Court File and Parties

COURT FILE NO.: CR-22-576 DATE: 2024 03 08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING R. Lemke and P. Renwick, for the Crown

– and –

JARNAIL RANDHAWA E. Brown and A. Abassi for Mr. Randhawa

HEARD: January 12 and February 9, 2024

REASONS FOR SENTENCE

J.M. Woollcombe J.

Overview

[1] Jarnail Randhawa was charged with the first degree murder of his wife of 32 years, Dalbir Randhawa. On January 12, 2024, after a comprehensive plea inquiry, he entered a plea of not guilty to first degree murder, but guilty to the lesser and included offence of second degree murder. He is before me for the imposition of sentence.

[2] Section 745 (c) of the Criminal Code provides that a person convicted of second degree murder is to be sentenced to life imprisonment without eligibility for parole until the person has served at least 10 years of the sentence, or such greater number of years as has been substituted under s. 745.4, to a maximum of 25 years. The factors to consider are: (1) the character of the offender; and (2) the nature of the offence; and (3) the circumstances surrounding its commission. Mr. Randhawa will receive a life sentence. The only issue before me is the period of his parole ineligibility.

[3] I will address first the nature of the offence and circumstances surrounding its commission and, second the character of the offender.

The Nature of the Offence and the Circumstances Surrounding its Commission

[4] The murder took place on June 2, 2021. Mr. Randhawa and his wife Dalbir had been married in India and moved to Canada in 2006. They lived together in Brampton. They have three adult children. At the time of her death, Dalbir was 64 years old. She had retired a year earlier. Mr. Randhawa continued to work as a security guard. There was no history of any intimate partner issues between them and no marital or financial issues.

[5] At about 9:00 p.m. on June 2, 2021, the couple left home for their nightly walk in the neighbourhood. They went along a footpath behind some residences. Shortly after, Mr. Randhawa attacked his wife with a knife. A 911 call was placed by others on the trail who saw the victim lying there. Police responded and located Dalbir, who was deceased, with severe head trauma and multiple stab wounds. The autopsy revealed that her body had 35 sharp force injuries including numerous stab wounds to her head, neck, torso and limbs, as well as a stab to the genitals.

[6] Mr. Randhawa left with the knife. It was later recovered near the entrance to the trail. Shortly after, he was seen running north on Highway 410, jumping into oncoming traffic. He called his niece, telling her “I’m going to die, I’m going to die, I jumped into the 410”.

[7] Early the next morning, shortly after 5:00 am, Mr. Randhawa went to the Sikh Temple. Video shows that he went inside the Temple, appears to have cleaned up and changed his clothes and then left his bloody clothes behind. He proceeded to the area of the Cassie Campbell Community Police Station. Just before 7:00 a.m., he was located by Peel Regional Police and arrested for murder.

[8] Mr. Randhawa has said that he and his wife had an argument that evening over small matters and that a further argument ensued during their walk. He told police that he became really upset and did not recall what had come over him.

Victim Impact

[9] No victim impact statements were filed. The Crown did, however, provide an excerpt of the evidence of one of the children of the offender and victim from the preliminary inquiry.

[10] In her evidence, Ms. Randhawa spoke about how difficult this has been for her and her family because she and her brothers have lost both their parents, whom they love. She testified about her inability to explain to her own children what had happened. She told her children that their grandmother had died of a heart attack. They continue to ask her when their grandfather is coming back. The excerpt makes clear that the emotional wounds of the killing were still fresh at the preliminary inquiry. It is not surprising, in my view, that the family members have declined to provide victim impact statements.

[11] Despite the absence of victim impact statements, there can be no doubt that this murder has torn the family apart. Family members have suffered the trauma of losing Dalbir in such a violent manner. They have suffered the emotional loss of their mother, aunt and grandmother. They have also lost their father and grandfather.

[12] Losing two parents and two grandparents is heart-wrenching. The void this offence have created in this family can never be filled. I offer to the Randhawa family my sincere condolences for your loss.

Character of the Offender

[13] Mr. Randhawa was born on May 3, 1957. He is 66 years old and appears to have led an entirely pro-social life in Canada since his arrival here in 2006. He worked, had a family and enjoyed his grandchildren.

[14] Mr. Randhawa’s family said that he was known to display occasional mood swings where he would get angry at small things and threaten to kill himself. The family became accustomed to him making threats to harm himself as the threats were frequent, but he never tried to hurt himself.

[15] While Mr. Randhawa has been in Canada since 2006, he is a permanent resident and not a citizen, meaning that he will face deportation after serving his sentence.

[16] Mr. Randhawa does not speak English. I am advised that he used to return to India regularly, but that he was not able to do so after the beginning of the pandemic in March 2020. As a result, he felt isolated, which played a part in why he snapped on June 2, 2021. While there is no medical evidence before me, the defence position is that he has undiagnosed and untreated mental health issues. The Crown disputes this, given the absence of any medical, psychiatric or psychological evidence that would support such a finding.

