



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McLennan, 2016 ONCA 732

DATE:

20161006

DOCKET: C57269

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David McLennan

Appellant

Michael H. Gordner, for the appellant

Philip Perlmutter, for the respondent

Heard: May 30, 2016

On appeal from the conviction entered on April 22, 2013
    and the sentence imposed on June 27, 2013 by Justice Terry Patterson of the Superior
    Court of Justice, sitting with a jury.

MacFarland J.A.:

[1]

The appellant was convicted of dangerous driving causing death by
    Patterson J. sitting with a jury on April 22, 2013. He was sentenced to nine
    months imprisonment, two years probation and a one-year driving prohibition
    on June 27, 2013. He appeals both his conviction and sentence.

[2]

On July 24, 2008 at about 10 p.m., the appellant was driving his
    carefully restored 1970 Boss Mustang motor vehicle on Creek Road in the Town of
    Amherstburg. After completing a curve on that road, his evidence was that the
    right wheels of the car dropped off the paved portion of the road, he
    immediately attempted to pull the vehicle back onto the roadway and in doing
    so, overcorrected and lost control of the vehicle, resulting in the crash that
    tragically took the life of his sixteen-year-old son, Dylyn, who had been
    seated in the rear seat of the vehicle.

[3]

The appellant was charged with both impaired driving causing death and dangerous
    driving causing death. The jury acquitted him of impaired driving causing death
    and convicted him of dangerous driving causing death.

[4]

The appellant raises a plethora of issues on appeal but they can all be
    generally reduced into four categories: the verdict was unreasonable and/or
    inconsistent; there was misconduct by the Crown; the trial judge made various
    errors in his charge to the jury; and the trial judge erred in dismissing the
    pre-trial
Charter
applications to exclude the evidence of the blood samples
    and hospital reports. He further submits that his sentence is demonstrably
    unfit in the circumstances.

(1)

Unreasonable and/or Inconsistent Verdict

[5]

The main thrust of the appellants argument is that the properly
    admissible evidence in this case does not support the verdict. He argues that
    the accident was the result of momentary inattention with nothing more, and
    that is insufficient to sustain a verdict of dangerous driving. The appellant
    further argues that the jurys verdicts, which found the appellant guilty of
    dangerous driving causing death but not guilty of impaired driving causing
    death, are inconsistent.

[6]

The test of what is necessary for a conviction on a charge of dangerous
    driving is clearly set out in Charron J.s reasons in
R. v. Beatty,
2008 SCC 5,
[2008] 1 S.C.R. 49, at para.
    43:

(a)

The
Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt
    that, viewed objectively, the accused was, in the words of the section, driving
    in a manner that 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 that at the time
    is or might reasonably be expected to be at that place.

(b)
The
Mens Rea

The trier of fact must also be satisfied beyond a reasonable
    doubt that the accuseds objectively dangerous conduct was accompanied by the
    required
mens rea
.  In making the objective assessment, the trier of
    fact should be satisfied on the basis of all the evidence, including evidence
    about the accuseds actual state of mind, if any, that the conduct amounted to
    a marked departure from the standard of care that a reasonable person would
    observe in the accuseds circumstances. Moreover, if an explanation is offered
    by the accused, then in order to convict, the trier of fact must be satisfied
    that a reasonable person in similar circumstances ought to have been aware of
    the risk and of the danger involved in the conduct manifested by the accused.

[7]

There is little disagreement about the law, it is in its application
    that differences arise. Each case falls to be determined on its own particular
    facts.

[8]

Here the appellant relies on his own explanation as to how the accident
    occurred, which he says is supported by other witnesses, that he was
    co-operative with police and that his explanation has been consistent over the
    many years it took this matter to reach trial. Further, he submits that the
    fact that the roadway prior to and on the curve was clear, free from debris, dirt
    and stones, tire marks, scratches or gouges supports his evidence that his
    speed was within proper limits and that he was keeping a proper look out to
    safely negotiate even this unexpected curve without squealing his tires,
    leaving tire marks, or going off the roadway into the field, or into the
    fence. He further argues that the highway was dangerous.

[9]

The appellant says that the Crown did not dispute his evidence as to how
    the accident occurred but instead improperly relied on four distinct pieces of
    evidence  the appellants drinking before the accident, the speed of the
    vehicle based on the debris field, propensity evidence in relation to stunt
    driving and his own admission to a first responder, Larry Wright, that the
    accident was his fault because he was going too fast.

[10]

I
    will firstly address why in my view the verdicts are not inconsistent, and this
    issue relates to and arises from the appellants admitted consumption of
    alcohol on the night of the accident.

[11]

I
    will then consider the argument that the verdict is unreasonable on the
    evidence.

[12]

I
    will then consider the remaining issues.

Inconsistent Verdict  Alcohol Consumption

[13]

In
R.
    v. Catton
,
2015 ONCA 13
, 319
    C.C.C. (3d) 99, this court discussed the issue of inconsistent verdicts in a
    driving case, at para. 21:

Inconsistent verdicts are a subspecies of unreasonable
    verdicts:
R. v. Pittiman
,
[2006] 1 S.C.R 381
at
    para. 6. If a trier of fact returns a conviction on one count (or against one
    accused), and an acquittal on another count (or against a co-accused), the
    inconsistency in the verdicts will only render the conviction unreasonable if
    the appellant can demonstrate that on any realistic view of the evidence, the
    verdicts cannot be reconciled on any rational or logical basis:
R.
    v. McShannock

(1980), 55 C.C.C. (2d) 53
(Ont.
    C.A.) at 56;
Pittiman
, at paras. 7-8.

As explained in
Pittiman
at paras. 7-8,
    because juries give no reasons for their verdicts, it can be difficult to
    attack jury verdicts as inconsistent. Verdicts that may at first impression
    appear inconsistent can often be explained by distinctions in the essential
    elements of the different offences or in the quality of the evidence relevant
    to the different offences.

