COURT FILE NO.: 21319/17 DATE: 2018-07-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Jasvir Singh

Counsel: Mr. Parsons, for the Crown Mr. A. Gold, for the Accused

Heard at Sudbury: July 6, 2018

Reasons for Sentence

A.D. KURKE J.

Facts

[1] On February 9, 2018, Mr. Singh was convicted on a charge of operating a vehicle – a tractor-trailer combination – dangerously, and thereby causing the death of Gary Messenger.

[2] The facts upon which that conviction rests are set out in my Reasons for Judgment (2018 ONSC 386). I will summarize key points here.

[3] On January 11, 2016, two trucks, one a tractor-trailer and the other a tanker, collided on Hwy 11 near Val Gagne, Ontario. The tanker was northbound, the other heading south on a two-lane highway. The collision occurred in the northbound lane. Gary Messenger, the driver of the northbound tanker truck, died from his injuries in the collision. Jasvir Singh, the driver of the southbound truck, is before this court for sentencing.

[4] Two incidents of dangerous operation were borne out by the evidence adduced by the Crown at trial.

[5] Minutes before the accident that took the life of Gary Messenger, the accused passed a line of southbound cars by entering the northbound lane at a rise in the highway, where he caused an oncoming Home Hardware tractor-trailer to take evasive action onto the northbound shoulder. Mr. Singh himself was forced to cut sharply back into the southbound lane just in front of other vehicles.

[6] Traffic on the road included passenger vehicles and trucks. The accused’s truck and trailer required substantial clearance to ensure a clean pass for its 53 feet. This was a particularly chancy manoeuvre given the weather and road conditions, with blowing snow and occasional whiteouts, icy road surfaces, and slower moving passenger vehicles in the southbound lane. The accused’s decision to pass in these circumstances needlessly put at risk the lives and safety of persons in several other vehicles.

[7] Not many minutes after the earlier incident, on the same icy road, still with occasional blowing snow and whiteout conditions, the accused caught up to a pickup truck in the southbound lane and then began to pass it in the northbound lane without hesitating to check the road ahead. This manoeuvre demonstrated the same attitude of mind as the accused’s passing of the southbound cars that had nearly resulted in disaster for the Home Hardware driver and/or the passenger vehicles in the southbound lane minutes before, and was not a momentary lapse in judgment. It was only during the passing of the pickup that the accused saw the oncoming headlights of Gary Messenger’s northbound truck, and he pulled sharply left to take the ditch out of an instinct for self-preservation. Messenger’s truck ploughed into the accused’s truck.

[8] In light of all of the relevant evidence about road and weather conditions and the other circumstances in this case, a reasonable person, especially one driving a vehicle the length and mass of a truck and trailer combination, would have foreseen the risk of such an attempt at passing, and would have avoided the attempt. The accused should at least have paused before passing, to ensure that the road ahead was clear, for a reasonable driver would anticipate that other vehicles could be approaching in the northbound lane, unseen because of poor visibility.

[9] The two incidents together suggest a very dangerous attitude of mind for any driver, let alone a professional truck driver. It was my view that in the context of the accused’s experience with the Home Hardware truck minutes earlier, and the narrow escape in that situation by several persons from potential disaster, the accused’s attempt to pass the pickup truck represented almost a wanton and reckless disregard for the lives and safety of those around him. And indeed, that dangerous manner of driving by the accused cost the life of Gary Messenger.

Presentence report

[10] A presentence report was prepared in this matter. It describes a young man who feels some remorse, and expresses concern about Mr. Messenger’s family.

[11] Mr. Singh has strong family bonds, and although he does not have relatives in Canada, he does have several loyal friends in this country. Mr. Singh engaged in an arranged marriage in 2013. His wife sponsored him to come to Canada in April 2014, and the couple separated in May 2015. They have no children.

[12] The accused graduated from grade 12 in India. He spent time in Australia studying hospitality management, and worked as a chef in Melbourne, in customer service and as a cleaner. In Canada the accused acquired a trucking licence, and drove truck; his employer looked upon him as a hard worker and a dependable person. This opinion is furthered by a letter of his employer, Dalvinder Singh, filed on sentencing. Since the accident, after some part-time work, the accused recently secured full-time employment at BakeMark, working as a delivery driver and in the warehouse. The accused explained that he currently owes money on credit cards and to Revenue Canada.

[13] The accused is a practicing Sikh. In his leisure time, the accused attends temple and works to help the poor. He speaks Punjabi, English, Hindi and Swahili. He has no criminal or driving record.

[14] The accused reports suffering from depression because of his marital problems. He feels guilty about the offence, and sometimes has trouble sleeping. He suffers as well from a heart issue that affects his heart rate and causes breathing problems. Following his arrest on January 12, 2016, Mr. Singh was released on bail January 14, 2016, after a few days in custody.

Victim Impact

[15] Numerous victim impact statements were filed, and some were read aloud. These statements permit the court to view Gary Messenger as more than simply the victim of this offence. His relatives, friends and extended family describe a kind, loving, giving man, with a hearty laugh and beautiful smile, and whose generous nature is missed at family gatherings. His loss has removed an important lynchpin from his family.

