‘ og 75. Information No.: 130569940P1 IN THE PROVINCIAL COURT OF ALBERTA. JUDICIAL DISTRICT OF EDMONTON BETWEI HER MAJESTY THE QUEEN -and- RICHARD ALAN SUTER AGREED STATEMENT OF FACTS AGREED STATEMENT OF FAC APPENDIX “A”: Preliminary Hearing transcript APPENDIX “B”: Curtis Clement Interview transeript APPENDIX “C”: Notes of Cst. Croxford (formerly Cst. Singh) APPENDIX “D": _ Intoxilyzer 5000C Operational Checklist and Notes of Cst, Stacy Price APPENDIX “E”: Event Chronology APPENDIX “F”: Chili's Texas Grill Receipt APPENDIX “G”: Richard Suter Interview TranscriptInformation No.: 130569940P1 IN THE PROVINCIAL COURT OF ALBERTA. JUDICIAL DISTRICT OF EDMONTON HER MAJESTY THE QUEEN ~and - RICHARD ALAN SUTER AGREED STATEMENT OF FACTS Pursuant to the provisions of Section 655 of the Criminal Code of Canada, the following numbered paragraphs contain facts which are alleged by the Crown and admitted by the Accused, for the purpose of dispensing with formal proof thereof. Pursuant to s. 606(4) of the Criminal Code of Canada, and with the consent of the Crown, the facts admitted will apply to the following offence: On or about the 19th day of May, 2013, at or near Edmonton, Alberta, did, without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer or evaluating officer pursuant to s.254 of the Criminal Code, and at the time knew or ought to have known that his operation or care and control of the motor vehicle caused an accident that resulted in the death of another person or in bodily harm to another person whose death ensued, contrary to scction 255(3.2) of the Criminal Code of Canada. This agreed statement of facts is organized chronologically into three main time periods: Part I: Events prior to the collision Part II: The collision and immediate aftermath Part If: Police involvement Each of these above three main time periods is further organized into two categories: General facts ii, Accounts of individual named witnesses as they testified during a preliminary inquiry before this Honourable Court on or between July 14 to October 3, 2014RT I: EVENTS PRIOR TO THE COLLISION General Facts On May 19, 2013, Richard Suter and his wife, Gayska Suter, attended at the Windermere Texas Grill, 6143 Currents Drive, NW, Edmonton, Alberta. location of Chili’ Richard Suter and Gayska Suter remained at this Chili’s from approximately 6:20 PM to 7:30 PM. At 7:30 PM, Richard Suter and Gayska Suter left the Chili’s and travelled about 7 to 10 minutes by car to Ric's Grill at 14229 23 Avenue in Edmonton, Alberta. Richard Suter and Gayska Suter travelled in a blue/gray Acura MDX Sport Utility Vehicle with license plate JLY 200 (hereinafter, “the Acura SUV ii, Account of Lacy Hunt 5, On May 19, 2013, Lacy Hunt was working as a server at the Windermere location of Chili's Texas Grill and served Richard Suter and his wife. She recalled that they had arrived at approximately 6:30 p.m. and left at approximately 7:30 p.m. (PI 451/15-19) Richard Suter ordered one pint of Alexander Keith’s Red beer, and his wife ordered a Caesar alcoholic drink, Lacy Hunt did not see how much of either drink was consumed. (PI 446/29-41) She took their orders for the drinks and delivered them, but did not interact with them afterwards. She had understood from another server that they were angry because their food had arrived cold and late. She agreed that in fact the food had arrived late for their table. (PI 448/11-22) and (PI 446/12-28) Lacy Hunt interacted with Richard Suter for a minute or two. (PI 452/3) A different server, Jesse, had taken the food order from the Suter table, Lacy Hunt was asked at the preliminary inquiry whether she was able to form an opinion as to whether Mr. Suter was drunk or sober and she replied, “Yes. He was sober.” (PI 447/16)10. th 12. Lacy Hunt agreed that she had written a witness statement to the Edmonton Police Service on the evening of May 20, 2013 after having been told, through her manager Gail, that the police were looking to get a statement from her because a little boy had been killed at a restaurant patio by Mr. Suter after he left Chili's Restaurant. She understood that the police were inquiring about Mr. Suter’s level of sobriety. (PI 449/34- 39) She recalled that both Richard Suter and his wife were able to converse, made a lot of sense, and that she saw no signs of intoxication on either of them. Particularly, she agreed that she never heard any slurred words, nor saw any confusion or poor balance, and that Mr, Suter was dressed appropriately, and his pants were pulled up appropriately. He did not appear disheveled. Rather, he looked respectable. (PI 452/12 to 453/3) Lacy Hunt testified that she had five years experience in the restaurant service i lustry. Over the course of those five years she had considerable experience meeting both sober and drunk people at her tables. She knew that she was not to serve alcohol to people who appeared intoxicated in her restaurant. (PI 448/11-22) Lacy Hunt did not see Richard Suter stand up or walk. iii, Account of Dustin Homa 13. 14, On May 19, 2013, Dustin Homa was working as the manager at the Windermere location of Chili's Texas Grill. Richard Suter and his wife attended Dustin Homa’s Chili’s from about 6:20 PM until approximately 7:25 PM, based on the bill that was created from the visit. Although Dustin Homa did not serve the Suter table, he was made aware by a server named Jesse that the couple were unhappy about their food order, which prompted Dustin Homa to attend their table to see about the problem. (PI 231/22-29) When Dustin Homa offered to provide the Suters other items or service they replied in the negative, saying that they had some other place to go. Dustin Homa replied that their bill would be completely taken care of, “because it’s crappy to have that type of dining experience and not have something done about it.” (PI 227/33)15. 16. 18. 19. 20. He indicated that he spoke with Richard Suter about the food and late service for approximately 50 seconds to a minute. (PI 232/15-25) He referred to a bill (filed as an exhibit at the Preliminary Inquiry) for their table as having been opened at 6:20 PM, and closed at 7:24 PM when he closed the bill himself and directed a staff member to return the bill to their table. (PI 233/12). The bill also indicated that the couple had ordered a pint of beer and a Caesar alcohol drink, Chorizo soup starters and a half a rack of ribs and a bacon burger. (PI 232/28-41) Dustin Homa believes that the soup should have been served within the first 10 to 15 minutes upon their arrival, and approximately 10 to 15 minutes after that the main course (ribs for Mr. Suter, hamburger for Mrs. Suter) should have been served. Therefore, he agreed that the Suters had a point in being unhappy with the late arrival of the main course. (PI 234/27 to 236/11) Dustin Homa did not see the couple leave after he zeroed the bill, and presumed that they would have left the restaurant at around 7:25 PM (“7:25 ish”), but could not be sure. (PI 228/12) Dustin Homa was approached on May 20, 2013 by an Edmonton Police Service officer looking to speak to him about Richard Suter. Dustin Homa was made aware of the allegations being made against Richard Suter, including that he was alleged to have been impaired while driving, killing a child at Ric’s Grill Restaurant after leaving Chili's. He cooperated with the police officer and provided to him a written statement. (PI 229/35 to 230/41) He recalled being specifically asked by the police officer whether he had seen any signs of impairment, and was asked to go through the chronology of the interactions with the couple. (PI 231/1-8) Dustin Homa confirmed that he wrote of Mr. Suter, and adopted at the preliminary inquiry, “He seemed grumpy, but did not appear to have signs of intoxication.” (PI 231/36-41) He clarified that Richard Suter appeared grumpy over the late service and the cold food, but was not obnoxious. Nor was he slurring his words. (PI 232/1-14)22. Dustin Homa confirmed that he had been the manager of a Chili's Restaurant, or a server there, for a period of five years prior to the incident. As such, he had considerable experience dealing with both sober and impaired patrons, and knew that there is a law against serving drunk people. He had no concerns with respect to the Suters that evening, nor did he feel the need to call anyone to stop them from driving away from the restaurant, (PI 238/8) Dustin Homa did not see Richard Suter leave the restaurant, (PI 236/36-41 and 237/1-14) PART II: THE COLLISION AND IMMEDIATE AFTERMATH i 23, 24, 26. 27. 28. General Facts On May 19, 2013, Sage Morin, George Mounsef, Quentin Mounsef, and Geo Mounsef (hereinafter, “the Mounsef Family”) were at Rie’s Grill at 14229 — 23 Avenue in Edmonton, Alberta (hereinafter, “Ric’s Grill]. Sage Morin and Geo Mounsef are spouses and the parents of Quentin and Geo, Quentin was an infant at the time of the collision and Geo was two and a half years old. During the time between approximately 7:25 PM and 7:37 PM, the Mounsef Family were seated at a table on the patio of Ric’s Grill. Their table was immediately adjacent to a handicapped parking stall. The table was separated from the handicapped parking stall by a glass barrier. The table was on the outsidé patio of Ric’s Grill several feet from the outside wall of the restaurant. Sage Morin and George Mounsef sat on opposite sides of the table. Quentin Mounsef sat in a car seat near George Mounsef. Geo Mounsef sat by himself on a side of the table between Sage and George. Geo Mounsef was sitting in between the handicapped parking stall and the outer wall of, the restaurant,29. 