R. v. Williams, 2017 ONSC 634

CITATION: R. v. Williams, 2017 ONSC 634

COURT FILE NO.: CR-15-3488

DATE: 20170127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Andrew Williams

Accused

Walter Costa, for the Crown

Laura Joy, for the Accused

HEARD: December 5, 6,7,8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22 & 23, 2016, January 6 & 7, 2017

REASONS FOR JUDGMENT

Munroe J.:

[1] The danger posed by an oncoming train was there for all to see, for all to hear. On a beautiful June morning amidst the bountiful farmlands of Essex County, death loomed. Two vehicles were travelling toward the same intersection. A freight train was travelling westbound on fixed railroad tracks and a family minivan with four young children driven by their father was travelling southbound on a rural gravel road. Neither the train nor the minivan stopped before the intersection. There they collided. As a tragic consequence, two of the children died and a third sustained serious injuries. The father, Andrew Williams, too sustained serious injuries and is now criminally charged.

[2] The accused, Andrew Williams, is on trial for the manner of his driving. Specifically, Mr. Williams is charged with the following seven separate crimes,[^1] all on June 10, 2012 in the Town of Lakeshore:

Count One: Criminal Negligence Causing Bodily Harm “to wit: by operating a motor vehicle and failing to stop for a train on Strong Road, caused bodily harm to Dryden Williams” contrary to Section 221 of the Criminal Code;

Count Three: Criminal Negligence Causing Death “to wit: by operating a motor vehicle and failing to stop for a train on Strong Road, caused the death of Brooklyn Williams” contrary to Section 220(b) of the Criminal Code;

Count Four: Criminal Negligence Causing Death “to wit: by operating a motor vehicle and failing to stop for a train on Strong Road, caused the death of Wynter Williams” contrary to Section 220(b) of the Criminal Code;

Count Five: Dangerous Operation of a Motor Vehicle by operating a motor vehicle “on a highway, to wit: Strong Road, in a manner that was dangerous to the public” contrary to Section 249(1) of the Criminal Code;

Count Six: Dangerous Operation of a Motor Vehicle Causing Bodily Harm by operating a motor vehicle “on a highway, to wit: Strong Road, in a manner that was dangerous to the public and thereby did cause bodily harm to Dryden Williams” contrary to Section 249(3) of the Criminal Code;

Count Seven: Dangerous Operation of a Motor Vehicle Causing Death by operating a motor vehicle “on a highway, to wit: Strong Road, in a manner that was dangerous to the public and thereby did cause death to Brooklyn Williams” contrary to Section 249(4) of the Criminal Code;

Count Eight: Dangerous Operation of a Motor Vehicle Causing Death by operating a motor vehicle “on a highway, to wit: Strong Road, in a manner that was dangerous to the public and thereby did cause death to Wynter Williams” contrary to Section 249(4) of the Criminal Code;

[3] I am not here today sitting as a commissioner with a sweeping mandate to inquire into train-car collisions at rural crossings generally or into this collision particularly. We live in a nation governed by the rule of law. The Crown has charged Mr. Williams with violating certain sections of our criminal law. I am here to judge this criminal case, solemnly and justly, according to the law. Nothing more. Nothing less.

[4] My decision today is limited in scope; it pertains only to the seven charges in the indictment against Mr. Williams. This trial is about that indictment. This trial is about Mr. Williams’ driving. Did it amount to criminal negligence under the law? Was it dangerous operation under the law? If so, did his driving cause bodily harm and death under the law? Has the Crown proven any of the seven allegations it has made against Mr. Williams beyond a reasonable doubt? I am not here to pass judgment on the conduct of the railroad, the township, or anyone else. This is not a civil action where contributory negligence may or may not be a live issue. Neither is it a broad inquest into the deaths of these precious children. My decision will not answer every question about this tragedy. My decision probably will not bring comfort to those grieving over their shattering losses, regardless of how I decide. But that is not the purpose of a criminal trial. I am here only to decide whether or not the Crown has proven its case against this accused, as to these seven formal accusations, by the highest burden known in law: beyond a reasonable doubt. And that is what I will do.

[5] At the beginning of this trial, Mr. Williams was formally arraigned. The seven charges were read to him and Mr. Williams was asked how he pled, guilty or not guilty. Mr. Williams declared that he was not guilty as to each and every count. So we have a formal accusation and a formal denial, a plea of not guilty. A trial thus was necessary to determine the case. But this was not a trial without principles. In our great country, Mr. Williams is presumed to be innocent of each of the counts charged. This presumption is a cornerstone of our criminal justice system. This presumption of innocence stays with Mr. Williams throughout his trial and can only be defeated if and when Crown counsel satisfies me by the heaviest burden known in law, beyond a reasonable doubt, as to each and every essential element, that Mr. Williams is guilty of one or more of the counts charged.

[6] This heavy burden of proof never shifts, it is always on the Crown. They are the ones who brought the charges against this citizen; they must prove the allegations. Mr. Williams does not have to prove anything. He does not have to present evidence. He does not have to testify himself. As to each allegation, it is the Crown who must prove every essential element beyond a reasonable doubt before I can find Mr. Williams guilty of any of the allegations.

[7] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or from the lack of evidence.

[8] It is not enough for me to believe that Mr. Williams is probably or likely guilty. In those circumstances, I must find Mr. Williams not guilty, because Crown counsel would have failed to satisfy me of Mr. William’s guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[9] However, I must also remember that it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, having said that, proof beyond a reasonable doubt is closer to proof to an absolute certainty than it is to proof on a balance of probabilities.

[10] There is no question, indeed it is admitted, that Mr. Williams was driving his Dodge Caravan motor vehicle (“minivan” or “van”) containing his four children when it was hit by the train. There is no question that Mr. Williams did not stop before the railroad crossing. There is no question that two of his children died in the collision and a third suffered physical injuries. Thus, the major issues are the accused’s driving and the objective mens rea of the crimes charged. The issue of causation has been raised and it too must be resolved. In sum, has the Crown proven its case beyond a reasonable doubt?

FACTS

[11] Evidence was taken at trial over eleven days. Submissions were held over two days. The court heard from eight witnesses called by the Crown. Three of those witnesses were qualified as expert witnesses. The accused elected to testify in his own defence. He also called his brother, Jeff. There were a number of admissions that narrowed the case significantly. The parties also agreed that I could consider the evidence called on the three expert witness voir dires. Forty-seven exhibits were entered which included numerous photographs (of the scene, the train, the minivan, and Strong Road); expert witness reports; the train video; certain data from the train black box; a scene diagram; and sections of CP Rail’s general operating instruction.

[12] My review of the facts is limited to those of significance to either context or to the guilt or innocence issues. Much is uncontested. I will review those facts first. Then I will review the contested facts and will resolve.

1. The Uncontested Facts

Admissions

[13] At the commencement of the trial, the defendant made the following admissions:

1. On June 10, 2012, the vehicle in question had a collision with a train;

2. The accused was the driver and owner of the vehicle in question at the time of its collision with the train;

3. Children of the accused were passengers in the vehicle in question at the time of its collision with the train; and

4. The personal injury and death alleged to three of the accused’s children were caused by this train collision.

Setting

[14] This was a freight train-minivan collision at a railroad crossing in rural Essex County, Ontario. The train was travelling on the railroad tracks going westbound. The minivan was travelling southbound on a two-lane, unmarked gravel road called Strong Road. There were no posted speed limits on Strong Road. The speed limit was an unposted 80 kilometres per hour. This was in late spring, June 10, 2012, in the morning. The collision happened shortly after 9:30 a.m. There was no other traffic on Strong Road at the time. The morning was sunny and clear. The area was rural and flat. There were no sight obstructions – no buildings, no homes, no structures, no woods, no trees, no high crops, nothing – either from the perspective of the train looking north and west toward the oncoming minivan or from the perspective of the minivan looking south and east toward the oncoming train. The train was 3,887 feet long (almost three quarters of a mile) and weighed 3,630 tons.

Crossing

[15] The railroad crossing at Strong Road was marked on both sides of the tracks by two visual signs: an x-like cross (referred to as a cross buck). This cross buck was atop a diamond shaped sign, yellow with black letters, which read, “STOP BEFORE CROSSING.” This sign was not a traditional stop sign. The crossing was not level with Strong Road but was slightly raised. The crossing itself had no other audible or visual signal, no gates, no lights, and no bells. Strong Road is a gravel road. There are no stop lines on the road.

[16] There are two additional signs visible to a driver approaching this railroad crossing from the north going south on Strong Road. Both are on the west or right side of the road. The first is approximately 210 metres north of the railroad tracks and is a diamond shaped sign, yellow with the black symbol of a railroad crossing. The second is approximately 107 metres north of the railroad tracks and is a diamond shaped sign, yellow with black letters, with the words, “BE PREPARED TO STOP.”

