Ontario Court of Justice

Date: 2021 07 13 Court File No: BRAMPTON 3111-998-20-10473-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PETER SIMMS

Before: Justice K.L. McLeod

Heard on: March 26, May 10, 11, June 7, 2021 Reasons for Judgment released orally on: July 12, 2021 Reasons for Judgment released in writing on: July 13, 2021

Counsel: Mr. Daniel Galluzzo, counsel for the Crown Mr. Dominic Basile, counsel for the defendant Peter Simms

K.L. McLeod

Introduction

[1] In 1985 the Ontario Court of Appeal said the following:

No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the courts' repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer. [See R. v. McVeigh, 1985 ONCA 115, [1985] O.J. No. 207.]

[2] Thirty-five years later, the public are still facing examples of the tragedy that unfolds when a person under the influence gets behind the wheel of a car.

[3] This case is about a young man, Jagrajan Brar, who I have come to know as Jag, who lost his life at the age of 19 and left an extended family and a legion of friends behind who are angry, devastated and unable to truly comprehend that their loved one will never come home.

[4] It is about three other people: Damon Mahon, Katherine Labuda and Angel Bodak, all of whom received injuries as a result of the driving that killed Jag.

[5] It is about a now 46 year old man who knew better: Peter Simms, who chose to get behind the wheel of a car, that was not his, after a night of drinking and ultimately kill one of the young bright lights of this community and injure three other people.

[6] This case is yet another example of how a potential killer became an actual killer because of his intoxication and the way in which he operated a car. As a judge I appreciate the victims are looking to me to provide "justice". The real justice would be if I could roll back the clock, stop Mr. Simms from getting into the car when he did and give this community and this young man his life to live to its fullness. That is not available to me or sadly to anyone. The result of this hearing will not be that everyone will stop grieving because Jag is with his loved ones and those that were injured are restored to full health: I wish that was possible. It is not.

[7] My role is to listen to the "evidence" – the facts of this case, listen to this community about the impact of this incident and the information about Mr. Simms himself and make a decision that accords with legal precedents and impose a just sanction [2] Section 718 of the Criminal Code that gives effect to the will of Parliament with respect to the fundamental principle of sentencing: that is that it is proportionate to the gravity of the offence and the degree of responsibility of the offender [3] Section 718.1 Criminal Code and one that fulfills the required objectives. [4]

The Circumstances of the Offence

[8] How did this happen? On October 9th, 2020, Mr. Simms went out for the evening – he had been caring for his former partner and the mother of his children who was suffering from COVID. He had been terminated from his employment because he chose to take care of her.

[9] Mr. Simms was out with a lady friend, Angel Bodak; he had obviously been drinking to excess and chose to drive her car. Just around midnight he was on Lakeshore Road Eastbound in Port Credit; he turned north to go on to Hurontario.

[10] Sadly, Jag was driving south on Hurontario when Mr. Simms rear-ended a Kia car then crossed into the southbound lanes and hit Jag's car which careened off the road. It appears Jag was killed on impact.

[11] I will now be going into the details of Mr. Simms driving: the evidence of it comes from a number of sources: Peel Police officers who were in an unmarked car taking the same route as did Mr. Simms, surveillance cameras and the evidence of Mr. Mahon in the Kia.

[12] The following facts were admitted by Mr. Simms and became part of the evidence on this hearing. I will deal firstly with those facts and then comment on the evidence provided by the surveillance cameras.

[13] Hurontario north of Lakeshore is a four-lane road, with a 50 km an hour speed limit. As midnight on October 9th turned into October 10th, two Peel Regional Police officers in an unmarked car were on Hurontario northbound in the curb lane, the Kia, driven by Mr. Mahon with his passenger, Ms. Labuda, was slightly ahead in the passing lane.

[14] A black Audi driven by Mr. Simms overtook the officers’ car at a speed, they estimated to be between 140-160 kilometres an hour. The Audi was described as fishtailing and rear-ended the Kia. The Audi went into the southbound lanes and collided with front driver’s side of Jag's car.

[15] The officers stopped and ran across the road and saw Mr. Simms get out of the car and walk a few steps westbound. The officers stopped him and immediately, having smelt alcohol on him, arrested him for impaired driving and gave him his rights to counsel. Mr. Simms asked if he had killed anyone. At that moment the officers did not know, but shortly thereafter at 12:17 a.m. Mr. Simms was arrested for causing Jag’s death. Observations of his obvious impairment were made: a strong odour of alcohol, flushed face, slurred speech and dilated pupils.