30. 31. 32 33. Richard Suter pulled into the handicapped parking stall adjacent to the Mounsef Family's table in his Acura SUV Richard Suter stopped the Acura SUV momentarily, some distance back from a handicapped parking stall that was facing Ric’s Grill Patio. Soon thereafter he placed his foot on the accelerator and accelerated the vehicle rapidly through the handicapped parking stall, over the curb, through the glass barrier, and directly into the Mounsef, Family’s table. Richard Suter drove the Acura SUV directly over Geo Mounsef,, both dragging him under the vehicle and pinning him against the outer wall of the restaurant. The Acura SUV stopped against the outer wall of the restaurant with Geo Mounsef trapped underneath. Geo Mounsef died as a result of blunt force trauma injuries caused by Richard Suter in his Acura SUV. The collision was captured on a Taco Bell security video from a considerable distance away. The video shows Mr. Suter’s vehicle accelerating through a parking stall, over a curb and coming to rest against the Ric's Grill building at 18:37:09, remaining stationary until 18:37:37, and then reversing several feet and coming to its final position at 18:37:46. The parties acknowledge that the time stamps on the video are reasonably accurate and confirm that the accident took place at approximately 7:37 PM May 19", accounting for Daylight Savings Time. The video will be available for viewing in Court. ii, Account of Sage Morin 34, 35. 36. Sage Morin was served only water prior to the incident and had not had any alcohol that afternoon, ‘The collision threw Sage Morin out of her chair and she landed a few feet away, Sage Morin testified at the preliminary inquiry that as a result of the collision she had a swollen wrist and that she had glass embedded throughout her body which was still causing her discomfort on the bottom of her feet, together with regular aches and pains associated with being hit by a car. (PI 31/4-6) 637. 38. 39. 40. 41. 43. 44, 45. Immediately after the collision, George and Quentin had also been thrown to the floor. ‘Sage Morin was not sure how the vehicle was moved backward after that point in time. In examination in chief Sage Morin testified that Richard Suter was “heavily intoxicated because: “...When I got up close to him he couldn’t even stand up right, and yeah, he was wobbling all over. And then he was trying to run away.” (PI 30/1-2) Sage Morin testified that Richard Suter could not even walk a straight line. She made these observations before she pushed him to the ground, (PI 37/30-35) Sage Morin was initially focused on Geo and then tuned around to see Richard Suter outside of his vehicle and believed he was trying to get away. On cross examination she said that Mr. Suter was 10 to 15 feet away from his vehicle when she began to approach him, (PI 35/36) As she approached Richard Suter, she shouted at him, “What do? You Killed my baby” or “You killed my son” and pushed him to the ground. She you then slapped him once in the face while he laid on the ground, She then retumed to her family. (PI 34/17 to 35/35) She further said in cross examination, “I think he had fallen down from the push, like he wasn’t really — a strong wind could probably push him over ” (P135/12) at that point She testified that she never saw Richard Suter stand up again afier she had pushed him to the ground. (PI 37/7-12 and 38/1-4) Sage Morin testified that she did not see whether her boyfriend, George Mounsef, approached Richard Suter after she had retumed to tend to Geo Mounsef. (PI 38/34-36) Sage Morin worked in the restaurant and lounge industry for 5 years and has experience with people who are intoxicated by alcohol. When asked in cross examination what signs she saw of Richard Suter causing her to think that he was drunk she said, “I would say the redness in the face, the glazy ~ glossy eyes, and then just the body language.” (PI 38/10-24) Although she admitted in cross examination that she pushed him over, Sage also said that a strong wind would have pushed him over.46. 47. 48. 49. 53. 34, 58. Sage Morin also testified in cross examination that she posted on a Facebook page, which ‘was repeated in the local professional media in the following days “The driver stumbled out of his vehicle, too drunk to even stand, too much of an animal to even say sorry.” (PL 37/7-12) i. Account of George Mounsef George Mounsef was served only water prior to the incident and had not had any alcohol that afternoon, George Mounsef was struck in the collision and knocked out of his chair and onto the ground, As a result of the collision, George Mounsef suffered a cracked rib, lacerations to his leg, foot, and arm, and neck and back pain. Quentin Mounsef was strapped into a portable car scat for infants at the time of the collision. The collision threw Quentin’s car seat to the ground, flipping it over. Immediately after the collision, George Mounsef checked on Quentin and found that he appeared to be alright. George Mounsef then shouted at Richard Suter, the driver of the Acura, calling him a “maniac.” At this point, George heard Sage screaming that Geo was under the Acura SUV. The Acura SUV had come to rest against a wall of the restaurant. George Mounsef banged on the SUV, urging Richard Suter to move it, In spite of George’s loud shouting, Richard Suter did not move the vehicle. At this time, George got down on his knees to look for Geo and saw Geo trapped under the Acura SUV, George Mounsef is not sure how the vehicle was moved after that point in time. 859, 60. 61 62. George Mounsef testified that: “A Okay, well, when he stumbled out of the vehicle, I was kind of standing pretty close to it. [could smell alcohol Q Sorry, I couldn’t hear that. What did you say? A Lcould smell aleohol — Q Yes. A —when he opened the door of the vehicle, He stumbled and then he fell against either a wall or another vehicle or something. He sort of fell against something, I’m not really sure what, and then fell to the ground.” (PI 44/18-27) George Mounsef testified that upon Richard Suter getting out of the Acura, he fell against something and then fell to the ground only two feet from the driver's door of the SUV. (PI 53/6-23) He saw Richard Suter as he got out of the vehicle for “30 seconds maybe, not very long at all.” He testified that he had a difficult time recalling what else occurred because of the commotion. (PI 51/30-34) When asked in examination in chief whether anyone had pushed or tackled Richard Suter George Mounsef said, “No, he fell.” (PI 44/34) On cross examination he denied touching Richard Suter, but admitted “he could have fallen towards me. It’s a bit hazy.” Also, he was not sure if anyone else was near them at the time. (PI 53/11-23) George Mounsef testified that he concluded that Richard Suter was drunk for the following reasons: a. There was a slight smell of alcohol. b. Richard Suter was "stumbley” when he got out of the vehicle and was barely able to stand up.iv, Account of Curtis Clement 63. 64, 65. 66. 67. 68. 69. 70. Curtis Clement was seated in Ric's Gril on May 19, 2013, for a meal with his father. During the meal, he heard a loud crash and screams to his left. Curtis Clement got up and ran towards the noise, where he saw an Acura SUV up against the wall and broken glass everywhere. Curtis Clement went to the driver's side of the vehicle and grabbed the male driver of the Acura, Richard Suter, and pulled him out of the vehicle. When asked in examination in chief how he did so, Curtis Clement said, “With force. Taking him away from the vehicle like I would if there’s an accident when someone shot somebody. I would take a person (PL 6016-8) away from the gun, I took this man away from the vehic! On cross examination Curtis Clement testified that the driver did not open his own door, but rather Curtis Clement opened it, said, “You're coming with me”, and removed the driver from the vehicle by grabbing his clothing with sufficient force to pull him out of the vehicle, move him over and then to sit him down on the ground six to eight feet from the vehicle. (PI 65/33 to 66/21) He specifically denied having pushed him to the ground, (PI 66/22) Once he set him down on the ground Curtis Clement went back to the scene where the injured child was. (PI 66/22) On further cross examination he testified that in his written statement written on May 19" at 8:20 p.m. that he “grabbed and threw” the driver away from the vehicle, and that he was trying to be complete and honest at the time. He explained, however, that he only meant that he “moved him away.” (PI 63/3-19 and 66/22-27) Curtis Clement testified on cross examination that he used force to remove Richard Suter from the vehicle because “he’s a man of size.” (PI 66/4-5) Curtis Clement testified on cross examination that Richard Suter’s “momentum” took him down to the ground, (PI 67/9-12) 10m1. 