COURT FILE NO.: 23-2017
DATE: 20191119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Brandon Frank Earl Simpson
Defendant
Laura Grant, for the Crown
Jack Hardy, for the Defendant
HEARD: September 17, 2019
Justice R. Raikes
[1] The defendant pleaded guilty on June 10, 2019 to counts 5, 6 and 7 on the indictment. The remaining counts were withdrawn. The defendant pleaded guilty to two counts of dangerous operation of a motor vehicle causing bodily harm contrary to s. 249(3) and one count of simple assault contrary to s. 266 of the Criminal Code.
[2] Sentencing submissions were made on September 17, 2019 at which time this return date was chosen with input from counsel as to their availability. Following release of the Court of Appeal decision in R. v. Charles, counsel were contacted by the Regional Trial Coordinator and offered earlier dates so as to stay with the presumptive 5-month ceiling for sentencing under the Charter. Defence counsel preferred to keep the scheduled date (today) and the defendant agreed to waive the very modest delay in this case.
Circumstances of the Offences
[3] On Friday, September 16, 2016, Brandon Simpson was driving his car with four friends as passengers. They were returning from Goderich to Seaforth. Mr. Simpson decided to take what he thought would be a short-cut back to Seaforth by turning onto Conservation Road from Wildlife Line.
[4] Conservation Road is a narrow gravel road with insufficient width for two lane traffic. The road passes through a conservation area which was open to members of the public for hiking, hunting and horseback riding. The roadway was poorly maintained. It had potholes and grass encroaching onto portions of the roadway. It had poor sightlines with trees and vegetation close to the road on both sides obstructing visibility. The road itself is very hilly with crests causing blind spots for drivers.
[5] On September 16, 2016, from approximately 1.5 km from Wildlife Line, Conservation Road was no longer maintained and was not safe to drive on. To prevent vehicles from driving further on the road at that point, there was a large steel, bright yellow gate that was closed and locked across the road. The gate included a round steel post 6 inches in diameter. The post to which the gate was hinged was cemented into the ground approximately 3 feet deep. Beside the post was a granite boulder approximately 3 feet high, 4 feet long and 3 feet wide.
[6] Mr. Simpson drove his vehicle on Conservation Road at a speed in excess of 100 km/h. As he approached the gate, he became aware that it was closed and attempted to stop his vehicle. As he did so, the vehicle turned sideways. The passenger side of his car near the rear passenger door hit the gate and boulder. The force of the impact dislodged the gate post and its cement foundation completely from the ground and the boulder was moved approximately 5 feet further east. This was a significant collision.
[7] Mr. Simpson’s vehicle cleared the top of the gate and boulder landing on its passenger side. The collision caused injury to one of the passengers, Ashton Clements, who suffered fractured vertebrae and a bleed in his kidneys. Another passenger, Kaige Fehr, suffered two serious internal bleeds that required surgery to correct, as well as a severe concussion and bruising to his face.
[8] Both Mr. Clements and Mr. Fehr were seated in the back seat of Mr. Simpson’s vehicle.
[9] In addition, Mr. Fehr’s brother, Austin, was also treated for injuries but declined to disclose the nature of the injuries to police. For his part, Mr. Simpson sustained a broken hand.
[10] Mr. Simpson and Austin Fehr climbed out of the driver side of the vehicle and assisted the remaining passengers to get out. Because of his injuries, Ashton Clements was unable to walk and fell to the ground.
[11] When that happened, Mr. Simpson began yelling at his passengers, saying that he had to get out of there and that he couldn’t go to jail. He told them to leave. He approached Ashton Clements, put his hands on Ashton Clements shoulders and physically pulled him to his feet. As he was doing this, Mr. Clements was telling him that his back was broken and he asked not to be moved. According to Mr. Simpson, he simply panicked.
[12] When another motorist approached the scene, Mr. Simpson told his passengers to hide in the bushes. He dropped Ashton Clements in the long grass beside a fence while the other passengers and Mr. Simpson tried to hide in nearby bushes until the motorist left. Ashton Clements used his cell phone to call his father who contacted police.
[13] The two charges of dangerous driving causing bodily injury arise from the accident just described. The two persons injured were Ashton Clements and Kaige Fehr. The assault charge relates to Mr. Simpson lifting and moving Mr. Clements against his wishes and despite his advice that his back was broken.
