Ontario Court of Justice

Date: 2014-04-03

Court File No.: Brampton 12-505

Between:

Her Majesty the Queen

— AND —

Michael Adam Malkowski

Before: Justice J.W. Bovard

Heard on: August 15, 22, and 29, 2013; and January 27, 28, and 30, 2014

Reasons for Judgment released on: April 3, 2014

Counsel:

• J. Rodger, for the Crown
• M. Morris, for the accused Michael Adam Malkowski

BOVARD J.:

Introduction

[1] These are the Court's reasons for judgment after the trial of Michael Malkowski for operating a motor vehicle on March 17, 2012 in a manner that was dangerous to the public and thereby causing death to Sarah Harding.

[2] Sarah Harding and her family had just moved into a new house the day before Mr. Malkowski hit her with his car and killed her. She was 13 years old. At approximately 8:00 p.m. on the day of the incident, she and her brother, Evan, and her friend, Michayla Robinson, decided to walk to a nearby ice cream parlour. They walked down her street to Airport Road and turned towards the ice cream parlour.

[3] As they walked along the gravel shoulder of Airport Road, for no apparent reason and without warning, Sarah darted across the road heading for the other side. Before she got there, Mr. Malkowski hit her with his car and killed her.

[4] The Crown alleges that Mr. Malkowski was driving dangerously because he was speeding and this caused the accident.

[5] The Defence argues that the Crown did not prove that Mr. Malkowski was speeding and even if he was, his driving did not amount to dangerous driving, nor did he cause Sarah Harding's death.

The Issues

[6] The issues are the following:

1. Did the Crown prove beyond a reasonable doubt that Mr. Malkowski was speeding?

2. If so,

   • (i) considering the circumstances of the case, did this amount to dangerous driving?
   • (ii) did Mr. Malkowski cause the death of Sarah Harding?

The Evidence

Admissions

[7] The defence made the following admissions:

(Page 7, transcript, August 15, 2013)

1. Date, time, jurisdiction, identity of Mr. Malkowski as the driver of the car that hit Sarah Harding;

(Pages 37, 38, 115, transcript, August 22, 2013)

2. The orange pylons on the roadside marked the location of Sarah Harding's body where it came to rest on Airport Road;

3. Data was downloaded from the Airbag Control Module. There was no tampering with the module before the data was downloaded;

4. Sarah Harding's father moved her shoes from the centre of the road and placed them next to her body;

5. Officer McGuire took post-mortem pictures at the post-mortem examination;

(Pages 73, 74, 75 transcript, January 27, 2014)

6. Identity of Sarah Harding as the victim;

7. Continuity of Sarah Harding's body from the roadside of Airport Road, Caledon, to Headwaters Hospital and to Hamilton Healthcare Centre;

8. Sarah Harding was pronounced dead at 8:49 p.m. on March 17, 2012 by Dr. Stephanie Milone at Headwaters Healthcare Centre in Orangeville;

9. Dr. John Fernandes conducted a post-mortem examination on March 19, 2012 at the Regional Forensic Pathology Unit, General Site, Hamilton Healthcare Centre;

10. Dr. John Fernandes' Report of Post-mortem Examination along with several photographs depicting Sarah Harding's injuries is filed on consent as an exhibit;

11. Voluntariness of Mr. Malkowski's statements to the police, specifically, a statement provided to Officer Marcelino at the scene on March 17, 2012 and a video statement provided to Officer Rogan at the Caledon OPP detachment on March 22, 2012;

12. All information contained in the Incident Synopsis of the Collision Reconstruction Report, (Exhibit 12).

[8] The defence stated at page 17 of the transcript of August 29, 2013 that "I have no, no qualms about admitting the speed in this particular case" and that "the speed at that time of the accident is, is not in issue." However, it appears from the way that the case unfolded that the defence did contest the speed calculations adduced by the Crown. I note that on page 19 of this transcript, the Crown advised the Court that "we don't have any formal admissions to put before Your Honour now." Therefore, as stated above, I will consider this as an issue to be resolved.

[9] The defence consented to the Court receiving the evidence of Michayla Robinson (14 years old) and Evan Harding (17 years old) pursuant to s. 715.1 (1) of the Criminal Code. This section provides that:

In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

[10] They both testified and adopted the contents of their statements as being true and correct. Evan gave his statement to the Officer-in-charge of the investigation, Officer Rogan, on March 17, 2012. Michayla gave her's to Officer Rogan on March 18, 2012. The DVDs and transcripts of both statements are exhibits. My review of their evidence includes what they said in their statements as well as in their testimony.

[11] Michayla Robinson testified on closed circuit television. The following is what she said in her taped statement as well as her testimony in court.

[12] On the day of the accident she had been best friends with Sarah Harding since they were in grade three.

[13] About one week before the accident Sarah was "joking about when she would just walk out and then stick her hand out and I didn't walk out into the middle of the road and while cars are coming and just pretend, I mean I make them stop by sticking her hand out- but that was just a joke…" (page 22, statement, March 18, 2012). She did not think that this is what Sarah was doing on the day that Mr. Malkowski hit her. She did not see her put her hand out before she ran across the road.

[14] One day prior to the accident, she and Sarah were at a corner waiting for the signal light to change so they could cross the street. Sarah joked about walking across the street without waiting for the light to change, however, this was a joke and she never did it.

[15] On the day of the accident, Michayla went to visit Sarah and her family because they had just moved in to their new home the day before. She, Sarah and Sarah's brother, Evan, decided to go get ice cream at a local ice cream parlour. They left the house at about 8:00 p.m. They walked down Sarah's street, Huntsmill Drive, towards Airport Road.

[16] Along their way to Airport Road they teased Sarah about her having to go to school on a different bus because she had just moved to a new neighbourhood. However, Sarah was not upset by their teasing. She seemed pretty happy about the move.

[17] They turned southbound on Airport Road and walked against traffic on the gravel shoulder. The sun had just gone down, but "it wasn't too dark so you could still see."

[18] In her videotaped statement she stated that as they were walking, her brother asked Sarah if she knew where she was going. She said that she did. Then they "were just walking she just darted across the street." Without saying anything Sarah "just sort of ran straight into the road (page 14, statement, March 18, 2012).

[19] Michayla guessed that "she wanted to like maybe freak us out or scare us – I don't know". She also opined that "maybe it was just like to make us laugh or Evan to yell at her – I don't know," or because the ice cream parlour was on the other side of the road. Michayla said that Sarah was "acting perfectly fine before when we were walking – she just sort of ran into the street and then…I don't know, maybe she got it from the book she read…"

[20] The book is The Outsiders, which they read in school. She described the plot as follows:

…it's mostly about two different groups of people and they like don't get along very well and so one of the groups of people are just trying to fit in and trying to be like them and they're not very different, so-and then…in the house or at church fire somebody saves a person and then that person ends up dying and then I know the person kills themselves-I mean, as a – yeah because they miss that person a lot.

[21] She saw a few cars coming towards them, but none coming from behind them, which is the direction that Mr. Malkowski was coming from. There were "no cars until the one that hit her…" There was a hill and the car that hit her "came out of nowhere". She thought that maybe the car came out of nowhere because "it came up the hill and didn't see her or something and the person kept on driving until he or she saw her."

[22] It made a "really loud sound", like "a book being slammed down, but amplified." She believed that the car was in the proper lane. She described it in this manner:

So then a car came and hit her and we weren't sure if she was like made it across or not but we heard a really loud noise and then um I don't know if her shoe fell off or something but yeah, so then her brother started running and we just ran back to the house to get help and yeah, we didn't stay with her because it was out in the middle of the road and it would be like more cars coming…

[23] She said that it was too dark to see what the car looked like. She could just tell that its lights were "on really bright. I'm not sure." She did not hear any skidding, "just a loud noise when it hit her."

[24] She saw Sarah running for about a second before Mr. Malkowski hit her. She was around the middle of the road – she almost made it to the other side. She got hit on "the side that, um, the cars were supposed to go", which I interpret as meaning that Mr. Malkowski was in the proper lane when he hit her.

