R. v. Wiebe Date:, 2014 BCPC 25

Citation: R. v. Wiebe Date: 20140225 2014 BCPC 0025 File No: 95656-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARYL AARON WIEBE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. N. Flanagan Counsel for the Accused: Mr. K. Church Place of Hearing: Kamloops , B.C.

Date of Hearing: November 18, 2013 and January 14, 2014 Date of Judgment: February 25, 2014 [ 1 ] Daryl Wiebe is a commercial truck driver who was hauling hay behind his Peterbilt on a step-deck trailer and a flat-deck trailer. He was heading south from his home in Kersley toward Chilliwack with the load along Highway 1 on May 7, 2012. Heading north in the opposite direction was Glen Joynt and his two teenage sons in their Impala. In front of them was William Bell, a 64 year old professional truck driver driving his personal pick-up truck.

Ahead of him and perhaps in the passing lane was Clifton Noiles, alone in his Jimmy. It was a clear and pleasant day for driving and the road conditions were good. There was nothing to indicate to any of the drivers that something horrific was about to happen. [ 2 ] Just north of Spences Bridge, Mr. Wiebe’s vehicle started into an S curve out of which the other three drivers were coming. A portion of his load of hay came off of his vehicle, struck Mr. Noiles’ vehicle and killed him. Mr. Wiebe’s vehicle overturned and slid down the highway, colliding with Mr. Joynt’s vehicle.

The Impala flipped, landed and burst into flames. Only Mr. Joynt’s two sons were able to escape. Due to his numbers of years of professional driving experience, Mr. Bell was able to avoid collision with the hay and with the semi. He alone of the northbound drivers survived this terrible accident. Mr. Wiebe also survived the accident. [ 3 ] Perhaps because of his years of professional driving, Mr. Bell was able to give objective and insightful evidence about what transpired leading up to the accident and some helpful evidence about what happened as the accident was occurring.

This in conjunction with the expert evidence of Corporal Reader, a motor vehicle collision reconstruction expert, enables me to determine what happened that day. [ 4 ] Mr. Bell testified that he and the other two northbound vehicles were travelling pretty much the same speed, just under speed limit. Mr. Bell first noticed Mr. Wiebe’s vehicle as he was rounding a corner and could see up Oregon Jack Hill toward where Mr. Wiebe was coming from. Mr. Bell testified that his first impression on seeing Mr. Wiebe’s vehicle come into the S curve was that he was going to lose his load. Mr.

Bell said it looked tarped down and tied on “decently” but he could see it leaning. He said he could see the front lean and he did not think that the trailer would tip over at all. He just thought that the hay would fall off. He noticed this only just a very few seconds before it did come off. Mr. Bell also stated from his recollection that Mr. Wiebe’s truck was not speeding. [ 5 ] As soon as the hay hit the pavement, it exploded. Mr. Bell said one could not see anything. He did not see Mr. Wiebe’s vehicle collide with Mr. Noiles’. In fact, it appears that there was no collision with the vehicles.

The photographic evidence shows significant damage to Mr. Noiles’ windshield where one of the bales of hay struck him. [ 6 ] I found Mr. Bell to be a forthright and reliable witness. He gave evidence only about what he recalled seeing and did not try to explain in hindsight why he must made the observations that he did. I accept his evidence. [ 7 ] Corporal Reader attended the scene and took numerous photographs and calculations. He observed that the speed limit for the S curve where Mr. Wiebe’s vehicle entered was 100 km/hr.

It was a windy day, partly cloudy and approximately 18 degrees Celsius at the time he attended. He observed scuff marks, gouge marks, paint transfers, loose hay, bales of hay and scrub marks at various locations throughout the accident scene. Based upon his observations and the calculations he conducted, Corporal Reader concluded that prior to the collision, the Noiles and Joynt vehicle were northbound on Highway 1 and the Wiebe vehicle was southbound. At some point, the Wiebe vehicle began to roll onto its left side.

