Court File and Parties

Date: August 29, 2024 Information No.: 3111-998-22-31102540-00 Ontario Court of Justice

His Majesty The King v. Inderdeep Singh Kandola

Excerpt of Proceedings (Reasons for Sentence)

Before The Honourable Justice S.R. Bernstein On August 29, 2024, at Brampton, Ontario

Appearances: N. Jaswal, Counsel for the Crown D. Locke, Counsel for Inderdeep Singh Kandola

Bernstein, J. (Orally):

Inderdeep Kandola pled guilty before me, that he, on April 13, 2022, committed the offence of dangerous driving causing the death of Gita Jagpal, pursuant to section 320.13(3) of the Criminal Code. This is after we heard the evidence at the preliminary inquiry including the evidence of the victim's husband, Abhey Jagpal. Comprised as Exhibit 4 in these sentencing proceedings are an agreed statement of facts for the plea.

[1] On April 13, 2022, at approximately 8:20 p.m., the accused, Inderdeep Singh Kandola, was operating his black 2018 Mercedes Benz with an Ontario licence plate C-F-A-N 2-7-2 westbound on Countryside Drive at McVean Drive in the City of Brampton. Mr. Kandola's cousin, Joban Ranu, was also in the vehicle seated in the front passenger seat. The roads were wet due to rainy conditions.

[2] At the same time, Abhey Jagpal was operating his 2013 Honda Accord with Ontario licence plate B-S-C-J 1-6-2, and was waiting to turn left from eastbound Countryside Drive to northbound McVean Drive in the City of Brampton. Mr. Jagpal's wife, Gita Jagpal, was sitting in the front passenger seat of this vehicle.

[3] The incident between the two vehicles was captured on video from a Tesla that was travelling in the left lane westbound on Countryside Drive and in close proximity to Mr. Kandola's vehicle. Mr. Kandola is observed first driving at a speed slower than the flow of traffic, while in the curb lane of westbound Countryside Drive. The video then shows Mr. Kandola speed up, weave around traffic, and accelerate at a high rate of speed toward the intersection of Countryside Drive and McVean Drive. Mr. Kandola struck Mr. Jagpal's vehicle as it was making its left turn.

[4] Countryside Drive is a posted maximum 70 kilometre an hour roadway in that area. Investigation revealed that 1.5 seconds before the collision, Mr. Kandola was travelling at a speed of 156 kilometres an hour. The Mercedes accelerated from 140 kilometres an hour to 156 kilometres an hour in 3.5 seconds leading up to the crash. Brakes were applied for 1.5 seconds prior to the crash, during which time the Mercedes slowed from 156 kilometres an hour to 116 kilometres an hour.

[5] The Honda was initially stopped for approximately one second prior to a slow acceleration into a left-hand turn reaching a speed of 19 kilometres an hour 1.5 seconds prior to impact. Brakes were applied for 1.5 seconds prior to the crash. The Honda slowed from 19 kilometres an hour to 13 kilometres an hour.

[6] A video shows that as Mr. Kandola entered the intersection, the traffic light was green, and as he made contact with Mr. Jagpal's vehicle, the traffic light was yellow.

[7] The front end of Mr. Kandola's vehicle struck the passenger side of Mr. Jagpal's vehicle. The Mercedes had complete front end damage with more intrusion on the front passenger side of the vehicle. The Honda was initially struck along the B pillar of the passenger side. The B pillar is located between the front and rear doors of most vehicles. It is a structural component to provide support and integrity to the frame of the vehicle. The collision caused the B pillar to break severing the seatbelt. The collision also damaged the front door latch causing the front door to come open with the rotation of the vehicle. As a result, Ms. Jagpal was ejected from the Honda.

[8] Ms. Jagpal was located nearby and had no vital signs at the scene. At 9:08 p.m., she was pronounced as deceased by Dr. Phalpher at Brampton Civic Hospital.

[9] On June 2, 2022, the accused attended 22 Division Peel Regional Police and at 10:08 a.m., he was arrested for dangerous driving causing death, contrary to section 320.13(3) of the Criminal Code. He was released on a Form 10 with a court date of August 22, 2022, and a fingerprint date of August 19, 2022. He also has a condition to notify Detective Constable Teetzel, number 2572, of any change of address or employment.

The Offender

Mr. Kandola was 18 and a half years of age at the time of the offence and will turn 21 on September 29 of this year. He has no criminal record, and no driving record to speak of.