[25] Evan Harding, Sarah's brother, testified on closed circuit television. The following is what he said in his taped statement as well as his testimony in court.

[26] The area was new to them. This was the first time that they had walked around their new neighbourhood. He was not sure whether one time approximately a year before, Sarah had walked down their new street, Huntsmill Drive. He did not think that she had ever walked on Airport Road though. He said that he knew that Airport Road was a busy road. He was "feeling really unsure about it and really worried…I just didn't think it would be an issue."

[27] They were all in a good mood when they went for ice cream. His sister was looking forward to watching The Outsiders that night because she read the book in school and saw the movie in class. She "pretty well fell in love with it and she was gonna watch it that night."

[28] They walked down Huntsmill Road and turned onto Airport Road. The "stars were just appearing but the sun hadn't completely set. The sky was blue on the horizon", but aside from that the sky was dark. It was really dark. As they walked down Airport Road Sarah was in front, a meter or two ahead of him and Michayla was between half of a meter and a meter behind him. They were all on the shoulder of the road, a couple of feet from where the asphalt started. They were joking around and then suddenly "Sarah just dashed and was hit." They had walked about 10 metres on Airport Road.

[29] In his statement he said,

There was no traffic in the, the lane going north, right? Yeah. In the first lane that she went back across and then in the next one, it looked like she would have made it, so I'm guessing that's what she thought, but there was this guy speeding from not half a kilometre, maybe a quarter kilometer up the road and he was going really, really fast and then she miscalculated and it all leads to the same end.

[30] In cross-examination, he said that Sarah looked both ways before running across the road. He had never mentioned this before to anyone in authority. He explained that he "may not have mentioned it because I may have been stressed at the time or when it came to my mind it may have passed." The defence pointed out to him that he did not mention it in his examination-in-chief. He replied that he "didn't notice that I hadn't said it in the statement." He said "apparently it passed my mind."

[31] At first, he said that he could not remember when, but he was sure that he told his parents. Then he stated that he was sure that he told his mother, but not sure if he told his father. He acknowledged that he and his parents are suing Mr. Malkowski and his family.

[32] He stated that the car was going so fast that "…debris was flying. I don't know what the debris was, if it was her or if it was the shrapnel, or whatever, but it was flying, I would say four metres in the air." He said that the car was going "highway speeds…like a 100, 120. He was going really fast, a lot faster than necessary."

[33] At first, in his statement he said that he did not see the car's headlights. He did not think that there were headlights, but he admitted to being "fuzzy at the time." Later, he said that he saw his sister get hit and that "there were definitely headlights on in the, in the car. I remember seeing them coming down the street. I just don't remember seeing her get hit. Oh, they probably went out immediately because she was hit by it."

[34] He testified that he was aware that Mr. Malkowski was on the road because he "had seen [his] headlights further down the road, much further down the road, but I figured because it was so far away it wouldn't have been much of an issue."

[35] When Sarah ran across the road he looked to see if there was a car coming. He saw that there was, but it was sufficiently down the road that he did not think that it would hit her. It looked "as though the car was far enough away that it was completely safe to cross." But he acknowledged that he could have told Officer McGuire, as the officer noted, that the car "came out of nowhere".

[36] He heard the car coming. He described the sound "like rubber on asphalt." Then he "heard the impact which sounded like just a big, like some sort of force going against Styrofoam." It was a very brief time between when Sarah started running across the road and when Mr. Malkowski hit her.

[37] He stated that after Mr. Malkowski hit Sarah he saw a lot of debris flying around "but before I could get a good look at anything, I was like freaking out, screaming, like, my vision was blurry and shaking and I turned around and looked at Mikayla (sic) and she was jaw dropped, screaming and I basically just said, we gotta go, we gotta tell somebody…" He and Michayla ran back to the house to get help.

[38] In his statement he said that the debris went four metres in the air, but in his testimony he corrected this and said that although he saw debris in the air, he was not sure that it went up as high as four metres.

[39] He, too, stated that Mr. Malkowski was in the proper lane when he hit Sarah. He calculated that he hit her at about 8:08 p.m. or 8:09 pm. because when he and Michayla ran back to his house and they got into his parent's car to go back to the scene, the clock in the car said that it was 8:13 p.m.

[40] Pierre Farrugia testified next. He is a Roman Catholic priest. On the day of the incident he was driving northbound on Airport Road. It was dark. There was not much traffic and the road conditions were normal and dry.

[41] He saw headlights swerving very frantically, "trying to almost keep control, like, stay on the road…" This alarmed him. He said that "the car had, travelling southbound on, on Airport Road got close enough to me that when it finally pulled a sharp left right in front of me and went into a ditch, flipped over onto other, onto parked cars of this residence…" He said that the car was "going pretty quick." It was 20 – 30 feet from him when it turned in front of him.

[42] As he pulled over onto the shoulder of the road he saw running shoes, broken glass and then saw Sarah laying in the middle of the shoulder to his right. She was not breathing so he administered the Last Rites to her. Soon after that, others came to offer assistance.

[43] The accused's brother, Mathew Malkowski, testified. He was selling a car on the day in question and arranged to meet the buyer at McDonald's in Orangeville. He asked his brother to follow him in his car and give him a ride home after the sale.

[44] His brother had plans that evening to meet friends "Around after nine o'clock" for a birthday celebration." However, he was not in a rush to get there.

[45] It took 15-20 minutes at McDonald's to complete the sale and they left. He does not know what time they left, but he remembered that it was already dark out.

[46] On the way back, he was the passenger. They spoke a bit about this brother's plans for the night and the rest of the time he was setting up a playlist on his brother's phone and texting some friends. He, Mathew, was not watching the road.

[47] He was on the phone when he heard his brother scream something. He looked up and saw that the car was going out of control. The car swerved and something hit it on the left side. His brother lost control of the car and it flipped over.

[48] He did not know how fast his brother was driving because he was not paying attention. He did not see anyone on the road prior to the impact. He said that it was "pitch black".

[49] He said that his brother has a perfect driving record, no criminal record, and is a prudent and responsible driver. He would have said something to him had he felt uncomfortable with how fast he was driving.

[50] The next witness, Richard Gallant, was driving northbound on Airport Road at approximately 8:05 PM. He was on a portion of the road that goes uphill. It was twilight; he could only see the orange sky at the top of the hill. The sides of the road were "fairly dark". Traffic was "fairly light".

[51] He saw Mr. Malkowski driving towards him. The driver's side headlight of Mr. Malkowski's vehicle flickered for one second and caught his eye. Half of a second later Mr. Malkowski swerved into the ditch on his (Mr. Malkowski's) side of the road.

[52] Mr. Malkowski's car came out of the ditch going backwards, crossed 30 feet in front of him and went into the ditch next to Mr. Gallant as he drove by. He heard Mr. Malkowski hit a culvert and the ditch.

[53] As Mr. Gallant drove by he saw gravel on the road, a couple of shoes in the southbound lane near the middle of the road and Sarah's body slowly coming to rest at the ditch on the northbound shoulder of the road.

[54] At about 8 PM Dennis Dorian and his wife, Joanne, were driving northbound on Airport Road. Mr Dorian saw Mr. Malkowski's car coming at them from about 100 feet away. Mr. Malkowski was driving southbound when he crossed over into Mr. Dorian's lane and headed towards them. Mr. Malkowski's car was rubbing against the asphalt sending sparks out from the bottom of the car.

[55] Mr. Malkowski crossed the northbound Lane. Mr. Dorian pulled over by the guardrail next to a used car lot. Mr. Malkowski landed in the lot about 30 feet to the right of Mr. Dorian.

[56] Mr. Dorian told his wife to call 911 while he went over to Mr. Malkowski's car to check on the occupants. He determined that they were not seriously injured. They told Mr. Dorian that they had hit someone so they all ran up the street and found Sarah on the shoulder of the road.

[57] He could not say how fast Mr. Malkowski driving.

[58] Joanne Dorian testified that it was just starting to get dark. She thought that there were a few streetlights there, but stated that it was "kind of a dark area". In contrast to all of the other witnesses she stated that traffic conditions were very busy on Airport Road at this time.

