Reasons for Judgment

Court File No.: CR-24-309-AP
Date: 2025-05-23
Ontario Superior Court of Justice
Summary Conviction Appeal

Between:
His Majesty the King, Respondent/Appellant on cross-appeal
and
Karanjot Parhar, Appellant/Respondent on cross-appeal

Appearances:
Paul Renwick, for the Crown
Jassi Vamadevan, for the Appellant

Heard: April 2, 2025

[On appeal from the Judgment of Justice Sandra Martins, dated May 27, 2024]

Mandhane J.

Introduction

[1] On July 2, 2020, the appellant, Karanjot Parhar, and his co-accused were arrested and charged with offences related to the operation of a car theft ring. On June 28, 2022, the appellant, Karanjot Parhar, pleaded guilty to five counts of theft of a motor vehicle (s. 333.1, Criminal Code, RSC 1985, c C-46), three counts of possession of stolen property (s. 354(1)(a), Criminal Code), and three counts of possession of an automobile master key (s. 353(1), Criminal Code).

[2] The sentencing hearing was held on January 26, 2024. An agreed statement of facts was entered as an exhibit. The parties agreed that:

a. Mr. Parhar stole one truck, and aided and abetted the stealing of three other trucks, from a Ford dealership on April 26, 2020.

b. Mr. Parhar’s fingerprints were found on an “unattached” license plate on the back of a stolen blue 2020 Ford Expedition on May 19, 2020.

c. Mr. Parhar and a co-accused stole a 2020 white Ford Expedition from an Enterprise car rental location on June 21, 2020.

d. Mr. Parhar and his co-accused were observed hiding two stolen vehicles at a country club on June 30, 2020 and leaving in a 2020 white Ford Expedition, which the police later found outside Mr. Parhar’s home; it had a reprogrammed master key. The police later found four stolen vehicles at the country club: a black Lincoln Navigator, a black Ford F150, a 2020 black Ford Expedition, and a stolen blue 2020 Lincoln Navigator.

e. Throughout June 2020, the police observed Mr. Parhar driving a stolen re-VIN’ed 2017 red Range Rover that was ultimately seized outside the home of one of his co-accused.

f. At the time of the events at issue, Mr. Parhar was facing outstanding charges for car theft, and was in breach of his conditional release order requiring him to stay at home.

[3] In addition to the agreed facts, the sentencing judge also had before her Mr. Parhar’s pre-sentence report, and letters that confirmed that he had undertaken treatment for substance abuse while out on bail. Notably, Mr. Parhar’s previous release orders were not filed with the sentencing judge.

[4] The sentencing judge released her decision on May 27, 2024. She sentenced the appellant to eight months in custody, concurrent on all counts. The appellant appeals his sentence; he says that the sentencing judge erred in principle by failing to consider the issue of credit for time spent on pretrial bail (i.e. Downes credit), and that her error had an impact on the sentence imposed. After accounting for the Downes credit, the appellant asks me to impose a conditional sentence of two years less a day. The Crown cross-appeals, arguing that the eight-month sentence was demonstrably unfit and asking me to impose a sentence in the “low double-digits”, i.e. at least ten months custody.

[5] The main issue on appeal is whether the sentencing judge made an error in principle that had an impact on the sentence by not considering the issue of Downes credits and, if so, determining the appropriate sentence.

Did the Sentencing Judge Make an Error in Principle That Had an Impact on the Sentence?

[6] The law is clear: an appellate judge must defer to the sentencing judge’s decision: R. v. Friesen, 2020 SCC 9, para 25. I can only intervene to vary a sentence if: (1) it is demonstrably unfit, or (2) the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, paras 41-44. If the sentence is demonstrably unfit or impacted by an error in principle, then I must perform my own sentencing analysis to determine the fit sentence: Friesen, para 27.

[7] Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor: Friesen, para 26. The weighing or balancing of factors can form an error in principle only if the sentencing judge exercised her discretion unreasonably by emphasizing one factor or by not giving enough weight to another. However, not every error in principle is material: an appellate court can only intervene if it is apparent that the error had an impact on the sentence: Friesen, para 26. If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention can only be justified if the sentence is demonstrably unfit.

[8] The sentencing judge was alive to the Downes credit issue during the hearing. The sentencing judge raised it herself with the Crown, and the defence characterized it as “probably the most difficult” aspect of the sentencing hearing. The defence characterized Mr. Parhar’s bail conditions as “the strictest form of release possible” because he was under “GPS house arrest” and not allowed to drive. At the same time, the defence acknowledged that the Crown had varied Mr. Parhar’s bail conditions to allow him to attend an in-patient drug treatment program and clarified that it did not expect any Downes credits for periods of time when Mr. Parhar was serving a conditional sentence on an unrelated matter. When trying to distinguish Mr. Parhar’s culpability compared to his co-accused, the defence returned to the issue of Downes credits.

