COURT FILE NO.: CR-22-91104912-0000 DATE: 20241205

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – PUNEET GREWAL Defendant

Counsel: Jeremy Mutton, for the Crown Paula Locke, for the Defendant

HEARD: November 25, 26, 27, 28, and December 2 and 5, 2024

REASONS FOR DECISION

S.E. FRASER, j.:

I. Overview

[1] Tragically, on December 9, 2021, Puneet Grewal reversed his dump truck on a landfill site in the Town of Whitchurch-Stouffville, and ran over and killed 20-year-old Kyrsten Sujanszky, who was working on the site.

[2] Ms. Sujanszky was full of promise. The death of any young person is tragic. It leaves a gaping hole in the lives of loved ones and the pain is amplified when the death could have been prevented.

[3] Mr. Grewal now stands charged with dangerous driving causing death contrary to s. 320.13(3) of the Criminal Code.

[4] On that day, Mr. Grewal operated a dump truck to bring soil to the landfill site (“the Highway 48 site”). The site was owned by Waste Management Canada Corporation (“Waste Management”).

[5] Terra Nova Environment Services Inc. (“Terra Nova”) is a company that was in charge of the remediation of the landfill site. Waste Management contracted with them to do so. Josh Kosciesza worked on site for Terra Nova.

[6] Yashiba Minott worked for Waste Management in the scale house.

[7] Terra Nova subcontracted work to TMI Contracting and Equipment Rentals Ltd. (“TMI”), who employed Ms. Sujanszky and Anthony Garibaldi who on that day were sent by TMI to perform work on site.

[8] What we know about Ms. Sujanszky’s last movements is drawn from the dash camera footage from Mr. Grewal’s truck and the work of an accident reconstructionist.

[9] The clock on the dash camera appears to be set one hour ahead of the correct time.

[10] The dash camera footage depicts that after arriving on site and checking in at the scale house, Mr. Grewal proceeded further into the site in an easterly direction towards the tipping area (where fill is dumped) and was greeted by Ms. Sujanszky. She was standing towards the left side of the roadway (driver’s side) as he approached. Her car was parked on the opposite side of the roadway. She was wearing a black winter coat covered by a high visibility vest and no hard hat. She had her two-way radio in her hand.

[11] Mr. Grewal stopped for instructions. She asked if his load was wet. He said “pardon”. She asked if the material was wet, and he confirmed that it was. She then said, “I am going to get you to go to the top of the hill where it is snowy, and I am going to dump you at the top.” Mr. Grewal responded, “where other guy dumping?” She replied, “No, beside him, beside him, going straight up there”. Mr. Grewal said “okay” and then began to move his truck slowly forward.

[12] Ms. Sujanszky walked facing forward in front of the truck, on the driver side, with her back to the truck. She turned back once to face Mr. Grewal as he began to turn his truck around to get in a position where he could reverse and then she continued walking ahead, in an easterly direction, noticeably slipping on the snowy portion of the road on which she was walking. She was heading in the direction of the hill and the other truck parked on it when she is last seen on camera at 13:11:54.

[13] Mr. Grewal began to turn his truck around and at this point Ms. Sujanszky is no longer seen on the dash camera. What sounds like Ms. Sujanszky’s voice can be heard at 13:12:01. Mr. Grewal’s speed as he turned around was between 2 to 4 km per hour.

[14] The back up alarm on the truck is heard at 13:12:05. Then Mr. Grewal pulled forward to straighten out the truck and at 13:13:29 his speed was zero. Ms. Sujanszky’s vehicle is at this point in front of the truck. At that point, he began to reverse again. He passed the other dump truck at approximately 13:12:56. He kept a steady speed as he reversed. During a two-second interval his speed rose to 10 km/hr and other time his speed was shown at 10 km/hr for less than a second. At 13:13:08 his speed dropped to 3 km/hr, and it appears bumpy.

[15] A body, Ms. Sujanszky, appears lying in front of the reversing truck at 13:13:14 and the truck slowed further at 13:13:15 and came to a stop at 13:13:18.

[16] After stopping, the other dump truck can be seen dumping its load and driving forward. At 13:14:39, Mr. Grewal’s truck pulled forward around the body and drove to the scale house where Mr. Grewal asked Josh Kosciesza to check on Ms. Sujanszky. Mr. Kosciesza radioed Anthony Garibaldi who was operating a bulldozer on site.

[17] Anthony Garibaldi went to check on her and found her lying on the ground. He and Mr. Kosciesza were not able to attempt to resuscitate her due to the nature of her injuries.

[18] York Region Paramedics were called to the scene and arrived at 12:50 p.m. They located Ms. Sujanszky. No efforts were made to resuscitate her as her condition met the paramedics criteria for an obvious death.

[19] Dr. Tyler Hickey, a forensic pathologist, determined that the cause of death was the crushed head. A forensic toxicology analysis found that Ms. Sujanszky had no alcohol or drugs in her blood or urine.

[20] Mr. Grewal concedes that Ms. Sujanszky’s death was caused by her being run over by the dump truck that he was driving. Therefore, the issue at this trial is whether Mr. Grewal’s driving on December 9, 2021 was dangerous.

[21] The Crown alleges that there were 7.48 seconds where Ms. Sujanszky would not have been visible to Mr. Grewal as he reversed up the hill prior to running her over and that after that he continued for a further 8 seconds before stopping. The Crown asserts that I should conclude that Mr. Grewal reversed without regard to the whereabouts of Ms. Sujanszky despite his obligation to keep her in his sights. The Crown asserts that this represents a marked departure from the standard.

[22] The Crown had also alleged that the driving was a marked departure from the standard of a reasonable and prudent truck driver because Mr. Grewal drove up an emergency access road where he was not supposed to go. By closing submissions, the Crown conceded that there may be another reasonable inference available and that it was not relying on that for the marked departure.

[23] To decide where there was a marked departure, I first review the presumption of innocence and the burden of proof, then examine the evidence, examine the governing principles relating to the offence of dangerous driving causing death, and then apply the facts as I find them to the principles to determine whether the Crown has met its burden.

