Ontario Court of Justice

Date: August 24, 2018

Court File No.: Central East Region: Oshawa Court 17-34340-00

Between:

Her Majesty the Queen

— and —

Adam Simeunovich

Before: Justice Peter C. West

Sentencing Submissions Heard on: June 14, 2018

Reasons for Judgment Released on: August 24, 2018

Counsel:

• Mr. K. Polley — counsel for the Crown
• Mr. D. Zekavica — counsel for the accused Adam Simeunovich

WEST J.:

Introduction

[1] On December 18, 2017, a trial was commenced on charges of criminal negligence causing bodily harm (s. 221), dangerous driving causing bodily harm (s. 249(3)) and fail to stop at the scene of an accident knowing bodily harm was caused (s. 252(1.2)). These charges arose out of a motor vehicle accident on April 12, 2017, at the intersection of Dundas Street West and McQuay Blvd in Whitby, Ontario. Mr. Simeunovich pleaded guilty to possession of a counterfeit mark (s. 376(2)(d)) and operation of a motor vehicle while disqualified (s. 259(4)) prior to the commencement of the trial after I conducted a plea comprehension hearing pursuant to s. 606(1.1). On December 20, 2017, after the testimony of numerous witnesses Mr. Simeunovich changed his plea and pleaded guilty to two additional charges:

1. Criminal Negligence causing bodily harm;
2. Fail to stop at the scene of accident knowing bodily harm caused;

[2] Prior to those guilty pleas being entered by Mr. Simeunovich, I again conducted a plea comprehension hearing pursuant to s. 606(1.1). Mr. Simeunovich acknowledged his intention to prematurely end his trial, change his plea to guilty to the additional two counts in the Information. He confirmed he was aware of the consequences of his guilty pleas, he was aware he was giving up his right to continue his trial and he was aware of the different sentencing positions being taken by the Crown and his counsel. He was also aware the decision as to the appropriate sentence would be determined by myself as the sentencing judge.

[3] An agreed statement of facts was read and filed, together with numerous exhibits including diagrams, Google maps, photographs, a dash cam video of a portion of the driving of Mr. Simeunovich, a Crash Data Retrieval Report taken from Mr. Simeunovich's F150 Ford pickup, a Time-Distance Study Based on the CDR Report and a Map detailing the Time-Distance Study. It was also agreed that the evidence I heard during the three days of trial were part of the facts upon which Mr. Simeunovich's plea was based. Mr. Simeunovich agreed the Agreed Statement of Facts, the evidence called at the trial and Exhibits filed were correct and I made a finding of guilt, based on his guilty pleas and admission of the facts. His criminal record and his HTA, Ontario Ministry of Transportation Driving Record were filed as exhibits. I entered convictions on all charges. A pre-sentence report was ordered and sentencing was adjourned to April 18, 2018.

[4] The sentencing hearing on April 18, 2018, was adjourned because Mr. Zekavica was involved in a continuing murder trial before a jury and was unable to attend. Sentencing was adjourned to June 14, 2018. I have received an application for enhanced credit for Mr. Simeunovich's time spent in pre-trial custody as a result of a serious assault which caused him bodily harm that he received while in custody at CECC, 6 days after his arrest, at the hands of three inmates.

[5] The Crown is seeking a penitentiary sentence of 10 years as a result of Mr. Simeunovich's extensive criminal record and M.T.O, driving record and the significant and serious aggravating circumstances involved in this case. Mr. Zekavica submits the appropriate sentence is one of 6.5 years. Both counsel agreed I should reduce whatever sentence is imposed by the credit given for Mr. Simeunovich's pre-trial custody.

Factual Background of the Offences

[6] In early 2017, Mr. Simeunovich was subject to 14 drive while disqualified convictions and numerous convictions for dangerous operation (seven), fail to stop at accident (three) and flight while pursued by police (three) under the Criminal Code. I will deal with Mr. Simeunovich's criminal record and driving record in greater detail when I address his personal background and the aggravating circumstances. Notwithstanding these numerous convictions and a lifetime suspension by M.T.O. and a number of lifetime prohibition orders, Mr. Simeunovich was able to purchase a Ford F150 pickup truck, which he registered and licensed under a numbered company (1959677 Ontario Ltd). He was the sole proprietor of this numbered company. In order to purchase the truck he showed the vendor an Ontario Driver's License in his name, which was a forgery, including a counterfeit Ontario Trillium mark. The driver's license showed it had been issued on 2015/11/09 and expired 2020/11/05. Mr. Simeunovich has been a suspended driver since 1998 and is subject to over 50 driving suspensions and 14 driving prohibitions, including three lifetime prohibitions.

[7] The facts dealing with his possession of a counterfeit mark (forged Ontario Trillium mark pursuant to s. 376(2)(d) of the Code, his obtaining this forged Ontario driver's license in his name, his purchase of this Ford F150 pickup and setting up the numbered Ontario company demonstrates a significant planned and deliberate course of conduct on his part in order to circumvent the lifetime suspension and lifetime prohibition orders that were in place.

[8] On April 12, 2017, around 11:45 a.m., Mr. Simeunovich was driving his Ford pickup and was stopped on Manning Street, Whitby, waiting to make a left turn onto Garden Street. Mr. Simeunovich observed a marked police vehicle with its emergency equipment activated, which was responding to an emergency alarm at a public school, come up behind his truck. The officer honked his police horn to get Mr. Simeunovich to move and pull over. Mr. Simeunovich did not immediately move but eventually moved a bit to the right, however, he was now blocking two lanes. Mr. Simeunovich then suddenly and abruptly sped through the intersection and went southbound on Garden Street at a high rate of speed, well in excess of the posted speed limit.

[9] P.C. Roffey also made the left turn onto southbound Garden and although he believed the driver of the F150 was driving dangerously, he made a decision not to attempt to stop the driver because of a concern this would create a risk to public safety.

[10] It was admitted by Mr. Simeunovich that he drove in this manner dangerously because he believed the officer wanted to stop him and he did not want the officer to discover he was prohibited from driving, however, his belief that the police were chasing him was incorrect.

[11] When Mr. Simeunovich got to Dundas Street he drove through the Petro Canada station at the corner of Garden Street and Dundas Street, driving at a speed of 45 km/hr. There were cars at the gas pumps and in the Petro Canada lot, as well as pedestrians. This was observed by the police officer and was considered to be an extremely dangerous maneuver.

[12] Information was obtained from the Crash Data Retrieval (CDR) from the Ford F150 pickup, which identified the speed and route driven by Mr. Simeunovich between Manning Road and McQuay Blvd (see Exhibit 6 [Report of D/Cst Gibbins] and Exhibit 7 [Report of D/Cst Bryson] and Exhibit 8 [Map showing route taken by Mr. Simeunovich from Manning to McQuay, each segment is marked by a different colour]).

[13] The following summary sets out this information, together with the witness' evidence called during the trial prior to Mr. Simeunovich's guilty plea and from a dash cam video, Exhibit 4 that one of the witnesses had installed in their vehicle.

1. After turning left onto Garden Street southbound, Simeunovich accelerated from 0 to 61 km/h (16 seconds) (Red);

2. Sudden acceleration southbound on Garden Street from 61 km/h to 148 km/h (18 seconds) Maintained speed between 140-148 km/h (10 seconds) This was a school zone where the posted speed was 40 km/h (Green);

3. As the pickup approached Dundas Street it braked to 42 km/h (10 seconds) (Blue);

4. The Ford F150 pickup drove through Petro Canada property at corner of Garden/Dundas at speed of 45 km/h. The pickup increased its speed on Dundas Street from 45 km/h to 138 km/h (22 seconds) decreasing to 122 km/h (4 seconds) to Perry Street just before Brock Street, Whitby (Yellow);

5. The Ford F150 pickup's speed decreased from 121 km/h to 56 km/h as it drove through the red light at Brock Street (5 seconds), the pickup drove on the exit to northbound Brock Street and then drove over the marked chevrons to the right of the vehicles stopped at Brock Street for the red light Note: The dash cam video (Exhibit 4) from one of the vehicles stopped at the red light showed the pickup narrowly miss a van that had been lawfully proceeding southbound through the green light, it slammed on its brakes and further, the pickup narrowly missed two pedestrians about to step off northwest curb to walk southbound on the Brock Street crosswalk, the two pedestrians stepped back onto the sidewalk because they heard the revving sound of the pickup as it ran the red light (Red);

6. The Ford F150 pickup's speed increased from 55 km/h to a high of 80 km/h after it went through the intersection at Dundas/Brock and then reduced its speed to 48 km/h (17 seconds) Note: The dash cam video (Exhibit 4) showed and the witnesses observed the pickup drive in the eastbound lane of Dundas Street up an incline to Kent Street where it came back into westbound lane of Dundas (Green);

7. The Ford F150 pickup's speed increased from 48 km/h to 108 km/h (17 seconds) along Dundas and then increased to 135 km/h (8 seconds), the vehicle drove past a senior's nursing home and a school area (Blue);

8. The Ford F150 pickup's speed then slowed to 87 km/h (4 seconds) (Yellow);

9. The Ford F150 pickup's speed increased from 87 km/h to a high of 121 km/h and then slowed to 114 km/h travelling from just west of Cochrane Street and ending .89 km east of McQuay Blvd. (16 seconds) The pickup was moving at these high speeds from lane to lane passing slower moving vehicles, driving in the middle left turning lane and then moving into the centre westbound lane and then moving into the far right lane passing slower vehicles. These maneuvers continued as he approached McQuay and were observed by a number of witnesses who testified during the trial (Red);

10. The Ford F150 pickup's speed reduced from 113 km/h to 66 km/h (4 seconds) before Mr. Simeunovich drove through the red light at Dundas and McQuay and struck the Volkswagen Golf, which was driven by Daniel Euripidou, in the driver's door causing it to end of in southwest grassy area of the intersection. The pickup spun around 180 degrees coming to rest in the westbound centre lane against a car in the eastbound centre lane on the west side of the intersection stopped for the red light (Green).

