton or reckless disregard for Mr. Garant’s life and safety? Was his conduct a marked and substantial departure from the standard that could be expected of a reasonably prudent supervisor in the circumstances?
[10] If so, has the Crown proven the requisite degree of fault for criminal negligence?
[11] Did Mr. Urgiles’ criminal negligence cause Mr. Garant’s death?
Actus reus and mens rea
[12] To establish the actus reus for criminal negligence causing death, the Crown must prove beyond a reasonable doubt that:
a) Mr. Urgiles had the authority to direct how Mr. Garant, who was employed by Ecuacan, did work or performed a task.
b) Mr. Urgiles failed to take reasonable steps to prevent bodily harm to Mr. Garant.
c) In doing so, Mr. Urgiles showed wanton or reckless disregard for Mr. Garant’s life or safety. Proof of “wanton or reckless disregard” requires evidence that Mr. Urgiles’ conduct was a marked and substantial departure from what a reasonable supervisor would do in the same circumstances. See: R. v. Kazenelson, 2015 ONSC 3639, at paras. 111 – 112; 2018 ONCA 77.
[13] A modified objective test is to be used to establish the mens rea of the offence of criminal negligence causing death. The court is required to consider the facts that existed at the material time, Mr. Urgiles’ perception of those facts, and to assess whether, in that context, his conduct constituted a marked and substantial departure from what would be reasonable in those circumstances. The Crown must establish beyond a reasonable doubt that:
I. Mr. Urgiles’ actions or inaction represented a marked and substantial departure from the conduct of a reasonably prudent supervisor in circumstances where Mr. Urgiles either:
i. Recognized and disregarded an obvious and serious risk to the life or safety of Mr. Garant, or
ii. Gave no thought to an obvious and serious risk and the need to take care and,
II. There was a risk of bodily harm that was neither trivial nor transitory and was objectively foreseeable. See: R. v. Kazenelson, 2015 ONSC 3639, at paras. 113, 114
[14] Mr. Urgiles’ actions or inaction do not need be the most proximate, primary, or only cause of death. For liability to follow, the act or omission in issue can be at least a contributing cause of Mr. Garant’s death. See: R. v. Meiler, 1999 CanLII 3728 (ON CA), 25 C.R. (5th) 161, 1999 CarswellOnt 1258 (Ont. C.A.) para. 30; See: R. v. L. (K.), 2009 ONCA 141, para. 19.
Admitted Facts
[15] The Crown and defence admit the following facts:
a) Denis Garant began working for Ecuacan on September 4, 2020. He was hired by Milton Urgiles.
b) Milton Urgiles was Denis Garant’s supervisor.
c) Milton Urgiles’ phone number at and around the time of September 2020 was 416-771-5155
d) Denis Garant’s phone number at and around the time of September 2020 was 647-448-4259.
e) Janeth Zambrano was listed as the holder of the Commercial Vehicle Operator Record (CVOR) for Ecuacan. She was in a relationship with and living with Milton Urgiles at the time she was holding the certificate.
f) Coroner Dr. Moreau pronounced Mr. Garant deceased at 15:20 hours. The cause was motor vehicle collision. Mr. Garant was obviously deceased.
g) Milton Urgiles provided a statement to the Ontario Provincial Police on May 5, 2021 which is conceded to be voluntary.
Fundamental Legal Principles
[16] Mr. Urgiles is presumed innocent of the charge in the indictment. The presumption of innocence is fundamentally important in the criminal justice system because it places the burden of proof on the Crown. It also serves to protect against wrongful conviction.
[17] The presumption of innocence stays with the defendant throughout the trial and is only displaced if I am satisfied that the Crown has proven the charge beyond a reasonable doubt. The Crown has the sole obligation or burden of proving the charge against the defendant. The defendant does not have an obligation to prove anything.
[18] Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.
[19] While likely or even probable guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high; nevertheless, while absolute certainty is an impossibly high standard, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[20] Ultimately, in order to convict the defendant of an offence, I must be sure that the defendant has committed the offence. If I am not, the defendant must be acquitted.
Interpretation of Wanton or Reckless Disregard
[21] The Crown is not required to prove that the defendant’s conduct was deliberate or willful. The fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable supervisor in the circumstances – it must be marked and substantial.
[22] In R. v. Kazenelson 2018 ONCA 77 [2015 ONSC 3639] the court, in quoting from R. v. Menezes 2002 CanLII 49654 (ON SC), 50 C.R. (5th)343 at para 72, stated:
Criminal negligence amounts to a wanton and reckless disregard for the lives and safety of others. This is a higher degree of moral blameworthiness than dangerous driving. This is a marked and substantial departure in all of the circumstances from the standard of care of a reasonable person. The term wanton means “heedlessly” or “ungoverned” and “undisciplined” or an “unrestrained disregard for consequences”. The word “reckless” means “heedless of consequences, headlong, irresponsible”.
[23] R. v. Hoyek in para. 66 quoting from R. v. R.(M.) 2011 ONCA 190, para. 29 and 30 the court stated that the marked and substantial departure test is a high test. It applies to both the physical and mental elements of the offence – first, did the conduct or omission involved meet the marked and substantial departure standard. Regarding the mental element, a modified objective test applies. The court must consider the facts existing at the time in light of the accused’s perception of those facts and assess whether the accused’s conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. The court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his mind to the risk and the need to take care at all. Usually the mental element can be inferred from the omission.
[24] In Javanmardi, the court quoted R. v. Fontaine, 2017 QCCA 1730 para. 27 as follows:
These differences of degree [marked departure contrasted with marked and substantial departure] cannot be measured by a rule, a thermometer or any other instrument of calibrated scale. The words “marked and substantial” departure are adjectives used to paraphrase or interpret “wanton or reckless disregard” in s. 219 of the Code but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one case to another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirely contextual.
Applicable Jurisprudence
[25] Kazenelson concerned the collapse of a swing stage. It was being used for balcony repairs. From an empty apartment, the accused project manager went out on to a balcony as the workers were preparing to descend in a swing stage. He noticed that there were only two lifelines and asked the foreman about it. The foreman said to not worry about it. The swing stage was 100’ from the ground when the collapse occurred. Six people were on it including the accused; however, even though a lifeline ought to have been available for each person on the swing stage, there were only two. Only one worker was tied off to a line. The accused was able to grasp the other line when the swing stage collapsed. The other four fell to their deaths. The accused did not ensure that there were enough lifelines available.
[26] In para. 113, the trial judge described the applicable test:
The “marked and substantial departure” standard applies not only to the actus reus of criminal negligence but also to the mens rea. A modified objective test is to be used in this respect. I am required to consider the facts that existed at the material time in light of Mr. Kazenelson’s perception of them and to assess whether, in that context, his conduct constituted a marked and substantial departure from what would be reasonable in the circumstances. The Crown must prove either that Mr. Kazenelson adverted to an obvious and serious risk to the lives or safety of the workers and failed to act, or that he gave no thought to an obvious and serious risk and the need to take care.
[27] The Court of Appeal, in para. 6 of its decision, described the trial judge’s findings as follows:
The trial judge concluded that the appellant’s failure to take any steps to prevent the workers from boarding the swing stage in these circumstances constituted a breach of his duty under s. 217.1 and showed a wanton and reckless disregard for their lives and safety, thus amounting to criminal negligence. In addition, he concluded that the appellant’s failure to ensure that each worker had a lifeline “was a significant contributing cause of the harm that resulted.”
[#] R. v. Thomas 1990 Carswell BC 331 (B.C.C.A.) concerned a collision between a pick-up truck and a car in 1987. The driver and passenger in the car were killed. The accused’s vehicle was 15 years old at the time, in generally poor condition with steering problems. The accused stated that the steering gave way just before the accident. The Court of Appeal concluded that driving at 50 m.p.h. in a vehicle that cannot be controlled properly is evidence of wanton disregard for the lives or safety of others. In para. 13, the court quoted Arthurs v. R, 1972 CanLII 27 (SCC), [1974] S.C.R. 287, p. 442, “Conduct disclosing wanton or reckless disregard for the lives or safety of others constitutes prima facie evidence of criminal negligence.”
[28] R. v. King 2023 NBBR 84 concerned an employee who was working in an eight foot hole where a pipe was located. Water was trickling from the pipe which made cleaning the hole difficult. The accused, who was the site supervisor, directed the employee to install a large rubber plug in it. The employer had a duty to provide employees in these situations with protective and emergency equipment. There was no acceptable safety plan to pull out the employee if necessary. The accused turned on water at a hydrant to conduct a leak test. The plug let go, causing the employee to be pinned against the wall while a huge amount of water flooded into the hole. He drowned. There was no issue that the accused directed the work and had a legal duty to take reasonable steps to prevent bodily harm to his workers doing that work. The court found that the accused did nothing that he was required to do regarding the employee’s safety. His inactions showed a marked and substantial departure from a minimum standard and a wanton and reckless disregard for the deceased’s safety.
[29] Javanmardi concerned a naturopath in Quebec who injected nutrients into a patient’s vein. A vial of one of the ingredients was contaminated, but some of the contents had been used on other patients the same day. The patient died from infection. Quebec does not regulate naturopathy. Intravenous administration of nutrients by naturopaths was unlawful in Quebec but was lawful in most provinces. The accused was charged with criminal negligence causing death. She was acquitted at trial because the trial judge found that she had the necessary skills, observed the required protocols and had taken sufficient precautions. Her conduct was not a marked departure[^3] from the reasonable person standard. Court of Appeal held that intravenous injection was objectively dangerous, her conduct constituted a marked departure and ordered new trial. The Supreme Court of Canada disagreed with the Court of Appeal and restored the acquittals.
[30] Hoyeck concerned a mechanic employed by and working in the accused’s garage. The accused was the owner and supervisor. The mechanic attempted to remove the straps that attached the vehicle’s gas tank with an acetylene torch. This caused a fire which resulted in the mechanic’s being badly burned. He died the next day. The court found that the accused did not instruct the deceased to use the torch. The deceased’s own negligence caused his death.
[31] R. v. J.S.R., 2008 ONCA 544 concerned a homicide. In para. 17 the court stated that the issue of factual causation is generally resolved by a “but for” analysis. The question is: “but for” the conduct of the accused, would the death have occurred?
Evidence regarding electronic communications between the deceased and Mr. Urgiles before and on the day of the collision
[32] Mr. Garant began driving the Freightliner on September 4, 2020. He and Mr. Urgiles used their phones to send SMS messages to each other.
[33] Detective Constable Michael Jackson was assigned to extract information from the deceased’s cell phone. He collected and preserved the digital evidence, downloaded it, produced a report and gave it to the investigating officer. Six pages were produced that covered incoming and outgoing SMS messages from September 9, 2020 at 10:02 a.m. to September 22, 2022 at 4:54 p.m. The last message that Mr. Garant’s phone sent was on September 22, 2020 at 11:07 a.m. After that, Mr. Urgiles phone sent two messages.
