ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 034/13
DATE: 2014‑08‑06

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

JASVIR SINGH and SUKHWINDER SINGH
Respondents

P. Zambonini, for the Crown

W. Fox for the Respondent Jasvir Singh

B. Hundal for the Respondent Sukhwinder Singh

HEARD: May 12‑15, 21, 29, 2014

Croll J.

REASONS FOR JUDGMENT

Introduction

[1] On March 6, 2011, there was a tragic fire at a home at 73 Humber College Boulevard in Toronto. One of the occupants of the home, Karnail Singh Dhaliwal, died in the fire and another, Harbir Singh Bhinder, was badly injured. Two other occupants, Mandeep Sidhu and Rajesh Bassi, were awoken while sleeping and forced to run through the fire to escape.

[2] Jasvir and Sukhwinder Singh owned 73 Humber College Boulevard on March 6, 2011. It is the Crown’s position that the Singhs knowingly operated 73 Humber College Boulevard as a rooming house in an unsafe manner, despite explicit warning and direction from the Toronto Fire Service that the home could not be operated as a rooming house without substantial changes being made to bring the home into compliance with the Fire Code, O. Reg. 213/07. The Crown alleges that the fire occurred shortly after Mr. and Mrs. Singh received this direction from the Toronto Fire Service.

[3] As a result, Jasvir Singh and Sukhwinder Singh are charged with criminal negligence causing death by failing to take adequate safety precautions; criminal negligence causing bodily harm; and six counts of committing mischief by wilfully rendering property dangerous by failing to take adequate safety precautions. These offences are alleged to have occurred between October 29, 2010, and March 6, 2011.

[4] The six counts of mischief refer to the danger caused to the lives of Mr. Dhaliwal (count 3); Mr. Bhinder (count 4); Ms. Sidhu (count 5); Mr. Bassi (count 6); Crystal Kazoe (count 7); and Kester Kazoe (count 8), respectively. Crystal Kazoe and Kester Kazoe were the basement tenants in the home. At the conclusion of the Crown’s case, the defence sought a directed verdict with respect to counts 7 and 8. The motion was granted and Jasvir Singh and Sukhwinder Singh were found not guilty of counts 7 and 8.

Background Facts

[5] 73 Humber College Boulevard is a two‑story detached home, located close to the north campus of Humber College in the City of Toronto. On October 29, 2010, in response to a referral from the Municipal Licensing Standards of the City of Toronto, Inspector Karen Borne of the Toronto Fire Service attended at the property. The Singhs were not present at that time, but Inspector Borne was allowed entry by Amarit Singh, unrelated to the accused, who identified himself as a renter.

[6] Inspector Borne went through the residence and made a number of observations. There were three bedrooms on the second floor, each door labeled respectively #1, #2 and #3. All three bedroom doors had key lock passages. Bedrooms #1 and #2 were locked on October 29, but Inspector Borne was allowed entry into bedroom #3 by the two males who shared that room, Hargurgid Singh and Gurpeeh Singh, again unrelated to the accused. There was also a kitchen on the second floor, in which there was a refrigerator as well as a plug‑in hot plate and oven sitting on the wood floor.

[7] On the first floor of the home was a kitchen with two refrigerators, two stoves and a microwave oven. There was also a large room at the rear of the first floor of the house, in which four mattresses were found on the floor. Inspector Borne was told that six students from nearby Humber College shared this room, and on that visit, she met four of those six students. There was an additional room at the back of the main floor that was locked on October 29, as was the door to the basement. As a result, Inspector Borne was unable to gain entry to that level.

[8] After going through those parts of the home that were accessible on October 29, 2010, Inspector Borne knew that there were violations under Part 9 of the Fire Code, which deals with retrofits, that is, bringing existing buildings up to current minimum life safety standards. However, Inspector Borne was unsure as to what specific provisions of Part 9 governed the home. On that first visit, she was unable to determine if 73 Humber College Boulevard was being used as a rooming house, which is governed by s. 9.3 of the Fire Code, or if it was being used as a dwelling house in combination with boarding, lodging or rooming for two, three or four people, which is governed by s. 9.5.

[9] There was a sign on the front lawn advertising rooms for rent with a phone number. Inspector Borne called this number and spoke with Jasvir Singh. They set up a meeting at 73 Humber College Boulevard for November 1, 2010. In that phone conversation, Inspector Borne told Mr. Singh that on her next visit she would need access to all rooms; that a working smoke alarm was needed on all floors; and that the kitchen on the second floor was not allowed under any circumstances.

