Court of Appeal for Ontario

Date: 2017-09-06

Docket: C58332

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Greg Simard Appellant

Counsel

Gordon D. Cudmore and Perrie Douglas, for the appellant

John Patton, for the respondent

Hearing and Release

Heard and released orally: August 30, 2017

On appeal from: The conviction entered on October 18, 2013, and the sentence imposed on December 17, 2013 by Justice Jeanine E. LeRoy of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to counts of attempted murder, unlawful confinement, uttering death threats and assaulting a police officer in the execution of her duty. Despite his plea of guilty, he advanced a mental disorder defence seeking a verdict of not criminally responsible on account of mental disorder.

[2] The trial judge rejected the denial of criminal responsibility and sentenced the appellant to imprisonment for a term of 20 years less credit for predisposition custody.

[3] The appellant seeks leave to appeal sentence. He contends that the sentence imposed is manifestly unfit and fails to assign sufficient weight to his mental illness as a mitigating factor on sentence.

[4] The appellant was a 24-year-old caregiver at a facility which housed developmentally-challenged residents. The complainant in the counts of attempted murder and unlawful confinement resided at the facility during the week. He was severely autistic and non-verbal.

[5] Late one evening after several conversations with a co-worker about the complainant, the appellant surreptitiously left the facility with the complainant. He took the complainant into a nearby woods, beat him severely, left him there naked from the waist down and returned to the facility. When a co-worker asked the whereabouts of the complainant, the appellant told her to "shut up or he would kill you". As the appellant later explained it:

I tried to kill a retard because he was a drain on society, I took him into the bushes and beat the fuck out of him. I thought he was dead.

[6] As a result of the beating, the complainant was hospitalized for six months. He suffered bleeding in his brain, permanent brain damage and suffers from leg and hand tremors. Several teeth were fractured. He cannot fully extend his right arm, he continues to require and will continue to require various forms of physio, occupational and movement therapy.

[7] The appellant, who is now 29 years old, appears to have had a good upbringing. He completed a two-year college diploma program with some academic distinction and did well in his work placements. His parents remain supportive of him. He was a recreational drug user whose behaviour seemed to change significantly when he had consumed drugs.

[8] Two psychiatrists testified on the NCR hearing. They differed on their diagnoses and on the issue of criminal responsibility. One identified the underlying disorder as "likely" schizophrenia. The other considered an adjustment disorder or drug-induced psychosis was more apt.

[9] At trial, Crown counsel sought a sentence of imprisonment for life to implement the predominant sentencing objectives of deterrence and denunciation and to reflect the high moral blameworthiness of the appellant.

[10] Defence counsel advocated a sentence in the range of six to ten years to achieve an appropriate balance between denunciation and deterrence, on the one hand, and rehabilitative prospects and reduced moral blameworthiness, on the other.

[11] The trial judge gave lengthy reasons for sentence. She recognized the relevance and significance of the appellant's mental condition to his moral blameworthiness for the principal offence – attempted murder – and thus to the length of sentence she would impose. She acknowledged the contribution of the appellant's disorder to the commission of the offence. In substantial part, it was this condition, more accurately, its impact on moral blameworthiness, that caused the trial judge to reject the position of the Crown that she should impose a sentence of imprisonment for life.

[12] It is also fair to say that the psychiatric evidence lacked precision and included a caution from one of the examining psychiatrists about the prospect or likelihood of malingering.

[13] On a fair reading of the reasons for sentence as a whole, in light of the submissions made by counsel that focused on mental disorder and moral blameworthiness, we cannot conclude that the trial judge gave inadequate weight to the appellant's mental condition as a mitigating factor on sentence.

[14] Neither do we regard the principal sentence of imprisonment for 20 years as manifestly unfit.

[15] This offence was an egregious breach of trust. It involved a savage and brutal attack on a defenceless vulnerable complainant simply because the complainant was intellectually challenged. It was accompanied by the most morally culpable state of mind known to our criminal law – the intent to kill. It reflects a callous disregard for human life evidenced by the remarks made by the appellant upon apprehension. It rendered a severely compromised child from a minimally functional condition to a state of near-complete dependency, including the necessity of wearing diapers.

[16] The appeal from conviction is dismissed as abandoned. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

[17] At the request of the family, the ban on publication imposed at trial under s.486.5 is set aside.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.