



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simard, 2017 ONCA 690

DATE: 20170906

DOCKET: C58332

Watt, Huscroft and Trotter JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Greg Simard

Appellant

Gordon D. Cudmore and Perrie Douglas, for the appellant

John Patton, for the respondent

Heard and released orally: August 30, 2017

On appeal from the conviction entered on October 18,
    2013, and the sentence imposed on December 17, 2013 by Justice Jeanine E. LeRoy
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to counts of attempted murder, unlawful
    confinement, uttering death threats and assaulting a police officer in the
    execution of her duty. Despite his plea of guilty, he advanced a mental
    disorder defence seeking a verdict of not criminally responsible on account of
    mental disorder.

[2]

The trial judge rejected the denial of criminal responsibility and
    sentenced the appellant to imprisonment for a term of 20 years less credit for
    predisposition custody.

[3]

The appellant seeks leave to appeal sentence. He contends that the
    sentence imposed is manifestly unfit and fails to assign sufficient weight to
    his mental illness as a mitigating factor on sentence.

[4]

The appellant was a 24-year-old caregiver at a facility which housed
    developmentally-challenged residents. The complainant in the counts of
    attempted murder and unlawful confinement resided at the facility during the
    week. He was severely autistic and non-verbal.

[5]

Late one evening after several conversations with a co-worker about the
    complainant, the appellant surreptitiously left the facility with the
    complainant. He took the complainant into a nearby woods, beat him severely,
    left him there naked from the waist down and returned to the facility. When a co-worker
    asked the whereabouts of the complainant, the appellant told her to shut up or
    he would kill you. As the appellant later explained it:

I tried to kill a retard because he was a drain on society, I
    took him into the bushes and beat the fuck out of him. I thought he was dead.

[6]

As a result of the beating, the complainant was hospitalized for six
    months. He suffered bleeding in his brain, permanent brain damage and suffers
    from leg and hand tremors. Several teeth were fractured. He cannot fully extend
    his right arm, he continues to require and will continue to require various
    forms of physio, occupational and movement therapy.

[7]

The appellant, who is now 29 years old, appears to have had a good
    upbringing. He completed a two-year college diploma program with some academic
    distinction and did well in his work placements. His parents remain supportive
    of him. He was a recreational drug user whose behaviour seemed to change
    significantly when he had consumed drugs.

[8]

Two psychiatrists testified on the NCR hearing. They differed on their
    diagnoses and on the issue of criminal responsibility. One identified the
    underlying disorder as likely schizophrenia. The other considered an
    adjustment disorder or drug-induced psychosis was more apt.

[9]

At trial, Crown counsel sought a sentence of imprisonment for life to
    implement the predominant sentencing objectives of deterrence and denunciation
    and to reflect the high moral blameworthiness of the appellant.

[10]

Defence counsel advocated a sentence in the range of six to ten years to
    achieve an appropriate balance between denunciation and deterrence, on the one
    hand, and rehabilitative prospects and reduced moral blameworthiness, on the
    other.

[11]

The trial judge gave lengthy reasons for sentence. She recognized the relevance
    and significance of the appellants mental condition to his moral blameworthiness
    for the principal offence  attempted murder  and thus to the length of
    sentence she would impose. She acknowledged the contribution of the appellants
    disorder to the commission of the offence. In substantial part, it was this
    condition, more accurately, its impact on moral blameworthiness, that caused
    the trial judge to reject the position of the Crown that she should impose a
    sentence of imprisonment for life.

[12]

It is also fair to say that the psychiatric evidence lacked precision
    and included a caution from one of the examining psychiatrists about the
    prospect or likelihood of malingering.

[13]

On a fair reading of the reasons for sentence as a whole, in light of
    the submissions made by counsel that focused on mental disorder and moral
    blameworthiness, we cannot to conclude that the trial judge gave inadequate
    weight to the appellants mental condition as a mitigating factor on sentence.

[14]

Neither do we regard the principal sentence of imprisonment for 20 years
    as manifestly unfit.

[15]

This offence was an egregious breach of trust. It involved a savage and
    brutal attack on a defenceless vulnerable complainant simply because the
    complainant was intellectually challenged. It was accompanied by the most
    morally culpable state of mind known to our criminal law  the intent to kill. It
    reflects a callous disregard for human life evidenced by the remarks made by
    the appellant upon apprehension. It rendered a severely compromised child from
    a minimally functional condition to a state of near-complete dependency,
    including the necessity of wearing diapers.

[16]

The appeal from conviction is dismissed as abandoned. Leave to appeal
    sentence is granted, but the appeal from sentence is dismissed.

[17]

At the request of the family, the ban on publication imposed at trial
    under s.486.5 is set aside.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter
    J.A."


