Court of Appeal for Ontario

Date: 2023-08-28 Docket: COA-22-CR-0371

Before: Hourigan, Brown and Monahan JJ.A.

Between: His Majesty the King Respondent

And: Adam Simeunovich Appellant

Counsel: Myles Anevich, for the appellant Nicole Rivers, for the respondent

Heard: August 16, 2023

On appeal from the sentence imposed on September 15, 2022 by Justice Nathan N. Baker of the Ontario Court of Justice.

Brown J.A.:

Background

[1] The appellant, Adam Simeunovich, seeks leave to appeal the 8.5-year sentence imposed upon him in September 2022 for driving while disqualified convictions.

[2] At the time of sentencing, the appellant was 45 years old and he had not yet fully served the ten-year sentence imposed on him for an August 2018 conviction for criminal negligence causing bodily harm. The facts underlying the 2018 conviction were that while driving the appellant had fled from police, sped through a red light, collided with another vehicle, and seriously injured the other driver, who suffered a broken collar bone, six broken ribs, two fractures of the pelvis, and internal abdominal bleeding, as well as head trauma causing hearing loss and blurred vision: R. v. Simeunovich, 2019 ONCA 856 (“Simeunovich (ONCA)”), at para. 4.

[3] Following his 2018 conviction, the appellant was released on parole. Reincarcerated in November 2020 when new charges were laid against him, he was acquitted of those charges. The appellant was released on parole once again on September 23, 2021, subject to a further prohibition from operating a motor vehicle.

[4] Less than three months later, on December 8, 2021, while still living in a halfway house on parole, the appellant was observed by police operating a pick‑up truck for over an hour. When arrested, the police found the appellant in possession of a fraudulent, forged driver’s licence.

[5] At the time of his arrest in 2021, the appellant was subject to 22 driving prohibitions – 14 under the Criminal Code and 8 under provincial legislation – which stemmed from eight previous convictions. He was also subject to a lifetime prohibition from driving.

[6] On September 1, 2022, the appellant pleaded guilty to five counts of driving while disqualified contrary to s. 320.18(1) of the Criminal Code, R.S.C. 1985, c. C‑46.

[7] Over the years, Parliament has increased the maximum sentence for the offence of driving while disqualified: before 1999, the maximum sentence was two years; it was raised in 1999 to five years; and, as a result of 2018 amendments, at the time of the appellant’s sentencing the maximum sentence was (and remains) ten years (s. 320.19(5)(a)).

[8] On September 15, 2022, the sentencing judge imposed a custodial sentence of 8.5 years concurrent on all counts, with the sentence to be served consecutive to any sentence the appellant was currently serving. At the time, the appellant had 3 years and 10 months left to serve on his 2018 criminal negligence conviction.

[9] The appellant’s criminal record is extremely lengthy. At the time of his 2018 sentencing, the appellant’s record consisted of 55 convictions for both driving-related and non-driving offences: R. v. Simeunovich, 2018 ONCJ 581 (“Simeunovich (ONCJ)”), at para. 58. The appellant has been convicted of more than 30 driving offences (including dangerous operation, flight while pursued by police officers, failure to stop, and possession of a counterfeit driver’s licence), of which 15 are prior convictions for driving while disqualified over the period from 2008 to 2018. Prior custodial sentences for driving while disqualified had not exceeded 2 years less a day.

[10] In seeking leave to appeal his sentence, the appellant advances two grounds of appeal.

First Ground of Appeal: Insufficiency of Reasons

[11] The appellant first submits that the sentencing judge did not provide sufficient reasons. I disagree. The sentencing judge’s reasons permit meaningful appellate review.

Second Ground of Appeal: Errors of Principle

[12] Sentencing determinations are owed considerable deference on appeal. Appellate intervention is justified only where: (i) the sentence imposed is demonstrably unfit; or (ii) there is an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor, and it appears from the trial judge’s decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 26-28.

[13] An appellate court may not intervene with a sentencing decision simply because it would have weighed the relevant factors differently. The weight given to a mitigating factor is a discretionary decision that is afforded significant deference on appeal and will only constitute an error in principle if discretion is exercised unreasonably: Lacasse, at paras. 39-40, 48-49. Moreover, the relevant mitigating and aggravating factors are considered in a holistic manner to arrive at a composite sentence, as opposed to analysing the relevant factors in isolation from each other: R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417, at para. 27.