[34] According to Officer Jackson, the report shows that on September 21, 2020, the day before the collision, at 6:17 p.m., Mr. Garant’s phone sent a message to Mr. Urgiles’ phone which stated “The steering while turning with the wheels up cuts in and out like standard steering.” The next message was from Mr. Urgiles’ phone on the same date at 7:31 p.m. which stated, “Tomorrow At Hwy 27/finch job site 6:00 am tandem ticket thanks”. The next morning, on the day of the collision, at 10:08 a.m. Mr. Garant’s phone replied “OK”. At 11:07 a.m., his phone sent a message to Mr. Urgiles’ phone which stated, “My Bin #” to which Mr. Urgiles’ phone responded “301041315”. At 11:58 a.m., Mr. Urgiles’ phone sent a message to Mr. Garant’s phone stating, “Call me please.” At 4:54 p.m., after the collision, Mr. Urgiles’ phone sent another message to Mr. Garant’s phone stating, “Tomorrow same as today please thanks”.
Evidence of Witnesses
Kevin Walton
[35] Kevin Walton testified that on September 22, 2020, he was driving southbound on Adjala-Tecumseth Town Line near the Third Line. A dump truck was travelling northbound and drove past him. Mr. Walton stated that he heard a loud bang which sounded like a tire blowing. He pulled over his vehicle, got out and went back to where the dump truck was located. He stated that a tree was in the driver’s seat so he assumed that the driver was dead. He dialed 911 shortly after he got out of his vehicle.
Marlon Da Silva
[36] Mr. Da Silva was qualified as an expert in automotive, truck and coach mechanical work and repairs. On the day of the collision, Mr. Da Silva was driving behind the dump truck on Adjala-Tecumseth Town Line. He recalled that the weather was good and the roads were dry. At approximately 11:00 a.m., the dump truck and his vehicle were accelerating going northbound. He noticed that the truck was “dog tracking”. This term means that the vehicle was going straight in its lane but on a bit of an angle. He could see the side of the truck. Mr. Da Silva testified that the truck was overloaded with dirt. An overloaded truck would have more weight on the back and less on the front end. This would make steering more difficult.
[37] Mr. Da Silva recalled that when the truck and his vehicle were approximately 1 km further north, rubber pellets were hitting his vehicle. He could see that the left front wheel of the truck was on a slight angle. He believed that the pellets were coming from that wheel. He started to slow down because he was worried about what would happen next. Within less than another kilometer, he heard a loud bang. The tire exploded. Within seconds, the fender blew off. The truck went into the ditch where there were trees. Mr. Da Silva pulled over and ran to the truck to see if the driver was okay. The truck was up against a tree. He climbed up the truck to check on the driver who had been gravely injured and was deceased. Mr. Da Silva called the police.
[38] Mr. Da Silva stated that there was nothing remaining of the left front tire. He looked at the right front tire and described it as “pretty much bald”, having minimal tread. He could see the top of it and a portion of the front across the whole tire. He did not see any exposed cords, which he described as grey steel inside the tire. When he was working as a mechanic, the legal requirement for tire tread depth was three millimeters. He could not determine the actual tread depth without measuring it with a tire gauge; however, it was very obvious that the tread did not meet the minimum requirement. Because of the wear on the tire, the truck should not have been on the road. Because of the lack of tread, the right tire should have been replaced. He could not say whether the tire met the minimum requirement in the morning or seconds before the accident but tires are rated for distance. This type of wear would not happen overnight. If a tire had been rubbing against something, that could cause excessive wear but not across the total width of the tire. Mr. Da Silva stated that the right front tire could have blown at any time. Its condition could have impacted the steering.
[39] Mr. Da Silva stated that he was certain that there was an alignment problem because the truck was overloaded. An improper load could cause dog tracking. Mr. Da Silva stated that the tire could not have “got to that state” in a short period of time”.[^4]
Jordan Kupferschmidt
[40] Officer Jordan Kupferschmidt was one of the first officers to respond on scene after the collision. She observed the Freightliner in the ditch, with fuel leaking and debris on the roadway. She seized the driver’s cell phone and tried to identify the driver. She could not locate any identification on the driver so she used the MTO database to look up the Freightliner’s owner. Ecuacan was listed as the registered owner. There was contact information for Janeth Zambrano. Officer Kupferschmidt contacted Ms. Zambrano but was unable to communicate with her due to language issues. Ms. Zambrano put Mr. Urgiles on the phone. Mr. Urgiles incorrectly identified the driver as “Denis Joseph” instead of Denis Garant. Mr. Urgiles provided a phone number, but could not provide a driver’s licence, address, or date of birth. Mr. Urgiles stated that he did not have any paperwork because the driver had recently begun to work for Ecuacan; however, Mr. Urgiles did provide Officer Kupferschmidt with Mr. Garant’s personal vehicle’s licence plate number because it was parked in their lot. Using this, she was able to identify the deceased driver as Denis J. Garant.
Eric Steele
[41] Officer Eric Steele arrived at the scene at 11:06 a.m. and saw the dump truck that had left the road and gone into the ditch.
[42] Officer Steele stated that the road was straight with some rolling hills. It was a rural area with a posted speed of 60 km/h. Trees were on both sides of the roads as well as some residences. He saw a single black mark on the road from the driver’s side front tire that followed the path of the truck. The mark went far back from the scene. Officer Steele determined that the truck had been going northbound, made a sudden move to the west, had gone into the ditch and hit a tree. One tree had penetrated the cab. The driver was obviously deceased, having been transected by the tree. He noticed that the truck’s front right side tire was almost bald. The front left tire was blown.
Expert evidence regarding the collision scene and the truck’s front tires
[43] Sergeant Bill Millar, of the Southern Georgian Bay OPP detachment, was qualified as an expert in collision reconstruction and automotive condition and repair.
[44] He prepared a collision reconstruction report based on his personal observations that he made at the scene, field notes, police photos, a vehicle examination, Environment Canada weather data, Transport Canada and National Highway Traffic Safety Administration recall database, Google maps as well as information provided by Mr. McLaughlin as described below. This included the Engine Control Module, the Freightliner’s log book entries, and the Forensic Link Adaptor.
[45] Officer Millar testified that he arrived at the collision scene at 12:58 p.m. with Constable McLaughlin. He measured the scene using a total station, which measures distance and angles. Information from the total station was used to create a scaled diagram of the scene and roadway. He looked at the truck and reviewed the debris on the road such as parts of the left front fender and left front turn signal, including its broken lens.
[46] Officer Millar observed all of the tires on the truck. He testified that the front tires were bald from three quarters of the inner tread to the outside. There was no tread on them in these areas. The metal cords were exposed. He stated that a metal cord is like a skeleton or reinforcement for the tire. The driver’s side front tire had a hole on its inner side. Officer Millar also observed a thin black mark on the road going north from Line 2 all the way to the collision scene. It followed the path of the truck’s left side and veered suddenly to the left toward the edge of the pavement where there were two tire furrows into the soil. They followed the path of the truck where it came to rest. It was up against a large tree. There were no skid marks on the road.
[47] The truck had a load of soil in the dump box. It had not spilled over the edges. Officer Millar stated that the weight of the truck could be a contributing factor in how quickly the tread would wear; however, the tires are designed to handle the load. In good weather on a bare road surface, a driver would not be able to tell that tires were bald. In the rain, it would be obvious. The weight of a load would increase the risk of a tire’s blowing because a heavier load creates more friction.
[48] Officer Millar stated that Regulation 625 of the Highway Traffic Act states that a tire shall not have an exposed cord. Regulation 625.3(2) states that the front tires of a motor vehicle with a registered gross weight over 4,500 kg shall not have in any two grooves a tread depth less than 3mm equally spaced areas around the circumference of the tire. Although he did not actually measure the tread depth, he stated that the truck’s front tires did not meet these standards. The vehicle examination notes state that the inner half of the right front tire was “worn off down to cord”. Regarding the left front tire, the notes state, “tire inner ¾ tread worn off, cord exposed and broken.” The explosion of the left front tire could have caused some of the cords in it to be visible but some of the exposed cords were not caused by the explosion.
[49] Officer Millar testified that the truck was not permitted to be on the road nor was it safe to be on the road with tires in that condition. The condition was very obvious to the naked eye. He stated that the first thing he noticed about the front tires was that they had no tread on them. Regardless of whether a person was unfamiliar with doing a truck circle check or did an improper check, a person would not miss seeing the bald tires. Given their state, a person who was looking at them would say that they were not normal. The truck’s fender did not completely obscure them. He stated a considerable amount of time and mileage would cause excessive wear, resulting in the tires’ reaching this condition. It would likely be several thousand kilometers. It would not happen “overnight”. Improper alignment could cause it.
[50] Officer Millar stated that a vehicle with uneven tread on the inside of a tire could be hard to steer because the tires would be angled inward. A failed tire would cause a steering issue. The weight of a vehicle going down on a tire would cause a vehicle to go off in that direction. In this case, the vehicle would have pulled to the left and would have been hard to control.
[51] Officer Millar testified that based on his observations, he concluded that the collision was a result of the truck’s having an improperly maintained left front tire. It was worn out. The tread depths were below the minimum standard and the cords were exposed. The front left tire blew, causing the vehicle to veer to the left off the road and to strike a tree. This mechanical failure resulted in the driver’s fatal injuries.
Expert evidence regarding collision reconstruction, forensic truck and front tires analysis
[52] Brian McLaughlin retired from the Ontario Provincial Police on August 1, 2020 after 34 years of service. During his career, he carried out 727 vehicle inspections regarding serious collisions. On 510 of them he was the lead investigator. Mr. McLaughlin has taken approximately six courses relating to tire performance. Some were for commercial motor vehicles, including dump trucks. The courses included aspects of tire wear and tear in which tire components were reviewed as well as the cause of wear. Mr. McLaughlin was qualified as expert in the area of collision reconstruction and as a forensic mechanic. He inspected the truck at the scene and at a yard after it was removed.
Observations at Scene
[53] Mr. McLaughlin stated that he was assigned to assist with this collision along with Officer Bill Millar. Officer Millar looked at the scene whereas Mr. McLaughlin looked at the vehicle. His role was to look at the truck and determine whether any data could be retrieved from the engine. He was also to look at the mechanical components to see if there were any problems. He did a cursory walk along the roadway. Pieces of tire rubber were in the middle of the road close to where the left side of the truck was travelling. Vehicle parts, fiberglass and debris were on the road. There was a gouge mark from the center of the road toward the opposite ditch where the truck finally stopped. Mr. McLaughlin stated that this told him the left side tire was disabled. The rim contacted the road and pulled the truck to the left.
