Court File and Parties

Court File No.: AP-CR-15-1137 Date: 2019-06-28

ONTARIO SUPERIOR COURT OF JUSTICE

(SUMMARY CONVICTION APPEAL COURT)

BETWEEN:

Her Majesty The Queen Melody Martin, for the Crown

- and -

Michael Schmidt Sophia Newbould, for the Defence

HEARD: April 24, 2019

REASONS FOR JUDGMENT

Sproat J.

I. Introduction

[1] Mr. Schmidt appeals his conviction for obstructing a peace officer in the execution of his duty contrary to s.129(a) of the Criminal Code. The peace officer was an Agricultural Inspector who was attempting to execute a search warrant, issued pursuant to the Provincial Offences Act, at Glencolton Farm where Mr. Schmidt and his wife resided.

[2] In the early 1990s Mr. Schmidt began to produce unpasteurized milk, often referred to as raw milk, for sale. In 1994 and 2006 he was convicted of offences related to the production and sale of raw milk.

[3] Mr. Jarvie, an Agricultural Inspector employed by the Ministry of Natural Resources and Forestry, commenced an investigation in March, 2015 into whether Mr. Schmidt was still producing raw milk for sale. On September 28, 2015 he obtained a search warrant to search for specified items at Glencolton Farm.

II. Overview of the Evidence

[4] As noted by the trial judge, the essential evidence relied upon by the Crown was uncontroverted.

[5] Mr. Jarvie and his team entered Glencolton Farm at 11:00 a.m. on October 2, 2015 bringing a cube van to transport seized items. By early afternoon approximately 40 – 70 supporters of Mr. Schmidt had gathered in the primary driveway. Tractors were driven to and positioned to block the primary and secondary driveways to the property.

[6] Mr. Schmidt was interviewed by a reporter prior to 1:30 p.m. and made a number of audio recorded statements:

a) “Unless we get the assurance from the Premier that she will deal with that issue and grant us protection against these agencies, nobody will leave this farm.”

b) “Next step is nothing leaves this farm, that’s the bottom line. People will most likely get arrested but that’s the price we have to pay.”

c) “We most likely will, yeah, we will just block with our bodies.”

[7] Mr. Jarvie later met with Mr. Schmidt in the office in the house at which he resided on Glencolton Farm. An audiotape recorded Mr. Schmidt make statements including:

a) “The stuff stays here until we have an assurance from the Premier and this harassment stops.”

b) “Phone the Premier and tell her that there’s no way you’re leaving here unless we have the assurance from the Premier that’s the bottom line.”

c) “I don’t need it [a copy of the exhibit list] because nothing will leave.”

[8] Mr. Schmidt then addressed the crowd at the roadway. The trial judge summarized what transpired as follows:

Mr. Schmidt conceded that the above video tape captured him addressing the assembled crowd to determine who was willing to get arrested in trying to block the cube van from leaving with the seized exhibits. He was essentially indicating that the more people who participated then more would be subject to arrest and the more people who would be arrested would make the prosecution of those people that much more difficult. He obviously indicated his own willingness to be arrested.

[9] Mr. Jarvie later attended the entrance telling the crowd to back away or risk being charged with obstructing justice. The crowd remained.

[10] Video shows Mr. Schmidt addressing the crowd and stating, “We are just in the process of going to court to get a stay on this order okay, so you guys cannot leave …”. Mr. Schmidt then advised the crowd that “right now” our lawyer is going to court to get a stay of the search warrant. This was false. In fact, there had simply been a discussion of Mr. Schnurr, a co-accused, going to Owen Sound to try to retain a lawyer to bring an application.

[11] The crowd never did disperse. Mr. Jarvie concluded that he would not be able to leave with the exhibits without risking a serious confrontation. In the interest of public safety he agreed to return the items seized. This led Mr. Schmidt to declare “We have won”. The cube van was then allowed to leave.

