IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Pelletier, |
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2008 BCSC 547 |
Date: 20080502
Docket: 24212
Registry: Vancouver
Between:
Regina
And
Perry Paul Pelletier
Before: The Honourable Mr. Justice Truscott
Reasons for Judgment
| Counsel for the Crown: |
W. Kerr Clark, Q.C. |
| Counsel for the accused: |
J. Bahen |
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Date and Place of Trial/Hearing: |
February 18-22; 25, 26, 28, 2008 |
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Vancouver, B.C. |
[1] Mr. Pelletier is charged with seven counts of dangerous driving, two of which are for the death of two people and the other five counts for bodily injury to five other people.
[2] On November 11, 2004, Remembrance Day, prior to three in the afternoon, Mr. Pelletier was operating his logging truck consisting of a tractor and trailer unit, fully loaded with logs, westbound on the Upper Levels highway in West Vancouver, British Columbia. He was in the process of negotiating a right hand curve in the highway just west of the Capilano Bridge crossing the Capilano River, when the bunks or stakes on his trailer unit holding the logs in place struck the centre concrete median in the curve separating east and westbound traffic. The impact caused the logs on the trailer to be ejected into the eastbound lane striking a number of vehicles and resulting in the two deaths and five bodily injuries.
[3] The central issue in the trial was the speed of Mr. Pelletier’s logging truck in the curve and its path of direction through the curve prior to the impact with the centre concrete median.
[4] A number of lay witnesses gave evidence at the trial of the speed of Mr. Pelletier’s logging truck at different points on the highway east of the curve, including Mr. Pelletier himself. Two accident reconstruction experts gave evidence offering their opinions on his speed within the curve and in addition an expert in the mechanical condition of vehicles gave opinion evidence of the mechanical condition of his unit.
[5] The evidence of relevant lay witnesses including Mr. Pelletier is as follows.
[6] Mr. Breitkopf and his wife had been shopping at Park Royal shopping centre in West Vancouver, west of this curve, and had entered the Upper Levels highway from Taylor Way to proceed eastbound towards home. Mr. Breitkopf was driving. When Mr. Breitkopf saw Mr. Pelletier’s logging truck it was coming through the curve westbound in the fast lane towards him. He commented to his wife who was in the front passenger seat that it was going too fast and was going to lose its load. He estimates that the logging truck was 30 to 50 metres away from him when he made this comment to his wife. He cannot give an estimate of the truck’s speed other than to say that in his view it was going too fast.
[7] He saw the logs come over into the eastbound lanes and one hit their vehicle rendering him unconscious until the ambulance arrived for him.
[8] The total time he says he saw the truck before it hit the concrete centre median was only a second or so.
[9] Mr. Verster was also proceeding eastbound on the Upper Levels highway and passed by Mr. Pelletier’s truck east of the Capilano River Bridge and east of this curve in the road. He saw two logging trucks, both travelling westbound in the fast inside lane and he estimates their speed to be slightly higher than other traffic, between 90-100 kilometres per hour, slightly above the speed limit of 80 kph. On his observation the two logging trucks were a reasonable distance apart.
[10] He confirms that generally traffic proceeds a little faster than the speed limit in the westbound lanes.
[11] Ms Quiring was coming from Abbotsford travelling westbound and approached the Cassiar tunnel just east of the Ironworkers or Second Narrows Bridge. She says she was in the fast lane just before the tunnel and saw two logging trucks in her rear view mirror approaching her quite quickly from behind in her lane. She moved her vehicle over into the slow lane before the tunnel and she drove through the tunnel with the two trucks beside her. She says the two trucks were travelling less than one truck length apart.
[12] Her impression was that the trucks were travelling faster than other traffic westbound but she cannot say how fast. She last saw the trucks on the Ironworkers Bridge in the fast lane. She left the Upper Levels highway at the Capilano Road exit just before the Capilano River Bridge.
[13] Mr. Shea was also travelling westbound on the Upper Levels highway. He saw the two trucks for the first time when they were at the top of a steep hill just west of the Ironworkers Bridge and he was near the bottom of the hill. He says he travelled up this hill at about 120 kph and at the Lonsdale exit he came up in the fast lane alongside the two logging trucks which were travelling in the slow lane. He says he was still going about 120 kph and he was intending to pass the trucks. However he was intending to turn at the Westview exit, being the next exit west, and they were going too fast in his view to let him pass and still be able to turn at that exit. As a consequence he let up on the gas pedal and pulled in behind the trucks into the slow lane. He says he looked at his speedometer as he pulled in behind the trucks and he was going 110 kph and the two trucks pulled away from him. He says this was around two in the afternoon.
[14] He says the Westview exit is about ten to fifteen seconds further west from the Lonsdale exit and he acknowledges that after he eased up and his speedometer read 110 kph, he did not maintain that speed as he continued to slow down for the Westview exit. He thinks he took the exit at perhaps 80 to 90 kph.
[15] Ms Lancaster entered the Upper Levels highway from Lonsdale Avenue to proceed west and saw the two logging trucks ahead of her. Her impression was that they were going fast. She was going between 90-110 kph on her evidence. She does not know if she maintained a constant distance behind the trucks or not and she got off at the Capilano exit five or seven minutes later. She last saw the trucks still ahead of her but could not judge their speed.
[16] Ms Spicer was also travelling west on the Upper Levels highway that afternoon and came upon the two logging trucks on the steep hill just west of the Ironworkers Bridge. She was travelling in the fast lane and the two logging trucks were in the slow lane. She passed them and moved to the slow lane and she says that from the top of the hill to the Capilano exit she was probably going 100 kph in the slow lane. This was unusual for her but she was in a hurry to get home as she had people coming over for dinner and she was not prepared. She says that after she passed the trucks on the hill she did not see them again until the Capilano Road exit.