Examination of Tires
[54] Mr. McLaughlin stated that he examined the steer tires on the front axle at the collision scene. They were manufactured by Hankook. He stated that there was no tread on the inner half of either tire. He took a number of photos at the scene including photos of both front tires. Regarding the driver’s side front tire, the outer rim was bent indicating a possible blow out in the middle. The steel cord, which gives the tires strength, was exposed in the tread area that normally would have been covered by rubber. In contrast, the other tires on lift axles and rear axles were fairly new, in good condition and were properly inflated. He had no information as to whether the driver’s side front tire was new or used when it had been installed. Ordinarily, there should be even wear on tires. Installing a used tire would be acceptable if it met the standards set out in Regulation 625, of the Highway Traffic Act which states that tread must be a minimum of 3mm for a tire to be operated on a highway.
[55] Mr. McLaughlin explained that tread is the section of the tire that makes contact with the road. Little blocks of rubber are cut to create tread grooves. When a vehicle makes contact with road, the tread blocks can shift and flex to give traction and maintain control. They also dissipate water, snow and stones so that there is a full tire imprint on the road. This creates a bond between the tire and road for traction. Mr. McLaughlin testified that the front tires on this truck were not safe to be on road regardless of the load in the truck. They had the potential to fail because the tread was already gone. There was no tread on the inside half of the tires. This would be considered a major defect on an inspection.
[56] Mr. McLaughlin testified that tires get to this state of wear from regular driving on the road and from steering maneuvers. Wear on the inner half of a tire usually indicates an alignment problem in which the tops of the tires are closer to each other than they are at the bottom. They need to be adjusted. Tires wear down gradually as the vehicle is driven. Truck tires for the front axle are designed for heavier wear. They come with more tread, between 20 - 25 mm (almost an inch), depending on the manufacturer. It would have to be worn off as well as the mounting before the cord would be exposed. Without knowing the state of the tread at the beginning of the day, Mr. McLaughlin could not say whether it wore down that day. It would be impossible to say how much time would pass before the left front tire would wear down to its state at the time of the collision. Mr. McLaughlin stated that there are too many variables to predict how long tread might take to wear down; however, tread is not worn off “overnight”. A lengthy amount of time would be needed for tires to wear down to the point of having no tread.
[57] The fact that that something was wrong with these tires would be obvious to the naked eye. A person who was walking around a truck or towards the tires can see whether there is any tread on them. Tires like these could affect steering because steering requires traction.
[58] A smooth tire with no tread on smooth asphalt will have trouble with traction. It will slide. The outer tread could give some stability but only momentarily. Steering should be a smooth movement. If it becomes jerky, it feels like its working and then not working. The complaint would usually be that the truck was hard to steer. Steering cutting in and out could happen depending on the road surface. One side of the tread area could make contact causing the other side to slide.
[59] Mr. McLaughlin observed that the outer rim on the driver’s side front tire was bent, indicating a possible blow out in middle. On the right front tire, the inner half of the tread was worn off, down to the cord which was exposed.
Tie Rod
[60] One of the photos that Mr. McLaughlin took of the driver’s side front tire also shows a bent tie rod. A tie rod is a component that connects the front wheels so that during steering, they turn in the same direction. Mr. McLaughlin stated that a tie rod should not be bent. It should be a solid straight tube. In response to a question about whether it could have been damaged earlier in the morning by bottoming out, Mr. McLaughlin replied that a vehicle with a tie rod bent as shown in the photo would not have been driveable.
Examination at the yard
[61] Mr. McLaughlin stated that the truck was removed from ditch. The load was emptied and placed into another vehicle to determine its weight, which was 13,050 kg. The truck was towed to a yard, Curries, where Mr. McLaughlin further examined it. It was a rear wheel drive truck. Mr. McLaughlin did not tear the vehicle apart to inspect it. His inspection took almost three hours.
[62] The front end of the dump truck along with the steering column was pushed back in toward the cab. Even though they were severely damaged in the collision, Mr. McLaughlin stated that he could still observe the steering components. He was looking to see if they had come apart or were broken prior to the collision. He stated that he did not see any signs that a component was rubbing against something else. A steering box will show wear; however, to check the components, the truck would have to be turned on. He did not use any specific tools to check the steering because the engine would have to be running for that type of testing. He stated that the fractures were clean. If there had been pre-collision fractures, there would be a rust build up. There weren’t any. He agreed that power steering fluid, whether too high or too low, could affect the steering. Mr. McLaughlin stated that most of the damage to the steering components was from the collision.
[63] He noted that the speedometer was stuck between 50 – 55 km. He explained that speedometers operate on electricity. When the power is shut off to the speedometer, the needle stays where it was when it lost the power supply. The odometer was 970,759.8 km.
Traction Control Differential Switches
[64] Mr. McLaughlin took two photos of the truck’s dashboard which shows the traction control differential housings and switches.[^5] The housing has words on it that state, “Do not apply during spinout.” The vehicle would have to be stopped before the differential could be engaged. The switches on the housing are grey thumb toggles that can be moved from right to left to engage the differential. He stated that this feature is used to prevent tires from spinning. The differential can be locked so that the tires on each side of the truck will move at the same speed. It is useful where terrain is an issue, for example, if the truck is stuck at a work site or if the roads are icy. It would be used when the truck was operating at a lower speed, under 60 kph. Mr. McLaughlin stated that the differential was in the locked position at the time of the collision but he could not say whether the dump truck was driven with the differential engaged. An engaged differential would not have much effect if a vehicle were going straight on a road. It would have minimal impact on the steer tires because the driver was steering. It should not be used when travelling at a constant speed of 90 kph.
[65] Mr. McLaughlin was asked whether driver error, such as engaging the traction control, would increase the wear on the tires. He stated that it would cause wear on the rear tires. It would have minimal effect on the front tires.
(a) Front Axle
[66] Mr. McLaughlin could not do any further examination of the tires at Currie’s yard, such as removing them from the rims and looking at their interiors. This was because the truck’s front axle was not delivered along with the truck. It was disconnected from the truck at the collision scene. Mr. McLaughlin stated that he did not know where the front axle was. He checked with someone at the tow company who did not recall whether it was brought to Currie’s yard or if so, which tow vehicle it was on. He did not mention to Officer Millar that he did not have the axle for inspection. During the trial, some additional photos taken by Mr. McLaughlin at the yard were produced. The issue of the missing axle came to light when Mr. McLaughlin was recalled for cross-examination on the additional photos.
[67] Mr. McLaughlin stated that he would have preferred to take more photos. The best practice was to take the disabled tire off the rim and inspect it. This would have helped to determine the maintenance of the tires. Mr. McLaughlin stated that he fully examined the tire at the crash site and was content with the examination. He concluded from their condition that the tires should not have been on the road that day at that time. While he could not say whether they met minimum standards that day at 5:30 or 6:00 a.m., he stated that the wear showed that the rubber had worn off over time.
Impact Break
[68] Mr. McLaughlin explained that when a moving tire comes into contact with an object, the impact can deform part of the tire. Tire components can be broken. If the tire is new, the components can flex. Only one part of the steel cords might be damaged. The severity of the contact will determine when the tire becomes disabled. If the contact is very severe, the tire can become immediately disabled. If it is less severe, some time may pass before it becomes disabled. The structure weakens over time. The tire becomes more susceptible to expansion from air pressure and then blows out.
Steering
[69] Mr. McLaughlin testified as to the effects that the front tires of the Freightliner would have on its steering. He testified that steering would be directly impacted by the condition of its front tires. He stated that proper steerage of a vehicle requires traction from the tires. Mr. McLaughlin testified that a smooth tire, for example, one with no tread as observed on the front tires of the Freightliner, would cause issues with the steering. Specifically, Mr. McLaughlin testified that the steering could “cut in and out” when the driver of the Freightliner attempts to make a tight turn or where the surfaces are uneven, such as a dirt parking lot.
[70] Mr. McLaughlin stated that if a complaint was made about the steering such as, “The steering while turning with the wheels up cuts in and out like standard steering”, the truck should be checked by someone, including an operator, with the proper training to see if something was wrong. The review should start with the tires. If they are okay, then the steering system should be checked to see if any parts are worn out that would allow excess movement. There could be a problem with the steering box that might require adjustment. The truck should be taken to a trained mechanic. Simply moving the steering wheel to see if it worked would not be adequate. The steering wheel is just one part of the whole steering system. Mr. McLaughlin stated that a problem with steering is considered a major defect. If the lift axle is up, steering around corners should not be an issue. If it were down, turning a corner would be difficult. Because all the air lines were destroyed in the collision, the lift axle automatically came back up. There were no visual components to indicate that there was a previous problem with it.
Log Books
[71] Mr. McLaughlin explained the types of logs that apply to the driver and the truck: there are trip inspection books and driver log books. They may be separate or combined.[^6] At the beginning of each day, before the vehicle goes on the road, a driver or other person such as a mechanic is required to visually inspect the truck. Schedule 1 under the Highway Traffic Act sets out the items that must be inspected. One of them is to check for free play in the steering. Schedule 1 sets out the allowed amount. A trip inspection book is filled out by the person who does the inspection and stays with the truck while the vehicle is being operated. Failure to have a completed trip inspection could result in a ticket if the vehicle is pulled over. An inspection is good for 24 hours. Defects would be noted. A truck can be operated if it has a minor defect such as a headlight that is not working; however, it must be repaired before its next trip. If there is a major defect, the truck cannot be operated until it is repaired. The trip inspection book is mandatory and must be turned in at the end of each day to the operating company so that any defects can be rectified. There is no requirement for the inspecting person to have a device to measure tread. Tires that do not meet the tread depth requirements are considered a major defect. Anything unusual about the steering must be noted. Steering that cuts in and out is a major defect.
[72] A driver’s log book is personal to the driver. It concerns his driving hours because they are limited on certain days. Unless certain exceptions are met, the driver must mark 15 minute intervals when he is in a duty cycle. The driver’s log must be turned in within 20 days so that company can keep track of the hours. Only one driver should make entries into a log. Drivers’ logs are not mandatory; however, the operating company must have a system for recording drivers’ hours. It has to be produced if the truck is stopped by the police.
[73] In this matter, the inspection book and the driver’s log book were combined. There were two sections on a page. At the top of the page is a graph that the driver fills out to show when he is on and off duty. Under that is a section for the inspection. For each day, there was a white page, the company copy, and a yellow carbon copy, the driver’s copy, immediately behind it. The white page had to be turned in to the company within 20 days. It has an obligation to store the white pages. The yellow copy would stay in the book with the truck. If there are more than 20 days of white copy pages in the log, a vehicle could be taken off the road and the operator charged.
[74] Mr. McLaughlin stated that the inspection records did not show anything regarding steering issues on September 21 or 22, 2020. There were other irregularities. There were two entries for one date, September 9, 2020. Even though a steering issue is a major defect, there was nothing relating to a failed tire or tire change. On some days, the driver’s hours were not properly noted. In addition to Mr. Garant, a driver, Carlos Ortega, also made entries into the book. Some of them were for a different company, Grecador. Mr. McLaughlin stated that he had never previously seen this. It is not permitted. The records for each day still have the white pages and the yellow pages in the log which indicates that the inspection records were not turned in to Ecuacan as required.
