Her Majesty the Queen - v. -, 2022 SKPC 2

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 2 Date: January 11, 2022 Information: 90191128 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Leland Kerr Appearing: J. Laing For the Crown D. Braun For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused was charged as a result of a single vehicle rollover, August 13, 2018 near Kindersley, with the following: 1) while his ability to operate a motor vehicle was impaired by alcohol did operate a car and thereby cause bodily harm to Evan MASSEY, contrary to s. 253(1) (

a) and s. 255(2) of the Criminal Code . 2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did while operating a motor vehicle to wit: a car, cause an accident resulting in the bodily harm to Evan MASSEY, contrary to s. 253(1) (

b) and s. 255(2.1) of the Criminal Code .

[ 2 ] The material elements for proof of the offences are not in dispute, the Crown and defence having filed an Agreed Statement of Facts (Exhibit P-1) encapsulating same. [ 3 ] The sole issue for determination is the identity of the driver. The Crown asserts it is the accused, Leland Kerr, which the defence denies maintaining that it was the alleged victim, Evan Massey, who was the operator at the time of the incident. [ 4 ] The Crown called five witnesses:

a) Cst. Conroy Fillion – investigating officer;

b) Sgt. John White – expert motor vehicle collision analyst;

c) Payton Walde – civilian, first on scene;

d) Evan Massey – injured in the rollover; and

e) Isaiah Goertzen – civilian witness. [ 5 ] The defence called the accused and his spouse, Kimberly Dawn Kerr. II BACKGROUND [ 6 ] Leland Kerr and Evan Massey were known to one another. Mr. Massey’s girlfriend, Ocean, is the niece of Mr. Kerr. [ 7 ] On August 13, 2018, Mr. Massey and Ocean attended socially at Mr. Kerr’s residence in D’Arcy. Both Mr. Massey and Mr. Kerr consumed alcohol during the visit. [ 8 ] Mr. Massey received a call from his brother to attend to a field spraying job some distance away. Mr.

Kerr opted to go with him as he had an interest in learning spraying techniques for possible future employment purposes. [ 9 ] The two departed in Ocean’s car for the trip. Mr. Kerr drove. [ 10 ] Upon completion of the spraying, they departed for Mr. Massey’s farm residence five or six miles away to pick up some more alcohol. There was disagreement at trial as to who drove this leg. Mr. Kerr recalls that he did, while Mr. Massey stated he drove as he knew the way.

The only significance regarding this evidence was where the vehicle was parked upon arrival at the farm site which is addressed subsequently in the evidence summaries. [ 11 ] While at the farm site, Mr. Massey and Mr. Kerr consumed approximately two alcoholic drinks each on the back deck with Mr. Massey’s tenant, Isaiah Goertzen. [ 12 ] Mr. Goertzen observed the vehicle leaving the farm site with Mr. Kerr driving and Mr. Massey in the passenger seat. [ 13 ] Approximately five minutes after leaving this residence, the rollover occurred on a gravel road leading to Kindersley. III

SUMMARY OF CROWN EVIDENCE Cst. Fillion [ 14 ] Constable Fillion was dispatched at 8:59 p.m. arriving on scene at 9:04 p.m. [ 15 ] Upon arrival, he noted the damaged vehicle upright in the ditch. Mr. Massey was lying nearby severely injured but coherent. Mr. Kerr was standing and walking and appeared to be uninjured. [ 16 ] Mr. Massey advised there were two occupants, he as the passenger and Mr. Kerr as the driver. Mr. Kerr denied that he was driving stating that he was in the front passenger seat fully seat belted in. [ 17 ] Cst.

Fillion inspected the vehicle and noted only one window smashed out being on the front passenger side. He observed the passenger side seat belt to be fully retracted and locked in position and the driver’s side seat belt to be pulled out and locked in that position. In his experience from attending hundreds of motor vehicle collisions, his conclusion was that the passenger seat belt was not engaged during the rollover and that the driver’s seat belt had been in use throughout. [ 18 ] Cst. Fillion concluded that Mr.

Massey was the passenger given the extent of his injuries and that he appeared to have been ejected as an unrestrained occupant from the passenger seat. Mr. Kerr, by comparison, was uninjured which corresponded to having been restrained by the seat belt in the driver’s seat. [ 19 ] Mr. Kerr was accordingly detained and subsequently registered a fail on the Approved Screening Device. He was then arrested for impaired driving and transported by ambulance to Kindersley Hospital for observation and treatment. [ 20 ] Mr.