Evidence from the Locomotive

[17] The approaching freight train had two occupants in its lead locomotive: the engineer, or driver of the train, Mr. James Hamilton, and the conductor, Mr. Chris McMillan. Both gave evidence.

[18] Mr. Hamilton testified that as the train approached Strong Road he saw a minivan coming toward the crossing. He estimated the minivan was about 4,000 feet or three quarters of a mile away from the crossing when he first saw it. He sounded the train horn and the whistle. He noticed the minivan dip in front and move from side to side which looked to him to be a braking effort by the minivan driver. It appeared to Mr. Hamilton the minivan driver had trouble keeping the minivan under control. The minivan drove in front of the train. When Mr. Hamilton heard a crunch he knew the minivan did not make it across.

[19] Mr. McMillan’s attention was directed to the oncoming minivan by Mr. Hamilton. He saw the minivan approaching. At that time Mr. McMillan estimated the train was about a half mile away from the crossing. As the minivan got closer it slowed down and fishtailed. Then there was a collision.

Accident Scene

[20] Mr. McMillan was first to arrive at the scene. When the train came to a complete stop, Mr. McMillan grabbed a first aid kit and ran back to the crossing. He found the minivan badly damaged on the southwest portion of the intersection. He discovered five people in the minivan, the adult driver and four children. All were injured. Two of the young children were lifeless. When he went to the driver’s side, he could see into the minivan. The window either was down or there was no window. Mr. McMillan noted the minivan radio was on so loud it was distracting. He turned it off. He said it was higher than medium volume but less than full blast.

[21] OPP Officers Brad Williamson, Rich Bortolon, and Mark Japp attended the collision scene that day. Each gave evidence. Among other tasks, they noted physical evidence deemed by them to be important and took measurements. They examined and photographed the markings on the gravel road both before and after the collision and the markings on the wood planking between the train tracks at the crossing. These markings began at the north side of the crossing in the west side of the gravel road at approximately 51.26 metres north of the most northerly train rail. This was the earliest physical sign of braking found on the gravel road. These tire marks did not remain parallel nor on the west side of the road. The tire markings for the front and rear wheels separated or “out tracked” and both drifted toward the east side of the road. This tire marking separation first began approximately 36.72 metres north of the tracks. By the time the tire markings reached the tracks, they were on the east side of the road. Officer Williamson documented black marks on the east side of the crossing on the planks between the two railroad tracks. Markings south of the crossing showed the path of the minivan from the collision and into the field on the southwest portion off the crossing. A scene diagram made by Cst. Williamson from the measurements taken by Cst. Bortolon was made an exhibit.

[22] The train impact on the minivan was on the driver’s side behind the driver’s door.

2. The Contested Facts

Principles – Assessment of Evidence

[23] To make my decision on the issue of credibility overall, I must consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to me to decide how much or little I believe and rely upon the testimony of any witness. I may believe some, none or all of it.

[24] I must and will use my common sense in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or how much to rely on it in deciding this case.

[25] In making my decision I do not consider only the testimony of the witnesses. I also take into account any exhibits, and there are 47, that have been filed. I will decide how much or little I will rely on them, as well as the testimony, to help me decide this case.

[26] It also must be noted here that the standard of proof of beyond a reasonable doubt applies only to my final evaluation of guilt or innocence and is not to be applied separately to individual pieces of evidence. R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23.

1. Credibility And Reliability

[27] The concepts of credibility and reliability are not identical. Credibility refers to the witness’ honesty. Reliability refers to the accuracy of the witness’ evidence. A witness may be honest but wrong. Both concepts must be considered by me.

[28] Where there are significant inconsistencies or contradictions within a witness’ testimony, or when considered against conflicting evidence in the case, I must carefully assess the evidence in deciding whether, or to what extent, I accept what the witness says in whole or in part.

[29] To the extent that a credibility or reliability assessment demands a search for confirmatory evidence, such evidence need not directly implicate the accused or confirm the witness’ testimony in every respect – the evidence should, however, be capable of restoring the trier’s faith in the witness’ account.

2. Prior Inconsistent Statements

[30] When a witness says one thing in the witness box, but has said something quite different about the same event on an earlier occasion, common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’ testimony.

[31] If I find, after having heard all the evidence, that any witness gave an earlier and different version about the same events, I will consider the fact, nature, and extent of any differences between the versions in deciding whether or how much I will believe of or rely upon that witness’ testimony. I bear in mind that not every difference or omission will be significant. I also will take into account any explanation the witness gives for any differences or omissions.

[32] It is important to remember that a witness’ prior inconsistent statement cannot be used as proof of the truth of the contents of the statement. That is hearsay and inadmissible. R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 756. It can only be used in the assessment of the believability of the witness.

3. Collusion or Tainting

[33] I must consider all the circumstances that affect the reliability of the evidence of the witnesses. Among those circumstances is any evidence that witnesses may have shared their versions of events with one another and, as a result, whether accidentally or on purpose, they may have changed or altered their version of what they say happened. The likelihood, even the possibility, that what a witness said before me was tainted or influenced by collusion with another is a factor for me to consider, along with other factors, in deciding whether or to what extent I believe what the witness says in deciding this case.

4. Expert Evidence

[34] Opinions of expert witnesses have been received in this case. Such evidence is like the testimony of any other witness. As the trier of fact, I may accept all, some, or none of it.

The Challenged Evidence

1. James Hamilton

[35] James Hamilton was the first witness called by the Crown. He retired from CP Rail on September 1, 2014 after 26 years of employment. He retired as an engineer, the person who “drives” the train. He was the engineer on the train involved in the collision before the court. With him in the locomotive was the conductor, Chris McMillan.

[36] He took over the train in London, Ontario, and was heading to Windsor and Detroit, Michigan. The collision happened at approximately 9:35 a.m. at Strong Road in the Belle River area of Essex County. The weather was clear with good visibility. From the locomotive, Mr. Hamilton testified he was able to see roughly two miles ahead. The area was flat, rural and agricultural. There were no buildings in the immediate area. The crops were low.

[37] In the locomotive, as the engineer, Mr. Hamilton was on the right side and Mr. McMillan, the conductor, was on the left side. He identified the train speed as 49 miles per hour. Mr. Hamilton believed the train’s FTO or fuel trip optimizer (similar to a car’s cruise control) was engaged but was not 100 per cent certain.

[38] Mr. Hamilton testified that as the train approached Strong Road he saw a minivan coming toward the crossing. According to him, the minivan “seemed” to be coming at a high rate of speed. He estimated the minivan was about 4,000 feet or three quarters of a mile away from the crossing when he first saw it. Mr. Hamilton said he continued to watch the approaching minivan. He noticed the minivan dip in front and move from side to side which looked to him to be a braking effort by the minivan driver. But Mr. Hamilton declined to describe the movement as “fishtailing”. Then the minivan changed from braking to acceleration. The front of the minivan rose up. It appeared to Mr. Hamilton that the minivan driver had trouble keeping the minivan under control. According to Mr. Hamilton, the minivan driver looked up at the locomotive, shrugged his shoulders, and accelerated. Mr. Hamilton believed the driver’s window was down but was not absolutely positive. He saw a rise in the front of the minivan. The minivan then drove in front of the train. Mr. Hamilton testified he expected the minivan to come out on the other side. When Mr. Hamilton heard a crunch, he knew the minivan did not make it across.

[39] At the quarter mile or whistle post, Mr. Hamilton began sounding the whistle or horn. A bell automatically commenced ringing as well. This post is physically located one quarter of a mile before each intersection or crossing. The railroad’s internal operating procedures require the commencement of the whistle or horn at the quarter mile post in a pattern of two long blasts, one short blast, and one long blast. Mr. Hamilton said he held the last blast longer due to the oncoming minivan. Mr. Hamilton said the train’s lights were on – the headlight in the middle of the front of the locomotive, and the two other lights, called ditch lights, on either side of the front of the locomotive about the witness’ height – 6’2” – from the ground. The lights remain on in the daytime to make the train more visible.

[40] When he knew a collision had occurred, Mr. Hamilton put the emergency brake on and stopped the train. He estimated the distance it took for the train to stop as one half mile. When the train came to a stop, Mr. Hamilton made a 911 call to the railroad’s Rail Traffic Controller (RTC) to report the collision and to secure emergency services. Mr. McMillan grabbed the first aid kit and headed back to the minivan. Mr. Hamilton stayed in the locomotive. The trainmaster, Stephen Gelz, came and downloaded the black box data and the video from the camera located on the front of the locomotive (“loco cam”).

