Richard Alan Suter v. Her Majesty the Queen

(Alberta) (Criminal) (By Leave)


Criminal law - Sentencing.


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Criminal law – Sentencing – Refusal to provide breath sample following a collision causing death – In what circumstances can a mistake of law operate so as to mitigate a person’s sentence? – What constitutes a relevant aggravating or mitigating circumstance? – Can the policy objectives of Parliament trump the fundamental principle of proportionality in sentencing? – Whether the Court of Appeal erred in raising without adequate notice to the parties new grounds of appeal favouring the Crown – Whether the Court of Appeal erred in finding facts which have no bases in the record – Criminal Code, R.S.C. 1985, c. C-46, s. 255(3.2).

Mr. Suter, applicant, pled guilty to the offence of refusing to provide a breath sample following a collision causing death, contrary to s. 255(3.2) of the Criminal Code. He struck several people having dinner on a restaurant patio, including a two and a half year old boy who died of his injuries. While arguing with his spouse, he inadvertently pressed hard on the gas pedal thinking it was the brake and drove his car into the patio. Once arrested and placed in a cell at the police station, Mr. Suter spoke to a lawyer who advised him not to provide a breath sample. He followed that advice. The sentencing judge found as fact that Mr. Suter was not impaired at the time of the collision. He was sentenced to four months of incarceration and to a 30 month driving prohibition. The Court of Appeal allowed the Crown’s appeal and imposed a period of imprisonment of 26 months.