R. v. Slubowski Date:, 2014 BCPC 384

Citation: R. v. Slubowski Date: 20140417 2014 BCPC 0384 File No: 31788 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAMS BRADFORD SLUBOWSKI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: J. Dufour Counsel for the Defendant: L. J. Helps Place of Hearing: Williams Lake , B.C. Dates of Hearing: Apr 29, Aug 15 & 16, Sep 23, 2013, Jan 9 & 10, 2014 Date of Judgment: April 17, 2014 [ 1 ] William Bradford Slubowski is charged with Dangerous Driving Causing Bodily Harm and Dangerous Driving Causing Death

contrary to ss. 249(3) and (4) of the Criminal Code respectively. [ 2 ] Mr. Slubowski was driving a semi-trailer unit north on Highway 97 just past McLeese Lake at around 7:30 am on the morning of January 26 th , 2011, when his truck and trailer unit went across the centre line into the southbound lanes. Tragically, just as Mr. Slubowski was steering his ‘semi’ back into the correct lane, a southbound Dodge Dakota pickup truck tried, unsuccessfully, to avoid a collision by swerving left, around the front of his truck. The front right bumper of his truck collided with the passenger side of the pickup.

The driver of that pickup, Chantelle Sagar, was seriously injured. Louis Therrien, who was her passenger, and also her fiancé, was killed. [ 3 ] The Crown says that Mr. Slubowski fell asleep at the wheel and this is why his ‘semi’ crossed the centre line. The Crown says that the evidence proves beyond a reasonable doubt that this was the final step in a pattern of negligent driving which had been going on over some time, and distance, and that he should be convicted. [ 4 ] The Defence position is that Mr.

Slubowski did not fall asleep at the wheel, but rather, took deliberate action to avoid a more serious accident. Mr. Slubowski says he entered the oncoming lane in order to regain control of his trailer which had lost traction and was sliding sideways. The road was clear for a long distance ahead and he took a calculated risk. Unfortunately, the gamble did not pay off but, when all the circumstances are considered, it is argued that Mr.

Slubowski acted as a reasonable and prudent truck driver and his conduct is not the sort of marked departure which should attract penal consequences. [ 5 ] I will tell you what I have decided in this case. Then I will explain my reasons. [ 6 ] I have decided that I must find Mr. Slubowski guilty as charged. [ 7 ] I will explain my reasons in more detail momentarily, but they may be summarized fairly simply. After a detailed assessment of the evidence of Mr.

Slubowski I have concluded that I must reject the explanation he offers for how and why his tractor trailer unit ended up in the southbound lanes of Highway 97 in the seconds preceding the collision. On the evidence that I do accept in this case, which is principally that of Shawn Murray and the other ‘Gibraltar’ witnesses, as well as Ms. Sagar, I find that there was a pattern of negligent driving by Mr. Slubowski over at least the 3 km distance observed by the Gibraltar witnesses.

I find that this pattern of negligent driving likely due to fatigue, or other bodily weakness such as the effect of his diabetic condition on Mr. Slubowski’s level of alertness and ability to respond to what he was seeing. I find that although driving is an inherently dangerous activity, and true accidents do happen, this particular collision was, unfortunately, the product of negligence of a sufficient level as to constitute a marked departure from the standard expected of a reasonable and prudent commercial driver in the circumstances Mr.

Slubowski was presented with. [ 8 ] I will now explain my reasons in detail beginning with a review of the evidence. The Evidence [ 9 ] On the early evening of January 24 th , about a day and a half before the collision, Mr. Slubowski’s son, Wayne, telephoned to ask his father to help him out by driving a truck and trailer from Prince George, to the airport in Richmond, and back again, as the driver he had working for him in Prince George was temporarily unavailable due to a family crisis. [ 10 ] Mr. Slubowski and his son live in Vancouver. Wayne Slubowski owned at least two transport trucks.

One, a 2003 Kenworth, was based in Prince George. This is the truck that was fated to become involved in the collision. Wayne Slubowski’s second truck was based in Vancouver. Wayne Slubowski sub-contracted with a company called Total, transporting parcel freight for U.P.S. back and forth between Prince George and Richmond. [ 11 ] Mr. Slubowski was 70 years old at the time. He is diabetic and, at the time of this incident, his condition was controlled with an oral medication, which he was required to take several times a day. He was required to wear glasses for driving.

At the time of the collision he was not wearing his most current set of glasses. He testified that a few weeks before the collision he had obtained a new set of glasses but, as he understood it, the purpose of this updated prescription was to assist him with close up work, like reading, rather than with distance activities, like driving. He said the older pair of glasses he was wearing at the time of the collision still gave him excellent distance vision. [ 12 ] Mr. Slubowski had more than 50 years of experience as a truck driver.

He had not driven a commercial vehicle for about 3 months at the time he received the call from his son because he had decided to retire. However, he agreed to help out his son by making this one last run because he knew that his son risked losing the U.P.S. contract if he did not get the freight delivered in a timely manner. [ 13 ] The plan was that Wayne Slubowski would drive his Vancouver based truck north to Prince George overnight on the 24 th to the 25 th of January, with Mr. Slubowski as his passenger. Once in Prince George, Mr.

Slubowski would take over the truck which was based in Prince George (and which was temporarily without a driver). He would hook onto the trailer of freight, drive it south on the 25 th , and deliver it to the depot in Richmond. Once delivered of the southbound trailer, he would hook onto the northbound trailer and drive back north to Prince George overnight on the 25 th to 26 th of January, with the plan of delivering the trailer to the depot in Prince George on the morning of the 26 th . [ 14 ] Before leaving Vancouver on the evening of the 24 th , Mr. Slubowski called his friend, Rodney Cote.

As a result of that conversation Mr. Cote agreed to accompany Mr. Slubowski and Wayne Slubowski on the drive to Prince George. Mr. Cote is licensed to drive a transport truck and Mr. Slubowski insists that Mr. Cote was coming along on the trip as a “co-driver” with the plan that once he, Slubowski, went “on duty” in Prince George for the run south to Richmond and back, Mr. Cote would share in the driving as a “co- driver” so that each would be sure to get enough rest. Mr. Cote, on the other hand, insists that he only went along to keep Mr.

Slubowski company as they were good friends and had been in the habit of spending a lot of time together as a result of their life circumstances and

a traumatic experience they had both shared a few months prior. It was only later, Cote says, on a casual, spur of the moment basis, that it was decided he would share in some of the driving. [ 15 ] Wayne Slubowski drove to Prince George overnight on the 24 th to the 25 th of January with his father, Mr. Slubowski, and Rodney Cote, as passengers. In his log book ( Exhibit 6) Mr. Slubowski recorded that he was “off duty…in the sleeper berth” from midnight until 9:30 am on the 25 th , a total of 9 ½ consecutive hours. During his testimony at trial, Mr.

Slubowski gave inconsistent evidence about just how much “off duty” time he had on this first trip north, and I will review this issue in more detail when assessing the credibility of his evidence later in these reasons. [ 16 ] Mr. Cote had yet another version of events. He testified that both he and Mr. Slubowski stayed awake for the entire trip north on the night of the 24 th to the 25 th . [ 17 ] The three men reached Prince George around 8 or 9 am on the 25 th of January and located the Kenworth truck which Mr. Slubowski was going to drive.

They parted company with Wayne Slubowski who went to bed in his tractor. Mr. Slubowski, accompanied and aided to some degree by Rodney Cote, hooked onto the southbound trailer. Then they both went for breakfast at the Husky in Prince George. It was now about 9:30 am on the 25 th . [ 18 ] Over breakfast they discussed the job that lay ahead and Mr. Slubowski began filling out a log book ( Exhibit 6) as required by the s.37.18.01 and 02 of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 (“the Regulations ”). Mr.

Cote said that it was at this point, over breakfast at the Husky in Prince George, that he realized he would have to do some of the driving on the run to Richmond and back. He says it was then that he learned they would be driving all the way down to Richmond and back up to Prince George over the next 24 to 36 hour period rather than simply to Cache Creek and back north again. He said that when he learned how far they had to go he assumed he would have to do some of the driving “Because we'd already been up [awake], for a while -- quite a while…”. (Transcript, April 29 th , 2013, p. 86, ll. 42-43) [ 19 ] Mr.

Cote and Mr. Slubowski agree that Mr. Cote ought to have had his own log book if he was going to share in the driving. The Regulations require this. Both admit that Mr. Cote did not have his own log book and Cote admitted that he was “100% in the wrong” for driving when he did not have his own log book, in which to log his duty status from time to time, as required. Mr.

Slubowski explained that they tried to buy a log book that morning at the Husky in Prince George and, later, at about 10:30 that night, at the truck stop at Lickman Road near Chilliwack, but both locations were sold out of log books. ( Transcripts, 23 Sept. 2013, p. 11, l. 47 - p. 12, l. 2, and p. 50, ll. 45 - 46, 9 Jan. 2014, pp. 6 & 7, l. 33 - p. 7, l. 15.) [ 20 ] After finishing breakfast at the Husky in Prince George at around 10 am on the 25th, Mr. Cote had to go to the washroom. This took 15 or 20 minutes as he has a medical condition. Mr. Slubowski testified that while Mr.

