A man convicted of fatally running down one pedestrian and injuring another who were walking alongside Benvoulin Road in 2007, has been acquitted on appeal.
Damian De Ciantis, 30, had appealed his 2009 conviction of dangerous driving causing death and dangerous driving causing bodily harm for a fatal incident involving three pedestrians, around 7:30 p.m., Feb. 21, 2007.
That night Kim Black, 50, was killed after DeCiantis veered onto the shoulder and hit him. Black was thrown 75 metres, and Russell Leon was knocked out of his medical scooter, leaving him with a broken shoulder, leg and pelvis. A third pedestrian, Keri Chandler, was uninjured.
Three judges of the B.C. Court of Appeal, in a ruling released Friday, acquitted De Ciantis, finding the trial judge’s verdict was unreasonable and not supported by the evidence.
“This was a tragic accident, but the driving in question was not such that it should attract criminal liability,” reads the decision from Justice Elizabeth Bennet.
“I would allow the appeal and enter an acquittal on each count. Mr. De Ciantis’ driving was not prudent and ill-judged.
“My conclusion should not be taken as condoning his conduct, but is merely a finding that it did not meet the threshold for a criminal conviction.”
For more on this story, check out more details on the appeal ruling at www.kelownacapnews.com.
De Ciantis was driving his Toyota truck at a minimum of 81 km/hr at the time of the accident and changed lanes five times beforehand, which the initial trial judge Anne Wallace deemed unreasonable.
But Justice Bennet concluded in the appeal process that many people travel in excess of the speed limit on Benvoulin and the speed limit moved from 60 km/hr to 70 km/hr in intervening years.
De Ciantis who had been deemed reckless by the trial judge for repeatedly changing lanes before the crash, explained at least one of his lane changes was precipitated by another driver’s actions.
Furthermore, witness testimony showed that the three pedestrians were largely obscured from view, and DeCiantis didn’t have to veer greatly off track to make the fatal contact.
The trio were likely travelling three-abreast on the road very close to the part of the highway used by cars that is marked by a fog line.
“Witnesses saw them travelling in the vehicle lane itself shortly before the accident, and at least one driver had to swerve to avoid hitting them,” Bennett noted.
Keri Chandler, who was walking on the side of Benvoulin Road, beside Leon and Black, even testified she had to “shoo” Black off the road, before the fatal collision.
“In my opinion, when the legal tests are properly applied and the evidence is re-weighed in the limited fashion permitted this Court, there is insufficient evidence to support the convictions and the verdict reached was, therefore, unreasonable,” said Bennet.
DeCiantis had been sentenced to nine-months in jail for the crash, although his potential sentences was upwards of 10 years.