[16] Mr. Simms was taken to the hospital and ultimately provided two samples of his breath into an approved instrument. At 3:29 a.m. his blood alcohol readings were 150 milligrams of alcohol in 100 millilitres of blood (hereafter referred to as “BAC”) and 23 minutes later a second test was taken: it registered a reading of 154.

[17] As a result of the operation of Section 320.31 of the Criminal Code, Mr. Simms’s BAC was estimated to be 160 at 2 a.m.: that is two hours after he caused the accident. Additionally, a vial of Mr. Simms blood was seized by warrant at the hospital. The Centre of Forensic Science analyzed this vial and determined that his BAC was 190.

[18] I will now turn to the surveillance evidence, which revealed the following: the Audi driven by Mr. Simms is seen at the traffic lights at Lakeshore and Hurontario, in the left-hand turn lane. Mr. Simms crossed over approximately 7-8 seconds after the traffic light permitted him to do so; he was followed by a black F150 truck. The cars were stopped by a subsequent light, by which time Mr. Simms and the F150 were side by side in the northbound lanes. A camera at Park Street pointing north picks up the two cars still side by side obviously travelling fast. A store surveillance camera also picks up the lights of the cars and when one compares their speeds to other cars in the same rough timeframe; it is obvious they are driving extremely fast, still in parallel lanes. The image of the comparative speed of the lights of these two cars with the other cars that went ahead of them is extremely telling of that speed.

[19] As the cars continued northbound and arrived at a cross street – Mineola, Mr. Simms pulled into the passing lane in front of the F150 and overtook the unmarked police car in the curb lane. Mr. Mahon, from the rear-view mirror of his Kia, saw a car advancing on him at great speed. Sadly, before he could switch to the curb lane, his car was rear-ended by Mr. Simms. The car retrieval data of the Kia revealed it was travelling at 57 kilometres an hour at the time it was hit.

[20] In terms of the speed of the Audi, the data retrieval from the car shows Mr. Simms to be driving at 136 kilometres an hour 5 seconds before the collision, 149 kilometres an hour 2.5 seconds before the collision and at the time of the collision 132 kilometres an hour.

[21] A surveillance camera looking south at Mineola and Hurontario shows a number of lights coming northbound; at speed, a car appears to pull in front of another car, the Kia is then seen appearing to turn cross-wise onto the road and going backwards onto a sidewalk on the east side of Hurontario.

[22] Jag’s car can be seen travelling south. Mr. Simms’s car comes across to the southbound lanes of Hurontario and hits Jag’s car which appears to be pushed off the road. The two officers are seen emerging from their car which is stopped on the curb lane of Hurontario northbound, and Mr. Simms is seen emerging and walking a few steps to the west side of the road away from the Audi, leaving his passenger still in the car. One officer appears to then point something at Mr. Simms, and he puts his hands up and is taken to the ground.

[23] The surveillance also shows that right after the accident, the F150 turned left and crossed the road going westbound on Mineola Avenue.

[24] Finally, I will turn to the evidence of Mr. Simms’s actual alcohol consumption which comes from his passenger, Ms. Bodak who was significantly injured in the accident.

[25] She suffered body compression fractures of her T2, T3 and T12 of her spine but declined the offer to provide Victim Impact. However, apparently in her statement to the police, she described the following:

Mr. Simms had arrived at her home at 6 o'clock in the evening. He had between 1 and 2 beers there, they then went to Jack Astor's where he drank 3 draft beers. They went to an outdoor drive-in concert to which Mr. Simms brought a 6 pack of beers: he drank between one and 2 beers there. They then went to a bar on the Lakeshore where he had an additional one to two beers.

The Victim Impact Statements

[26] I will now turn to the Victim Impact Statements. Fifteen family members read their statements by means of Zoom attendance. One person, Jag's father, attended in person. Mr. Simms also appeared by Zoom from Maplehurst to watch and listen. I received an additional 27 Victim Statements including drawings from the youngest of relatives and three community impact statements.

[27] Jag had a large family who loved him, and he loved them. He had an extended network of friends who loved him, and he loved them back.

[28] To paraphrase or summarize the descriptions of loss would do a disservice to all that I read and heard. It is best to describe what I now know.

[29] Jag Brar was 19 years, 3 months and 11 days old when he was killed. He was the older child of his mother, Rupinder Sandhu, and his father, Rob Brar. He had a little sister who was 14 years old – Sraia is her name. He had a beautiful girlfriend – Victoria – who was the love of his life, and he was hers.