II. Presumption of Innocence and Burden of Proof

[24] Mr. Grewal is presumed innocent. He has nothing to prove. The presumption of innocence remains with him unless the Crown, through the evidence tendered at trial, satisfies me beyond a reasonable doubt that he is guilty.

[25] A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[26] The Crown is not required to prove anything to an absolute certainty. However, I need to be sure that the Defendant is guilty to displace the presumption of innocence. Probably guilty or likely guilty is insufficient. If I conclude that the Defendant is probably or likely guilty, but I am not satisfied beyond a reasonable doubt, I must make a finding of not guilty.

III. Evidence

A. Assessment of the Evidence

[27] In assessing the testimony of a witness, I must examine the credibility and the reliability of the witness. Credibility is about the honesty and integrity of the witness. Reliability is about the accuracy of the witness’s testimony. A witness who is not credible cannot be relied on. However, a witness who is credible is not necessarily reliable: R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 526 (C.A.).

B. Admissions

[28] The Crown and Defence reached an Agreed Statement of Facts such that admissions were made under s. 655 of the Criminal Code. I must accept these facts. I will not recite all the admissions.

[29] Ms. Sujanszky was employed by TMI as a flag person or signaller and began her employment in August 2021. She began working at the Waste Management Highway 48 site on November 30, 2021.

[30] The posted speed limit in the tipping area was 8 km/hr.

[31] On December 9, 2021, Kyrsten Sujanszky was employed by TMI to work as a flag person or signaller on the Waste Management Highway 48 site. Anthony Garibaldi another employee of TMI, was operating a bulldozer that day, re-grading the dumped soil.

[32] There is no evidence that Ms. Sujanszky was using her cell phone at the time of her death.

[33] The parties agreed that Waste Management Landfill Tipping Face Procedures (the Waste Management Procedures) document is admissible for the truth of its contents. It is referenced in and appended to the Agreement Statement of Facts.

[34] The Waste Management Procedures contains a document on which those working on site acknowledge the procedures by signing off on the master sheet.

[35] The sign-off is an acknowledgement that the person signing has been briefed and understands the purpose, scope, responsibilities, and safety procedures applicable to the site. Yashiba Minott, Mr. Kosciesza, Tony Montagnese, and others, signed the acknowledgement. Ms. Sujanszky was the last to sign. Mr. Garibaldi’s signature is not present, and, in his evidence, he stated that he had been at the site many times before, at least a couple of years.

[36] The Waste Management Procedures required, among other things:

a. Mandatory personal protective equipment which included approved hard hats, high visibility clothing, safety books, safety glasses and, as needed, hearing protection, were required. b. An authorized walk area for pedestrians was required and the site control plan was to have a method to protect pedestrians with impact with vehicles and equipment. c. That operators at the work face, the scale house, and various other machines were to be equipped with CB radios which provided for two-way communication. d. Signage on site was required including that a 5 metre/15-foot safety zone must be maintained between heavy equipment and pedestrians. e. That all foot workers must maintain a 5 metre/15-foot safety zone from heavy equipment. f. That walking across the tipping floor, tipping face or in front of the tipping area is prohibited. g. That any incident/injury be reported to the scale house attendant. h. The persons controlling a vehicle and equipment traffic must do so from inside their equipment or in an area that is not on the tipping floor and does not place the worker in the intended path of travel of vehicles and/or equipment traffic. i. Only drivers and equipment operators are allowed on the tipping floor when vehicles and heavy equipment are being operated. All other persons in a vehicle must remain inside the vehicle or in a designated safety zone. j. Site 48 does not utilize “spotters” or “traffic controllers”. k. All drivers must stay within 2 metres/6 feet from the vehicle. A safety zone of 5 metres/15 feet must be maintained between heavy equipment and pedestrian traffic. If any of these safety zones are broken, all vehicle and/or heavy equipment traffic must stop until the person is back in the safety zone. l. No one is allowed to walk behind a vehicle and/or heavy equipment. m. Safety briefings are to be held at the beginning of the day to discuss special conditions due to weather, the general site operations, and other matters. n. Trucks will enter the Tipping Face area and stop until visual contact has been made with the Terra Nova operator. The Terra Nova operator is in charge of all traffic flow and unloading at the work face and will direct operations/traffic accordingly.

C. Circumstantial Evidence

[37] Some of the evidence is circumstantial.

[38] In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada set out at para. 35 how to assess circumstantial evidence. First, when assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. If there is a reasonable inference other than guilt, the Crown has not proven its case beyond a reasonable doubt.

[39] I must also assess other plausible theories and reasonable possibilities that are inconsistent with guilt. These must be based on logic and experience applied to the evidence or absence of the evidence, not on speculation. See: R. v. Villaroman, supra, at para. 36. The basic question is “whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. See: R. v. Villaroman, supra, at para. 38.

D. Documentary Evidence

[40] As I have described, the Court received dash camera footage taken from Mr. Grewal’s dashboard camera of his truck and photographs taken from the scene on the day of the fatal collision and afterwards.

[41] The photographs depict that the area beyond the scale house, the dumping area, where Ms. Sujanszky was found, her last footprints, and some of the terrain.

[42] From the dash camera footage and the photos, one can see the area from the scale house and beyond. From the dash camera, we see the point at which Mr. Grewal is greeted by Ms. Sujanszky. There is a road that proceeds in an easterly direction and then upwards, sometimes referred to as a ramp but which was an emergency access road to the easterly portion of the landfill site.

[43] To the left of the road, (the north side), there is an upward slope which runs parallel to the road. To the right (the south), there is a flatter and wider area where trucks can turn around which gradually rises to an embankment with piles of soil in the process of being graded. The embankment curves around the perimeter of the tipping face.

[44] The dash camera footage also records sounds.

[45] Ms. Sujanszky was wearing her safety vest over her winter coat. She was not wearing a hard hat, safety glasses, or carrying signs. While she was referred to by the accident reconstructionist and some others as a flag person, she in fact had no signs or flags.

E. Witnesses

(a) Lay witnesses

(i) Evidence of Josh Kosciesza

[47] Josh Kosciesza worked for Terra Nova Environmental Services Inc. (“Terra Nova”). Terra Nova provided remediation services to the Waste Management Landfill Site. Terra Nova worked to recontour the site with soil brought to the site by third parties, by dump trucks like the one driven by Mr. Grewal. Terra Nova was the project manager.