Conclusion
[75] Mr. McLaughlin concluded that the Freightliner should not have been on the road because of the wear on the tires. The truck had a front end alignment problem because the tire tread was worn from the inside toward the outside. Improper maintenance had a big impact on the tire’s failure. The tire did not have enough structure. The tread had worn down significantly below standards to the point that there was just the casing of the tire without the rubber tread. The metal cords were exposed because the rubber had disappeared. Mr. McLaughlin stated that the left front tire was worn down to the point that it became disabled. It was worn out and exploded. It pulled the truck to the left side of the road and into the west ditch. This was the cause of the collision.
Evidence regarding execution of search warrant
[76] Domenic Wray was a Detective Constable with the Nottawasaga Ontario Provincial Police major crimes unit. On January 7, 2021 at 9:37 a.m., he and Officer Chelsea Poirier attended to execute an authorized search warrant for 2667 Kipling St., Suite 210 in Etobicoke, which was in a residential high-rise building. This was the listed address for Ecuacan. The search was for documents related to the Freightliner, specifically, the warrant authorized a search for documents related to maintenance, repair and ownership of the truck. Ecuacan was the corporate owner of the truck.
[77] Officer Wray testified that Janeth Zambrano answered the door. He told her they had a warrant to search the apartment and the reason for it. She did not speak English very well so she went to get Mr. Urgiles. Officer Wray stated that he explained the warrant to Mr. Urgiles and what the police were looking for. Mr. Urgiles stated that the documents to which the search warrant pertained were not in the apartment. Officer Wray stated that there was an office space in the kitchen. It was very small and cluttered with stacks of paper. There was no obvious filing system.
[78] Officer Wray stated that he and Officer Poirier went through the papers. They corroborated his belief that Ecuacan was being run from the apartment. Officer Wray testified that they did seize some of the documents including a vehicle inspection for a truck, a Ministry of Transportation ownership document for the truck with its vehicle identification number on it, a commercial vehicle operator registration for Janeth Zambrano, and several invoices.
Evidence of the investigating officer – Mr. Urgiles’ statement
[79] Chelsea Poirier is a police officer with the Nottawasaga Ontario Provincial Police detachment. She led the investigation regarding the collision. Officer Poirier attended with Officer Wray to execute the search warrant. Her evidence was the same as Officer Wray’s on this matter so I will not repeat it.
[80] Officer Poirier testified that Mr. Urgiles was arrested on May 4, 2021. She took a statement from him on that date. As noted above, it was admitted as voluntary. It was video and audio recorded. Mr. Urgiles speaks Spanish. Another officer interpreted for him but it was not a verbatim interpretation. For example, after Officer Poirier asked a question, the officer interpreted from English to Spanish, Mr. Urgiles answered in Spanish, and the officer interpreted back to English. The officer often said, “He’s [the accused] saying that…” The recording of the statement was played for the court. A transcript of the statement was provided. The following is noteworthy. When reminded of the fact that he had told Officer Poirier that he had warned Mr. Garant about the tire, his answer was interpreted to be:
He said it’s obvious that he mentioned to Denis because he was a good driver and that from experience, he know that he – he had a flat tire, like a front flat tire just in the back and that if he hit the sidewalk when he’s turning and he’s too wide, that’s why he mentioned to Denis about it. And - and that’s what he mentioned to you that he told Denis to be careful not to hit the sidewalk. If a tire takes a hit or something, it strikes the tire, sometimes the damage is internally and not all the time, like no exterior damages where you can see it. And he told, uh, him to be careful with the front tires because once it goes flat, it could be a fatal mistake, you have to be able to control the truck. He wasn’t taking a chance with that tire…And to the truck, he said I didn’t do anything to [the] truck, he said I never touched the truck.[^7]
[81] When asked how much training Mr. Garant had, his answer was interpreted to be, “He was, uh, with him three days and three days with another driver who also has a lot of experience.”[^8]
[82] When asked about his role with Ecuacan, the exchange in English with Officer Poirier was,
Q: So you did the maintenance, ordering parts, arranging for service, scheduling safeties?
A: Yes
Q: Uh, you also trained some of the drivers?
A: Yeah
Q: If there was an issue with one of the vehicles, who would be responsible for addressing the issue?
A: It will be me because I have to call to make arrangements because I have to – if he had to call a tow or he would be the one to make the arrangements.
Q: Okay. Okay. So aside from you and Janet[^9], is there anybody else that works for the company as a supervisor or a manager?
A: No. ..Sometimes they’d come to him. If he gets something fixed, then he will tell Janet of what is fixed
Q: Okay.
A: She would be the last one to know.[^10]
[83] Officer Poirier showed the Mr. Urgiles his cell phone records, most of which were texts. The defendant stated that the deceased would always call. Officer Poirier stated that this showed that Mr. Garant considered Mr. Urgiles to be his supervisor – he was the boss. Mr. Urgiles replied, “That’s ok.”[^11]
[84] Officer Poirier also showed Mr. Urgiles Mr. Garant’s cell phone records. On September 21, 2020, at 6:17 p.m., Mr. Garant sent a text to Mr. Urgiles that stated, “The steering while turning with the wheels up cuts in and out like standard steering.” He responded at 7:31 p.m. stating, “Tomorrow at Highway 27/finch jobsite 6:00 am tandem ticket thanks.” Mr. Urgiles stated that he moved the steering wheel and everything was fine. He believed that he checked the tires that night. He stated that everything was fine. He agreed that he was not a mechanic. Mr. Urgiles stated that Mr. Garant called him the next morning, September 22, 2020 at 9:30 a.m. and they discussed the problem. When Officer Poirier pointed out that Mr. Garant had died the next day after reporting the steering problem, Mr. Urgiles stated that it was not the reason why, that the tire had not been filled up. The truck was fine and that the reason the tire went flat is not because of the problem with the steering wheel.
Evidence of Sherry Werner regarding CVOR process
[85] Sherry Werner is a senior program administrator with the Ministry of Transportation in the carrier sanctions and investigation department.
[86] In the Carrier Vehicle Operator’s Registration program, Ms. Werner reviews applications from carriers, either individuals or companies, to determine whether CVORs should be issued. If a CVOR is issued, the carrier will be assigned a satisfactory unaudited safety record. If there are collisions, problematic safety inspections or drivers are convicted of offences, these events go on the CVOR record. As they accumulate, the violation rate will change. The system is automated. If a carrier reaches a 35% violation rate, it will receive a letter from the Ministry. If the rate continues to increase, a facility audit of its record keeping could be done. This would include maintenance and driver records. If a carrier fails an audit, this will remain until it passes another one. If a carrier reaches a 70% violation rate, a conditional safety rating will be imposed. An interview would be conducted. The conditional rating will remain until the carrier reduces it to 60%. An unsatisfactory rating is the most serious which can result in a suspension or cancellation of the CVOR. A suspension is not permanent. It could be for a certain length of time or until any fines are paid. A cancellation is permanent. The vehicle plates and permit are cancelled on the CVOR system. An owner could then be a driver for another carrier but cannot operate another business.
[87] Ms. Werner testified that anyone who is directly or indirectly affiliated with a carrier that has a conditional safety rating may not apply for a CVOR. This includes a spouse.[^12] Section 16 of the Highway Traffic Act states that the operator is responsible for the drivers, the loads and the vehicles. It is required to update any changes of information. Maintenance records must be kept for six months up to two years. According to Section 26 of Regulation 555/06, hours of service records, including log books, must be kept at the carrier’s place of business.
[88] Ms. Werner testified that Mr. Urgiles operated Milton Transporting Services Inc. (Milton Transporting) and was a corporate officer. She reviewed three documents: the Carrier Record, the Carrier Record with full details, and the Carrier’s level 1 abstract report summary. She stated that a CVOR was granted to Milton Transporting in 2006 and was cancelled on March 15, 2014 because of an unsatisfactory safety rating. Ms. Werner stated that Milton Transporting had a history of safety issues from the beginning. The Ministry sent it a warning letter in 2009 when its violation rate exceeded 35%. A second warning letter was sent in 2011. In 2012, Milton Transporting’s violation rate continued to climb. It had unpaid fines of approximately $7,000. The Ministry sent a letter stating that they had to be paid within 30 days. In 2012, an audit was done which Milton Transporting failed. An interview was scheduled; however, Mr. Urgiles did not attend nor did the company pay the fines. Because of the safety issues and unpaid fines, the cancellation was issued in April 2014. The specific details of record are not available because the cancellation occurred over nine years ago. Ms. Werner noted that Mr. Urgiles did not appeal the cancellation.
Credibility and Reliability
[89] The principle of reasonable doubt applies to credibility. In R. v. Guisalta, 2023 ONSC 2694 paras. 141 – 148, DiLuca J. made the following observations regarding assessing credibility and reliability of evidence:
141 There is no magic formula that applies in determining whether a witness is telling the truth. Instead, the witness' evidence is considered using a common-sense approach that is not tainted by myth, stereotype or assumption. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness' evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits; whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies and whether the inconsistencies suggest that the witness is lying.
142 In assessing a witness' testimony, there is a distinction between credibility and reliability. Reliability relates to the accuracy of the witness' testimony which engages a consideration of the witness' ability to accurately observe, recall and recount an event; see R. v. H.C., 2009 ONCA 56 at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. An incredible witness's evidence cannot be relied on. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence; see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p. 526.
144 The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada many years ago in R. v. W. The W. (D.) methodology is not a rigid or formalistic rule that requires rote incantation. Rather, it is an analytical framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests; see R. v. J.H.S., 2008 SCC 30 and R. v. C.L.Y., 2008 SCC 2.
145 In applying the W. (D.) methodology, I am mindful of the following additional guidance that has been provided by the caselaw. First, the W. (D.) methodology applies not only to instances where the defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown's case, for example, where the Crown tenders a statement by a defendant which is in part or in whole exculpatory; see R. v. B.D., 2011 ONCA 51 at para. 105.
146 Second, in considering the first two steps of the W. (D.) analysis, the evidence of the defendant must be considered in the context of the evidence as a whole. In other words, the assessment is not simply whether the defendant's evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (ON CA), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).
147 Third, the second step of the W. (D). analysis is important. It emphasizes the point that there is a third alternative between complete acceptance and complete rejection of a defendant's evidence; see R. v. J.E., 2012 ONSC 3373 at para. 20 and R. v. J.M., 2018 ONSC 344 at paras. 9-20.
Evidence of Janeth Zambrano
[90] Ms. Zambrano, who was substitutionally served with a summons, did not attend at trial to testify. A material witness warrant was issued for her arrest; however, she could not be located. Her evidence from the preliminary hearing held on February 1, 2023, with a Spanish interpreter, was admitted at trial.
