Julia Fellman was driving along Ash Road in Saanich on the morning of Dec. 20, 2017, when the driver of a black Mercedes SUV passed her at a speed she estimated was more than 80 kilometres an hour.
The vice-principal of Hillcrest Elementary was so surprised, she looked down at her own speedometer to check her speed.
“I was going 50 and the SUV appeared to be going faster and faster as it accelerated away from me,” Fellman testified Monday on the first day of Tenessa Nikirk’s trial in Victoria provincial court.
Nikirk, who is in her early 20s, is charged with dangerous driving causing bodily harm, and has pleaded not guilty.
Nikirk was behind the wheel of the black Mercedes that struck 11-year-old Leila Bui at the intersection of Ash Road and Torquay Drive. Leila received catastrophic injuries, including severe brain damage, a fractured neck and a lacerated spleen.
Fellman testified that she watched the black SUV disappear over the crest of the hill.
“When I got to the top of the hill, I saw the black SUV had stopped. There were about four vehicles stopped at the crosswalk and on the opposite side I saw the top of the head of what looked like a small person or a child beside the second car,” Fellman said.
The car doors opened and drivers got out and went toward the child lying in the road, Fellman recalled. She realized there was a line of cars behind her and turned onto Torquay. She drove to school, calling police as soon as she got there.
Fellman has a dash cam on both the front and back of her car and court was able to watch video of a black SUV overtaking her.
The Crown’s theory is that Nikirk showed a pattern of dangerous driving on that cold, icy morning, said prosecutor Jess Patterson.
Admissions of fact, read into the court record, show that between 8 a.m. and 8:20 a.m., Nikirk sent 11 text messages and received 13 texts from a 604 number. Leila was hit between 8:15 and 8:16 a.m.
Patterson expects the evidence will show Nikirk overtook Fellman’s car and another car on Ash Road. Nikirk passed the cars on a solid yellow line, which is legal. “But given the conditions and the fact the evidence will show she exceeded the speed limit to some degree, that’s not legal,” Patterson said.
The evidence will show that Leila was thrown quite a distance.
Expert witnesses and collision analysts are expected to testify about the speed the black Mercedes was going.
Leila’s parents, Kairry and Tuan Bui, were sitting in the back row of the courtroom Monday.
Steven Kachanoski testified he was driving along Ash Road toward Torquay Drive when he saw a young girl enter the crosswalk and noticed that a car coming toward her was not going to stop.
“She was about 10 or 11, about the same age as my son who was in the car. She was almost in the centre of the road when the car hit on the driver’s side front. … She was thrown toward my car,” Kachanoski testified. “I remember her sliding on her back toward our car. She did hit the lower front fender of my car. I don’t think very hard, though.”
Leila ended up beside his driver’s door, Kachanoski recalled.
Kachanoski testified that he thinks he yelled at the girl to get out of the way, but doesn’t remember what he said.
Other drivers who witnessed the collision started coming over. Kachanoski opened his window and gave his jacket to someone to put over Leila. Help arrived quickly, he said.
Kachanoski told prosecutor Jess Patterson that Leila didn’t look one way or the other and she didn’t brace herself.
“I don’t think she saw the car hit her. If she’d seen something, she might have tried to jump or do something. She didn’t do anything.”
The SUV didn’t swerve or try to avoid her, said Kachanoski, who said he couldn’t tell how fast the SUV was going.
During cross-examination, Kachanoski told defence lawyer Tom Morino the sightlines for that intersection are challenging “or they used to be.”
The witness said he believed the municipality removed a tree that made it difficult to see when turning right or left onto Ash Road
“You have to edge out a bit to get beyond obstruction. It’s a stop that you need to be kind of patient,” he said.
Samantha Etzel also took the stand, testifying that she was driving along Cordova Bay Road on her way to UVic when she saw a black SUV following her car very closely. The SUV was so close, she couldn’t see the front of the car in her rearview mirror, Etzel testified.
“And I was going the speed limit, plus it was frosty.”
Etzel said she saw the driver constantly looking up and down as if she were sending text messages.
After she turned onto Ash Road, the SUV passed her and another car, said Etzel.
Morino has asked Judge Mayland McKimm to consider going to the scene.
“In 32 years, I’ve never asked the court to do that, but it is important that the court see the site for themselves,” Morino said.
