The owner of a Thunder Bay trucking company was jailed Monday for a criminal offence stemming from a fatal collision involving one of his drivers that resulted in the death of an off-duty police officer near Blind River three years ago.
Ian Fummerton was sentenced to six months incarceration after pleading guilty last year to being a party to dangerous driving — a charge that stemmed from the Feb. 13, 2014 deadly accident involving an ABI Trucking Inc. tractor trailer and a Jeep Wrangler.
The driver of the Jeep, Const. David Dennie, 36, an off-duty Ontario Provincial Police officer, was killed in the collision, which occurred on Highway 17, east of Blind River.
Fummerton, 61, initially was charged with criminal negligence causing death, but pleaded guilty to being a party to dangerous driving for failing to ensure ABI drivers complied with provincial laws and regulations for on-duty drivers, driver hours and off-duty driver rest hours by permitting single-driver round trips between Thunder Bay and the Toronto area.
Prosecutor Mary Pascuzzi said later that as far as she knows the case is the first of its kind in Canada, involving an owner operator in criminal courts.
In her 25-page devision, Superior Court Justice Annalisa Rasaiah called the circumstances aggravating and the offence serious.
"While he has only been charged as a party, Mr. Fummerton's degree of responsibility and culpability was high," she said. "The risk of harm created by his conduct in encouraging and condoning such dangerous practices on the part of his drivers cannot be ignored."
The judge noted that Fummerton hasn't been found guilty of an offence causing Dennie's death, and the charge against the driver Gary Tyska, also of Thunder Bay, is still pending, and there has been no finding made as to the cause of the accident.
Rasaiah said it was clearly admitted, during the accident investigation, that Fummerton breached his owner/operator duties and obligations set by provincial legislation and regulations.
He did this in a manner that his conduct was caught by the Criminal Code and he was a party, to aiding and abetting the offence of dangerous driving, she said.
The court heard the transport operated by Tyska, who was driving alone, on Feb.11, 12 and 13, 2014 was travelling a Purolator delivery run from Thunder Bay to Mississauga and back — a total distance of 2,800 kilometers.
Tyska was returning to Thunder Bay when the collision occurred.
Police collected data from the transport that indicated that from Feb. 9 to the Feb.13 collision, the truck never stopped being driven for a period greater than 5.5 hours.
Rasaiah was told there was a pattern of Tyska completing this run as a single driver and doing it within 48 hours, not taking the provincially regulated required rest periods, and maintaining two daily log books and deliberately falsifying his logs.
In her decision, Rasaiah said Fummerton knew he was employing drivers who were willing to breach regulations and who would willingly falsify log books to conceal that they were exceeding provincial on duty/driving hour limitations.
The evidence indicated that the drivers did these runs with Fummerton's permission and knowledge, she said.
He provided two log books and repeatedly paid the drivers for making these single-driver delivery runs.
"The evidence demonstrates a prolonged, persistent and frequent practise."
The judge found that Fummerton placed his economic interest ahead of his duties, and ahead of the safety of his drivers and the public.
Fummerton "intentionally facilitated and encouraged not one, but at least three drivers to engage in this dangerous practice," she said.
He did it over a period of time, at a "disturbing frequency," and allowed it to happen with two different transports on highly travelled highways.
As an experienced driver, as well as an owner/operator, he knew better, and he provided two log books to conceal the driver's operation of the vehicle, Rasaiah said.
"The context of the conduct extends beyond permitting drivers to drive over hours. It extends to encouragement and facilitation to permit drivers to physically falsify log books, to knowingly conceal the true operation of the vehicle from MTO (Ministry of Transportation) and police officers who may conduct an inspection to ensure compliance, and safety of the public."
The Crown was seeking 12 months imprisonment, followed by a probation order with terms that included a prohibition preventing Fummerton from employing, managing or supervising commercial motor vehicle drivers.
Pascuzzi maintained at the April 6 sentencing hearing that incarceration was a fit and just sentence based on the principles of general and specific deterrence and denunciation.
Defence lawyer Ronald Poirier argued that this wasn't a case for incarceration.
He urged the judge to choose a sentencing option that would result in no criminal record for his client, and suggested a conditional discharge and placing Fummerton on probation
The probation order could include conditions on Fummerton's management of his trucking company, Poirier said.
He submitted that deterrence and denunciation could be met by many other sentencing options, but if the court felt incarceration was required, a conditional sentence which would be served in the community, could be imposed.
Rasaiah decided that need for deterrence and denunciation "figure most prominently" in this case and so remove a conditional sentence as a fit sentence for this serious offence.
"In my view, general deterrence and denunciation are pressing, and require incarceration."
She said it is necessary to let people in Fummerton's position know that they have a serious obligation to put the safety of their drivers and the public before their own economic interests.
"It needs to be made clear to persons such as Mr. Fummerton that calculated non-compliance that can lead to terrible consequences for innocent users of the highways will not be tolerated."
When the judge imposed the six-month jail term, she also placed Fummerton on probation for 18 months.
During his probation, Fummerton will be bound by eight conditions relating to the operation of his company, including a requirement that he hire at least one qualified operational staff member, preferably a qualified safety manager, to oversee and supervise the drivers' compliance with all regulations.