ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SARBJIT MATHARU
Accused
Katalin Kirec, Counsel for the Crown
Joanne Griffiths, Counsel for the Defence
HEARD: June 22 and 25, 2021
M.A. CODE J.
REASONS FOR SENTENCE
A. OVERVIEW
1The accused Sarbjit Matharu was tried before me in March 2021, without a jury. The trial took place over the Zoom platform, due to the pandemic, with the accused appearing from his home in Winnipeg. On May 3, 2021, I released written Reasons for Judgement finding Mr. Matharu guilty as charged on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. See: R. v. Matharu, 2021 ONSC 3122.
2Sentencing submissions were heard on June 22, 2021 at the Court House in Toronto, with Mr. Matharu present. Some observers attended by way of a Zoom connection. At the end of the hearing I reserved judgement for three days. These are my Reasons for Sentence.
B. FACTS RELATING TO THE OFFENCE
3The facts of the case are set out in detail in my written Reasons for Judgement, finding Mr. Matharu guilty on all five counts in the Indictment. I will not repeat that recitation of the lengthy and complex evidence heard at trial. I adopt it for purposes of these Reasons for Sentence.
4In brief summary, Mr. Matharu is a licensed commercial truck driver based in Winnipeg. He picked up a large tractor-trailer load of meat from the Rainbow Transport yard at about 4:00 p.m. (Central Time) on June 23, 2016 and began driving the load to a southern Ontario Maple Leaf Foods plant. I made findings that he must have been on duty that day driving for over 13 hours, until he stopped and rested at Longlac in northern Ontario at about 5:30 a.m. (Central Time). After no more than two hours sleep, he resumed his on duty driving at about 8:30 a.m. (Eastern Time) until the time of the offences in this case that occurred some 13 and a quarter hours later at about 9:47 p.m. (Eastern Time) in Toronto. He was on his “hands free” cell phone for long periods of time, talking to friends during the final four and a half hours leading up to the time of the offences.
5The location of the offences was on Highway 400, just south of Sheppard Avenue, where the six southbound lanes come to an end and branch off into three exits to Black Creek Drive, Highway 401 East, and Highway 401 West. The traffic slows at this point. In addition, there was construction on the 401 West exit, which is where Mr. Matharu was heading in lane 3. That lane had slowed to a stop and was proceeding in a “stop and go” fashion towards the exit. Large numbers of transport trucks and cars had safely slowed down and come to a stop in that lane, including a number of the witnesses who testified at trial. The slowing traffic was visible from a distance, especially from the high vantage point of a tractor-trailer, and there was no difficulty gradually slowing over a distance and coming to a safe stop, according to all the witnesses.
6Mr. Matharu did not slow and gradually come to a stop. Instead, he briefly accelerated to 90 km/hr, in excess of the reduced 80 km/hr speed in the construction zone. He then braked during the last seconds and collided with three cars ahead of him in lane 3, causing these cars to collide with each other, and finally driving the last of the three cars in this chain reaction into the back end of a stationary tractor-trailer that had previously come to a stop in the backed-up traffic. Mr. Matharu swung his tractor-trailer to the east, moving around the collision and hitting other cars before he swung back to the west, and finally came to a stop in the west ditch of Highway 400. He hit seven cars in the course of the collision, destroying many of them. Two serious fires were caused by the collision. All four of the occupants of two of the cars hit by Mr. Matharu’s truck in the initial collision, were killed. The driver of the third car hit in the initial collision was severely injured. Three members of a single family were killed in one of these cars. The highway remained closed for about 20 hours to permit the police investigation and the MTO clean-up of the almost 200 metre long scene of the collision.
7I made findings to the effect that Mr. Matharu’s fault included the following: first, driving on insufficient sleep, in violation of statutory rest requirements, and then falsifying his Log Book records in order to cover up his lack of sleep; second, driving while distracted by lengthy cell phone conversations in the hours immediately before the collision; third, driving in excess of the reduced speed limit in a construction zone and in a highly congested stretch of one of the largest highway intersections in Toronto; and fourth, failing to brake and gradually slow his large tractor-trailer when the traffic ahead in his lane was obviously slowing and coming to a stop. I found that a reasonable commercial truck driver would never have taken these four escalating risks that Mr. Matharu took, and that the deadly collision was reasonably foreseeable and avoidable. The only explanation for Mr. Matharu’s failure to safely bring his truck to a stop in this obviously congested area was either that he was falling asleep and was distracted by his cell phone and failed to see the slowing traffic, or that he deliberately took the risk of not slowing because his delivery was late and he thought that he could change lanes at the last second and avoid the slowed traffic. Either of these states of mind or fault are culpable, as one involves gross negligence and one involves subjective recklessness.
