SUPREME COURT OF CANADA - SENTENCING FOR REFUSAL AFTER CAUSING AN ACCIDENT RESULTING IN A DEATH

Mr. Suter drove his vehicle onto a restaurant patio, killing a two‑year‑old child. The police demanded a breath sample after the accident but he refused, on the advice of a 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, and with impaired driving causing death and impaired driving causing bodily harm. Sometime after being charged, Mr. Suter was abducted by vigilantes who cut off his thumb with pruning shears for his role in the child’s death. He eventually pleaded guilty to the refusal offence and the other charges were withdrawn. The sentencing judge imposed a sentence of 4 months jail.  The Crown's appeal of that sentence was allowed and the Alberta Court of Appeal imposed a sentence of 26 months jail.  The Supreme Court of Canada allowed Mr. Suter's appeal in part and sentenced him to time served but upheld the 30 month driving prohibition:

In Mr. Suter'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, he 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 him at this time — it would cause him undue hardship and serve no useful purpose. R. v. Suter, 2018 SCC 34

SUPREME COURT OF CANADA - IMPAIRED DRIVING TRAFFIC STOP ASSISTS IN MURDER INVESTIGATION

The Supreme Court of Canada has dismissed Mr. Pearson’s application for leave to appeal his murder convictions – Pearson v. R., 2018 CANLII 30057 (SCC). Some of the evidence used to convict him was obtained after he was stopped pursuant to an impaired driving investigation (see May 28, 2017 blog entry; R. v. Pearson, 2017 ONCA 389).

SENTENCE - SIX MONTH JOINT SUBMISSION UPHELD

The sentencing judge, who was sentencing Mr. Seppola for refusal, accepted a joint submission of six months’ jail and a three-year driving prohibition. He took into account six prior convictions for impaired driving and two prior convictions for driving while disqualified, and noted the convictions were dated, the first one in 1980 and the last in 2007. Mr. Seppola appealed the sentence and his appeal was dismissed, but not before some strong comments from the Alberta Court of Appeal:

There is no reason whatsoever to interfere with this sentence. It is not a harsh sentence that exceeds a sentence in the appropriate range. Indeed, this sentence may be characterized as lenient. The appellant is a recidivist impaired driver and his criminal record would have justified a much harsher sentence. R. v. Seppola, 2018 ABCA 116

SUPREME COURT OF CANADA - R. V. KRAUS

The Supreme Court of Canada has dismissed Ms. Kraus’ application for leave to appeal her convictions for impaired driving causing bodily harm and dangerous driving causing bodily harm – Kraus v. R, 2018 CANLII 28112.  One of the issues before the Court was that the trial judge had erred in taking judicial notice of the evaporation rate of alcohol (see December 2, 2017 blog entry - R. v. Kraus, 2017 ONCA 458).

SENTENCE - TRAFFIC VOLUME AT TIME OF DRIVING

Mr. Denny's sentence appeal was dismissed, and there was an interesting comment about traffic volume. The sentencing judge had said "However, as with any offence, there are degrees of seriousness.  In Mr. Denny’s case, both stops occurred during times of the day when traffic volumes would have been quite light, making the risk to the public reduced substantially . . . ".

However the Nova Scotia Court of Appeal held that "At the sentencing, neither the Crown nor defence counsel made any comments or led evidence on the volume of traffic, vehicular or pedestrian, present at the time Mr. Denny was stopped by the police. The sentencing judge was not asked to take traffic volumes into consideration by any party.  The traffic volumes were simply not an issue at the sentencing.  Why the sentencing judge felt it necessary to refer to them and to take them into consideration as a mitigating factor in determining sentence is somewhat of a mystery. Further, his finding that the risk is somehow reduced when someone is driving while impaired at a time of day when vehicular traffic may be lighter is not supported by any evidentiary basis." R. v. Denny, 2018 NSCA 11