Richard Alan Suter Appellant v. Her Majesty The Queen, 2018 SCC 34

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S eventually pleaded guilty to the s. 255(3.2) offence and the other charges were withdrawn.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 requiredmoral blameworthiness. A sentence should be reduced to account for any mitigating circumstances relating to the offence. In the instant case, S’sreliance on bad legal advice, his sobriety and the vigilante attacks he suffered are not the only mitigating factors. S’s sentence must alsobe reduced because of his guilty plea, his extreme remorse, his lack of a criminal record, his strong community support and the fact thathe 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 thatS’s conduct warrants a sentence as high as 18 months, demonstrates that such a harsh sentence would be disproportionate in S’scircumstances.

Precisely how these mitigating factors are reflected in a particular sentence is most empirically determined through thesentencing principle of parity, which provides that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. The facts in S’s case are entirely unique. There are no similar offenders in similarcircumstances against which his sentence can be reasonably measured. The case which is closest in terms of moral blameworthinessimposed the same carceral sentence as was imposed here (four months).

Further, the jurisprudence establishes a range of up to a yearwhen sentencing this offence only in terms of obstruction of justice, rather than as a proxy for impaired driving. The flexibility found inthe jurisprudence demonstrates that Parliament intended the s. 255(3.2) offence to operate harshly enough to deter any incentive forrefusal, but flexibly enough to recognize that refusal is not coterminous with impaired driving in all situations. Accordingly, based on theunique 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, (SCC), [1990] 1 S.C.R. 190; R. v. Shropshire, (SCC), [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 SCC13, [2012] 1 S.C.R. 433; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739; R. v. Bunn (1997), (MB CA), 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, (ON CA), 2005 ONCA 258,77 O.R. (3d) 641; R. v. Anderson, 2014 ONSC 3646; R. v. Mamarika, 1982 ABCA 281 , [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), (ON CA), 161 O.A.C. 229; R. v. Abouabdellah(1996), (QC CA), 109 C.C.C. (3d) 477; R. v. Carroll (1995), (BC CA), 56 B.C.A.C. 138; R. v.Forster, (SCC), [1992] 1 S.C.R. 339; R. v. Pontes, (SCC), [1995] 3 S.C.R. 44; R. v. MacDonald, 2014SCC 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, (SCC), [1992] 1 S.C.R. 339; R. v. Pontes, (SCC), [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, (SCC), [1981] 1 S.C.R. 640;R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310; R. v. Nasogaluak, 2010SCC 6, [2010] 1 S.C.R. 206; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Rezaie (1996), (ON CA), 31O.R. (3d) 713; R. v. Shropshire, (SCC), [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, (SCC),[1994] 3 S.C.R. 173; R. v. Brydges, (SCC), [1990] 1 S.C.R. 190; R. v.

Hebert, (SCC), [1990] 2 S.C.R.151; Clarkson v. The Queen, (SCC), [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.), (SCC), [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 remainedpinned by it against the wall of the restaurant for about 30 seconds. Amidst the screaming, someone told Mr. Suter that there was a childunder his vehicle and he backed up slowly. At that point, Mr. Suter was pulled from the driver’s seat, thrown to the ground, and beatenby witnesses at the scene. When the police arrived, they found Mr. Suter lying in a fetal position on the parking lot pavement. Mr.

Suterwas 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 suggestedthat he call a lawyer on contract with Legal Aid (also known as a “Brydges lawyer”: see R. v. Brydges, (SCC), [1990] 1S.C.R. 190) and Mr. Suter complied. During the conversation, the Brydges lawyer confused Mr. Suter with legal jargon. At no point didhe 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 ina death (under s. 255(3.2) of the Criminal Code), impaired driving causing death (under s. 255(3) of the Criminal Code), and impaireddriving 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 inthe middle of the night, handcuffed him, and placed a canvas bag over his head.

His attackers then drove him to a secluded area, cut offhis thumb with pruning shears, and left him unconscious in the snow. Mrs. Suter was also attacked by vigilantes in a shopping mallparking 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 drivingcharges 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 asentence 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, hecharacterized the accident as one “caused by a non-impaired driving error” (para. 76).

He also found that Mr. Suter’s refusal to provide abreath sample was the result of “hopefully rare, ill-informed and bad legal advice” (ibid.). According to the sentencing judge, this factcould not absolve Mr. Suter, “as a mistake of law is not a defence”, but it nevertheless “fundamentally change[d] Mr. Suter’s moralculpability” (ibid.). [18] The sentencing judge noted a number of other mitigating factors in this case, including that: Mr.