[14] Suffice to say that the accident could have been deadly. It is a small miracle that no one was killed or more seriously injured. Mr. Simpson’s panicked actions in picking up and moving his friend who told him he had a broken back could have led to far more serious injury.
[15] Neither victim participated in the sentencing. Crown counsel advised that she had no further information regarding the impact of the injuries sustained by them.
Personal Circumstances of the Offender
[16] A Pre-Sentence Report (“PSR”) was ordered. The facts set out in the PSR were accepted by the defendant. The PSR was marked as Exhibit 2.
[17] Mr. Simpson is 24 years old. He has no prior criminal record. He was 21 years old at the date of the incident.
[18] He is the middle child of a loving and supportive family. He had a normal childhood. There was no abuse. Although he had a learning disability, he had also had a positive relationship with his teachers and peers. He completed high school.
[19] He has a positive employment history. He has worked in construction, concrete, factory work and most recently in a swine operation. He has worked for the past four years for Westland Hogco Inc.. Exhibit 1 contains letters of reference and support from family members, friends and his employer. It includes a letter by Nick Regier, his supervisor, and another by Derek Preece, a co-worker both of whom indicated that Mr. Simpson is an excellent worker who is well regarded by both his employer and team members.
[20] After the incident, Mr. Simpson became involved in a romantic relationship with Tamera Donahue. They are biological parents to a child now seven months old. He is the primary breadwinner and supports both Ms. Donohue and their son. He is described as a loving, caring father who is actively involved in his son’s care.
[21] According to the information provided, Mr. Simpson lives with his parents and Ms. Donahue lives with her grandmother. They alternate weeks living with each other at one or the other place.
[22] He was active in sports in his teens. He completed grade 12. He had ADHD and a mild learning disability.
[23] Various letters of support were provided including by the mother of Kaige and Austin Fehr, Ms. Low. The reference letters provided reflect that Mr. Simpson has a good and stable relationship with Ms. Donahue. He treats her well. He is a good and devoted parent to his son. He has the support of his family and her family. He is helpful to others and a reliable, well-regarded worker.
[24] According to the PSR, Mr. Simpson denies any addiction to alcohol or that it is a problem; although he acknowledged that it was a factor in the accident. He has been drinking since age 19. He accepts responsibility for his actions and is willing to make amends for same. He advised that he simply panicked after the accident. He felt overwhelmed but, in saying that, he does not offer it as an excuse. He offered his apology to the court and promised he would never re-offend.
[25] Mr. Simpson indicated to the author of the PSR that he has difficulty expressing emotions. He is a good listener. He is described by others as more of a follower. Concerns were expressed as to his emotional reaction if required to serve a custodial sentence. The author of the PSR indicated that he would benefit from counselling with respect to alcohol and his self-esteem. She also indicated that he would be suitable for community supervision.
Victim Impact Statements
[26] No victim impact statements were filed. As indicated earlier, the two friends injured in the incident have declined to cooperate or participate in sentencing. The ongoing effects of the injuries sustained are unknown. It is somewhat telling that one of the mothers of one of the boys injured is supportive of Mr. Simpson.
Crown Position
[27] The Crown seeks a custodial sentence of six – nine months, probation of 12 months and a two-year driving prohibition. With respect to probation, Crown counsel adopts the conditions recommended by the probation officer in the PSR.
Defence Position
[28] Defence counsel submits that the appropriate sentence lies within the range of a suspended sentence with probation on the one hand, and an intermittent sentence with probation on the other. He submits that a suspension of Mr. Simpson’s driver’s license is automatic for one year under the Highway Traffic Act. I have the discretion to make a prohibition order up to 10 years. I should simply prohibit/suspend his driver’s license for one year.
Sentencing Principles
[29] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Code.
[30] The fundamental purpose of sentencing is to protect society, and to contribute to a just, peaceful and safe society by imposing just sanctions.
[31] The enumerated objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender.
[32] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is referred to as the proportionality principle. This principle requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. In simple terms, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be: R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[33] Section 718.2 sets out other factors that a court must take into account in determining an appropriate sentence. Subsection (a) indicates that a sentence should be increased or reduced to account for any aggravating or mitigating factors relating to the offence or offender and sets out a non-exhaustive list of facts that, if present, constitute aggravating circumstances. These include evidence that the offence had a significant impact on the victim which includes on his or her health and financial situation.
[34] The balance of s. 718.2 requires the court to ensure that:
- A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
- Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
- An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances, and
- (e) “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
Analysis
[35] The primary sentencing objectives engaged in this case are denunciation, deterrence and rehabilitation.
