COURT FILE AND PARTIES

COURT FILE NO.: 13-50000047-0000

DATE: 20141215

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASVIR SINGH and SUKHWINDER SINGH

Defendants

P. Zambonini, for the Crown

W. Fox, for the Defendant Jasvir Singh

B. Hundal, for the Defendant Sukhwinder Singh

HEARD: November 3, 2014

SENTENCE IMPOSED: november 28, 2014

CROLL J.

REASONS FOR SENTENCING

[1] Jasvir Singh has been found guilty of (1) criminal negligence causing the death of Karnail Singh Dhaliwal, (2) criminal negligence causing injury to Harbir Singh Bhinder, (3) mischief endangering the life of Karnail Singh Dhaliwal, (4) mischief endangering the life of Harbir Singh Bhinder, (5) mischief endangering the life of Mandeep Sidhu and (6) mischief endangering the life of Rajesh Bassi. These offences occurred between October 29, 2010 and March 6, 2011.

Circumstances of the Offence

[2] The detailed circumstances of what occurred are set out in reasons delivered and released on August 6, 2014 (R. v. Singh, 2014 ONSC 4564, [2014] O.J. No. 3717 [Singh]). In short, on March 6, 2011, there was a tragic fire at a home at 73 Humber College Boulevard in Toronto. The home was owned by Mr. Singh and his wife Sukhwinder Singh. 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.

[3] Mr. Singh was aware of the Fire Code, O. Reg. 213/07 [Fire Code] requirements that govern a home with individual tenants, commonly known as a rooming house. He had been visited 6 times between October 2010 and February 2011 by Inspector Karen Borne of the Toronto Fire Service who had carefully explained to him what he had to do in order to bring the home into compliance with the Fire Code. Inspector Borne’s requirements were made on the basis 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. This was the appropriate classification as a married couple occupied the basement as one dwelling unit.

[4] Regrettably, Mr. Singh did not adapt the home as required by the Fire Code. Rather, he misled Inspector Borne at her final inspection on February 3, 2011 into believing that the first and second floors would be rented to a single family, and that the basement tenants would remain the same, that is, rented to a couple. Mr. Singh retrofit the house so that it was in compliance with the requirements for that type of housing. Those provisions are set out in s. 9.8 of the Fire Code, and are less stringent than the provisions for a rooming house which rents to individual, unrelated persons. It was on the basis that the upstairs and main floors would operate as one dwelling unit that Inspector Borne approved the house and closed her file.

[5] The fatal fire at 73 Humber College Boulevard occurred on March 6, 2011, some five weeks after the final inspection by Inspector Borne. At the time of the fire, the first and second floors were not rented to a single family. Rather, Karnail Singh Dhaliwal, Mandeep Sidhu and Rajesh Bassi, all unrelated, 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.

[6] Mr. Dhaliwal died of smoke inhalation from the fire. The ignition source of the fire was an unattended energized cooking appliance in his room, and Mr. Dhaliwal’s blood alcohol concentration was 371 mg of alcohol per 100 ml of blood sometime prior to his death. Stated more directly, Mr. Dhaliwal was drunk and the fire started from his hot plate.

[7] Mr. Bhinder sustained 2% partial thickness burns to his face and both hands, and had a Grade 1 smoke inhalation injury for which he was intubated and resuscitated. He was in the hospital for four days.

[8] Mandeep Sidhu and Rajesh Bassi, the two other upstairs tenants, were able to escape the fire.

[9] Given all the circumstances, I found that the combined effect of Mr. Singh’s decisions to rent to individual tenants and not to install all the retrofitting as required by s. 9.5 of the Fire Code, as well as his failure to take effective measures to prevent the tenant Mr. Dhaliwal from cooking in his room, amounted to a marked and substantial departure from what a reasonably prudent person would do in the same circumstances, and that his conduct amounted to a wanton or reckless disregard for the lives or safety of other persons. It was this conduct that caused the death of Mr. Dhaliwal, the serious injuries to Mr. Bhinder, and the mischief that created unsafe conditions that caused actual danger to all tenants.

Circumstances of the Offender

[10] Mr. Singh is 42 years-old. He came to Canada in 1989, and became a Canadian citizen in 2000. He has no criminal record. He began his life in Canada working on a farm, and has developed a successful business in supplying farm labor. His counsel describes his background as a “typical immigrant success story.” He is married with 3 children, ages 15, 13 and 8. His wife, who was charged along with Mr. Singh but found not guilty of all counts, is supportive and continues to attend court with her husband.

