COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bhangal, 2016 ONCA 857

DATE: 20161116

DOCKET: C58005

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lakhvinder Singh Bhangal

Appellant

John Rosen and Lindsay Daviau, for the appellant

Scott Latimer, for the respondent

Heard: November 9, 2016

On appeal from the conviction entered on June 28, 2013 by Justice Hourigan of the Superior Court of Justice, sitting with a jury, and the sentence imposed on December 3, 2013.

ENDORSEMENT

[1] The appellant was a truck driver. His truck drifted into oncoming traffic and collided, head-on, with a mini-van, killing the driver.

[2] The jury apparently accepted the Crown’s position that the appellant knowingly breached the rules and regulations governing truck drivers' sleep requirements and put incorrect information into his driving logs and fell asleep at the wheel. It convicted the appellant of dangerous driving causing death and criminal negligence causing death.

[3] The trial judge stayed the conviction of dangerous driving causing death in accordance with the principle in Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729. He sentenced the appellant to five years imprisonment and ordered a fifteen-year driving prohibition.

[4] The appellant appeals his conviction for criminal negligence causing death on the basis that the trial judge: (1) failed to adequately explain to the jury the elements of criminal negligence causing death and how that offence differs from the offence of dangerous driving causing death; and (2) failed to adequately relate the evidence to the offence. He does not appeal his conviction for dangerous driving causing death.

[5] He seeks leave to appeal sentence on the bases that the trial judge erred in principle by not imposing a lesser sentence than would be imposed in a case involving impairment by alcohol and that the sentence imposed is demonstrably unfit. He says a sentence of two to three years, and a driving prohibition of five years is a fit sentence.

[6] In our view, the trial judge properly instructed the jury on the elements of criminal negligence causing death and explained the difference between that offence and the lesser offence of dangerous driving causing death.

[7] He first instructed the jury about the elements of dangerous driving causing death and then told the jury that more was required for a person to be guilty of criminal negligence causing death. He explained that the appellant’s conduct must show a wanton or reckless disregard for the lives or safety of other people and that the conduct must be a marked and substantial departure from what a reasonably prudent person would do in the same circumstances. He explained how Crown counsel might prove the required marked and substantial departure from what a reasonably prudent person would have done.

[8] In a response to a question from the jury seeking clarification about the difference between the offences of dangerous driving causing death and criminal negligence causing death, he repeated the relevant portions of his charge and added that in the case of criminal negligence causing death, the conduct must be more marked than for dangerous driving in both the physical and mental elements of the offence. He again explained the difference between criminal negligence causing death and dangerous driving causing death. Appellant’s counsel acknowledged that the trial judge’s response to the jury’s question was correct.

[9] The trial judge reviewed both his charge and his proposed answer to the jury’s question with counsel in advance. Trial counsel did not object to either.

[10] Nor did the trial judge fail to sufficiently relate the evidence to the offence. After first explaining the elements of the two offences and the difference between them, the trial judge turned to the dangerous driving count. He again reviewed the elements of that offence and then summarized the relevant evidence, including the evidence regarding the regulation governing the hours that a commercial vehicle driver can be on the road driving and the appellant’s knowledge of the regulation and the evidence that the appellant had falsified his driver’s log. Then, the trial judge again set out the elements of the offence of criminal negligence causing death.

[11] Contrary to the appellant’s submission, the trial judge did not err by at this point failing to repeat his summary of the relevant evidence and instead instructing the jury that the evidence that he had reviewed also applied to this charge. Indeed, highlighting the evidence that would support a finding that what the appellant did was a marked and substantial departure – as opposed to the “marked departure” standard applicable in the case of dangerous driving – from what a reasonably prudent person would have done in the circumstances would likely have harmed rather than helped the appellant.

[12] We are not persuaded that there is any basis to interfere with the sentence imposed by the trial judge.

[13] The trial judge imposed a sentence that in his opinion was fit in the particular circumstances of the case. He considered the circumstances of the offender, including that the appellant had no criminal record. He specifically acknowledged that this case was factually unique from the case that parties had submitted to him with regard to the appropriate range of sentences because it did not involve the consumption of alcohol and was in the context of the commercial operation of a motor vehicle. He found that the appellant had deliberately ignored the driver safety rules, had doctored his log books in an effort to avoid his rest obligations and had put his economic interests ahead of public safety. He correctly concluded that the appellant’s deliberate course of conduct was a significant aggravating factor. Further, he found that there was a clear need for specific deterrence because the appellant had received a warning about excess driving only days before the accident.

[14] The sentence that the trial judge imposed is not demonstrably unfit.

[15] The appeal is accordingly dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Alexandra Hoy A.C.J.O.”

“Doherty J.A.”

“K. van Rensburg J.A.”