III. The Issues

The Third Party Records and Disclosure Application

[12] Mr. Schmidt’s then counsel filed a Notice of Application seeking third party records which stated that:

The Applicant will argue at trial that state surveillance, searches and seizures since 1994 amount to a pattern of harassment and that the October 2015 search was contrary to s.8 of the Charter of Rights and Freedoms. He seeks documentation from relevant regulatory agencies to support his assertion that the search was not conducted for a legitimate purpose.

[13] Mr. Schmidt sought production of investigative records and documents from January 14, 2014 to the execution of the search warrant on October 2, 2015. This would include any records of surveillance and surveillance video or photographs. The documents were sought from agencies including, but not limited to:

a) West Grey Police Service

b) Ministry of Natural Resources and Forests

c) Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”)

d) Canadian Food Inspection Agency

e) York Region Public Health Unit (“YRPHU”)

f) Bruce-Grey-Owen Sound Public Health Unit

g) Ministry of Finance

[14] Mr. Schmidt also sought:

a) documents related to investigations into other raw milk operations (presumably to argue he was subject to different treatment); and

b) documents related to the decision to charge him with obstruction.

[15] I will provide additional context for the stated claim that Mr. Schmidt has been the subject of a pattern of harassment since 1994.

[16] The defence did not challenge the facial validity of the search warrant executed on October 2, 2015 (being whether the evidence on its face justified the granting of the search warrant) or the sub-facial validity (being whether the evidence put forward was in fact fair and accurate).

[17] As appears from the Information to Obtain:

a) 1994 – Mr. Schmidt was convicted on five counts for violating the Health Protection and Promotion Act (“HHPA”) by selling raw milk products and obstructing a public officer. In addition a Public Health Inspector issued an order that he cease and desist from the sale and distribution of raw milk.

b) 2006 – The YRPHU requested the assistance of OMAFRA regarding its concern that Mr. Schmidt was selling raw milk products, from a school bus, in a parking lot in Vaughan. Investigators purchased raw milk products at Glencolton Farm and from the school bus in Vaughan.

c) November 21, 2006 – Investigators executed a search warrant at Glencolton Farm which revealed a fully operational milk plant producing raw milk products. Charges were laid as a result.

d) September, 2011 – After Mr. Schmidt was found not guilty by a Justice of the Peace he was, on appeal, was found guilty on 13 charges including operating a milk plant without a licence. On March 11, 2014 the convictions were upheld by the Court of Appeal.

e) January 5, 2015 – a meeting, requested by the YRPHU, was held with OMAFRA, at which it was alleged that Mr. Schmidt was once again selling raw milk in York Region. A new investigation began shortly thereafter.

f) March to September 2015 – surveillance indicated that raw milk products were being transported from Glencolton Farm, in a Mercedes van operated by Mr. Schmidt’s wife, to a parking lot in Vaughan. One day over 80 vehicles arrived and individuals picked up product from the van.

[18] The trial judge concluded that Mr. Schmidt had failed to establish that any of these documents met the “likely relevant” standard. The trial judge’s reasons included the following:

a) “The surveillance conducted leading up to the attempted execution of the search warrant on October 2, 2015 (which consisted primarily of observations of the property from the roadway, and monitoring the movement of a bus used to distribute raw milk products) might be annoying but could not possibly support an abuse of process argument given the onerous standard required. There was nothing to suggest that there was anything exceptional or improper about the surveillance.”

b) Given that Mr. Schmidt had multiple prior convictions for raw milk related offences dating back to 1994 there was no air of reality to the claim that since 1994 he had been subjected to a pattern of harassment.

c) Mr. Schmidt had not, and did not intend to, challenge the validity of the search warrant.

d) The request for documents related to investigations of other raw milk producers, to suggest they may have been treated differently by simply being ordered to cease and desist, was highly unlikely to provide information to support an abuse of process argument.

e) In summary the trial judge stated:

...the application at the end of the day is fundamentally a fishing expedition based primarily on bald assertions that are inconsistent with the factual record…

[19] Mr. Schmidt also sought production of certain records on the basis they were likely relevant to the credibility of certain witnesses. As I will later explain, his conviction was based on uncontroverted evidence and did not depend upon any credibility assessment. As such, I will not address this further.

