A Chilliwack man was found guilty Tuesday of hit-and-run and dangerous driving for a 2015 incident that seriously injured a young woman and ended with a crash at Five Corners downtown.
And while the two convictions come with a maximum sentence of two years and five years respectively, Cody Anthony James Bianco was found not guilty of impaired driving causing bodily harm, causing an accident resulting in bodily harm, and dangerous driving causing bodily harm.
Some elements of the case against the 27-year-old involved overwhelming circumstantial evidence and Bianco offered up highly speculative suggestions in attempt to raise reasonable doubt.
“The evidence has enveloped Mr. Bianco and it cries out for an explanation to be given,” Judge Robert Gunnell said in convicting him of two out of five charges.
The incident dates back to Sept. 27, 2015 when Kelsey Archer and her husband James Archer were at a party on the Skwah First Nation reserve at the end of Wellington Road. Kelsey Archer testified that Bianco was also there, he made unwanted advances towards her, and a fight ensued between Bianco and Mr. Archer.
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The Archers left the party and proceeded to walk down Wellington Avenue towards the downtown core. While walking down the road, Kelsey was struck from behind by a car James described as a silver Honda Civic.
Moments later, at closing time at the Triple Play Pub at Five Corners, three members of the band Rockabilly Jay & The Cadillac Bones were loading up gear out front.
Band members heard a loud bang and saw a vehicle speeding along Wellington towards them, going the wrong way on the one-way street. One band member pushed another out of the way and the silver Honda Civic — which they described as travelling between 80 and 100 km/h — crashed into the pedestrian island across the street.
Also witnessing the crash was RCMP officer Sgt. Mike Sargent who happened to be stopped on Young Road at a red light. Bianco got out of the car and urinated in front of the officer who then arrested him.
There were investigative problems in the case, which led to no proper blood alcohol test result being entered into evidence. Some witnesses said Bianco was “obviously intoxicated.” He had a beer can on the floor of his car, bloodshot eyes, was seen stumbling at Five Corners and later at the detachment, and a smell of alcohol was noted.
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Still, that was not enough for Gunnell to convict on the impaired charge.
“At first blush the evidence seems strong,” Gunnell concluded. “This is all the smell can tell us: there was consumption.”
The judge acquitted Bianco of this charge, then moved on to the dangerous driving causing bodily harm. Expert testimony found that the “fender vault” that launched Kelsey Archer on to the hood of the car where she smashed her head on the windshield required a speed of at least 40 km/h and was likely in the range of 40 to 60 km/h.
Crown counsel Henry Waldock had argued that either Bianco was either driving dangerously or he was too drunk to know otherwise.
Gunnell disagreed, finding instead that driving 40 to 60 km/h on a stretch of Wellington not well lit as two intoxicated individuals walked on the road where there is a sidewalk was at best “carelessness.”
“This driving, when viewed objectively, was not dangerous,” Gunnell concluded, finding Bianco not guilty.
As to the question of whether the car that hit Kelsey was the same car that crashed at Five Corners, Gunnell rejected Bianco’s lawyer Kyla Lee’s argument that because there were no witnesses to who was driving at the first collision, and no continuity, it was not provable the same small, silver car that crashed at Five Corners was the same small, silver car that hit Archer just over a kilometre to the west moments before.
“For it to be any other vehicle is, in my mind, not possible,” he said.
Gunnell wondered why no DNA test was done to absolutely prove the hair found embedded in Bianco’s windshield was Kelsey’s, but still found it too overwhelmingly convincing evidence to reject.
So on the hit-and-run charge (failure to stop at accident scene involving bodily harm) he was found guilty. The criminal code requires a driver to stop, give a name and contact information, and seek help after a collision, and Gunnell ruled that even if it wasn’t dangerous driving that caused the collision, Bianco had to know he had hit Miss Archer.
“He did none of those things,” Gunnell ruled.
And while Gunnell found Bianco not guilty of driving dangerously in hitting Miss Archer, he did flee the scene and his subsequent driving the wrong way along Wellington hitting likely faster than 80 km/h, crashing into curbs and nearly hitting people, was clearly dangerous.
“The manner of operation of this vehicle was horrendous,” he said, agreeing with Crown’s words that it was “outrageously bad.”
While Gunnell said the Crown could not prove the circumstantial case for all the charges, the fact that Bianco offered up no alternative explanation, did not take the stand, indeed offered no defence evidence at all, made it impossible for Gunnell to ignore the inferences made by the Crown.
Gunnell ruled that while Bianco was by no means compelled to testify, his lack of doing so left the judge with no legitimate alternative explanations for at least some of what happened.
“The Crown’s case cries out for an explanation,” he said.
The hit-and-run conviction comes with a jail term up to two years, and dangerous operation of a motor vehicle is up to five years.
Defence asked that a pre-sentence report be prepared, and Bianco will likely be sentenced in the new year.
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