[91] Ms. Zambrano testified that Mr. Urgiles was her partner. They met 24 years earlier, had been together for 12 years and had lived together for six years in her residence at 267 Kipling Avenue, apartment 1209. Back then, he was working as a truck driver for his brother’s company, Urgiles Brothers. She knew that he previously had a CVOR but did not know anything about it. She stated that she did not ask him about it because it was part of his life before they were together. She was not interested in his past.
[92] Ms. Zambrano stated that she started Ecuacan about five years earlier when she obtained the CVOR.[^13] She had no experience with dump trucks nor could she drive one but she had friends who did. She stated that she did the hiring and firing. On February 1, 2023, Ecuacan had five trucks. Ms. Zambrano stated that she met Mr. Garant because she had advertised that she was hiring.
[93] Ms. Zambrano stated that in the afternoons, she was always at the yard where the trucks were parked. She paid the drivers and got the tickets and the log books from them. She would see where they were going the next day. She did all of the bookkeeping and the banking. In September 2020, she had three drivers including Mr. Garant. She met him in the yard after he had seen the advertisement. She stated that she saw his driver’s licence on the first day, which was a Z licence. She did not take any steps to see if it was in good standing. He told her that he had experience driving for other companies and also driving concrete trucks. She said that he would go through some training to see whether he knew how to operate a truck.
[94] Ms. Zambrano stated that she did not have any paperwork for Mr. Garant because he was supposed to bring it on the day that he passed away. She never had any text or email communications with him.
[95] Ms. Zambrano stated that Mr. Urgiles checked the trucks for her to see if there was anything that was not working properly and needed to be fixed. She needed to know that because otherwise, the truck could not leave the yard. She stated that the drivers have to check over the trucks before they drive them. They learn this when they get their licence. If they see something that is damaged, they must tell her. She would decide what to do next. If a truck had a defect and she left it, the truck would not be driven. She would have to find a way for it to be fixed. Ms. Zambrano stated that a driver should be checking the safety of his vehicle to make sure that it is in perfect condition when it goes out. She stated that in the afternoon, when she was at the yard, the drivers would notify her if something was not working properly. She would tell them not to move the truck until it was fixed.
[96] Ms. Zambrano stated that the only people in the company who check the trucks are the drivers. If something is not working properly, then “we” would take the trucks to the mechanics. When asked about which truck Mr. Garant drove, she said it was a 2006 International.
[97] Ms. Zambrano stated that Mr. Urgiles communicated with the clients. They contacted him. He secured the contracts. He let her know what they wanted. He passed along this information to her because she is the owner. She stated that if she was okay with the hours of work and if the truck was okay, then they could go. Mr. Urgiles spoke with the drivers regarding the directions.
[98] Ms. Zambrano stated that she did not receive any complaints from Mr. Garant about the condition of the truck. If a driver told Mr. Urgiles that something was wrong with a truck, he was supposed to tell her. That had never happened. She was not aware of any problems regarding the truck that Mr. Garant was driving.
[99] Under cross-examination, Ms. Zambrano stated that she monitored the tires to make sure that the tread was not worn out. When the trucks came in, she did a walk around and would see the wheels but she stated that she not a mechanic. The right front tire on the Freightliner was changed before the collision. It had exploded on a weigh scale on September 9, 2020 as a result of driver error. She stated that after the tire was changed, she made sure that all the other tires were in good working order. When the truck returned to the yard, she made sure that everything else was fine with it.
[100] Ms. Zambrano stated that she saw Mr. Garant driving the truck once when he was returning it to the yard. She stated that she told him to slow down.
[101] Ms. Zambrano stated that at the time of the collision, she had four trucks. If she saw a problem with tires, she would tell a mechanic right away. She would tell her brother or Mr. Urgiles, whoever was available to help her.
[102] Ms. Zambrano testified that Mr. Urgiles would tell her where the drivers had to go and then she informed them where to go. When the trucks came back, she checked to make sure the drivers had signed off on their inspections. She stated that she checked Mr. Garant’s truck. He did not say that anything was wrong with it. After the collision, she saw the truck. The tires were completely destroyed. The right front passenger tire was still on the truck. The tread was worn down. On September 21, 2020, the day before the collision, she did not see how badly it was worn down. She stated that if she had seen it like that, she would have told Mr. Garant not to drive the truck.
[103] Ms. Zambrano stated that the drivers have to check the trucks before they leave. She stated that in the afternoon, she would go around to see if everything was okay. She did not have any training that qualified her to do truck inspections. She was just doing the basic orientation as to whether the tires were okay. The driver had a book and he was supposed to check. He was supposed to let her know that everything was okay. She checked the books to see that the drivers had filled them out and said that it was okay before they left. She stated that then she would see that they had indicated that there is something wrong with the trucks. She made sure that the trucks did not go out. She stated that she would take a spin around the truck to see if the tires were okay. The driver had to tell her if there was something wrong with the truck. She looked at the tires to see if they were low or if they had a nail in them.
[104] Ms. Zambrano stated that Mr. Urgiles sent the message to Mr. Garant about picking up loads. She sent messages out on Mr. Urgiles’ phone. She was the only one who decided whether a truck could go out on the road. Mr. Urgiles could not make these decisions.
[105] Ms. Zambrano stated that Mr. Garant called Mr. Urgiles about the tire that exploded on September 9, 2020. A company came to change it. She paid cash to have a new one put on. She came in and looked at it in the afternoon. To her, it looked new. She stated that her brother went over there. He could tell a good tire from one that is not.
Credibility and Reliability
[106] I find Ms. Zambrano’s evidence to be internally and externally inconsistent. The following are some examples:
a) Ms. Zambrano stated that Mr. Urgiles checked the trucks for her to see if there was anything that needed to be fixed; however, she also stated that the only people in the company who check the trucks are the drivers. Subsequently, she stated that she monitored the tires to make sure that the tread was not worn out. She stated that after the right front tire was replaced on September 9, 2020, she made sure that all the other tires were in good working order. When the truck returned to the yard, she made sure everything else was fine with it. She stated that she checked Mr. Garant’s truck. This evidence is inconsistent. It is also beyond belief because she had no mechanical training to check trucks.
b) Ms. Zambrano testified that Mr. Urgiles spoke with the drivers regarding the directions. Subsequently, she stated that Mr. Urgiles would tell her where the drivers had to go and then she informed them where to go. She would send messages using Mr. Urgiles’ phone. This is inconsistent and not credible because Ms. Zambrano’s English was limited.
c) When asked which truck Mr. Garant drove, Ms. Zambrano stated that it was a 2006 International. This is incorrect. The uncontroverted evidence is that it was a Freightliner. The company had only five trucks. The accident occurred two years and five months before Ms. Zambrano testified. The fact that she could not recall which of her five trucks had been involved in this tragic collision calls into question her memory and the accuracy of the rest of her testimony.
d) When asked where she was living with Mr. Urgiles, she stated 267 Kipling Avenue apartment 1209. This is inconsistent with the apartment that was searched pursuant to the warrant, 2667 Kipling St. Suite 210, according to Officer Wray. Mr. Urgiles confirmed this address. Ms. Zambrano was living in the apartment when she gave this evidence.
e) Ms. Zambrano stated that after the collision, she saw the truck. The tires were completely destroyed. The right front passenger tire was still on the truck. The tread was worn down. This evidence is also beyond belief because there is no evidence that she was at the accident scene. That was the only location where she could have seen the tires because the front axle was not taken to Currie’s yard.
f) Ms. Zambrano’s evidence that the drivers were responsible for checking the trucks deflected blame from Mr. Urgiles on to Mr. Garant; however, some of it deflected blame from herself to Mr. Urgiles. For example, she stated that if a driver told Mr. Urgiles that something was wrong with a truck, he was supposed to tell her. That had never happened. She was not aware of any problems regarding the truck that Mr. Garant was driving.
g) Ms. Zambrano confirmed that Mr. Garant was not paid for any of his work. She stated that she still had the pay cheques because, as a result of the collision, he did not cash them; however, the fact that she did not give them to him before the collision meant that he could not cash them.
[107] Overall, I find Ms. Zambrano’s evidence to be generally unreliable. I place little weight on it.
Evidence of Mr. Urgiles
[108] As noted above, in R. v. W(D)[^14] the Supreme Court of Canada set out a three step process regarding how a defendant’s evidence must be considered. This is how it applies here:
a) If I believe Mr. Urgiles’ evidence, I must acquit him;
b) If I do not believe Mr. Urgiles’ evidence but am left in a reasonable doubt by it, I must acquit him; and
c) If I do not believe and am not left in a reasonable doubt by Mr. Urgiles’ evidence, I must consider whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of his guilt.
[109] Mr. Urgiles is 46 years old. He was born in Canada and raised in Ecuador. He testified that he did some truck driving there and also developed some experience in repairing trucks. He was not a licensed mechanic there or in Ontario. He stated that in 2000 or 2002, he obtained an Ontario commercial vehicle licence, which permitted him to drive trucks here. No criminal record was noted. He was a broker and had contacts with construction excavators. He stated that he gave out jobs to Ecuacan and other companies and was paid a commission for the broker work.
[110] Mr. Urgiles stated that he and Janeth Zambrano, the owner of Ecuacan, lived together on and off from 2015 until 2019 when he moved in with her. Up to the trial, they were living together. He stated that when the case began, he’d had some problems with her. He did not know where she was.
[111] In addition to being a broker, he was also working for Ecuacan as a driver. Ecuacan had four or five trucks. He did not own any of them then. The Freightliner was the newest. Mr. Urgiles testified that in September 2020, prior to the collision, he drove the Freightliner. It had passed the annual safety test.[^15]
[112] Ecuacan had three or four drivers. Ms. Zambrano did not speak much English. He helped her with translations. She was not involved in the dispatches. He kept her informed. Mr. Urgiles stated that he would figure out where a load would be picked up or dropped off. He was the supervisor and decided where the drivers would go to work and where they would dump loads.
[113] He stated that he did a truck circle check every morning before he drove a truck. The Ministry required it. He checked the motor oil, the oil in the steering box, the air pressure in the brakes, the brake chambers and hoses to make sure they were not loose, the mirrors to make sure they were not loose, the lights, the steps up to the cab and the tires. If he noticed a problem, he had to report it to Ms. Zambrano. If he saw a problem, he recorded it in the log book. He explained that if a defect was something simple such as a light, the truck could be driven in contrast to a major defect, in which case the truck could not be driven. Drivers would report truck defects to him. He recalled that in his statement to the police, he said that Ms. Zambrano would be the last to know if anything was wrong with a truck. The drivers would contact him because she did not speak much English. If a driver contacted him about a defect, he would report it to her. Sometimes she was at the yard where the trucks were stored. Ecuacan did not have any written policy about how to report truck issues.
