Highway 400 southbound in Toronto just north of its intersection with the 401 is problematic. Four lanes feed into the 401 with another two proceeding into the city by way of Jane Street or Black Creek Drive. The intersection is aged and, despite some improvements, remains underbuilt. During peak times it struggles to handle the volume of car and truck traffic, frequently causing slowly-moving backups to the Sheppard Avenue underpass if not beyond. Driving it requires patience and diligence.

On June 24, 2016, a Winnipeg-based truck driver, Sarbjit Matharu, was hauling a perishable load of 21 tonnes of pork in a tractor-trailer from Winnipeg to Hannon, located immediately south of Hamilton. He had left Winnipeg the day before between 5:00 and 5:30 pm (Toronto time). The route he chose was in excess of 2100 kilometres.

At about 9:45 pm he was southbound on the 400 in lane 3 (the third lane from the median), approaching the Sheppard Avenue underpass. The sun was down and the road conditions good. But, just south of the underpass, traffic was “stop and go” in at least lanes 3 and 4, the not-unusual congestion complicated by some construction. Braking lights were plainly visible.

Mr. Matharu testified that the load was required to be delivered by 10 pm to the receiver in Hannon. If true, he was late. For those unfamiliar with the local geography and distances, in good traffic Hannon is well over an hour’s drive from the Sheppard Avenue underpass.

At a point past the underpass, Mr. Matharu’s rig struck the rear of the slowly-moving car ahead of him, starting a chain reaction involving two other cars and another tractor-trailer, all in a line in lane 3. The results were catastrophic. Four of the cars’ occupants were killed, with a fifth badly injured. One of the dead was a five-year old child. The southbound lanes were closed for the next 20 hours permitting time for the police investigation and to repair the highway.

Almost three months later, Mr. Matharu was charged with four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. After a 10-day judge-alone trial, on April 30, 2021 he was convicted on all five counts by Code J.

Referring to the 2019 decision of the Supreme Court in R. v. Javanmardi, the test for criminal negligence requires that the accused did, or failed to do something that was his/her legal duty to do, that caused death or bodily harm. The act or omission must show wanton or reckless disregard for the lives or safety of others, defined as measure of conduct based on the community standard, the question being: Was the act or omission of the accused a marked and substantial departure from what would be expected of a reasonable person in the circumstances? Put another way, did the accused’s act or omission create a risk to others that a reasonable person would have foreseen and taken steps to avoid if possible?

Applying Javanmardi, Code J. had little difficulty in convicting Mr. Matharu. Supported by the data recorded in the rig’s “black box”, he found that seconds before the impact with the first car, Mr. Matharu accelerated from just over 80 km/h to 90 km/h, the latter being the speed at the time of impact and 10 km/h in excess of the posted (construction zone) limit. No braking occurred until the moment of impact. Mr. Matharu’s cell phone records indicated that at the time, he was speaking on his phone and had been for several minutes beforehand. It was one of many lengthy telephone conversations he had during the trip from Winnipeg.

Code J. also found that Mr. Matharu had breached the HTA regulations limiting commercial truck-driver driving time to 13 hours each day, followed by 8 hours off-duty for rest or sleep before resuming.  After he left Winnipeg, Mr. Matharu had no more than 2 hours off-duty time and had falsified his log to demonstrate compliance.

Code J. rejected Mr. Matharu’s testimony that the initial collision was because of a careless lane change by the car ahead. Nor did he accept the defence theory that the collision was the result of momentary intention.

