COBOURG COURT FILE NO.: CR-17-766

DATE: 20210708

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BALJINDER SINGH

Defendant

Counsel: Julie Barrett, for the Crown Sunny Vincent, for the Defendant

HEARD: December 16, 2020, February 11, April 6, and April 19, 2021

REASONS FOR SENTENCE

SPEYER J.

A. The facts of the offence

[1] On August 3, 2017 at about 10:00 p.m., Todd Gardiner and Michael Glazier were driving eastbound on Highway 401 in the Port Hope area. The two young men, cousins, were going to their family cottages where they planned to play golf with their fathers. It was Todd Gardiner’s father’s birthday. Todd Gardiner and Michael Glazier did not arrive at their destination. They were killed when a tractor-trailer transport truck, driven by Mr. Singh, slammed into the back of their vehicle as they drove very slowly at the end of a long line of backed up traffic.

[2] As is not unusual during the summer months, there was construction on Highway 401 with lane closures. While there was no signage warning of the approaching construction zone in the area of the collision, road conditions were good, visibility was excellent, and the presence of the backed-up traffic was announced by the brake lights of the vehicles ahead. Other truck drivers who provided statements to the police said that they saw the backed-up traffic and had no trouble stopping. Mr. Singh had a clear view of the road ahead, if he was travelling at the speed limit of 100 kilometres per hour, for 28 seconds or over ¾ of a kilometer.

[3] As Mr. Singh approached a slow-moving transport truck in the lane in front of him, he was in the middle of three lanes. Instead of slowing and stopping his truck behind the transport truck that was in front of him as it slowed, he changed lanes from lane 2 to lane 3. He decided to change lanes, seemingly oblivious to the fact that traffic in lane 3 had also slowed down or stopped, in circumstances where the fact that all traffic ahead was slow or stopped was visible to him as lines of brake lights. He could have safely slowed down as the transport truck in front of him did. The truck that Mr. Singh was driving was less than two years old, and there were no issues with its maintenance or condition. Instead, he chose move to lane 3.

[4] When the transport truck driven by Mr. Singh crashed into the Gardiner/Glazier vehicle, the OnStar system in the young men’s vehicle recorded a sudden acceleration, in less than a second, from 14 to 72 kilometers an hour. The speed of the Singh transport truck at the time of collision was between 89 and 92 kilometres per hour. The force of the collision caused the Gardiner/Glazier vehicle to collide with another vehicle, which in turn collided with another transport truck.

[5] Todd Gardiner and Michael Glazier died as a result of injuries they sustained in the collision.

[6] Mr. Singh’s actions on the night of August 3, 2017 were the product of his deliberate choice. There is no evidence that Mr. Singh had been consuming alcohol or drugs prior to the collision. There is no evidence that he was distracted. There is no evidence that he was fatigued.

B. The circumstances of Mr. Singh

[7] Mr. Singh was 56 years old when he committed the offences for which he has been convicted. He is a permanent resident of Canada, has married twice, and has three children. He came to Canada in 2007 and stayed. He made a successful claim for refugee status and became a permanent resident of Canada in 2009. He has not sought Canadian citizenship. I will have more to say about his status in Canada when I address the impact of the immigration consequences of his conviction on the sentence to be imposed.

[8] Mr. Singh pleaded guilty to two counts of dangerous driving causing death. While the guilty pleas were not entered at an early date, their effect is that no trial is needed to establish his guilt. A trial would have further delayed the disposition of this case to the detriment of the victims’ families and would have consumed scarce court resources. The guilty pleas are a mitigating factor that I have considered in determining the sentence to be imposed.

[9] When Mr. Singh came to Canada, he first worked for about a year as a priest at a Gurdwara. He then moved to Montreal where he obtained his license to drive a truck and began work as a truck driver. He worked, driving a truck, in Montreal for about four years. He then moved to Brampton and began work for Kahj Transport, now carrying on business as AKB Transport. He worked as a long-distance truck driver, on routes to Montreal, New Brunswick and Calgary. He remains employed by AKB Transport.

[10] Mr. Singh is not in good health. A letter from his doctor provided to the writer of the pre-sentence report indicates that he is experiencing hypertension, kidney stones, insomnia, benign prostate hypertrophy, reflux disease, major depression, anxiety and post-traumatic stress disorder. Most of these health issues appear to be a reaction to the offences that Mr. Singh committed, and the consequences of his actions. I accept that Mr. Singh feels sad, guilty and remorseful.

