R. v. Cvokic, 2017 ONCJ 517

CITATION: R. v. Cvokic , 2017 ONCJ 517 DATE: July 21, 2017 COURT FILE: 163106 Case Name: R. v. Cvokic Between Her Majesty the Queen, and Igor Cvokic Regional Municipality of Niagara Court File: 163106 ONTARIO COURT OF JUSTICE S. Lancaster J.P. Trial: March 20, 27 & May 19, 2017 Judgment: July 21, 2017 Drive commercial motor vehicle tractor-trailer combination on a highway with the tractor being in a dangerous or unsafe condition Highway Traffic Act, s.84.

(1) E. Bouhafna …................................................................ for the Prosecution F. Ackland ……………....................................................... for the Defendant Reasons for Judgment [I] S. LANCASTER J.P.: Igor Cvokic is before the court charged on January 16, 2016, did drive a commercial motor vehicle in conjunction with a trailer on the Queen Elizabeth Way highway with the tractor being in a dangerous or unsafe condition pursuant to s.84.(1) of the Highway Traffic Act (HTA) .

The tractor plates and annual inspection certificate were removed putting the tractor “out of service” as it was “deemed unfit for the highway”. An Information laid against Pentagon Logistics Inc. for permitting the operation of a commercial motor vehicle in relation to the same offence was withdrawn at trial by the prosecutor. This matter returns today for judgment. I. ISSUES: [2] Issues raised during this trial : (

a) Does the absence of the Attorney General’s consent invalidate Mr. Cvokic’s

Part III charge following the issuance of a

Part I offence notice? (

b) Does the missing information on the vehicle permit and plate portion affect the ‘True Copy’ validity of Exhibit 3? (

c) Is prosecution expert witness testimony required to properly address the technical issues concerning critical wheel defects?

(

d) Was the tractor driven by Mr. Cvokic in a dangerous or unsafe condition due to the condition of the 3 rd axel front right wheel assembly and fasteners pursuant to HTA s.84.(1)? II. EVIDENCE: Officer Palmer – Prosecution Evidence : [3] The court heard from Officer Palmer, a Provincial Offences Act Enforcement Officer with the Ontario Ministry of Transportation (MTO). He conducted an inspection of a tractor and trailer combination at the Vineland truck inspection station on the west-bound QEW in the Town of Lincoln, Region of Niagara. As driver, Mr.

Cvokic provided his photo driver’s licence, CVOR, motor vehicle permit (Exhibit 1, 2, 3 respectively) insurance, logbook, daily trip report and trip bill of lading. The evidence shows that Mr. Cvokic was operating a commercial motor vehicle as per HTA s.16.1(1); this vehicle had a Registered Gross Weight of 40,000 kg. [4] Officer Palmer described the tractor as having 3 axels and the trailer having 2 axels, noting damage he observed to the tractor’s 3 rd axel front outside right wheel.

This wheel is connected to a second wheel by 10 studs/bolts from the back to the outside wheel and fastened by nuts using washers. He observed 1 fastener bolt and nut missing, noting several loose washers showing a shiny finish beneath the washers suggesting wear that may be recent, and not being the dark colour of the fixed washers. His “tug” of these washers had them “freely moving”. Exhibit 4B shows the inside view of this wheel set where an alleged 1/8 inch separation at the bottom between the two wheel set was observed and measured with daylight showing between the gap.

The defence questioned the inconsistency in the number of warn and loose washers, noting 7 or 9, when comparing the enforcement report with the CVIR. Exhibit 4D appears to show 6 of 10 washers with ‘shiny wear’. [5] He described his training as an MTO Enforcement Officer referencing his Canadian Vehicle Safety Alliance Level 1 inspection certification and 21 months inspection experience as of the offence date, including recognizing commercial motor vehicle critical defects. He conducts 600-700 inspections per year, outlining his routine inspection steps. He first conducted a ‘Level 2’ inspection on Mr.

Cvokic’s tractor and upon observing defects proceeded to the more detailed ‘Level 1’ inspection. Based on his knowledge and training and as per HTA O’Reg.199/07 (schedule 1) there was a risk of “imminent wheel separation at the time”. [6] On cross examination, Officer Palmer outlined his training regarding wheel assembly including wheel spoke/hub piloted fasteners, fastener location, steel and aluminum wheels, cracks, checking fasteners and washers for looseness. He could turn several washers by hand, although the fasteners would not turn by hand; he did not use a tool to check the fastener torque.