[17] She says that just prior to the Capilano Road exit one of the logging trucks passed her in the fast lane. She could not believe it was passing her and she says she looked at her speedometer as the truck passed and saw that she was going 100 kph. The truck went by her quite quickly. She says she slowed down to 85-90 kph and continued westbound and a few seconds later, perhaps up to 15 seconds later, she observed the accident unfold before her. She saw the logging truck that had passed her hit the centre concrete median and logs fall off hitting oncoming traffic eastbound. When she saw the truck hit the median she jammed on her brakes hard and stopped as fast as she could in the slow lane. She then moved to the right shoulder of the road.
[18] She says she did not lose control of her own vehicle and she says she stopped approximately one-and-one-half truck lengths away from the first logging truck that had passed her but which was now stopped.
[19] She says that the second logging truck stopped behind her in the inside fast lane and then moved thereafter to a position on the right shoulder of the highway.
[20] Mr. Hoffman came upon the two logging trucks ahead of him when he was also travelling up the steep hill just west of the Ironworkers Bridge. When he got to the top he could still see the trucks ahead of him. He was going 90 kph at the time and was not gaining on them.
[21] As the two trucks approached this curve in the highway west of the Capilano Bridge, he says he was about 200 yards behind the second logging truck, and was travelling in the slow lane. He thought the two trucks were travelling about one truck length apart.
[22] Once the first truck entered the curve he could not see it further. However when he saw the second truck enter the curve he observed it make an emergency braking procedure in the fast lane.
[23] Mr. Hoffman has experience in driving large trucks and told the police that the wheels of the second truck locked up, although he cannot say he actually saw this but just expected it.
[24] In his experience an emergency braking on a dry road, as this was, would have left skid marks. He recalls the second truck stopping in the fast lane before it pulled over to the right shoulder.
[25] The second logging truck was operated by Mr. Winters. He is a resident of Port Alberni on Vancouver Island and has been a commercial truck driver for over ten years. He and Mr. Pelletier both picked up loads of logs in Port Alberni that morning and proceeded across to the mainland to deliver them. He was driving a tractor and trailer unit as well and the trailer on Mr. Pelletier’s unit was in fact owned by Mr. Winters.
[26] Mr. Winters and Mr. Pelletier travelled from Port Alberni through to Port Coquitlam where they unloaded their logs and then had their trailers reloaded with logs before their trip back to Port Alberni. He says the reloading finished at around 1:30 p.m.
[27] Mr. Winters had never made this trip before and he was following Mr. Pelletier at all times. He says that they were aiming to return to Port Alberni on the 3:00 p.m. ferry out of Horseshoe Bay but were in no hurry to make it, it was just that it was there.
[28] On the trip west on the Upper Levels highway he does not recall their speed as he was always just maintaining a distance of approximately five to six truck lengths behind Mr. Pelletier. He says he never looked at his speedometer. However he is sure he was not going 100 kph as he was on a road he was unfamiliar with.
[29] In the area of this curve the accused told him by radio to get in the fast lane to avoid the Capilano entrance ramp, and told him to watch the corner as it leaned the wrong way.
[30] Mr. Winters says he had his foot on the brake and was slowing down and he saw Mr. Pelletier’s brake lights come on and saw the right hand side of Mr. Pelletier’s trailer start to lift off the ground.
[31] He does not know if Mr. Pelletier’s engine brake was engaged as he was too far away to hear it but he says there was no indication of Mr. Pelletier’s brakes locking up. It appeared to him to be a normal braking by Mr. Pelletier. If Mr. Pelletier’s trailer wheels had locked up Mr. Winters says he is sure he would have seen skid marks on the road surface in front of him and he did not.
[32] He says the time between him seeing Mr. Pelletier’s trailer lift until it hit the concrete median was fast. When he saw the logs start to come off the trailer he applied his brakes to the maximum and came to a stop in the fast lane. He says he stopped before the curve just past the Capilano River Bridge. After he stopped he pulled his truck up a little and over to the right shoulder.
[33] He says he knows that his unit left skid marks on the road surface because he walked back and looked. In his view they could not have been made by Mr. Pelletier’s vehicle because he would have seen Mr. Pelletier lay down those skid marks in front of him.
[34] He says that his own emergency braking worked sufficiently.
[35] After he stopped he says he inspected his trailer brakes and saw that the bottom parts of the brake pots on three trailer brakes were pushed out from fatigue in the metal. He could not see the rubber diaphragm inside the pots but he says that he subsequently put 120 pounds of air into those brakes to test them and observed no leaking. He says he wanted to test the trailer brakes for his own personal safety even though they had performed to his satisfaction.
[36] Afterwards he replaced the brakes because the pots were expanded even though he says the rubber diaphragms holding the air were not breached.
[37] He says that many of the tires on his tractor trailer unit had different tread designs.
[38] The final lay witness was Mr. Pelletier himself. He says that he had been driving this logging truck since August of that year and had pulled this trailer perhaps a dozen times prior to this incident. He says he had driven the same route before to Port Coquitlam from Port Alberni about a dozen times and that he was well aware of this curve and the need to take precautions in it.
[39] On November 11, 2004 he says that his logging truck was loaded at Port Coquitlam around 2:00 p.m. and he did not see anything out of the ordinary during the loading operation. On the way west to Horseshoe Bay he knew he would arrive before the 3:00 p.m. ferry but he figured that he would probably be on the 5:00 p.m. ferry. He also says he was under no pressure to catch a certain ferry.