[48] He told the Court that typically there would a be a few different parties on site: Waste Management, Terra Nova and TMI. If they had to make a site decision, they would speak to their superiors who were typically off-site. His role included conducting safety briefings each morning. He worked for Terra Nova at the Waste Management site for approximately 2.5 years.

[49] Yashiba Minott was the scale house operator and gave directions to the trucks from the window of the scale house. She did not testify.

[50] Mr. Kosciesza was one of the persons responsible for the operation of the site on the day Ms. Sujanszky was killed. His job was the gate attendant or gate operator. It was his responsibility to monitor the front of the operation of the site, including the gate and the scale house, and to address any issues as they arose, consulting with his off-site superior if needed.

[51] The site operated by trucks coming to the site, attending at the scale house for weighing and check in. After that, they would be directed towards the tip area where they would receive further directions about where to dump (or tip) their load by the signaller or flag person. After the load was dumped, the truck would return to the scale house, get checked out and leave.

[52] He said that he would convey instructions from his superiors but for the most part what happened on the tip face would be at the discretion of the operators.

[53] On December 9, Anthony Garibaldi, another TMI employee was on site and operated a bulldozer. He was the operator. He graded the site with the fill brought by the dump trucks.

[54] Mr. Kosciesza testified about the landscape including the area that was being graded, an access road on the site, and the basic approach to managing the trucks as the arrived and departed the sight. Trucks would typically do about four to five rounds per day, depending on the distance from which their load was coming.

[55] He was able to assist the Court by reviewing the dash camera footage and situating what was depicted on the site location.

[56] He stated that no work was being done on the access road on the day Ms. Sujanszky died.

[57] He recounted that sometime around noon, he was in the scale house and one of the drivers came and parked. The driver came up on the catwalk to the scale house and asked Mr. Kosciesza to check on the girl. He radioed Mr. Garibaldi to try to get eyes on Ms. Sujanszky and saw his equipment turn. He then got in his pickup truck and drove to try to find Ms. Sujanszky.

[58] He noticed some vehicles, asked if they had seen Ms. Sujanszky and when they walked towards each other Mr. Garibaldi told him that he thought she was dead. He had 911 on the phone but they were not able to give CPR.

[59] His expectation would be that truck drivers are supposed to keep the flag person in sight and if they cannot see the flag person, they should stop their vehicle and exit it.

[60] Asked about the rule that no one walk behind a reversing vehicle, he stated that that included the flag person.

[61] He had no concerns about Ms. Sujanszky’s ability to do her job.

[62] I accepted his evidence about the events of the day.

[63] I had concerns about his responses which pertained to site safety. By his evidence, he was on site full time. It was Terra Nova who contracted with TMI. He signed off on the Waste Management Procedures and had worked at the site for 2.5 years on December 9, 2021. Yet, he downplayed basic safety rules about the site and its operations.

[64] For example, he was asked about the 5 metre/15-foot safety zone and agreed that it existed. When asked about how that related to the flag person, he said that the safety zone might be compromised if a truck needs some kind of intervention and there are times when “extenuating circumstances apply”.

[65] He was asked about the fact that Ms. Sujanszky was not wearing a hard hat. He seemed to think there was no need for a hard hat on the job site as they were not worried about falling objects. Even though the procedures required them, he stated that they reduce visibility.

[66] He acknowledged that the Waste Management Procedures require hard hats, but then suggested that they could be more of a detriment than a positive. He stated in the 2.5 years that he was there, no one really used hard hats. It was a common practice that persons did not wear hard hats on the tipping face.

[67] I pause to note that I do not think that a hard hat would have saved Ms. Sujanszky’s life. But the lack of enforcement of a key safety rule on site makes me wonder about whether other rules were well understood, complied with, and enforced.

[68] He was asked about the rule that no person should walk across the active face of the tipping area. He said that would include anyone not in an operating cab. Asked about the flag person, he first suggested yes and then qualified that by saying it depends on how far they are from the tipping claiming that up until a certain distance it is not an active tipping. He suggested that once a truck starts, you are going to have to wave it or allocate it.

[69] He agreed that Ms. Sujanszky could be considered either a flag person or a spotter. He did not hear the word controller. He could not answer what PPE she had only that she had a radio. He could not speak to the type of equipment that she needed to do her job.

[70] The Procedures required that the designated operator at the workface has the responsibility to control vehicle traffic into, out of and on the tipping floor and must do so from inside their vehicle or an area that is not on the tipping floor and does not place the worker in the intended path of travel. He identified Mr. Garibaldi as the designated operator.

[71] However, he identified instances when there was no operator and the responsibility fell to the flag person. He said that it was a unique period because of COVID.

[72] The Procedures also state that Site 48 does not utilize “spotters” or “traffic controllers”. He did not know why the document said that even though he said that he signed it indicating that he understood it.

[73] He further acknowledged that if directing traffic, you need to do so from equipment or a designated safe zone and that the rule was directed at keeping them from walking into a compromised site.

[74] He agreed that everyone is supposed to avoid walking across the tipping floor.

[75] He said that he had seen Ms. Sujanszky work and watched her speak with the trucks and direct them where to go.

[76] The concern that I have with his evidence about his lack of specificity of the role that Ms. Sujanszky was filling on the day she died and the rules that applied to the site. His unfamiliarity with the procedures and his discounting of safety practises caused me to question his evidence as it pertained to safety practices and contributed to a concern that safety procedures were not followed on this site.

(ii) Evidence of Anthony Garibaldi

[77] Anthony Garibaldi was operating a bulldozer when Ms. Sujanszky was killed. He also worked with TMI and had two-way radio communication with Ms. Sujanszky and those in the scale house. He had worked with her several times including the day before on another site when they were putting up fencing. He did not remember whether he had worked with her prior to December 9, 2021 on the Highway 48 site, when she was working as a flag person.

[78] The conditions that date were slippery and this was conveyed at the safety meeting that he had with Ms. Sujanszky and Mr. Kosciesza that morning. The message conveyed was: be alert, watch your footing, watch your slips, trips and falls, and uneven terrain.

