COURT FILE NO.: CR-20-30000321-0000 DATE: 20230116

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - JERMAINE SIMPSON

Counsel: Sean Hickey, for the Crown /Applicant Gina Igbokwe, for the Respondent/Accused

HEARD: December 21, 2020, June 28, 2021; and April 11 and 12, November 23 and 29, 2022

M. Forestell J.

Reasons for SENTence and ruling on APPLICATION FOR long-term OFFENDER DESIGNATION

Overview

[1] On December 21, 2020, Jermaine Simpson entered guilty pleas to the offences of assault causing bodily harm, robbery, aggravated assault and assault with a weapon. Following an assessment pursuant to s. 752.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 the Attorney General granted consent for the Applicant to pursue an application for Mr. Simpson to be designated a long-term offender (LTO) pursuant to s.753.1(1) of the Criminal Code.

[2] In April of 2022 I heard evidence on the sentencing and long-term offender application. An Enhanced Pre-sentence Report was subsequently ordered. That report was completed in October of 2022. On November 23, 2022 and November 29, 2022 I heard the submissions of the parties and reserved my decision until today.

Circumstances of the Offences

[3] The offences to which Mr. Simpson entered guilty pleas arose out of two separate incidents. Facts were also read in and admitted by Mr. Simpson with respect to a third incident. The circumstances of the three incidents are as follows:

1. On February the 3rd, 2019, Mr. Simpson made arrangements with Soraia Mejdoubi to purchase a gold ring she had posted for sale on the Kijiji website. The value of the ring was approximately $1,000 to $2,000. After making contact on Kijiji, they began communicating by text message. Arrangements were made by text to meet outside the Old Mill subway station on February the 3rd, 2019. When they met up Mr. Simpson was shown the ring to examine. He tried on the ring while discussing his purchase. Claiming he wanted to show the ring to a friend, Mr. Simpson suddenly began briskly walking away, and the complainant grabbed onto his arm but Mr. Simpson pulled away, laughed and left the vicinity.

2. On February the 7th, 2019, Mr. Simpson ordered a taxi from Beck Taxi. Mr. Simpson gave his name as Jason and requested to be picked up at 1656 Eglinton Avenue West. Abdul Malik is a driver for Beck Taxi. Mr. Malik picked up Mr. Simpson and drove him to the subway station at 2428 Bloor Street West. Mr. Simpson got out of the taxi without paying. Mr. Malik approached Mr. Simpson and demanded the fare. Suddenly, Mr. Simpson, who was carrying a cane, struck Mr. Malik several times with the cane on Mr. Malik's left arm and on his head. Mr. Malik sustained a cut to his forehead that required two stitches as well as bruising to his elbow. Mr. Simpson fled the area by going into the subway station. Photographs from the taxi's internal camera were obtained. Mr. Simpson's face is visible in those photographs. (Assault causing bodily harm - count 3.)

