COURT FILE NO.: CRIMJ(P) 300/23 DATE: 20241206
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Keeley Holmes, for the Crown
- and -
JASTARAN SANDHU Brian Crothers, for Mr. Sandhu
HEARD: September 12, 2024
REASONS FOR SENTENCE
Stribopoulos J.
Introduction
[1] On the evening of September 17, 2021, Gursevek Jagpal, only 21 years old, was shot and killed.
[2] The shooting took place on a residential street in Mississauga during an altercation between two groups. A member of one group, a 16-year-old boy ("the young person"), discharged a handgun repeatedly at Mr. Jagpal and others in his group.
[3] Three bullets struck Mr. Jagpal: one in the chest and two in his left thigh; one of the bullets severed a major artery in his thigh and caused his death. A second young man, a friend of Mr. Jagpal, was also shot in the leg but thankfully survived his injury.
[4] In earlier proceedings, the young person who shot and killed Mr. Jagpal pleaded guilty to manslaughter and was sentenced for that offence under the Youth Criminal Justice Act, S.C. 2002, c. 1.
[5] Following a trial, a jury found Mr. Sandhu not guilty of second-degree murder but guilty of the lesser included offence of manslaughter for his role as a party to the fatal shooting.
[6] As the judge who presided over Mr. Sandhu's trial, I must now sentence him for his role in this senseless crime.
Circumstances of the Offence
[7] In September 2021, Mr. Sandhu, only 18, was embroiled in a dispute with another young man of the same age, Mr. Bhoon. Although they had once been friends, their relationship had deteriorated for reasons less than fully explained by the evidence heard at trial.
[8] On September 17, 2021, during the lunch hour, Mr. Sandhu and Mr. Bhoon had a confrontation in the parking lot of a high school. Later that afternoon, Mr. Sandhu escalated the conflict by smashing all the windows of Mr. Bhoon's parked car.
[9] After he did so, Mr. Sandhu eventually returned to his home, where a surveillance camera captured him interacting with his brother and his brother's friends in front of his house. His brother's friends included the young person, who had the handgun tucked out of sight in his waistband at the time.
[10] That evening, Mr. Bhoon, his older cousin, Mr. Jagpal, and two friends, Mr. Sadhara and Mr. Banga, attended Mr. Sandhu's home. During their trial testimony, Mr. Bhoon, Mr. Sadhara, and Mr. Banga insisted they had only gone to Mr. Sandhu's residence to speak to his parents about obtaining compensation for the broken car windows. Nevertheless, the evidence suggested they came prepared for trouble. For example, Mr. Jagpal had a baseball bat in his car, and Mr. Banga acknowledged bringing a metal rod with him that evening and leaving it next to or inside Mr. Jagpal's vehicle.
[11] The evidence at trial established that Mr. Bhoon and his group's attendance at Mr. Sandhu's home angered him. That was apparent from the footage from the surveillance camera that captured events in front of his home that evening before any violence occurred. Although the situation became calmer once Mr. Sandhu's father came home, the surveillance recording demonstrates that Mr. Sandhu continued exchanging words with Mr. Bhoon and those in his group even after that. Mr. Bhoon, Mr. Sadhara, and Mr. Banga each testified that Mr. Sandhu was angry and that while he stood on his front porch, he brandished a knife at them and urged them to stay put and threatened that they would "see what would happen" if they did.
[12] While Mr. Bhoon, Mr. Jagpal, Mr. Sadhara, and Mr. Banga were outside talking to Mr. Sandhu's father at the Sandhu home, phone records show that Mr. Sandhu called his brother, who was at a nearby park with his friends, including the young person with the loaded handgun.
[13] After receiving the call, Mr. Sandhu's brother and his brother’s friends hurried to the Sandhu residence on foot. Shortly before they arrived, Mr. Sandhu disconnected the surveillance camera at his home, thereby eliminating what would have been the best evidence of what happened next. [^1]
[14] Much of the evidence at the trial focused on what occurred after Mr. Sandhu's brother and his brother’s friends arrived on the street that evening. It is undisputed that there was an exchange of words between Mr. Bhoon and Mr. Jagpal's group and Mr. Sandhu's brother's group, and in the midst of that, the young person produced and pointed his handgun in the direction of the other group.
[15] On the street in front of Mr. Sandhu's home, not far from Mr. Jagpal's car, the young person with the handgun began firing it while aiming in the direction of Mr. Jagpal. The police recovered three spent shell casings in that area.
[16] A critical issue at trial was what, if anything, Mr. Sandhu said to the young person with the handgun before and after he began discharging it.
