Patio killer’s legal aid lawyer gets two-week suspension for bad advice
Law Society of Alberta panel splits over the sufficiency of jointly proposed penalty; case referred for criminal review
A Fort McMurray, Alta. lawyer who gave erroneous advice to the driver in a notorious case involving the death of a child on a restaurant patio has been handed a two-week suspension by the Law Society of Alberta.
Criminal lawyer Jason McKen was the counsel on duty in May 2013 when Richard Suter called legal aid following his arrest, shortly after driving his car onto the patio of an Edmonton restaurant, where he struck a server and a family of four, killing their two-year-old boy.
According to the law society ruling, Suter refused to provide a breath sample after McKen wrongly advised him that the penalty would be less than the one for impaired driving causing death.
Suter ultimately served 10 months in jail for the refusal offence, even though the trial judge found he was likely not impaired. Meanwhile, a Supreme Court of Canada judge who heard Suter’s appeal suggested that he may have avoided a custodial sentence or even criminal charges altogether had he ignored McKen’s advice.
The three-member hearing committee was split over the appropriateness of the penalty, which was jointly submitted by counsel for McKen and the LSA.
Writing for the majority, Adjudicator Deanna Steblyk wrote that the panel may have ordered a longer suspension without the joint submission, but that two weeks was within the range of appropriate penalties, considering McKen’s early acceptance of responsibility and cooperation throughout both Suter’s legal proceedings and his own professional misconduct case.
“The Majority do not consider Mr. McKen an ongoing threat to the public. Combined with the other consequences Mr. McKen has faced and may face in the future, the Majority are satisfied that the jointly-proposed sanction is sufficient to effect the necessary specific and general deterrence,” Steblyk wrote.
But in dissenting reasons, lay bencher Barbara McKinley slammed the “insufficient” sanction, finding the two-week suspension “brings the administration of justice into disrepute and is contrary to the public interest.”
“In this case, [Suter] lost his liberty due in no small part to the advice he was given about providing a breath sample,” she wrote, noting that the impact of the misconduct went far beyond his criminal record.
Following the incident, Suter and his wife became a victim of vigilantes – his thumb was cut off during an abduction, while she suffered broken bones and teeth in an assault.
Suter’s failure to provide a breath sample may have contributed to a public view that he was a drunk driver who killed a child, McKinley wrote.
The majority ruling questioned whether the violence could be attributed directly to McKen’s bad advice, noting that some of it occurred before his arrest. Still, McKinley concluded that the joint submission fell short.
“The suspension of two weeks does not adequately denounce the misconduct, especially in light of the harm suffered by the client,” she wrote. “The smooth functioning of the justice system depends in large part on the ability of a client to trust the advice of their lawyer. We trust that lawyers who practice in a certain area of law actually know the current state of that law. We must trust that our lawyers are not going to counsel us to commit criminal offences. An informed member of the public, when confronted with the facts of this case, would undoubtedly conclude that the administration of justice was in disarray.”
According to the ruling, McKen had been at the bar less than six years when he took the call from Suter. He was working on contract for Legal Aid Alberta under its Brydges duty counsel program, which provides summary advice to people arrested or detained by police.
McKen admitted that he was unaware at the time he advised Suter of a 2008 law change that created a new offence for refusal to provide a breath sample after a collision causing death, with a maximum sentence of life in prison.
Suter then refused to provide a breath sample to police on the basis of the advice, and eventually faced three charges: refusal following death, impaired driving causing death and impaired driving causing bodily harm.
When Suter pled guilty to the refusal offence, the decision says the other two charges were withdrawn and he was sentenced to four months imprisonment after the sentencing judge concluded the accident was caused by a non-impaired driving error. The judge also said that McKen “probably” told Suter expressly to refuse a sample, but that he could not be sure.
After the Crown challenged the sentence, Alberta’s Court of Appeal boosted Suter’s prison term to 26 months, before the nation’s top court reduced it again to time served – which by that stage was 10.5 months.
The committee majority were impressed by McKen’s “extensive efforts” to rehabilitate himself and his clean conduct record since the incident. His lawyer – who also practices defence work in Fort McMurray – told the panel that the misconduct was out of character for McKen, who “otherwise enjoys a good reputation and is both well-known and well-liked in the community.”
Still, all three members of the LSA hearing committee agreed that McKen’s case must be referred to Alberta’s solicitor general, since there were “reasonable and probable grounds” to believe that the lawyer had violated s.22 of the Criminal Code, which deals with counselling other people to commit offences.
“As pointed out by LSA counsel, in the Supreme Court of Canada Decision, the Supreme Court of Canada noted that R.S.'s sentencing judge ‘accepted [Suter's] evidence that the lawyer expressly told him not to provide the police with a breath sample – i.e., the lawyer advised [Suter] to break the law,’” Steblyk wrote. “Mr. McKen knew that failing to provide a breath sample was an offence, he simply thought that it carried a lesser penalty than the potential sentence for impaired driving causing death or bodily harm.”
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