Killed cyclist's conduct should be considered in careless driving case, defence argues

Defence lawyer Dean Paquette knows that cyclist Jay Keddy isn't on trial — but he says Keddy's conduct on his bike should be considered as part of the trial of the man who struck and killed him, court heard during closing submissions Thursday.

Paquette is defending 57-year-old Guy McPhee, who is facing a careless driving charge for being behind the wheel of his truck when he struck and killed the 53-year-old Hamilton teacher and father of three while going up the Claremont Access on Dec. 2, 2015.

Evidence in the trial, which is before a judge alone, wrapped up Thursday.

• Kindergarten teacher Jay Keddy killed biking on Claremont Access
• Police charge driver in Claremont Access cyclist's death

McPhee previously testified that he did not see Keddy at the time of the impact, or after the fact when he stopped his truck to look around the roadway.

"We're not here to trumpet the rights of cyclists on the hill. The fact is, they're allowed on the hill. But they're not usually on the hill," Paquette said.

"I'm not here to find fault with Mr. Keddy. But what he did or didn't do, what he was wearing or not wearing, very well may have contributed to this tragedy."

This is not a case about Mr. Keddy's actions, what he did or didn't do, or how he rode his bike up that road.- Nancy Flynn, assistant Crown attorney

The court heard that Keddy was wearing dark clothing when he died, and had a black messenger bag with papers in it slung over his back. He also had a light on the front of his bike and some reflectors.

The incident galvanized cyclists and safe streets advocates, who publicly denounced the lack of bike lanes in the area, and rallied for safer streets.

Police say that the truck was going under the speed limit at the time. It was travelling between 49 and 59 km/h in a 70 km/h zone, in an area that was down to one lane and branching back out to three lanes just before the area where the collision happened.

A case of 'divided attention, defence attests

Court heard that McPhee was doing a shoulder check in his driver's side mirror when he hit Keddy — something Paquette characterized as "divided attention."

"Mr. McPhee's truck hit Mr. Keddy. But he didn't see him," Paquette said. "This is truly unfortunate. A life was lost."

"But this isn't a case where someone was trying to race a red light and t-boned someone … this isn't a case of inattentiveness. This is a case of divided attention."

But assistant Crown attorney Nancy Flynn disagreed, and maintained that McPhee is guilty of careless driving.

"This is not a case about Mr. Keddy's actions, what he did or didn't do, or how he rode his bike up that road," she said. "He is perfectly legally entitled to use that road and ride his bicycle up the access."

Flynn said that McPhee "failed to look out for traffic in front of him" while changing lanes, and "that conduct deserves punishment."

"As a driver of a vehicle on that roadway, [people are] obliged to use due caution for other persons on that road."

She said that it "is not disputed" that McPhee didn't see Keddy — but she did tell the court that McPhee's testimony should be found "unreliable."

"He deliberately tried to mislead this court into thinking he had no driving infractions," Flynn said. "That goes directly to the heart of his credibility."

'An outrageous distortion of the evidence'

Paquette said those charges refer to speeding tickets for going 60 km/h in a 50 km/h zone from 2010, and going 65 km/h in a 50 km/h zone in 1990.

"To characterize him as lying is an outrageous distortion of the evidence," Paquette said.

Court also heard that McPhee twice called police after the collision and volunteered information, before he knew someone had been struck. Paquette read out portions of his 911 transcript, where McPhee said he was "quite concerned" and that he "wanted to address this."

But the Crown also pointed out that McPhee deleted two calls from his cellphone log that were later picked up in a police extraction report of his phone. McPhee previously testified that his wife told him to delete them so people wouldn't think he was illegally on his phone while driving.

"Mr. McPhee knowingly and intentionally made efforts to destroy incriminating evidence against him," Flynn said. "That demonstrated that his evidence is untrustworthy."

A conviction on a careless driving charge comes with a fine between $400 and $2,000, a possible six months in jail, and the possibility of a license suspension for up to two years, according to the Highway Traffic Act.

A decision in the case is expected Friday.

adam.carter@cbc.ca