Suter entered aguilty 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 morelimited extent” — the “extreme vitriol, public scorn and threats” Mr. Suter had endured, as well as the “violent vigilante actions againstboth Mr. Suter and Mrs. Suter” (para. 81). According to the sentencing judge, all of these factors operated to “significantly reduce thesentence 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 theseerrors 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 amistake of law when he refused to provide the police with a breath sample. In its view, the deficient legal advice did not constitute amistake of law and it could not be used to mitigate Mr. Suter’s sentence. Second, the court found that the sentencing judge failed toconsider 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 intoaccount when determining an appropriate sentence.

Such violence, it maintained, did not “emanate from state misconduct” and thereforecould 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 ofimprisonment. 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, (SCC), [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 SCC31, [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 appropriatewithin 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 Sentencing Mr. Suter for the Uncharged Offence of Careless Driving or Dangerous Driving Causing Death [ 35 ] As a general rule, courts cannot sentence an offender in respect of a crime for which he or she has not been convicted: see R. v. Angelillo , 2006 SCC 55 , [2006] 2 S.C.R. 728, at paras. 23 and 32 ; R. v. Larche , 2006 SCC 56 , [2006] 2 S.C.R. 762, at para. 1 . [1] To do so would run counter to the presumption of innocence. With respect, the Court of Appeal did just that in this case. In arriving at a custodial sentence of 26 months, it effectively sentenced Mr.

Suter for the uncharged offence of careless driving or dangerous driving causing death (under s. 115 of the Traffic Safety Act , R.S.A. 2000, c. T-6, and s. 249(4) of the Criminal Code , respectively). This error contributed to the imposition of a sentence that was unfit in the circumstances.

[ 36 ] The decisions of the sentencing judge and the Court of Appeal paint two very different pictures of the events of May 19, 2013. The sentencing judge, while sensitive to the devastating consequences of Mr. Suter’s driving, found that it was an “accident caused by a non-impaired driving error” (para. 76). In his view, when Mr. Suter was momentarily distracted by a conversation with his wife in which she suggested that the two should perhaps get a divorce, he accidentally pressed on the gas pedal instead of the brake pedal.

As a result, the vehicle accelerated onto the restaurant patio where the Mounsef family was seated. This driving error — which lasted only a few seconds — cost two-year-old Geo Mounsef his life. [ 37 ] The Court of Appeal engaged in its own

interpretation of the evidence and concluded that what occurred in this case was more than just a momentary driving error. Although the court accepted that Mr. Suter was not impaired by alcohol, it nevertheless held that Mr. Suter’s ability to drive was “knowingly impaired by health and other factors” (para. 1). Specifically, the Court of Appeal held that Mr.

Suter’s ability to drive was “impaired by the distraction offered by his argument with his wife, in the context of [his] health and drinking problems” (para. 92). [ 38 ] With respect, the concept of “impaired by distraction” is both novel and confusing, and I would not endorse it. In the present case, I see it primarily as a way of circumventing the sentencing judge’s finding that this accident was simply the result of a “non-impaired driving error” (para. 76). [ 39 ] In describing the circumstances of the accident, the Court of Appeal focused on the fact that Mr.

Suter chose to drive in a busy parking lot, while angry and distracted, and in the context of pre-existing marital, health, and alcohol problems: Mindful that the sentencing judge found that Mr. Suter was not impaired at this time, his admissions demonstrate that he nonetheless operated his vehicle while seriously distracted. He drove after he had been drinking, in the context of being a man with a drinking problem whose health and well-being had been disintegrating in the weeks prior to the collision. His marriage was under stress.

He chose to drive while angry and upset, and while having an argument with his wife after upsetting her with his conduct at Chili’s restaurant. Mr. Suter had experienced problems with alcohol in the relatively recent past. Those problems resulted in the police having to be called due to his hallucinations, with a resulting hospitalization. He had sustained a head injury two days prior to the accident. He had recently returned to drinking, and had been drinking (although not to the extent of impairment) at the time of the collision. He was angry.

He was engaging in a serious, animated argument with his wife, over issues that had the potential to permanently impact his marriage. He was distracted by these events. He nonetheless continued to drive into a busy parking lot, adjacent to a number of outdoor diners. [paras. 89- 90] [ 40 ] Many of the facts that the Court of Appeal relied on as aggravating are, in my view, irrelevant to the gravity of the s. 255(3.2) offence and the level of Mr. Suter’s moral blameworthiness with respect to that offence. These facts include that:

(1) Mr. Suter had alcohol problems in the past; (2) he had experienced an episode of hallucinations two weeks prior to the incident; (3) he had hit his head after playing golf two days before the accident; and (4) his marriage had been under stress. [ 41 ] The sentencing judge found that Mr. Suter was not impaired by alcohol at the time of the accident. He accepted Mr. and Mrs. Suter’s evidence about the amount of alcohol Mr. Suter had consumed that day. According to an expert report that was admitted on consent, with this amount of alcohol, Mr.