[20] On appeal Ms. Newbould argued that Mr. Schmidt’s counsel on the application incorrectly proceeded on the basis that the documents related to the investigation under the Milk Act, and the obtaining of the search warrant, were third party records. Ms. Newbould argued that they were first party records. I do not need to resolve that issue as I agree with the conclusion of the trial judge that these documents had no likely relevance and so could not possibly justify an appeal from conviction.

[21] I am not persuaded that the trial judge erred in his analysis or in his conclusion that the application was “fundamentally a fishing expedition” and that the documents sought had no likely relevance. To stay a proceeding on the basis of an abuse of process would require egregious state conduct. For example, it might be an abuse of process if Mr. Schmidt had been singled out for prosecution because of a personal characteristic like race or religion. In fact, however, the evidence clearly points to Mr. Schmidt being investigated by reason of a complaint received.

The 11(b) Application

[22] Jordan was decided July 8, 2016, approximately 7.5 months after the information was laid. This was, therefore, a transitional case. As stated in Jordan at para. 96;

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

[23] Jordan held that the presumptive ceiling for cases in the provincial court is 18 months. The argument at trial proceeded on the basis that the 18 month period was to the trial judgment and not the sentencing date.

[24] The information was sworn November 18, 2015. The trial judge dismissed the defence 11(b) application on October 17, 2017 and gave reasons convicting Mr. Schmidt on October 19, 2017 being 23 months from when the information was laid. Mr. Schmidt was sentenced on November 8, 2017.

[25] The trial judge deducted 3 months from the total time on account of defence delay having regard to the fact that:

a) the defence called witnesses who added nothing and was inaccurate as to the trial time needed requiring the court to set additional dates;

b) the defence was directed to be ready to make final submissions on August 4, 2017 but refused to do so, and;

c) the defence requested to adjourn their 11(b) application from August 25, 2017 to October 17, 2017.

[26] I will address these in turn.

[27] Mr. Schnurr was scheduled to present defence evidence on July 28, 2017 but on that date indicated that witnesses he required to “lay the ground work” were not present and Mr. Schnurr refused to testify before they did. The trial judge adjourned to August 4, 2017 but stressed that when Mr. Schnurr closed his case he would proceed to hear final submissions.

[28] On August 4, 2017 Mr. Schnurr did not provide any explanation for not calling the witnesses to “lay the groundwork”. Mr. Schnurr testified and the Court adjourned to 2:15 p.m. for final submissions. On returning after lunch Mr. Schmidt and Mr. Schnurr stated they were not prepared to make final submissions and if required to proceed they would decline to make any submissions.

[29] The next scheduled court date was August 25, 2017 which had been reserved for a defence 11(b) application. By way of background the defence indicated their intent to bring an 11(b) application on June 9, 2017. The defence served the 11(b) Notice of Application with no supporting materials on July 19, 2017. On August 25, 2017 the defence had still not filed any supporting materials and requested an adjournment. As a result, the 11(b) motion was adjourned to October 17, 2017 and heard and decided that day. Final submissions on the trial were made on August 25, 2017 and judgment was delivered on October 19, 2017.

[30] The trial judge also referred to the fact that the defence estimates of the time required to complete the defence case were inaccurate and that additional days needed to be added later which contributed to additional delay. The trial judge also found that the defence called a number of witnesses that added nothing to the case. These findings are entitled to deference.

[31] I see no error in the trial judge allocating 3 months to defence delay given all of these circumstances.