Cote was in the washroom he completed a pre-trip inspection of the truck and trailer and found everything to be in good working order. [ 21 ] Mr. Slubowski then began the journey south with Mr. Cote sitting in the passenger seat. At some point Mr. Cote moved into the sleeper berth, but it is unclear to me whether this happened at any point north of Cache Creek. [ 22 ] They stopped in Williams Lake to either drop off or pick up some freight (their accounts differ on that point). Mr. Slubowski had some difficulty maneuvering the truck and trailer in a snowy parking lot.

Apparently the truck was supposed to have had a new set of snow tires on it but they had not been installed by the time of this trip. However, when the Commercial Vehicle Inspector looked at the tires on the Kenworth after the collision, he concluded that the tread depths were “more than adequate to meet standards set by [the Regulations ]”. ( Exhibit 4). [ 23 ] Mr. Slubowski continued driving south to Cache Creek where they stopped for a bite to eat and possibly to fuel up. (Mr. Slubowski’s recollection was that they ate in Williams Lake rather than at Cache Creek.) Mr.

Cote recalled that he took over driving for a short distance just before Cache Creek, but Mr. Slubowski denied this. [ 24 ] After the stop in Cache Creek, Mr. Slubowski resumed driving south and Mr. Cote was “in the bunk, sleeping”. (Transcript, 29 April, 2014, p. 24, l. 3) Somewhere near Boston Bar, Mr. Cote woke to a loud crash. Mr. Slubowski explained that an oncoming vehicle had got close to the centre line and something like a ladder or a piece of lumber sticking out from that vehicle, or from the utility trailer it was towing, had hit the driver’s side mirror on the Kenworth, smashing it. It was put to Mr.

Slubowski on cross-examination that what had really occurred is that he had veered across the centre line due to fatigue, or difficulties with his vision. Mr. Slubowski adamantly denied this suggestion. [ 25 ] Mr. Slubowski continued on south through the Fraser Canyon with Mr. Cote, now awake, in the passenger seat. Mr. Cote says that just north of Hope, at “Haig’s Scale”, Mr. Slubowski said to him “you gotta drive” and pulled into the scale where they switched places and that he, Cote, took the truck and trailer unit the rest of the way into Vancouver with Mr. Slubowski sitting in the passenger seat.

He estimated that this is a distance of “about 100 miles” which, I find, is the equivalent of about 160 km or nearly 2 hours of driving time. Mr. Slubowski, on the other hand, insists that he drove all the way from Prince George to their destination in Richmond with the two stops - at Williams Lake and Cache Creek - as mentioned. ( Transcripts, Sept. 23, 2013, p.13, l. 26 and January 10 th , 2014, p. 38, ll. 12-19.) This is certainly what he logged in his log book, marked Exhibit 6. [ 26 ] The trip south took about 10 hours according to Mr. Slubowski. (Transcript, 23 Sept. 13, p. 13, l. 30).

He estimated the time of their departure from Prince George on the morning of the 25 th to be sometime shortly after finishing breakfast at the Husky around 10 am. (p. 12, ll. 35 - 40) I infer therefore that they arrived in Richmond at about 8:30 or 9 pm on the evening of the 25 th . [ 27 ] There is inconsistency between Mr. Slubowski and Mr. Cote about where they went to first when they arrived in the Vancouver area but I don’t think anything turns on which version is correct.

It is clear that they drove to four different places over the next 2 or 3 hours: the UPS depot at Richmond where they delivered the southbound trailer and hooked onto the northbound trailer, Total’s depot on Annacis Island where they picked up one or two pallets loaded with small propane bottles for delivery to Prince George, the Freightliner

shop at Port Kells near Surrey where they bought and installed a new, driver’s side mirror for the Kenworth and, finally, Lickman Road in Chilliwack where Mr. Slubowski fueled up the truck while Mr. Cote went to the nearby Tim Horton’s and bought them coffee and something to eat for the trip north. (Transcript, 29 April, 2013, pp. 17 - 22, and 23 Sept. 2013, p. 17, ll. 11 - 16) [ 28 ] In examination in chief, Mr. Slubowski testified that he was the one who drove the truck to three of these four locations. He said Mr.

Cote took over the driving when they left Freightliner in Surrey heading back east and north on the third leg of their journey: “Rodney drove from there.” ( Transcript, 23 Sept. 2014, p. 17, ll. 8 & 9). He said that he went into the passenger seat at that point and then, a little later, after their final stop at Lickman Road in Chilliwack, he climbed into the sleeper berth and went to sleep, as Mr. Cote began driving north (Transcript, p. 17, ll. 8 - 27). [ 29 ] It is clear that once Mr. Slubowski entered the berth late on January 25 th he did get to sleep and slept for 3 or 4 hours while Mr.

Cote drove the truck and trailer north on the third leg of their journey. [ 30 ] Mr. Slubowski woke up as they approached Cache Creek. By now it was the early morning of January 26 th . Just north of Cache Creek traffic was backed up due to an accident and they waited there for about ½ hour. From there, Mr. Slubowski took over driving and Mr. Cote went into the bunk. Mr. Slubowski drove for ½ hour or so to a location on a hill in the Clinton area which he called “Tank Hill”, where he encountered heavy fog. He called to Rodney Cote to wake up and help him as he couldn’t see the road. Mr.

Cote said that when he got out of the sleeper berth, the truck was angled across the two northbound lanes in thick fog, heading for the centre line. Cote grabbed the steering wheel and steered back to the right and together they “walked” the rig up the hill, which is to say they drove it in a very low gear and at a very slow speed, up the hill. At the top of the hill they stopped and switched places and Cote drove from there to just north of Williams Lake. This is a 2 to 3 hour drive, and Mr.

Slubowski climbed into the bunk and slept some more during that part of the journey. [ 31 ] Just north of Williams Lake, near the airport road, Mr. Cote stopped the truck and trailer in a pullout and told Mr. Slubowski “That’s it, I can’t drive anymore. My eyes are burning.” (Transcript, 29 Apr. 2013 , p. 37, ll. 35 - 37) He testified that he offered to finish off the drive to their destination in Prince George once he’d had an hour or two of sleep, but Mr. Slubowski, who had been on the phone with his son, Wayne, said “no, we gotta go” and so Mr. Slubowski took over driving at that point, and Mr.

Cote went into the bunk. See Transcript, 29 Apr. 2013 , p. 37, l. 39 - p. 38, l. 9. [ 32 ] Mr. Slubowski drove approximately 40 minutes further north. The collision occurred on a long, curving, downhill portion of Highway 97, to the north of McLeese Lake. Some of the witnesses referred to this as “the MacAlister Hill”. At the bottom of that hill the highway curves left (as you are going north) under the B.C. Rail overpass, or “trestle”.

The collision took place at about 7:30 am on the morning of January 26 th a short distance south, or uphill, of the railway overpass. [ 33 ] About 3 km before the site of the collision, still within the small settlement of McLeese Lake, a pickup truck pulled onto the highway behind the truck and trailer unit being driven by Mr. Slubowski. The four occupants of the pickup work at the Gibraltar Mine which is located in the area. At 7 AM they finished a night shift and by about 7:15 were merging from the mine road onto Highway 97 on their way north to their homes in Quesnel.

Shawn Murray was driving, Franklin Kirk was in the front passenger seat, Kevin Hipkiss was in the rear seat on the driver’s side and Cal Stewart was in the rear seat on the passenger’s side. All 4 of these men testified. [ 34 ] I will begin with the evidence of Shawn Murray. Counsel argued that Mr. Murray was a credible and careful witness. I share that view and will quote extensively from his evidence. [ 35 ] Mr. Murray testified that he pulled onto the highway right behind the transport truck which we now know was being driven by Mr. Slubowski.

He testified that there was no traffic that morning “…it was really quiet”. His evidence continued as follows (Transcript, 29 Apr. 2013 , p. 97, l. 7 to p. 110, l. 38, emphasis added ) : A Okay. We pulled onto the highway at Mcleese Lake, right behind the tractor truck and trailer. We followed that truck and trailer down to where the accident was, and all the way down there, the truck was all over the place. We were talking about it. What should we do? How are we going to get around this?

And we came around the big bend, there, just above the train bridge, and the truck went way across the highway, and we thought, oh my God, here, this truck is going to blow off the highway, on the other side. And just then, there was lights from the other direction and kapow, collision. It was -- I -- I see it every time I drive past there. Q Okay. So your attention to this vehicle -- what first caught your attention about this tractor trailer you mentioned? A Ah.

