Her Majesty the Queen v. Randhawa

[Indexed as: R. v. Randhawa]

Ontario Reports

Court of Appeal for Ontario

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

January 22, 2020

149 O.R. (3d) 343 | 2020 ONCA 38

Case Summary

Criminal law — Appeal — Sentence appeals — Trial judge finding accused's conduct more egregious than offenders in similar cases and imposing sentence of nine years for impaired driving causing bodily harm — Sentences in other cases eight years and ten years — Appeal from sentence allowed for misapplication of parity principle as basis of judge's finding not discernible or supportable — Court of Appeal substituting a sentence of seven years.

Criminal law — Impaired driving causing death — Impaired driving causing bodily harm — Trial judge finding accused's conduct more egregious than offenders in similar cases and imposing sentence of nine years for impaired driving causing bodily harm — Sentences in other cases eight years and ten years — Appeal from sentence allowed for misapplication of parity principle as basis of judge's finding not discernible or supportable — Court of Appeal substituting a sentence of seven years.

Criminal law — Sentencing — Appeals — Trial judge finding accused's conduct more egregious than offenders in similar cases and imposing sentence of nine years for impaired driving causing bodily harm — Sentences in other cases eight years and ten years — Appeal from sentence allowed for misapplication of parity principle as basis of judge's finding not discernible or supportable — Court of Appeal substituting a sentence of seven years.

After a night of drinking, the 22-year-oldaccused drove his car, with four other occupants, at high speed through a residential neighbourhood. He had about twice the legal limit for alcohol in his system. He lost control and the car went airborne and crashed. All four passengers were ejected. Three died and one was seriously [page344] injured. The accused suffered a traumatic brain injury. The accused was convicted on three counts of impaired driving causing death and one count of impaired driving causing bodily harm. He was sentenced to nine years concurrent on each of the first three counts and five years concurrent on the other count. The sentencing judge found that the accused's egregious conduct exceeded that of accused in three earlier cases. Two of those cases resulted in sentences of eight years, and the third attracted a sentence of ten years. The accused appealed the sentence.

Held, the appeal should be allowed.

Per Nordheimer J. (Lauwers J. concurring): The trial judge erred in his analysis based on an erroneous characterization of the accused's conduct relative to the conduct revealed in the comparative cases, but he failed to explain what factor made the accused's conduct more egregious and it is not apparent from a review of the facts of those cases how they are distinguishable. The mere failure to give reasons was not by itself an error of law, but the basis for the finding was neither obvious nor discernible. Nor was it supported in the context of the record. Accordingly, the judge misapplied the parity principle and it falls to the appellate court to inquire into the fitness of the sentence imposed and, if needed, replace it with a fit sentence. The accused's conduct was very similar to the offenders who had been sentenced to eight years, but a serious mitigating factor was that the accused suffered very serious injuries that left him physically and mentally vulnerable. The accused erroneously argued that the fact that he was the subject of numerous lawsuits arising out of the accused was a collateral consequence which should have been deemed a mitigating factor. It is not a factor that has any significance when determining an appropriate sentence. A proper application of the parity principle resulted in a sentence of seven years.

Per Hoy A.C.J.O. (dissenting): The sentence did not warrant appellate intervention. The sentencing judge carefully considered and reviewed the facts in each of the three comparative cases, and on the record, it was open to him to conclude that the accused's conduct was more egregious than that of the other drivers. The accused had more driving demerits than some of the accused in the other cases, was driving faster in an area posted with a lower speed limit and was fleeing from another accident while weaving in and out of traffic. The judge also did not err by failing to consider that the victims were passengers were less vulnerable as they had accepted the voluntarily accepted the risk of suffering death or bodily harm because they asked the accused for a ride after an evening of drinking, as opposed to innocent members of the public who were killed in other cases. It was also not an error in principle to fail to address and accept the accused's argument that the lawsuits launched against him as a result of the crash constituted a mitigating or distinguishing factor.

