R. v. Schmidt, 2019 BCPC 312

Citation: R. v. Schmidt 2019 BCPC 312 Date: 20191128 File No: 247658-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KURTIS DIETER SANDY SCHMIDT EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: M. Mahoney Counsel for the Defendant: C. Elden Place of Hearing: Vancouver , B.C. Date of Hearing: November 28, 2019 Date of Judgment: November 28, 2019

[ 1 ] THE COURT: Mr. Schmidt has pled guilty to three counts contained in Informations 248244 and 247658. Those counts were that on June 28, 2017, he was in possession of a loaded handgun contrary to s. 95(1) of the Criminal Code . This count was proceeded with by Indictment. The other count, that on June 28, 2017, the same day, he occupied a motor vehicle knowing that there was a prohibited device designed to, or intended to, muffle or stop the sound, that is, a handgun with a silencer, contrary to 94(1) of the Criminal Code . This charge was also proceeded with by way of Indictment.

The third count, on June 28, 2017, same day, did possess ammunition while he was prohibited to do so, contrary to s. 117.01(1) of the Criminal Code . This count was proceeded with on a

Summary Conviction basis. [ 2 ] The facts are that on June 28, 2017, at about midnight, a civilian saw a red Dodge pickup truck tailgating someone on a highway in Burnaby. She called the Police because she believed the driver was a drunk driver. Police went directly to the home of the registered owner of the truck. The home belonged to Mr. Schmidt's dad. When the Police were talking to the dad, the Dodge truck drove up and immediately, Mr. Schmidt jumped out of the truck and ran into the woods. The Police chased and captured him. [ 3 ] The Accused was wearing body armour. He had a loaded magazine in his pocket.

When the Police looked inside the truck, they found a semiautomatic pistol, loaded on the car seat beside him. The pistol was cocked with one round in its chamber and it had a silencer on it and it had five rounds of ammunition in the chamber. There were also some spent cartridges underneath the floor mat on the driver's side. [ 4 ] More specific details about the pistol are that it was a semiautomatic .45 calibre handgun which falls within the Criminal Code definition of "firearm." It was capable of causing serious bodily harm or death. The handgun had no serial number on it.

The cartridge magazine contained six bullets and was within the definition of "uncontrolled device" under the Criminal Code . The silencer was attached to the pistol and fell within the definition of a "prohibited device" under the Criminal Code . It also had the Accused's fingerprints on it. [ 5 ] When the Accused was asked by the Police why he had all these weapons, at first he said he did not know, he could not explain why. Then, he said he had been drinking non-stop for several days. He then said that maybe he bought them somewhere that day. His Counsel's submissions reiterated that explanation.

He told that to the Police, he told that to the Probation Officer, and he told the same thing to the Psychiatrist who examined him. [ 6 ] He was asked by the Police, by the Psychiatrist, by the Probation Officer when asked why he was wearing a bullet-proof vest, he said that he must have bought it to wear while playing paintball, but was not sure when, or where, or from whom he had bought it. His Counsel's submission reiterated this explanation.

Remember, when he was stopped at about midnight, he was wearing a bullet-proof vest and all the ammunition at that particular time of night, were on his person or in the vehicle. [ 7 ] Mr. Schmidt's relevant past criminal convictions are for trafficking and possession for the purpose of trafficking in drugs; that was March of 2009. Then he had a possession-of-controlled-substance, fail-to-comply-with-a-Recognizance, and trafficking in May of 2010, and then, there were 10 counts of uttering or using counterfeit money in September of 2012.

There were also some 10 additional counts relating to fraud, all of that though, in May and September of 2012. He then was convicted of trafficking in December of 2012. There were no criminal convictions since 2012. [ 8 ] It must be noted however, that due to his past criminal convictions for drug offences, he was subject to four different Firearms Prohibitions rendered between 2008 and 2012. He was, of course, in breach of these four Orders on June 28, 2017, when this offence occurred. [ 9 ] Some of the facts working against Mr. Schmidt are that he was driving drunk in a busy city at midnight.