[17] Mr. Randhawa has expressed what I accept is genuine remorse for having killed his wife. He says he does not know what happened and that he just became crazy.

Positions of the Parties

[18] The Crown position is that there should be a parole ineligibility period of 15 years. The Crown also seeks a DNA order and a lifetime s. 109 order.

[19] The defence says that the appropriate parole ineligibility in this case is in the range of 12-15 years. It is submitted that for Mr. Randhawa, in light of all of the circumstances, parole ineligibility should be set at 12 years. The defence takes no issue with the ancillary orders.

Analysis

[20] In assessing the statutory considerations set out in s. 745.4 and determining whether parole ineligibility should be increased, all of the objectives of sentencing are relevant: R. v. McKnight, [1999] O.J. No. 1321 (C.A.), at para. 9. The objectives are set out in s. 718 of the Criminal Code. There must be consideration of the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code. Consideration must also be given to the other sentencing principles set out in s. 718.2 of the Criminal Code: R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020 SCC 9, at para. 30.

[21] Determining an appropriate period of parole ineligibility depends on the facts: R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 18. The primary purpose of setting parole ineligibility is to denounce and deter this kind of conduct. Rehabilitation is less important than in other sentencing situations: McKnight, at para. 39.

Ranges of Sentence

[22] In the R. v. McKnight, [1999] O.J. No. 1321 (C.A.), Laskin J.A. held at para. 48 that the usual range of parole ineligibility for a brutal second degree murder of an unarmed domestic partner is 12 to 15 years. Since then, the range has gone higher, from 12 to 17 years, especially where there are no mitigating factors or remorse: R. v. Tayongtong, 2021 ONCA 281, at para. 47; leave to appeal refused [2021] SCCA No 260; R. v. French, 2017 ONCA 460, at para. 31; R. v. Czibulka, 2011 ONCA 82; application for leave dismissed, [2004] SCCA 502.

[23] Both counsel filed cases that set out the appropriate range of sentence. Of the most assistance to me are the following:

• R. v. Khairi, 2012 ONSC 6819; aff’d 2015 ONCA 279: The offender was convicted of second degree murder for the stabbing of his wife in the family apartment where they lived with their six children. The 65 year old offender had no record and there was some evidence of psychological and psychiatric issues. He lacked an appreciation of the enormity of his actions. The 15 years of parole ineligibility imposed by the trial judge was affirmed on appeal.
• R. v. Praljak, 2013 ONSC; aff’d 2019 ONCA 394: The offender was convicted of the second degree murder of his wife. While he had no criminal record and no history of violence, a number of aggravating features justified an increase of parole ineligibility: the brutality of the killing, including 9 knife wounds to the victim, gratuitous violence and the fact that the deceased lived for several hours after the attack and endured tremendous pain. The 15 year parole ineligibility imposed by the trial judge was affirmed on appeal.
• R. v. Czibulka, 2011 ONCA 82. The offender was convicted after trial of the second degree murder of his wife by a severe beating. Aggravating factors included savage cruelty and the infliction of terrible injuries on the defenceless victim, whose death would have taken several hours after the beating, during which she would have been in excruciating pain. The Court of Appeal affirmed the 15 year parole ineligibility set by the trial judge.
• R. v. Soederhuysen, 2020 ONSC 6666. The first offender pleaded guilty to the second degree murder of his domestic partner. He shot her in her back and right arm and contemplated suicide before calling 911. The offender was previously of good character and was remorseful. The trial judge imposed a parole ineligibility period of 14 years.
• R. v. D.A., 2011 ONSC 462. The 41 year old first offender was convicted after trial of the second degree murder of his wife. The offender was well educated, had a good job, was a good father and had no prior criminal record. The jury rejected the offender’s defence, which was that when he strangled his wife in front of his two young children, he had been acting in self defence. He failed to offer her any assistance or to call 911, and wrapped her body in a carpet where he left it for three hours. The trial judge imposed a 12 year period of parole ineligibility.
• R. v. Persaud, 2018 ONSC 4668. The offender pleaded guilty to the second degree murder of his 70 year old wife, whom he suspected of infidelity. The offender struck the victim in the head with a weapon, at least twice, fracturing her skull in multiple locations. She was dragged down the hall and stabbed multiple times. There was an element of planning. At the same time, the offender accepted responsibility. He had no criminal record and was a hard-worker who supported his family. The sentencing judge acceded to the joint position of 12 years parole ineligibility.

Pre-sentence lock-down

[24] Lockdown records were provided and reflect the period up to the date of the sentencing hearing, February 9, 2024. Of his 983 days in custody to that point, Mr. Randhawa had 292 full lockdowns and 64 days of partial lockdowns, for a total of 356 occurrences. He was triple bunked for 615 days, or over 60 % of his time in jail.