[30] He was the oldest of a 15-cousin family, all of whom considered him to be their big brother; some of them now live in Las Vegas, but their closeness never dimmed over the miles. He had numerous aunts and uncles, he had a grandmother, he had friends from grade school, high school, work, old friends and new friends. He had dreams, aspirations which no doubt he could have achieved and he, more than anything, was a bright light in all their lives.

[31] I do, however, want to quote some from some members of his family. His mother, Rupinder Sandhu, described her son as kind, loving, generous, affectionate, considerate and empathetic. She described how he was always smiling, always kept in touch with everyone.

[32] She described her loss in this way: “life, altering, devastating, tragic catastrophic, none of these words befit how I feel. None of these words can adequately describe the loss we feel, my daughter Sraia, my family. Losing Jag, losing my son … it is unbearable and will be with me for the rest of my life. There isn’t a moment that goes by that I don’t think of my son ….” She says: “my heart is broken; it’s literally shattered into a million pieces.”

[33] She is so right; our vocabulary is inadequate when it comes to describing such a loss.

[34] I think it important in this judgment to also repeat what this brave lady told all of us:

I am haunted by the memories of the night he died. I went to bed just before 1 a.m. Victoria called at 1:30 a.m. … Jag's location on her phone had not moved for a long time. She went to see what happened; he was in an accident, but she doesn't know to what extent. I got there just before 2am, the street was cordoned off, I had to take a side street and drive around to Mineola. The scene had been completely abandoned except for the police lights and police vehicles investigating the scene. No signs of ambulance vehicles. Nothing. I stood there all night, I paced back and forth. I couldn't stand still. I didn't understand. I should've known. I should have understood the unspoken. Go home they told me; we will contact you when we have information. No, I told them, I need to know where my son is. Please, I begged, tell me where he is. I demanded answers, I called trauma centres looking for my son Jag Brar or my son “John Doe”. Little did I know my son laid a few hundred feet away from me. I didn't know until just after 4 a.m. on October 10, 2020, 4 hours after he died.”

[35] Mr. Simms was arrested for impaired causing death at 12:17 a.m. I have no explanation why it took four hours to confirm Jag’s death. I can only note it and hope it never happens again to anyone.

[36] Jag's father spoke about the tidal wave of grief he feels every day about losing his best friend. He described the natural emotions of being angry, frustrated and sad.

[37] Sraia, his younger sister, described her brother as wanting to make sure everyone is happy. She asked: “How can I live without my brother?" There are no answers, but her courage in giving her victim impact statement impressed all who watched her and understood that she is strong for her family and will forever be faithful to the memory of her beloved brother.

[38] Jag's maternal grandmother, Tirathu, described him simply: “he made everyone's day brighter”. Her concerns as a mother, go to the depth of her daughter's loss.

[39] The victim impact statements also brought home the pain of the loss of this young man to so many. They spoke of the day their lives changed forever, of the pain and huge void that have been left behind.

[40] This young man in his short life took the opportunity to make everyone feel special and loved, that is an extraordinary quality and it is clear he had that in spades.

[41] Two victim impact statements that I want to turn to are those of the two people in the Kia which was rear-ended by Mr. Simms. Both suffer from depression. Mr. Mahon has been undergoing physiotherapy, seeing a chiropractor and a neurologist. He was obviously significantly affected and was unable to work. Ms. Labuda was not able to return to work; she was enrolled in courses; her marks have suffered and, like Mr. Mahon, has had to undergo physiotherapy.

[42] I acknowledge the understandable anger, resentment, and fury of many who wrote. I have heard you all, I empathize and acknowledge the reality of your feelings.

[43] As I have explained at the outset of this judgment, the Criminal Code is the law that guides me and I am obligated to be faithful to that, but to repeat what I have just said, I hear your words and I want to express my appreciation and admiration for all of your courage, honesty and insight. The day that I spent hearing this evidence was impactful and frankly, heartbreaking. But I thank you all for your contribution.

[44] I must also mention the community victim impact statements. I received three: from Jag's MPP, from his local councillor and from a small business owner who runs a restaurant who included a number of Facebook posts in her statement. All of these spoke to the loss and the anger the community feels at such a senseless deprivation of life.

[45] Any sentencing proceeding in a criminal case is important for victims; it gives each and every one of them the chance to address the perpetrator of their pain and tell, in this case, Mr. Simms, what devastation his actions brought. All these statements have accomplished that and so much more. These brave people have truly enhanced the process of the administration of justice.

Circumstances of Mr. Simms

[46] I now turn to the circumstances of this offender.