Victim Impact Statements

[11] There was no victim impact statement filed on behalf of Mr. Dhaliwal, the deceased. It appears, sadly, that there is no person in Canada deeply impacted by his death. Mr. Bhinder apparently lives a transient lifestyle, and was not located to provide a victim impact statement, although he did testify at trial. However, both Ms. Sidhu and Mr. Bassi attended the sentencing hearing and read very moving victim impact statements to the court. I also recall their evidence at trial, where they each gave an account of their terror that evening, being treated for smoke inhalation immediately after the fire and the disruption to their lives after losing their possessions in the fire.

[12] In her statement, Ms. Sidhu described how her escape from the fire has traumatized her, and how her close call with tragedy has tainted even the happiest occasions in her life, as she constantly imagines what would have happened if she had not survived the fire. She was unable to complete her studies at Humber College, and lost all of her identification. She provided a statement indicating that she had suffered a financial loss of $26,000. This loss includes lost employment income of $6,800 of her father in India, who spent considerable time and travel trying to recover Ms. Sidhu’s lost identification.

[13] Mr. Bassi also gave a heartfelt statement as to the impact of this offence on the security of his person. Mr. Bassi, a new immigrant to Canada whose life was consumed by work and school, lost all his possessions and personal documents in the fire, including critical documentation relating to his right to be in Canada. At the time of the fire, he was essentially left at the side of the road on a cold winter night, with no one to help him reestablish his life in Canada. Ultimately, he was assisted by the Red Cross. Mr. Bassi’s statement indicated that it took some three months for his body to return to normal after the fire, but that the psychological damage continues. He too provided a breakdown of the out-of-pocket expenses he incurred as a result of the fire, which total $6,900.

Crown Position

[14] The Crown seeks a sentence of 3-5 years; the defence did not submit an appropriate range, but emphasizes Mr. Singh’s personal circumstances and lack of criminal antecedents.

Case Law

[15] The majority of the case law for the offence of criminal negligence causing death relates to impaired or reckless driving. Neither counsel were able to provide me with authority that more closely relates to this scenario. While sentencing is always case specific, the Crown has provided a number of cases that suggest a range of low penitentiary terms to a sentence as high as life imprisonment for repeat, especially reckless conduct. (see R. v. Fretz, 2008 ONCA 507, [2008] O.J. No. 2502; R. v. Perry, [1987] O.J. No. 678 (Ont. C.A.); R. v. Davies, 2008 ONCA 209, [2008] O.J. No. 1128; R. v. Wood, 2005 13779 (ON CA), [2005] O.J. No. 1611 (Ont. C.A.); R. v. Smith, 2012 ONSC 3089, [2012] O.J. No. 2315).

[16] In a recent trilogy of decisions, the Ontario Court of Appeal considered how to balance sentencing objectives when dealing with first offenders, like Mr. Singh, whose criminally negligent actions resulted in death: R. v. Nusrat, 2009 ONCA 31, [2009] O.J. No. 120 [Nusrat], R. v. Multani, 2010 ONCA 305, [2010] O.J. No. 1748 and R. v. Badhwar, 2011 ONCA 266, [2011] O.J. No. 1541 [Badhwar].

[17] Those decisions all arose out of a single incident wherein the three accused were drag-racing on the highway. In the course of the race, one of the drivers ‘clipped’ a transport truck driven by the victim who veered into a ditch and was killed. The Court found that while the death was obviously not intended, the intentional risk-taking by the three accused and the serious consequences of their actions demanded that the gravity of the offence (and its consequences) be the paramount consideration in sentencing. At paras. 66-67 in Nusrat the Court said:

¶66 While the respondent did not intend to cause Mr. Virgoe's death, he deliberately engaged in egregious racing behaviour over an extended distance on a busy highway. The potential for tragedy was high, if not inevitable. In these circumstances, I agree with the comments of Doherty J.A. in R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at paras. 93-94:

[F]actors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed.

In some circumstances, one side of the proportionality inquiry will figure more prominently in the ultimate disposition than the other.

¶67 Where the offender's conduct results in serious personal injury or death, the gravity of the offence must be given predominance in determining the appropriate sentence.

