City employee found Not guilty in 2015 fatal collision

Erickson – who was employed as a snow-watch operator for the City – testified that on the day in question, he identified slowly melting snow on the north side of the median that separates east and west-bound Whoop-Up Drive as a problem. He said the water was running across the west-bound lanes and he feared it would freeze overnight, creating patches of black ice. He acknowledged that it was his idea to use a front-end loader to scoop up the snow, drive across three lanes of traffic and dump it on the grass, adding that when he shared the plan with his foreman, he was told, “Yeah, go ahead. Be careful.”

“In all of the circumstances, I can and do find that the snow removal operation and Erickson’s driving to accomplish it, created a danger to the public. However, not unlike any number of road of highway maintenance operations, which would also qualify as dangerous,” stated Judge Peterson as he outlined his decision. He added that it is the responsibility of all motorists to be alert to the conditions and potential hazards on the roadway, and to adjust accordingly for them.

Outside the courthouse, defence lawyer Balfour Der addressed the media on Erickson’s behalf.

“Throughout, he just felt that he was just doing his job and trying to do it as safely as he could and he was very conscious about the public,” said Der. “It was unfortunate that he was charged – it was more unfortunate there was an accident at all. I’m pleased for him, and I’m pleased that he was found not guilty, because I truly didn’t think there had been a crime committed here.

“Mr. Erickson, as you might expect, is quite relieved to be found not guilty. But overall, he expressed to me again just a few minutes ago how badly he feels for the deceased and deceased’s family, it’s very difficult on him,” continued Der. “He’s trying to do the job as best as he can and there’s an unfortunate accident, but accidents do happen on the road when it’s nobody’s fault, and that was the situation here.”

Overview of the case

After a lengthy process that saw the original 2017 trial date pushed back several months to accommodate the defence, Erickson’s trial got underway on Mar. 5 of this year – more than two years after the deadly collision on Whoop-Up Drive.

An agreed statement of facts was presented to the court to open the proceedings. In it, it was revealed that information from the van’s Crash Data Retrieval Unit showed there was no braking from the victim’s vehicle until one second prior to the collision. The van had been travelling at 76 km/h until the brakes were applied, then dropped to 59 km/h, which indicates it hit the loader at a speed lower than 59 km/h.

The statement Erickson provided to the Lethbridge Police Service was then played in court, in which Erickson said he cleared his plan to clear snow from the roadway with his foreman, before heading out.

“I thought of it, called my foreman and he said ‘Yeah, go ahead. Be careful,’” Erickson stated in the video.

LPS collision analyst Cst. Brent Paxman also testified at the opening of the trial.

He said that based off a photo provided at the scene about half an hour after the collision, witness statements, and his personal experience from driving Whoop-Up, he believed sun glare likely played a part, calling it “A blinding glare in all three lanes. It’s dangerous”

He added that people tend to become complacent when travelling a route they often use, and that it would be fair to say Johnston likely expected traffic to be moving at a much faster pace and did not expect another vehicle to be moving slowly or stopped in his path. Continuing, he said that based on normal human reaction times and when the brakes were applied, Johnston likely perceived the danger about two-point five seconds, or 50 to 55 metres, before the collision.

“[Johnston] didn’t perceive the threat until it was too late,” Paxman concluded.

City transportation manager claims Erickson was unsafe, defence reveals email calling Erickson’s actions “normal practice”

A crucial point in the trial came as City of Lethbridge Transportation Operations Manager Lee Perkins took the stand.

He said he would never authorize such a plan and that in his eight years in the position he couldn’t recall another time where a front-end loader was used to remove snow from Whoop-Up.

During cross-examination, Perkins was asked if Erickson was hired because of his ability to exercise good judgement when doing casual work for the city in the past, to which Perkins responded, “I believe he was written up for unsafe practices,” but then said, “He’s met with me before,” when confronted by Der on the issue.

Der then asked Perkins about an email he sent to several of his superiors within the City of Lethbridge, about two hours after the collision.

“This is normal practice,” Der quoted from the email, in which Perkins explained that Erickson had been removing snow from the concrete median on the west bound side of Whoop-Up.

“I don’t think I was in the right frame of mind,” Perkins replied, as Der asked about the quote.

With Der continuing to press, he asked Perkins if he believed the collision was the result of poor supervision – specifically asking about Erickson’s foreman – to which Perkins stated, “I believe it was a bunch of systems that broke down.”

As part of the cross exam and during a re-examination by Crown prosecutor Bruce Ainscough, Perkins tried to clarify the particular quote from the email by saying it was normal practice to remove snow from other areas in the city with lower traffic volumes, but said it was not a standard practice for Whoop-Up.

Defence expert says parts of LPS report were “misleading”

Following a break in the proceedings, collision reconstruction and investigation expert Daniel Ryan took the stand on June 18, saying he had concerns with the collision analysis conducted by the Lethbridge Police Service.

“The documentation that existed did not accurately represent the position of the sun at the time of the crash,” said Ryan, discussing Cst. Paxman’s assessment based on a photo taken half-an-hour after the collision. He later called the photo “intensely misleading,” adding that it “gives one a distorted perspective.”

Ryan explained that based on his calculations, the sun would have been in a different position in the sky at the time of the collision and that the police photo and report exaggerated the effect of sun glare. Under cross examination from Ainscough, Ryan acknowledged that he could not say for sure whether sun glare was a factor. He said the best way to determine the sun glare would be to return to the spot very near the same time of year and at the same time.

When asked if he had attempted to return and conduct a re-enactment of the collision on Whoop-Up, Ryan said he had wanted to but that his original client – the City of Lethbridge – told him not to proceed as they didn’t feel it was necessary.

Closing arguments

“He was obviously visible. People moved around him,” said Der in his closing for the defence, referring to witness testimony from numerous other drivers who encountered the loader on Whoop-Up that day, and who expressed concerns for how it was being operated.

“None of them chose to slow down due to sun glare,” Der pointed out, adding that many of them noted they had been driving at about 90 km/h, which they felt was safe for the conditions.

Der also highlighted Perkins email again as he concluded his submissions.

Following the defence, Ainscough also addressed Perkins’ testimony, pointing out that Perkins later said he didn’t think he was “in the right frame of mind” when he wrote it. To that, Judge Eric Peterson replied, “Back peddling and butt covering.”

As Ainscough proceeded, Peterson stopped him several times, with several questions about the responsibilities of other drivers.

“I’ve heard so many [witnesses] say they drove by at 90 km/h and didn’t think they needed to slow down,” said Peterson. “Do they not have an obligation to make sure they can safely navigate the roadway?”

After agreeing that other motorists do need to be responsible for their own actions, Ainscough stated that most don’t expect a loader to be stopped on Whoop-Up at that time of day.

“It seems ludicrous to me, what he was doing,” said Ainscough. “I could not think of a more dangerous scenario than that.”

by Patrick Burles - @PatrickBurles on Twitter

City employee found Not guilty in 2015 fatal collision

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