[14] The appellant contends that the 8.5-year sentence imposed by the sentencing judge was the product of several errors in principle:

The sentence was disproportionate, in that it was crushing, harsh, and excessive;
The sentence failed to apply the principle of parity: the appellant points to several cases that he contends disclose a sentencing range for driving while disqualified between 18 months and four years;
The sentence violated the jump principle as it imposed a disproportionate increase over the appellant’s prior custodial sentences for driving while disqualified, which had not exceeded two years; and
The sentence offended the totality principle because the combined effect of the 8.5-year sentence imposed, together with the 3 years and 10 months left on the 2018 conviction, was simply “too harsh and excessive”. Alternatively, even if the 8.5-year sentence was proportionate, the sentencing judge gave no tempering effect to the 3 years and 10 months remaining on the 2018 conviction, thereby ignoring the totality principle.

[15] For the reasons that follow, I conclude that the sentencing judge did not ignore or misconstrue any relevant sentencing principle. While I might not have applied the totality principle in the same way as the sentencing judge did, I see no basis for appellate interference.

Proportionality and Parity

[16] The sentencing judge properly instructed himself that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As the Supreme Court of Canada instructed in R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at para. 10, proportionality is the organizing principle in reaching the goal of a fair, fit, and principled sanction for a specific case; the principles of parity and individualization, while important, are secondary principles.

[17] While the sentencing judge recognized that the principle of restraint must always be remembered in sentencing, his reasons disclose that in arriving at the sentence imposed he placed great weight on several aggravating factors: the appellant’s lengthy record; his commission of the offences while he was still on parole; and the fact that his decision to drive while disqualified was not made on the spur of the moment, but was a conscious choice to drive – notwithstanding the numerous binding prohibition orders – facilitated by using a counterfeit driver’s licence. The sentencing judge’s conclusion that “no order of a court was going to stop [the appellant]” was firmly anchored in the record before him.

[18] In fact, that conclusion by the sentencing judge echoes the one voiced by this court four years earlier in its reasons dismissing the appellant’s appeal from his 2018 sentence of ten years’ incarceration: Simeunovich (ONCA). In the context of rejecting the appellant’s submission that the ten-year sentence imposed violated the jump principle, this court stated, at paras. 14 and 15:

The appellant argues that the total sentence violated the jump principle. He argues that, because the most serious previous sentence he has received was 30 months’ imprisonment, a sentence of 10 years (less pre-sentence custody) was crushing. Again, we disagree.

The appellant’s behaviour has not been curbed by his many previous sentences. The appellant’s most recent suite of offences demonstrate how intent he is on driving, despite multiple court orders that prohibit him from doing so. The offences also demonstrate how little regard the appellant shows for the lives and safety of others. Indeed, on this occasion, the appellant literally ran away after seriously injuring another driver. The trial judge was right to place public safety above the other sentencing aims and objectives. In light of his past, the appellant’s offences required the imposition of a sentence that was considerably longer than the sentences that the appellant had previously received. We note that the sentencing position of defence counsel at trial (6.5 years’ imprisonment, less pre-sentence custody) was also a considerable step up from previously imposed sentences. We see no error. [Emphasis added.]

[19] Although the appellant’s driving on December 8, 2021 did not display the elements of dangerous driving causing injury to another that led to his 2018 convictions, the sentencing judge properly observed that when a person who has been prohibited from driving on multiple occasions continues to drive while disqualified, they present a risk to public safety: R. v. Lavergne, 2018 ONCJ 901, at para. 86.

[20] The gravity of this risk to public safety was reflected in Parliament’s 2018 amendment that increased the maximum penalty for the offence of driving while disqualified from five years to ten years. The cases most heavily relied upon by the appellant to support his argument about the disproportionality and lack of parity of the sentence imposed were decided at a time when the maximum sentence for the offence was five years and, consequently, provide little guidance. For, as the Supreme Court has directed, courts should depart from prior sentencing precedents when they no longer reflect society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders: Friesen, at paras. 35, 108, and 110; Parranto, per Moldaver J. (concurring), at para. 86.

[21] When the sentence imposed is viewed through those legal lenses, the appellant’s lengthy criminal record, and his evident intention to ignore the driving prohibitions repeatedly imposed upon him over the years, I am not persuaded that the sentencing judge arrived at a sentence that did not reflect the gravity of the offence or the appellant’s blameworthiness.