Massey was ultimately airlifted by STARS helicopter to Royal University Hospital in Saskatoon. [ 21 ] Blood samples drawn from Mr. Kerr at the hospital reflected a blood alcohol content (BAC) of 117 milligrams percent. Expert read-back analysis estimated the BAC at 20:59 hours (time of the incident) to be between 152 and 187 milligrams percent (Exhibit P-1, Appendix E). The Agreed Statement of Facts portion of P-1 (paragraph 22) indicated agreement by counsel of the BAC to be 187 milligrams percent.

[ 22 ] Further, individuals in this range according to the expert evidence, are impaired in their ability to operate a motor vehicle, no matter their tolerance or drinking experience (Exhibit P-1, Appendix E). Payton Walde [ 23 ] Ms. Walde was first on scene and observed Mr. Massey to be lying in the ditch with extensive injuries. She stayed with him to provide comfort until medical help arrived. She witnessed Mr. Kerr to be pacing about, apparently uninjured and on his phone. She called 911. Sgt.

John White [ 24 ] Sergeant White was qualified as an expert in the area of motor vehicle collision reconstruction, able to provide objective opinion evidence regarding the subject accident. [ 25 ] He has been a collision analyst since 2012 and an accident reconstructionist since 2016.

His examination of motor vehicle collisions includes road and vehicle analysis, use of seat belts during collision, occupant location in the vehicle, sequence of events pre- collision, examination of Event Data Recorder (EDR) data located in the vehicle, contact points within the vehicle and expected resultant injuries from the nature of the accident. He provided a written Forensic Collision Reconstruction Report of his findings and analysis (Exhibit P-3). [ 26 ] The salient points of Sgt. White’s report and viva voce testimony indicated the following:

a) this was a severe rollover causing damage to all sides of the vehicle;

b) the passenger side right corner of the roof was pushed in towards the passenger seat and the driver’s side bowed up a little;

c) the windshield remained intact;

d) the right front passenger window was smashed out creating a void for an occupant to be ejected out of;

e) the driver’s side seat belt was extended out and locked. The D-ring above the driver’s seat had burns and striations caused by a heavy load or a force exerted upon it. The only way Sgt. White has seen load marks on seat belt components such as this are from an excessive force collision;

f) if someone were quick enough to pull out a seat belt not being worn prior to rollover, this would extend it but would not load it;

g) the driver’s seat belt was functional and in use during the rollover;

h) the passenger seat belt was reeled up and fully retracted. There was no evidence of loading on the seat belt during the rollover. It was not locked and functioned properly upon examination;

i) the passenger seat belt was not in use at the time of the accident according to his observations and confirmed by the EDR data;

j) an unrestrained occupant would be pushed toward the outside of the vehicle compartment by centrifugal force exiting through a void in the vehicle;

k) the injuries sustained from an unrestrained occupant who was ejected would be expected to be severe – not superficial – including broken bones, lacerations and bruising;

l) severe injuries would not be expected in the driver position in this case given that the seat belt was fully engaged and that the driver would have remained in the vehicle the entire time. Further, there were no intrusions into the driver’s side by glass or metal. Expected injuries would be bruising and abrasions on the left shoulder area down diagonally over the chest to the lower right hip area, although in some cases there would be no visible injury;

m) injuries sustained to the top of the head would be consistent with being the passenger and not the driver because the driver’s side roof was bowed up and the driver would likely not have reached the roof;

n) it was the occupant of the passenger seat in this case who was ejected and sustained the severe injuries – not the driver;

o) the driver’s door did not come open during the rollover. Had it come open, the window frame would be expected to be crushed and the door disformed;

p) airbags did not deploy during the rollover, which is a function of how the software specific to them is written. The fact that they did not deploy was not a concern to Sgt. White based upon his review of airbag control module data; and

q) the cause of the accident was human error by driving at an elevated speed allowing the car to drift side to side, causing it to rotate across the road, enter the ditch, trip and roll. Evan Massey [ 27 ] According to the Agreed Statement of Facts (Exhibit P-1), Mr. Massey sustained the following injuries and treatment as a result of the accident:

a) small avulsion to the left side of his frontal lobe and a small abrasion to the left side of his forehead;

b) fractured left wrist, right humerus and both femurs;

c) surgery was required on his right arm and both legs;

d) his right humerus was stabilized with a medical plate;

e) his radial nerve in his arm had been stretched and bruised;

f) a medical plate was inserted in both femurs; and

g) he had various other minor scrapes. [ 28 ] Mr. Massey testified that he was the passenger in the vehicle at the time of the rollover and that he had not been wearing his seat belt. [ 29 ] He had been driving earlier when he left the spraying job travelling to his farm site. He diagrammed where he parked upon arrival (Exhibit P-7) which was near the step leading to the house. [ 30 ] He and Mr. Kerr consumed approximately two alcoholic drinks each at the farm site on the back deck with his tenant, Isaiah Goertzen. Upon leaving his residence, he was in the passenger seat and Mr. Kerr drove.

