Ontario (Ministry of Transportation) v. Shafique, 2017 ONCJ 587

ONTARIO COURT OF JUSTICE CITATION: Ontario (Ministry of Transportation) v. Shafique , 2017 ONCJ 587 DATE: 2017 08 15 COURT FILE No.: Regional Municipality of Durham 1936219Z BETWEEN: HER MAJESTY THE QUEEN (MINISTRY OF TRANSPORTATION) — AND — MUHAMMAD SHAFIQUE Before Justice of the Peace M. Coopersmith Heard on January 3, 2017 and May 16, 2017 Reasons for Judgment released on August 15, 2017 J. Vu............................................................................................. counsel for the prosecution J.

Tierney ................................................ agent for the defendant Muhammad Shafique JUSTICE OF THE PEACE COOPERSMITH: [ 1 ] On February 11, 2016, Muhammad Shafique, as the driver of a commercial motor vehicle weighing over 4500 kilograms, was charged under subsection 9(2) of Regulation 363/04 made under the Highway Traffic Act , R.S.O. 1990, c. H.8 [“ HTA ’], with failing to properly secure the load on his trailer in accordance with National Standards. [ 2 ] On January 3, 2017, Ministry of Transportation Officer Mike Arbuckle gave evidence on behalf of the Ministry of Transportation.

On May 16, 2017, the defendant, Muhammad Shafique, testified on his own behalf. I. EVIDENCE (

a) Evidence of Officer Mike Arbuckle: [ 3 ] A few minutes before 7:00am on February 11, 2016, Ministry of Transportation Officer Arbuckle was at the Whitby Truck Inspection Station [“WTIS”]. He looked out the window of the station and, about four or five feet in front of him, he observed a tractor- trailer carrying an intermodal container. He saw two of the locking pins on the right side of the trailer chassis in what appeared to him to be the opened, or unlocked, position. He selected that vehicle to inspect and conducted a Level 2 inspection.

He determined that there were no issues other than the two locking pins on the right side of the trailer. The front right pin was not a twist lock, but was out two to three inches. The back rectangular lock was not turned 90 degrees, as would be expected in order to place it in the locked position. The locks were not frozen and Officer Arbuckle was able to physically twist them.

He testified that he had encountered other older locks with wear and play to them and, although not impossible and not something he had seen in the past, this wear or play may have made them look like they were unlocked when, in fact, they could have been locked. However, he stated that this was not the case here. Furthermore, although there also are secondary locks, they are meant to simple bolster the primary locks. [ 4 ] The driver of the tractor-trailer was Muhammad Shafique. His pre-trip inspection report made no mention of any issues with the locking pins, which would have been considered a ‘major’ defect.

His vehicle was register for 48,000 kilograms. (

b) Evidence of Muhammad Shafique:

[5] Around 6:00 or 6:30am on February 11, 2016, Mr. Shafique started his work day as a tractor-trailer driver in Markham,Ontario. He undertook the pre-trip inspection of his tractor-trailer with due diligence, found no defects and completed the checklist. Subsequently, he was on his way along Highway 401, headed to Montreal, Quebec. [6] After driving about forty-five kilometres, flashing lights directed him to drive into the WTIS. There, Officer Arbuckle tookonly a few minutes to inspect the defendant’s tractor-trailer and then told him to bring his paperwork into the office.

About twentyminutes later, the officer advised the defendant that the locks were not engaged. When Mr. Shafique did not agree, the officer advisedthat there were other deficiencies, so Mr. Shafique simply should take the ticket for the locking mechanism offence. [7] Mr. Shafique stated that he had already driven from Markham to Whitby, including a bumpy ride through the Markham truckyard. If the locks on the intermodal container had not been secured, the container would have fallen off. The trailer chassis was four orfive years old and the locking mechanisms had two to three inches of play in them. In Mr.

Shafique’s presence, the container had beenplaced on the trailer chassis the night before and there had been no difficulty getting the locks into place. A trailer chassis usually hasfourteen locking mechanisms sites and, depending on the type of container that is placed on it, up to eight can be engaged. Sometimesthe lock is spring loaded and there is a lever to put the locking disc in place. Once this is done, the lever serves no further purpose andmay fall down. For the intermodal container on his trailer chassis, there were four locking mechanisms. Although it was February andvery cold, Mr.

