Her Majesty the Queen - v. -, 2016 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 026 Date: April 7, 2016 Information: 7884477 Location: Wadena _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joseph Hartl Appearing: Todd Wellsch For the Crown Shane Wagner For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Joseph Hartl is charged, under s. 213(1) of The Traffic Safety Act , with driving without due care and attention, on June 4, 2014, near Foam Lake. On that day, Mr.

Hartl drove his truck into the path of an eastbound freight train belonging to Canadian Pacific Railways (CPR). As a result, a collision occurred between the train and the truck at a railway crossing approximately five miles west of Foam Lake. The locomotive of the train struck Mr. Hartl’s vehicle behind his cab, on the first of two grain trailers he was pulling. The train then dragged the truck and trailers, and Mr. Hartl, about a quarter mile until the emergency brakes applied by the train’s engineer took hold and the train stopped. Fortunately, and remarkably, Mr. Hartl was not injured.

[ 2 ] The witnesses to testify for the Crown were:

(1) Cst. Seth Gouw of the Wadena RCMP;

(2) Devin Zemluk of Wadena, who was driving on Highway 16 parallel to the train track and three quarters of a mile to a mile from where the accident occurred;

(3) Murray Arnason, the conductor in charge of this train; and

(4) Jared McDowell, the engineer who was operating this train and who applied the emergency brakes after a collision with Mr. Hartl’s truck became unavoidable. The only witness for the defence was Mr. Hartl’s son Bartly Hartl, who arrived at the accident scene an hour after the collision and who, about a year later, returned to the scene to take a video and still pictures of the area where the collision occurred. [ 3 ] Section 213(1) is a strict liability offence (see R v Sault Ste. Marie [1] ).

The standard I am to apply in deciding this case was set out by Wilkinson J. in R v Dookhun [2] : To establish the offence of driving without due care and attention, the Crown must prove beyond a reasonable doubt that the defendant's manner of driving, viewed objectively, is a departure from the standard a reasonable and prudent driver would have observed in all the circumstances. [3] [ 4 ] And later in that judgment Justice Wilkinson said: The offence of driving without due care and attention is a strict liability offence meaning that the proof of the act of careless and inattentive driving establishes the offence regardless of intent.

The defence of due diligence is available, which is made out when a defendant demonstrates on a balance of probabilities that reasonable care was taken in the circumstances. [4] [ 5 ] As a result, the questions I must answer in this case are:

(1) Did the Crown prove beyond a reasonable doubt, when viewed objectively, that Mr. Hartl drove in a careless and inattentive manner? and

(2) If so, did Mr. Hartl demonstrate on a balance of probabilities that he took reasonable care in the circumstances? II. DID THE CROWN PROVE CARELESS AND INATTENTIVE DRIVING? [ 6 ] Applying the words of Justice Wilkinson, the Crown must prove beyond a reasonable doubt that the defendant's manner of driving, viewed objectively, is a departure from the standard a reasonable and prudent driver would have observed in all the circumstances. In quoting the Latin maxim res ipsolocotor (the thing speaks for itself), Mr. Wellsch, asserted that this standard had been met. For the reasons that follow my

summary of the Crown’s evidence, I agree. [ 7 ] Cst Gouw said it was an overcast and cloudy day but with good visibility. He attended the accident scene near Foam Lake, after 4:00 p.m. with Cst. Jarvis. The train had been travelling in an easterly direction, west of Foam Lake, on a track which was parallel to and north of Highway 16. The truck had been travelling on a public road coming from the Richardson Pioneer Fertilizer Plant. With respect to the angle of the intersection of the road with the tracks, he agreed that the road was not at right angles, but said it was close to 90 degrees.

The road then proceeded up to Highway 16, a distance he estimated to be 5 to 10 metres. [ 8 ] Devin Zemluk was driving west on Highway 16, approximately three quarters of a mile to a mile east of the accident scene. He said the weather was overcast, with haze in the distance, but the visibility was good. He saw a truck and trailer crossing the railway tracks in front of an oncoming train. The truck was not stopping, and he then saw a cloud of dust from the collision, with the truck and trailer in front of the train until it stopped.

[ 9 ] Mr. Zemluk drove up to where the train stopped, got out, and went to see if the driver of the truck was alright. He expected the worst, but the driver, Mr. Hartl, told him he was okay, and, although dazed, he was not physically injured. Mr. Zemluk asked Mr. Hartl if he saw “it”, and Mr. Hartl replied that “he looked but he didn’t see it”. [ 10 ] Mr. Zemluk was not able to hear the horn of the train from where he was when the collision occurred, but said he could see the headlights of the locomotive.