[32] The trial judge deducted a further 2 months on account of “discrete events”. The trial had originally been scheduled to take place March 6 – 10, 2017. Mr. Schmidt and Mr. Pinnell (an accused whose charge was dismissed at the end of the Crown case) were both sick and the trial could only sit 1.5 days. Mr. Schmidt was not available in April and the trial was scheduled to continue on June 9, 16 and July 7, 2015.

[33] The law recognizes that when an unexpected event occurs, the Court and Crown counsel cannot be expected to be instantly available. In other words, institutional delay does not begin the following day. An allocation of 2 months to the discrete event of illness is more than reasonable.

[34] In my opinion it was entirely reasonable for the judge to deduct 5 months from the total time.

[35] Given that this was a transitional case, the trial judge adverted to the Morin analysis but did not actually undertake an analysis of Crown and institutional delay which is an integral part of the Morin analysis. The trial judge stated:

So in that intervening time Jordan came out. The playing field changed dramatically, but up until that point, the Court and the case is going along like all cases did at that time under the Morin principles, and at that point the Crown in my view was entitled to deduct at least five months for a combination of intake time, retaining of counsel, providing disclosure and scheduling Crown pre-trials. When you factor that in, I think clearly this case falls well below the framework as set out in Jordan and accordingly I dismiss the application.

[36] The failure to conduct a Morin analysis may be explained by the fact that the material filed by the defence did not really allow him to do so. In 15 years I have decided many pre-Jordan 11(b) applications but never without transcripts of all appearances. In any event, the trial judge did not undertake the analysis. I will, therefore, provide a rough and ready analysis which is all that is possible in the absence of transcripts.

[37] There were five individuals charged although one was not arrested until March 6, 2017 so did not factor into the delay I will now discuss. About the only insight into what actually occurred from the time the information was sworn on November 18, 2015, to January 6, 2017 when a trial date was set, are notations on the information. These notations reflect multiple Crown and judicial pre-trials being held with the final judicial pre-trial on November 29, 2016.

[38] It is quite common in cases with multiple accused that there will be unavoidable delays in coordinating the schedule of the trial participants which stretches out the time. Parties will often request multiple pre-trials. On the record before me there is no basis upon which I can be satisfied that there was any Crown or institutional delay during this period. I will err on the side of the defence and assume there must have been some institutional delay and allocate 3 months to that.

[39] There was then 2 months of institutional delay to the scheduled trial set for March 6 – 10, 2017. Two of the accused were sick and the Court sat for only 1.5 days. The Court then made available additional dates in short order. The Court sat March 13, 14, 17 and 20 and the Crown completed its case. Mr. Schmidt called evidence on March 22 and 23, 2017.

[40] The defence then estimated that an additional 3 days were required. Mr. Schmidt was not available in April with the result that the Court scheduled June 9, 16 and July 7, 2017. I would, therefore, allocate 2.25 months, May 1 – July 7, 2017, to institutional delay.

[41] The trial was not completed on July 7 and the Court scheduled 3 additional days being July 28, August 4 and August 25. Once again, recognizing that the Court cannot be instantly available when a case takes longer than estimated, I would allocate 1 month to institutional delay. I regard the delay from August 25, 2017 to be defence delay as that was due to the defence request to adjourn the s.11(b) application.

[42] The total institutional delay, erring on the side of the defence, amounts to 8.25 months which is at the low end of the Morin guideline. This provides further support for the conclusion of the trial judge. I, therefore, conclude that the trial judge made no error in dismissing the s.11(b) application.

Did the Trial Judge Err in Concluding that the Crown Had Proven the Essential Elements of the Offence?

[43] Mr. Schmidt submitted that the trial judge erred in failing to recognize an essential element of the offence was that Mr. Jarvie, the peace officer, be acting in the lawful execution of his duty. I do not agree. The trial judge clearly understood that this was an essential element of the offence. He quoted R. v. Tortalano, paragraph 12, which sets out the three essential elements.

