The Supreme Court of Canada has for the first time provided guidance on the 2008 Criminal Code reforms that hiked penalties — and created two new offences — for refusing to provide a breath sample in impaired driving cases where death or bodily harm occurs.

Justice Michael Moldaver’s 6-1 decision June 29 (Justice Clément Gascon dissented in part) allowed the appeal of Richard Suter, and reduced to time served a 26-month prison sentence imposed in 2016 by the Alberta Court of Appeal on the 67-year-old Edmonton man, who had a history of alcohol problems, and who refused to give a breath sample, after duty counsel incorrectly advised him not to do so: R. v. Suter 2018 SCC 34.

Based on the erroneous legal advice he received, Suter refused to blow after he accidentally plowed his car onto an outdoor restaurant patio, and killed a 2-year-old boy, and injured the child’s parents and brother in 2013. The sentencing judge found as a fact that Suter was not impaired at the time. However, the appellant was angry and distracted while he parked his car because he was in the midst of an intense argument with his wife. He said he drove into the victims when he mistakenly stepped on the gas pedal, rather than the brake pedal. Suter was beaten by witnesses at the scene of the accident, and was later kidnapped by vigilantes, who cut off his thumb with pruning shears and left him unconscious in the snow. His wife was also assaulted — leaving her with a broken nose and damaged teeth.

The Supreme Court’s decision makes new law, and also clarifies, the law of sentencing — both for impaired driving and other offences.

Notably the court affirms that refusing a breathalyzer after causing a fatal accident is as serious as the crime of drunk driving causing death — a message that Parliament forcefully delivered in 2008 via the new offences it created in ss. 255(2.2) and (3.2). The latter amendment removed any incentive to refuse to provide police with a breath sample after an accident causing death by raising the maximum penalty for refusal to blow to the same maximum penalty (life imprisonment) as for impaired driving or “over 80” offences causing death.

Justice Moldaver held that the fact that an offender is not impaired at the time he or she refuses to blow should have a “limited” mitigating impact in sentencing, and non-impairment must not be used to undermine Parliament’s intent. The onus is on the offender to establish on balance that he or she was not impaired at the time of the offence.

“This will help protect against a deluge of impaired driving trials at the sentencing stage of refusal offences and will ensure that Parliament’s intentions and objectives are respected,” he explained.

In respect of sentencing for all kinds of offences, the Supreme Court also affirmed more broadly that tailoring sentences to the circumstances of the offence and the offender may require a sentencing judge to examine collateral consequences affecting that offender that arose from the commission of the offence, or the resulting conviction and sentence. Collateral circumstances — which need not be foreseeable nor emanate from state misconduct — can include vigilante or inmate violence visited on the offender for his or her role in the offence, Justice Moldaver wrote.

The judge said vigilante justice should be taken into account as part of the personal circumstances of the offender that are considered when determining an appropriate sentence. However, he also emphasized that the fundamental sentencing principle of proportionality must always prevail, and that collateral circumstances can’t be used to reduce a sentence to the point that the penalty becomes disproportionate to the gravity of the offence, or to the moral blameworthiness of the offender.

“Vigilante violence should only be considered to a limited extent, as giving it too much weight at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process,” Justice Moldaver stipulated.

The top court also held that an accused’s mistake of law — i.e. where he or she has an honest, but mistaken, belief in the legality of his or her actions — can be a mitigating factor in sentencing.

Suter’s counsel at the Supreme Court of Canada, Dino Bottos of Edmonton’s Bottos Law Group, told The Lawyer’s Daily the top court has established that an offender who is subjected to vigilante justice because of his participation in the criminal offence that he is being sentenced for is entitled to mitigation of sentence.

“The court recognized that although being subjected to vigilante justice does not fit perfectly within the ‘aggravating/mitigating’ [factor] paradigm, it was still a relevant factor to be taken into account in recognizing also, for any given sentence, the personal circumstances of the offender,” Bottos explained. “Given that Mr. Suter’s personal circumstances included a very serious incident of vigilante justice and, to a lesser extent his wife [was also attacked by vigilantes], he was entitled to some mitigation for having received this treatment by a member of the community, regardless of state action.”

He noted that the Supreme Court rejected the Alberta Court of Appeal’s position that Suter was not entitled to mitigation for this episode of vigilante justice because it did not “emanate from state action.”

Bottos said it is noteworthy for criminal lawyers as well that Justice Moldaver defined what mistake of law means and clarified how such a mistake may mitigate an offender’s sentence.

Crown counsel Joanne Dartana referred questions to Alberta’s Ministry of Justice and Solicitor General, which was unable to comment immediately.

The appellant pleaded guilty in 2015 to refusing to provide a breath sample after causing an accident resulting in death, contrary to s. 255(3.2) of the Code. He was sentenced to four months in prison and to a 30-month driving prohibition.

The sentencing judge found, as a fact, that Suter was not impaired by alcohol at the time he drove onto the patio. The Court of Appeal boosted his custodial sentence to 26 months, which Suter appealed to the Supreme Court.

Justice Moldaver ruled that in this “unique” case the sentencing judge properly took into account, in reducing Suter’s sentence from the three years the sentencing judge said he would otherwise have given, the factors that: Suter was not impaired at the time he made his driving error; had refused to blow due to “ill-informed and incorrect” legal advice; and was attacked by vigilantes after the accident. This removed his case from the normal sentencing range.

However, both court levels below made errors of principle that resulted in unfit sentences, Justice Moldaver explained. He noted the sentencing range for refusing to provide a breath sample after a fatal accident has been the same as for impaired driving and “over 80” causing death: two to three years up to about eight to 10 years.

In that light, the four months’ imprisonment imposed by the sentencing judge —who gave undue weight to Suter’s non-impairment as a mitigating factor — was “manifestly inadequate,” Justice Moldaver held.

The Court of Appeal also erred by effectively punishing the accused for the crimes of careless driving or dangerous driving causing death (offences for which he was not charged) — after the appellate judges reweighed the facts and improperly recast the case as one caused by Suter’s health and alcohol problems, anger and distraction.

Justice Moldaver concluded that had a fit sentence been imposed at the time of sentencing, it would have ranged from 15 to 18 months. However, given that Suter has already served 10 and a half months in jail, and had waited nearly nine months for the Supreme Court’s decision, it would not serve the interests of justice to reincarcerate him, Justice Moldaver ruled. He upheld the 30-month driving prohibition, but sentenced Suter to time served.

He reasoned that this sentence took into account the several attenuating factors that made the case unique, but did not lose sight of the gravity of the s. 255(3.2) offence.

“But for the attenuating circumstances I am of the view that a sentence of three to five years in the penitentiary would not have been out of line,” Justice Moldaver elaborated. “Unlawfully refusing to provide the police with a breath sample is an extremely serious offence. Parliament has made this clear. It carries with it a maximum punishment of life imprisonment — and with good cause,” he stressed.

“When a person refuses to provide a breath sample in response to a lawful request, this deprives the police, the court, the public at large, and the family of the deceased of the best evidence as to the driver’s blood alcohol level and state of impairment. Moreover, it places a barrier in the way of the ongoing efforts and pressing objective of deterring, denouncing and putting an end to the scourge of impaired driving.”

In partial dissent, Justice Gascon upheld the 30-month driving prohibition. He also agreed with many of the majority’s comments on sentencing, but disagreed with four aspects of its reasons for interfering with the sentencing judge’s four-month jail sentence.

Justice Gascon argued that the top court could not intervene because the first-level court did not err, and the four-month sentence was not demonstrably unfit.

Source: The Lawyers Daily


Last updated on: 2018-09-22 | Link to this post