The driver who struck 11-year-old Leila Bui in a Saanich crosswalk in 2017 will not have her conviction re-considered, the B.C. Court of Appeal determined Tuesday.
Tenessa Nikirk was convicted of dangerous driving causing bodily harm in January 2020 and, in December of that year, was sentenced to two years in federal jail to be followed by a three-year driving ban. On Jan. 5, 2021 she was released on bail after filing for her conviction to be appealed.
Arguing her case in December 2021, Nikirk’s lawyer Donald McKay said the judge failed to address inconsistencies in one witness’s testimony, ignored some evidence and wrongly concluded that Nikirk was manually texting prior to the crash when she could have been using a hands-free mode.
McKay picked apart the testimony of one of the trial’s main witnesses, Shaun Steele, who was in his vehicle waiting to turn from Torquay Drive onto Ash Road when Bui was struck. McKay argued that the perpendicular position of Steele’s vehicle to Ash Road would have blocked Bui from Nikirk’s vision until the 11-year-old had entered the intersection. He also argued that when Steele honked his horn it made Bui run quickly into the crosswalk, giving Nikirk little time to react.
McKay added that Steele’s account had some inconsistencies.
He also argued that the speed formula relied upon at trial may not have been the most accurate, that Nikirk didn’t have enough time to react to Bui appearing in the crosswalk, and that the court couldn’t prove Nikirk wasn’t using a hands-free mode while texting.
None of these arguments, however, were material to the judge’s findings, Justice Susan Griffin said.
What matters, she said, was that there were enough visual cues leading up to the intersection – crosswalk lines and signs, a flashing yellow overhead light, a large “X” on the pavement and drivers stopping in the oncoming lane – that a reasonable driver should have known to slow down.
Griffin added there was significant evidence from the trial that pointed to Nikirk driving dangerously. Prior to hitting Bui, Nikirk closely tailgated one vehicle, then passed two others at an estimated speed of 95 to 100 km/h. She also exchanged 23 text messages in the 12-minute period leading up to the crash. Whether those were by hand or by voice, they still would have been distracting, Griffin said.
She concluded that none of the grounds required for finding a verdict unreasonable had been established, and dismissed the appeal.
Bui, now 15, has remained in a non-responsive state since the day of the accident.
Speaking with Black Press Media in December, her parents Tuan Bui and Kairry Nguyen said they just want Nikirk to accept responsibility for her actions. They said they’ve been told she will appeal her sentence next.
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