During the rollover event, it collided with the Noiles vehicle, causing that vehicle to rotate counter clockwise while continuing in its northbound heading. [ 8 ] Corporal Reader concluded that after Mr. Wiebe’s vehicle rolled over, it began to slide on its left side. During this slide, it impacted with the Joynt vehicle, causing the Joynt vehicle to be pushed backwards into and over the no-post barriers that lined the east side of the highway. That vehicle came to rest upside down on the dirt shoulder east of the barriers. Mr.

Wiebe’s vehicle continued to slide, sliding a total of 60.93 metres and coming to a stop on its left side facing south. [ 9 ] Corporal Reader determined that Mr. Wiebe had been travelling at a minimum speed of 87 km/hr, based upon the distance it took for the slide to stop. Using the weight shift marks and the load configuration, he was able to determine that Mr. Wiebe was travelling at a speed closer to 89 or 90 km/hr. This speed range was based on the maximum load height. If the load was shorter than the maximum permitted value, the speed of Mr.

Wiebe’s vehicle would be higher. [ 10 ] Corporal Reader determined that the critical threshold speed for Mr. Wiebe’s commercial vehicle, on that curve would have been in the range of 103 to 104 km/hr. Mr. Wiebe was travelling under that speed. [ 11 ] A mechanical inspection was performed on Mr. Wiebe’s vehicle and it was reported that there were no mechanical issues which could have contributed to the rollover. There was also no evidence of an inappropriate load configuration. He concluded that because the evidence indicated Mr.

Wiebe was not exceeding the curve’s critical threshold speed, the rollover sequence was caused by an over steer. [ 12 ] Mr. Wiebe told Constable Ferris at the scene of the accident that he thought he was going about 100 to 105 km/hr. He said he did not know what happened. Everything had seemed fine and then the trailer started to tip. Constable Ferris found Mr. Wiebe to be clear, concise and sincere. [ 13 ] There had been some inference not well pursued during the course of the trial that the over steer could have been related to something like driver inattention while using a cellular phone.

Corporal Reader confirmed that in fact Mr. Wiebe did not have cellular service in the area. He had to assist Mr. Wiebe in making a call to his wife, so there is no evidence to suggest that Mr. Wiebe was distracted by his cellular phone. Corporal Reader also confirmed that cell coverage in that area is very, very limited.

[ 14 ] Corporal Reader also obtained video footage from the Husky Station at Cache Creek which showed Mr. Wiebe’s hay truck going by. The video still taken from that video showed no issue with the load strapped down to Mr. Wiebe’s trailers. The route from Cache Creek has a hill on the way out and then is essentially flat to the Venables Valley Road followed by a downhill on Oregon Jack Hill. It was on Oregon Jack Hill that Mr. Bell first noted Mr. Wiebe’s semi with trailers coming.

At the bottom of Oregon Jack Hill, it becomes a winding road but there are no speed limit changes between Cache Creek and Spences Bridge. The first speed advisory is 60 km/hr but that is coming through the second half of an S curve beyond the scene of the accident. Oregon Jack Hill is about 10 km north of the accident scene with a 4 km steady descent. [ 15 ] There are some complications with the evidence of Corporal Reader and the simplicity of his conclusions which are highlighted by the visible evidence of the placement of the hay on the highway and which are borne out in the testimony of Mr. Wiebe. [ 16 ] Mr.

Wiebe delivered his evidence in a forthright manner, tinged with despair. He has driven this strip of highway numerous times over many years and is familiar with its speed, conditions, challenges and turns. [ 17 ] In the various photographs it can be seen that there are shreds of the tarp from Mr. Wiebe’s trailers on the road by Mr. Noiles’ Jimmy. There is a thin dusting of hay spread along the highway until the point where the truck and trailers tipped over, dumping the remainder of the load along the highway. This corresponds with Mr.

Bell’s evidence that the load started to come off, that hay exploded on the road and then that he saw nothing further until he had come to a stop. [ 18 ] In describing how a rollover occurs, Corporal Reader included a tractor trailer rollover experimental results paper with his report. It describes as follows: As the truck starts to turn there are at first no tire marks, then light marks and finally well clearly visible weight shift marks. The weight shift marks become more pronounced as greater mass is taken on the outside wheels.

