R. v. Suter

R. v. Suter
Collection
Supreme Court Judgments
Date
2018-06-29
Neutral citation
2018 SCC 34
Report
[2018] 2 SCR 496
Case number
37247
Judges
Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Rowe, Malcolm
On appeal from
Alberta
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496
Appeal Heard: October 11, 2017 Judgment Rendered: June 29, 2018 Docket: 37247
Between:
Richard Alan Suter
Appellant
and
Her Majesty The Queen
Respondent
Coram: Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Rowe JJ.
Reasons for Judgment: (paras. 1 to 104)
Moldaver J. (Abella, Karakatsanis, Wagner, Côté and Rowe JJ. concurring)
Reasons Dissenting in Part: (paras. 105 to 202)
Gascon J.
R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496
Richard Alan Suter Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Suter
2018 SCC 34
File No.: 37247.
2017: October 11; 2018: June 29.
Present: Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Rowe JJ.
on appeal from the court of appeal for alberta
Criminal law — Sentencing — Considerations — Collateral consequences — Mitigating factors — Accused accidentally driving vehicle onto restaurant patio and killing child — Accused pleading guilty to offence of refusing to provide breath sample knowing that he caused accident resulting in death and sentenced to four months of imprisonment and driving prohibition — Court of Appeal increasing sentence to 26 months of imprisonment — Whether lower courts erred in determining appropriate sentence — Criminal Code, R.S.C. 1985, c. C‑46, ss. 255(3.2) , 718 to 718.2 .
S drove his vehicle onto a restaurant patio, killing a two‑year‑old child. The police demanded a breath sample after the accident but S refused, on the advice of a state‑provided lawyer to whom he spoke after his arrest. He was charged with refusing to provide a breath sample after causing an accident resulting in a death, under s. 255(3.2) of the Criminal Code , and with impaired driving causing death and impaired driving causing bodily harm. Sometime after being charged, S was abducted by vigilantes who cut off his thumb with pruning shears for his role in the child’s death. S eventually pleaded guilty to the s. 255(3.2) offence and the other charges were withdrawn.
The sentencing judge imposed a 4‑month sentence of imprisonment on S, coupled with a 30‑month driving prohibition. He found that the accident was caused by a non‑impaired driving error, S having hit the gas pedal instead of the brake pedal. He further found that S’s refusal to provide a breath sample was the result of bad legal advice and was a mistake of law, which fundamentally changed S’s moral culpability. In addition to that and other mitigating factors, the sentencing judge took into account the violent vigilante actions against S. The Court of Appeal allowed a Crown appeal from that sentence and increased the custodial portion of it to 26 months. It found that the deficient legal advice did not constitute a mistake of law and it could not be used to mitigate S’s sentence. It also found that the sentencing judge failed to consider, as an aggravating factor, that S chose to drive while distracted in the context of his health and pre‑existing alcohol problems, and that the sentencing judge erred by taking the vigilante violence into account.
Held (Gascon J. dissenting in part): The appeal should be allowed in part. The sentence of 26 months’ imprisonment imposed by the Court of Appeal should be set aside and replaced with one of time served. The 30‑month driving prohibition should be upheld.
Per Abella, Moldaver, Karakatsanis, Wagner, Côté and Rowe JJ.: The sentencing range for the s. 255(3.2) offence is the same as for impaired driving causing death and driving “over 80” causing death — low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years. The sentencing range is broad because these offences cover a broad spectrum of offenders and circumstances. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant the imposition of a sentence that falls below this broad range, or aggravating factors may warrant the imposition of a sentence that exceeds this broad range. As long as the objectives and principles of sentencing codified in ss. 718 to 718.2 of the Criminal Code are met and respected, the sentence will be fit.
Facts that are irrelevant to the gravity of an offence and to the level of the offender’s moral blameworthiness with respect to that offence cannot be relied on as aggravating in the sentencing analysis. To consider such facts is an error in principle, which may cause a court to punish the offender for an offence for which he or she was neither tried nor convicted, and result in the imposition of an unfit sentence.
Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to examine collateral consequences. A collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence, but they must relate to the offence and the circumstances of the offender. There is no rigid formula for taking collateral consequences into account, and there is no requirement that collateral consequences emanate from state misconduct in order to be considered a factor at sentencing. However, the fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. Violent actions against an offender for his or her role in the commission of an offence necessarily form part of the personal circumstances of that offender, and should therefore be taken into account when determining an appropriate sentence. However, 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.
