Her Majesty the Queen - v. -, 2013 SKPC 195

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 195 Date: December 18, 2013 Information: 7355574 Location: Broadview _____________________________________________________________________________ Between: Her Majesty the Queen - and - Angela Hermanson Appearing: Todd Wellsch For the Crown Brad Tilling For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] On the morning of March 19, 2012, the fog was heavy at the intersection of the Trans Canada Highway (#1) and Highway #9, near Whitewood.

At about 7:30 a.m., two semi-trailer units - one driven by the accused Angela Hermanson and one driven by John Sprott - collided at this intersection. As a result of this collision, Ms. Hermanson was charged under s. 219(8) of The Traffic Safety Act , which provides: “no driver who has yielded the right of way as required by this

section shall proceed until it is safe to do so”.

[ 2 ] Ms. Hermanson was driving west on Highway #1, and was turning left/south onto Highway #9. In so doing, she drove across both eastbound lanes. She did not see Mr. Sprott, who was driving east on Highway #1 in the outside or southernmost lane. Mr. Sprott could not stop or avoid Ms. Hermanson’s semi-trailer and drove into it, hitting Ms. Hermanson’s vehicle around the area of the rear tires of her tractor. The damage to both semi units was extensive, but fortunately neither driver was seriously injured.

After this accident, three other vehicles - another semi-trailer unit, a box truck and a half-ton - were unable to stop in the fog, and collided with the other vehicles. [ 3 ] Based on her testimony, I accept Ms. Hermanson stopped in the intersection before she began her left-hand turn across the eastbound lanes. The issue is whether she exercised due diligence in determining it was safe to proceed before she did so. II. BACKGROUND [ 4 ] Both Mr. Sprott and Ms. Hermanson are professional truck drivers. Each drive a semi-trailer unit more than 100,000 miles a year, Mr. Sprott across North America and Ms.

Hermanson across Canada. Both have driven in a variety of conditions, including fog. Each gave their version of what happened. As well, Cst. Darian Martens, the investigating officer, testified on behalf of the Crown. Mr. Sprott [ 5 ] Mr. Sprott said he started in Regina this morning between 6:30 and 7:00 a.m. heading east towards a destination on Highway #1 in Manitoba. Regarding this start time, he was cross-examined about how it was possible to have started in Regina between these times and then be involved in an accident 185 kilometres away at 7:30 a.m.

He replied that he would have to refer to his log book to confirm the times but that he did not have that log book with him. [ 6 ] Mr. Sprott said there was fog of varying degrees as he drove east. When the fog was thick, visibility was limited. He stopped briefly at Grenfell to use the washroom, and then proceeded east toward Whitewood. [ 7 ] Mr. Sprott said he was driving at just under 100 km./hour, a speed he said he felt comfortable at in these conditions. Just before the Whitewood intersection, he saw caution blinkers and a yellow sign, I take it referring to the intersection.

He briefly took his foot off the gas and then proceeded. Then, out of nowhere there was a truck in front of him. He looked to the left and the right and realised there was no way to avoid a collision and went straight on into Ms. Hermanson’s vehicle. He said that: (1) the fog was pretty thick; (2) this all happened quickly; and

(3) Ms. Hermanson’s truck was close when he first saw it and there was no time to brake. [ 8 ] The impact of the collision removed Mr. Sprott’s hood and pushed his motor back and, in his words, wrecked his truck. He got out of the passenger door of his tractor unit, checked that Ms. Hermanson was okay, and waited for the police. While he waited other vehicles collided at the accident scene. Ms. Hermanson [ 9 ] Ms. Hermanson said she began this trip in Rafe, Ontario.

She stopped in Winnipeg, changed a trailer, and then drove on to Whitewood, where she planned to change drivers with a co-driver at the end of her thirteen hour shift. She was not sure of the times she was driving, and said that she would have to check in her log book for that. [ 10 ] Ms. Hermanson said the fog was pretty heavy this day after she passed through the western part of Manitoba. She drove between 70 and 80 kilometres per hour in the fog, and when the fog lifted a bit, she went as fast as 90 kilometres per hour.

Her semi- trailer unit was over 80 feet in length and she was pulling a heavy full load of items for Purolator.

[ 11 ] As she approached this intersection, she pulled into the passing lane then into the turning lane and came to a stop in the intersection. She said the road was wet and it was above zero. She stopped, took a good look and could see nothing and then proceeded. All of a sudden, she saw headlights in the eastbound lane and “stepped on it”. She estimated it was a few seconds from when she saw the headlights until impact with her vehicle, although she said she couldn’t judge how far away the truck was. She said she just saw the headlights and then the collision happened.

After the collision, she checked on her co-driver, checked on the driver of the other semi-trailer, contacted the police and then her and her co-driver got flares out to try to slow down traffic. [ 12 ] On cross-examination, she admitted that this was heavy fog and that, as a result, visibility was reduced. When asked whether her acceleration was limited with her heavy load, she said “yes and no” and that in first gear “it was about the same”. She also admitted that there was a fair bit of traffic this day, and that there was a variety of drivers driving a variety of speeds on the highway.