That it was all over the road . … Q And did you notice anything special, in regards to this truck, at that particular time, when you wait for it to pass so you can get onto the Highway 97? A Not until we pulled in behind him and then there was -- just up the highway a bit, there's an actual passing lane for northbound vehicles and we didn't want to pass, because we were scared. We were worried, you know, when we were trying to -- we were wondering what should we do.

… Q What did you see him -- the truck do? A Crossing -- Q Okay. A It was, you know, going back and forth across the highway. … Q So when you first pull out onto Highway 97, there's two lanes, meaning a northbound and a southbound? Is that what you mean? A Yes. Q And then, you go further northbound, and you'll eventually come to this -- the passing lane you mentioned before. A Yes. Q Okay. How far is the distance between the two lanes and when you encounter the second passing lane? What is the distance, approximately? A Between where we come out on the highway and the passing lane? Q Yes. A Maybe half a mile.

Q Okay. And in that half-mile, you saw the truck in front of you weaving? A Yes. …. THE COURT: Sorry. I am confused. You notice it waving -- weaving, before the start of the passing lane? A A few times, we seen go right across the yellow line. THE COURT: This is -- A That's why we were so concerned. THE COURT: This is before the start of the passing lane. A Yes. …. Q Do you -- have you driven behind trucks before and seen weaving occur? A Yes. Q And is there a point in which you saw this truck, to see it beyond normal -- A Yes. Q -- that it would make you concerned? A Yes. We were really concerned. Right .

Q Okay. And you voiced your concern to the others that were in the truck with you . A Yes .

Q Okay. Was -- what was the roadway like, at this point in time? A The roads were fine . Q Do you -- can you recall how many times it weaved? A No; I can't. Q Do you recall how many times it passed the yellow line that you mentioned? A No; not to be -- for certain. Q Was it once or more than once? A It'd be more than once. Yes . Q And at the point where -- what is the speed that you're driving? A The -- it was -- I believe that's a 80 kilometres an hour, in the first little stretch, and then it's up to a hundred, just -- and we were doing the speed limit. Q Okay.

And the truck in front of you, what was -- was it pacing with you -- or was it keeping pace with you -- your speed? Or was it going faster or slower? A I would say keep -- keeping pace . Q Was it maintaining the same speed? Was it changing speeds, at all? A No. … So from there on, there's two lanes going northbound; correct? A Yes. Q And how many lanes are going southbound? A At the top of the hill, there's four lanes. There's four lanes from the bottom of the hill. Actually, there's four lanes from the train bridge -- Q Okay. A -- to the top of the hill. … [ 36 ] I would pause to note that Mr.

Murray’s recollection that there are four lanes all the way from the top to the bottom of the MacAlister Hill may not be correct because the photographs, Exhibit 7, reveal only 3 lanes in the area of the collision - 1 northbound and 2 southbound. Mr. Murray’s evidence continued: Q So what happens after you get to the passing line and you become concerned about this tractor, and you decide not to pass? What do you see it doing, from there? A Just back and forth down the road, till we got to the -- to the corner and it went way across two lanes of our traffic and two lanes of oncoming traffic . Q Okay.

So the weaving or the "all over the place", that is the weaving that you mentioned that made you not want to pass? A Yes. Q Okay. A There was definitely something not right . Q Did you -- did you try to look to see what the cause might be, at all? A As best we could. There was -- from behind, it was just watching the truck all over the road. Q Now, you say at a certain point, there is a turn or a curve in the road?

A Yes. Q And this is where it goes into the opposing lane of where traffic goes southbound? A Yes. … Q So the curve turns to the right or turns to the left? A Turns to the right. Sorry. Q Okay. It turns to the right. And you see the truck continue forward or actually make a left turn, to get into [ inaudible/voice fades away]? A Continuing forward. Q It moved forward into the cycling -- A Yeah. Q -- the southbound lanes? A Yes. Q And you thought it was going to over something. What -- A Over the bank, right over the -- off the corner, right over the bank. Q And then, you saw lights? A Yeah.

Q Did -- you saw lights. What did you make of the lights? What were they? A Just an oncoming vehicle lights, and then that's when we -- it just -- we're, like, this is not happening. We just gotta -- like . . . … Q So you saw lights and you -- you, yourself, came to acknowledge it being another vehicle coming southbound? A Yes. Yes. Q Did you see any other vehicles? A No. Q And how long -- did you see an actual collision, between that vehicle and this truck? A Yes. Q Okay. A We seen him hit; we heard him. It's -- it's . . . Q What was the other vehicle? Can you describe it?

A I believe it was a Dodge Dakota -- Q Okay. A -- a smaller pickup, green, teal green. Q Can you tell the court the distance between the turnoff when you first notice this truck, and this point where there's a curve in the road to the right, and you see the lights of the oncoming vehicle? A Three kilometres?

Q Do you see any brake lights, on the tractor trailer? A Hasn't -- Q Pardon me? A No. Q Do you recall whether you saw them or not or . . . A I'm sorry. I don't recall. Q What -- you heard the collision. You saw -- A We saw it; heard it; and . . . Q Okay. And did you stop, at this point in time? A Absolutely. We had no choice but to stop, or we would have collided into the pickup. Q And what did the tractor trailer do? A It continued down the hill and stopped. Q Do you know the distance it continued, before stopping? A Five hundred yards, maybe.

Q Did -- what did you -- did you look to that vehicle and see the activity, there? The tractor trailer I mean. A We just seen that it had stopped. Q And what did you do? You stopped your vehicle? A Absolutely. We were right there. Q Okay. And where did you stop, in relation to the tractor trailer and the other vehicle that you saw? A Pretty much where the pickup stops. It had stopped at -- on the northbound side of the road, on the shoulder. … Q What is the roadway like, in terms of navigating curves and straightaways? A Nice and easy. There's no sharp corners.

There's two big bends before the bend where the accident was, like bend meaning big corners, like no sharp corners. … Shawn Murray continued on cross examination: Q Okay. And so the guy who is next to you, in the passenger's seat, kind of has the duty of -- you know, you guys all pitch in and help keep each other awake. Is that fair? A Yes. The passenger is the guy to keep -- you know, the other -- the two guys in the back are free to do what they want. But -- Q They're kind of allowed to do what they want. They can doze. A Yeah. Q They can talk. They can do whatever. A But this day, we weren't.

Q This day, you weren't . . .?

A They -- they weren't sleeping, in the back. Q Okay. A We were all talking. … Q And it's fair to say that a tractor trailer is a bigger vehicle than you're in; right? A Yes. Q And so he is kind of weaving, within his own lane and, from time to time, it steps over the centre line. Is that basically your evidence? A At that point? Q Yeah. A Yes. The -- it went over the centre line. Yes. Q Okay. You -- of course, as you've told my friend, you can't say how many times it went over the centre line. A Yes.

Q But your concern and your attention is drawn, because it's weaving within its own lane, more than it's doing anything else; is that fair? A Our attention was drawn on it crossing the centre line. Q Okay. Was that the first time that your attention was drawn is when it was crossing the centre line? A That's -- we were watching it. Yes. … Q Okay. Now, in your experience driving home -- because you've probably done it, a whole bunch -- usually the semi-trailer trucks get right over in the -- in sort of the far right-hand lane; is that fair? A Yes. Q Okay.

Now, in this case, driving home on the 26th of January, 2011, there was quite a bit of snow built up on the sides of the road; right? A Not really. Q Okay. There was, however, a snow bank on the side of the road. A Yes. Q Okay. And this tractor trailer didn't pull far enough over into the right-hand lane for you to pass safely; is that fair? A No. We chose to stay behind him, so we weren't going to get killed. Q Right. Because you were concerned -- THE COURT: Sorry. You weren't going to be . . .

A Weren't going to get killed is what I said. … Q And I just -- I'm going to sort of take you to that, because I just want to sort of figure -- figure this out, for a minute. The tractor trailer did, originally, pull over into the right-hand lane; correct?

A Yes. Q And that was at the time that you considered passing him; correct? A We never really -- I don't think we ever really considered passing. We were more concerned on what was going on. Q Right. Because before, when you'd been following him and it was a single lane, he'd been weaving a bit, and that was why you were concerned; right? A Yes. … Q Okay. And you -- with people in the vehicle, is it fair to say that when you're driving your buddies home or driving them to work, you're more cautious than when you're alone in the vehicle; is that fair?

A Yes. … Q But you didn't pass it, because -- one of the reasons was you wanted to be a hundred percent sure that no matter what else happened, those people that were in your car were safe with you; fair? A Yes. … Q Okay. So now, I'm talking about the time after that, when the lane splits into two, and with some vehicles on the road, you're able to get around them and pass them. A Yes. … Q So we're at the first juncture, where there should be a safe place to pass. A Yes. Q Is that correct? A There should be. Q Okay. And so the semi-trailer is in the south -- the right-hand lane, going northbound. A Yes.

