The facts of R. v. Suter are simple but do not detract from the gruesome and avoidable tragedy that occurred on that day.

Mr. Suter and his wife went to dinner at Chili’s restaurant and each had 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.

While the vehicle pulled into the space, Mrs. Suter 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, slammed into the restaurant wall.

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 thirty 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, taken to the police station, and a breath demand was made.

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 and Mr. Suter complied. During the conversation, the 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 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.

Mr. Suter was charged with three offences:

• s. 255(3.2): Refusing to Provide a Breath Sample After Causing an Accident Resulting in a Death,
• s. 255(3): Impaired Driving Causing Death, and
• s. 255(2): Impaired Driving Causing Bodily Harm

Sometime after this, Mr. Suter was abducted by vigilantes from his home in the middle of the night. Three hooded men handcuffed him, placed a canvas bag over his head and drove him to a secluded forest. When they arrived, they cut off his thumb with pruning shears, and left him unconscious in the snow. Later, Mrs. Suter was also attacked by vigilantes in a shopping mall parking lot. Both incidents were linked to Mr. Suter’s role in Geo Mounsef’s death.

On June 5, 2015, Suter entered a plea of guilty to the offence of Refusing to Provide a Breath Sample After Causing an Accident Resulting in a Death and the other charges were withdrawn by the Crown. The sentencing judge imposed a sentence of four months’ imprisonment coupled with a thirty-month driving prohibition.

On December 17, 2015, following a Crown appeal, the Court of Appeal of Alberta found that the sentencing judge made several errors in his decision, and that these errors resulted in an unfit sentence.

• First, the court found that the sentencing judge erred in principle in concluding that Suter was acting under a mistake of law when he refused to provide the police with a breath sample. The deficient legal advice did not constitute a mistake of law and it could not be used to mitigate Suter’s sentence.
• Second, the court found that the sentencing judge failed to consider as a relevant aggravating factor the fact that Suter chose to drive while distracted by his health and pre-existing alcohol problems.
• 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.

In response to these errors, the Court of Appeal of Alberta increased the custodial sentence from four months to twenty-six months. It did not interfere with the thirty-month driving prohibition.

On October 11, 2017, the Supreme Court of Canada heard Suter’s appeal. Judgement was subsequently rendered on June 29, 2018 in a 6-1 decision with Moldaver J. writing for the majority and Gascon J. dissenting alone.

In the full decision, Moldaver provides an in-depth review of sentencing principles, the errors of the sentencing judge, the errors of the Court of Appeal and finally discusses what an appropriate sentence of would be.  He then provides insightful commentary into each. A fundamental overview of each section is provided below.

A sentence that falls outside of a certain sentencing range is not necessarily unfit. 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. 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.

Moldaver J. outlines two issues with the sentencing judge’s findings:

1. Did the Sentencing Judge Err in Finding a Mistake of Law in This Case? (Yes)

2. Did the Sentencing Judge Err by Giving Undue Weight to Non-Impairment as a Mitigating Factor? (Yes)

The errors committed by the sentencing judge — mischaracterizing what occurred in this case as a mistake of law and giving undue weight to 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.

Both of these issues are addressed in brief, below.

The sentencing judge erred in concluding that Suter was acting under a mistake of law when he refused to provide the police with a sample of his breath. The sentencing judge made no express finding as to whether Suter honestly but mistakenly believed that his refusal was lawful — an essential element of mistake of law. This error had a material impact on the sentencing judge’s assessment of Suter’s moral culpability, and it contributed to the inadequate sentence of four months’ imprisonment.

In this case, the sentencing judge made the following findings of fact:

• First, Suter was initially confused by the lawyer’s legal advice,
• Second, the lawyer expressly told Suter not to provide the police with a breath sample, and
• Third, Suter refused to provide the police with a breath sample because of the lawyer’s ill-informed legal advice.

However, the sentencing judge made no express finding as to whether or not Suter honestly but mistakenly believed that, in refusing to provide the police with a breath sample, he was not committing a criminal offence. These findings do not meet the requirements for mistake of law.

Moldaver comments –

“In sum, the sentencing judge erred when he found that the erroneous legal advice given to Suter and upon which he acted amounted to a mistake of law, and therefore fundamentally changed Suter’s moral culpability. This error contributed in no small measure to the manifestly inadequate sentence of four months’ imprisonment imposed by the sentencing judge” (at para. 76).

