His Majesty The King v. Shuvanga Khanal, 2024 ONSC 3284

Court File No.: JJ 212/22 Date: 2024-06-07

Ontario Superior Court of Justice

Between: His Majesty The King And: Shuvanga Khanal

Before: Miller J.

Counsel: C. Eastwood, for the Crown J. Baldassi, for the Defendant

Heard: May 17, 2024

Reasons for Sentence

Overview

On January 16, 2024, after a plea enquiry, Shuvanga Khanal pleaded guilty to three counts of Dangerous Driving Causing Death.

The Facts

(a) Circumstances of the Offence

[1] The Agreed Facts, accepted by Mr. Khanal on his guilty plea were as follows:

[2] At approximately 12:29 am on June 19th 2021 Shuvanga Khanal, after hiking with some friends, got into his 2006 Cadillac motor vehicle and began driving northbound on Fourth Line towards Louis St. Laurent Avenue in the Town of Milton. Traffic was light at this time and the roads were clear.

[3] After driving a short distance, Mr. Khanal abruptly conducted a U-turn while traveling at a high rate of speed and continued southbound on Fourth Line, passing back by his friends and heading towards Britannia Road. Before reaching Britannia Road, while still on Fourth line, Mr. Khanal overtook another vehicle that was also traveling on Fourth Line in the same direction.

[4] The traffic light at Fourth Line and Britannia Road was a stale red light as Mr. Khanal approached the intersection at a high rate of speed. Mr. Khanal was traveling 175 km/h in a posted 60 km/h zone as he failed to stop for the red light and proceeded to travel through the intersection.

[5] Mr. Khanal’s vehicle collided with a Mitsubishi vehicle that was traveling eastbound on Britannia Road and had just entered the intersection on a green light. The Mitsubishi vehicle was hit on the driver side by Mr. Khanal’s Cadillac. Both vehicles were sent flying into a nearby field where they came to a rest. Athula Karunananda (56 years old), his wife Somikelum Karunananda (59 years old) and their daughter Pradeepa Karunananda (28 years old) were all inside the Mitsubishi vehicle at the time of the collision.

[6] Athula and Somikelum were pronounced dead at the scene, and Pradeepa died during EMS transport to the hospital as a result of her injuries from the collision.

[7] Mr. Khanal also sustained serious injuries and was transported to the hospital.

(b) Circumstances of the Offender

[8] Mr. Khanal is now 31 years of age and was 28 when this incident occurred.

[9] Mr. Khanal attended Sheridan College obtaining an Electrical Engineering Technician Diploma in 2017. He was working as an Electronical Manufacturing Technician at the time of the offences and continued in that work until January 2023 when he began a Business Administration Certificate at York University which he completed in May 2024.

[10] Mr. Khanal addressed the Court following sentencing submissions by counsel. He expressed his view that it was unfair that he would lose his driving licence now that he has been back driving for two years. He said the words “I am remorseful”, but seemed more focused on the effect of the collision and the charges on his own well-being and never once apologized to the victim’s family for his actions. Nor did he speak to, in his lengthy address to the Court, any recognition of the lives he took or the impact on the victims’ family.

[11] Instead, Mr. Khanal appeared to try to explain his irresponsible actions on the effect of the COVID-19 pandemic restrictions and his inability before that night, to go out with his friends. He spoke of only being able to drive to and from work, and not being able to do normal activities like going to the gym, and how that impacted his mental health. He spoke of “knowing” those roads and that perhaps the victims did not know the roads so well. He appeared to imply that the victims were somehow at fault for his actions – driving at 175 km/h in a 60 km/h zone and running a red light when his vehicle struck theirs.

[12] Mr. Khanal has a number of previous driving convictions including, in 2011 Failing to Stop at an Intersection; 2015 Driving while holding a handheld communication device; 2017 Driving without an Insurance Card; and in 2018 two convictions for speeding and one for Driving without an Insurance Card.

