COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simeunovich, 2019 ONCA 856

DATE: 20191030

DOCKET: C66199

Feldman,
    Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Simeunovich

Applicant/Appellant

Jessica Zita, for the appellant

Catherine Weiler, for the respondent

Heard and released orally: October
    16, 2019

On appeal from the sentence imposed on August
    24, 2018 by Justice Peter C. West of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant entered pleas of guilty to the
    following offences: possession of a counterfeit mark (i.e., a fake drivers
    licence) (contrary to
Criminal Code
, R.S.C. 1985, c. C-34 s. 376(2)(d));
    operation of a motor vehicle while disqualified (s. 259(4)); criminal
    negligence causing bodily harm (s. 221); and fail to stop at the scene of an
    accident knowing that bodily harm had been caused (s. 252(1.2)). The appellant
    received a total sentence of 10 years imprisonment, less enhanced credit for
    pre-sentence custody, at a rate of 1.7:1, amounting to 3 years. He appeals his
    sentence.

Background

[2]

The appellant, who was 40 years old at the date
    of the offences, is a serious serial recidivist of driving offences under the
Criminal
    Code
. On April 12, 2017, at 11:45 a.m., while driving his truck, he was
    stopped at a light when he saw a police cruiser with its emergency equipment
    activated. The cruiser came up behind the appellants truck and honked its
    horn. Being subject to numerous driving prohibitions, the appellant believed
    that the police were after him. In fact, the cruiser was being driven to an
    emergency at a nearby public school. Nevertheless, the appellant fled, and
    drove in a highly reckless manner, putting many motorists and pedestrians at
    risk. For example, in order to cut a corner, he drove through a gas station
    parking lot at 45 km/h. He drove through a red light. He weaved through traffic
    at a high rate of speed (up to 138 km/h), sometimes moving into on-coming
    traffic lanes. Finally, the appellant sped through another red light and
    collided with a smaller vehicle, seriously injuring the other driver.

[3]

The appellant immediately got out of his truck
    and ran away. He was located with the assistance of a police dog hiding in a
    wooded area. He had a fake drivers licence on his person.

[4]

The sentencing judge found that the driver of
    the other car sustained serious injuries, including: a broken collar bone; six
    broken ribs; and two fractures of his pelvis. He suffered internal abdominal
    bleeding and considerable trauma to his head, causing a loss of hearing in his
    left ear and blurred vision in his left eye. He required the services of a
    personal support worker for some period of time.

[5]

The appellant has a horrendous and mostly
    related criminal record, spanning 20 years and including 51 convictions for:
    dangerous driving (x 7); fail to stop (x 3); flight from police (x 3); drive
    while disqualified (x 14); fraud under (x 9); and breaches of various court
    orders (x 10). At the time of these offences, he was subject to 7 lifetime
    driving prohibitions.

[6]

The trial judge provided extensive reasons for
    sentence. Referring to the appellants record, the trial judge said:

His criminal record can only be described as
    that of a recalcitrant recidivist who has never been deterred from committing
    criminal offences. It is clear from his record that he has little or no regard
    or concern for the laws of this country, and anything other than his own
    selfish motivations.

[7]

The trial judge considered all of the relevant
    aims of sentencing, including the appellants prospects for rehabilitation,
    which were reasonably assessed as being poor. Understandably concerned about
    public protection, the trial judge said:

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

The Grounds of Appeal

[8]

The appellant submits that the trial judge
    committed errors in principle that resulted in a sentence that was too harsh.

[9]

The appellant argues that the trial judge erred
    by considering the offence elements of criminal negligence causing bodily harm
    as an aggravating factor.  He also argues that the trial judge erred by
    treating the appellants possession of a fake drivers licence and his decision
    to leave the scene of the collision as aggravating factors. We disagree.

[10]

The trial judges characterization of the
    appellants driving conduct recognized the reality that some episodes of criminally
    negligent driving behaviour are more serious than others. Like many criminal
    offences, the offence in s. 221 captures a wide range of conduct. The
    appellants driving conduct was prolonged, multi-faceted, and endangered many
    different people. The trial judge did not err in relying on the seriousness of
    this conduct, and the serious consequences that almost inevitably followed from
    it.