R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, 396 D.L.R. (4th) 214, 478 N.R. 319, J.E. 2016-20, 333 C.C.C. (3d) 450, 24 C.R. (7th) 225, 86 M.V.R. (6th) 1, 128 W.C.B. (2d) 175, EYB 2015-259924, 2015 CCAN para. 10,036, 2016EXP-59, folld

R. v. Kummer (2011), 103 O.R. (3d) 641, [2011] O.J. No. 234, 2011 ONCA 39, 273 O.A.C. 378, 266 C.C.C. (3d) 32, 83 C.R. (6th) 379, 5 M.V.R. (6th) 161; R. v. Luskin, [2012] O.J. No. 1239, 2012 ONSC 1764, 282 C.C.C. (3d) 542, 31 M.V.R. (6th) 132, 100 W.C.B. (2d) 336 (S.C.J.); R. v. Muzzo, [2016] O.J. No. 1506, 2016 ONSC 2068, 353 C.C.C. (3d) 411, 96 M.V.R. (6th) 310, 129 W.C.B. (2d) 383 (S.C.J.), consd

Other cases referred to

R. v. Altiman, [2019] O.J. No. 3216, 2019 ONCA 511, 56 C.R. (7th) 83; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, [page345] 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200, 1996 CCAN para. 10,017; R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 297 D.L.R. (4th) 577, 380 N.R. 47, [2008] 11 W.W.R. 383, J.E. 2008-1861, 260 B.C.A.C. 40, 83 B.C.L.R. (4th) 44, 235 C.C.C. (3d) 290, 60 C.R. (6th) 1, 79 W.C.B. (2d) 321, EYB 2008-148153, 2008 CCAN para. 10,052

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 255.1, 655

Highway Traffic Act, R.S.O. 1990, c. H.8

Rules and regulations referred to

Demerit Point System, O. Reg. 339/94, ss. 2 [as am.], 3 [as am.]

APPEAL by the accused from the sentence imposed by Chaffe J. of the Ontario Court of Justice on July 24, 2018.

Owen Wigderson, for appellant.

Michael S. Dunn, for respondent.

NORDHEIMER J.A. (LAUWERS J.A. concurring): —

A. Overview

[1] Prithvi Randhawa appeals the sentence imposed on him by the sentencing judge of nine years (before credit for pre-sentence custody) concurrent on three counts of impaired driving causing death and five years concurrent on one count of impaired driving causing bodily harm.

[2] The appellant advances two alleged errors made by the sentencing judge. First, he contends that the sentencing judge erred in his parity analysis in deciding on where he fit within the ranges of sentence for the offences involved. In particular, the appellant says that the sentencing judge omitted or mischaracterized certain facts from other cases to which he referred in deciding on the appropriate sentence. The appellant also says that the sentencing judge misapprehended a key submission made by the defence. Second, the appellant contends that the sentencing judge failed to consider a significant collateral consequence that the appellant will suffer arising from his conduct and this led him to impose a sentence that was unfit.

[3] I would grant leave to appeal and allow the sentence appeal. The trial judge erred in his parity analysis based, at least in part, on an erroneous characterization of the appellant's conduct relative to the conduct revealed in the comparative cases to which he referred.

B. Background

[4] The basic facts can be summarized briefly. After a night of drinking, the appellant drove his car, with four other occupants, [page346] at a high rate of speed through a residential neighbourhood. He had approximately twice the legal limit for alcohol in his system. Eventually, his car clipped another car, he lost control of the vehicle, the vehicle went airborne and crashed. All four passengers were ejected from the car. Three of them died and one was seriously injured. The appellant himself suffered a traumatic brain injury in the crash. The appellant was 22 years old and his passengers ranged in age from 19 to 24 years old.

C. Analysis

[5] I begin by noting the principle laid down in R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 11: "[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit."

[6] Central to his conclusion on what was the appropriate sentence to impose on the appellant, was the sentencing judge's view of the appellant's conduct relative to the conduct revealed by three prior cases. On that central point, the sentencing judge said, at para. 53: "In terms of parity in sentencing, I find that his egregious conduct exceeds that of the drivers in the cases of Kummer, Luskin and Muzzo." The sentencing judge repeated this finding at para. 57. The sentencing judge then imposed a sentence of nine years, one year more than the sentences in R. v. Kummer (2011), 103 O.R. (3d) 641, [2011] O.J. No. 234, 2011 ONCA 39 and R. v. Luskin, [2012] O.J. No. 1239, 2012 ONSC 1764, 282 C.C.C. (3d) 542 (S.C.J.), but one year less than the sentence in R. v. Muzzo, [2016] O.J. No. 1506, 2016 ONSC 2068, 353 C.C.C. (3d) 411 (S.C.J.).

[7] The sentencing judge did not provide any reasons for this central finding. While he does review the aggravating and mitigating factors relating specifically to the appellant in his reasons, he does not explain how any of those factors would support a finding that the appellant's conduct was more egregious than that of the offenders in those three other cases.