[13] A number of supporting character letters were provided by Mr. Khanal’s friends and family. They describe him as a person with a strong sense of responsibility and a genuine concern for the well-being of others. He is also described as kind and compassionate and that he contributes to the community by volunteering his time. They speak to the physical challenges he has faced since the collision and the mental stress on Mr. Khanal that has been occasioned by the outstanding charges. Some of the letters refer to Mr. Khanal as “truly remorseful”.

[14] A letter from the Nepalese Community Services indicates that Mr. Khanal has been an active long-term volunteer since 2008.

[15] Many of the letters refer to the “accident” and describe it as “unforeseeable”. Others describe it as “bad luck” and “bad timing”. None of the letters, except the letter from Mr. Khanal’s parents, mention that three people were killed as a result of Mr. Khanal’s dangerous driving.

[16] A number of medical documents were also filed on Mr. Khanal’s behalf. Remarkably, the initial medical reports incorrectly indicate that Mr. Khanal was a passenger in the vehicle and the (4) deceased had been in the same vehicle.

[17] It is clear from these documents and from the submissions of Mr. Khanal’s counsel that Mr. Khanal received multiple significant injuries as a result of the collision, and has been on a long rehabilitative journey since. Metal rods were inserted as part of many surgical procedures and they will remain with Mr. Khanal for the rest of his life. Despite this, he seems to have made a good physical recovery although he continues to experience anxiety around driving. He has now returned to driving despite this anxiety. The reports recommend ongoing “psycho-emotional intervention” as early as April 2022 although there is no indication that Mr. Khanal has pursued this.

[18] Counsel for Mr. Khanal submit that while he was actively involved in sports before the collision he is now unable to even coach these activities due to his physical limitations.

[19] The injuries suffered by Mr. Khanal must be considered as they are direct consequences of Mr. Khanal’s conduct, and must be factored into the need for specific deterrence. As noted by the Supreme Court of Canada in R. v. Suter, 2018 SCC 34 at paragraphs 48-50:

48 Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code - as they do not relate to the gravity of the offence or the level of responsibility of the offender - they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

49 Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished" (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender.

50 Professor Manson writes: "When an offender suffers physical injury as a result of an offence, this may be relevant for sentencing purposes especially if there will be long-lasting effects" (p. 136). Though Professor Manson had in mind a scenario where an offender is injured while committing a driving offence, in my view, his comments apply to any offender who suffers injury as a result of an offence. In fact, the attenuating effect of an injury on the sentence imposed will likely be lessened where the injury is so directly linked to the offence as to be almost inevitable (see para. 49). For instance, an injury resulting from an impaired driving offence (a foreseeable consequence of driving while impaired) may have less of an attenuating impact on the sentence imposed than if that same injury resulted from an unforeseeable event arising out of the offence.

[20] I have no doubt that Mr. Khanal is at heart a good person. He has strong family and community support. I accept that he did not intentionally kill the victims (he would be facing far more serious charges) but he is, at this point, far from taking full responsibility for his actions. As Mr. Khanal’s parents put it so poignantly in their letter of support for him: we cannot control every decision he makes nor shield him from the consequences of those decisions.

[21] Counsel for Mr. Khanal point out that the collision was widely reported in the media, including internationally, as indicated in the Victim Impact Statements. They submit that this may have an impact on Mr. Khanal’s future employment prospects.

Impact on Victim and/or Community

[22] The Court received Victim Impact Statements from Dinusha Fernando; Lanka S. Karunananda and Tashiya Halahackone.

[23] Tashiya Halahackone described her friend Pradeepa as “a beacon of strength in the healthcare field, touching countless lives and making each person [she] encountered a little brighter- even passing [her] nursing exam a few days before the accident.” She described the heartbreak of losing her supportive friend as well as her friend’s parents.

[24] Lanka S. Karunananda spoke of the devastating loss of her brother Athula, his wife and daughter. She spoke also of the impact on their father in Sri Lanka when he learned of his son’s death. In addition, she has had to deal with the expense and disruption to her own family life as a result of having to travel to Canada to settle her brother’s affairs.