He made a call to his girlfriend, Ocean, advising her what was happening. [ 31 ] Mr. Massey had a vivid recall of events leading up to and during the accident which occurred roughly five minutes later on Rosanna Road, a typical gravel country road. [ 32 ] Mr. Kerr was driving approximately 80 kph when he hit a grade change in the gravel and began fishtailing side to side which occurred three times before a wheel caught an edge on the side of the road and the car began to roll. He recalls yelling “take the ditch” repeatedly just prior to that. [ 33 ] Mr.

Massey recollected hitting his head on the windshield and on the side window. He recalls flying through the air and hitting the ground hands and arms first. His legs were bent off to the side and his right arm bent behind his back. His head was bleeding and full of glass fragments. [ 34 ] He remained alert after the accident and was able to converse with police and medical personnel until he was airlifted from the scene. [ 35 ] In cross-examination, Mr. Massey was asked if he recalled sending a text message to Mr. Kerr’s wife on September 12, 2018 at 8:16 p.m., the day he had given his statement to the police.

He did not recall sending any such message. The text message was made Exhibit D-1 for identification pending completion of Crown cross-examination. The text read: Evan Massy Sep 12, 2018, 8:16 p.m. Hey Kim not sure if you are done work yet I just want to emphasize how important it is that I talk to Leland I really want to figure everything out with him so we can end this with both of us as happy as possible. [ 36 ] The Crown objected to this text being made a full exhibit as the Court cannot be satisfied in the circumstances as to its authenticity. [1] Mr. Massey denied authorship.

His name is misspelled at the top of the text “Massy” instead of “Massey”. Further, no connection was made between Mr. Massey’s phone number and the text number. [ 37 ] The Court agrees. The text does not meet the criteria for reliability or relevance. The message itself is unclear and ambiguous and no more than speculative conjecture as to what it might imply. In the result, Exhibit D-1 is not made a full exhibit in these proceedings. Isaiah Goertzen [ 38 ] Mr. Goertzen was the roommate of Mr. Massey at the time of the incident. He testified to having two alcoholic drinks with Mr. Kerr and Mr.

Massey on the deck over the course of roughly an hour. He was acquainted with Mr. Kerr having met him on two or three previous occasions. He described them as pretty friendly toward one another. [ 39 ] Prior to leaving, he suggested to Mr. Kerr and Mr. Massey that they should stay there as they had been drinking. He also recalls some discussion whereby Mr. Massey offered to drive but that Mr. Kerr said no, that he would. [ 40 ] Mr. Goertzen then went into the house to do some clean up. He was in the kitchen washing dishes and looked out the window just as Mr. Kerr and Mr. Massey were about to enter the vehicle.

The car was parked roughly ten to fifteen feet away by the stairs (where Mr. Massey had stated he had parked it). The view of the vehicle was unobstructed.

[ 41 ] He observed “Evan hop into the passenger seat and Leland walk around and hop in the driver’s seat and they took off” (T- 186, L-41). IV

SUMMARY OF DEFENCE EVIDENCE Leland Kerr [ 42 ] Mr. Kerr testified that he drove from his residence to the sprayer job and from there to Mr. Massey’s farm site, parking near the deck away from where Mr. Massey had stated. [ 43 ] Thereafter, he testified that Mr. Massey drove from his residence leading to the accident. He, Mr. Kerr, was at this point riding in the passenger seat fully belted in.

He recalls phoning his wife who inquired why they were going to Kindersley and that he replied “I don’t know I’m just the passenger”. [ 44 ] His recollection of the accident was vague – “all I remember is ditch, and not really so much about rolling. I just remember coming to, and the car was stopped” (T-213, L-36-37). [ 45 ] In examination-in-chief, he stated that he did not remember if Evan (as the driver) was wearing his seat belt.

He confirmed this in cross-examination but added that he did recall Evan reaching for it but could not confirm if he fastened it. [ 46 ] He emphasized that he was knocked out – for how long and by what he did not know. He had only a partial recollection of the car rolling. He did not sustain any head injury and advised medical personnel at the hospital that he did not lose consciousness during the accident (T-283, L-4-10). [ 47 ] The injuries he did suffer were superficial.