[8] I have reviewed the facts in this case and the facts in Kummer, Luskin and Muzzo, and I am unable to find a basis upon which the sentencing judge's finding could be supported. This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate.

[9] The mere failure to give reasons does not, by itself, amount to an error of law. As noted by McLachlin C.J.C. in R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 37:

As we have seen, the cases confirm that a trial judge's reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is [page347] judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge's conclusions -- the "why" for the verdict -- are discernable. If so, the functions of reasons for judgment are met.

(Emphasis in original)

[10] In this case, the "why" -- the basis for the sentencing judge's finding that the appellant's "egregious conduct exceeds that of the drivers in the cases of Kummer, Luskin and Muzzo" -- is neither obvious nor discernable. It is also not supported in the context of the record.

[11] That failing leads to the concern that the sentencing judge misapplied the parity principle and thus erred in his conclusion. It is an error that clearly impacted on the sentence because it was the sentencing judge's comparative view of the actions of the appellant, in relation to the actions of the accused in those three other cases, that drove him to impose the sentence that he did. It thus falls within the first of the two categories of cases identified in Lacasse, at para. 44, that warrant appellate intervention, that is, "the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor" that had an impact on the sentence. This is to be contrasted with the second category, noted at para. 52, where "[i]t is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it".

[12] As a consequence of the error in the application of the parity principle, it falls to this court to "inquire into the fitness of the sentence and replace it with the sentence it considers appropriate": Lacasse, at para. 43. In that regard, this court determined in R. v. Altiman, [2019] O.J. No. 3216, 2019 ONCA 511, 56 C.R. (7th) 83, that there was a range of four to six years for these offences where the offender does not have a prior criminal or driving record and a range of between seven and a-half to 12 years where the offender has a prior criminal or driving record: at para. 70. At the same time, I note that the decision in Lacasse holds that "sentencing ranges are primarily guidelines, and not hard and fast rules": at para. 60.

[13] In my view, the conduct of the appellant in this case is very similar to that of the offenders in Kummer and Luskin. In each case, the offender had a high blood alcohol content, drove at excessive speed, and caused multiple deaths. Two facts distinguish the appellant from those offenders though. First, his young age distinguishes him from the offender in Kummer. He was 22 years old at the time of the offence, similar to the age of Mr. Luskin. Second, and more importantly, unlike those other accused, the appellant [page348] suffered very serious injuries, including a traumatic brain injury that has left him without memory of the events. He is both physically and mentally vulnerable as a result. This is a serious mitigating factor to which the sentencing judge failed to give adequate consideration.

[14] This latter fact would suggest that a sentence should be imposed on the appellant that is slightly below the ones that were imposed in Kummer and Luskin. In saying that, I recognize that making comparisons has its limits. No two cases are ever identical. The principles of parity and consistency are not to be tested against such a standard. As Lamer C.J.C. said in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at para. 92: "Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction." Nevertheless, it remains a goal of the sentencing process to ensure that "similar sentences are imposed on similar offenders for similar offences committed in similar circumstances": Lacasse, at para. 2.

[15] In my view, the proper application of the parity principle would lead to a sentence of seven years being imposed on the appellant.

[16] Before finishing, I should say that I have had the benefit of reviewing the dissenting reasons of my colleague. She outlines a possible basis by which the sentencing judge's conclusion could be justified. I have two concerns with her approach, though. My first concern is that there is no way for this court to know whether the justification that my colleague has developed mirrors what the sentencing judge had in mind and thus permits meaningful appellate review.

[17] My other concern is that many of the points upon which my colleague relies to justify the sentencing judge's result involve very fine line distinctions for sentencing purposes. For example, comparing 122 km/h in a 70 km/h zone with 135 km/h in a 60 km/h zone when it comes to considering the impact of speeding, or whether an accused is 20 or 22 when it comes to a youthful offender, or the presence or absence of demerit points when a driving record is proven,[^1] strike me as thin reeds upon which to rely to remove 12 additional months of a person's liberty. [page349]

[18] Finally, in light of my conclusion, it is unnecessary to address the other issues raised. Nevertheless, I would add that I do not accept the appellant's contention regarding collateral consequences. On this point, the appellant said that he was subject to numerous lawsuits emanating from these events, lawsuits that would ultimately leave him subject to large judgments that he would be unable to honour. The appellant contended that this was a consequence that he would suffer arising from his conduct and that should militate against the sentence to be imposed.