[11] Mr. Singh has provided a letter of apology. That letter expresses that he feels very guilty and sorry about what happened. He thinks about the collision all the time, and prays for the souls of the dead men, and for their families. He apologized to the families of the victims.

[12] Mr. Singh is a religious man, who attends at his Gurdwara almost daily. He has performed volunteer activities there for many years. He is described by his family members as kind and calm, and as someone who would never intentionally hurt someone.

[13] Mr. Singh does have a record of convictions for provincial offences related to his driving. Those convictions include two convictions for an unsafe move, in 2010 and 2012, one conviction for disobeying a red light in 2011, and a conviction in 2015 for “improper drive on divided highway – lane change”. Each of these convictions resulted in demerit points.

C. The impact of the offences

[14] The families of Todd Gardiner and Michael Glazier have been devastated by their deaths. There are no words that can adequately describe the magnitude of their loss.

[15] Todd Gardiner was an only child. He was 26 years old when he died. He was loved by his parents and soon-to-be fiancé. He volunteered as a ball hockey and ice hockey coach. His parents told me that they feel empty inside, angry, and full of sorrow. They have no interest in anything that they used to enjoy. They miss Todd terribly. They take medication for anxiety and depression. August 3 was Todd’s father’s birthday. Instead of meeting his son at the door, he met a police officer who told him that his son was dead. Todd’s parents no longer celebrate that birthday, because they cannot. Pauline Gardiner, Todd’s mother explained that they have no life left because Todd was their life. Todd’s father, Terry Gardiner, said that they had a good and loving life, but now live in a nightmare from which they will never wake. Todd’s future fiancé feels that she has no future and that her life has no purpose, and she looks forward to nothing.

[16] Michael Glazier was 35 years old when he died. He loved hockey and golf. He was a kind, hard-working man, who was engaged to be married. He looked forward to starting a family. His mother is heart broken, numb, shocked, and can't work. She is taking medication for depression and to help her sleep. She needs the medication just to function. His father explained that his family’s lives will never be the same. They just go through the motions of living. Michael’s fiancé described her grief. She is existing, not living. She is lonely and has no joy in her life.

[17] Other family members and friends eloquently described the pain that they have endured since the two men were killed. Families are broken. Lives are devastated.

D. The positions of the Crown and the defence

[18] The Crown submits that a sentence of imprisonment in the range of two to three years is required in this case in order to give effect to the need to denounce the offences and to achieve specific and general deterrence. If a sentence of two years or less is imposed, the Crown submits that a period of probation should be imposed. In addition, the Crown seeks an order prohibiting Mr. Singh from driving for a period of five years.

[19] Counsel for Mr. Singh acknowledges the devastating impact these offences have had on the families of the victims. He submits that a sentence of five months and two weeks in jail should be imposed. He submits that a sentence of that duration is warranted because of the collateral consequences of Mr. Singh’s conviction. More particularly, the defence argues that Mr. Singh is liable to be deported because he has been convicted of serious criminality, and that if he is deported to India that would place him in grave danger. Counsel points to Mr. Singh’s positive pre-sentence report, his guilty plea, and the fact that he did not intend the consequences of his actions as mitigating factors warranting the sentence he seeks.

E. Generally applicable principles of sentencing

[20] In deciding a fit and proper sentence, I must ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. To that end, sanctions for criminal behaviour can denounce criminal conduct, deter it both by deterring the particular offender before the court and by generally deterring others who might choose to do the same thing, separate the offender from society where necessary, assist in rehabilitating offenders, promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

[22] The Criminal Code, R.S.C. 1985, c. C 46, also provides that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.

[23] Section 718.2 of the Criminal Code codifies the principle of restraint. It further directs that the court should impose a sentence that is similar to sentences imposed on similar offenders for similar offences in similar circumstances.

[24] The over-arching principle of sentencing contained in s. 718.1 of the Criminal Code commands that the sentence imposed be proportionate to the seriousness of the offence and the degree of responsibility, or blameworthiness, of the offender.

[25] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, LeBel J. explained that proportionality is an essential aspect of a just sanction, and why that is so:

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system… Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[26] It is also important to emphasize that sentencing is an individualized process. I must take into account the aggravating and the mitigating circumstances of the offences and the personal circumstances of Mr. Singh. In R. v. M. (C.A.), 1996 CanLII 230 (SCC), 105 C.C.C (3d) 327, the Supreme Court of Canada described how proper sentences are to be determined:

The determination of a just and appropriate sentence is a delicate act which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

[27] I have been referred to a number of cases by both counsel. Those cases have provided me with significant assistance, and I thank counsel for their diligence. The range of sentence imposed in cases of dangerous driving causing death is extremely broad. This reflects the fact that the circumstances of these offences, and the backgrounds of the offenders, vary greatly.

