Court of Appeal for Ontario

Date: February 28, 2019 Docket: C63655

Justices: Watt, Huscroft and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Narankar Dhillon Appellant

Counsel

Alan D. Gold and Alex Palamarek, for the appellant

Deborah Krick, for the respondent

Heard

January 29, 2019

Appeal Information

On appeal from the conviction entered on February 13, 2017 and the sentence imposed on April 13, 2017 by Justice John R. Sproat of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Introduction

[1] The appellant was found guilty of manslaughter, kidnapping, and offering an indignity to a body, arising out of the death of Herminder Bhandal. An unlawful confinement charge was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] The trial judge found that the appellant believed that the deceased had stolen from him and ordered his kidnapping as a result. On August 23, 2013, Mr. Bhandal was lured into the basement of one of the kidnappers with the promise of drugs. After consuming methamphetamine, Bhandal was beaten by five men and kidnapped. His hands and feet were bound and his mouth was taped shut. At the direction of the appellant, Bhandal was transported to the appellant's automotive shop and left on a wooden bench. He was later moved to the second floor of the shop, where he remained bound with his mouth taped shut. By the next morning Bhandal had died. At the appellant's direction, his body was driven to an isolated area. The vehicle, with Bhandal's body in it, was set on fire.

[3] The appellant was sentenced to a global sentence of 16 years' imprisonment: 14 years for manslaughter, 10 years concurrent for kidnapping; and 2 years consecutive for offering an indignity to a body. At the time of sentencing the appellant had 1 year and 10 months remaining on a 7-year sentence for trafficking heroin. The 16-year sentence was consecutive to the trafficking sentence.

[4] The appellant appeals the manslaughter conviction and the sentence. He submits the trial judge erred in concluding that the actus reus and mens rea of manslaughter were made out. He seeks leave to appeal his sentence on the basis that the trial judge erred in principle and that the sentence imposed was harsh and excessive.

[5] In our view, there is no merit to either ground of appeal. The appeal is dismissed for the reasons that follow.

The Actus Reus

[6] The trial judge found that Bhandal's death was caused by his voluntary consumption of methamphetamine and/or cardiac arrhythmia, but the precise cause of death could not be determined because the body had been burned. The appellant submits that the trial judge erred in assuming the cause of death, and that without proof of the cause of death it was impossible to determine the appellant's contribution to that death and his legal liability as a result. The appellant argues that s. 228 of the Criminal Code prevents the stress of kidnapping from being a cause of death at law.

[7] We disagree.

[8] The kidnapping of Bhandal ordered by the appellant cannot be considered in isolation. It included a violent attack by several men and the forcible restraint and confinement of Bhandal over a period of several hours.

[9] It was open to the trial judge to find that, in all of the circumstances, the kidnapping gave rise to exertion and stress that raised Bhandal's heart rate and blood pressure, and was a substantial contributing cause of his death. This finding was amply supported by the evidence and was sufficient for purposes of establishing factual causation: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 1.

[10] The finding that methamphetamine toxicity was a possible cause of death does not undermine this conclusion. The trial judge carefully reviewed the medical evidence. Although methamphetamine causes heart rate and blood pressure to increase, in some cases resulting in death from a cardiac arrhythmia, an increase in heart rate and blood pressure can also result from fear and stress resulting from being kidnapped, bound, and confined. There was evidence that a person who is physically stressed and has taken methamphetamine is in greater danger or more vulnerable to an arrhythmia than a person who is stressed but has not taken methamphetamine.

[11] It is of no moment whether other factors, in particular Bhandal's consumption of methamphetamine, may have contributed to his death. There was no obligation on the Crown to prove the medical cause of death in order to establish causation. It was enough that the trial judge found that the kidnapping was a substantial contributing cause of Bhandal's death.

The Mens Rea

[12] The appellant argues that the Crown did not prove that the bodily harm causing death was reasonably foreseeable to him. He submits that objective foresight of the kind of bodily harm that caused death was required.

[13] We disagree.

[14] The trial judge recognized that the Crown must prove that the accused had "an objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act." He found that "[s]etting five men to kidnap a young able-bodied man clearly meets this standard."

[15] The appellant argues that even if the deceased died from methamphetamine toxicity triggered by exertion and stress from being kidnapped, it was not "bodily harm" that was reasonably foreseeable to the appellant.

[16] But the kidnapping cannot be parsed in this way. It includes the violent struggle to subdue Bhandal, in addition to the lengthy period in which he was held bound and gagged. It cannot be said that the risk of non-trivial bodily harm was not reasonably foreseeable in these circumstances. The appellant knew of the surrounding circumstances, and in particular knew that drugs would play a role in the kidnapping. It was objectively foreseeable that drugs would play a role in the kidnapping and give rise to a risk of non-trivial harm to the respondent. The Crown was not required to establish that the appellant knew the precise details as to how the kidnapping would proceed in order to satisfy the mens rea requirement.

Sentence

[17] The appellant argues that the trial judge violated the totality principle by ordering that the 16-year global sentence be served consecutively to the 7-year sentence imposed for the appellant's previous trafficking conviction, which had 22 months left to run. The result was a 23-year sentence the appellant says is substantially above the normal sentence for manslaughter and is crushing. The appellant contends that his lack of foresight of death was a mitigating factor that ought to have been considered, and that his sentence was excessive having regard to that of the others involved in the kidnapping. The appropriate range, according to the appellant, was 8-10 years.

[18] We disagree.

[19] It is well established that, absent errors in law or in principle that affect the fitness of a sentence, the trial judge's decision is entitled to deference unless it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[20] The trial judge recognized that the starting point for the manslaughter sentence was the sentence of 10-10.5 years imposed on the five co-accused who had pleaded guilty. However, the appellant's moral culpability was far greater: he was the leader, and the others followed his orders. It was his decision to order the kidnapping, a crime he had to appreciate would involve a significant violent assault. Had he not given the order, the kidnapping would never have occurred. The trial judge found that the appellant's decision was no momentary aberration; the appellant's conduct in attempting to kidnap Bhandal persisted over a lengthy period of time, and included a prior failed attempt. Moreover, the appellant was on bail on a charge of trafficking in heroin when the offences were committed.

[21] The trial judge noted that two of the co-accused had received consideration for their guilty pleas, reducing the 12-year sentences that would otherwise have been appropriate. In these circumstances, it cannot be said that the 14-year sentence for manslaughter was unfit.

[22] The 2-year sentence for offering an indignity to a body reflected the different interests at play. As the trial judge noted, the burning of Bhandal's body undermined the administration of justice by destroying evidence, and created a dangerous situation that put passersby and first responders at risk. It was appropriate for this sentence to run consecutively: R. v. Fournel, 2014 ONCA 305, at para. 58.

[23] The decision for the 16-year sentence to run consecutively from the sentence the appellant was already serving for heroin trafficking does not violate the totality principle. It was open to the trial judge to exercise his discretion under s. 718.3(4) to make the sentences consecutive rather than concurrent. The trial judge made no error in exercising his discretion, nor can it be said that the total sentence imposed – an effective sentence of 17 years and 2 months – was demonstrably unfit.

Conclusion

[24] The appeal is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"L.B. Roberts J.A."