8Many were harmed by this collision and the degree of harm was extraordinary. The Victim Impact Statements from the surviving members of the Vokshi family, three of whom died horrible deaths trapped in the fiery wreckage of their car, are the most poignant. Blerta Vokshi was severely injured but survived because she was in a separate car. The family was returning from a day at Canada’s Wonderland in two cars. She witnessed the deaths of her mother, her sister and her niece as their car was destroyed and went up in flames beside her on the highway. The loss she suffered and the psychological, emotional and physical suffering she has to bear is simply indescribable.
9Others who were victims of the collision suffered trauma, trying to fight the two fires unsuccessfully, and failing in their efforts to get the four deceased victims out of their burning cars. And of course, there was extraordinary property damage and financial loss, to all the destroyed cars and to the public infrastructure.
C. FACTS RELATING TO THE OFFENDER
10Mr. Matharu testified at trial and so I heard directly from him, about his antecedents and about how he explains his decision to drive the large tractor-trailer on insufficient sleep. In addition, further evidence was tendered at the sentencing hearing in relation to these issues. I did not find it necessary to make findings at trial concerning Mr. Matharu’s allegations that his employer, Rainbow Transport and its owner Kulwinder Chahal, had pressured him to drive on insufficient sleep. That issue now has to be resolved, at this sentencing hearing, because it is advanced as a mitigating circumstance that the defence seeks to prove on a balance of probabilities, pursuant to s. 724(3)(d) of the Criminal Code.
11Accordingly, I will set out the evidence heard at trial relating to Mr. Matharu’s antecedents and to his decision to drive on insufficient sleep, as summarized at paras. 96-102 of my written Reasons for Judgement:
Mr. Matharu testified at trial. He was born in India in the Punjab in 1981. He is 40 years old. He came to Canada in 2009 and has lived in Winnipeg since his arrival. He is a permanent resident. He went back to India in 2011 and married. His wife came to Canada in 2013 and they have two children. He has two brothers who also live in Winnipeg with their families.
Mr. Matharu’s main work in India had been helping on his father’s farm. He obtained his driver’s license at age 18 in India. Two months after his arrival in Manitoba in 2009 he obtained a Canadian driver’s license. He initially worked as a car mechanic in Winnipeg, from 2009 to 2012. He decided to change jobs and become a truck driver because he could make more money and he liked driving. Upon his return from his trip back to India, in April 2012, he began studying for his truck driver’s license. It took about two months and involved classes on the computer, practical training with an instructor in a truck, a road test, and a written test. It was full-time intensive training. He took some additional courses and he began work in 2012 with the Creekside company. They did two weeks of additional training on the job. He then drove for the first two and a half years as a “team driver,” which means driving with an older more experienced driver. After this initial two-and-a-half-year period, he began driving as a single driver. He was never unemployed while working as a truck driver between 2012 and 2016.
The owner of the Creekside company is Kulwinder Chahal. The company’s trucking subsidiary is Rainbow Transport. At some point, Mr. Chahal sold his trucks to owner/operators and he would lease the trucks back. In 2015, Mr. Matharu began working under this new arrangement. Mr. Chahal helped Mr. Matharu and his brother (who also drove trucks) buy their own Volvo truck. They leased it back to Rainbow and Mr. Matharu became an owner/operator for Rainbow Transport. Sometimes Mr. Matharu would drive his own truck and sometimes he would drive another Creekside or Rainbow truck. Other drivers would drive Mr. Matharu’s truck, if he was unavailable. He was an employee of Rainbow and he was paid either by the hour (for short local jobs) or by the distance (for long haul jobs). In addition, whenever Rainbow used his Volvo truck, Mr. Matharu and his brother would be paid a mileage fee for Rainbow’s use of the truck. The dispatcher at Rainbow and Mr. Chahal would assign the jobs. Mr. Matharu generally did long haul jobs.