She said that she assumed the eastbound traffic would be slowed, given the fog and the sign for this intersection. Cst. Martens [ 13 ] Cst. Martens was called at her home in Grenfell at 7:32 a.m. this morning, with a message from the RCMP telecom system about an accident at Whitewood. It was very foggy that morning, and as she drove east on Highway #1 towards the accident scene she could only see about twenty feet in front of her police cruiser. She said, about half a kilometre from the Whitewood intersection, there are amber lights and a sign that says “Important Intersection”. [ 14 ] Cst.

Martens stopped before the accident scene to talk to local firefighters who had arrived before her. Traffic was coming quickly down the highway, and she immediately became involved in attempting to slow that traffic down. After other police officers arrived on the scene, she went up to the accident scene. She said it was dark out at the time of the accident and she had never seen the fog as bad as it was this day. [ 15 ] At 9:15 a.m., she took a series of photographs of the accident scene, which pictured the semi-trailers of Ms. Hermanson and Mr.

Sprott and the three other vehicles which subsequently became involved in the accident (Exhibit P-2). III. DID MS. HERMANSON EXERCISE DUE DILIGENCE? [ 16 ] Section 219(8), a strict liability offence (see R. v. Sault Ste. Marie [1] ), creates an offence for a driver, who has initially yielded the right of way, to proceed before it is safe to do so. Here, Ms. Hermanson initially yielded the right of way to oncoming traffic by stopping her vehicle in the intersection. There is no doubt that, in fact, it was not safe to proceed as she did, given the accident that resulted.

Because this is a strict liability offence, the issue is whether she has shown, on a balance of probabilities, that she exercised due diligence, or took reasonable care in these circumstances, when she decided it was safe to proceed across the eastbound lanes. [ 17 ] Mr. Tilling argued that Ms. Hermanson did exercise due diligence, as she: (1) stopped initially; (2) looked for oncoming traffic before proceeding; (3) was aware of the fog and the signs warning for this intersection; and (4) taken together, reasonably assumed that oncoming traffic would “back off” in these circumstances.

For the reasons that follow, I disagree. [ 18 ] In interpreting what constituted a safe left-hand turn in circumstances such as these, Gerein J., in Swenson v. Saskatoon (City) [2] , said the following: ... the vehicle proceeding through the intersection has the right of way. The driver intending to turn left must ensure that he can complete the turn without a collision. If a collision does occur, then the driver who made the turn has a heavy onus to disprove negligence on his part.

[19] Justice Gerein as well said: ... the relevant time is immediately prior to the commencement of the turn. It avails the driver nothing to say that he misjudged the speedor distance and didn't realize the true situation until he was into the turn. In the event of any uncertainty the turn must not be started. [20] I accept that the area surrounding and including this intersection was very foggy at the time of the collision. As a measure ofthe density of the fog, I accept Cst.

Marten’s evidence that she could only see twenty feet in front of her police vehicle as she drove easton Highway #1 toward the crash scene, shortly after the accident. I, as well, accept that these two semi-trailers were in close proximitywhen Ms. Hermanson began her turn, despite the reality that neither Ms. Hermanson or Mr. Sprott could see the other vehicle until asecond or two before the collision. [21] Regarding the time when Mr. Sprott left Regina, I am not satisfied that he accurately recalls this. He clearly said he wouldhave to check his log about this and did not have this before him when he testified.

Ms. Hermanson, as well, was not able to give exacttimes of travel, saying as well she would need her log to provide these. For Mr. Sprott to have left Regina as late as 7:00 a.m., and then,after stopping at Grenfell - which I accept he did - to have been involved in an accident 185 kilometres away from Regina at 7:30 a.m.,would suggest he was travelling at a speed of about 400 kilometres per hour. In my view that is absurd. Having heard his evidence, Iaccept that he was driving just under 100 kilometres per hour when he entered this intersection. [22] While it is quite possible that Mr.

Sprott was travelling faster than he should have been in the heavy fog, nevertheless, I do notfind that Ms. Hermanson reached a reasonable conclusion when she determined that, in these circumstances, it was safe to drive hervehicle across the eastbound lanes. The totality of: (1) the heavy nature of the fog and the resulting significant reduction in visibility; (2)the size and weight of her vehicle; (3) the possibility, which she acknowledged in cross-examination, that vehicles could be travelling atvaried speeds on this highway; and (4) the reality that three eastbound vehicles following Mr.

Sprott were unable to stop for the accidentscene in this fog, in my view makes unreasonable her assumption (stated in direct examination) that all eastbound traffic would betravelling slowly. Even if Mr. Sprott had been travelling at a slower speed, when I consider the very short interval between when thedrivers saw each other and the collision, I am satisfied it is unlikely the collision could have been averted. [23] Taken together, when I consider the factors and circumstances listed above, I am not satisfied that Ms.

Hermanson has met theonus on her of showing that she exercised due diligence when she decided it was safe to proceed across the eastbound lanes. She isfound guilty. R. Green, J [1] (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). [2] [1986] S.J. No. 401 (Sask. Q.B.).