Suter would not have blown “over 80” had he provided the police with a breath sample. In light of this, it escapes me how alcohol consumption patterns months prior to the accident could have any bearing on the seriousness of the s. 255(3.2) offence, or on Mr. Suter’s level of moral culpability for that offence. [ 42 ] Similarly, absent any evidence that the hallucinations or the head injury would have affected, or did affect, Mr. Suter’s ability to drive, I fail to see how these facts are relevant to the sentencing analysis. The same holds true of the fact that Mr.

Suter’s marriage had been under stress for some period of time preceding the accident. [ 43 ] The Court of Appeal also portrayed Mr. Suter as being distracted, angry, engaged in a “serious, animated argument”, while driving in a “busy parking lot” at the time of the accident (para. 90). At para. 100 of its reasons, the court observed that Mr. Suter caused a child’s death “not intentionally, but carelessly and even recklessly ” (emphasis added).

Characterizing the circumstances of the accident in this way, the court gave undue weight to facts that may — and I stress the word “may” — have formed the basis of a separate, uncharged offence of careless driving or perhaps dangerous driving causing death. And it was largely on this basis that the Court of Appeal substantially increased Mr. Suter’s sentence. [ 44 ] In my view, the Court of Appeal improperly recast the accident as one caused by health and alcohol problems, anger, and distraction.

It reweighed the evidence and looked to external factors that had no bearing on the gravity of the offence for which Mr. Suter was charged, nor on Mr. Suter’s level of moral blameworthiness. In doing so, the court effectively punished Mr. Suter for a careless driving or dangerous driving causing death offence for which he was neither tried nor convicted. This was an error in principle that, as I will explain, resulted in the imposition of an unfit sentence.

(3) The Court of Appeal Erred in Finding That Vigilante Violence Cannot Be Considered at Sentencing [ 45 ] The sentencing judge found, correctly in my view, that the vigilante violence experienced by Mr. Suter could be considered — to a limited extent — when crafting an appropriate sentence. With respect, the Court of Appeal erred in concluding otherwise. This error also contributed to the 26-month custodial sentence it imposed. [ 46 ] As I have observed, sentencing is a highly individualized process: see Lacasse , at para. 54 ; R. v.

Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 82 ; Nasogaluak , at para. 43 . In R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, this Court stated that a sentencing judge must have “sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender” (para. 38). Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences.

Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.

[47] There is no rigid formula for taking collateral consequences into account. They may flow from the length ofsentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11; R. v. Bunn (1997), (MB CA), 118 Man. R. (2d) 300 (C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 (“Bunn (SCC)”), at para. 23;Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289.

In his text The Law of Sentencing(2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence: As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While notpunishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.[Emphasis added; p. 136.] I agree with Professor Manson’s observation, much as it constitutes an incremental extension of this Court’s characterization of collateralconsequences in Pham.

In my view, a collateral consequence includes any consequence arising from the commission of an offence, theconviction for an offence, or the sentence imposed for an offence, that impacts the offender. [48] Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(

a) of theCriminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they neverthelessspeak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(

b) of the Criminal Code.[2] The question is notwhether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether theeffect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or hercircumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.[3] [49] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence,or commission of the offence. In fact, “[w]here the consequence is so directly linked to the nature of an offence as to be almostinevitable, its role as a mitigating factor is greatly diminished” (Manson, at p. 137).

Nevertheless, in order to be considered at sentencing,collateral consequences must relate to the offence and the circumstances of the offender. [50] Professor Manson writes: “When an offender suffers physical injury as a result of an offence, this may be relevantfor sentencing purposes especially if there will be long-lasting effects” (p. 136). Though Professor Manson had in mind a scenario wherean offender is injured while committing a driving offence, in my view, his comments apply to any offender who suffers injury as a resultof an offence.

In fact, the attenuating effect of an injury on the sentence imposed will likely be lessened where the injury is so directlylinked to the offence as to be almost inevitable (see para. 49).