[14] Mr. Euripidou fortunately survived the collision. I will deal in more detail with his injuries and the impact on him and his family caused by this collision when I address Mr. Euripidou's Victim Impact Statement.

[15] After crashing into the Volkswagen, Mr. Simeunovich also crashed into a second vehicle occupied by Constantin Bovolaneas and his wife, Leticia. This secondary crash was far less severe than the first collision and neither of these two persons were seriously hurt.

[16] Exhibit 1 is a diagram showing the intersection of Dundas and McQuay Blvd. and the final resting position of the Ford F150 pickup against the Bovolaneas' vehicle and the Volkswagen Golf.

[17] Despite Mr. Simeunovich knowing that the severe nature of the collision was of such gravity and force that the driver of the Volkswagen Golf had to have suffered significant bodily harm, Mr. Simeunovich fled the scene by exiting his pickup truck, walking quickly into the parking lot adjacent to the Tim Horton's and Shopper's Drug Mart with the intent to evade criminal and civil liability. Mr. Simeunovich hid behind the Shopper's Drug Mart but concerned citizens, who observed the serious collision caused by Mr. Simeunovich running the red light and then saw him exit the F150 pickup truck, had followed him into the parking lot. They called 911. Mr. Simeunovich fled again, jumping fences into residential backyards until he ended up in a wooded area. Police began searching the area with a police dog who eventually found Mr. Simeunovich hiding in the wooded area.

[18] When Mr. Simeunovich was arrested the forged Ontario driver's license was found on his person as well as documents pertaining to the Ford F150 pickup. Mr. Simeunovich's passport was found in the F150 pickup. He was found approximately 300 metres from the crash scene hiding in the wooded area.

[19] The speed limit on Garden Street is 50 km/h, except for the area where J. Payette School is, which is 40 km/h during school times, and on Dundas Street West from Garden Street to McQuay, the speed limit is 50 km/h. Mr. Simeunovich was driving past the J. Payette School at speeds up to 148 km/h. When he drove on Dundas towards the intersection of Dundas and Brock Street, known as the "heart" of Whitby and the busiest intersection for pedestrian and vehicular traffic, Mr. Simeunovich was travelling up to speeds up to 122 and 138 km/h. He drove 56 km/h through a red light at this intersection narrowly missing two pedestrians and a van. When he drove past the area of the nursing home and St. John the Evangelist Catholic School, which is a couple of streets north of Dundas, he was travelling up to speeds of 135 km/h in a 50 km/h zone. The time of day was the lunch hour when pedestrians and students would be out for lunch and vehicular traffic would be increased. As he approached the busy intersection of McQuay and Dundas, (two plazas are located at the intersection on the northwest and southwest corners) he was travelling from a high of 113 km/h braking to a speed of 66 km/h when he drove through the red light and collided with the Volkswagen Golf. This distance was .89 km and it took his pickup only 4 seconds to cover.

[20] The witnesses who testified during the trial observed Mr. Simeunovich weaving in and out of traffic, passing on the right and to the left, in the centre turn lane, to get around slow moving or stopped vehicles he encountered along Dundas Street. He drove westbound in the eastbound lanes in downtown Whitby to get around slow moving westbound traffic. All of the witnesses who observed Mr. Simeunovich's driving maneuvers testified they believed he would eventually cause a serious, in not catastrophic collision that seriously injured, if not killed an innocent driver or pedestrian. Some of the witnesses he had passed were not surprised when they came upon the collision at Dundas and McQuay.

Legal Parameters

[21] The most serious of the charges in terms of the consequences to Mr. Euripidou, criminal negligence causing bodily harm under section 221 of the Code, provides for a maximum sentence of ten years.

[22] The maximum punishment for failing to remain at the scene of the accident knowing that bodily harm has been caused to another person involved in the accident under section 252(1.2) of the Code is ten years.

[23] The maximum punishment for driving while disqualified under s. 259(4) of the Code where the Crown proceeds by indictment is five years.

[24] The maximum sentence for possession of a counterfeit mark under s. 376(2)(d) is fourteen years.

Position of the Parties

[25] The Crown is seeking a total, cumulative sentence of 10 years in the penitentiary. Mr. Polley argued Mr. Simeunovich was the worst offender, given his extensive criminal record and the nature of his driving on April 12, 2017, which led to the significant injuries and consequences to the other driver he crashed into and the significant danger he caused to members of the public. Further, his charges were the worst having regard to the specific facts referred to above. It is the Crown's submission the paramount sentencing principles in this case are denunciation, deterrence and protection of the public. Mr. Polley argued the sentences imposed for each offence should be consecutive to each other given they each deal with very different conduct on Mr. Simeunovich's part.

[26] The defence agreed the sentences imposed on each offence should be consecutive to each other but argued the appropriate total sentence was six and a half years, made up of a four year sentence for the criminal negligence cause bodily harm, one year sentence for the fail to stop at an accident to be served consecutively, a further one year sentence for possession of counterfeit marks to be served consecutively and a six month sentence for the drive prohibited to be served consecutively. It was Mr. Zekavica's position Mr. Simeunovich's plea of guilty should be taken as a sign of remorse and acceptance of responsibility on his part. He argued Mr. Simeunovich's rehabilitation should not be ignored.

Circumstances of the Offender

[27] Mr. Simeunovich is currently 39 years of age. A presentence report was filed as Exhibit 10 on sentence. Mr. Simeunovich did not take issue with any of the PSR's contents. He has an eight year old daughter from a seven year relationship he had with her mother. He and his partner were no longer in a relationship. They co-parent their daughter. Mr. Simeunovich did not wish his former partner contacted by the probation officer. In 2013, Mr. Simeunovich was sentenced for domestic assault, as well as recently, in February 2018, he was convicted, after a trial, of domestic assault.

[28] Mr. Simeunovich described his parents as strong-minded, caring and hardworking individuals who instilled strong values of family, hard work and truthfulness in him. He described his father as his best friend and noted he was always close with his paternal grandfather. His grandfather died on April 10, 2017, after suffering from kidney failure and cancer. As a result of his arrest on these charges Mr. Simeunovich was not able to attend his grandfather's funeral.

[29] Mr. Simeunovich appeared to have completed high school through an alternative school. He attended University of Toronto briefly and then Durham College for two years where he attained certifications for machining and welding for small engines. He has worked in the automotive industry since he was 16 years of age. He has been employed for five years with Dunrite Systems as a service manager. The company specialized in loading docks and industrial doors installation. Mr. Vrana, the owner of Dunrite confirmed by letter Mr. Simeunovich's employment and described him as a dedicated and valued employee as well as a reliable friend. Mr. Simeunovich advised he declared bankruptcy at the age of 22 and currently has amassed fines totalling $60,000 as a result of his driving convictions.

[30] Mr. Zekavica provided a number of character letters from individuals who have known Mr. Simeunovich for many years. They described an individual in terms of his employment as being a dependable hardworking individual. He was also described as a good father to his daughter.

[31] Mr. Boro Simeunovich, the offender's father, testified on the sentencing hearing. He maintained his son was very upset by the consequences his actions caused the victim, Daniel Euripidou. His son was extremely saddened by the death of his grandfather, which occurred two days before the incident, and then not being able to attend the funeral because of his detention. The offender's father also testified his son was heartbroken at knowing he would not see his daughter for an extended period of time because of his actions. Mr. Simeunovich's daughter stays at her grandparents four or five days/week because her mother works evenings. Mr. Simeunovich Sr. advised the probation officer that his son is unable to explain his compulsions and criminal behaviour.

[32] Although Mr. Simeunovich advised the probation officer he benefited from the counselling he received from a psychologist for over ten years, his father and his previous probation officer advised that Mr. Simeunovich had really only received counselling for two years and his attendance was sporadic with many missed appointments. There appeared to be a running theme through much of the PSR relating to Mr. Simeunovich embellishing or exaggerating his involvement in programs or diminishing or minimizing the seriousness of his actions. I will address this issue in greater detail when I discuss an appropriate sentence for Mr. Simeunovich's criminal conduct.

[33] Shortly after his arrest Mr. Simeunovich was assaulted by three inmates while he was housed in protective custody at Central East Correctional Centre. The assault was unprovoked. I was not advised why Mr. Simeunovich was in protective custody other than it was at his request. After the police investigation two individuals were arrested and charged with assault causing bodily harm. There was no doubt Mr. Simeunovich was assaulted while he was in protective custody. Mr. Zekavica provided medical records, although they are extremely difficult to read. No medical report was provided setting out the extent of Mr. Simeunovich's injuries or his prognosis by any of his attending doctors until today, August 24, 2018. I will discuss these reports in greater detail when I address the application by the defence for enhanced credit. The probation officer referred to conversations she had with Mr. Simeunovich's doctor at Toronto East Detention Centre, which suggested "post-concussive syndrome" but indicated the vision loss was "non-organic," resulting in a referral to psychiatry. Further, a cranial MRI performed in February 2018 was normal. Photographs were provided in Mr. Zekavica's application for enhanced credit for pre-trial custody, which show bruising to Mr. Simeunovich's face and a black eye from the assault. I will deal with this issue in greater detail when I address the defence application.