[17] Mr. Bhoon testified to hearing Mr. Sandhu while he stood on his porch, yelling, "Give him leggaz," which he understood to be Toronto rap nomenclature for shooting someone in the legs. Similarly, Mr. Banga testified to hearing Mr. Sandhu yelling loudly, "Give him leggaz, give him leggaz." While Mr. Sadhara testified that Mr. Sandhu was yelling, "Shoot them in the face, shoot them in the face."
[18] The young person who shot Mr. Jagpal testified that he had neither seen nor heard Mr. Sandhu before or after he began firing the gun. He denied hearing Mr. Sandhu yelling at him to "give him a leggaz" or "shoot him in the face." The shooter maintained that he decided to fire his handgun uninfluenced by anything Mr. Sandhu did or said.
[19] The shooter's account found support in the testimony of Mr. Sandhu's girlfriend at the time, who maintained that she and Mr. Sandhu were inside his residence, along with his grandfather, when they first heard the sound of gunshots.
[20] Additionally, an independent witness assisting a neighbour a few houses up the street to unload groceries from his car testified to seeing Mr. Sandhu's brother's group arrive on the street. After they hurriedly walked past, he testified there was complete silence before he heard the sound of gunshots, which was consistent with Mr. Sandhu not yelling anything before the shooting began.
[21] After the initial gunshots, Mr. Jagpal, by then armed with a bat, and Mr. Sadhara, who admitted that by then he was armed with the metal rod, began chasing Mr. Sandhu's brother's group, who took flight down Mr. Sandhu's street and onto an adjoining street.
[22] Mr. Sadhara acknowledged catching up with a member of the fleeing group and striking him on the head or shoulder with a metal rod. However, the evidence suggested that, in actuality, he had used a machete (one of the members of Mr. Sandhu's brother's group sustained a severe head injury, and a machete located at the scene by police was forensically determined through DNA analysis to have his blood on it).
[23] On that second street, the young person with the handgun fired several additional shots as he fled. The police recovered a single shell casing in the intersection where the two streets met and six further spent shell casings on the adjoining street. The shooter testified that with the second volley of shots, he discharged the handgun as he ran, pointing it behind him and firing it indiscriminately.
[24] Only after the gunfire subsided did Mr. Sadhara and Mr. Jagpal realize they had been shot. Mr. Jagpal soon collapsed onto the pavement and lost consciousness.
[25] It is uncertain whether the initial or later gunfire struck Mr. Jagpal. However, it seems most likely that he was hit during the first volley, as the shooter aimed before firing the initial shots and only discharged the gun indiscriminately while fleeing. Nevertheless, the jury did not need to resolve that issue to assess Mr. Sandhu's potential liability.
[26] The Crown also introduced after-the-fact conduct evidence as part of its case against Mr. Sandhu.
[27] First, there was the recording of a 911 call that Mr. Sandhu's father placed while the shooting remained ongoing; the sounds of gunshots are audible on the recording. The Crown introduced that recording because Mr. Sandhu eventually took the phone and misled the 911 operator when he denied that guns were involved in the incident.
[28] Second, there was evidence that Mr. Sandhu, while Mr. Jagpal and Mr. Sadhara lay wounded on the street, mocked them while videotaping them with his phone. Police ultimately recovered Mr. Sandhu's phone, but it was wiped clean of all data through a factory reset shortly after the shooting.
[29] With the parties' agreement, the court instructed the jury regarding Mr. Sandhu's potential liability for manslaughter and murder as either an aider or an abettor.
[30] The jury's verdict finding Mr. Sandhu not guilty of murder but guilty of the lesser included offence of manslaughter reveals that they were satisfied beyond a reasonable doubt that he aided or abetted the assault with the firearm that caused Mr. Jagpal's death but were not similarly convinced that he possessed the mens rea required for murder.
[31] The instructions given to the jury concerning Mr. Sandhu's potential liability as an aider or an abettor to manslaughter provide insight into what the jury must have found to return a guilty verdict for that offence.
[32] The Crown's case against Mr. Sandhu for manslaughter as an aider relied on the totality of the abovementioned evidence. The court instructed the jury that to find him guilty as an aider; they would need to be satisfied beyond a reasonable doubt that Mr. Sandhu did something to assist the young person in carrying out the assault with a weapon (the shooting) that caused Mr. Jagpal's death, knowing that he would use his firearm to assault him or other members of Mr. Bhoon's group and intending to help him in doing so.
