Her Majesty the Queen v. Sarbjot Pandher

COURT FILE NO.: 19-93

DATE: 2021/11/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Sarbjot Pandher Defendant

Counsel: Elaine Evans, counsel for the Crown Gurpreet Singh Dhaliwal, counsel for the Defendant

HEARD: February 24th, 2021

Lafrance-Cardinal, J.

[1] On February 24th, 2021, after many delays, Mr. Pandher pled guilty to one count of dangerous driving causing death and two counts of dangerous driving causing bodily harm. The maximum sentences provided by the Criminal Code are of 14 years and 10 years respectively.

[2] Defence is asking the Court to consider a sentence of two years incarceration, all facts in. The Crown concedes it was seeking as sentence of 5 years incarceration after trial, but considering the plea of guilt, their revised position is that a sentence of 4 years plus the maximum driving prohibition would be a fair and just sentence taking into consideration all sentencing principles.

The facts

[3] An agreed Statement of Facts was filed indicating we are dealing with a fatal multi-vehicle collision which occurred August 21, 2017, shortly before 2:30 p.m. on the Westbound portion of Highway 401, slightly East of the Bainsville ONroute Plaza. One person was killed, two were seriously injured.

[4] Mr. Pandher received his Ontario class AZ commercial driver’s licence in April of 2017, the licence permitted him to operate tractor trailers with a gross weight exceeding 4600 kg. At the time of the accident, Mr. Pandher had been working for Sunrise Freight since July 19th, 2017 some 34 days before the accident.

[5] On the day in question, a construction zone was in place on Highway 401 and had been since June 19th, 2017. The construction zone consisted of an 80 km speed restriction and the closure of the left-hand lane, commonly known as the passing lane. The high visibility signage warning of the construction zone and lane closure commenced approximately 5 km before the said zone. The signs were on both the left and the right shoulder of the 401.

[6] In the days preceding the collision, Mr. Pandher had driven westbound through the same construction zone on six prior occasions- August 9, 10, 11/12, 14, 17 and 19, 2017. Mr. Pandher had also driven Eastbound within view of the construction zone 7 times in the days preceding the collision, specifically August 8, 9, 13/14, 15, 17, 18 and 21, 2017, the last being earlier on the very same day of the collision.

[7] On the day in question, the visibility was clear, 27 °C, no rain, roads were straight, level bare and dry. At 2:26 p.m., traffic had built up in the westbound lanes, the backlog of traffic extended for approximately 2 km. Video cameras depict the traffic moving slowly, in the range of 10 to 20 km but following.

[8] Five of the six vehicles involved in the collision were driving slowly towards the beginning of the traffic backlog.

[9] In West to East order these vehicles and their operators were:

1. Sajjan Mahal was driving a 2006 Volvo tractor trailer for a freight company. He was in the driving lane. He had seen the construction markers, removed his cruise control and began slowing down in the preceding kilometres. As he was driving, he ensured he left sufficient space between his tractor trailer and the vehicle in front of him as required. In the moments before the collision, his speed was between 3 and 12 km/h.

2. Following Mr. Mahal was a dark gray Kia Sportage driven by Ms. Adeline Davis-Mathieu. She was also in the driving lane. Airbag Control Module data indicates her vehicle was traveling between 3 and 5 km/h in the moments before impact.

3. Third in line in the driving lane was a silver Toyota driven by Mervin Burchill. His wife Juanita Burchill was in the front passenger seat. Their speed was also estimated at between 3 and 12 km/h.

4. Fourth in the driving lane was a burgundy Dodge Ram pick-up truck driven by Tony Stewart Drew. His wife was in the passenger seat and their three-year-old daughter was in a child-seat in the back seat. He was towing an ATV on a trailer behind the pick-up. Airbag Control Module Data indicates the Drew vehicle was also driving between 8 and 12 km/h just prior to the collision.

5. Fifth in the driving lane was a silver Dodge Journey operated by Kimberly Oosting. Her 13-year-old daughter Summer Labelle was in the front passenger seat. Investigation revealed the Journey was travelling 35 km/h approximately five seconds prior to collision. The gas pedal/accelerator was not activated and the brakes were being lightly applied. Ms. Oosting was gently slowing her vehicle as she approached the Drew vehicle in front of her. Her brake lights were properly functioning and would have been visible to vehicles behind her.