[34] The PSR referred to previous supervisions by probation, which describe Mr. Simeunovich as "being untruthful, as exhibiting a 'cocky attitude' and attempting to manipulate Probation Officers to try and have them assist him with legal difficulties after he would fail to comply with conditions." He had attempted to intimidate supervisors by calling management when he did not get his way. When he was serving a conditional sentence his supervisors attempted to accommodate his ever-changing work schedule, however he continued his established pattern of behaviour such as "lying, manipulation and eventually re-offending." He was ultimately deemed not suitable for future community supervision. Although Mr. Simeunovich presented as apologetic for his criminal behaviour and indicated on multiple occasions he wanted to change to be more pro-social for the sake of his daughter, his probation officers consistently reported him to be dishonest, manipulative, intimidating and self-serving.

[35] It is interesting to note that in Exhibit 13, Mr. Simeunovich took an anger management course at the Toronto East Detention Centre in March 2018; however, Mr. Simeunovich denied any anger management issues when he was interviewed for the PSR. Mr. Simeunovich also completed a number of programs through "Brighter Dayz Community Reintegration Organization, including the aforementioned Anger Management workshop, a cognitive skills workshop, anti-criminal thinking workshop and a Money Management workshop. All of these programs were taken by Mr. Simeunovich in May and June 2018, after I mentioned to him during his April 2018 court appearance, when Mr. Zekavica was unavailable because he was tied up in a jury trial, about programs offered by the detention centre.

[36] Mr. Simeunovich has an extensive criminal record, which covers 20 years with 51 separate convictions. He has seven convictions for dangerous driving, three convictions for fail to stop at an accident with intent to escape civil or criminal responsibility, three convictions for flight while pursued by police, fourteen convictions for drive while disqualified, nine fraud-related convictions, ten convictions for breach of court orders (recognizance, undertaking, attendance in court and a conditional sentence), as well as being a parole violator and statutory release violator. In addition, Mr. Simeunovich has convictions for assault causing bodily harm, uttering threats to cause death or bodily harm (2 counts), criminal harassment and assault. His criminal record can only be described as that of a recalcitrant recidivist, who has never been deterred from committing criminal offences. It is clear from his record that he has very little or no regard or concern for the laws of this country or anything other than his own selfish motivations.

[37] His first suspension for life by the Ministry of Transportation was on February 5, 2004. He was next suspended for life on October 22, 2008. He was again suspended for life on August 25, 2014 and again on June 2, 2015. On October 22, 2008 he was prohibited from driving for life. He was again prohibited from driving for life on August 25, 2014 and again on June 2, 2015. No court order appears to be able to stop Mr. Simeunovich from operating a motor vehicle. Mr. Simeunovich does what he wants to do without regard to anyone else.

[38] His criminal record was marked as Exhibit 9A (CPIC), 9B (Local Police Record) and 9D (Local Police Record with recent conviction for domestic assault: February 28, 2018, 30 days, probation 12 months, 5 year, s. 110 order). I will not set out his record in detail but highlight a number of sentences he has received for cognate offences:

1998-06-30 Total Sentence: 19 months (42 days PTC)

• 1998-12-24 Paroled
• 1999-04-14 Parole Violator

1. Assault CBH
2. Dangerous Operation M.V. (2 cts)
3. Fail comply recog (2 cts)
4. Fail comply recog
5. Fraud under (3 cts)
6. Fail to stop at scene of accident

Sentences:

1. 2 months (42 days PTC)
2. 6 months consec on each & consec, 1 yr driving prohibition
3. 1 mo conc but consec
4. 6 mo conc
5. 1 mo on each conc but consec
6. $500 & 3 yrs prob

2004-02-05 Total Sentence: 30 months & 5 days + (52 days PTC)

• 2006-01-03 Statutory Release
• 2006-07-28 Statutory Release Violator Recommitted

1. Fraud under
2. Fail Comply Recog
3. Fraud under
4. Fail to comply recog
5. Dangerous Driving MV
6. Flight while pursued by police (2 cts)
7. Fail to Stop at scene accident
8. Dangerous Driving MV (2 cts)
9. Fail to stop at scene of accident
10. Dangerous Driving MV
11. Fraud under

Sentences: (1-2) 1 day (22 days PTC) 3. 1 day consec (22 days PTC) (4-5) 1 day on each chg & consec (30 days PTC) & prohibition 3 yrs (6-7) 1 yr on each chg consec & consecutive & proh 3 yrs 8. 1 yr on each chg conc & conc & proh 3 yrs (9-10) 6 mos on each conc but consec & proh 3 yrs 11. 1 day conc (22 days PTC)

2008-10-22

1. Dangerous Driving MV
2. Flight while pursued by police
3. Driving disqualified

Sentences:

1. 2 years less a day conditional sentence (2-3) 2 years less a day conditional sentence & prohibition for life

2010-04-08

Breach of Conditional Sentence Order

Order Terminated

2010-04-15 Total Sentence: 20 mo & 45 days

1. False Pretenses
2. Drive Disqualified
3. Fail Comply Recog
4. Drive Disqualified
5. Drive Disqualified

Sentences:

1. 45 days
2. 8 mo consec
3. 90 days consec
4. 3 mo consec
5. 6 mo consec

2013-05-14 Total Sentence: 425 [243 + 182 days] days + (487 days PTC) = 912 days or 2 years and 182 days

1. Drive Disqualified (7 cts)
2. Fail Comply Recog (8 cts)
3. Fail Comply Recog
4. Drive Disqualified

Sentences:

1. 243 days (487 days PTC) 10 year prohibition
2. 182 days conc
3. 182 days consec
4. 243 days (487 days PTC) 10 year prohibition

2014-08-25 Total Sentence: 180 days + (117 days PTC)

Drive Disqualified

6 months & prohibited Driving Life & (117 PTC)

2015-06-02 Total Sentence: 2 yrs & 94 days

Drive Disqualified

2 yrs less a day & (95 days PTC) & Prohibited Driving Life

Victim Impact Statement

[39] Mr. Daniel Euripidou, the victim of the collision caused by Mr. Simeunovich provided an audio-taped, 40 minute Victim Impact Statement concerning the severe impact of Mr. Simeunovich's actions respecting all facets of his life. A transcript was prepared by the Crown and has been marked as Exhibit 17. Since the collision he has lived in pain every day and continues to attend treatment/rehabilitation three times a week. He had been employed in plumbing and heating for close to 30 years, making close to $100,000 a year but has been unable to return to work for more than a year. It is very unlikely he will ever be able to return to this type of work because of his injuries. His income has been reduced to $1600/month from insurance, forcing him to incur sizable loans, financial strain and a pending residential relocation. Mr. Euripidou expressed concern in his VIS and to the probation officer in the PSR that his insurance reimbursement will not cover his expenses and loss of income because Mr. Simeunovich was not insured. Mr. Zekavica provided a photocopy of the insurance policy on Mr. Simeunovich's Ford F150 pickup truck, which appears to be under the name of his numbered company, 1959677 Ontario Ltd. The effective date of the insurance is 2017-04-06, 6 days before Mr. Simeunovich crashed into Mr. Euripidou's Volkswagen Golf. It indicates the liability slip expires in 30 days. I do not know whether this insurance would be valid as a result of the fraud perpetrated by Mr. Simeunovich on the insurance company given he was prohibited from driving for life (3 times) and his Ontario Driver's License was fraudulent and contained a counterfeit mark.

[40] As a result of the accident, Mr. Euripidou suffered a broken collar bone, six broken ribs and his pelvis was broken in two places. He had internal bleeding in his liver, kidney and spleen from these injuries. He also had considerable trauma to his head. He has loss of hearing in his left ear and blurred vision in his left eye. He has throbbing shooting pain caused by headaches. He has continuous pain in his pelvis. He used a wheel chair for a long time and later used crutches or a walker to be able to get around. He had to purchase numerous medical devices, a hospital bed, electric scooters, wheel chairs, walkers and have a ramp built for his house. He has a personal support worker assisting him at his home six days a week, four hours a day. Mr. Euripidou believes the accident will have a life-long impact on him and his family in terms of his recovery, whether he is ever able to return to work, and the break-up of his marriage.

[41] Mr. Euripidou's recovery has been made more difficult due to the breakdown of his marriage and his becoming the primary caregiver to his two-year old son. His son suffers from club foot and requires ongoing care from The Hospital for Sick Children. Mr. Euripidou made a last minute decision not to take his son on the errand he was attending to when he was struck by Mr. Simeunovich's truck and he is haunted by the fact if he had not made this decision his son would likely have been killed. Mr. Euripidou is not able to drive because of the emotional trauma caused by the collision. He has no supports in Canada as his family resides in England and he only came to Canada 3 years ago. His father has suffered a heart attack and his uncle has passed away since the accident and because of his injuries he has been unable to travel.

[42] Mr. Euripidou relied upon his church family and his faith to help him cope and get through each day. He indicated in his VIS that he has forgiven Mr. Simeunovich and does not wish him any ill-will, however, he has become aware of Mr. Simeunovich's criminal record and as a result has significant concerns that something like what happened to him or even more serious consequences will happen once Mr. Simeunovich is back in the community.

[43] Mr. Euripidou described in the VIS how difficult it was for him to have to relive the traumatic circumstances of the catastrophic collision he was the victim of. His emotions and memories from the collision had been put in the background because of the passage of time, however, receiving notification he would have to testify at Mr. Simeunovich's trial in December 2017, caused him to relive everything all over again. He likely would have been the next witness at the trial but this was obviated by Mr. Simeunovich's guilty pleas. The guilty pleas did nothing to lessen the impact and effects of preparing to testify at the trial.