[41] Mr. Hamilton was asked about the loco cam. He testified that it is mounted high on the front windshield and faces forward. He said he has seen the video of that day three times. Mr. Hamilton was showed a brief clip of the loco cam video in court showing the area, the approach of the minivan until it left the sight of the camera, and the subsequent and extended braking of the train. The train horn can be heard. He also was shown still photos made from the video. Although described as very blurry, Mr. Hamilton identified the minivan approaching.

[42] On cross-examination, the following evidence was elicited from Mr. Hamilton:

1. CP Rail retained a civil lawyer for Mr. Hamilton before the preliminary hearing. Mr. Hamilton conferred with his lawyer before he gave evidence at the preliminary hearing. He denied having fear of getting in trouble for the collision. He admitted talking to CP’s claims officer about the event.

2. Mr. Hamilton described his memory of the event as not very good. He admitted he is trying to block the matter out. Mr. Hamilton said he was traumatized by the tragedy. It was very hard on him. He tried to forget this incident.

3. Mr. Hamilton said he worked for CP Rail for 26 years and got his paycheques from CP.

4. Mr. Hamilton said he was not able to give the speed of the minivan.

5. Mr. Hamilton made several inconsistent statements.

a. Mr. Hamilton said he made contemporaneous notes of the collision. At the preliminary hearing, he told the court under oath that he “threw out” his notes. He testified there that he threw his notes in the garbage when he was cleaning out his bag. Subsequently, Mr. Hamilton said he wife found his notes. Mr. Hamilton denied lying at the preliminary hearing explaining that his testimony there was what he believed at the time. He thought he threw out his notes when he cleaned out his bag.

b. Mr. Hamilton denied telling the CP claims officer that he lost his notes. His response to defence counsel’s suggestion that he did was “Bull Crap!” Then, when his preliminary evidence was put to him that he told the claims officer he had thrown out his notes, Mr. Hamilton apologized and said he now remembered.

c. At the preliminary hearing, Mr. Hamilton estimated 90 minutes as the fastest time for the train from London to the crossing. At trial he testified 90 minutes was impossible. He did not remember why he said that at the preliminary hearing.

6. Mr. Hamilton denied that his decision not to give a statement to the OPP was because of fear of getting in trouble. According to Mr. Hamilton, that was not true. The OPP gave him the option of whether or not to give a statement to them because he had already given a statement to the CP Police. He said he chose not to. He said he did not want to give a statement unless it was absolutely necessary.

7. Mr. Hamilton was challenged on purported company rules violations.

a. To the suggestion that he blew the whistle inappropriately by failing to maintain the prescribed pattern, Mr. Hamilton testified that when something is coming he can blow the whistle as long as he wants. Then Mr. Hamilton said he blew the horn “a little excessively.” He also said he knew a sustained blast was harder to hear.

b. To the suggestion that he violated company protocol by not stopping the train, Mr. Hamilton denied any violation. He admitted he did not stop or slow the train. He said the minivan had time to clear the crossing or to stop. He thought the minivan was going to clear the crossing. Mr. Hamilton agreed that the manual says to apply the emergency brakes if a collision is imminent. But, according to Mr. Hamilton, he did not think there was going to be any contact.

c. Mr. Hamilton denied the suggestion that he did not blow the train’s horn at the quarter mile post as he is required to do. He testified that, as far as he knew, he did do so. Defence counsel suggested Mr. Hamilton commenced the horn at 1,193 feet, which is 127 feet after the quarter mile post at 1,320 feet. Mr. Hamilton said he did not recall the exact moment he blew the horn. The black box data confirms the defence suggestion.

8. Mr. Hamilton was challenged on his evidence that the minivan driver looked up and shrugged his shoulders. He agreed this conduct was not captured on the video. He agreed both the minivan and the train were moving at the time. He agreed that the driver looked into his eyes and shrugged his shoulders only for a split second. Mr. Hamilton said the shoulder shrug occurred at approximately 20 to 40 feet before the minivan crossing. Then the driver accelerated. Mr. Hamilton admitted he did not include these observations in his on-scene statement to Cst. Iversen. Moreover, the physical evidence at the scene shows continuous and heavy braking and sliding to the left in the gravel; it does not show any cessation of braking or acceleration after braking.

9. Mr. Hamilton admitted that the whole tragedy occurred in a matter of seconds.

10. Mr. Hamilton said he and Mr. McMillan rode back to London together that day after being relieved by a replacement crew. Mr. Hamilton denied having talked to Mr. McMillan about the tragedy. Indeed, Mr. Hamilton testified he did not recall talking to Mr. McMillan ever about the incident. Mr. McMillan testified differently. He said the two recounted the details of the incident briefly but spent the majority of the ride in silence. Mr. McMillan testified he told Mr. Hamilton his opinion that if the driver had not fishtailed, he might have gotten across. In addition, he told Mr. Hamilton about going back to the minivan after the collision. According to Mr. McMillan, Mr. Hamilton told him about the driver’s eye contact and shoulder shrug. Mr. Hamilton told Mr. McMillan that he thought the driver went forward on purpose. Mr. McMillan testified that both of them were in shock at the time.

Response to Challenges and Findings of Fact

[43] I was generally impressed by the evidence of Mr. Hamilton. He was forthright. When he was not certain, he said so. In this regard I remember his evidence on whether the cruise control was engaged and whether the window was down. He also admitted he was wrong or mistaken when he watched a portion of the video over the shoulder of Mr. Gelz, when he was impeached by his preliminary hearing evidence on disclosing his notes to the claims officer, and on the train times. I do not find the inconsistencies raised are significant beyond showing that the memory of Mr. Hamilton must be considered. Indeed, he admitted a poor memory due to his desire to put this trauma out of his mind. I will remain cautious of any of his evidence that is not supported by other evidence. Certain further specifics must be reviewed.

[44] I cannot accept the evidence of Mr. Hamilton that the driver looked up, shrugged his shoulders, and accelerated shortly before the crossing. Only Mr. Hamilton says he saw this. It is not on the video. Mr. McMillan did not see it. The events happened quite quickly and were understandably stressful. Accurately describing action details which occur very quickly and are unexpected is never easy. And, perhaps most importantly, the physical evidence refutes this evidence. I do not believe Mr. Hamilton is deliberately not telling the truth. I do believe he is honestly mistaken. I reject this evidence.

[45] The defence has raised the issue of collusion between Mr. Hamilton and Mr. McMillan during their brief discussion on the ride back to London. Mr. Hamilton remembers none. Mr. McMillan is quite specific in what he remembers. In this regard, I accept the evidence of Mr. McMillan over the evidence of Mr. Hamilton. They did share their respective experiences and views. But I see no tainting. Neither adopted the version of the other. Mr. McMillan never said he saw the shrug evidence and Mr. Hamilton did not adopt the fishtailing description. Thus, while I consider this sharing, I do not find, in the circumstances, it deserves much weight. Moreover, what these two men have to offer beyond the rejected shoulder shrugging evidence is quite uncontroversial.

[46] In a similar regard, the assertion of bias or motive by employment and by a claimed concern over getting in trouble deserves no weight. I give it none. I heard nothing supporting this claim.

[47] With regard to the speed evidence, I accept it for what it is. Seeming to be travelling fast on a gravel road is of little assistance in any regard. Such generalities help very little.

[48] Finally, I also take the claimed rules violations for what they are. They add little to the resolution of this case. The horn blowing is confirmed by the black box data. The braking rule is very subjective – the imminence of a collision is not easy to define standing alone. This evidence is there for me to consider.

[49] In sum, with the one notable exception above, I accept the evidence of Mr. Hamilton regarding what he did and what he saw during this incident.

2. Chris McMillan

[50] Chris McMillan is employed by CP Rail. He is now an engineer. At the time of this incident he was a conductor on the train involved.

[51] He got on the train in London, Ontario, and was heading to Detroit, Michigan. The weather was sunny with very good visibility. In the locomotive, he is up 12 to 13 feet in the air so he had good lines of vision. The surrounding country was farmland. All the fields were empty. There were no buildings in close proximity.

[52] There were no issues with the locomotive. The headlights, ditch lights, bells and whistles all were working.

[53] Mr. McMillan said his attention was directed to the oncoming minivan by Mr. Hamilton. He saw the minivan approaching and said it looked like it had good speed because of the dust on the road. To him it seemed like the minivan was travelling at a high rate of speed but he was unable to estimate the speed. At that time, Mr. McMillan estimated the train was about a half mile away from the crossing. As the minivan got closer it slowed down and fishtailed. The minivan window looked like it was down. Then there was the collision. Mr. Hamilton engaged the emergency brakes upon impact.

[54] When the train stopped he grabbed the first aid kit and went back to the minivan. The tail end of the train was still on the crossing close to 3,000 feet back from the locomotive.

[55] The video was played for Mr. McMillan. He said it portrayed the weather accurately. He identified the locomotive door which he left open when he exited to go back to the crossing. Mr. McMillan also identified the train horn heard on the video and said Mr. Hamilton left it on at the end.