2. BB. 74, Curtis Clement also testified in cross examination to having provided an audiotaped statement to the police on May 21, 2013 during which time he was asked to describe the events, and answered the questions truthfully. Included in that statement he provided the following remarks: a. He described the driver as appearing to be shocked. (P1 68/16-19) b, He felt he had to protect the driver from the deceased boy's father. (PI 68/33-39) cc. That he described the driver as standing limp, which he meant “without a strong posture, and “a bag of garbage had more fight he was so limp.” (PI 74/33) 4. Atp. 2 of the taped interview he said, “Anyways, got him pulled back and threw him down on the road so he couldn’t get into the vehicle, and do any more harm. I asked a few folks to kind of put a wall around him so the dad can’t go after him, right.” ... “Cuz the dad was mad and I was pissed t00, He also testified to having sai to the police during the taped interview that he was protecting the driver from the deceased boy’s dad. (PI 68/33-39) ‘When asked in examination in chief what his observations were of the driver he said that the driver appeared to be “drunk”, and when asked why, he replied, “Just his overall appearance. His clothing was very disheveled. His hair was not kept. I don’t think he ‘was wearing shoes at the time. His eyes were bloodshot. His speech was completely not coherent, something I would assume would be drunk.” (PI 60/14-17) He testified in cross examination that he was only focused on the driver for only “three or four seconds.” After that he went back to where the injured boy was. (PI 67/32-34) The reference to looking at the driver for three or four seconds was repeated four more times. (PI 68/1-10 and 74/21-23) He also testified that during the three or four seconds he dealt with the driver he did not smell any alcohol on him. (P1 74/26-28) int15. 16. 71. 8. When asked about what was wrong with the driver's clothes he replied, “Well, I recall when I had removed him from the vehicle and moved him to the side, he fell over, and at that point, his — his backside was hanging out. That to me was one of those things I thought that’s odd, ... His pants were down. He wasn’t fully dressed at that point.” Also, Curtis Clement could see a good portion of his buttocks. (PI 60/14-28) When asked about the driver's steadiness or ability to stand he replied, “He wasn’t able to stand. He took a position on the ground in more a seated — I think cross legged fashion, and he wasn’t what I would say stable at that point, He was kind of in a leaning position, and very incoherent.” (PI 60/30-34) When asked what the driver was saying that made him sound incoherent he said, “He was mumbling, but my attention was really spent with working with the folks around the accident ... 50 I wasn’t watching him too clearly.” (PI 60/36-41) When asked about the speech he could only say, “He was mumbling, and I can’t recall specifics. But there were tears and he was mumbling. ...” (PI 61/1-3) On further cross examination he finally agreed that the driver only made one comment, which was asking for his wife. (PI 69/18- 27) Curtis Clement believed, however, that the driver was speaking incoherently because the driver had asked about his wife, but Curtis Clement had not seen any other person in the vehicle, and thus he thought the driver was speaking nonsensically. (P1 69/41-43) He did not see the deceased’s mother anywhere near the driver during the time that he was looking at him, (PI 67/24-31) ¥% Account of Natasha Prasad 79. 80, Natasha Prasad was working as a server at Ric’s Grill on May 19, 2013. Natasha Prasad was standing at the Mounsef Family's table next to Geo Mounsef when the collision occurred. Natasha Prasad was facing out toward the parking lot and saw Richard Suter’s Acura MDX SUV pull toward the parking stall adjacent to the table. (PL 92/1-27) 1284. 85. 86. 87. 88. 89. 90. vi, OL. 92. The vehicle slowed down at first but then accelerated and came crashing through the glass barrier onto the patio. The glass smashed and the table hit Natasha Prasadon her thighs. The next thing Natasha Prasad knew she was knocked to the ground facing the other direction and the SUV was stopped against the wall of the restaurant, ‘Natasha Prasad observed that the driver “was not steady when he was moving”, and saw that he had “no emotion.” (PI 82/34 to 83/3) She had seen him from her vantage point from the front passenger side of the vehicle. (P1 83/10-13) Natasha Prasad went into the restaurant immediately after the accident occurred, and then after that came back out and saw Sage Morin go up to the driver and slap him multiple times while he was standing. Also at that time the father George Mounsef was yelling at the driver. (PL 88/35 to 90/27) She never spoke with the driver. (PI 83/16) Natasha observed that the driver was not walking in a straight line and was going from side to side when walking, but clarified that she saw this only after the driver had already been slapped by Sage Morin. (PI 84/1-20) She also testified under cross-examination that the event was tragic and emotional for her, and therefore it was hard for her to remember all of the pieces of the event. (PI 91/32) ‘Natasha Prasad testified that she suffered an inflamed knee cap and tendon teats on the right knee, Account of Lindsay Defosse Lindsay Defosse was sitting on the patio of Ric's Grill on May 19, 2013. Lindsay had been on the patio for about 15 minutes before the Mounsef Family arrived. B93. 94. 95. 96. 97, 98. 99. 100. While waiting for the server, an Acura SUV driven by Richard Suter crashed onto the patio. The father of the Mounsef Family was saying that his kid was under the car. Lindsay saw bystanders push the vehicle back and free Geo Mounsef from under the car. Geo Mounsef was "lying there." In examination in chief, she testified that the driver, Richard Suter, had a really hard time getting out of the vehicle, and when he got out he tried to walk away, but did not get too far because he was stumbling. In cross examination she explained that it took him approximately two minutes to get out of the vehicle, was trying to get out, and then was pulled out of it by the father of the deceased boy, who was grabbing him by the front of his shirt She also testified in cross examination that she looked into the driver's eyes before he left the vehicle and “He just seemed very alert, and then very almost subdued like ~ just kind of out of it. And I would have expected somebody to get out of the vehicle, but he took time to get out, like it took -— what seemed like a while to get out of the vehicle.” (PI 105/33-40) She also admitted in cross examination that she had written a truthful statement to the police that the father of the deceased boy “slapped the man on the chest with his hands in anger, shock, disbelief and stopped when a bystander told him to leave the driver alone.” (P1112/16-25) She thereafier testified that it was more of a push than a slap to the chest. (PI 112/38-41 to 113/9) Between examination in chief and cross examination Lindsay Defosse testified that she concluded that Richard Suter was drunk because: a. Examination in chief: The time it took him to get out of the vehicle. 14. Examination in chief: Inability to explain what was going on. He tried to say something but "there wasn't much in the way of words." She testified in cross examination that she was standing at least 14 feet away from the driver at the time that he stood outside the vehicle, and that the parents of the deceased boy were between the driver and herself, They were yelling at the driver and she could not hear “audible words from the driver, from what I can recall.” (PI 109/6 to 110/10) Despite the fact that people were yelling and it was noisy, she testified, “I think I would still be able to make something out.” (PI 110/23) Examination in chief: Stumbling once out of the vehicle. She testified in cross examination that he had been grabbed by the father and forcefully removed from cle, and ended up on the ground in a fetal position. (PI 111/1-12) She also clarified in cross examination that Richard Suter appeared wobbly as the father was grabbing him by the chest, pulling him out of the vehicle, and pushing him in the chest. (PI 113/15-25) Examination in chief; He had curled up in the fetal position in the middle of the road after he got out of the vehicle, but in cross examination testified that she did not see how he got there. (PI 105/8-19) vii. Account of Jarrett Armstrong 101. 102. 103. 