In the week prior to the June 23/24, 2016 trip to Toronto, Mr. Matharu had not been assigned any jobs by Rainbow Transport. He was at home and available but he had no work. As a result, he was not making any money. The entries in his Daily Log for June 22, 2016, to the effect that he was “off duty” during this period, were true and accurate. There can often be little notice when a job is assigned. Mr. Matharu would just get a call or a message, advising him that there was a load.
On June 23, 2016, at about 2:00 p.m., Mr. Matharu got a call advising him that there was a load for him at the Rainbow Transport yard. This is where Rainbow kept his Volvo tractor. At about 3:00 p.m., he received a message advising him of the trailer number and that the load had already been picked up from Maple Leaf Foods. Local city drivers would pick up the load and then leave the trailer in the Rainbow yard. At this point Mr. Matharu packed and got ready to leave. His niece drove him to the Rainbow yard, which is near his home. He got to the yard at about 3:30 p.m., hooked up his Volvo tractor to the trailer, and inspected the tractor and trailer. There were no issues with any of the equipment, as reflected in the Daily Inspection Report.
Once Mr. Matharu arrived at the yard, he saw the paperwork relating to the Maple Leaf Foods load. In particular, he learned that the destination was in southern Ontario and that the delivery time was 10:00 p.m. the next day, Toronto time. Mr. Matharu knew about the legal limits on driving without sufficient sleep. He had been trained about these rules and he understood that their purpose was to improve his ability to stay awake when driving. He agreed that no one likes to drive tired, that there could be a collision, and that “I could be dead if I drive tired.” He also knew that this particular load could not be driven to its destination by the delivery time if he stopped for the legally required rest periods. He knew that he would have to sleep “less” than required. As a result, when he went to the Rainbow yard offices, he spoke to Mr. Chahal and to the dispatcher, Jot Kaur, and he complained. They told him that the load had to be delivered by 10:00 p.m. the next day or they implied that there would be consequences. He described the substance of this conversation as him asking, “How can I deliver by this time” and them replying, “You have been sitting at home, what does two or three hours less sleep mean to you.”
In cross-examination, Mr. Matharu elaborated further about this aspect of his relationship with his employer. He testified that he had been asked to drive an overweight load the previous week and that he had refused. He assumed that this was the reason he was given no jobs during the previous week. He had also been asked to drive loads without sufficient rest on prior occasions and he had refused. When he refused, he would not be given another load for the next week or so. Sometimes when he refused, he would only be given loads to destinations that nobody wanted. He testified that he had refused to drive on insufficient rest many times. He agreed that there was other work he could have done but he would not have been able to make enough money to meet his expenses. He felt that he had no choice and so he agreed to take this Maple Leaf Foods load on the terms dictated by Mr. Chahal and Ms. Kaur. He had only driven two loads during the month of June and he needed the money. If another driver used his truck to deliver the Maple Leaf Foods load he would only have been paid the mileage fee for the company’s use of his truck. He would not have been paid driving money. He agreed, in cross-examination, that he would sometimes drive when he had little sleep.
There was evidence at trial, from documents relating to the 21,500 kilo load of meat in Mr. Matharu’s trailer, to the effect that it was “perishable foods” and that its “required delivery” was as follows: “June 24/16. Receiving opens at 9:00 p.m. Deliver ASAP.” See: para. 86 of my Reasons for Judgement.
