R. v. Ingram and Halton Recycling Ltd., 2018 ONCJ 334

ONTARIO COURT OF JUSTICE CITATION: R. v. Ingram and Halton Recycling Ltd. , 2018 ONCJ 334 DATE: May 17, 2018 R. v. Ingram & Halton Recycling Ltd. Between Her Majesty the Queen, and Scott Ingram & Halton Recycling Ltd. Regional Municipality of Niagara Court Files: 17-3115 & 17-3116 S. Lancaster J.P. Trial: February 12, 2018 Judgment: May 17, 2018 Operate a commercial motor vehicle with brakes not maintained in good working order Permit the operation of a commercial motor vehicle with brakes not maintained in good working order Highway Traffic Act, s.64(7) M.

Ly ……….….................................................................................. for the Prosecution F. Ackland …………………….……..................................................... for the Defendants Reasons for Judgment I. INTRODUCTION [I] Scott Ingram and Halton Recycling Ltd. are before the court charged on January 25, 2017 for operating and permit the operation of, respectively, a commercial motor vehicle with brakes not maintained in good working order on the Queen Elizabeth Way highway, pursuant to s.64(7) of the Highway Traffic Act (HTA) and regulations thereof.

This matter returns today for judgment. [2] At the trial outset, the prosecution sought an amendment to delete the charge word ‘without’ on both informations that, in effect, created a double negative, to wit, “… without being equipped with brakes not maintained in good working order …”. The defence objected and sought dismissal of the charges as the wording is not an offence under s.64.(7). Despite the benefit of a judicial pre-trial this apparent typo was not addressed prior to today. POA s.34.(1) provides the court with broad scope to grant amendments where the information is defective in substance or in form.

There is a public expectation that trial matters will be adjudicated on case merits and not be dismissed unless the amendment would lead to an injustice or mislead or prejudice the defendant’s ability to meet the charge(

s) and make full answer and defence. Furthermore, pursuant to s.36.(2), “the court shall not quash an information or certificate unless an amendment … would fail to satisfy the ends of justice”. The amendment was granted and the defence declined an adjournment in this regard. II. EVIDENCE: Officer Palmer – Prosecution Evidence : [3] The court heard from Officer Palmer, an Ontario Ministry of Transportation (MTO) Provincial Offences Act Enforcement Officer, who inspects commercial motor vehicles for fitness.

Early afternoon on January 25, 2017 he was dispatched to the QEW highway east of Mountain Road in Niagara Falls in relation to a disabled 2011 Freightliner 2 axel “straight truck” recycling truck. He was satisfied with the driver’s identity having spoken with Scott Ingram who identified himself with a valid Ontario photo driver’s licence. He received the Driver’s Vehicle Inspection Report (DVIR) , the truck’s Annual Inspection Certificate, and the company’s Commercial Vehicle Operator’s Registration Certificate (CVOR); he noted the registered vehicle weight of 19,000 kg.

[4] When the prosecution tendered the CVOR as evidence of truck ownership it became apparent that the document certified the vehicle’s ownership registration for February 4, 2017, some 10 days after the January 25, 2017 offence date.

While the HTA s.210.(7) requires documents filed with the MTO, certified by the Registrar as being a true copy, to be received in evidence (a statutory exception to the hearsay rule) the certificate in this case was not admitted as evidence of truck ownership on the offence date. [5] Officer Palmer observed the truck’s broken brake assembly and a missing 2 nd axel brake drum and conducted a ‘Level 1’ inspection. Three broken brake drum pieces (Exh.2) were located onsite with observed cracks with colour variations ranging from “light to dark gray”.

Measuring the push rod travel he found the 2 nd axel, right side measured 2 7/8” and the left side 3”, both beyond the 2½” requirement, per O’Reg. 587

Schedule 1, noting the “clamp type” and the 90-100 psi for both brakes. [6] In the absence of the certified CVOR evidence Officer Palmer noted on cross examination that he had seen the CVOR provided by the driver in the name of Halton Recycling Ltd. While hearsay, the prosecution asserts that this evidence falls into the exception to the hearsay rule as ‘necessary and reliable’.

My decision regarding this hearsay evidence is noted under ‘Findings’ at para.13-16. [7] The defence made a non-suit motion in relation to the truck’s ownership given the absence of a certified CVOR or other evidence, including any agency of Mr. Ingram. This motion was dismissed as the non-suit test is “some evidence” not evidence beyond reasonable doubt, and Exhibit 3 DVIR notes “Halton Recycling Ltd., d.b.a. Emterra Environmental”. Scott Ingram – Defence Evidence (Driver): [8] The court heard from Scott Ingram, a truck driver employed for 3 years by Emterra Environmental with a St.

Catharines address who had driven truck #1130 for 6-7 months prior to the incident. On the offence date he was operating this recycling truck with “secured content” on route to the recycling facility travelling along the QEW. Upon hearing a “bang” he pulled over onto the shoulder, activated his 4-way flashers and called his supervisor. His vehicle braked without incident. He offered assistance to two drivers whose vehicles had come into contact with his brake drum pieces, collecting 1 broken brake piece with two other brake pieces found off the road. [9] In his evidence-in-chief, Mr.