The first weight shift is caused by the lateral acceleration taking up the slackness in the springs and spring lash. Next, increasing lateral acceleration causes the truck to tip outward at a greater angle. Eventually the inside rear tires lift off and the truck is rolling over. The traditional definition of roll over is that instant when there is no load on the inside rear tires. After the rear tires lift off then other inside tires lift off, followed by the front steering tire and the truck cab falls on its side.

The points of touchdown of the various tires, sometimes called a wheel or tire slap are easily recognized. There is usually a definite outline of the tire imprint as well as gouging. The first gouge marks from the trailer deck are frequently used as the start of the slide to stop of the entire truck. The slide to stop marks is the typical scrape marks expected from metal on pavement.

The main problems to be resolved by the full scale experiments are; at what point in the weight shift marks should the radius of turn be measured, what should be the track width measurement and what is the definition of trailer roll over. [ 19 ] To assist in determining where each of the roll over marks appeared on the highway, Corporal Reader provided a computer generated diagram. This diagram corroborates the photographs which clearly support his assessment of where each incident occurred during the course of the roll over.

What remains unexplained is the hay found on the highway all through the skid marks made by the Jimmy and the before the marks identified by Corporal Reader indicating where the roll over started and concluded. [ 20 ] Corporal Reader said three things make a commercial truck roll over: environment (the highway design itself, the surface maintenance and conditions); the driver (what they do, how they operated the vehicle, speed, sudden steering inputs, inattentive driving, non-cognitive driving, and load securement); the vehicle, this includes load securement, mechanical defects of the vehicle or the trailer. [ 21 ] What the diagrams indicate are that the weight shift mark commences right at the commencement of the curve and proceeds 83.76 metres before the second scuff mark begins to indicate that a tire is being forced in a particular direction.

The weight shift mark proceeds 72.55 metres before the start of the hay. This weight shift mark indicates that the trailer has begun to roll on to its side. This is where the hay commences on the road and where the skid marks made by the Jimmy can be seen. It is another 21 metres down the road before the driver tires of the commercial vehicle touch down. The whole truck is on its side and sliding some further distance down the road. [ 22 ] What Corporal Reader determined from these marks was that Mr.

Wiebe was travelling in the curb lane furthest to the right southbound and coming into a right hand or clockwise curve. The rear most trailer began to shift to the left as Mr. Wiebe came around the curve. One of the trailers came into contact with the Jimmy which then went into rotation but continued northbound. Then the rear most trailer flops over onto its side, the next trailer begins to roll over in sequence and is pulled over by the second trailer, and then finally the tractor unit came down. There is a broken strap caused by friction with the pavement. None of this was seen by Mr.

Bell because hay had already come off the truck and exploded on the highway, blocking his vision. [ 23 ] Corporal Reader also examined the over height permit. It had no speed stipulations contained within it. He assumed the hay was loaded to the over height maximum allowable and there is no evidence that Mr. Wiebe’s vehicle exceeded that height allowance. With no evidence of an inappropriate load configuration, evidence that he was well within the critical speed for the curve and no mechanical issues with the unit, Corporal Reader concluded that the accident was caused by an over steer by the driver.

He did not consider hay coming off the load before the roll over started. [ 24 ] Corporal Reader also determined the whole roll over occurred in approximately 2.3 seconds. The average reaction time of a human being is 2.5 seconds. In other words, the entire roll over occurred in a shorter window than a human reaction time. Corporal Reader also agreed that once the roll over started, very few drivers can get out of it.

[25] Corporal Reader agreed that, with the evidence of the tarp and hay in the bead of the tire on the Jimmy, it was likely that it wasthe load that hit the Jimmy, as opposed to the trailer. [26] Corporal Reader also conceded that there were a lot of straps from the load that were burnt in the fire so they could not beexamined to determine if one had come loose. Corporal Reader also agreed that if there was load shift before the over steer mark, thereaction time was simply too short to correct the roll over. Corporal Reader was unaware of a load shift. Mr.