[10] Inspector Borne met Jasvir and Sukhwinder Singh at the home on November 1, 2010. By that time, all cooking appliances had been removed from the second floor kitchen, although there was still a refrigerator in the room along with a table with food on it. Bedroom #1 was accessible to Inspector Borne. Mr. Singh stated that he rented that room to one person for $375 per month. There was no smoke alarm in the room and the door was not in compliance with Fire Code regulations.

[11] Bedroom #2 contained two single beds, and Mr. Singh stated that he rented that room to two students, who each paid $300 per month. It also lacked a smoke alarm and the proper fire‑resistant door.

[12] Bedroom #3, which Inspector Borne had entered on her previous visit, contained one double bed. Mr. Singh advised that he rented this room to two students, and again, each paid $300 per month. This room also lacked a smoke alarm and the proper fire‑resistant door.

[13] There was a new smoke alarm on the ceiling of the second floor, but the battery had been inserted backwards. Inspector Borne corrected this and determined that the smoke alarm was operating properly.

[14] There were also fire violations on the first floor, although on November 1, 2010, Inspector Borne still was not granted access to the large room at the back. The door for entry to this room was blocked by furniture, and Mr. Singh told Inspector Borne that it was rented to one person for $375 per month. In addition, Mr. Singh did not have keys to the basement on November 1, 2010, although he advised Inspector Borne that it was a single contained apartment, with a kitchen, bedroom and bathroom.

[15] Given that she was advised that the basement was a self‑contained dwelling unit, Inspector Borne determined that 73 Humber College Boulevard was governed by s. 9.5 of the Fire Code, which regulates buildings that have one or two dwelling units in combination with boarding, lodging or rooming accommodation for two, three or four people, excluding the operator’s residence. She testified that the requirements of s. 9.5 are less stringent that those of s. 9.3, which regulates rooming houses.

[16] Consequently, Inspector Borne issued a Fire Services – Notice of Violation dated November 1, 2010. This Notice set out five specific sections of the Fire Code with which there was non‑compliance, and detailed what was required in order to bring the house up to code. It cited nine doors throughout the home that were not fire‑safety compliant; the separation required between the first and second floor that was not safety compliant; the requirement for interconnected smoke alarms and a pull system; the requirement for smoke alarms in each bedroom; and the requirement for a carbon monoxide detector on each floor. The Notice of Violation was mailed to each of Jasvir and Sukhwinder Singh and presented to Mr. Singh in person on the next visit, November 3, 2010.

[17] Only Mr. Singh was in attendance on November 3, 2010. He and Inspector Borne again walked through the home and Inspector Borne pointed out what was required to make the home compliant. On this visit, Inspector Borne had access to the basement and confirmed that it was a single apartment; however, she observed Fire Code violations in the basement level. As a result, Inspector Borne amended the November 1, 2010 Notice of Violation. The amended Notice included the requirement for an additional door to separate the furnace/washer and dryer from the basement kitchen; a fire separation in the walls and ceiling in the furnace/washer and dryer area; and a second exit for the basement level. The amended Notice of Violation, dated November 3, 2010, was mailed separately to Mr. and Mrs. Singh on November 4, 2010.

[18] Inspector Borne’s fourth visit to 73 Humber College Boulevard occurred one week later, on November 10, 2010. Both Mr. and Mrs. Singh were in attendance. At that time, Inspector Borne observed that the drywalling in the basement was about 80% complete, and that the framing was in place for the separate basement exit. There was also some progress on the fire separation required between the first and second floors. However, there was no correction to the nine doors that needed to be retrofitted; the interconnected smoke alarm and pull system had not been installed; and there were no smoke alarms in each bedroom.

[19] Inspector Borne again reviewed the series of violations with the Singhs, and advised them that the corrective work must be done. Mr. and Mrs. Singh called Inspector Borne on November 16, and requested a further inspection on November 18, 2010. At that time, Inspector Borne observed that the necessary side entrance and enclosure on the first floor was in place, but the door did not comply with the fire regulations. There were no longer students living on the first floor, and the Singhs advised that the students living on the second floor would be out by the end of November. According to Inspector Borne, she had a conversation with Mr. and Mrs. Singh about operating the first and second floors as one dwelling unit, and the basement continuing as a separate dwelling unit. In those circumstances, she advised that the house would be governed by a different section of the Fire Code than if the first and second floors were rented to multiple people in separate rental rooms.

[20] The Singhs called Inspector Borne again on November 26, 2010, and requested another meeting at the home on December 1, 2010. At that meeting, they advised Inspector Borne that the house would be two dwelling units—the basement being one unit, and the first and second floors being the second unit. Inspector Borne testified that the Singhs told her that they were proceeding this way because it was too costly to undertake the retrofit work that would otherwise be required.