12Ms. Griffiths supplemented the above trial evidence, both in relation to Mr. Matharu’s antecedents and in relation to the circumstances in this case that led him to drive his tractor-trailer on insufficient sleep. In terms of his antecedents, Ms. Griffiths added a number of details, based on her interviews with her client, as follows: their family in the Punjab was considered well off, they farmed wheat and rice, everyone in the family worked hard on the farm, there was no abuse or neglect, and Mr. Matharu remains close to his parents who have remained in the Punjab; Mr. Matharu drove a tractor on the farm, beginning at age 12, and he worked as a car mechanic at a local dealership after graduating from high school and after completing a diploma in motor vehicle maintenance; he would work on the farm after school when he was younger and after his work at his job as a car mechanic when he was older; it is apparent that there is a very strong work ethic in the family and that work is central to Mr. Matharu’s identity; upon his arrival in Canada in 2009, and after his marriage in 2011, Mr. Matharu lived in his older brother’s home in Winnipeg; his marriage has been very happy, they have two boys age five and seven (who would have been very young at the time of the present case, exactly five years ago in June 2016); they moved out of his brother’s home in 2019 and bought a small home of their own; both of Mr. Matharu’s brothers drive trucks as do their cousins and their friends. According to Ms. Griffiths, there is a family culture that the men drive trucks.
13Ms. Griffiths also filed a number of letters from various family members. These letters attest to the obviously close bonds within Mr. Matharu’s large extended family and to his particular affection for the children in the family. The letters also point to the existence of some degree of remorse. For example, Mr. Matharu’s wife states:
“I know what he has been going through after this accident. It has changed him a lot and it is scary to see him be like this. He is always saying why this had to happen because of him. He feels very bad for what happened and is always saying, ‘what if those who passed was his family’.”
Similarly, his niece states:
“Sarbjit feels very bad for what happened and not a single day goes past where he doesn’t state at least one thing about this accident. In my eyes he has been serving a punishment for the past five years just going through this … he has learned his lesson.”
When Mr. Matharu addressed the Court at the end of the sentencing hearing he stated that he feels remorse but he keeps it inside so as not to demoralize the family members around him. However, Mr. Matharu devoted most of his statement to the Court to expressing his ongoing preoccupation concerning his employer’s responsibility for pressuring truck drivers, like Mr. Matharu, to drive on insufficient sleep.
14One final item of evidence filed by the defence at the sentencing hearing is an Affidavit from Manbir Kaur Matharu, who is Mr. Matharu’s niece and who appears to be the family member who is closest to him. She is 24 years old, she worked for six months in the trucking business, and she now works full-time as a correctional officer in Winnipeg. Her father, Mr. Matharu’s oldest brother, works as a truck driver. She will move into Mr. Matharu’s home, in order to help his wife, when Mr. Matharu begins serving his prison sentence. It will be recalled that Mr. Matharu was living with his brother’s family at the time of the present offence and that his niece drove Mr. Matharu to the Rainbow Transport yard, when he picked up the load of meat and began to drive to southern Ontario on June 23, 2016. Ms. Matharu’s Affidavit corroborates Mr. Matharu’s account of his decision to accept this job in a number of ways: first, she confirmed that Mr. Matharu received the call, offering him the job related to the present case, in the afternoon of the day when the load had to be picked up from the Rainbow Transport yard, and that this practise of receiving little or no notice of a long-haul job is common in the trucking industry; second, she confirmed that Mr. Matharu had been offered a job one week before, that he had turned it down, and that he had not had any work during the ensuing week; and third, she gave her observations of trucking industry practises that she is familiar with, including that it is “very common” to assign jobs that cannot be carried out except by driving with insufficient sleep, that it is usually the dispatchers who put the most pressure on the drivers, that it is “not uncommon” for drivers to accept these jobs and “drive on only a few hours of sleep and falsify their logs”, and that drivers who refuse these jobs are “punished” by not being given another job offer for a period of time. The Crown did not cross-examine Manbir Kaur Matharu on her Affidavit, or submit that it lacked credibility or reliability. The Crown does challenge its legal significance on sentencing, which I will address below.
15Mr. Matharu is a permanent resident and he is not a Canadian citizen. As a result, there will likely be immigration consequences to the sentence that he receives, which is another issue that I will address below. If he is deported, Ms. Griffiths advises that his wife and his two young children will likely go back to India with him.