Q But it's weaving into the left-hand lane; correct? A Yes. Q And that is why you don't pass it. A Yes. Q Because you're way too concerned about the possibility that it might force you over to the other side of the road. A Yes. Q Okay. So you stay behind it and you're there, as I understand your evidence, until the lanes become one lane, again; is that correct? A No. They go into four lanes. Q Four lanes. So the fourth lane is on the other side of the road, heading south.

A There's two northbound and two southbound. Q Okay. And then, the next thing that happens is the truck crosses the centre line and you are concerned about it going over the embankment; correct? A Yes. Q The embankment is on the other side of the road from where you're driving. The embankment is -- A Yes. … Q So you see that happen, before you see the lights of the vehicle; correct? A Yes. Q And then, the truck starts to correct, and that is when it hits the vehicle; correct? A Yes. Q -- the other vehicle, the lights -- what you can see of as the lights. A Yes.

Q And so the truck is already on the way back to your side of the road, when the vehicle is impacted; is that fair? A Uh . . . yeah. I would probably -- yeah. [ 37 ] Franklin Kirk was seated to the right of Shawn Murray, in the front, passenger seat of the pickup. Kevin Hipkiss, explained that their practice was to take it in turns to drive and another of their number would take it in turns to sit up front, in the passenger seat “…to keep the other person company, and keep him awake, while we drove home…”. ( Transcript, 29 April, 2014, p. 113, ll. 3 - 6).

This was Franklin Kirk’s role on January 26 th , 2011. [ 38 ] Mr. Kirk’s evidence [1] is generally consistent with that of Shawn Murray although he purported to have observed things in considerably more detail than Mr. Murray. [ 39 ] He testified that as they were following Mr. Slubowski’s tractor trailer unit over the roughly 1.5 km distance from where the mine road enters Highway 97 to the top of the MacAlister Hill, he observed the tractor trailer swerve across the yellow line dividing northbound from southbound traffic “at least 10 times”.

On the way down the hill just prior to the collision he testified that it crossed the centre line “4 times”. He said that when it did go across the yellow line, it would go “3/4 of the truck” width across. He is also the only witness to recall encountering two or three other southbound vehicles before the collision with Ms. Sagar’s vehicle. Mr. Kirk testified that one of these vehicles, a mini-van, swerved to the right as it crested the MacAlister Hill to stay clear of Mr. Slubowski’s tractor trailer unit which was swerving across the yellow line, into the southbound lanes. [ 40 ] Mr.

Kirk testified that the way the tractor trailer unit was moving on the roadway it seemed like it was “only a matter of time” until there was a crash: “I mentioned to Shawn because I know what happens when you get tired and you are driving that you start to concentrate on the vehicle in front of you so I told Shawn to make sure he did not get tired and concentrate on this cause “he’s going to crash, it’s only a matter of time with this, he’s all over the road.” “And when we got to the last corner on Macalister Hill he drove straight across the road, not even making the corner. It’s a right hand corner.

And at the last minute, I am not sure if he saw he was going to drive over the bank or whether he saw that he was going to hit this little pickup whatever it was, last minute he turns, swerves back to the right into the road and hits the little Dodge truck and it came spinning across the hiway in front of us and ended up in ditch heading north and I could still draw you a picture of that girls face in back of truck screaming at me.” [ 41 ] Defence counsel was critical of Mr. Kirk’s evidence, saying that it was clearly embellished in order to make the point to the court that, in Mr.

Kirk’s opinion, the tractor trailer unit was being driven in a dangerous fashion. I agree that there is some indication of over-reaching on the part of Mr. Kirk. For example, in addition to purporting to observe and recall with some specificity the number of times the tractor trailer unit swerved, and how much of the truck went across the centre line, Mr. Kirk also claimed to have been watching the speed of the vehicle he was travelling in (he was not the driver). And, he claimed to have watched what the mini-van did

after it went past Mr. Slubowski’s truck. His evidence was also somewhat inconsistent on the issue of where the mini-van was on the roadway at the time of this purported “near miss” at the top of the hill. At first he said that it was in the slow lane when it had to swerve right, which appeared to imply that the mini-van went onto the shoulder of the road. Later, when I queried Mr. Kirk on this point he said that the mini-van had been in the fast lane for southbound traffic, and it moved into the slow lane in order to avoid colliding with Mr. Slubowski’s tractor trailer unit. [ 42 ] Crown Counsel defends Mr.

Kirk saying that his job was to be the “look out” that day - to keep the driver, Shawn Murray, awake and alert - and therefore it is not surprising that his evidence is richer in detail than that of Mr. Murray. He was free to fully devote his attention to the scene unfolding before them in a way that was not possible for Mr. Murray who was focussing, first and foremost, on safely driving them all home. This is a valid point. Mr. Kirk’s position of observation was different from that of Mr. Murray and may well have allowed him to pay more attention to other traffic on the road and to the movements of Mr.

Slubowski’s tractor trailer unit. As I said earlier, Mr. Kirk’s evidence is generally consistent with that of Mr. Murray. Therefore, I accept most of what Mr. Kirk says even though I am sceptical of some of the detail he offers about the number of swerves, how far across the centre line Mr. Slubowski’s truck went on each occasion, and the degree to which the mini-van actually had to alter its course to avoid him. [ 43 ] With respect to road and weather conditions, Mr. Kirk, like Mr. Murray, testified that there was no ice or snow on the roadway. He recalled the pavement as being clear and wet.

He said the ambient temperature up at the mine had been + 5 that morning and the conditions had been muddy. [ 44 ] Kevin Hipkiss was sitting on the driver’s side in the back seat of the crew cab pickup. He said he first started noticing the movement of the tractor trailer unit “within a matter of seconds” after they pulled onto the highway behind it: (Transcript, 29 Apr. 2013 , p. 114, ll. 7 - 19 emphasis added): Yeah. He went over into the oncoming lane and then pulled back and come back into his lane. And he's going good, for a little while, and then back over, and then swerve back really quickly, again.

Q Now, when do you first start seeing this happen, after you turn onto Highway 97? A Well, within a matter of seconds, like -- 'cause the pullout is just -- there's a rest stop, just past the pullout, on the -- on the southbound side of the road. There's a pullout. And just around there is when we started to notice it. And Shawn was going to try and go around, but it was too dangerous to pass. [ 45 ] Mr. Hipkiss then described his observations of the Slubowski vehicle as it proceeded down the MacAlister Hill, and events immediately preceding the collision.

He did not actually see the collision itself: ( Transcript, 29 April, 2013, p. 114, l. 39 - p. 115, l. 43 emphasis added ) For how long does this go on? A Oh, about a kilometre or two, all the way down till he starts down the hill , down McAllister Hill. And then, it started to -- he started to straighten it out and things were going really well. It was kept in his own lane and everything was going fine . Q Okay. And then, what happens? A We went around a couple left turns and down the last little stretch, he -- right off, there's two la- -- two northbound lanes and he was in the far lane.

He went over that far and that's when it happened. We didn't even see the pickup until it . . . Q Okay. So the far lane you're talking about, is that the slow lane going northbound? A Yes. The slow lane. Yes. Q And he goes into a different lane? He cro- A He swerved. Q Okay. A He swerved from the northbound lane into the slow lane on the oncoming traffic side; okay? Q Right. A If that pickup wouldn't have been there that day -- that morning, I honestly believe that he would have ended up over the bank and in -- in that . . . Q Okay. A Yeah.

Q So you thought he was heading for over the bank. A Oh, yeah. No doubt about it. Q And he -- his truck -- this truck had crossed into the southbound lane. A Yes. He had crossed into the southbound lane, the slow lane, not the fast lane. Q So the farthest lane. A The farthest lane over to the ditch. Q So was it a swerve or was it a sudden turn into the southbound lane? A No. It was more of a gradual, over to the far lane. Q And you mentioned another vehicle. Can you tell the court what you know -- when do you first observe this other vehicle? A The other vehicle is the green one that got hit; okay? Q Okay.

And -- A And when I noticed it, it was sliding around in front of us, across the yardage. Q Okay. So did you see it get -- actually, did you see the actual collision? A No. [ 46 ] Like Shawn Murray and Franklin Kirk, Mr. Hipkiss recalled that the roads that day were “really good”: (Transcript, 29 Apr. 2013 , p. 116, ll. 2 - 3). [ 47 ] Mr. Hipkiss provided detail about the movement of Ms. Sagar’s teal green Dodge Dakota pickup immediately after the collision which is not found in the evidence of the other Gibraltar witnesses. He said Ms. Sagar’s pickup “ricocheted off the front of his [Mr.

Slubowski’s] truck” and that the two vehicles hit at such an angle that the transport basically knocked the pickup truck straight across to the shoulder of the northbound side of the road. He said that the pickup “bounced” across the southbound fast lane and the northbound lane before coming to a rest on the shoulder just in front of the pickup in which he (Hipkiss) was riding. Mr. Hipkiss insisted that Ms. Sagar’s small pickup started its ricochet in the far, southbound slow lane. (Transcript, 29 Apr. 2013 , p. 116, l. 18 - p. 117, l. 7). [ 48 ] On cross examination Mr.