The gun was openly resting on the seat. The gun was cocked, along with a loaded magazine in it and he had a silencer locked in place. The gun had never been registered in Canada. The gun had no serial number on it. He was drunk. He was under four separate Orders prohibiting him from possessing firearms. He was wearing a bullet-proof vest at midnight.

His “explanations” -- or at least he expressed bewilderment as to how, when, or why he had possession of the guns, the magazines, the silencer and the bullet-proof vest are, in my mind, not satisfactory explanations at all. [ 10 ] Indeed, the Psychiatrist said that he felt the Accused was not being fulsome with him. The Psychiatrist did not know what the reason was for the accused not being fulsome with him. His opinion corroborates, in a sense, the concern I have with his attempted explanation, or lack of explanation, why he would have all these things at midnight on that day in question? [ 11 ] Dr.

Kropp, who was the Psychologist who interviewed him said his presentation during the Assessment was somewhat vague and evasive. For example, it seemed unlikely to him that the accused would not remember how he came into possession of guns, ammunition, silencers, and a bullet proof vest, and was not sure why he was withholding the information. [ 12 ] Facts which help him in the Sentencing Process: (

i) He is only 29 years old; he did not have any behavioural problems as a young teenager but only started to have problems close to his sixteenth year when negative peers came into his life; his Parents ordered him out of the house when he was 16 years old; he stayed out of the house on his own, basically, until he returned home many years later; he left school and he continued with his negative peer group life; his adult record stopped in 2012, although it was fully active before that time, but since 2012, he has had nothing new. (ii) He was placed on Bail for this offence in June of 2017.

The Bail was pretty well house arrest all the time, and that house arrest was at his Parents' place. Notwithstanding the very long time that he has been on bail, there have been no new offences and, unlike many cases, no breaches at all. (iii) S ome other positive things in his favour, according to the PSR and Defence Counsel's submissions are that he made a number of significant changes to his life after he was released on bail in June of 2017.

He has been steadily living at his parents' home, has committed no new crimes, he has not breached his Bail conditions, and the relationship with his Parents, steadily improved since he moved in with them in June of 2017.

(iv) He now is -- and I am still dealing with some positive things for him -- he has been in a serious romantic relationship sinceNovember of 2018 with Holly Nurmeye [phonetic]. She is a positive and stabilizing influence, she has had no involvement in crime, iswell-educated and works full-time as an insurance underwriter. (

v) The couple are expecting a baby next month. Mr. Schmidt, Ms. Nurmeye, and Mr. Schmidt's parents are all excited about thisnew development and purpose in their lives. (vi) Next positive thing for Schmidt, although he has only limited higher education, he has been a very creative businessman, settingup an overseas chili/pepper spice grow operation in Uganda growing crops there to sell all over the world. He has had one sale so far, inthe amount of $50,000.

All of this has developed -- notwithstanding, he has been at home and under house arrest. (vii) Next, he has the support of a financial backer and partner, who was present in Court, who had put up, I think, $200,000 to backthis particular spice venture. The individual I am talking about, the new business partner, Mr. Wafeel, lives in Ontario.

He came toCourt and said that he was aware of the criminal charges and criminal background of the Accused, but still trusts him to be an honestbusiness partner to help build a thriving business together. (viii) The next positive for him, he has not been drinking or taking drugs at all since the offence. He has changed from an unhealthylifestyle to a healthy one, going to the gym regularly, eating properly and regularly attending church. (ix) His alcohol problem was an intense one, but only for a short duration starting about six months before these offences.

Theaccused attributed his drinking non-stop due to difficulties because of a break-up with a former business partner, the collapse of theprevious spice business, his break-up with his then common law wife of one year, financial struggles, living at home with his Parents andnot getting along with them; feeling depressed, feeling like he was an imposition on them and feeling that he was a complete failure. (

x) Still, on his positive side, the Forensic Psychiatric Services prepared a Report, June 5, 2019, to assess Mr. Schmidt's mentalhealth functioning and rehabilitation options. That was the designated purpose for the evaluation. The conclusions were, after a two-hour personal interview with Mr. Schmidt and consultations with “collaterals” that means outside sources and administering certainpsychological tests, the conclusions were that he had what might be called a normal childhood until about the age of 16, at which time hewas thrown out of his Parents' home.