The medical notes entered in Exhibit P-5 indicate he presented with “L shoulder tenderness, small abrasion to L elbow” and “L scapula tenderness post-rollover” and “tender Lt shoulder, mid-chest, right hip.” Mr. Kerr advised at the hospital that his pain was five out of ten to his left shoulder (T-288, L-28-34). [ 48 ] As a consequence, Mr. Kerr’s left shoulder and right hip were x-rayed which yielded no serious injuries. Mr. Kerr chose to self-discharge, but when doing so he complained that “they x-rayed the wrong shoulder” and that he now had pain four out of ten to his right shoulder (T-298, L-26-31).

Inexplicably, he did not wish to remain to have this checked out. [ 49 ] Mr. Kerr’s evidence immediately following the rollover was curious and lacked credibility. He stated that when he came to in the passenger seat, he unbuckled and then hoisted himself up and crawled through the broken passenger window. When asked why he did so and not just simply use the door he replied “Because that’s my way out. It’s the quickest way to go out” (T-214, L-7-8) and further, “I don’t know if the door would open or not. I didn’t try it. I just crawled out the window” (T-271, L-30-31). [ 50 ] Mr.

Kerr agreed that he was not injured by the sharp glass from the passenger window. Mr. Massey, by comparison, testified that “there was quite a lot of glass in my head” (T-143, L-22). [ 51 ] Mr. Kerr tendered photos taken the next day by his wife Kimberly for the purpose of supporting his contention that he was wearing a passenger seat belt at the time of the accident. Exhibit D-3 shows a red, rash-like area on his right chest and upper mid- section. He agreed that the medical charts indicate that he had a “head to toe trauma survey” at the hospital.

As to why no such redness was noted by medical staff he stated “it might not have been red at that point” (T-286, L-8-9). Kimberly Dawn Kerr [ 52 ] Ms. Kerr testified that she was with her husband at the hospital and took the photos of his injuries at their farm the next day. [ 53 ] In contrast to her husband’s evidence, Ms. Kerr stated that not only were these red marks visible the night previous but even more red than the next day – “nine out of ten” the night before compared to “seven out of ten” the next day.

She agreed that the fluorescent lighting would have been better in the hospital than the daylight and the marks would have been visible to anyone, never mind trained nurses and doctors. The Court is highly skeptical in the circumstances that such red marks could have existed the night before as she testified. [ 54 ] Aside from the fact that the red rash-like marks do not depict with any certainty whatsoever that they would have been caused from a seat belt, the unreliability as to their origin means very little weight, if any, can be attributed to Exhibit D-3. [ 55 ] Ms.

Kerr also testified to the phone call she received from the accused which he states he made when leaving the farm site to the effect “. . . I’m just the passenger.” The Court in most instances generally would be dubious of such convenient and self-serving testimony. In this case specifically, in light of all the other evidence before the Court, hereafter summarized, if such information was imparted, it was not truthful. V DETERMINATION [ 56 ] Mr. Kerr testified in his own defence. On an R v W. ( D . ) [2] analysis, if the Court believes the evidence of Mr.

Kerr or is left in reasonable doubt by it, the accused is entitled to be acquitted. Further, if the Court does not accept this evidence and is not left in reasonable doubt by it then, if the Court is left in reasonable doubt otherwise on the whole of the evidence as to the guilt of the accused, then he must be acquitted. [ 57 ] The Court does not accept the evidence of Mr. Kerr nor is it left in reasonable doubt by it. Where the evidence of Mr. Kerr and Mr. Massey differ, the Court prefers and accepts the evidence of Mr. Massey.

[ 58 ] Much of Mr. Massey’s description of the rollover was supported by Sgt. White’s conclusions such as speed, texture of road, the manner the rollover occurred, the physical description of the vehicle following the rollover and the use of the seat belts. Further, the extent and severity of his injuries coincide with Sgt. White’s testimony as to the type of injuries that would be expected from being ejected from the vehicle. Similarly, the extent of Mr. Kerr’s injuries are consistent with him being the driver. [ 59 ] The Court found Mr. Massey overall to be a very credible and straightforward witness.

He did not embellish nor provide contradictory evidence. [ 60 ] At one juncture, Mr. Massey was unable to confirm whether his tenant, Isaiah Goertzen, had been standing at the window watching them depart from the farm site. This was critical evidence and if he wanted to prevaricate to reinforce Mr. Goertzen’s testimony, he certainly could have simply stated he saw Mr. Goertzen standing there. He did not which enhances his credibility as a truthful witness. [ 61 ] By contrast, the Court found Mr.

Kerr’s evidence to be confusing, contradictory, and lacking credibility on critical points of evidence. [ 62 ] Nor is the Court left in any reasonable doubt concerning the evidence as a whole otherwise as to who was driving at the time of the accident for the reasons that follow. [ 63 ] The Court accepts the evidence of Mr. Goertzen as an independent, impartial, and reliable witness that Mr. Kerr entered the driver’s side of the vehicle which then left the farm site. There is no evidence that any switch of drivers occurred in the minutes preceding the rollover. [ 64 ] Further, the expert evidence of Sgt.