His coach officer Chris Niles also inspected the alleged defects. The discrepancy between the CVIR (7 loose washers) and the Enforcement Report (9 loose washers) may be due to an error on the CVIR that was prepared the next day, despite referencing his notes. The damaged bolt end was visible within the bolt hole. There was no visible gap between the fasteners and the wheel rim. Officer Palmer concluded that the “major defects” per

Schedule 1 of the O’Reg.199/07 was a concern for “imminent wheel separation”. [7] Officer Palmer testified that he had initially served a

Part I offence notice but after further consideration and after consulting another officer the charge was upgraded due to the severity of the wheel defect. The

Part I offence notice was provided to Mr. Cvokic before he left the station, with the

Part III summons issued 5 days later. The s.82.

(1) Part I offence notices were voided and not filed with the court. Igor Cvokic – Defence Evidence : [8] Igor Cvokic confirmed the offence date, time, location and his identification. He was Toronto-bound QEW highway crossing at the Fort Erie border having started his trip in Cambridge Ohio after conducting his half-hour daily pre-trip inspection. He found no tractor defects, including none to the wheel assemblies, having checked the fasteners, noting that nothing occurred in transit that day to cause the bolt to shear off.

He testified that on January 12, 2016 (4 days prior to the offence date and 2,808 km fewer) he stopped at the same Vineland Inspection Station where Officer Niles’ inspection found no defects (per Exhibit 5). With his daily pre-trip inspection, circle checks in between daily inspections, carrying a small wrench to apply necessary fastener torque when picking up new trailers and with his defect-free inspection 4 days earlier Mr.

Cvokic had no reason to be concerned about the wheels. [9] The Law : Highway Traffic Act S.84.(1) (charging section) : No person shall drive or operate or permit the operation upon a highway of a vehicle, a street car or vehicle that in combination are in a dangerous or unsafe condition. S.16.(1) defines a “commercial motor vehicle” as having a gross weight of more than 4,500 kg. Provincial Offences Act , S.21.

(1) Commencement of Proceedings by Information – In addition to the procedure set out in Parts I and II for commencing a proceeding by the filing of a certificate , a proceeding in respect of an offence may be commenced by laying an information. S.21.

(2) Exception – Where a summons or offence notice has been served under

Part I, no proceeding shall be commenced under

subsection (1) in respect to the same offence except with the consent of the Attorney General or his or her agent. Highway Traffic Act, Regulation 512/97 – Critical Defects of Commercial Motor Vehicles

Part II – Critical Defects, Wheels and Rims –

Definitions: S.10.(1) in this section, “fastener” – means a component used to secure a vehicle’s disc wheels or spoke wheel rims to the vehicle and may include a wheel stud,rim clamp stud, inner cap nut, outer cap nut, two-piece flange nut, ball seat nut, flat nut or any combination of them; “loose” when applied to a fastener, means that there is visually observable space between the fastener and its contact point on the discwheel or spoke wheel rim or that the fastener can be moved by using hand force only; “wheel assembly” means disc wheels, spoke wheels and fastener on one side of one axel. S.10.

(2) A commercial motor vehicle or trailer has a critical defect for the purposes of sections 82.1 or 84 of the Act if one or more ofthe following defects is present on two or more of its wheel assemblies; S.10.

(4) On a wheel with 10 or more fastener positions, any three fasteners or any two adjacent fasteners are cracked, broken, missing orloose. Cases Cited (Defence): 1. R. v. Werner Enterprises Inc., [2010] O.J. No. 806 2. R. v. Quality Carriers Inc., [2007] O.J. No. 5667 3. R. v. Sault Ste. Marie (City) [1978] SCC 4. R. v. Colavita Construction Ltd., [1993] O.J. No. 4484 5. R. v. Docherty, 2010 ONSC 3628 , [2010] O.J. No. 3460 6. R. v. Bat Trucking Inc., [2008] O.J. No. 5486 Cases Cited (Prosecution): 7. Greater Sudbury (City) v. McNeil, [2012] O.J. No. 1315 8. R. v. Abdo, [2015] O.J. No. 449 9. R. v.

Graat,[1982] S.C.C. 10. United States of America v. Shephard, [1976] S.C.C. 11. R. v. Kurtzman, [1991] O.C.A. [1991] No. 1285 12. R. v. Arcuri, [2001] S.C.C. 13. Quebec c. Souveraine, [2013] SCC 63 III FINDINGS: (

a) Does the absence of the Attorney General’s consent invalidate Mr. Cvokic’s

Part III charge following the issuance of a

Part Ioffence notice? [10] The defence submits that proceeding by

Part III information following the issuance of

Part I offence notice requires the AttorneyGeneral’s consent, and as Officer Palmer did not obtain this consent the charge against Mr. Cvokic is invalid. As per s.21.(1) of theProvincial Offences Act, the exception to obtain the Attorney General’s consent is triggered when the

Part I or II certificates have beenfiled. In Mr. Cvokic’s case the

Part I certificate was not filed so there is no required Attorney General consent; Mr. Cvokic’s

Part IIIcharge is valid. (

b) Does the missing information on the vehicle permit and plate portion affect the ‘True Copy’ validity of Exhibit 3?