[56] On cross-examination, defence counsel elicited the discussion with Mr. Hamilton on the ride back to London, his employment with CP, and the fact that CP retained a civil lawyer for him. Mr. McMillian said it is recommended to sound the whistle at the quarter mile post. He believed that is when it was done but said exactly when it was done will be on the black box. Mr. McMillan said there was no effort to stop before the collision and added that it takes a long time for a train to stop.

Response to Challenges and Findings of Fact

[57] The defence challenges the speed evidence and advances the claim of motive/bias and collusion. I reach the same conclusion on motive/bias and collusion as written above. With regard to Mr. McMillan’s general description of the minivan speed as a seemingly high rate with an inability to estimate, I accept it as a very general estimate. It is, however, of very little assistance because such generalizations are so relative and do not lend themselves to a number or even a range.

[58] I accept the evidence of Chris McMillan. He was straight forward. He did not embellish. I was impressed by his evidence.

3. Black Box And Train Video

[59] From the beginning, the defence has challenged the accuracy and continuity of the black box data and the video from the train camera. The defence asserts that the Crown has not established continuity and that CP Rail had control over both, somehow suggesting an economic motive to alter. To this general assertion I note, with interest, the following. First, the defence used the black box data to argue that the train operators did not follow the operating rules regarding when to commence whistle blowing, how to blow the whistle, and when to brake. From this, the defence argued the train and not the accused was at fault. Second, the defence used the video to show that the look and shrug claimed by Mr. Hamilton were not captured on the video. Third, the accused testified and identified his minivan and himself in the video. And fourth, the facts from both are not seriously in dispute and the correct focus in this trial is on the driving of the minivan, not on the train.

[60] In any event, the challenge has been made and I will resolve it.

[61] At trial both the video and certain data from the black box were admitted as exhibits. The defence vigorously argued the authentication/continuity issue for the video but only tepidly made the argument for the black box. I admitted both and reaffirm those rulings. Regardless, I address both because (1) weight now is an issue and (2) certain evidence considered by me during trial on the admissibility issue, namely the opinion evidence of Mr. Wachs and the lay-opinion evidence of Mr. Gelz, that the black box and the video were tamper-proof, has been subsequently rejected by me in the motion to stay. I adopt those reasons.

[62] Two principal witnesses were called on this issue: Kim Wachs and Stefan Gelz.

[63] Stefan Gelz has been an employee of CP Rail for almost twenty five years. In 2012 he held the position of trainmaster for an area which included Essex County. Essentially he was in the day-to-day charge of engineers and conductors. One of his responsibilities was to attend any collision involving a CP Rail train and to download the data from the train’s black box and the train’s video camera system.

[64] On June 10, 2012, he did just that regarding the collision before the court. The data from the black box and the video were downloaded onto his laptop computer. They are separate and went into separate files. While still in the locomotive, Mr. Gelz checked his downloaded data and viewed the downloaded video to make sure he secured the data and video. He did. Subsequently he sent the video to a secure site maintained by the CP Police in Calgary. He sent the black box data as an attachment to an e-mail to various CP personnel. Mr. Gelz retained the file with the black box data on his computer. When Mr. Wachs became involved in the case in 2015, Mr. Gelz sent the black box data file to Mr. Wachs, which was still on Mr. Gelz’s computer, again as an attachment to an e-mail. At trial, Mr. Gelz was not asked to view the video.

[65] Mr. Wachs has been in the railroad business almost all his adult life. He worked for CP Rail from 1981 until he retired on August 1, 2016. For the last ten years of his employment with CP Rail, Mr. Wachs was the Manager of Operating Practices. In that position, he oversaw compliance with the railroad’s operations manual, which included performance of analyses of black box data from train incidents. Mr. Wachs was qualified by me as an expert witness to give opinion evidence in two areas: 1) the interpretation and analysis of train event recorder data including its relation to the train video recorder; and 2) CP Rail protocol including its rules and regulations.

[66] When Mr. Wachs was brought into this case in 2015 he obtained the black box data file from Mr. Gelz electronically as an e-mail attachment and the video from the CP Police in Calgary. The two are separate recording devices. They are not integrated. Mr. Wachs compared them and determined they recorded the same collision incident on June 10, 2012, at 9:42:00. Mr. Wachs noted the video times are different by seven seconds. He attributed the difference simply to different clocks by different manufacturers. He believed the black box time to be accurate and used that.

[67] For court purposes, Mr. Wachs printed out only approximately four minutes surrounding the 9:42:00 collision time – from 9:40:42 to 9:44:55. Within this time period, Mr. Wachs testified, the printout contains all the black box data on a second-by-second basis. To assist those not familiar with reading black box data, Mr. Wachs transferred the data to an excel spreadsheet and made the collision impact zero to easier show the time and distance before and after the impact. The distance is noted in feet and the train speed in miles per hour. He also added colour and his comments to the spreadsheet. The time and distance numbers on the spreadsheet are rounded numbers. The exact numbers can be found on the raw data sheet. Both the raw data for these four minutes and the excel spreadsheet were made exhibits.

[68] According to Mr. Wachs, he did not see any violations of the rules except for the delayed whistle blowing which, he added, was not uncommon for engineers. With regard to the protocol for emergency braking, Mr. Wachs testified that an engineer must break if there is imminent danger of contact but imminence is a judgment call by the engineer. Mr. Wachs said it was inappropriate to place a train into emergency braking on seeing an approaching car.

[69] The video and four still photographs from the video are in evidence. The video is a very short clip looking ahead of the locomotive and showing the countryside, the clear sky, an approaching minivan, and the views as the train slowed down. The four still photographs are quite blurry. The first two photographs show the countryside, the clear sky, and the approaching crossing without any minivan visible. The last two show a dark coloured minivan approaching the crossing from the right, on the left side of Strong Road.

[70] In his evidence, Mr. Hamilton identified the weather and visibility in the video and, despite the poor quality, the Strong Road approach and the approaching minivan in the still photographs. Mr. McMillan too was shown the video. He identified the visible locomotive door which he left open when he exited to go back to the crossing after the train stopped. Mr. McMillan testified the video accurately portrayed the weather. Mr. McMillan also commented on the train horn heard in the video. In addition, Mr. Williams identified his minivan and himself from a freeze frame of the video as his minivan approached the crossing.

[71] After reassessing the facts in light of my subsequent ruling disallowing certain evidence from Mr. Wachs and Mr. Gelz as well as the additional evidence of Mr. Williams, I reach the same conclusion as my earlier decision with regard to the video and still photographs. I find the videos and still photographs are accurate representations of the area, the weather, and the events as they unfolded. I find they are not misleading in any way. I find that they have been adequately verified. And I find there is no evidence of any alteration. They are entitled to full weight.

[72] With regard to the black box data, I reaffirm my earlier decision on admissibility. The evidence confirms its authenticity. The data was downloaded by Mr. Gelz, stored in a computer file on his laptop, and sent to Mr. Wachs electronically. There is no continuity issue. The black box data has been verified. There is no evidence of any alteration and I find none. The black box data is entitled to full weight.

[73] The pertinent black box evidence is the following. As the train approached this crossing, it was on cruise control travelling at a constant speed of 48.6 miles per hour. The train’s headlight and ditch lights were on. The train started blowing its whistle or horn at approximately 18 seconds before the collision and approximately 1,193 feet before the crossing. Upon blowing the whistle or horn, a bell automatically began ringing. (This commencement was approximately 127 feet and approximately two seconds past the quarter mile post.) The whistle/horn was blown initially at approximately 18 seconds before the collision, then again at approximately ten seconds before the collision, then continuously from 7 seconds before the collision. The train did not brake or slow down before the collision. The collision happened at 9:42:00 a.m. At the collision, the emergency brakes almost immediately were engaged at approximately 9:42:01.2. The train did not begin to slow down for approximately 300 feet and approximately 6 seconds later. The train did not come to a complete stop until approximately 55 seconds later, almost one half mile down the tracks.

4. Brad Williamson

[74] OPP Cst. Brad Williamson responded to the collision scene on June 10, 2012. He was present as a designated technical collision investigator. He examined the scene then and a few days later. He collected evidence and he took some measurements and photographs. He further examined the minivan and its door after it was towed to Myers Towing.

[75] Cst. Williamson was offered and accepted as an expert witness to give evidence on the following: 1) the cause of the collision; 2) the interpretation of evidence from the scene and the minivan; 3) the range of speed of the minivan; and 4) the range of braking distances of the minivan. In my expert witness ruling, I expressed concerns with Cst. Williamson as an expert witness.

