COURT FILE NO.: 17-0529
DATE: 2019 11 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Harvy Panchal
Defendant
J. Forward, Counsel for the Crown
No one appearing for the Defendant
HEARD: June 20, 21, 22, 28, 29 2018, November 15, 2019
LEMON J.
REASONS FOR SENTENCE
Overview
[1] On July 23, 2018, I convicted Ms. Panchal of dangerous driving causing death. She is now to be sentenced for that offence.
The Background
[2] It is admitted that a collision occurred on July 16, 2016 on Wellington Road 35 in Puslinch, Ontario. That was a Saturday morning. The weather was clear and sunny. The roads were dry. At that time, Ms. Lindsay was driving northbound in her Ford Focus. Ms. Panchal was driving southbound in her Hyundai Veloster.
[3] At the time of the accident, Ms. Panchal was in good health and there was nothing wrong with her eyesight or her depth perception. She was sober. There was no mechanical failure of her car.
[4] There were a total of six cars travelling on the road at the relevant time. Behind Ms. Panchal, in a large truck, was Mr. Areia. In front of Ms. Panchal was a red sedan and, in front of the red sedan, a black S.U.V.
[5] At the same time, there were two cars proceeding north bound. The first was Ms. Lindsay in a Ford Focus. Behind her, was Mr. Murray in a Volkswagen Golf.
[6] Between the two lines of cars was the crest of a hill. The Panchal vehicle and the Lindsay vehicle met at the crest of the hill. Both veered towards the east shoulder and collided on the east shoulder of the road. The point of impact was the front driver’s side of each vehicle. While the exact location of impact was not ascertained, it is not important for the determination of this case.
[7] Ms. Lindsay was killed; Ms. Panchal and her passengers suffered minimal injuries.
[8] Mr. Areia and Mr. Murray stopped to assist. The drivers of the red and black vehicles fled.
[9] It is not disputed that the two-lane road was marked with broken and solid lines. As Ms. Panchal travelled south, the road was divided by a broken line; however, leading up to the collision site, the southbound lane was marked with a solid line. That solid line started 272.7 meters north of the point of impact. In other words, for the last 272.7 meters before the collision, Ms. Panchal was notified that it was unsafe to pass.
[10] Ms. Lindsay’s lane was, at all relevant times, marked with a solid line.
[11] The only evidence of speed was that Ms. Panchal was driving at 85 to 87 kms per hour; certainly not more than 90 kms per hour. There was some evidence that Ms. Lindsay may have been going faster but nothing turns on that. The two vehicles met with almost no time to react at the top of the hill; differences in speed would not have avoided the collision or significantly affected the result. I found that both vehicles were travelling just over the speed limit or as the defence submits “roughly 80”. The Crown does not rely on Ms. Panchal’s speed to determine whether she was driving dangerously.
[12] In my reasons for judgment, I found:
a) The line of traffic going southbound at all relevant times from back to front was as follows: Mr. Areia, Ms. Panchal, the red car and the S.U.V.
b) Ms. Panchal was driving southbound at approximately 80 km/hour as she came up to the red car. She decided to pass it, put on her turn signal, and pulled into the north bound lane. As she did so, the broken line between the lanes turned to a solid line.
c) On the evidence of Mr. Areia, the black S.U.V. was at least two cars in front of the red car. Mr. Murray had no recollection of the S.U.V. in front of the red car. On that basis, I could not find that the S.U.V. factored into the collision. I found that Ms. Panchal was attempting to pass only the red car.
d) The video evidence clearly shows a hill in front of Ms. Panchal at the point where she pulled out. Whether there was a traffic sign warning of a hill does not matter; from looking at the horizon, at the very least, the hill is quite obvious.
e) At that point, unbeknownst to Ms. Panchal, she was about 10 seconds away from coming into collision with Ms. Lindsay. Even Mr. Areia did not know of Ms. Lindsay’s approach.
f) About three to four seconds later, Mr. Areia observed Ms. Lindsay but Ms. Panchal did not. She was still attempting to pass the red car. On the hill. On the wrong side of a warning solid line.
g) As Ms. Panchal started to pass the red car, it sped up.