[11] The defence argues the truncated vehicle permit invalidates Exhibit 3 as a ‘True Copy’. From the evidence I cannot conclude that Exhibit 3 is not a ‘true copy’ of the permit presented to MTO by Mr. Cvokic that was then certified. The court can only reference the permit information that is present. The apparent missing information does not invalidate Exhibit 3 as a ‘True Copy’ or the visible information. (

c) Is prosecution expert witness testimony required to properly address technical issues concerning critical wheel defects? [12] The defence argues that the technical nature of tractor wheel assemblies requires expert witness testimony. He submits that Officer Palmer’s training and experience is insufficient for the court to assess the critical defect evidence that would render the tractor dangerous or unsafe. O’Reg.512/97 ( and O’Reg.199/07 ) note “cracked”, “broken”, “ loose ” and “ missing ” fasteners.

These defects would generally be evident through observation, or for fasteners “... moved using hand force only”, per s.10(1). These defects would, in fact “shall”, trigger the deeming provision under both s.82 and s.84. Officer Palmer deemed the vehicle dangerous or unsafe in relation to the

Part I charge that was not filed, but it is unclear from the testimony if the deeming provision was triggered in relation to the

Part III charges per s.84.(1), although the alleged defects are the same for both charges. Regardless of the deeming provision the court must determine from the evidence if critical defects would cause the tractor to be in a dangerous or unsafe condition. The nature of the critical defects and the potential consequences would dictate if expert witness testimony is required, especially where the evidence did not trigger the deeming provision. The issue of expert witness testimony is addressed below. (

d) Was the tractor driven by Mr. Cvokic in a dangerous or unsafe condition due to the condition of the 3 rd axel front right wheel assembly and fasteners pursuant to HTA S.84.(1)? [13] Through training, certification, mentoring, work experience and the regulatory framework, MTO provides their enforcement officers with the tools to detect prescribed commercial motor vehicle critical defects. With O’Reg.512/97 the Legislature makes it clear that with prescribed critical defects a vehicle shall be deemed dangerous or unsafe.

Where the prescribed critical defects are not found expert witness testimony would be required to assist the court in determining if the defects would cause a dangerous or unsafe condition.

Expert witness testimony could address material integrity, causes of metal fatigue and the effects over-torqueing could have on wheel fasteners, including the potential for fastener ‘sheer off’, wheel separation or other potential failure scenarios and timing, the “steps of degradation” as the defence characterized. [14] Some regulatory terminology used by the officer and the defence on cross examination may have been interchanged as Mr. Cvokic was initially charged under s.82.(1). The term “major defect” is found in O’Reg.199/07 ,

Schedule 1 (Daily Inspection of Trucks, Tractors & Trailers) as is “imminent wheel failure” noted in

Part 22 (Wheels, Hubs & Fasteners). This Regulation relates to HTA s.107(1) Inspections and Maintenance of Commercial Motor Vehicles that, among other things, imposes daily inspection requirements on operators. That said, apart from the phrase “imminent wheel failure”, defect

definitions noted in O’Reg.199/97 and O’Reg.512/97 are similar. Officer Palmer noted his knowledge of ‘Major Defects’ per O’Reg.199/97 , noting imminent wheel separation. [15] Turning to Officer Palmer’s evidence, he observed 1 missing bolt and nut and a 1/8 inch separation between the two wheels on the front right wheel assembly and several washers loose to the hand turn. The focus is on the wheel fasteners ability to secure the wheels. There is no evidence of a “visually observable space”, per s.10.(1), between the loose washers and the bolts and its wheel surface.

Apart from one missing bolt and nut, all bolt nuts were tight. O’Reg.512/97 qualifies the missing bolt and nut as a critical defect referring to one or more prescribed defects “present on two or more of its wheel assemblies” [ s.10 .(2)]. It further qualifies wheels with 10 or more fastener positions (as in this case) with any 3 fasteners, or any 2 adjacent “broken, missing or loose” fastener as “critical defects”.