[76] Now, at the end of the evidence, defence counsel urges me essentially to reject Cst. Williamson’s expert opinions especially as they relate to speed. I agree. His inexperience and admitted failings were not minor. The officer had to supplement his original report because he did not know that the minivan had ABS brakes, which would impact the time and distance to stop. As well, the test vehicle used was much larger than the minivan and had non-ABS brakes. In addition, the officer’s supplemental report was based on a single published article of unknown quality. With regard to his opinions on the range of speed and braking distances of the minivan, I can and will give them no weight. Under all the circumstances, I find they are unreliable. With regard to his opinion evidence of the cause of the collision and the interpretation of the evidence, I give them little weight. On the causation issue, after hearing all the evidence I find no necessity in his opinion. With regard to the interpretation issue, I find little necessity and remain concerned over his advocacy. As a consequence, I give them little weight.

[77] I make it very clear, however, that otherwise the evidence of Cst. Williamson is accepted. He accurately described the scene and the minivan, took some measurements, and took some photographs. Much of his evidence is uncontested and was included in the uncontested facts section above.

[78] In addition, Cst. Williamson examined the heavily damaged minivan at the scene and later at Myers Towing. At the scene the officer saw that the driver’s side rear wheel was missing from the minivan and was found separately in a farm field. The officer also examined the driver’s door both at the scene and later at Myers Towing. At the scene, he found no shattered glass around the door. At Myers, he looked down into the door and saw the shattered but intact window.

5. The Minivan’s Brakes

[79] The defence claims there is insufficient evidence that the rear brakes were functioning at the time of the collision. I disagree for the following reasons.

[80] There is evidence of heavy braking by the minivan as it approached the crossing. It comes from the two eye-witnesses, Mr. Hamilton and Mr. McMillan, as well as from the physical evidence on the gravel road at the scene. Indeed, defence counsel relies in part on the braking by Mr. Williams as claimed evidence of the lack of criminality.

[81] Former OPP Cst. Stephen McEvoy was called to give evidence on his examination of the minivan in 2014. Mr. McEvoy was qualified as an expert witness to give opinion evidence on the mechanical condition of the minivan, specifically on its brakes, steering and tires. He did so.

[82] Mr. McEvoy testified that there were two separate, unconnected braking systems on the minivan – the front and the rear. The braking capacity of the two systems was not equally divided. The front braking system was 70 per cent of the vehicle’s braking capacity and the rear braking system was 30 per cent.

[83] With regard to the front brakes, Mr. McEvoy said all the components were present. In addition, he was able to test the system and conclude that the front brakes were functioning. With regard to the rear brakes, Mr. McEvoy testified that all the components were present but that he was unable to test the rear braking system. Mr. McEvoy explained it was a sealed hydraulic system. Because the left rear wheel was torn from the minivan, severing the system, he was prevented from testing it. Thus, in contrast with the front brakes, Mr. McEvoy was unable to prove the rear brakes were functioning. From his examination, however, Mr. McEvoy opined that the rear brakes were functioning.

[84] Mr. Williams, the accused and owner of the minivan, testified at the trial. He testified that he had the minivan for about two years before the collision. He said the brakes were working that day and if he thought otherwise he would not have driven.

[85] When Cst. McEvoy inspected the minivan he found it outside in the elements. He stated in his report, “The vehicle had been left unsecure and outside. The elements played some of a role in the condition of the vehicle when it was inspected.” At trial, Cst. McEvoy testified that some of the car components were rusted, which he took into consideration during his evaluation. The final conclusion in his report reads as follows: “In my opinion the vehicle would have been able to steer and stop during the collision. The damage to the braking system and suspension were all collision related.”

[86] After considering all of the evidence, I find the rear brakes of the minivan were functioning at the time of the collision. I was impressed by former Cst. McEvoy and his evidence. He considered the condition of the minivan. He also considered his inability to test the rear brake system because the wheel had been torn from the minivan at the collision. Regardless, and based on his expertise, after examining the components of the rear braking system, he opined that it was functioning at the time of the collision. This conclusion is supported by the evidence of Mr. Hamilton, Mr. McMillan, and the accused, as well as by the physical evidence in the gravel road. Again, I find the rear brakes were functioning at the time of the collision.

[87] Mr. McEvoy also gave evidence with regard to the tires and steering of the minivan. He reported all four tires were well worn and the steering was functioning.

6. Window Down

[88] The defence argues that there is insufficient evidence to establish that the driver’s window was down at the time of the accident. I disagree and rely on the evidence of the two eye-witnesses, Mr. Hamilton and Mr. McMillan, the evidence of Cst. Williamson who inspected the driver’s door, and the video evidence which shows the window down. I also note that in his testimony, Mr. Williams said he did not know whether his window was up or down at the time. In sum, I find the driver’s window of the minivan was down at the time of the collision.

The Defence Evidence

1. Andrew Williams

[89] The accused, Mr. Andrew Williams, gave evidence in his trial. Mr. Williams now is 31 years of age. He married when he was 18 and had four children: Wynter, Dryden, Brooklyn and Jasmin. In his household, he worked and his wife took care of the children.

[90] Mr. Williams reported vision and hearing problems. He said he was kicked on the left side of his face by a horse when he was nine years of age. He testified that the blow left him with blurry vision and twitching in his left eye. Mr. Williams said he could see out of his left eye but not very well. He said he especially had poor peripheral vision out of that eye. Mr. Williams said that he has been living with this left eye vision problem since he was nine. In addition, this eye problem was aggravated by a toxic soda spill in the left eye in 2010 while he was working for a chemical company.

[91] Mr. Williams also said the horse kick led to reduced hearing. He estimated his hearing as 60 per cent out of his left ear and 75 to 80 per cent out of his right ear.

[92] On cross-examination, Mr. Williams said he could not remember when he last had his eyes or ears checked before the collision. He did not notify the licensing ministry about either his eyes or his ears because he did not think they were significant. In addition, Mr. Williams said if his doctor thought they were bad enough, the doctor would have acted.

[93] About two years before the collision, Mr. Williams bought a used Dodge Caravan. With the help of a friend and his brother-in-law, the minivan’s brakes were serviced. He believed his brakes worked fine. He was saving money to replace his tires. He knew his tires were well worn but they drove fine. Mr. Williams thought the minivan was running fine that day or he would not have driven it.

[94] On Sunday morning, June 10, 2012, he let his wife sleep and took the children to Tim Hortons for donuts. He put them in car seats in the minivan. Mr. Williams said he could not take his normal route to the Tim Hortons because a bridge was out and so he had to take a back way. He bought a pack of Timbits and proceeded home again via a back way. He followed a detour arrow. He turned onto Strong Road. He saw no speed sign or railroad sign. His children were eating Timbits, listening to music, and singing. Mr. Williams was drinking his coffee, listening to the radio, and singing to the music. He gave an estimate of his speed from 60 to 65 to 70 kilometres per hour but not over 80. He didn’t know whether he looked at his speedometer but knows how fast he is going. It was a nice sunny day, then he got hit by a train. Mr. Williams testified he saw no stop sign and no flashing lights. He saw nothing. On cross-examination, Mr. Williams said it was a real sunny day and that the sun was in his eyes. He was not wearing dark glasses nor did he drop the sun visor down. He described the sun as a little off to his left or east side, not in front of him.

[95] On cross-examination, Mr. Williams was shown the signs at and approaching the crossing. He said he could not remember seeing them. He said he did not mean to say he did not see them but only that he could not remember seeing them. Mr. Williams added he could not remember a lot of stuff.

[96] Mr. Williams could not remember seeing a train. He said he was looking forward. He remembered hearing a little noise at the last second. He heard it above the volume of the radio. Mr. Williams could not remember where he was on the road when he heard it. When he heard the noise, he braked, leaned back to the children, and got hit by the train. He said he leaned back to his children because he was scared. Mr. Williams said he did not remember anything after that. That part and turning onto Strong Road are the only parts he remembered.

[97] Mr. Williams said he could not remember whether his window was up or down. He was shown a frozen frame of the video and identified himself and his minivan.

[98] He denied ever shrugging his shoulders and driving forward.

[99] In the collision, two of his children died and a third was seriously injured.

[100] Mr. Williams said he was a good driver who drives by the law. He said he would not put his children at risk. When he is with his children, Mr. Williams said he does not speed. He testified he is careful at all times but more careful when he is with his children.

[101] Mr. Williams described the injuries he received in the collision. He suffered a broken neck, a crushed skull, and a broken collar bone. Mr. Williams said he was in a coma for a week and in the hospital for three weeks after that. As a result of his injuries, Mr. Williams said he has memory problems, both long term and short term. He said he has a brain injury, brain damage, and he cannot remember.