3. On February the 7th, 2019, Mr. Simpson communicated with Kevin Chu-Chen to inquire about an advertisement Mr. Chu-Chen had posted on Kijiji regarding rare bills and coins that he was selling. Mr. Simpson and Mr. Chu-Chen made arrangements over text message to meet at Mr. Chu-Chen's house, on February the 8th at around 1:00 p.m. Mr. Chu-Chen resided at his house with his wife, Hong Meng and his two young children. At the time of the incident, Mr. Chu-Chen, his wife, and his three-year-old daughter were at home. On February the 8th, 2019, Mr. Simpson came to Mr. Chu-Chen's home at around 12 noon, unexpectedly early. Mr. Chu-Chen answered the door and they had a brief conversation. Mr. Chu-Chen told Mr. Simpson to wait at the door while he obtained the merchandise. Mr. Simpson proceeded to enter the home and wait in the living room. Mr. Chu-Chen returned to the living room with the bills and coins. Suddenly, Mr. Simpson produced a knife from his pocket and said, "give it to me." Without giving Mr. Chu-Chen any opportunity to respond or hand over the bills and coins, Mr. Simpson immediately began slashing Mr. Chu-Chen with a knife about his body. Mr. Chu-Chen cried out for his wife, who at the time was in the bedroom feeding their three-year-old daughter. Ms. Meng came to the room and saw her husband on the floor with Mr. Simpson standing over him with the knife. Ms. Meng retrieved a Shaolin stick, which is a long wooden pole, used for martial arts classes. Ms. Meng struck Mr. Simpson with the stick. Mr. Simpson then began approaching Ms. Meng, still brandishing the knife. Mr. Chu-Chen got up and stood between Mr. Simpson and Ms. Meng. The three-year-old daughter of Mr. Chu-Chen and Ms. Meng also came into the living room crying. Mr. Chu-Chen was severely injured and bleeding. Mr. Chu-Chen took the stick from his wife and attempted to fend off Mr. Simpson. However, Mr. Simpson grabbed the stick with his free hand, the other hand still held the knife which he continued to swing. Mr. Simpson tossed the stick aside. Ms. Meng retrieved a knife from the kitchen and held it towards Mr. Simpson telling him to get out. Mr. Chu-Chen also retrieved a knife from the kitchen to defend himself. Mr. Simpson then retreated, exiting the residence through the backdoor. Mr. Chu-Chen suffered lacerations all over his body requiring an excess of 40 stitches and sustained nerve damage to his wrist. No property was stolen from the home. At the time of all these events, Mr. Simpson was bound by a probation order which forbade him from being in possession of any weapon as defined by the Criminal Code. (Robbery and aggravated assault on Kevin Chu-Chen– counts 4 & 5; assault with a weapon on Hong Meng - count 7)

Positions of the Parties

[4] The position of the Crown is that Mr. Simpson should be sentenced to a global sentence of ten and half years before credit for pre-sentence custody. He should be designated a Long-Term Offender and should be placed on a ten-year Long-term Supervision Order (LTSO).

[5] The position of Mr. Simpson is that he should be sentenced to five years imprisonment for the offences before credit for pre-sentence custody. With presentence custody of 1259 days credited at 1.5 to 1, the submission of Mr. Simpson is that he should not receive any further sentence of imprisonment.

[6] Mr. Simpson does not contest the application for him to be designated a long-term offender but submits that the Long-term Supervision Order should be for a period of seven years.

[7] I will, in these reasons set out the impact of the offences on the victims. I will also review Mr. Simpson’s personal history, psychiatric history and history of involvement with the criminal justice system. I will review the evidence provided by the assessor in this case, Dr. Lisa Ramshaw and the evidence of the representative of the correctional system, Ms. Jasmine Armstrong. I will then review the law and my reasons for concluding that Mr. Simpson must be designated to be a long-term offender. Finally, I will address the length of the sentence and the length of the long-term supervision order.

Evidence

Victim Impact

[8] I have considered the Victim Impact Statement of Kevin Chu-Chen.

[9] I have considered only those portions of the Victim Impact Statement that describe the impact of the offence on the victims. I have disregarded the parts of the statement that describe the events except insofar as they contextualize the fears and beliefs of Mr. Chu-Chen. The description of the events is similar to, but not identical to, the facts read in on the guilty plea. Counsel for Mr. Simpson submitted that the statement should be redacted to remove those portions of the statement that refer to the circumstances of the offence. I do not find that redaction is warranted in this case. Mr. Chu-Chen referred to his perception of the events to contextualize the impact of the events upon him and his family. That contextualization gives meaning to the statement and need not be redacted. I have not relied upon the narrative of the events as evidence of aggravating circumstances.

[10] Mr. Chu-Chen’s impact statement describes the physical, psychological and emotional impact of the offences on him and on his wife and child. Mr. Chu-Chen has permanent scars from the wounds inflicted by Mr. Simpson. Mr. Chu-Chen and his family remain fearful in their home. They worry that Mr. Simpson knows where they live and could return to harm them. Mr. Chu-Chen’s three-year-old daughter witnessed parts of the assault and has been impacted by the offences. There is no doubt that this violent offence in their home has profoundly affected the family.