[16] Gary was loving and thoughtful of his parents Doris and Don. He drove them around to appointments, and helped them with the maintenance of their cottage. They also describe his attentions and kindnesses to his nieces and nephews. Gary’s older brother Dennis described Gary as a “leadership figure” in the family who was a popular uncle to Dennis’ children. Gary’s sister Susan described the crushing grief she felt at Gary’s loss, particularly given the senselessness of his death. Her husband Peter spoke of Gary as always having a good word about people he knew. Gary’s sister Darlene was close with Gary, and described her uncontrollable grief at his loss.

[17] Gary’s friend Gerry Barron described Gary’s military service and love of the outdoors. He feels that it was unfair for Gary to be cheated out of his “best days to come” by this tragedy. The two were lifelong friends, and it is clear that Gerry will never forget his friend. Peggy Barron was also a lifelong friend of Gary’s, and lives with a “void” in her life. Kevin Goddard described that he has been sentenced to a life sentence of grief for his friend’s death.

[18] Because of Gary Messenger’s death, several members of Gary Messenger’s family and extended family have expressed fear for their own personal safety when they travel, because of trucks on the roads.

Sentencing materials of the accused

[19] A book of materials and other loose documents were filed on behalf of the accused, in large measure consisting of letters of support. These letters from the accused’s mother, his sister, other relatives, friends, citizens of all ages from the accused’s home village, as well as religious and political leaders, and employer, describe a hard-working and kind young man from a good family, whose family offers generous support to needy villagers and their entire community. The accused himself, a fully devoted Sikh, has been a generous benefactor towards others as well from a very young age, and has sent money to contribute to the well-being of his family and the village.

[20] The breakup of the accused’s marriage and the charge before the court have hit the accused, his family, and the village very hard. The letters describe the accused and his family as facing emotional, medical and financial hardships, but also being very concerned for the family of Gary Messenger. The accused and his family have expressed great sorrow for the family and friends of Gary Messenger.

Positions of the parties

[21] The Crown seeks a sentence of incarceration for four years and a driving prohibition of seven years, along with a mandatory ten-year s. 109 order and an order for DNA sampling. On behalf of the accused, counsel proposes 12-18 months custody and a 12-month driving prohibition. He opposes the imposition of an order for DNA.

Law

[22] The sentence imposed on an offender must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1, R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 39.

[23] The range of sentence for the offence of dangerous operation of a motor vehicle causing death or bodily harm is very broad: R. v. Phillips, 2005 ONCA 1043, [2005] O.J. No. 155 (C.A.), at para. 21. It is so broad, in fact, that it may be counter-productive to speak of a “range” of sentence for this type of offence: R. v. Noganosh, [2017] O.J. No. 67 (Sup. Ct.), at para. 71. A court may look to such things as street racing, the presence of alcohol or drugs, or multiple convictions as meriting a more severe penalty for offences like this one, while less blameworthy conduct can attract lighter dispositions: see R. v. Laverdure, [2017] O.J. No. 2592, at para. 13 (Sup. Ct.).

[24] In cases of dangerous driving where death or bodily harm is caused, the primary sentencing goals must be denunciation and general deterrence: see R. v. Belanger, 2009 ONCA 867, at para. 5; R. v. Nusrat, 2009 ONCA 31, [2009] O.J. No. 120 (C.A.), at para. 76; R. v. Kippax, [2010] O.J. No. 2021 (Sup. Ct.), at para. 30.

[25] In sentencing for dangerous driving that results in death, the fact that the offender deliberately engaged in risky behaviour serves as an aggravating factor. In R. v. Currie, [2004] O.J. No. 5196 (C.A.), at para. 5, the Ontario Court of Appeal noted:

The aggravating factor here was the trial judge’s finding that the appellant’s conduct was deliberate in the sense that he deliberately took a very significant and totally unnecessary risk that resulted in the death of one of his passengers. The trial judge properly regarded this as an aggravating factor requiring a sentence that stressed general deterrence and denunciation.

[26] Another aggravating factor is that the vehicle that was being driven dangerously was a tractor-trailer. The great size of such vehicles makes them lethal weapons when they are driven dangerously, as their drivers are aware. Further, the length of such vehicles makes hasty driving manoeuvres, such as quick passes of lines of vehicles on two-lane highways, potentially lethal for all in proximity to them if such passes are not carried out with due care and attention, let alone when they are performed dangerously. Moreover, such vehicles are omnipresent on Ontario’s major arterial roads, such as Highway 11 in northern Ontario, so the need to deter truckers from driving dangerously is amplified, in order to reduce the possibility of serious injury or death to the wider public: R. v. Rij, [1993] O.J. No. 4381 (Gen. Div.), at paras. 5-6; R. v. Theriault, [2014] B.C.J. No. 1356 (Prov. Ct.), at para. 8.