[47] I am going to deal firstly with “the elephant in the room” which has motivated much of the anger; that is that Mr. Simms has been previously convicted of three Criminal Code driving combined with excessive alcohol incidents.

[48] In 1996 he was found guilty of impaired driving and refusing to provide a breath sample arising out of one occurrence. On the same day he was also found guilty of a separate occurrence; that of driving on a different occasion with over 80 milligrams of alcohol in 100 millilitres of blood.

[49] Additionally, in 1999 he was found guilty of another impaired driving charge. With that conviction Mr. Simms’s driver’s licence was suspended until 12 March 2012, when it was reinstated and was in effect when he committed these offences in October of 2020.

[50] Mr. Simms has been found guilty of other offences: starting in 1996 when he was 22 years old; assault causing bodily harm and fail to comply with his probation; in 1996 at the same time of the first set of impaired driving offences, he was also found guilty of possession of property obtained by crime and carrying a concealed weapon; in 2000 two counts of breach of his bail and in 2001 assault causing bodily harm; in 2003 and 2004 Mr. Simms was found guilty of a further three counts of breach of bail and a break enter and then finally in 2015 of assault. He is no stranger to the jail system, but the longest sentence he has received is 90 days.

[51] As is so often the case with those who have criminal records, Mr. Simms’s life story is not an easy one. I have had the benefit of receiving a Pre-Sentence Report prepared by Probation Services on Mr. Simms and 22 letters of support from his family and friends: including his parents and his four siblings.

[52] I have learned that Mr. Simms was born in Toronto; apparently, he initially did well at school. The family moved to the Jane and Finch area when he was ten, that is when things started to change. Mr. Simms and one of his sisters also changed school to a more local school. Mr. Simms did not do well and suffered from a beating at that school.

[53] According to Mr. Simms, his parents moved to Orangeville when he was 15, but he stayed in Toronto. Between the ages of 16 and 20 he was stabbed on two occasions, had his jaw broken as well as his nose, had numerous concussions as a result of associating with a negative peer group, he dropped out of school, became an alcoholic and a user of cocaine.

[54] Mr. Simms has been diagnosed with PTSD, ADHD, depression and has continually battled his alcoholism. He attended in-patient treatment in 2009 and 2016 and on each occasion managed to attain some form of sobriety. He fell off the wagon in 2018 when his mother-in-law died, and his alcohol use increased after he went to look after his former wife when she was seriously ill with COVID and, as a result, lost his job which he had had for four years.

[55] Mr. Simms has had a history of working in the construction industry as a carpenter and in managerial and supervisory positions.

[56] There is, however, another side of Mr. Simms that has been brought to life by the letters filed on his behalf: that is of a caring and generous son, nephew, sibling, uncle and friend. When enjoying sobriety, it appears that he is an unselfish, kind and loving father of three children, and four grandchildren. A letter of support from Alexandra Francis, his former partner with whom he had children starting at the age of 17, speaks to his unconditional love for his family, his hard work in supporting the family and his feeling of loss of his mother-in-law, for whom he offered real practical care, despite the fact that he was separated from Ms. Francis. She is also the lady for whom Mr. Simms lost his job because of his insistence in taking care of her while she was seriously ill with COVID.

[57] One particularly insightful comment comes from Mr. Simms’s oldest sibling, Kelly. She recounted her adverse reaction when her son was charged with impaired driving, however apparently, Mr. Simms guided the young man to sobriety, including becoming his sponsor for a period. Sadly, Mr. Simms saved his nephew, but could not save himself from the life of an alcoholic.

[58] His brother-in-law, John Deschamp Sr., who has known Mr. Simms all his life, said it best:

I've seen two sides of Peter. When Peter is using, he hides from everyone when that demon takes over. That's the Peter that I don't like. I always will love him but when he goes down that path, I have to push him aside. The other side of Peter is the man who raised a family and has grandchildren and loves his parents, his siblings and will do anything for anybody.

[59] It is important also to quote another passage from Mr. Deschamp Sr. who wrote this:

A lot of people would not admit they have a problem until they get into a spot that Peter is in now. The Peter you see now is the truest Peter. The Peter that everyone loves. The one who has integrity and has big heart. He is already showed the compassion that he has when he withdrew his bail. He didn’t want to continue to pain these families. He knows that he did wrong and he can never forgive himself for that. That is the Peter I love and feel sorry for. The same Peter who has a big heart was crushed the day the victim statements were read. As he said over the phone it was one of the worst days of his life.

[60] My thanks to all those who assisted in providing a picture of Mr. Simms; their contribution and the vocalization of their support no doubt will assist him during his incarceration and upon his eventual release from jail. It is important to note that many of the letters contained expressions of sadness and a recognition of the tragic loss of life to the Brar and Sandhu family.