[14]

The
    real dispute between the parties in this case related to the appellants
    alcohol consumption prior to the accident. On his own evidence, he consumed
    four beers and a shot of tequila between the hours of 5:20 p.m. and about 9:45 p.m.
    The accident occurred at about 10:00 p.m.

[15]

Expert
    evidence was called by both the Crown and the appellant. The Crowns expert
    toxicologist opined that he would expect that the appellants ability to
    operate his motor vehicle at the time of the accident would have been impaired,
    based on his calculations from blood samples and intoxilyzer readings taken
    after the accident. Dr. Ward, for the appellant, using different
    conversion factors that he said were supported by the scientific literature,
    opined that he did not believe that anybody could specifically say that the
    appellant was impaired at the lower levels of blood alcohol concentrations
    determined by the calculations. The jury by its verdict must have preferred the
    evidence of Dr. Ward because they acquitted the appellant of impaired driving.

[16]

The
    issue then arises  what, if any, use can the jury make of the admitted
    consumption of alcohol by the appellant in its consideration of the dangerous
    driving charge?

[17]

The
    appellant submits that the fact of his drinking short of impairment is legally
    irrelevant to the dangerous driving charge. The appellant relies on the
    decision of the British Columbia Court of Appeal in
R. v. Brannan,
1999 BCCA 669,
140 C.C.C. (3d) 394, at
    para. 9, where the court observed:

Since even slight impairment is sufficient to found a
    conviction, it would seem to flow that an acquittal amounts to a judicial
    determination that an accuseds consumption of alcohol did not affect his
    driving and consequently should not be considered on a charge of criminal
    negligence or dangerous driving.

[18]

He
    submits that if the jurys verdict in this case was based solely or principally
    on alcohol consumption, the conviction for dangerous driving is legally
    inconsistent with its verdict acquitting him of impaired driving.

[19]

The
    Crown concedes that in light of the acquittal on the impaired driving count,
    any impairment resulting from the appellants alcohol consumption could not be
    taken into account in deciding whether his driving was objectively dangerous. However,
    the Crown submits the mere fact that the appellant had consumed some alcohol
    was a relevant factor for the jury in deciding whether a reasonable and prudent
    driver would not drive in the manner in which the appellant drove, and certainly
    would not drive in that manner after drinking
anything
at all.

[20]

The
    British Columbia Court of Appeal in
R. v. Settle,
2010 BCCA 426, 261 C.C.C. (3d) 45,
revisited its earlier decision in
Brannan
in light of the decisions of
    the Supreme Court of Canada in
R. v. Beatty
and
R. v. Mahalingan,
2008 SCC 63, [2008] 3 S.C.R. 316. At para. 55, the court noted:

The
Beatty
restatement of the
Hundal
test, has,
    in our view, opened the door to including, in a consideration of the
mens
    rea
of the offence of dangerous driving, evidence of an accuseds state of
    mind, including evidence of the voluntary consumption of alcohol prior to
    driving. That evidence, when considered with evidence of driving conduct, may
    demonstrate a pattern of conduct that shows a disregard for the safety of
    others using the highway, which in its totality may be sufficient to establish
    a marked departure from the standard of a reasonably prudent driver.

[21]

In
Settle
it had been argued that having acquitted the appellant of
    impaired driving, the principle of issue estoppel precluded the trial judge
    from relying of his alcohol consumption on the dangerous driving count. At
    para. 58 the court stated:

In our view, the appellants actual state of mind was a
    relevant factor in determining whether the Crown had established the
mens
    rea
of the offence. We are also of the view that the principle of issue
    estoppel in regard to the trial judges finding that the appellants ability to
    drive was not impaired did not prevent the trial judge from relying on the
    appellants consumption of alcohol for the purpose of determining whether his
    objectively dangerous driving constituted a marked departure from the standard
    of the reasonably prudent driver.

and at para. 59:

... the evidence of the appellants consumption of alcohol,
    when considered with his driving conduct, established a pattern of disregard
    for the safety of other users of the highway.

[22]

It
    would appear therefore that in British Columbia
Settle
has overtaken
Brannan
.
    As noted by Charron J. in
Beatty
, at para. 42, some of the difficulty
    with earlier cases may lie in their failure to distinguish between and
    separately consider the objectively dangerous driving and the marked departure
    from the standard of care.

[23]

The
    fact that a person voluntarily consumes some alcohol, albeit short of the point
    of impairment, is a factor  and only that  that can be considered in
    determining whether the necessary
mens rea
has been made out. It is an
    indication of a mindset, in my view, of a willingness to assume a degree of
    risk  a risk that the amount they have consumed will not rise to level where
    it impairs their ability to operate a motor vehicle. The offences of impaired
    driving and dangerous driving are directed at different risks.

[24]

As
    Doherty J.A. noted in
R. v. Ramage
, 2010 ONCA 488, 257 C.C.C. (3d) 261,
    at para. 64:

An impaired driving charge focuses on an accuseds ability to
    operate a motor vehicle or, more specifically, on whether that ability was
    impaired by the consumption of alcohol or some other drug.  A dangerous
    driving charge focuses on the manner in which the accused drove and, in
    particular, whether it presented a danger to the public having regard to the
    relevant circumstances identified in s. 249 of the
Criminal Code
. The
    drivers impairment may explain why he or she drove the vehicle in a dangerous
    manner, but impairment is not an element of the offence. Both impaired
    driving and dangerous driving address road safety, a pressing societal concern.
    They do so, however, by focussing on different dangers posed to road
    safety. Impaired driving looks to the drivers ability to operate the
    vehicle, while dangerous driving looks to the manner in which the driver
    actually operated the vehicle.