[33] The Crown's case against Mr. Sandhu for manslaughter as an abettor depended on the comments attributed to him by Mr. Bhoon, Mr. Banga and Mr. Sadhara. The court instructed the jury that to find Mr. Sandhu guilty as an abettor, they would need to be satisfied beyond a reasonable doubt that Mr. Sandhu encouraged the young person to carry out the shooting that caused Mr. Jagpal's death, knowing that he would use his firearm to assault him or other members of Mr. Bhoon's group and intending to encourage him to do so.
[34] Further, the court instructed the jury that they did not need to all agree on the form of Mr. Sandhu's involvement; some could conclude he was an aider, others that he was an abettor. However, they would all need to be satisfied beyond a reasonable doubt that he participated in the fatal assault in either of those two ways to find him guilty of the lesser but included offence of manslaughter.
[35] The guilty verdict for manslaughter, standing alone, would not have shed much light on whether the jury found Mr. Sandhu guilty as an aider or as an abettor. Ordinarily, as part of sentencing, the court would have had to decide that question: see Criminal Code, R.S.C., 1985, c. C-46, s. 724(2); R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 106-107.
[36] However, during its deliberations, the jury asked a question which revealed that in finding Mr. Sandhu guilty, they accepted that he encouraged the young person to shoot Mr. Jagpal and other members of Mr. Bhoon's group in the legs. The question read:
If we believe that Mr. Sandhu said to the shooter "give him a leggaz," does that automatically mean that he is guilty of 2nd degree murder or is that for us to decide?
*FYI in exhibit 53 [Mr. Sandhu’s father’s] 911 call we heard Mr. Sandhu yelling "Leggaz my nigga, Leggaz, Leggaz" at 18-21 seconds.
-The Jury
[Underling added]
[37] During sentencing submissions, defence counsel, Mr. Crothers, argued that, for sentencing purposes, given the indeterminacy of the evidence heard at trial, the court should not understand the jury's verdict as necessarily predicated on all of the jurors accepting that Mr. Sandhu was either an aider or abettor to the fatal assault knowing that a firearm was involved. Respectfully, I disagree.
[38] Considering all the evidence, the instructions regarding the potential routes to liability for manslaughter, and the jury's question—which revealed that they all found ("we heard") Mr. Sandhu had yelled the "leggaz" comment to the shooter—it is clear that they determined, beyond a reasonable doubt, that Mr. Sandhu abetted the assault that caused Mr. Jagpal's death and that he did so knowing a firearm was involved.
Victim Impact
[39] Mr. Jagpal's immediate and extended family members prepared victim impact statements, some of which they read aloud at the sentencing hearing. These statements were poignant. They described Mr. Jagpal as a loving, generous, kind-hearted, loyal, and vibrant person who positively impacted everyone who knew him. [^2]
[40] Mr. Jagpal was a cornerstone of his close-knit family, and his loss has deeply affected them all. The impact on his father has been particularly acute, resulting in him suffering a complete breakdown in his mental health. Sadly, yet understandably, it is unlikely that anyone in Mr. Jagpal's immediate or extended family will ever be the same because of the senseless crime that claimed his young life.
[41] Unfortunately, no sentence the court imposes can rectify the tragedy of Mr. Jagpal's death or undo the profound harm his untimely passing has occasioned for those who loved him.
Circumstances of the Offender
[42] At the time of his offence, Mr. Sandhu was only 18. He is now 21. He does not have a criminal record.
[43] Mr. Sandhu was born in Toronto and is the oldest of two siblings; his brother is a few years younger.
[44] Mr. Sandhu enjoyed a positive upbringing. Throughout his life, including since his arrest, he has had the love and support of both his parents.
[45] Mr. Sandhu grew up in an environment where his parents always met his material and emotional needs. Unlike far too many offenders who come before this court for sentencing, Mr. Sandhu thankfully had an upbringing free from neglect, abuse or the ravages of addiction.
[46] Mr. Sandhu was a good student who earned above-average grades. As a result, he graduated from high school with no difficulty.
[47] After his September 17, 2021 arrest, Mr. Sandhu spent 49 days in custody before being released on bail. His parents acted as his sureties, and his mother stopped working so that she could supervise him on bail. His release terms were stringent, requiring Mr. Sandhu to remain inside his residence unless in the company of one of his sureties.
[48] Since his release on bail, Mr. Sandhu has worked with his father, who owns construction and trucking businesses. Initially, Mr. Sandhu performed administrative work in his father's construction business. He subsequently obtained his commercial trucking license and assisted his father with his trucking business. Most recently, he has been a full-time construction worker for his father's business.