I have received the report, Exhibit 1, in the sentencing proceedings from Tricia Scott, a registered psychotherapist with ReConnect Distance counselling services. Mr. Kandola participated in six one-hour counselling sessions. According to the report, it quickly became apparent how deeply he has been impacted by the car accident and his culpability in what happened. Notably, he did not present with self-pity. Rather his heartache and sorrow were directly connected to the loss of Ms. Jagpal's life and the anguish of her family.

He has done volunteer work at his Sikh Temple since childhood. He is employed full-time by his father's trucking company. He is also attending the IT program at York University.

Importantly, the report focuses on the tender age of Mr. Kandola at the time of the accident. His brain was still in the developmental stage. It is said that this might account for a penchant for risk taking, as appears to have occurred on the night of the incident. In addition, the report indicates that "the intuitive awareness of potential danger is slow to develop during this period of psychosocial development."

The court has heard that not only did this tragedy occur, but that one day earlier, his grandmother passed away. The confluence of events led him to experience serious bouts of anxiety and depression and he displays many symptoms consistent with post-traumatic stress disorder.

At 20 years of age, he has started to show real signs of self-awareness and insight. After being encouraged by his therapist to do research about a Jewish physiatrist who survived the Holocaust, he learned that he has the power to overcome his fears and trepidation to share his story publicly, instead of only feeling shame. He told his therapist that he would like to speak to other young men in the future and share his experience so that they might think twice before being thoughtless and reckless.

Exhibit 2 in these proceedings is a letter verifying his enrollment in the Faculty of Liberal Arts and Professional Studies at York University.

The court has also received an impressive package of reference letters attesting to the good character of Mr. Kandola. See Exhibit 3. He is described as kind, compassionate, caring, responsible, and reliable. He has impressive support in the community, and he comes from a loving and supportive family who have attended court each day of the case.

Mr. Kandola also wrote a letter on the night of his arrest on January 22, 2022, apologizing for what he had done. I will read that into the record.

Dear Jagpal Family, I am writing this letter to Abhey Jagpal, Dinesh Jagpal, Isha Jagpal, and all loved ones of Gita Jagpal. I know hearing from me is probably the last thing on your mind, but I would like to from the bottom of heart sincerely apologize for your loss. Mothers are the heart of families. They are what bring us into this world and truly [I am not sure if it says, owe us] no matter what love us, no matter what. They raise us from kids to adult and are our role models when growing up.

The morning after the accident, I lost my grandmother after a long fight with cancer. When she passed, it felt as though a piece of me had left with her. No matter what I was going through, she was always there for me. I grew up sleeping in the same bed with her. She would force me to eat when I didn't want to and would always stay up until I was home.

I believe Gita Jagpal was just as loving and caring. I pray every day that our mothers are with God watching down on us. I pray God keeps your family strong and healthy. My actions have forever affected your family, and I beg for your forgiveness. Sincerely, Inder.

This was Exhibit 5 in the sentencing proceedings.

Positions of the Parties and Analysis of Legal Principles

On behalf of the Crown, Ms. Jaswal seeks a penitentiary sentence of 3 to 4 years, a 15-year driving prohibition, and a DNA sample given that the offence is a secondary designated offence.

She submits that given the tragic consequences of Mr. Kandola's driving, and the pronunciations in section 320.12(b) of the Code, to wit:

[As Read] It is recognized and declared that the protection of society is well served by deterring persons from operating conveyances dangerously, or while their ability to operate them is impaired by alcohol or a drug because that conduct poses a threat to the life, health, and safety of Canadians.

It shows that deterrence and denunciation are the paramount consideration in a case such as this.

Ms. Jaswal rightly asserts that driving is a privilege and not a right, and that other young people must be deterred from driving dangerously and recklessly as Mr. Kandola did.

She points out that the speed was so devasting and the impact so severe, that a perfectly functioning seatbelt assembly was severed.

Although there were no victim impact statements submitted by the Jagpal family, there is no doubt that the death of Gita Jagpal has had a cataclysmic impact on them and that their lives have been inexorably changed. She points out that the family were too upset to attend the sentencing hearing.

The Crown also points out that the speed was over two times the legal limit and that Mr. Kandola's cousin and best friend, also only 18 years old, was a passenger in the Mercedes and was therefore exposed to great danger.

She does acknowledge many mitigating factors in her submissions. Mr. Kandola has no criminal record, has a loving and supportive family and has shown real remorse. The Crown also admits that given that the light was green for the Mercedes and the Honda was improperly making a left turn, there is some mitigation, I infer, in terms of the defendant's moral blameworthiness.

Still, she properly insists that the speed was the main factor. Without it, the accident still would not have happened. The Mercedes could have stopped in time or at least could have slowed down so that the impact would not have been lethal.

