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 appellant’s 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 jury’s 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 accused’s 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 accused’s 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 accused’s 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 appellant’s 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 appellant’s 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 SCC 9, [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), 1980 CanLII 2973 (ON CA), 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 appellant’s 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 Crown’s expert toxicologist opined that he would expect that the appellant’s 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:

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 accused’s 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 jury’s 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 appellant’s 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 accused’s 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 appellant’s 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 judge’s finding that the appellant’s ability to drive was not impaired did not prevent the trial judge from relying on the appellant’s 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.

... the evidence of the appellant’s 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 accused’s 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 driver’s 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 driver’s 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 driver’s 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, [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 jury’s 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, [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 appellant’s 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 appellant’s admission to a first responder that the accident was his fault because he was going too fast.

Excessive Speed

[33] The appellant’s 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 appellant’s vehicle, and in the face of conflicting evidence, the conclusion that the appellant’s 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 Crown’s 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 judge’s 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 Crown’s 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. Riddell’s observation that the accident involved excessive speed and unexplained bad driving

• P.C. Riddell’s observation that the vehicle had rolled over, confirmed by the appellant’s admission to Larry Wright

• the appellant’s 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 appellant’s admission that he had driven the road before and that the curve was not necessarily unexpected

• the appellant’s 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 appellant’s 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 didn’t 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 Shooter’s 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 wasn’t 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 Shooter’s 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 manoeuver 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 Mackay’s home; the appellant drove there from Shooter’s 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. Mackay’s 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] didn’t 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 don’t 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 one’s 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. Beatty’s 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 driver’s conduct into discrete time periods of mere seconds. The language of the section requires consideration of “all the circumstances”. Those circumstances would include the appellant’s 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. Beatty’s 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 court’s 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 appellant’s case there was more than merely his stated momentary lack of attention and in my view the evidence described above, together with the appellant’s 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 Crown’s reference to R. v. Boucher, 1954 CanLII 3 (SCC), [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 Crown’s 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 counsel’s 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 Crown’s 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. Appellant’s counsel in the case at hand had made an impassioned plea in closing and in effect warned the jury to beware of the Crown’s arguments suggesting likelihoods – and urging that they not “take a chance with another person’s 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 appellant’s counsel did not object to the Crown’s 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 Crown’s quote from Boucher was harmless in the circumstances.

[65] The other objections to Crown counsel’s 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 jury’s 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 Crown’s 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 Crown’s 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 appellant’s 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 jury’s 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 appellant’s 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 Crown’s 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 appellant’s 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 appellant’s evidence and Sergeant Capel-Cure’s 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 appellant’s 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 CanLII 8 (SCC), [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 appellant’s counsel. The comment appellant’s 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 shouldn’t 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 appellant’s 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 appellant’s 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 driver’s conduct constitutes a marked departure from the norm, it follows that the appellant’s 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 appellant’s 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 judge’s rulings are entitled to deference in this court. He gave detailed reasons for his decisions and specifically accepted P.C. Riddell’s 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 appellant’s 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 family’s wishes, the victim being the appellant’s son, no prior criminal record, excellent character references and work history, the accused’s 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 appellant’s 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 family’s 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.”