F. The impact of collateral consequences

[28] Counsel addressed the immigration consequences of Mr. Singh’s conviction, and the sentence that may be imposed, at length. I was not satisfied after initial submissions were made that I had been provided with a full understanding of those consequences, particularly as to the impact of Mr. Singh’s status as a convention refugee on any deportation decision that may be made. Therefore, the case was adjourned to permit counsel to investigate these issues and to make further submissions.

[29] The leading case in relation to the significance of immigration consequences to the determination of what is a fit and proper sentence is the Supreme Court of Canada’s decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. In Pham, Wagner J. (as he then was) explained that the collateral consequences of a sentence on a particular offender may be taken into account in sentencing as personal circumstances of the offender. However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Collateral consequences related to immigration may be relevant in tailoring a fit and proper sentence, but their significance depends on and must be determined in accordance with the facts of the particular case.

[30] In Pham, at paras. 14-16, Wagner J. described how sentencing judges are to assess the impact of collateral consequences on the determination of a fit and proper sentence:

[14] The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[15] The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

[16] These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

[31] The bottom line on this issue was described by Moldaver J.A. (as he then was) in R. v. Badhwar, 2011 ONCA 266, at para. 43, cited with approval in Pham, at para. 17:

[W]hile the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range.

[32] In Pham, at para. 19, the Supreme Court of Canada approved the approach taken to this issue by Doherty J.A. in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 156:

[T]he risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender.

[33] The Supreme Court in Pham, at para. 20, summarized the proper approach to this issue. “Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances.”

G. Comparable cases

[34] Regrettably, tragedies such as this, where drivers of transport trucks operate their massive vehicles dangerously and with catastrophic consequences, are not rare events.

[35] While Mr. Singh did not set out to hurt anyone when he went to work on August 3, 2017, an intention to inflict harm is not required to be guilty of dangerous driving. In R. v. Bosco, 2016 BCCA 55, at para. 39, the British Columbia Court of Appeal reminded all drivers:

Driving offences are unusual in that otherwise law-abiding citizens… may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime. [Citations omitted.]

[36] A review of relatively recent Ontario cases that are similar to this case provides helpful guidance as to the range of sentence that has been imposed in such cases.

[37] In R. v. Saini, 2018 ONSC 7689, the defendant operated his transport truck westbound on Highway 401 and failed to slow down when he approached traffic that was backed up in a construction zone due to lane closures. As in this case, there were lines of brake lights that were plainly visible to warn approaching traffic of the slowdown. Mr. Saini’s truck collided with several stopped vehicles. Four people were killed, and nine suffered bodily harm, including permanent disability. Shaughnessy J. imposed a sentence of six years imprisonment, after convicting Mr. Saini following a trial of four counts of dangerous driving causing death and nine counts of dangerous driving causing bodily harm.

[38] In R. v. Jasvir Singh, 2018 ONSC 4598, Mr. Singh operated a transport truck on a two-lane northern highway in whiteout conditions. He attempted to pass a slower vehicle in those dangerous conditions and collided head-on with an approaching vehicle. One person was killed. The trial judge convicted Mr. Singh following a trial of one count of dangerous driving causing death and imposed a sentence of three years in the penitentiary. That sentence was upheld by the Ontario Court of Appeal: 2019 ONCA 872.

[39] In R. v. Basheem Singh, 2010 ONSC 8398, Mr. Singh operated a dump truck. He went through a red light and collided with a vehicle that had the right of way. The driver of that vehicle was killed. Mr. Singh had a prior record for Highway Traffic Act offences and for Criminal Code drinking and driving offences. Boswell J. convicted Mr. Singh of one count of dangerous driving causing death following a trial and sentenced him to two years in the penitentiary and prohibited him from driving for five years.

[40] In R. v. Bhangal, 2016 ONCA 857, the Ontario Court of Appeal upheld a sentence of five years imprisonment in a case where a truck driver was convicted of one count of criminal negligence causing death after a trial. Mr. Bhangal’s truck drifted into oncoming traffic and collided head-on with a minivan, killing the driver. The offence of which Mr. Bhangal was convicted is more serious than the offences of which Mr. Singh has been convicted, and Mr. Bhangal was found to have deliberately ignored driver safety rules, and doctored his log books in an effort to avoid his rest obligations about which he was warned only days before the collision.