In addition, the road conditions were wet and other drivers were unnecessarily put at risk.

Ms. Jaswal adverts to case law in support of her argument for a penitentiary sentence. She admits that a conditional sentence is available, as there is no mandatory minimum for the offence, and it is not amongst those charges enumerated as not eligible for a sentence of community supervision.

However, she states that since 2018, parliament has seen fit to emphasize the seriousness of criminal bad driving by promulgating section 320.1(2), see above, and has increased the potential penalty to life imprisonment.

The Crown submits that a conditional sentence does not comply with the principles of sentencing given the emphasis on denunciation and deterrence and does not account for the seriousness of a case when someone loses their life.

On behalf of the defence, Mr. Locke seeks a conditional sentence of imprisonment of 18 months to 2 years less a day, a 3-to-5-year driving prohibition, or if the court finds this inappropriate, a jail sentence of 6 to 9 months.

He submits that there is no evidence that an impact of the speed limit of 70 kilometres an hour would not have resulted in the same set of circumstances. He points out that another car travelling in the same direction as the Honda was able to stop and Mr. Jagpal did not. He posits that the driving by the victim's husband was a contributory factor to the accident, although through the plea of guilty, this only goes to potential mitigation of the offence. Still, he argues there were triable issues. He says that the penitentiary sentence is not required and inappropriate for an 18-year-old man under all the circumstances.

He relied chiefly on R. v. Linton, 2022 ONCJ 197, a case decided by my brother Judge Schwarzl. In that case, a 27-year-old defendant received a conditional sentence. Mr. Linton was responsible for a fatal car accident that not only killed one person, but which caused serious permanent injury to two young people in the car.

Like Mr. Kandola, he was employed in the car and truck industry as a mechanic. Like Mr. Kandola, he had no criminal or driving record, and he had excellent family support and wrote a letter of apology to the family of the victims. Like Mr. Kandola, the offending driving was relatively brief.

Unlike Mr. Kandola, he received serious injuries himself as a result of the accident. In addition, unlike the case at bar, the surviving victims produced victim impact statements indicating that they could not move without pain and one of them was confined to a wheelchair for life.

I advert to the words of Justice Schwarzl as his comments are apposite to our case.

[As Read] Crown counsel submitted that a jail sentence of between three and four years is warranted in this case. In arriving at this submission, they rely on the gravity of this offence, the very high blameworthiness of Mr. Linton, and the need for general deterrence of such fatal risk taking. The prosecution further submits that denunciation is a key factor to consider. R. v. Singh, 2018 ONSC 4598 at paragraphs 22 to 25 (affirmed 2019 ONCA 872).

The prosecution submits that while the range of sentences for dangerous driving causing death and bodily harm is very broad, the primary focus of sentencing in such cases should be denunciation and deterrence. R. v. Saunders, 2021 ONSC 6149 at paragraph 42. Ordinarily, these principles point towards sentences of immediate incarceration, even for youthful first offenders. R. v. Yogeswaran, 2021 ONSC 5920 at paragraphs 32 to 49 and paragraph 65.

With respect to the imposition of a conditional sentence, the Crown acknowledges that in 2020 the Ontario Court of Appeal ruled that such a sentence is available in a case like this one. R. v. Sharma, 2020 ONCA 478. Nevertheless, the prosecution submits that a conditional sentence should not be imposed for two reasons. First, they submit that the appropriate sentence should be higher than the maximum allowed for conditional sentences, which is two years less a day. Second, a conditional sentence, even if the appropriate sentence was under two years, does not adequately address the principles of denunciation and deterrence.

In relation to the defence position of a conditional sentence, the seminal Supreme Court of Canada case of Proulx, 2000 SCC 5 at 149, states that conditional sentences, where appropriate, and with strict onerous conditions can act as deterrent and denunciatory sentences.

Recently the Supreme Court reaffirmed this approach in Sharma, 2022 SCC 39, supra, at paragraph 171, to wit:

Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate depending on "the nature of the condition imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served": Proulx, at paragraph 114; see, also, Wells at paragraph 35.

The cases relied upon by the Crown, while extremely compelling, involve offenders who either were found guilty of impaired driving causing death, a more serious offence, or criminal negligence causing death, also arguably a more serious offence. See Regina v. Luke, 2021 ONSC 3550, where the accused's blood alcohol level was almost three times the legal limit.

The Crown also presented the Ontario Court of Appeal case of Boily, 2022 ONCA 611. At paragraph 47, the court stated:

While dangerous driving is a serious criminal offence, and nothing in these reasons should be taken as suggesting anything to the contrary, when comparing criminal negligence causing death to dangerous driving causing death, the former clearly requires an "elevated" degree of fault: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3 at paragraph 21; R. v. F.(J.), 2008 SCC 60, [2008] 3 S.C.R. 215, paragraphs 9 to 11.