For instance, an injury resulting from an impaired driving offence (aforeseeable consequence of driving while impaired) may have less of an attenuating impact on the sentence imposed than if that sameinjury resulted from an unforeseeable event arising out of the offence. [51] Our courts have held that where an offender is attacked by fellow inmates in a prison and the attack is related to theoffence for which the offender is in custody, such violence may be considered as a factor at sentencing: see R. v. MacFarlane, 2012ONCA 82, 288 O.A.C. 114, at para. 3; R. v.

Folino, (ON CA), 2005 ONCA 258, 77 O.R. (3d) 641, at para. 29; R. v.Anderson, 2014 ONSC 3646, at paras. 14 and 18 . Although being assaulted by a fellow inmate is not the same thing as beingabducted and attacked by vigilantes, the rationale for taking these collateral consequences into account when sentencing an offenderremains. In both scenarios, attacks relating to the commission of the offence form part of the personal circumstances of the offender.

Toensure that the principles of individualization and parity are respected, these attacks are considered at sentencing. [52] Australian jurisprudence has recognized violent retribution by members of the public as a relevant collateralconsequence for sentencing. In R. v. Mamarika, 1982 ABCA 281 , [1982] FCA 94, 42 A.L.R. 94, the Federal Court of Australiaaccepted that the violence inflicted upon Mr. Mamarika by members of his community as a result of his role in killing the deceasedcould be taken into account at sentencing.

Specifically, it noted: . . . by reason of his action, the appellant brought on himself the anger of members of the community and . . ., as a result, he receivedsevere injuries from which he fortunately made a good recovery. So seen, it is a matter properly to be taken into account in determiningan appropriate sentence, without giving any sanction to what occurred. [p. 97] [53] I agree with this approach.

As indicated, violent actions against an offender for his or her role in the commission ofan offence — whether by a fellow inmate, or by a vigilante group — necessarily form part of the personal circumstances of that offender,and should therefore be taken into account when determining an appropriate sentence. [54] In this case, the vigilante violence flowed from the public’s perception of the events of May 19, 2013, and the tragicconsequences of Mr. Suter’s actions.

Although this violence did not flow directly from the commission of the s. 255(3.2) offence (nor didit flow from the length of the sentence or the conviction itself), it is nevertheless a collateral consequence as it is inextricably linked tothe circumstances of the offence. [55] The Court of Appeal acknowledged that Mr. Suter was “brutally attacked, beaten violently, and had a digit savagelyremoved with shears in a form of vigilante violence” (para. 106). This attack was retaliation for Mr.

Suter’s role in Geo Mounsef’s death.The court held, however, that because these facts did not “emanate from state misconduct”, they should not change “what wouldotherwise be a proportional sentence” (ibid.). [56] I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case —collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of theoffence or the moral blameworthiness of the offender.

There is, however, no requirement that collateral consequences emanate from statemisconduct in order to be considered as a factor at sentencing: see Bunn (SCC), at para. 23; R. v. McDonald, 2016 NUCA 4, at paras. 41-44 ; R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 18-20; R. v. Bell, 2013 MBQB 80, 290 Man. R. (2d) 79, atpara. 87; Folino, at para. 29; R. v. Heatherington, 2005 ABCA 393, 380 A.R. 395, at paras. 5-6; R. v. Owens (2002),

(ON CA), 161 O.A.C. 229, at paras. 10-11; R. v. Abouabdellah (1996), (QC CA), 109 C.C.C. (3d) 477 (Que. C.A.), atp. 480; R. v. Carroll (1995), (BC CA), 56 B.C.A.C. 138, at paras. 11-12. [57] As such, the violence suffered by Mr. Suter at the hands of non-state vigilante actors can be considered whendetermining an appropriate sentence. The violent attack was related to Mr. Suter’s role in Geo Mounsef’s death, and both the permanentphysical injury and psychological trauma resulting from this attack necessarily form part of Mr. Suter’s personal circumstances.

In lightof the sentencing principles of individualization and parity, the vigilante attack against Mr. Suter was a relevant collateral consequence toconsider at sentencing. [58] That said, this particular collateral consequence should only be considered to a limited extent. Giving too muchweight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. Thisshould be avoided. Vigilantism undermines the rule of law and interferes with the administration of justice.

It takes justice out of thehands of the police and the courts, and puts it into the hands of criminals. As a general rule, those who engage in it should expect to betreated severely. [59] In sum, the sentencing judge was entitled to consider, to a limited extent, the vigilante violence suffered by Mr. Suterfor his role in Geo Mounsef’s death. As such, the Court of Appeal erred when it refused to give any effect to it.