Although it is not a defence to a criminal charge, mistake of law can be used as a mitigating factor in sentencing, because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who are unsure about the lawfulness of their actions, or know that their actions are unlawful. A mistake of law is a legal concept with rigorous requirements, which occurs only where a person has an honest but mistaken belief in the legality of his or her actions. Confusion or uncertainty as to the lawfulness of one’s actions does not meet the legal requirements for mistake of law, however, such confusion may still be relevant to the sentencing analysis depending on the facts of the particular case. Its mitigating effect, if any, will necessarily be less than in a situation where there is a true mistake of law.
A finding of non‑impairment is a relevant mitigating factor when sentencing an offender for refusing to provide a breath sample, but the mitigating effect of such a finding must be limited for several reasons. First, sentencing hearings for refusal offences could be transformed into de facto impaired driving trials, adding to the complexity and length of the proceedings and depleting scarce judicial resources. Second, since refusal offences are in essence an evidence gathering tool to obtain the most reliable evidence of impairment, 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. Third, it could create an incentive for individuals not to provide a breath sample, be convicted of the refusal offence, and then subsequently argue at the sentencing hearing that they were not impaired to benefit from a reduced sentence. The extent to which the mitigating effect must be limited is a fact‑driven exercise that depends on the specific circumstances in any given case, and the onus is on the offender to establish, on a balance of probability, that he or she was not impaired at the time the offence was committed.
In the instant case, both the sentencing judge and the Court of Appeal committed errors in principle in arriving at the sentences they imposed and these errors resulted in the imposition of unfit sentences. The Court of Appeal erred when it recast the circumstances of the accident and effectively sentenced S for the uncharged offence of careless driving or dangerous driving causing death, and when it held that the vigilante violence inflicted on S could not be considered when crafting an appropriate sentence. The sentencing judge erred in finding that S was acting under a mistake of law when he refused to provide a breath sample and that this factor fundamentally changed his moral culpability, and in giving undue weight to S’s non‑impairment as a mitigating factor.
In S’s unique case, the following factors operate to remove his sentence from the normal range for a s. 255(3.2) offence: he was not impaired at the time of the accident, he refused to provide a breath sample because of ill‑informed and incorrect legal advice, and he was attacked by vigilantes. However, they do not justify the sentence imposed by the sentencing judge, which does not properly account for the gravity of the offence. A sentence of 15 to 18 months’ imprisonment would have been a fit sentence at the time of sentencing. However, S has already served just over 10 and a half months of his custodial sentence and has spent almost 9 months awaiting the Court’s decision. It would not be in the interests of justice to re‑incarcerate S at this time — it would cause him undue hardship and serve no useful purpose.
Per Gascon J. (dissenting in part): There is agreement with the majority that the Court of Appeal’s sentence of 26 months in prison was unfit. However, there is disagreement with the sentence of 15 to 18 months in prison prescribed by the majority. The four‑month carceral sentence imposed by the sentencing judge should be restored. It cannot be revisited on appeal since it does not implicate a flawed process (material errors in reasoning) — such as an error in principle or an error in weighing a relevant factor unreasonably — or a flawed outcome (demonstrable unfitness).
The sentencing judge made no error in principle in his analysis of S’s mistake of law. A mistake of law does not require an offender to be certain as to the lawfulness of their conduct. Such a narrow construction is antithetical to the contextual and individualized nature of sentencing. Mistake of law is a flexible concept broad enough to include some confusion or uncertainty about the law. Accordingly, thinking conduct is likely legal, but being uncertain, is sufficient to constitute a mistake of law. Mistake of law should not be dealt with as a binary, where only a person being completely confident that their conduct is legal fundamentally alters culpability. Trial judges should be trusted to take a contextual approach — one which considers the source, nature and reasonableness of a mistake, along with any degrees of uncertainty — when allocating mitigating weight to a mistake of law for the purpose of sentencing. In any event, here, S was certain as to the legality of refusing to provide a breath sample, and therefore made a mistake of law, even on the majority’s test.
The sentencing judge did not give excessive weight to S’s sobriety. An appellate court can intervene on sentence when a sentencing judge weighs a particular factor unreasonably, but not when the appellate court would have simply weighed the relevant factor differently. When reviewing trial reasons, appellate courts must read the reasons as a whole, and should not isolate single passages from trial reasons to find errors in reasoning. In this case, isolating a passage from the sentencing judge’s decision to conclude that he gave excessive weight to S’s sobriety when sentencing him mischaracterizes the sentencing judge’s reasons. The sentencing judge looked at the combined effect of sobriety, bad legal advice, vigilante violence and the many other mitigating factors in this case. Accordingly, his weighing of sobriety provides no basis for appellate intervention.