6. The sixth vehicle and its operator involved was the accused, Mr. Pandher, driving a 2007 Volvo tractor trailer. He was in the driving lane with his cruise control set at 105 km/h. Mr. Pandher was aware of the upcoming construction zone having driven through it multiple times in the preceding days. His mind may have been otherwise occupied as he was talking on the phone with a friend and had been speaking to that friend for 15 to 20 minutes prior to the collision.

[10] All in all, there were 5 collisions, the most serious one being the first collision with Ms. Oosting’s vehicle. The evidence is that Mr. Pandher continued travelling at 105 km/h until he was between 27 and 45 feet behind Ms. Oosting’s vehicle. Collision reconstruction placed the tractor trailer speed at between 100 to 107 km/h at the time of the impact.

[11] Mr. Pandher’s tractor trailer smashed into the back of Ms. Oosting’s Dodge Journey. The force of the impact caused the rear of the Journey to collapse and crush forward up into the front passenger compartment. The impact of the interior roof crushing downward struck Ms. Oosting’s head causing a “medical decapitation” causing her death. This term refers to significant trauma to her skull and brainstem. The impact caused the Journey to become entangled in the front grill/bumper of the Pandher tractor trailer. The tractor trailer continued moving forward for 60-69 m as it decelerated from 105 km/h to a stop with the Journey crushed on the front of it.

[12] The force of the tractor trailer’s movements caused four more secondary collisions while the Journey was pinned to its hood/front bumper with Ms. Oosting and her daughter Summer trapped inside. Summer thankfully suffered less serious physical injuries.

[13] The second collision was between the tractor trailer/ Dodge Journey/ Mr. Drew’s Dodge Ram pick-up truck and trailer towing an ATV. In his rear-view mirror, Mr. Drew was able to see the tractor trailer barreling towards him. He shouted a warning to his wife and child and attempted to get out of harm’s way by forcibly turning his steering wheel counterclockwise to the left. The pick-up truck’s trailer was struck from behind by the Pandher tractor trailer/Dodge Journey and completely demolished. Part of the trailer became entangled under the front of the Dodge Journey’s wheels. The ATV on the trailer was sent airborne and landed in the north shoulder. The force of the impact buckled the rear of the Dodge Ram upwards and caused the pick-up to rotate counterclockwise as it was sent skidding off the roadway. Although the pick-up had been travelling slowly before being hit, the force of the impact sent it travelling through the grassy median spinning counterclockwise before coming to rest facing East (i.e. opposite direction).

[14] Collision #3 and #4, involved the tractor trailer/ Dodge Journey/ Mr. and Mrs. Burchill’s Toyota/ Ms. Davis-Mathieu’s Kia. Mr. Burchill remembers looking in his rear-view mirror and seeing the tractor trailer coming straight at him. He was unable to swerve or take any evasive maneuvers before being hit. They were both wearing a seat belt.

[15] The Burchill vehicle was propelled forward in the right lane and hit the rear of the vehicle travelling in front of it, the dark gray Kia driven by Ms. Adeline Davis-Mathieu. Ms. Davis-Mathieu was wearing a seat belt. Her vehicle was propelled forward by that contact.

[16] Ms. Davis-Mathieu remembered driving almost at a stand-still in a stop-and-go pattern. She looked into her rearview mirror and saw the grill of the tractor trailer “barreling down” at her. She stated she had time to think “he’s not stopping” and then she was struck from behind. She had no time to take any evasive maneuver. After being struck, all her airbags deployed, her vehicle was thrown forward and she believed she was going to die. She was unable to see anything because of the airbags having been deployed but she could hear sounds from her vehicle striking multiple objects. She suffered bruises and scrapes from the impact.

[17] Mr. & Mrs. Burchill’s vehicle was still in the right/slow lane when it was struck a second time from behind by Mr. Pandher’s tractor trailer/Dodge Journey. This sent the Toyota forward and to the right. This second collision caused the Burchill’s Toyota to collide with the rear of Ms. Davis-Mathieu’s Kia a second time, with the right front of the Toyota striking the left rear of the Kia. The Toyota came to rest in the left lane, spraying coolant across the pavement. The Toyota was demolished.