The evidence relates to defects on only one wheel assembly, notably the 3 rd axel outside right wheel. [16] For good highway safety reasons (the object of the HTA and Regulations) involving commercial motor vehicle, the HTA and Regulations have to address a multitude of trucks and trailers sizes, configurations and cargo weights, prescribing axle, wheel and fastener parameters. R. v.

Quality Carriers Inc., (2007) addresses the heavily regulated commercial motor vehicle industry. “In looking at the Act and Regulations, I note that the Legislature has taken great care to define the terminology used and to restrict those

definitions where necessary” (par. 21). That said, from reading the Regulations, there are built-in tolerances, for example, per s.10.(2)(4), 2 broken, missing loose non-adjacent fasteners. This would recognize that certain conditions, from-time-to-time could lead to equipment failure.

Failsafe measures, for example specifying a starting point of 10 fasteners, the daily driver inspection requirement and state-run truck inspection stations are in place to identify potential deficiencies early on. [17] Sections 82 and 84 refer to ‘critical defects’, both having deeming provisions, s.82.1(6) and s.84.(1.1) respectively. The prosecutor submits that the deeming provision was not being relied on; however, Officer Palmer seized the vehicle number plate, removed its vehicle inspection sticker and detained the tractor due to his observed critical defects.

His initial actions may have been in relation to the s.82 charge, however, the upgraded s.84 charge was in relation to the same defects. Officer Palmer is relying on his training and experience, and while testifying that it is his opinion that the wheel assembly conditions presented a “immanent wheel-off situation’, he was not qualified as an expert and the evidence does not support his conclusion. IV JUDGMENT: [18] Mr. Cvokic’s truck was checked at the same inspection station 4 days earlier and found to be defect-free. Mr. Cvokic inspected his truck including wheel fasteners that morning and found no defects.

What caused the 1 bolt to sheer off or when is not known, but with the two MTO inspections presumably it would have been during the intervening 4 day period.

[19] While not specifically noted in the evidence, nor through the prosecution’s submissions, the officer and the prosecution may be relying on the ‘washer’ as being an integral part of the fastener. Paragraph 9 above, O’Reg.512/97 s10.(1) defines fastener as a means to secure vehicle wheels, specifying various studs and nuts, without any reference to washers. The common sense use of a washer would be to provide a buffer between the bolt and nut and its contact point to prevent wear when tightening or perhaps fusion between the nut and contact point over time.

There was no evidence or submissions as to the fastening quality of the washers, for example a ‘lock washer’ which would help prevent the nut from loosening, or how loose washers is evidence of loose fasteners leading to a dangerous or unsafe vehicle. Absent evidence in this regard the court cannot speculate that washers provide any securing value. [20] The state of being dangerous or unsafe relates to the front right 3 rd axel assembly wheel loosening to cause wheel assembly damage or detaching altogether presenting a serious road safety hazard for both Mr. Cvokic and other motorists.

Of the 10 fasteners 1 was missing, 9 were tight with apparent wear at several washer/wheel contact points. The alleged 1/8 inch wheel separation (which is hard to discern from Exhibit 4b) is on the opposite side to the missing bolt and nut which may or may not be significant. Without expert witness testimony the court cannot conclude that the alleged separation was caused by the 1 missing bolt, cannot determine the possible consequences of the alleged 1/8 inch separation, how the washers may have loosened and the implications, if any, for the otherwise secure wheel fasteners.

Absence more evidence, the 1 missing bolt and nut, the loose washers and the alleged 1/8 inch wheel separation is not evidence of a prescribed critical defect per O’Reg.512/97 that would place Mr. Cvokic’s truck in a dangerous or unsafe condition beyond a reasonable doubt. [21] Had the actus reus of the offence been proved, as a strict liability offence the court would have turned to the defendant who bear the onus to prove, on a balance of probabilities, that he exercised due diligence. Mr.

Cvokic has driven for 7 companies since 2008 with each company providing vehicle pre-trip inspection training, including Pentagon Logistics’ 2-3 days training on “paper”, “border crossing” and “daily vehicle inspection”. No training-related policies or instruction details or driver requirements were provided to the court to address the nature, extent or timing of such training or Mr. Cvokic’s involvement in the training. Mr. Cvokic changes his vehicle’s oil and lubrication, taking his vehicle to certified garages for mechanical work, e.g., brakes.

Exhibits 7 and 8 relate to tire repair service in 2015 that recommend fastener re-torque within 100 miles of the service. Mr. Cvokic’s testified that he has the records showing the re-torqueing of those fasteners although none were provided to the court. Evidence in this regard could have had a bearing on the court’s finding of guilt or innocence. The defence evidence falls short in demonstrating due diligence had the prosecution made out their case. The charge is dismissed .