Ingram outlined, as a commercial motor vehicle driver, his “pre-trip inspection” that he conducts each morning, including checking fluids and air pressure, leaf springs, vehicle sticker validity and a general condition check. He checked the rear differential, brake pads, airbrake psi noting the low-level psi alert and with an experienced co-worker pressing the brakes he checked the push rod distance. He completed the DVIR (Exh.3) noting “No Defects”. On cross examination he noted the attached brake “indicator” showed the push rod travel “between the bars” demarcation lines indicating proper adjustment.

There is little of the brake drum visible without removing the wheels, a procedure not required of him as part of his pre-trip inspection. [10] Mr. Ingram conducts post-trip inspections when returning to the yard. When encountering a truck defect in the past, the mechanic’s signature informs him of the fix that he confirms during the next pre-trip inspection. While operating this work truck daily he applies the brakes, including parking brake, when fully stopping at some 1100 houses, stating that he would not remove the truck from the yard if a defect was found.

The Law [11] Highway Traffic Act S.64.(7) (charging section) : Condition of brakes – all such brakes and braking systems shall be maintained in good working order and shall conform to the Regulations made under this section. A ‘commercial motor vehicle’ means : S.1.(1) a motor vehicle having permanently attached thereto a truck or delivery body … and tractors used for hauling purposes on the highways; S.16.(1)(

a) as having a gross weight of more than 4,500 kg. Push Rods : S.5.

(2) The push rod stroke of the service brake chamber of a vehicle equipped with wheel brake air chambers shall not be more than the push rod stroke listed in Column 2 of the

Schedule for the type of chamber listed in Column 1 of the

schedule if the wheel brake has cam or disc type brakes.

Certified Document : S.210.(7) – Evidence A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar’s signature or the manner of preparing the copy or statements, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.

Operator : S.107.(1) – Inspection and maintenance of commercial motor vehicles Every operator shall establish a system, and prepare and keep a written record of that system, to periodically inspect and maintain all

commercial motor vehicles and vehicles drawn by commercial motor vehicles that are under the operator’s control and that are operated or drawn on the highway. Driver : - Completion of inspection reports S.107.(5) – Every person who conducts a daily inspection or under-vehicle inspection shall accurately complete an inspection report forthwith after completing the inspection. Equipment - Brakes O’Reg. 587, s. 3.

(1) The brakes required by

section 64 of the Act and this Regulation shall be adequate to stop the vehicle or combination of vehicles referred to in column 1 of the table with a distance not greater than the distance set opposite the vehicle or combination of vehicles in column 2 while being operated at a rate of speed of twenty miles per hour on a dry, smooth, hard surface or other paved surface free from loose material and having not more than 1 per cent gradient. O’Reg. 587 -

Schedule 1 – prescribes pushrod travel parameters O’Reg. 199/07 – prescribes Commercial Motor Vehicle Inspection requirements

Schedule 1 – Daily Inspection of trucks, tractors and trailers

Part 1. Air Brake System defines Major Defect as: (

a) pushrod stroke of any brake exceeds the adjustment limit

Part 13. General defines Major Defect as: (

a) serious damage or deterioration that is noticeable and may affect the vehicle’s safe operation [12] Cases Cited (Defence): 1 . R. v. 2934752 Canada Inc. (c.o.b. Highland Transport), [1997] O.J. No. 6308 2 . R. v. Kanellopoulos, [1984] O.J. No. 3083 3 . R. v. Sault Ste. Marie (City), [1978] SCC 4 . R. v. Vandemunt, [2011] O.J. No. 5783 5 . Durham (Regional Municipality) v. Zhu, [2011] O.J. No. 1797 6 . R. v. Hayes, [2005] O.J. No. 5057 7 . R. v. Day, [1985] O.J. No. 1798 8 . R. v. Colavita Construction Ltd., [1993] O.J. No. 4484 9 . R. v. Swish Maintenance Ltd., [2005] O.J.

No. 3958 Cases Cited (Prosecution): 10 . R. v. Wholesale Travel Group Inc., [1991] 11 . R. v. 1260448 Ontario Inc., [2003] O.C.A III FINDINGS: Halton Recycling Ltd. – as operator [13] Regarding evidence of vehicle ownership, hearsay and ministry documents, R. v. 2934752 Canada Inc. [Highland Transport (1977)] at paragraph 24 notes that hearsay only becomes necessary in the absence of a properly certified MTO CVOR, and addresses the ‘Best Evidence Rule’: “It is incumbent on the ministry to prove the existence and the contents of documents that are in its own possession.

The best evidence is the original documents in the ministry records. It is impractical to produce these documents; therefore, the next best evidence is copies certified to be accurate by the Registrar. Documents found in the possession of a person, the driver, who is not the accused and has not been shown to be an agent of the accused, are not admissible against the accused” [14] In the absence of a certified CVOR in the name of Halton Recycling Ltd., for the offence date, Officer Palmer on cross examination noted that Mr. Ingram as driver provided the vehicle CVOR showing ownership.