[49] Mr. Sandhu has enrolled in construction engineering and real estate programs. However, his advancement in these programs has been on hold because of these proceedings.
[50] Mr. Sandhu aspires to be an entrepreneur like his father and aims to establish a home-building company and expand his father's trucking business.
[51] When interviewed by the author of the Pre-Sentence Report, Mr. Sandhu did not address the circumstances of his offence. Nevertheless, he reportedly expressed his "deepest sympathy" for Mr. Jagpal and his family "for the misfortune they have experienced."
[52] Mr. Sandhu elected not to address the court directly at the end of the sentencing hearing. Instead, Mr. Crothers shared with the court some comments that Mr. Sandhu had made during their discussions, including that not a single day had passed without him thinking about what happened on September 17, 2021, and the impact of that day's events on Mr. Jagpal's family.
Positions of the Parties
[53] The parties agree on the ancillary orders the court should issue as part of sentencing, including a DNA order and a lifetime weapons prohibition order under section 109 of the Criminal Code. However, they disagree about the length of the custodial sentence the court should impose. That stemmed partly from their differing interpretations of the jury's verdict.
[54] As explained above, the clear implication of the jury's verdict is that they were satisfied beyond a reasonable doubt that Mr. Sandhu had knowledge of the handgun and encouraged the young person to use it in carrying out the fatal assault.
[55] On behalf of the Crown, Ms. Holmes urged the court to make just such a finding and argued that, if it did, the applicable sentencing range would be between eight and 12 years of imprisonment for that offence.
[56] Despite the mitigating factors she acknowledged, including Mr. Sandhu's youth, his status as a first offender, and his family support, Ms. Holmes argued that several aggravating factors justify a sentence in the middle of the range: ten years imprisonment.
[57] In terms of the aggravating factors, Ms. Holmes submitted there were several. She noted that Mr. Sandhu's conflict with Mr. Bhoon set the events that culminated in Mr. Jagpal's death in motion. He summoned his brother and his brother's friends to the scene, knowing, she submitted, that the young person had a handgun. He disconnected the surveillance camera at his home to facilitate the crime. When his brother's group arrived, Mr. Sandhu encouraged the young person to discharge his firearm, resulting in Mr. Jagpal's death. Further, Ms. Holmes argued that a "young person" became involved in a serious crime because of Mr. Sandhu.
[58] Additionally, Ms. Holmes submitted that Mr. Sandhu's actions after the crime (mocking Mr. Jagpal and Mr. Sadhara as they lay injured on the street after the shooting) are also aggravating. As were his efforts to obstruct justice by lying to the 911 operator and destroying evidence by resetting his phone. Finally, Ms. Holmes emphasized the profound impact of the crime on Mr. Jagpal's immediate and extended family.
[59] In contrast, on behalf of Mr. Sandhu, Mr. Crothers submitted that even if the jury's verdict was understood as prefaced on a finding that he encouraged the young person to shoot Mr. Jagpal with his firearm, the appropriate sentencing range was between six to eight years of imprisonment.
[60] In his submissions, Mr. Crothers emphasized the same mitigating factors that Ms. Holmes conceded, which, combined, he argued, point toward the need for a sentence that prioritizes Mr. Sandhu's rehabilitation.
[61] Additionally, Mr. Crothers submitted that the circumstances of this case are distinguishable from many of the sentencing precedents relied upon by the Crown. He argued that courts impose sentences in the eight to 12-year range in circumstances far worse than those in this case. For example, situations in which there is significant planning involved to commit some other offence, like a robbery, and the principal commits murder, and the party is guilty of manslaughter. In that regard, Mr. Crothers emphasized that the young person was convicted of manslaughter, not murder.
[62] In contrast, Mr. Crothers submitted that the evidence at Mr. Sandhu's trial suggests this was a spontaneous confrontation and that Mr. Sandhu only learned that the young person had a firearm shortly before he encouraged him to discharge it. There is no basis to conclude, Mr. Crothers argued, that Mr. Sandhu knew about the handgun when he summoned his brother and his friends that night.
[63] Given the mitigating factors and the unique circumstances of this offence, Mr. Crothers argued that after giving due weight to Mr. Sandhu's time spent on house arrest bail and crediting him for his time spent in pre-sentence custody, the appropriate sentence is four to five years of imprisonment.
Law and Analysis
[64] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. Against that backdrop and after accounting for the aggravating and mitigating factors, the sentencing judge must fashion a just and appropriate sentence.
Purpose, objectives, and principles of sentencing
[65] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.