[59] She described Mr. Malkowski coming at them "…as a torpedo. We could see the sparks flying." He was "more spinning than going end-to-end." When he was spinning he was airborne. He was going fast, but she couldn't calculate the speed because the car was airborne.

[60] She was concerned that he was going to hit them. He crossed the road in front of them and hit either a mailbox or a parked car in the used car lot. She called 911 immediately. It was 8:07 PM. While she was on the phone with the 911 operator she ran up the road and saw Sarah lying on the shoulder.

[61] Courtney McKechnie, who is a certified paramedic in Ontario, testified that she and her mother were traveling southbound on Airport Road. Like, Ms. Dorian, Ms. McKechnie testified that there was "a fair decent amount of traffic." It was "definitely dark". She came upon the scene and pulled over.

[62] She found Sarah lying on the east side shoulder of the road. She tried to revive her, but could not. When the firefighters and paramedics arrived she helped them put Sarah in the ambulance.

[63] Ms. McKechnie said that Sarah was wearing jeans and a "darker [gray] hoodie".

[64] Officer McGuire testified that he assisted in the investigation of this incident in his capacity as a Technical Collision Investigator. He characterized his role as "almost a helper to the Reconstructionist". This was his first case.

[65] The Crown did not produce him as an expert witness; however, she canvassed his qualifications on pages 48-51 of the transcript of August 22, 2013. The defence did not object to him giving evidence.

[66] As a Technical Collision Investigator, he performs vehicle examinations, takes photographs of the scene, "notes to the scene evidence", and takes measurements of the scene. But in the case at bar, Officer McLaughlin did the measurements.

[67] Although he is not a Qualified Accident Reconstructionist, he collaborated with Officer McLaughlin, the Qualified Accident Reconstructionist, in writing the Reconstruction Report. With Officer McLaughlin's input he wrote the sections that deal with street locations, weather, some of the scene evidence, and the vehicle examination.

[68] He looked at the table of contents of the Report and identified the following sections as the ones that he wrote: (1) Summary Involvement Incident Synopsis, (2) Basis of Analysis, (3) General Collision Scene, (4) Weather, (5) Lighting, (6) Involved Persons and Vehicles and, (7) Vehicle Examination and Scene Evidence.

[69] Officer McGuire did not write the speed analysis or collision sections of the report.

[70] He arrived on the scene at 10:05 PM. He walked through the scene with Officer McLaughlin. On pages 43 – 48 he described several sources of information that he used in writing his portion of the Report. These are not in issue so I will not discuss them.

[71] One of his main functions was to take pictures of the scene. They are contained in Tab 2 of the Report. He reviewed the photographs, many in great detail. In some of the photographs there is fog, but he testified that there was no fog at the time that Mr. Malkowski hit Sarah. It rolled in after Officer McGuire arrived on the scene.

[72] He and Officer McLaughlin were not able to determine where on the road Mr. Malkowski hit Sarah. There was no braking prior to the impact. All they could determine was "two diverging paths post-impact."

[73] Officer McLaughlin testified that he has been a member of the OPP since 1990. Before that, he worked for about eight years as an automobile and truck mechanic. He is still licensed as an automotive technician and a truck and coach technician. His duties with the OPP include being a Commercial Vehicle Safety Alliance Inspector.

[74] In addition, he is a Forensic Mechanic for vehicles involved in serious collisions or criminal investigations.

[75] In 1995, he was qualified as a Technical Traffic Collision Investigator. In 1999, he was qualified as a Collision Reconstructionist. He has been the initial investigator in approximately 370 cases. He was an assistant investigator in approximately 600 cases. These are cases that involve serious injuries.

[76] He has testified as an expert in collision investigation and mechanical issues 23 times in the Superior Court of Justice. The last time was August 2012. He has testified as an expert in these fields 16 times in the Ontario Court of Justice, in Provincial Offences Court, 29 times, five times at inquests, and twice in civil cases.

[77] Officer McLaughlin has performed approximately 540 mechanical inspections of vehicles that have been in collisions.

[78] On consent, Officer McLaughlin testified as an expert in collision investigation and collision reconstruction, and driver perception reaction time. He wrote a Collision Reconstruction Report that is Exhibit 12.

[79] He used three methods to calculate the speed at which Mr. Malkowski was driving when he hit Sarah: (1) Airbag Control Module, (2) Slide to Stop Formula, (3) Pedestrian Speed Calculation Formula. His analysis begins at page 19 of his Report.

Airbag Control Module (pages 19, 20, Report)

[80] The first method that Officer McLaughlin used is the Airbag Control Module. He retrieved data from the "non-deployment file" of Mr. Malkowski's car's airbag control module. This is the file in the module that pertains to cases where the airbags do not deploy, as in the case at bar.

[81] The Airbag Control Module method "only reflects the change in a longitudinal velocity change, longitudinal being the front to back direction of the vehicle. If the vehicle is going sideways it's, it doesn't account for that. It is only recording the information forward and backwards."

[82] The airbag control module can sense when "there's an event happening" and it "wakes up" to monitor it for the purpose of deciding whether to deploy the airbags or the seat belt pretensioner (reels in the seat belt and locks it into position) or just monitor the situation. If it decides that there is no major incident occurring then it shuts back down. In the case at bar, the module woke up because it sensed a loss of speed.

[83] Officer McLaughlin testified that "the module…woke up because it…sensed that there is a change in speed loss that is, that something is happening and is monitoring it and is, whatever its original speed is during this, while it's awake, it determined that it lost 2.52 miles per hour in that 120 milliseconds after it woke up to monitor the event" (page 29, lines 3 – 8, August 29, 2013 transcript).

[84] I would be tempted to interpret this to mean that after the module woke up, it took it 120 milliseconds to begin recording the vehicle's speed. However, right after he said this, he stated that the module records what the vehicle's speed was five seconds before the module woke up.

[85] The module also measured the percentage of the gas pedal that was being depressed during the five seconds before the module woke up. After reviewing the data, Officer McLaughlin determined that Mr. Malkowski was depressing the gas pedal at 27% at the 5 and 4 second mark, at 32% at the 3 and 2 second mark and at 22% at the one second mark. This indicates that "a driver is operating the vehicle". The increase in pressure means that the driver applied more pressure to the gas pedal and the decrease in pressure indicates that the driver let off of the gas pedal.

[86] The airbag control module also recorded that for the 8 seconds before it woke up Mr. Malkowski was not applying the brakes.

[87] In the case at bar, the airbag control module woke up because it sensed a decrease in speed. It recorded Mr. Malkowski's speed five seconds prior to the speed reduction. It indicates that he was driving 96 MPH or 154 KPH. When Officer McLaughlin adjusted this speed to compensate for the fact that Mr. Malkowski's car had tires that were different from what the manufacturer put on the car, it reduces the speed to 95 MPH or 152 KPH.

[88] This method of speed measurement "can be affected by…various factors including, but not limited to…significant changes in the tires' rolling radius, the final drive axle ratio changes, and wheel lock-up and wheel slip."

[89] Concerning the tires' rolling radius, as explained above, Officer McLaughlin adjusted the module's speed calculation as a result of Mr. Malkowski having put different tires on the vehicle than what the manufacturer put on.

[90] With regard to "final drive axle ratio changes", Officer McLaughlin explained that "The transmission has gearing in it to help you through the different gears to build up speed. The final gear drive axle ratio is the final, the transmission revolves at so many revolutions and that final drive tells the wheels how fast they are going to rotate" (page 25, lines 25 – 29, transcript, August 29, 2013).

[91] Later, he attempted to explain this once more: "The transmission is set up with different gearing. So the input from the engine turns the transmission gears at a certain speed and it's not a direct to the wheel, so whatever the engine's doing is not what the wheel is turning. The transmission gears allow you to build up different speeds through those different gear ratios. The final drive is your normal drive high output to the wheels at a gear ratio" (page 39, lines 22 – 28, transcript, January 27, 2014).