Personal History and Education

[11] Mr. Simpson is 34 years old. He will be 35 years old next month.

[12] Mr. Simpson was born in Jamaica. His mother, Cheryl Garden, was 18 years old when she gave birth to Jermaine. She lived with Jermaine’s father and his family before and after the birth. After a period of time, she wished to leave the home but was not permitted to take Jermaine with her.

[13] Mr. Simpson’s father Dave Simpson married Barbara Simpson in 1990 and moved to Toronto to join her in 1992, taking Jermaine with him. Jermaine was four years old at the time. Ms. Garden had no contact with Jermaine after he went to Canada until 2016 when Jermaine reconnected with her through a cousin.

[14] In Toronto, Jermaine lived with his father, stepmother, and two half-siblings. Jermaine had a good relationship with his stepmother but Jermaine’s father was abusive to Jermaine and to Jermaine’s stepmother. Jermaine’s father began beating Jermaine when Jermaine was 8-9 years old. Mr. Simpson Sr. was ultimately charged criminally in relation to his assaults on his wife. Their relationship ended in 1998 when Jermaine was 10 years old.

[15] Around the time that Mr. Simpson Sr. and his wife separated, Jermaine was sent to live with other relatives. He lived in Boston with relatives for about one year. He was sent back to Canada because of problems in school and the family’s inability to manage his behaviour. Jermaine’s cousin Tracey McLeod met Jermaine when he lived with her family for this year. She has remained in contact with him.

[16] Upon his return to Canada, Jermaine lived with his father in Toronto. Jermaine maintained contact with Barbara Simpson when he returned. In 2003, Jermaine’s father moved with Jermaine to Edmonton to pursue a relationship. Mr. Simpson Sr. abandoned Jermaine in Edmonton and returned to Toronto. Jermaine lived with his father’s friend for six months. He was then returned to his father’s care through Children’s Aid. Toronto Children’s Aid Society records show that Jermaine frequently ran away from his father’s home and lived with Ms. Simpson. Mr. Simpson Sr. obtained a Child Welfare Warrant to have Jermaine returned to him in October of 2003. After this, Jermaine was placed in foster care. Ms. Simpson believed it would have been better for Jermaine to stay with her, but she was fearful of Mr. Simpson Sr. Jermaine continued to visit Ms. Simpson after being placed in foster care.

[17] While in foster care for the next two years, Jermaine changed placements frequently. In 2005 Jermaine returned to live with his father.

[18] Jermaine Simpson left school in grade 10 having obtained only two high school credits. His educational history was disrupted by frequent changes of school because of changing residences and because of suspensions. In 2004, when Jermaine was 16 years old, a psycho-educational assessment was conducted. The assessment concluded that Jermaine had lower cognitive functioning, behavioural issues and problems with attention and concentration. It recommended referral to a specialist to determine if Jermaine had Attention Deficit Hyperactivity Disorder (ADHD) and it recommended placement in a specialized class with a modified program. These steps were not taken.

Psychiatric History and Substance Abuse

[19] Mr. Simpson has been diagnosed with schizophrenia. He developed psychotic symptoms around 2007 with increasing severity of symptoms over time. Psychotic episodes were often precipitated by cannabis use. The symptoms have included persecutory beliefs, religious preoccupation, grandiosity, hallucinations, bizarre behaviour and confusion.

[20] Mr. Simpson’s contacts with mental health professionals from 2007 to present, both in and out of custody, are set out in detail in Dr. Ramshaw’s report. Mr. Simpson has historically improved with antipsychotic medication. Mr. Simpson has poor compliance with medication while in the community. This is not necessarily because of an unwillingness to comply with medication. Mr. Simpson has not historically had stable housing or income in the community. This instability has made it difficult for him to access and maintain treatment.