[114] Mr. Urgiles stated that the log book for the Freightliner was kept in the truck. It had to be kept there because 14 to 15 days later, it had to be checked for defects. He stated that he recorded in the log book the dates that he worked. He recorded that he drove the truck on September 5, 2020. On the relevant page he wrote September 5, 2020 on the left side and September 8, 2020 on the right side. He stated that he could have made a mistake when he wrote “8” rather than “5”. On that date, no defects were noted. Mr. Urgiles stated that if he was not driving the truck,[^16] he was required to do a circle check and check off the items listed at the front of the book in Schedule 1. Completing the log book was part of his job.
[115] Regarding the operation of the truck, Mr. Urgiles explained that there are three switches inside the cab: a red one for the tail gate, a black one for the tarp that goes over the truck’s bin to cover the material and another black one for lowering and raising the axle when the truck is loaded. The two black switches are close together. The red one is separated. The axle would be lowered if there was a heavy load because there was some distance between the front axle and the back axle. It would have to be raised when the truck went around a corner because it does not turn. A driver would have a lot of difficulty turning the truck around a corner with the axle down. It would affect the steering. The truck might keep going straight. Regarding the red switch for the tail gate, a driver would have to hit that switch to unload the material from the bin so that the door would open and go down to the ground. All of the switches are near the gear shift next to the driver’s position.
[116] Mr. Urglies testified that he first met Mr. Garant in September 2020. He did not hire him nor pay him. Ms. Zambrano did. She decided that Mr. Garant would drive the Freightliner. He could see that Mr. Garant knew how to drive a truck because they had training sessions – he was in the Freightliner with Mr. Garant when he was driving. He showed Mr. Garant how to do the job because he had the most experience with trucks. Nobody else showed Mr. Garant how to operate the truck. He explained to him the truck’s system regarding how to load and unload the materials, and how to operate the axle. Mr. Urgiles stated that he spent three to four days with Mr. Garant doing this, although he could not recall exactly. He stated that he told Mr. Garant to always check out the truck. Mr. Garant always did circle checks when Mr. Urgiles was with him. Mr. Garant made entries in the log book.
[117] Mr. Urgiles stated that he showed Mr. Garant the routes to take to pick up materials and dump them. Mr. Garant needed help with the terrain regarding the places he was going to dump materials. Mr. Urgiles explained that sometimes it was fine but sometimes it was soft. One had to be careful about where things had been planted. There were a lot of stones in the terrain.
[118] Mr. Urgiles stated that on September 9, 2020 before the collision, the Freightliner had a front passenger side tire blow out when Mr. Garant was driving. Mr. Garant called him. Based on their conversation, Mr. Urgiles understood that this occurred at a weigh scale and that Mr. Garant had gone to weigh the truck but hit the tire against the scale’s barricade. Mr. Urgiles stated that he told Mr. Garant that he must be extremely careful of the tires, especially the front ones. They were both replaced at the scale location. Mr. Urgiles stated that he called Ms. Zambrano immediately to tell her what happened. When the truck came back to the yard, Mr. Urgiles checked the replacement tires to make sure they were good. Everything was fine. He stated that Ms. Zambrano as owner, was responsible for maintaining the trucks and keeping them roadworthy. The flat tire was a major defect that should have been recorded in the log book but was not.
[119] Mr. Urgiles stated that he did not have defined work hours at Ecuacan because sometimes he would be driving other equipment such as tractors at dump sites. The other drivers did have defined work hours. They started at 7 a.m. but were supposed to be at the yard earlier than that because they had to check the condition of the trucks. The finish time varied depending on the trip that they were making. Mr. Urgiles stated that he would tell the drivers when to show up and where to go. If they were to go to a site that was different from the previous day, he would explain how to get there.
[120] Mr. Urgiles stated that on the day before the collision, Mr. Garant sent him a message in the afternoon. It said that there were problems with the steering. It was cutting in and out like standard steering. Later in his testimony, Mr. Urgiles said that he received the message from Mr. Garant between 8:00 p.m. and 11:30 p.m. He stated that Ms. Zambrano called him on WhatsApp. He told her what was going on with the truck and that he was going to check it.
[121] He stated that he first checked the oil in the steering; then he tried rotating the steering wheel from left to right to see if there were any problems with the steering pump; then he checked the joints in the steering area and the bar that goes from the steering column to the steering box. He checked the crossings at the steering box to see if they were okay. He checked the front two tires. They had a lot of use in them and were fine. There was no defect. He also did a circle check. He checked the back, the suspension and the bushing to see if anything was wrong with the stabilizing mechanism. He checked to see if any of that could be causing a problem. He checked the oil in the motor. He stated that everything was okay. There were no defects in the front tires.
[122] Mr. Urgiles stated that when he got home, he told Ms. Zambrano that he had not found anything wrong. He did not want to call Mr. Garant then because it was quite late. This is why he called him the next the morning.
[123] Mr. Urgiles testified that he usually communicated with Mr. Garant by telephone and text messages. He would not normally call drivers at 5:20 a.m. He called Mr. Garant at that time on the morning of the collision. They spoke for 88 seconds about the problem with the truck, the switches for the tarp and raising it. Mr. Urgiles stated that he told Mr. Garant to pay attention to it because perhaps he was using the wrong button. Maybe he was raising the tarp rather than the lift axle. Mr. Urgiles stated that during this conversation, he was at home with Ms. Zambrano. He had the phone on speaker so that she could hear the conversation. He told Ms. Zambrano to make sure that Mr. Garant checked the buttons for the tarp and lift axle. He stated that Mr. Garant called him back. He understood that the truck was okay.
[124] Subsequently, Mr. Garant called him at 9 a.m. They discussed the switches again. Mr. Urgiles believed that Mr. Garant was not raising the axle when he was turning corners, which was the reason why he was having trouble with the steering’s going in and out. It was his mistake. He was using the wrong switches but the truck was okay. Mr. Urgiles stated that he did not tell anyone else about this conversation. He was not sure whether he was with Ms. Zambrano during the conversation. He stated that he informed her about the mistake. He usually communicated with her by telephone, WhatsApp, texts and the Messenger App. She made the decision that the truck would go back on the road.
[125] The next time that Mr. Urgiles saw the truck was approximately one to two weeks after the collision, at Currie’s yard. He stated he saw that the left front tire had exploded. He looked at the right front tire and said it was going to do the same thing eventually. Half the tire looked good; however, the inside area did not. The left tire was the same. He stated that the tires did not look like that on the day before the collision. If they had, the truck would not have been permitted to be on the road.
Cross-examination
[126] Mr. Urgiles stated that he was responsible for the day-to-day operations of the company. Because he had contacts with excavating companies and was a broker, he provided to Ecuacan all of its work. Ms. Zambrano did not obtain the work. All of the communications to the drivers regarding dispatching trucks for the work went through him. If Mr. Garant was having any issues with the truck, he would send a text or call Mr. Urgiles.
[127] Mr. Urgiles agreed that between September 7, 2020 and the date of the collision, he and Mr. Garant exchanged numerous texts daily on topics such as the location of the work for the day, how to get there and the required dump tickets. Mr. Garant kept Mr. Urgiles updated daily as to his whereabouts, where he was going and asked for direction. Mr. Urgiles agreed that Mr. Garant relied on him for information as to the work required and how to do it.
[128] Mr. Urgiles agreed that on the day before the collision, Mr. Garant sent him a text at 6:17 p.m. in which he stated, “The steering while turning with the wheels up cuts in and out like standard steering.” [emphasis added] Mr. Urgiles agreed that his response at 7:31 p.m. was “Tomorrow at Hwy 27/finch job site 6:00 am tandem tickets thanks”.
[129] Mr. Urgiles stated that Ms. Zambrano knew some things about trucks. She could check the tires, oil and log books. Mr. Urgiles was present for her testimony at the preliminary inquiry. When the suggestion was made that she did not say that she could do all of those things at the preliminary inquiry, his answer was that he did not remember.
[130] Mr. Urgiles stated that he did not remember whether he had previously owned the Freightliner but there was a possibility. Mr. Urgiles was shown the Ministry of Transportation vehicle inquiry document which records the history of the Freightliner’s ownership. It shows that he was the registered owner on May 16, 2017. When asked whether this refreshed his memory, he stated again that he did not remember but there was a possibility, maybe because of insurance. He stated that he could not get insurance - there was a possibility that he could not afford insurance so he sold it. The Ministry of Transportation document shows that it was sold to Ecuacan, then Grecor Construction Inc., then it was sold back again to Ecuacan.
[131] Regarding his own company, Milton Transporting Services Inc., Mr. Urgiles was not certain as to when he lost the CVOR. He said 2014 but he was not really sure. When the suggestion was made that he lost the CVOR because he had not paid the accumulated fines, he stated that he did not remember. He stated that he lost the CVOR because the Ministry had sent a letter to him but he did not respond. He had moved but had not changed his address with the Ministry. The letter went to his previous residence so he did not receive it. He did not remember whether infractions had accumulated. He recalled getting tickets. When the suggestion was made that not paying the fines affected his CVOR, he stated that he did not have any information about it. When the suggestion was made that when infractions added up he would lose privileges, he stated that he thought so but was really not informed about that. He stated that he did not have a bad CVOR rating, in fact it was fine. Mr. Urgiles stated that he found out about the fines during this trial.
[132] Regarding his communications with Ms. Zambrano, Mr. Urgiles stated that they called and texted each other every day, sometimes multiple times a day. On the day before the collision, the cell records show no communications until 16:56. There were three more at 17:04, 17:17 and 20:14. Mr. Urgiles stated that in the evening, after he received Mr. Garant’s text, he called Ms. Zambrano through WhatsApp to inform her of the text. Then he stated that he remembered that they spoke in the afternoon when he went to check the truck after Mr. Garant had told him about it. Then he stated that somewhere between 8 p.m. and 11:30 p.m. he went to check the truck. Ms. Zambrano called him by WhatsApp because he had not come home. Then he stated that he had been at his brother’s yard and sent Mr. Garant a message about where he was to work the next day. That is when he read Mr. Garant’s message. When he was on his way to Ecuacan’s yard to check the truck Ms. Zambrano called him on WhatsApp. This was the first time he told her that the truck was having an issue.
[133] Mr. Urgiles stated that he went to the yard to check the truck because that was something he could do to help out. He had to go because Mr. Garant had sent the message. He had some experience as a driver and could tell what needed to be done. He was not a mechanic. He had to keep up with repairs as required based on his experience. He agreed that he was not qualified to inspect trucks for safety.
[134] Mr. Urgiles stated that after Ms. Zambrano listened to his telephone call with Mr. Garant the next morning, she decided that Mr. Garant could drive the Freightliner.
[135] Later in his testimony, the following exchange occurred:
Q: You also remember him just asking you whether you told anybody else about the conversation with Mr. Garant?
A: You mean my lawyer?
Q: Yeah, just now he was asking you questions.