[92] He said that it is complicated to change the gearing in an automatic transmission. In order for such a change to effect the airbag control module's calculation of speed there would have to be "a significant change of gearing." He added that "If you were looking at a car designed for a, a different application, such as drag racing or that, then it would have different gear changes that could alter the speeds."

[93] Officer McLaughlin testified that he did not have to consider this factor in the case at bar because he did not see "modifications that the vehicle appeared to have been changed from what the manufacturer originally installed in the vehicle."

[94] In order to determine if such a change had been made to Mr. Malkowski's car he inspected the car visually at the scene. Based solely on this inspection he concluded that "it was the factory original."

[95] He did not see any evidence that the transmission of Mr. Malkowski's vehicle had been modified. He said that he "looked at the other part of the transmission". He did not make a note of the model number. He said that from his experience it looked like the original transmission. He did not make a note of his inspection of the transmission, but this is his "normal procedure".

[96] With regard to "wheel lock-up and wheel slip", he explained that it occurs "when the wheels lose traction, whether it be a road surface, going airborne, braking, can cause the wheels to slip or lock-up", which can change the speed that the air bag control module records. This occurred partially in the case at bar because for portions of its traverse Mr. Malkowski's vehicle was airborne. However, for other portions the wheels were rolling on the pavement.

Slide to Stop Formula (page 21, Report)

[97] This formula determines a vehicle's speed by measuring the distance from the start of its tire marks from braking to where the vehicle stops. However, Officer McLaughlin agreed that there was no evidence that Mr. Malkowski ever applied his brakes.

[98] Officer McLaughlin described somewhat confusingly the factual basis to which he applied the formula:

[Mr. Malkowski's car] left tire marks as it went on to the shoulder, as it crossed back over the road into the ditch and …came over the driveway and then came to a stop in the east side ditch (page 36, lines 7 – 10, transcript, August 29, 2013). [Emphasis added]

[99] These tire marks were,

…on the west shoulder that started at the road edge, went off onto the shoulder and then came back out onto the pavement, continued across the pavement into the east shoulder and ditch and then the vehicle went over the driveway of the used car lot and came to its final rest position on the southeast side of the driveway (page 36, lines 15 – 20, transcript, August 29, 2013).

[100] He said that Mr. Malkowski's vehicle travelled 134.5 metres in total.

[101] When he applied this formula, Officer McLaughlin "came up with a speed of approximately 156 kilometres an hour which is basically that if a vehicle was travelling down the road and reacted and applied the brakes and went over the road surface for…134.5 metres and came to a stop, that vehicle would have been travelling at 156 kilometres an hour" (page 40, lines 1 – 6, transcript, August 29, 2013).

[102] He took into consideration that in addition to the asphalt, Mr. Malkowski travelled over gravel, and was airborne at one point before his car finally stopped. The tire marks to which he referred were from Mr. Malkowski's car "going through the grave and…sliding sideways across the road."

[103] Notwithstanding that there was no evidence that Mr. Malkowski applied his brakes, braking was involved in his calculations. He "had braking happening" where he saw the tire marks, although he acknowledged that "you don't have to be braking to create tire marks."

[104] Defence counsel suggested to him that he "just assumed that was where the braking occurred without any other supporting evidence." Officer McLaughlin gave the following confusing explanation:

For that calculation it has a comparison to another vehicle travelling along there that I know the vehicle was at that point for it to go from that point to where it stopped if it braked that vehicle would have been travelling at that speed.

[105] Defence counsel pursued him and asserted: "That's right. If it braked." Officer McLaughlin replied, "Yes" and agreed that "we don't have any of that as known factors in our case…"

[106] In spite of this, Officer McLaughlin maintained that his calculation was not meaningless. Defence counsel pounced on this contention and initiated the following exchange:

Q. Well, sure it's meaningless, because the tire marks, you have no evidence that their caused by breaking, right?

A. Correct.

Q. And you know that the entirety of the vehicle wasn't on asphalt for the period of time, you know that?

A. Yes.

Q. Okay. So those are two calculations and then also there is no evidence of breaking at all?

A. Yes.

Q. So tell me how does this calculation have any meaning?

A. It's a comparison.

Q. Well, who cares about a comparison? We are looking at the reality of this case, okay? For you to start the, the, the clock ticking you have to say, "I believe the braking occurred at this point", right?

A. If I was…

Q. It has to

A. ...dealing with…

Q. …start somewhere.

A. …this specific vehicle, yes.

Q. Yeah, well it has to start somewhere and this is what you are doing here in, in this speed determination number two, we're talking about this vehicle.

A. Yes.

Q. So this isn't a hypothetical. You're coming to court with this calculation on a very serious charge and you have no clue when the braking started, fair?

A. Yes.

Q. You have no clue of braking occurred?

A. Yes.

Q. And you say all this stuff has to do with asphalt, a good part of it, right?

A. Yes.

Q. You, you know that's not true?

A. Yes.

[107] In re-examination, he explained that he made the assumption that Mr. Malkowski was applying the brakes because,

…I know the Chev Cavalier in this incident was at this certain point from the tire marks. I know that it was at that point. It was – the person had already reacted. Their reaction was to steer. So if their reaction had been to apply the brake pedal, in comparison a vehicle going that same distance would be travelling at this speed to cover that distance…If that vehicle on the roadway had applied their brakes and gone that same distance…this would be their speed.

[108] This seems to indicate that his calculation was for a vehicle that applied the brakes, not for one that did not as in the case at bar. Officer McLaughlin stated that it is "a standard of a vehicle at a certain point applying brakes on asphalt."

[109] Officer McLaughlin assigned a margin of error of 15% to his calculation. The Crown asked him how he arrived at this figure. He explained,

Just sitting here thinking of it that the, you have a different value slowing down difference allowance on the gravel so that is going to change the speed of the actual calculation The speed of the actual calculation is on the asphalt surface. It is not on the grass, the gravel which is going to lower the speed…that's why I'm saying that this variation could be, you know, - 15 percent (page 41, lines 22 – 32, transcript, August 29, 2013).

[110] He stated that "The other things to take into effect is [sic] how much speed also was lost on the additional impacts which could raise it up." His calculation did not take into account that Mr. Malkowski's car had a "significant impact with the ditch and signposts in that area that that speed loss didn't get added in" (page 42, lines 13 – 15, transcript, August 29, 2013).

Pedestrian Speed Calculation (page 22, Report)

[111] This method uses the distance that a pedestrian travels after having been hit by an object. In the case at bar, Officer McLaughlin based his calculation on how far Sarah was thrown after Mr. Malkowski hit her.

[112] However, he stated that he did not know where the "actual area of impact was for the starting point."

[113] The reason that he speaks of "area of impact" as opposed to "point" of impact is that when two things collide they are projected away from the actual point at which they first made contact. Therefore, " In the real world with collisions, the evidence we see is created usually after the two vehicles or vehicle and object have impacted each other and are being deformed, pieces of metal are scraping the road, et cetera, that collision has already happened…So that's in the area that the collision happened. It's not the actual point where the two first made contact" (page 44, lines 25 – 31, transcript, August 29, 2013).

[114] Since he did not know the area of impact in the case at bar, he "used where I saw physical evidence of blood and tissue, so I know that Sarah Harding was injured at that point, and used that as a distance to start my calculation to the end point of where her body was. That is where she's leaving biological matter on the road that indicates where she's travelling from and that she had been over that point during her travel" (page 45, lines 7 – 10; 14 – 16, transcript, August 29, 2013).

[115] On page 23 of his report, he states that the speed that he calculated using this method used,

the known distance from tissue to body as there was no evidence observed to indicate location of impact that should have been prior to the biological evidence being left and also doesn't account for any travel time/distance while the pedestrian was entangled in the vehicles fender and windshield before separating from each other that would make the speed higher.

[116] Other factors that he considers in using this method are the weight of the pedestrian, the height of the pedestrian's centre of mass, the throw distance, vehicle weight, roadway drag, coefficient of friction, height of the vehicle's leading edge and the pedestrian's take-off angle.

