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Judge dismisses appeal for motorist convicted of driving into child in Saanich crosswalk

A Victoria woman convicted of dangerous driving causing bodily harm in a 2017 crash that left an 11-year-old girl catastrophically injured surrendered herself Tuesday after a B.C. judge dismissed her appeal.
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Leila Bui, 15, at home on Tuesday flanked by her mother, Kairry Nguyen, and father, Tuan Bui, and with her siblings behind, from left, Myla, 12, Quynh, 17, and Jace, nine. DARREN STONE, TIMES COLONIST

A Victoria woman convicted of dangerous driving causing bodily harm in a 2017 crash that left an 11-year-old girl catastrophically injured surrendered herself Tuesday after a B.C. judge dismissed her appeal.

Tenessa Rayann Nikirk was convicted in January 2020 and sentenced on Dec. 21, 2020, to two years in prison for hitting Leila Bui with her vehicle at a Saanich crosswalk, throwing the child 26 metres. Leila became wedged under an oncoming car. She ­suffered severe brain damage, a fractured neck and a lacerated spleen.

Nikirk spent two weeks in custody at the Alouette Correctional Centre for Women, and was released on $5,000 bail on Jan. 5, 2021, with conditions that include not driving. Her appeal, filed eight days after her sentencing, was dismissed by B.C.’s highest court on Tuesday.

Nikirk was required to surrender herself Tuesday to begin serving her sentence. She did so around 2:30 p.m., said her lawyer, Donald McKay.

Leila’s mother, Kairry Nguyen, said Tuesday’s decision is the outcome the family was hoping for. It’s one door they can close, but the family is still waiting to see if Nikirk will attempt a further appeal. “We just want this thing to be over with. It should have been over a long time ago,” Nguyen said.

McKay said Nikirk will not appeal her sentence, but he will review the decision to see if there’s any basis to appeal to the Supreme Court of Canada.

“There would have to be some aspect of the appeal that would have what amounts to national interest,” he said, such as a substantial error in reasoning that would lead to other wrongful decisions or something that reflects a difference in how the law is applied between provinces.

At the trial, the court heard Nikirk was speeding at 95 to 100 kilometres an hour in a 50 km/h zone on roads that were wet and had been frosty. She sent and received 23 text messages in the 15 minutes before she struck Leila, now 15.

B.C. Appeal Court Justice Susan Griffin found Nikirk had not established any grounds to find the verdict unreasonable.

“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,” Griffin wrote in her decision.

Nikirk’s lawyer had argued in the appeal that the trial judge failed to address inconsistencies in a witness’s evidence, ignored expert evidence about average reaction times and wrongly concluded Nikirk was manually texting instead of using a hands-free device.

Griffin wrote it was irrelevant whether Nikirk was using a hands-free device, because the “sheer number and frequency of texts” supported a finding that she was clearly not focused on operating the vehicle.

“This case serves as a very sad cautionary tale that texting while driving can ruin lives. In my view, the inference from all the evidence is compelling: that Ms. Nikirk was texting with someone repeatedly and was driving distractedly and impatiently and that this was part of a dangerous pattern of driving that led to her driving at full speed into a child in the crosswalk,” the judge wrote.

regan-elliott@timescolonist.com