[79] He was asked about what Ms. Sujanszky was wearing and recalls her wearing a hard hat.

[80] He was not asked about the Waste Management Procedures or what instructions his boss Tony Montagnese gave him on December 9, 2021.

[81] He acknowledged that a fully loaded dump truck driver must be aware because a truck can tip. It must be level. He agreed with the suggestions put to him by Defence counsel that trucks must be mindful of slipping and skidding, to watch for ditches and snowbanks and that you need to use side mirrors, hood mirrors, and scan back and forth and to make sure that your back up alarm is working.

[82] He stated that Ms. Sujanszky’s job would be to point the truck where they wanted to go or back them up. He stated that that the rule of the driver is that if you cannot see your flag person, you cannot move.

[83] He did not seem to have any difficulty with Ms. Sujanszky directing trucks from outside of her vehicle. However, when he watched her direct, she would be facing the driver. He said that in terms of directing trucks you must always be to the side, the driver side and never behind.

[84] On the specific day of the event, he noticed a dump truck on the ramp (the emergency access road) and asked over the radio why there was a truck there, as no vehicles are supposed to be there. No one responded although everyone on the channel would have been able to hear it. The truck was sitting on the hill, and it was partially tripped but the truck just sat there.

[85] Soon after, he received a two-way radio call from Mr. Kosciesza to go check on Ms. Sujanszky. He found her lying in the access road. She could not be resuscitated.

[86] He drove his bulldozer across the access road so that others would not see her body.

[87] I had no difficulty accepting his evidence as credible and reliable.

(iii) Vicky Karamichailidis

[88] Vasiliki (Vicky) Karamichailidis worked for TMI between 2020 and 2024. In 2021, her role was primarily one of health and safety. She met Ms. Sujanszky in September, 2021 when she was asked to do some training with her. Ms. Sujanszky was operating a 725 rock truck and she was to orient her on the machine and give her directions.

[89] She taught Ms. Sujanszky safety procedures including reversing with a rock truck. In a rock truck, there is no rear-view mirror, so you need to see where you are going to be reversing and know where you are going to be reversing. There are other mirrors, and you need to keep a low speed and use your other mirrors.

[90] She did not give Ms. Sujanszky any training on acting as a flag person. However, on one occasion, on a job site, Ms. Sujanszky did have stop paddles there and Ms. Karamichailidis came in a five-ton truck and Ms. Sujanszky and Mr. Garibaldi had to reverse her in stopping vehicles on the road into the site. She was exceptionally comfortable around big machines.

[91] She was taught to be aware and alert of the environment and to wear her hard hat even if there is no one else around.

[92] On December 3, 2021, Ms. Karamichailidis spoke with Ms. Sujanszky at the Waste Management site. She saw in her vehicle. Her understanding was that she was to direct vehicles. She was not to be reversing them and not to be guiding them. She was given the scope of work and she was told that Ms. Sujanszky and Ryan are at Hwy 48. Ms. Sujanszky was directing trucks and Ryan Crittendon was on the bulldozer.

[93] Ms. Sujanszky was to direct the trucks from her vehicle and Ms. Karamichailidis recorded that in a note. She told Ms. Sujanszky that she could direct the trucks from inside her vehicle: point and go.

[94] She did not work with Ms. Sujanszky on December 9, 2021, or conduct any investigations.

[95] First, Ms. Karamichailidis said that she had never seen the Waste Management Procedures and then later said that she may have been aware of them.

[96] She said that Ms. Sujanszky was not a spotter or traffic controller. She said that her job was directing trucks. She was not a signaller, and she was not there to reverse the trucks. She said that the only person who should be reversing a vehicle is a person trained as such.

[97] She defined a flag person as some who told traffic to stop and go. A traffic controller would be someone when there are live lanes in the road that need to be stopped slowed or shifted away from the work.

[98] She testified in a straightforward way, and I accepted her evidence.

(iv) Andreo Tesdesco

[99] Andreo Tesdesco was a part-owner of TMI and hired Ms. Sujanszky. He worked with her from September to November, 2021 and trained her to operate heavy equipment including the articulated rock truck. He testified that her training included work with senior operators including her father. She also did load counting. She was trained on traffic control which even though they did not do traffic control on roads, she was equipped in his view to handle that on a construction site.

[100] He trained her for about a day through roles and responsibilities when dealing with traffic, where she should be.

[101] He stated that Ms. Sujanszky was never really a flag person. She was a signaller. She was trained on traffic control because there was no certification for signalling.

[102] He defined traffic controller as someone on a roadway. A signaller is specific to location and will point where to go and a flag person is like a traffic control. For this reason, he used the Handbook for Construction Traffic Control Persons which is intended for traffic control on a roadway to protect constructions workers by regulating traffic flow. The handbook instructs on the use of traffic control signs and signals. It instructs the traffic control person to always face traffic, to plan an escape route and to wear personal protective clothing, among other things.

[103] He trained her on truck traffic and where she should be and where she should not be. He said that at the Waste Management site, her position was prior to the tipping face. He gave her no training on the Highway 48 site.

[104] On the sites for which he was responsible, Ms. Sujanszky was supposed to be close to the entrance of the site or midway between where the operations are happening. He said that she would be prior to the tipping area such that she would have verbal communications with a truck and then point and that for the most part she would be in her general area. She was taught to be in the line of sight of a vehicle.

[105] He did not train her on operations at the Highway 48 site. He stated that in her job, she would never be behind the truck. He did not train her to back up trucks.

[106] He identified Tony Montagnese of the supervisor of the TMI personnel at the Highway 48 site.

[107] I accepted his evidence as credible and reliable.

(v) Tony Montagnese

[108] Tony Montagnese founded TMI in 2005. He testified in a manner that displayed how very unhappy that he was to be in Court. He confirmed that Ms. Sujanszky started working on the TMI site on November 30, 2021, and that she had very few shifts on the site, agreeing that four sounded right.