He had driven the gravel road from the Richardson Pioneer Plant to Highway 16 before, and was aware that the road was at an angle to the tracks. As a result, he said he was “absolutely” more careful when he drove because of this angle. [ 11 ] Murray Arnason is employed by CPR as an Engineer. This day he was in charge of this train, which began its journey in Wynyard on a track that carries between one and ten trains a day. He said the weather was sunny and the visibility was good, and the train travelled east at 38.6 mph down a track which ran parallel to Highway 16.

This locomotive had headlights on the front and ditch lights on the side, which were working and on, and a very loud horn to warn oncoming traffic. [ 12 ] Just west of Foam Lake they passed a whistle post which was one quarter of a mile before the next intersection. His co- worker, Mr. McDowell, sounded the horn - with two long, one short and one long blasts - but as they approached the intersection Mr. Hartl was not stopping. When a collision was unavoidable, Mr.

McDowell activated the emergency brake. [ 13 ] This intersection was marked with so called cross-bucks, which are standard white wooden crosses, but did not have lights or protective arms or a stop sign. When asked whether he would prefer if everyone stopped, Mr. Arnason replied “yes, before we hit them”. [ 14 ] After the collision, Mr. Arnason called 911, and gave the location of the accident to the operator.

It was clear from the CPR video of the collision (Exhibit P-2) that the horn started blowing at least 20 seconds before the crossing, and that the emergency brakes were applied before the impact. [ 15 ] In cross-examination, a document was shown to Mr. Arnason from Transport Canada’s web site entitled Minimum Railway/Road Crossing Sightline Requirements For All Grade Crossings Without Automatic Warning Devices (Exhibit D-2). The document - which Mr.

Arnason had never seen - appears to suggest that there needs to be a sufficient sightline from the gravel road to the train, considering the speed of the truck and the train, for a ten second warning before the train reaches the crossing. There was no clear evidence presented about how fast the truck was going, especially considering that the defendant did not testify. Mr. Arnason said the truck was going slowly - he approximated 20 miles per hour - and the video from the train seems to support that it was going slow. I accept that the train was travelling at 38.6 mph, as per Mr. Arnason’s evidence.

Assuming that this document has some legal significance in this case - a conclusion that is not altogether clear - I am not satisfied the sightline Mr. Hartl had from the gravel road was anything less than that required in this document. That is especially so given the significant distance down the tracks from the crossing that any trees beside the track were located, as pictured in Exhibit P-1 (picture #1). [ 16 ] Jared McDowell is an Engineer for CPR and was operating this train this day. Prior to the accident, the trip was uneventful.

The train was travelling at 38.6 mph, less than the maximum of 40 mph, and was on a slight incline down as they approached this intersection. When he saw the whistle post, a quarter of a mile from the crossing, he initiated the horn, which he said was quite loud, with a pattern of two long blasts of the horn, one short and then one long. [ 17 ] As they approached the crossing, he saw Mr. Hartl’s truck approaching at a slow speed but not stopping. When he realized that Mr.

Hartl was not going to stop, and that a collision was unavoidable, he applied the emergency brakes on the train, which he said take a few seconds to begin to engage. He was not sure when the brakes engaged in this case, and said it took about a quarter of a mile for the train to stop after the collision. [ 18 ] Mr. McDowell made an emergency broadcast to the traffic controller to tell him what had happened, and then went to discover the condition of the driver of the truck. [ 19 ] Based on the evidence of the Crown witnesses, I am satisfied that Mr.

Hartl drove his truck, without slowing, across a marked railway crossing in front of an oncoming freight train. I accept that the train was clearly visible and audible in the weather conditions of this day, with several bright lights on its locomotive and with its engineer signalling with a loud horn for twenty seconds before the

crossing. I am further satisfied that the train was not travelling at an excessive speed, and that no trees or other impediments restricted the view of this train from the crossing. Taken together, this convinces me beyond a reasonable doubt that Mr. Hartl's manner of driving, when viewed objectively, was a departure from the standard that a reasonable and prudent driver would have observed in all of the circumstances of this day and place. III. DID MR. HARTL DEMONSTRATE THAT HE TOOK REASONABLE CARE? [ 20 ] Bartly Hartl , Mr. Hartl’s son, was the only witness for the defence. The younger Mr.

