



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Malkowski, 2015 ONCA 887

DATE: 20151215

DOCKET: C58967

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Adam Malkowski

Appellant

Vincenzo Rondinelli, for the appellant

Grace Choi, for the Crown

Heard: November 23, 2015

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

By the
    Court:

Introduction

[1]

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

Relevant Aspects of the Trial Judges Reasons

[2]

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

[3]

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

Causation

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

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

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

It is probably true that [the appellant] would
    not have hit her had she not ran into the street, but this does not mean that
    [the appellant] did not play a causal role in hitting her. As the court stated
    in
K.L.

(supra), That the fatality was
    unanticipated or an unlikely result of the appellants conduct is not a
    defence.

Intervening Cause

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

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

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

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

Issues Raised on Appeal

[4]

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

Discussion

(i)

Speed

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

We
    would not give effect to this ground of appeal.

(ii)

The
    Test for Legal Causation

[11]

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

[12]

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

[13]

We
    do not accept these submissions.

[14]

We
    begin with the following general principles concerning causation:

·

the causation standard in motor vehicle offences involving death
    is the same standard that applies in cases of
culpable
    homicide
, namely that the accuseds conduct be at least a contributing
    cause of the deceaseds death, outside the de minimis range; the accuseds
    conduct need not be the sole contributing cause of death, provided it
    contributed beyond de minimis to that death;
[1]

·

in deciding whether an accused should be held responsible for
    causing a death, it needs to be determined whether the accused caused the
    death, both in fact and in law;

·

legal causation is the inquiry into whether the accused should
    be held criminally responsible for the consequences that occurred. Legal
    causation is based on concepts of moral responsibility, and informed by legal
    considerations, such as the wording of the offence-creating provision and the principles
    of criminal justice, such as that the morally innocent should not be punished;
[2]


·

the doctrine of
novus actus interveniens
or intervening
    act, is part of the analysis of whether legal causation is established, and
    whether an accused should be legally accountable for the death;

·

in
R. v. Maybin
, the Supreme Court discussed two
    different approaches to determining whether an intervening act has broken the
    chain of causation  i.e. 1.) considering whether the intervening act was
    reasonably foreseeable; or 2.) considering whether the accuseds actions were
    effectively overtaken by the more immediate causal action of another party
    acting independently. Importantly, the Court noted that these two approaches
    are only analytical aids that may be useful depending on the factual context.
    They are not new standards of legal causation. The test remains whether the
    accuseds dangerous and unlawful acts are a significant and contributing cause
    of the victims death.
[3]


[15]

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

[16]

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

[17]

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

[18]

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

[19]

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

[20]

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

[21]

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

[22]

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

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

A. The normal perception reaction time, yes.

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

A. It would depend on their reaction.

Q. Yeah, 1.5 seconds. Is that fair?

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

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

A. That is correct.

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

A. Yes.

Q. So he  shed still get hit, fair?

A. Possibility, yes.

[23]

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

Disposition

[24]

Based
    on the foregoing reasons, the appeal is dismissed.

Released:

DEC 15 2015                                   Janet
    Simmons J.A.

JS                                                   K.
    van Rensburg J.A.

M.L.
    Benotto J.A.





[1]

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



[2]

R. v. Nette
at paras. 45, 83;
Smithers v. The Queen
at p. 435;
R. v. Maybin
at para. 16;
R. v. Shilon
, [2006] O.J. No. 4896,
    240 C.C.C. (3d) 401 at para. 21;

R. v. Menezes
, [2002] O.J. No.
    551 at para. 90.



[3]

R. v. Maybin
, at paras. 23, 30, 45-46, 60.


