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

Citation: R. v. Blostein (M.), 2014 MBCA 39 Date: 20140429 Docket: AR 13-30-08006 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella BETWEEN : ) A. Y. Kotler HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) H. Weinstein, Q.C. and ) L. D. Labossière - and - ) for the Respondent ) ) Appeal heard: MITCHELL BLOSTEIN ) March 24, 2014 ) (Accused) Respondent ) Judgment delivered: ) April 29, 2014 MAINELLA J.A.

Introduction and Issue [ 1 ] The Crown appeals the respondent’s acquittal on a charge of dangerous operation of a motor vehicle causing death contrary to s. 249(4) of the Criminal Code (the Code ). [ 2 ] The judge acquitted the respondent because he was not satisfied that the Crown had proven that a careless act of speeding in a highway construction zone was sufficiently blameworthy to meet the fault requirement that distinguishes the criminal law from civil or regulatory liability. [ 3 ] The Crown’s right of appeal is limited to a question of law alone ( s. 676(1) (

a) of the Code ). The issue before this court is whether the judge correctly applied the legal test for dangerous driving to the evidence. The role of this court is not to substitute its assessment of the sufficiency of the evidence for that of the judge. For the following reasons, I am not satisfied that the judge made a legal error requiring correction. Background [ 4 ] Just before 4:00 p.m. on October 18, 2010, the respondent, an experienced driver, was travelling north through a construction zone on Provincial Road 207, just east of Winnipeg. Driving conditions were good.

The sole issue with the respondent’s driving was his rate of speed. He was driving 112 kilometres per hour when the speed limit was normally 90 kilometres per hour. [ 5 ] The construction zone had proper signage alerting drivers to construction workers, including flag persons.

Approximately half a kilometre south of the location of Brittany Murray, the flag person for the construction crew, was a temporary speed limit sign, it read: “Maximum 60 When Passing Workers.” [ 6 ] The judge accepted the respondent’s testimony that, while he expected workers would be in the construction zone, he did not slow down after seeing the temporary speed limit sign because he did not see any workers.

The judge concluded that the sign meant “the accused was not to exceed 60 km/h only if there were workers in the immediate vicinity of the location where he was driving” (at para. 90). [ 7 ] Ms Murray was somewhere between 100 and 200 metres south of the construction roadwork and the other workers. How and why she was on the highway instead of on the shoulder is unknown.

Despite her fluorescent clothing, the respondent did not see Ms Murray until it was too late; his vehicle struck Ms Murray causing her death. [ 8 ] The judge found there were no concerns about the manner of driving other than excessive speed: driving conditions

were good; the respondent was driving with due care and attention; no workers were visible; and a reasonable driver would not expect aflag person to be on the highway as opposed to on the shoulder. The judge was not satisfied that there was sufficient evidence that themanner of driving was a marked departure from the standard of care expected of a reasonable person in the circumstances (R. v. Beatty,2008 SCC 5, [2008] 1 S.C.R. 49, and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60).

Discussion Position of the Parties [9] The Crown argues that the judge made two legal errors in applying the legal test for dangerous driving to the evidence. [10] The Crown says the judge failed to consider the actus reus of the offence; namely, driving which is objectivelydangerous to the public in all of the circumstances (Roy at para. 34). The Crown says speeding in a construction zone is risky becausethere are many perils; therefore, it is important for drivers to travel at a safe speed.

The respondent says that it is implicit from thejudge’s reasons that he considered the actus reus of the offence; however, the respondent argues that this aspect of the Crown’s appeal is“immaterial to the final result,” because the judge’s finding of insufficient evidence of mens rea is determinative of the appeal. [11] The Crown argues that the other legal error in approach by the judge was how he considered the question of the mensrea of dangerous driving.

The Crown says the correct approach to be taken was stated by Cromwell J. in Roy (at para. 36): The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from thestandard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful toapproach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would haveforeseen the risk and taken steps to avoid it if possible.

If so, the second question is whether the accused’s failure to foresee the risk andtake steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’scircumstances. [12] The Crown says in considering the modified objective test to determine the mens rea of the offence, the judge ignoredthe context of a construction zone in the middle of a weekday.

It submits that a reasonably prudent driver seeing signage warning ofmultiple hazards in a construction zone, such as the presence of flaggers, would foresee the risk of an unexpected collision and, to avoidsuch risk, would slow down to a safe speed before seeing a worker and not wait until it was potentially too late. The Crown says by notobserving that standard of care, the respondent’s driving was a marked departure in the circumstances. [13] The respondent argues that the judge did not neglect the relevant context.

He says the judge correctly identified that theonly indicia of dangerous driving was excessive speed; the manner of driving otherwise met the standard of care expected of a reasonableperson in the circumstances. The respondent says the question of the degree of speeding cannot easily be divorced from the highwaysignage as the Crown suggests. The respondent submits that the sufficiency of the evidence, whether speeding 22 kilometres per hourover the speed limit was a marked departure, is not a question of law alone. Analysis and Decision [14] Not all harm caused by driver error is a crime.

