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On June 29, 2018, the Supreme Court of Canada (the “Supreme Court”) delivered its ruling in R v Suter, 2018 SCC 34 [Suter], a case which, at its core, “raises critical questions about what can legitimately be considered as ‘relevant aggravating or mitigating circumstances relating to the offence or the offender’” (Factum of the Appellant, para 1). More specifically, the decision helps provide guidance on whether, and to what extent, non-impairment, confusion as to the lawfulness of one’s actions, and vigilante violence against an accused can qualify as mitigating factors in sentencing.

A Tragic Accident

In May 2013, two-year-old Geo Mounsef was killed when the appellant, Richard Suter, accidentally drove his car onto a restaurant patio. “In a matter of seconds, George Mounsef and Sage Morin lost a son, and Quentin Mounsef lost a brother” (Suter, para 1). Rivaling the devastating consequences of the accident is the strangeness of the events that both led to, and followed from it.

Leading up to the accident, Mr. Suter and his wife were out for dinner. At Mr. Suter’s displeasure with his meal, however, the couple left, making their way to Ric’s Grill. On the way, an argument ensued, culminating with the mention of a possible divorce. Unfortunately, it was at this precise moment that Mr. Suter accidentally accelerated and slammed through the glass partition as he attempted to park outside the patio of the restaurant (Suter, paras 9-10).

The events that followed the accident were even more improbable.

First, upon being arrested at the scene and taken to the police station, Mr. Suter was asked to provide a breath sample. Before submitting to the request, Mr. Suter was provided access to a Legal Aid lawyer, whose job was to assist Mr. Suter in better understanding the gravity of his situation as well as his legal options. Unfortunately, the lawyer was far from helpful; he “confused Mr. Suter with legal jargon,” failed to inquire as to whether Mr. Suter had consumed any alcohol (he had had one drink at dinner), and eventually told him “not to provide the police with a breath sample” (Suter, para 12). Mr. Suter elected to follow this advice despite being explicitly informed by police that, pursuant to section 255(3.2) of the Criminal Code, RSC 1985, c C-46 [The Code], it is an offence to refuse to provide a breath sample after causing an accident resulting in death.

Second, in the months following the accident, both Mr. and Mrs. Suter were attacked in acts of vigilante violence—Mrs. Suter was assaulted in a parking lot and suffered a broken nose and broken teeth, while Mr. Suter was abducted from his home and taken to a secluded area where his thumb was cut off with pruning shears and he was left unconscious in the snow (Suter, paras 14, 109).

Mr. Suter pleaded guilty to the crime of refusal. Taking this into consideration, as well as the unique nature of the circumstances, the sentencing judge sentenced Mr. Suter to 4 months’ imprisonment and a 30-month driving prohibition (Suter, para 16). On appeal, however, the Court of Appeal of Alberta overturned the sentence, instead imposing a sanction of 26 months’ imprisonment, in addition to the 30-month driving ban (para 21).

The task for the Supreme Court, then, was to determine how this series of strange and unfortunate events should impact Mr. Suter’s criminal sanction and whether the Court of Appeal or sentencing judge, if either, were justified in their approaches to sentencing.

Aggravating & Mitigating Factors in Sentencing

In our criminal law, “the fundamental purpose of sentencing is to preserve the authority of and promote respect for the law through the imposition of just sanction” (The Canadian Sentencing Commission, “1987 Report on Sentencing Reform” at 153). In order to achieve such a purpose, “sentences must be proportionate to the severity of the offence and the degree of responsibility of the offender” (The Code, s 718.1). Sentencing is thus “a highly individualized process” with room for judges to consider the precise circumstances of the offender and offence and the extent to which such circumstances militate in favour of a more lenient (or more severe) sentence (Suter, para 46).

Non-Impairment

Mr. Suter was unimpaired both at the time of the accident and the time of his refusal to provide a sample. Is this significant? In other words, do we care about the level of impairment of someone who refuses to provide crucial evidence, or do we simply care that they have failed to provide it?

According to both the sentencing judge and Justice Moldaver, writing for the majority, we do care—“the moral blameworthiness of a sober person who fails to provide the police with a breath sample clearly differs from that of a drunk person who fails to provide the police with a breath sample” (Suter, para 78). This is because “the absence of impairment is logically connected to one’s moral culpability because it addresses the ‘principal wrong’ that the refusal offence is aimed at – impaired driving” (Response Factum of the Appellant, para 2).

However, according to Justice Moldaver, this distinction between the sober and impaired person is not overly consequential and should not be given significant emphasis in sentencing. Rather, in assessing blameworthiness in refusal offences, “[t]he act of refusing is the gravamen of the offence” and thus “the seriousness of the offence and the moral blameworthiness of the offender stem primarily from the refusal itself, and not from the offender’s level of impairment” (Suter, para 81). In other words, while the fact that Mr. Suter was not found to have been impaired at the time of the accident militates in favour of a more lenient sentence, the weight afforded such a factor is minimal. While we attribute a higher level of blameworthinesss on an impaired person (as they have defied social and legal expectations surrounding impaired driving), the real concern for refusal offences lies with the “mischief caused” by the failure to provide reliable evidence (R v Suter, 2015 ABPC 269, para 52 [Suter, ABPC]).

Thus, on this issue, Justice Moldaver departed from the approach of the sentencing judge, who he found had “erred by giving undue weight” to the factor (as evidenced by the fact that, had Mr. Suter been impaired, he would have imposed a sentence of greater than three years’ imprisonment) (paras 77, 86).

Confusion

According to Mr. Suter, had he been provided with the proper legal advice—to provide a breath sample—he would have complied (Factum of the Appellant, para 44). In other words, according to the appellant, the failure to provide a sample flowed directly from Mr. Suter’s lack of understanding of his legal options and their related consequences. Therefore, in his view, he should be considered less blameworthy as his conduct was rooted in a mistake in law.