[21] Non-compliance with medication and cannabis use has led Mr. Simpson to experience frequent periods of instability in the community. Mr. Simpson has improved in detention with direct supervision and support.

[22] Mr. Simpson was not taking medication at the time of the commission of the predicate offences. Dr. Ramshaw’s opinion was that this heightened his level of disinhibition.

[23] Dr. Ramshaw also diagnosed Mr. Simpson as having an anti-social personality disorder (ASPD). This disorder describes someone who engages in behaviours that significantly impact others’ safety and wellbeing. The type of behaviours associated with ASPD are: unlawful behaviours, deceitfulness, impulsivity, failing to plan ahead, irritability and aggressiveness, a reckless disregard for the safety of self or others (usually others), irresponsibility, failure to sustain consistent work, lack of remorse by being indifferent or rationalizing one's behaviours.

[24] Mr. Simpson also has a Cannabis use disorder. He has a long history of chronic cannabis use. His cannabis use exacerbates his psychotic symptoms.

[25] Mr. Simpson’s criminal behaviour cannot be attributed solely or even primarily to his anti-social personality disorder. Mr. Simpson’s schizophrenia causes disinhibition, and his cannabis use triggers psychotic symptoms. Some of his anti-social conduct may be explained by the interaction of his other disorders and by the trauma and instability he has experienced.

History of Criminal Offending, Correctional Facilities and Community Supervision

[26] Mr. Simpson has a long history of conflict with the law. Mr. Simpson’s first criminal conviction was in 2005. He was 17 years old and was found guilty as a youth of several offences including robbery and weapons charges. His first adult convictions followed less than one year later when he was convicted of robbery and failing to comply with a recognizance. Mr. Simpson has now accumulated over 40 adult convictions for a myriad of offences including robberies, drug offences, weapons offences, assaults and violations of court orders.

[27] Although Mr. Simpson’s convictions are numerous, he has never received a penitentiary sentence. His longest sentences were in 2011 when he received the equivalent of 23.5 months for a robbery in which he stabbed the victim and 20.5 months in 2014 for a charge of assault causing bodily harm involving an attack by Mr. Simpson and four others on a victim.

[28] Mr. Simpson has been detained at various detention centres and at the St. Lawrence Valley Correctional and Treatment Centre. Mr. Simpson has been either in custody or subject to probation orders for essentially his entire adult life.

Assessment pursuant to s. 752.1 of the Criminal Code

[29] Mr. Simpson was assessed by Dr. Lisa Ramshaw, a forensic psychiatrist. Dr. Ramshaw gave evidence at the hearing. I have already referred to aspects of Dr. Ramshaw’s report.

[30] Dr. Ramshaw testified that, in her opinion, Mr. Simpson presents a substantial risk of reoffending and there is a reasonable possibility of eventual control of the risk in the community.

[31] Dr. Ramshaw described Mr. Simpson’s offences as occurring in the context of reactive aggression as well as impulsive and planned robberies and theft. He has shown a general disregard for the safety of others and the rules of society.

[32] With respect to the underlying causes of Mr. Simpson’s offending conduct, Dr. Ramshaw also observed in her report:

Mr. Simpson’s life has been marked by significant instability in all areas, and no extended period of psychosocial stability. This has included unstable relationships (with family and others), unstable housing, unstable plans and goals, a highly unstable mental state (with little ability to commit to medication treatment or follow up), and an unstable response to supervision and sanctions. He has had a very limited employment history. He has engaged in frequent violent re-offending with robberies, and the use of violence and threats. He has engaged in chronic cannabis use, associated with offending behaviour and an exacerbation of psychosis. He also developed a psychotic disorder starting in his late adolescence, which further contributed to his poor functioning, aggression, and antisocial lifestyle.

[33] Based on the risk assessment tools and Mr. Simpson’s history, Dr. Ramshaw’s opinion was that Mr. Simpson presented a high risk of re-offending violently. However, she stated that the risk would be moderate to low with ongoing medication, treatment, abstinence from substance abuse and intense supervision. She opined that Mr. Simpson required a structured setting to ensure compliance with medication, treatment and abstinence.