Bell saw the load shifthappen and hay come off the truck. [27] Mr. Wiebe testified that on May 6, 2012 he loaded up his two trailers with two other men, Ken Walls and Roger Bublitz. Mr.Walls was operating the bobcat putting the hay on the truck, Mr. Wiebe was rolling the tarps and Mr. Bublitz was throwing the straps. Mr. Wiebe straightened the straps and they were all involved in putting the straps down. Mr. Bublitz tightened them. [28] Mr. Wiebe left Vanderhoof that day. He checked the load before departing. He walked around and looked for deformations inhis tires and to ensure the tarps were tucked.

He ensured the straps were tight and loose ends were put away. He drove down to hishome in Kersley. He left his truck at the Alamo Truck Stop five minutes away from his home. [29] Mr. Wiebe’s daughter woke him through the night so he slept past his intended time. He headed to his truck at 6:30 in themorning and did his pre-check. He said everything looked fine. He checked the tires, straps and brakes again. He said this inspectiontakes 15 or 20 minutes. He started driving around 7:00 a.m. [30] Mr. Wiebe stopped at the Chevron in Cache Creek.

He called the person who was receiving the hay to let him know that hewas going to be late delivering the hay. There was at that time no cell service for Rogers customers from that point. It was this servicestation that had Mr. Wiebe’s truck in its video cameras indicating that the load was evidently securely strapped down. Once again, Mr.Wiebe did a quick walk around the truck to check the lights, tires and straps. Everything appeared normal. [31] Mr. Wiebe’s recollection was that he came down Oregon Jack Hill at about 100 km/hr. It is a long hill.

He is familiar with itand the curve that he approached at the bottom of the hill. He began shifting down his speed at this point because he knew there was asecond curve coming which would require him to be travelling at 60 km/hr. [32] Mr. Wiebe reported that he felt a sudden jolt to his driver’s side. The next thing he knew, he was going over. After that he wasseeing the lines of the road and he was trying to stay away from his window. When he came to a stop, he turned off the ignition, stoodup in his cab and opened the passenger door.

He asked a woman what had happened and heard someone yell that a vehicle was on fire. He jumped back into his truck to get his fire extinguisher. When he could see the flames, he knew he was too late. He went back to histruck for his log book, cell phone and wallet. He was given a seat in another trucker’s truck until the RCMP showed up. He approachedConstable Ferris to let him know he was the driver and to give him his log book. Mr. Wiebe did not remember his conversation withConstable Ferris because he was in too much shock. He cannot recall if he told Constable Ferris his speed. [33] Mr.

Wiebe said that hay compresses under the strap which is why he checks it at intervals. This was the purpose of his stop atthe gas station. [34] Mr. Wiebe testified that the hay purchaser was not concerned about him being late so Mr. Wiebe was not in a hurry. [35] Mr. Wiebe is an experienced driver, having received his Class 1 when he was 19 years old. He has done this route about 50trips in his truck, more in his own vehicle. [36] Mr. Wiebe did not attempt to suggest that there was any defect in the highway or a defect with the truck.

He accepted thatneither existed and had not observed anything different than Corporal Reader’s report concluded. Mr. Wiebe denied that he wasdownshifting because he was going too fast going into the first portion of the S curve. He was downshifting already because he knew hewas coming up on the second portion of the S curve which would require him to be travelling much slower. He explained that if heslowed down soon enough, he would not have to use his brakes which was better for wear and tear. His evidence was credible and Iaccept it. [37] I was provided with a decision of R. v.

Monkman, 2005 YKTC 19 , 2005 Y.K.T.C. 19. Constable Monkman wastravelling above the posted speed limits. His accident occurred when he glanced over his shoulder to confirm his prisoner was okay. Indoing so, he partly steered onto the gravel shoulder, resulting in his accident. At paragraph 25, the court quoted from the Supreme Courtof Canada decision in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867: ... (T)he test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is noneed to establish the intention of the particular accused.