[41] My review of these cases reveals that the range of sentence that is generally applicable to cases where professional truck drivers operate their large vehicles dangerously and death results is a sentence of two to six years, where a conviction has been entered after a trial. That is a very broad range, which reflects differences in the gravity of the offences and the moral blameworthiness of the offenders.

H. Aggravating and Mitigating Factors

[42] There are several aggravating factors present in this case, including:

i) Mr. Singh was driving a transport truck. He well knew the damage it could do in a collision. Rather than exercising the exceptional care that should be exercised by a professional driver operating a very large vehicle, he chose to execute a dangerous manoeuvre, when he had ample opportunity to drive safely;

ii) Mr. Singh has four prior convictions for Highway Traffic Act moving violations;

iii) The offences had profound and tragic consequences: two young men, Todd Gardiner and Michael Glazier, were killed; and,

iv) The impact of the offences on the families of Todd Gardiner and Michael Glazier has been devastating;

[43] There are mitigating factors to be considered as well. These include:

i) Mr. Singh has pleaded guilty, which assures a conviction and eliminates the need for a trial;

ii) Mr. Singh is genuinely remorseful; and

iii) Mr. Singh was a contributing member of the community, without a criminal record, before August 3, 2017.

[44] I have considered the immigration consequences of Mr. Singh’s convictions as part of his personal circumstances. Based on counsel’s helpful submissions to me, it appears that section 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that Mr. Singh, who is a Convention refugee, will not be deported from Canada to India if he would be at risk of persecution there for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment, unless he constitutes, in the opinion of the Minister, a danger to the public in Canada.

[45] Therefore, even if Mr. Singh is deemed inadmissible to Canada by reason of his conviction of an offence of serious criminality, and he does not have a right of appeal from such a finding because his sentence is greater than six months in jail, Canada will not deport him to a country where he would be at risk of persecution unless he is found to be a danger to the public.

[46] Any attempt to predict the immigration consequences of Mr. Singh’s criminal convictions is entirely speculative.

[47] In any event, the sentence proposed by the defence to mitigate the possible immigration consequences of Mr. Singh’s convictions is entirely inadequate having regard to the nature and gravity of the offences for which Mr. Singh has been convicted. Therefore, while I have considered those possible immigration consequences, I have concluded that the sentence to be imposed in this case, which must give effect to the applicable principles of sentencing that I have previously described, including the principle of parity, should not be adjusted to avoid what are entirely speculative immigration consequences.

I. The sentence to be imposed

[48] Mr. Singh did not set out to hurt anyone on August 3, 2017. He set out to do his job as a long-distance truck driver. No explanation has been offered for why he chose to engage in a criminally dangerous course of conduct. The most likely explanation is that he was in a hurry and did not want to slow down. But he did choose to engage in a criminally dangerous course of conduct, and as a direct result of his decisions and actions, two men died and the lives of their loved ones have been forever damaged.

[49] Having regard to all the circumstances, the proper sentence to impose in this case that balances the aggravating and mitigating factors is a sentence of 3 years in the penitentiary. But for the fact that Mr. Singh has accepted responsibility for his conduct by entering pleas of guilty, the sentence would have been higher.

[50] In addition, as the Court of Appeal confirmed in R. v. Belanger, 2009 ONCA 867, a lengthy driving prohibition is a means by which general deterrence and denunciation may be achieved. A driving prohibition for a period of five years is entirely appropriate in this case. This order will prohibit Mr. Singh from operating a motor vehicle anywhere in Canada for a period of five years.

[51] I appreciate that the sentence imposed is at once a very significant consequence for Mr. Singh, but also entirely inadequate to reflect the loss suffered by the Glazier and Gardiner families. Nothing a court can do could possibly undo or make better their situation. If anything positive can come of this tragedy, it is my hope that the operators of large commercial vehicles may take note and drive more cautiously, as though their family members were occupying the vehicles around them, and as though the lives of their family members depended on the manner in which they operate their trucks.

Justice J. Speyer

Released: July 8, 2021

COBOURG COURT FILE NO.: CR-17-766

DATE: 20210708

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BALJINDER SINGH

REASONS FOR SENTENCE

Justice J. Speyer

Released: July 8, 2021