[117] Based on all of this, the beginning point for his first set of calculations "was for a throw distance of 48 metres." He based this on "the first part of the blood and tissue." This was 35 metres from the southeast edge of Huntsmill Drive.

[118] Officer McLaughlin said that there are 28 possible formulae that can be applied to the facts in the case at bar to determine how fast Mr. Malkowski was driving when he hit Sarah. They are the product of various collision reconstruction studies and tests. The studies are peer reviewed and published by the Society of Automotive Engineers.

[119] These methods of calculation determine the pedestrian's speed after impact, which is then used to determine the vehicle's speed at the point of impact.

[120] Officer McLaughlin employed all 28 formulae and averaged the speeds that they produced. The average "vehicle speed and pedestrian speed" was 84.5 kilometres an hour - his Report says 84.2, but it is a typing error (page 48, lines 6 – 7, transcript, August 29, 2013).

[121] The highest speed, 173.2 kilometres an hour, was produced by the Sturtz V-Contour formula (page 22, Report).

[122] The lowest speed, 40.2 kilometres an hour, was produced by the Schmidt & Nagel formula (page 22, Report).

[123] Officer McLaughlin characterized the authors of these two tests as experts and the authors of the 26 other tests as reputable in their field.

[124] The Crown asked him if this type of averaging was the accepted practice in the reconstruction field. He stated,

It's averaging what all these calculations are doing. I use these calculations and show them all. If I decided to pick one formula and somebody'd asked well, why didn't you use this formula? So, I'm putting all the formulas out there and saying, this is what they are coming up with (page 44, lines 25 – 31, transcript, August 29, 2013).

[125] He acknowledged that this average speed is inconsistent with the speed derived from the other two speed calculation methods. The inconsistency occurred because when Mr. Malkowski hit Sarah, there was not a "full transfer" of his car's speed into Sarah. He explained the different result this way,

The [ Pedestrian Speed Calculations – 3 rd method] are being based on the fact that in physics, if a body is standing still and another object comes along and strikes that body, and it's, it's imparting its speed onto that person in this case. These calculations are being based on the full vehicle being in contact with the body imparting all of its speed onto that person. In this case, the damage was to the left from corner of the vehicle. There's indications on the vehicle that the fender was crumpled from this impact with pedestrian, so the pedestrian is not getting the full momentum from the vehicle. It's basically getting a side wipe of her, and there's some interaction between the two of the damaging of the fender, the, the body injuries, et cetera. There's a head strike to the windshield on the driver's side of the car and then the driver's mirror is gone, off the outside of the car, which indicates that while the two were connect together during this incident, that the car was still going past Sarah Harding as she's going down the side of the vehicle, so not all the speed is being imparted into her to throw her over to the side of the road (pages 49, lines 18 – 32; 50, lines 1- 4, transcript, August 29, 2013).

[126] Officer McLaughlin explained an additional factor that accounts for the difference in speed calculation in the following manner, "…the first measurement I'm taking is where Sarah Harding is losing body tissue and blood. I know that the impact has already occurred at that point…So that is a distance that I didn't guess at to put into this calculation" (pages 50, lines 11 – 17; 50, transcript, August 29, 2013).

[127] The Crown asked the officer if "we had evidence that Sarah Harding was approximately 15 metres south of Huntsmill Drive, how would that affect the speed calculation…in [this third method of speed calculation?"]

[128] Officer McLaughlin concluded that the highest speed would be 133.1 kilometres an hour, the lowest speed would be 75.6 kilometres an hour, and the average speed would be 107.4 kilometres an hour.

[129] With regard to why the Sturtz V-Contour formula produced the highest speed calculation, he said that "The formulas that they're using, you would have to go through each paper to see what they are doing, whether it's in a controlled environment, using dummies, how the vehicle contacted the pedestrian and the reason it varies is that for what they did the test of, the calculation that they come up with works for that scenario." Another scenario might not match what somebody else is doing."

[130] Since he does not know all of the variables in the case at bar, he used various calculations to provide a range.

[131] The defence questioned Officer McLaughlin about the 28 methods of calculation that he used when he employed the Pedestrian Speed Calculation method in this case.

[132] The officer agreed that he used the same facts for each of the calculations and obtained different results depending on each particular formula's "methodology of calculation."

[133] He agreed with the defence's assertion that "any of these answers could be right and any of them could be wrong…We…have no clue based on this type of speed determination at page 22 [Report], what the accurate answer is, fair?" (page 8, lines 24 – 26, transcript, January 27, 2014).

[134] Officer McLaughlin also acknowledged that not only the result derived from his calculation using the Sturtz V-Contour formula (highest speed) could be wrong, but that "quite a few of these formulas might not be accurate" (page 9, lines 30 -31, transcript, January 27, 2014).

[135] Further, he agreed that "…when they're sort of consistently a hundred or less, is it fair to say that on a balance of probabilities they may be more accurate than Sturtz" (page 10, lines 30 -4, transcript, January 27, 2014).

Officer McLaughlin's Conclusion

[136] Officer McLaughlin's conclusion was that Mr. Malkowski hit Sarah because he was driving "at an excessive speed for the speed zone as [he] was entering a village" (page 29, Report).

[137] In addition to the above, Officer McLaughlin gave a lot of evidence with regard to high beam and low beam headlights, much of which he obtained from the internet. However, he could not ascertain whether Mr. Malkowski's headlights were on or off so this evidence is not helpful. The civilian evidence regarding Mr. Malkowski's headlights indicates that he had them on, but no one could say whether he had on the high or low beams.

Driver Perception Reaction Time (PRT)

[138] Officer McLaughlin defined "Driver Perception Reaction Time" this way:

It's for somebody to perceive a hazard and once they've perceived the hazard, react to it, and that is the time from when they perceived it to actually reacting by whatever method they react to the situation or hazard (page 54, lines 25-29, transcript, August 29, 2013. This number takes into account all of the variables that affect PRT, such as, age, lighting, driving experience etc. In re-examination, he stated that the PRT range is "usually .5 to 3 seconds."

This seems inconsistent with his chart.

[139] Officer McLaughlin testified that it would take a 13 year old girl approximately 5 seconds to run across the road. It would take 1.5 seconds to run from the shoulder of the road to the middle.

[140] His calculation of the speed of a 13 year old girl is based on various studies that "have been done on different aged children, adults, etcetera, come up with time that they would be – how fast they would be running, jogging, waking, etcetera, and you kind of use an average of those numbers to say that, you know, she might be travelling at three-and-a-half metres per second, four metres per second. It's a range area." He said that the studies vary with regard to whether they measure speed from a dead stop or when the person is in full flight.

[141] Some of the studies control for height and weight and others "just [monitor] people running…" They do not consider if the person is a track and field athlete or a video game person that doesn't exercise, etcetera."

[142] In addition, he based his calculation on "the normal charts that I have seen for females, youth running is somewhere between three-and-a-half metres per second up to four metres per second."

[143] He did not do any calculation regarding how fast Sarah was running. He did not know where on the road she was when she started running. In addition, there is no evidence where the area of impact was. Consequently, there is no evidence concerning where she was on the road when Mr. Malkowski hit her, at what angle she was running, or how far into the road she had run. I note that Evan Harding's diagram (Exhibit 6) shows that she ran across the road in almost a straight line.

[144] Officer McLaughlin testified that a person's Perception Reaction Time is the same at any speed. The defence asked him hypothetically that if Sarah "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?" Officer McLaughlin agreed. He conceded that in this scenario it is possible that Sarah would have gotten hit.

[145] Defence counsel rephrased the question slightly and put this hypothetical to him: "if my client was travelling at 50 kilometres an hour, 80 kilometres an hour, doesn't matter what point in time he was driving that speed, I suggest to you if this young lady, in that 1.5 second movement darted out in the middle of the road, it would be very difficult to avoid her?"

[146] Officer McLaughlin replied that "It would be an opinion as to whether he could avoid or be at a lesser speed for less injuries."

[147] Constable Rogan was the last witness for the Crown. He is the Officer –in-Charge of the investigation.