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. The sentencing judge also erred by giving undue weight to Suter’s non-impairment as a mitigating factor — an error that also contributed to the four-month custodial sentence. 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?

Moldaver makes three findings to answer this question:

• 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.
• Second, while refusal offences are certainly aimed at deterring drunk driving is also in its essence an evidence gathering tool. 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, 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.

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.

Moldaver J. outlines three issues raised by the Appellant, Suter.

1. Did the Court of Appeal Err in Raising New Issues? (No)

2. Did the Court of Appeal Err by Effectively Sentencing Suter for the Uncharged Offence of Careless Driving or Dangerous Driving Causing Death? (Yes)

3. The Court of Appeal Erred in Finding that Vigilante Violence Cannot Be Considered at Sentencing (Yes)

Moldaver finds that the errors committed by the Court of Appeal – in sentencing Suter for an uncharged offence of Careless Driving or Dangerous Driving Causing Death and failing to consider the vigilante violence suffered by Suter – contributed to the twenty-six-month custodial sentence and rendered it unfit.

Each of these three issues are addressed in brief, below.

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” (at 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” (at para. 45). An issue will be properly raised if the parties are given notice and an opportunity to respond (at 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.

Suter claims that the Court of Appeal improperly raised two issues:

• First whether the vigilante violence he suffered should have been considered as a mitigating factor.
  • Moldaver dismisses this as both parties addressed it prior and was thus not legally and factually distinct from the issues raised by the parties

• Second whether his manner of driving should have been treated as an aggravating factor.
  • Moldaver dismisses this and agrees it was new but finds it was properly raised.

The Court ultimately finds that the Court of Appeal met the requirements in Mian.

As a general rule, courts cannot sentence an offender in respect of a crime for which he or she has not been convicted. To do so would run counter to the presumption of innocence. However, the Court of Appeal did just that in this case. In arriving at a custodial sentence of twenty-six months, it effectively sentenced Suter for the uncharged offence of careless driving or dangerous driving causing death (under s. 115 of the Traffic Safety Act, and s. 249(4) of the Criminal Code, respectively). This error contributed to the imposition of a sentence that was unfit in the circumstances.

The Court of Appeal reinterpreted the evidence and improperly recast the accident as one caused by health and alcohol problems, anger, and distraction. Additionally, they made their own findings and relied on irrelevant facts to conjure up aggravating factors. Finally, they conclude that the Appellant was “impaired by distraction” which is both novel and confusing. In doing so, the court effectively punished Suter for a careless driving or dangerous driving causing death offence for which he was neither tried nor convicted.

The sentencing judge correctly found that the vigilante violence experienced by Suter could be considered — to a limited extent — when crafting an appropriate sentence. There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself. The Court twice cites (the illustrious and now retired) Professor Allan Manson (of Queen’s University) in his text, The Law of Sentencing (2001) in the decision in making this point.

“As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.”

And later:

“When an offender suffers physical injury as a result of an offence, this may be relevant for sentencing purposes especially if there will be long-lasting effects”

Moldaver comments –

“In sum, the sentencing judge was entitled to consider, to a limited extent, the vigilante violence suffered Suter for his role in Geo Mounsef’s death. As such, the Court of Appeal erred when it refused to give any effect to it” (at para. 59).

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 Suter’s sentence:

• Suter was not impaired at the time of the accident,
• He refused to provide the police with a breath sample because ofill-informed and incorrect legal advice, and
• He was attacked by vigilantes and had his thumb cut off with pruning shears.

These are all factors that must be taken into account in crafting an appropriate sentence. But for these factors, Moldaver opines that a sentence of three to five years in the penitentiary would not have been out of line. After further discussion and comments on Gascon J.’s dissent, Moldaver determines that a fit sentence at the time of sentencing would have been fifteen to eighteen months.

Taking this number, Moldaver then assesses the additional factors at this stage that warrant consideration:

• Suter has already served just over ten and a half months of his custodial sentence, and
• He has spent almost nine months awaiting this Court’s decision.

To now impose a sentence, that would have been appropriate at sentencing, would cause him undue hardship and serve no useful purpose. The Court finds it would not be in the interests of justice to reincarcerate Suter at this time and allows Suter’s appeal in part. It sets aside the sentence of twenty-six months’ imprisonment imposed by the Court of Appeal and replaces it with one of time served while upholding the thirty-month driving prohibition.