[19] The appellant complains that the sentencing judge did not mention this contention in his reasons. While true, that fact does not amount to an error. For one, a judge is not required to mention every argument that may be made. For another, it is not a consequence that I would see as having any significance to the determination of the ultimate penalty to be imposed. It is likely that there will often be lawsuits that will arise from such events. That reality fails to distinguish this case from any other of its type.

D. Conclusion

[20] I would grant leave to appeal sentence and I would allow the appeal. I would reduce the appellant's sentence to seven years, leave the driving prohibition unchanged and set aside the victim impact surcharge.

[21] HOY A.C.J.O. (dissenting): -- I am not persuaded that this court is justified in intervening with the sentence imposed by the sentencing judge.

[22] Except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 11. The appellant does not argue that the sentence imposed is demonstrably unfit, and I am not satisfied that the sentencing judge made an error of law or principle.

[23] I disagree with my colleague that the sentencing judge made an error in principle in finding that the appellant's conduct was more egregious than that of the drivers in the cases of R. v. Kummer (2011), 103 O.R. (3d) 641, [2011] O.J. No. 234, 2011 ONCA 39, R. v. Luskin, [2012] O.J. No. 1239, 2012 ONSC 1764 (S.C.J.), and R. v. Muzzo, [2016] O.J. No. 1506, 2016 ONSC 2068, 353 C.C.C. (3d) 411 (S.C.J.) -- other cases in which the offender caused multiple deaths.

[24] The sentencing judge carefully considered, and reviewed the facts in, each of Kummer, Luskin and Muzzo. On the record before him, it was open for the sentencing judge to conclude that [page350] the appellant's conduct was more egregious than that of the drivers in these other cases.

[25] The appellant was travelling at a faster speed in a zone with a lower speed limit than was the driver in Kummer. As the sentencing judge detailed, Mr. Kummer was travelling at 122 km/h in a 70 km/h zone, whereas, in the moments before impact, the appellant was travelling towards a stale red light at 135 km/h in a 60 km/h zone.

[26] The appellant was slightly older, more intoxicated, and had a worse driving record than the driver in Luskin. Mr. Luskin was about 20 years of age at the time of the collision, whereas the appellant was 22 years of age. Mr. Luskin had a blood alcohol concentration ("BAC") between 122 and 157 mg of alcohol in 100 mL of blood at the time of collision: Luskin, at para. 5. As the sentencing judge noted in this case, the appellant had a BAC at the time of driving between 178 and 204 mg of alcohol in 100 mL of blood. As the Crown highlighted in its sentencing submissions, at the time of sentencing, it was a statutorily mandated aggravating factor under s. 255.1 of the Criminal Code, R.S.C. 1985, c. C-46, to have a BAC above 160 mg in 100mL of blood. The appellant was above this threshold, while Mr. Luskin was below it. Moreover, Mr. Luskin's driving record was "negligible": Luskin, at para. 25. By contrast, the sentencing judge in this case noted that the appellant had amassed eight demerit points in two years of driving and described the appellant's driving record in this way, at para. 27:

In January of 2014, [the appellant] was convicted of driving a motor vehicle unaccompanied and had his licence suspended until March of 2014. In January of 2015, he disobeyed a traffic sign. In the same month he was found travelling 90 [km/h] in a 70 [km/h] zone. In March of 2016, he failed to stop at an intersection. Five days before the incident, in which he drove at a rate of no less than 135 [km/h] into the intersection of Jane and Sheppard Avenue West against a red light, he was found to have disobeyed a red light.

[27] As to Muzzo, the appellant was driving faster in a busier area with a lower speed limit and had more demerit points than Mr. Muzzo. The appellant was travelling significantly faster than Mr. Muzzo was (135 km/h compared to 85km/h at time of impact) and in a zone with a lower speed limit (60 km/h, compared to 80 km/h): see Muzzo, at paras. 6, 23. The collision in Muzzo occurred in a "less developed area of York Region": Muzzo, at para. 5; whereas the appellant's collision took place at Jane Street and Sheppard Avenue West and other vehicles were in the appellant's path. Additionally, while Mr. Muzzo had a "lengthy prior record for driving infractions, including ten convictions for speeding", in contrast to the appellant, he did not have any demerit points at [page351] the time of the offence: Muzzo, at paras. 54, 71. In any event, the sentencing judge imposed a lesser sentence on the appellant than was imposed on Mr. Muzzo.