[102] As a witness, Mr. Williams generally presented as a simple and decent man who is living with the burden of this tragedy. Mr. Williams suffered serious head injuries from the collision. I accept as accurate, Mr. Williams’ evidence that he only remembered turning south onto Strong Road and leaning back to his children immediately before impact. I cannot and do not accept his other Strong Road evidence due to my serious reliability concerns. I do not believe Mr. Williams is being intentionally deceptive. I do believe he does not remember and thus any evidence during this time is unreliable. Thus, I specifically reject his evidence that sun was in his eyes; what speed he was travelling on Strong Road; the shoulder shrug denial; and not seeing the warning signs or the train.

[103] With regard to his evidence that he heard a noise, braked, was scared, and leaned back to his children, all immediately before impact, I accept that is his memory but reject this as accurately depicting what happened leading up to the collision. First, the memory of Mr. Williams is bad and non-existent for the events on Strong Road. And second, this evidence is inconsistent with the clear evidence that he braked and slid beginning 51 metres before the railroad tracks. I accept that evidence and reject his evidence in this regard.

2. Jeff Williams

[104] The older brother of Andrew Williams, Jeff Williams, testified. He confirmed that Mr. Williams got kicked in the face by a horse when Mr. Williams was nine years of age.

[105] Brother Jeff watched over the seriously injured Andrew Williams while he was in the hospital following the collision.

POSITIONS OF THE PARTIES

1. Defence

[106] The defence says the driving of the accused was neither dangerous nor amounted to criminal negligence. At worst it was momentary inattentiveness but that conduct was not criminal. At most it was civil negligence or careless driving. The collision was a terrible accident with horrible consequences but the driving of Mr. Williams did not rise to the level for which criminal sanctions should attach. He tried to stop before the tracks and was unable to do so. This effort to stop supports the conclusion that there was no criminal mens rea here. There is no evidence of speeding or of a pattern of “crazy” driving. Mr. Williams was on an unfamiliar road with less than perfect eyesight and hearing. There is insufficient evidence that the rear brakes of the minivan worked at the time.

[107] With regard to the evidence of speed, the Crown’s evidence should be rejected. The opinion evidence of Cst. Williamson on speed deserves little or no weight. He is a flawed expert and his calculations do not match the specifications of the car or the gravel road. The speed evidence of the train personnel, Mr. Hamilton and Mr. McMillan, should be rejected because of the quickness of the event, the vantage point of the train personnel, and their inherent bias in favour of the railroad.

[108] With regard to the evidence of Mr. Hamilton, the train engineer, on the purported shoulder shrug and his resulting conclusion that the minivan thereafter sped up and tried to outrun the train, it should be rejected as unreliable. The evidence of Mr. Hamilton must be treated with caution because he has a motive to slant his evidence in favour of the railroad and himself. He also admitted to bad memory and his evidence had serious inconsistencies. The court should consider the fact that Mr. Hamilton “lawyered up”, or retained counsel, in assessing his bias in favour of the railroad.

[109] Finally, the defence argues the train was at fault, it should have stopped. The engineer violated the railroad’s rules when he failed to brake upon seeing there was going to be “imminent” contact with the minivan. The minivan had no legal duty to stop at the tracks. The sign at the crossing was not a regulation stop sign and thus did not compel the accused to stop. The sign was only advisory. In addition, the train’s whistle was blown late in violation of the railroad rules. Thus, the train was the cause of the accident and not the accused.

2. Crown

[110] Mr. Williams’ conduct that led to the collision was purposeful and that makes out criminal negligence. One inference from the evidence is that Mr. Williams saw the oncoming train and tried to beat the train to the crossing. That is classic criminal negligence – recognition of the risks and an intentional continuation of the conduct.

[111] Another path to criminal negligence, says the Crown, is the accused’s failure to take steps to avoid the risk of an oncoming train in the face of multiple warning signs and a clearly visible train. According to the Crown, this same set of facts also supports a finding of guilty on the dangerous driving counts.

[112] Although there is no evidence of actual speed of the minivan, both Mr. Hamilton and Mr. McMillan testified about the minivan’s high rate of speed. And whatever the actual rate of speed, it was an inappropriate rate under the circumstances because the accused was unable to stop. If the road and its surface are unfamiliar to a driver, the driver has to exercise a greater degree of care. The warning signs were clearly visible and as a driver, the accused should have adjusted his driving to meet the potential danger. It was the accused’s driving that caused this collision.

GOVERNING PRINCIPLES

1. Criminal negligence causing death

[113] Criminal negligence is defined in s. 219 of the Criminal Code. It provides, in pertinent part, “Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.”

[114] Before I can find Mr. Williams guilty of criminal negligence causing either bodily harm or death, Crown counsel must prove each of these three essential elements beyond a reasonable doubt:

1. The accused operated a motor vehicle and failed to stop for a train;

2. In driving a motor vehicle and failing to stop for a train, the accused showed a wanton or reckless disregard for the lives or safety of others; and

3. These acts by the accused caused the bodily harm or death alleged.

[115] To prove a wanton or reckless disregard for the lives or safety of others, Crown counsel does not have to prove that the accused meant to kill or harm another. On the other hand, proof that the accused was careless in what he did is not enough to prove this essential element. Crown counsel must prove beyond a reasonable doubt that what the accused did was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances. To prove what the accused did was a marked and substantial departure from what a reasonably prudent person would do in the same circumstances, Crown counsel must prove beyond a reasonable doubt either of the following:

1. The accused was aware of an obvious and serious risk to the lives or safety of others, but went ahead anyway despite his knowledge of that risk; or

2. The accused gave no thought to the risk to the lives or safety of others.

[116] Crown counsel does not have to prove both, only one.

2. Dangerous Operation of a Motor Vehicle

[117] Section 249(1)(a) of the Criminal Code provides:

Every one commits an offence who operates … 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;

[118] To find the accused guilty of dangerous operation of a motor vehicle causing bodily harm or death, Crown counsel must prove each of the below four essential elements beyond a reasonable doubt:

1. the accused operated a motor vehicle;

2. the accused operated the motor vehicle in a manner that was dangerous to the public;

3. 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; and

4. the accused’s dangerous driving caused the bodily harm or death alleged.

5. Actus Reus

[119] The actus reus for dangerous driving is set out in the statute: driving “in a manner that is dangerous to the public, having regard to all the circumstances”. The Supreme Court in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 34, reviewed the necessary analysis:

In considering whether the actus reus has been established, the question 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, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving base on the consequence. There must be a meaningful inquiry into the manner of driving” (emphasis added). A manner of driving can rightly 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 the subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [Emphasis in original]

4. Mens Rea

[120] Also in Roy, at paragraphs 36-42, the Supreme Court addressed the mens rea requirement for dangerous driving:

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). 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.

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71).

The marked departure from the standard expected of a reasonable person in the same circumstances – a modified objective standard – is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused`s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea – that is deliberately dangerous driving – would support a conviction for dangerous driving, but proof of that is not required [citations omitted].

Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind (para. 43).

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for 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.

In other words, 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.

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]. In other words, 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. [Emphasis in original]

5. Causation

[121] The causation inquiry extends beyond a simple “but for” test. Causation includes both legal and factual causation, only the latter essentially being the “but for” test. The former is more expansive and considers the moral blameworthiness of the accused. The Supreme Court of Canada has explained these concepts in this context. In R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 44-46, Arbour J. provided the following:

In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with 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. Where factual causation is established, the remaining issue is legal causation.

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: [citations omitted]. In the determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. ….

In a given case, the jury does not engage in a two-part analysis of whether both factual and legal causation have been established. Rather, in the charge to the jury, the trial judge seeks to convey the requisite degree of factual and legal causation that must be found before the accused can be held criminal responsible for the victim’s death.

[122] The law recognizes that consequences may have more than one cause. For criminal liability to attach, the conduct by the accused does not have to be the sole cause, or even the major cause, but it must be at least a contributing cause beyond the di minimis range. R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506. Later cases maintain the same standard but prefer different language – a “significant contributing cause” of the relevant consequence. Nette, at para. 71; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 17.

[123] In R. v. L. (K.), 2009 ONCA 141 248 O.A.C. 260, the accused appealed his conviction for dangerous operation of a motor vehicle causing death on causation grounds. He claimed a mechanic’s safety certification and the subsequent brake failure severed the accused’s causal connection and thus his legal responsibility for the cyclist’s death. L. (K.), at para. 16. The Ontario Court of Appeal disagreed and upheld the conviction. “The criminal law does not recognize contributory negligence nor is it equipped with any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing”. L. (K.), at para. 18. The task of the trial judge is not to determine who was more responsible for the death but rather whether the conduct of the accused was at least a significant contributing cause of the death. L. (K.), at para. 19. “It is … immaterial here that death was in part caused by a defective braking system”. L. (K.), at para. 19.