[40] As he proceeded west on the Upper Levels highway he says he was driving the speed that everybody else was driving. Before the Lonsdale exit he says he changed from the slow lane to the fast lane and remained there up to this curve. He says Mr. Winters’ truck was always four to five truck lengths behind him.
[41] Before he entered this right hand curve he told Mr. Winters on his radio to make sure that he was going slow. This was because he had gone through that curve before and he never liked the way the corner was because it had some dips in it and was not banked enough.
[42] When he was on the Capilano River Bridge deck he says he took his foot off the accelerator which automatically activated his engine or jake brake, and he put light pressure on the brake pedal. He says that while on the bridge deck he glanced at his speedometer and he was going 70 kph.
[43] As he entered this right hand curve he says the tractor of his unit suddenly pulled to the left, and when it did he grabbed the steering wheel to pull it back straight and pushed his feet down hard on the floor of the cab to brace himself.
[44] He says he made a steering correction to the right because the tractor was going to hit the concrete median and when he did he felt the load shift really heavily over to the left.
[45] The next thing he knew the logs were coming off the trailer.
[46] He says that the tractor moving to the left and the trailer making contact with the concrete median happened almost simultaneously.
[47] He does not agree with any of the speed estimates for his logging truck given by any of the other lay witnesses.
[48] He specifically denies he was speeding in an effort to catch the 3:00 p.m. ferry. He does agree that he had a radar detector in the cab of his truck and it was on at the time. However he says it did not work with the new radar guns. He concedes there would not have been much reason for him to have it on if that was the case. Nevertheless he denies that he had it activated because he was worried about making the 3:00 p.m. ferry and was speeding, and was concerned about getting caught.
[49] The Crown called Mr. Northcott as a witness and he was qualified as an expert in the determination of whether any mechanical defects in a commercial vehicle might have caused or contributed to an incident.
[50] Mr. Northcott arrived on the scene at 3:05 p.m. on November 11, 2004 and his responsibility was to perform mechanical inspections on the two logging tractors and trailers.
[51] His inspection of Mr. Pelletier’s tractor and trailer disclosed that on the tractor unit the left outer tire and wheel and the right inner tire and wheel on the lead tandem axle were damaged as were the left and right side suspension mounting components. The left outer tire on the wheel on this lead tandem axle was missing.
[52] On the rear tandem axle of the tractor the left side suspension mounting components were also damaged. The suspension air bag had been distorted and instead of being vertical was now pushed horizontal.
[53] In his opinion all the damages to the wheels, tires and suspension components on the tractor unit were fresh damage from the accident.
[54] On the trailer unit all the wheels, tires, and suspension assemblies were in acceptable condition, although the structure of the trailer itself was in poor condition. It is his opinion that any structural deficiency in the trailer did not cause or contribute to this accident.
[55] Mr. Northcott noted that both of the tractor’s lead and rear tandem axles had shifted backwards to the left side. The suspension system had been held in place by bolts which had broken off. He found all the bolts and inspected them and concluded that the suspension system had failed as a result of a severe impact or a tremendous force.
[56] There were tire rub marks on the left side frame rail of the trailer above the tires on the rear tandem axle of the tractor and tire rub marks on the underside and rear of the corner of the left front bunk on the trailer.
[57] The trailer was still attached to the tractor by the fifth wheel assembly but the fifth wheel assembly had rotated 90 degrees. When Mr. Northcott had the trailer lifted up the fifth wheel and slider assembly was found not to be attached to the tractor but was now attached to the trailer.
[58] Mr. Northcott observed that a metal flange on the right rear of the mounting plate on the tractor that helped keep the fifth wheel and slider assembly attached to the tractor unit was bent upwards over a length of approximately eight-and-one-half inches. He observed that a bolt near the end of this upward bent flange, of a number of bolts used to hold it down, was missing and in his opinion it had been missing for some time as evidenced by rust around the hole.
[59] He was referred to a photograph that showed a bolt in place at the end of this bent flange and he said that he thought this bolt had come out while he was working on the trailer and that he had inspected it and it indicated fresh damage.
[60] He says that when he inspected the fifth wheel assembly attached to the trailer he found that the metal plate connecting two side sliders that fit under the flanges holding the fifth wheel in place had bent upwards allowing the entire assembly to break free from under the flanges.
[61] His opinion is that the damage to the slider assembly, metal plate and flange was fresh and separation had occurred under severe stress during the accident. There was no indication to him that these components had been bent prior to the accident.
[62] In his opinion there was no indication of any mechanical failure prior to the accident that would have contributed to the accident.
[63] He holds the opinion that when the trailer went over on its left side it carried the tractor unit with it through the fifth wheel connection. As the right side of the trailer and the tractor both lifted off the ground the forward bunk on the trailer at its left corner came into contact with the left outer tire on the lead tandem axle of the tractor, trapping it and tearing up that tire as the tractor and trailer continued to move forward on their left side. This contact between the bunk and the tire snapped the suspension on the left side causing the lead and rear tandem axles on the tractor on the left side to shift backwards. The trailer ejected its logs into the eastbound lanes at some point, possibly before the bunk hit the tire or possibly afterwards.
[64] While the tractor and trailer were both over on their left side with their right sides in the air, the fifth wheel pulled out of its pocket on the tractor deck from the weight of the tractor, and remained with the trailer while the tractor fell back onto the highway on all of its wheels.