The Jump Principle

[22] In his reasons, the sentencing judge also considered the application of the jump principle, which stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences, provided the subsequent offence is not significantly more serious than the prior offence: R. v. Green, 2021 ONCA 932, at para. 11. The sentencing judge drew on caselaw that holds the jump principle has less relevance where rehabilitation is not a significant factor influencing sentence: R. v. Robitaille (1993), 31 B.C.A.C. 7, at para. 9. A similar point was made by this court in Green where it stated, at para. 12:

As noted by Rosenberg J.A. in [R. v. Borde (2003), 63 O.R. (3d) 417], at para. 39, the jump principle “has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”. The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender. [Emphasis added.]

[23] In the present case, the sentencing judge properly proceeded on the basis that the jump principle had little application to sentencing the appellant. Numerous driving prohibition orders have not deterred the appellant from driving while disqualified. In its 2019 decision, this court described the appellant as a “serious serial recidivist of driving offences under the Criminal Code” and noted his “incorrigibility”: Simeunovich (ONCA), at paras. 2, 13. In his 2018 sentencing reasons, West J. characterized the appellant as “an incorrigible and uncontrollable offender”: Simeunovich (ONCJ), at para. 53. In those reasons, West J. also made these prescient comments, at para. 93:

[Mr. Simeunovich’s] actions demonstrated a wanton and reckless disregard for the lives and safety of others, putting his own interests above anyone else. Considering his criminal record for dangerous driving, failing to stop for police, failing to stop when he is involved in an accident and driving while he is prohibited, it is my belief that as soon as Mr. Simeunovich is released from custody he will continue to drive and he will put his own interests above anyone else, completely unconcerned about putting other members of the public at risk. [Emphasis added]

[24] And the appellant did precisely that, leading to his present convictions.

[25] Finally, I see no merit in the appellant’s submission that the jump principle narrowly confined the sentencing judge to measuring any permissible increase in sentence against only the last, highest conviction for the offence of driving while disqualified. A sentencing judge is entitled to take a more holistic view of the past and present conduct of the offender. This is evident from the remarks of this court in its 2019 decision involving the appellant, quoted above in para. 18. (See also R. v. Antaya, 2022 ONCA 819, where this court stated, at para. 19, in the context of an order imposed for breach of a conditional sentence, that the application of the jump principle would have to include a consideration of the circumstances of the offence for which the conditional sentence was originally imposed, and the circumstances of the breach of the conditional sentence order).

The Totality Principle

[26] As mentioned, when the sentencing judge imposed a custodial sentence of 8.5 years concurrent on all counts, with the sentence to be served consecutive to any sentence the appellant was then serving, the appellant had 3 years and 10 months left to serve on his 2018 criminal negligence conviction.

[27] The totality principle is a particular expression of the general principle of proportionality: Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §2.75. The principle of totality requires a court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender’s overall culpability: Friesen, at para. 157.

[28] The sentencing judge’s reasons disclose that he considered the application of the totality principle in the context of the appellant’s prior and existing sentences, taking into account the time left for the appellant to serve on his 2018 sentence: see Reasons, Transcript, at pp. 9-11. I take from the passage the sentencing judge quoted from this court’s decision in R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, that he was alive to the tension inherent in considering the effect of the application of the totality principle where an offender faces time to serve on an earlier sentence. The sentencing judge cited the earlier decision of R. v. Gorham (1987), 22 O.A.C. 237 where this court had stated that “the principle of totality must have a substantially reduced effect upon a sentence where part of the total term is based upon a remanet.” At the same time, the sentencing judge quoted from para. 24 of this court’s later decision in Johnson that viewed such “reduced effect” as taking into account considerations regarding the need to protect the integrity of the sentencing process while recognizing that there will be situations where, globally speaking, a combined sentence would be too harsh and excessive.

[29] At para. 25 of Johnson, this court described the task facing a sentencing judge in such circumstances:

[A]t the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances.

[30] While I might have applied the totality principle to arrive at a different sentence than that reached by the sentencing judge, I do not see the sentencing judge’s analysis as tainted by legal error that would justify appellate interference. Nor do I regard the sentence imposed as demonstrably unfit in the circumstances. It was one open to the sentencing judge to impose given the appellant’s lengthy record, the gravity of his offences, his wilful disregard for and intentional breach of numerous driving prohibitions, and his incorrigibility.