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SENTENCING - Criminal Code offences - Failing or refusing to provide breath or blood sample - Sentencing considerations - Aggravating factors - Mitigating factors

Friday, June 29, 2018 @ 1:21 PM  

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Appeal by Suter from a judgment of the Alberta Court of Appeal varying the sentence imposed to Suter for refusing to provide a breath sample after causing an accident resulting in a death. Suter killed a two-year-old child when he drove his vehicle onto a restaurant patio. Suter and his wife were victims of attacks from groups of vigilantes after the events. Suter was initially charged with three offences, but the impaired driving charges were later withdrawn by the Crown. It was established that the fatal accident was caused by a non-impaired driving error. Suter pleaded guilty to one count of refusing to provide a breath sample knowing that he caused an accident resulting in a death. The lawyer he called from the police station expressly told him not to provide a breath sample, and Suter demurred. The sentencing judge imposed a four-month sentence of imprisonment on Suter, coupled with a 30-month driving prohibition. The Court of Appeal of Alberta allowed the Crown’s appeal and increased the custodial portion of the sentence to 26 months.

HELD: Appeal allowed in part. Both the sentencing judge and the Court of Appeal correctly held that the sentencing range for the offence set out in s. 255(3.2) of the Criminal Code was the same as for impaired driving causing death. The aggravating effect of Suter’s manner of driving was a new issue that was properly raised by the Court of Appeal. The issue of whether the vigilante violence Suter suffered should have been considered as a mitigating factor did not constitute a new issue. The Court of Appeal, in arriving at a custodial sentence of 26 months, effectively sentenced Suter for the uncharged offence of careless driving or dangerous driving causing death. The Court of Appeal reweighed the evidence and looked to external factors that had no bearing on the gravity of the offence for which Suter was charged, nor on Suter’s level of moral blameworthiness. No rigid formula existed for taking collateral consequences into account when sentencing. A collateral consequence included any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacted the offender. The attacks on Suter relating to the commission of the offence formed part of the personal circumstances of the offender and had to be considered to ensure that the principles of individualization and parity were respected. The sentencing judge was entitled to consider, to a limited extent, the vigilante violence suffered in this case. The sentencing judge also erred when he found that the erroneous legal advice given to Suter and upon which he acted amounted to a mistake of law, and therefore fundamentally changed Suter’s moral culpability. A sentence of 15 to 18 months’ imprisonment would have been a fit sentence in Suter’s case. It would not be in the interests of justice to reincarcerate Suter, who had already served just over 10 and one half months of his custodial sentence. The Court set aside the sentence and replaced it with one of time served. Sentence: Time already served.

R. v. Suter, [2018] S.C.J. No. 34, Supreme Court of Canada, R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté and M. Rowe JJ., June 29, 2018. Digest No. TLD-June252018011SCC