[65] In Mr. Northcott’s opinion this movement tore the air lines that connected the tractor to the trailer and when the trailer had ejected its load of logs it also landed back on the highway on its wheels with the fifth wheel still attached to it. The fifth wheel went right back into its pocket on the tractor unit, but now turned 90 degrees. The trailer brakes dynamited as they were supposed to when the air lines separated and the trailer brakes brought both the tractor and trailer to a stop in the westbound fast lane.
[66] In his opinion the entire process of the trailer and tractor falling over to the left, the suspension snapping, the logs being ejected and the tractor and trailer falling back to the highway with the fifth wheel inserting itself back into its pocket, was all within a second or a second-and-a-half or even up to two seconds but all in a blink or a very rapid sequence.
[67] It is his opinion that the fifth wheel separated from its pocket on the tractor deck during the accident itself and this separation was not a cause of the accident.
[68] He says he examined the bent flange on the right side of the pocket and concluded that it had bent upwards during the accident and was not already bent upwards beforehand because flakes of rust that had come loose when the flange bent upwards were still present and would not have been present if the flange had been already bent well before this accident.
[69] Mr. Northcott also inspected Mr. Winters’ logging truck in his capacity as a commercial vehicle safety inspector for the province. He says he found that three of the four brake assemblies on the trailer had failed through a failure of the air brake chamber diaphragm. In his view this was consistent with an emergency brake application at the accident scene resulting in lesser braking efficiency and basically no braking action. He is of the opinion that these brakes probably worked on initial brake application but failed very rapidly after that and at best the Winters’ trailer would have only left a chirp or little short skid mark before its brakes failed.
[70] Crown called as an expert witness Cst. Shamper who at the time of this accident was a sergeant with the West Vancouver Police Department but subsequently retired and is now a constable with the CNR Police.
[71] Cst. Shamper was qualified to give opinion evidence as an expert on analysis and reconstruction of motor vehicle collisions.
[72] Cst. Shamper arrived at the accident scene at approximately 3:05 p.m. on November 11, 2004. He examined the scene and took measurements of skid marks as well as a measurement of the radius of the curve in the highway. His objectives included to determine the speed of Mr. Pelletier’s tractor trailer unit prior to impact with the centre median, to determine the critical rollover speed of Mr. Pelletier’s unit in that curve, and to determine the cause or causes of the collision and any contributing factors.
[73] He concluded that Mr. Pelletier’s tractor/trailer unit had been proceeding westbound in the left or fast lane in this right hand curve at the time of the collision and the collision had occurred when the trailer rolled over to the left and struck the concrete centre median causing the logs on the trailer to be ejected into the eastbound lanes and striking vehicles in that lane.
[74] He concluded that Mr. Pelletier’s tractor/trailer unit was travelling at 117 kph at the start of the first skid mark that he found in the fast lane westbound and that the critical rollover speed for Mr. Pelletier’s tractor and trailer following the curve in the roadway, based on the radius of the curve where the rollover occurred, was 110 kph.
[75] In his opinion the primary cause of the collision was the unsafe speed of the tractor/trailer unit that exceeded the posted speed limit for this curve of 80 kph.
[76] In addition he observed that the original design of the trailer had been modified from a flat deck to a logging trailer with bunks and that this had increased the height of the centre of gravity of the trailer by about 30 centimetres and reduced the overall stability of the trailer.
[77] Cst. Shamper found a set of skid marks in the westbound left lane that he says commenced on the concrete Capilano Bridge surface and were initially straight and then began to curve to the right as they entered the right hand curve at the west end of the bridge. He measured the tire marks from the right hand tires to be 94.89 metres in total length with 42.19 metres deposited on the concrete bridge surface and 52.70 metres on the asphalt roadway west of the bridge. He measured the tire marks from the left side tires to be 49.79 metres in length all on the asphalt roadway west of the bridge. He concluded that the skid marks ended when the driver released the brakes.
[78] He concluded that these marks were characteristic of skid marks deposited by tires that were sliding over the road surface while not rotating.
[79] Photographs were taken of a portion of these skid marks on the asphalt surface but no photograph was taken of the skid mark on the bridge deck. Cst. Shamper’s evidence is that the right side mark on the bridge deck could only be seen by the naked eye and only by getting right down close to the concrete surface.
[80] About 7.59 metres west of the west end of these skid marks, and slightly to the left of the direction of the skid marks, were a series of weight shift tire marks measuring 19.86 metres in length. These weight shift marks were three closely spaced marks that curved slightly to the right with the closest mark about 1.3 metres away from the concrete centre median.
[81] Cst. Shamper concluded that these weight shift marks were caused by the left side tires of Mr. Pelletier’s trailer before it was involved in the collision with the centre median, and were characteristic of tires that were rotating and over deflected due to the weight shift onto the left side tires.
[82] He found more tire marks adjacent to the damaged area of the concrete centre median where the bunks or stakes of Mr. Pelletier’s trailer had hit the barrier, and more weight shift marks towards the west end of this damaged area. About three metres further west from these marks there were four parallel tire marks in the westbound lane that all lead to the rear wheels of Mr. Pelletier’s trailer stopped in the westbound fast lane.
[83] Cst. Shamper concluded that these last skid marks had been made by the trailer when its brakes dynamited.
[84] He says he also did a cursory examination of Mr. Pelletier’s tractor trailer unit and he also saw that a portion of the right rear flange on the tractor deck holding the fifth wheel assembly, approximately 20 centimetres in length, was bent upwards, and one of the retaining bolts that held the flange and fifth wheel slider in place on the tractor deck was missing from the right flange. He identified the position of this missing bolt as being the second one from the end on the flange and to his observation it appeared to have been missing for some time.