[44] On August 24, 2018, I was provided with two letters from Mr. Simeunovich's doctors, Dr. A. Bender, his psychiatrist, Exhibit 18, and Dr. E. Sokoloya, his neurologist, Exhibit 19. I will deal with these letters in greater detail when I address the defence application for enhanced credit. However, in Dr. Bender's letter on the 3rd page he refers to a meeting he had with Mr. Simeunovich on August 20, 2018, where Mr. Simeunovich reported, "distress related to his criminal charges and "lies" from the victim. Let me first indicate that Mr. Zekavica declined to cross-examine the victim, Mr. Euripidou after he had provided his victim impact statement in court. I inquired of Mr. Zekavica what this reference was concerning and I was advised that Mr. Zekavica had obtained copies of Mr. Euripidou's divorce proceedings in Family Court and that there were discrepancies between Mr. Euripidou's VIS and an affidavit he had filed in his divorce proceedings. These documents were not provided to me. Allegations were made that Mr. Euripidou was able to travel in June 2017 to England with his wife and son, he was able to walk without the aid of a wheelchair or walker and he was able to pick up his two year old son. I inquired as to whether Mr. Zekavica was making an application for Mr. Euripidou to be recalled to cross-examine him on this affidavit and Mr. Zekavica indicated he was not. It was my understanding that Mr. Zekavica had received as part of disclosure some of the medical records setting out Mr. Euripidou's injuries. Mr. Zekavica conceded that Mr. Euripidou's injuries suffered in the collision amounted to bodily harm. I am not giving any consideration to the oral comments by Mr. Zekavica concerning a Family Court affidavit of Mr. Euripidou. Mr. Simeunovich also weighed in from the prisoner's box concerning Mr. Euripidou's affidavit and expressed his view that I should examine the documents. Mr. Simeunovich's comments were completely inconsistent with his previous comments in the presentence report and his comments to me pursuant to s. 726, where he expressed extreme remorse and sadness for the catastrophic injuries he caused Mr. Euripidou. His position is also contrary to the evidence provided by his father who testified on the sentencing hearing as to how devastated his son was concerning Mr. Euripidou's injuries.

Mitigating and Aggravating Circumstances

[45] There are few, if any, mitigating circumstances present in this case. Mr. Simeunovich did enter pleas of guilty to four serious charges, although his guilty pleas were entered after almost two days of trial and after 11 witnesses testified. Further, a Charter application to stay the charges was brought by Mr. Simeunovich pursuant to ss. 7 and 24(1), where he alleged he had been strip-searched at the police station after his arrest. I will address this in further detail later in my reasons. The Crown argued Mr. Simeunovich was not entitled to any mitigation for his guilty pleas given the matter proceeded to trial. It is my view Mr. Simeunovich is entitled to some mitigation for his eventual guilty pleas and acceptance of responsibility but it is considerably reduced from the situation where an offender accepts responsibility and pleads guilty on an early date and where the victim of the offender's criminal conduct does not have to relive the horror and trauma, as in this case, of the catastrophic collision that occurred eight months previously. Mr. Euripidou described how he had to relive the trauma and horror of the accident as a result of being advised he had to prepare for trial.

[46] It is my opinion that Mr. Simeunovich's expression of remorse is less than sincere. As I indicated above, Mr. Simeunovich initially pleaded not guilty to the criminal negligence causing bodily harm, dangerous driving and fail to stop at the scene of an accident knowing bodily harm was caused. Although he pleaded guilty to one count of drive while disqualified and possession of a counterfeit mark, this did not shorten the length of the trial and did not prevent Mr. Euripidou from having to relive the horror of this collision. The evidence led by the Crown at the trial was overwhelming and demonstrated beyond a shadow of a doubt Mr. Simeunovich's guilt in respect of all of the charges.

[47] Mr. Zekavica submitted there was still a possibility Mr. Simeunovich can be rehabilitated given his expressed remorse and upset over the serious impact his actions caused Mr. Euripidou. As I will discuss in greater detail later in my reasons, the paramount and most pressing sentencing principles applicable are denunciation and deterrence, both specific and general, however, the overarching sentencing principle to be applied in the circumstances of this case is the imposition of a sentence that will provide for protection of the public from future criminal conduct perpetrated by Mr. Simeunovich. The importance of rehabilitation as a principle of sentencing in this case is greatly reduced and given Mr. Simeunovich's criminal antecedents it is extremely uncertain as to whether Mr. Simeunovich can be rehabilitated unless he discovers the underlying reasons for his behaviour, which he has not been interested in determining for 20 years.

[48] In reviewing certain aspects of the PSR and the character letters provided by Mr. Zekavica there appears to be a dichotomy between Mr. Simeunovich's work and his relationship with his daughter and his complete disregard for laws relating to his operation of a motor vehicle and his utter lack concern for how his driving impacts innocent persons either pedestrians or other motorists. Further, he is absolutely and utterly incapable of complying with court orders that attempt to control his disregard and lack of concern by prohibiting him from driving. Mr. Simeunovich has been placed on probation on numerous occasions in an attempt to rehabilitate him and assist him in becoming more empathetic towards others. It was not successful in changing Mr. Simeunovich's criminality, in fact, as can be seen from his extensive criminal record, he has repeatedly breached the conditions of his probation orders and other court orders.

[49] What is significant in the PSR is Mr. Simeunovich's response to community supervision in the past. Mr. Simeunovich was deemed by his last probation officer not to be suitable for future community supervision. He was described as being untruthful, as exhibiting a "cocky attitude" and attempting to manipulate. He would contact management in attempts to intimidate his probation officer. When he was on a conditional sentence involving house arrest, he continued his established pattern of behaviour such as "lying, manipulation and eventually re-offending." He breached his conditional sentence conditions. He was a parole violator and a statutory release violator, which resulted in his reincarceration.

[50] The PSR reflected Mr. Simeunovich expressed his desire to become more pro-social for the sake of his daughter, however, he is consistently reported as being dishonest, manipulative, intimidating and self-serving. Mr. Simeunovich expressed the same intentions to Justice Bellefontaine in 2004 when he was sentenced on four separate counts of dangerous driving, two counts of fail to stop at the scene of an accident and two counts of flight from police. In that sentencing Justice Bellefontaine noted the appropriate sentence was five years for his conduct, however, because of his youth, his prospects for rehabilitation and the significant injuries he personally suffered as a result of his criminal conduct, Justice Bellefontaine only imposed a sentence of 30 months in the penitentiary. Unfortunately, Mr. Simeunovich did not take advantage of the many opportunities he has been given to rehabilitate himself.

[51] Mr. Simeunovich has produced a number of certificates from programs he has taken while he has been serving his pre-trial custody at the Toronto East Detention Centre. His counsel argued this demonstrated his desire to rehabilitate himself and indicated there was still some hope for Mr. Simeunovich's rehabilitation. The Crown argued I should not accept Mr. Simeunovich's expressions of remorse or his involvement in these programs, Exhibit 13, which he took at the Toronto East Detention as indicating any prospect of rehabilitation because these were just an attempt by Mr. Simeunovich to manipulate his sentencing hearing and the result imposed. The comments expressed by previous probations officers relating to his lying and manipulation raised serious concerns about his sincerity. While I would encourage Mr. Simeunovich to take advantage of any rehabilitative programs available when he is serving his sentence, these efforts are too little, too late and do not amount to mitigation on sentence.

[52] Of further concern were my findings and ruling at the conclusion of Mr. Simeunovich's Charter application to stay all of the charges because he alleged he was strip-searched after he arrived at the police station. I found he was not strip-searched and his affidavit and testimony contained evidence, which was not supported by the video tape evidence or the evidence of the police witnesses, which I accepted. In fact, Mr. Simeunovich was not truthful in describing what he alleged occurred when he was in the booking area, for example, he was not handcuffed to the wall as he described (he was shown on the booking video sitting on the bench, unhandcuffed and not handcuffed to rings on the wall); the court officer went to the door of the private room where Mr. Simeunovich was placed in order for him to change out of his clothes in private, handed Mr. Simeunovich a jump suit and then closed the door; the door was opened again and Mr. Simeunovich handed his pants to this officer. The officer testified Mr. Simeunovich was never stripped, his underwear was not seized and the officer was not present in the room when Mr. Simeunovich removed his pants. I dismissed his application to stay the charges as there were no breaches of his Charter rights and I found he was not strip-searched. While I gave Mr. Simeunovich the benefit of the doubt concerning his evidence because of the assault perpetrated against him and the fact he had never been shown the booking video by his counsel I am concerned with his willingness to embellish and stretch the truth as to what occurred in the police station. This in my view was very troubling and demonstrated that Mr. Simeunovich was prepared to go to great lengths, including perhaps even lying in court, if it meant his charges might be stayed.

[53] It is my view the only way the public can be protected from Mr. Simeunovich's criminality is through a very lengthy period of incarceration, separating him from the community. Mr. Simeunovich can only be described at this point in his life as being completely incorrigible and a recalcitrant recidivist, who cannot be deterred. He does not have any regard for court orders and his criminal record fully demonstrated and substantiated this. This view was supported by the serious and significant aggravating circumstances present in this case.

[54] There were a great number of aggravating circumstances that I must consider in order to determine an appropriate, proportional sentence for Mr. Simeunovich's conduct.