16The Crown also filed two additional items of evidence on sentencing that are relevant to Mr. Matharu’s character and antecedents. First, his Log Book records from the one month period leading up to the present offences were filed. They disclose a number of irregularities, including the following: there were two sets of Log Book records, namely, those seized at the scene of the collision from Mr. Matharu’s truck and those seized from the Rainbow Transport office, which is in itself contrary to trucking regulations; and more significantly, the two sets of Daily Logs differed as to Mr. Matharu’s accounts of his various trips on eight out of 16 of these days leading up to the present case, suggesting a 50% falsification rate. Second, the Crown filed Mr. Matharu’s driving record that has four separate entries as follows:
First, on June 5, 2014 he was driving a transport truck and committed two Highway Traffic Act offences in Ontario, namely, “improper seat belt” and “fail to maintain his Daily Log”;
Second, some two weeks later, on June 22, 2014, he was driving a transport truck in Ontario and committed the Highway Traffic Act offence of “following too close”. This ticket arose after a complaint from the public of erratic driving by Mr. Matharu;
Third, on December 6, 2015, he committed the Highway Traffic Act offence of “improper seat belt” in Ontario in his transport truck;
Fourth, on June 14, 2016, which was 10 days before the offences in the present case, Mr. Matharu committed the offence of “disobeying the direction of an officer” in relation to an inspection of his transport truck in Manitoba.
17Mr. Matharu’s driving record also notes two collisions where no charges were laid, on June 17, 2015 (in his car in Winnipeg) and on June 15, 2016 (in his transport truck in Calgary). This latter incident was nine days before the offences in the present case.
D. THE POSITIONS OF THE PARTIES
18The Crown submits that the appropriate total sentence in this case is between 10 and 12 years imprisonment. The Crown arrives at this range by submitting that a case like R. v. Bhangal, 2016 ONCA 857, where a five year sentence was upheld by the Court of Appeal should be the starting point because it bears some similarities to the present case but was a much less serious offence. The Crown submits that the present case is analogous to R. v. Muzzo, 2016 ONSC 2068 where Fuerst J. sentenced the accused to 10 years imprisonment on four counts of impaired driving causing death and two counts of impaired driving causing bodily harm. The sentence in that case was mitigated by the fact that the accused pleaded guilty, and the Crown notes that there is no similar mitigation in the present case. The Crown also seeks two ancillary Orders: a 10 year driving prohibition, upon completion of the jail sentence; and a DNA sample Order.
19The defence submits that a five year sentence of imprisonment is appropriate on the basis that the case law supports a mid-single digit penitentiary sentence as the norm. The defence submits that the Muzzo case is outside this range and is easily distinguishable, given the accused’s much higher degree of moral culpability in that case. The defence does not oppose the two ancillary Orders sought by the Crown.
E. ANALYSIS
20The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles. The fundamental principle of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender,” as set out in s. 718.1.
21In the present case, there are a number of significant aggravating circumstances relating to both the offence and the offender, as follows:
First, Mr. Matharu was a trained and licensed commercial truck driver and he was driving a large heavy tractor-trailer that required more time and distance to slow down and safely come to a stop, and that was capable of causing extraordinary amounts of harm in a collision. In these circumstances, a higher standard of care was expected of Mr. Matharu;
Second, the location in which Mr. Matharu was driving was a reduced speed construction zone, approaching an obviously congested series of exit ramps, at one of the busiest intersections of two major highways in the middle of Metropolitan Toronto. The slowing and stopping traffic up head was easily visible from a distance, especially from Mr. Matharu’s high vantage point in his tractor-trailer. In these particular circumstances, a high degree of caution and care was required and yet Mr. Matharu was accelerating, above the reduced speed limit, and was failing to brake in a timely way;
Third, he was sleep-deprived and he was distracted by lengthy cell phone conversations with his friends. He deliberately chose to engage in these risky behaviours and they must have contributed to the collision;
Fourth, the extraordinary levels of resulting harm in this case situate it at the higher end of gravity. The amount of death, injury and psychological trauma, property damage, monetary loss, and public danger and disruption are truly exceptional;
Fifth, Mr. Matharu has a not insignificant driving record and some of his prior offences are related to the present case; and
Sixth, Mr. Matharu falsified his Log Book records in order to avoid being caught and ticketed for driving on insufficient sleep, in deliberate and dishonest violation of his statutory duties as a truck driver.