[18] The appropriate sentence for all three accused in that case was 30 months imprisonment, notwithstanding that they were youthful first offenders. It is noteworthy that Justice Moldaver in Badhwar, while upholding the sentence, described it as “lenient”.

[19] In this case, Mr. Singh deliberately chose to ignore the directives from Inspector Borne. Further, he deliberately deceived her by indicating that the main and upper floors would be rented to a single family, when this was never his intention. He knew what he had to do to rent safely to multiple tenants, but did not take the necessary steps because it was too expensive to do so. Simply stated, Mr. Singh’s greed was the impetus for his reckless conduct.

Mitigating Factors

[20] Mr. Singh has no criminal record, a successful business and the support of his family and the community.

[21] The defence also submits that the partial retrofit Mr. Singh completed, in particular with respect to the basement apartment, and his reduction of tenants from an original high of about 20 people to 6, constitute mitigating factors. With respect, I do not agree. The Fire Code required Mr. Singh to take action to be in compliance with its requirements. His actions of partially retrofitting and reducing the number of tenants cannot, in turn, be rewarded by characterizing them as a mitigating factor on sentence. That which is statutorily required cannot count as a mitigating factor.

Aggravating Factors

[22] As stated, Mr. Singh knew what had to be done to comply with s. 9.5 of the Fire Code, but did not do it because of the expense. He simply chose not to spend the necessary money. His deception of Inspector Borne was planned and deliberate, and extended from December 1, 2010, when he first told her that he intended to rent the house as two dwelling units, until her final inspection in February 2011.

[23] At trial, Mr. Singh relied upon a document purportedly signed by Ms. Sidhu, to establish that the upstairs tenants were living together as a collective, and thus, that the house was in compliance with the relevant Fire Code provisions. For reasons set out in paragraph 60 of my trial decision, I rejected the formation and legitimacy of that document. Rather, I determined there was no affinity or sharing of interests or lifestyles among Mr. Dhaliwal, Ms. Sidhu and Mr. Bassi. Contrary to what was set out in the document, the three tenants were not a family and not functioning as one unit; they were strangers, renting separate rooms and not acting or living as a collective or in a cohesive manner (see Singh).

[24] Section 725(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 provides that the sentencing court “may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” In my view, this fabricated letter is the type of conduct contemplated by s. 725(1)(c). By propounding this letter, Mr. Singh was, in effect, continuing the deception that began back in December 2010, when he first told Inspector Borne that he was going to rent the first and second floors to a single family as one dwelling unit. Though an accused lying in evidence should not be treated as an aggravating factor (see R. v. Kozy, 1990 2625 (ON CA), [1990] O.J. No. 1586 (C.A.)), this fabricated document can be distinguished from lying in evidence or from the conduct of the defence, and is an aggravating factor to be considered on sentence.

Contributory Negligence

[25] Finally, this case also raises the issue of contributory negligence as a factor in sentencing. As stated by Watt J.A. in R. v. K. L., 2009 ONCA 141, [2009] O.J. No. 577 at para. 18:

The criminal law does not recognize contributory negligence nor is it equipped with any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after the required standard of causation has been established: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. at para. 4.

[26] R. v. Cluney, 2013 NLCA 46, [2013] N.J. No. 256 [Cluney], relied upon by the defence, was a case of impaired driving causing death. The victim/passenger grabbed the steering wheel and the accused driver lost control of the car, and collided with another car, which caused the death of the passenger. In that case, the Newfoundland and Labrador Court of Appeal held that the trial judge did not err in finding that the passenger’s conduct diminished the accused’s moral blameworthiness and was a mitigating factor on sentence.

[27] As was the case in Cluney, the defence submits that any sentence imposed on Mr. Singh should be moderated to account for the contributory negligence of Mr. Dhaliwal. As stated, it was Mr. Dhaliwal who actually caused the fire, because he left a hot plate on while he fell asleep, intoxicated, and the hotplate ignited his blanket. Further, the defence submits that Mr. Dhaliwal contributed to his death because he did not leave the fire immediately, but engaged in ill-fated efforts to extinguish it on his own.