[25] Dinusha Fernando spoke on behalf of her family who were family friends of the victims. They had known them for many years and were devastated by their loss.

[26] It is important to recognize as well the traumatizing effect this collision must have had on the witnesses who observed it, and to the first responders who attended and tended to Mr. Khanal and attempted to save the life of Pradeepa Karunananda.

Legal Parameters

[27] The maximum punishment for dangerous driving causing death is imprisonment for life. The driving prohibition is for any duration at the discretion of the court, plus the entire period to which the offender is sentenced to imprisonment. A conditional sentence is legally available if a custodial term of up to two years less a day is appropriate.

[28] Dangerous Driving Causing Death is a secondary designated offence pursuant to s. 487.04, as it may be prosecuted by indictment and has a maximum sentence of imprisonment over five years.

Position of Crown

[29] The Crown seeks a global sentence of 5-6 years in custody, to be followed by a 10 year driving prohibition. The Crown also seeks a DNA order.

Position of Defence

[30] Counsel for Mr. Khanal seeks a conditional sentence of two years less one day with suggested conditions of:

For the first 18 months, house arrest, enforced by electronic monitoring, with exceptions for School, Work, Medical and Weekly Necessities of Life as approved by the CSO supervisor; 200 hours of community service as approved by the CSO supervisor; and to report and follow the direction of the CSO supervisor, including such counselling as may be recommended.

For the remaining 6 months less a day, counsel suggest it would be appropriate for Mr. Khanal to follow a curfew with exceptions for medical, school, work as approved by the CSO supervisor; and to report and follow the direction of the CSO supervisor, including such counselling as may be recommended.

[31] Counsel for Mr. Khanal also submits that there should be three years probation to follow the conditional sentence, also with conditions.

[32] Counsel for Mr. Khanal agrees that a ten-year driving prohibition is appropriate, and takes no position on the DNA order.

[33] Counsel for Mr. Khanal submit that the range of sentence sought by the Crown is not inappropriate in general for this type of offence but would be an unfit sentence for Mr. Khanal, who, they submit, does not need to be removed from society in order to properly address the sentencing principles.

[34] Counsel for Mr. Khanal submit that a sentence of this nature will put Mr. Khanal under community supervision for as long as the five-year custodial sentence the Crown seeks, with greater emphasis on rehabilitation.

Case Law

[35] Counsel for Mr. Khanal rely on several cases in which conditional sentences were imposed for Dangerous Driving Causing Death.

[36] The case on which counsel for Mr. Khanal primarily relies is an unreported decision of R. v. Khan of Durno J. from February 16, 2023. The accused in that case was also a young first offender. He was racing another vehicle when he struck it and lost control of his own. One passenger was seriously injured and another passenger (the girlfriend of the accused) was killed. The accused also suffered serious injuries. In that case a conditional sentence was imposed. Counsel for the accused in that case submitted that it was an “exceptional case given the passage of time, the plea, the strong and sincere indications of remorse, as well as the important steps the offender has taken on his own initiative after the offences.” In that case the Crown agreed that an appropriate custodial sentence was one of two years less a day.

[37] Other cases relied on by counsel for Mr. Khanal include R. v. Beedawia, 2023 ONSC 1898 in which a conditional sentence of two years less one day was imposed, followed by three years’ probation, for convictions, following a trial, for one count of Dangerous Driving Causing Death and one count of Dangerous Driving Causing Bodily Harm. The accused in that case, while driving a tractor trailer, had driven through a stop sign without stopping when he collided with the victim’s vehicle. Neither vehicle was travelling over the posted speed limit, although the trial judge found that the accused should have reduced his speed to adjust to foggy weather conditions.