At paragraph 129 he concluded:

… [Mr. Matharu] knew that driving on insufficient sleep put public safety (and his own safety) at risk. He simply chose to take the risk, apparently giving his own financial self-interest priority, and he then unreasonably minimized the risk. He also must have known from experience, that lengthy cell phone conversations while driving can lead to a risk of distraction. Once again, he unreasonably minimized this risk. I am also satisfied that he must have known from common sense experience, that exceeding the speed limit in a busy urban construction zone, on a six lane highway, while approaching a major interchange with another highway, in a large heavy transport truck that requires a longer distance to brake and slow down, puts public safety at risk. Any experienced truck driver would know this. Finally, I am satisfied that he should have known and may have known the risk of continuing to accelerate and exceed the speed limit when the traffic ahead of him in lane 3 was slowing and coming to a stop. In the case of these latter two risks, Mr. Matharu was either willing to take the risks because he was under pressure to deliver the load of meat to Maple Leaf Foods in Hannon by 10:00 p.m. that evening, he was running late, and he thought that he could change lanes at the last moment if necessary. Alternatively, he was unaware of the risks because he was falling asleep and/or he was distracted by his cell phone. Both of these alternative states of mind or fault are culpable…

If that was the end of the story, most would probably conclude the convictions were warranted, and, subject to sentencing, that justice had been served. But there is more.

Mr. Mathuru was not an independent contractor but an employee of a small Winnipeg-based trucking company. He testified that after being idle, and therefore unpaid, for a period of about one week, his employer called him at 3:00 pm (Toronto time) on June 23 to assign him the load. When he went to pick it up that afternoon at about 4:30 pm, he was told that the deadline for delivery was 10 pm (Toronto time) the next evening. Knowing that the timing would require him to drive unlawfully (that is, in breach of the HTA off-duty requirements), he testified that he protested but, allegedly, was treated unsympathetically by the company owner and dispatcher, one commenting that he had plenty of rest over the past week and if he refused the load there would be consequences.

The shipping documentation accompanying the load did not prescribe that delivery must occur by 10:00 pm, but under the “required delivery” column it did state: “June 24/16. Receiving opens at 9:00 p.m. Deliver ASAP.”

At paragraph 130, Code J. summarized his thoughts about Mr. Matharu’s alleged conversation with the owner and receiver;

…..I have not made any definitive findings of fact about the conversation between Mr. Matharu (on the one hand) and [the owner] and [the shipper]  (on the other hand), prior to leaving Winnipeg. I have made certain unfavourable findings about Mr. Matharu’s credibility and reliability and I do not have a complete evidentiary record relating to this alleged conversation. It is simply a reasonable possibility, that I have not rejected at this stage, that Mr. Matharu was under pressure to deliver the load on time and he was running late.

Driving while sleep deprived has been equated to impaired driving. Both are dangerous for obvious reasons. If the employer failed to stop Mr. Matharu, knowing that on-time delivery would require him to breach the off-duty regulations, it would be just as risky to pubic safety as sending him off  with a cooler-full of beer packed in the cab to enjoy during the trip. Presumably, the employer would have intervened to prevent the latter from happening.

For offences involving criminal negligence, s.22.1 of the Criminal Code provides that employers are criminally liable for the unlawful acts or omissions of their employees arising in the course of their employment if the senior officer, who is responsible for the aspect of the organization’s activities that is relevant to the offence, departs markedly and substantially from the standard of care that, in the circumstances, could reasonably be expected to prevent the employee from being a party to the offence.

“Senior officer” is defined in the Code to include CEOs and those responsible for managing an important aspect of the company’s activities. The definition is certainly wide enough to capture the owner and dispatcher of a small trucking company.

Section 22.1 was added to the Code in 2004 to clarify the law governing corporate criminal liability. One of Parliament’s intentions was to facilitate the criminal prosecution of employers for egregious breaches of regulatory legislation by their employees that threaten public safety. Disappointingly, it has been applied by law enforcement sparingly and inconsistently.

The employer was not charged with Mr. Matharu and there is no indication in the court’s judgement that a separate trial is pending against it. It may very well be that the police investigation included the employer as a person of interest, but there was a decision not to charge it along with Mr. Matharu. Whatever the case may be, after reading Justice Code’s judgement, absent some explanation from law enforcement, one is left with the gnawing feeling that the prosecution of Mr. Matharu, albeit successful, was a half measure. The investigation could  have gone much farther. General deterrence demands that employers should be held to account for recklessly permitting their employees to threaten public safety.