[25]

When
    dealing with a dangerous driving charge, it is not inappropriate in considering
    whether a drivers conduct is a marked departure from that of a reasonable
    driver in similar circumstances, to consider whether or not that person has
    consumed alcohol and if so to what degree before operating the motor vehicle 
    as I have said it goes to mindset and a willingness to assume risk.

[26]

For
    these reasons I do not accept the submission that it was not open to the jury
    to consider the fact of alcohol consumption on the dangerous driving charge 
    nor that if they did, the verdicts are inconsistent.

[27]

In
    short, the charges address different conduct. Alcohol consumption, short of
    impairment, is a relevant factor for the trier of fact in considering the
mens
    rea
element of the offence of dangerous driving.

[28]

Further,
    as is discussed below, alcohol consumption was not the only evidence in
    relation to the dangerous driving count  the conviction is supported by the
    evidence as a whole.

[29]

The
    test for establishing that a verdict is unreasonable on the basis of
    inconsistency with other verdicts, as set out in
Pittiman,
has not been
    met.

Unreasonable Verdict

[30]

The
    test for an unreasonable verdict is well-settled. As the Crown notes in its
    factum, this court recently in
R. v. McCracken
, 2016 ONCA 228, 348
    O.A.C. 267, at paras. 23 and 24, restated the test:

The question for an appellate court assessing an unreasonable
    verdict argument is whether, on the whole of the evidence, the verdict is one
    that a properly instructed jury, acting judicially, could reasonably have
    rendered:
R. v. Biniaris
, 2000 SCC 15 (CanLII), [2000] 1 S.C.R. 381, at
    para. 36;
R. v. Yebes
, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p.
    186. The reviewing court is required to review, analyse and, within the limits
    of appellate disadvantage, weigh the evidence:
Biniaris
, at para. 36.

The issue is not whether the reviewing court would have
    convicted the appellant, but whether the evidence, viewed through the lens of
    judicial experience, was reasonably capable of supporting a finding of guilt.
    The reviewing court must ask itself whether the jurys verdict is supportable
    on
any
reasonable view of the evidence and whether proper judicial
    fact-finding applied to the evidence
precludes
the conclusion reached by
    the jury (emphasis in original):
R. v. W.H.,
2013 SCC 22 (CanLII),
    [2013] 2 S.C.R. 180, at paras. 2, 26-28.

[31]

I
    have dealt with the alcohol consumption and why, in my view,
if
the jury considered that evidence on the dangerous
    driving count it was appropriate for it to do so. I say if because we cannot
    know what factors the jury considered in coming to its conclusion that the
    appellant was guilty of dangerous driving. Clearly, by their verdict on the
    impaired driving count, they concluded that the appellants alcohol consumption
    did not rise to the level where it impaired his ability to operate his motor vehicle.

[32]

In
    arguing that the verdict was unreasonable, the appellant also says the Crown
    improperly relied on three other pieces of evidence  speed, propensity
    evidence in relation to stunt driving and the appellants admission to a first
    responder that the accident was his fault because he was going too fast.

Excessive Speed

[33]

The
    appellants argument, as I understand it, is that without expert opinion
    evidence the fact of excessive speed cannot be inferred on the facts of this
    case.  He submits that absent an expert opinion that can offer a range by which
    the speed limit was exceeded  particularly in the face of conflicting evidence
     the jury could not find that the speed here amounted to dangerous driving. He
    relies on a decision of the Alberta Court of Appeal in
R. v. Cowan,
2004 ABCA 397, 357 A.R. 218,
at para. 11:

Although it is true that, depending upon the circumstances,
    excessive speed can amount to a marked departure, it can also amount to mere
    negligence or carelessness. Without a specific finding as to the minimum speed,
    or range of speed, of the appellants vehicle,
and in the face of
    conflicting evidence
, the conclusion that the appellants conduct amounted
    to a marked departure is not susceptible to meaningful appellate review. The
    result of appellate review might reasonably differ if the speed found was 60
    kph, 70 kph, or 90 kph. Each could be said to be well over 50 kph. Yet each
    would not necessarily ground a finding of dangerous driving, in the
    circumstances of this case. [Emphasis added.]

[34]

The
Cowan
case was very different on its facts from this case. It occurred
    in an urban area at a corner where even the Crowns accident reconstruction
    expert described the corner as goofy. The posted speed was 50 kph. There were
    estimates of speed from lay witnesses that the car was travelling anywhere from
    10 to 50 kilometers over the speed limit. The expert opined the vehicle was
    travelling at 89 kph when it started to yaw. The appellate court was critical
    of the trial judges sparse reasons and failure to make any factual finding in
    relation to speed. The court noted that excessive speed can amount to dangerous
    driving but it can also, depending on the circumstances, amount to only mere
    negligence or carelessness.

[35]

In
    my view, this case is of no assistance to the appellant. Each case must be
    considered on its own facts. Here the evidence in relation to excessive speed
    was substantial  and as set out in the Crowns factum included:

·

the debris field

·

unexplained loss of control of the vehicle

·

the distance the vehicle travelled from the roadway before coming
    to rest

·

the complete destruction of the vehicle

·

P.C. Riddells observation that the accident involved excessive
    speed and unexplained bad driving

·

P.C. Riddells observation that the vehicle had rolled over,
    confirmed by the appellants admission to Larry Wright

·

the appellants admission to Larry Wright that he was driving too
    fast

·

the gear shifter could have been in fourth gear

·

the unexplained loss of control occurred after the appellant had
    successfully negotiated the curve

·

the appellants admission that he had driven the road before and
    that the curve was not necessarily unexpected

·

the appellants admission that he overcorrected when he got his
    car back on the roadway

[36]

While
    the opinion of P.C. Riddell that the scene spoke to him of excessive speed
    based on his years of experience investigating accidents was opinion evidence,
    it was opinion evidence he was entitled to give based on his observations of
    the scene.

