R. v. Simpson-Fry, 2010 ONCJ 628

COURT FILE No.: DATE: 2010·12·20 Citation: R. v. Simpson-Fry , 2010 ONCJ 628 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRIAN SIMPSON-FRY Before Justice H. BORENSTEIN Heard on November 8, 2010 AND December 10, 2010 Reasons for Judgment released on DECEMBER 20, 2010 Ms. P. McGibbon ........................................................................................................ for the Crown Mr. A. Goldkind ......................................................................... for the accused Brian Simpson-Fry Borenstein J.: 1 .

This is the sentencing of Brian Simpson-Fry who plead guilty to one count of robbery. 2 . In the afternoon of Friday, March 7 th , 2010, 25 year old Mr Simpson-Fry walked into a Rexall Drug Store on Kingston Road and approached the employee at the pharmaceutical counter. He asked her for oxycontin. She said they had a limited supply. He took out what she thought was an Ontario Drug card and handed it over. The card said, you have 30 seconds to fill a bag with oxycontin and that he had a gun in his pocket. The note may have contained a threat to kill her as well, although she was not sure. 3 .

The employee saw something black in Mr. Simpson-Fry’s pocket and told her: “hurry up, I am not fucking around”. 4 . She opened the safe and gave him three bottles of Oxycontin. Mr. Simpson-Fry fled the store with an accomplice, who was waiting at the front door. 5 . Mr. Simpson Fry was arrested 2 ½ months later while he was at work at an auto shop. 6 . Mr. Simpson-Fry has been in custody for 7 months as of today. 7 . He consented to his detention and never set a trial date. I am advised that he always intended on pleading guilty. 8 . The Crown seeks to tender a youth criminal record of Mr.

Simpson Fry that was sealed pursuant to the provisions of the

then YOA due to the passage of time. The criminal record contains some 30 entries between 1999 and 2003 when Mr. Simpson-Fry was between 14 and 17 years old. The Crown has obtained access to that record pursuant to

section 123 of the YCJA. The Crown seeks to have the record admitted and considered on this sentencing. 9 . The defence opposes the admission of the record at this sentence hearing primarily due to the passage of time between the last entry and Mr. Simpson-Fry’s age at the time of his last offence. 10 . Simply because the Crown has obtained those records does automatically remove Mr. simpson-Fry’s privacy interest in the records.

Whether they will be admitted depends upon whether their admission is necessary in the interests of the administration of justice which requires a balance between their proposes relevance and use on the one hand and Mr. Simpson-Fry’s privacy interest in those particular records on the other. 11 . I find the records properly admissible for the reasons given by Justice Weinper in the case of R. v. J.K .,

(2009) O.J. 4884 (Ont. C.J.) . Although her decision relates to a decision whether to grant bail, I find her reasoning equally applicable to the issue of sentence in this case. A criminal record is, to varying degrees, relevant and informative to the determination of what amounts to a fit sentence for a particular offender. The nature of the entries, number of offences, their similarities, what has been tried in past sentences, any gap are just some of the factors that render a criminal record important to the determination of a fit sentence. 12 . In R . v. D.L.C., [2002] N.J.

No. 51 , Justice Gorman, when considering a similar provision under the YOA held that the principles of non-stigmatization of young persons that animated the non-disclosure provisions of the YOA , related to the principles of rehabilitation. That rationale loses much of its force when the young person re-offended as an adult. Simpson Fry’s privacy interest in these records is much less than, for example, medical or psychiatric records. The record reflects the results of proceedings in court. They do not contain particularly personal information.

I will admit those record the record however, given the gap from 2003 to today, and the fact that Mr. Simpson-Fry is now 25, I will accord the record less weight than otherwise. 13 . A pre sentence report was prepared. 14 . Mr. Simspion Fry is 25 years old. His youth record is extensive with 30 entries between 1999 and 2003, when he was between 14 and 17. Those offences include robbery and numerous break and enters as well as convictions for failing to comply. 15 . He completed grade 10. Most of his high school credits were earned while in youth custodial facilities. 16 . Mr. Simpson-Fry is close to his mother.

His father died unexpectedly two years ago. 17 . He has a very significant substance abuse problem and has battled that problem for much of his life. He has been addicted to alcohol, marijauana and more recently, to cocaine and Oxycontin. His father was an alcoholic. His mother told the author of the pre- sentence report that his alcohol and drug use was that of a typical teenager. I am told that she presently does not see alcohol as the problem. She thinks his drug use if the problem. 18 . Between 2003 and 2010, Mr. Simpson-Fry has not been convicted of any offences.

