October 17, 2012

Anger erupts after fine for flagger death

RICHARD GILBERT

staff writer

B.C. Flaggers are disappointed and angry a driver did not receive a stiffer penalty, after pleading guilty to hitting and killing a traffic control person (TCP) about two years ago in a highway construction zone in the District of Mission.

“The maximum penalty under the Motor Vehicle Act for driving with undue care and attention is $2,000,” said Katherine Keras, owner of Pro-Safe Traffic Service.

“He received a $1,500 penalty, which is not enough for taking a life. We don’t have stiff penalties for thoughtless people, who don’t pay attention and end up killing a traffic control person.”

Donald Cain, 49, was working as a TCP for Pro-Safe Traffic Service, when he was hit by an east bound vehicle at about 8:15 a.m. on July 15, 2010 at a construction site near Oliver Street and the Lougheed Highway in Mission.

Thor Shay, 59, pleaded guilty to driving without due care and attention in court in Abbotsford on Oct. 15 and received a $1,500 fine for the offense.

Keras said the judge stated that he didn’t give Shay the maximum fine because he was going at about 40-50 kilometres per hour at the time of the incident.

She also reported that the judge considered the fact Shay had a relatively clean driving record.

Even though Keras is upset about this sentence, she thinks the judge has still set a precedent in this case, as Shay had his driver’s license suspended for one year.

However, this fact is of little consolation to members of the traffic control person community in B.C., who are outraged that Shay was not given jail time.

“I don’t think the Crown prosecution took a proper look at all the evidence,” said Diane Herback, co-founder and director of the B.C. Flagging Association.

“And, if they did there was some evidence that was not brought into play. I think the charge should have been criminal negligence causing death. With the evidence that was available, they could have gone for that.”

TCP Ingrid Ayala, who was at the scene of the incident, said Shay was out of control, veered over the centre line and then shot back to the right.

As a result, Shay crossed the white painted line on the shoulder and hit Cain, who was dragged 20-30 feet before Shay applied the brakes.

Keras pointed out that the skid marks alone show the driver was going at least 80 kilometres miles an hour and this was after Shay dragged Cain for some distance.

Another eyewitness, driving behind Shay, also said he was speeding and was out of control.

Police said speed was not believed to be a factor, but the driver may have been temporarily impaired by bright sunlight in his eyes.

Keras and Herback disagreed with the police speculation about the sun.

They claim it was well up in the sky and should have been out of Shay’s eyes at that time of day.

However, the vehicle Shay was driving was not in good shape and had a dirty, old and yellow windscreen.

Despite this testimony, the RCMP initially decided not to lay any charges against Shay.

However, the RCMP charged Shay with driving without due care and attention about six months later.

In addition, both Keras and Herback, who attended the court proceedings, said the judge was critical of the Crown’s handling of the case.

“The Crown prosecution had not reviewed any previous cases involving the death of a TCP,” said Keras.

“The judge was surprised at the Crown prosecutors lack of preparation, because they did not ask for Shay’s license to be removed.”

The testimony of Ayala was emotional and had many people who attended the court proceedings in tears, including the judge, claimed both Keras and Herback.

Ayala was nearby when Cain was hit and called 911 for assistance. She witnessed the whole incident and was the one who stopped Shay in his car.

According to Keras, Ayala is suffering from post-traumatic stress syndrome and has not worked since the incident happened.

“We are telling her that it was not her fault and trying to help her get on with her life,” she said. “But we are having a hard time pulling her out of it.”

Cain’s mother Irene and his two sisters Sherry and Debbie also attended the court proceedings and had a chance to talk about the impact of the incident on their family.

“He (Shay) didn’t speak or give any sort of statement or apology. He showed no remorse,” said Keras.

“This is the main thing that the family was really upset about. They were disappointed, because they expected an apology and didn’t get it.”

Cain, who was a father of two, also supported his mother.

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