The main issue in Boily appears to have been the availability of the driving prohibition for dangerous driving causing death, an issue I need not deal with in the case at bar. See paragraph 73.

Regarding the case of R. v. Obermok, an unreported case from our court in 2020, it is germane to point out that Mr. Obermok pled guilty to dangerous driving causing death and causing bodily harm. The court found that a conditional sentence with its maximum of two years less a day was insufficient. Critical to Justice Pratt's analysis was his finding at paragraph 75 that:

Mr. Obermok chose to drink and get behind the wheel of his vehicle. He says alcohol played no role in the collision and that he was not intoxicated at the time. How, then, can anyone explain his disregard of the "stop ahead" warning, the flashing red light, and the stop sign itself, and his decision to enter the intersection at nearly double the posted speed limit? He made no attempt to even slow down before hitting Avery's vehicle. In his own statement in court, Mr. Obermok said he did not know why he didn't stop. The only reasonable inference available to be drawn is that he was at least somewhat under the influence of alcohol at the time of the collision.

In the case at bar, it is not alleged the defendant had consumed alcohol. This is a critical difference between the Obermok case and the case I must decide.

In relation to the case of Regina v. Wakeel, 2019 ONSC 6466, Mr. Wakeel had a trial and was convicted. His driving caused the death of the front passenger in the other car and seriously injured the driver, her husband. The couple had gotten married only one week earlier and were set to depart on their honeymoon the very next day. In addition, the defendant told a witness not to call 9-1-1, and that there was alcohol smelt on his breath. Mr. Wakeel also had a serious driving record, although he had no criminal record. The differences between the two cases are obvious.

In the Bickle case, Justice Halikowski of the Ontario Court of Justice convicted the defendant of dangerous driving, impaired causing death, and dangerous driving causing death after a trial. Clearly, Mr. Bickle was found to have been impaired by alcohol at the time of his criminal driving. He also had a serious criminal record, including related offences, and an extensive Highway Traffic Act record, including being convicted on nine separate occasions for speeding. He received no mitigation for a plea of guilty having exercised his right to a trial. Although he had many character letters, they were silent on the issue of Mr. Bickle's contrition in relation to taking responsibility for his bad driving. There are obvious distinctions between the Bickle case and Mr. Kandola's case.

Finally, the Crown presented Regina v. Lakhvinder Bhangal, an unreported case from the Superior Court of Justice in 2013. Mr. Bhangal was convicted after a trial before a judge and jury of dangerous operation of a motor vehicle causing death, and criminal negligence causing death. He was found to have deliberately ignored the driver safety rules and doctored his logbooks in an effort to avoid his rest obligations. This was a significant aggravating factor as it demonstrated a conscious decision on the part of the offender to put his economic interest ahead of public safety.

Similar to the Boily case, the court in Bhangal found that criminal negligence causing death was a more serious offence than dangerous driving causing death. This is a significant distinguishing feature.

Section 742 of the Criminal Code outlines the basic requirements when considering a conditional sentence of imprisonment. First, the court must find that a sentence of two years or less in custody is appropriate under all the circumstances. In addition, there cannot be any mandatory minimum sentence if a court is to impose a conditional sentence. It is also important that the court make a finding the offender is not a danger to the community.

Like in any other case over which I preside, I must consider the proportionality of the sentence imposed.

Section 718.1 of the Code sets out the fundamental principle of sentencing. "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." I must determine whether the principles enunciated in section 718 namely, general and specific deterrence, denunciation, and rehabilitation can all be achieved within the framework of a conditional sentence.

Appellate courts have frequently indicated that the task of sentencing in Canada is an individualized process. I must examine the moral blameworthiness of the defendant, the impact his actions have had on the community, and decide whether all the principles of sentencing can be accommodated without sending Mr. Kandola to actual jail.

The courts have also instructed us that youthful first offenders should be treated as leniently as possible, and that a first sentence of imprisonment should be as short as possible.

In Regina v. Priest, the Ontario Court of Appeal stated the following in the case of a 19-year-old first offender, "the trial judge has a duty to consider whether any disposition other than imprisonment would be appropriate."

In addition, the court made clear that if a sentence of imprisonment was to be imposed, it should be as short as possible. Even if a custodial sentence was appropriate in the case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused, rather than solely for the purpose of general deterrence. It should be noted that this case was decided before the advent of conditional sentencing in the Criminal Code.