104. Jarrett Armstrong did not provide a statement on May 19, 2013. Rather, he decided to come forth after he heard through the media that the accused, Richard Suter, did not provide a breath sample. That upset him. (PI 118/21-29) On May 19, 2013, Jarrett Armstrong went to get a coffee from the Starbucks adjacent to Ric’s Grill. Jarrett Armstrong saw the Acura SUV being driven in the parking lot by Richard Suter. Jared wanted to make a left hand tum across Richard Suter’s path and yielded to Richard Suter for that purpose. Instead of proceeding, Richard Suter stopped in front of Jarrett Armstrong’ vehicle. 15105. 106. 107, 108, 109, 110. 114, Jarrett Armstrong was confused by Richard Suter’s driving and decided not to tum left. After parking somewhere else nearby, Jarrett Armstrong heard a loud crash and screams for help. Jarrett Armstrong saw the blue Acura up against the wall at Ric's Grill with glass everywhere. While testifying in examination in chief he said Richard Suter was unsteady on his feet. In cross examination he t ified that he saw Richard Suter step out from his vehicle and take two steps away from it. He then saw the father of Geo Mounsef approach Richard Suter and say, “What have you done?”, and things of that nature, and give him a two handed push or shove causing the driver to fall down to the ground. Jarrett described the push as follows: “I wouldn't say it was a forceful push at all. It was a ‘what have you done” sort of thing. And he fell over like a sack of potatoes.” (PI 116/4- 6) ‘The push caused Jarrett Armstrong to step forward and step between the father and the driver who was now on the ground, (PI127/15-31) The driver remained in that position until another man came along and took the driver out of that situation and moved him to an island just across the way. (PI 125/1-30) Richard Suter's eyes were glossy as he laid on the concrete asking for his wife. Account of Thomas Gunderson ‘Thomas Gunderson had dinner at the Edo Japan across from Ric's Grill on May 19, 2013. Thomas Gunderson was walking to his car after dinner when he heard a loud noise and breaking of glass. ‘Thomas Gunderson saw the Acura SUV up against the wall at Ric's Grill. 16115, 116. 117. 118, 119, 120, Thomas Gunderson testified that he saw the driver of the Acura, Richard Suter, once he was out of the vehicle, “more or less kind of stumbling around” meaning ... “back and forth weaving. He walked, maybe, I would say 25 feet where he collapsed on the road, basically, i 130/36 to 131/3) a fetal position. He remained there until emergency vehicles arrived.” (PI In examination in chief Thomas Gunderson concluded that Richard Suter was intoxicated because: He was not walking straight. b. When he went down to the ground, it was not a collapse. Rather, it was "kind a lay-down" as an intoxicated person would do. In cross examination he testified that Richard Suter was zigzagging back and forth. (PI 140/30) He saw the driver walk due south, approximately 25 feet, and let himself down slowly with one hand, and then laid over ina fetal position. He did not see anyone touch the driver to cause him to go to the ground. (PI 135/1-41) He agreed in cross examination that he did not see what happened to the driver “from the time he exited the vehicle to the time that he got to the rear bumper.” (PI 138/1-26) In cross examination Thomas Gunderson testified that he first noticed the incident after hearing the crash as they were leaving the Edo Japan Restaurant, some 30 yards away. (PI 133/20) He and his family approached the scene from the right hand side of the Suter vehicle, (ie, the East) therefore meaning that the driver was across the other side of the vehicle from him. (PI 134/28) He was standing 10 to 20 feet away from the driver when the police arrived, but could not hear him speak. (PI 132/30) He did not go near the driver to note any other signs from him, (PI 141/1-2)121 ‘Thomas Gunderson made the following observations when police were bringing Richard Suter to the police car: a, He was walking stooped over instead of upright. b. The policeman had to help him up because he couldn't do that by himself. ¢. Police had to help him walk to the car. Police had to hold him by the shoulders. d. Police had to help him get into the police car and it was a slow process. ix, Account of Lucille Lalonde 122. 123. 124, 125, Lucille Lalonde is a medical doctor and cardiologist whose specialty of practice is general cardiology and heart transplants. (155/32-38) Lucille Lalonde was dining in Ric's Grill on May 19, 2013 During her meal, she heard a loud crash and screaming. Outside on the patio, there was broken glass and a boy lying in a pool of blood around his, head. The boy looked squashed. Lucille Lalonde did not see Richard Suter’s Acura SUV being moved. ‘The boy lying in the blood was being attended to by others, so Lucille proceeded to examine the infant. The infant appeared to be uninjured. ‘After checking on the infant, Lucille Lalonde checked on Richard Suter, who was lying on the pavement near the driver's side of the damaged Acura SUV. She provided medical assistance to the injured parties and examined Richard Suter twice. (P1 159/10- 16) 18130, 133. 134, 135. 136. Lucille Lalonde checked Richard Suter for injuries and observed none. Lucille Lalonde stated that “I did take my hands and run them down all his limbs, and there was no pain, there was no blood, there was no torn clothing.” (PI 161/5-8) Lucille Lalonde did not ask Richard Suter any questions. However, someone else nearby asked Richard Suter if he saw what he did and if he was drunk. Richard Suter responded that “I hit the wrong pedal.” She did not smell any alcohol on Richard Suter’s breath. (PI 158/8) Richard Suter twice asked Lucille Lalonde where his wife was. (PI 157/37, 163/26) On cross examination Lucille Lalonde testified that “It took quite some time for the ambulance and the police to arrive. He never tried to get up off the asphalt. I thought that was very strange. He clearly looked to have no serious injuries, and yet he made no attempt to stand.” (PI 158/26-28) She did not see anyone have any physical contact with or strike him. (PI 158/30-41) ‘When police arrived, Richard Suter was assisted in getting to his feet. Lucille Lalonde saw Richard Suter stagger at that point and police were holding him up and supporting him, (PI 158/2-4) Lucille observed that Richard Suter had lost his footwear and could not get them back on. One of his footwear came off when he was staggering. Lucille could not recall if it was a shoe or a sandal, x. Account of Bruce Tolton 139, Bruce Tolton was dining in Ric's Grill on May 19, 2013 when he heard a crash. By the time Bruce Tolton arrived, the Acura SUV had been moved back off of Geo Mounsef but the driver was still inside the vehicle. He saw a little boy, Geo Mounsef, who had been pinned against the wall. His wife, who room nurse, attempted to revive the boy 19140. 141. 142. 143 144, 145. 146. Bruce Tolton concluded that Richard Suter was intoxicated by alcohol because: a, He was lying on the ground in the fetal position. Bruce Tolton test in examination in chief that he saw the driver dragged out of his motor vehicle, and also that the father of the little boy wanted to fight the driver and punch him, but Bruce Tolton tried to stop it. (PI 168/23-37) ‘When asked in examination in chief if he had seen any violence committed upon the driver he said, “No I didn’t see any of that.” (PI 169/1-10) Mr. Tolton admitted in cross examination, however, that during a telephone interview with the police on May 22™ that he truthfully told the police he saw the driver being dragged out of the vehicle, and then dragged across the ground from the patio area to the parking lot, a distance of 15 to 20 feet. (PI 171/20-33) He further admitted that he had told the truth when he told the police officer during the telephone interview that he saw the father ki ing the driver in the body several times, causing Bruce Tolton to intervene in order to protect the driver. He wamed the father to stop and move away or else he would be charged with assault. (PI 173/13-23) Bruce ‘Tolton thereafter stood guard over the driver until the police arrived. In cross examination he confirmed that it was at that time that he could smell the aleohol from the driver because he was crouched over top of him, with his face approximately two feet from the driver's. (PI 173/35 and 169-32) ‘There was a strong smell of alcohol from the driver as he stood over top of him. (PI 173/32-37) When the driver got up afier being arrested he could sce that the driver's pants were half pulled down from his waist. (PI 175/19) xi, Account of Diana Diduch 147, 148, Diana Diduch was dining on the patio of Ric's Grill on May 19, 2013. Diana Diduch saw an SUV crash into the Mounsef Family's table and drive it against the restaurant. 20149, 150. 