[85] Cst. Shamper also observed damage to the left side stakes of Mr. Pelletier’s trailer with the damage located high up on the stakes at the front of the trailer and progressively lower down on the stakes at the rear of the trailer, with the rear most stake bent downwards and backwards close to its base.
[86] Based on the evidence that Cst. Shamper found at the scene he determined the following scenario as set out in his report:
The log truck was traveling westbound on Highway #1 crossing the Capilano River Bridge in the left lane (lane #1) immediately prior to the collision. At the west end of the Capilano River Bridge the log truck braked hard leaving a set of four parallel skid marks on the roadway. The skid marks commenced on the concrete bridge deck and continued onto the asphalt road surface beyond the west end of the bridge. The skid marks were all in the left lane (lane #1) and extended into a curve to the right at the west end of the bridge. The longer skid marks (94.89 m.) that were deposited by the right side (unweighted) log trailer tires indicate that the right wheels began to lock up sooner than the left wheels which deposited only 49.79 m. of skid mark. The skid marks curved slightly to the right entering the curve and the variation in their length indicates there was a significant weight shift forward and onto the left side wheels of the tractor and trailer as it braked into the curve. Since all of the brakes were functioning properly at this time this was a full brake application by all of the service brakes on both the tractor and the trailer.
The skid marks ended abruptly about 52.70 m. past the west end of the bridge indicating that the brakes were completely released at that point. About 7.59 m. beyond the end of the skid marks a series of weight shift tire marks indicate that the log trailer began to roll over to the left side deflecting the three left side tires. The weight shift marks continued for only about 19.86 m. in the westbound left lane (lane #1). At that point the log trailer rolled over onto the concrete barrier in the centre of the highway which separates the westbound lanes from the eastbound lanes. The vertical stakes on the left side of the log trailer came down hard onto the concrete barrier causing four distinctive gouges in the top of the barrier. The first gouge made by the rearmost stake was 26.68 m. west of the end of the previously mentioned skid marks. The stakes continued to slide along the top edge of the concrete barrier for an additional 41.0 m. to the west before lifting off the barrier. The trailer stakes were the only part of the tractor and trailer that came in contact with the concrete barrier during the entire incident other than the left rear mud flap on the trailer.
When the log trailer came down onto the concrete barrier all four of the load security cables wrapped around the load of logs broke and the logs were ejected onto the roadway in the eastbound lanes of the highway. A series of marks deposited by the logs on the road surface in the eastbound lanes indicate that the logs departed at an angle tangential to the curve towards the south side of the highway.
…
When the log trailer rolled over during the incident the 5th wheel and slider assembly separated from the tractor at the mounting plate allowing the trailer to fall over onto the left side wheels of the tractor. The left front flange of the trailer came into contact with the axle #2 left outer tire damaging the wheel and dismounting the tire. This was evidenced by a tire rub mark on the side of the trailer and the extensive damage on the tire, wheel and suspension of the tractor. The rollover of the trailer also caused the air brake lines between the tractor and the trailer to separate at the glad hand connections. This resulted in a rapid air loss and caused immediate full application of the trailer brakes by the trailer relay emergency valve. The separation of the log trailer from the tractor during the rollover event prevented the tractor from rolling over as well.
Subsequently after losing the load of logs the centre of gravity of the log trailer shifted and the trailer rolled back to the right onto its wheels again. The trailer touched down about 19.7 m. west of the end of the scrape mark on top of the concrete barrier. The trailer 5th wheel assembly came back down onto the rear deck of the tractor with the 5th wheel assembly having rotated 90 degrees from the normal orientation. There were also marks and damage on the deck and rear frame rails where the 5th wheel assembly became trapped holding the trailer and tractor together. The locked trailer brakes caused the trailer wheels to begin skidding immediately upon contacting the roadway. The tractor and log trailer then continued together until coming to a stop and leaving four parallel skid marks up to the final resting position of the tractor and trailer. The skid marks were 59.28 m. in length and ended at the rear wheels of the trailer. The evidence indicates that only the trailer brakes were in use during this second skid. The tractor brakes did not contribute any significant braking towards stopping the vehicle. The tractor and trailer braked to a stop in the westbound lane (lane #1) remaining upright and parallel with the roadway.
[87] Cst. Shamper did not see any evidence of any pre-collision shifting of the load or failure of the tires or failure of the suspension as causative of this trailer rollover, but rather as being a consequence of the rollover.
[88] He determined that the cause of the collision was a combination of unsafe speed while negotiating the curve with steering to the right by the driver of the tractor and trailer. The initial skid marks that began on the concrete bridge deck followed a curved path moving towards the right side of the westbound left lane and indicating to Cst. Shamper that there was significant out tracking at the rear of the trailer to create the weight shift marks.
[89] The damage higher up on the stakes at the front of the trailer than on the stakes at the rear of the trailer indicating the downward angle of damage from front to back along with the weight shift marks on the roadway indicated to Cst. Shamper more evidence of significant out tracking. In Cst. Shamper’s view the fact that the first set of skid marks ended only 26 metres from the first contact with the centre median, with the weight shift marks in between, indicated that it was a very rapid rollover event that had occurred.
[90] In his opinion the proper way to have driven through this curve westbound was to enter the curve within the speed limit and then gently accelerate or remain at a constant speed through the curve so as to maintain the stability of the vehicle. Any braking in the curve would cause further weight shift to the left and upset the stability of the load. The skid marks he found in his view contributed to the loss of stability and subsequent rollover of the trailer.