Hipkiss agreed that everything happened very fast, in a matter of seconds. But, he rejected the suggestion that the truck or trailer had slid or kicked over into the oncoming lanes and insisted that it simply drove gradually into the oncoming lanes: Q Okay. This all happened really, really fast. A It did. Q In a matter of seconds; is that fair? A That'd be fair to say. Yes. Q Yeah. So the truck makes the turn, at the top of the hill, slides into the lanes. A It -- there was no sliding, at all. Q Okay. It just kicked over into the lanes. It veered over? A There is no sliding. It didn't kick over.

It just gradually went into that other lane. Q Okay. And then, there was the impact. A Correct. Q And all of that happened within seconds. A Yes. ( Transcript, 29 Apr. 2013 , p. 114, ll. 14 - 28 emphasis added) [ 49 ] Cal Stewart was the fourth ‘Gibraltar’ witness. He was riding in the back seat on the passenger side. When they first pulled out on the highway behind Mr. Slubowski’s vehicle he saw it moving from “from the centre line to the fog line and such worth” but after that he leaned back and closed his eyes. He listened to the conversation of the others about what the truck was doing. Then he heard

someone say “oh, there it goes” and he opened his eyes in time to see the tractor trailer unit going across the oncoming lanes and a little green pickup “came out from -- trying to avoid -- on the other side there” and the truck hit the little pickup on the passenger side. The pickup came “spinning out and back towards us on the highway. And everything came to a stop.” ( Transcript, 29 Apr. 2013 , p. 122, ll. 5 - 17) Mr. Stewart believed that the point of impact was in the far, southbound, slow lane. [ 50 ] Before reviewing Mr.

Slubowski’s evidence and his explanation for the driving conduct observed by the Gibraltar witnesses, I will refer briefly to Ms. Sagar’s evidence. [ 51 ] Ms. Sagar is a young woman, age 24 at the time of the accident. She was not an experienced driver. She had her “L” at the time and had had it for about a year. She knew that she was supposed to be accompanied by a licensed driver but acknowledged that her fiancé, Louis Therrien, who was with her that day, may not have had a proper driver’s licence either. They were living in Terrace at the time and were en route to Kamloops where Mr.

Therrien was hoping to buy a piece of logging equipment. They had spent the night in a hotel in Quesnel and set out on their southbound journey about 6:45 am. [ 52 ] Ms. Sagar testified [2] that she had just started going around a little corner when she saw the ‘semi’ “coming directly towards us and it wasn’t stopping”. So, she decided to “cut in front of it to try to get around him.” She said that she was in the slow lane at the time, on a straight stretch going into a curve.

She said she first saw the ‘semi’ as it came around that curve. “He kept coming straight at us and I pulled over as far as I could to the left but then it didn’t look like he was going to turn and so I tried to get around him.” A little later she clarified “I went to the right first but he wasn’t stopping so then I went to the left to get around him…”. She said “…I swerved to try to get into the other lane where I was supposed to be and I don’t know if he woke up or what, but he smashed into us.” Ms.

Sagar testified that she believed the point of collision was in the passing lane (or fast lane) going southbound. [ 53 ] On cross examination, Ms. Sagar explained again that the reason she went left, into the southbound passing lane, when she saw the tractor trailer unit coming at her, was that “I was trying to get around in front of him so he would not hit us.” She confirmed that to her right was a drop off. She agreed that she was “gunning it” to get into the passing lane and that the ‘semi’ impacted with her vehicle in the southbound passing lane.

She agreed, as well, that the ‘semi’ could only come into the passing lane, otherwise it would have gone over the embankment. [ 54 ] I will now turn to Mr. Slubowski’s evidence concerning the events leading up to, and immediately following, the collision. [ 55 ] Mr. Slubowski testified that he took over driving the tractor trailer unit just north of Williams Lake and Rodney Cote went to bed in the sleeper berth.

This would have been at about 6:50 am on the morning of January 26 th because he testified that he drove another 40 minutes or so, north, and it is clear from other evidence that the collision occurred at about 7:30 that morning. By the time he took over driving Mr.

Slubowski had, by his account, slept for a total of about 6 hours within the past 24 hours - a block of 3 to 3 ½ hours between the truck stop at Lickman Road in Chilliwack, and Cache Creek, and another block of 2 ½ to 3 hours between the top of “Tank Hill”, which is in the vicinity of Clinton, and Williams Lake. ( Transcript, 23 Sept. 2013, p. 17, ll. 20 - 29, p. 18, ll. 26 - 32, and 10 Jan. 2014, p. 78, ll. 4 - 6) . Later in his evidence Mr.

Slubowski testified that 6 hours - often interrupted with a break to go to the bathroom and have a cup of coffee - would be a normal night’s sleep for him. ( Transcript, 10 Jan. 2014, p. 81, l. 33 - p. 82, l. 4). He insisted that fatigue was not a factor in this collision: “Q: …At any time, either before or after the accident did you fall asleep at the wheel? A: No. Q: Did you ever close your eyes at the wheel?

A: No, absolutely not.” (Transcript, 23 Sept. 2013, p. 23, ll. 14 - 18) [ 56 ] And on cross examination he reiterated that he was not feeling fatigued in the minutes leading up to the collision ( Transcript, 10 Jan. 2014, p. 79, ll. 10 - 16). “There was no fatigue, believe me.” ( p. 79, ll. 31-33). [ 57 ] On examination in chief and cross examination Mr. Slubowski gave detailed accounts of how the collision occurred. While the movements of the tractor trailer unit he describes are the same as those described by the Gibraltar witnesses and Ms. Sagar, the explanation offered by Mr.

Slubowski casts the matter in quite a different light. He explains that he went into the oncoming lanes in a deliberate and conscious attempt to regain control of his lightly loaded trailer which had ‘kicked out’ or lost traction and was sliding sideways and about to jackknife. Had the trailer jackknifed (stopped following in line behind the tractor and started sliding sideways down the highway) it would almost certainly have had fatal consequences for Mr. Slubowski and Mr. Cote by “sucking” them over the steep, 400 foot drop to the west of the highway or it may have “decapitated” any oncoming driver.

The highway was clear at the time and he saw an opportunity to regain control of the trailer by getting his wheels on to patches of sand in the southbound lanes. He was successful in regaining control. However, just as he was about to steer back into the northbound lane, Ms. Sagar’s little pickup truck came very quickly around the corner up ahead and, instead of staying right when she saw the tractor trailer coming at her, she unexpectedly swerved left, crossing in front of him as he steered back to his right to return to the northbound lane.

She nearly made it across his path of travel but the right front corner of his bumper collided with the left, passenger side door of her pickup. [ 58 ] The following is an excerpt from the examination in chief of Mr. Slubowski wherein he describes how he ended up in the oncoming lanes and how the collision occurred: Q Okay. And what happens when you leave Airport Road? A Well, I drove there to, oh, probably 40 minutes, I guess, north, and got up on top of the hill to where you go down to the trestle. There’s sort of an S-turn down below at the bottom of the hill at the trestle.

Anyway, there’s some compact snow and ice up on top . I come over the top and proceeded to go down the hill.

I got a ways down the hill and I felt the trailer kick out. I got in a little bit of ice and the trailer was empty and it kicked out a little bit. I started to correct. It went to the left where we call, you always go for the brown, which is sand when you see -- you want to get your, the truck to stop from skidding or sliding to get the most traction you can. And there was fair amounts of sand in the centre of the road, patches of it. So I turned it to the right to go with the way it was sliding, eased it out into the centre lane . There was three lanes at that point on that hill.

I followed the patches of sand, to make sure I had control of the trailer. Nobody was coming up the hill at that point. There was no traffic. There was a pickup truck coming behind me. It was probably, I would say, 900 feet or 1,000 feet behind me. I went into the sand and back to the right into the sand, back into the left, had it all straightened out . Just going to start to bring it over to the -- oh, I was probably 300 feet from the corner. I was just going to start to bring it over to go around the corner when that pickup truck come a- roaring around the corner and the next thing I know, she had turned left.

There was nobody in the right-hand lane, and she clipped the right-hand corner on my semi, pretty well demolishing the right- hand side of the semi, and her pickup truck was just totalled. The whole side of her truck was -- the pickup, was tore off. (Transcript, 23 Sept. 2013, p. 18, l. 45 to p. 19, l. 38 emphasis added ) [ 59 ] Other references to how the collision occurred during examination in chief include p. 19, l. 39 to p. 22, l. 31, p. 23, l. 19 to 40, p. 24, l. 8 to 31, p. 27, l. 19 to 41, p. 28, l. 8 to 10. There are also many references to the collision in the cross examination of Mr. Slubowski.