[37]

The
    physical observations of both P.C. Riddell and Sergeant Capel-Cure are not
    disputed and are corroborated by the photographic evidence. The tire marks
    where the appellants vehicle came back onto the road and then arced across the
    highway to the opposite side in a south easterly direction where it hit the
    ditch on the east side of the road, were photographed and measured. Those
    tracks began 80 meters south of the second of two chevron signs that marked the
    curve. From where those tracks came onto the roadway it was some 118 meters
    further before the vehicle came to rest. Its path through a bean field was
    littered with parts of the car that became detached as it rolled  the spoiler
    from the trunk, the louvers from the window. There was not one part of the
    vehicle that did not sustain damage  this vehicle that had been carefully
    restored to mint condition and put on the road only a week before. The path the
    vehicle travelled in the field to its resting place was clearly observable.
    There were some areas with deep gouges and disturbed earth but there were also
    gaps in that path where nothing appeared to have been disturbed. Those gaps
    could only have been the result of the car being airborne as it tumbled along
    to its final resting place. The back seat had become detached from the car and
    the entire rear window was gone. The damage was enormous  all three occupants
    were ejected from the vehicle.

[38]

The
    driving conditions on that evening were non-contributory. It was a clear fine
    summer evening.

[39]

The
    evidence about what gear the car might have been in was conflicting. There was
    a photograph entered into evidence that showed the manual shift in what was
    described in the evidence as the down position. The appellant testified he
    downshifted to second gear as soon as the car got back on the roadway. Sergeant
    Capel-Cure testified the car was in third gear when he observed it but on
    cross-examination conceded he didnt really know.

[40]

While
    the appellant and his passenger Dan DeJonge testified that prior to the crash
    the appellant was only going 80 to 85 kph, these were matters for the jury and
    it was for them to say whether the speed had been excessive to the point of
    being objectively dangerous and a marked departure from the standard of care
    expected of a reasonably prudent driver. In my view, it is simply incorrect to
    suggest a trier of fact cannot come to a conclusion that a collision was caused
    by excessive speed in the absence of an opinion from a properly qualified
    accident reconstruction expert. This is essentially the essence of the
    appellants submission and I do not accept it.

[41]

In
    my view, there was ample evidence here to support a finding that excessive
    speed caused this accident in addition to the appellants admission to Larry
    Wright at the scene that he was going too fast.

[42]

The
    evidence included: the 118 meter distance the vehicle travelled after coming
    back onto the highway to its final resting place; the fact that the vehicle
    continued for almost a further 57 meters after it hit the face of the east ditch;
    the extent of the damage to the vehicle and the fact that it became airborne on
    more than one occasion; and the fact that the curve could be easily negotiated
    at 80 kph as demonstrated by the investigating officer who drove the route and
    filed the video of his drive.

[43]

The
    appellant argues the jury was asked to speculate that the debris field in fact
    was evidence of excessive speed without an expert or other evidence as support,
    and specifically no evidence to contradict the appellant on the
viva voce
witnesses.

[44]

This
    submission ignores the physical evidence, observed by the investigating
    officers and recorded in the photographic evidence and the video.  There was
    much in the circumstances of the collision itself as well as the appellants
    driving pattern in the half hour before the collision from which the jury could
    reasonably infer that the appellant operated his vehicle at an excessive speed
    in all the circumstances. The appellants evidence and that of his friends who
    had seen him driving shortly before the accident and his passenger was not
    evidence standing alone uncontradicted. The appellant admitted he had been
    driving too fast. He conceded on cross-examination that he never took that road
    at night because the headlights in that car were not up to task. This was a
    typical paved country road with a yellow line down the centre and fog lines at
    the sides. There were narrow gravel shoulders on some parts of the road but at
    others, the grass met the paved surface. He was not unfamiliar with the road,
    he had driven it before. The area was not illuminated, it was dark and the
    headlights on the Mustang were inadequate in terms of their ability to
    illuminate the highway  particularly compared to more modern headlights. This
    was a show car with a powerful engine, it has been described in the evidence as
    a muscle car. It was admired by car aficionados. Ross Highton who had been at
    Shooters bar when the appellant was there that night, called it an amazing
    looking muscle car and when he asked the appellant to light it up he wasnt
    asking about the headlights. He wanted to see the power of the car and the
    appellant obliged.

Propensity Evidence 
    Prior Incidents

[45]

The
    appellant argues that the three incidents he himself referred to as stunts, which
    he executed in the half hour prior to the accident, are irrelevant.

[46]

The
    first incident occurred as the appellant was leaving Shooters bar around 9:30
    p.m. As he and Dan DeJong were leaving Ross Highton asked him to light it up.
    The appellant says that once out of the parking lot, he obliged  he squealed
    the tires, left rubber, the tires smoked and he fishtailed on the roadway. Contrary
    to the evidence of others, he says he did not do this manoeuvre in the parking
    lot because the lot was gravel and there were too many cars. Instead, he waited
    until he got to the road and when he saw the way was clear he just gave it a little
    shot, it was a four speed car, pretty easy to do and kind of give a shot kind
    of sideways out of the parking lot and that was it. No big deal. He conceded to
    the Crown in cross-examination that he liked to show the car off and frequently
    drove to lay rubber.