A: Yes, with my lawyer.
Q: Right. Do you remember what your immediate answer was to that question?
A: I said no.
Q: And, in fact, you just answered in English there, you said "Yes, I don’t know”; right?
A: I did not say “I don’t know”. I said “No”.
Q: Okay. So your answer was “No”?
A: Because my lawyer asked me that. He knows what he asked me.
Q: Right. And you know your answer was no to whether you spoke to anybody…
A: No.
Q: You understood the question; right?
A: Yes.
Q: And your answer was, no, you didn’t tell anybody else about your conversation with Mr. Garant?
A: No.
Q: Then your lawyer asked you again was there anybody else there to hear the last conversation; remember being asked that?
A: Yes.
Q: Do you remember what your answer was to that?
A: Janet.
Q: No, that wasn’t your answer, sir.
A: I told her about the problem, but the answer is not that I did not tell anyone else.
Q: So your answer to Mr. Abbey, your lawyer, after following up to your answer “No”, was “I don’t know, I’m not sure I was with Janeth.” Do you agree that was your second answer?
A: No.
Q: You don’t agree that wasn’t your second answer?
A: No.
Q: So you didn’t say about five minutes ago that you don’t know and you’re not sure if you were with Janeth, you didn’t say that?
A: Yeah, that is true.
Q: What’s true.
A: To tell the truth is that I don’t remember if I was with her or not at that moment.
Q: So and that’s the truth. Right?
A: Yes.
Q: So you didn’t tell anybody else about the conversation you had with Mr. Garant and you don’t know if Janeth was with you?
A: Yes, that is the truth, however, my duty was to inform her what was going on because she is the owner.[^17]
[136] Mr. Urgiles recalled that he gave a statement to the police, specifically Officer Poirier. He recalled telling her that he was the manager and trainer for Ecuacan. He agreed that he trained drivers but just as to how the dump truck worked. He did not teach them to drive.
[137] Mr. Urgiles agreed that the blown tire at the weigh scale should have been recorded in the log book. He did not recall whether it was recorded. At the end of that day, he checked to make sure that the new tire was okay.
[138] In his police statement, Officer Poirier asked Mr. Urgiles who was responsible for the vehicle maintenance. He stated that if it was something simple, he could do it himself. Ms. Zambrano asked him to help with that. In his statement, he said that he checked the truck by only twisting the steering wheel from side to side. At trial, he testified that he did much more. He checked the oil in the steering. He tried rotating it from left to right to see if there were any problems with the steering pump. He checked the joints in the steering area, the bar that goes from the steering column to the steering box. He checked the crossings at the steering box. He checked the front tires. There was no defect. Everything was fine. In his trial testimony, he conceded that he did not say anything to Officer Poirier about doing anything else except moving the steering wheel. He stated that a truck’s steering could be checked without driving it. Checking it when the vehicle was stopped would be easier. Mr. Urgiles conceded that he had no mechanical training that qualified him to check a truck’s steering. Nevertheless, he believed that what he had done was sufficient.
[139] Mr. Urgiles stated that if a truck had a small electrical problem, he would fix it. If there was a tire problem, he would take the truck to Poplar Tire. Sometimes a person cannot tell whether a tire has a defect. He agreed that he could not look underneath a truck because he was not qualified to do it. If someone told him a truck had a steering issue, it would be important to take the truck to someone qualified. Later in his testimony, Mr. Urgiles conceded that when Mr. Garant told him the truck had a steering problem, he should have taken it to someone who was qualified to look into it.
The Missing Axle
[140] Mr. McLaughlin said that the axle was not delivered to the yard so he could not do any further inspection of the tire. The Defence states that this resulted in an incomplete inspection. This is inconsistent with the Defence evidence. Mr. Urgiles said that after the accident, he first saw the Freightliner at Currie’s yard. The left front tire had completely exploded. Ms. Zambrano stated that after the collision, she saw the truck. The tires were completely destroyed. The right front passenger tire was still on the truck. The issue of who saw or did not see the axle at the yard is not determinative. The evidence regarding the state of the tire was the same. Mr. McLaughlin, Mr. Urgiles and Ms. Zambrano all stated that the tire had exploded.
Credibility and Reliability of Mr. Urgiles’ evidence
[141] There are a number of external and internal inconsistencies in Mr. Urgiles’ evidence. Mr. Urgiles stated to Officer Poirier that he was responsible for the day-to-day operations of the company. His testimony about how he checked the truck after the front right tire was replaced because it had exploded at a weigh scale and how he checked the steering after Mr. Garant’s text shows he did other work for Ecuacan beyond being a broker and a driver. He testified that he was the person who would ensure that the trucks were taken to the shop. He did minor repairs as requested by Ms. Zambrano; however, in his testimony, he maintained that he was just a broker and driver. This is inconsistent with his police statement and with his later evidence that the drivers contacted him because Ms. Zambrano did not speak much English. It is also inconsistent with his later evidence regarding the assistance that he provided to her. His testimony that he was just a broker and driver was an attempt to distance himself from the operations of the company; however, his testimony regarding determining the next day’s work, instructing the drivers as to where the job sites were located and giving them the routes shows that he had authority to direct how the drivers did their work. As noted above, number two of the agreed statement of fact provided at the beginning of the trial states that Mr. Urgiles was Mr. Garant’s supervisor.
[142] Regarding the communications, initially, Mr. Urgiles stated that he received Mr. Garant’s text about the steering problem in the afternoon. He and Ms. Zambrano spoke in the afternoon when he went to see the truck. This would have been impossible because he did not receive Mr. Garant’s text until 6:17 p.m.
[143] Subsequently Mr. Urgiles stated that he received the text message from Mr. Garant between 8 p.m. and 11:30 p.m. Both of these recollections were incorrect. The cell phone records show that he received the message at 6:17 p.m. He stated that he did not recall the full text. Then, he agreed that Mr. Garant sent him the message about the steering at 6:17 p.m. He stated that he was at his brother’s yard when he received the text and was on his way to Ecuacan’s yard to check the truck when Ms. Zambrano called him on WhatsApp. He stated that this was the first time he told her that the truck was having an issue. Then, he stated that Ms. Zambrano called him on WhatsApp later in the evening. During this call, he told her about the truck and that he was going to check it.
[144] Mr. Urgiles’ inconsistent recollections of the timing of these important events leads me to conclude that this evidence on this topic is not credible. His evidence regarding Ms. Zambrano’s decision that Mr. Garant could drive the truck the next day is unreliable as demonstrated by the transcript reference above.
[145] Mr. Urgiles stated that he told Ms. Zambrano to make sure that Mr. Garant checked the switch for the tarp and the lift axle the next day. This is inconsistent with his evidence that Ms. Zambrano spoke little English so he communicated with the drivers.
[146] Regarding checking the steering after receiving the text from Mr. Garant, in his statement to Officer Poirier, Mr. Urgiles said he did not touch the truck at all. In his testimony, he attributed this inconsistency to not understanding what he was being asked, despite having an interpreter. Subsequently he stated that he only moved the steering wheel from side to side and checked the oil in the steering box – everything was fine. In his testimony, Mr. Urgiles stated that he rotated the steering wheel to see if there was a problem with the steering pump. He listed a number of things that he checked. I find that his trial testimony was exaggerated to give the impression that he took more care to review the steering than he actually did.
[147] Mr. Urgiles stated that Mr. Garant’s trouble with the steering was caused by his not lifting the axle while going around corners, in other words, the steering problems were Mr. Garant’s fault. There was no basis for Mr. Urgiles’ to believe this because Mr. Garant’s text to him clearly states that he was having steering trouble when the axle was lifted. Mr. Urgiles also suggested that the Freightliner hit something which bent the cross bar, thereby causing accelerated wear on the tires. There was no evidence to support this. Mr. Urgiles’ speculations were attempts to deflect blame on Mr. Garant.
[148] Mr. Urgiles stated many times that he could not remember things. Some examples are:
a) He could not remember what Ms. Zambrano said at the preliminary inquiry about her involvement with the trucks;
b) He could not remember whether he previously owned the Freightliner, even though the Ministry records show that he personally owned it only six years earlier and he heard the MTO representative, Ms. Werner, testify about this.
c) He could not remember whether infractions had accumulated for Milton Transporting, even though he heard Ms. Werner’s testimony. She stated that the company owed $7,000 for fines.
d) He could not remember whether he had paid Milton Transporting’s fines;
e) Mr. Urgiles testified that Milton Transporting did not have a bad CVOR rating. In fact, it was fine. He stated this after he heard Ms. Werner’s testimony that its violation rate exceeded 35% and that the CVOR was cancelled because of safety issues and unpaid fines.
[149] I do not accept Mr. Urgiles’ evidence that after he received Mr. Garant’s text, he checked the tires and they were fine. He had a motive to give this evidence, namely to insulate himself from the allegation that he was criminally negligent and had caused Mr. Garant’s death. Mr. Urgiles’ inability to remember events and facts that portray him in a negative light concerning his previous company and his inconsistent testimony on important matters, leads me to conclude that his evidence is generally incredible and unreliable. I give it little weight.
[150] As noted earlier, the Crown bears the burden of proving Mr. Urgiles’ guilt beyond a reasonable doubt. According to the third step of R. v. W. (D.). I cannot not find Mr. Urgiles guilty just because his evidence is incredible and unreliable. I may find him guilty only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
Credibility and reliability of the evidence of Officer Bill Millar, Retired Officer Brian McLaughlin and Marlon Da Silva
[151] These three witnesses were qualified as experts as noted above. No expert evidence was called to contradict their evidence. I find that their evidence is credible and reliable. Specifically, I accept the following:
a) at the accident site, the tread depths of the Freightliner’s front tires were below the minimum standard and pretty much bald (Da Silva);
b) The tires were worn from the inside to the outside (Millar);
c) The metal cords were exposed (Millar);
d) There was no tread on the inner half of either tire (McLaughlin);
e) the usual cause of tires’ wearing from the inside to the outside is an alignment problem (McLaughlin);
f) This type of wear would not happen overnight (Da Silva);
g) a lengthy amount of time and mileage would be required for the tires to wear down to the point of having no tread – it would likely be several thousand kilometers (Miller, McLaughlin);
h) the improperly maintained front left tire caused the explosion and the collision (McLaughlin);
i) the tires’ lack of tread was visible to the naked eye (Millar);
j) the Freightliner’s steering would be directly impacted by the condition of the front tires because steering requires traction (McLaughlin);
k) the truck was not permitted to be on the road nor was it safe to be on the road with a steering problem and tires that had less than the minimum tread depth – they would be major defects requiring repair before the truck could be driven (McLaughlin, Millar);
l) the steps that Mr. Urgiles took to inspect the steering were inadequate (McLaughlin); and
m) the Freightliner should have been taken to a mechanic after Mr. Garant complained of the steering problems (McLaughlin).