He dropped out of school at the age of 16, and did not go back until he was 21. There are nocurrent or past mental health concerns, according to the Psychiatric Report, although he was struggling with “situational depression” atthe time before the offence, as the Psychiatrist referred to it. [13] Defence Counsel had argued that there was remorse. I have a big question mark there because he does not seem toacknowledge, in my view, in a forthright way what in the world he was doing that night with all of those dangerous things. [14] As to the appropriate sentence, the Crown seeks a term of four years.

The Defence seeks a CSO or 30 months, at most. BothCounsel have provided cases, including the leading case of R. v. Holt, 2015 BCCA 302 , [2015] B.C.J. No. 1482 (B.C.C.A.),which set out the general range of sentencing for these types of weapon offences including loaded guns. The range, according to theHolt case, is between 30 months and seven-and-a-half years.

The Court set the bottom range as 30 months to reflect the growing dangersposed by offenders carrying loaded guns in this Province, and that was per Madam Justice Newbury in the Holt case. [15] Crown and Defence did point me to other cases discussing these types of crimes -- loaded handguns in similar situations, R. v.Jarsch, 2007 BCCA 189; R. v. Desmond, 2011 BCSC 698; R. v. Nur, 2015 SCC 15 , 2015 1 S.C.R. 773; R. v. Guha, 2012BCCA 423. Perhaps the general direction of the Courts was best stated by Mr. Justice Code in the R. v.

Nur Supreme Court case whenhe said: The proliferation of handguns has increased, homicides involving handguns have increased, and the justice system has responded topublic alarm by stiffening its approach to sentencing in cases involving handguns. [16] In Mr.

Schmidt's case, the aggravating factors include these: the gun was loaded; the gun was cocked; there was a bullet in thechamber; the magazine was loaded; there were spent cartridges on the floor; he was drunk; he had a bullet-proof vest on in unexplainedcircumstances; the Accused could offer no logical explanation as to how, where, or why he came to be in the possession of these items,that is, he could not or would not offer any explanation; he was driving in a very populated city at the time of the offence; the weaponswere on the seat beside him; he has a past record, particularly for drug trafficking; he was subject to four prior Prohibition OrdersProhibiting him from possessing firearms, and these were the result of past convictions going back to 2009, 2010, 2012, for drug cases;the gun was not registered; a silencer was on the gun; the serial number of the gun was apparently removed. [17] All cases are, of course, different.

The facts are always different and the backgrounds of the offender are always different. Theconsiderations that a judge has to take into consideration at any sentencing are set out in the Criminal Code under the

Section entitled,"Principles of Sentencing." A judge has to scrupulously consider all of these factors, including the assessment of moral blameworthinessas being high or low, when considering what should be a proper sentence in any given case. In these types of offences, the primaryconsideration to be considered is general and specific deterrence, as well as denunciation of the offence.

However rehabilitation is, ofcourse, also to be taken into consideration as an important concern, but the case law is clear that the rehabilitation concerns take a backseat to the primary concerns of specific and general deterrence, public safety and denunciation by the Court. [18] The Court cases show lower ends of sentencing when the following factors are involved and by "lower end," I mean threeyears: the guns are not loaded; unrelated criminal record; medical or psychological issues might lower the responsibility of the offender;true remorse; lifestyle changes since the offence; difficult upbringings; drug and alcohol addiction; mental health issues; length of timesince last criminal offence; length of time on bail or house arrest; performance while on bail; what the offender has done to change hislifestyle; criminal lifestyle before and after the offence; gang associations or no gang associations; whether the offender carried a loadedgun in public as a tool of their criminal trade or criminal activity; were they was someone involved in what has been called “true crime”on the 5.95(1) spectrum. [19] Here, Mr.

Schmidt's unexplained, unlicensed possession of a loaded unregistered prohibited handgun while driving in a densely

populated urban area puts him, in my view, squarely in the “true crime” end of s. 95(1) offences' spectrum. This follows the wording of the decision in R. v. Kachuol , [2017] B.C.J. No. 1591 . Just reading briefly from that at paragraph 26 of that Kachuol judgment: [26] As Madam Justice Smith recognised in Guha at para. 30 , when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary.