[55] The first aggravating circumstance is the nature of Mr. Simeunovich's driving, which can only be described as shocking and callous. His driving demonstrated a complete lack of concern and a wanton and reckless disregard for the lives and safety of other persons. He just did not care if someone was seriously injured or killed. I have set out above, in detail, the speeds and his driving actions, which placed numerous innocent, unsuspecting members of the public at considerable risk of serious injury or death. Mr. Simeunovich was charged with 24 charges arising out of his driving behaviour on April 12, 2017, including dangerous driving causing bodily harm, criminal negligence causing bodily harm, fail to stop at an accident, possession of a counterfeit mark, namely the Trillium Symbol on Ontario Driver's License, drive disqualified (19 counts) and cause bodily harm to person by driving dangerously while being pursued by peace officer and failed to stop.

[56] The following is a brief summary of Mr. Simeunovich's driving actions:

1. He drove 145 km/h in a 40 km/h school zone as he proceeded southbound on Garden Avenue at the lunch hour;

2. He drove 45 km/h through the Petro Canada gas station because his speed was too high to safely make the right turn from Garden to Dundas Street;

3. His speed quickly (22 seconds) rose to 138 km/h decreasing to 122km/h (4 seconds) as he approached Perry Street (just before the Brock Street/Dundas intersection of downtown Whitby. He was observed by witnesses passing on the right and left, weaving in and out of traffic and moving to the centre turn lane to pass slower moving traffic. It was the opinion of these witnesses that Mr. Simeunovich was driving like a maniac and was going to cause an accident. The speed limit on Dundas Street is 50 km/h;

4. As he approached Brock Street the two westbound lanes reduces to one lane because cars are permitted to park against the curb in the downtown core. As one approaches Brock Street the curb lane becomes a right turn lane to go north on Brock Street. There are chevrons clearly marked beside the through lane going westbound, just west of the right turn lane. The light for Dundas traffic was red. On the dash cam video, Exhibit 4, showed a pickup proceeding southbound on the green light for Brock Street. When Mr. Simeunovich drove through the red light he narrowly misses the back of that pickup. There was a silver van, which was about to enter this intersection but the driver saw Mr. Simeunovich and slammed on his brakes so it did not enter into Mr. Simeunovich's line of travel. Mr. Simeunovich was driving 56 km/h as he goes through the red light. If the pickup truck had been driving a little slower or if the van had been driving a little faster, there would have been a serious collision caused by Mr. Simeunovich;

5. Two women pedestrians were just stepping off the northwest curb to walk south on the crosswalk on the west side of Brock Street. One of those women testified she heard the roar of Mr. Simeunovich's F150 pickup truck and she stopped and stepped back onto the curb and prevented her friend from stepping off the curb. These two women would have been struck and seriously injured or killed by Mr. Simeunovich's driving behaviour had they continued to walk southbound;

6. Mr. Simeunovich's speed increased to 80 km/h and then slowed to 48 km/h as he drove westbound in the eastbound lane, up an incline, to pass slower moving traffic in the westbound single lane before moving back into the westbound lanes. Given the incline from the intersection of Brock/Dundas proceeding westbound, Mr. Simeunovich could not see if any traffic was coming eastbound until they would be right upon him, an extremely dangerous maneuver;

7. Mr. Simeunovich increased his speed to 108 km/h to 135 km/h as he passed a senior's residence, which was on the north side of Dundas;

8. There were other driver's proceeding westbound who testified Mr. Simeunovich was weaving in and out of traffic at high rates of speed in a 50 km/h zone. His speeds fluctuated between 87 km/h to 121 km/h to 113 km/h until he was .89 km from McQuay Blvd, which is a very busy intersection because of the residential housing both north and south as well as two plazas containing Tim Horton's Donuts, Shoppers Drug Mart and a grocery store. He slowed to 66 km/h and drove through the red light facing him and collided with Mr. Euripidou's Volkswagen, Golf. This collision caused serious catastrophic injuries to Mr. Euripidou and extensive damages to his Golf.

[57] Mr. Simeunovich believed he was being chased by police. In fact, he was not being pursued by police. The police car he saw was attending another call. Obviously, if Mr. Simeunovich had been complying with his several life time prohibitions previously imposed by the court and the life time suspensions imposed by the Ministry he would not have been driving on Manning Road and he would not have been concerned about the police chasing him.

[58] This leads me to the second serious aggravating circumstance, namely, Mr. Simeunovich's previous criminal antecedents and misconduct, which spans 20 years and consists of 55 convictions. Mr. Simeunovich has numerous cognate convictions from 1998 and 2015 on his criminal record as reflected above:

a. 7x Dangerous Driving convictions;

b. 3x Fail to Stop at the Scene of an Accident convictions;

c. 3x Flight from Police convictions; and

d. 14x Drive while Disqualified convictions.

[59] Since 1998, Mr. Simeunovich has habitually been serving jail sentences or has been subject to bail recognizances and probation orders, none of which have curtailed his criminality. He is a parole violator from a reformatory sentence (1999), a statutory release violator from a penitentiary sentence (2006) and in (2010) he breached his conditional sentence. He has numerous convictions (17) for failure to comply with court orders, which reflects his inability and unwillingness to comply with court orders or to be deterred. As described above, it is my view Mr. Simeunovich is an incorrigible offender, who is completely unmanageable. The gaps in his criminal record are more because of when his charges were finally tried or when he pleaded guilty after he had spent lengthy periods of time in pre-trial custody. This is reflected in his CPIC criminal record.

[60] As indicated previously, further support for his unwillingness to be deterred is reflected in the 14 convictions for drive disqualified and the three life time prohibitions imposed (2008, 2014 and 2015), as well as numerous driving prohibitions (1 year (1998), 3 years (2004), 10 years (2013), as well as life time suspensions by the Ministry of Transportation (2004, 2008, 2014 and 2015). Since first being prohibited from driving pursuant to the Criminal Code in 1998, Mr. Simeunovich has amassed 14 convictions for drive while disqualified. There is strong support that nothing will deter Mr. Simeunovich from operating a motor vehicle when he is released in the community.

[61] A further serious aggravating circumstance is Mr. Simeunovich's conduct in obtaining a counterfeit Ontario Driver's License, which contains a counterfeit mark, the trillium. He had this counterfeit driver's license on his person when the accident occurred. Further, he used this driver's license to purchase the Ford F150 and apparently, obtain automobile insurance. It is questionable whether this insurance would be valid and operable on the date of the accident given the fact Mr. Simeunovich obtained it by presenting fraudulent documentation. What this driver's license demonstrates is the measures and extent to which Mr. Simeunovich is prepared to go in order to drive, despite three lifetime prohibitions and numerous lifetime suspensions issued by the Ministry, all of which are still in force. It is my view nothing, this or any other Court will do, will deter Mr. Simeunovich from driving. This is also proven by the number of convictions he has on his record for drive while prohibited. On the evidence before me it is clear that Mr. Simeunovich is utterly unmanageable.

[62] A further statutorily aggravating factor pursuant to s. 718.2(iii.1) provides:

Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[63] There can be no doubt as to the significant and detrimental impact Mr. Simeunovich's actions had on Mr. Euripidou and his family. Mr. Euripidou continues to suffer physically from his injuries caused by the accident and he continues to receive physiotherapy and treatment for those injuries. I have set out the serious injuries he suffered from the collision. He may never return to his occupation or earn the same amount of income as a result of his injuries suffered as a result of Mr. Simeunovich's conduct. Further, he has sustained considerable expenses, loans and financial strain as a result of being unable to work. Finally, the accident and his injuries led to the break-up of his marriage, which has had a tremendous personal impact on him and his disabled son.

[64] Mr. Simeunovich knew his collision with the Volkswagen Golf had caused significant and serious injuries to its driver. His Ford F150's front end was severely damaged and it struck the driver's door of this much smaller vehicle travelling at 66 km/h. Mr. Simeunovich's action in walking away from the accident scene demonstrated a complete lack of concern and callous disregard for the other driver's wellbeing or even whether the other driver was alive. This was not Mr. Simeunovich's first accident where he failed to stop at the scene of an accident, he has three prior convictions for this offence. It is my view this is a serious aggravating circumstance, which reveals a substantially heightened level of moral blameworthiness on Mr. Simeunovich's part. Even when members of the public confronted him hiding behind a garbage bin at the Shopper's Drug Mart he ran away, jumping over fences into residential backyards until he made his way to a wooded area. His location was only discovered after the police utilized a police dog to assist.

Determining the Appropriate Sentence

[65] The purpose of sentencing is set out in s. 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating that in Canada revenge is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.

[66] Nothing I do in terms of Mr. Simeunovich's sentence will in any way undo what was done to Mr. Euripidou on April 12, 2017. The catastrophic collision occurred and it cannot be undone. It is my hope that Mr. Euripidou will be able to move forward from today and not allow Mr. Simeunovich's actions to negatively impact his life.

[67] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[68] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[69] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), that the combined duration of consecutive sentences not be unduly long (s. 718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718.2(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[70] It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[71] The Supreme Court of Canada has provided guidance to sentencing judges in the difficult task of determining an appropriate and fit sentence for an individual convicted of a crime. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Court stated commencing at para. 40:

[40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", with particular attention paid to the circumstances of aboriginal offenders.