They include, Transcript, 9 Jan. 2014, p. 69, l. 20 to 38, p. 71, l. 21 to 22, and 33 to 38, p. 73, l. 15 to 17, p. 73, l. 35 to p. 74, l. 12, p. 76, l. 27 to p. 77, l. 30, p. 78, l. 6 to p. 79, l. 2, p. 79, l. 18 to 29, p. 79, l. 43 to p. 81, l. 1, p. 81, l. 44 to p. 82, l. 13, p. 84, l. 9 to l. 25, p. 84, l. 43 to p. 85, l. 5.

And, on January 10 th , 2014, p. 2, l. 20 to l. 41, p. 7, l. 10 to p. 8, l. 5, and p. 79, l. 31 to p. 80, l. 4. [ 60 ] With respect to the swerving and crossing of the centre line spoken of by the Gibraltar witnesses over the approximately 1½ km distance before the descent down the MacAlister Hill, Mr. Slubowski appears to simply deny this. Or, to the extent that he admits to swerving in that area, he insists that it too was a controlled action, done deliberately to gain traction for his vehicle. [ 61 ] The following two excerpts are what Mr. Slubowski said on this point.

On examination in chief he described the road conditions “up top” as follows: “A: We were in no hurry. It was compact snow and ice up there. It was fairly slippy up top . Q Okay. When you say “slippy up top” was -- did the road conditions change along the route? A: Yeah. As we came along a little further, it would break up. And when we -- when I had started down the hill, it was sand and blacktop, but there was some little strips of ice there .

It was approximately one degree -- one degree. …” ( Transcript, 23 Sept. 2013, p. 19, l. 47 - p. 20, l. 9 emphasis added ) [ 62 ] On cross examination he was confronted specifically with the evidence of the Gibraltar witnesses concerning his driving in the area between where the mine road joins Highway 97 and the top of the MacAlister Hill: “Q: But you recall the evidence of the Gibraltar Mine employees that were seeing your truck swerve -- A: Yeah. Q: -- before the collision on your way back up to Prince George. Do you recall that evidence? A: Yeah. They -- Q: Do you recall swerving at that time? A: No.

I wasn’t swerving. I was trying to follow it into the sand. Wherever the sand was I was trying to get into the sand. Take control of the trailer. Q: Yes. But to make it clear -- A: To them it -- they didn’t know what was going on so they just thought I was swerving. Q: Well, to make it clear in my question to you, if it is their evidence that it was about three kilometres that they saw you swerving several times -- do you recall that evidence being given by those young men? A: I remember them saying, yes, I was swerving but I don’t recall them saying that I was doing it for the three kilometres. Q: Okay.

Do you recall swerving, like to some -- A: --I -- Q: -- degree --

A: I -- Q: -- that -- A: I swerved no more than -- one, two, three -- maybe four times. Q: Okay. A: Three to four times. Q: Okay. So -- A: I’m only -- I’m only guessing. I never counted that.” (Transcript, 10 Jan. 2014, p. 39, l. 36 to p. 40, l. 23 emphasis added) [63] I will now move to the evidence concerning the immediate aftermath of the collision. [64] Rodney Cote was asleep in the sleeper berth at the time of the collision. He was thrown out of the bunk by the impact. Thefirst thing he heard was a “clang-clang” noise and his first thought was that the drive shaft on the tractor had broken.

The truck andtrailer was still moving forward but very slowly. He testified that he looked up at Mr. Slubowski and that Mr. Slubowski had both handson the wheel and was saying “Oh my God! Oh my God!” Mr. Cote testified that he said things like “Pull over!” and “Stop!” but Mr.Slubowski did not respond and the vehicle kept moving very slowly forward. Mr. Cote claims that, at that point, he reached up and“dynamited the brakes” - which is to say he applied the air brakes bringing the truck to an abrupt halt. [65] Mr.

Cote was vigorously challenged on cross examination about his statement that he was the one, rather than Mr. Slubowski,to bring the vehicle to a stop by dynamiting the brakes. In his evidence, Mr. Slubowski insisted he was in control throughout, that hedeliberately drove the tractor trailer unit some distance further down the highway after the collision in order to find a place where hecould safely pull to the side of the highway and out of traffic. He insisted he was the one to “dynamite the brakes” bringing the vehicleto a stop. (Transcript, 23 Sept. 2013, p. 23, l. 41 to p. 24, l. 7) [66] Mr.

Slubowski’s tractor trailer unit came to a stop just uphill, or south, of the railway overpass at the bottom of the MacAlisterHill. See photographs, Exhibit 7. [67] Mr. Cote testified that after they came to a stop he got out of the passenger side door. He said there was snow and ice on theside of the road but the road surface itself was “fine.

There was no ice.” (Transcript, 29 Apr. 2013, p. 47, ll. 1-5) On cross examinationhe admitted telling the officer in his statement that he fell when he first got out of the truck and that the edge of the roadway was “icy”,though not the travelled portions of the roadway. (p. 82, l. 13 to p. 83, l. 46). [68] Mr. Cote walked around the front of the truck and saw the passenger door of Ms. Sagar’s pickup impaled on the corner of thefront bumper of the tractor on the passenger side. He said “Oh my God!” and was wandering around in shock.

He said he could see 4 or5 city blocks back up the hill but could not see the vehicle they had collided with. He spoke to Mr. Slubowski through the driver’s sidewindow and asked where the other vehicle was and Ms. Slubowski responded that it went over the cliff. However, this didn’t makesense to Mr. Cote because at the particular location where the tractor trailer unit had come to a stop the highway was in a “cut” withembankments rising up on both sides. See Exhibit 7, particularly the first 4 photographs. Ms.

Sagar’s vehicle was, in fact, located on thenorthbound shoulder quite some distance back up the hill where it had come to rest just in front of where the Gibraltar witnesses hadstopped. [69] While waiting for the police and emergency personnel to arrive, Mr. Slubowski and Mr. Cote had a conversation about bringing the log book up to date. Mr. Slubowski had made no entries in the log book for January 26th. Mr. Cote refused to make any entrieshimself, or to assist Mr. Slubowski with his entries. In his view there had already been an accident and it was now too late to write upthe log book. Also, Mr.

Cote did not have his own logbook in which to make entries. Mr. Slubowski testified that when he was askingMr. Cote to fill out the log book he had no intention of falsifying the logbook; he simply wanted to record what had actually happened -that Mr. Cote had driven almost all the way from Lickman Road to just north of Williams Lake while he (Slubowski) slept and that he(Slubowski) had only taken over the driving about 40 minutes earlier. When Mr. Cote refused to make any entries in the log book, Mr.Slubowski said “Okay, I’m not going to argue with you.

Just tell the truth.” (Transcript, 9 Jan. 2014, p. 27, l. 29 to p. 29, l. 9) [70] This concludes my review of the evidence. I will now move to my analysis, beginning with my assessment of the credibility ofMr. Slubowski’s evidence. Analysis 1. The Evidence of Mr. Slubowski [71] I remind myself of the guidance offered by R. v. W.D., (SCC), [1991] 1 S.C.R. 742. [72] If I believe Mr. Slubowski’s explanation for why his tractor trailer unit crossed the centre line and went into the oncoming,southbound lanes then I must find him not guilty of the charges of dangerous driving.

This is because he asserts that his trailer lost

traction and was sliding out of control and, that by going into the oncoming lane to regain control at a time when no oncoming traffic was visible, he was acting as a reasonable and prudent truck driver. His version of events is that a tragic accident occurred, but it was a “true accident” and not the product of negligence on his part or at least of the level of negligence that amounts to a violation of the criminal law. [ 73 ] Even if I do not believe Mr. Slubowski’s explanation, but am left with a reasonable doubt by it, then I must find him not guilty of the charges. [ 74 ] If I neither believe Mr.

Slubowski’s explanation, nor am left with a reasonable doubt by it, then, on the evidence that I do accept, I must ask whether the Crown has proved every element of the offences charged, beyond a reasonable doubt. [ 75 ] Finally, I remind myself that if I do not know who to believe - for example, as between the Gibraltar witnesses and Mr. Slubowski, or as between Mr. Cote and Mr. Slubowski - or if I find both accounts believable, then I must resolve the doubt inherent in such a position in favour of Mr. Slubowski. [ 76 ] I have concluded that I do not believe Mr.

Slubowski’s explanation, nor does it leave me with a reasonable doubt on the crucial issue of how his tractor trailer unit came to be in the southbound lanes in the seconds prior to the collision. I have reached this conclusion because of several features of Mr. Slubowski’s evidence which I find problematic. I will review those now. A: Inaccurate logbook entries [ 77 ] It is clear that Mr.

Slubowski knowingly made two inaccurate entries in the log book ( Exhibit 6 ) concerning his activities on January 25 th . [ 78 ] The first is the entry that shows him on “Off duty time spent in a sleeper berth” between midnight and 9:30 am. This was on the first leg of their journey, the trip north to Prince George with Wayne Slubowski driving.