[38] In R. v. Boutrous, 2023 ONCJ 266 the accused was driving at twice the 60 km/h speed limit and struck the victim’s vehicle which had suddenly initiated a u-turn. There was one count of Dangerous Driving Causing Death. A conditional sentence of two years less one day with electronic monitoring was imposed, followed by two years of probation. The accused was 18 at the time of the offence and had no criminal or driving record. She had been in therapy since the incident and had serious mental health issues arising from the incident. She had indicated almost immediately following being charged and retaining counsel that she wished to plead guilty. She was profoundly remorseful. The sentencing judge found that her moral blameworthiness for the event should be mitigated to some degree by the totality of circumstances which played a role in the accident, including the victim’s untimely U-turn. The Crown had sought a custodial sentence of 15 to 24 months.

[39] In R. v. Hutchinson, 2024 ONCA 385, cited by counsel for Mr. Khanal, where a conditional sentence of two years less a day followed by two years’ probation and a 10 year driving prohibition was imposed for Dangerous Driving Causing Death (the death having occurred after the accused’s plea of guilty to Dangerous Driving Causing Bodily Harm), the Court of Appeal upheld the driving prohibition (which was the sole basis for the appeal). The Crown provided the sentencing decision in which the sentencing judge found that the appropriate custodial sentence would have been between 12-18 months.

[40] In R. v. Ryazanov, 2008 ONCA 667, for a single count of Dangerous Driving Causing Death a conditional sentence was upheld, in the unusual circumstances where the Crown had undertaken not to appeal a conditional sentence. The two accused in that case were 18 year old first offenders with positive pre-sentence reports who were extremely remorseful.

[41] Counsel for Mr. Khanal point out that generally, courts must look to alternatives to incarceration where appropriate. The principle of restraint is codified in s. 718.2 (e) of the Criminal Code as follows:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders

[42] Counsel for Mr. Khanal cite R. v. Batisse, 2009 ONCA 114 wherein the sentencing judge was criticized for failing to give express consideration of the effect of the sentence on the appellant's rehabilitation.

[43] As recognized in R. v. Sousa, 2023 ONCA 100, the principle of restraint takes on an elevated importance where the case involves a first-time offender who is youthful. And the restraint principle continues to be applicable in circumstances where the primary sentencing principles are denunciation and deterrence: R. v. A.B., 2023 ONCA 254; R. v. S.K., 2021 ONCA 619.

[44] The Crown points out that in R. v. Proulx, 2000 SCC 5, at paragraph 129, the Supreme Court noted that:

. . . dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties …

[45] The Ontario Court of Appeal in R. v. Regier, 2011 ONCA 557 upheld a six year term of imprisonment for two counts of Dangerous Driving Causing Death and one count of Dangerous Driving Causing Bodily Harm. The accused in the case had a serious and lengthy driving record.

[46] A useful summary of sentencing cases for Dangerous Driving Causing Death can be found in R. v. Robertson, 2022 ONCJ 240 from paragraphs 76-101, and in particular, reference to cases where multiple deaths resulted. In that unusual case a 17 year custodial sentence was imposed.

[47] The Crown relies on R. v. Benjumea, 2022 ABQB 44 in which the accused was sentenced to 7.5 years, each concurrent, for three counts of Dangerous Driving Causing Death. He received a consecutive sentence of 18 months for leaving the scene. In that case, at paragraph 53, the court noted that while death, as an essential element of the offences could itself not be considered as an aggravating factor, the fact there were three was. Further, while dangerousness could not be considered an aggravating factor, excessive dangerousness could.

[48] The Crown further relies on R. v. ChrisJohn, 2023 ONSC 6299 where a four-year sentence was imposed for one count of Dangerous Driving Causing Death. The accused was also a youthful first offender and Gladue principles were applied at sentencing.

[49] In R. v. Edminston, 2023 YKTC 24, the court imposed concurrent sentences of four years eleven months on two counts of Dangerous Driving Causing Death and a further concurrent two and half years for Dangerous Driving Causing Bodily Harm.