John White, corroborated by Mr. Massey, leads to no rational conclusion [3] other than Mr. Kerr was the driver of the vehicle at the relevant time, based on the following:

a) the passenger seat belt was not engaged during the rollover. The driver’s seat belt was engaged;

b) Mr. Massey sustained multiple significant injuries consistent with being an unrestrained occupant being ejected from the motor vehicle during the rollover;

c) Mr. Massey incurred head trauma from striking the roofline and side window on the passenger side which accords with the physical evidence of the damage to the vehicle depicted in the photos and described by Sgt. White. Additionally, Mr. Massey found multiple glass fragments in his head. The only broken window was the side passenger window.

d) the centrifugal force of the rollover would cause the occupants to be flung outwards. The driver’s door could not have been opened during the rollover according to Sgt. White. This coincides with Mr. Massey’s evidence that he would have been in the passenger seat and was ejected out the side passenger window;

e) Mr. Kerr’s injuries were superficial in nature as would be expected from a fully belted in occupant. As noted, the only seat belt that was in operation at the time was in the driver’s seat;

f) Mr. Kerr presented with soft tissue trauma to his left shoulder, chest and right hip consistent with the seat belt configuration in the driver’s seat. No injury was reported or noted according to the medical notes to his right shoulder when he initially presented at the hospital, and he was x-rayed and treated accordingly;

g) when Mr. Kerr ultimately complained after all the testing was complete that “they x-rayed the wrong shoulder” he chose not to stay and have it checked out. [ 65 ] The Court must also address the following issues raised in the defendant’s written submissions: [45] It is worthy of note that the airbags in this vehicle did not deploy.

There seems to have been not enough force applied to the frontend of the vehicle to meet the very low impact force required to deploy those air bags. . . [47] It seems to us exceedingly unlikely that Leland would not have suffered more injury than he did if he were the belted in driver of the vehicle. The seatbelt was locked out and there was evidence of a great amount of friction, sufficient to melt the seatbelt guide.

All of that indicates a significant amount of force, which in turn predicts injury to the wearer of that seatbelt . . . [48] There is another way for a seatbelt to lock out, which is consistent with Leland’s testimony. Evan, who testified to not often wearing a seatbelt at that point in his life, was the driver of the vehicle. When it began fishtailing, he grabbed for the seatbelt in an effort to lock it in. He either got it locked in, or not, and if he did not, he held onto it for dear life while the vehicle started rolling.

This caused the seatbelt to lock, and the guide to burn from friction. [ 66 ] The Court is unable however to place any weight on these submissions as no expert evidence was called by defence to support whether these hypotheses could be true or not, nor did Sgt. White corroborate or confirm same. To the contrary, he specifically refuted these assertions in cross-examination. [ 67 ] The defence was also critical of the fact that the vehicle was not preserved for further examination which may have yielded more forensic evidence such as DNA, clothing fibers, or blood samples.

Whether further examination could have produced any additional evidence in this regard is pure speculation. The Court, of course, must decide the issues on what evidence is before the Court, not what might or could have been presented.

[ 68 ] Finally, defence raised in argument that Mr. Massey made a telling “slip” in his evidence concerning when the vehicle left his farm site “. . . I – we turned the car around because it was facing west” (T-135, L-131). The Court does not view this “slip” as an admission of any kind that Mr. Massey was the driver particularly when viewing all of the evidence as a whole. The accused in fact made such a “slip” himself in cross-examination when he stated “. . . he (Evan) was the one that drove from the sprayer to his farm because he knew the location of the area better than I did” (T-246, L-4-13).

He then quickly corrected himself to say he (Mr. Kerr) drove this portion as he had testified to in-chief. Similarly, the Court does not rely upon this “slip” as an admission that he did not drive at that time. VI CONCLUSION [ 69 ] The direct and circumstantial evidence is overwhelming that Mr. Kerr was the driver of the vehicle at the time of the accident. Exhibit P-1 establishes that his ability to operate the motor vehicle was impaired by alcohol and that his BAC at the time of driving was in excess of .08 percent. Mr. Massey sustained significant bodily harm in the accident. [ 70 ] In the result, Mr.

Kerr is found guilty on counts 1 and 2 of the Information. The matter shall proceed to sentence at which time the Crown shall advise as to which count it seeks conviction. The other count shall then be judicially stayed pending expiration of the appeal period. _________________________ R.D. Jackson, J