This case is a good example of a situation where the the police and the Crown proceeded on both impaired driving and dangerous driving charges. Mr. McLennan was driving on Creek Road in the Town of Amherstburg. After completing a curve on that road, his evidence was that the right wheels of his 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 son. There was evidence Mr. McLennan had been drinking. At his jury trial both the Crown and defence called toxicology experts. Mr. McLennan was acquitted of the impaired causing death charge but convicted of the dangerous driving causing death charge. At his appeal, his counsel argued that the fact of his drinking short of impairment was legally irrelevant to the dangerous driving charge. The Court disagreed and upheld his dangerous driving conviction:
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. R. v. McLennan, 2016 ONCA 732