Jury finds driver of vehicle not guilty of criminal negligence in Gore Bay accident

Tom Sasvari

The Recorder

GORE BAY—A jury has found the driver of a motor vehicle involved in an accident that occurred in downtown Gore Bay almost three years ago not guilty on two counts of criminal negligence causing bodily harm involving a motor vehicle.

The 12-person jury (four men and eight women), after hearing evidence from both the Crown and defence in the case, including a list of witnesses, found Fraser Montgomery, originally from Billings, and now residing in Lively, not guilty.

Defence lawyer Andrew Perrin argued on behalf of Mr. Montgomery that the accident had taken place as a result of Mr. Montgomery, who was driving the truck when the accident occurred, choking on a mint, which caused him to have difficulty breathing and eventually lose consciousness.

As reported in the Friday, August 14, 2009 edition of the Manitoulin West Recorder, a Southampton woman (Jennifer Moser) and her son, aged seven at the time, were transported to hospital with severe head injuries as a result of the incident that took place on Meredith Street in Gore Bay.

A witness to the accident, Donnabelle Smyth, was quoted in the Recorder as saying a few minutes after the incident (which took place August 11, 2009 at 4:08 pm), “the one vehicle was coming into town when it had just passed the Gore Bay Valu-Mart store. By this time the vehicle was accelerating and ended up in the other lane, coming across the corner of the street and hitting a planter box, bench and garbage cans (located in front of M and R Jewellery.” From there, “the truck hit a van that was parked on the street and the vehicle (van) went into the air, landing in front of the drug store (Robertson’s IDA Pharmacy).”

An OPP investigation, as reported in the Recorder August 14, 2009, stated that a 2007 black GMC Sierra, driven by Mr. Montgomery, was allegedly travelling at a higher rate of speed than posted when it struck the 2009 black Dodge Journey, which was parked at the time, while the four family members were out of the vehicle and standing nearby.

After being hit by the SUV, the family’s van spun around and struck the mother and son. Another parked pickup truck was also hit in the incident.

Much of the evidence provided by the victims, police, and witnesses to the accident is under a publication ban. However, on Tuesday, after hearing submissions from legal counsel for the Crown (Philip Zylberberg) and defence legal counsel Superior Court Justice Judge Robbie Gordon provided a summary to the jury of the week’s proceedings and evidence they had heard.

“We all know that Mr. Montgomery had been operating the vehicle and Jennifer Moser and her son were both harmed,” said Mr. Gordon.

The jury was told by the Crown that nothing unusual was affecting Mr. Montgomery that would lead to the accident, while the defence contended Mr. Montgomery had choked on a mint, was unable to breathe and lost consciousness.

The Crown counsel argued that Mr. Montgomery could have taken his foot off the accelerator and even if he had been choking, he could have taken steps to avoid the accident.

After an almost five-hour deliberation, the jury came out with its verdict of not guilty to both counts.

Cindy McQuarrie, a niece of Mr. Montgomery, told the Recorder, “the whole case was a case of blatant harassment. The Crown just didn’t want to accept this was an accident.”

“In this country you are supposed to be innocent until proven guilty, not crucified for the past three years as Fraser has been,” said Ms. McQuarrie. “The preliminary hearing was held to determine if there was enough evidence to proceed to trial. The Crown didn’t want to hear it was an accident. In this case Fraser had popped a mint in his mouth, choked and blacked out.”

Ms. McQuarrie said her uncle, “is a caring man—he wouldn’t do harm to anyone. To allege he did this on purpose has devastated the family, especially Fraser, who has had to live with this for the past three years.”

The Recorder also received a written statement from Ms. Moser who, along with her son, was injured in the accident. She wrote that, “throughout the trial it clearly became evident that there were so many people who helped our family on the day of the accident. Their care, concern and support has meant so much. All their efforts are very much appreciated and the compassion from those we have heard from and talked to will stay with us throughout our lives.”