[36] The following aggravating factors are present:
- The extent of the injuries suffered by Ashton Clements and Kaige Fehr. Both required surgeries. As mentioned, the ongoing and long-term effects of those injuries are not in evidence.
- Instead of assisting passengers who were obviously injured, Mr. Simpson tried to move them to the bushes and to hide. He did so despite awareness that Mr. Clements was seriously injured and told him that he thought his back was broken.
- He had the opportunity to wave down the motorist who happened on the scene to get help or to use his phone to get help and did not.
- He was more concerned about avoiding responsibility than helping those injured by his actions.
[37] The following mitigating factors are present:
- He pleaded guilty and has shown remorse. He accepts responsibility.
- He has a stable family relationship.
- He is employed full-time.
- He has substantial support in the community from his family and the mother of a victim.
- He has lived an otherwise pro social life to date, both prior to the offence and since.
- He has been on bail since the offence occurred, more than three years, with no difficulties abiding by the terms of same.
- He has a positive PSR.
- He is a relatively young offender with no prior history of criminal activity and no prior driving offence history.
[38] The Crown asks for a period of incarceration. In R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (C.A.), the Court of Appeal set out principles that apply to first offenders. The Court of Appeal held:
- Before imposing a sentence of imprisonment upon a first offender, the trial judge should have either a presentence report or some very clear statement with respect to the defendant’s background and circumstances. This is especially so in the case of a youthful offender.
- The primary objectives in sentencing a first offender are individual deterrence and rehabilitation.
- Except for very serious offences and offences involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.
- The sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. Trial judges must consider community-based dispositions first and impose more serious forms of punishment only when necessary as reflected in the sentencing provisions of the Criminal Code.
- The duty to explore other dispositions for first offender before imposing a custodial sentence is not empty formalism to be avoided merely by invoking the objective of general deterrence.
- The first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.
[39] I have reviewed the various decisions provided by counsel. They are helpful to the extent that they reflect sentencing principles and show sentences imposed in the circumstances of those cases and those offenders. Sentencing is very much an individualized exercise.
[40] I find that before the incident of September 16, 2016, Mr. Simpson was a young, hard-working, community involved man with no prior criminal or driving record. He had a normal life with a loving family and friends.
[41] Since the incident, Mr. Simpson has continued to work hard. He now has his own young family to support and care for. He has taken those responsibilities seriously. He has the support of his immediate family, his girlfriend and her family, his employer and even the mother of one of the young men injured in the incident.
[42] The decision by Mr. Simpson to drive his vehicle down a gravel road at speeds far in excess of what was safe and appropriate shows a profound lack of good judgment in the moment. I emphasize the words “in the moment” because it seems to me that the evidence shows that Mr. Simpson is generally a reliable, steadfast young man who exercises good judgment.
[43] I am most troubled by Mr. Simpson’s conduct after the accident. He made a bad situation worse. His actions could have aggravated the serious injuries suffered by his passengers who were also his friends. He put his own self interest first. He was momentarily blind to the needs of his friends.
[44] Mr. Simpson offers the explanation that he was overwhelmed and panicked. He recognizes with the benefit of hindsight that he ought to have obtained help for those injured. I do not diminish in any way the seriousness and potentially catastrophic consequences of Mr. Simpson’s acts immediately following the incident. What he did was wrong. Knowing that his friends were injured and needed help, he let them down. He had them hide in the bushes. He moved a person with a fractured vertebra at great risk to him.
[45] Frankly, I wrestled with whether to impose a period of incarceration, even an intermittent sentence. In this case, however, I am satisfied that less restrictive sanctions are appropriate in the circumstances. I find that the appropriate sentence in the circumstances of this case and having regard to the circumstances of this offender is as follows:
- a suspended sentence with a two years probation;
- the terms of probation to be the same as those recommended by the probation officer in the PSR; and
- a two-year driving prohibition effective immediately.
[46] In coming to the sentence, I have placed substantial emphasis on the following: he is a youthful, first-time offender; he is the primary provider for his young family; his conduct and life is otherwise at odds with his behaviour on September 16, 2016 both before and after that incident; and, the support that he has from various sources.
Justice R. Raikes
Released: November 19, 2019
COURT FILE NO.: 23-2017
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Brandon Frank Earl Simpson
REASONS FOR JUDGMENT
Raikes, J.
Released: November 19, 2019