This is inconsistent with his testimony during examination in chief where he spoke of getting no more than about 6 ½ hours of sleep during this same time period - 5 ½ consecutive hours between the Lower Mainland and Cache Creek, plus a further time of about 1 hour in the bunk between 100 Mile House and Williams Lake [3] . See Transcript, 23 Sept. 2013, p. 9, l. 34 - p. 11, l. 10. He remembered them being in Williams Lake at about 5 or 5:30 am. Then they went straight to Prince George. He recalled that he spent some more time in the bunk between Williams Lake and Quesnel and then switched with Mr.

Cote and sat up in the passenger seat from Quesnel north to Prince George. . On this account Mr. Slubowski was actually “off duty…in the sleeper berth” about 3 hours less than what he logged in the log book. [ 79 ] It is also clear that he went “on duty” in Prince George earlier than the 9:30 am time shown in the log book - perhaps as much as an hour earlier. I infer this from Mr. Slubowski’s evidence that he and Mr.

Cote had to attend to a number of duties - warming up the Kenworth, cleaning out the cab, hooking onto the southbound trailer (which they had some difficulty doing due to snow in the parking lot) - all before they went for breakfast which he estimated occurred between about 9 and 10 am. ( Transcript, 23 Sept. 2014, p. 12, l. 35 - 40) [ 80 ] From these various pieces of evidence, I conclude that, even by his own account, Mr.

Slubowski was actually only “off duty… in the sleeper berth” for about 5 ½ to 6 ½ hours during the first half of January 25 th rather than the 9 ½ hours he logged in the log book. [ 81 ] The log book is also clearly inaccurate for events during the latter part of the day on January 25 th . It is clear from the evidence that Mr. Slubowski was not “off duty …in the sleeper berth” from the time he and Mr. Cote arrived in Richmond at 9 pm as the log book shows.

He continued to drive the truck to two other locations in the Lower Mainland over the course of the next hour or two, and even when he did turn over the driving to Mr. Cote at the Freightliner shop at Port Kells, near Surrey, he still sat up in the passenger seat (and thus, would appear to be “on duty…other than driving”) for some additional time until they reached Lickman Road in Chilliwack. (Transcript, 23 Sept. 2013, p. 17, l. 20 to l. 24). [ 82 ] It is difficult to determine exact times for these various steps from the evidence, but Mr.

Slubowski did speak, at one point, of being at Lickman Road at 10:30 pm ( Transcript, p. 50, ll. 45 & 46). If that is approximately correct, then his log book entry ( Exhibit 6) which shows him “off duty…in the sleeper berth” as of 21:00 hrs or 9 pm on the 25 th at “Richmond” would appear to be inaccurate. By his own evidence Mr. Slubowski was either driving, or “on-duty …other than driving”, for a further 1½ hours, until at least 10:30 pm, as they went around to these different locations in the Lower Mainland, culminating in the stop at Lickman Road. [ 83 ] Ms.

Helps made the point in submissions that the issue in this case is not whether Mr. Slubowski was strictly compliant with the Regulations - clearly he was not and neither was Mr. Cote. The issue is whether he was driving dangerously within the meaning of the criminal law. Put another way, just because a person fails to observe some, or all, of the rules set out by the Regulations does not mean that they are driving dangerously. [ 84 ] While I accept the accuracy of this submission, I do find that the fact Mr.

Slubowski was willing to make entries in the logbook which he knew were not accurate is relevant to his overall credibility. [ 85 ] I note that the Regulations require commercial drivers to have a minimum of 10 hours “off duty” in a 24 hour cycle and, of that time, 8 hours must be consecutive time off. See ss. 37.13.02 and .03. There is certainly the suspicion in this case that Mr. Slubowski recorded 9 ½ hours of consecutive “off duty” time at the start of the day on January 25 th in order to make it appear that he had complied with the “consecutive hours off” requirement when, in fact, that was not the truth.

He denied this on cross examination and I have decided that I cannot find that this has been proven beyond a reasonable doubt. However, the evidence does convince me that Mr. Slubowski was, at a minimum, quite imprecise and careless as to the accuracy of what he was recording. [ 86 ] The fact that Mr. Slubowski was willing to enter things in the log book which he knew were quite inaccurate does undermine

his credibility as it concerns the critical issue in this case, which is why his tractor trailer unit crossed into the oncoming lanes in the seconds leading up to the collision. B: Internal inconsistencies about “Off duty…in the sleeper berth” times [ 87 ] On a related point, Mr. Slubowski’s evidence at trial about when and where he was “off duty…in the sleeper berth” was internally inconsistent. For example, as mentioned, during examination in chief, he said that he did not go into the berth until they left Lickman Road in Chilliwack, heading north at about 10:30 pm or later on the 25 th .

However, on cross examination, when presented with the log book which shows him “off duty…in the sleeper berth” at 21:00 hrs at “Richmond”, he adopted what was shown in the log book as being the accurate version of what occurred. The interchange was as follows: “Q: Okay. And that’s when you reach Richmond, at 9:00 o’clock at night, according to this? A: Mm-hmm. Q: Correct? A: Yes. Q: Is - is that what - oh, sorry. A: Yes, that’s right. Q: All right. A: No, that’s fine. Q: And then ultimately at 21, 22, 23, 24 the last three hours of the night, you’re back in the berth? A: Yeah. Q: Okay.

You’re -- so in Richmond you stopped driving? A: Yeah, I quit. We were at our destination. Q: And your evidence is that Mr. Cote was driving? A: Yeah, he’s going to drive from there .” (Transcript, 9 Jan. 2014, p. 19 ll. 7-24 emphasis added ) [ 88 ] The same kind of conflict exists with respect to Mr. Slubowski’s evidence about when he was “off duty…in the sleeper berth” during the early part of the day on January 25 th .

During examination in chief he related a fairly detailed description of being asleep for certain portions of the journey and sitting up in the passenger seat at other times (see Transcript, 23 Sept. 2013, p. 9, l. 34 to p. 11, l. 6). See also paragraph 78, above. But, when confronted with what he had recorded in the log book, he reverted to the time line set out in the logbook - namely, “I was in the sleeper” from about 11 pm on the evening of the 24 th right through until 9:30 am the next morning (see Transcript, 9 Jan. 2014, p. 14, l. 42 to p. 15, l. 4). [ 89 ] My impression from hearing Mr.

Slubowski testify was that he did not really appreciate that his evidence was inconsistent on these points. He did not come across as someone who was being deliberately untruthful, so much as someone who has a tendency to re- create or re-cast events in hindsight depending on what issue is uppermost in his mind at the time. In any case, impressions aside, the fact that Mr. Slubowski’s evidence at trial was internally inconsistent on when he was “off duty…in the sleeper berth” undermines his credibility.

It makes it more difficult for me to rely on his version of events at the critical time as something that could, possibly, be true. C: The evidence about whether Mr. Cote was a “co-driver” [ 90 ] Mr. Slubowski’s evidence at trial is inconsistent with his statement to Cst. Arthur, given the day after the collision (see Exhibit A), on the issue of just what Mr. Cote’s role was intended to be on this journey. At trial, Mr.

Slubowski insisted that Rodney Cote was specifically brought along to be “a third driver” on this three part trip so that each of them could comply with the Regulations concerning mandatory “off duty” time (10 hours of “off duty” of which 8 hours must be consecutive, and a maximum “driving time” of 13 hours in a 24 hour cycle). He said this was discussed with Mr. Cote before they even left Vancouver on the evening of the 24 th and that Cote agreed to serve as a “co-driver”. He denied the suggestion that Mr. Cote came along on a more casual basis - first and foremost as a friend, to keep Mr.

Slubowski company, but that he ended up doing some of the driving on an “as needed” basis when Mr. Slubowski got tired or needed some help. See Transcript, 10 Jan. 2014, p. 18, l. 16 - 23 for one of several interchanges in cross examination on this issue. [ 91 ] For his part, Mr. Cote was adamant that he was never asked to go along as a semi-official “co-driver” but only as a friend and companion and that he ended up driving as needed to assist Mr. Slubowski. [ 92 ] In his statement, Exhibit A , given the day after the accident, Mr. Slubowski’s position is initially consistent with his evidence at trial.

He refers frequently to Mr. Cote as “my co-driver”. However, at p. 22, ll. 707 to 716 - in the context of explaining why, if Mr. Cote was along on the trip as a “co-driver” he did not have a log book - Mr. Slubowski seems to acknowledge that the sort of casual, ‘as needed’ arrangement spoken of by Mr. Cote was, in fact, what occurred, and that is why they had not equipped Mr. Cote with a log book. The exchange went as follows:

“RA Can you help me understand why, uh, um, uh, neither he nor you had a log book for the day. BS You know, honestly I didn’t think he was even going to drive, you know. But then I thought well, we (unintelligible), you know, he’s licenced so I got the one log book for myself. RA Yeh. BS The one day. RA Yeh. BS And he’s coming with me.