[50] The Crown also relies on R. v. Obermok, 2023 ONCJ 401 where for one count of Dangerous Driving Causing Death and one count of Dangerous Driving Causing Bodily Harm the accused, a youthful first offender who struck another vehicle in an intersection at high speed, received a sentence of five years imprisonment. The person who died in that case was a child and the accused had some alcohol in his system at the time of the offences.

[51] Of note, in that case, are the comments of the sentencing judge on the seriousness of these types of offences, Parliament’s recognition of the seriousness by imposing higher maximum penalties, and the effect this has had on the appropriate range. At paragraphs 53-56 the court noted:

53 Firstly, Parliament changed how these offences can be punished. As of 18 December 2018, a whole new regime governing driving offences came into effect. Among the myriad changes, maximum sentences for dangerous driving causing bodily harm or death were increased. Prior to the changes, the maximum sentences were ten years and fourteen years, respectively. Under the new legislation, the maximums have increased to fourteen years and life imprisonment. While no one is advocating for the maximum sentences in the present case, the changes are still important because they signal Parliament's wishes. As stated by Justice Watt in R. v. Lis, 2020 ONCA 551 at paragraph 49:

Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament's decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence: Lacasse, at para. 7; Friesen, at paras. 96-97. To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentence: Friesen, at para. 100.

54 Similarly, Parliament increased the maximum sentences for impaired operation causing bodily harm and driving with excess blood alcohol causing bodily harm to equate them with the penalties for the corresponding dangerous driving offences. Parliament now treats serious impaired driving offences and serious dangerous driving offences equally.

55 Secondly, sentencing courts have begun imposing much harsher sentences for these offences than was the case previously. While Robertson may represent the high-water mark for such cases, the imposition of lengthy penitentiary sentences, especially in cases with multiple victims, has become increasingly common. This may be, at least in part, the result of the frustration felt by sentencing judges and referred to by Justice Caponecchia in Robertson at paragraph 110:

To the extent that this sentence represents a departure from the cases that have come before it, I would note that the Ontario Court of Appeal very recently recognized that trial judges may, from time to time, become frustrated with a particular approach that is developed by appellate courts. Trial judges are on the front lines of the justice system and they will be the first to see if a particular approach is either not working or has become outdated.

56 The case Her Honour refers to is R. v. Lynch, 2022 ONCA 109, where Justice Nordheimer acknowledged that "our approach to sentencing is not, and should not be, fixed in stone. Sentences may increase or decrease as societal and judicial knowledge and attitudes about certain offences change" (see paragraph 12). It is clear, through the actions of a democratically elected Parliament, that attitudes towards serious driving offences have changed. Those changes must be reflected in the sentences courts impose.

[52] These cases, without exception, stand for the proposition that for Dangerous Driving Causing Death, the primary sentencing principles are denunciation and deterrence, and that the sentence imposed must be such that it appropriately addresses those principles in the individualized circumstances of each case.

Mitigating Factors

[53] Shuvanga Khanal is given credit for his plea of guilty and accepting responsibility for his actions through his plea. I do note that the plea occurred only a few weeks before trial. While Mr. Khanal’s plea meant that court resources were saved and witnesses were spared the ordeal of testifying, I do note that witnesses did have to testify at the preliminary hearing of this matter. Credit for the guilty plea is not the same as it might have been had it occurred earlier in the process.

[54] Mr. Khanal very obviously has the support of friends and family, shown through the many character letters filed on his behalf and by the large number of people who attended court to support him. This bodes well for his rehabilitation and for him continuing to be contributing member of the community.

[55] Mr. Khanal is a relatively youthful first offender, who has been a contributing member of the community both before and after the offences were committed. He has not incurred any new charges since the offences were committed. He has demonstrated a resolve to persevere and to overcome the significant injuries he himself suffered from the collision.

Aggravating Factors

[56] Section 320.22 (a) of the Criminal Code mandates that the court shall consider, in addition to any other aggravating circumstances, that the commission of the offence resulted the death of more than one person. Where the court imposes concurrent sentences for multiple counts of Dangerous Driving Causing Death arising out of the same incident, the multiple deaths are appropriately considered to be an aggravating factor.