Even if a trial judge makes no errors in the sentencing process, a court of appeal can interfere if the ultimate sentence is demonstrably unfit, meaning that the sentence is clearly unreasonable. Demonstrable unfitness is not an unchecked subjective inquiry. An appellate court must demonstrate the unfitness of a sentence with reference to the Criminal Code ’s sentencing principles, including proportionality (s. 718.1 ), the sentencing objectives (s. 718 ), individualization (s. 718.2 (a)) and parity (s. 718.2 (b)). A sentence of four months of imprisonment in the circumstances of this case is not demonstrably unfit based on this established approach to sentencing appeals.
A fit sentence must be proportionate to the gravity of the offence (how serious the offence is) and the degree of responsibility of the offender (their moral blameworthiness). In the instant case, the gravity of the offence — refusing to provide a breath sample after a fatal car accident — is very high. However, S’s moral blameworthiness — as a sober driver who was in a genuine car accident caused by a non‑impaired driving error and who refused to provide a breath sample only because he was expressly instructed to do so by his lawyer — could hardly be lower. The tensions that inevitably arise when balancing these conflicting considerations underlie the particularly delicate task of ascertaining proportionality. However, appellate courts are not in a better position than the sentencing judge to reconcile these conflicting forces; rather, given the latter’s proximity to the facts of the case and his institutional expertise, appellate courts are in a worse position. Courts of appeal must defer to the sentencing judge with respect to this complex balancing exercise.
Other than the sentencing judge’s expertise and S’s unique circumstances, two additional factors reinforce the proportionality of a significantly reduced sentence. First, S was not only mistaken in law, but reasonably mistaken. He relied on a state‑provided lawyer’s advice when refusing to provide a breath sample, reasonably so. His moral blameworthiness is therefore infinitesimal. Second, the constitutional significance of the right to counsel also weighs in favour of a significantly reduced sentence. People must be able to rely on legal advice given when exercising their constitutional right to counsel.
The proportionality of the sentence is reinforced by the applicable sentencing objectives. The objective of deterring the offender and other persons from committing offences must be emphasized in the impaired driving context. However, the facts of the case at bar cannot be disregarded, as they are critical to a proportionate sentence for S. S was not tempted to commit a crime, nor did he commit a crime because of insufficient deterrence. He refused to provide a breath sample because he was told to do so by his lawyer. A stiff sentence in this case will not deter others from refusing to provide a breath sample; rather, it will deter others from following their lawyer’s advice. Similarly, the objective of denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct must be emphasized, but without disregarding the unique facts of this case. Mere commission of an administrative offence, when advised to do so by a state‑provided lawyer, does not warrant strict denunciation, as it lacks the required moral blameworthiness.
A sentence should be reduced to account for any mitigating circumstances relating to the offence. In the instant case, S’s reliance on bad legal advice, his sobriety and the vigilante attacks he suffered are not the only mitigating factors. S’s sentence must also be reduced because of his guilty plea, his extreme remorse, his lack of a criminal record, his strong community support and the fact that he has been a productive member of society. These mitigating factors operate collectively in determining a fit sentence. Viewed together, they are remarkably mitigating. The majority’s willingness to ultimately impose a 10‑and‑a‑half‑month sentence, despite signalling that S’s conduct warrants a sentence as high as 18 months, demonstrates that such a harsh sentence would be disproportionate in S’s circumstances. Precisely how these mitigating factors are reflected in a particular sentence is most empirically determined through the sentencing principle of parity, which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The facts in S’s case are entirely unique. There are no similar offenders in similar circumstances against which his sentence can be reasonably measured. The case which is closest in terms of moral blameworthiness imposed the same carceral sentence as was imposed here (four months). Further, the jurisprudence establishes a range of up to a year when sentencing this offence only in terms of obstruction of justice, rather than as a proxy for impaired driving. The flexibility found in the jurisprudence demonstrates that Parliament intended the s. 255(3.2) offence to operate harshly enough to deter any incentive for refusal, but flexibly enough to recognize that refusal is not coterminous with impaired driving in all situations. Accordingly, based on the unique facts in this case and the jurisprudence, there is no basis to claim that S’s four‑month sentence was manifestly unfit.