[61] In terms of remorse, Mr. Simms has exhibited it in several other ways: his acknowledgment of his full responsibility by means of a plea of guilt before any trial or preliminary hearing date was set. Also, he availed himself of the opportunity to speak at the conclusion of the hearing of submissions. He offered an apology and spoke of his selfish decision to drive and steal away a life of a young man who had his whole life ahead of him. He said he will carry the guilt and shame of his actions and said he prayed for forgiveness. He also apologized to Ms. Bodak and said he prayed for her full recovery.

[62] Mr. Simms stated he intends to educate others of the perils of drinking and driving; that was a sentiment his family also reported.

The Position of the Parties

[63] Mr. Galluzzo for the Crown submits that an appropriate sentence for Mr. Simms is a sentence of 10 years for causing the death of Mr. Brar and a 4 to 5-year concurrent sentence for causing bodily harm to Ms. Bodak, these are the two charges to which he pleaded guilty. Mr. Galluzzo acknowledges that a deduction of that sentence to account for presentence custody is appropriate, calculated at an additional half day credit for each day of pretrial custody.

[64] He also suggests that a 30-year driving prohibition is appropriate and a DNA order.

[65] Mr. Galluzzo submits that in drinking and driving cases, the objectives of sentence that are the main imperative which require an unequivocal message are denunciation and deterrence with an emphasis on the wrongfulness of this crime. In support of that submission, he also suggests that an emphasis on the principles of sentencing of impaired driving causing death has recently resulted in an increase in the length of prison sentences imposed on these offenders, which reflects society's increased abhorrence of drinking and driving.

[66] He also submits that while drinking and driving offences are often committed by otherwise law-abiding people; this case is different, and therefore a significant jail sentence must be imposed.

[67] In terms of moral blameworthiness, Mr. Galluzzo argues that Mr. Simms’s responsibility for this crime is high.

[68] Fairly, Mr. Galluzzo also suggests that there are mitigating circumstances; particularly Mr. Simms’s guilty plea and his early communicated intention to do so, and the realistic support demonstrated by his friends and family. Mr. Galluzzo also submits that the Gap principle is a factor that must be noted; that is that it has been a considerable period since Mr. Simms was convicted of a Criminal Code driving offence. But he suggests that the aggravating circumstances of these offences by far outweigh what is mitigating.

[69] In terms of aggravating factors; Mr. Galluzzo points out the following: the fact that this is the fourth time Mr. Simms has been found guilty of a drink driving offence, the fact that his alcohol readings were at least twice the legal limit: which is both in factually and legally aggravating, the fact of the manner of driving at three times the speed limit, and of dangerously moving in front of the F150 truck on a road which had a deal of traffic even at midnight. While I consider the side by side driving and the pulling in front of the truck to be extraordinarily dangerous, I concede the Crown is not able to prove beyond a reasonable doubt that the two vehicles were racing, that fact is therefore not legally aggravating.

[70] For Mr. Simms, Mr. Basile suggests a sentence of 8 years imprisonment is the appropriate sentence and takes no issue with the proposed length of the driving prohibition and the DNA order.

[71] Mr. Basile also makes application for credit for pretrial custody for Mr. Simms: that is based on the credit agreed by Mr. Galluzzo is appropriate and further for what is known as “Duncan” credit or hardship credit [5] R. v. Duncan, 2016 ONCA 754 due to the conditions of confinement during the pandemic.

[72] Mr. Basile, on behalf of Mr. Simms, focusses on his client's remorse. According to Mr. Basile, Mr. Simms, who was appearing by way of video connection from Maplehurst to hear the victim impact statements, had to move away from the screen as he was notably sobbing.

[73] Mr. Basile chronicles Mr. Simms’s sad history of abuse leading to his PTSD and perhaps alcoholism and Mr. Simms’s failed attempts at rehabilitation. Mr. Basile also notes that while the driving record is clearly aggravating; he does note, as did Mr. Galluzzo, that 22 years have elapsed since his last driving conviction.

[74] In terms of outward expressions of remorse and acceptance of guilt, Mr. Basile submits that it was Mr. Simms who apparently stopped the bail hearing after the first day and indicated his wish to plead guilty. That, of course, saved the other witnesses and victims of his wrongdoing from ever having to testify.

[75] It is submitted that Mr. Simms, upon his release, is well placed for rehabilitation in that he has a supportive and watchful arena full of family and friends.