[57] While the court must not consider as aggravating any essential element of the offence, certain aspects of the dangerousness of the driving may be considered aggravating. In this case the dangerous driving by Mr. Khanal preceding the collision may be considered as aggravating. These include the abrupt, high-speed u-turn and the passing of at least one other driver at high speed before approaching the fatal intersection.

[58] The fact that Mr. Khanal entered the intersection against a red light is itself dangerous, and causally related to the deaths of the victims. But I find the fact that he did so at 175 km/h in a 60 km/h zone is an aggravating factor.

[59] Mr. Khanal’s driving record is somewhat dated, and is not lengthy, but it contains a conviction for failing to stop at an intersection and two convictions for speeding. This shows that Mr. Khanal’s disregard for the rules of the road is not new.

[60] There is significant victim impact here, as set out in the Victim Impact Statements. The loss of this entire family, and in particular the young woman who had just graduated university and was about to embark on her adult life has been devastating to the friends and family of the Karunananda victims of Shuvanga Khanal’s offences.

Principles of Sentencing

[61] I have considered the principles of sentencing set out at s. 718, s. 718.1 and s. 718.2 of the Criminal Code, including s.718.2 (b) which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[62] I have also specifically considered the principle of totality, and it is appropriate in these circumstances that the sentence for each offence be served concurrently.

[63] In this case, with Mr. Khanal, it appears that s. 718 (f) needs to be addressed: to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[64] I also have at top of mind, s. 718.2 (e) which provides that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

Reasons

[65] Given his medical situation Mr. Khanal was not arrested but was simply summonsed to attend court when he was charged with these offences. As a result he has had no restrictions on his freedom, other than those caused by his injuries, since the offences were committed. There is also no pre-sentence custody to be considered.

[66] It is difficult to reconcile the kind, compassionate, selfless individual described in the character letters with the young man who acted so selfishly on June 19, 2021. Shuvanga Khanal spoke in court of essentially going for a rip to celebrate freedom from months of COVID pandemic restrictions. This selfish act took the lives of three other people, and seriously injured himself.

[67] I find that the severity of this collision, the excessive dangerousness of the driving, and the loss of three lives warrants a sentence above the two years less a day which is the outside limit for a conditional sentence order. Even taking into account the mitigating factors in Mr. Khanal’s favour, and his prospects for rehabilitation, which I find are good, the primary sentencing considerations here of denunciation and deterrence take the appropriate range beyond that available for a conditional sentence.

[68] I am encouraged by the family and community support for Mr. Khanal and I am optimistic for his rehabilitation. I recommend that he pursue counselling to assist in achieving some insight as to the enormity of the consequences of this one selfish act.

[69] While I am confident that the sentence sought by the Crown is not inappropriate, when according credit for his plea, his good behaviour following the incident and the serious injuries Mr. Khanal himself suffered, I am of the view that a fit sentence is a period of incarceration of four years and that is what I impose.

[70] The period of incarceration will be followed by a ten-year driving prohibition. I am mindful that Mr. Khanal views this as unfair, but I see it as a necessary adjunct to the deterrent effect of the sentence.

Ancillary Orders

[71] As Dangerous Driving Causing Death is a secondary designated offence pursuant to s. 487.04, as it may be prosecuted by indictment and has a maximum sentence of imprisonment over five years, there will be an order authorizing the taking of the number of samples of bodily substances from Shuvanga Khanal that are reasonably required for the purpose of forensic DNA analysis, pursuant to s.487.051(3) of the Criminal Code.

[72] In making this order I have considered Mr. Khanal’s lack of criminal record, but the presence of a driving record, the nature of the offences, the circumstances surrounding their commission and the impact such an order would have on Mr. Khanal’s privacy and security of the person. In all of the circumstances here I am of the view that it is in the interests of justice that such an order be made.

Miller J. Released: June 7, 2024