(4) Conclusion [60] The errors committed by the Court of Appeal — sentencing Mr. Suter for an uncharged offence of careless drivingor dangerous driving causing death, and failing to consider the vigilante violence suffered by Mr. Suter — contributed to the 26-monthcustodial sentence and, in my respectful view, rendered it unfit. [61] I turn now to the errors committed by the sentencing judge. B. The Sentencing Judge’s Decision

(1) The Sentencing Judge Erred in Finding a Mistake of Law in This Case [62] The sentencing judge erred in concluding that Mr. Suter was acting under a mistake of law when he refused toprovide the police with a sample of his breath. The sentencing judge made no express finding as to whether Mr. Suter honestly butmistakenly believed that his refusal was lawful — an essential element of mistake of law. Without such a finding, it was not open to thesentencing judge to conclude that there was a mistake of law in this case. With respect, this error had a material impact on the sentencingjudge’s assessment of Mr.

Suter’s moral culpability, and it contributed in no small measure to the manifestly inadequate sentence of fourmonths’ imprisonment imposed by him. [63] A person’s knowledge of the illegality of his or her actions may be a relevant factor to consider at sentencing.However, as with all factors considered at sentencing, the significance (and potential mitigating effect) of this knowledge will varydepending on the circumstances. [64] A mistake of law is a legal concept with rigorous requirements. In my view, it occurs only where a person has anhonest but mistaken belief in the legality of his or her actions.

Although it is not a defence to a criminal charge (s. 19 of the CriminalCode; R. v. Forster, (SCC), [1992] 1 S.C.R. 339, at p. 346), mistake of law can nevertheless be used as a mitigatingfactor in sentencing (see R. v. Pontes, (SCC), [1995] 3 S.C.R. 44, at para. 87; R. v. MacDonald, 2014 SCC 3, [2014] 1S.C.R. 37, at para. 61; Kenny’s Outlines of Criminal Law (19th ed. 1966), by J. W. Cecil Turner, at pp. 61-62).

This is because offenderswho honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — incommitting the same offence — are unsure about the lawfulness of their actions, or know that their actions are unlawful. [65] Confusion or uncertainty as to the lawfulness of one’s actions does not, in my view, meet the legal requirements formistake of law. However, such confusion may still be relevant to the sentencing analysis depending on the facts of the particular case.

Itsmitigating effect, if any, will necessarily be less than in a situation where there is a true mistake of law. [66] In this case, the sentencing judge made the following findings of fact:

(1) Mr. Suter was initially confused by thelawyer’s legal advice; (2) in the end, the lawyer expressly told Mr. Suter not to provide the police with a breath sample; and (3)Mr. Suter refused to provide the police with a breath sample because of the lawyer’s ill-informed legal advice. [67] However — and this is critical — the sentencing judge made no express finding as to whether or not Mr.

Suterhonestly but mistakenly believed that, in refusing to provide the police with a breath sample, he was not committing a criminal offence.At para. 76 of his reasons, the sentencing judge stated: In this case, however, the Court has accepted the testimony of Mr. Suter as to what the lawyer said, and finds that the refusal was basedon the lawyer expressly telling him not to provide a sample. This does not absolve Mr. Suter, as a mistake of law is not a defence but itfundamentally changes Mr. Suter’s moral culpability. In other words, the sentencing judge accepted Mr.

Suter’s testimony as to what the Brydges lawyer said (do not provide a breath sample).The sentencing judge also accepted that Mr. Suter’s refusal was based on the Brydges lawyer’s express instruction. The sentencing judgethen concluded that these findings constitute a mistake of law and therefore fundamentally changed Mr. Suter’s moral culpability. [68] With respect, this is where the sentencing judge erred. These two findings do not, on their own, meet therequirements for mistake of law. As indicated, an additional finding that Mr.

Suter honestly but mistakenly believed that, in refusing toprovide a breath sample, he was not committing a criminal offence was required. In this regard it must be remembered that an accusedwho raises mistake of law as a mitigating factor on sentence has the onus of establishing, on a balance of probability, that the requisiteelements of a mistake of law have been made out.

[ 69 ] Based on the record before us, this Court is not in a position to infer that the sentencing judge made an implicit finding that Mr. Suter had an honest but mistaken belief in the lawfulness of his refusal. Though Mr. Suter testified that he thought it was “within [his] rights not to blow”, and did not think that the lawyer would be telling him to do something that was illegal, this evidence must be assessed in light of the other evidence adduced at the sentencing hearing, and equally important, evidence that was not adduced. [ 70 ] Nothing in the record suggests that the lawyer told Mr.