The Principles and Objectives of Sentencing

[76] I will now turn to the legal factors which guide me as to the appropriate sentence in these tragic circumstances.

[77] The fundamental principle of sentencing is found in Section 718.1 of the Criminal Code. It states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[78] There are other principles of sentencing found in Section 718.2 of the Criminal Code which mandate an increase or decrease in the sentence to account for aggravating and mitigating factors. Those factors that are relevant in this case are:

– Evidence that the offence had a significant impact on the victim, including their age and of their personal circumstances, including health and financial situation. – That a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances (known as parity of sentence).

[79] The objectives of sentencing are found in Section 718 of the Criminal Code. Those that are particularly applicable in this case are: denunciation of the unlawful conduct and the harm done to the victims or to the community that is caused by the unlawful conduct and deterrence of the offender and other persons from committing offences and the promotion of a sense of responsibility in offenders and an acknowledgement of harm done to victims or to the community.

[80] In the arena of impaired driving sentences, the primary objectives are denunciation and deterrence, both specific and general. While other objectives of sentencing such as rehabilitation do play a role, it is a secondary role and one that is diminished in substance for Mr. Simms who is a repeat offender.

The Relevant Case Law

[81] Jail sentences for impaired driving causing death cases have increased in recent years: this is a result of increased focus on the dangers of impaired driving and the inability of previous sentences to send the message that deters others. [6] A review of the more recent cases is essential. I have been referred to a number of cases and while every case is unique, they provide a guide to me of the appropriate range of sentence and I turn to those now.

[82] R. v. Altiman, 2019 ONCA 511: Mr. Altiman, having left his wife in the midst of an argument, drove his car at excessive speed narrowly avoiding one collision then driving in the wrong direction of traffic and thereafter through a mall parking lot, and back onto the road thoroughfare. He then ran a red light at 187 km an hour, smashing into the back of a car which was crossing the intersection on a green. That car had four occupants, the two in the rear were killed, and two in front suffered serious injuries. Mr. Altiman did not stop after the accident, he mounted a median, struck a light standard ripped out a road sign and crashed into the front porch of two houses. Mr. Altiman’s blood alcohol level was 175 milligrams of alcohol in 100 millilitres of blood. The initial sentence judge imposed a 10 year sentence, that was reduced to 7 years by a majority of the Ontario Court of Appeal noting essentially that the imposition of the 10 year sentence corresponded in length to sentences on offenders who had a criminal or driving record, which Mr. Altiman did not have. The court specifically stated that its review of the case law where an offender had previous convictions or previous driving offences appeared to demonstrate those offenders had received between a 7.5 to a 12-year sentence.

[83] R. v. Randhawa, 2020 ONCA 38: Mr. Randhawa, after drinking all evening, drove his car with four passengers through a residential neighbourhood at high speed. He clipped another car; his car went airborne and crashed. All four passengers were thrown out of the car, three died, one was seriously injured. Mr. Randhawa, who was 22, suffered a traumatic brain injury leaving him both physically and mentally vulnerable. The Court of Appeal found that to be a serious mitigating factor. Mr. Randhawa initially received a sentence of 9 years; the Court of Appeal reduced it to 7 years on the basis of the parity principle.

[84] R. v. Muzzo, 2016 ONSC 2068: This is a case that received a lot of public coverage, not only because of the tragedy that Mr. Muzzo caused by driving while intoxicated, that is the death of three children ages 9, 5 and 2, their grandfather and seriously injured the driver and passenger, but also for the circumstances of Mr. Muzzo's offence. Mr. Muzzo knew better – he had climbed off a private jet at Pearson, coming from a party in Miami to drive himself home. He had ten previous speeding convictions, and two other driving infractions and upon leaving the airport had an array of other choices open to him: taxis, limos or calling a friend or family member. He was speeding and failed to stop at a traffic light and crashed into the car full of one family. His blood alcohol readings were estimated at being between 190 and 245.

[85] On a joint submission between counsel, Mr. Muzzo received a sentence of 10 years in the penitentiary. In coming to her conclusion, Justice Fuerst stated that because of the increase in penalties imposed by courts more recently, sentences that predate the cases of Ramage, 2010 ONCA 488, Kummer, 2011 ONCA 39 and Junkert, 2010 ONCA 549 have diminished value as precedent.

[86] Neither Mr. Ramage or Mr. Junkert had a previous record when they drove intoxicated and killed an innocent person. Mr. Ramage received four years after a full trial and Mr. Junkert received five years.

