Mr. Schmitt is a repeat driving offender. When sentenced on the matter that later brought him to the Court of Appeal, he had two convictions for driving with an excess blood alcohol level, eight convictions for driving while disqualified and one for flight from police. He was, as of December 2012, subject to a lifetime prohibition from operating a motor vehicle in Canada. In December 2012, he was stopped while driving a vehicle with several passengers and charged with driving while disqualified. There was no emergency or mitigating circumstance. Mr. Schmitt simply feels, it was revealed in a pre-sentence report, that he needs to drive because he lives in rural Alberta.
The Crown sought a sentence of nine months in gaol, plus a further lifetime driving prohibition. This would have been a step up from Mr. Schmitt’s recent sentence for the same offence of six months in gaol. The sentencing judge agreed that nine months in custody was an appropriate sentence, but continued:
But you know why I’m not going to put you in gaol? Because I think you put your wife who looks very unhappy in the back row and your daughter who has been kind enough to come up here and help you, I think you put them both through enough, I don’t know about the other family members. But I don’t think it’s fair for you to even consider doing something that might again put your wife and your daughter here in this position. …
And let’s be clear. I am doing this reluctantly because I think you deserve to go to gaol. I’m not putting you in gaol really for the reasons I’ve indicated but also because you’re getting to be an elderly man. You’re not as old as I am but you’re well past being old enough to know better and I don’t think prison is a great place for somebody your age. So I am in a sense bending over backwards not to put you in gaol because I do agree with the Crown but I’m very sympathetic to your wife and your daughter.
A sentence of three years probation was imposed, with typical conditions.
The Court of Appeal acknowledged that the impact of a sentence on family members may sometimes be a relevant consideration in sentencing; however, the Court continued: “Sympathy for the respondent’s family cannot be allowed to override all of the other considerations for sentencing set out in the Criminal Code.”
In the offender’s circumstances, specific deterrence was a clear concern. As well, general deterrence and denunciation were relevant considerations. The original sentence was found to be unfit and a sentence of nine months in custody was ordered.