Resources in the Penitentiary and in the Provincial Correctional System

[34] Evidence was called concerning the programming available to Mr. Simpson if he is given a federal sentence. Jasmine Armstrong, the Associate Director for the Central Ontario District of Correctional Services Canada (CSC) testified that CSC has an “Integrated Correctional Program Model” with different intensity levels ranging from 51 sessions to 92 sessions. An assessment would be completed on intake in the federal system to determine the programing needs of the offender. Where, as in the case of Mr. Simpson, mental health needs are present, a psychological assessment would be completed, and he would be seen by a psychologist or psychiatrist if necessary. There is a Regional Treatment Centre for inmates with mental health needs located at Millhaven Institution.

[35] Where an offender who is subject to a Long-Term Supervision Order is released from a provincial institution, there is a community program, but it is not as intense as the programme in the penitentiary and has only 12 sessions.

[36] Ms. Armstrong also described the process for release of an offender into the community on a Long-Term Supervision Order.

[37] High risk offenders like Mr. Simpson who are released with a residency condition are released to a Community Correctional Centre. They have curfews but are able to go out during the day for programming, employment and meeting with family. It is a highly structured environment. The offender may be subject to conditions including abstaining from drugs or alcohol, and complying with a course of treatment.

[38] If there is a breach of any of these conditions the parole officer would issue a suspension warrant and the offender would be taken to provincial custody. Following an arrest, there would be a consultation with the police and the Crown to determine if an information would be laid.

[39] Planning for release of an offender on a Long-term Supervision Order generally begins months before the offender’s statutory release date. The parole officer working with the offender will recommend conditions to the National Parole Board. It is more difficult to plan for release when the offender is serving a sentence in the provincial system, particularly if the offender receives a very short period of imprisonment. The same level of assessment and planning is not possible when the offender is in the provincial system.

Analysis

Long-term Offender Designation

[40] The onus is on the Crown to prove beyond a reasonable doubt that Mr. Simpson meets the criteria for a long-term offender: R. v. Currie, [1997] 2 S.C.R. 260 at para. 42. Mr. Simpson has conceded that the Crown has proven beyond a reasonable doubt that he meets the criteria for a long-term offender. To meet the definition, the offender must have been convicted of a serious personal injury offence. That condition is met. Mr. Simpson has entered guilty pleas to serious personal injury offences: R. v. Steele, 2014 SCC 61.

[41] The other conditions for a long-term offender designation are (i) that a sentence of two years or more would be appropriate for the offences for which Mr. Simpson has been convicted; (ii) that there is a substantial risk that he will reoffend; and (iii) that there is a reasonable possibility of eventual control in the community: s. 753.1 of the Criminal Code.

[42] I am satisfied that these criteria have also been met. The robbery and aggravated assault charges in this case would require a sentence of two years or more before consideration of presentence custody. Mr. Simpson’s criminal history and the opinion of Dr. Ramshaw support the conclusion that there is a substantial risk that Mr. Simpson will reoffend. The risk assessments and Mr. Simpson’s history of stability in structured environments with supervision and support demonstrate that there is a reasonable possibility that his risk can eventually be controlled in the community.

[43] I therefore conclude that Mr. Simpson should be designated a long-term offender.

Length of the Sentence and Credit for Pre-sentence Custody

[44] Having found that Mr. Simpson is a long-term offender, s.753.1(3) requires that I impose a sentence and order that Mr. Simpson be subject to a long-term supervision order that does not exceed ten years. I must therefore determine the length of the sentence and the length of the LTSO.

[45] In determining the length of sentence I have considered the fundamental purpose of sentencing set out in the Criminal Code, which is to contribute to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions that have one or more of the following objectives: a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community s. 718 of the Criminal Code.

[46] The sentence that I impose must be proportionate to the gravity of the offences and the degree of responsibility of the offender.