[44] There was, however, no real issue at trial as to whether Mr. Jarvie was in the lawful execution of his duties. He was executing a search warrant that the defence did not challenge. As stated by the trial judge:

“…there is no issue that the warrant was other than entirely valid at law, or that either Mr. Jarvie or any other of his designates under the warrant were operating other than within the parameters and the scope of their duties.”

[45] A related submission by Mr. Schmidt was that he should have been permitted to cross-examine Mr. Jarvie on the Information to Obtain the search warrant with a view to demonstrating that the search warrant was obtained for an improper purpose. The trial judge pointed out to Mr. Schmidt at that time that an application to challenge a search warrant had to be made on notice to the Crown. The trial judge also reminded Mr. Schmidt that on the disclosure application argued January 6, 2017, when he was represented by counsel, the fact that the defence had not made, and apparently did not intend to make, an application to challenge the search warrant.

[46] Ms. Newbould argued by analogy to warrantless arrests and noted that on a charge of resisting arrest the officer can be cross-examined as to the grounds for the arrest without the necessity of a Charter application. The obvious distinction, however, is that in a warrantless arrest the officer has to articulate proper grounds for the arrest and can be cross-examined on them. In the case of a warrant the judicial authorization is valid unless, and until, it is set aside.

[47] Ms. Newbould also argued that the documents sought were likely relevant because if a search warrant is later determined to have been issued without jurisdiction that constitutes a defence to an obstruction charge. There is, however, nothing to suggest a lack of jurisdiction. The search warrant was issued by a judicial officer with the authority to issue a search warrant based upon an Information to Obtain which provided a factually valid basis for the granting of a search warrant.

[48] The trial judge made reference to the burden and standard of proof and the W.(D.) test. The trial judge provided the following analysis:

Analysis on the merits as to Mr. Schmidt

The cumulative weight of the various statements and actions of Mr. Schmidt make the case against him utterly compelling. He states clearly to Mr. Scott that nothing was going to leave the farm. He repeats this on several occasions in the office to Mr. Jarvie while demanding that he get on the phone to Premier Wynne and obtain her assurance that this would stop. This was followed by his statements to the assembled crowd as to who was prepared to get arrested in the effort to prevent the cube van from leaving with the seized items contained therein. Exaggerated and misleading statements were then made by him to the crowd as to the state of obtaining a court order stopping the search. Repeatedly Mr. Jarvie and Detective Constable McPherson warned Mr. Schmidt and the crowd, that the search warrant authorized them to enter the property, seize these items and that they were entitled to leave peacefully without interference and that to interfere would risk a criminal charge of obstruction. These warnings to Mr. Schmidt and others went unheeded and eventually Mr. Jarvie, in the interests of safety, relented and returned the seized items. He was thereafter allowed to leave the property with his cube van and search team. These are admitted facts that, in my view, overwhelmingly make out the case of wilful obstruction against Mr. Schmidt.

Accordingly, I find the Crown has satisfied me beyond a reasonable doubt that Mr. Schmidt in his statements and actions that day that have been reviewed herein, demonstrated a clear intention to obstruct Mr. Jarvie in the search of the farm in the sense of making that search “more difficult”. That he did so intentionally and that his statements and actions had the result that the search team were unable to leave in a safe and unobstructed manner as they were entitled to under the search warrant until it was agreed by Mr. Jarvie to return the lawfully seized items.

[49] Ms. Newbould made the point that the trial judge did not refer in any great detail to Mr. Schmidt’s trial testimony. Having reviewed his evidence, however, I cannot identify any evidence which, if believed, would provide a defence or raise a reasonable doubt as to his guilt.

