Winnipeg Free Press - PRINT EDITION

Acquittal upheld in flagger's fatality

Right legal call made in case of speeding senior

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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."

james.turner@freepress.mb.ca

-- with files from Mike McIntyre

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

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