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Understood in this latter sense, sentencing is a form of judicial and social censure...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[72] The Crown and defence are somewhat apart in terms of their respective positions: the Crown is seeking a 10 year penitentiary sentence and the defence is seeking a 6 ½ year penitentiary sentence. Both counsel agree their positions are less credit for pre-trial custody and the defence is seeking a further reduction as a result of the assault Mr. Simeunovich suffered while in custody. I will deal with the collateral consequence that occurred during Mr. Simeunovich's detention in custody later in my reasons. I recognize that a fit and proportionate sentence is determined by weighing and balancing all of the relevant sentencing principles applicable taking into account the mitigating and aggravating circumstances referred to above. It is my view the paramount principles of sentencing in this case are specific and general deterrence and denunciation, however, given Mr. Simeunovich's complete disregard for court orders it is also my view that the protection of the public is a significant principle of sentencing I must address in any sentence I impose.

[73] I was provided a number of sentencing cases by the Crown and defence counsel. Contained within each of the cases provided there were numerous other sentencing decisions that were referred to. I want to re-iterate, sentencing is an individualized process and depends on the unique factual circumstances and gravity of the offences and the degree of moral blameworthiness of the offender.

[74] Many of the cases provided by the Crown involved the more serious charge of criminal negligence causing death, which carries a maximum sentence of life imprisonment.

[75] In R. v. McWatters, [2016] O.J. No. 5837 (SCJ), Bielby J. imposed a global sentence of fifteen years, less pre-trial credit of 4.68 years, for criminal negligence causing death, failing to stop at an accident, possession of a stolen vehicle, possession of stolen beer kegs and 11 counts of drive prohibited. McWatters drove through a red light and struck the driver's door of vehicle proceeding legally, killing the driver. The accused attempted to hide after the accident and ran in an attempt to avoid arrest. McWatters had a lengthy criminal record, which included seven convictions for dangerous driving, 11 convictions for possession of stolen property, 10 convictions for theft and 11 convictions for drive disqualified. The accused was of Aboriginal heritage.

[76] In R. v. Smith, 2012 ONSC 3089, [2012] O.J. No. 2315 (SCJ), Kelly J. imposed a life sentence for criminal negligence causing death. Smith stole a van in the midst of conducting a break and enter of a residential dwelling. Police were notified and pursued Mr. Smith. Mr. Smith was driving at speeds between 100 to 160 km/h in a 50 km/h zone. Mr. Smith ran a red light and struck a vehicle proceeding legally in the intersection. He did not stop and was travelling westbound in the eastbound lanes because all the westbound lanes were occupied by vehicles and proceeded through another intersection and struck a vehicle with six passengers making a left hand turn it was entitled to do. The van was travelling at 100 to 102 km/h as it struck the other vehicle, killing the driver and seriously injuring the other five passengers. Mr. Smith had a lengthy criminal record, spanning 24 years with 168 convictions. Most of Mr. Smith's convictions were theft related, which he committed to provide funds for his drug addiction. He had mainly been incarcerated in provincial institutions and had received one penitentiary sentence in 1990. He had 25 convictions for failure to comply with court orders, eight convictions for obstructing police, three convictions for dangerous driving, one conviction for fail to remain at the scene of an accident and six convictions for fail to stop for police. On this case Mr. Smith was facing 25 charges, involving numerous break and enters and a collision resulting in a death and serious bodily harm to five others.

[77] Mr. Smith initially pled not guilty but after hearing the evidence of several witnesses, he changed his plea on 19 charges to guilty, which included offences of dangerous driving causing death and dangerous driving causing bodily harm. At the conclusion of the evidence and after submissions Justice Kelly found Mr. Smith guilty of criminal negligence causing death and criminal negligence causing bodily harm. The dangerous driving charges were stayed. The life sentence was upheld by the Ontario Court of Appeal in R. v. Smith, [2014] O.J. No. 5658 (C.A.).

[78] In R. v. Gamble, [2016] O.J. No. 5429 (SCJ), Harper J. sentenced Mr. Gamble to 16 year sentence, less three years for pre-trial credit, for criminal negligence causing death, failure to stop at an accident, drive while disqualified and flight from police. Mr. Gamble had an extensive criminal record spanning 34 years with 80 convictions. Mr. Gamble obtained a vehicle by insurance fraud. When he came to a police roadside check he attempted to evade police and police pursued. Gamble drove at high rate of speed, attempted to run the police off the road, he ran a red light and collided with another vehicle, killing the driver. He fled the scene and was arrested after a short foot chase. Mr. Gamble had five convictions for impaired driving, four convictions for dangerous driving, one conviction for fail to stop at the scene of an accident, three convictions for fail to stop for police and 11 convictions for drive while disqualified. The Court of Appeal upheld the sentence of 16 years less three years pre-trial credit, R. v. Gamble, [2017] O.J. No. 3793 (C.A.).

[79] It is my view the above three cases, although more serious in terms of the charge of criminal negligence causing death, the personal circumstances of each accused were quite similar to Mr. Simeunovich's personal circumstances, particularly with respect to each of the accused and Mr. Simeunovich having extensive criminal records. It is my view Mr. Simeunovich's criminal record was in some respects more serious, especially in respect of his record for similar cognate driving offences and that Mr. Simeunovich's sentences for driving offences were somewhat more significant. All four accused could properly be described as recalcitrant recidivists, who have been completely undeterred by jail or court orders involving driving prohibitions, bail and probation. The only fact separating Mr. Simeunovich from the above-noted three cases, McWatters, Smith and Gamble, was that the criminal negligence caused the death of an individual, whereas Mr. Simeunovich's conduct caused serious permanent physical and emotional injuries.

[80] R. v. Precup, [2015] O.J. No. 2213 (SCJ), at para. 38 and R. v. Gummer, [1983] O.J. No. 181 (C.A.), at paras 12 to 14, are authority for the proposition that when sentencing an offender for a driving offence as well as for failing to stop at an accident with intent to escape civil or criminal liability, the sentences must be consecutive to one another as opposed to concurrent sentences. This consideration is important having regard to some of the cases described below that were provided by the defence.

[81] The Crown also provided R. v. Shular, [2014] A.J. No. 784 (C.A.), which dealt with the sentencing judge rejecting a joint submission of two concurrent sentences of four years on two charges of criminal negligence causing bodily harm and six month concurrent sentence on charge of fail to stop at scene of an accident. The sentencing judge rejected the joint submission and imposed concurrent sentences of four years and six years imprisonment on the two charges of criminal negligence causing bodily harm and a consecutive sentence of a further one year on the fail to stop charge. The appeal court gave credit for pre-trial custody but otherwise upheld the global sentence of seven years.

[82] A case provided by both counsel was R. v. Brodie, [2017] B.C. J. No. 2520 (B.C.S.C.), where the accused was charged with criminal negligence causing bodily harm and dangerous driving while fleeing the police. Mr. Brodie struck a pedestrian causing catastrophic injuries such that he would never live independently again. The accused had a lengthy criminal record, including a previous conviction for failing to stop for police. Mr. Brodie was sentenced to nine years for the dangerous driving while fleeing the police and five years concurrent for criminal negligence causing bodily harm.

[83] The defence also provided me with the following cases:

[84] In R. v. Lights, 2017 ONSC 5153, Justice Allen after a trial convicted the accused of two counts of criminal negligence causing bodily harm where he drove through a red light and injured two other drivers proceeding legally through the intersection. Mr. Lights' explanation for running the red light was he was trying to get his friend, who was suffering from a gunshot wound, to the hospital. Mr. Lights had a serious criminal record spanning ten years for robbery, firearms offences, assault, drug offences and breaches of court orders. He was serving a prison sentence of 64 months for firearms offences and drug offences at the time of his trial in June 2017. Justice Allen imposed a sentence at the low end of the range because of what he found to be mitigating circumstances in Mr. Lights background and the fact the charges were unrelated to his criminal antecedents and not as serious as his previous convictions involving firearms and drugs. The sentence imposed was a 12 month custodial sentence on each charge to be served concurrently. It is my view this case is completely dissimilar to Mr. Simeunovich's case.

[85] In R. v. Zarb, 2014 ONSC 2585, Justice Goldstein, after a trial on three counts of dangerous driving causing bodily harm and three counts fail to stop at an accident, sentenced him to 18 months in the reformatory. The Crown was suggesting the appropriate sentence was four to six years, whereas the defence suggested the appropriate sentence was 10 months to two years less a day. The three concurrent 18 month sentences for the dangerous driving counts were imposed because of the significant physical and mental difficulties Mr. Zarb suffered from Huntington's chorea, major depressive disorder, recurrent anxiety disorder, alcohol abuse, Huntington-related paranoia and declining cognition. Mr. Zarb did not have a criminal record but did have a terrible driving record, which was not set out in the reasons. Justice Goldstein imposed 12 month concurrent sentences for the three counts of fail to stop at the scene of the accident. Again, it is my view this case bears no resemblance to Mr. Simeunovich's cases' factual circumstances or Mr. Simeunovich's background.

[86] Finally, I was provided the case of R. v. Peric, 2015 ONSC 4494, where Justice Allen imposed a 12 month sentence on a charge of dangerous driving and a further 12 months less a day on each of two counts of fail to stop at the scene of an accident, concurrent to each other but consecutive to the dangerous driving sentence, for a 24 month sentence less a day. Mr. Peric struck two pedestrians, causing serious permanent physical and emotional injuries to both and fled the scene. He was not charged for two months. It is unexplained why Mr. Peric was only charged with dangerous driving. His criminal record was 30 years old but he did have a terrible driving record, which included a drive under suspension. Again, the facts of this case and Mr. Peric's personal circumstances are vastly different from Mr. Simeunovich's case.

