COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malkowski, 2015 ONCA 887

DATE: 20151215

DOCKET: C58967

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Adam Malkowski

Appellant

Vincenzo Rondinelli, for the appellant

Grace Choi, for the Crown

Heard: November 23, 2015

On appeal from the judgment of Justice J. W. Bovard of the Ontario Court of Justice, dated April 3, 2014.

By the Court:

Introduction

[1] The appellant appeals from his conviction for dangerous driving causing death. The 13-year-old victim was killed when she was struck by the appellant’s car while attempting to cross Airport Road just after 8 p.m. on a Saturday night during March Break 2012.

Relevant Aspects of the Trial Judge’s Reasons

[2] The trial judge found that the appellant was travelling 152 km/h. He relied on expert evidence dependent on data retrieved from an airbag control module recovered from the appellant’s car. The posted speed limit was 50 km/h. The trial judge concluded, in all the circumstances, that the Crown had proven dangerous driving beyond a reasonable doubt.

[3] The trial judge set out the legal principles concerning causation at the outset of the analysis section of his reasons. Later in his analysis, the trial judge stated the following conclusions concerning causation in relation to the victim’s death:

Causation

Regarding factual causation, considering that “factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause” I find that in these circumstances [the victim] died as a result of being hit by [the appellant’s] car. It is reasonable to infer from all the circumstances that but for his actions of driving 152 KPH, she would not have been killed.

There is no persuasive evidence to conclude that [the victim] ran in front of [the appellant] knowing that he was upon her. …

Therefore, even if she darted into the road to the surprise of her friend and brother, it is logical to infer that she did not create an inevitable and unavoidable collision with [the appellant’s] car by doing this.

It is probably true that [the appellant] would not have hit her had she not ran into the street, but this does not mean that [the appellant] did not play a causal role in hitting her. As the court stated in K.L. (supra), “That the fatality was unanticipated or an unlikely result of the appellant’s conduct is not a defence.”

Intervening Cause

Even if [the victim’s] running into the road could be said to have been an intervening act that interrupted the chain of legal causation, based on all of the circumstances I find that [the appellant’s] dangerous and unlawful act of driving the way that he did was “a significant contributing cause” to her death.

In any case, as pointed out above, Maybin held that “An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender of legal responsibility for the unintended result.”

I find that in the circumstances described above, it was reasonably foreseeable that a person would go on to the road in some manner. It was a residential and business area through which people expect drivers to move slowly, as directed by the speed limit. It was a beautiful evening near a residential area and Caledon Village. Kids were out of school enjoying the freedom of March break. Kids live in residential areas; they go to the Village to shop. They do unexpected things; like run into the road.

Even if as the defence argued, the specific act of [the victim] running out into the middle of the road was not foreseeable, as pointed out above, Maybin held that “From the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts.” But, the specific act “need not be reasonably foreseeable” (para. 35). (Emphasis added.)

Issues Raised on Appeal

[4] The appellant raises two issues on appeal. First, he argues that the trial judge erred by failing to consider two key pieces of evidence in determining the speed at which the appellant was travelling at the time of the accident. Second, he argues that the trial judge erred in assessing the test for legal causation.

Discussion

(i) Speed

[5] The appellant argues that the trial judge erred in failing to consider the following two pieces of evidence in determining the appellant’s speed at the time of the accident. First, the evidence of the officer-in-charge concerning the time it takes to travel from the Orangeville McDonald’s to the scene of the accident. This evidence was relevant because the officer reviewed a video that showed the appellant inside the McDonald’s at the cashier at 7:45 p.m. on the night of the accident and subsequently leaving the restaurant at 7:47 p.m. The officer also conducted Google and GPS searches, which demonstrated that the time necessary to travel from the Orangeville McDonald’s to the scene of the accident was between 15 and 21 minutes. According to the appellant, this evidence was capable of demonstrating, or at least raising a reasonable doubt, that he travelled from the McDonald’s to the scene of the accident at a lawful speed.

[6] Second, the evidence of the appellant’s brother, who was a passenger in the appellant’s car when the accident occurred. Among other things, the brother testified that he felt comfortable at all times when in the appellant’s vehicle en route from Orangeville – and that he would have told the appellant if he was uncomfortable about the appellant’s speed or driving – and did not do so. The appellant contends that, like the McDonald’s evidence, this evidence was capable of raising a reasonable doubt concerning whether he was speeding at the time of the accident and that the trial judge erred in failing to consider it.