[27] The accused, who is a permanent resident of Canada, will be deemed “inadmissible” to Canada by reason of the 14-year maximum sentence that dangerous operation causing death carries, pursuant to s. 36 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Whatever sentence is imposed will not affect the possibility of his deportation. Accordingly, I will not discuss that issue further in these reasons: R. v. McKenzie, [2017] O.J. No. 75 (C.A.), at paras. 31-32.

Analysis

[28] In this case, the accused has no criminal record or driving record. He is a relatively young man of 31 years. He appears to have had gainful employment in India, Australia, and Canada. The accused is a Sikh, with deeply held religious views, who has devoted much time and energy to helping others, especially back in his village of origin. He has a strong base of support in his village, and a loving family. His personal life was severely affected shortly before the commission of this offence by the breakdown of his marriage. He has served the equivalent of five days of custody, and 18 months of a driving prohibition as a condition of bail.

[29] The accused has expressed sorrow and regret for the death of Gary Messenger. I hesitate to find much genuine remorse in the accused, as this matter involved a trial, at which the accused offered exculpatory evidence that I rejected. While that conduct does not stand in any way as an aggravating factor on sentence, it does significantly detract from the claim of remorse, and is indicative of a person who does not genuinely accept his part in the death that he caused.

[30] In terms of aggravating circumstances, the accused’s driving caused the death of Gary Messenger, whose misfortune it was to be northbound on Highway 11 the day of the accident. He appears to have been a thoroughly decent man, and devoted to his family and friends. Their grief has been set out in great detail in the many victim impact statements that were filed. Gary Messenger’s death was senseless and tragic, and completely avoidable.

[31] The driving in this case was not a unique situation of bad judgment translated into a single dangerous pass. Counsel to the accused has urged the court to remember that there were safe passes on the road, and that the final attempt at passing was significantly removed from the Home Hardware truck encounter. I cannot agree that the incidents of dangerous driving can be separated in this manner. The earlier encounter was a lesson not learned by this accused, who persisted in deliberately engaging in driving that failed to take into account the lives or safety of other persons using the road that day. In my Reasons, I described the accused’s mental state as almost amounting to a wanton and reckless disregard for the lives and safety of others.

[32] Moreover, the accused was acting as a professional driver, and driving a tractor-trailer. Many of those who provided victim impact described how they now dread highway driving with such vehicles around them, given the potential danger they represent. In this case, that is a reasonable fear and the fact that the offence was committed in that type of vehicle is a seriously aggravating factor that cries out for a deterrent and denunciatory sentence.

[33] On behalf of the accused, counsel submits that similar cases to this one have resulted in sentences in the mid-reformatory range. He submits that it is inappropriate to focus overly much on the tragic consequences of the accused’s criminal conduct – the death of Gary Messenger – as that will result in a sentence that is disproportionately long.

[34] In my respectful view, the range advanced on behalf of the accused needs adjustment upwards. Courts have indeed noted that tragic results can be occasioned by minor misconduct, which should lead to reduced sentences: see, e.g., Laverdure, at para. 13. In my view, however, a court must be cautious about classifying misconduct in this type of offence. Appellate courts have gone to great lengths to ensure that trial courts convict for dangerous operation only if there is criminally culpable conduct, that they distinguish between civil and criminal liability, and that they understand the difference between criminal offences, provincial offences, and non-culpable conduct. To get to this stage – the sentencing stage – the accused’s conduct has been found to be criminal conduct that resulted in a death.

[35] A life has been lost, not through simple accident, the commission of a minor offence, or through civil negligence. Gary Messenger died because of the accused’s criminal conduct. That death means that the offence is grave. The accused’s responsibility is heightened because he drove a tractor-trailer dangerously, and deliberately took chances that risked the lives and safety of others.

[36] Accordingly, a deterrent and denunciatory message must be sent. However, the Crown’s proposal of four years incarceration and a seven-year further driving prohibition fails to take into account the mitigating factors in the case, which deserve recognition. The accused’s relative youthfulness, his lack of criminal or driving record, some indications by him of remorse, and pro-social conduct and presentation in other areas of his life must be taken into account.

Conclusion

[37] In all of the circumstances of this case, on the charge of dangerous operation causing death, contrary to s. 249(4) of the Criminal Code of Canada, I find that a proportionate sentence for this offence is three years incarceration, on top of the equivalent of five days pre-sentence custody.

[38] There will also be a five-year driving prohibition, pursuant to s. 259(2) of the Criminal Code, which takes into account 18 months of driving prohibition served by the accused before sentence, by way of bail condition.

[39] Section 109 of the Criminal Code mandates a ten-year firearms prohibition, and that order will be made.

[40] I make as well an order authorizing the taking of the accused’s DNA for the purposes of the national DNA databank on this secondary designated offence, pursuant to s. 487.051(3) of the Criminal Code. While the accused hitherto had no criminal record, the nature of the offence is so serious, its circumstances so dangerous, and its effect on the accused’s privacy and security of the person so minimal, that I find that it is in the best interests of the administration of justice to make the order.

A.D. KURKE J. Released: July 31, 2018