Then I thought oh well, you know, he can drive a couple of hours.” [ 93 ] In addition to this admission in his statement, given much closer in time to the events in question, when, presumably, his memory would have been fresh, there are several pieces of circumstantial evidence which also point to the conclusion that Rodney Cote was not intended to be a “co-driver” in any sort of pre-planned arrangement. [ 94 ] First, Mr. Slubowski did not record Rodney Cote’s name as “Co-Driver” in the space provided on the log sheet for January 25 th ( Exhibit 6).

At trial he attempted to explain this by saying that it was up to the “co-driver” to write in his own name in that location. In light of other evidence about how it was “not legal” for one driver to make an entry in the log book of another driver I find this assertion to be lacking in credibility. Second, the very fact that Mr. Cote did not have a log book of his own is consistent with the view that his presence on the trip was not intended to be in any official or semi-official capacity as a driver. Third, as Crown Counsel asked on cross- examination - if Mr.

Cote was present in some sort of pre-planned, “co-driver” capacity, why would he bother to go along on the first and second legs of the trip - why not simply stay home in Vancouver for the night of the 24 th and all day on the 25 th , resting up, in preparation for taking on the task of driving the third and final leg back north to Prince George on the night of the 25 th /26 th ? Finally, the way that events unfolded is consistent with the two men helping each other out as needed, rather than with a more formalized “driver” and “co-driver” arrangement. For example, at Lickman Road, Mr.

Slubowski, who has a bad hip and has difficulty walking any distance, took care of the more sedentary task of fuelling the truck while Mr. Cote took on the task of walking over to the Tim Hortons to get them food and coffee. Or, later, after sleeping for 3 or 4 hours, Mr. Slubowski took over driving just north of Cache Creek on the early morning of the 26 th while Mr. Cote went to the bunk. But, a short distance north of there, Mr. Slubowski had difficulty seeing the roadway in the thick fog, so he called to Mr. Cote to get up and assist. From there, Mr.

Cote took over driving once again and took them to just north of Williams Lake, while Mr. Slubowski went to the bunk. [ 95 ] I find that Mr. Cote’s version of events on this point is the correct one. I find that he was not there in any sort of pre-planned capacity as a “co-driver”, but rather as a companion for Mr. Slubowski, and that he ended up helping to do some of the driving on an “as needed” basis. [ 96 ] The relevance of this finding to the issue of credibility is that it demonstrates a tendency on Mr.

Slubowski’s part to re-create events; to re-cast them, such that everything is explained as part of a well thought out plan, when the reality was actually quite different. D: Other inconsistencies - Eyeglasses [ 97 ] On examination in chief Mr. Slubowski said that he wears glasses all the time and that he was wearing his correct prescription on the date in question: Transcript, 23 Sept. 2013, p. 18, ll. 13-15. On cross examination, however, it became clear that Mr. Slubowski had recently been prescribed a new set of glasses but had forgotten them back in Vancouver: Transcript, 9 Jan. 2014, p. 40, ll. 34 - 43.

This is a minor inconsistency since, in Mr. Slubowski’s mind, the new prescription was only to aid him with reading, not with driving, but it does reveal a certain lack of attention to detail in his evidence. - Log book bought or found? [ 98 ] During cross examination about why, if Mr. Cote was a “co-driver”, he did not have a log book, Mr. Slubowski explained that they had tried to buy a log book at the Flying J truck stop at Lickman Road in Chilliwack but, since there was only one book left, Mr. Slubowski bought that book for his own use and Mr. Cote was left without one.

His answer was as follows: “A: You can get them at Lickman Road at the Flying J there, truck stop. Q: There’s a truck stop on Lickman Road? A: But sometimes they don’t have them and on this occasion with me and Rodney, when we came up, they only had the one book and I bought the one book. We didn’t have two books, which we should have had. We should have had separate books but we didn’t. Because they didn’t have one…” (Transcript, 23 Sept. 2013, p. 50, ll. 26 - 34 emphasis added ) [ 99 ] However, Mr. Slubowski later said that the log book he used ( Exhibit 6) was a blank one he found in the Kenworth truck.

In this later exchange he makes no reference to having bought the log book. See Transcript, 10 Jan. 2014, p. 19, ll. 16 to 39 and p. 20, ll.

40 to 42. Again, this is not a big point, but it does tend to undermine the reliability of Mr. Slubowski’s evidence. When he offers details in his evidence is he describing what actually happened or simply what might have happened? - 1,000 yards behind or in front? [ 100 ] On cross examination Mr. Slubowski was being asked about the account of the collision he gave to Cst. Arthur in his statement. He was asked to confirm that there was no traffic behind him. Mr.

Slubowski responded: “…I think I told him there was a pickup truck about a thousand feet behind me.” What he had actually said in his statement was that visibility just prior to the collision was good and that he could see about 1,000 feet ahead, all the way down to the left hand turn that leads under the overpass. ( Exhibit A, p. 44, ll. 1419 to 1433) Again, this is a minor point but it is a further indication that when Mr. Slubowski gives detail in his evidence it is not always reliable. - Was the light load in the trailer a factor or not? [ 101 ] Mr.

Slubowski testified that the northbound trailer which he and Mr. Cote hooked onto in Richmond on the evening of the 25 th contained a very light load of only 4,000 or 5,000 lbs of parcel freight. He testified that the lighter the load the less traction the trailer will have. On examination in chief he asserted that the light load on this occasion definitely contributed to the trailer “kicking out” and thus to his subsequent movement into the oncoming lanes in order to regain control. (Transcript, 23 Sept. 2013, p. 23, ll. 28 - 40).

On cross examination he was firm in his position that the light load was a causative factor in the chain of events leading up to the collision: “…if I had more weight, it [the accident] wouldn’t have happened.” (Transcript, 9 Jan. 2014, p. 71, ll. 33-38) . However, shortly afterwards, Mr. Slubowski’s evidence on this point seemed to shift. He was asked whether the fact he had a lighter load on meant he had to drive differently.

He then said that the more important factor in determining how to drive would be the conditions of the highway: “Well, you drive for the conditions of the highway.” (p. 73, ll. 15-17 and l. 46 to p. 74, l. 3) . A little later still, he seemed to go as far as saying that the light load was actually not a significant factor on this occasion. The condition of the highway was the more important consideration: “Q: So you weren’t worried about the trailer being lighter? A: No, ‘cause a lot of the times we’ll bring back an empty trailer. They’re totally empty.

But if there’s signs of ice or snow, or whatever, you slow down, naturally.” (Transcript, 9 Jan. 2014, p. 74, ll. 7-12) [ 102 ] I have concluded that I cannot attribute much weight to this apparent shift in position on the question of whether the lightly loaded trailer was a causative factor in the collision. It may be simply a miscommunication - Crown counsel was asking specifically about the incident in question whereas Mr. Slubowski was thinking, and speaking, about driving in a more general sense. [ 103 ] There are a number of other inconsistencies in the evidence of Mr.

Slubowski either internally (that is, within his evidence given at trial) or with respect to his statement given to Cst. Arthur. Some are clearly the product of confusion over dates (such as his evidence about whether he had started taking injectable insulin prior to the date of the collision or afterwards) or locations (such as his evidence about whether he handed the driving over to Mr. Cote at Annacis Island or at Freightliner in Surrey on the evening of the 25 th , where it was that they encountered fog, and where it was that he and Mr.

Cote took turns driving in the Cache Creek, Clinton area on the early morning of January 26 th ). He also displays confusion over the meaning of the four different kinds of “duty status” shown in the log book, Exhibit 6. I have concluded that none of these inconsistencies have any particular significance when it comes to assessing the credibility of Mr. Slubowski - at least as it concerns matters in issue in this case - and so I will not refer to them further.

Summary - Mr. Slubowski’s evidence [ 104 ] I have concluded that the evidence of Mr. Slubowski lacks credibility because of the inconsistencies I have identified. When I consider Mr. Slubowski’s evidence in its entirety I find that there is a tendency to re-create events, to justify and to rationalize.

I conclude that his evidence is not reliable on certain key points, such as the road conditions at the time of the collision, and how and why his tractor trailer unit ended up in the oncoming lanes in the seconds prior to the collision. [ 105 ] I will turn now to other evidence in the case and assess what, if any, of that evidence I do accept. 2. Other Evidence in the Case - Evidence of Rodney Cote [ 106 ] Mr. Cote’s credibility is attacked because he has a civil suit in the works against Mr.

Slubowski as a result of injuries he says he suffered when he was thrown out of the bunk by the force of the collision with Ms. Sagar’s pickup truck. As Ms. Helps put it, “Mr. Cote sees a pay cheque in his future”. It is in his monetary interest, she argues, for Mr. Cote to make out that Mr. Slubowski was driving negligently and therefore his evidence should not be trusted. [ 107 ] I have approached Mr. Cote’s evidence with caution as a result. [ 108 ] Having said that, Mr. Cote did not come across as being unfair to Mr. Slubowski, or ob

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