There is a legal continuum: civil responsibility, careless driving underThe Highway Traffic Act, C.C.S.M., c. H60 (the HTA) and, ultimately, the criminal offences of dangerous driving and criminalnegligence with their differing fault requirements commensurate with their respective seriousness (R. v. Hundal, (SCC),[1993] 1 S.C.R. 867 at 885, and Beatty at para. 47). [15] The consequence of driver error, no matter how tragic, does not determine a driver’s legal liability (Roy at para. 2). Thisis so because driving is an inherently risky activity with significant social utility.

Coupled with these attributes is the recognition thateven prudent drivers can occasionally be careless. The criminal law, therefore, requires proof of moral blameworthiness by the driver(Beatty at para. 34). It is not enough that a driver was careless or negligent under the civil law. The criminal law requires proof that themanner of driving was objectively dangerous, taking into account the factors mentioned in s. 249(1)(

a) of the Code and also that theconduct is a marked departure from what is expected of a reasonable person in the circumstances (Beatty and Roy). An even higherstandard of fault is required for a charge of criminal negligence relating to driving under ss. 220 or 221 of the Code (R. v. J.F., 2008 SCC60 at paras. 9-17, [2008] 3 S.C.R. 215, and R. v. Tayfel (M.), 2009 MBCA 124 at para. 57, 245 Man.R. (2d) 300, leave to appeal toS.C.C. denied, [2010] S.C.C.A. No. 241 (QL)). [16] The Crown’s argument that, in reaching his verdict, the judge failed to consider the issue of actus reus is not persuasive.

A judge’s reasons must be viewed in the entire context of the trial, including the submissions of counsel. Also, a judge is presumed toknow the law and is not required to pronounce on every dispute in his or her reasons (R. v. R.E.M., 2008 SCC 51 at paras. 37, 55-56,[2008] 3 S.C.R. 3). [17] The record confirms the judge was assisted by cogent submissions by counsel as to the law regarding dangerousdriving. The judge referred to the correct standard for the actus reus of dangerous driving in his reasons (at paras. 72-73).

His reasonsalso demonstrate there was a “meaningful inquiry into the manner of driving” (Beatty at para. 46).

For example, he accepted therespondent’s evidence that he was driving with “due care and attention” (at para. 79), however, he rejected the respondent’s evidencethat he was not speeding at all in the construction zone (at para. 80). [18] The Crown’s second argument that in assessing proof of mens rea the judge should have placed more weight on theforeseeable risk of collision with a worker in a construction zone, even if a driver does not see any workers, does not, in my view, raise aquestion of law alone.

[19] Driving is a regulated activity; drivers have a responsibility to observe the standards of care required of all licenceddrivers (Hundal at pp. 884, 888). While not determinative, provincial traffic laws help inform what is recognized to be safe and unsafedriving in a given situation (Galaske v.

O’Donnell, (SCC), [1994] 1 S.C.R. 670 at 687-88). [20] The rules regarding speed limits of drivers in construction zones are set out in ss. 77(7.1) and 95(1.2) of the HTA asfollows: Signs indicating workers or equipment are present 77(7.1) A traffic control device erected under clause (7)(a), or another traffic control device the traffic authority erects adjacent to it orbefore any part of the construction zone where workers may be present or using equipment, may indicate (

a) that workers are present or using equipment in the construction zone; and (

b) that, while workers are present or using equipment in the construction zone, travel on the highway is prohibited, or traffic mustproceed on the highway only in the manner or at the permissible speed indicated by the traffic control device. Speed when workers or equipment present 95(1.2) Despite subsection (1), when workers are present or using equipment in a construction zone, or in part of a construction zone,where a traffic control device warning of their presence or the equipment’s use has been erected in accordance with subsection 77(7.1),no person shall drive a vehicle in the construction zone, or in the particular part of it, at a rate of speed greater than the lesser of (

a) the maximum speed otherwise permissible under subsection (1); and (

b) the maximum permissible speed indicated by any traffic control device erected in accordance with subsection 77(7.1). [21] Sections 77(7.1) and 95(1.2) of the HTA confirm that drivers are not automatically required to slow down in aconstruction zone as the Crown suggests is the prudent course; rather, drivers are required to slow down, as required by signage, only ifworkers are present or using equipment. I see no error in the judge measuring the degree of the respondent’s departure from the norm byreference to the relevant signage.

The weight to assign to such a relevant factor is a matter within the sole purview of a trial judge. [22] The judge applied the correct legal test for dangerous driving to the evidence. He made findings of fact that were opento him on the evidence. A judge’s assessment of the sufficiency of the evidence as to whether the driving was, in the particular context,a marked departure from the standard of care expected from a reasonable person is not a question of law for the purposes of s. 676(1)(a)of the Code (R. v. Artimowich (R.G.), 2013 MBCA 62 at para. 31, 294 Man.R. (2d) 136, and R. v.

Robichaud (N.), 2012 NBCA 87 atpara. 15, 395 N.B.R. (2d) 337). [23] As a result, I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.