[18] Mr. Pandher’s tractor trailer and the Dodge Journey continued decelerating westbound and came to rest in the exit lane for the ONroute.

[19] Collision #5 involved Davis-Mathieu’s Kia / Mahal tractor trailer. After being hit from behind by the Toyota the second time, Ms. Davis-Mathieu’s Kia was propelled forward and struck the right rear corner of Mr. Mahal’s trailer. This caused damage to the hood of the Kia and slight damage to Mr. Mahal’s trailer.

[20] Mr. Mahal pulled his tractor trailer slightly ahead following the collision. Neither Ms. Davis-Mathieu nor Mr. Mahal were injured. The multiple impacts left the Kia destroyed.

The aftermath of the collision

[21] Several good Samaritans stopped to assist and offer aid. A nurse on the scene called 911, covered Ms. Oosting’s vehicle with some sleeping bags as she could see that Ms. Oosting had passed. By then, her daughter Summer Labelle was out of the vehicle. There were concerns that Summer may have suffered a neck injury. Summer kept asking about her mother, at one point she told the nurse who was holding her head and neck “please God if you exist please save my mother. I don’t have a father and without her I will be all alone”

[22] The “jaws of life” had to be used to extricate Ms. Oosting from her crushed car. She was pronounced dead at the scene.

[23] Mr. Drew suffered a serious strain to his neck and shoulder. He required medical treatment, medication and physiotherapy. The injuries affected his employment.

[24] Mr. Burchill suffered a large cut to his left leg below his knee which led to him developing cellulitis. His foot became discolored, his knee swelled. He required medical treatment and medication. Xrays revealed he had bruised ribs but no fracture. He has since recovered of his injuries.

[25] Mechanical inspection of the tractor trailer indicated no faults, no recalls or no mechanical failures could have contributed to the collision. The collision was caused by Mr. Pandher’s inattention, his carelessness, his negligence, his lack of regard for the rules of the road or obedience of road signs.

The accused

[26] I was given very little information about the accused other than he was 21 when the collision occurred. He had obtained a G1 learner’s permit in September 2015, his commercial driver’s licence in April of 2017. He is in Canada under a working Visa, he has applied to extend it. He attended Sheridan College and St. Lawrence College in the business management course. His counsel has indicated that he will be deported to India. He is asking that I recommend an early deportation which is contested by the Crown. I have no evidence that early deportation is even available to someone who will be sentenced to a penitentiary period of custody and consequently I am not prepared to make any such recommendation. I have no evidence of remorse coming from Mr. Pandher, other than what he has said this morning.

The Victim Impact Statements

[27] Mr. Patrick Dorval speaks of a 32-year-old mother who left 3 children behind. He was the new boyfriend who barely knew the children, who took it upon himself to be there for them and to raise them. He not only had to grieve and assist the children with their grieving process but he also had to go through Children’s Aid Society proceedings. He speaks of the toll the court proceedings had on the children. Their fear that they would lose their home. How one of the children now has motricity tics that are similar to epilepsy. Mr. Pandher’s dangerous driving had implications not only on the 3 children that were left behind but also on Mr. Dorval, on their families and on all of the services involved.

[28] Summer Labelle was with her mother in the car in an accident that took her mother’s life. She speaks that it was the end of an era, the end of a lifetime. She states and I quote:

“There are times I lay awake wondering what would have happened had I done at least one thing different that morning. Would it have made a difference? Might my little brother still have made a mother to teach him the ways of life? Would my older sister have had a mother to watch her graduate and congratulate her? Might Patrick not have had to suffer the loss of a loved one taken so soon? Might I have not had to hear their cries with no way of helping? These questions have kept me awake at night. I already had a hard time sleeping. Now I find some nights it’s impossible. Some of those nights when I close my eyes I still see her there. What she looked like that day and what she looked like after. Each day it gets harder to remember what she looked like before the crash. Only during, I don’t think I’ll ever forget that. I still get antsy when we go on the highway but it’s gotten a lot better. It helps when the driver isn’t female, I can only do that when I’m well acquainted with the person. But even then I still hold my breath when a transport truck drives by. I don’t think that’ll ever change. The first year it was really bad but now like I stated I’ve gotten better. I refuse to live in fear all my life”

[29] She speaks of her little brother and the toll it has had on him. She states:

“My little brother was only in 5th grade when it happened. Now, he will never get to experience the kiss of his mother again. He will never get to ask her for advice. He will forever have only memories, many that he probably will forget as he gets old. I know they all try not to cry in front of me but I know he has it hard. I knew from the moment he came to the hospital and didn’t want to leave my side. At first, because I was still not thinking straight I had thought he only wanted to be there because he had never spent the night in the hospital. But now that I look back on it he was just scared. He lost his mother and would have lost one of his older sisters too. He was scared that if he left me I’d die too. I’d leave him all alone with just Phoenix there for him. Even now I know there’s a part of him that fears that. I know because of how even now he sticks to my side at times. We used to not be as close. I’d be in my world and he’d be in his. But now, he will come and talk to me about what he’s been up to and what’s been going on at school. I know the names of his friends, teachers and extra classes, things I didn’t before. I’ve always enjoyed being by myself and keeping to myself but now I can’t be left too long with my thoughts or I’ll think of the what ifs. So having my little brother there helps a lot and I know, even if he doesn’t talk about it, it helps him too”

[30] Then she talks of Phoenix, her older sister.

“Phoenix doesn’t really talk about what happened to anyone. She keeps it to herself. The only person I know she has spoken to about it is Patrick. He found her one night crying, wishing for her mom. I can’t imagine what she was going through. The year before her graduation year and she lost her mother, the most important figure to her. Grade ten is said to be the hardest high school school year you will have. Imagine not just the stress from that but also the pain of losing the only constant parent you had. All Phoenix had was our mother. They were close and she was her go to in life. Now she has to experience life’s events without the one person who should be with you through it all”

[31] She speaks of Patrick and how she and her siblings are and will be forever grateful for stepping up to the plate, when he had no legal obligation to do so and keeping the family together. She says he has fought tooth and nails to keep the family together. He has taken on the role of a parent with all of its financial obligations. She is happy that he is permanently a part of their lives.

[32] No victim impact statements were provided from Mr. Drew or Mr. Burchill.

The law

[33] Section 718 of the Criminal Code sets out the objectives of the principles of Sentencing.

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[34] Section 718.2 indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[35] The mitigating factors in this case are the following:

a) the plea of guilt, acknowledging wrongdoing and taking ownership for the dangerous driving that occurred on August 27th, 2017. The plea was taken during “a pandemic” where court resources were more than limited. It saved the victims and their families grief and stress in having to come and testify.

b) the fact that Mr. Pandher does not have a criminal record and is a young person. He was 21 at the time of the offence.

[36] The aggravating factors in this case are as follows:

a) The death of a young 32-year-old mother and the devastating impact this had on her 3 young children and her partner.

b) The injuries to two other individuals, the effect the collision had on them and on everyone else who found themselves on Highway 401 on that particular day and who were parties to the collision or witnesses of the collision.

c) Driving a tractor trailer was Mr. Pandher’s job, he is a professional driver, he owed a duty of care to other drivers, to drive responsibly, to follow the rules of the trucking industry.

d) Mr. Pandher was falsifying his logbooks. He was in reality not following the regulations regarding hours of driving and hours of rest. The geospatial analysis filed as Exhibit 5 is proof that he was taking insufficient rest periods and driving an excessive amount of hours in violation of the safety regulations demanded from the trucking industry. Logging in 84.25 hours as “on duty time” when in reality he drove 164.5 hours during that time almost double what is acceptable. This lack of sleep and driving long hours may have been a contributing factor in the collision. He acted in callous disregard for the safety of others with whom he was sharing the road.

[37] Mr. Pandher’s actions leading up to the day of the collision was fuelled by greed, he falsified his logbooks, drove double the hours he was reporting for the sole purpose of making more money. He put his personal economic interest ahead of public safety. Mr. Pandher’s moral blameworthiness is heightened by his tampering of his logbooks and by driving almost double the hours he falsely reported.

