An Ontario truck driver has been found not guilty of dangerous driving causing death for a December 2007 collision that killed Fraser-Fort George Regional District director Shelley Zenzen.
B.C. Supreme Court Justice Brian Joyce found that although David Russell Nielsen, 47, was driving too fast for conditions, his actions did not meet the standard for a conviction on the charge.
"He made a mistake that had the worst possible consequences, but I am not satisfied that his conduct justifies a conviction for the serious criminal offence of dangerous driving causing death," Joyce said in a reasons for judgment.
Joyce also found Nielsen not guilty of assault causing bodily harm for an altercation with a Prince George man, Robin Ebert, shortly after the collision. Ebert and his wife had been following Zenzen when the incident occurred.
On Dec. 18, 2007, Zenzen died at the scene, an S-curve on the Trans-Canada Highway about 10 kilometres north of Boston Bar when the two trailers Nielsen had been pulling swung into the northbound lanes and struck the sport utility vehicle she was driving.
The trailers, adding up to 60 feet in length, were being used to haul railway ties from Edmonton to Richmond. Nielsen, who had 20 years experience as a truck driver, had driven to Barriere the day before and the next day stopped in Kamloops where he chose to take the Fraser Canyon route rather than the Coquihalla Highway.
As he headed to Cache Creek, it started to snow and he experienced some ice fog, according to facts presented to the court, and by the time Nielsen had reached the S-curve, snow was sticking to the road surface.
As he went through the curves, the trailers swung out into the northbound lane and, according to an expert witness, an engineer with experience reconstructing motor vehicle incidents, the rear trailer struck a snow bank dislodging the load.
Because of conditions, Joyce found that investigators were unable to get an accurate estimate of Nielsen's speed and accepted Nielsen's testimony that he was travelling at about 75 km/h when the collision occurred. Joyce also noted that the posted speed limit was 90 km/h and that while there was a sign warning of an S-curve ahead there was no sign with a lower speed limit.
Joyce found that given the length of the B-train, the size of the load and the road conditions, Nielsen's speed was "greater than that at which it was possible to maintain control of the vehicle" and that it "constitutes driving in a manner that is dangerous to the public."
However, Joyce found Nielsen not guilty of the charge because he was not driving at a "marked departure from the standard of care that a reasonable person would observe in the accused's circumstances," noting Nielsen had already negotiated a number of tighter corners after Cache Creek.
During the trial, held in September, another truck driver testified Nielsen had passed him on a double solid line, but Joyce noted the snow made the lines difficult to see and that Nielsen passed the driver while going uphill on a three-lane section of the highway with no oncoming traffic and where it was likely there was a passing lane.
A conviction for dangerous driving causing death can lead to a term of up to 14 years in prison.
On the charge of assault causing bodily harm, Joyce accepted Nielsen's claim of self defence in punching Ebert in the face during a struggle following a heated argument.
Joyce found Nielsen was the victim of an unprovoked assault when Ebert struck or pushed Nielsen while placing his foot behind Nielsen's foot sending him to the ground and then tried to hit him.
Nielsen replied with punches of his own before another man pushed him away from Ebert, who had steered his truck into the ditch to avoid the trailers although some of the ties struck the vehicle.
Joyce found Nielsen used no more force than necessary to repel the assault.
Evidence Ebert had given during the preliminary inquiry was used during the trial because he had passed away during the period in between the two. Joyce found Ebert's evidence regarding Nielsen's driving to be unreliable in many respects, likely due to the animosity towards Nielsen.
Zenzen was 53 years old at the time of her death and had represented electoral area F (Willow River-Upper Fraser) since 2002.
Here's a link to the full ruling:http://www.courts.gov.bc.ca/jdb-txt/SC/12/15/2012BCSC1581.htm
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