A new trial has been ordered for a Red Deer man convicted in a drunk driving crash that killed his friend more than four years ago.
The Alberta Court of Appeal, in a decision released on Monday, ordered a new trial for James Jonathan Carr, 24.
Carr was convicted of drunk driving causing death following a trial in late 2007.
The June 7, 2006, crash also injured two other friends.
He was sentenced on Feb. 2, 2008, to two years less a day under house arrest. He also received one year of probation and a five-year driving prohibition.
The appeal court granted the new trial on the basis of fresh evidence.
The fresh evidence was a significant heady injury suffered by Carr, resulting in a concussion.
The appeal heard head the evidence in early November as set out in an affidavit of Dr. Peter Rawlyk, an emergency department doctor who treated Carr at the Red Deer Regional Hospital Centre.
It is his opinion that the appellant “sustained a significant head injury resulting in a concussion,” and that in an emotionally-charged situation, such as the rollover, a person with a significant concussion “would have difficulty functioning rationally, retaining information and making appropriate decisions,” the appeal justices said.
Furthermore, Rawlyk states that he was never contacted by trial counsel to discuss Carr’s injuries.
The accused was driving to Half Moon Bay for a swim when his pickup rolled at a Hwy 11A curve just west of Sylvan Lake at about 11:30 p.m.
Blake Levall, 19, of Red Deer died from head injuries after he was ejected from the back seat.
Two female passengers were also injured.
Carr’s appeal lawyer Willie deWit of Calgary tendered two statutory declarations made by his trial counsel Lorne Goddard.
In his first declaration, Goddard explains that he deliberately chose not to contact Rawlyk because he felt, on reviewing the evidence surrounding the rollover, that there was substantial evidence indicating the appellant was aware of the circumstances and the surroundings when he gave his statements to the police.
In the second declaration, Goddard deposes that he was taken aback by the reaction of the trial judge to Carr’s testimony and that he realized that he ought to have subpoenaed Rawlyk to give evidence to support his client’s testimony.
Rawlyk’s evidence clearly meets conditions for the admission of his evidence, the appeal judges wrote, and that “the evidence may explain the appellant’s confused and contradicting statements following the accident, and thereby impact directly upon a trial court’s assessment of his credibility. . . .
“The evidence of Dr. Rawlyk may well affect the assessment of the appellant’s credibility with respect to the amount of alcohol that he drank prior to the accident, as well as affecting the determination of the admissibility of the statements made by him to the police,” the appeal court said.
The Crown will now have to decide on what course of action it wants to take.
jwilson@www.reddeeradvocate.com