Brian Tobin and wife Jodean leave court in Ottawa with son Jack, who is charged with impaired driving causing death | Pawel Dwulit/CP
Adam Rabolt and Darren McMullin were both 25-year-old labourers from small-town Shelburne, Ont., and had been best friends since the third grade. On the night of June 15, 2007, Rabolt, who had had a few beers that day while playing in a local golf tournament, was roused from a nap by McMullin, who had also been drinking and who persuaded his buddy to go out on the town. The two friends climbed into Rabolt’s Ford Focus and headed for a strip club about an hour and a half away in Vaughan, just north of Toronto. Some hours later, while driving home on Highway 400, Rabolt’s Ford left the road, travelled across a grassy shoulder and slammed into a grove of trees. Rabolt walked away; McMullin, who was not wearing a seat belt, died at the scene.
When police administered a breath test, Rabolt blew over twice the legal limit. He was later convicted of impaired operation of a motor vehicle causing death and operation of a motor vehicle with a blood-alcohol concentration exceeding 80 mg. In considering an appropriate sentence, Justice Cary Boswell faced a myriad of options. There is no mandatory punishment for fatal drunk driving cases, and sentences have ranged anywhere from a few months of house arrest to life behind bars. The Crown sought at least three years in prison, while Rabolt’s lawyer asked for a conditional sentence: two years less a day, to be served in the community.
Yet there was a complicating factor. Instead of siding with prosecutors, McMullin’s mother and two sisters asked for leniency. Rabolt “is like a son and brother to them,” Boswell later wrote in his reasons for sentencing. “They want and need his presence with them at this difficult time in their lives. They say they cannot suffer through the loss of another family member, should he be sentenced to a period of incarceration. They have forgiven him.”
So close was Rabolt to the McMullin family that he grew up calling McMullin’s mother Brenda “mum.” When Brenda attempted to post bail for Rabolt, the Crown prosecutor moved to prevent it—something she resents to this day. “Because I wasn’t willing to crucify this kid, he didn’t want to give me the time of day,” she says of the Crown. “If I would have wanted to put Adam in a noose, he would have been my best friend.” When Rabolt did make bail, he walked into a crowd filled with members of his family and McMullin’s. Rabolt went directly to Brenda and fell into her arms. “When it all happened I was sitting in the police station and I just wanted to die right there,” Rabolt tells Maclean’s. “I didn’t even want to exist anymore. If it wasn’t for Darren’s family, I’d still feel that way. I’d probably just be living life as a ghost.”
Despite the McMullins’s pleas, the judge handed Rabolt 30 months in prison.
The case is eerily similar to one now making headlines—that of John Joseph “Jack” Tobin, the 24-year-old son of former Liberal cabinet minister and Newfoundland premier Brian Tobin, who stands charged in connection with the impaired driving death of one of his closest friends, Alex Zolpis, also 24. High school classmates and one-time roommates during their studies at Dalhousie University, Zolpis and Tobin were living in Calgary and Toronto respectively but had returned to Ottawa for the holidays. Though the details remain murky, Zolpis and Tobin had apparently been drinking in Ottawa’s ByWard Market when they emerged from a bar and walked across the street to a multi-level parkade and Tobin’s rented Dodge Ram pickup truck.
According to early reports, police said Tobin had been stunt driving on the fifth, uncovered floor of the parkade when Zolpis, who was a passenger, somehow became pinned under the truck just before 3 a.m. on Christmas Eve (Tobin’s lawyer disputes this account). One resident of a condo overlooking a portion of the parkade told Maclean’s that he heard moaning and slurred screaming.
Tobin is now charged with several offences, including impaired driving causing death—the death of the same friend who, three years earlier, supported Tobin through a near-fatal knife wound he received while working as a security guard at a Halifax dance. Testifying at the sentencing hearing of the teen who’d pleaded guilty to attempting to murder him, Tobin spoke of how the ordeal, which took a third of his liver, had left him with “a greater appreciation for life and how quickly it can be taken from you.”
Now the Zolpis family must struggle with two painful realities: the death of a son and the prospect that he was killed by one of his closest friends. A life lost and a life destroyed. Sadly, in the annals of Canadian case law, Tobin and Rabolt are just two of many. And while the Zolpis family has not commented publicly on their tragedy beyond describing the death as the result of an “accident” in an obituary, they would not be alone if they chose to support their dead son’s friend through the criminal justice system. Many grieving relatives—people who have experienced what the Zolpis family is suffering through—have asked the courts for mercy.