A mistake of law “occurs only where a person has an honest but mistaken belief in the legality of his or her actions” (Suter, para 64). It occurs where an accused commits an offence all the while under the sincere impression that their actions were within the bounds of the law. While not a defence, this sincere ignorance militates in favour of a more lenient sentence (para 64). The reason for this is simple: we blame the person who knowingly contravenes the law more than we do the person who, despite contravening the law, was convinced of the righteousness of their actions (para 65).

In this case, however, Mr. Suter did not honestly but mistakenly believe his action was lawful—a police officer informed him that it was an offence to refuse to provide a sample (Suter, para 71). And, while such instruction is not dispositive in determining whether there was a subjective belief that Mr. Suter’s actions were within the bounds of the law, it is certainly an uphill battle to establish honest but mistaken belief where such information has been provided (para 71).

Mr. Suter claimed, however, that in the face of conflicting information from his lawyer and the police, his confusion as to the legality of his actions was of such a degree as to meet the standard for mistake of law. In spite of the fact that he had been informed by police of the crime of refusal, he was sufficiently unclear as to whether his actions were legal or illegal.

Unfortunately for Mr. Suter, however, while Justice Moldaver accepted that it is certainly understandable that a detainee would decide to accept the advice of their lawyer over that of a police officer, he was not ultimately persuaded. Rather, Justice Moldaver and the majority held that “mere confusion as to the lawfulness of one’s actions is insufficient to ground a mistake of law” (Suter, para 73). However, the majority did note that the fact that Mr. Suter’s decision of refusal stemmed from incorrect legal advice was mitigating and goes to his level of moral blameworthiness. Justice Moldaver was careful in noting that “the mitigation afforded to [Mr. Suter] should not be misconstrued as suggesting that imperfect legal advice presumptively mitigates a sentence” (para 75).

Vigilante Violence

In the aftermath of the death of Geo Mounsef, “extreme vitriol, public scorn and threats” were directed toward Mr. and Mrs. Suter, culminating in the abduction and mutilation of Mr. Suter and an assault against Mrs. Suter (Suter, ABPC, para 81). Undoubtedly, these collateral consequences caused them both immense physical and emotional harm. The question, however, is whether, as such collateral consequences are “not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt,” they are relevant in determining an appropriate sanction (Suter, para 47, citing Professor Allan Manson, The Law of Sentencing).

The answer, according to both the Supreme Court here and in prior jurisprudence, is “yes”—collateral consequences matter (Suter, paras 45-46). However, the relevance of collateral consequences in sentencing is somewhat distinct from that of traditional “aggravating” and “mitigating” factors as, unlike such factors, which speak directly to the nature of the offence and the moral blameworthiness of the offender, collateral consequences provide important context for framing our understanding of a given sentence. For instance, a short custodial sentence might well seem initially appropriate in a particular circumstance until it is discovered that a custodial sentence, of any length, will have significant implications for the individual’s immigration status. If we know someone is to be deported and separated from their family if they receive a certain sentence, such information bears on our perception of whether such a sentence is in fact just.

Such an approach appears to accord with our general notions of justice. In the same way that we might feel satisfied by those who escape justice being on the receiving end of “just desserts,” we similarly feel uncomfortable with the notion that an individual might suffer in excess of their moral culpability.

At first glance, then, it seems quite plain that the vigilante violence perpetrated against Mr. and Mrs. Suter should serve to reduce the severity of sanction imposed by the state. The Court of Appeal, however, held differently. It argued that because the consequences “did not ‘emanate from state misconduct,’ they should not change ‘what would otherwise be a proportional sentence’” (Suter, para 55). In other words, despite the suffering endured by the Mr. and Mrs. Suter, the source of such suffering was not the state and so such suffering cannot be recognized. Thankfully, however, Justice Moldaver disagreed, stating that there is “no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing” (para 56). However, for Justice Moldaver, unlike other forms of collateral consequences, vigilante violence must only be “considered to a limited extent” due to the concern that to afford it significant weight would give “undue legitimacy” to criminal conduct (Suter, para 58).

A Fit Sentence

So, what did the Supreme Court see fit as a just sentence for Mr. Suter? In Justice Moldaver’s analysis, the tension lay between two poles. On the one hand, refusal to provide a breath sample after having caused an accident resulting in death is a serious offence; it carries a maximum punishment of life imprisonment (so as to be consistent with impaired driving causing death and driving “over 80” causing death). On the other, this case is unique and involves various mitigating factors that work to reduce Mr. Suter’s moral blameworthiness. Overall, Justice Moldaver and the majority held that “a sentence of 15 to 18 months’ imprisonment would have been a fit sentence” (Suter, para 95). Somewhat predictably, this falls in between the decision of the sentencing judge (4 months) and that of the Court of Appeal (26 months).

The lone dissenting voice, Justice Gascon, had quite a different view, however. For Justice Gascon, the “unique” and “extraordinary” nature of the facts were such that there was “no legal basis for th[e] Court to interfere with the initial sentence imposed” (Suter, para 109). A refreshing perspective in many ways, Justice Gascon’s position brings to light the difficulties inherent in the practice of criminal sentencing by highlighting how diametrically opposed reasonable people can be in their conclusions, particularly where unusual circumstances rear their head.

Devon Kapoor

Devon Kapoor

Devon is currently in his his fourth year of the JD/MBA program at Osgoode Hall Law School and the Schulich School of Business. Previously, he completed his BA (Joint Honours) in English and Philosophy at McGill University. He is developing a broad interest in several substantive areas of law, including criminal, constitutional, and securities law.

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