[66] Achieving that purpose requires the court to impose "just sanctions" that reflect one or more traditional sentencing objectives: see Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).
[67] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.
[68] The principle of parity is an essential consideration in arriving at a proportionate sentence. Proportionality is a function of the circumstances of the offence and offender compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained, a sentencing judge must reconcile individualization and parity to achieve a proportionate sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code, ss. 718.2(a) and (b). However, they do not operate in tension; "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also at paras. 30-33 more generally; see also R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.
[69] Sentencing youthful first offenders, such as Mr. Sandhu, involves unique considerations. Recently, in R. v. Habib, 2024 ONCA 830, the Court of Appeal made some general observations about the sentencing of youthful first offenders before reiterating certain well-established sentencing principles that apply when sentencing them.
[70] By way of general observations, the Court of Appeal in Habib noted that sentences imposed on youthful first offenders must hold them accountable, especially for serious offences, such as crimes involving significant personal violence: see Habib, at para. 30. In such cases, the objectives of denunciation and deterrence (general and specific) remain essential: see Habib, at para. 30. However, general deterrence carries less weight since young adults often lack the maturity to be influenced by the sentences imposed on others: see Habib, at fn. 2. As a result, a crime's seriousness and public safety concerns may necessitate significant prison terms, even for youthful first offenders. Practically speaking, it may not always be feasible for these offenders to avoid incarceration, for sentencing judges to impose only the shortest prison terms or impose a sentence at the lowest end of the applicable range: see Habib, at para. 30.
[71] The Court of Appeal in Habib then reminded sentencing judges to carefully consider and apply several well-established sentencing principles when sentencing such youthful offenders.
[72] First, sentencing judges must exercise restraint when sentencing youthful first offenders. That means not imprisoning them when possible. And, if imprisonment is necessary, imposing the shortest sentence capable of achieving the principles and objectives of sentencing: see Habib, at para. 31.
[73] Second, when sentencing youthful first offenders, sentencing judges must impose sentences that prioritize rehabilitation as the paramount sentencing objective: see Habib, at para. 31. When the offender's circumstances require it, they must also prioritize specific deterrence: see Habib, at para. 31.
[74] Third, sentencing judges cannot focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation or specific deterrence when sentencing youthful first offenders: see Habib, at para. 31.
[75] Finally, whenever sentencing young adults, sentencing judges must consider their reduced moral culpability and the harsher impact of incarceration on them due to their stage of life: see Habib, at para. 31.
[76] With the purpose, objectives and principles of sentencing summarized, these reasons turn next to the specific guidance provided by Parliament, the Court of Appeal for Ontario, and the decisions of this court regarding sentencing for manslaughter using a firearm.
Sentencing for manslaughter using a firearm
[77] The maximum punishment for manslaughter is life imprisonment. Although Parliament has not prescribed a minimum sentence for manslaughter generally, using a firearm in its commission attracts a minimum penalty of imprisonment for four years: see Criminal Code, s. 236(a).
[78] The range of sentences for manslaughter is well established. In R. v. Kerr, 2023 ONSC 3892, Justice Schreck helpfully summarized the sentencing ranges for manslaughter developed by the sentencing precedents, writing, at para. 29:
Manslaughter is an offence that can be committed in a wide variety of ways and, as a result, the sentences that are imposed for the offence vary greatly: R. v. Ali, 2018 ONSC 5536, at para. 31. A number of authorities from the Ontario Court of Appeal and this court suggest that there are three broad ranges of sentence, as summarized in R. v. Wight, 2022 ONSC 5137, at para. 43, and R. v. Smith, 2022 ONSC 3800, at paras. 26-32:
- Six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential: R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864; Kwakye, at paras. 5-6.
- Eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim: R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 14; R. v. Clarke (2013), 172 O.A.C. 133 (C.A.); R. v. Cleyndert, [2006] O.J. No. 4038 (C.A.), at para. 12.
- Twelve to 15 years in cases where the most serious aggravating factors are present, such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or a planned home invasion involving beating of the victims: R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Tahir, 2016 ONCA 136, at para. 2, aff'g [2012] O.J. No. 6449 (S.C.J.); R. v. Atherley, 2009 ONCA 195, at para. 4.
[79] These ranges are in keeping with the gravely serious nature of manslaughter, which requires sentences that usually must prioritize denunciation and deterrence. In most cases of manslaughter, the offender has committed an unlawful act that created an objectively foreseeable risk of bodily harm, and which significantly contributed to the victim's death. The ranges account for the different circumstances involved in each manslaughter case (which can vary from near murder, at one end of the spectrum, to near accident, at the other), along with the unique personal circumstances of each offender.