The defence objected and submits that the prosecution has not satisfied the Necessity and Reliability criteria of the principled approach to hearsay. [15] Hearsay is presumptively inadmissible at trail unless an exception applies. Taking the ‘Principled Approach’ regarding Necessity, admitting the hearsay requires that the evidence is reasonably necessary to prove a fact, e.g., truck ownership, and not employed to prove the prosecution’s case, and that the source is reliable. As MTO documents could have proved ownership on the

offence date, as per the ‘best evidence rule’, necessity is not triggered, i.e., the truth and accuracy can be sufficiently tested by means other than cross examination. As necessity was not proven, addressing hearsay reliability is not required, although, given the passage of 13 months, the absence of the Officer’s notes in this regard, and the 100 plus inspections conducted by Officer Palmer since the offence date, hearsay reliability is in question.

The court has not heard testimony from a representative of Halton Recycling Ltd., and absent a certified CVOR document no evidence regarding truck ownership was tendered for the offence date. [16] As an employee of Emterra Environmental Scott Ingram acknowledges that he signed off on the DVIR that references Halton Recycling Ltd., but as noted during cross examination he is not aware of the two company’s business relationship and denies that he has any involvement with Halton Recycling Ltd., the defendant company. There is no evidence of ‘agency’ of Mr. Ingram vis-a-vis Halton Recycling Ltd.

Scott Ingram - as driver [17] Mr. Ingram inspected his truck that morning as he does during every pre-trip inspection, including brakes, and found no defects. Mr. Ingram’s responsibility relates to his inspection and reporting requirements. [18] With the broken brake assembly while being operated on a highway, the a ctus reus of the offence has been proved. As a strict liability offence the court turns to the defendant Mr. Ingram who bears the onus to prove, on a balance of probabilities, that he exercised due diligence with regard to his inspection and reporting requirements. While Mr.

Ingram did not provide the court with the nature, extent or timing of his training, reference policies or written inspection procedures that he followed, he outlined in detail his inspection procedures that he follows for every pre-trip inspection, with a focus on brakes. As noted in par.9 he engaged an experienced co-worker during his inspection. [19] Officer Palmer testified that the brake drum broke into 3 pieces noting crack lines and out-of-adjustment push rods.

The prosecution submits the brakes would have degraded over time as evidenced by the crack line discolouration, with an inference that the darker lines denote corrosion and questionable proper brake maintenance. The court must focus on Officer Palmer’s and Mr. Ingram’s testimony, in the absence of owner evidence regarding the truck’s mechanical maintenance. As driver, Mr. Ingram is not responsible for maintaining the truck’s mechanical fitness, only to inspect and report deficiencies.

Why the 2 nd axel, left side brake assembly broke apart is not known, nor what further damage was caused to the drum pieces contacting the road or to push rod adjustment. The defence submits that the officer’s limited notes regarding his inspection process and findings impact his evidence credibility, citing R. v. Vandemunt . [20] The defence argues that the technical nature of wheel assemblies and the nature of the alleged brake defects would require expert witness testimony to help inform the court. The defence further submits that there is no evidence of any ‘major defects’ noticeable to Mr.

Ingram that may affect the vehicle’s safe operation. I agree that expert witness testimony could have shed some light on probable causes of brake degradation, drum cracking or other failure scenarios and the affect that the road impact could have had on the brake drum. As well to advise what, if any, affect brake drum separation could have had on push rod adjustments, given the evidence regarding push rod adjustment pre and post brake failure. On cross examination, Officer Palmer noted that the broken brake parts would exit toward the push rods, possibly impacting them.

Clearly, the heavy use of brakes on recycling trucks would demand a robust braking system. [21] O’Reg. 587, s.(6)(7) speak to the push rod “indicator” that is to be visible to the inspector, who is adjacent to or underneath the vehicle. Mr. Ingram testified that he observed the indicators that showed the push rod adjustments were as required. The prosecution’s evidence shows the 2 nd axel push rod stroke travel parameters were out of adjustment which Officer Palmer noted would negatively impact the truck’s stopping distance.

There is no evidence that the brake drums had a serious defect that would have been noticeable to Mr. Ingram during his inspection that may have affected the vehicle’s safe operation. There is no evidence that Mr. Ingram was unable to stop his truck as required by O’Reg. 587, s.3.(1) specifically a distance of 40 feet and Mr. Ingram testified he stopped his truck without incident. IV JUDGMENT: [22] I find that Mr. Ingram was forthcoming and credible in terms of his evidence-in-chief and on cross examination.

He acted with due diligence in relation to his inspection obligations and that he took all reasonable care that a truck driver in the same circumstance would have taken. Absent evidence of truck ownership on the offence date, Halton Recycling Ltd., has not been shown to be responsible for mechanical maintenance on the truck. I find that the prosecution has failed to prove their case against both defendants beyond a reasonable doubt, and the charges against both defendants are dismissed.