[47]

The
    second incident occurred on Laird Avenue at Tari Mackays home; the appellant
    drove there from Shooters to pick up his son. When the appellant arrived at
    the Mackay home he had another beer, or at least part of one. The appellant
    picked up his son, and when leaving, at the request and with the encouragement
    of Ms. Mackays ex-husband to show us what you got, the appellant again
    obliged. In his own evidence, the appellant said he had tried to do a donut 
    which he acknowledged on cross-examination would be executing a 360° turn on a
    public roadway  but his wheels caught on some gravel so he stopped the manoeuver
    and drove on. His passenger Dan DeJonge described the second manoeuver:

Dave tried to show off again a little bit with the car and [it]
    didnt go so well and just kinda up on the gravel shoulder a little bit and so
    he just calmed down and drove away from that.

[48]

By
    this time of course Dylyn was also in the car in the rear seat. From here the
    appellant drove off toward the accident scene.

[49]

At
    the stop sign when the appellant entered onto Creek Road there was a third
    incident. The appellant did not recall this third incident in his evidence but
    conceded that he could not say it did not happen. The evidence from the
    appellant and other witnesses was to the effect that it was not uncommon for
    the appellant to burn rubber and show off the car. He liked to do it.

[50]

As
    to this third incident, Dan DeJonge described it:

We went to the stop sign and there was a little burn out when
    we left the stop sign onto Creek Road, just, could have been popping the
    clutch, I dont know, but just went in control around the bend and proceeded
    down Creek Road.

[51]

The
    appellant argues that only his driving at the time of the accident, when his
    right wheels left the paved portion of the roadway, is relevant. The three
    episodes which the appellant himself described as stunts are irrelevant to
    whether or not his driving amounted to dangerous driving. To continue that
    argument, the appellant submits his momentary inattention without more, may
    have been negligence but it was not a marked departure as is required for
    dangerous driving.

[52]

It
    is apparent from the jurisprudence in my view, that ones pattern of driving before
    the accident is relevant. In
Beatty,
Charron J. held, at para. 52, that
    the trial judge in that case appropriately focussed her analysis on Mr.
    Beattys manner of driving in all of the circumstances. The trial judge had noted
    that there was no evidence of improper driving before the truck momentarily
    crossed the centre line and that the few seconds of clearly negligent driving
    was the only evidence about his manner of driving. Charron J. concluded that
    the trial judge appropriately considered the totality of the evidence.

[53]

In
    my view, it is unrealistic and contrary to the clear language of s. 249 of the
Criminal
    Code
to compartmentalize a drivers conduct into discrete time periods of
    mere seconds. The language of the section requires consideration of all the
    circumstances. Those circumstances would include the appellants driving
    behaviour in the half hour before the accident.

[54]

The
    circumstances here are very different from those in
Beatty
where
    intoxicants were not a factor and there was no evidence of any improper driving
    before Mr. Beattys truck veered into the westbound lane and into the oncoming vehicle.
    As Chief Justice Finch in the British Columbia Court of Appeal noted in that
    courts reasons:

In this case, there is no evidence that the respondent was
    speeding, no evidence that he had consumed alcohol or drugs, and no evidence
    that he was driving erratically or improperly at any time before his vehicle
    crossed into the oncoming lane of traffic.

[55]

In
    the appellants case there was more than merely his stated momentary lack of
    attention and in my view the evidence described above, together with the
    appellants admission to first responder Larry Wright that he was going too
    fast, was sufficient to support the verdict of the jury and it was not an
    unreasonable verdict.

[56]

I
    would dismiss this ground of appeal.

(2)

Crown Misconduct

[57]

The
    appellant makes general assertions in relation to the conduct of Crown counsel
    at trial. First, he objects to the Crowns reference to
R. v.
Boucher
, [1955] S.C.R. 16,
in his closing
    address to the jury and argues that the comment must be considered as
    improperly staking out a special position, superior to that of defence
    counsel.

[58]

The
    comment which is the subject of the complaint in the Crowns close was:

One of them is what Mr. Gordner said in his introduction, that
    you represent a protection from the prosecution.  There is a case from 1955 in
    the Supreme Court of Canada known as
R. v. Boucher

that says
the role of the Crown is not to
    obtain convictions, it is to present evidence, no more, no less. If the
    evidence points towards the guilt of the accused beyond a reasonable doubt, the
    Crown can and should argue for that outcome
.
I hope
    that neither you nor Mr. McLennan will require protection from the evidence,
    ever. [Emphasis added.]

[59]

The
    Crown in response argues that a response was made necessary because of defence
    counsels repeated references in his closing address to wrongful convictions.

[60]

A
    reading of the record leaves no doubt that emotions ran high during this trial.
    I have rarely read a record where so many objections were taken. Indeed a
    significant portion of the record is comprised of argument and discussion over
    the numerous issues that arose.

[61]

The
    reference to
Boucher
made by Crown counsel was, in my view, harmless
    in the circumstances. It was made in a closing address, not during opening and
    the passage does not elevate the Crowns position over that of the defence, which
    was the problem in
R. v. Patrick,
2007
    CanLII 11724 (Ont. S.C.), where Crown counsel had outlined the role of the
    Crown Attorney in a criminal prosecution at the outset of his opening address
.
    Appellants counsel in the case at hand had made an impassioned plea in closing
    and in effect warned the jury to beware of the Crowns arguments suggesting
    likelihoods  and urging that they not take a chance with another persons
    life and then referencing the Goudge and Kaufman inquiries and the conviction of
    innocent persons. In doing so, he went somewhat beyond the passing reference
    referred to by this court in
R. v. Horan
, 2008 ONCA 589, 237 C.C.C.
    (3d) 514.

[62]

The
    fact that these comments came in the closing address make them somewhat less
    objectionable as does the substantive content of the statement. The comment made
    by the Crown here was innocuous in all the circumstances and I am not persuaded
    it would have had any harmful impact on the jury.

[63]

And
    I am mindful of the fact that appellants counsel did not object to the Crowns
    closing after the addresses were completed and before the charge. He had the
    opportunity to do so then but did not. I can only infer that he did not
    consider it sufficiently significant to do so.