[80] As explained above, in all the circumstances, the clear implication of the jury's verdict was a finding that Mr. Sandhu was subjectively aware that the young person would use a firearm in carrying out the fatal assault he abetted. Therefore, his offence appropriately falls within the second and more culpable sentencing range: see R. v. Kwakye, 2015 ONCA 108, at para. 5. As a result, I agree with the Crown that the applicable sentencing range for Mr. Sandhu's offence is between eight and 12 years of imprisonment.
[81] Lastly, it deserves mentioning that sentencing ranges are "guidelines rather than hard and fast rules": Nasogaluak, at para. 44. They help structure a sentencing judge's exercise of their discretion because they reflect the application of the objectives and principles of sentencing when it comes to sentencing for a particular offence: see Lacasse, at para. 57. Nevertheless, a sentencing judge may determine that a sentence below or above the established range is necessary, given that the "determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": Lacasse, at para. 58; see also Nasogaluak, at para. 44.
Aggravating and mitigating circumstances
[82] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a).
[83] An inventory of aggravating and mitigating circumstances relating to the offence and the offender is essential to evaluating the offence's gravity and the offender's degree of responsibility in its commission. They push the sentence up or down the scale of appropriate sentences within the established sentencing range: see Nasogaluak, at para. 43.
[84] I will begin with the aggravating factors before turning to the mitigating.
[85] First, Mr. Sandhu engaged in some planning before committing his offence, which is a significant aggravating factor: see Criminal Code, s. 718.21(b). Although that was a contested issue at the sentencing hearing, I am satisfied beyond a reasonable doubt that he did. In coming to that conclusion, I rely on the cumulative effect of all the evidence, which includes Mr. Sandhu's extreme anger at Mr. Bhoon's group for being at his home that evening, his ominous threat for them to wait and "see what would happen," his summoning of his brother and his brother's friends to the location, and, most critically, his disconnecting the surveillance camera before their arrival. Based on all this evidence, I am sure Mr. Sandhu orchestrated the confrontation between the two groups, anticipating violence would be the result; the cumulative effect of all the evidence leaves no alternative explanation.
[86] Second, the steps that Mr. Sandhu took after the shooting to cover up the crime are also aggravating. By the time he was on the phone with the 911 operator, Mr. Sandhu knew there had been a shooting. Instead of telling the truth to ensure that emergency personnel could respond appropriately to the men who lay injured on the street, Mr. Sandhu lied. Further, Mr. Sandhu restored his phone to factory settings shortly after the shooting, no doubt because he had, rather callously, mocked Mr. Jagpal and Mr. Sadhara as they lay injured on the street. Mr. Sandhu's conduct in the aftermath of the shooting is a significant aggravating factor.
[87] Finally, the devastating impact of Mr. Sandhu's crime on Mr. Jagpal's immediate and extended family is an aggravating factor: see Criminal Code, s. 718.2(a)(iii.1). They have been profoundly affected by this senseless crime and the tragic loss of Mr. Jagpal at such a young age. Unfortunately, due to Mr. Sandhu's actions, their lives will never be the same.
[88] Before turning to the mitigating factors, it is necessary to address a further potential aggravating factor that the Crown urged the court to find.
[89] Ms. Holmes argued that Mr. Sandhu was aware the young person possessed a handgun when he called his brother and asked him to return to their residence along with his brother’s friends. If true, it would make Mr. Sandhu's criminal conduct even more culpable, suggesting that he had planned for a shooting rather than a street brawl.
[90] There is no direct evidence that Mr. Sandhu knew about the handgun before the young person brandished it on the street that evening, and before Mr. Sandhu encouraged him to shoot Mr. Jagpal and other members of Mr. Bhoon's group in the legs. During his testimony, the young person denied that Mr. Sandhu knew he had a gun. However, given the verdict, the jury must have rejected the young person's testimony. I agree with their assessment that the young person was not a credible witness.
[91] Based on everything Mr. Sandhu said and did before, during, and immediately after the fatal confrontation, it seems likely that he was aware of the handgun beforehand. However, I cannot be sure of this. The same evidence also furnishes an alternative inference: that Mr. Sandhu called his brother and his brother's friends that evening anticipating a violent altercation would ensue when they arrived and remained unaware of the handgun until the young person brandished it. Upon seeing the gun, he may have succumbed to his anger and rashly encouraged its use. While this second scenario seems less likely, the evidence does not meet the stringent standard of proof beyond a reasonable doubt required for establishing aggravating facts on sentencing: see Criminal Code, s. 724(3)(e).