[28] While I accept that contributory negligence can be a mitigating factor on sentence, I do not find that it is mitigating in this case. Mr. Singh knew that he was not in compliance with the requisite Fire Code provisions for the type of housing he was providing. He also knew that Mr. Dhaliwal cooked in his room, and had alcohol problems. Among other things, Inspector Borne had warned Mr. Singh specifically that a tenant could not keep a hotplate in his or her room. In these circumstances, given the totality of Mr. Singh’s knowledge, Mr. Dhaliwal’s conduct does not lessen Mr. Singh’s moral blameworthiness, and is not a mitigating factor on sentence.

[29] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section. Included in these objectives are denunciation; deterrence; rehabilitation; and the promotion of responsibility. While I recognize Mr. Singh’s positive antecedents, and that there is no need for rehabilitation in the conventional sense of lifestyle, educational or employment corrections, it is also the case that he deliberately endangered the lives of his tenants, motivated solely by financial gain. Mr. Singh knew that renovations were necessary to provide a ‘fire safe’ home to individual, unrelated tenants, but chose not to make the renovations because those renovations were too expensive. Instead, he deceived Inspector Borne, prepared the false document, and continued to rent to individual, unrelated tenants, one of whom was killed by the fire and one of whom was badly burned. Given the gravity of the consequences, I am of the view that the sentence imposed should be offence focused.

[30] I reiterate that I acknowledge that Mr. Singh has never been convicted of a criminal offence and has a positive work and family history. This is frequently the situation of an accused in an impaired driving case. However, as stated in R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145 at p. 150:

Members of the public when they exercise their lawful right to use the highways of this province should not live in the fear that they may meet with a driver whose faculties are impaired by alcohol. It is true that many of those convicted of these crimes have never been convicted of other crimes and have good work and family records. It can be said on behalf of all such people that a light sentence would be in their best interests and be the most effective form of rehabilitation. However, it is obvious that such an approach has not gone any length towards solving the problem. In my opinion, these are the very ones who could be deterred by the prospect of a substantial sentence for drinking and driving if caught. General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy has resulted from the driving.

[31] Similarly, members of the public who rent accommodation should not live in fear that their accommodation may not comply with statutory fire safety requirements. This is especially the case in a city like Toronto where rooming houses abound, and there are many residents who are similarly situated to Mr. Dhaliwal, Mr. Bhinder, Ms. Sidhu and Mr. Bassi—residents who need affordable housing and are not in a position to force their landlord to offer safe accommodation.

[32] Any sentence must focus on general deterrence and convey the message that the safety of tenants must be of paramount importance to landlords.

[33] In all the circumstances, I find that a global sentence of 3 years is appropriate. This sentence shall be apportioned as follows:

On count (1): criminal negligence causing the death of Karnail Singh Dhaliwal, 3 years;

On count (2): criminal negligence causing injury to Harbir Singh Bhinder, 2 years less a day, concurrent to count 1;

On count (3): mischief endangering the life of Karnail Singh Dhaliwal, 12 months, concurrent to count 1;

On count (4): mischief endangering the life of Harbir Singh Bhinder, 12 months, concurrent to count 1;

On count (5): mischief endangering the life of Mandeep Sidhu, 12 months concurrent to count 1; and

On count (6): mischief endangering the life of Rajesh Bassi, 12 months, concurrent to count 1.

[34] Finally, Mr. Bassi and Ms. Sidhu have provided statements of the value of items lost in the fire. Section 738(1)(a) of the Criminal Code provides as follows:

738(1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable.

[35] There shall be a free standing restitution order in favour of Rajesh Bassi in the amount of $6,900.

[36] Ms. Sidhu’s statement shows a loss of $26,000 that includes a portion ($6,800) for lost income of her father, due to the time that he had to take off work to help her recover her documentation. I am advised that travel was necessary as Ms. Sidhu lived in various parts of India, being part of an army family. I have considered section 738(1)(a) of the Code and in my view, the lost income of her father is not replacement value of the property she lost in the fire. Rather, it is an ancillary expense incurred as a result of the criminal conduct of Mr. Singh. Accordingly, the amount attributed to her father’s lost income shall be deducted from the amount she has claimed for restitution. There shall be a free standing restitution order in favour of Mandeep Sidhu in the amount of $19,200.

Croll J.

Released: December 15, 2014

COURT FILE NO.: 13-50000047-0000

DATE: 20141215

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JASVIR SINGH and SUKHWINDER SINGH

Defendants

REASONS FOR SENTENCING

CROLL J.

Released: December 15, 2014