Cases Cited
By Moldaver J.
Applied: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; referred to: R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728; R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739; R. v. Bunn (1997), 118 Man. R. (2d) 300; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289; R. v. MacFarlane, 2012 ONCA 82, 288 O.A.C. 114; R. v. Folino, 2005 ONCA 258, 77 O.R. (3d) 641; R. v. Anderson, 2014 ONSC 3646; R. v. Mamarika, [1982] FCA 94, 42 A.L.R. 94; R. v. McDonald, 2016 NUCA 4; R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87; R. v. Bell, 2013 MBQB 80, 290 Man. R. (2d) 79; R. v. Heatherington, 2005 ABCA 393, 380 A.R. 395; R. v. Owens (2002), 161 O.A.C. 229; R. v. Abouabdellah (1996), 109 C.C.C. (3d) 477; R. v. Carroll (1995), 56 B.C.A.C. 138; R. v. Forster, [1992] 1 S.C.R. 339; R. v. Pontes, [1995] 3 S.C.R. 44; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37.
By Gascon J. (dissenting in part)
R. v. Kresko, 2013 ONSC 1631, 42 M.V.R. (6th) 224; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Forster, [1992] 1 S.C.R. 339; R. v. Pontes, [1995] 3 S.C.R. 44; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Rezaie (1996), 31 O.R. (3d) 713; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Hebert, [1990] 2 S.C.R. 151; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; R. v. Smith, 2017 MBPC 16, 10 M.V.R. (7th) 152; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Holliday, 2009 ONCJ 323, 87 M.V.R. (5th) 148; R. v. Wallace, 2012 MBCA 54, 280 Man. R. (2d) 209; R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 10 (b).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 19 , 249(4) , 254(5) , 255(1) (a)(i), (2) , (2.2) [ad. 2008, c. 6, s. 21(3)], (3), (3.1), (3.2) [idem], (3.3), 258(3), 718 to 718.2, 718, 718(a), (b), 718.1, 718.2(a), (b), (e), 718.3(1), 725(1)(c), (2)(b).
Traffic Safety Act, R.S.A. 2000, c. T‑6, s. 115.
Authors Cited
Ashworth, Andrew. Sentencing and Criminal Justice, 5th ed. Cambridge: Cambridge University Press, 2010.
Foy, James. “Proportionality in Sentence Appeals: Towards a Guiding Principle of Appellate Review” (2018), 23 Can. Crim. L.R. 77.
Kenny’s Outlines of Criminal Law, 19th ed. by J. W. Cecil Turner. Cambridge: University Press, 1966.
Manson, Allan. The Law of Sentencing. Toronto: Irwin Law, 2001.
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.
APPEAL from a judgment of the Alberta Court of Appeal (Watson, Bielby and Schutz JJ.A.), 2016 ABCA 235, 341 C.C.C. (3d) 21, 41 Alta. L.R. (6th) 268, 100 M.V.R. (6th) 177, [2016] A.J. No. 785 (QL), 2016 CarswellAlta 1461 (WL Can.), varying the sentence imposed by Anderson A.C.J. Prov. Ct., 2015 ABPC 269, 94 M.V.R. (6th) 91, [2015] A.J. No. 1407 (QL), 2015 CarswellAlta 2333 (WL Can.). Appeal allowed in part, Gascon J. dissenting in part.
Dino Bottos, Will Van Engen, Fady Mansour and Peter Sankoff, for the appellant.
Joanne Dartana and David A. Labrenz, Q.C., for the respondent.
The judgment of Abella, Moldaver, Karakatsanis, Wagner, Côté and Rowe JJ. was delivered by
Moldaver J. —
I. Overview
[1] The circumstances of this case are tragic. Two-year-old Geo Mounsef was killed when the appellant, Richard Suter, drove his vehicle onto a restaurant patio where the Mounsef family was eating dinner. In a matter of seconds, George Mounsef and Sage Morin lost a son, and Quentin Mounsef lost a brother. These devastating consequences speak to the enormity of the tragedy.