Sentence Imposed

[87] The charges to which Mr. Simeunovich pleaded guilty are very grave and serious. A long period of incarceration is required in order to provide protection to the public from his conduct and actions. This is agreed to by the defence in his submission.

[88] Mr. Simeunovich's criminal record for driving offences and breaching court orders is extensive. No jail sentence has been able to deter his behaviour. Despite three lifetime prohibitions and numerous lifetime suspensions he continues to drive and on the facts of these charges, Mr. Simeunovich was prepared to engage in subterfuge and commit fraud by obtaining a forged Ontario Driver's License with a counterfeit mark. In my view this charge demonstrated the lengths to which Mr. Simeunovich was prepared to go so he could purchase a vehicle to drive. I do not accept Mr. Simeunovich's comments from the prisoner's box, when I asked him if he wished to say anything before sentencing, and he said this was the only time he had driven this F150 Ford truck and it was because he had to purchase a funeral suit for his grandfather's funeral. The facts of this case do not support Mr. Simeunovich's assertion.

[89] I recognize I cannot ignore the principle of rehabilitation and I echo the comments of Mr. Euripidou who expressed his wish that Mr. Simeunovich will be able to change his ways in the future. However, given Mr. Simeunovich's criminal record I do not agree with the defence submission that Mr. Simeunovich sincerely wants to reform his ways because of his remorse over the significant physical and emotional injuries he caused Mr. Euripidou. Further, although Mr. Simeunovich is entitled to have a trial, the sincerity of his position on sentencing that he is extremely sorry because of the serious and significant injuries he caused Mr. Euripidou in my view is quite lacking and deficient given he expressed similar sentiments to Justice Belfontaine in 2004 when he was sentenced for dangerous driving, fail to stop at the scene of an accident, fail to stop for police and driving under suspension charges. In light of the numerous criminal convictions he has accumulated since that sentencing, his stated desire to become more pro-social is quite hollow and consequently, it is my belief his rehabilitation prospects in the future are dim. The events which occurred in court this morning where Mr. Simeunovich expressed to me his upset over his counsel and my comments respecting his application to stay the charges because of his allegation of being strip-searched, which I found to be false because his affidavit and testimony contained facts completely unsupported by the booking video which put a lie to his assertion he was stripped naked and forced to stand in front of two special constables and put his hands in the air, bend over and spread his cheeks. This, as I found, was completely untrue. The booking hall video proved this beyond a reasonable doubt. Today's events in my view demonstrated once again how Mr. Simeunovich puts his interests first and ignores everyone else.

[90] In my view this submission made by his counsel about his remorse also did not accord with Mr. Simeunovich's position during his trial respecting his application to stay the charges because of an allegation by him that he was strip-searched at the police station after his arrest. As I found, his testimony regarding the police strip-searching him at the police station was completely contrary to the evidence of the police witnesses, whose evidence was supported by the booking video. Further, when Mr. Simeunovich was confronted with the booking video evidence he testified he had suffered a serious brain injury as a result of his being assaulted while he was in custody, however, given the medical reports provided by counsel and marked as part of Exhibit 13, as well as the two reports filed today from his doctors, Mr. Simeunovich's testimony was completely discredited. The reports indicate in February 2018 his cranial MRI was normal. It is my view this was an attempt by Mr. Simeunovich to mislead the court to justify why his assertion of being strip-searched was not verified by the video or testimony of the officers who seized his clothes as evidence.

[91] As I indicated earlier in my reasons, it is my view Mr. Simeunovich's involvement in a number of programs, in May and June 2018, offered at the East Detention Centre where he was incarcerated, was a direct response to my comments to him after he changed his not guilty plea to guilty where I indicated once he was serving his sentence he would be able to take advantage of the programs offered in the federal prison system to assist him in his rehabilitation and reintegration back into the community. I believe his involvement in those programs is a further example of how Mr. Simeunovich can be manipulative and dishonest to get his own way as described by his previous probation supervisors in their reports as reflected in the PSR, Exhibit 10.

[92] Mr. Simeunovich expressed to me repeatedly during his comments before sentence how much he will miss his daughter when he is incarcerated, how much his daughter needs him and how his sentence should not be too long because this would cause emotional damage to her. Mr. Simeunovich was clearly not thinking of his daughter as he drove like a deranged maniac, trying to escape a wholly imagined police chase, nor was he concerned about the serious risk he was creating by his manner and speed of driving through city streets, at the lunch hour, in downtown Whitby, until he ran the red light at McQuay Blvd and struck Mr. Euripidou's car causing him long-lasting serious bodily harm.

[93] His 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.

[94] This is a case where the public needs to be protected from Mr. Simeunovich, which can only be achieved by a lengthy penitentiary sentence. His offences are grave and need to be denounced by a jail sentence that will send a message and deter other like-minded individuals. There is also a tremendous need to specifically deter Mr. Simeunovich, as up to this point, nothing has been able to deter his criminal conduct.

[95] As I indicated, the fundamental principle in sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender. The gravity of these offences are exceedingly high. Mr. Simeunovich was wholly to blame and responsible for the outcome of his driving. I have discussed the significant impact his actions have brought to bear in the life of Mr. Euripidou and his family.

[96] In order to properly give effect to the significant aggravating factors I have outlined above and in order to properly address the principles of denunciation and general deterrence, a global sentence of ten (10) years is an appropriate and proportionate sentence. In my view the six and a half year sentence submitted by the defence would be completely inadequate in addressing the principles of denunciation and deterrence.

[97] Mr. Simeunovich is an incorrigible and uncontrollable offender. He is a continuing threat to the community and to the safety of law abiding members of the public. It is my belief the only way to control Mr. Simeunovich and to protect the public is to keep him in custody.

[98] Mr. Simeunovich, if you would please stand, you are therefore sentenced to the following sentences totally ten (10) years:

• Criminal negligence causing bodily harm: 6 years
• Fail to stop at the scene of an accident, knowing bodily harm was caused: 2 years consecutive
• Drive while disqualified: 1 year consecutive
• Possession of a counterfeit mark: 1 year consecutive

[99] I have made each of these offences consecutive to the sentence I imposed for the criminal negligence causing bodily harm charge because each charge relates to a different societal interest. The offence of criminal negligence causing bodily harm exists to protect the public from a specific type of driving behaviour. Mr. Simeunovich drove his F150 pickup truck with a wanton and reckless disregard for the lives and safety of other persons, be they pedestrians or other drivers. Criminal negligence is the most serious driving offence in the Code Criminal, with criminal negligence causing death being the most serious with a maximum sentence of life imprisonment. The offence of failing to stop at the scene of an accident to escape civil or criminal liability knowing serious bodily harm has occurred, imposes a duty on a person involved in an accident, regardless of fault, to provide information and render assistance to anyone who is injured. It is a serious offence where a person fails to remain at the scene of an accident knowing that bodily harm has occurred and as I indicated above, the Ontario Court of Appeal has held the sentences for these two offences should be consecutive. Further, the breach of a court order, namely, driving while disqualified, is also addressing a separate type of conduct, the breaching of a court order designed to protect the public, which in my view should result in a consecutive sentence to the criminal negligence charge. The Crown argued the sentence for drive while disqualified should be no less than a custodial sentence of two (2) years, given Mr. Simeunovich's last sentence for this offence was for two years less a day. Mr. Polley also pointed to the fact that Mr. Simeunovich had 14 prior convictions for drive while disqualified. I agree with Mr. Polley's submission, however, the principle of totality in s. 718.2(c) requires that I reduce what would otherwise have been a proportionate and fit sentence for this offence to a consecutive sentence of one (1) year. Finally, for similar reasons I have reduced what would have been a proportionate and fit sentence for the possession of a counterfeit mark to a sentence of one (1) year, to be served consecutive to the criminal negligence charge, because of the principle of totality. The seriousness of this offence cannot be overstated. This is an offence that attacks the very foundation of members of the public becoming properly licensed drivers. The fact the maximum sentence is 14 years demonstrates the seriousness that Parliament views possession of a counterfeit mark. A mark is defined in s. 376(3)(a) as "a mark used by or on behalf of the government of Canada or a province." Here the mark on the Ontario Driver's Licence is the trillium, which assists in identifying if the license is a counterfeit or is real. As I described above, this was a serious aggravating circumstance in this case having regard to Mr. Simeunovich's three lifetime prohibitions and several lifetime suspensions by the Ministry of Transportation. Mr. Simeunovich used this forged driver's license to be able to purchase a F150 truck and obtain a license plate for that vehicle when he was supposed to be prohibited for life from ever obtaining an Ontario Driver's License. In my view a proportionate and fit sentence for this offence standing alone having regard to Mr. Simeunovich's criminal record would have been a two to three year penitentiary sentence, however, I have reduced that sentence to one (1) year consecutive because of the principle of totality.

[100] It was agreed by both counsel that whatever sentence I imposed was to be reduced by the appropriate pre-trial credit, pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Mr. Simeunovich has been in custody since his arrest on April 12, 2017 until today, August 24, 2018, which is 501 days. Mr. Zekavica advised 20 days needed to be deducted from the 501 days because of the jail sentence Mr. Simeunovich was sentenced to in February 2018 for a domestic assault conviction, which therefore leaves 481 days of actual pre-trial custody. On a 1.5 to 1 basis this adds a further 241 days, for a total credit of 722 days.

[101] The remaining sentence is therefore eight (8) years and 8 days.