[109] He was not on site on the days that Ms. Sujanszky worked there. He said that his instructions, conveyed through Ryan Crittendon (the bulldozer operator who was on site on other days that Ms. Sujanszky worked there), were to stay in her vehicle and to keep control of the vehicles on site using her stop and slow signs. He did not speak to Mr. Garibaldi that day but agreed that he would have told him the same thing.

[110] He said that if she was parked, the trucks would know what the protocol was on the site.

[111] He stated her role was not to spot. He reiterated that he told Ryan to keep her in her car, keep the sign out and control the flow of traffic. According to Mr. Montagnese, she had no need to back up a truck. If a truck needed to know where to put a load down, the operator (of the bulldozer) would put the blade down to show the truck where to go.

[112] He stated that on site, it would be Mr. Kosciesza, and Mr. Crittendon, the TMI the operator on site. They would have a meeting in the morning, and then go about their day. Mr. Crittendon was not called to testify about his instructions from Mr. Montagnese.

[113] While Mr. Montagnese was gruff, I have no reason to disbelieve his evidence. However, given his lack of specificity about his instructions, I find that Mr. Montagnsese likely did not convey any specific instructions to Mr. Garibaldi on December 9, 2021.

(vi) Gurvinder Singh

[114] Gurvinder Singh testified on behalf of the Defence. He testified that he made three trips to the site.

[115] The first trip went smoothly. On the second trip, Ms. Sujanszky helped Mr. Singh to back up his truck. He felt that she was way too close to his truck, approximately three to five feet. He stated that she also went behind his truck.

[116] Once he dumped his load, he put his dump box down and then donned his safety equipment to get out of his truck to speak with her. He told her that she was way too close to the truck. He told her that it is wintertime, and that the dirt is way too soft, and his truck could flip. He described her reaction as rude and aggressive and that she told him not to tell her about her work as she knew what to do.

[117] He said that when he was backing up, she moved as well and would gesture to him to continue to back up.

[118] When he saw her, she was not wearing a hard hat or a safety glasses. He recalls her wearing a black coat and acknowledged that she could have been wearing a safety vest under it.

[119] Mr. Singh was challenged on why he did not tell anyone else about this interaction. He said that he thought that the problem had been dealt with. When further challenged, he stated that truckers are not able to say anything to anyone. People start a fight. Trucking is a difficult and different job. In short, he identified that there can be friction between the drivers and the site staff which I accept.

[120] On his third load there were no problems and he thought that the problem was resolved after the conversation. On his fourth trip to the site, he was turned away from the site, being advised that there was a safety issue.

[121] Mr. Singh was challenged on whether he and Mr. Grewal were friends which he denied. I find no evidence of a friendship or partiality.

[122] I accept Mr. Singh’s evidence and find that he did raise a safety concern with Ms. Sujanszky when he was on site. I also accept that he believed that she was too close to the trucks and putting herself in danger. He took the time to identify what he identified as dangerous behaviour. He wanted her to be safe and thought that he had addressed the issue.

(b) Opinion Evidence

(i) Bogdan Molodyko

[123] I qualified DC Bogdan Molodyko of the York Regional Police as an expert to give opinion evidence in accident reconstruction. His expertise was conceded, and I accepted that he has a specialized knowledge and training and was qualified to assist the court.

[124] DC Molodyko used a Leica RTC scanner to map the site in three dimensions. The data from the scan was imported into mapping and other programs one of which creates a three-dimensional point closed that enables him to capture a photo from any angle or position within the program. He selected photos from this point cloud for the purpose of his report.

[125] Overnight while still in examination-in-chief, DC Molodyko produced additional photos and diagrams for use in court. The Defence objected to their admission. I conducted a voir dire and ruled that they were admissible and permitted the use of them and his evidence about their creation and meaning for reasons that would follow.

[126] I permitted their admission and this evidence because it properly flowed from his report, did not raise disclosure issues and the Defence would not be prejudiced.

[127] A style note on the report: DC Molodyko used the word flag girl to describe Ms. Sujanszky when she was a woman. Calling women girls is to be avoided, especially in reports prepared for court. It diminishes them.

[128] To the extent that DC Molodyko has interpreted injuries, I have disregarded that aspect of his evidence as it is not within the scope of his expertise.

[129] I will not repeat all that is in his report. The key aspects relate to where Ms. Sujanszky was found in relation to the truck and its path of travel.

[130] DC Molodyko found nine footprints located to the west of Mr. Garibaldi’s bulldozer which were pointed in an easterly direction prior to where Ms. Sujanszky’s body lay. The footprints fell within the tire tracks determined to be the tracks of Mr. Grewal’s truck. Four more footprints were found east of the bulldozer on an icy surface. The last was arched to the right which he found would be consistent with her being pushed by a truck.

[131] I pause again to note that the use of language “consistent with” has been found to be problematic. As noted by Justice Goudge in his report into the Inquiry into Pediatric Forensic Psychology in Ontario, at Volume 3 pages 434-435, the phrase is fraught with danger, a danger previously identified by Commissioner Fred Kaufman at the Morin Inquiry.

[132] The danger is that lawyers often interpret “consistent with” as meaning strongly supporting and scientists use it as the opposite of “inconsistent with”, that it that it may or may not be the case.

[133] While I find that “consistent with” is to be avoided in favour of language that enhances understanding, I have looked at the context in which DC Molodyko used that language to discern its meaning, bearing in mind the difficulty with the phrase.

[134] Here, the parties agree that it does not matter for the purpose of my analysis of the essential elements of the offence whether Ms. Sujanszky slipped or was knocked down by the truck. It is at this arched footprint, found on what is an icy patch, that she lost her footing, either knocked down by the truck or having slipped. Nearby there was a depression, described by DC Molodyko as a scuff mark, on the edge of a tire rut. He opined that this is where Ms. Sujanszky fell.

[135] From there, he calculated that she was dragged 2.3 metres, which he discerned from drag marks to where she finally lay. Ms. Sujanszky’s body lay between the truck’s tire tracks (i.e., between the parallel tracks laid down by the truck’s left and right sets of tires). Biological matter was found on the truck and near her body. Her two-way radio was nearby. She was wearing a high visibility vest and no hard hat.