[87] However, Mr. Kummer killed three people including two children, while driving with more than double the legal limit, representing an estimated consumption of 15-20 beers. Mr. Kummer had a previous driving record which included a careless driving conviction after driving onto an airport runway after he had consumed alcohol. Mr. Kummer received a sentence of 8 years in the penitentiary.

[88] R. v. Fracassi, 2017 ONSC 28: Justice Boswell sentenced Mr. Fracassi to 6 years in jail after he killed one person, badly injured another and left the scene driving to his home. His BAC was in the range of 175 to 200. Mr. Fracassi did not plead guilty and while he had no criminal record, he did have several Highway Traffic Act findings of guilt, mainly speeding.

[89] R. v. Rihawi, 2016 ONCJ 700: My colleague Justice Duncan sentenced Mr. Rihawi to 7 years for impaired driving causing death and an additional one year concurrent for driving while he was prohibited from doing so. Mr. Rihawi had, between 2-3 months before this offence, been convicted of an over 0.8 driving offence for which he received a fine and 12 months driving prohibition. Mr. Rihawi’s BAC was between 100 and 140 when he drove through a red light and hit the car lawfully in the intersection. One woman was killed: she was the mother of three children; obviously a devastating loss. Mr. Rihawi was driving at 145 kilometres an hour about five seconds before the collision and 126 kilometres an hour, half a second before impact.

[90] Finally, R. v. Daoud, 2011 ONCJ 200. Ms. Daoud was an alcoholic, who was under a driving prohibition, but was driving when she killed a 16-year-old young man who was biking home from work, and she left the scene. Ms. Daoud continued driving in a dangerous manner, hit a police officer’s car who was driving to investigate Ms. Daoud’s car which was parked on the shoulder of the road. Ms. Daoud’s BAC was between 269 and 230. She had a previous record of impaired driving when her BAC was 250, and of child abandonment of her two-year-old child, while going drinking. She also had been convicted of 13 counts of breach of court orders mainly related to her consumption of alcohol. She had a horrendous background; she came from Ethiopia, was the victim of numerous rapes, of a public circumcision and a forced marriage when 12 years old. She received a sentence of 6 years in jail.

Hardship Credit for Pretrial Conditions (“Duncan” credit)

[91] Mr. Simms also seeks Duncan credit for the hardship of the severe conditions of his pretrial detention, during the COVID-19 pandemic.

[92] On the 21st of May of this year, the Ontario Court of Appeal released R. v. Marshall, 2021 ONCA 344 which changed the way in which this type of "credit" should be considered. Firstly, the Court agreed that the very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit. [17] Marshall, supra, at paragraph 50.

[93] Secondly, the Court considered that this type of credit should be dealt with as a “mitigating circumstance”, rather than as pretrial credit. Justice Doherty emphasized that this type of credit is not a deduction from an otherwise appropriate sentence, but is one of the factors that should be considered in deciding the appropriate sentence but that it cannot lead to a sentence which is inappropriate. [18] See R. v. Morgan, 2020 ONCA 279.

[94] In his Affidavit [19] filed in support of this application, Mr. Simms described the conditions of his pretrial incarceration during COVID, including how he has had three periods of isolation for a period of days because of contact tracing.

[95] At paragraph 7 of this document he states:

I have spent at least 120 days in full lockdown. In full lockdown we are not allowed to shower for a period of up to 4 days or a phone call. There is no privacy for using the washroom, no contact with anyone except your cell mate and no fresh air at all. We eat all food in our cells and the garbage from the food is left in the cells with us. Sometimes the garbage is not able to be removed until 3 days later. Some days, we are locked in the cells a full 24-hours straight for a period of up to 4 days at a time.

[96] Mr. Simms says that because of the conditions, he and the other inmates are suffering mental health issues; he can often hear people banging on cell doors and walls. He is sore most of the time, his muscles seize from lack of movement and fresh air and his skin is dry and itchy.

[97] Documents provided by the Ministry of the Solicitor General confirms 120 lockdowns, although states that 97 of them are full lockdowns and 15 were partial. Also, two days during which Mr. Simms was triple bunked: that is three inmates in a cell for two; one person sleeps on the floor.

[98] Also confirmed by the documents is that Maplehurst suffered a major COVID infection outbreak which led to well over 250 cases of inmate and nearly 100 staff infections. As a result, the institution was locked down for almost two months.