151 152 153 Diana Diduch believed that Richard Suter’s Acura SUV was pushed off of Geo Mounsef. by the bystanders, Diana Diduch first saw Richard Suter, the driver of the SUV, as he was being pulled from the vehicle and then on the ground, (PI 192/33-41) She did not see how he got to the ground. “I saw somebody pulling him out, and then my next recollection is him being on the parking lot, lying down.” (PI 194/20-25) He remained lying on his side in a fetal position. (PI 194/38 to 195/4) In examination in chief Diana Diduch believed that Richard Suter was intoxicated because: a. He was on the ground rolling around. b. He was in the fetal position. c. He didn't seem to be able to get up. ‘On cross examination she admitted that she was interviewed by an Edmonton Police Service officer in the days following the incident, and in response to being asked by the officer why she thought he was intoxicated she replied, “It was because of what happened, who drives into a patio? ... It was an assumption of seeing someone on the ground that wasn't moving, and because I was talking to other patrons who were, like, “drinking and driving” (or “that what you get with drinking and driving”) and, you know, it just gets into your head, something awful that happens. I made the assumption it was alcohol, but you know what? I didn’t see.” (PI 197/9 to 198/36) Also in cross examination she said she was no closer than 10 to 12 feet from the driver on the ground and not close enough to smell him nor speak with him. (PI 198/20) xii, Account of Linda Harford 154, 155 Linda Harford was dining in Ric’s Grill on May 19, 2013. She could see the patio from her seat inside the restaurant. 21156. 137. 159, 160. 161 162. 163. xiii. 164. 165, ‘The Acura SUV driven by Richard Suter pulled into a parking stall directly in front of the patio. ‘The vehicle then drove through a glass barrier separating the parking lot from the patio and hit the restaurant wall with a bang. After the crash, Linda Harford clearly saw Richard Suter get out of the vehicle himself on his own accord and stood beside the Acura and looked straight ahead, stunned or in disbelief. (PI 201/16) Richard Suter stood there for about a minute before a hysterical lady slapped him in the face three times. The driver did not react. He did not defend himself or anything. (PI 204/11-13) The woman went back to the injured boy, and then came back to the driver about one minute later while he was still standing, and slapped him a fourth time in the face. (PI 204/25-30) Linda Harford id not see what happened to the driver at that point, but afterwards saw him on the ground, about 10 feet from the driver's door. (PI 204/18 to 205/31) He was curled up into a ball. There were people around him making sure nothing else happened to him. Linda Harford made her observations from inside the restaurant about 40 fect away from where the man was lying on the ground, Account of Trent Hamas Trent Hamas drove to the Starbucks near Ric’s Grill on May 19, 2013. He saw Richard Suter lying on the ground about 10 to 15 feet away from the Acura SUV with a large crowd around the accident site.166. 167. 168. 169. Trent Hamas said from the time that he saw Mr. Suter on the ground no other person than the police touched him. He was no closer than 20 or 30 feet away from Richard Suter, and Mr. Suter’s back was facing him, (PI 216/29-41) When poli Richard Suter lacked balance. arrived and brought Richard Suter to his feet, Trent Hamas observed that ‘Trent Hamas was asked in examination in chief why he believed that Richard Suter was intoxicated and he said that as the police were dealing with him and arresting him that he lacked balance and required considerable support for mobility after being helped off the ground, (PI 216/12-39) In cross examination Mr. Hamas confirmed that he provided a five page hand written statement to the police on June 29, 2013, some 40 days after the accident. In that statement he did not provide any observations of seeing the driver appear impaired. (PI 218/1-10) He confirmed that the only reason he believed the driver to be impaired at the preliminary inquiry was based on the observation of the support that the driver required for mobility once he was brought to his feet by the police. (PI 218/12-18) PART III: POLICE INVOLVEMENT i, Account of Cst. Croxford 170. 171 172. Cst. Croxford was dispatched to an injury collision at Ric's Grill at 7:42 PM. st. Croxford learned from the dispatcher that a vehicle had gone through a patio and struck a child and family. Cst. Croxford arrived at 7:48 PM. Curtis Clement pointed her to Richard Suter and told her Suter was the driver of the vehicle that had hit the child. Cst. Croxford found Richard Suter, the driver, lying on the ground in the fetal position.174, 175. 176. 177, 178, Cst. Croxford told Richard Suter to move out of the middle of the parking lot. He asked for help getting up and gave Cst. Croxford his arm, Richard Suter was very unsteady on his feet and Cst. Croxford and her partner had to lift most of his body weight. At one point, police let go of him so that he could walk on his own. Upon letting go, Suter seemed like he was going to fall over so police grabbed him again. Police moved Suter to a curb and asked him to sit on the curb. When trying to sit, Suter first grabbed Cst. Croxford's forearms. When lowering himself onto the curb, Suter began to tip backwards so Cst. Croxford grabbed him to steady him. When sitting on the curb, Cst. Croxford asked Richard Suter if he was okay and he responded that he must have hit the gas instead of the brake and burst into the crowd of people. (PI 310/39-41) Cst. Croxford asked Richard Suter if he needed medical treatment at the scene of the collision and he declined. She testified that he appeared very cooperative and seemed to understand what was going on. (PI 310/34) Cst. Croxford made the following observations about Richard Suter and formed the opinion that his ability to operate a motor vehicle was impaired by alcohol: a, He was very unsteady on his feet and staggering, b. There was a moderate odour of alcohol coming from his breath as he spoke. c. He was having trouble forming sentences. 4. He was slurring his words “pretty heavily.” (PI 309/41) €. His pants were slightly lowered so that his buttocks were visible. f. He had glossy eyes, g. He had a small cut above his left eyebrow. h, He had dried blood on his left earlobe. 4179. 180. 181. i. j His left upper forearm appeared to be slightly swollen. He followed instructions and his responses were appropriate. At 7:50 PM, Cst. Croxford: Formed the opinion that Richard Suter's ability to operate a motor vehicle was impaired by alcohol. Formed the opinion that Richard Suter was the driver of the vehicle on the basis, of information provided by Curtis Clement to that effect. Formed the opinion that Richard Suter had been driving at approximately 7:41 PM because the 911 call came in at approximately that time. On cross examination, she did not recall whether Mr. Suter had lost one of his sandals during the incident and was wearing only one at the time of his arrest. (PI 350/10-16) On cross examination Cst. Croxford admitted to the following: She and her partner, Cst. Letourneau, were in a police motor vehi le when they received communications broadcast to members by way of mobile workstation and radio communications about the incident. She believed that since she was driving, Cst, Letoumeau, the passenger, would have been reading out loud the text updates from the mobile workstation during the seven minute drive to the scene at Ric’s Grill. (PI 330/10-36) She also agreed that the Event Chronology Report would have kept a record of the important broadcasts on the matter. (This is attached to this Agreed Statement of Facts) She agreed that she would have been paying attention to Cst. Letourneau's reading of the communications on the mobile workstation, and would have been able to hear for herself, any radio broadcasts at the same time. (PI 343/23-40)182. 183. 184, e She agreed that she would have heard one of the first mobile workstation broadcasts afler the location and address of Ric's Grill, that read, “Drunk male just drove his vehicle into Ric’s Grill building.” (PI 344/8-10) e. She agreed that she would have heard the next communique as well, “CPR on the driver”, which meant to her that somebody was doing CPR assistance on the driver. (PI 344/30) f. She agreed that she would have heard the next communique, “Event comment: there is another adult male lying on the ground. Injuries not known.” (PI 344/34) She agreed that she would have heard the next communique, “Looks like a four- year-old they are doing CPR on the child.” h. She agreed she would have heard the next communique, “Event comment: the vehicle involved is a blue Acura MDX, JLY 200.” (PI 345/18) She agreed that she would have heard the next communique: “Event comment: 911 op has been told that patrons are now beating up the driver of the Acura???” She agreed that she would have understood that as she was driving there. (PI 345/37) On further cross examination she testified that it was not unusual to find an impaired driver out on the ground in the fetal position instead of behind the steering wheel, because “you can find them anywhere.” (PI 349/25) On further cross examination she agreed that he was grey haired, appeared older, and had ahard time getting up. (PI 349/25-41) She also agreed that it did cross her mind that Mr. Suter may have been injured, based on the fact that he had two small cuts on his face and some dry blood and a swollen arm, but could not say whether it occurred to her that he might have been assaulted at the time, testifying, “I don’t recall what I was thinking at that exact time.” (PI 350/25) 26185. 