Muenz Law Office Calgary Criminal Defence Lawyer

Appeals court tosses short sentence for much longer one

Most people would agree that a man who admitted to drinking, then driving in a rage at a high rate of speed over a restaurant patio before plowing into and killing a 2-year-old child as he dined with his parents deserves a long stint in prison.

Yet an Alberta court handed down a paltry sentence of only four months behind bars, despite the outrage of community members and the boy's family. The judge reasoned that the defendant's lawyer had advised him poorly when he instructed him to refuse to give a breath sample, the only charge on which he was convicted. The man pleaded guilty to that offence and did not get a conviction for impaired driving.

Even so, he was back on the streets after only 80 days or incarceration at Calgary Correctional Centre. Most defendants would thank their lucky stars to get such a break, but not this one. He appealed the length of his short sentence and his driving ban.

So did the Crown, and this week the Court of Appeal in Alberta handed down its decision. The defendant's appeal was dismissed and the four-month sentence tossed out in favor of 26 months behind bars.

The ruling hinged in part on the advice of the defence lawyer from legal aid instructing the defendant that he was within his rights to refuse the breath test. The court determined that his counsel had misunderstood the new law under Harper regarding a refusal to give a breath sample when a fatality occurs. A refusal after a fatal collision may result in a sentence of life in prison as compared to the older law's five year maximum.

This case illustrates the importance of retaining competent counsel who is prepared to advise you accurately about your rights given the circumstances of your charges.

Source: Edmonton Journal, "Paula Simons: Justice for Geo? Alberta's appeal court has harsh words and tougher sentence for Richard Suter," Paula Simons, Aug. 10, 2016

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