[91] Cst. Shamper did not become aware of Mr. Winters’ evidence that he had applied his brakes in the left lane and created skid marks until the middle of 2005 when Cst. Shamper was in the process of concluding his report. When he learned of this possibility that the initial skid marks might have been left by the following Winters unit and not by Mr. Pelletier’s unit, he reviewed photographs of the skid marks and compared the tire tread patterns that he saw in the skid marks to the tire tread patterns on Mr. Pelletier’s trailer wheels and on the Winters’ trailer wheels.
[92] He concluded that there were three different tread patterns that showed in the skid marks consistent with the different tread patterns on Mr. Pelletier’s trailer and inconsistent with what he saw as virtually identical tread patterns on the Winters’ trailer, save for one tire.
[93] In cross-examination photographs of Mr. Winters’ tires on his trailer were shown to Cst. Shamper and he agreed that Mr. Winters’ tires also showed different tread patterns on the different axles.
[94] When questioned about his conclusion that the initial skid marks had been left by Mr. Pelletier’s vehicle and not Mr. Winters’ vehicle, Cst. Shamper said that if there had been no braking by Mr. Pelletier coming into that curve one would have seen a developing rollover event consisting of weight shift marks back at the beginning of the curve which would have developed into further and further deflection of the tires resulting in rollover. The fact that there were no weight shift marks at the beginning of the curve was another indication to him that the initial skid marks had to be attributable to Mr. Pelletier’s vehicle.
[95] He agreed that his conclusion of earlier weight shift marks in the absence of skid marks was based upon an assumption of excessive speed on the part of Mr. Pelletier leading to this rollover.
[96] Cst. Shamper disagreed that in determining critical rollover speed one should use the curve that the vehicle was actually following rather than the curve in the roadway itself. He disagreed that it was appropriate to use only the weight shift marks found on the roadway as the curve in order to produce a critical rollover speed of only 69 kph.
[97] He considered it unreliable to use the weight shift marks to determine speed due to the rapid dynamics of the rollover. In his view the investigative technique for using weight shift marks to calculate speed required a tire mark that was in the earlier stages of a progression towards rollover, in order to be accurate.
[98] Cst. Shamper says he determined the speed of Mr. Pelletier’s tractor/trailer unit of 117 kph at the start of the first skid mark by using the slide to stop and combined speed formulas involving the speed loss over each of the three skid marks he found, that being the skid mark on the bridge deck, the following skid mark on the asphalt surface, and the final skid mark leading to the rear wheels of the trailer as it stopped on the roadway.
[99] Using his calculations he determined the speed loss in the first skid mark was 69.28 kph, the speed loss in the second skid mark was 84.03 kph, and the speed loss in the third skid mark was 43.66 kph.
[100] However, when asked for the speed of Mr. Pelletier’s unit at the moment of rollover, he said that speed could not be determined, that there would be some speed loss associated with the vehicle while it passed through the rollover phase in its contact with the centre median, and there were too many unknowns or uncertainties to be able to accurately calculate the amount of speed loss in that phase.
[101] He was also of the view that his speed loss calculations could only be used to determine the unit’s speed at rollover by working backwards from the end to the beginning and that without knowing the speed loss in the rollover phase it was impossible to determine the speed at the moment of rollover. One could not simply subtract the first two speed loss figures to come up with the remaining speed of the vehicle after those first two skid marks.
[102] When Cst. Shamper calculated the drag factor for a fully loaded truck on asphalt he used only 65 percent of the measured drag factor for other vehicles to allow for the extra weight of the fully loaded tractor/trailer unit. For his determination of the speed loss in the third skid mark leading to the rear tires of Mr. Pelletier’s trailer, those skid marks being only created by the trailer brakes and tires, he employed a braking efficiency of only 24 percent of the 65 percent.
[103] When it was pointed out to him that the defence expert, Mr. Sdoutz, considered that the 24 percent should have been applied to the overall measured drag factor on asphalt, and not to the adjusted drag factor for a fully loaded truck at 65 percent, and that he had therefore underestimated the speed of the tractor/trailer unit at the onset of the last set of skid marks, Cst. Shamper did not appear to understand what Mr. Sdoutz was saying, and offered no reply.
[104] When I sought further clarification of his position on this issue and suggested that Mr. Sdoutz was saying that he should have calculated the speed loss with reference to the overall drag factor and not the adjusted drag factor, he said he could have done that and it would have resulted in a higher speed than 117 kph but at every step of his investigation he always erred on the side of being conservative.
[105] When Cst. Shamper was asked about Mr. Sdoutz’ determination of the deceleration of Mr. Pelletier’s unit as the trailer slid along the concrete median, based upon previous tests performed by the RCMP of the drag factor for a similar trailer as it was slid along its side on asphalt, Cst. Shamper acknowledged that he was familiar with that test but had rejected it in making his own determination of speed because this was not a similar event of a trailer sliding completely on its side. This scenario involved the metal bunks or stakes of the trailer sliding on the concrete median but the rubber tires on the left side of the trailer still being on the asphalt carrying some of the weight, as well as other factors involved such as exactly when the air line severed and the trailer brakes dynamited.
[106] He said that he discounted the deceleration that had occurred during the rollover phase in his calculations, and that was more in favour of Mr. Pelletier.
[107] Cst. Shamper was unable to offer any opinion of the speed of Mr. Pelletier’s unit at the moment of rollover. He could only provide an opinion of speed at the beginning of the initial skid marks which he has attributed to the Pelletier unit and an opinion of the critical rollover speed in that curve.
[108] Mr. Sdoutz is a mechanical engineer and he gave evidence for the defence as an accident reconstruction expert. He was qualified to give opinions in the area of motor vehicle accident reconstruction including interpretation of tire mark evidence and other accident scene evidence, and calculation of vehicle speed from that evidence.
