Distinction between factual, legal causation at heart of Mennonite-buggy-car crash appeal

Law360 Canada (March 18, 2025, 11:57 AM EDT) --

John L. Hill

Dayton Kelly was 19 years old on Oct. 24, 2021, when the Honda Civic he was driving collided with a horse-drawn buggy, killing its driver, Daniel Martin, 76, and his wife Ester, 79. They were described in court as Mennonites. It was dark when the accident occurred; the buggy was without lights and there were no streetlights at about 8:46 p.m. The Civic slammed into the passenger side of the buggy as Martin was crossing Highway 86. Martin died at the scene and his wife died two weeks later.

“I'm going around this bend and out of absolutely nowhere I see this big black object in front of me,” Kelly testified at his trial. “Honestly, it just looked like a big black board in front of me that appeared.

“I stomped on my brakes as hard as I could. I did everything that I could to avoid it ... but it was just too late.”

A collision reconstructionist testified the Honda Civic was going “at least” 116 kilometres per hour in an 80-kilometre zone when it hit the buggy.

Later that night, after being unable to obtain legal counsel, Kelly waived his rights to counsel and consented to providing blood samples, which were taken at 12:44 a.m., and a second at 12:46 a.m. He admitted he had smoked “one bowl” of cannabis at 9:30 a.m. He admitted to being a chronic marijuana smoker. The results indicated that Kelly had 17 nanograms of

THC per millilitre, over three times above the legal limit of five nanograms. From this, the toxicologist determined that his blood-drug concentration (BDC) would not have been below the legal limit at the time of the accident. Kelly had not consumed any cannabis after the collision.

Kelly was charged with several Criminal Code offences: operating a conveyance with a blood content level exceeding the legal amount (s. 320.14(1)(c)); two counts of committing an offence under s. 320.14(1)(c) causing death (s. 320.14(3)); and two counts of dangerous operation of a conveyance causing death (s. 320.13(3)).

The trial judge convicted Kelly of driving with excess BDC but held that in order to convict on the remaining charges the Crown must prove the impaired operation was a significant contributing cause of the accident resulting in harm or death to the victim. The trial judge cited R. v. Kalkhoran, 2023 ONSC 1997 as authority for that proposition.

Kelly had the right of way and the buggy should have yielded to the oncoming traffic. The Crown failed to prove Kelly’s driving constituted a marked departure from the norm expected of a reasonable driver. Kelly was fined $1,500 on the charge of driving with more than the legal limit of THC and handed an 18-month driving ban. The more serious charges were dismissed. The Crown appealed.

The Appeal Court decision was handed down on Feb. 10, 2025 (R. v. Kelly, 2025 ONCA 92). The court noted that Ontario courts have not followed decisions in Alberta, British Columbia and the Yukon where s. 320.14 (3) requires proof that the accused, not necessarily their impairment on alcohol or drugs, was the significant cause of the fatality (R. v. Thijs, 2022 ABKB 608; R. v. Bakko, 2022 ABPC 217, aff'd 2024 ABCA 2; R. v. Sakhon, 2024 BCPC 9; R. v. Bulmer, 2023 NBKB 135; and R. v. Andre, 2022 YKTC 9, aff'd 2024 YKCA 1).

For the courts adopting this interpretation of s. 320.14(3), the distinction between factual causation and legal causation is key. In Bakko, the Alberta Court of Appeal described factual causation as a “but for” test: but for the acts of the accused, would the victim have died (R. v. Maybin, 2012 SCC 24; R. v. Nette, 2001 SCC 78).

In Ontario, the trend has leaned the other way, with courts holding that s. 320.14(3) requires proof of a causal link between the impairment and the collision: Kalkhoran, and R. v. Di Luciano, 2023 ONSC 6621 [unreported: Boswell J., 22 November 2023].

In setting aside the acquittals and ordering a new trial, the Ontario Court of Appeal established a more nuanced approach. It stated, “… the essential question under s. 320.14(3) is whether the respondent caused the deaths in this case. While there is no factual dispute that the respondent was driving the car that struck the buggy and killed Daniel and Esther Martin, the Crown must also establish legal causation …, i.e., that the respondent’s actions were a significant cause of the deaths.”

The trial judge did not make findings with respect to the legal causation of the death of the Martins. For this reason, the Appeal Court determined, a new trial on these counts is required. The trial judge should have assessed the evidence of Kelly’s state of mind as measured against the standard of care of a reasonable driver.

The factors relevant to that assessment that were entirely absent from the trial judge’s analysis include the respondent’s knowledge that there were buggies and other vehicles on the road; his desire to get home quickly, even if it meant taking an unfamiliar route; the reflective signage marking the intersection; the testimony of other motorists as to what speed was safe at that place and time, and the respondent’s choice to ingest an impairing substance before driving.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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