Suter it was not an offence to refuse to provide a breath sample to police, nor did the lawyer inform Mr. Suter that he was legally justified in refusing because, for example: (1) the police lacked reasonable grounds to make the breath demand; or

(2) Mr. Suter had a medical impediment that would justify his refusal. To be clear, this is not to suggest that a mistake of law can only be met when an accused not only believes his or her conduct is lawful, but also knows the legal basis for its legality. Rather, my point here is that, if there was evidence that such an explanation had been provided by the lawyer, then we could more safely infer that Mr. Suter honestly believed in the lawfulness of his conduct, despite the sentencing judge’s failure to make an express finding in this regard.

Indeed, the lawyer testified — and it was not disputed — that his instruction to Mr. Suter was a strategic choice based on a misunderstanding of the current state of the law. Accordingly, there is an alternate available inference that the lawyer’s instruction to refuse to provide a breath sample was articulated in terms of sentencing strategy, which presumes an awareness of the illegality of refusing to provide a sample. [ 71 ] Furthermore, Mr. Suter admitted that the police officer told him that it was an offence to refuse to provide a breath sample.

Of course, it is understandable, particularly in the context of an arrest, for a detainee to accept the advice of his or her lawyer, who is aligned in interest, over that of a police officer. I only mention this admission by Mr. Suter to note that he was likely not blindsided by the possibility that refusing to provide a breath sample may be a criminal offence. Regardless, mistake of law turns on the accused’s subjective belief in the legality of his or her conduct.

While a police officer’s instruction that certain conduct amounts to an offence is not dispositive of that subjective belief, it may be relevant to the sincerity of the belief. [ 72 ] In light of all this, the only conclusion that this Court can safely infer from the record is that Mr. Suter was confused by the lawyer’s advice — a finding that is consistent with the sentencing judge’s description of Mr. Suter’s call with the Brydges lawyer. [ 73 ] But mere confusion as to the lawfulness of one’s actions is insufficient to ground a mistake of law. Though Mr.

Suter’s situation was unfortunate, it does not justify departing from the rigorous requirements of mistake of law. [ 74 ] That said, while Mr. Suter’s state of confusion did not give rise to a mistake of law, this does not end the matter. When considering what mitigating weight — if any — Mr. Suter’s uncertainty as to the lawfulness of his refusal will have, it cannot be ignored that this uncertainty stemmed from ill-informed legal advice. As explained in Clayton C. Ruby, Gerald J. Chan and Nader R.

Hasan’s Sentencing (8th ed. 2012): The pointlessness of punishing individuals who have no idea they were breaking the law is quickly apparent . . . . Still less does it make sense to punish someone who had sought legal advice , or set upon a legal position without that assistance. [Emphasis added; footnotes omitted; §5.319.] As indicated, Mr. Suter sought legal advice, was given incorrect legal advice, and refused to cooperate with police based on it. These facts go to attenuate Mr. Suter’s level of moral blameworthiness. [4] [ 75 ] In saying this, I wish to be clear that Mr.

Suter’s case is unique, and the mitigation afforded to him should not be misconstrued as suggesting that imperfect legal advice presumptively mitigates a sentence. Here, the Brydges lawyer testified that he did not know the law on the s. 255(3.2) offence, and that he deliberately tried to steer Mr. Suter away from providing the police with a breath sample. The sentencing judge accepted Mr. Suter’s evidence that the lawyer expressly told him not to provide the police with a breath sample — i.e., the lawyer advised Mr. Suter to break the law. Moreover, the sentencing judge found that the reason Mr.

Suter did not comply with the breath demand was because he was following his lawyer’s erroneous advice; there was no finding that the refusal was a strategic choice on Mr. Suter’s part. In the circumstances, these unique facts contributed to Mr. Suter’s uncertainty regarding the lawfulness of his refusal, and therefore served to attenuate his moral blameworthiness. [ 76 ] In sum, the sentencing judge erred when he found that the erroneous legal advice given to Mr. Suter and upon which he acted amounted to a mistake of law, and therefore fundamentally changed Mr. Suter’s moral culpability.

This error contributed in no small measure to the manifestly inadequate sentence of four months’ imprisonment imposed by the sentencing judge.

(2) The Sentencing Judge Erred by Giving Undue Weight to Non-Impairment as a Mitigating Factor [ 77 ] Although a finding of non-impairment is a relevant mitigating factor when sentencing an offender for a refusal offence, its mitigating effect must be limited. In my view, the sentencing judge erred by giving undue weight to Mr.