186. 187. 188, She agreed that although she testified that Mr. Suter was slurring, she could not recall any words that he was slurring. (PT 351/6) She agreed that there was not very much dialogue at all from Mr. Suter during the time before she arrested him. (PI 351/8-17) She said, “Well the words that he had said was he asked for help up so I would assume it was those words.” She also admitted that with respect to the signs of slurred speech, glazed eyes, pants lowered down to his buttocks, Lying in a fetal position that it was possible that injuries from an assault may “possibly” have caused those signs. (PI 351/1 to 352/3) When asked whether it did not occur to her that maybe he had been assaulted, as had been broadcast, and that the assault may have caused those signs or indicia of impairment she said, “I smelled the odor of alcohol on his breath when he spoke to me so that’s why I thought of the impairment.” (PI 352/7) She ruled out the signs as coming from the assault as opposed to impairment by alcohol “just based on the smell of the alcohol along with it’s pretty frequent when I do deal with people under the influence they display the exact same signs that Mr. Suter was displaying, along with the smell. So I formed the opinion that he was impaired.” (PI 354/22-24) ‘When asked again on cross examination about information about him possibly having hhad a heart attack and subjected to CPR, and possibly having been assaulted, all of which was told to her by way of the radio or mobile workstation broadeasts, she said, “Just based on the indicia I felt that he was impaired, especially with the smell and all of those indicia. Based on that indicia if I continued having a conversation with him where at a later time I felt that need that he was ~ he needed medical treatment because he had been assaulted T would have gone that route, But based on my opinion of what I saw at that exact moment I went with impaired.” (PI 344/33-37) 27189, Under cross examination she agreed that it did dawn on her when she was approaching Mr, Suter to begin with as he was laying on the ground in the fetal position that he could have been assaulted, but yet she did not ask one single question of Mr. Suter at that time as to whether he had been assaulted in any way, or dragged across the parking lot. (PI 356/1-12 and 351/29-41) 190. After being placed in handeutls, Richard Suter got into the back of Cst. Croxford’s police vehicle and tipped over so that he was lying on the back seat. Richard Suter asked Cst. Croxford for help getting up and she went around to the other side of the vehicle and pushed him upright. 191. At 7:52, Cst. Croxford read Richard Suter his Charter rights: You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigations you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service we will provide you with a telephone and you can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance. Do you understand? Do you want to call a free lawyer or any other lawyer? 192. In response, Richard Suter said that “yes” he understood and “no” he did not want to call a lawyer, 193. At 7:54. Cst. Croxford read Richard Suter the Cauti ‘You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you wish to say anything? 194, In response, Richard Suter said: “No, I don’t want to say anything.” 195, At this point, Cst. Croxford noticed a smell of alcohol coming from the back of the police vehicle where there had not previously been any alcohol smell. Cst. Croxford also noticed that Richard Suter’s speech was slurred. 28196. 197. 198, 199, ‘At 7:56 PM, Cst. Croxford read Richard Suter the demand for samples of breath: In accordance with the provisions of the Criminal Code I demand that you provide such samples of your breath as are necessary in the opinion of a qualified technician to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in your blood and to accompany me for that purpose. You will be charged under the provisions of the Criminal Code if you do not comply. Will you comply with this demand? In response, Richard Suter said: “I think I should talk to my lawyer.” ‘At the preliminary inquiry, when asked how she responded to this she answered, “So I explained to the accused what the refusal meant as well as what it meant if he did blow. T then asked again, will you comply?” The accused responded: “I don’t know what to say.” 1 explained to him that it’s either refusal to blow or that he will blow and the accused responded with, “I don’t know, I don’t know what to say”, and then he continued ‘Did this happen?” T responded that it did and the accused stated: “I guess I'll talk to my lawyer.” (PI 314/10 explaining that he couldn't believe this happened. He asked me: to 315/6) When asked at the preliminary inquiry what she explained about what a refusal was, she said, “The exact wording I don’t recall” but that her standard practice is to explain a refusal in this way: just generally explain that a refusal just means that you will be charged with refusal if you don’t ~ if you don’t blow. If you do blow it gives you the opportunity to show if you've been drinking oF not. I say it’s the same penalty ‘The courts look at refusal just as if you blew over.” In cross examination Cst. Croxford was asked: “And when you explained this to him did he seem to understand?” Cst. Croxford’s response was: “He did.” (PI 315/7-24) Upon artival at the police station, Richard Suter needed assistance walking from the police car to the door of the station and Cst. Croxford and her partner assisted him in walking.201 202. 203. 204, 205. 206. 207. 208. 209, 210. Next, Richard Suter was brought to a cell and provided with a phone. Cst. Croxford had checked that the phone had a dial tone, explained that he had to dial 9 to make a phone call, and showed him the phone books and the legal aid numbers which were displayed on the wall of the cell. ‘When Cst. Croxford was explaining the Phone Room to Richard Suter, he said that he did not know who to call because his friend was out of town. Cst. Croxford explained that he could call legal aid if he could not get a hold of his friend. At 8:21 PM, Cst. Croxford closed the door of the cell and left Richard Suter alone in privacy to call a lawyer. At 8:45 PM, Cst. Croxford was informed that Geo Mounsef had died. There was a video-monitoring system which permitted Cst. Croxford to see what Richard Suter was doing in the cell. ‘At 8:47 PM, Cst. Croxford re-entered the cell because she could see that Richard Suter was not on the phone. ‘At 8:47 PM, Cst. Croxford told Richard Suter that Geo Mounsef had died and re-arrested Richard Suter for one count of impaired driving causing death and two counts of impaired driving causing bodily harm. At this time, Cst. Croxford again read to the accused the same Charter rights that she had read him at the collision scene. Cst. Croxford asked him if he understood and he said “No.” Cst. Croxford then asked what he did not understand and he said that he did not understand the last part. Cst. Croxford then explained how legal aid works that it is a free service where he can ask questions and get advice. In response, Richard Suter said, “The child died”, then “I'll call if I can get hold of one.” (PI319/8-9) 30212, 213. 214. 215. 216. 217. 218, 219. She then asked for clarification if he wanted to call a lawyer and he made the following statements: a, "Iwant to call God." b. "How did this happen?." ¢. He had done a "heinous crime." d. He felt "sick to his stomach." Richard Suter id that he could not get a hold of "my lawyer" when he first attempted to do so beginning at 8:21. Cst, Croxford then explained Legal Aid again and explained that he had the option of calling Legal Aid. Richard Suter said "Okay" and Cst. Croxford again left him in the cell at 8:56 PM. Cst. Croxford was wa ching Richard Suter on the video monitor. He picked up the phone and then later put the phone down at 9:00 PM At 9:00 PM, when the phone was down, Cst. Croxford re-entered the phone room and read Richard Suter the same Caution that she had read him at the scene of the collision. When asked if he wanted to say anything, Richard Suter sai “No, I guess not.” Richard Suter then said that the phone was not working. Cst. Croxford tried the phone, heard a dial tone, and explained that he needed to dial 9 to use the phone. ‘At 9:04 PM, Richard Suter asked Cst, Croxford to dial the number for him. Richard Suter read a number and Cst. Croxford dialed it, heard the Legal Aid response on the phone, and passed the phone to Richard Suter. Cst. Croxford then walked out of the cell and closed the door, leaving Richard Suter in privacy. Ct. Croxford went back to the video monitor and soon afterwards saw that Richard Suter had again hung up the phone. Richard Suter had his legs up on the bench and was leaning against the wall with his arms crossed in a rest position with the phone sitting on the hook.220. 221. 222. 223. 224. 225, 226. 