[50] In summary, Mr. Schmidt testified that:

a) Glencolton Farm is owned by a co-operative.

b) The cows and dairy operation are owned by another co-operative of which there are approximately 150 owners.

c) When the officers entered with the search warrant he telephoned several owners and sent out a message on Facebook accounts to over 5,000 people, “Urgent, urgent, please come to the farm and witness another raid”.

d) He made clear to Mr. Jarvie that he should negotiate with the “owners” gathered at the road.

e) He got the idea to demand that Mr. Jarvie get the Premier on the phone because he overheard that suggestion from one of the owners.

f) He was not present when people were warned that if they obstructed they will be charged.

g) He tried to calm down some people who were very upset.

h) He had no specific responsibility that day.

i) He thanked the search team members for resolving things in a peaceful manner.

j) He lives and works on Glencolton Farm. His wife is paid but he is not.

k) That he was not “in charge” at the time of the search and Mr. Jarvie should speak to the owners.

l) The views he expressed as to what was going to happen, was not only his opinion but also the general opinion of the crowd that had gathered at the road.

m) He was essentially acting as a messenger for the farm owners.

n) He had no power to make decisions on behalf of the co-op.

o) For 23 years people have had the impression that he is in control because the press talks to him.

[51] Accepting all of Mr. Schmidt’s evidence it remains that there was an abundance of evidence on which the trial judge could, and did, conclude that Mr. Schmidt intended to, and did in fact, obstruct. In this regard:

a) Mr. Schmidt stated his intent to block the officers from removing anything and get arrested if need be.

b) Mr. Schmidt effectively encouraged others to block the van and get arrested if need be. He explained that the more people arrested the more difficult it would be to prosecute.

c) Mr. Schmidt effectively encouraged the crowd to disregard the warning that they should not obstruct by falsely claiming our lawyer is going to court “right now” to get a stay of the search warrant. One could readily infer that this would strengthen the resolve of those assembled.

[52] Mr. Schmidt also took exception to the trial judge’s reliance on the video interview he gave to a reporter. A statement by an accused person as to his present intention is relevant as to his mental state and as to what he in fact did.

[53] The fact the video itself did not have an indication of the time it was recorded goes to weight. On the totality of the evidence the judge concluded the video was recorded prior to the meeting Mr. Jarvie had with Mr. Schmidt in his office.

The Fresh Evidence Application

[54] On the day this appeal was argued, after the lunch break, Ms. Newbould indicated that she had just received information which she believed merited an application to admit fresh evidence. I indicated that, while I would allow her an opportunity to bring this application, the oral argument would proceed. I later directed that submissions on the application be in writing.

[55] Ms. Newbould filed an application seeking to admit the affidavit evidence of Enos Martin that George Bothwell told him that he blocked the drive with his tractor and that he did so without Mr. Schmidt’s knowledge or consent. The application itself explained Mr. Schmidt’s position and, therefore, Ms. Newbould indicated that she would not make any further written submission. I subsequently indicated that I did not require a written submission from the Crown.

[56] In my opinion, this evidence could not possibly have affected the result and on that basis the application should be dismissed. The trial judge made it clear in his analysis that the finding of guilt was based on the admitted actions of Mr. Schmidt and not on whether he had caused the tractor to block the exit.

Inconsistent Verdicts

[57] Mr. Schmidt argues that his conviction was inconsistent with the acquittal of Mr. Schnurr.

[58] Mr. Schmidt, in effect, played a major role and Mr. Schnurr played a supporting role. The fact that Mr. Schmidt was convicted and Mr. Schnurr found not guilty is easily reconciled on a logical and rational basis. The trial judge concluded that Mr. Schmidt’s conduct in fact resulted in obstruction. As to Mr. Schnurr, I agree with the Crown submission that:

Simply put, the trial judge found Mr. Schnurr intended to obstruct, but his words and actions fell short of the necessary impact. His comment that the end result (frustration of the search warrant) would have occurred regardless of Mr. Schnurr’s conduct, grounded his finding that Mr. Schnurr only contributed in a de minimus fashion to the obstruction that day.

Appeal of the Sentence

[59] The trial judge called on the Crown to state her position “in general terms” and she responded that the Crown’s position was that a conditional sentence was appropriate. The trial judge then called upon Mr. Schmidt who simply stated:

I’m never arguing for any kind of leniency. I think it is the Court’s responsibility now to kind of follow up with the decision and I’m gonna bear the legal consequences and the Court still has to bear the moral consequences, let’s call it this way. Thank you.