Shafique stated that any frozen locking mechanisms could be locked by striking the lever with a hammer. Furthermore,he believed the colder weather would make the locks more secure and it was not a question of them not being in place because they werelocked. II. RELEVANT LEGISLATION [8]

Section 9 of O. Reg. 363/04 – Security of Loads - made under the HTA reads: Compliance with National Standard 9.

(1) Every commercial motor vehicle carrying a load on a highway must be in compliance with

Part 1 of the National Standard.

(2) Every commercial motor vehicle on a highway carrying a load that is described in Division 1, 2, 3, 4, 5, 6, 7, 8 or 9 of

Part 2of the National Standard must be in compliance with that Part. [9] Section 1(1) of O. Reg. 363/04 defines “National Standard”: “National Standard” means the National Safety Code Standard 10 entitled “Cargo Securement”, published by the Canadian Council ofMotor Transport Administrators and dated September 2010, as amended from time to time and available on the Ministry’s website. [10]

Part 2, Division 6 of the National Safety Code Standard 10 applies to “Intermodal Containers”. The relevant sections read: Application 83 This Division applies to the transportation of intermodal containers. Intermodal container transported on Container chassis vehicle 84(1) This

section applies to the transportation of an intermodal container on a container chassis vehicle

(2) Despite

section 22, an intermodal container shall be secured to the container chassis with integral locking devices.

(3) The integral locking devices used shall restrain each lower corner of the intermodal container.

(4) The front and the rear of the intermodal container shall be independently secured. III. FINDINGS AND ANALYSIS [11] I am satisfied that the tractor-trailer driven by Mr. Shafique on February 11, 2016 was subject to National Safety Code Standard10. Hence, the intermodal container on the chassis of his trailer had to be secured in accordance with

Part 2, Division 6 of that NationalStandard, which required integral locking devices restraining each of the four lower corners of the container. [12] It was Officer Arbuckle’s testimony that the right front and right rear locking mechanisms were not engaged. It was Mr.Shafique’s testimony that all four locking mechanisms were properly locked. [13] As issues of credibility have arisen, I have applied the provisions of Regina v. W.D. (SCC), [1991] 1 S.C.R.742. It provides:

(1) If I accept the defence evidence as it is a complete denial of an essential element of the offence, I would dismiss the charge.

(2) Further, even if I did not accept the Defence evidence, I would have to go on to consider whether or not it raised a reasonabledoubt and, if so, again I would dismiss the charge.

(3) It would only be if I rejected the Defence evidence as there was convincing credible evidence that it was untruthful orunreliable, that I would go on to the third step in R. v. W.D. and consider all of the un-rejected evidence in this matter, to ensure therewas evidence that I did accept that established the defendant’s guilt on the charge before the Court beyond a reasonable doubt. [14] These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond areasonable doubt, that the burden to prove that guilt rests with the prosecution through, and that there is a very high burden to establish

this guilt. [ 15 ] To determine which evidence I accept and which evidence I reject, I have very carefully reviewed the testimony of Officer Arbuckle and that of Mr. Shafique. It is Officer Arbuckle’s unshaken evidence that the right front and right rear locking mechanisms on the defendant’s intermodal container were not locked. Upon further inspection, he was able to move the mechanisms and place them in the locked position. It is Mr.

Shafique’s unshaken evidence that he had inspected his tractor-trailer first thing in the morning of February 11, 2016 and the four locks on the intermodal container were properly secured in the locked position. The chassis was not new and the locking mechanisms had a few inches of play. Had the locking levers fallen down once the mechanisms were placed in the locked position, these levers then would serve no further purpose.

If the locking mechanisms had been unlocked, the container would not have stayed on the trailer chassis as the defendant exited the bumpy truck yard in Markham and drove approximately forty-five kilometres to the WTIS. IV. CONCLUSION [ 16 ] In providing me with their testimony, I find that both witnesses proved credible. Hence, applying the principles in R. v. W.D. , I am unable to reject the defendant’s evidence and, at the very least, I am left with reasonable doubt. Consequently, the charge against Muhammad Shafique is dismissed. I thank both parties for their respectful attention to this matter.

Released: August 15, 2017 Signed: Justice of the Peace M. Coopersmith