[9] While the sentencing judge was clear on the record that there is no formula for calculating Downes credits, she inquired with defence counsel about the exact amount of time Mr. Parhar had spent on bail in relation to these charges, or as she put it, “Total release for which he would have eligibility of Downes credit.” Eventually, the sentencing judge agreed that defence counsel could send the court Mr. Parhar’s conditional release records after the hearing. At that point, the Crown interjected and estimated that Mr. Parhar had spent 15 months on bail in relation to these charges, stating, “I don’t know that really much more precision is required.” The sentencing submissions ended with the defence agreeing that there was no specific formula for Downes credits but asking the judge to “give some credit for that.” In reply, the Crown noted that the accused in the case of Downes received a thirty percent credit.

[10] The sentencing judge rendered her oral decision on May 27, 2024. Based on the agreed facts, she found that Mr. Parhar was involved in a highly organized, large-scale ring that was responsible for stealing approximately forty high-end vehicles (valued at nearly four million dollars), re-VIN’ing them, and then re-selling them. Mr. Parhar was involved in the thefts; possession, moving and storing the vehicles; and fraudulent registration. Mr. Parhar himself drove a stolen vehicle valued at $60,000 that was re-VIN’ed and transferred into Mr. Parhar’s name by one of his co-accused.

[11] In terms of the circumstances of the offender, she noted that Mr. Parhar was 35 years old, had an unrelated prior record for impaired driving, that he was in breach of an undertaking when arrested on these charges, and that he began serving a conditional sentence for break and enter after his arrest on these charges. She accepted that the offence took place in the context of the pandemic, his failing business, and his turn to substance abuse. She noted that he was now living at home, was being supported by his family, was employed, had completed substance abuse programming, and was now interested in becoming a substance abuse counselor.

[12] After correctly articulating the principles of sentencing, the sentencing judge turned to the aggravating and mitigating factors. She identified the aggravating factors as the size, scale and duration of the operation; Mr. Parhar’s role which involved planning and coordination; and his direct benefit in terms of using one of the vehicles for personal use. She identified the mitigating factors as: his guilty plea and expressions of remorse; the fact that he was struggling with substance abuse at the time of the offence; his strong family and community support; and his strong prospects for rehabilitation.

[13] Referring to the unreported decisions in R. v. Pols and R. v. Beltrano, the sentencing judge ultimately found that a conditional sentence was not appropriate in the circumstances. In her view, denunciation and deterrence were the primary sentencing objectives because of the seriousness of the crime, its impact on the community at large, and the associated drain on police resources. In terms of parity, she noted that Pols and Beltrano both received six months jail, but also that they were less involved in the crime ring than the appellant and did not benefit directly through possession of a stolen vehicle. She distinguished Fusaro—who received a three-month custodial sentence followed by a 15-month conditional sentence—stating that, but for his extremely ailing health, the appropriate sentence would have been between eight and ten months in custody.

[14] The sentencing judge made no mention of the accused’s pre-trial bail conditions, did not identify Downes credits as a mitigating factor, and did not delve into the co-accused’ pre-trial conditions of release when discussing the issue of parity. Overall, I agree with the appellant that the sentencing judge made an error in principle by inadvertently failing to address the issue of Downes credits in her sentencing decision, and that this error had an impact on the sentence.

[15] While I am not bound by his findings, I would adopt Justice Harris’ reasoning about the Downes credits issue in his decision granting bail pending appeal in this case:

Not to consider Downes credit is an error in principle: R. v. Downes, 2006 ONCA 3957, para 33. The Crown argues that the judge may have considered credit for time on bail but not articulated it, relying on R. v. Ijam, 2007 ONCA 597, paras 28-35, 64. But in that case, the appellant was only on bail for five weeks. This case is readily distinguishable on that basis alone.

In a situation where there is substantial time on restrictive bail before trial, a trial judge must as a matter of course consider pertinent credit in their reasons. Because there is a quite wide discretion, the amount of pre-trial bail will have to be stated and then some consideration given to how much credit ought to be allocated. The absence of any reference in the trial judge's reasons in this case leads to a strong inference that through inadvertence, the trial judge did not factor in Downes credit to the sentence.

I agree with counsel that the amount of credit in this case could have been as high as seven months: R. v. Donison, 2022 ONSC 741, para 61. In my view, based on the failure to factor in bail credit, there appears to be an error of principle committed having substantial impact on the ultimate sentence imposed.

[16] I would add that the sentencing judge’s error was exacerbated by the fact that she was misled by the Crown during the sentencing hearing regarding the length of Mr. Parhar’s eligible pre-trial bail. For the purposes of this appeal, the parties agree that the Crown was wrong at the sentencing hearing when he estimated that 15 months of Mr. Parhar’s pretrial bail was eligible for consideration for the purposes of Downes credit.