[136] The footprints spanned 17 metres. DC Molodyko could not determine Ms. Sujanszky’s speed by the footprints and could not say from where she came before the footprints began. The path that she took after giving directions to Mr. Grewal to the time she came to be behind the truck cannot be determined by the footprints.

[137] DC Molodyko conducted line of sight testing identified and measured the truck’s blind spots. There was one around the hood of the truck. Within 7.5 metres of the hood, the driver would be able to see objects that were approximately 1.7 metres tall. At 1.3m, the driver would not be able to see objects less than 1.7 metres tall.

[138] The pillars of the cab of the truck create blind spots on each side of the truck. The driver of the truck will also have a blind spot extending from the rear of the dump truck 68m backwards. The rear of the truck is the base of the triangle, and the blind spot diminishes or tapers in width the further away from the truck. The measurements of these blind spots are well-depicted in Image 20 of his report.

[139] From the 17 metres of footprints spanned, all which fell between the parallel sets of eastbound tracks, and calculating the speed of the truck at 8 km/hr as depicted on the dash camera, DC Molodyko found, and I accept, that Ms. Sujanszky would have been in the blind spot of the truck and not visible to the driver while he was reversing eastbound up the hill for at least 17 metres or 7.48 seconds.

[140] After the impact/fall, the truck continued to reverse for 13.7 metres until it stopped. Ms. Sujanszky was lying 8.4 metres to the west of the front end of the truck as the truck fully reversed over her. The ground would only be visible to the driver at 7.5 metres in front of the truck as depicted in Image 22.

F. Findings

[141] On the evidence, I make the following general findings as I find that the Crown has proven them. I make additional findings later after addressing the governing legal principles.

[142] The Waste Management Procedures are probative of what the reasonably foreseeable risks were at the site. There is no evidence that Mr. Grewal ever saw them and therefore no evidence that he would have relied on them for the purpose of the roles that those on the site were to obey. However, the rules help me see objectively that the site is dangerous, and that pedestrian traffic was to be controlled and that a safe distance was to be kept from vehicles. These are all objectively reasonable given the nature of the site.

[143] I find that Ms. Sujanszky was not trained as a flag person but that she was engaged in reversing at least one truck on the day of her death and likely more. I also accept that the site rules prohibited her from being on the tipping face and that the Waste Management Procedures did not permit a person to be reversing vehicles on the site.

[144] I accept that at some point Ms. Sujanszky was told to direct trucks from her vehicle or by her vehicle and that either the instructions changed on site, or she took it upon herself to assist the trucks in reversing. I accept from Mr. Singh’s evidence and Mr. Garibaldi’s evidence that, on one or more occasion, she assisted trucks to reverse.

[145] Mr. Garibaldi gave no evidence on any instructions received from Mr. Montagnese. He did not appear to be concerned that Ms. Sujanszky had been directing trucks, which would have been contrary to the instructions that Mr. Montagnese said he gave to Ryan Crittendon. I find that Mr. Montagnese did not convey to him that Ms. Sujanszky should be in her vehicle and using her paddles.

[146] Mr. Garibaldi’s evidence was that when Ms. Sujanszky was assisting trucks to reverse, that it was always facing the vehicle from the driver’s side.

[147] At the morning safety meeting, it was discussed that the conditions were slippery and that they should watch their slips, trips, and falls.

[148] I accept that there is to be a 5-metre distance between pedestrians and trucks and heavy machinery.

[149] I find that there is good reason to be concerned about the safety practices on the site. Ms. Sujanszky was not wearing a hard hat. Mr. Kosciesza did not appear concerned. He told the court that some of the Waste Management Procedures may be written down but that what was written was not always what happened in practice.

[150] Ms. Sujanszky was directing traffic and doing so without a flag or paddles. While she was trained in reversing her own rock truck, she was not trained in reversing vehicles, although she did control traffic on one occasion when Ms. Karamichailidis needed to reverse a truck into a site.

[151] I find that Mr. Grewal reversed up a hill. He did so in icy and snow conditions. In reversing up the hill, he maintained a steady speed and save for a few seconds, within the speed limit, he drove straight, and his back up alarm was going.

[152] I accept DC Molodyko’s evidence that the footprints were Ms. Sujanszky’s, that she was travelling eastbound for 17 metres and that she either slipped, fell, or was struck by the truck at the point where an arced footprint was found and that she was dragged for 2.3 metres.

[153] I accept DC Molodyko’s calculations that for 7.48 seconds, she was in the blind spot of Mr. Grewal’s truck while he was reversing.

[154] I am not able to conclude when Ms. Sujanszky was struck. The Crown urges me to infer that at the point in the video where the truck slows, and it appears to be going over bumps that that is the point at which Ms. Sujanszky was run over. The Crown argues that Mr. Grewal then continued reversing for a further 8 seconds. DC Molodyko was not asked about this, and I find that I cannot accept that to be the case as that is not the only reasonable inference that can be drawn from the video. I do accept that based on the evidence, that Mr. Grewal continued to reverse after running her over.

IV. Analysis

A. Governing Principles

[155] The legal principles that apply to this offence were developed by what was s. 249 of the Criminal Code and apply to s. 320.13. See R. v. Coates, 2022 ONSC 6218.

[156] For me to find Mr. Grewal guilty of dangerous operation of a motor vehicle causing death, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Grewal operated a motor vehicle; ii. that Mr. Grewal operated the motor vehicle in a manner that was dangerous to the public; iii. that Mr. Grewal’s operation of the motor vehicle caused Ms. Sujanszky’s death.

[157] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Grewal not guilty of dangerous operation of a motor vehicle causing death.

[158] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Grewal guilty of dangerous operation of a motor vehicle causing death.

[159] The first and third elements are not in dispute, and I find that they are met beyond a reasonable doubt.

[160] As I stated at the outset, the issue in this case is whether Mr. Grewal operated the vehicle in a manner that was dangerous to the public.

[161] In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 43-49, the Supreme Court of Canada held that the actus reus is made out when the Crown proves beyond a reasonable doubt that the manner of driving was dangerous within the meaning of the section, that the driving was 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 at the time is or might reasonable be expected to be at the place.

[162] It is the manner that the vehicle was operated, not the consequence, that is the focus but the consequence may assist in determining the risk involved.

