Manitoba justice officials are seeking a new trial against a senior who walked free after striking and killing Brittany Murray, 21, a highway flag worker while going nearly double the speed limit.
Michael Blostein, 70, was found not guilty of dangerous driving causing death earlier this year. Queen's Bench Justice Doug Abra ruled Blostein's conduct didn't represent a "marked departure" from the normal standard of care expected by motorists.
"I am satisfied he was driving with due care and attention," Abra said in his written decision.
The Crown filed notice of appeal today, claiming Abra erred in his judgment and it should be overturned. No date for a hearing has been set.
Blostein was charged following the Oct. 18, 2010, collision that killed Murray. She was employed as a flag woman for Mulder Construction, which was resurfacing a stretch of Highway 207 between the Trans-Canada Highway and Highway 15.
Blostein testified he believed the speed limit was still 90 km/h and did not reduce his speed to 60 as warned by signs because he didn't see any workers until he hit Murray, who he claims he didn't see standing in the roadway with the flag. That would still put his speed of 112 km/h at 22 km/h over the limit, rather than 52 km/h over.
However, Abra said it's clear Murray was flagging "some distance away" from any actual construction work in the area, perhaps as much as 200 metres. He said Blostein's high speed alone wasn’t enough to convict.
"I am not satisfied that driving at a speed of approximately 112 km/h with good visibility and a dry highway, when there were no workers in the immediate vicinity, was a marked departure from the manner in which a reasonably prudent person would have driven when the wording on the sign is that 60 km/h is the speed limit only when passing workers," said Abra.
"If it was intended that the speed limit of 60 km/h applied throughout the construction zone, whether workers were present or not, the sign should have said that."
Abra also took issue with the fact Murray was wearing iPhone earbuds at the time of the tragedy, which was a violation of company rules and may have led to a lack of attention on her part.
"This undoubtedly impacted her hearing, her concentration and her cognizance for oncoming traffic," he said.
Outside court, Murray's family said they were angered by the decision. They also questioned why Blostein never apologized for what happened.
At his trial, the Crown argued Blostein failed to take cautionary steps a reasonable person would have taken.
"This is a case of speed and inattentiveness," prosecutor Craig Savage said during his closing arguments. "If (Blostein) had been paying more attention to his speed and to his surroundings, he would have seen Miss Murray."
Savage said Blostein should have known to expect a flag person and other workers along the site and was driving too fast for those conditions. Savage said the report of an RCMP collision-reconstruction analyst found that, based on the skid marks, Blostein had been travelling at a minimum of 112 km/h just before he applied his brakes and then was doing 89 km/h when he struck and killed Murray.
Defence co-counsel Lisa LaBossiere said Blostein did nothing that day that should turn him into a criminal. Abra clearly agreed.