[25] The defence submits that these conditions of incarceration would have been particularly difficult for Mr. Randhawa. Lockdowns and triple bunking make for extended periods in over-crowded cells. It also makes accessing programs more challenging. For Mr. Randhawa, who speaks no English, there were no programs he could access, according to the defence. The defence submits that there should be substantial enhanced credit given for these difficult conditions of incarceration and that that this must be taken into account as a mitigating factor.

[26] While the Crown concedes that in a conventional sentencing hearing, the court could consider the very harsh conditions of custody Mr. Randhawa faced as a mitigating factor, in accordance with R. v. Marshall, (2021) ONCA 344, the Crown submits that those principles do not apply when setting parole ineligibility for offenders convicted of second degree murder.

[27] There are, as the parties agree, authorities in Ontario that go both ways on the question of whether harsh conditions of pre-sentence custody may be considered as a mitigating factor when setting parole ineligibility for offenders convicted of second degree murder.

[28] In R. v. Morales, 2023 ONSC 1607, at para. 46-65, I set out in detail the reasons why I found that pre-sentencing harsh conditions of incarceration could be considered a mitigating factor relevant to the determination of an appropriate period of parole ineligibility. The Court of Appeal has never directly considered this issue. I was referred to one decision since Morales, in which the sentencing judge took the same view that I did: R. v. Hasan, 2023 ONSC 5323, at paras. 54-66. The Crown has not provided any reasons beyond those advanced in Morales for me to take a different view here than I did there. I decline to do so.

[29] Accordingly, for the reasons set in Morales, I find that the harsh conditions of Mr. Randhawa’s pre-sentence custody may be considered as a mitigating factor when fixing his period of parole ineligibility.

Aggravating and Mitigating Circumstances

[30] I find the following aggravating factors to be present:

a. While all killings can be characterized as brutal in some sense, this one was particularly so. This was a ferocious attack with a knife that resulted in numerous stab wounds to the victim’s head, neck, torso and limbs, including wounds inflicted after she was on the ground; b. The offence is aggravated by the fact that there is a separate and distinct injury to the victim’s genital area, gratuitous and degrading violence to an intimate part of her body; c. After inflicting the knife wounds, Mr. Randhawa left his wife on the trail to die and to be discovered by strangers; d. Mr. Randhawa’s conduct after the killing is further aggravated because he ran onto Highway 410, endangering those on the road and causing a vehicle collision; e. It is a statutorily aggravating factor under s. 718.2(a)(ii) of the Criminal Code that this was the killing of an intimate partner; and f. It is also a statutorily aggravating factor under s. 718.2(a)(iii) of the Criminal Code that in committing the offence, Mr. Randhawa abused his position of trust towards his wife. She went on their usual evening walk, trusting that she would be safe with her husband. He breached that trust in the worst way imaginable.

[31] There are also important mitigating factors to consider:

a. Mr. Randhawa entered a guilty plea. He has acknowledged responsibility for killing his wife. He has spared his family from the trauma of having to testify at trial. He has spared them from having to re-live the incident through a trial. He has saved valuable court time; b. That Mr. Randhawa feels remorse and regret was evident at the sentencing hearing. I accept what he said about not knowing what happened and regretting it; c. Mr. Randhawa has no criminal record or antecedents. Indeed, up until this offence, he appears to have led a pro-social life in which he has worked and supported his family; d. Mr. Randhawa has been under particularly onerous conditions of pre-sentence custody because of the number of lock-downs and triple bunking at Maplehurst. His time in jail would have been challenging because he does not speak English and could not access programming.

Sentence to be Imposed and Ancillary Orders

[32] Mr. Randhawa: Please stand.

[33] There is no science to determining precisely where, within the range of possible parole ineligibility periods, your particular case falls. There is no question that parole ineligibility must be more than 10 years.

[34] This is a sad case that has ripped apart multiple generations of your family. The pain that your children and grandchildren have faced is immeasurable. That pain, as a result of what you did, will last an exceedingly long time, perhaps always. No sentence can bring Dalbir Randhawa back. The sentence I impose must reflect the relevant legal principles as well as the particular aggravating and mitigating circumstances that I have set out. It must be tailored to the circumstances of what you did and to your circumstances. I have concluded that you should be subject to a period of parole ineligibility for 13 years.

[35] Mr. Randhawa, you have been found guilty of second degree murder. As I am required to by law, I impose on you a sentence of life imprisonment. You are not eligible for parole until you have served at least 13 years in custody.

[36] In addition, the following ancillary orders are made, on consent:

(i) A weapons prohibition order for life pursuant to s. 109 of the Criminal Code; and (ii) A DNA order pursuant to s. 487.051 of the Criminal Code.

Woollcombe J. Released: March 8, 2024