22On the other hand, there are also some mitigating circumstances in this case, as follows:
First, Mr. Matharu has no prior criminal record. He is a first offender being sentenced to his first custodial sentence;
Second, Mr. Matharu comes from a strong family background and continues to enjoy a great deal of support from his family. He has always worked and supported that family. This pro-social background and family support infers that he has rehabilitative potential;
Third, there are some indications of remorse, although I am concerned about Mr. Matharu’s almost singular focus on blaming others and not taking responsibility;
Fourth, the potential collateral deportation consequences are an obvious mitigating circumstance, particularly given that they will have impact on Mr. Matharu’s wife and two young children;
Fifth, I am satisfied that Mr. Matharu’s employer put pressure on him to drive on insufficient sleep, and that he succumbed to this pressure because of his need to work in order to support his family. However, this factor should not be given undue weight, as will be explained below.
23This fifth and last mitigating circumstance, concerning improper pressure from Mr. Matharu’s employer, requires some elaboration. First of all, I am satisfied on a balance of probabilities that Mr. Matharu was pressured by his employer to drive the Maple Leaf Foods load of meat to southern Ontario on insufficient sleep, in violation of well-known trucking industry regulations. Mr. Matharu’s sworn evidence on this point is now corroborated by his niece’s Affidavit, as summarized above. She appears to be a person of good character and there is no challenge to her credibility or reliability. Equally importantly, the documentary and other evidence tendered at trial indicates that the load of meat was not picked up from Maple Leaf Foods in Winnipeg and then driven to the Rainbow Transport yard until 10:20 a.m. on June 23, 2016, and Mr. Matharu did not pick it up and leave the Rainbow Transport yard until about 4:00 p.m. on June 23, 2016. Furthermore, the load appeared to require “ASAP” delivery of “perishable foods” by 9:00 p.m. on June 24, 2016. These short notice and last minute timelines left Mr. Matharu with insufficient time to both sleep and deliver the load on time. See paras. 86-7 of my Reasons for Judgement where these facts are summarized. The owner of Rainbow Transport, Mr. Chahal, was approached by the police prior to the sentencing hearing, and was asked to provide a statement relating to these matters. After seeking legal advice, he declined to speak to the police. As a result, Mr. Matharu’s account is uncontradicted and it is supported by both his niece’s credible and reliable evidence and by the known facts that emerged in evidence at trial. For all these reasons, the fifth mitigating circumstance set out above has been established.
24However, its legal effect needs to be qualified. Ms. Griffiths was careful, in her submissions, not to unduly emphasize this factor. She submitted that it reduced Mr. Matharu’s moral culpability “a little” but that the resulting level of moral culpability was not “low”. I agree with this approach. In my view, Mr. Matharu’s strong work ethic made him susceptible to his employer’s pressure to take the job but there were choices he could have made. He could have refused the job and stood up to his employer’s pressure to break the law, as he had done before. He was skilled both as a truck driver and as a mechanic, he had always worked, and he could have found other lawful employment where he was not subjected to improper pressure. As Dianne Mageau testified at trial, there are good trucking companies that do not pressure their drivers to break the law. See para. 43 of my Reasons for Judgement where this evidence is summarized. Having said that, I agree with Ms. Griffiths that this factor does reduce Mr. Matharu’s moral culpability to some degree and it helps to distinguish the present case from one like Muzzo where the accused faced no such moral dilemma, as will be discussed below.
25Before leaving this issue, I should note that Manbir Kaur Matharu’s Affidavit helped her uncle, Mr. Matharu, by corroborating much of his account about the pressure to drive on insufficient sleep. At the same time, her Affidavit discloses a serious systemic problem in the trucking industry, at least in Winnipeg. This tends to magnify the need for general deterrence in this case. When truck drivers succumb to improper pressure from a trucking company owner or dispatcher, to drive on insufficient sleep or else lose their job, they are placing their own financial security and self-interest above the safety of the public. As can be seen from the disastrous results of this choice in the present case, the costs and the benefits are completely disproportionate and truck drivers must be deterred from thinking that this kind of choice is acceptable.
26Turning to the case law, both the Crown and defence agree that denunciation and deterrence are the predominant sentencing values in driving cases that cause death or serious bodily harm. See, e.g. R. v. Singh, 2018 ONSC 4598 at para. 24. Some of the aggravating circumstances that are particular to this case, such as making financially motivated decisions in advance to drive on insufficient sleep and to falsify Log Book records, and then to drive while carrying on lengthy cell phone conversations, are particularly susceptible to deterrence. See, e.g. R. v. Bhangal, infra at para. 31, per. Hourigan J. (as he then was).
