An Edmonton man who failed to provide a breath sample after a restaurant patio crash that killed a toddler has had his sentence increased, but his lawyer says they are now considering an appeal to the Supreme Court.

Richard Suter's sentence was increased Wednesday to 26 months, following a successful appeal by the Crown. Suter was originally sentenced in December to four months in jail.

The Crown appealed the sentence, arguing it did not fit the seriousness of the offence. Defence lawyer Dino Bottos also filed an appeal, arguing against any jail time. That appeal has been dismissed.

Bottos said his client will now consider seeking leave to appeal the case to the Supreme Court of Canada.

"The Suters are considering that," Bottos said, "and they have some time to consider before making a final decision. "They are trying to digest this and get their heads around the court of appeal's reasons for judgement. But they're very disappointed and disheartened today."

According to an agreed statement of facts, Suter pulled into a parking stall at Ric's Grill at 142nd Street and 23rd Avenue and drove through a plate glass divider, striking a table on the restaurant's patio.

Two-year-old Geo Mounsef was pinned against a wall and killed. His parents and a restaurant server were also injured in the May 2013 crash.

In June 2015, Suter pleaded guilty to refusing to provide a breath sample.

The original sentencing judge found that the crash was not the result of intoxication. Instead, he found that Suter and his wife were having a serious argument about the future of their marriage at the time of the crash. The judge ruled that Suter did not provide a breath sample because he was given "ill-informed" advice by a legal aid lawyer.

"The sentencing judge concluded that both of these factors reduced Mr. Suter's moral culpability," the appeal decision stated. The fact that Suter faced public scorn and vigilante violence was also taken into account. Months after the crash, Suter was abducted from his home and had his thumb cut off with pruning shears.

Four-month sentence 'not proportionate'

During arguments before the Alberta Court of Appeal in June, Crown prosecutor Joanne Dartana called the original sentence "demonstrably unfit," telling the judges, "four months is not proportionate to the gravity of the offence and the moral blameworthiness of the offender."​

The three appeal court judges agreed the sentence was insufficient.

They found that it was an error for the trial judge to take Suter's initial bad legal advice into account while sentencing. They argued there is no evidence that showed Suter believed he wouldn't face penalties for refusing to provide a breath sample.

They also found the sentencing judge failed to evaluate Suter's moral culpability by driving while distracted, in light of his health troubles and problems with drinking that had recently resurfaced.

"The essence of the offence to which he pled guilty is not simply his failure to provide a breath sample," the appeal decision said. "It is failure to do so after having knowingly caused a collision leading to death."

But Bottos said the appeal court showed by its decision it was willing "to re-litigate and reconsider the evidence" and reach its own conclusions about why Suter refused to provide a breath sample.

"They're supposed to accept the facts as found by the sentencing judge and then determine whether he used the proper sentencing principles," Bottos said. "They're not allowed to go into the facts as found by the sentencing judge and reinterpret them, and come up with a different conclusion as to what the true facts were."

Since the Supreme Court rarely takes on sentence appeals, Bottos admitted it would be difficult to get leave to appeal the case.

He said the Suters "placed their faith" in the justice system and were let down.

"When you are sober and you refuse to blow based on faulty legal advice, you shouldn't go to a penitentiary," he said. "The first time that he was in jail was very difficult for Mr. Suter, and I'm afraid that this next go around will be even more difficult."

Suter intends to turn himself in by Saturday morning to begin serving his sentence, as ordered by the appeal court. If Suter decides to seek leave to appeal to the Supreme Court, Bottos said he also ask that his client be granted bail pending that appeal.