[92] I turn next to the mitigating factors. There are several, and at least some of them are significant.
[93] First, there is Mr. Sandhu's youth. At the time, he was only 18 years old—an offender's youth is a significant mitigating factor when sentencing. Unlike older adults, "young adults are more impulsive, emotionally volatile, and susceptible to negative influences and bad judgment," which "can make them less blameworthy than more mature adults": Habib, at para. 35.
[94] Second, Mr. Sandhu does not have a criminal record; he is a first offender. The absence of a prior criminal record is also a mitigating factor when sentencing: see R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.), at para. 28. No doubt, that is because the absence of a criminal record suggests that before their offence, an offender had lived a prosocial life, suggesting their offence may be an aberration which reflects positively on their prospects for rehabilitation: see Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §8.16.
[95] Third, throughout his life and since he committed his offence, Mr. Sandhu has enjoyed the love and support of his parents. Family support is a mitigating factor because it bodes well for an offender's eventual reintegration into the community and potential for rehabilitation.
[96] Fourth, Mr. Sandhu has spent nearly three years subject to very restrictive bail conditions. He has only been allowed to leave his home when accompanied by one of his sureties. Therefore, Mr. Sandhu's time subject to house arrest bail is deserving of consideration as a relevant mitigating factor and something the court must consider in determining the appropriate sentence: see R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37.
[97] Finally, based on his comments to the author of the pre-sentence report and Mr. Crothers, Mr. Sandhu has expressed some remorse for his crime. When an offender is genuinely remorseful, it demonstrates they have insight into their wrongdoing and take responsibility for it, which reflects positively on their prospects for rehabilitation. As a result, genuine remorse constitutes a mitigating factor: see R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65, at para. 11.
[98] However, I am hard-pressed to place too much weight on Mr. Sandhu's comments to the author of the pre-sentence report—his expression of "sympathy" for Mr. Jagpal's family falls far short of accepting responsibility. It is also difficult to gauge whether Mr. Sandhu is genuinely remorseful based on comments filtered through the representations of defence counsel. In the circumstances, I am less than satisfied that Mr. Sandhu accepts full responsibility for his role in causing Mr. Jagpal's death and, therefore, that he is genuinely remorseful for his actions.
The Appropriate Sentence
[99] To arrive at the appropriate sentence, the court must remember the purpose, objectives, and principles of sentencing, the sentencing range for manslaughter with a firearm, and the aggravating and mitigating circumstances relating to Mr. Sandhu and his offence. While doing so, the court must respect the principle of parity, an essential guide in arriving at a proportionate sentence. Finally, the court must be especially mindful of the principles that guide the exercise of its discretion when sentencing youthful offenders.
[100] As noted, Mr. Sandhu's offence falls within the eight to 12-year sentencing range. That is because of the significant aggravating factors surrounding its commission, particularly: (i) that he summoned his brother and his brother's friends to his residence that evening intending to facilitate a violent confrontation, (ii) that, after he saw the handgun, he repeatedly encouraged the young person to shoot Mr. Jagpal and the other members of Mr. Bhoon's group in the legs, and (iii) the efforts he undertook in the aftermath of the crime to conceal his involvement.
[101] This collection of circumstances makes Mr. Sandhu's offence a gravely serious example of manslaughter. Extensive research has failed to yield a sentencing precedent that parallels the circumstances of this offence. Nevertheless, manslaughter sentencing decisions involving youthful first offenders who were parties to shootings are instructive at arriving at an appropriate sentence, remembering that proportionality requires respecting the principle of parity.
[102] In R. v. Khan, 2023 ONCA 553, the offender participated in a home invasion robbery during which one of his accomplices shot and killed the victim. The trial judge found that he knew about the gun and that it might be used during the robbery. The offender was 18 years old at the time of the offence and had no prior criminal record. He had a supportive family but fell in with a negative peer group and became involved with gang activity. He attempted to plead guilty to manslaughter at the beginning of his murder trial, but the Crown rejected his plea. The jury found him guilty of manslaughter. The trial judge concluded he was genuinely remorseful and expressed cautious optimism about his rehabilitative prospects. The Court of Appeal upheld the trial judge's sentence of eight and a half years in prison, describing it as "at the lower end of the applicable range": at para. 14.
