Ontario judge overturns a man’s criminal record who attended Windsor border blockade protest

The Ontario Superior Court of Justice has overturned the suspended sentence of Theodorus DeBoer, a 70-year-old first-time offender who pled guilty to mischief charges related to his participation in a protest at the Ambassador Bridge in Windsor, Ontario, during the COVID-19 pandemic. The Court has replaced the suspended sentence with a conditional discharge.

DeBoer, who participated in the protest for only one day, was charged for interfering with the lawful operation of commercial vehicles transporting goods across the bridge. Despite the Crown initially intending to call up to eight witnesses for trial, DeBoer entered a guilty plea on November 7, 2023, the first day of his trial. The plea followed testimony from the first witness.

Both the defense and prosecution had jointly recommended a conditional discharge with 12 months of probation and 20 hours of community service, emphasizing DeBoer’s minimal blameworthiness and expression of remorse. However, the trial judge rejected this joint submission and imposed a more severe suspended sentence. In response, DeBoer’s defense appealed the ruling, arguing that the trial judge erred by deviating from the joint submission.

In his decision, Justice K.A. Gorman criticized the trial judge for applying a “fitness test” instead of the established “public interest test” outlined in the Supreme Court case R. v. Anthony-Cook. Under the public interest test, a judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or be otherwise contrary to the public interest.

Justice Gorman ruled that the trial judge inappropriately compared DeBoer's case to another unreported case, R. v. Mandalawi, which also arose from the same protest. The judge’s reliance on this comparison, Gorman noted, was unjustified and placed the defense in a difficult position.

“The appropriate test,” Gorman stated in his ruling, “should have been whether the joint submission would bring the administration of justice into disrepute, which it clearly did not.” He further highlighted that DeBoer's guilty plea saved judicial resources and demonstrated his remorse.

The appeal was allowed, and the court substituted the suspended sentence with a conditional discharge. Under this new ruling, DeBoer will not have a criminal record if he completes the terms of his probation. A conditional discharge means the individual is found guilty but not convicted, and after fulfilling probation, the discharge will not result in a criminal record. This marks a significant difference from the original suspended sentence, which would have resulted in a permanent criminal record.