Suter’s non- impairment as a mitigating factor — an error that also contributed to the four-month custodial sentence. [ 78 ] The sentencing judge noted the following: It would be contrary to the fundamental principle of proportionality to equate the moral blameworthiness of a sober person who follows bad legal advice in refusing to comply with a police demand, on the one hand, with the moral culpability of the person who gets drunk and kills someone, on the other. [para. 66] I agree.

In fact, I would go further — 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. The question then becomes: To what extent? [ 79 ] Answering this question is, of course, a fact-driven exercise that depends on the specific circumstances in any given case.

That said, in my view, there are strong policy reasons for limiting the mitigating effect of non-impairment at a sentencing hearing for a refusal offence under the Criminal Code , be it refusing to provide a breath sample simpliciter under s. 254(5) ; refusing to provide a breath sample after having caused an accident resulting in bodily harm under s. 255(2.2) ; or refusing to provide a breath sample after

having caused an accident resulting in a death under s. 255(3.2) . [ 80 ] First, overemphasizing the mitigating effect of non-impairment risks transforming sentencing hearings for refusal offences into de facto impaired driving trials. This would add to the complexity and length of these proceedings, and deplete scarce judicial resources. [ 81 ] Second, while refusal offences are certainly aimed at deterring drunk driving, s. 255(3.2) of the Criminal Code , like ss. 254(5) and 255(2.2) , is also in its essence an evidence gathering tool.

By refusing to provide a breath sample, a person is depriving the police, the court, the public at large, and the family of the deceased of the most reliable evidence of impairment — or lack thereof. The act of refusing is the gravamen of the offence.

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. [ 82 ] Third, there is a real risk that relying too heavily on non-impairment as a mitigating factor at sentencing would create an incentive for individuals not to provide the police with a breath sample. Parliament sought to eliminate the incentive for refusal through its 2008 amendments to the Criminal Code : see

An Act to amend the Criminal Code and to make consequential amendments to other Acts , S.C. 2008, c. 6, s. 21(3) , adding s. 255(2.2) and (3.2) . Before 2008, there was no aggravated offence for refusing to provide a breath sample where bodily harm or death occurred — there was only the offence of refusing to provide a breath sample simpliciter , which carried with it a maximum penalty of five years imprisonment.

There were, however, aggravated offences for impaired driving and driving “over 80” where bodily harm or death occurred, which carried with them maximum penalties of 10 years and life imprisonment, respectively. [ 83 ] In consequence, the pre-2008 regime created an incentive to refuse to provide a breath sample where bodily harm or death occurred because of the significantly more lenient penalty that attached to such an offence compared to the penalty that attached to the aggravated offences for impaired driving and driving “over 80”.

In 2008, Parliament amended the Criminal Code , and created two new offences: refusing to provide a breath sample where bodily harm occurs ( s. 255(2.2) ) and refusing to provide a breath sample where death occurs ( s. 255(3.2) ). Because these new offences carried the same maximum penalties as the aggravated offences for impaired driving and driving “over 80”, Parliament eliminated any incentive to refuse to provide the police with a breath sample. [ 84 ] The mitigating weight given to non-impairment at sentencing cannot operate in a way that undermines Parliament’s intention in this regard.

If non-impairment is treated as a significant mitigating factor, this could motivate persons to refuse to provide the police with a breath sample, be convicted of the refusal offence, and then subsequently argue at the sentencing hearing that they were not impaired. If successful, offenders would benefit from a significantly reduced sentence than what they would have received if convicted of impaired driving or driving “over 80”. [ 85 ] To avoid the concerns outlined above, the mitigating effect of non-impairment on the offender’s sentence should be limited.

In addition, the onus must be on the offender to establish on balance that he or she was not impaired at the time the offence was committed. 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. [ 86 ] In this case, the sentencing judge placed considerable weight on the fact that Mr. Suter was not impaired at the time of the accident.

He stated that “[i]f the Court were imposing a sentence for impaired driving causing death in these circumstances, the Court would view the sentence suggested by the Crown [three years] as too low” (para. 75). In other words, had Mr. Suter been convicted of impaired driving causing death, the sentencing judge would have imposed a sentence of more than three years’ imprisonment. But the sentencing judge found that Mr. Suter was not impaired when he caused Geo Mounsef’s death.

As indicated, he concluded that what occurred in this case was an “accident caused by a non-impaired driving error” (para. 76 (emphasis added)). The evidence of non-impairment — in combination with other mitigating factors, including the bad legal advice Mr. Suter received — “moved the Court from its starting position” ( ibid. ). [ 87 ] Reducing a sentence from over three years’ imprisonment to four months’ imprisonment is a substantial drop. This drastic shift indicates that Mr.

