A Victoria man who fatally injured 68-year-old Virginia Dorothy Little in a Brentwood Bay crosswalk three years ago has been convicted of driving without due care and attention.
On Friday, Victoria provincial court Judge Sue Wishart found Owen Patrick Kelly was looking at a job site across the road when he struck Little in the crosswalk on West Saanich Road on the morning of May 12, 2011.
“I am satisfied that Mr. Kelly was not paying attention. He admitted that if he had been looking straight ahead, he would have seen her,” Wishart said.
“Mr. Kelly was approaching the crosswalk and should have been on the lookout for pedestrians. While I accept the fact that the crosswalk configuration at the time was not ideal and was distracting, all the more reason for Mr. Kelly to be on the lookout for pedestrians as he approached it.”
The court heard that Little was on the way to her insurance company with her husband’s death certificate. Central Saanich Cpl. Ondine Easson, the first officer at the scene, testified that she found a brown envelope in the crosswalk. Inside was a death certificate for Little’s husband, Don, who had died on April 3 after a long illness.
After Wishart’s decision, Little’s daughter, Susan Fox, left the courtroom with tears in her eyes.
“I’m pleased with this because it wasn’t her fault,” she said.
A date has not been set yet for Kelly’s sentencing hearing.
Wishart found Kelly to be an honest, reliable and credible witness. She said she accepted his evidence that he was not on his cellphone at the time of the accident, that he was driving under the speed limit and that he did not see Little at any time. She also accepted his evidence that he didn’t see the flashing lights over the crosswalk.
However, based on the evidence of a witness who saw Little push the crosswalk button, Wishart found that the lights were flashing when Little was in the crosswalk. “Mr. Kelly did not see the flashing lights because he wasn’t looking in that direction.”
Kelly, who had been working on a construction project in the area for about four months, was familiar with the area and the crosswalk. There was nothing blocking his view of the area where Little stood looking at the lights or as she walked toward the crosswalk, Wishart found.
Although Little entered the crosswalk quickly and did not look for cars, she was in the area for several seconds before she entered the crosswalk and she was at least six feet into the crosswalk before she was struck, noted Wishart.
“She was there to be seen.”