[11]

Moreover, the trial judge did not err in
    considering that the commission of the other offences at the same time was an
    aggravating factor. The cluster of offences committed by the appellant, when
    considered together, warranted an increased sentence. The overall context made
    each offence more serious. For example, the appellant used the fake drivers
    licence to purchase the vehicle that was used to commit the other offences. The
    trial judge was entitled to take these factors into account in crafting an
    appropriate sentence. The trial judges use of these factors did not result in
    a sentence that was disproportionate. We dismiss this ground of appeal.

[12]

The appellant submits that the trial judge erred
    in the manner in which he used the appellants extensive criminal record. He
    contends that the trial judge placed too much emphasis on the record and
    effectively re-sentenced the appellant for his past crimes. We disagree.

[13]

The appellants extensive record was an
    important factor in this case. It impacted on the appellants prospects for
    rehabilitation. It was relevant to specific deterrence. Moreover, the trial
    judge recognized that the appellants incorrigibility engages public protection
    concerns. The trial judge properly used the appellants criminal record in
    addressing the proper aims and objectives of sentencing. It did not result in a
    disproportionate sentence:
R. v. Angelillo
, 2006 SCC 55, [2006] 2
    S.C.R. 728. We would dismiss this ground of appeal.

[14]

The appellant argues that the total sentence
    violated the jump principle. He argues that, because the most serious previous
    sentence he has received was 30 months imprisonment, a sentence of 10 years
    (less pre-sentence custody) was crushing. Again, we disagree.

[15]

The appellants behaviour has not been curbed by
    his many previous sentences. The appellants most recent suite of offences
    demonstrate how intent he is on driving, despite multiple court orders that
    prohibit him from doing so. The offences also demonstrate how little regard the
    appellant shows for the lives and safety of others. Indeed, on this occasion,
    the appellant literally ran away after seriously injuring another driver. The
    trial judge was right to place public safety above the other sentencing aims
    and objectives. In light of his past, the appellants offences required the
    imposition of a sentence that was considerably longer than the sentences that
    the appellant had previously received. We note that the sentencing position of
    defence counsel at trial (6.5 years imprisonment, less pre-sentence custody)
    was also a considerable step up from previously imposed sentences. We see no
    error.

[16]

Finally, the appellant applies to adduce fresh
    evidence to demonstrate that the impact of the appellants conduct on the
    victim was not as serious as presented to the sentencing judge. During the
    sentencing proceedings, after hearing a recording of the victims impact
    statement, the appellants counsel attempted to file two affidavits from family
    law proceedings concerning the victim and his wife. The appellant wished to use
    these documents to demonstrate that the appellants conduct was not the cause
    of the victims marriage breakdown (as he claimed that it was) and that the
    victim was more mobile than he had suggested (i.e., not being able to travel
    abroad or pick up his young son). The trial judge refused to simply receive into
    evidence these affidavits that were created for separate proceedings. He asked
    the appellants trial counsel if he wished to cross-examine the victim, an
    offer that was declined.

[17]

The appellant now seeks to adduce this evidence
    on appeal. We dismiss the application. It was open to the appellant to pursue
    this issue in the manner suggested by the trial judge. It is evident from the
    record that defence counsel at trial made a tactical decision not to pursue the
    issue. There is no suggestion that the trial counsels representation of the
    appellant was inadequate. Consequently, the appellant is unable to surmount the
    due diligence criterion established in
Palmer v. The Queen
, [1980] 1
    S.C.R. 759.

[18]

Moreover, the admission of these family law affidavits
    would not have had any impact on the sentence that was imposed:
R. v.
    Lévesque
, [2000] 2 S.C.R. 487. While the affidavits touched on some of the
    victims claims about the extent to which the collision had affected his life,
    there can be no doubt that the victim suffered serious injuries and experienced
    terrible pain as a direct result of the appellants driving conduct. These
    affidavits do not detract from this harsh reality. It would not have affected
    the sentence imposed by the trial judge.

[19]

The application to adduce fresh evidence is
    dismissed.

Disposition

[20]

Leave to appeal sentence is granted, but the
    appeal is dismissed.

K. Feldman J.A.

Gary Trotter J.A.

B. Zarnett J.A.