[64]

While
    I do not base my decision on the failure to object, I note that it supports my
    conclusion that the Crowns quote from
Boucher
was harmless in the
    circumstances.

[65]

The
    other objections to Crown counsels conduct are of a more general nature and relate
    to the Crown making objections in the presence of the jury. Some of those were
    quite innocuous. Of course, it is always preferable, if counsel is aware, where
    it concerns a contentious piece of evidence, that the matter be addressed in
    the absence of the jury. However, in the reality of an ongoing trial such niceties
    are not always possible and a timely objection may be required. Often matters
    can be addressed and dealt with in the presence of the jury. Jury trials are by
    their very nature enormously time consuming and where any efficiencies can be
    gained they should be. This is not to say, of course, that all differences
    should be aired in the presence of the jury, but where they are matters of
    routine that can be summarily addressed, rather than requiring the removal of
    the jury in every instance, they can be dealt with in the jurys presence. This
    is typically a matter for the discretion of the trial judge in the management
    of the trial. The trial judge will let the jury know that only admissible evidence
    can be considered and that it is for her, as a matter of law, to determine what
    evidence is admissible and what is not. Further that it is no reflection on
    counsel when they object to the admission of inadmissible evidence, to the
    contrary, it is their duty. The issues the appellant specifically raises in
    this regard  introduction of a prior consistent police report and an inadmissible
    police report  are of no serious consequence.

[66]

The
    appellant also argues that the Crown accused defence counsel of having a lack
    of good faith. That statement is inaccurate. The Crown objected to defence
    counsel asking Dan DeJonge if anyone from Amherstburg police or the Crowns
    office ever asked him how the accident happened.

[67]

There
    was evidence that DeJonge had been uncooperative with police on the night of
    the accident, he refused to name the driver of the car and ignored attempts by
    P.C. Riddell to question him.

[68]

The
    Crown objected to the question in the absence of defence counsel having put to
    P.C. Riddell when he was in the stand, whether he had made any follow up effort
    to speak to DeJonge. He said that in the absence of having done so, defence
    counsel lacked a good faith basis for the question to be put to DeJonge. It was
    the basis for the question that was lacking in good faith  not that defence
    counsel personally lacked good faith. The difference is not a semantic one. In
    this court, the appellant argues his integrity was attacked. I do not read the
    very lengthy exchange that way. While the use of the terminology was
    unfortunate, the objection was clearly to the question and the basis for it. Ultimately,
    after a prolonged discussion the Crown withdrew its objection, the matter
    proceeded and defence counsel was content with that result. The appellant,
    absent an allegation of ineffective assistance of counsel, cannot resile from
    that position now in this court.

[69]

Next
    the appellant complains of the Crowns use of prejudicial language.
    Specifically he submits that the use of the terms stunt driving, crash and unexplained
    crash were inflammatory and prejudicial. I do not accept this submission. The
    appellant himself used the term stunt driving in reference to the three
    episodes of burning out in the half hour before the accident. There is
    nothing inflammatory about the term crash. The Crown was not obliged to
    accept the appellants explanation for the crash. There is no merit to this
    submission.

[70]

I
    dealt with the law in relation to alcohol consumption and dangerous driving
    earlier when discussing the reasonableness of the jurys verdict. For the
    reasons given, I am of the view that the Crown did not err in submitting to the
    jury that they could use the consumption of alcohol as a factor in considering
    the dangerous driving count.

[71]

I have also rejected the submission that the jury could
    not infer excessive speed from the debris field in the absence of a
    reconstruction expert. Specific calculations of exact speed are not necessary
    in every case and there is no magic to the term debris field. It simply
    references the area over which debris resulting from the crash is distributed.
    The descriptions provided by the officers at the scene and the photographs of
    the scene that included the parts of the vehicle that broke off, the gouges and
    disturbed earth, the complete destruction of the vehicle, and the fact it came
    to rest 118 meters from where it came back onto the road was all evidence from
    which the jury could infer excessive speed, particularly in light of the video
    taken by police following the appellants route at 80 kph without incident. P.C.
    Riddell did not give any evidence of specific calculations of speed  he only
    said that based on his experience investigating accidents it looked like
    excessive speed to him. In my view, there is nothing objectionable about his
    statement.

[72]

The
    appellant submits the Crown consistently and improperly maintained that the
    appellant had gone off the road 80 meters south of the curve  despite the
    evidence of Sergeant Capel-Cure that the tire marks measured 80 meters south of
    the curve were where the vehicle entered back onto the roadway.

[73]

I
    do not read the Crowns remarks in his closing as misleading at all. He simply said
    that the car did not go off the road in the curve. This was the appellants
    evidence as well. It was open to the Crown to argue, that being the case, that
    any danger the curve was alleged to represent played no part in the accident
    because the appellant had already negotiated the curve before his vehicle left
    the roadway.

[74]

The
    appellant submits that despite the evidence of Sergeant Capel-Cure, the Crown
    continually and improperly described the car as being in third gear to
    contradict the appellant when he stated he had down shifted into second gear
    and argues that the court should have corrected this. This evidence is dealt
    with earlier in these reasons. I need not repeat it. There was a difference
    between the appellants evidence and Sergeant Capel-Cures about what gear the
    car was found in after the accident. In addition there was photographic
    evidence of the gear shift. This was a matter for the jury and not for
    direction by the trial judge.

[75]

For
    these reasons I would give no effect to this ground of appeal.

(3)

Jury Misdirection

Reasonable Doubt

[76]

The
    appellant submits the trial judge erred in his charge to the jury when he
    instructed them that reasonable doubt falls closer to absolute certainty than
    to proof on a balance of probabilities and that he ought to have told them
    that reasonable doubt falls much closer to absolute certainty. It is the
    omission of the word much to which the appellant takes objection.