[17] Before me, the appellant filed fresh evidence which shows that Mr. Parhar was under house arrest for 27 months because of these charges. The appellant’s pre-trial bail is broken down as follows:

a. Commencing July 9, 2020, and lasting for 14 months and 8 days, the appellant was under house arrest bail with GPS monitoring and was not allowed to operate a motor vehicle.

b. Commencing September 16, 2021, and lasting seven months and 19 days, the appellant was under house arrest bail without GPS monitoring and was allowed to operate a motor vehicle.

c. May 5, 2022 to March 5, 2023, the appellant was serving a ten-month conditional sentence on unrelated charges.

d. Commencing March 7, 2023, and lasting five months and nine days, the appellant was under house arrest bail but was allowed to operate a motor vehicle, attend school, work and scheduled appointments, and to travel to Mexico for a vacation for two weeks.

e. Commencing August 16, 2023, the appellant began serving an 18-month conditional sentence which was ongoing up to the sentencing date of May 27, 2024.

[18] Given the length of pre-trial bail on these charges (i.e. over two years), I am confident that the sentencing judge’s failure to consider the Downes credits issue affected the overall sentence.

What Is the Appropriate Sentence?

[19] Having found that the sentencing judge committed an error in principle that had an impact on the sentence, I must perform my own sentencing analysis to determine a fit sentence: Friesen, para 27. To the extent that they are not tainted by error, I must defer to the sentencing judge’s findings of fact and identification of aggravating and mitigating circumstances: Friesen, para 28. After performing my own analysis, I can either impose a different sentence or affirm the sentence despite the error: Friesen, para 29.

[20] The defence says that the only way to fairly account for the significant Downes credits owed is to reduce the sentence from a custodial one to a conditional one. The Crown says that awarding credit for time spent on bail is discretionary and that awarding a large credit is not warranted in this case because Mr. Parhar was able to undertake rehabilitative programs while on bail, which was a factor that the sentencing judge considered to be mitigating.

[21] Here, the sentencing judge’s findings of fact and identification of aggravating and mitigating circumstances were not tainted by error, and I adopt her analysis in this regard. I agree with the sentencing judge that eight months custody would have been an appropriate sentence but for the Downes credit issue. The sentence of eight months accurately reflected the primary sentencing objectives of denunciation and deterrence, and the importance of parity when sentencing co-conspirators: R. v. Ethier, 2018 ONSC 1200, para 11. The sentence reflected the judge’s factual finding that Mr. Parhar was more culpable than Mr. Pols and Mr. Beltrano but less culpable than Mr. Fusaro, and that Mr. Fusaro had stronger mitigating factors than Mr. Parhar. The sentence imposed was somewhere in the middle of the Crown’s proposed sentence of two years jail and the Defence submission of two-years conditional.

[22] The cases relied upon by the Crown on appeal to justify me imposing a longer jail sentence are distinguishable because they involved:

a. longer or more sophisticated operations (R. v. Risley, 1986 ABCA 20; R. v. Rai, [2006] O.J. No. 697 (OCJ); R. v. Khan, [2006] O.J. No. 144 (SCJ));

b. an accused with a greater role or a longer criminal record (R. v. Booth, [2001] O.J. No. 4902 (OCJ); R. v. Dhaliwal, [2019] O.J. No. 1477 (SCJ)); or

c. an accused who did not plead guilty (R. v. Toulouse, [2005] O.J. No. 123 (ONCJ)).

[23] Having decided that eight months jail was an appropriate sentence but for the consideration of the Downes credits, I now turn to that issue. Mr. Parhar was under house arrest with GPS monitoring for fourteen months from July 9 through September 16, 2021. While this is an extremely restrictive form of release, I also note that it coincided with the pandemic lockdowns and restrictions which would have limited the appellant’s movements significantly regardless, and that he was able to care for his elderly mother during this time because they lived in the same home. I would give Mr. Parhar credit for about a fifth of this time—or three months. Mr. Parhar’s bail was eased up significantly after September 16, 2021, such that he was no longer subject to GPS monitoring, could drive a vehicle, could attend work and school, could attend and complete rehabilitative programming, and was even allowed to travel to Mexico. Mr. Parhar is not entitled to any further credit beyond September 2021 because his bail conditions were not particularly restrictive.

[24] Taking into account the aggravating and mitigating factors identified by the sentencing judge, as well as the additional mitigating factor of the Downes credits, I would sentence the appellant to five months in custody. A sentence of five months is proportionate in all the circumstances. While Mr. Parhar’s sentence is one month shorter than the sentences imposed on Pols and Beltrano who were both less culpable, none of the other co-accused were subject to restrictive pre-trial bail conditions. On the other hand, a conditional sentence would not be a proportionate sentence regardless of any credits due because of the overarching sentencing goals being denunciation and deterrence, and the importance of ensuring some degree of parity with the other co-accused in the ring.

[25] On appeal, I would reduce the sentence from eight months custody to five months in custody. I would dismiss the Crown’s cross-appeal.

Mandhane J.
Released: May 23, 2025