[21] Given this new configuration, Inspector Borne issue a third Notice of Violation, dated December 1, 2010, and mailed to each of Mr. and Mrs. Singh on December 2, 2010. This amended Notice set out the need for one fire door from the first floor kitchen to the basement; an Electrical Safety Authority Certificate for an upper and lower inspection; and the removal of all locks from the bedroom doors on the first and second floors.

[22] Mr. Singh called Inspector Borne on January 25, 2011, and advised that he was in receipt of the Electrical Safety Authority Certificate and that all the other requirements had been met. On February 3, 2011, Inspector Borne conducted her last inspection of 73 Humber College Boulevard. Mr. and Mrs. Singh were present. Inspector Borne received the Electrical Safety Authority Certificate, confirmed that the door between the basement and the first floor door was a fire‑resistant door and observed that all the locks had been removed from the bedroom doors. As a result, all violations under s. 9.8 of the Fire Code were now corrected. Inspector Borne approved the house and closed her file.

[23] The fatal fire at 73 Humber College Boulevard occurred some five weeks later, on March 6, 2011. At the time of the fire, Karnail Singh Dhaliwal, Mandeep Sidhu and Rajesh Bassi were upstairs tenants. Harbir Bhinder had been sharing a room with Mr. Dhaliwal for some three weeks prior to the fire, and Ms. Sidhu and Mr. Bassi had their own rooms. As stated, Mr. Dhaliwal died of smoke inhalation from the fire and there is no issue that the ignition source of the fire was an unattended energized cooking appliance in his room.

[24] There is, as well, no issue with respect to the injuries suffered by Mr. Bhinder. He sustained burns and smoke inhalation injuries and was hospitalized for four days. It is admitted that Mr. Bhinder suffered bodily harm as a result of the fire.

[25] Mr. Bassi and Ms. Sidhu described their escape from the fire and the disruption to their lives after losing their possessions in the fire.

[26] Neither Mr. Bassi nor Ms. Sidhu heard any warning about the fire from a smoke alarm.

[27] Mr. Bassi described the tenancy arrangement: he rented his room individually, paid cash each month, had a separate lock on his door and had little interaction with other tenants.

[28] Ms. Sidhu gave similar evidence: she rented her room individually, paid rent in cash, and did not socialize with the other tenants.

[29] Both Mr. Bassi and Ms. Sidhu testified that Mr. Dhaliwal frequently drank heavily and cooked in his room on a portable stove.

[30] Both also had refrigerators in their individual rooms.

[31] Evidence was also given that bedroom doors had locks.

[32] A document dated February 5, 2011 was introduced which purported to state that the upstairs tenants were living together as a family.

[33] Mr. Bassi denied ever seeing the document before the preliminary inquiry.

[34] Ms. Sidhu testified that the document was a forgery.

[35] Mr. Bhinder gave evidence about the events during the fire.

[36] Fire investigator Dan Newburn testified that the fire was caused by an unattended hot plate and that bedroom doors contained keyed locks.

[37] Mr. Newburn also testified that smoke alarms recovered at the scene lacked batteries.

[38] Mr. Newburn explained the nature of the smoke produced by the fire.

[39] Fire protection engineer Christine Mak provided expert evidence regarding Fire Code compliance and computer fire modelling.

[40] She concluded that the home contained boarding or rooming accommodation governed by s. 9.5 of the Fire Code and identified numerous safety violations.

[41] Mr. Singh testified and called Crystal George as a witness.

[42] Ms. George provided evidence concerning smoke alarms and the tenants’ behaviour.

[43] She also testified regarding the “family” letter.

[44] She stated that renovation work had been done in the house.

[45] The court ultimately rejected much of Ms. George’s evidence as unreliable.

[46] Mr. Singh described his personal background and financial circumstances.

[47] He testified that the property was purchased as an investment and that renting to individual students generated substantial rental income.

[48] Mr. Singh stated that he removed cooking appliances from upstairs when instructed by the fire inspector.

[49] He testified that he removed locks from bedroom doors but that tenants later reinstalled them.

[50] Mr. Singh acknowledged he knew expensive renovations would be required if individual tenants continued to rent separate rooms.

[51] Rent for March 2011 had not yet been paid at the time of the fire.

[52] Mr. Singh denied knowledge of locks and cooking appliances being present shortly before the fire.

[53] He also denied knowing that Mr. Dhaliwal had a drinking problem.

Classification of the Property under the Fire Code

[54] Section 9.5 of the Fire Code applies to buildings containing dwelling units combined with boarding or rooming accommodation for multiple persons.