[148] He arrived at the scene at 8:21 PM. He described the scene in much the same way as the other witnesses. He saw that Sarah was wearing dark denim pants and a sweater or hoodie with blue and gray stripes.

[149] March 17, 2012 was a Saturday - St. Patrick's day. The area of Airport Road where this occurred was "going into" Caledon East Village. It was a beautiful day. People were "out and about" because of the nice weather. It was also March break.

[150] At this location, Airport Road is a regional road. The Collision Reconstruction Report And Collision Photographs, indicates that it is a "two lane north south road" with wide gravel shoulders on both sides of the road. Throughout the collision scene the speed limit is 50 KPH (page 7).

[151] With regard to the traffic, he said that "there was traffic on the roads, wasn't overly busy, but it wasn't quiet either.

[152] It was dark when he arrived.

[153] He went to the hospital in the ambulance with Sarah. Afterwards, he interviewed witnesses. He took a videotaped statement from the Malkowski brothers on March 22, 2012.

[154] On March 30, 2012 Officer Rogan went to McDonald's in Orangeville and viewed a surveillance tape that showed Mr. Malkowski (the accused) ordering food at 7:45 p.m. He walked out of McDonald's at 7:47 p.m. The tape showed that outside there was a flatbed tow truck that he thinks was towing the car that Mr. Malkowski's brother, Matthew, was selling. The tow truck left McDonald's at 8:01:56 p.m.

[155] He conceded that he could not verify the accuracy of the time on the video. He also acknowledged that he could not identify the persons that were on the video around the tow truck. There is no evidence that Mr. Malkowski was at McDonald's after 7:47 p.m.

[156] Officer Rogan asked the McDonald's staff to give him a copy of the video but they inadvertently erased this portion of the video in the process so it has been lost.

[157] Officer Rogan's GPS indicated that it would take approximately 21 minutes to get to Huntsmill Road from McDonald's. He did a Google search that showed the distance to be 20.7 kilometres. Mathew Malkowski testified that they drove down Highway 9 to Airport Road where they turned off of Highway 9 to go south on Airport Road. The officer knows that there are five traffic lights between McDonalds and Airport Road where Mr. Malkowski turned. The speed limit on this route ranges from 60 to 80 kilometres an hour.

[158] After further investigation, he concluded that he was going to arrest Mr. Malkowski for "dangerous operation cause death." He arranged for Mr. Malkowski to go to the police station. He went on May 14, 2012 and Officer Rogan arrested him.

[159] That was all of the evidence for the Crown. The defense did not call evidence.

Analysis

The Law

[160] The Criminal Code defines dangerous driving as operating a motor vehicle,

in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place (s. 249 (1) (a)).

[161] In R. v Roy 2012 SCC 26, [2012] 2 S.C.R. 60, the Supreme Court of Canada explained the elements of the offence of dangerous driving.

Actus Reus

[162] The actus reus of dangerous driving is as it is set out in s. 249 (1) (a). The Court stated that the question in this regard is:

…whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences… (para. 34)

[163] The Court reiterated Charron J.'s caution in R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49, that "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving" (para. 34).

[164] In Roy, Mr. Justice Cromwell pointed out that "A manner of driving can righty be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident" (para. 34).

[165] To summarize, "the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving" (para. 35).

Mens Rea

[166] In Roy, the Court held that "The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48 )."

[167] Justice Cromwell said that,

"It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances" (para. 36 – Emphasis in original).

Proof of the "Marked Departure" fault element

[168] Proof of "the required objective fault element…will generally be a matter of drawing inferences from all of the circumstances" (para. 39).

[169] The trier of fact may infer "the required objective mens rea…from the fact that the accused drove in a manner that constituted a marked departure from the norm" (para. 40).

[170] Where the Court finds that the accused's manner of driving was a marked departure from the norm, it,

must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving… The underlying premise of finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity" ( Beatty , at para. 37 , cited in Roy at para. 40 ). (Emphasis added)

[171] The question is "whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited" (para. 41).

[172] Justice Cromwell stated that "Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (citations omitted)…proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference" (para. 42).

[173] The defence cited cases in which the courts found the accused's driving serious enough to establish the actus reus of dangerous driving, but not to establish the mens rea because it fell below that which is required to constitute a marked departure from the norm.

[174] For example, in R. v. Nielsen [2012] B.C.J. No. 2213, the accused, an experienced truck driver, was negotiating a downhill S-curve in his tractor trailer at too fast a speed in difficult winter conditions. He crossed over into another lane and hit a Jeep and killed the driver.

[175] The court found that he drove in a manner that was dangerous to the public, thereby committing the actus reus of dangerous driving. However, the Court acquitted the accused because it found that he made "a mistake that had the worst possible consequences, but [was] not satisfied that his conduct justifi[ed] a conviction for the serious criminal offence of dangerous driving causing death" (para.122).

[176] In R. v. A.D. [2010] O.J. No. 1264, the Court found that the accused drove at an excessive speed on a major highway in moderate traffic, which could change from moment to moment. The flow of traffic was travelling at approximately 115 KPH. The accused exceeded that by at least 15 KPH. By reason of his speed the accused created a situation in which he had to make a "split-second lane change" that resulted in an accident.

[177] The Court held that "The accused made split-second bad decisions about his driving. The incident took place in just a few seconds. There is no evidence that the accused was driving negligently before the 3 – 10 seconds that are under consideration. He was not drinking. He was not distracted. Weather and visibility were good" (para. 43).

[178] Based on this, Murray J. concluded that she was "not persuaded beyond a reasonable doubt that a reasonable driver in the same circumstances as the accused would have appreciated the degree of the risk posed by his manner of driving. I am not satisfied that his negligence is at a level that a penal sanction is merited" (para. 44). The Court acquitted the accused of dangerous driving.

[179] In R. v. Singhal [1988] B.C.J. No. 651, the accused was speeding and hit a cyclist "who without warning, turned suddenly into his lane of travel, thereby making the collision inevitable." The Court found that the accused was not guilty of dangerous driving, although he was speeding, because the accident in which he was involved was inevitable (page 5).

[180] In R. v. Dickey [2003] A.J. No. 1140, the court found that the accused "was clearly in error when he attempted to manoeuvre from the left-hand turning lane to the right-hand turning lane. He was in error when he accelerated, and entered the intersection on a red light in order to avoid a vehicle approaching him from the south instead of stopping. He was in error when he failed to realize how to bring his vehicle under control (having lost control because of having excessively accelerated in order [to] get out of the path of the vehicle approaching from the south)"(para 30).

[181] The Court held that the accused was negligent and that "his driving fell below the standard expected of a person in those circumstances", but his driving was not a marked departure from "the standard of care that a reasonable person would observe in the accused's situation" (para. 30).

[182] The Court characterized the accused's driving as "a series of errors committed over such a very short span of time that they might be considered to be one error made up of components." Consequently, the Court found that the accused was not guilty of dangerous driving (para. 30).

Speed and Dangerous Driving

[183] The case at bar involves speed as a critical element of what the Crown alleges was dangerous driving. In R. v. Richards, [2003] O.J. No. 1042, the Ontario Court of Appeal held that "under certain circumstances, evidence of excessive speed, in itself, can constitute the offence of dangerous driving" (para. 11).

Causation

[184] The issue of causation raised its head in this case because the defence argued that had it not been for Sarah running out into the street unexpectedly, Mr. Malkowski would not have hit her.

[185] The Supreme Court of Canada dealt with causation in R. v. Maybin 2012 SCC 24, [2012] 2 S.C.R. 30. Maybin was a case of manslaughter, but there is no reason to conclude that the principles elaborated by the Court regarding causation would not apply to the case at bar and I find that they do. See, R. v. Nette 2001 SCC 78, [2001] 3 S.C.R. 488 at para. 72, where the Court cites an English decision that used the "something more than de minimus" test in a dangerous driving case.

[186] Maybin set the test for causation as "a contributing cause of death, outside the de minimus range" (para.14).