228. At 9:11 PM, Cst. Croxford entered the cell again. At this time, Richard Suter said that he had spoken to Legal Aid, She testified that according to Richard Suter, Legal Aid said that they were busy and to call back in an hour. ‘A page of Cst, Croxford’s notes made at the time of the comment is attached to this Agreed Statement of Facts. The note reads, in part: “211 1-spoke with male/AC who said legal aid who said they were busy and needed to call again in the hour.” Ct. Croxford then exited the cell and closed the door (See copy of Cst. Croxford’s note). Affer consulting with other officers, Cst. Croxford called Legal Aid herself at 9:37 PM on her work cellphone. She called the same number she had dialed for Richard Suter previously. Cst, Croxford called 1-866-653-3424 on both occasions. Ct. Croxford was on hold with Legal Aid for approximately two minutes before a human on the other end identified that he was part of Legal Aid. Cst. Croxford asked if he was free and he said yes. Cst. male v ‘roxford handed her work cell phone to Richard Suter at 9:43 PM and closed the cell door and left him in the cell. Within a minute of Cst. Croxford closing the door, Richard Suter knocked on the door. Richard Suter was still on the phone with Legal Aid and asked Cst. Croxford what he was charged with. She answered that he was charged with impaired driving causing death and two counts of impaired driving causing bodily harm. Richard Suter then went back into the cell and Cst. Croxford closed the door. Cst. Croxford went back to the video monitoring room and observed Richard Suter bring the cell phone down away from his ear. At 9:50 PM, Cst. Croxford re-entered the phone room and asked if Suter was done with the phone. He said yes. ‘At 9:51 PM, Cst. Croxford read Suter the second demand for breath samples. Cst Croxford re-read the same demand that she had read him at the scene of the collision. Cot. Croxford read the demand and said “will you comply with this demand?” Richard Suter answered “No.” When asked if he was refusing, Richard Suter said “Yes.” 32229. 230. 231 233. 234, 235. ‘At the time of refusal, Richard Suter knew that he had killed Geo Mounsef by driving onto the patio at Ric’s Grill and hitting the Mounsef Family’s table. Cst. Croxford testified at the preliminary inquiry that she explained what refusal meant. The following evidence was given in cross examination: Okay. And you say (as read from notes) “I explained what refusal meant and that he would be charged with refusal.” A Yes. Q What do you mean I explained what refusal meant? A I don’t have exactly what I explained at that time but generally what - if T can just explain what generally I say to people so... yeah, my normal practice. I Jet them know that refusal is taken — is the same penalty as if you blew and you blew over. The courts look at it the same and it means that you're refusing to comply with this demand so you're not blowing into the device kind of thing. So the courts look at it as the same as if you blew over.” (PI 364/19-28) Cst. Price was a Qualified Breath Technician at the time and was available to take breath samples from Richard Suter. Cst. Price also explained the meaning of a refusal to Richard Suter. Cst. Croxford decided to call EMS paramedics as a precautionary measure. Richard Suter continued to have glossy eyes and odour of alcohol on his breath after he was done with the phone room at 9:50 PM, He was a little more steady on his feet than before. ‘At 11:55 PM, EMS paramedics arrived, examined Richard Suter, and medically cleared him. 33236, 237. 238. 239, Detective Bowen conducted a videotaped interview with Richard Suter from 12:10 AM. to 12:52 AM, Cst, Evans and Pillay attended to take photos of Richard Suter next. At 2:57 AM, Cst. Croxford transported Richard Suter downtown to the Detainee Management Unit At this time, he was able to stand on his own two feet and the smell of alcohol was minimal to none. ii, Account of Cst. Price 240. 2a. 242. 243. 244, Cst. Price was assisting Cst. Croxford with her impaired investigation of Richard Suter ‘on May 19, 2013, At that time, Cst. Price was a Qualified Breath Technician, ‘At 9:50 PM, Cst. Price heard Cst, Croxford read the second breath demand to Richard Suter. In response, Richard Suter indicated that he was not going to provide a sample of breath. Cst. Price then explained to Richard Suter that this was his opportunity to provide a sample of breath and that he would be charged with refusal to provide a breath sample if he chose not to provide samples, ‘At this point, the Intoxilyzer instrament was ready for Richard Suter to provide breath samples. Cst. Price indicated that this was his opportunity to provide samples and Richard Suter said that he was not going to provide any samples. Next, Cst. Price asked Richard Suter a number of questions about medical history, alcohol, and sleep In examination in chief at the preliminary inquiry Cst. Price testified as follows: Q Can you tell us about that conversation? 34Yes. I went through his history. So on the back of the intoxilyzer sheet it 4g0es through the type and amount of alcohol consumed, as well as the type and amount of drugs consumed, whether it’s prescription or otherwise, types and times and last meal, as well as time and amount of last sleep that he would have had the previous night. ‘And when you were having this conversation with him, did you notice any signs of impairment? In looking at my notes here I have checked off that I could smell a moderate amount of alcohol ... emanating from his breath. From his breath? Yeah, As well as I could see his eye were bloodshot. ‘And in relation to the questions and answers, can you tell us what his answers were to the questions that you asked? Yeah. In referring to my check sheet, I had asked him the type and amount of alcohol he had consumed that day. He stated to me that he had one pint of beer at approximately 1600 hours, and that he had a single shot of vodka mixed with orange juice at approximately 1800 hours. I then asked him what his last meal was and what time he had eaten that meal. ‘And he stated to me that he had had ribs at approximately 1830 hours. 1 asked him the type and amount of drugs he had consumed that day, whether it was prescription or otherwise. And he stated that he didn’t know exactly what medication he as on but that he suffers from anti — he was on some kind of antidepressant, something for cholesterol and something for gastric acid. I had asked him if he felt that he was in good health. He had stated to me, Yes. And then I asked him the time and amount of sleep that he got the previous night. And he explained that he'd got at least 10 hours of sleep the previous night. (PI 391/19-392/8) 35246. In cross examination Cst. Price was asked about the same notes on the report (a copy of which is attached to this Agreed Statement of Facts), where she clarified that under “history” she had written down under “Type and amount of alcohol consumed” the answer (one beer pint) single shot of vodka/orange juice and under “Time of first drink” the answer was 1600 hours, and the time of last drink “18 hours.” (PI 397/1-17) 247. The following questions and answers were provided in cross examination: Okay. Now, you say this — when you asked him about the history of his drinking that evening, you have, Bracket 1 pint of beer closed bracket; is that correct? ‘Yes. @ Why is that in brackets? A can't tell you why I put it in bracket. But that is what was stated to me, was — Q@ Okay. And then not in brackets, Single shot of vodka slash orange juice. Right? aoe Yes. @ Now, you say in the next column — or the next segment, Time of first drink 1600 hours. Meaning 4:00? AS Yes. Q Okay, Time of last drink 18 hours? A Yes. @ Meaning 6:00? A Yes. 36Okay. When you say that he said to you that his first — his first drink was the pint of beer and his second drink was the vodka and orange juice, is it possible that you had that backwards and in fact that vodka and orange juice could have been the one at 4 at 1600 hours, 4:00? No, I wrote it out exactly as he had stated it to me. Okay, Well, what — tell us the sentence that he used when he answered your question. I asked him the type and amount of alcohol consumed. And he stated, ‘One beer pint. And then said, A single short of vodka with orange juice. Okay. And then you asked him, When was your first drink? Yes. And he answered, 4 PM. And you said, 1600 hours? Yes. ‘And then he — and then you asked him, What time was your last drink? And he answered, 6:00. And you put, 18 hours? Yes. Okay. So it happened just like that? Yes. And you asked him time and type of last meal. And you have the answer there, 1830 hours ribs. Is that correct? Yes. 37Q Okay. And then Type and amount of drugs. And then a bracket, Prescription or otherwise. And your answer — or the answer that you recorded was, Doesn't know bracket antidepressants, cholesterol and gastric acid? A: Yes. Q Okay. So what he was saying was, I don’t know the names of the drugs, but I take drugs for these things? A Yes. Okay, So he was telling you that he has ~ or he had been taking drugs for these things, but he just didn’t know the names of them: is that correct? AD ‘That is correct, or the amounts. @ Or the amounts, Okay. Like, what did you say about the amount? What did you say to prompt him about that? A Like I said, all I asked was, Can you tell me the type of prescription drugs you're on and the amount that you take of those pres 397 /2-398/25) iption drugs? (PI Cst. Price concluded that Richard Suter was intoxicated, saying it this way in examination in chief: “Just the conversation, T mean, that I had with him in regards to the alcohol consumption, his difficulty in trying to remember what he had — had ate that day, what he had drank that day, as well as not knowing what prescriptions he was on, and the smell I could smell of alcohol coming from his breath, as well as the observations that | had made from watching him i is cell, the difficulty with — his ability to use the telephone and to search through the phonebook looking for a number to contact a lawyer.” (PI 392/20-27) 38249. 