Court File and Parties

Court of Appeal for Ontario Date: 20241024 Docket: C70227

Between His Majesty the King Respondent

And Amarjit Lamba Appellant

Counsel: Amarjit Lamba, acting in person Erica Whitford, for the respondent Paula A. Rochman, appearing as amicus curiae

Heard: October 7, 2024

On appeal from the conviction entered by Justice James Stribopoulos of the Superior Court of Justice on August 20, 2021, with reasons reported at 2021 ONSC 5637 and from the sentence imposed on December 20, 2021.

Favreau J.A.:

[1] The appellant, Amarjit Lamba, was convicted of second degree murder. He was sentenced to life in prison with a period of parole ineligibility of 12 years.

[2] Mr. Lamba appeals his conviction and his sentence. He also alleges ineffective assistance of counsel.

[3] I would dismiss the appeal from conviction. I would grant leave to appeal the sentence and allow the sentence appeal. I would reduce the period of parole ineligibility from 12 years to 10 years.

A. Background

[4] At the time of the offence, Mr. Lamba was a taxi driver. He drove a minivan taxi cab. On the night of December 25, 2019, he picked up Balvinder Bains from a hospital in Brampton in his taxi. At that time, Mr. Bains was very inebriated. Mr. Lamba drove Mr. Bains to a residential address in Brampton. Once they reached that location, Mr. Bains got in and out of the taxi a couple of times. After the second time Mr. Bains got out, Mr. Lamba backed rapidly into a parked car. He then turned sharply and drove forward toward Mr. Bains. He drove over Mr. Bains’ foot, pushed him to the pavement with his vehicle and continued driving over his right leg, torso and head. After this, Mr. Lamba momentarily stopped the minivan, then backed up and drove over Mr. Bains with his front tire. Mr. Lamba next drove away. The incident was captured on a nearby high-quality video surveillance camera. Mr. Bains died from his injuries.

[5] At trial, Mr. Lamba testified that Mr. Bains’ death was an accident. When they drove to the address in Brampton, Mr. Bains initially got out of the taxi but then got back into the taxi and asked to be taken somewhere else. Mr. Lamba asked Mr. Bains to pay first, but Mr. Bains had insufficient money to cover the fare. Mr. Lamba then asked Mr. Bains to get out of the taxi. After Mr. Bains got out for a second time, Mr. Lamba backed up and accidentally bumped into another car. His evidence was that he was upset about the collision and did not see Mr. Bains when he knocked him over and was not aware that he had run him over until the police charged and arrested him the following day.

[6] The trial proceeded before a judge without a jury. Relying primarily on the video recording, the trial judge found that Mr. Lamba deliberately knocked Mr. Bains down and ran over him with his taxi. He found that Mr. Lamba either intended to kill Mr. Bains or intended to cause him serious bodily injury knowing that it would likely cause death. On this basis, the trial judge found Mr. Lamba guilty of second degree murder.

[7] The trial judge sentenced Mr. Lamba to life in prison, with a 12-year period of parole ineligibility. In imposing the sentence, the trial judge recognized that Mr. Lamba had no criminal record and that this incident was completely out of character. However, he increased the period of parole ineligibility from the mandatory minimum of 10 years to 12 years because Mr. Lamba, as a taxi driver with a drunken passenger in his care, owed a duty of care to Mr. Bains. The trial judge recognized that Mr. Lamba’s pre-sentence detention conditions were very harsh, especially given the effects of COVID-19, but stated that he was bound by prior decisions of the Superior Court, including R. v. Daley, 2021 ONSC 7678, appeal to Ont. C.A. filed, C70715, which precluded consideration of pre-conviction conditions of custody when setting the period of parole ineligibility in the absence of an application brought under the Canadian Charter of Rights and Freedoms.

B. Conviction appeal

[8] On appeal, Mr. Lamba maintains that he did not see Mr. Bains and that his death was an accident. He asserts that the trial judge misapprehended his evidence.

[9] I see no error in the trial judge’s assessment of the evidence.