[163] The mens rea, the mental element of the offence, is made out, by an objective assessment. I must be satisfied based on all of the evidence about the accused’s state of mind, if any, that the conduct constituted a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances, in this case, a reasonable truck driver.

[164] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, the Supreme Court of Canada stated:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48).

[165] I must determine whether Mr. Grewal drove the truck in a manner that was dangerous to the public and I must consider all the circumstances in which the driving occurred. This can include, but is not limited to, evidence about the nature, condition, and use of the dump site; the traffic, vehicles, and pedestrians actually on site at the time and the amount of traffic, both vehicles and pedestrians that might be reasonably be expected to be there at the time and place where the driving occurred.

[166] The task at this stage is the foreseeability of the general dangers to the public from the manner of driving rather than the risk of the specific accident. See R. v. Romano, 2017 ONCA 837, at paras. 71-72, and not whether the specific consequences could have been foreseen.

[167] The Crown must prove that Mr. Grewal was more than careless. The Crown counsel must satisfy me that Mr. Grewal’s driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances.

[168] The law requires me to ask myself, on the basis of all the evidence, whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible and second, if I am satisfied that a reasonable person would have foreseen the risk or taken steps to avoid it, I must ask myself whether the 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. (See R. v. Roy, supra, at para. 36, R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R 405 at paras. 23-26, R. v. Qureshi, at paras. 26-32)

[169] The Crown asserts, drawing from R. v. Javanmardi, 2019 SCC 54, at para. 37, that when a person is performing an activity that requires a special skill or training, that they must both be qualified and exercise the special care that the activity requires. I accept that this approach should apply to dangerous driving because the offence is to be assessed considering all the circumstances.

B. Application

[170] I first assess the circumstances of the site and then what happened. I then address the manner of driving. I then address the circumstances of the site. I then examine the evidence about the way that Mr. Grewal was driving. I then address the two key questions. First, whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible. Second, if satisfied that a reasonable person would have foreseen the risk or taken steps to avoid it, whether the 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 Mr. Grewal’s circumstances.

(a) The site

[171] The site is governed by its rules and procedures. The Waste Management Procedures clearly set out that no pedestrian traffic is to be on the tipping face. It is a dangerous site because of the heavy machinery moving across including 20 trucks per day who are sometimes making four trips per day over an eight-to-nine-hour day.

[172] Two things flow from this. First, trucks driving on the site must take care to protect the persons working on the site. Second, trucks arriving on site would be entitled to assume that those working on site were trained in workplace safety as every person on site was there in a professional capacity. As appears to have been generally understood, everyone has a role in workplace safety. They would know the sound of a backup alarm on a truck.

[173] While we do not know whether Mr. Grewal was aware of the specific site rules, it would be fair for him to assume that there were rules governing the site and that persons on the site were properly trained about the specific risks of being behind a moving vehicle and keeping a safe distance.

[174] Ms. Sujanszky’s vehicle was parked close to where she greeted Mr. Grewal. It makes sense that she would greet the trucks at that point and direct them where to dump as it was at the spot where the road opened to the dump truck staging area. She presented herself as the person in control of dumping and directing the trucks. She did not tell Mr. Grewal that she was going to help him reverse his truck. There were no signals discussed. Based on the conversation that they had, I cannot infer that she was going to assist him to reverse his truck or that he expected her to.

[175] The speed was 8 km per hour on the tipping face. It was a busy site with up to 80 vehicle trips per day, approximately 10 per hour. The traffic would be coming in and going out the same way that it went in.

[176] Each person on site would be aware of the dangers presented by the site including to pedestrians.

[177] It also appears that despite the expectation of some that Ms. Sujanszky was not to be reversing vehicles, she undertook this activity on the site, without any concern being raised by others on the site. Mr. Garibaldi did not deny that she was directing vehicles. Mr. Kosciesza was frustratingly imprecise about her role. Ms. Minott did not give evidence.

[178] In my view, a reasonable and prudent truck driver would be alert to the risks presented by the site and the dangers that arise from a reversing truck. In my view, it would also be fair for a driver to assume that trained workers on the site would know to keep a safe distance from a vehicle, to remain visible and to take care not to place themselves in the intended path of travel of a reversing vehicle.

(b) What happened?

[179] As no one witnessed the accident, I begin with what is known. It is admitted that Mr. Grewal’s truck ran over her and that she died. That is the only conclusion that can be reached from the dash camera footage, her footsteps, and the accident reconstruction.

[180] What is not clear is how she came to be behind Mr. Grewal’s truck. Her footsteps were in the path of the truck for 17 metres, and she had her back to his truck.

[181] The Crown submits that it is a reasonable inference that as Ms. Sujanszky left her station near her vehicle and began walking, that she continued walking in a straight line up the hill and that I should conclude that she did so. That does not make sense to me as there was no soil to be dumped there because it was an emergency access road. If she was acting in a capacity of reversing trucks, why would she walk to a spot where she did not want the truck to go?

[182] If she was to be engaged in the activity of helping trucks reverse, who would monitor control of the trucks coming into the tipping face?

[183] I heard Ms. Sujanszky’s voice on the dash camera as Mr. Grewal began to reverse his truck and he did not respond to it. One reasonable inference is that she may have been speaking to another driver, as there was another truck or into her radio. I do not know why she would walk up the access road where soil was not to be dumped.

[184] Because of these two issues, I am unable to conclude that Ms. Sujanszky was in the path of Mr. Grewal’s vehicle in order to assist him reverse his truck up the hill. I am supported in this in Mr. Garibaldi’s evidence that in directing the trucks it would always be facing the trucks from the driver’s side.

[185] I do not know how or why she came to be behind the truck. There is an absence of evidence on her trajectory there.

(c) The manner of driving

[186] The act of reversing a loaded dump truck is inherently dangerous.

[187] Mr. Grewal double-checked the instructions that Ms. Sujanszky game him. Mr. Grewal was not speeding. He was driving under the recommended speed for the site except for the two-second interval and the one second interval where it rose to 10 km/hr when he was reversing. He had control of the vehicle. He drove in a straight line once reversed as evidenced by the tire tracks as they were mapped by DC Molodyko.