ANALYSIS
Did Mr. Urgiles have authority to direct how Mr. Garant did work or performed a task?
[152] There were only two people involved in the management of Ecuacan: Janeth Zambrano and Mr. Urgiles. Ms. Zambrano did the books, wrote the paycheques and delivered them. She did not speak much English and had limited knowledge of trucks. Mr. Urgiles looked after everything else. The defence states that there were no written guidelines or protocols governing Mr. Urgiles’ working relationship/behaviour with Mr. Garant and the Freightliner. In the agreed statement of facts, Mr. Urgiles admitted that he was Mr. Garant’s supervisor. He communicated with the drivers regarding their work for the next day. I find that he had authority to direct how Mr. Garant did work. As his supervisor, I find that Mr. Urgiles had a duty to take reasonable steps to prevent bodily harm to Mr. Garant, namely to ensure that the Freightliner was properly maintained and safe to drive before Mr. Garant operated it.
Did Mr. Urgiles fail to take reasonable steps to prevent bodily harm to Mr. Garant?
[153] The Defence states that there is evidence showing that the Freightliner was properly maintained. It passed a safety inspection before it was transferred to Ecuacan on August 28, 2020. The collision report shows that the truck had newer rear tires, new brake linings and some new lines. The annual safety sticker was on the windshield. Assuming this to be true, I cannot infer that the Freightliner would have passed a safety inspection on the day of the collision. Given the state of the front tires, I cannot accept the proposition that the Freightliner was properly maintained.
[154] The Defence states that the tire failure was the cause of the crash. Mr. Urgiles was alerted in the text message about only a steering issue, not that the tire was worn or compromised in any way. All the evidence points to the failure of the font left tire as the cause of Mr. Garant’s death. The Defence submits that the there is no causation between the steering issue and the failure of the left tire. The steering was not substantially connected to the tire tread wear.
[155] This suggests that Mr. Urgiles’ duty arose only when a complaint was made. Mr. McLaughlin testified that the Freightliner’s steering would be directly impacted by the condition of the front tires. I find that Mr. Urgiles’ duty required him to ensure that all aspects of the Freightliner, including the tires, were roadworthy, regardless of whether there was a complaint.
[156] The Defence states that Mr. Garant consented to drive the Freightliner. This suggests that Mr. Garant was partly to blame for the accident. In Kazenelson, para 15, the court stated, “The premise underlying the defence submission is that the workers were solely responsible for their safety. The premise runs head-on into s. 217.1 of the Criminal Code and ss. 27(1)(a) and 2 of OHSA.” The issue of contributory negligence may arise in civil proceedings; however, criminal law does not recognize it. As stated in Kazanelson par 147, contributory negligence is no answer to a criminal charge. The defence states that no evidence was presented that “a mechanic is needed every time a defect is reported, much less the kind of defect that Mr. Garant reported”. Mr. Urgiles and Mr. Garant agreed on the morning of the collision that the issue was resolved. The Defence states that faulting Mr. Urgiles for his failure to take the Freightliner to a mechanic imposes an incorrect standard of perfection.
[157] Mr. McLaughlin stated that a steering problem would be a major defect. Neither Mr. Urgiles nor Mr. Garant were qualified to determine whether the issue was resolved. The truck should have been taken to a mechanic. In his testimony Mr. Urgiles agreed with this. This shows that he knew he had a duty to maintain the Freightliner.
[158] The Defence states that Mr. McLaughlin and Mr. Da Silva agreed with the possibility that the tires could have been in acceptable condition on the morning of the collision and could have been worn down by 11 a.m. because of an alignment problem that caused accelerated deterioration.
[159] None of the witnesses could say precisely how much time and mileage would have been required to wear down the tires so that they had minimal tread depth left. Officer Millar, Mr. McLaughlin and Mr. Da Silva all testified that the front tires would not have worn down to less than minimum tread depth over a short period of time. A lengthy amount of time and mileage would be required. On the day of the collision, Mr. Garant drove the Freightliner five and a half hours for a distance of approximately 260 km. According to Mr. Da Silva, the collision occurred at approximately 11 a.m. The suggestion that the tires were in acceptable condition when Mr. Garant began to drive the truck and that they wore down to have less than minimum tread depth before 11 a.m. defies logic and common sense.
[160] Officer Millar’s report was peer reviewed. The Defence states that the form shows that conflicting evidence and alternative conclusions were considered; however, there may have been none. There is no doubt the crash was caused by the failed tire - the reason for the failed tire is what is in dispute. The form was signed by Officer Shaw; however, he is retired and did not testify because the police could not locate him. Any conflicting evidence and alternative conclusions that were considered could not be explored at trial.
[161] This form was produced late in the trial. The Defence could have requested an adjournment so that it could make efforts to find Officer Shaw. It did not.
[162] I find that Mr. Urgiles’ failure to have the Freightliner’s steering inspected by a mechanic, as he admitted he should have done, and his failure to ensure that its front tires met minimum standards for safe operation on the road before Mr. Garant began his day show that he did not take reasonable steps to prevent bodily harm to Mr. Garant.
Did Mr. Urgiles show a wanton and reckless disregard for Mr. Garant’s life? Was his conduct a marked and substantial departure from the standard that could be expected of a reasonably prudent supervisor in the circumstances?
[163] The term wanton has been compared to heedlessly, ungoverned, undisciplined, and an unrestrained disregard for the consequences. Reckless has been compared to heedless of the consequences, headlong [and] irresponsible. See R. v. Menezes, 2002 CanLII 49654 (ON SC), 2002 50 C.R. (5th) 343 para 72.
[164] The Defence states that Kazenelson can be distinguished from this case because Mr. Kazenelson knew of the safety issue. On the day of the accident, he attended the job site and saw or should have known that some of the workers on the swing stage were operating without having the required connected lifelines. The accused also failed to ensure that the swing stage was capable of carrying the weight of the workers. Furthermore, the accused got on the swing stage to go to the ground with six other employees. The accused was participating in behavior that was a marked and substantial departure from the standard that could be expected of a reasonably prudent person in the circumstances. He was not wearing a lifeline and observed several other employees were also not wearing them.
[165] The Defence states that there is no evidence that Mr. Urgiles knew of any tire issues. The tire that exploded at the weigh scale was replaced. The Defence states that Mr. Urgiles checked the issue himself and spoke to Mr. Garant about it. Speculation would be required to find that he should have been aware or was actually aware of the bald tire and still directed Mr. Garant to drive the dump truck.”
[166] I disagree that the distinction reduces the applicability of Kazenelson. Mr. Urgiles had a duty to ensure that the Freightliner was safe to drive, including that the tires were roadworthy. His lack of knowledge does not excuse him, as the Defence suggests; rather, it shows that he omitted to check the tires, which was his duty. Mr. Urgiles gave no thought to the obvious and serious risk that the unroadworthy tires would present and the need to take care.
[167] Mr. Urgiles knew that tires can fail and that if they do, the consequences can be fatal. He knew that the proper function of a commercial vehicle’s steering is critical to the safety of the driver. Common sense dictates that losing control of a dump truck can be fatal and/or cause bodily harm. Mr. Urgiles acknowledged this in his evidence when he stated that it is “every driver’s nightmare.” He failed to notice that the front tires were practically bald. He directed Mr. Garant to drive the truck. He took no steps to ensure that the tire tread depth complied with Regulation 625 of the Highway Traffic Act when anyone looking at the tires could see that they were bald. Mr. Urgiles’ omissions show a wanton and reckless disregard for Mr. Garant’s life. His conduct was a marked and substantial departure from the conduct of a reasonably prudent supervisor in the circumstances. He gave no thought to the obvious and serious risk and the need to take care. The risk of serious bodily harm was foreseeable.
[168] Mr. Urgiles had a duty under s. 217.1 of the Criminal Code as Mr. Garant’s supervisor to take reasonable steps to prevent bodily harm to him arising from Mr. Garant’s work as a driver for Ecuacan. Mr. Urgiles knowingly failed to take the action required of him by law: to take the Freightliner to a licenced mechanic, for inspection and repairs after Mr. Garant complained about the Freightliner’s steering. Rather, Mr. Urgiles directed him to drive the Freightliner less than 12 hours after the complaint. Mr. McLaughlin stated that the Freightliner’s steering would be directly impacted by the condition of the tires. He testified that anyone walking toward a truck or around it can see whether there is any tread on the tires.
[169] I am convinced beyond a reasonable doubt that Mr. Urgiles was criminally negligent.
Did Mr. Urgiles’ criminal negligence cause Mr. Garant’s death?
[170] The Defence states that an independent intervening event took place that interrupted the chain of events otherwise tying Mr. Urgiles to Mr. Garant’s death. I understand the Defence allegation to be that the Freightliner hit an object on the road and that this caused the left front tire to become disabled. As a result, the collision occurred. Mr. McLaughlin testified that if a tire is driven over a curb, for example, this can result in an impact break. The tire could still function for some period of time until it becomes disabled.
[171] The allegation that the front left tire hit an object on the road causing an impact break which lead to its exploding is speculation. There is no evidence that there was an object on the road. I accept Mr. McLaughlin’s evidence that the worn out condition of the tire caused it to explode, resulting in the collision.
[172] A reasonable supervisor would have contemplated the risk of tire failure from inadequately maintained bald front tires. It was an objectively foreseeable risk. Mr. Garant’s driving the Freightliner was not independent of Mr. Urgiles’ conduct.[^18]
[173] But for Mr. Urgiles’ failure to maintain the front tires, the Freightliner’s front left tire would not have exploded. The collision would not have occurred. Mr. Garant would not have died. I am convinced beyond a reasonable doubt that Mr. Urgiles is guilty of criminal negligence causing death.
Justice M.E. Vallee
Released: July 12, 2024
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, the official written Ruling is to be relied upon.
[^1]: R.S.C., 1985 c. C-46 [^2]: The uncontradicted evidence is that the Freightliner weighed at least 13,000 kg. [^3]: “Substantial” was not considered. [^4]: There is no dispute that the truck was loaded at 6:00 a.m. and dumped at 6:56 a.m. It was loaded at 7:55 a.m. and dumped at 8. It was finally loaded at 10:00 a.m. before the collision. [^5]: During the trial, some additional photos were produced that Mr. McLaughlin took at Curries. [^6]: The log book was admitted as evidence for the fact that it was made, not for the truth of its contents. [^7]: May 4, 2021 Statement Transcript page 42-43 [^8]: transcript page 44 [^9]: Sometimes Janeth is referred to as Janet [^10]: transcript page 48 – 50 [^11]: transcript page 52 [^12]: Apparently, a CVOR should not have been issued to Ms. Zambrano. [^13]: MTO records show that it was issued on October 19, 2017. [^14]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [^15]: Mr. Urgiles did not say when this occurred. [^16]: Transcript October 31, 2023 p. 10 [^17]: Transcript November 16, 2023 pages 51-53 [^18]: Kazenelson para. 147