Canadian Underwriter

Novel concept of ‘impaired by distraction’ quashed by Supreme Court of Canada

July 4, 2018   by Greg Meckbach

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Driving while engrossed in a heated conversation may be a form of distraction, but is not a form of impairment, the Supreme Court of Canada suggested in a divided ruling released Friday.

In May 2013, a toddler died after an SUV smashed into a restaurant at an Edmonton strip mall. Court records indicate Richard Suter was having an animated discussion with his wife after driving his vehicle into a parking spot. He hit the gas instead of the brake after his wife pointed out that the vehicle was still in motion.

Two-and-a-half-year-old Geo Mounsef, who was eating at the restaurant with family, was pinned against a wall and died later of his injuries. Suter pleaded guilty to the criminal charge of refusing to provide a breath sample after a motor vehicle accident causing death. The main issue dividing judges at all court levels was the length of time that Suter should spend in jail.

The debate about jail time included a concept of “impaired by distraction,” effectively suggesting a serious level of driver distraction on par with that of driving while impaired by alcohol.

The Court of Appeal of Alberta ruled in 2016 that a lower court should have considered Suter’s decision to drive under the circumstances as an aggravating factor that merited a longer jail sentence. The lower court’s sentence of four months was increased to 26 months by the Court of Appeal for Alberta. As a result of Friday’s Supreme Court of Canada ruling, Suter’s sentence is now reduced to about 18 months for time served.

What Suter admitted in court demonstrated that he “operated his vehicle while seriously distracted,” the Court of Appeal of Alberta found. “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.”

The Court of Appeal of Alberta used this line of reasoning “primarily as a way of circumventing the [provincial court] judge’s finding that this accident was simply the result of a ‘non-impaired driving error,’” Supreme Court of Canada Justice Michael Moldaver wrote. “The concept of ‘impaired by distraction’ is both novel and confusing, and I would not endorse it.”

Moldaver said Alberta’s Appeal Court was in effect trying to sentence Suter for offences with which he had not been charged (such as dangerous driving causing death).

Initially, Provincial Court of Alberta Justice Larry Anderson sentenced Suter to four months in jail and a 30-month driving ban. The 30-month driving ban still stands. The crown attorney had asked for a three-year prison sentence.

It is a criminal offense for a motorist to refuse, “without reasonable excuse,” to provide a breath sample when a peace officer “has reasonable grounds to suspect that a person has alcohol or a drug in their body” and that the person has driven a vehicle within the past three hours. The maximum prison sentence is 18 months if no one is injured. But if a breath sample is refused after a vehicle accident, the maximum sentence is 10 years if the accident resulted in bodily harm, and a life sentence if the accident resulted in death.

Although the Supreme Court rejected the Alberta Appeal Court’s findings on “impairment by distraction,” it nevertheless imposed a sentence length similar to that of the appellate court. Ultimately, the top court took issue with how both the provincial and appeal courts dealt with the aggravating and mitigating factors.

In increasing the sentence beyond the four months imposed by the provincial court, the majority of the Supreme Court rejected the provincial court’s finding that Suter’s refusal to provide a breath sample was based on a “mistake of the law.”

Suter claimed to have been advised by a lawyer that he called from jail not to provide  breath sample. The lawyer “denied expressly telling Mr. Suter not to blow,” Anderson wrote in his 2015 sentencing ruling. The judge accepted “Mr. Suter’s testimony that he found what the lawyer was saying to be full of jargon and hard to follow.”

But that should not have reduced Suter’s sentence, the Supreme Court of Canada found.

Justice Anderson “made no express finding as to whether Mr. Suter honestly but mistakenly believed that his refusal was lawful — an essential element of mistake of law,” the Supreme Court ruled. “Without such a finding, it was not open to the sentencing judge to conclude that there was a mistake of law in this case.”

Another mitigating factor considered by Justice Anderson  in sentencing Suter to four months was vigilante violence against Suter.

After the 2013 tragedy at the Edmonton restaurant, police arrived and found Suter “lying in a fetal position on the parking lot pavement,” the Court of Appeal for Alberta noted. What happened in the meantime is in dispute, but some witnesses reported that Suter had been pulled out of his vehicle, thrown to the ground, hit and kicked. He was later kidnapped and had his thumb cut off with pruning shears.

The Court of Appeal for Alberta erred when it refused to give any effect to the vigilante violence, the Supreme Court ruled. But this violence should only be considered to a limited extent.

“Giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process,” Moldaver wrote. “This should be avoided.”

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