[109] Mr. Sdoutz did not visit the scene. He reviewed the photographs already taken of the scene and the report of Cst. Shamper and Mr. Northcott. On his review of the photographs he observed that the initial set of skid marks appeared to commence west of the concrete Capilano Bridge deck and were close to 47 metres in length. He concluded that the speed necessary to create these skid marks was only 71 kph, assuming a stop at the end of the skid marks.
[110] In his opinion the photographs of the initial skid marks west of the bridge deck showed skid marks consistent with brakes being engaged after the bridge deck and not on it, starting fairly faintly as the brakes were locking up and the tires were bouncing on the roadway until the suspension settled the tires down and they continued to skid in a straight line.
[111] In his opinion if these tires had been locked already on the bridge deck he would have expected to have seen solid continuous tire marks initiating immediately at the very west edge of the bridge deck, on the asphalt, and continuing westerly from there, which the photographs did not demonstrate.
[112] Further, he observed that in the initial skid marks west of the bridge deck the left inside tire and the right outside tire showed heavy marks indicative of brake lock-up, in close proximity to the weight shift mark further west that was due to all the weight being on the left side. If the initial skid mark had been from Mr. Pelletier’s vehicle, that would have meant to him that both right and left tires were locked up only moments before all the weight was transferred to the left side as indicated by the weight shift mark, which would be completely unexpected in such a short distance.
[113] The fact that the inside left tire skid mark and the outside right tire skid mark were darker than the other two marks from the dual tires indicated to him that the load on the trailer was starting to equalize again just before the unit stopped. The fact that the mark stopped abruptly indicated to him that the unit had come to a stop and it was not a unit that was about to roll over. If it was a unit about to roll over to the left he would have expected the end of the right side mark to have been somewhat faded as the right side started to lift off the roadway.
[114] He also did not think the end of the first skid marks was consistent with a driver having taken his foot off the brake because in that circumstance he would have expected that the skid marks would fade out somewhat rather than stop abruptly, although he allowed it was possible.
[115] He took issue with some of Cst. Shamper’s calculations including the applicable deceleration of the accused’s vehicle at the onset of the set of skid marks leading to the rear tires of Mr. Pelletier’s trailer.
[116] In his opinion Cst. Shamper’s calculation of 24 percent braking efficiency for the trailer in the last set of skid marks should have been applied to a 100 percent drag factor and not to any reduced drag factor to allow for a reduced braking efficiency of the unit to 65-70 percent. In his view the 24 percent braking efficiency assigned to the trailer only already took into account the overall braking efficiencies of the tractor/trailer unit and Cst. Shamper had done a double deduction by reducing the braking efficiency of the tractor/trailer unit down to 65 or 70 percent and then taking 24 percent of that drag factor for the braking efficiency of the trailer only.
[117] He also took issue with the way Cst. Shamper determined the critical rollover speed, holding the view that the calculation should have been done on the basis of the actual turning radius of the vehicle and not the radius of the curve in the roadway.
[118] He said that using the curvature of the road itself assumed a vehicle was precisely following the curve of the road while in his view a vehicle might not be following the curve precisely and so the actual curve of that vehicle should be used to determine its critical rollover speed rather than the curve of the roadway itself.
[119] In his experience the use of weight shift marks to determine radius is a widely accepted methodology as long as the weight shift mark is long enough and in this case it was over 15 metres in length which was in his view long enough to use.
[120] He agreed that as Mr. Pelletier’s trailer moved along the curve it left weight shift marks on the left as the right wheels lifted off the ground. When the trailer began to roll over it pulled the fifth wheel mechanism with it, breaking it off from the tractor. The trailer then rolled to the left sliding its stakes along the concrete median and ejecting its logs into the eastbound lanes where they struck five vehicles. Once the log load was released the trailer righted itself back onto the roadway and the tractor and trailer continued to move forward for about 30 metres until, in his view, the difference between the deceleration rates of the tractor and trailer pulled the air lines apart and the trailer emergency brakes dynamited bringing both tractor and trailer to a stop in 59.3 metres.
[121] Accepting all of Cst. Shamper’s calculations for critical rollover speed other than the radius of the curve in the road, and using the radius of the curve in the weight shift marks found on the roadway prior to rollover, he determined that the trailer would have only been travelling at about 69 kph before rolling.
[122] Using Cst. Shamper’s slide to stop and combined speed formula calculation to determine speed based on skid marks, Mr. Sdoutz determined that the calculation of speed of the unit at the beginning of the final set of skid marks leading to the rear wheels of the trailer indicated that the unit was travelling at that point at only 55 kph.
[123] Working back along the roadway Mr. Sdoutz considered that the unit would have lost speed as the trailer’s stakes slid along the concrete barrier. Based on side-slide tests for a similar unit that the RCMP had done he concluded that Mr. Pelletier’s vehicle had a pre-roll speed of only 69 kph at the moment before rollover.
[124] While he recognized that the circumstances here involved the left side trailer tires remaining on the ground so that some of the weight would have remained on the tires, he said he was being conservative in assuming all the weight was placed on the trailer stakes in contact with the concrete median to achieve maximum deceleration.
[125] He concluded that Mr. Pelletier’s unit did not roll over due to excessive speed and he offered the possibility that the rollover was induced by an unbalanced log load/weight shift to the left or alternatively, induced by the failure of the suspension air bags on the tractor’s left side.
[126] Mr. Sdoutz was asked in his evidence about the missing bolt on the right side flange that held the fifth wheel assembly. He expressed the view that if the bolt was loose, or missing, for some period of time, there would have been a significant force placed against that portion of the flange by the fifth wheel plate pushing up against it every time the trailer went around a right hand curve.