[188] The Crown asserts that between when Mr. Grewal left the scale house and reached Ms. Sujanszky that his speed reached 13 km/hr and that I should conclude that he was driving irresponsibly. At that time, he was not yet on the tipping face, and it was a matter of seconds that his driving reached that speed. I find that this cannot be considered dangerous or irresponsible as suggested by the Crown and it happened before he was greeted by Ms. Sujanszky. It plays no role in my analysis.

[189] While the Crown no longer relies on it to establish dangerousness, I wish to address the issue of driving on the access road. Even though there was no work being done on the road, I cannot fault Mr. Grewal for driving there. It matched where he was told to dump as he was told to go straight, beside the truck and where it was snowy. The ramp/access road looked snowy. In the photos, one can see that there is another snowy patch, closer to where the bulldozer was. There was what looked like freshly dumped soil to the south of where Ms. Sujanszky was run over. It is easy to see how that mistake could have been made.

[190] The focus of the manner of driving is to be made without reference to the consequence, although, in some circumstances the consequence may assist in assessing the risk involved or that the consequences are so interwoven that they may be relevant in characterizing the conduct of the accused. (See Beatty, supra, at para. 46, R. v. Romano, 2021 ONCA 211, at para. 46).

[191] The Crown alleges that the driving was dangerous because he reversed without regard to the whereabouts of Ms. Sujanszky despite his obligation to keep her in his line of sight, the consequences are connected to the manner of driving.

[192] This is a case where the consequences are interwoven with the manner of driving as, other than the inherent dangerousness involved in the reversing, and that Mr. Grewal appeared not to keep Ms. Sujanszky in his sights, there was nothing dangerous about the driving. Because it is interwoven, I find the Crown has satisfied me that the actus reus has been made out.

(d) Would a reasonable person have foreseen the risk?

[193] I will now focus on whether the manner of driving was a marked departure from that of a reasonable and prudent driver in the circumstances.

[194] The first question engaged is whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

[195] There are competing propositions about the what the risk is. The Defence argues that the question that I should be examining is whether it was reasonably foreseeable to that a trained person would be walking behind a reversing vehicle. The Crown contends that I should be focussed on the foreseeable risks associated with reversing without regard to the whereabouts of his flag person.

[196] The Crown’s position is that Ms. Sujanszky was acting as a flag person. I accept that the parties have agreed that she was a flag person or traffic controller. But I cannot find on the evidence before me that she was engaging in the act of helping Mr. Grewal reverse his truck as the facts do not support it. There was no communication to that effect. They did not agree on the communication plan. Her actions of walking forward with her back to the truck suggest to me that she did not intend to, nor did she, assist Mr. Grewal to reverse his truck. The actions of walking forward with her back to the vehicle are at odds with a person directing traffic, as the evidence is that she would be facing the vehicle.

[197] The Defence position focusses too narrowly on the actions of Ms. Sujanszky. I see the question differently. In my view, the question is whether it was reasonably foreseeable that Mr. Grewal would be unable to see persons and equipment behind his truck once reversing, owing to his blind spots. I find that it was foreseeable. This is a basic risk that would have been well understood.

[198] If I am wrong about this, then I would conclude that, in all the circumstances of this case, it was not reasonably foreseeable that a trained person would place herself in the intended path of a reversing vehicle.

(e) Was this a marked departure?

[199] I must ask myself whether the 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.

[200] The Crown asserts that the marked departure is that he reversed without regard to Mr. Sujanszky’s whereabouts despite his obligation to keep her in his sights.

[201] I find that Mr. Grewal took certain steps to avoid the risks presented by reversing his vehicle. He drove the speed limit, he had his back up alarm on, and he drove in a straight line. All served to protect those working around him by allowing them to get out of the way of the reversing truck.

[202] He was backing up a fully loaded dump truck on an icy hill. In addition to Ms. Sujanszky, he had to pay attention to the other truck on site, and to ensure that he continued in the proper direction using his mirrors. He had to be mindful of the snow and ice. He had two sets of mirrors on both sides of the truck, the hood and the side mirrors, that needed to be checked. That he was able to keep his speed constant at or below the limit once he was fully reversed, and travelled in a straight line is evidence that he was proceeding carefully. In his circumstances, he was entitled to assume that persons on site would act according to safe workplace practices including not to place oneself in the intended path of a reversing vehicle.

[203] There were 7.48 seconds where Mr. Grewal reversed and would not have been able to see Ms. Sujanszky.

[204] But there are too many unknowns about how Ms. Sujanszky came to be in the intended path of Mr. Grewal’s vehicle for me to conclude that it was a marked departure. I do not know if she entered the path from the side. I do not know how she came to be directly behind the vehicle.

[205] I have found that I do not accept that the purpose for which Ms. Sujanszky was behind Mr. Grewal’s the truck was to help him reverse up the hill. I cannot be certain that she assisted him from reversing from any other position.

[206] While it would have been prudent to always keep an eye on Ms. Sujanszky, the only pedestrian on site, I cannot say in all the circumstances of this case that Mr. Grewal could do so. In part, this is because I am not certain what role she was playing or how or she came to be behind the truck. It is also because of all the things he had to do while reversing, look for the other truck, the ditches, his two sets of mirrors, his speed, and his direction.

[207] The danger to Ms. Sujanszky would have been reduced with better supervision and training about her role on this site and better adherence by the site to workplace safety procedures.

[208] It may have been careless for Mr. Grewal to lose sight of Ms. Sujanszky but given all the things that he had to pay attention to while reversing the truck, I have reasonable doubt about whether it constitutes a marked departure.

V. Conclusion

[209] This a tragic case and the Court is deeply sorry for the loss of Ms. Sujanszky and the impact her death has on her loved ones and the community. To convict Mr. Grewal of this offence I must be sure that his conduct constitutes a marked departure from the standard of a reasonable and prudent driver. For the reasons that I have set out, I am not sure and there is reasonable doubt.

[210] On the sole count of the Indictment, I find you not guilty. You are free to go.

[211] I thank counsel for the assistance and professionalism that they have brought to this matter.

Justice S.E. Fraser Released: December 5, 2024