Suter’s non-impairment must have contributed in no small measure to the manifestly inadequate sentence of four months’ imprisonment imposed by the sentencing judge.

(3) Conclusion [ 88 ] The errors committed by the sentencing judge — mischaracterizing what occurred in this case as a mistake of law and giving undue weight to Mr. Suter’s non-impairment as a mitigating factor — contributed to his decision to impose a four-month custodial sentence. This sentence, even in light of the unique mitigating factors and collateral consequences in this case, is manifestly inadequate for the s. 255(3.2) offence.

Accordingly, appellate intervention is warranted. [ 89 ] Having concluded that both the Court of Appeal and the sentencing judge committed errors in principle that impacted the sentences imposed, I turn now to what would have been an appropriate sentence for Mr. Suter. C. An Appropriate Sentence for Mr. Suter [ 90 ] As indicated, 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, depending on the 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. 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 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. [ 91 ] I pause to note that there is very little sentencing jurisprudence on s. 255(3.2).

My colleague, Justice Gascon, correctly points out that, in the handful of decisions which have been reported, “there are no ‘similar offenders . . . in similar circumstances’ against which [Mr. Suter’s] sentence can be reasonably measured” (para. 191). In light of this, the s. 255(3.2)

jurisprudence offers little guidance. [ 92 ] Mr. Suter’s case is unique. While the consequences of his actions are undoubtedly tragic, and the gravity of the refusal offence is significant, there are several factors in this case that, in combination, operate to reduce Mr. Suter’s sentence. The fact that Mr.

Suter was not impaired at the time of the accident; that he refused to provide the police with a breath sample because of ill- informed and incorrect legal advice; and that he was attacked by vigilantes and had his thumb cut off with pruning shears, are all factors that must be taken into account in crafting an appropriate sentence. [ 93 ] But for these 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.

Unlawfully refusing to provide the police with a breath sample after having caused an accident resulting in a death is an extremely serious offence. Parliament has made this clear. It carries with it a maximum punishment of life imprisonment — and with good cause. 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. [ 94 ] That said, in my view, the various attenuating factors in this case operate to remove Mr. Suter’s sentence from the normal range for a s. 255(3.2) offence (see para. 90 above), and render the 26-month sentence imposed by the Court of Appeal unfit. By the same token, these factors do not justify the four-month sentence imposed by the sentencing judge.

With respect, that sentence does not properly account for the gravity of the offence, rendering it manifestly unfit. [ 95 ] In the end, I am of the view that a sentence of 15 to 18 months’ imprisonment would have been a fit sentence at the time of sentencing. Such a sentence takes into account the several attenuating factors that make this case unique, while not losing sight of the gravity of the s. 255(3.2) offence. [ 96 ] In concluding, as I have, that a sentence of 15 to 18 months would have been a fit sentence in Mr.

Suter’s case, I am mindful of the reasons of my colleague who would sustain as fit the 4-month custodial sentence imposed by the sentencing judge. While I respectfully disagree with much of my colleague’s reasoning and his ultimate conclusion, I propose to limit my remarks to two matters. [ 97 ] First, it is important to recognize that the sentencing judge, of his own accord, stated that but for the various mitigating factors available to Mr. Suter, including the improper legal advice he received and his non-impairment, he would have imposed a sentence greater than the 36-month sentence the Crown was seeking.

I take from this that he would have imposed a sentence in the range of 42 to 48 months. However, in light of the various mitigating factors, he chose to go well below that range, arriving at a custodial sentence of four months. In other words, he took 38 to 44 months off the sentence he otherwise would have imposed.

Respectfully, I am of the view that in doing so, he arrived at a sentence that was demonstrably unfit. [ 98 ] In so concluding, I take no issue with the sentencing judge that the mitigating factors in this case warranted a substantial reduction from the sentencing range he otherwise would have sanctioned: 42 to 48 months. I do however take issue with the size of the reduction. In my view, it unduly minimized the gravity and seriousness of Mr. Suter’s crime. [ 99 ] The reduction which I consider to be appropriate — 42 to 48 months down to 15 to 18 months — is a very substantial reduction.

It recognizes the mitigating factors available to Mr. Suter, without losing sight of Parliament’s clear and unmistakeable message that refusing to provide a breath sample in circumstances where an accident resulting in death occurs is a very serious crime punishable by up to life imprisonment. [ 100 ] My colleague, on the other hand, sees no reason to interfere with the four-month sentence imposed at the sentencing hearing, even though he himself would have “weighed the gravity of the offence more heavily than the sentencing judge” (para. 170

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