[77]

I
    would not give effect to this submission. In my view, when the charge is read
    as a whole, there is no reasonable likelihood that this jury was under any
    misapprehension as to the correct standard of proof to apply.

[78]

The
    trial judge instructed the jury after dealing with the presumption of innocence
    as follows:

The phrase beyond a reasonable doubt is a very important part
    of the justice system. A reasonable doubt is not a far fetched or frivolous
    doubt. It is not a doubt based on sympathy or prejudice.  It is a doubt based
    on reason and common sense. It is a doubt that logically arises from the
    evidence or lack of evidence.  Reasonable doubt as I have indicated, may also
    be derived from lack of evidence.

It is not enough for you to believe that the accused is
    probably or likely guilty. In those circumstances you must find him not guilty,
    because Crown counsel will have failed to satisfy you of his guilt beyond a
    reasonable doubt. Proof of probable or likely guilt is not proof beyond a
    reasonable doubt. Reasonable doubt falls closer to absolute certainty than to
    proof on a balance of probability. You should also remember however, it is
    nearly impossible to prove anything with absolute certainty. Crown counsel is
    not required to do so. Absolute certainty is a standard of proof that is
    impossibly high. If at the end of the case after considering all the evidence
    you are sure the accused committed the offences you should find him guilty of
    them since you would have been satisfied beyond a reasonable doubt of the
    offences being committed. If at the end of the case, based on all the evidence,
    or lack of evidence, you are not sure that the accused committed the offence
    you should find him not guilty.

[79]

As
    the Crown notes in its factum:

The appellants acquittal on the impaired driving count
    confirms that the jury understood the meaning of reasonable doubt and applied
    it correctly in reaching their verdicts.

[80]

Further
    the trial judge committed no error when he instructed the jury not to apply
    reasonable doubt piecemeal to individual pieces of evidence but to their final
    evaluation of guilt or innocence. See
R. v. Morin,
[1988] 2 S.C.R. 345;
R.
    v. Curry,
2014 ONCA 174, 317 O.A.C. 329, at para. 53.

Failure to Provide Proper and Complete Instruction on Elements
    of Offence

[81]

A
    reading of the pre-charge submissions and the lengthy and detailed discussions
    then, after the addresses of counsel and again after counsel were provided with
    the proposed draft charge, reveals a trial judge who had enormous patience with
    counsel. There were occasions when he listened to the same submission
    repeatedly. The charge on dangerous driving received careful and thorough attention
    and both counsel were satisfied with how the trial judge proposed to charge the
    jury.

[82]

Most
    of the pre-charge discussion in relation to the elements of the offence related
    to the impaired driving count and not the dangerous driving count. The discussion
    was whether the trial judge should use the Ontario specimen language or the CRIMJI
    language preferred by the appellants counsel. The comment appellants counsel
    made was:

Mr. Gordner:  So just so the record shows my actual statements
    and my position that the language in the Ontario instructions, it does try to
    make it concise, but I think it makes it too concise. And the one area in the
    impaired driving, the objectivity I think shouldnt be there; I think we should
    go to
[CRIMJI]
. And I do object
    to the criminal instruction on the, in regards to dangerous, I think [CRIMJI]
    is correct where you separate dangerous and marked departure.  I think it does
    a very good job, it makes it very simple, the two elements.

[83]

The
    trial judge responded that he was amenable to using the CRIMJI version and the
    discussion turned to other issues. The trial judge did charge the jury as he
    had indicated he would.

[84]

He
    first dealt with whether the appellant was, viewed objectively, driving
    dangerously and also whether his manner of driving was a marked departure from the
    standard of care a reasonably prudent driver would observe in the same
    circumstances. He stated that dangerous driving required more than simple
    carelessness.

[85]

At
    the conclusion of the charge there was no objection to this aspect of the
    charge, nor could there be. The trial judge used the language the appellants
    counsel had specifically requested and he made no error in doing so. It was
    unnecessary for him to tell the jury specifically that the
actus reus
of the offence was the objectively dangerous manner of driving while the
mens
    rea
of the offence was that the manner of driving was a marked departure
    from the standard of care a reasonably prudent driver would observe in the
    appellants situation. It was sufficient that he clearly delineated the two
    aspects of the charge and instructed the jury that it was for Crown counsel to
    prove both elements beyond a reasonable doubt. This the trial judge did clearly
    and in my view he made no error.

Other Errors in the Jury Charge

[86]

The
    appellant also argues that the trial judge erred in leaving subjective intent with
    the jury and in suggesting that there may be liability based on stunt
    driving. I do not accept this submission. As the Crown points out in its
    factum:

Since evidence about the actual intention of an accused is
    relevant to the objective assessment of whether or not the drivers conduct
    constitutes a marked departure from the norm, it follows that the appellants
    intention at the time of his stunt driving showing off and attempted donut
    was properly left with the jury.

[87]

Accordingly,
    when the trial judge charged the jury, in the following manner, he made no
    error:

If you find that David McLennan intentionally drove in a manner
    which he knew created a danger to others, whether to scare others or impress
    others, you are entitled to readily conclude that such a conduct is a marked
    departure from the conduct expected of a reasonably prudent driver.

[88]

Finally,
    the appellant submits that the trial judge failed to properly and adequately
    put the position of the defence before the jury.

[89]

In
    this regard, he specifically complains about the failure to reference the
    anecdotal evidence of persons living up Creek Road who told of other accidents
    that had occurred in proximity to this accident, and of the brief of prior
    accident reports.