[103] In Kwakye, the offender participated in a robbery during which an accomplice shot and killed the victim. He was 18 at the time of the offence and did not have a criminal record. The Court of Appeal identified two errors in principle, the trial judge’s failure to give adequate weight to rehabilitation and his failure to address whether the offender knew that his accomplice would use the gun. After assessing the evidence at trial, the Court of Appeal could not conclude that the offender foresaw the risk of his accomplice using the firearm: at para. 5. It reduced the ten-year sentence imposed by the trial judge and substituted a seven-year sentence: at para. 6.
[104] In R. v. Wilson, 2024 ONSC 1357, the offender pleaded guilty to manslaughter. Along with five others, he planned to rob the victim of drugs. During the robbery, one of his accomplices produced a handgun and shot and killed the victim. There was no evidence that anyone other than the shooter had brought a weapon to the robbery or that anyone other than the shooter knew about the handgun before its use: at para. 10. At the time of the offence, the offender was 20 and had no criminal record. The trial judge imposed a five-year sentence, less credit for pre-sentence custody.
[105] The youthful first offenders in each of these cases participated in robberies during which their accomplices shot and killed the victim, thereby making them culpable for manslaughter as parties under section 21(2) of the Criminal Code because robbery is a crime that invariably gives rise to an objectively foreseeable risk of occasioning bodily harm to the victim: see R. v. Jackson, [1993] 4 S.C.R. 573, at p. 586-587; R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 73. Their sentences varied based on their level of culpability, a function of whether they knew about the firearm and, if they did, whether they also subjectively appreciated the potential for its use.
[106] By comparison, Mr. Sandhu's role in causing Mr. Jagpal's death is much more blameworthy. Although Mr. Sandhu did not participate in a planned robbery, he made sustained efforts to orchestrate a violent confrontation. Even more critically, he played an instrumental role in the killing by repeatedly encouraging the young person to shoot Mr. Jagpal and the other members of Mr. Bhoon's group in the legs. Therefore, his conduct is more culpable because it gave rise to a far more obvious risk of occasioning serious bodily harm to the victims.
[107] As a result, if not for the significant mitigating factors, the circumstances of his offence would have warranted a sentence at the upper end of the applicable range; Mr. Sandhu's offence is simply that serious.
[108] However, to properly account for the mitigating factors, particularly Mr. Sandhu's youth, the fact that he is a first offender, and his family support, all of which indicate he has strong rehabilitative prospects, a sentence of nine years imprisonment is appropriate. That sentence also accounts for Mr. Sandhu's three years spent subject to very restrictive bail conditions.
[109] At the same time, a nine-year sentence is substantial enough to adequately address the objectives of denunciation and deterrence, which are pressing considerations because the crime involved deadly handgun violence. Any shorter sentence would not sufficiently account for the gravity of Mr. Sandhu's crime.
[110] Although nine-years imprisonment is a very long sentence for someone like Mr. Sandhu, who is only 21 and still in the very early stages of maturing into adulthood, it still leaves much room for his eventual rehabilitation, which remains a pressing sentencing objective because of his age and the fact that he does not have any prior criminal record.
Conclusion
[111] For these reasons, nine years of imprisonment is the appropriate sentence given the circumstances of this offence and this offender.
[112] Mr. Sandhu spent 49 days in pre-sentence custody before securing his release on bail. He is entitled to credit for that time at the ordinary rate of 1.5 days to 1: see Criminal Code, ss. 719(3), 719(3.1); R. v. Summers, 2014 SCC 26, [2014] S.C.R. 575, at para. 71. It follows that Mr. Sandhu should receive 74 days of credit for his time spent in pre-sentence custody.
[113] Accordingly, Mr. Sandhu is sentenced to 8 years and 291 days of imprisonment.
[114] Additionally, the court shall issue a DNA order and a lifetime weapons prohibition order under section 109 of the Criminal Code.
[115] Finally, a $200 victim surcharge is payable, and Mr. Sandhu will have ten years to pay that amount.
Signed: “Justice J. Stribopoulos” Released: December 6, 2024
Footnotes
[^1]: The evidence that Mr. Sandhu disconnected the surveillance camera was circumstantial. At the time, Mr. Sandhu and his girlfriend were alone in the residence with his elderly grandfather, and his girlfriend testified that she was not responsible for disconnecting the camera. It seems improbable that Mr. Sandhu’s elderly grandfather would have known how or had any reason to disconnect the surveillance camera. Based on all the evidence, an inference that Mr. Sandhu disconnected the camera is irresistible. [^2]: Unfortunately, the victims did not use Form 34.2 of the Criminal Code to complete their statements. As a result, some of what they contained was inappropriate and necessarily disregarded.