[187] Factual and legal causation must be considered. "Factual causation is 'an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result' ( Nette , at para. 44 )". The trier of fact usually asks: "But for the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope" (para. 15). Furthermore, "factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause" (para. 20).

[188] Causation issues are "case-specific and fact-driven" (para. 17).

[189] In R. v. K .L. 2009 ONCA 141, which was a dangerous driving causing death case, the court stated "That the fatality was unanticipated or an unlikely result of the appellant's conduct is not a defence" (para. 20).

Intervening Act

[190] There does not appear to be any intervening act that caused Sarah's death, but because of the strong emphasis that the defence places on Sarah's action of running out into the street as having caused her death, I will address the issue.

[191] The Court in Maybin explained that an intervening act "[reduces] the scope of acts which generate criminal liability." The Court cited, R. v. Tower , 2008 NSCA 3, 261 N.S.R. (2d) 135, where Cromwell J.A. stated "the law recognizes that other causes may intervene to 'break the chain of causation' between the accused's acts and the death. This is the concept of an 'intervening cause', that some new event or events result in the accused's actions not being a significant contributing cause of death (para. 25)" (para. 23).

[192] However, Maybin held that "Even in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of he accused a significant contributing cause of the victim's death?" (para. 28).

Reasonable Foreseeability

[193] In Maybin, the court pointed out 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. This approach posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death. Because the issue is whether the actions and consequences were reasonably foreseeable prospectively, at the time of the accused's objectively dangerous and unlawful act, it accords with our notions of moral accountability. This approach addresses the question: Is it fair to attribute the resulting death to the initial actor?" (para. 30).

[194] At paragraph 34, the Court concluded 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).

[195] The Court found further that,

…it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct. Nor does it assist in addressing moral culpability to require merely that the risk of some non-trivial bodily harm is reasonably foreseeable. Rather, the intervening acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense that the acts and the harm that actually transpired flowed reasonably from the conduct of the appellants. If so, then the accused's actions may remain a significant contributing cause of death (para. 38).

Disposition

Did the Crown prove beyond a reasonable doubt that Mr. Malkowski was speeding?

[196] I will first deal with the civilian witnesses' evidence of speeding.

[197] Sarah's friend, Michayla, testified that the car that hit Sarah "came out of nowhere". She did not give a speed estimate.

[198] Evan Harding's evidence was that "there was this guy speeding…he was going really, really fast." In his statement he told the police that the car was going so fast that "debris was flying…four metres in the air." The car was going "highway speeds…like a hundred, hundred twenty. He was going really fast, a lot faster than necessary." In his testimony he said that he was not sure if the debris went up to four metres in the air.

[199] Evan said that he saw Mr. Malkowski's headlights far enough away that he thought his sister was going to make it across the road. But he acknowledged that he could have told Officer McGuire that the car "came out of nowhere." Officer McGuire had a note that Evan did tell him this.

[200] If the car came out of nowhere I question whether Evan would be able to gauge its speed as he testified. This, and the change in his evidence about the debris flying demonstrates that perhaps he has a tendency to overstate his evidence. This affects the reliability of his testimony about the observations that he said he made. I accept his evidence that the car was going fast, but I am not confident that in these circumstances his estimate of "highway speeds" up to 100 to 120 KPH is reliable.

[201] Pierre Farrugia testified that Mr. Malkowski was going "pretty quick". This is a non-specific estimate that is not helpful in determining Mr. Malkowski's rate of speed, but it is consistent with Evan Harding's evidence that the car was travelling fast.

[202] Dennis Dorian saw Mr. Malkowski coming at him and his wife from about 100 feet, but he could not estimate his speed. His wife, Joanne, said Mr. Malkowski came at them like a torpedo, but all she could say was that he was going fast. She could not calculate his speed.

[203] In summary, I find that the civilian evidence of speeding is inconclusive in terms of determining a specific speed or range of speeds at which Mr. Malkowski was travelling. However, I find that the civilian evidence establishes in a general sense that Mr. Malkowski's car was travelling faster than what one would expect in those circumstances.

[204] I will now turn to the expert evidence with regard to speed.

[205] Officer McLaughlin used three methods to calculate Mr. Malkowski's speed at the time that he hit Sarah.

The Slide to Stop Formula

[206] This formula determines a vehicle's speed by measuring the distance from the start of its tire marks from braking to where the vehicle stops. However, Officer McLaughlin admitted that there is no evidence that Mr. Malkowski applied his brakes. Therefore, I find that in the circumstances of the case at bar this method is unable to determine Mr. Malkowski's speed. The Crown and Officer McLaughlin stated that its purpose was to provide a comparison to the Airbag Control Module method. However, I do not find it helpful to use a test that does not apply to the circumstances of the case as a basis of comparison. The comparison rests on a hypothetical scenario that did not exist. Therefore, I find that the results of this method of calculation of Mr. Malkowski's speed are unreliable and I do not accept them.

The Pedestrian Speed Calculation

[207] This method calculates speed by measuring the distance that a pedestrian travels after having been hit by an object. The fatal shortcoming of this method in the circumstance of the case at bar is that Officer McLaughlin could not determine where Sarah was when Mr. Malkowski hit her.

[208] Since he could not determine where Sarah was when Mr. Malkowski hit her, he used the spot on the road where he saw the first evidence of biological matter from Sarah as the starting point for his measurement. Therefore, it is clear that he did not start his measurement at the point where Mr. Malkowski hit Sarah. In addition, Officer McLaughlin could not even say that where he saw the first signs of biological matter was in the "area of impact".

[209] Moreover, Officer McLaughlin applied 28 different formulas to the data that he collected regarding the distance that Sarah travelled after Mr. Malkowski hit her. Each formula produced a different speed ranging from 40.2 KPH to 173.2 KPH. He said that all of the authors of these formulae are accepted as experts in this field.

[210] Furthermore, Officer McLaughlin stated that "any of these answers could be right and any of them could be wrong."

[211] Consequently, I find that the result of this calculation is an imprecise and unreliable measurement of Mr. Malkowski's speed at the time that he hit Sarah and I do not accept it.

Airbag Module Control Module

[212] The last method of speed calculation that Officer McLaughlin used was the Airbag Module Control Module.

[213] This method relies on the data that Mr. Malkowski's car's airbag control module recorded during the five seconds prior to his speed reduction.

[214] Officer McLaughlin testified that this method of speed measurement "can be affected by…various factors including, but not limited to…significant changes in the tires' rolling radius, the final drive axle ratio changes, and wheel lock-up and wheel slip."

[215] With regard to significant changes in the tires' rolling radius, he took into consideration that Mr. Malkowski was using different tires from the ones recommended by the manufacturer and adjusted the airbag control module's calculation of Mr. Malkowski speed from 154 KPH to 152 KPH.

[216] With regard to "wheel lock-up and wheel slip", Officer McLaughlin explained that it occurs "when the wheels lose traction, whether it be a road surface, going airborne, braking, can cause the wheels to slip or lock-up", which can change the speed that the air bag control module records. This occurred partially in the case at bar because for portions of its traverse Mr. Malkowski's vehicle was airborne. However, for the five seconds prior to when Mr. Malkowski's car reduced speed the wheels were rolling on the pavement. This speed reduction is what woke up the airbag control module. It is illogical to conclude that this reduction in speed "event" first occurred while Mr. Malkowski was airborne. It must have happened before his car flew in the air. Therefore, it is reasonable to conclude that during that time "wheel lock-up and wheel slip" did not affect the airbag control module's calculation of Mr. Malkowski's speed.

[217] With regard to the final drive axle ratio changes, Officer McLaughlin testified that the Airbag Control Module method of speed calculation "can be affected by…various factors including, but not limited to …significant changes in the tires' rolling radius, the final drive axle ratio changes, and wheel lock-up and wheel slip."

[218] No questions were asked of Officer McLaughlin, nor is there any evidence concerning what the other "various factors" are that affect this method of calculation of speed. The Court considered this issue and concludes that the lack of evidence on this point does not affect the result obtained with this method.