[47] The robbery, aggravated assault and assault with a weapon in this case occurred in the context of a home invasion. This is an aggravating factor. Other aggravating factors are:

• That there was a small child present;
• The victim suffered serious injuries;
• The victim was unarmed;
• Mr. Simpson was on probation at the time and has a record for violent offences.
• The offences were part of pattern of conduct of seeking out and stealing from vulnerable victims;
• The robbery had an element of planning;
• As set out in the Victim Impact Statement of Mr. Chu-Chen he and his family have suffered physically and emotionally as a result of the attack. They remain understandably afraid and no longer feel secure in their home.

[48] Aggravating factors for the offence of assault causing bodily harm are that the attack was on a vulnerable victim, a taxi driver; the victim was unarmed, and the victim suffered injuries as a result of the attack.

[49] Mitigating factors applicable to all offences are:

• Mr. Simpson’s guilty plea and remorse;
• The fact that he has been in pre-sentence detention under difficult circumstances through the COVID-19 pandemic;
• His longstanding mental health issues; and,
• His extremely unstable and disadvantaged childhood and adolescence.

[50] Home invasion offences represent a violation of the sanctity of the home and the victims’ sense of security. They warrant lengthy penitentiary sentences: R. v. S.(J.) (2006), 81 O.R. (3d) 511, at para 34; R. v. Wright (2006), 83 O.R. 427, at para. 15.

[51] The range of sentence for home invasion cases is broad. It can range from 4-5 years at the low end to 11-13 years at the high end: Wright, supra, at para 23. Sentences in this range are imposed for a variety of offences occurring in the context of home invasion including robbery, assault with a weapon and aggravated assault: See R. v. Munro, [2003] O.J. no. 512 (Ont. C.A.) and R. v. Fulton, 2012 ONCA 781 - 9 years for aggravated assault; R. v. Flannigan, 2021 ONCA 174 - 9 years for use firearm in robbery and use firearm in aggravated assault and possession of firearm while prohibited; R. v. Brown, 2015 ONCA 361 – 7 years global sentence for robbery, robbery with a firearm, aggravated assault, three years concurrent for threats and forcible confinement and two years concurrent for unlawful possession of a firearm;

[52] Sentencing is highly individualized and the particular circumstances of the offender must be considered as well as the nature and severity of the acts perpetrated in the home invasion. The paramount sentencing objectives are denunciation and deterrence.

[53] Sentences at the upper end of the range have been imposed in circumstances where weapons are used or injuries inflicted by offenders with prior records: R. v. Nelson (2001), O.J. No. 2585; R. v. Harriott (2002), 58 O.R. (3d) 1; Wright, supra.

[54] The offence of assault causing bodily harm on the taxi driver Mr. Malik was also a serious offence and part of a pattern of violent conduct over the course of several days. Mr. Malik as a taxi driver was a vulnerable victim.

[55] I have, however, taken into account that Mr. Simpson’s longest sentence until now was one in the upper reformatory. I have considered the role played by Mr. Simpson’s mental illness and the fact that Mr. Simpson has been compliant with treatment in custody and his condition has stabilized. Mr. Simpson’s incarceration through the COVID-19 pandemic and the harsh conditions he experienced also serve to mitigate the sentence.

[56] I have concluded that the appropriate sentence for these offences is a global sentence of 7 years’ imprisonment.

[57] Counsel for Mr. Simpson argued that in accordance with the principles in Kienapple v. R., [1975] 1 S.C.R. 729, a stay of proceedings should be entered on the charge of aggravated assault because the offence is included in the robbery count and the two charges arose out of the same delict. Counsel referred to the case of R. v. Doliente, [1997] 2 S.C.R. 11, a decision of the Supreme Court of Canada adopting the dissenting reasons of Harradence J.A. of the Alberta Court of Appeal. In Doliente, the accused was found guilty of aggravated assault and robbery having stabbed the victim of the robbery. The robbery count in that case did not specify the means by which the robbery was committed. The count in Doliente therefore included wounding as a means of committing the offence of robbery.

