Driver gets $1,500 fine for killing flagger

Don Cain, a single father of two, was killed in July 2010 in Mission when he was struck by driver Thor Shay in a construction zone.

The family of Don Cain's family leaves the Abbotsford provincial courthouse on Monday morning. From left are sister Debbie Cain



A flagger who witnessed co-worker Don Cain get hit by a car in Mission in July 2010 and dragged to his death sobbed in court Monday as she told Judge Jill Rounthwaite how the incident had affected her.

Ingrid Ayana, in giving her victim impact statement during the sentencing hearing for driver Thor Shay of Mission, said she can’t sleep, has panic attacks, and can’t get images of the crash out of her mind.

She said she had switched places with Cain only six minutes before he was struck, and she blames herself for his death.

Crying could be hear throughout the packed courtroom during her statement. The judge wiped away her own tears before stepping down from her bench to hug and comfort Ayana.

Rounthwaite sentenced Shay, 59, to a $1,500 fine and a one-year driving ban for a charge of driving without due care and attention.

Shay was scheduled to begin trial on Monday in Abbotsford provincial court, but entered a surprise guilty plea.

The judge acknowledged to family members in attendance that the sentence was “laughable in comparison to the death of your son and brother” but she was restricted with what she could do under the law.

“There is nothing that the court can do that can possibly make it better or can in any way compensate, or be sufficient for, the death of a loved one,” Rounthwaite said.

According to the provincial Crown counsel spokesperson, the maximum amount applicable under the law for that offence is $2,000.

Cain, a 49-year-old Aldergrove resident, was working as a flagger on Lougheed Highway just west of Oliver Street on July 15, 2010 when he was struck by Shay. It was a clear day and roads were dry at the time.

Crown and defence lawyers said during their agreed statements of facts that Shay had been temporarily blinded by the sun and did not see Cain before he hit him. He was not speeding at the time, they said.

But Cain’s sister, Sherry Isenor, read from a WorkSafeBC report during her victim impact statement, indicating that an investigator from the agency had travelled the same route, at the same time of day in similar weather conditions within a week of the crash, and reported the sun was not an issue, Isenor said.

She also read a portion of the report that stated Shay’s windshield had been cracked and dirty at the time of the incident.

Isenor was joined in the courtroom by sister Debbie Cain, herself a flagger; mom Irene Cain; and several members of the B.C. Flagging Association.

Cain’s two sons, ages 19 and 20, were too traumatized to be there, Isenor said.

Association co-founder Tammy Sampson stood up in court to suggest the laws need to be changed for drivers who kill or injure flaggers.

“I think a $1,500 fine is too minimal. It sets a poor example for B.C. drivers who drive through our construction zones on a daily basis,” she told the judge.

Outside of court, the family said the laws need to be stronger.

“A $1,500 fine is ridiculous … He should at least be doing some jail time to prove the fact that you can’t be out there killing people. It’s just that simple,” Isenor said.