Court of Appeal for Ontario
Date: 2019-11-05 Docket: C65587
Judges: Benotto, Brown and Paciocco JJ.A.
Between
Her Majesty the Queen Respondent
and
Jasvir Singh Appellant
Counsel
For the Appellant: Alan D. Gold and Alex Palamarek
For the Respondent: Mabel Lai
Heard: November 1, 2019
Appeal Information
On appeal from the conviction entered on February 9, 2018, by Justice Alexander D. Kurke of the Superior Court of Justice, and the sentence imposed on July 31, 2018, with reasons reported at 2018 ONSC 386.
Reasons for Decision
[1] Conviction and Sentence
Mr. Singh was convicted of dangerous driving causing death. He was sentenced to three years' incarceration, in addition to five days' pre-sentence custody, and a five-year driving prohibition. He appeals his conviction and sentence.
[2] Facts – The Collision
In the morning of January 11, 2016, two tractor trailers collided on Highway #11 near Val Gagne, Ontario, just south of Cochrane. A snowstorm the day before had closed the highway. Roughly an hour after it had reopened, the collision occurred. That morning, the road and weather conditions were poor. There was blowing and drifting snow, causing whiteouts as long as four to five minutes. The road was covered in snow and ice and was slippery.
[3] The Vehicles and Fatality
Mr. Singh was driving a 53-foot tractor trailer in the southbound lane. He collided with a tractor trailer in the northbound lane. The driver of the northbound truck, Gary Messenger, died from his injuries.
[4] The Near-Miss Incident
Witnesses described that, before the fatal collision, Mr. Singh had passed a red sedan thereby forcing a northbound Home Hardware truck onto the northbound shoulder of the highway to avoid a collision. Mr. Singh then had to cut back at the last second into the southbound lane.
[5] The Fatal Collision
Once Mr. Singh returned to the southbound lane, three vehicles overtook him in one pass: a logging truck, a Ford truck pulling a U-Haul trailer, and a minivan. The Ford truck then passed the minivan. Mr. Singh also passed the minivan and then pulled into the northbound lane to pass the Ford truck as well. The driver of the Ford truck testified that, at this point, he saw the headlights from Mr. Messenger's truck coming towards them in the northbound lane. Mr. Singh veered left to the northbound ditch and, in the process, collided with the Messenger truck which was demolished.
[6] The Charge
The charge against Mr. Singh arose from the fatal collision. The trial judge's reasons refer to the sequence of events before this collision and the near miss with the Home Hardware truck as "dangerous driving" on the part of Mr. Singh.
[7] Grounds of Appeal
Mr. Singh appeals on the basis that the trial judge erred by:
(i) considering Mr. Singh's near miss with the Home Hardware truck as part of the dangerous driving offence;
(ii) finding that the circumstances of the fatal collision constituted a marked departure from the standard of care of a reasonable driver; and,
(iii) providing insufficient reasons for the conviction.
Analysis of Conviction Appeal
[8] The Near-Miss Incident – Factual Misapprehension Argument
Mr. Singh submits that, by considering the Home Hardware truck incident in relation to the offence charged, the trial judge erred in two ways. First, he misapprehended the facts because, contrary to the trial judge's finding, Mr. Singh did not pass the red sedan on the crest of a hill, but rather where the road had levelled. He points to the evidence of Andre Plourde, who was driving the U-Haul, that the road was "straight". We do not agree that the trial judge misapprehended the evidence. It was open to him to accept the evidence of other drivers that Mr. Singh had passed as they were going up a little hill. In support of this finding, the police officer gave evidence that a rise in the road starts about a kilometer north of the point of collision.
[9] The Near-Miss Incident – Improper Conviction Argument
Second, Mr. Singh submits that by labelling the Home Hardware truck event as "dangerous driving" the trial judge was convicting him of a crime for which he was not charged and this tainted and pre-determined his conclusion with respect to the fatal collision.
[10] Court's Response
We do not agree.
[11] Sequence of Events as Part of Same Transaction
Mr. Singh's conduct that led to the fatal collision was one series of events that demonstrated a pattern of behaviour. As the trial judge stated, the near miss should have caused him to modify his driving. It did not. The trial judge was entitled to consider the whole of his driving in relation to the fatal collision as part of a sequence of events. The trial judge did not – as Mr. Singh submits – erroneously consider the near-miss as similar fact evidence. It was part of the same transaction that was being prosecuted.
[12] Marked Departure from Standard of Care – Other Vehicles Passing
Mr. Singh also submits that his conduct did not constitute a marked departure from the standard of care of a reasonable person in the circumstances. In this regard, he relies on the fact that the other cars were passing that morning as well. This submission ignores the evidence of Pascal Plourde (the driver of the Ford truck) who testified that when Mr. Singh pulled out to pass, there was a whiteout, visibility was limited, and he could not see the logging truck ahead of him. As Mr. Singh moved to the northbound lane to pass him, Mr. Plourde saw the headlights of the Messenger truck.
[13] Marked Departure from Standard of Care – Court's Conclusion
Mr. Singh was driving a 53-foot tractor trailer. He was passing cars and trucks on a snowy, icy highway in weather conditions with intermittent whiteouts caused by blowing and drifting snow. The trial judge did not err in concluding that his attempt to pass the Ford truck almost represented a wanton and reckless disregard for the lives and safety of those on the road. Mr. Singh drove dangerously and is guilty of contravening s. 249(4) of the Criminal Code, R.S.C. 1985, c. C-46.
[14] Sufficiency of Reasons
Finally, we do not agree that the trial judge's reasons are insufficient. They clearly articulate the path to conviction and are capable of appellate review.
Analysis of Sentence Appeal
[15] Appellant's Submission
Mr. Singh submits that the sentence is harsh and excessive and that this court should substitute a sentence of 12 months' custody and a one-year driving prohibition.
[16] Court's Response
We see no error in principle warranting appellant intervention.
Disposition
[17] Decision
The appeal is dismissed. Leave to appeal the sentence is granted, but the sentence appeal is dismissed.
M.L. Benotto J.A. David Brown J.A. David M. Paciocco J.A.