[124] To prove that the accused’s conduct caused a person’s bodily harm or death, Crown counsel must prove beyond a reasonable doubt that the accused’s conduct contributed significantly to the bodily harm or death, even if that conduct was not the sole cause or even the main cause of the person’s bodily harm or death. To decide whether the accused’s conduct was a significant contributing cause of the bodily harm or death, I must consider all the evidence.

6. Applicability of W.D. Instruction

[125] When credibility is an important issue in the case, for example, when there are two contradictory versions of events, a trial court must instruct the jury

or him or herself that the reasonable doubt standard applies. In these circumstances, the suggested instruction is as follows:

1. First, if you believe the evidence of the accused, obviously you must acquit.

2. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

3. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guild of the accused.

R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; R. v. Dinardo,

2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23.

[126] But that does not mean that such an instruction is appropriate in all cases where an accused gives evidence. When a case does not turn on credibility issues and none of the evidence of the accused negates any essential element, the W. (D.) charge is not needed. R. v. McClenaghan, 2010 ABCA 222, 482 A.R. 343, at paras. 27 & 29, leave to appeal to S.C.C. refused, (2011), 261 C.C.C. iv.

7. Duty To Stop At Railroad Crossing

[127] Section 163 of the Highway Traffic Act , R.S.O. 1990, c. H.8, provides the following:

Vehicles required to stop at railway crossing signal

(1) When the driver of a vehicle is approaching a railway crossing at a time when a clearly visible electrical or mechanical signal device or a flagman is giving warning of the approach of a railway train, he or she shall stop the vehicle not less than 5 metres from the nearest rail of the railway and shall not proceed until he or she can do so safely.

Stop signs at railway crossings

(2) Every driver of a vehicle approaching a stop sign at a railway crossing shall, unless otherwise directed by a flagman, stop the vehicle at the marked stop line or, if none, then not less than five metres from the nearest rail of the railway, and shall not proceed until he or she can do so safely

[128] Section 6 of the Signs Regulations, R.R.O. 1990, Reg. 615, provides, in pertinent part, as follows:

(1) A stop sign erected before August 1, 1993 shall,

(a) be octagonal in shape … and bear the word “stop” in white retro-reflective letters … on a background of red retro-reflective material ….

(2) A stop sign erected on or after August 1, 1993 shall be as described in clause (1)(a) and illustrated in the following Figure: [common stop sign]

(3) On or after August 1, 2015, no stop sign shall be valid except as described and illustrated in subsection (2).

[129] Section 26.2 of the Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.) provides, “The users of a road shall give way to railway equipment at a road crossing if adequate warning of its approach is given.” The definition of “railway equipment” is found in the definitions section of the Railway Safety Act, s. 4(1), which states the following:

(a) a machine that is constructed for movement exclusively on lines of railway, whether or not the machine is capable of independent motion ….

[130] The definition of “road crossing” is found in the same definitions section and provides, in pertinent part, as follows: “that part of a road that passes across … a line of railway”.

ANALYSIS

1. Preliminary Issues

[131] Certain issues should be resolved before commencing with the analysis.

[132] The minivan is a motor vehicle pursuant to ss. 2 and 249 of the Criminal Code.

[133] The children in the minivan were part of the public within the meaning of s. 249(1)(a) of the Criminal Code.

Personal Characteristics

[134] The defence asserts that the factors of vision, hearing and unfamiliarity with Strong Road should be considered as factors in the court’s mens rea assessment.

[135] For the offence of dangerous driving, the mens rea element requires proof that 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. Roy, at para. 36. Proof of a marked and substantial departure is required for the offence of criminal negligence.

[136] Whether frailties or personal characteristics are factors which must be taken in account was an oft debated issue before R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 40. Now it has been resolved for over twenty years. “Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and education are not relevant.” Beatty, at para. 40. Common examples of the types of incapacity the court will consider include circumstances where the accused, without prior warning, suffers a heart attack, an epileptic seizure or a detached retina. Beatty, at para. 40. As Lamer C.J.C. aptly pointed out in Creigton at p. 30,

[W]hile a person with cataracts cannot be faulted for having reduced vision, he or she may be expected to avoid activity in which that limitation will either create risk or render him or her unable to manage risk which is inherent in an activity (driving, for example). The reasonable person is expected to compensate for his or her frailties, to the extent he or she is conscious of them and able to do so.

[137] Thus, persons who are aware of a personal limitation but continue to engage in activities for which their limitations may be an impairment are precluded from relying on their known limitation as an incapacity in this context. R. v. Robinson, 2007 CarswellOnt 1085 (S.C.), at paras. 55-58.

[138] Here, Mr. Williams says he has had significant vision and hearing loss as a result of being kicked by a horse when he was nine years of age. He admitted he has known about this limitation since that time yet he still drove motor vehicles. His decision to drive his children on June 10, 2012, knowing these limitations, was voluntary on his part. These are not the type of characteristics which can or should be considered in the mens rea analysis. Thus, they will not be considered.

[139] With regard to the accused’s lack of familiarity with Strong Road, I note that driving on an unfamiliar stretch of road is not a unique or unfamiliar experience. This lack of experience on a particular road is precisely the type of personal attribute that is not relevant. I shall not consider it.

2. Dangerous Operation of a Motor Vehicle

[140] The accused is charged with multiple counts of dangerous operation of a motor vehicle. Three of those counts have added causation elements for the bodily harm and deaths of the three children. Because all arise out of the same train-minivan collision, and because of the admissions made at the beginning of the trial, it is only necessary to review the elements once. The analysis will apply to all.

[141] The two essential elements at issue here are the act requirement – whether Mr. Williams operated the minivan in a manner that was dangerous to the public, in this case his children in the minivan, and the mens rea requirement – whether this 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. They will be addressed individually.

The Act Requirement

[142] In considering this issue, the manner of driving, I must consider all the circumstances including the nature, condition and use of Strong Road as it approached the railroad crossing, and the amount of traffic at that time or the amount of traffic that might reasonably have been expected. The focus is on the risks, if any, created by the accused’s manner of driving, not on the consequences of a subsequent accident. This must be a meaningful inquiry into the manner of driving. This is an objective standard.

[143] Mr. Williams was driving south on Strong Road, a gravel two lane country road through farm fields. He was driving his minivan with his four young children as passengers. There was no other vehicular traffic on Strong Road. There was a large and long freight train travelling west on the railroad tracks which crossed Strong Road. The time was about 9:40 in the morning in late spring, June 10. This was a clear, sunny day. Strong Road approaching the railroad tracks is through very flat land. There were no obstructions to the vision of a driver driving south on Strong Road approaching the train tracks. There were no houses, farm buildings, trees, woods, nothing. And, because it was June 10, the crops were very low and presented no visual obstruction.

[144] Everyone in the minivan, Mr. Williams and his four children, was happy. The radio was on loud and all were singing and eating Timbits, and Mr. Williams was drinking his coffee. The driver’s window was down. The train commenced blowing its horn at approximately 18 seconds before the crossing.

[145] The precise speed of the minivan on Strong Road is unknown. The minivan was travelling fast enough to leave a trail of dust. There were two clearly visible posted signs as the minivan approached the railroad crossing. The first, approximately 210 metres from the crossing, was a standard railroad crossing sign. The second, approximately 107 metres from the crossing, said, “BE PREPARED TO STOP.”

[146] Mr. Williams did not brake until well after passing the second “BE PREPARED TO STOP” sign, approximately 51 metres before the crossing. The braking effort was heavy. It caused the minivan to slide to its left or to the east side of Strong Road. It is clear Mr. Williams braked when he saw the train. Given the speed of the minivan at this point, whatever it was, braking at that distance before the crossing was insufficient to bring the minivan to a stop before the crossing.

[147] The train was there to be seen if Mr. Williams was looking. The train was there to be heard, if Mr. Williams was listening. The warning signs of the approaching railroad tracks were visible, if Mr. Williams was paying attention. Clearly Mr. Williams was unaware of the onrushing train until he commenced braking at about 51 metres before the tracks. And clearly, at the speed he was going at the time, there was insufficient time to stop the minivan before the tracks.

[148] Was the driving of Mr. Williams, viewed objectively, dangerous to his child passengers in all the circumstances? Did his driving endanger his passengers? Did his driving create a risk of injury to his passengers? In this context, did the failure of Mr. Williams to look, listen, and slow down, in all the circumstances, objectively endanger his passengers?

[149] I am convinced, beyond a reasonable doubt, that the manner of driving by Mr. Williams down Strong Road, viewed objectively, was dangerous to the public, to his passenger children, in all the circumstances.

The Mens Rea Requirement

[150] The next issue is whether this dangerous driving by Mr. Williams was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. In this regard, I address two questions. First, whether, in all the circumstances, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. And second, if so, 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.