The Aggravating and Mitigating Circumstances

[99] Before I turn to the balancing of all the factors that I must, I want to outline the aggravating and mitigating factors in Mr. Simms’s case which will factor into my judgment of the appropriate sentence

[100] The statutory and factual aggravating factors:

1. Mr. Simms had no reason to drive. It was not his car; he could have got a taxi for his passenger and himself.
2. The manner of Mr. Simms’s driving was picked up by the surveillance cameras shows excessive speed in the curb lane, in tandem with another vehicle, which he then pulled out in front of, rather than dropping his speed and letting it go ahead, if he needed to change lanes.
3. This was a main thoroughfare leading out of Port Credit; it was around closing time of the bars on a Friday night and clearly was a road well travelled – the surveillance cameras reveal a number of cars in both directions on that road.
4. Mr. Simms had had a great deal to drink, and his BAC was at least twice the legal limit.
5. Mr. Simms's driving caused the accident in which he endangered other users of the road, injured three other people, including his passenger, and killed 19-year-old Jag Brar.
6. The impact on the people he injured has been significant, and he caused the immediate death of a young man with his whole life to live, who was peaceably driving to see his girlfriend.
7. The impact on everyone affected by this accident has been life changing, devastating and unforgettable.
8. Mr. Simms has three previous and separate convictions for impaired driving. While people who are intoxicated cannot be relied on to make sensible decisions, his previous record clearly did not serve as a restraining factor of a decision to drive.

[101] There are of course mitigating circumstances:

1. Mr. Simms pleaded guilty at an early stage of the proceedings; indeed, there was never an indication that he would test the evidence, as is his right.
2. Mr. Simms has a large community of friends and family who support and love him. Clearly as I have said, there is another side to him: when sober he is a loving, compassionate, hardworking man. All this support will stand him in good stead when he emerges from jail, if he chooses his better self for the rest of his life.
3. Mr. Simms has genuine remorse, as I indicated on one of the earlier hearing dates, it is evident that he will live a lifetime of grief and guilt.
4. Mr. Simms has served his pretrial custody during the COVID crisis: the health risks and restrictive conditions of incarceration during this unprecedented time is worthy of credit, although it is notable that jail inmates have been afforded access to the vaccines, and efforts have been made to "encourage" the inmates to access this preventative measure.

Conclusion

[102] I commenced my reasons for judgment with a reference to R. v. McVeigh, 1985 ONCA 115. [20] Ten years after that decision; the Supreme Court of Canada in R. v. Bernshaw, 1995 SCC 150 wrote:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

In an effort to counter that reality, Parliament had enacted laws that allow for the more efficient evidentiary proof of these offences. That in an effort to hold drunk drivers accountable under the Criminal Law in an effort to try and reduce drunk driving.

[103] Sadly, people who are impaired are not logical; they are not realistic about their ability to drive and as a result death and injury occurs. No one is suggesting that an intoxicated person means to cause an accident; but any sentence imposed must recognize that high moral responsibility of an individual who chooses to ignore reality; that they are impaired and should not be anywhere near the driver’s seat of a car.

[104] Jail sentences are not mathematically increased to factor in the number of people who are killed or injured. Mr. Muzzo drove into one car; it was a "family car" and contained three generations of a family, none of whom walked away unscathed. Mr. Simms hit two vehicles, causing four occupants of three vehicles to be killed and injured – not including himself. He is not afforded credit because there were four casualties, as opposed to six. It is the abhorrent driving, his BAC level, the previous convictions and the positive actions taken by Mr. Simms since October 10th that must dictate the sentence.

[105] Sentencing, to quote the Supreme Court of Canada [22] R. v. Lacasse, 2015 SCC 64 at para. 73 “is a highly individualized exercise that goes beyond a purely mathematical calculation”.

[106] I have concluded that a balancing of all of the factors both aggravating and mitigating, including recognizing the difficulty of incarceration so far served, that the appropriate sentence is 9 years and six months incarceration on the charge of impaired causing the death of Jag Brar and 4 years concurrent for the impaired causing the bodily harm of Ms. Bodak.

[107] Mr. Simms has been in custody since October 10, 2020. As of the date of this judgment he has been in jail for 276 days. He will therefore receive credit [23] Section 719(3.1) Criminal Code of Canada and R. v. Summers, 2014 SCC 26, of 414 days or one year 1 month and 19 days thereby leaving a sentence of 8 years 4 months and 11 days to serve.

[108] Mr. Simms will be prohibited from driving for a period of 30 years which will include the time spent in custody.

[109] Additionally, he will subject a DNA order pursuant to Section 487.051 of the Criminal Code; it being a primary designated offence.

[110] As a result of the length of this sentence, the Victim Fine Surcharge will be waived.

Released orally: July 12, 2021 Reasons for Judgment released in writing: July 13, 2021 Signed: Justice K.L. McLeod