Enhanced Credit

[102] Mr. Zekavica also argued Mr. Simeunovich should receive a further enhanced credit of 150 days because of his being beaten in protective custody at Central East Correctional Centre. He argued this enhanced credit is contemplated by R. v. Duncan, [2016] O.J. No. 5525 (C.A.), at para. 6, where the Court indicated in an endorsement:

…We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

[103] On August 24, 2018, Mr. Zekavica advised he had just received two letters from Mr. Simeunovich's doctors concerning his injuries sustained in the attack by three other inmates at CECC and his prognosis concerning those injuries. Dr. Sokoloya, a neurologist in her letter, dated August 16, 2018, described the injuries suffered by Mr. Simeunovich. She described first seeing Mr. Simeunovich on October 6, 2017 concerning unexplained vision loss in his right eye. There was no mention in the referral of Mr. Simeunovich being beaten up. Mr. Simeunovich told her he had been beaten up but when Dr. Sokoloya examined his eye she did not detect anything wrong with his right eye. He complained of headaches caused by an accident and being beaten up. She opined it was possible these were post-concussive headaches. She further advised Mr. Simeunovich his problems with vision in his right eye might be caused by underlying psychological stressors as she could not find any physical cause for his problems. She recommended he be referred to a psychiatrist and recommended an anti-depressant medication. She requested a cranial MRI and the results returned normal.

[104] Dr. Sokoloya obtained the medical records from Mr. Simeunovich's visit to the Lindsay hospital on April 18, 2017. They revealed sustained fractures on the left side of his face. His eyes were bruised and swollen. She saw Mr. Simeunovich again on March 7, 2018. His vision in his right eye had improved after he started seeing the psychiatrist. She diagnosed him with Post-Concussive Syndrome, which is an underlying group of symptoms people commonly experience after a head injury, including mood change, anxiety, depression nausea or vision disturbance. She reassured him there were no physical problems with his right eye. He also complained of decreased sensation on the left side of his body and she ordered an MRI, which was done on July 24, 2018 and it revealed early degenerative arthritic changes in the cervical and thoracic spine.

[105] His most recent follow-up was on August 8, 2018 where Mr. Simeunovich reported his vision was normal in both eyes. He still complained of numbness to the left side of his face, left arm, left upper shoulder and left leg. He also advised the doctor the sensation in his left arm, left upper back and leg had been different from his right side since his motor vehicle accident in 2014. She discussed with him there was no physical reason for the loss of vision in his right eye and that it was likely underlying stressors that caused his inability to see previously. She indicated in her report that Mr. Simeunovich has good prognosis for complete recovery. Of concern is the reference in Dr. Sokoloya's report of Mr. Simeunovich experiencing similar symptoms of left numbness as a result of a 2014 motor vehicle accident. Consequently, it is difficult to ascertain if this was caused by the assault at CECC on April 18, 2017.

[106] Dr. A. Bender, Mr. Simeunovich's psychiatrist wrote in his report, dated August 20, 2018, his diagnosis was based on information from Mr. Simeunovich and if any of the information proved to be incomplete or inaccurate then the diagnosis, comments and recommendations and opinions expressed could change. Mr. Simeunovich was first seen in February 2018 by Dr. Johnston, a psychiatrist, and he reported to Dr. Johnston he had been assaulted in Lindsay jail and was feeling "a little depressed." He was diagnosed with Post Traumatic Stress Disorder and prescribed a sleep medication to suppress his nightmares and an anti-depressant medication. He saw Dr. Bender in March 2018 and some adjustments were made as to his medications. In April he saw Dr. Bender again and reported improved sleep and substantial reduction in nightmares. He felt "pretty good" and was exercising. He was eating well and hoping for resolution of his criminal charges. He saw Dr. Bender again on April 30, 2018 and indicated he was hopeful for release in June 2018 as he was "sick of being in jail."

[107] Dr. Bender saw Mr. Simeunovich again on June 11, 2018, and he reported feeling emotionally "okay" and described an increased capacity for empathy from his recent experiences. On examination he presented as calm with a normal mood. In July 2018 when Dr. Bender saw Mr. Simeunovich again he described feeling anxious and "jumpy," was having nightmares once to twice a week, causing him to be awake. He was continuing to take his medications. On August 20, 2018, Mr. Simeunovich described have nightmares again of being beaten up and he felt his court appearance on August 24 was the trigger. He told Dr. Bender his vision had now nearly returned to normal. Dr. Bender opined near the end of his report that "it is anticipated that his symptoms will continue to improve over time and with a resolution of legal matters. He is not expected to have permanent impairment from psychological factors and he appears to have functioned well while at the Toronto East Detention Centre." I note there is a discrepancy between what Mr. Simeunovich told Dr. Sokoloya (August 8, 2018) and Dr. Bender (August 20, 2018) respecting the vision in his right eye on different dates in August 2018.

[108] Both doctors indicate Mr. Simeunovich's long term prognosis is good and he is not currently dealing with any physical difficulties occasioned by the assault that occurred on April 18, 2017.

[109] I was also provided a letter, dated August 21, 2018, from Mr. Rick Camman, Manager, Security & Investigations at CECC concerning lockdowns, loss of in-person programs. This letter indicates no lockdowns for Mr. Simeunovich for the period he was at CECC from April 13, 2017 to June 8, 2017. This letter was marked as Exhibit 20. He was in segregation until he was moved to Toronto East Detention Centre for 52 days because of the assault. I was also provided a report from Toronto East Detention Centre, Exhibit 21, which reflected very few lockdown days during the 432 days Mr. Simeunovich was incarcerated there.

[110] Subsequent to the Duncan decision the Supreme Court of Canada in R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34, where Justice Moldaver, for the majority, dealt with the effect of collateral consequences, which includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence, but they must relate to the offence and the circumstances of the offender (see para. 47).

[111] There is no rigid formula for taking collateral consequences into account, and there is no requirement that collateral consequences emanate from state misconduct in order to be considered a factor at sentencing. However, the fundamental principle of proportionality must prevail in every case – collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. Violent actions against an offender for his or her role in the commission of an offence necessarily form part of the personal circumstances of that offender, and should therefore be taken into account when determining an appropriate sentence (see paras. 48-49).

[112] Justice Moldaver refers to the fact that courts have held that where an offender is attacked by fellow inmates in a prison and the attack is related to the offence for which the offender is in custody, such violence may be considered as a factor at sentencing: see R. v. MacFarlane, 2012 ONCA 82, at para. 3; R. v. Folino, 2005 ONCA 258, at para. 29; and R. v. Anderson, 2014 ONSC 3646, at paras. 14 and 18. In Suter, the accused was kidnapped by vigilantes, assaulted and had his thumb removed with pruning shears and left bleeding and unconscious in the snow because of his charge of refuse breath sample where a two year old child was killed. Justice Moldaver held that "attacks relating to the commission of the offence form part of the personal circumstances of the offender (see para. 51)."

[113] I was not advised as to whether the attack by three inmates on Mr. Simeunovich, while he was in protective custody at Central East Correctional Centre (CECC), was related in any way to the charges he was facing. In fact, Mr. Simeunovich advised me, during his lengthy comments when I asked pursuant to s. 726 if he had anything to say, that one of the accused charged with "aggravated assault" in relation to this assault had received a three year penitentiary sentence. The truth of the matter as reflected in Exhibit 16, was that this accused, Kevin Mitchell, was charged with assault causing bodily harm and he received a 10 month reformatory sentence, consecutive to the sentence he was serving and 12 months' probation. Again, this, in my view, was a further attempt by Mr. Simeunovich to mislead and manipulate his sentencing proceedings.

[114] I do not have any evidence before me that the attack on Mr. Simeunovich was in any way connected or related to the offences he was facing. Consequently, I cannot determine whether this attack and his resulting injuries were related to Mr. Simeunovich's charges or simply the fact that he did or said something that angered his fellow inmates who were in protective custody. It is my view that Duncan would still apply. Both Duncan and Suter are clear there is no rigid formula for determining how much enhanced credit should be assessed or for taking collateral consequences into account in determining a proportionate and fit sentence. One thing is clear, I cannot reduce Mr. Simeunovich's sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of Mr. Simeunovich.

[115] In R. v. Selinevich, [2017] O.J. No. 766 (OCJ), Justice Pringle had to address the enhanced credit to be given because of harsh conditions of the accused's pre-trial custody in terms of lockdowns and cancellation of in-person programming, which defence counsel provided documentation from the custodial institution to prove. Ms. Selinevich was in pre-trial custody for 574 days, for serious driving offences. Instead of 1.5 to 1.0 credit Justice Pringle considered 1.6 to 1.0 as the appropriate calculation for taking into consideration the harsh conditions of Ms. Selinevich's pre-trial custody.

[116] It is my view that the attack on Mr. Simeunovich, just 6 days into his detention in custody, an attack that was recorded on video-tape, yet the facilities corrections officers did not respond to prevent or stop the assault for some period of time, is a more serious circumstance than in Selinevich. This assault occurred while Mr. Simeunovich was in the care and protection of CECC and the photos show it caused considerable bruising to Mr. Simeunovich's face and head. However, I am concerned with how Mr. Simeunovich attempted to embellish the consequences to himself, the charges laid against the two individuals who were identified and the sentence imposed by Justice Payne. In all of the circumstance I am prepared to assess the enhanced credit as 1.7 to 1.0, which means Mr. Simeunovich will receive credit of 337 days on top of the pre-trial custody of 481 days for a total credit of 818 days.

[117] Consequently the recalculated credit is 818 days and the remaining global sentence to be served is 7 years and 277 days.

[118] There will also be a prohibition order, pursuant to s. 259(4) for life.

Released: August 24, 2018

Signed: Justice Peter C. West