[151] I answer both in the affirmative. No reasonable person driving a motor vehicle wants to clash with a train. It is obvious the car will lose. Thus, when seeing multiple signs of an approaching railroad crossing, a reasonable driver will look, listen and slow down. The signs alone foretold the risk. So too did the sight and sound of an approaching freight train. A reasonable driver pays attention, both visually and audibly, to the driver’s surroundings to ascertain any risks. The onrushing train was there to see and hear. In all the circumstances here, a reasonable driver would have foreseen the risk posed by the approaching railroad tracks and the oncoming train and taken steps to avoid it by slowing down well before the crossing.

[152] Was Mr. Williams’ failure to foresee the risk of an oncoming train a marked departure from the standard of care expected of a reasonable person in his circumstances?

[153] I understand and appreciate that simple carelessness is insufficient. However, this was far more than simple carelessness. And this was not a momentary lapse in judgment. A reasonable person driving down Strong Road would take notice of warning signs of an approaching train crossing and would look and listen for a train. The locomotive leading this train was large, very large. This was not a five year old on a skateboard. This was an onrushing freight train. A reasonable driver does not ignore or disregard warning signs. A reasonable driver pays attention to the surroundings. The risk posed was a collision with a train. Thus, the accused’s driving toward the approaching train crossing, with either a lack of attention to or an ignorance of the visible warning signs and the visible and audible oncoming train, is a marked departure from the norm.

[154] The defence asserts that the train is at fault for this collision and not Mr. Williams. According to the defence, the train violated its own rules by failing to stop because a collision was imminent. Further, Mr. Williams had no duty to stop. The stop sign at the crossing was only advisory. And finally, Mr. Williams claims he was not put on fair notice because the horn was blown late in violation of the railroad’s own internal rules. I disagree for the following reasons.

[155] First, I do not accept the premise that the engineer violated company rules for the failure to engage the emergency brakes seeing the approaching car. The claimed rules violation is not clear. Imminence can be quite subjective. It is a judgment call. I cannot say the engineer’s judgment was wrong in this case. He believed the approaching vehicle had time to avoid the collision and I find it did, if it had acted sooner. By either speeding up or slowing down, the minivan could have avoided the collision. In contrast, it is not easy to stop a freight train. It took more than a half mile to stop this train after the application of the emergency brakes. Moreover, it took approximately 300 feet and approximately six seconds after the application of the emergency brakes before there was any slowing of the train. If the accused’s position is correct, then every train would be required to stop when seeing an approaching vehicle. This is not the law and makes no sense.

[156] Defence counsel’s position that Mr. Williams had no duty to stop is incorrect and, more importantly, misses the point. Under the Railway Safety Act, the train had the right of way because it gave an adequate warning of its approach to the Strong Road crossing. Thus, Mr. Williams’ minivan approaching the railroad crossing at Strong Road with an oncoming train had the legal duty to stop at the crossing. The fact that the stop sign at the crossing may be advisory from the point of view of the provincial Highway Traffic Act is insignificant in this case. Mr. Williams is not on trial for failure to stop pursuant to the Highway Traffic Act. He is on trial for a dangerous manner of driving which was a marked departure from the standard of care that a reasonable person would have exercised in the same circumstances. Whether there was a Highway Traffic Act sanctioned stop sign at the crossing or not, there is no reasonable driver who would challenge a freight train on who had the right of way.

[157] Factually, the claim that the late whistle blowing deprived the accused of fair notice that a train was coming is devoid of facts. The engineer commenced the blowing very shortly after the quarter mile post. Per the black box data, he was approximately two seconds and 127 feet late. This left approximately 18 seconds and 1,193 feet before the crossing. The suggestion that this was somehow unfair notice cannot withstand any scrutiny.

[158] Most importantly, “the focus of the fault requirement is on the foresight of the risk created by the manner of the accused’s driving.” R. v. Ally, 2017 ONCA 67, at para. 7. Here, I must consider the foresight of the risk created by driving toward a railroad crossing, without slowing down, with a visible and audible oncoming train, without heeding two warning signs, and at a rate of speed that prevented the ability to stop before the crossing.

[159] In sum, the claimed fault of the train is not an issue here.

[160] I am convinced, beyond a reasonable doubt, that the dangerous manner of driving by Mr. Williams down Strong Road was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.

3. Criminal Negligence

[161] The crime of criminal negligence is more serious than dangerous operation of a motor vehicle. Not surprisingly, it mandates a higher mens rea requirement: a wanton or reckless disregard for the lives or safety of others. Like dangerous driving, this is an objective standard but it is heightened to a marked and substantial departure from what a reasonable person would do in the same circumstances. This can be proved by either proof that the accused was aware of the risk to the lives or safety of other but proceeded notwithstanding the risk or that the accused simply gave no thought to the risk.

[162] In submissions, the Crown argued that the evidence satisfied this higher standard in two ways. First, the evidence of the engineer showed Mr. Williams saw the oncoming train and tried to beat it. Alternatively, the Crown argues the accused’s failure to take steps to avoid the risk of an oncoming train in the face of multiple warning signs and a clearly visible train supports a finding of criminal negligence.

[163] I disagree. Regarding the first argument, I agree that if the evidence supported a finding that Mr. Williams looked up at the locomotive, shrugged his shoulders, and accelerated, the higher standard for criminal negligence would be proven. Such conduct, in my opinion, would be classic criminal negligence. But, I rejected that evidence as unreliable so it no longer is present for my consideration here.

[164] Regarding the second argument, the Crown seems to suggest that the application of the same circumstantial evidence considered above in the dangerous driving analysis supports a finding of criminal negligence. I think not. The precise line between a marked departure and a marked and substantial departure often is difficult to draw. The true distinction lies in the degree of moral culpability. A conscious decision to continue conduct in the face of a serious risk establishes a heightened moral culpability. While I am convinced of a marked departure here, beyond a reasonable doubt, on the evidence before me I simply cannot find, beyond a reasonable doubt, that the evidence showed this higher moral culpability, a wanton or reckless disregard for the lives or safety of others, by Mr. Williams.

4. Causation

[165] Two vehicles, a freight train and a minivan, approached an intersection at the same time. Neither stopped. There was a collision causing injury and death. Certainly, but for the failure to stop by Mr. Williams, the collision would not have happened. More importantly, was this failure to stop by Mr. Williams a significant contributing cause of the relevant consequences, namely the injury and deaths? My focus is on the conduct of the accused. Whether or not there is another contributing cause is not my concern here. I find, beyond a reasonable doubt, that the conduct of Mr. Williams, his failure to stop under all the circumstances reviewed above, was a significant contributing cause of the injury and death of his children.

CONCLUSION

[166] For the above reasons and after reviewing all the evidence, I make the following findings:

1. The evidence of Mr. Williams was not a denial that he did not operate his minivan in a manner that was dangerous to the public on Strong Road and thereby cause bodily harm and death to his children.

2. I am not left with a reasonable doubt by the evidence of Mr. Williams as to any essential element of the crimes of dangerous operation of a motor vehicle causing bodily harm and death to three children.

3. On the basis of all the evidence I do accept, I am not convinced beyond a reasonable doubt of the guilt of Mr. Williams of the criminal negligence counts.

4. On the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of Mr. Williams on the dangerous operation counts. I find that Andrew Williams operated his motor vehicle, the minivan, on Strong Road, in a manner that was dangerous to the public and thereby caused the death of Brooklyn Williams and Wynter Williams and bodily harm to Dryden Williams. I make these findings beyond a reasonable doubt.

[167] Accordingly, I find ANDREW WILLIAMS as follows:

As to Count One, Criminal Negligence Causing Bodily Harm to Dryden Williams, not guilty;

As to Count Three, Criminal Negligence Causing Death to Brooklyn Williams, not guilty;

As to Count Four, Criminal Negligence Causing Death to Wynter Williams, not guilty;

As to Count Five, Dangerous Operation of a Motor Vehicle on or about June 10, 2012, contrary to Section 249(1) of the Criminal Code, guilty;

As to Count Six, Dangerous Operation of a Motor Vehicle Causing Bodily Harm to Dryden Williams on or about June 10, 2012, contrary to Section 249(3) of the Criminal Code, guilty;

As to Count Seven, Dangerous Operation of a Motor Vehicle Causing Death to Brooklyn Winter on or about June 10, 2012, contrary to Section 249(4) of the Criminal Code, guilty; and

As to Count Eight, Dangerous Operation of a Motor Vehicle Causing Death to Wynter Williams on or about June 10, 2012, contrary to Section 249(4) of the Criminal Code, guilty;

“original signed and made an Exhibit in court by Justice K. Munroe”

Kirk W. Munroe

Justice

Released orally: January 27, 2017

[^1]: On the first day of the trial, before arraignment and at the request of the Crown, Count Two was withdrawn and Count Five was amended to simple Dangerous Operation contrary to Section 349(1) of the Criminal Code, R.S.C. 1985, c. C-46.