The question to be answered under the objective test concerns what the accused"should" have known. (p. 883) [38] In R. v. Callihoo, 2007 BCPC 391 , 2007 B.C.P.C. 0391, Judge Woods cited from the decision of R. v. Iverson, 2006BCPC 138 , 2006 B.C.P.C. 0138, as follows: [20] What the Crown must prove in prosecuting a s. 144(1)(

a) charge has been clearly and succinctly summarised by Hicks P.C.J. in therecent case of R. v. Iverson, 2006 BCPC 138. At paragraph 2 of his decision, Judge Hicks said this: "Driving without due care and attention is a strict liability offence. The Crown must establish a manner of driving which, in all of thecircumstances, departs from the accustomed, sober behaviour of a reasonable person. Thus, an objective standard is the basis on whichMs. Iverson's conduct must be assessed in order to determine whether the Crown has proven the offence.

The accused will avoidconviction if she shows that she used all reasonable care. This too is judged on an objective standard. If she reasonably believed inmistaken facts which, if true, would have made her act innocent, or if she took all reasonable steps to avoid the event she will not be

convicted." [39] As Judge Woods did before me, I adopt that passage as a correct distillation of the law in relation to s. 144 of the Motor VehicleAct. There is no unacceptable risk taking in this case as there was in the Callihoo matter. [40] In R. v. Loray, 2003 BCSC 806 , 2003 B.C.S.C. 806, the court referred to offence cited in R. v. Sault St. Marie,(1978), (SCC), 85 D.L.R. (3d) 161, at paragraph 11 of his decision: [11] The court further held in R. v. Morrison that the offence of careless driving is a strict liability offence and cited the followingpassage from R. v. Sault St.

Marie (1978), (SCC), 85 D.L.R. (3d) 161, a decision of the Supreme Court of Canada, inwhich Dickson, J. (as he then was), stated at pp. 181-182: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facieimports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances.

The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case, (ON SC), 12 O.R. (2d) 578. [41] What I am able to conclude from the evidence of Mr. Bell, Corporal Reader and Mr. Wiebe is that as Mr. Wiebe commencedthe first portion of the S curve a portion of his load broke free from his vehicle causing his truck to roll over.

He felt the shift in hisload. The entire time of the accident took more time than human response time. There was nothing he could do. Mr. Wiebe was notspeeding. In fact, he was under the critical speed for the curve for his vehicle and load. There was nothing wrong with the vehicle. There was nothing wrong with the road. It is possible that a strap broke. It is equally possible that the hay shifted through compression. Mr. Wiebe had taken every precaution to ensure the load was properly strapped down and secured. There is no evidence to suggest thathe did otherwise.

There is no evidence that the straps were weak or poor. The only evidence is that Mr. Wiebe was satisfied that theload was properly strapped down, tightened and secure. More importantly, there is no evidence from Mr. Bell that there was an oversteer. He saw the load coming off the truck as it approached. He did not observe Mr. Wiebe speeding or over steering. The Crown’stheory is that Mr. Wiebe was travelling too fast, realized that and over steered as he was going into the S curve. The evidence does notsupport that. [42] Mr. Flanagan suggested that a high degree of caution was demanded with an over height load.

The over height permit does notrequire that a trucker reduce the speed. It is alarming that over height permits do not take into consideration the possibility that the overheight load might demand slower speeds on a curve. However, Mr. Wiebe was travelling at a slower speed. I cannot be satisfied on theevidence that his speed caused this roll over to occur. [43] Corporal Reader provided helpful evidence to guide the court in determining what occurred.

However, he overlooked in hisreport the prospect that the load could have come loose through no fault of the driver and therefore did not include that as a possiblecause. He did concede on cross examination that if the load did come loose either by way of a broken strap or a shift, that this couldcause a roll over. I find that this is precisely what occurred in this case. [44] This accident had a tremendously tragic outcome where two men lost their lives and two families lost their loved ones. Mr.Wiebe is deeply affected by this this tragedy.

However, the Crown has not proved he drove without due care and attention and I acquitMr. Wiebe of this charge. ______________________________________ S.D. Frame Provincial Court Judge