There are several major takeaways from this case.

• Refusing a breathalyzer after causing a fatal accident is as serious as the crime of drunk driving causing death,
• Poor legal advice is not a defence (as seen at the ONCA) but it is a mitigating factor (the sentencing judge and Gascon J. differentiate between legal vs strategic advice), and
• The actions of 3rd party actors (outside the justice system) can be mitigating (to a limited extent).

The last one of these causes the most concern. If unchecked, vigilante actors can have a major impact on an accused, but we must resist the urge to validate these actions and indirectly include them in the sentencing process.

The impact of external factors is important, however, in the sentencing process – especially when the factors are a result of an accused’s own actions. For example, in a criminal negligence case where both the driver and passenger are victims of an impaired driver’s marked departure and the driver is injured and maimed from the accident. While this alone is not a fit punishment, it is justly taken into account. Even here, the court identifies a slew of mitigating factors including:

• Suter’s guilty plea,
• His extreme remorse,
• His lack of criminal record, and
• Strong community support.

Yet, the vigilantism takes centre stage of his mitigation analysis.

At paragraph fifty-one, Moldaver discusses the scenario of when an offender is attacked by fellow inmates in a prison. The attack described is related to the offence for which the offender is in custody and he finds that such violence may be considered as a factor at sentencing. Although being assaulted by a fellow inmate is not the same thing as being abducted and attacked by vigilantes, the rationale for taking these collateral consequences into account when sentencing an offender remains. In both scenarios, attacks relating to the commission of the offence form part of the personal circumstances of the offender.

The wording of Moldaver’s analysis here is alarming. While inmates and vengeful hooded characters are both vigilantes, it appears that he is making both actors of the criminal justice system and thus validating (or at least normalizing as a unavoidable factor) their actions in some capacity. By doing so, and by drawing similarities to the hooded vigilantes, he inadvertently undermines his own point to condemn vigilantism. A read of this section, taken to it’s logical conclusion, would support the incorporation of fear and violence (suffered by incarcerated persons) into part of the sentence as mitigating factors. Based on this logic, should the courts sentence people convicted of crimes, that make them more soft targets in prison custody, to shorter sentences based on the likelihood that their time in prison will be more fraught with danger?

Moldaver appears to discuss prison justice or vigilantism very casually as a regular aspect of the justice system. At what point does it become disproportional? He says it “should only be considered to a limited extent.” How limited? What if Suter lost two thumbs? Is that worth another month off his sentence? Is a hand worth a year or a year and a half?

Recognizing vigilantism in the sentencing process is akin to negotiating with terrorists. As soon as you acknowledge that it can have an effect then you’re bargaining – even at a reduced rate. Perhaps Moldaver J. should take a page from insurance law (or the Pirate’s Code) and include a compendium of damages as an appendix to this decision that includes the value of each body part and how many months it’s worth – at the “Moldaver limited extent discount” of course. Maybe if Suter lost a limb he could circumvent the sentencing process all together.

While this is somewhat glib, it is an important thought. Have we forgotten the lessons of Aeschylus’ Oresteia already? Do we need Athena, the goddess of Justice, to appear and rescue us from the Erinyes or transform them into the Eumenides so save us from our lust for blood debts and disregard for due process? I’m not arguing that Moldaver has brought us one step closer to The Purge, but his comments could benefit from more discussion and explanation – especially in light of his long winded and exhaustive critiques of the lower courts.

Later, Moldaver clarifies his stance on vigilantism stating:

“Giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. This should be avoided. Vigilantism undermines the rule of law and interferes with the administration of justice. It takes justice out of the hands 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 be treated severely” (at para. 58).

Perhaps I am being uncharitable to Moldaver J. as this is a unique case, and even the dissenting Gascon J. admits that he was unable to find any such case where the individual convicted, and his wife, both suffered appalling vigilante attacks for guidance. However, it is upsetting to see his misuse of Prof. Manson’s quotes to bolster his position when even Moldaver admits they’re somewhat misapplied from Prof. Manson’s contextual intention (at para. 50). Furthermore, he makes the strange move of reaching to Australian jurisprudence at (at para. 52). when he cannot find enough relevant Canadian case law to support his argument.

Hopefully, Moldaver’s comments will be interpreted by trial judges in the future to clarify and expand upon the Court’s condemnation of vigilantism and the importance of due process.