[10] In reaching his conclusion that Mr. Lamba deliberately killed Mr. Bains, the trial judge first considered Mr. Lamba’s evidence and provided a comprehensive explanation for not finding him credible and for finding that his evidence did not raise a reasonable doubt. He pointed to significant inconsistencies between Mr. Lamba’s evidence and the video surveillance footage. He also pointed to internal inconsistencies and implausible aspects of Mr. Lamba’s evidence.

[11] The trial judge then considered the video evidence and concluded that it could only lead to the inference that Mr. Lamba deliberately ran over Mr. Bains.

[12] The trial judge’s findings of credibility and fact are entitled to deference. I see no error in the trial judge’s finding that Mr. Lamba acted deliberately when he killed Mr. Bains. The trial judge applied the correct legal principles when assessing Mr. Lamba’s evidence. He also made no error in concluding that the video of the incident supported a clear inference that Mr. Lamba deliberately killed Mr. Bains.

C. Sentence appeal

[13] The only issue raised on the sentence appeal is whether the trial judge erred in concluding that he could not consider Mr. Lamba’s pre-sentence conditions of custody when determining the period of parole ineligibility for a conviction of second degree murder.

[14] In reaching his conclusion on this issue, the trial judge relied on Daley and R. v. Hall, 2021 ONSC 6169, 158 O.R. (3d) 374, appeal to Ont. C.A. filed, C70539. He considered himself bound by horizontal stare decisis, and stated as follows:

Although I am less than sure that I would have come to the same conclusion as my colleagues had the issue been before me as a matter of first impression, I do not think that the decisions are “plainly wrong.”

[15] In Daley, at para. 81, Christie J. stated that she could not consider the defendant’s conditions during pre-sentence custody when determining the period of parole ineligibility in the absence of a Charter application because of the wording of s. 745.4 of the Criminal Code, R.S.C. 1985, c. C-46:

In the absence of a Charter application, this court does not agree that having been subjected to pre-sentence custody during the COVID-19 pandemic is a relevant consideration on setting parole ineligibility. This conclusion is based on a plain reading of the Criminal Code. It is the view of this court that s. 745.4 does not permit this court to consider the conditions of remand time at all, absent a Charter application.

[16] Section 745.4 of the Criminal Code states that, when sentencing an offender for second degree murder, a judge “may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission” (emphasis added), impose a period of parole ineligibility of more than 10 years (but no more than 25 years). The sentencing judge in Daley reasoned that, because the conditions of pre-sentence custody are not listed as a relevant consideration in s. 745.4, she could not have regard to those circumstances absent a Charter application: at para. 77.

[17] The trial judge also referred to Hall. In that case, the offender brought a Charter application, and the sentencing judge granted the application, finding that the appropriate remedy “warrant[ed] a reduction of the parole ineligibility period”: at para. 100.

[18] Commendably, in the context of Mr. Lamba’s appeal, the Crown brought the decision in R. v. Morales, 2023 ONSC 1607, appeal to Ont. C.A. filed, COA-23-CR-1305, to the panel’s attention. In that case, the appellant had not brought a Charter application. Woollcombe J. disagreed with the interpretation of s. 745.4 in Daley and held that no Charter application was required for a sentencing judge to consider pre-sentence custody conditions when determining the period of parole ineligibility for second degree murder. She also found that particularly punitive conditions of pre-sentencing custody could be considered as a mitigating factor in setting a period of parole ineligibility for an offender convicted of second degree murder: at para. 56.

[19] Woollcombe J. reasoned that she was not bound by Daley, because other decisions in Ontario and elsewhere had treated pre-sentence custody conditions as relevant mitigating factors when determining an appropriate period of parole ineligibility for second degree murder: e.g., R. v. Hong, 2016 ONSC 2654, at para. 60; R. v. Corner, 2018 ONSC 1529, at para. 50, rev’d on other grounds, 2023 ONCA 509, 167 O.R. (3d) 641; R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 12, aff’d 2022 ONCA 790, 165 O.R. (3d) 97.

[20] She then provided three reasons for not following Daley.