[58] Unlike Doliente, in this case, the robbery count charges that Mr. Simpson assaulted the victim with intent to steal. The offence of aggravated assault is not included in the robbery count in this case. The aggravated assault count adds the element of wounding. As Chief Justice Dickson wrote in R. v. Prince, [1986] 2 S.C.R. 480 at para. 32, “… the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.” I do not find that the charge of aggravated assault should be stayed in this case.

[59] However, the offences of robbery, aggravated assault and assault with a weapon all relate to the home invasion. The test for whether sentences should be concurrent or consecutive is “whether the acts constituting the offence were part of a linked series of acts within a single endeavour”: R. v. Li, 2009 BCCA 85 at para. 42. In this case the offences of robbery, aggravated assault and assault with a weapon were part of a single endeavour and should be served concurrently. The offence of assault causing bodily harm was a separate endeavour and should attract a consecutive sentence.

[60] I impose a sentence therefore of 6 months imprisonment on count 3, assault causing bodily harm on Abdul Malik. On counts 4 & 5, I impose a sentence of 6.5 years imprisonment concurrent to each other and consecutive to the sentence on count 3. On count 7, the offence of assault with a weapon on Hong Meng, I impose a sentence of 6 months concurrent.

[61] Mr. Simpson has been in custody for 1259 days. He is entitled to credit at 1.5:1 for his time in custody pending sentence. This is 1889 days credit. This will leave 668 days for Mr. Simpson to serve or just under 22 months.

[62] I recognize that in determining the length of sentence for Mr. Simpson, I am entitled to take into account access to rehabilitative programming in a penitentiary versus a provincial institution in setting the length of sentence and in determining the credit for pre-sentence custody. I accept that I am permitted to impose a longer sentence or give lower credit for pre-sentence custody in order to advance the two-fold purpose of the long-term supervision provisions “to protect the public and to rehabilitate offenders and facilitate their integration into the community”: R. v. Ipeelee, 2012 SCC 13 at para. 50; R. v. Hopley; 2015 BCCA 499 at paras. 57-59; R. v. Spilman, 2018 ONCA 551.

[63] In this case I find that a further period of incarceration of about 22 months meets these objectives. Within that time, Mr. Simpson can commence programming in the Provincial Corrections system and his parole officer will have adequate time to make recommendations for conditions to the National Parole Board. The comprehensive reports filed on this application and sentencing should provide ample material to facilitate planning for programming and discharge into the community. A longer sentence or reduced credit for presentence custody is not necessary to protect the public or to advance the rehabilitation and reintegration of Mr. Simpson.

[64] I have also considered the argument of counsel for Mr. Simpson that, effectively, he has done enough time. I do not accept that submission both because the aggravating circumstances in this case justify a substantial jump in sentence and because Mr. Simpson’s rehabilitation and reintegration into the community require a further period of incarceration to allow for stabilization and discharge planning.

Length of the Long-Term Supervision Order

[65] I have also concluded that a ten-year LTSO is required in this case. Mr. Simpson’s rehabilitation and reintegration into the community requires a lengthy period of supervision. Mr. Simpson will have access to programming in the community to address his serious and longstanding substance abuse problem. He requires supervision, monitoring and assistance in continuing to access appropriate medical care including treatment for his schizophrenia and substance abuse. I find that this period of supervision is needed to manage the risk that Mr. Simpson presents when he is unsupervised, untreated and using substances.

Conclusion

[66] I therefore sentence Mr. Simpson to a global period of imprisonment of 7 years before credit for presentence custody. With credit of 1889 days for 1259 actual days of presentence custody that leaves 668 days left to serve.

[67] I order that Mr. Simpson be subject to a Long-term Supervision Order for ten years.

[68] In addition, I make an order pursuant to s.109 weapons prohibition for life and a DNA order as these are primary designated offences.

Forestell J. Released: January 16, 2023