Hartl arrived at the scene of the accident about an hour after it occurred. He took seven pictures of the train, with some cars derailed, and of his father’s truck. He said it had been raining that day, and was overcast when he took the pictures (which are part of Exhibit D-4). [ 21 ] Bartly Hartl returned to the scene of the accident about a year later, on May 27, 2015.

On that day, he took a video (Exhibit D-3) which recorded the drive from the Richardson Pioneer building down the gravel road to where the collision occurred, with his father driving the same truck from the accident, and with him recording the video from the passenger seat. [ 22 ] Bartly Hartl, as well, took 151 pictures that day (the remainder of Exhibit D-4). These show in detail the route from the Richardson Pioneer plant to the railway tracks and Highway 16.

There are, as well, pictures taken on Highway 16, parallel to the train track and near the scene of the accident. [ 23 ] In referring to the video and pictures, the younger Mr.

Hartl testified that: (1) the angle of the gravel road to the train track is less than 90 degrees - he said 60 degrees (as per the Google map Exhibit D-1 which roughly appears to support that) - and the configuration of the seats and seatbelts in the driver’s seat of his father’s semi-trailer cab, taken together, make it difficult to look 90 degrees to the right and, as a result, interfere with the vision from the driver’s seat of the truck to the west on the track where this train was coming from; (2) a combination of the brakes and gears on this cab means it is noisy inside the cab and, as a result, difficult to hear noises outside the cab; and (3) rain and wind can affect the ability of someone to hear a train’s horn. [ 24 ] On cross-examination, Bartly Hartl acknowledged that he had never driven on that gravel road before the accident, and admitted that his father had been a professional truck driver for a long time.

He, as well, admitted that the sky was clear on the day he took the pictures a year after the collision, and that the darkened exposure in some of the pictures could have resulted from taking a picture into the sun to the west, the direction from which the train came.

In particular, he admitted that picture 12 (Exhibit D-4) - looking west from the gravel road to the train track - showed that any trees by the track were a “fair” distance away. [ 25 ] As a result, the total defence evidence from which I am to consider in deciding whether the accused demonstrated on a balance of probabilities that he exercised due diligence is:

(1) Joseph Hartl’s statement to Mr. Zemluk that “he looked but couldn’t see it”;

(2) Bartly Hartl’s observations and pictures of the accident scene an hour after the collision; and

(3) Bartly Hartl’s video and pictures, and his comments about these, taken a year or so after the collision. [ 26 ] While it is possible that the angle of the road to the tracks - whatever the actual angle is - and the seating configuration in this cab may have made it more difficult for Mr. Hartl to look back to the west on the tracks, and while it is possible that noise inside the cab may have made it more difficult for Mr. Hartl to hear noise outside the cab, these in my view are possibilities only.

Even, taken together, these possibilities do not in my view amount to proof on a balance of probabilities that Mr. Hartl exercised due diligence before he drove his truck directly in front of a freight train at a marked railway crossing; a train which was lit with bright head lamps, driving in daylight at a regular and not excessive speed, and signalling with a very loud horn for twenty seconds before the crossing. [ 27 ] We know that Mr. Hartl did not see the train, given his comment to Mr.

Zemluk, but I cannot conclude that he took reasonable care in looking for and listening for this train either as he approached the intersection or at the intersection. That is especially so when I consider: (1) the good visibility this day, with at most intermittent rain during the day, and no evidence tendered about the wind at this location;

(2) what I accept was a clear and lengthy stretch of train track to the west of the crossing, from where the train came, without anysignificant objects blocking visibility of the train track, and, in particular, I note picture 40 of Exhibit D-4 shows the outcropping of treesto be back near the whistle stop, a quarter of a mile from the crossing; (3) the very loud horn this train was equipped with blew for twenty seconds before the collision, whether or not Mr. Zemluk heard thehorn up to a mile away; and

(4) Mr. Zemluk’s evidence that any difficulty in visibility caused by the angle of the gravel road to the train track at this crossingresulted in him exercising “absolutely” more care at this crossing. IV. CONCLUSION [28] Because I am satisfied beyond a reasonable doubt, when viewed objectively, that Mr. Hartl drove in a careless and inattentivemanner and because I am not satisfied that Mr. Hartl demonstrated on a balance of probabilities that he took reasonable care in thecircumstances, Mr. Hartl is found guilty of this offence. R. Green, J [1] (1978), (SCC), 40 C.C.C. (2d) 353 (S.C.C.). [2] 2010 SKQB 100. [3] At paragraph 30. [4] At paragraph 34.