[90]

I
    have serious reservations about the admissibility of such evidence.  Without a
    thorough inquiry into the circumstances of any of those other accidents there
    can be no meaningful comparison to what happened on this occasion. However, the
    evidence was admitted, the jury heard it and heard appellants counsel
    emphasize it in his address and heard the trial judge repeat it when he put the
    position of the defence before the jury. No more was required in my view. The
    trial judge is the independent arbiter, not the advocate of the accused.

[91]

I
    would not give effect to this ground of appeal.

(4)

Pre-Trial Applications

[92]

This
    appeal is in relation to the dangerous driving count. The pre-trial
    applications that the appellant raises in his factum sought to exclude the
    blood samples and the hospital reports.

[93]

Assuming
    without deciding those applications have some relevance on this appeal, the
    trial judges rulings are entitled to deference in this court. He gave detailed
    reasons for his decisions and specifically accepted P.C. Riddells
    evidence. There is no basis for this court to interfere.

[94]

For
    these reasons the conviction appeal is dismissed.

(5)

Fresh Evidence on the Conviction Appeal

[95]

The
    appellant seeks to introduce by way of fresh evidence the affidavit of Donald
    Revait. Mr. Revait is a private investigator who attended at the scene of the
    accident in April, 2016 and discovered that the road signage had been changed
    further since the time of the trial.

[96]

There
    is now a sign located 1.5 km north of the accident scene that sets the speed limit
    at 60 kph. It had been 80 kph at the time of the accident on July 24, 2008.

[97]

At
    trial, the judge permitted the appellant to call evidence about the changes
    that had been made to the signage on Creek Road after this accident, including
    the sign that noted the presence of the curve as well as the erection of
    additional reflective chevrons that marked the path of the curve. All of which
    was to support the defence theory that the road was a dangerous one and had
    been the cause of the accident rather than the appellants dangerous driving. The
    jury in convicting the appellant obviously rejected the argument.

[98]

The
    proposed fresh evidence indicates that the current changes were made in
    October, 2015  almost seven years after this accident.

[99]

I
    am not persuaded that this evidence meets the
Palmer
criteria.

[100]

Certainly this
    evidence could not have been obtained at the time of the trial because it did
    not exist.

[101]

I will accept
    that the evidence has some relevance but in my view it does not bear on the
    decisive issue  whether the appellant was guilty of dangerous driving on that
    night in those circumstances. The evidence is credible but in my view, it could
    not, when taken with the rest of the evidence, be expected to have affected the
    result. The jury clearly did not accept this theory of the defence  they had
    evidence of all the changes that had been made to the time of trial but still
    found the appellant guilty. In my view, it is not reasonable to think that the
    evidence of the placement of a speed reduction sign some 1.5 km north of the
    accident site would have changed this verdict. In my view, it would not and I
    would dismiss the fresh evidence application in relation to the conviction
    appeal. The conviction appeal is dismissed.

(6)

Sentence

[102]

The appellant
    submits that the sentence imposed upon him  nine months incarceration, two
    years probation and a one-year driving prohibition  is demonstrably unfit. He
    says the trial judge erred in principle in failing to appropriately consider
    the mitigating factors, including the familys wishes, the victim being the
    appellants son, no prior criminal record, excellent character references and
    work history, the accuseds great remorse and co-operation throughout the
    entire proceedings, no reasonable risk of re-offending, the manner of driving
    which was, it is submitted, at the lowest end of the spectrum, the court
    limiting its finding to excess speed without quantifying same, and the
    necessity of the appellant to continue working for the benefit of the entire
    family, all support the submission that the sentence is disproportionate.

[103]

The appellant
    seeks to file fresh evidence in relation to his sentence appeal. The fresh
    evidence consists of an affidavit from the appellants daughter Darla McLennan,
    one from his former spouse Robin McLennan and one from his employer, Rob
    Laforet. The evidence is in essence a repetition of evidence that was before
    the sentencing judge. Robin and Darla McLennan remain fully supportive of the
    appellant and neither wants him to spend any time in custody.  Darla is now 19
    years of age and is employed. She lives with the appellant and has since her
    parents separated in 2011. Both Darla and her mother speak eloquently to the
    particular anguish they will be caused if the appellant is incarcerated, and
    the renewed publicity that will open wounds and leave Darla without the
    support of her father who has been by her side throughout the familys ordeal.

[104]

The trial judge
    was well aware of the concerns of the family. In his reasons, he noted:

All of the letters in support of David specifically request that
    he not be incarcerated. They commented he has suffered and will continue to
    suffer having caused the death of his son. I acknowledge it is important that
    he continue to be available to assist his mother and specifically his
    16-year-old daughter Darla. Darla wrote a letter in support of her father that
    shows how much they mean to each other.

[105]

And while
    acknowledging the wishes of the family, the trial judge noted that theirs was
    not the only perspective from which the offence must be viewed. The interests
    of the family must be balanced with those of the public.

[106]

The sentence
    imposed by a trial judge is entitled to deference in this court. Absent an
    error in principle that had an impact on the sentence or a sentence that is
    demonstrably unfit, this court will not interfere:
R. v. Lacasse,
2015
    SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44-46.

[107]

While there were
    mitigating factors here that the trial judge took into account there were also
    aggravating factors. Speed was involved, there was the consumption of alcohol
    and erratic driving preceding the accident. The appellant did not have a
    criminal record but, as the trial judge noted, did have various highway
    traffic convictions over a 13-year period which included speeding.

[108]

I am not
    persuaded that the trial judge made any error in principle or that the sentence
    is demonstrably unfit. Indeed it is at the very low end of the range for a
    dangerous driving conviction.

[109]

While I
    appreciate the enormous tragedy that has befallen the McLennan family as the
    result of the events of July 24, 2008, the sentence appeal must also be
    dismissed.

Released: October 6, 2016 GH

J.
    MacFarland J.A.

I
    agree K. van Rensburg J.A.

I
    agree Grant Huscroft J.A.