250. 251. 252. In cross examination she recalled that Mr. Suter seemed “emotionally upset”, that he said, “T can't believe this happened” several times and appeared “physically or emotionally upset.” (PI 398/27 to 399/5) She also testified in cross examination that she knew Mr. Suter to be 62 years old, with grey hair, and had been assaulted that evening after the accident. She learned this from the dispatcher that had broadcast this out across the police communication lines. (PI 400/1-21) Ct. Price confirmed that he was not placed in a phone room to make his phone call to a lawyer, but rather, a phone was plugged into a jack and brought into his cell, which was the system in place in the old Southwest Police Station. Furthermore, she confirmed that it was possible that the phone was not placed on any ledge for him, but rather, propped up ‘on the sink above.” the toilet in the cell, just inside the door. She could not recall, when she saw that Mr. Suter was having trouble on the phone, where the base of the phone was rested, whether on the sink or on the floor. (PI 401/30) Nor could she recall which papers were placed in his cell when he was having trouble using the papers to find a lawyer. (PI 401/37) Cst. Price also testified in cross examination that on the “Edmonton Police Service Intoxilyzer 5000C Operational Check Sheet” that under the Notes” section that out of the four boxes listed for typical signs of impairment, being “blood shot eyes, flushed complexion, slurred speech and unsteady on feet” she checked off only the first one, blood shot eyes. She did not check off the others. (PI 402/4-24) iii, Account of Cst. Letourneau 253. 254, Cst, Letourneau is currently a medical student at the University of Calgary. At the time of this incident she was a peace officer employed by the Edmonton Police Service. (PI 409/15-25) Cst. Letourneau was dispatched with Cst. Croxford to an injury collision at Ric's Grill at 7:42 PM.255. 256. 260. Constables Letourneau and Croxford learned from the dispatcher that a vehicle had gone through a patio and struck a child and family. The scene was “quite chaotic.” (PI 411/15) Constables Letourneau and Croxford arrived at 7:48 PM. Bystanders directed police to the driver of the vehicle, Richard Suter. Cst. Letourneau made the following observations about Richard Suter: . When police first arrived, he was lying on the ground in the fetal position. He had great difficulty getting up when asked to move by police. The two officers had to assist him to get him up on his feet. He had great difficulty walking. (PI 411/26) He swayed “quite heavily.” (PI 411/25-26) e. Richard Suter had to be supported by police while walking. Police had to assist Richard Suter in sitting on a curb because he was very unstable. She testified at the preliminary inquiry “We were both worried that he (1411/30) ‘was going to fall and hurt himsel . Cst- Letoumeau could smell a moderate odour of alcohol on Richard Suter's breath when she was helping him down onto the curb. |. Richard Suter had glossy eyes and slow eye movement. Richard Suter had heavily slurred speech; it sounded like his tongue was frozen or he had marbles in his mouth. Cst. Letourneau said that it was clear that Richard Suter was intoxicated. Richard Suter had a cut over his eye which he said was from a different day. (PI 411/40- At the scene of the collision, Richard Suter refused medical attention when asked. 40261. 262. 263. 264, In cross examination she agreed that she had not written down in her notes anything about Richard Suter’s responses, nor could she recall them at the preliminary inquiry. (PI 422/33) Cst. Letourneau was referred to the Event Chronology Report which had been filed as an exhibit at the preliminary inquiry. (A copy is attached to this Agreed Statement of Facts). She interpreted for the court that the Event Chronology Report would have referenced that she and the driver, Cst, Croxford arrived at the Ric’s Grill scene at 19:48:04 hours because Cst. Letourneau would have pressed a button to indicate when they had arrived on scene, thus time stamping that moment, (PI 432/27-41) She testified that she and Cst. Croxford got out immediately thereafter, and addressed the bystanders briefly and made their way to Mr. Suter who was lying on the ground. She also confirmed that at 19:50:04 hours she confirmed that dispatch had recorded at that time “One under arrest for impaired.” She testified that in order for that entry to be made by a dispatcher on the mobile workstation and Event Chronology Report that either her or Cst. Croxford would have communicated with dispatch that they had arrested the driver, and dispatch would have relayed that information (“One under arrest for impaired”) on a broadcast on the mobile workstation at 19:50:04. (PI 433/15-30) The Event Chronology Report is attached to this Agreed Statement of Facts. In cross examination, when asked how it was that Richard Suter had declined medical attention she testified, “I don’t recall specifics as to what we asked him, but we did ask him if he needed EMS, and he declined.” When asked for clarification, what specifically was said, or whether it was only said, “Do you need EMS?” she replied, “I don’t recall exactly what we said, so I’m sorry. I don’t know.” 41iv, Account of Detective Bryan Bowen 265, 266. 267. 268. 269, Detective Bowen was presented for cross examination at the preliminary inquiry. He apprised himself of the details concerning the accident at Ric’s Grill, and Richard Suter’s arrest for refusal to provide a breath sample, He was not advised about any further context, that is, that it was a refusal to provide a breath sample under s. 255(3.2) for refusing after having caused the death of a person. (PI 463/11) He agreed that was described to him as a “refusal” and not any particular type. (PI 463/25-27) Detective Bowen conducted a videotaped interview of Richard Suter from 12:19 a.m. to 12:52 a.m, May 20". (PI 465 to 468) He confirmed that when he met Mr. Suter at 12:19 a.m. that he was displaying no signs of impairment such as slurred speech or the smell of alcohol. (PI 465/30-41) He did note that Richard Suter was displaying glassy ted eyes, which could have been from either alcohol consumption or crying, as it is common to both. (PI 466/1-6) He noticed that Richard Suter walked either into or out of the interview room and Det. Bowen described him as: Slow, and for lack of a better word, kind of shufly, I guess, He was wearing sandals. I don’t know if that contributed to it or not. ...” (PI 466/12-15) He did not explain to Mr. Suter that this was in fact a criminal investigation as opposed to a Traffic Safety Act investigation. (PI 467/1-12) At p. 466 of the preliminary inquiry, lines 21-31, Det. Bowen made the following observations about Richard Suter’s physical appearance: Q “Did he walk with any limp or unsteadiness? A [can’t say walking to the interview room, but I know from walking out, after being seated for 45 minutes or 50 minutes that he gets up and is kind of — you can sand he kind of limps a little bit and then straightens up. Whether he’s stiffened up or tell there is an issue with either one or both legs, like lower le Q Did he ~ did you leam during that interview or before the interview that he suffered from arthritis? 42A Not arthritis specifically, but he told me he had beet a collision in his late 20s or early 30s, I believe, causing him some sort of injury to his legs. 270. During the interview Richard Suter told Det. Bowen that he consumed the following drinks of aleohol that day: 1. A “shorty” of vodka and orange juice at 4:00 PM. 2. A second one at 5:00 PM. 3. 1/2 to 2/5 of the pint of beer at Chili’s at 6:30 PM. Richard Suter admits and confirms that the above referred to evidence proves the essential elements of the offence under s. 255(3.2) of the Criminal Code. It is expected that Richard Suter will testify and take issue with some of the evidence testified to by the Crown witnesses at the preliminary inquiry. Neil Wiberg, Q.C. Crown Prosecutor ‘Aaron Pegg, ‘Crown Prosecutor