[127] He offered the theory, but not an opinion, that a cause of the rollover could have been the constant impact of the fifth wheel plate pushing up against that portion of the flange during every right turn of the trailer when there was a weight shift to the left, and the impact on a loose bolt in that position or on the flange itself if there was no bolt present, until eventually on this right hand curve the plate forced the flange to bend upwards allowing the fifth wheel to disengage from the tractor deck and go with the trailer, leaving the tractor with all its wheels still on the ground. That would have placed all the weight of the trailer and its load on the left side of the frame rail of the tractor causing the left side suspension on the tractor to fail, leading to the left bunk or stake on the trailer coming into contact with the tandem tires of the tractor, pulling the axles backwards and to the left, and creating a situation where the back end of the tractor started to out track to the left along the new line of these axles.
[128] In his view in that circumstance the operator of the tractor would have felt that his tractor wanted to travel left into the concrete divider and if he steered to the right to overcome that left movement he would have created a sharper turn than would otherwise have been needed to negotiate this curve. That would have reduced the critical rollover speed needed for the trailer and would give a plausible explanation for why the trailer could have rolled over at 69 kph.
Analysis
[129] As I indicated at the beginning of these reasons the critical issue in the trial was the speed of Mr. Pelletier’s logging truck in the curve when the posted speed limit there was 80 kph.
[130] The Crown relies upon the opinion of Cst. Shamper that Mr. Pelletier’s speed into the curve was 117 kph and his critical rollover speed was 110 kph.
[131] Cst. Shamper’s opinion of speed into the curve is based in part from his measurement of skid marks that he attributed to Mr. Pelletier’s vehicle beginning on the concrete bridge deck and extending onto the asphalt road surface.
[132] Mr. Sdoutz is of the opinion that the initial set of skid marks showing in the photographs starting after the bridge was made by a vehicle travelling at a speed of 71 kph, coming to a complete stop at the end of the initial skid marks.
[133] He is of the opinion that the critical speed of the Pelletier vehicle just before its trailer rolled over was approximately 69 kph based on his use of the radius of the weight shift marks and not the radius of the curve itself.
[134] Using the slide to stop and combined speed formula, but using a different drag factor for the trailer, and including a drag factor for the trailer as it slid along the median, but excluding any speed loss from the initial set of skid marks, he confirms his critical rollover speed of 69 kph.
[135] I have considered the two opinions. I have concluded that it is far more likely on all the evidence that the initial skid marks ending just before the weight shift marks were left by the following Winters vehicle rather than the leading Pelletier vehicle.
[136] Apart from the opinions of Mr. Sdoutz, the evidence of the witness Hoffman was that he saw Mr. Winters’ vehicle perform an emergency braking in the fast lane, the evidence of the witness Spicer was that Mr. Winters’ vehicle stopped behind her initially in the fast lane before moving over to the right shoulder of the road, and the evidence of Mr. Winters himself was that he had stopped suddenly in the fast lane and left skid marks. I accept all this evidence.
[137] Cst. Shamper sought to support his opinion that the Pelletier unit and not the Winters unit had left the initial skid marks by his observation that the tires of the Pelletier vehicle had different tread patterns that he saw in the photographs of the skid marks, while the Winters’ tires were all of the same pattern, save for one.
[138] This distinction proved not to be so when it was pointed out to Cst. Shamper that the Winters’ unit also carried tires with different tread patterns.
[139] Dealing with the opinions of Mr. Sdoutz, and looking at the photographs of the first skid marks on the asphalt, it strikes me as far more plausible that the skid marks as shown were laid down as he says by a vehicle that was straightening itself out to come into a complete stop at the end of the skid mark. This is consistent with the evidence surrounding Mr. Winters’ vehicle.
[140] I accept his opinion of the critical rollover speed of the Pelletier vehicle at the moment of rollover as being approximately 69 kph. It seems far more logical to me to use the path of a vehicle travelling in the curve to determine its critical rollover speed rather than the curve of the road itself.
[141] As I have rejected the Crown’s evidence of speed in the curve and accepted Mr. Sdoutz’ evidence of speed, and as this is consistent with Mr. Pelletier’s own evidence of his speed in that curve, I also accept his evidence.
[142] I do accept that Mr. Pelletier and Mr. Winters were exceeding the speed limit as they proceeded west on the Upper Levels highway, as the other witnesses have testified. I accept that they were trying to catch the 3:00 p.m. ferry out of Horseshoe Bay. I conclude that Mr. Pelletier had his radar detector on as he was speeding in order to try to catch that ferry.
[143] However, I accept Mr. Pelletier was well aware of the necessity for caution in this curve and the fact that he was speeding before the curve does not necessarily mean he was speeding in it. No witness was able to give evidence of his speed as he entered the curve, although Ms Spicer says that shortly before at the Capilano Road exit, which is before the curve, he was going faster than 100 kph.
[144] I do not know what caused Mr. Pelletier’s trailer and load to tilt to the left spilling its logs. It may have been a problem of how the logs were loaded or it may have been the release of the fifth wheel assembly because of a flange weakened over time, or it may have been due to some other structural or mechanical failure that was not discovered.
[145] Mr. Pelletier does not have any onus to prove the cause. The Crown must prove any criminal liability on Mr. Pelletier beyond a reasonable doubt. This it attempted to do on the basis of excessive speed. I have found that this has not been proven and certainly not beyond a reasonable doubt.
[146] I therefore find Mr. Pelletier not guilty as charged.
“Truscott J.”