27The parties filed a large and helpful joint casebook containing every Canadian sentencing decision they could find involving a commercial truck driver convicted of either dangerous driving or criminal negligence causing death. As in most sentencing decisions, the cases are all distinguishable on their facts. However, they provide useful guidance as to the appropriate range of sentence, and the parity principle. Both counsel agreed that the two cases that are closest to the present case are Bhangal and Quigley. Both cases involved commercial truck drivers who violated their statutory duties relating to safe operation of their large and potentially dangerous tractor-trailers. In Bhangal, the accused drove on insufficient sleep, he apparently fell asleep, his truck drifted into oncoming traffic, and he killed the driver of a minivan who was hit head-on. He falsified his records and he had previously received a warning about driving on insufficient sleep. In Quigley, the accused failed to inspect his air brakes each day, as required by statute, in spite of his brakes demonstrating insufficient force. He falsified his records and had previously been ticketed for operating his truck with unsafe air brakes. He rear-ended a panel truck ahead of him on the highway, when his brakes failed, killing the driver. In Bhangal, Hourigan J. (as he then was) imposed a five year sentence which was upheld by the Court of Appeal. In Quigley, McCarthy J. also imposed a five year sentence. See R. v. Bhangal, December 3, 2013 (Ont. S.C.J.), aff’d 2016 ONCA 857; R. v. Quigley, September 8, 2017 (Ont. S.C.J.).
28Although some of the aggravating features in Bhangal and Quigley are similar to the present case, the offences in those two cases were less serious. In particular, Mr. Matharu was speeding and failing to brake on a highly congested part of a six lane highway, at a point just prior to a major intersection, and in a construction zone, where his risk-taking behaviour inevitably led to consequences that were far more grave than those in either Bhangal or Quigley.
29On the other hand, I agree with Ms. Griffiths that the Muzzo case involved a higher degree of moral blameworthiness, than the present case. The main similarity between the two cases is that both accused caused four deaths, as well as serious bodily harm. Fuerst J. imposed a sentence of 10 years in Muzzo, noting the following two significant aggravating features, neither of which exist in the present case:
Mr. Muzzo made the choice to drink and then drive. When he walked off the private jet at a large metropolitan airport, he had an array of transportation options readily available to him. He could have travelled home by limousine or taxi. He could have called a family member or friend to pick him up. He made the decision to get behind the wheel of his vehicle. He took the risk that his driving would put other users of the roadway in danger.
Mr. Muzzo’s blood alcohol concentration at the time of the collision was alarmingly high. It was well over twice the legal limit, and within the range of three times the legal limit. This is a statutorily aggravating factor. There is no evidence before me of the amount of alcohol that Mr. Muzzo would have had to consume to reach a blood alcohol concentration between 190 and 245 milligrams of alcohol in 100 millilitres of blood, but it is a reasonable inference that he drank excessively.
30In my view, the present case is situated between the five year sentence imposed in Bhangal and Quigley and the 10 year sentence imposed in Muzzo. The aggravating circumstances set out above are very serious and some of the mitigating factors are weak, or they relate to rehabilitative potential which is not a primary sentencing objective in this kind of case. In addition, there is a strong need for general deterrence of Mr. Matharu’s conduct, in order to protect innocent users of our highways from similarly-inclined truck drivers. For all these reasons, the appropriate total sentence is eight years.
F. CONCLUSION
31Mr. Matharu is sentenced to eight years imprisonment on each of the four counts of criminal negligence causing death. The sentences on Counts 2, 3, and 4 are concurrent to the sentence on Count 1. He is also sentenced to four years concurrent for the offence of criminal negligence causing bodily harm in Count 5.
32In addition, the two collateral Orders requested by the Crown are granted, that is, a 10 year driving prohibition from the end of the prison sentence and a DNA Order.
M.A. Code J.
Date of Sentencing: June 25, 2021
Written Reasons Released: July 6, 2021
