R. v. Blostein (M.), 2014 MBCA 39

• Judge: Monnin, Steel and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 24, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBCA 39;(2014), 306 Man.R.(2d) 15 (CA)

R. v. Blostein (M.) (2014), 306 Man.R.(2d) 15 (CA);

      604 W.A.C. 15

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MY.002

Her Majesty The Queen (appellant) v. Mitchell Blostein (accused/respondent)

(AR 13-30-08006; 2014 MBCA 39)

Indexed As: R. v. Blostein (M.)

Manitoba Court of Appeal

Monnin, Steel and Mainella, JJ.A.

April 29, 2014.

Summary:

The accused struck and killed a flagger who was working on a highway that was being repaved. He was charged with dangerous driving causing death (s. 249(4) of the Criminal Code).

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 292 Man.R.(2d) 308, acquitted the accused. The Crown appealed.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 1391.2

Offences against person and reputation - Motor vehicles - Dangerous driving - Causing death or bodily harm - The accused was travelling at 112 kph in a highway construction zone (posted 60 kph) when he struck and killed a flagger - The flagger had been standing 100 to 200 metres away from the actual construction work and was in the middle of a traffic lane - Abra, J., acquitted the accused on a charge of dangerous driving causing death (s. 249(4) of the Criminal Code), finding that the accused's manner of driving was not a marked departure from the standard of care expected of a reasonable person in the circumstances - The Manitoba Court of Appeal dismissed the Crown's appeal - Not all harm caused by driver error was a crime - The consequence of driver error, no matter how tragic, did not determine a driver's legal liability - The criminal law required proof of moral blameworthiness, that the manner of driving was objectively dangerous and that the conduct was marked departure from what was expected of a reasonable person in the circumstances - An even higher standard of fault was required for a charge of criminal negligence relating to driving under s. 220 or 221 - See paragraphs 14 and 15.

Criminal Law - Topic 1391.2

Offences against person and reputation - Motor vehicles - Dangerous driving - Causing death or bodily harm - The accused was travelling at 112 kph in a highway construction zone (posted 60 kph) when he struck and killed a flagger - The flagger had been standing 100 to 200 metres away from the actual construction work and was in the middle of a traffic lane - Abra, J., acquitted the accused on a charge of dangerous driving causing death (s. 249(4) of the Criminal Code), finding that the accused's manner of driving was not a marked departure from the standard of care expected of a reasonable person in the circumstances - The Manitoba Court of Appeal dismissed the Crown's appeal - The court rejected the Crown's argument that Abra, J., failed to consider the actus reas of the offence: driving that was objectively dangerous to the public in all of the circumstances - Abra, J., referred to the correct standard for the actus reas of dangerous driving in his reasons - See paragraphs 16 and 17.

Criminal Law - Topic 1391.2

Offences against person and reputation - Motor vehicles - Dangerous driving - Causing death or bodily harm - The accused was travelling at 112 kph in a highway construction zone (posted 60 kph) when he struck and killed a flagger - The flagger had been standing 100 to 200 metres away from the actual construction work and was in the middle of a traffic lane - Abra, J., acquitted the accused on a charge of dangerous driving causing death (s. 249(4) of the Criminal Code), finding that driving at a speed of 112 kph with good visibility and a dry highway where there were no workers in the immediate vicinity was not a marked departure from the manner in which a reasonably prudent person would have driven when the wording on the sign was that 60 kph was the speed limit only when passing workers - The Crown appealed under s. 676(1)(a) of the Code - The Manitoba Court of Appeal dismissed the appeal - The court rejected the Crown's argument that, in assessing proof of mens rea, Abra, J., should have placed more weight on the foreseeable risk of collision with a worker in a construction zone - This argument did not raise a question of law alone as required under s. 676(1)(a) - There was no error in measuring the degree of the accused's departure from the norm by reference to relevant signage - The weight to assign to such a relevant factor was a matter within the sole purview of the trial judge - See paragraphs 18 to 23.

Criminal Law - Topic 1395

Offences against person and reputation - Motor vehicles - Dangerous driving - Evidence and proof - [See all Criminal Law - Topic 1391.2 ].

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - [See third Criminal Law - Topic 1391.2 ].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See third Criminal Law - Topic 1391.2 ].

Motor Vehicles - Topic 2616

Regulation of vehicles and traffic - Rate of speed - General - Construction zone - [See third Criminal Law - Topic 1391.2 ].

Cases Noticed:

R. v. Beatty (J.R.), [2008] 1 S.C.R. 49; 371 N.R. 119; 251 B.C.A.C. 7; 420 W.A.C. 7; 2008 SCC 5, refd to. [para. 8].

R. v. Roy (R.L.), [2012] 2 S.C.R. 60; 430 N.R. 201; 321 B.C.A.C. 112; 547 W.A.C. 112; 2012 SCC 26, refd to. [para. 8].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 14].

R. v. J.F., [2008] 3 S.C.R. 215; 380 N.R. 325; 242 O.A.C. 338; 2008 SCC 60, refd to. [para. 15].

R. v. Tayfel (M.) (2009), 245 Man.R.(2d) 300; 466 W.A.C. 300; 2009 MBCA 124, leave to appeal denied (2010), 416 N.R. 386 (S.C.C.), refd to. [para. 15].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 16].

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 19].

R. v. Artimowich (R.G.) (2013), 294 Man.R.(2d) 136; 581 W.A.C. 136; 2013 MBCA 62, refd to. [para. 22].

R. v. Robichaud (N.) (2012), 395 N.B.R.(2d) 337; 1023 A.P.R. 337; 2012 NBCA 87, refd to. [para. 22].

Counsel:

A.Y. Kotler, for the appellant;

H. Weinstein, Q.C., and L.D. Labossière, for the respondent.

This appeal was heard on March 24, 2014, by Monnin, Steel and Mainella, JJ.A., of the Manitoba Court of Appeal. On April 29, 2014, Mainella, J.A., delivered the following judgment for the court.