[7] We do not accept these submissions. The appellant acknowledges that the trial judge reviewed both pieces of evidence during the evidence review section of his reasons. His complaint is that the trial judge failed to refer to this evidence in his analysis. In our view, the reason for this is obvious. Neither piece of evidence had sufficient weight to warrant further comment.

[8] The evidence concerning the time it would take to travel from the Orangeville McDonald’s to the scene of the accident was subject to many unknowns. At what time did the appellant actually depart in his car from the McDonald’s? At how many of the five stoplights en route did the appellant encounter a red light and how long was he delayed? How fast was the appellant travelling during each leg of the journey? The unknowns relating to this evidence reduced its probative force to virtually nothing.

[9] As for the appellant’s brother’s evidence, it, too, carried little, if any, probative force. The brother acknowledged that he was texting friends, playing music and setting up a playlist on a phone during the drive. When asked specifically if he was able to comment on how fast his brother was going he said he was not paying attention. Further, when asked if he saw the speedometer he responded, “No, I wasn’t paying attention at all.” He also testified: “I wouldn’t be able to tell that he was speeding.”

[10] We would not give effect to this ground of appeal.

(ii) The Test for Legal Causation

[11] The appellant acknowledges that there is no issue in this case relating to factual causation. He argues, however, that the test for legal causation cannot be met in the circumstances of this case and that the guilty verdict is therefore unreasonable.

[12] The appellant bases his argument on three propositions. First, he says that having regard to when and where it took place, the accident was not reasonably foreseeable. Second, the appellant argues that the chain of legal causation was broken by an independent intervening act – namely, a young girl running across the road. Third, the appellant says that, regardless of the speed at which he was travelling, the accident was inevitable.

[13] We do not accept these submissions.

[14] We begin with the following general principles concerning causation:

• the causation standard in motor vehicle offences involving death is the same standard that applies in cases of culpable homicide, namely that the accused’s conduct be at least a contributing cause of the deceased’s death, outside the de minimis range; the accused’s conduct need not be the sole contributing cause of death, provided it contributed beyond de minimis to that death;[^1]
• in deciding whether an accused should be held responsible for causing a death, it needs to be determined whether the accused caused the death, both in fact and in law;
• legal causation is the inquiry into “whether the accused should be held criminally responsible for the consequences that occurred.” Legal causation is “based on concepts of moral responsibility”, and informed by legal considerations, such as the wording of the offence-creating provision and the principles of criminal justice, such as that the morally innocent should not be punished;[^2]
• the doctrine of novus actus interveniens or intervening act, is part of the analysis of whether legal causation is established, and whether an accused should be legally accountable for the death;
• in R. v. Maybin, the Supreme Court discussed two different approaches to determining whether an intervening act has broken the chain of causation – i.e. 1.) considering whether the intervening act was “reasonably foreseeable”; or 2.) considering whether the accused’s actions were “effectively overtaken by the more immediate causal action of another party acting independently”. Importantly, the Court noted that these two approaches are only “analytical aids” that may be useful depending on the factual context. They are not new standards of legal causation. The test remains whether the accused’s dangerous and unlawful acts are a significant and contributing cause of the victim’s death.[^3]

[15] Turning to the appellant’s specific arguments, he claims, first, that the trial judge’s conclusion that “it was reasonably foreseeable that a person would go on to the road in some manner” at the time and place of the accident was unreasonable. He relies on a submission that the accident occurred some distance from the nearest village, at a place where there were no sidewalks and no artificial lighting beside the road and no businesses or houses in the vicinity – a place he claims where no one would expect a pedestrian to be crossing the road.

[16] These submissions ignore the fact that the accident occurred south of the residential road on which the victim lived, which emptied onto Airport Road and south of a road sign on Airport Road changing the speed limit from 80 km/h to 50 km/h. They also ignore the evidence of the victim’s brother that the victim and her family lived in a house about a five-minute walk from where the accident occurred and that the house was about a ten-minute walk from the ice cream parlour. Having regard to this evidence and the timing of the accident in the early evening on a Saturday during March break, we see nothing unreasonable about the trial judge’s conclusion that it was reasonably foreseeable that a person would go on to the road in some manner at the time and place of the appellant’s dangerous driving. The trial judge’s conclusions are findings of fact and are not tainted by palpable and overriding error.

