The B.C. Court of Appeal has dismissed a Prince George man's request for a retrial after a jury found him guilty last year of criminal negligence causing death for allegedly hitting a man with his truck and killing him.
Gordon Mayward Kerr was subsequently sentenced to four years in prison for the April 28, 2010 incident at the entrance to Grama's Inn on Central Street East, which led to the death of Samuel Charles Auger nine days later from massive head injuries.
In reaching their decision on June 13, 2012, the jury found Kerr not guilty of the more serious charge of manslaughter and about 10 weeks later, B.C. Supreme Court Justice Arne Silverman issued the sentence.
An appeal was made on arguments that Silverman erred by failing to give the jury a limiting instruction about the evidence of bad character led by the Crown prosecutor and by giving the jury erroneous instructions about the elements of the offence of criminal negligence causing death.
Kerr's lawyer contended that in her closing argument, Crown prosecutor Marie Louise Ahrens invited the jury to infer he had certain character traits that made him more likely to take matters into his own hands and act recklessly when angry.
However, in a judgment issued this week by Justice Kathryn Neilson, it was found that although the comment was unnecessary, it was also innocuous, brief and was relative to the charges before the jury because it went to his "motive and state of mind."
Moreover, given the issues and substantial other evidence before the jury, Neilson said she was not persuaded the passing comment had any impact on the jury.
Neilson also found Silverman did, indeed, correctly instruct the jury on the elements of the charge for which Kerr was found guilty.
Kerr had gotten into a confrontation with Auger early that morning, when he arrived at the Mohawk convenience store at Eighth and Central to pick up a coffee on the way to work and noticed Auger and a young woman loitering in the parking lot.
When he returned to his truck, the woman asked Kerr for a ride in an apparent attempt to get away from Auger. Kerr agreed but as they left the parking lot, Auger ran after them and threw something at the truck, hitting the passenger side.
After he dropped the woman off at a relative's home, Kerr returned to the Mohawk to buy cigarettes and check his lottery tickets. Auger was still there and as Kerr drove up, he threw a rock at the truck, hitting the windshield and when he got out of the truck, Auger threw another rock in his direction and taunted him before running out of sight when Kerr gave chase.
When Kerr got back into his truck and drove out of the Mohawk, he turned right onto Central Street and caught sight of Auger running in the same direction. When he took the stand at the trial, Kerr said he pursued Auger but just wanted to catch up, talk to him about his actions and about who was going to pay for the damage to the truck.
He said he passed Auger then slowed for a stop sign but because Auger veered toward him, he did not stop and instead went through and into the parking lot at Grama's Inn. Kerr claimed Auger suddenly appeared on the passenger side, somehow jumped up and struck the hood with his fist and came across the hood.
Kerr said he then slammed the brakes and Auger came off the hood. He then put the truck in reverse and drove away, heading directly to the police station where he referred to Auger in unflattering terms, "the mildest being a 'retard' and a 'low life,'" according to a review of the trial in the judgment.
There were inconsistencies between Kerr's testimony and that of three eye witnesses who also testified at the trial and there were inconsistencies between the eye witnesses' accounts as well.
All three, however, testified that Kerr's truck struck Auger and did not slow down before impact.
Forensic evidence suggested Auger was hit by the truck's front corner while going at a slow speed. It was also found Auger was on cocaine and had a blood-alcohol level of .159 at the time.
