The driver found to have struck and severely injured then 11-year-old Leila Bui in a Saanich crosswalk in 2017 appealed her conviction at the Victoria Law Courts Wednesday.
Tenessa Nikirk was convicted of dangerous driving causing bodily harm in January of 2020 and, in December of that year, was sentenced to two years in federal jail to be followed by a three-year driving ban. However, she was released on bail on Jan. 5, 2021 after filing for her conviction to be appealed.
Leila Bui, now 15, remains in a non-responsive state.
In court Wednesday, Nikirk’s lawyer Donald McKay argued that the trial judge failed to weigh all the evidence equally when he made his decision.
McKay picked apart facts and testimonies from the trial, pointing out some witnesses said Bui may have run or moved quickly into the crosswalk at Ash Road and Torquay Drive instead of walking, and that she may have been hidden behind another vehicle and therefore, not visible to Nikirk before she entered the intersection.
Although it was proven that Nikirk was actively exchanging text messages leading up to the crash, McKay said, the court never specifically determined she didn’t do so through a hands-free manner. He also said it was never definitively proven whether Nikirk was speeding at the time of the crash, and that icy roads and the glare off them may have contributed to her hitting Bui.
The three justices overseeing the appeal hearing repeatedly pushed back against McKay’s arguments, pointing out that the trial judge’s decision had rested largely on the fact that a reasonable driver should have known to stop. Nikirk would have seen several signs indicating the crosswalk ahead and two vehicles stopped in front of it as if waiting for someone to cross, they said.
The justices and Crown prosecutor also reminded McKay that a witness testified seeing Nikirk “constantly looking up and down as if (she was) texting.” Another witness honked his horn at Nikirk when he realized she wasn’t going to stop.
Standing outside the courtroom Wednesday, Bui’s parents Tuan Bui and Kairry Nguyen said they’re exhausted by how long Nikirk has drawn this out and wish she would simply accept responsibility for her actions.
It’s been nearly four years to the day since their daughter was struck, and Bui and Nguyen said they still can’t get closure. “We’re still going through a lot of unnecessary pain and suffering,” Bui said.
They’ve been told if Nikirk’s conviction appeal is rejected, she plans to appeal her sentence next.
Nikirk remains on bail until a decision is made on the conviction appeal.
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