A conditional sentence is considered to be a term of imprisonment. As mentioned above, in the right circumstances, it can serve the purposes of denunciation, general and specific deterrence, and, of course, rehabilitation.

I find therefore that the defendant is not a danger to the public, is not subject to any mandatory minimum and that a sentence of two years or less with strict conditions is appropriate.

I also make a finding that adding a lengthy term of probation after the termination of the conditional sentence is appropriate and will assist in achieving the right degree of proportionality under all the circumstances of this case.

Prior to delineating my sentence and the conditions therein, I want to make a comment about the state of the correctional facilities in the Province of Ontario.

Recently, on August 12, 2024, I attended the Maplehurst Correctional Complex and received a tour of the facility. The jail is chronically overpopulated and understaffed. I have received numerous lockdown reports since being appointed to the bench indicating large amounts of lockdowns and concurrently many triple bunking assignments.

On the date that I attended, the jail was more than 300 inmates over capacity. During my visit to one of the units, I learned that the capacity for the unit was 190 inmates, and that there were 287 in custody that day. There were only two inmates who were not locked down and triple bunked, the cleaners of the unit. As a democracy and a nation that aspires to treat its most vulnerable humanely, the visit was an eye opener to say the least.

I daresay that the conditions in the penitentiary are also very difficult, but perhaps in a slightly different way.

In considering my sentence, I mused aloud about what kind of person young Mr. Kandola would be upon emerging from custody. Part of the job of the court, in my estimation, is to try and strike the balance between incarceration when necessary to separate dangerous individuals from society, and more lenient sentences which do not include actual incarceration.

I perceive my job to include efforts to protect the safety of the community. Given that I do not find that the defendant is a danger to the community at present, the only way that he may in the future become a danger, in this court's view, is if he is incarcerated with dangerous individuals and subjected to conditions which are akin to a powder keg needing only a match to explode.

A conditional sentence followed by probation, in the view of this court, in this particular case, despite its extreme seriousness and tragedy, allows the proper balance and proportionality.

I emphasize that my heart goes out to the Jagpal family. No sentence that I could ever render could remedy the loss of bringing back Ms. Jagpal.

However, it is this court's judgment that the best sentence for all involved is the one that I am about to impose.

Therefore, Mr. Kandola will be sentenced to a conditional sentence of imprisonment lasting two years less one day. He will be subject to the statutory conditions and will serve the totality of his conditional sentence on house arrest, with exceptions to be discussed.

As part of the conditional sentence, he will perform 50 hours of community service work with an emphasis on the deleterious effects of criminal driving conduct. This will be done within the first 18 months of the conditional sentence. He will be allowed out for four hours on either Saturday or Sunday to acquire the necessities of life. Another exception will be for medical emergencies involving himself or a direct family member. He will also be able to travel to, from, and while at pre-scheduled medical or dental appointments, legal appointments, and anything which will allow him to comply with the conditions of this order.

He will take counselling as directed by his supervisor and sign any releases in order that his supervisor be able to monitor his attendance and progress.

He will not be found in the driver's seat of any motor vehicle.

After the expiration of the conditional sentence, Mr. Kandola will be placed on probation for a period of 30 months or 2 and a half years. He will be subject to the ordinary statutory conditions. He will report within two business days of the expiration of his conditional sentence, either in person or by telephone, to a probation officer and thereafter, as directed, in order to assist in his supervision.

During the first year of the probation order, he will be subject to a curfew. He will be in his place of residence between the hours of 10:00 p.m. and 6:00 a.m., unless there is a medical emergency involving himself or a direct family member, or if he is out with one of his parents and has the permission of his probation officer.

He will continue to take counselling as directed by his probation officer and sign releases in order that the probation officer can monitor his attendance and participation in any program deemed appropriate.

During the last one and a half years of probation, he will take counselling as directed by his probation officer if it is deemed appropriate.

For the duration of the probation period, he will not be found in the driver's seat of any motor vehicle. There will be a driving prohibition of five years. He will not drive anywhere in Canada for this period of time.

There will also be a DNA order as dangerous driving causing death as stated earlier is a secondary designated offence. The victim fine surcharge will be imposed in the circumstance, and the defendant will have six months to pay.

FORM 3

ELECTRONIC Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Nicole Hyatt, certify that this document is a true and accurate transcript of the recording of R. v. Inderdeep Kandola in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3111_107_20240829_083329__30_BERNSTST.dcr, which has been certified in Form 1.

November 27, 2024 (Date) (Signature of Authorized Person(s))

Nicole Hyatt ACT ID: 5969654507 Ontario, Canada

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceedings that is identified in the certificate.