Common sense and human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of “tragedy in gestation”. By criminalizing such conduct via s. 95(1) , the law intervenes before [somebody actually harms or commits a crime, in fact] … By imposing severe exemplary sentences for possession simpliciter , courts support and advance the goals of this intervention. … [28] There was nothing in the evidence to indicate that Mr.

Kachuol’s possession of the loaded, prohibited “crime gun” was for anything other than a criminal purpose. Nor did he even suggest it. There was simply no possible benign reason for his unlawful possession of the loaded gun apparent on the evidence. In such circumstances, proof of a direct connection with other criminal activity was unnecessary to situate the offence at the “true crime” end of the s. 95(1) spectrum. In my view, requiring such proof would tend to defeat the purpose of the provision. Last paragraph, 29: Mr.

Kachuol’s possession of the loaded prohibited handgun in a moving car, strategically placed for ready access and entirely outside of the regulatory framework, posed a real and immediate danger to those in his orbit. The risk was increased by his consumption of alcohol and the urban environment in which he possessed the “crime gun”. Other … factors, such as his prior criminal record and firearms prohibition, were also present.

Given the serious nature of his offence, his degree of moral culpability and the paramountcy of deterrence and denunciation, and despite his positive personal attributes and rehabilitative prospects, a sentence below the bottom end of the “criminal range” established in Holt cannot be justified. Mr. Kachuol’s case was not exceptionally unique or even favourably distinguishable from Nur or Holt in any material sense. [ 20 ] A three year sentence was imposed in the R. v.

Kachuol (supra) case. [ 21 ] The Defence asked that I consider a Conditional Sentence Order as a first alternative, although it was more realistically pressed by the Defence that it be a 30-month jail term. [ 22 ] A CSO is not a reasonable sentence in the circumstances of this case considering the circumstances of the offence, the personal circumstances of the accused, the established range of penalties for this type of crime, the purpose of substantial real jail time for this type of crime, and the category of a “true crime” that he fell within.

So, a Conditional Sentence Order, really, is not a practical reality. [ 23 ] In terms of what the final sentence should be, having considered the cases, having considered the principles of sentencing, having considered the positive things that he has done in his life and what he currently has going for him, the Sentence imposed will be three-and-a-half years, and that will be minus his time served. [ 24 ] What is the time? [ 25 ] MR. MAHONEY: We agreed to 29 weeks, Your Honour, as being the appropriate amount, which is time-and-a-half for the time he spent in custody. [ 26 ] THE COURT: Okay.

So, his Sentence, actually, will be three-and-a-half years minus 29 weeks. All right. Do you need that more specific for the record, Madam Registrar? [ 27 ] MR. MAHONEY: I do not think so. I think that is pretty clear. [ 28 ] THE COURT: Is it? All right. [ 29 ] MR. MAHONEY: Yes. By way of Ancillary Orders, Your Honour, it is not appropriate for victim surcharge. It was before the date. [ 30 ] THE COURT: Yes. [ 31 ] MR. MAHONEY: It is a primary DNA offence and it is also an offence that attracts a lifetime firearms prohibition. [ 32 ] THE COURT: All right. Any comment on that, counsel? [ 33 ] MS.

ELDEN: I am not opposed to the Ancillary Orders, Your Honour. [ 34 ] THE COURT: Thank you. All right. A DNA sample will be taken at the first reasonable opportunity, and should be taken in circumstances that give him the least amount of personal interference with his bodily functions and privacy. [ 35 ] A lifetime Prohibition is now in place that he cannot -- what

section are we under for that? [DISCUSSION RE FIREARMS PROHIBITION SECTION] [ 36 ] THE COURT: 109, mandatory prohibition, and I am just going to find it. [ 37 ] MR. MAHONEY: Yes, that is right. So, it is a s. 109, Your Honour; 110 is the discretionary ones. [ 38 ] THE COURT: Right. I will just be a second here. All right.

[ 39 ] So, you are not to possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for the rest of your life. [ 40 ] MR. MAHONEY: Thank you, Your Honour, and then we will complete it with a Stay of Proceedings on the other outstanding counts. (REASONS CONCLUDED)