[21] First, at para. 59, relying on this court’s decision in R. v. McKnight (1999), 44 O.R. (3d) 263, Woollcombe J. stated that, while s. 745.4 of the Criminal Code sets out specific factors courts should consider when deciding to extend the period of parole ineligibility beyond 10 years on a second degree murder conviction, this does not mean that courts should not consider all relevant sentencing principles when considering the length of parole ineligibility:

McKnight reinforces that parole ineligibility determinations must be made on the basis of the factors specifically identified in s. 745.4 and, in addition, after considering the broader factors that are relevant to the imposition of sentence as set out in the Code. These include all mitigating factors, and factors relating to the “offender’s circumstances” and the principle of parity with the period of parole ineligibility imposed in other cases.

[22] Second, Woollcombe J. observed that general sentencing principles, including considerations beyond those set out expressly in s. 745.4, are routinely applied in determining periods of parole ineligibility. For example, s. 718.2 of the Criminal Code requires that all sentences consider aggravating and mitigating circumstances. Relying on R. v. Ranhotra, 2022 ONCA 548, Woollcombe J. noted that this court has expressly applied this requirement to fixing parole ineligibility.

[23] Third, citing several decisions from this court, Woollcombe J. pointed out at para. 63 that “the principle that onerous pretrial conditions of incarceration may be a mitigating factor on sentence is now firmly established in the Ontario caselaw: R. v. Marshall, 2021 ONCA 344; R. v. Green, 2021 ONCA 932, at paras. 15-19; R. v. Bristol, 2021 ONCA 599, at paras. 10-12.”

[24] I agree with the reasoning in Morales, especially to the effect that all sentencing principles are relevant in determining the appropriate period of parole ineligibility. The fact that s. 745.4 of the Criminal Code lists specific factors that must be considered when deciding whether to increase the period of parole ineligibility for second degree murder beyond the 10-year mandatory minimum does not mean that other factors normally relevant to sentencing, including mitigating factors, become irrelevant. Taking this approach would not accord with basic principles of statutory interpretation: see Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 37. Accordingly, there is no principled reason for sentencing judges not to consider pre-sentence conditions of incarceration when deciding on an appropriate period of parole ineligibility.

[25] As pointed out by Woollcombe J. in Morales, at para. 53, this does not mean that trial judges have the discretion to reduce the mandatory period of parole ineligibility due to the length of pre-sentence custody; this is clearly impermissible: R. v. McKenna, 2020 NBCA 71, 394 C.C.C. (3d) 494, at para. 18. However, as this court directed in Marshall, pre-sentence conditions are one of many mitigating factors that may affect a fit sentence. There are no principled reasons why this mitigating factor should not also apply to determining the appropriate period of parole ineligibility, as long as the statutory mandatory minimum sentence is maintained and the sentencing court also considers the factors in s. 745.4 of the Criminal Code when determining an appropriate period of parole ineligibility.

[26] In this case, the trial judge cannot be faulted for following Daley given that he viewed himself as bound by horizontal stare decisis. But this court is not bound by Daley. In my view, Mr. Lamba’s period of parole ineligibility should include consideration of his pre-sentence conditions of custody.

[27] It therefore falls to us to determine a fit period of ineligibility for parole: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24. In doing so, I see no reason to depart from the trial judge’s findings regarding the statutorily mandated considerations in s. 745.4 of the Criminal Code, namely Mr. Lamba’s character, the nature of the offence and the circumstances surrounding its commission.

[28] With respect to character, the trial judge emphasized that Mr. Lamba’s pro-social and law-abiding life up to the time of the offence did not justify an increase in the period of parole ineligibility:

In terms of Mr. Lamba’s background and circumstances, nothing at all would presage his involvement in a crime of this nature. He immigrated from India in 1995 and is a Canadian citizen. He has enjoyed gainful employment ever since arriving in Canada. Mr. Lamba is married, has two children, and owns a home in Mississauga. He appears to be a devout adherent of his Sikh faith and a devoted congregant and longstanding volunteer at his temple. Mr. Lamba does not have a criminal record. In short, before he murdered Mr. Bains, Mr. Lamba appears to have lived an entirely pro-social and law-abiding life.