[28] Moreover, the sentencing judge concluded that the appellant's reckless driving in the moments leading up to the collision was an additional aggravating factor. In none of Kummer, Luskin, or Muzzo is there discussion of additional recklessness leading up to the collision that put others at risk beyond those tragically injured or killed in the collision. By contrast, in this case, the sentencing judge explicitly noted that the appellant's reckless driving in the moments before the collision included "fleeing responsibility" for another accident, travelling at excessive speed, and weaving in and out of traffic: at para. 58. The sentencing judge described the appellant's reckless driving in detail, at paras. 12-13:

At 3:18 [the appellant] drove the Acura out of the parking lot onto Jane Street south travelling at a high rate of speed. He passed a Mercedes at speed north of Shoreham drive. The rear bumper of [the appellant's vehicle] flew off striking the Mercedes. The two cars stopped at the light and the passenger of the Mercedes rolled down the window and the driver and passenger told [the appellant] that they should exchange information because of the accident. [The appellant] replied, "Have you ever seen a fucking V6?", then sped off driving very quickly on Jane Street. [The appellant] sped, moving from lane to lane, straddling lanes and accelerated at an extremely high rate of speed while swerving and weaving between traffic.

[The appellant] approached a stale red light at Sheppard Avenue West. A white Acura was stopped waiting for the light. [The appellant] approached at no less than 135 [km/h] in the posted 60 [km/h] zone, driving into the right rear portion of the stopped car, continued on through the intersection, mounted the southwest curb across the sidewalk colliding with a traffic signal pole. The trunk of his vehicle remained at the pole, the rest of the car shot into the air, rotating, striking trees and a fence lining the adjacent golf course landing on its roof in the grass west of the sidewalk, south of the intersection.

[29] As I have stated, on this record, it was open to the sentencing judge to conclude that the appellant's conduct was "more egregious" than that of the drivers in Kummer, Luskin and Muzzo.

[30] I also reject the appellant's argument that the sentencing judge erred in principle in his parity analysis by failing to consider that the victims were passengers who had asked the appellant for a ride, after engaging in an evening of drinking, as opposed to innocent members of the public, lawfully using the highways. He submits that the sentencing judge misapprehended his submission. The sentencing judge stated that "the Court cannot appreciate any principled reason for the notion that those that kill their friends and family are less morally blameworthy or the lives of the deceased less valued, than when they take the lives of [page352] a stranger": at para. 50. However, the appellant clarifies that he does not argue that his actions were less morally blameworthy because the victims had asked for a ride. Rather, the appellant argues his victims were less vulnerable than those in Kummer, Luskin and Muzzo because they voluntarily assumed the risk of being in an accident and suffering death or bodily harm as a result. In effect, he argues that an aggravating factor that was present in those cases was absent here.

[31] According to the appellant's admissions pursuant to s. 655 of the Criminal Code, R.S.C. 1985, c. C-46, all the victims had been drinking. Ravina Budhooram's BAC was 71 mg in 100 mL; Rivera Ramsahai's BAC was 235 mg in 100 mL; Tej Gangoo's BAC was 139 mg in 100 mL; and Atul Verma's BAC was between 72 and 92 mg in 100 mL. Even if voluntary assumption of risk might, in certain circumstances, operate as distinguishing factor (and I do not decide that it could), it cannot do so in this case where the victims' judgment and ability to assess risk, like that of the appellant, was impaired by alcohol. Further, innocent members of the public, lawfully using the roads, were at risk. The appellant's bumper flew off and struck another vehicle he passed at speed before he hit another vehicle stopped at a red light, lost control of his own vehicle and crashed.

[32] Finally, I agree with my colleague that the sentencing judge's failure to address and accept the appellant's argument that the fact that he is subject to numerous lawsuits as a result of these events is a mitigating factor, or at least a distinguishing factor, does not constitute an error in principle.

[33] Accordingly, I would grant leave to appeal sentence, but dismiss the appeal.

Appeal allowed.

[^1]: I note, for example, that if a person is convicted of certain offences and the penalty imposed by the court includes a period of licence suspension, no demerit points are recorded: Demerit Point System, O. Reg. 339/94, ss. 2-3, made under the Highway Traffic Act, R.S.O. 1990, c. H.8.

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