Kevin Magnuson is one of them. Seven years ago, his father Keith—the legendary Chicago Blackhawks defenceman—was killed in a horrific crash near Toronto. The man behind the wheel was Rob Ramage, his dad’s close friend and a former captain of the Toronto Maple Leafs. The pair had just left a funeral reception at a golf course and were on their way to a meeting of the NHL Alumni Association when their rental car veered into oncoming traffic, collided with two other vehicles and ricocheted into a guardrail.
According to police, Ramage’s blood-alcohol level was three times the legal limit, akin to someone who had consumed 15 to 20 beers. He was charged with five offences, including impaired driving causing death. “Obviously, there was shock at first, then anger for maybe a day,” Kevin recalls now. “But since then, every decision we’ve made as a family has revolved around: what would dad want us to do? He would want us to worry about Rob and his family. We know it was an accident, and there is no ill will whatsoever. It very easily could have been dad driving that day and Rob in the passenger seat.”
When Ramage was later convicted on all counts, the Magnusons travelled to Newmarket, Ont., to personally ask the judge not to send Keith’s friend to prison. “We have long ago forgiven Rob for his mistake,” Kevin told the court, flanked by his mother Cindy and sister Molly. “Please understand that as the direct victims of this ‘crime,’ a prison sentence will not be seen as any measure of justice, but will simply exacerbate our pain and create additional victims in Rob’s family.”
Justice Alexander Sosna praised the Magnusons, calling their words “moving and rare.” Yet they weren’t enough to change his mind. Ramage was given four years in jail and, after an unsuccessful appeal, is now serving his term at a Kingston, Ont., prison. “It was very frustrating,” Kevin says. “I know Rob thinks about my dad every day, and that is enough of a punishment.”
In all drunk driving cases, the primary goal of sentencing is general deterrence, not individual rehabilitation. As the Ontario Court of Appeal wrote in a landmark 1985 decision, “every drinking driver is a potential killer,” and the punishment should be tough enough to dissuade other impaired motorists from climbing behind the wheel. Today, most cases involving death or injury result in a custodial sentence of two to five years.
But unlike the Magnusons and the McMullins, some victims have managed to convince a judge to approve house arrest instead of jail time. Twelve years ago, after a night of heavy drinking, Matthew Mould of Hamilton drove his car into a light standard, killing Michael Hackett, his friend and co-worker. Hackett’s wife and parents immediately forgave Mould for the “tragic accident” and pleaded with the judge not to send him to prison. “We hold no grudge against this young man and were moved by his overwhelming sense of grief and his feelings of remorse,” the family wrote. “Forgiveness brings healing and our grief would only be compounded if this young man were given a jail sentence.” The judge agreed, handing Mould a 15-month conditional sentence.
James Carr, an Alberta man, was just as fortunate. Just four months after Ramage went to prison, Carr was handed a two-year conditional term for the drunken rollover that killed his best friend, Blake Levall. In an emotional victim-impact statement, Levall’s parents said they considered their dead son’s friend one of their own children, and begged that Carr not be imprisoned. “I’m going to lose another child,” said James Levall, Blake’s dad. “I’ll be torn apart again.” Said the judge: “Perhaps the greatest punishment James will suffer is that the death of his close friend, and the injury and hurt he has caused to others close to him, will always be with him.”
Jack Tobin is no doubt wrestling with the same demons. His friend is dead and his bail conditions prohibit him from contacting the Zolpis family. But in the months to come, as Tobin’s case reaches a courtroom, one thing is certain: if he is convicted he will spend at least some time in jail. Because of recent amendments to the Criminal Code, conditional sentences no longer apply to crimes involving serious bodily harm, regardless of how forgiving a victim’s family may be. In a case of impaired driving causing death, the type of sentences handed to Matthew Mould and James Carr—and requested by the families of Keith Magnuson and Darren McMullin—are gone. A custodial sentence now means just that: in custody, not house arrest.
Adam Rabolt has served his time: he spent just under a year in prison for his role in Darren McMullin’s death and he is now out on parole. Yet his sentence is so much deeper than a prison term—it will last him the rest of his life. “He wasn’t just my best friend, he was a brother,” he says. “That one buddy who knows everything about you, no matter what—even stuff you forgot, he’s the guy that knows. For me, that’s gone.”
