Winnipeg man argues he wasn't responsible for death of 22-year-old beaten and left unconscious on road

A 53-year-old Winnipeg man who allegedly drove drunk and ran over Dustin McKay is arguing he shouldn't be held legally responsible for the death of the victim, who was left injured and unconscious on the road before being run over.

Desmond Spicer is on trial after being charged with impaired driving causing death in connection with the January 2015 death of the 22-year-old McKay.

"The trial will focus solely on the issue of Mr. Spicer's actions, as to whether or not they constituted legal causation in the death of Mr. McKay," defence lawyer Ted Mariash said at the opening of the trial.

Billy Joe Couture, the man who assaulted McKay, pleaded guilty to manslaughter in 2015 and was sentenced to four-and-a-half years in prison.

According to an agreed statement of facts provided to court at Couture's sentencing, McKay was crossing Isabel Street at Pacific Avenue at 11:20 p.m. when he was nearly struck by a van.

McKay banged on the van with his fist before approaching the passenger-side door, an act Couture, seated in the front passenger seat, interpreted as "a sign of aggression."

'I covered my eyes and heard the thump': witness

A witness at Spicer's trial this week testified he had stopped for cigarettes at a nearby gas bar when he heard a loud thump and turned to see a male passenger from the van assaulting McKay.

"At first [McKay] tried to get away," Jeffrey Gravito testified. "Then the man from the van went on top of him and hit him once or twice and his body went still and he just kept hitting him."

The attacker returned to the van and drove away "like nothing happened," leaving McKay lying unconscious on the curbside lane of Isabel Street. 

Gravito said he veered his car into oncoming traffic and flashed his high beams in an effort to alert other motorists to the body on the road. He said he saw a van driving towards McKay's body and closed his eyes. 

"I covered my eyes and heard the thump," he said. "I was just in shock. I couldn't believe what happened."

When Gravito opened his eyes seconds later, a police officer was already at McKay's side.

Police thought van drove over rolled-up carpet

Const. Benjamin Kirton testified he and his partner were driving south on Isabel when he saw a minivan drive over what he thought was a rolled-up carpet.

"Once we got closer, we could see it was a person," Kirton said. His partner jumped out of the cruiser to attend to McKay while Kirton activated his emergency equipment and followed the minivan.

Kirton said the driver made a U-turn at the next intersection and came to a stop.

When questioned, Spicer "spoke slowly … like he was searching for his words," smelled of alcohol and appeared to have trouble keeping his eyes open, Kirton said. 

"At that point in time, I determined that in my opinion all the indicators were that his ability to operate a vehicle was impaired by alcohol," Kirton said. 

McKay was transported to Health Sciences Centre and pronounced dead a short time later. An autopsy concluded he died from "blunt force trauma consistent with being run over by a motor vehicle."

Taken into custody, Spicer provided blood-alcohol readings of .100 and 110. The legal limit for driving is .08. An RCMP toxicologist testified the readings would have been higher at the time of the collision.

The trial has now adjourned until Dec. 15.