[38] Section 718.2 (b) of the Criminal Code also states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[39] The Crown has given me 6 sentencing cases to consider, 5 of which were rendered after trial. (R. v. Bhangal 2016 ONCA 857, [2016] OJ 5852 (OCA), R. v. Singh [2018] ONSC 386 upheld [2019] OJ 5634, R. v. Rij [1993] O. J. 4381 (Ont.Ct. (Gen.Div.), upheld [1994] OJ 2850 (ONCA), R. v. Bagri 2017 BCCA 117, [2017] BCJ 473 (BCCA), R. v. Ubhi 1992 6000 (BC CA), [1992] BCJ 1581 (BCCA). In those cases, the range of sentence was between 18 months jail and 5 years jail. Many of them can be distinguished. The case that would be the most similar to Mr. Pandher’s would be the case of R. v. Lavoie, a 2017 Saskatchewan case from the Queen’s Bench [2017] S.J. 452. The accused in that case had pled guilty to dangerous driving causing death and dangerous driving causing bodily harm. He too drove past multiple construction warning signs and did not slow down or stop. At the time of impact, he was driving 84 km/h in a 60 km/h zone. The accused in that case was extremely remorseful and suffered from PTSD. He had a dated criminal record of 16 years prior. However, in the Lavoie case, there was no issue with his logbook. The court imposed a sentence of 3 years and a 5-year driving prohibition.

[40] Previous defence counsel also provided the court with 8 sentencing cases, 3 of which were also provided by the Crown. The cases ranged from 18 months incarceration to 2 years less a day conditional jail sentence to 3 years jail.

[41] In R. v. Dujardin [2009] O. J. No 636, the accused was driving a tractor trailer on Highway 401 near Gananoque, shortly after midnight. The tractor trailer was speeding, there was a light rain, the pavement was wet. He hit a van from behind, killed one of the occupants and seriously impaired another one. There was an 8-day trial, he was convicted. It was found that he had smoked marijuana earlier. He was found guilty of dangerous driving causing death and dangerous driving causing bodily harm. The court refused to impose a conditional jail sentence, even though the Crown was seeking a 2-year jail sentence, the court imposed an 18 months jail sentence because of his high remorse.

[42] The other cases provided other than Lavoie are easily distinguishable on their facts. (R. v. Singh, 2010 ONSC 3398, R. v. Ryzanov (2008), 2008 ONCA 667, 237 CCC (3d) 19 (ONCA), R. v. Goulet, 2009 ONCA 786, R. v. Bagri, 2017 BCCA 117, R.v. Ernst, 2006 CarswellAlta 2472, R. v. Boyle, 2016 ONCJ 337).

[43] Defence counsel has also provided the court with the Lavoie decision which I believe is the most similar case provided to the one of Mr. Pandher.

[44] Unfortunately, sentencing in general is not a perfect science. Great discretion is offered to the judge however, it does not make the job any easier. Nothing I can do or say today will bring back Ms. Oosting or will address the repercussions of the collision on the other victims or the witnesses.

Conclusion

[45] Mr. Pandher if you could stand please:

[46] Considering the sentencing principles objectives found in S. 718 of the Criminal Code, the mitigating and aggravating factors in this case, the need to deter this type of behaviour, the principles of parity and totality, I sentence you as follows:

1. Count #1, dangerous driving causing the death of Kimberly Oosting, I sentence you to a term of incarceration of 3 years to be served in a federal penitentiary.

2. Counts #4 and #6 on the Indictment filed, dangerous driving causing bodily harm to Tony Stewart Drew and to Mervin Burchill. I sentence you to a term of imprisonment of one year concurrent to each other and concurrent to count #1.

3. I am prohibiting you under s. 259 (3.1) (a) to a driving prohibition of 3 years to commence upon your release from the federal penitentiary.

4. There shall be a mandatory ten-year weapons prohibition under S. 109 of the Criminal Code on count #1, concurrent on count #4 and #6. This prohibition will also commence upon your release from the federal penitentiary.

5. There will be a DNA order on secondary grounds.

6. While in the federal penitentiary there will be a no contact order with the following individuals and their families:

7. Sajjan Mahal and family.

8. Adeline Davis-Mathieu and family.

9. Mervin and Juanita Burchill and family.

10. Tony Stewart Drew and family.

11. Summer Labelle and family.

12. Patrick Dorval and family.

The Honourable Justice Johanne Lafrance-Cardinal

Released: November 10, 2021

COURT FILE NO.: 19-93

DATE: 2021/11/10

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Sarbjot Pandher

REasons for sentence

The Honourable Justice Johanne Lafrance-Cardinal

Released: November 10, 2021