h) Only when Ms. Panchal came to the top of the hill did she attempt to remedy the situation. Nothing turns on how she or Ms. Lindsay reacted to the impending collision at the crest of the hill. That momentary reaction at the crest of the hill cannot found criminal liability.
i) There was no real argument that seeking to pass while on a hill and unable to see the oncoming car was other than a dangerous act. Ms. Panchal was aware of other cars around her and had passed at least two cyclists. I found that, whether there was an oncoming car or not, that act of passing on the hill when unable to see oncoming vehicles was dangerous to the public.
j) A reasonable person would have seen the risk of passing on the hill as soon as Ms. Panchal pulled into the north bound lane. Further, as soon as the red car sped up, a reasonable person would have slowed and reentered the safe southbound lane. Ms. Panchal’s failure to do so at the commencement of the solid line was a marked departure from the norm. This was more than mere negligence or carelessness, such as pulling out to pass and immediately returning to her lane. It was a determined effort to pass when a reasonable person would not. This was conduct that was sufficiently morally blameworthy to amount to criminal conduct.
k) The action of the red car in speeding up does not present a defence to Ms. Panchal. At that point, she should have slowed to pull back in to safety. Her failure to do so over a prolonged time was a marked departure from the norm.
l) Taking Ms. Panchal’s evidence at its highest, I considered the issue of “a momentary lapse of attention” on Ms. Panchal’s part. If I were to accept her evidence of how long she was in the northbound lane, she had even longer to avoid the accident. She submits that she had seven to ten seconds to pass before the hill. The uncontested evidence of Constable Dick was that it would have taken approximately 11 to 12 seconds to drive the solid line before the collision. On Ms. Panchal’s evidence then, she was in the north bound lane for approximately 20 seconds attempting to pass the red car. In watching the video, the time for reaction to her situation, in the oncoming lane and approaching the crest of the hill, was long enough and obvious enough that her failure to respond was more than momentary.
History of Proceedings After Judgment
[13] After giving my reasons for judgment, the matter was put over to November 13, 2018 for sentencing submissions. On that day, Ms. Panchal’s counsel appeared, but she did not. The matter was then adjourned to December 12, 2018 to obtain information as to her whereabouts and intentions.
[14] On December 12, 2018, Ms. Panchal did not appear. The sentencing was adjourned to April 1, 2019 to allow the Crown and police to make further inquiries as to Ms. Panchal’s location.
[15] On April 1, 2019, Ms. Panchal did not appear and her counsel was removed as counsel of record. The matter was put over to November 15, 2019 for sentence.
[16] On November 15, 2019, the Crown made application pursuant to s. 475(1)(b) of the Code, to permit the sentencing to proceed in absentia.
Proceeding in Absentia
[17] As set out above, Ms. Panchal failed to appear in court. Her counsel has been removed as counsel of record.
[18] I heard evidence of the police investigations relating to Ms. Panchal. On that evidence, it is clear that she is now in India. She left for India in July 2018. On that basis, I am satisfied that she has absconded.
[19] For the following reasons, I am also satisfied that it is the interest in justice to proceed with the sentencing.
[20] Ms. Panchal gave evidence at trial about her circumstances. The investigations to locate her have also produced information with respect to her circumstances. I am satisfied that I have enough information about Ms. Panchal to determine a fit sentence.
[21] There was no presentence report requested or expected.
[22] The Crown submission is entirely within the range that could be expected from the case law.
[23] The family of the deceased should be able to expect some finality to these proceedings.
Positions of the Parties
[24] It is the position of the Crown that Ms. Panchal should serve a period of two years in custody along with a 10-year driving prohibition.
Circumstances of the Offender
[25] Ms. Panchal is 26 years of age. At the time of the accident, she was 24. She had graduated from a two-year course in architectural technology. At the time of trial, she was employed on a full-time basis and resided in Scarborough with her husband.
[26] The initial date for sentence submissions was delayed somewhat as, at the time of the judgment, Ms. Panchal was pregnant with her first child. From the police investigations, it is apparent that she now has had that child.
[27] She has no criminal record, speeding tickets or been convicted of any Highway Traffic Act offences. Her license was suspended by her conviction in July of 2018.
