Winnipeg Free Press - PRINT EDITION

Acquittal upheld in flagger's fatality

Right legal call made in case of speeding senior

  • Print

The province's highest court has upheld the acquittal of a Manitoba senior who struck and killed a young highway flagger while speeding through a construction zone.

Manitoba's Court of Appeal unanimously ruled Tuesday the trial judge made the right legal call when he acquitted Mitchell Blostein, 71, of dangerous driving causing the death of Brittany Murray, 21.

The ruling means Crown prosecutors may have lost their final chance to hold anyone accountable for Murray's death on Oct. 18, 2010.

"Not all harm caused by driver error is a crime," Justice Chris Mainella wrote on behalf of himself, Justice Freda Steel and Justice Michel Monnin. "... The consequence of driver error, no matter how tragic, does not determine a driver's legal liability. This is so because driving is an inherently risky activity with significant social utility," stated Mainella.

"Coupled with these attributes is the recognition that even prudent drivers can occasionally be careless. The criminal law, therefore, requires proof of moral blameworthiness by the driver.

"It is not enough that a driver was careless or negligent under the civil law."

Blostein was arrested after the collision that claimed Murray's life. She was employed as a flag woman for Mulder Construction, which was resurfacing a stretch of Provincial Road 207.

Blostein testified at his 2013 trial 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. He testified he didn't see her standing in the roadway with a flag until it was too late. That still put his speed of 112 km/h at 22 km/h over the limit, rather than 52 km/h over.

The trial judge, Court of Queen's Bench Justice Douglas Abra, found it was clear Murray was flagging a distance away from any actual construction work in the area, somewhere in the range of 100 to 200 metres.

"The judge found there were no concerns about the manner of driving other than excessive speed," Mainella wrote. "The judge was not satisfied that there was sufficient evidence that the manner of driving was a marked departure from the standard of care expected of a reasonable person in the circumstances."

The Crown quickly appealed after losing the trial. It argued, in part, Abra didn't properly consider a reasonable driver seeing signs warning of potential hazards in a construction zone would slow to a safe speed and not wait until it was too late.

Mainella said that argument was out of bounds as it didn't raise a question of law for the top court to consider. To find otherwise, he said, would intrude on Abra's role as trial judge and appraiser of the evidence, Mainella said.

"The judge applied the correct legal test for dangerous driving to the evidence," wrote Mainella. "He made findings of fact that were open to him on the evidence."

-- with files from Mike McIntyre

Republished from the Winnipeg Free Press print edition April 30, 2014 A5

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes


  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.


Make text: Larger | Smaller


Winnipeg police comment on two officers that resuscitated baby

View more like this

Photo Store Gallery

  • A golfer looks for his ball in a water trap at John Blumberg Golf Course Friday afternoon as geese and goslings run for safety- See Joe Bryksa’s 30 day goose challenge- Day 24– June 15, 2012   (JOE BRYKSA / WINNIPEG FREE PRESS)
  • MIKE.DEAL@FREEPRESS.MB.CA 100615 - Tuesday, June 15th, 2010 The Mane Attraction - Lions are back at the Assiniboine Park Zoo. Xerxes a 3-year-old male African Lion rests in the shade of a tree in his new enclosure at the old Giant Panda building.  MIKE DEAL / WINNIPEG FREE PRESS

View More Gallery Photos


What do you think the punishment should be for Dustin Byfuglien's cross-check on New York Rangers forward J. T. Miller?

View Results

View Related Story

Ads by Google