He worked as a roofer and, for the last three years, he has worked in the automotive industry. Mr. Simpson-Fry’ drug abuse has gotten worse since his father’s death two years ago. He told the author of the pre-sentence report that, since his father’s death, he drinks every day and began using Oxycontin. It is clear from his employer that he has been a very good employee when he stays away from drugs. His previous employers remarks in the pre-sentence report make clear that Mr. Simpson-Fry can succeed but only will if he battles his drug abuse. 19 . It seems obvious to everyone that Mr.

Simpson-Fry’s substance abuse has derailed his life and fueled his criminal behavior.

20 . He plans to return home when he gets out of custody. His mother is willing to allow him to move home if he follows her rules, chiefly, no drug use. At this point, his plan upon release is to complete high school. His mother feels he needs career counselling. He is willing to take counselling for substance abuse. 21 . The author of the psr is of the opinion that Mr. Simpson-Fry is forthright, respectful and motivated to avoid re-involvement in the criminal justice system. He has taken counselling with respect to substance abuse and anger management while in custody.

The author believes he has insight into his behaviour on the day of this offence and its impact on the victim. That all bodes well for the future. 22 . The Crown submits that a sentence of 12-24 months less the ptc is fit given that this was a robbery of a vulnerable victim by a man with a youth record. This crime needs to be denounced and Mr. simpson Fry, and others need to be deterred. The Crown also seeks a 10 years weapons prohibition and probation. 23 . The defence submits that the 7 months of actual ptc that Mr. Simpson Fry has served is enough custody in these circumstances.

Yes, he has a serious youth record but that ended in 2003 when he was only 17 years old. He was a valued employee, he has shown he can function and well even without court ordered supervision. He is a drug addict who fell after his father died and his addiction has fueled his criminal behaviour. That has to be brought under control. His mother supports her son and he can live with her. 24 . In any sentencing for robbery, protection of society is paramount and that usually requires a sentence that emphasizes deterrence and denunciation.

In fact, those principles can easily trump considerations relating to rehabilitation if they are more likely to ensure the protection of society 25 . However, in this case, a sentence that emphasizes Mr. Simpson-Fry’s rehabilitation is more useful and can offer more long term protection for society and certainly offers more opportunities for rehabilation to Mr. Simpson-Fry. He stands here stating that he is motivated to deal with his drug addiction, he had dealt with it in the past and fell hard after his fathers death. The author of the psr seems to agree. 26 .

Moreover, serving seven months in jail, which is what Mr. Simpson Fry has already served, is a significant period of incarceration for a drug addicted 25 year old who has not been in trouble for 8 years and has been trying to work. 27 . In view of those considerations, in view of his guilty plea, his remorse, I sentence Mr. Simpson-Fry as follows: 28 . I will suspend passing of sentence and place you on 3 years probation. 29 .

In addition to the mandatory terms of probation, you will take counseling for substance abuse, life skills and career counseling as directed by your probation officer as well as any other assessment or counseling as directed by your probation officer and sign all releases to enable your probation officer to monitor your compliance with this condition. 30 . You will reside at an address approved of by your probation officer.

You will make reasonable efforts to seek and maintain full time emplyment or attend school full time and provide proof yto your probation officer, you are to abstain from the purchase, possession or consumption of alcohol or narcotics including oxycontin; you are not to associate with anyon known to you to have a criminal record except members of your immediate family, you are to have no contact or communication directly or indirectly with your accomplice adam macmillan or Anisa Shivju and you are not to be withing 500 metres of anywhere you know them to live, work or happen to be; you are not to be within 500 metres of the Rexall Pharmacy located at 2447 Kingston Road; you are not to possess any weapons as defined by the Criminal Code . 31 .

The approach that I have taken in this case is one that is obviously one quite different than that proposed by the Crown. It seeks to protect society and further Mr. Simpson-Fry’s prospects for rehabilitation by allowing him to pursue counseling from out of custody, which he says he is ready to do and which the author of psr supports. 32 . The author believes he is sincere and everything he has done in this case has indicated a desire to plead guilty. That is why I

think this sentence offers the best hope for his rehabilation and for the protection of society 33 . However, given that this is a suspended sentence, if Mr. Simpson-Fry breaches any condition of this sentence, or –re-offends, he can be brought back and re-sentenced for this robbery. I do not know why the Crown never seems to make use of this provision that Parliament has enacted. There will be a

section 109 Order for 10 years. Released: December 20, 2010 Signed: “Justice H. Borenstein”