[2] Mr. Suter was initially charged with three offences arising out of this incident, including impaired driving causing death and impaired driving causing bodily harm. The impaired driving charges were later withdrawn by the Crown when Mr. Suter pleaded guilty to one count of refusing to provide a breath sample knowing that he caused an accident resulting in a death, an offence set out in s. 255(3.2) of the Criminal Code, R.S.C. 1985, c. C-46 . Refusing to provide the police with a breath sample is always serious, but especially so when a death occurs. The maximum penalty for this offence — like for impaired driving causing death and driving “over 80” causing death — is life imprisonment. And lest there be any doubt, for sentencing purposes, these three offences will typically be treated alike.
[3] That said, the circumstances of this case are unique. As we shall see, the fatal accident was caused by a non-impaired driving error, and Mr. Suter refused to provide the police with a breath sample because he received bad legal advice. The lawyer he called from the police station expressly told him not to provide a breath sample, and Mr. Suter demurred. Added to this, sometime after the accident, Mr. Suter was attacked by a group of vigilantes who used a set of pruning shears to cut off his thumb. His wife was also attacked in a separate incident.
[4] Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 of the Criminal Code ). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.
[5] The sentencing judge imposed a 4-month sentence of imprisonment on Mr. Suter, coupled with a 30-month driving prohibition. The Court of Appeal of Alberta allowed a Crown appeal from that sentence and increased the custodial portion of it to 26 months. For reasons that follow, I am respectfully of the view that both the sentencing judge and the Court of Appeal committed errors in principle in arriving at the sentences they imposed and these errors resulted in the imposition of unfit sentences. Accordingly, this Court may conduct its own analysis to determine a fit sentence.
[6] The Court of Appeal erred when it recast the circumstances of the accident and effectively sentenced Mr. Suter for the uncharged offence of careless driving or perhaps dangerous driving causing death. It also erred when it held that the vigilante violence inflicted on Mr. Suter could not be considered when crafting an appropriate sentence. The sentencing judge erred in finding that Mr. Suter was acting under a mistake of law when he refused to provide the police with a breath sample and that this factor fundamentally changed Mr. Suter’s moral culpability. He also erred in giving undue weight to Mr. Suter’s non-impairment as a mitigating factor.
[7] The errors committed by both the Court of Appeal and the sentencing judge materially contributed to the respective sentences they imposed. In the circumstances, I would allow Mr. Suter’s appeal from the 26-month custodial sentence ordered by the Court of Appeal and, for reasons that will become apparent, I would reduce it to one of time served — just over 10 and a half months. Like the Court of Appeal, I would not interfere with the driving prohibition.
II. Facts
[8] The facts in this case derive from Mr. Suter’s sentencing hearing. What follows is a summary of uncontested facts and pertinent findings made by the sentencing judge.
[9] On May 19, 2013, Mr. Suter and his wife went to dinner at Chili’s restaurant. Each consumed one alcoholic drink. When the food arrived, Mr. Suter’s meal was cold. He became upset and insisted on going elsewhere for dinner. Mrs. Suter was displeased but agreed to leave. An argument ensued as the couple drove to a nearby restaurant known as Ric’s Grill. Upon arriving at Ric’s Grill, Mr. Suter pulled into a parking space adjacent to the outside patio of the restaurant. The vehicle stopped a few yards back from the glass partition that separated the patio from the sidewalk, however, Mr. Suter did not put the vehicle in park as he realized that he had mistakenly pulled into a “by permit only” space.
[10] While the vehicle was stopped in that space, Mrs. Suter turned to her husband and exclaimed “Maybe we should just get a divorce”. At about the same moment, she realized that the vehicle was inching forward, and she yelled at her husband to stop. Unfortunately, Mr. Suter’s foot had come off the brake pedal and instead of hitting the brake, he pressed down on the gas pedal. The vehicle accelerated through the glass partition and within a second or two, it slammed into the restaurant wall.
[11] George Mounsef, his wife Sage Morin, and their two young children Geo and Quentin were having dinner on the patio when Mr. Suter’s vehicle came crashing through the glass partition. They were struck by the vehicle, and Geo Mounsef remained pinned by it against the wall of the restaurant for about 30 seconds. Amidst the screaming, someone told Mr. Suter that there was a child under his vehicle and he backed up slowly. At that point, Mr. Suter was pulled from the driver’s seat, thrown to the ground, and beaten by witnesses at the scene. When the police arrived, they found Mr. Suter lying in a fetal position on the parking lot pavement. Mr. Suter was arrested, he was taken to the police station, and a breath demand was made.