[17] The appellant’s second argument concerning legal causation is that the actions of the victim in crossing the road as she did were an intervening act that had the legal effect of breaking the chain of causation. According to the appellant, the victim’s unexpected actions in darting onto the roadway were entirely independent of his actions – and the real cause of the accident. Even if the trial judge did not err in his finding of reasonable foreseeability, he erred in failing to go on to consider whether the victim’s actions amounted to an independent intervening cause in no way linked to the appellant’s conduct.

[18] As we read his reasons, the trial judge concluded that even if the victim’s actions could be characterized as an intervening act, in the circumstances of this case, the appellant’s dangerous driving remained a significant contributing cause of her death and therefore the test for legal causation was satisfied.

[19] We see no error in this conclusion. As noted above, Maybin makes it clear that foreseeability and intervening act are merely analytical aids in assessing legal causation; they are not new standards of legal causation, and they may or may not be helpful in a particular case depending on the factual context. Moreover, the time for assessing causation is the time of the accused’s dangerous and unlawful act and not the time of any intervening act.

[20] Here, the appellant was driving 152 km/h in a 50 km/h zone. The accident reconstruction evidence did not reveal any effort at braking. This is not a case where there is any risk of punishing the morally innocent.

[21] In any event, we would not characterize the victim’s conduct as being an independent act, unrelated to the appellant’s conduct. The appellant was driving at a speed of 152 km/h shortly after 8 o’clock at night in a place where both motorists and pedestrians were entitled to expect vehicles to have slowed down. The fact that the victim would attempt to cross the road but found herself unable to do so in safety is not a matter that is unrelated to the appellant’s conduct; rather, it is a direct materialization of the danger he created by driving in the way that he did.

[22] The appellant’s final submission concerning legal causation is that he should not be held legally responsible because, regardless of the speed at which he was travelling, the accident was inevitable. In support of this submission, he points to the evidence of the accident reconstruction expert to the effect that driver perception reaction time (the time it takes a driver to perceive a hazard and react to the situation) remains the same at any speed, about 0.5 to 3 seconds. Moreover, he submits that the following evidence from the accident reconstruction expert demonstrates that, regardless of his speed, the accident would likely have happened in any event:

Q. So just to sum up here, as you’ve indicated, the normal reaction for a driver is 1.5, could be up to 3 seconds, that type of thing, right?

A. The normal perception reaction time, yes.

Q. Yeah. And if it took [the victim] 1.5 seconds to run out to the impact zone, is it fair to say that the driver could not even begin to brake?

A. It would depend on their reaction.

Q. Yeah, 1.5 seconds. Is that fair?

A. Once they perceive and then they make the decision whether to steer, brake.

Q. And speed has nothing to do with it, right? The perception reaction time is the same at any speed, right?

A. That is correct.

Q. And so if she came out from the side of the road in 1.5 seconds, my client was going 50 kilometres an hour, 40 kilometres an hour, regardless he has 1.5 seconds, right?

A. Yes.

Q. So he – she’d still get hit, fair?

A. Possibility, yes.

[23] In our view, this submission ignores the fact that the appellant would not have been in the position he was in on Airport Road when the victim started across the road had he not been driving at the speed he was travelling. In our view, this argument is without merit as it is entirely speculative.

Disposition

[24] Based on the foregoing reasons, the appeal is dismissed.

Released:

“DEC 15 2015” “Janet Simmons J.A.”

“JS” “K. van Rensburg J.A.”

“M.L. Benotto J.A.”

[^1]: R. v. K.L., 2009 ONCA 141, [2009] O.J. No. 577 (C.A.) at para. 17; Smithers v. The Queen (1977), 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, 34 C.C.C. (2d) 427 (S.C.C.) at pp. 435-436; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 at paras. 71-72; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30 at para 14.

[^2]: R. v. Nette at paras. 45, 83; Smithers v. The Queen at p. 435; R. v. Maybin at para. 16; R. v. Shilon, 2006 CanLII 41280 (ON CA), [2006] O.J. No. 4896, 240 C.C.C. (3d) 401 at para. 21; R. v. Menezes, 2002 CanLII 49654 (ON SC), [2002] O.J. No. 551 at para. 90.

[^3]: R. v. Maybin, at paras. 23, 30, 45-46, 60.