[55] Section 9.8 applies to houses containing two existing dwelling units.

[56] The definition of “dwelling unit” under each section requires occupants to function as a housekeeping unit or family‑like group.

[57] Courts assessing this question examine the factual living arrangements.

[58] In this case, the upstairs tenants lived separately, paid rent individually, cooked separately, and had little interaction.

[59] Bedroom locks further indicated separate living arrangements.

[60] The only suggestion of collective living was the document allegedly signed by Ms. Sidhu.

[61] The court rejected the authenticity of that document and found it had been fabricated by Mr. Singh.

[62] The court also rejected Mr. Singh’s evidence that locks were absent shortly before the fire.

[63] The court concluded that the upstairs tenants were not living as a family unit and that the property was therefore governed by s. 9.5 of the Fire Code.

Jasvir Singh

Count 1: Criminal Negligence Causing Death

[64] Criminal negligence causing death lies at the high end of moral blameworthiness.

[65] The Crown must prove a marked and substantial departure from the reasonable standard of care.

[66] Violation of safety standards such as the Fire Code is relevant to assessing the standard of care.

[67] The mental element is assessed on a modified objective standard.

[68] An accused cannot escape liability simply by claiming he was not thinking about the risks.

[69] For criminal negligence causing death, the Crown must show a foreseeable risk of bodily harm.

[70] Mr. Singh was repeatedly informed of his Fire Code obligations by Inspector Borne and understood the requirements.

[71] The defence argued that Mr. Singh partially complied with safety directives.

[72] The court rejected this submission, finding he failed to implement the necessary safety measures required to rent to individual tenants.

[73] Mr. Singh knowingly failed to comply fully with Fire Code requirements and fabricated a document to avoid costly renovations.

[74] This conduct constituted a marked and substantial departure from the reasonable standard of care.

[75] The next issue was whether his conduct caused the death of Mr. Dhaliwal.

[76] The law of causation requires both factual and legal causation.

[77] The absence of required smoke alarms deprived tenants of early warning and was a factual cause of the death.

[78] Although Mr. Dhaliwal’s actions contributed to the fire, contributory negligence does not negate criminal liability.

[79] The court considered whether Mr. Singh’s negligence was the legal cause of death.

[80] The Crown argued that Fire Code compliance would likely have prevented the fatal outcome.

[81] The defence argued intervening actions broke the chain of causation.

[82] The court applied the Supreme Court’s decision in R. v. Maybin concerning intervening acts.

[83] Reasonable foreseeability and independence of intervening acts are relevant but not determinative.

[84] Reasonably foreseeable intervening acts generally do not break the chain of causation.

[85] The general nature of harm must be foreseeable.

[86] The court also considered whether intervening acts were sufficiently independent.

[87] The court concluded Mr. Singh’s negligence remained a significant contributing cause of death.

[88] Mr. Dhaliwal’s conduct did not break the chain of causation.

[89] The absence of proper fire safety protections created foreseeable risk of serious injury or death.

[90] Mr. Singh knew Mr. Dhaliwal drank heavily and cooked in his room.

[91] The court found beyond a reasonable doubt that Mr. Singh’s conduct caused the death.

[92] Mr. Singh is found guilty of count 1.

Count 2: Criminal Negligence Causing Bodily Harm

[93] Mr. Singh was also charged with criminal negligence causing bodily harm to Mr. Bhinder.

[94] For the same reasons, Mr. Singh is found guilty of count 2.

Counts 3 to 6: Mischief

[95] These counts alleged that Mr. Singh rendered the property dangerous and endangered the lives of the tenants.

[96] Mischief includes rendering property dangerous.

[97] “Wilfully” includes reckless disregard for the consequences.

[98] The Crown argued that the unsafe rooming house operation rendered the property dangerous.

[99] The defence argued partial compliance negated wilfulness.

[100] The court rejected this argument and found the steps taken were only partial measures.

[101] Evidence showed smoke alarms required by the Fire Code were not installed.

[102] The property had been rendered dangerous within the meaning of the Criminal Code.

[103] Mr. Singh knowingly created these dangerous conditions.

[104] Mr. Singh is found guilty of counts 3, 4, 5 and 6.

Sukhwinder Singh

[105] Mrs. Singh faced the same charges as her husband.

[106] She attended some inspections and knew of safety issues.

[107] However, there was no evidence she knew of the conditions after the final inspection.

[108] There was insufficient evidence to conclude she was wilfully blind or reckless.

[109] The court was not satisfied beyond a reasonable doubt that she committed the offences.

[110] Mrs. Singh is found not guilty of all counts.

Croll J.

Released: August 6, 2014