[219] It is reasonable to infer that since Officer McLaughlin specifically listed three factors that affect the Airbag Control Module's calculation, that whatever the others might be, they did impact the calculation. He is an expert and it is further reasonable to infer that had these other factors been significant in the case at bar, he would have mentioned them.

[220] The next aspect of the Airbag Control Module's calculation that I will address is the issue raised by the defence concerning the "final drive axle ratio changes" factor.

[221] The defence maintains that Officer McLaughlin did not sufficiently investigate this factor in order to exclude any influence that it could have had on the Airbag Control Module's calculation of Mr. Malkowski's speed.

[222] I will review his evidence on this point. He said that it is complicated to change the gearing in an automatic transmission. In order for such a change to effect the airbag control module's calculation of speed there would have to be "a significant change of gearing." He added that "If you were looking at a car designed for a, a different application, such as drag racing or that, then it would have different gear changes that could alter the speeds."

[223] He did not have to consider this factor in the case at bar because he did not see "modifications that the vehicle appeared to have been changed from what the manufacturer originally installed in the vehicle."

[224] In order to determine if such a change had been made to Mr. Malkowski's car he inspected the car visually at the scene. Based on this inspection he concluded that "it was the factory original."

[225] He did not see any evidence that the transmission of Mr. Malkowski's vehicle had been modified. He said that he "looked at the other part of the transmission". He did not make a note of the model number. He said that from his experience it looked like the original transmission. He did not make a note of his inspection of the transmission, but this is his "normal procedure".

[226] I accept Officer McLaughlin's evidence that Mr. Malkowski's vehicle's transmission was not modified in any manner that would affect the Airbag Control Module's calculation of his speed.

[227] Officer McLaughlin has extensive experience as a licensed automobile and truck mechanic. He is currently licensed as such. In addition, he is a Commercial Vehicle Safety Alliance Inspector and a Forensic Mechanic for vehicles involved in serious collisions.

[228] Although the specific words of expert qualification were not used to "qualify him as an expert mechanic", there was no challenge raised regarding his status as a qualified mechanic with a forensic specialty designation. I find that his credentials as a licensed, and forensic mechanic, give him the required expertise to give the opinion that he gave regarding the lack of modifications done to Mr. Malkowski's car's transmission.

[229] It is true that a more thorough examination of the transmission would have silenced any doubt about his opinion, but in the circumstances of this case I do not find that it was required that he do any more than what he did. Officer McLaughlin knows the nature of the extensive changes required to put this factor into play. It is reasonable to infer that based on his vast experience as a licensed and forensic mechanic he would be able to tell upon a visual inspection whether Mr. Malkowski's transmission had been modified in this manner.

[230] Although challenged in the strongest terms by the defence's very able cross-examination, I find that not only did the defence fail to undermine his evidence, but that there is no evidence to contradict Officer McLaughlin. I do not mean by this to put any onus on Mr. Malkowski to call evidence. It is simply an observation of the state of the evidence before me on which I have to decide this case.

[231] I find that it is mere speculation that Mr. Malkowski's transmission was modified in any way, much less in a way that would have affected the Airbag Control Module's calculation of his speed.

Disposition regarding speed

[232] For the reasons stated, I accept the speed calculation recorded by the Airbag Control Module of Mr. Malkowski's vehicle as reported by Officer McLaughlin. I find as a fact that he was travelling at 152 KPH at a point very close to when and where he hit Sarah Harding.

Does driving at 152 KPH constitute dangerous driving in the case at bar?

[233] According to s. 249 (1) (a) of the Criminal Code, I must examine "all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place."

[234] The evidence that touches on this determination is contained in Officer Rogan's testimony and in the Collision Reconstruction Report And Collision Photographs.

[235] According to Officer Rogan, March 17, 2012 was a Saturday - St. Patrick's day. The area of Airport Road where this occurred was "going into" Caledon East Village. It was a beautiful day. People were "out and about" because of the nice weather. It was March break.

[236] At this location, Airport Road is a regional road. The Reconstruction Report indicates that it is a "two lane north south road" with wide gravel shoulders on both sides of the road. Throughout the collision scene the speed limit is 50 KPH (page 7).

[237] There is a residential street, Huntsmill Road that intersects Airport Road just metres away from where the collision occurred.

[238] With regard to the traffic, Officer Rogan said that "there was traffic on the roads, wasn't overly busy, but it wasn't quiet either." This accords generally with the civilian evidence regarding the amount of traffic.

[239] It was dark when he arrived.

Disposition regarding the actus reus of dangerous driving

[240] Based on the statute and jurisprudential law cited above and the evidence regarding "all of the circumstances, including the nature, condition and use of the place at which the motor vehicle [was] being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place," I find that the Crown proved the actus reus of dangerous driving beyond a reasonable doubt.

[241] Viewed objectively, by driving 152 KPH, Mr. Malkowski created enormous risks to the persons that were, and could have been reasonably expected to be "out and about" in this area on this particular day. He endangered the public.

[242] In R. v. Menezes, [2002] O.J. No. 551, Justice Hill observed that for the offence of dangerous driving to be established "There must be a danger to the public actually present or which might reasonably be expected in the vicinity when the driving occurred: Regina v. Mueller (1976), 29 C.C.C. (2d) 243 (Ont. C.A.) at 246 per Evans J.A." (para. 76).

[243] In these circumstances it was reasonable to expect, and Mr. Malkowski should have expected that there would or could be vehicular and/or ambulatory traffic in close proximity to his car. He was in a 50 KPH speed zone, entering Caledon Village. He was driving by a residential area that had a street that intersected Airport Road. This created the very realistic possibility that there might be vehicles turning onto Airport Road from this street.

Disposition regarding the mens rea of dangerous driving

[244] I find that in the circumstances described above, driving at 152 KPH, slightly over three times the speed limit "was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances."

[245] I find further that in the circumstances of the case at bar, a reasonable person "would have foreseen the risk and taken steps to avoid it if possible." In this case it was very possible to have avoided the risk that Mr. Malkowski created by driving at 152 KPH: he simply could have slowed down.

[246] I find further that Mr. Malkowski's "failure to foresee the risk and take steps to avoid it…was a marked departure from the standard of care expected of a reasonable person" in his circumstances.

[247] These findings can be easily inferred from all of the circumstances and I do infer "the required objective mens rea" from the fact that Mr. Malkowski drove "in a manner that constituted a marked departure from the norm."

[248] After considering all of the circumstances I find that "a reasonable person in [Mr. Malkowski's position] would have been aware of the risk posed by the manner [in which he drove] and would not have undertaken [this] activity."

[249] I find that under these circumstances Mr. Malkowski's excessive speed in itself constituted dangerous driving.

[250] I find that the Crown proved beyond a reasonable doubt that Mr. Malkowski had the required mens rea for dangerous driving.

Causation

[251] 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 Sarah Harding died as a result being hit by Mr. Malkowski's car. It is reasonable to infer from all of the circumstances that but for his actions of driving 152 KPH, she would not have been killed.

[252] There is no persuasive evidence to conclude that Sarah Harding ran in front of Mr. Malkowski knowing that he was upon her. Her musings to her friend, Michayla Robinson, about walking out in front of traffic and sticking out her hand to make the cars stop and about walking across the street against the signal light are not a sufficient basis on which to draw such a conclusion. In addition, Michayla and Evan Harding's evidence was that on the day in question she was happy and looking forward to watching The Outsiders on television that night.

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

[254] It is probably true that Mr. Malkowski would not have hit her had she not ran into the street, but this does not mean that Mr. Malkowski 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

[255] Even if Sarah Harding'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 Mr. Malkowski's dangerous and unlawful act of driving the way the way that he did was "a significant contributing cause" to her death.

[256] 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."

[257] 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.

[258] Even if as the defence argued, the specific act of Sarah Harding 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)

Final Disposition

[259] Therefore, for all of the reasons stated above, I find that the Crown proved beyond a reasonable doubt that Mr. Malkowski is guilty of dangerous driving causing the death of Sarah Harding. He is found guilty and a conviction is registered.

Released: April 3, 2014

Justice J.W. Bovard