[60] The Crown then went on to make her submissions as to why a conditional sentence on the order of 30 days was appropriate.

[61] In the course of his sentencing reasons the trial judge stated that coming in to the hearing, “five months had been rolling around in my head”, as an appropriate custodial sentence. The trial judge then imposed a 60 day custodial sentence to be served intermittently.

[62] Ms. Newbould argued that this was in substance a joint submission such that the trial judge was bound to accept it unless to do so would be contrary to the public interest and the sentence would bring the administration of justice into disrepute. In the alternative, she submitted that the trial judge should have explained to Mr. Schmidt the possible benefit of expressly agreeing to the Crown sentencing submission.

[63] In R. v. Cerasuolo the Court stated:

[8] This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

[9] The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot over emphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute.

[64] In R. v. Suberu (2007), 2007 ONCA 60, 85 O.R. (3d) 127 (O.C.A.) the court rejected the argument that the Crown’s neutral position as to whether a sentence should be intermittent amounted to a joint submission for an intermittent sentence. Doherty J.A. explained:

[68] The only argument which could attract leave in this case is the submission that the Crown's neutral position as to whether the sentence should be served intermittently should be equated with a joint submission. It should not be so equated. The appellant did not forego any right he may have had in exchange for a position taken by the Crown on sentence. Nor did the Crown's neutral position on whether the sentence should be served intermittently form any part of a plea negotiation or plea resolution. There is no merit to the attempt to equate the Crown's non-position with respect to the appropriateness of an intermittent sentence should the trial judge decide to impose a sentence of 90 days or less with a joint submission for an intermittent sentence.

[65] These authorities satisfy me that even if Mr. Schmidt had stated that he agreed with the Crown sentencing submission this would not amount to a joint submission which the trial judge could only depart from if it would bring the administration of justice into disrepute. Obviously the underpinning of that stringent test, encouraging resolution and recognizing that the accused has given up his right to a trial in the expectation the court will in most instances accept the joint submission, are not applicable in the case of Mr. Schmidt.

[66] The trial judge, however, clearly “jumped” the Crown submission without giving the Crown, or more importantly Mr. Schmidt, any warning. In R. v. Hagen, 2011 ONCA 749 the Court stated:

[5] In our view, where the trial judge intends to jump the Crown on sentence, particularly by a significant amount, as here, the judge should advise counsel and give them the opportunity to make submissions and provide further authorities, if so advised.

[67] Mr. Schmidt, and the Crown, might well have had more to say if the trial judge had alerted them to the fact he was thinking of a sentence of two or more months in jail. While I do not find that the sentence imposed was outside the range that could be imposed in the circumstances, I conclude that fairness demands that the sentence appeal be allowed and that the sentence be varied to a one month conditional sentence.

[68] The conditional sentence order shall contain the statutory conditions and the following:

a) Report in person to a supervisor within seven days, and after that at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.

b) Live at 293889 Concession 2 Durham, Ontario and not change that address without obtaining the written consent of the supervisor in advance.

c) Remain in your residence or on the property of your residence at all times. This home confinement condition will be in effect for the full duration of the sentence except:

• between 12:00 p.m. to 4:00 p.m. on Saturdays in order to acquire the necessities of life;

• for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling);

• for going directly to and from or being at court attendances, religious services and legal or medical or dental appointments;

• you will confirm your schedule in advance with the supervisor setting out the times for these activities; and

• with the prior written approval of the supervisor. The written approval is to be carried with you during these times.

d) You must present yourself at the doorway of your residence upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

VI. CONCLUSION

[69] The conviction appeal is dismissed. The sentence appeal is allowed and the sentence imposed is a one month conditional sentence.

Sproat J. Released: June 28, 2019