[12] At the station, Mr. Suter tried unsuccessfully to phone a lawyer with whom he was familiar. The police suggested that he call a lawyer on contract with Legal Aid (also known as a “Brydges lawyer”: see R. v. Brydges, [1990] 1 S.C.R. 190) and Mr. Suter complied. During the conversation, the Brydges lawyer confused Mr. Suter with legal jargon. At no point did he inquire of Mr. Suter as to how much alcohol, if any, he had consumed that day. In the end, the Brydges lawyer expressly told Mr. Suter not to provide the police with a breath sample. In line with this advice, when asked to provide a breath sample, Mr. Suter refused, despite being told by the officer that refusing to provide a breath sample was an offence.
[13] Mr. Suter was charged with three offences: refusing to provide a breath sample after causing an accident resulting in a death (under s. 255(3.2) of the Criminal Code ), impaired driving causing death (under s. 255(3) of the Criminal Code ), and impaired driving causing bodily harm (under s. 255(2) of the Criminal Code ).
[14] Sometime after being charged, Mr. Suter was abducted by vigilantes. Three hooded men took him from his home in the middle of the night, handcuffed him, and placed a canvas bag over his head. His attackers then drove him to a secluded area, cut off his thumb with pruning shears, and left him unconscious in the snow. Mrs. Suter was also attacked by vigilantes in a shopping mall parking lot. Both incidents were linked to Mr. and Mrs. Suter’s role in Geo Mounsef’s death.
[15] On June 5, 2015, Mr. Suter entered a plea of guilty to the s. 255(3.2) offence. As indicated, the impaired driving charges were withdrawn by the Crown.
III. Decisions Below
A. The Sentencing Decision (Anderson A.C.J.), 2015 ABPC 269, 94 M.V.R. (6th) 91
[16] At the sentencing hearing, defence counsel sought a non-custodial sentence — either a fine or a fine and probation. Crown counsel, on the other hand, sought the imposition of a three-year custodial sentence. As indicated, the sentencing judge imposed a sentence of 4 months’ imprisonment coupled with a 30-month driving prohibition.
[17] In his reasons, the sentencing judge emphasized that this case was unique. As tragic as the consequences were, he characterized the accident as one “caused by a non-impaired driving error” (para. 76). He also found that Mr. Suter’s refusal to provide a breath sample was the result of “hopefully rare, ill-informed and bad legal advice” (ibid.). According to the sentencing judge, this fact could not absolve Mr. Suter, “as a mistake of law is not a defence”, but it nevertheless “fundamentally change[d] Mr. Suter’s moral culpability” (ibid.).
[18] The sentencing judge noted a number of other mitigating factors in this case, including that: Mr. Suter entered a guilty plea; he was “remorseful far beyond what is reflected in the plea itself”; he had no criminal record and strong community support; and he had been employed virtually all of his adult life (para. 79). The sentencing judge also took into account — although “to a more limited extent” — the “extreme vitriol, public scorn and threats” Mr. Suter had endured, as well as the “violent vigilante actions against both Mr. Suter and Mrs. Suter” (para. 81). According to the sentencing judge, all of these factors operated to “significantly reduce the sentence from what would otherwise be fit” (para. 82). He concluded that a sentence of 4 months’ imprisonment, coupled with a 30-month driving prohibition, was appropriate in the circumstances. Both Mr. Suter and the Crown appealed from that sentence.
B. The Court of Appeal Decision (Watson, Bielby and Schutz JJ.A.), 2016 ABCA 235, 41 Alta. L.R. (6th) 268
[19] The Court of Appeal of Alberta found that the sentencing judge made several errors in his decision, and that these errors in combination resulted in an unfit sentence.
[20] First, the court found that the sentencing judge erred in principle in concluding that Mr. Suter was acting under a mistake of law when he refused to provide the police with a breath sample. In its view, the deficient legal advice did not constitute a mistake of law and it could not be used to mitigate Mr. Suter’s sentence. Second, the court found that the sentencing judge failed to consider as a relevant aggravating factor the fact that Mr. Suter “cho[se] to drive while distracted in the context of his health and pre-existing alcohol problems” (para. 100). Third, the court found that the sentencing judge erred by taking the vigilante violence into account when determining an appropriate sentence. Such violence, it maintained, did not “emanate from state misconduct” and therefore could not change “what would otherwise be a proportional sentence” (para. 106).
[21] The Court of Appeal set aside the 4-month custodial sentence, and imposed a sentence of 26 months of imprisonment. It did not interfere with the 30-month driving prohibition.