[28] Ms. Panchal has outlined on social media that she is a “personal blogger, Full-time mommy, Interior Designer, Architectural Technologist.”
Legal Parameters
[29] The Criminal Code sets out a variety of factors that I must consider.
[30] Section 718 confirms that the purposes of sentencing include denouncing unlawful conduct and the harm done to victims that is caused by unlawful conduct; to deter the offender and other persons from committing offences, promote a sense of responsibility in offenders, and acknowledge the harm done to victims or to the community.
[31] Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[32] Section 718.2(a) (iii.1) stipulates that a court that imposes a sentence shall take into consideration evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[33] However, Section 718.2(b) of the Criminal Code of Canada also requires that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. Therefore, I must consider the various reported cases on sentences for offences similar to those to which Ms. Panchal is being sentenced.
[34] The Crown provided a number of cases. Those included R. v. Currie, [2008] ONCA 218; R. v. Bhangal, [2016] ONCA 857; R. v. Goulet, [2009] ONCA 786;R. v. Nusrat, [2009] ONCA 31; R. v. Galley, [2006] CarswellOnt 4289; R. v. Phillips, [2005] CarswellOnt 187; R. v. Boukchev, 2003 CanLII 26654 (ON CA), [2003] O.J. No. 3944; and R. v. Stephens, [2013] O.N.C.J. 575.
[35] In my own review of the case law, I also found assistance in the case of R. v. Singh, [2019] ONCA 872.
[36] The effect of those cases is that denunciation and deterrence is a principal determination of a fit sentence in these circumstances. Further, there is no set range for an appropriate penalty and each case is to be determined on its own facts. However, the request put forward by the Crown is very much in line with the sentences that have been approved or set by our Court of Appeal.
Mitigating and Aggravating Factors
[37] The fact that Ms. Panchal has absconded is not a factor in determining a fit sentence for this offence. That action may result in other charges and other sentences.
[38] The fact that she exercised her right to a trial is neither a mitigating nor an aggravating factor.
[39] Ms. Panchal served no pre-trial custody and her terms of release were obviously not onerous.
[40] Ms. Panchal was sober at the time of the offence.
[41] Given her age and lack of a record, her chances of rehabilitation are good.
[42] Finally, Ms. Panchal’s acts which led to her conviction and this sentence were of a significant but short duration.
[43] While Ms. Panchal’s license was suspended upon conviction, I am not aware of any suspension while awaiting trial and assume there was not. The short period of license suspension prior to her absconding to India does not enter into my considerations.
[44] The aggravating factors are, of course, obvious.
[45] Twelve victim impact statements were filed, and three of those were read in court. They eloquently set out the loss to the family and particularly to Ms. Lindsay’s fiancé. It was, no doubt, very painful to the family to hear about Ms. Panchal’s new family when they had lost a significant member of their own.
[46] Boswell J. in R. v. Fracasse, 2017 ONSC 28 at paragraph 36 set out the important principles that:
Whatever sentence is imposed, it cannot undo the damage that has been done by the offence. Regardless of the sentence imposed today, the victims of the offence will be left with the emptiness and heartache that they began the day with;
No sentence is capable of satisfying all interested parties. Indeed, I suspect that none of the constituents here will be satisfied. It is important, however, that the sentence adhere to the purposes and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code, and that it be fit for purpose - neither too lenient nor too harsh - in order to maintain the confidence of the broader public; and
The sentence imposed is in no way meant to reflect the value of the losses suffered. One cannot put a price, in dollars or in years of incarceration, on a life lost or otherwise significantly impaired.
Result
[47] I have applied the principles set out in the case law referred to above. I have considered the sentencing principles set out in s. 718 of the Criminal Code and following. I have considered the mitigating and aggravating circumstances set out above.
[48] Taking all of those factors into consideration, I agree with the Crown’s view of a fit sentence. I order that Ms. Panchal shall serve a term of two years in custody followed by a prohibition from driving anywhere in Canada for a period of 10 years from her release from custody.
“Justice Lemon”
Justice Lemon
Released: November 25, 2019
COURT FILE NO.: 17-0529
DATE: 2019 11 25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
HARVY PANCHAL
REASONS FOR SENTENCE
JUSTICE LEMON
Released: November 25, 2019