Judge dismisses appeal in dangerous driving case that left Saanich girl severely injured

Judge dismisses appeal in dangerous driving case that left Saanich girl severely injured
Tenessa Nikirk is seen outside the Victoria Courthouse in January 2020.

A woman convicted of dangerous driving causing bodily harm in a collision that left a young Saanich girl with severe injuries has had her appeal dismissed by a B.C. judge.

Tenessa Nikirk was found guilty in January 2020 of striking and seriously injuring 11-year-old Leila Bui in a Saanich crosswalk on Dec. 20, 2017. Bui was thrown 26 metres on impact and was left with severe brain damage.

During her trial, court heard Nikirk was going more than 100 kilometres an hour in a 50 km/h zone and had sent 18 text messages in the 24 minutes before hitting Leila.

In December 2020, she was sentenced to two years in jail and handed a three-year driving prohibition upon release. But the following month, Nikirk was released on bail after serving just two weeks of her sentence with conditions as her lawyer filed a notice of appeal, stating that the judge made three crucial errors in his ruling, including “wrongly” concluding she was manually texting at the time as opposed to using a hands-free device.

That appeal was finally heard last month and on Tuesday, B.C. Appeal Court Justice Susan Griffin ruled that Nikirk had not established any grounds for finding the verdict unreasonable.

“The evidence supported the inference that the appellant was manually texting in the minutes before the accident, and, regardless, it was clear that she was distracted by an extended text conversation with someone,” wrote Griffin in a summary or her decision.

Nikirk’s attorney argued that the original judge gave “insufficient reasons” by failing to address inconsistencies in evidence provided by a witness “and failing to explain why he chose to rely on…unreliable evidence.”

Specifically, Nikirk challenged the judge’s reliance on a witness who said they saw her looking down and up from her lap, saying the driver would not know whether or not she was looking at her phone.

“The sight of someone repeatedly looking up and down to a phone in their hand or lap is familiar to people in modern society,” Griffin responded. “The fact that a phone was not visible does not mean that the witness’s evidence of Ms. Nikirk’s behaviour was entitled to no weight.”

Nikirk’s attorney also argued that the judge failed to address expert evidence about Nikirk’s reaction time in regards to Bui walking into the crosswalk.

“In summary, it is my view that none of these topics were material to the judge’s findings, because the judge concluded that there were sufficient visual cues approaching the intersection that a reasonably prudent driver would have slowed down in advance of the intersection,” wrote Griffin.

“There was an abundance of evidence in this case. There were 14 witnesses at trial. There was video evidence of Ms. Nikirk’s driving behaviour from another driver’s dash cameras and from cameras on a passing transit bus. The witnesses who testified included the drivers and a passenger of the three cars that were stopped at the intersection, who saw Ms. Nikirk drive into the child.”

She also said the appeal failed to consider all of the evidence against Nikirk, including her “impatient and distracted driving” as she sped toward the crosswalk “where other cars were stopped and a child was there to be seen.”

The BC Prosecution Service said Nikirk is required to surrender herself today to begin serving her sentence according to the terms of her bail.

“Ms. Nikirk will be returning to custody to serve the remainder of her sentence. I will be reviewing the decision of the Court of Appeal to see if there are grounds for any further appeal,” said Donald McKay, Nikirk’s criminal defense lawyer.

Leila’s mother, Kairry Nguyen, said the dismissal of Nikirk’s conviction appeal is welcome news.

“This is the outcome we were hoping for,” she told CHEK News on Tuesday.

Correction: An earlier version of this story stated Nikirk would be appealing her sentence. Her lawyers say no sentence appeal has been filed “as the sentence is within the appropriate range and not unfit.”

Jeff LawrenceJeff Lawrence

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