[22] Mr. Suter now appeals to this Court from that sentence.
IV. Analysis
[23] It is well established that appellate courts cannot interfere with sentencing decisions lightly: see R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 48; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, para. 25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39. This is because trial judges have “broad discretion to impose the sentence they consider appropriate within the limits established by law” (Lacasse, at para. 39).
[24] In Lacasse, a majority of this Court held that an appellate court could only interfere with a sentence in one of two situations: (1) where the sentence imposed by the sentencing judge is “demonstrably unfit” (para. 41); or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error has an impact on the sentence imposed (para. 44). In both situations, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in the circumstances.
[25] A sentence that falls outside of a certain sentencing range is not necessarily unfit: see Lacasse, at para. 58; Nasogaluak, at para. 44. Sentencing ranges are merely guidelines, and are just “one tool among others that are intended to aid trial judges in their work” (Lacasse, at para. 69). It follows that deviation from a sentencing range does not automatically justify appellate intervention (ibid., at para. 67).
[26] Both the sentencing judge and the Court of Appeal correctly held that the sentencing range for the s. 255(3.2) offence is the same as for impaired driving causing death. In my view, this range also includes the offence of driving “over 80” causing death (under s. 255(3.1) of the Criminal Code ). All three of these offences carry a maximum penalty of life imprisonment — an indication that Parliament intended that they be treated as equally serious. Moreover, they all have the same overarching objective: to deter drunk driving.
[27] The sentencing range for these offences has been quite broad — low penitentiary sentences of 2 or 3 years to more substantial penitentiary sentences of 8 to 10 years — because courts have recognized that they cover a broad spectrum of offenders and circumstances: see R. v. Junkert, 2010 ONCA 549, 103 O.R. (3d) 284, at para. 40; R. v. Kummer, 2011 ONCA 39, 103 O.R. (3d) 641, at para. 21; Lacasse, at para. 66. An offender’s level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code , and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.
[28] As I will explain, I am respectfully of the view that the sentencing judge and the Court of Appeal committed errors in principle, and that these errors led both courts to impose unfit sentences in the circumstances of this case.
A. The Court of Appeal of Alberta’s Decision
(1) The Court of Appeal Did Not Err in Raising New Issues
[29] Before turning to the errors committed by the Court of Appeal in its sentencing analysis, I will briefly address Mr. Suter’s argument that the court erred in improperly raising new issues, contrary to this Court’s decision in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689.
[30] In accordance with Mian, an issue is new if it is “legally and factually distinct from the grounds of appeal raised by the parties” and “cannot reasonably be said to stem from the issues as framed by the parties” (paras. 30 and 35). It may only be raised if failing to do so would risk an injustice — for instance, if the court of appeal has “good reason to believe that the result would realistically have differed had the error not been made” (para. 45). An issue will be properly raised if the parties are given notice and an opportunity to respond (para. 54). Proper notice requires that the court of appeal “make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond” (ibid.). An opportunity to respond includes filing written arguments, addressing the issue orally, or both (para. 59).
[31] Mr. Suter claims that the Court of Appeal improperly raised two issues: (1) whether the vigilante violence he suffered should have been considered as a mitigating factor, and (2) whether his manner of driving should have been treated as an aggravating factor.
[32] I begin with the first issue: the effect of the vigilante violence on Mr. Suter’s sentence. During oral arguments before the Court of Appeal, both parties addressed the weight that should be given to the vigilante violence at sentencing. It follows, in my view, that this was not a new issue as contemplated by Mian — it was not legally and factually distinct from the issues raised by the parties. Accordingly, it was open to the Court of Appeal to address it.
[33] Turning to the second issue — the aggravating effect of Mr. Suter’s manner of driving — I accept that this was a new issue. Nonetheless, I am satisfied that it was properly raised. First, it was open to the Court of Appeal to conclude that the sentence imposed by the sentencing judge would have differed had he considered Mr. Suter’s manner of driving. Second, the Court of Appeal gave the parties adequate notice and provided them with an opportunity to respond. During the oral hearing, the court informed the parties that it had identified a potential issue and invited submissions. This Court in Mian explicitly rejects an approach that would require strict procedural standards to be followed, as such a formalistic approach would “fail to recognize that the issue may arise in different circumstances in different cases” (para. 55).
[34] In my view, the Court of Appeal met the requirements in Mian.
(2) The Court of Appeal Erred by Effectively Sentenc