[29] The trial judge also found that the nature of the offence did not justify an increase in the period of parole ineligibility. While acknowledging that all murders are senseless and horrific, the trial judge observed that, in this case, the offence occurred over a few seconds, and that Mr. Bains “did not endure prolonged suffering”.

[30] The trial judge found that the circumstances of the offence warranted an increase in the period of parole ineligibility. However, he first observed that “this crime was committed without any degree of reflection, motivated solely by an intense and irrational outburst of pure emotion”, which would weigh against an increase. He nevertheless found that an increase was justified because Mr. Lamba, as a taxi driver, owed a duty of care to his passengers, especially those who were vulnerable due to intoxication. On this basis, he found that Mr. Lamba’s offence “involved a profound breach of trust” that warranted an increase in the period of parole ineligibility.

[31] As indicated above, based on Daley, the trial judge then declined to consider Mr. Lamba’s pre-sentence conditions of detention. In doing so, he acknowledged the harsh conditions of pre-sentence custody caused by the COVID-19 pandemic:

To be sure, the last twenty-one months have resulted in incredibly harsh conditions in our detention centres because of the various measures implemented to decrease the spread of the virus. Lockdowns, an absence of programming, limited visitation with counsel, family, and friends, have all marked the experience of those held in detention centres during the pandemic.

[32] Mr. Lamba was held in pre-sentence custody at Maplehurst Correctional Complex, much of which occurred during the COVID-19 pandemic. At the sentencing hearing, there was no specific evidence of how the harsh conditions affected Mr. Lamba while he was in pre-sentence custody. His counsel simply submitted that the trial judge should take into account what were known to be harsh conditions during the pandemic and decline to increase Mr. Lamba’s period of parole ineligibility above the 10-year minimum.

[33] The Crown submits that, even if this court finds that pre-sentencing conditions of custody can be relevant to determining a period of parole ineligibility, based on the lack of evidence before the trial judge regarding how pre-sentence conditions affected Mr. Lamba, consideration of pre-sentence conditions would have had no impact on his period of parole ineligibility. In the normal course, this proposition is sound. When an offender seeks a sentence reduction based on pre-sentence conditions of custody, it is preferable for the court to have evidence of those conditions and their effect on the offender: R. v. Duncan, 2016 ONCA 754, at paras. 6-7; see also R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 80. However, the conditions of custody during the pandemic were notoriously harsh and exceptional, as documented in many prior decisions: see e.g., R. v. Smith, 2023 ONCA 500, 89 C.R. (7th) 297, at para. 46; R. v. Hearns, 2020 ONSC 2365, at paras. 16, 20; R. v. Chang, 2021 ONSC 7954, at paras. 43-49, aff’d 2024 ONCA 498; R. v. Dalmar, 2021 ONCJ 89, at paras. 88-101; R. v. Hamas Khan, 2022 ONSC 410, at paras. 124-126, aff’d 2023 ONCA 553; and Morales, at para. 66. In these exceptional circumstances, the court can take notice of the conditions under which Mr. Lamba was detained and take those conditions into consideration when deciding on an appropriate period of parole ineligibility.

[34] Taking into account all of the circumstances identified by the trial judge, but also taking into consideration the conditions of pre-sentence custody, I am satisfied that a fit period of parole ineligibility in this case would be 10 years. As emphasized by the trial judge, Mr. Lamba’s character and the nature of the offence do not justify an increase in the period of parole ineligibility. While the breach of trust is serious, the other circumstances of the offence do not weigh in favour of an increase in the period of parole ineligibility. Taking this into consideration along with the harsh conditions of pre-sentence custody attributable to COVID-19, in my view, a 10-year period of parole ineligibility is fair in all the circumstances.

D. Claim of ineffective assistance of counsel

[35] Mr. Lamba did not provide any evidence in support of his claim of ineffective assistance of counsel and there is no basis in the record for making such a finding.

E. Disposition

[36] I would dismiss the appeal from conviction. I would grant leave to appeal the sentence and allow the sentence appeal. I would reduce the period of parole ineligibility from 12 years to 10 years.

Released: October 24, 2024 “J.C.M.” “L. Favreau J.A.” “I agree. J.C. MacPherson J.A.” “I agree. J. Dawe J.A.”