Anger and grief surged through a packed Abbotsford courtroom Monday morning as those present heard the sentence for a driver who hit and killed traffic flagger Don Cain along the Lougheed Highway in July 2010.
Family members and coworkers could not contain their tears and outrage after Thor Michael Shay pleaded guilty to driving without due care and attention and was sentenced to a $1,500 fine and a one-year driving prohibition.
Approximately 12 members of the B.C. Flagging Association showed up in yellow and orange safety gear at the Abbotsford provincial court in a show of solidarity for Cain, his mother and sisters, all of whom have worked or still work as flaggers.
Shay, 59, was scheduled to start his trial Monday morning, but instead entered a guilty plea in connection to the death of 49-year-old Cain, an Alder-grove father of two who was struck while working on Highway 7 in Mission.
The Crown counsel told the court that Shay had been driving east on Hwy. 7 at 8: 15 a.m. on July 15, 2010, with his visor down and his sunglasses on when he hit a sunny spot and was blinded.
Shay reportedly did not see Cain, who was struck and critically injured. He died in the ambulance on the way to a hospital.
A traffic analyst's report said that Shay's vehicle was going between 40 to 50 km/ h when it hit Cain.
Although the brakes on Shay's vehicle were not deemed faulty, the report noted the windshield was dirty and cracked. Crown said Shay striking Cain appeared to be the result of a momentary lapse of attention on the driver's part.
All three of Cain's sisters submitted victim impact statements to the court, which were all read out in court by younger sister Sherry Isenor. The sisters expressed the immense loss they had suffered in the death of a beloved brother, son and uncle. Debbie Cain, who still works as a flagger, said her spirit died when her brother was killed and his death left the family "bro-kenhearted, angry and lonely."
"Every day I step out onto the road it makes me feel sick to my stomach," Cain wrote.
Isenor talked about the grief Cain's death imposed on the family during annual Christmas gatherings, particularly for his two sons Jamie and Jordan, aged 19 and 20.
Ingrid Ayala, who was working with Cain when he was struck, told the court her life had been devastated by witnessing the accident.
Suffering from intense "survivor's guilt" and post traumatic stress disorder, Ayala said she can no longer work, she can't sleep and is on the verge of losing everything she'd worked for.
Ayala said she wants to die and often hopes she won't wake up.
"I don't think it's fair for me to be alive," she said, at one point getting so distraught that Judge Jill Roun-thwaite got down from the bench to embrace her for a long moment before a victims' service worker led Ayala away.
"They just don't make judges wise enough to deal with these types of problems," said Rounthwaite upon sentencing.
She conceded to the court that the sentence imposed will be "offensive" to the victim's family and friends.
The Crown weighed the evidence and determined a more serious charge of dangerous driving could not be supported, she noted.
A momentary lapse of attention is something that could happen to any driver, said Rounthwaite.
The judge went further than the fine suggested by the Crown and defence and added the one-year driving ban.
She also suggested that $1,400 of the fine imposed be allocated to victims' services to help others suffering the impacts of crime or crashes. Following sentencing, Isenor said Shay's guilty plea and driving prohibition were two out of three goals Cain's supporters had wanted to obtain in court.
"At least now [Shay] is account-ble for what he's done," she said.
However, her family and members of the B.C. Flaggers Association called on the province to create stronger laws to protect safety crews that work in roadside construction.
"The law should include jail time for killing someone," said Isenor.
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