



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2019 ONCA 872

DATE: 20191105

DOCKET: C65587

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jasvir Singh

Appellant

Alan D. Gold and Alex Palamarek, for
    the appellant

Mabel Lai, for the respondent

Heard: November 1, 2019

On appeal from the
    conviction entered on February 9, 2018, by Justice Alexander D. Kurke of the Superior
    Court of Justice, and the sentence imposed on July 31, 2018, with reasons
    reported at 2018 ONSC 386.

REASONS FOR
    DECISION

[1]

Mr. Singh was convicted of dangerous driving
    causing death. He was sentenced to three years incarceration, in addition to five
    days pre-sentence custody, and a five-year driving prohibition. He appeals his
    conviction and sentence.

[2]

In the morning of January 11, 2016, two tractor
    trailers collided on Highway #11 near Val Gagne, Ontario, just south of
    Cochrane. A snowstorm the day before had closed the highway. Roughly an hour
    after it had reopened, the collision occurred. That morning, the road and
    weather conditions were poor. There was blowing and drifting snow, causing
    whiteouts as long as four to five minutes. The road was covered in snow and ice
    and was slippery.

[3]

Mr. Singh was driving a 53-foot tractor trailer
    in the southbound lane. He collided with a tractor trailer in the northbound
    lane. The driver of the northbound truck, Gary Messenger, died from his
    injuries.

[4]

Witnesses described that, before the fatal
    collision, Mr. Singh had passed a red sedan thereby forcing a northbound Home
    Hardware truck onto the northbound shoulder of the highway to avoid a
    collision. Mr. Singh then had to cut back at the last second into the
    southbound lane.

[5]

Once Mr. Singh returned to the southbound lane,
    three vehicles overtook him in one pass: a logging truck, a Ford truck pulling
    a U-Haul trailer, and a minivan. The Ford truck then passed the minivan. Mr.
    Singh also passed the minivan and then pulled into the northbound lane to pass
    the Ford truck as well. The driver of the Ford truck testified that, at this
    point, he saw the headlights from Mr. Messengers truck coming towards them in
    the northbound lane Mr. Singh veered left to the northbound ditch and, in the process,
    collided with the Messenger truck which was demolished.

[6]

The charge against Mr. Singh arose from the
    fatal collision. The trial judges reasons refer to the sequence of events
    before this collision and the near miss with the Home Hardware truck as
    dangerous driving on the part of Mr. Singh.

[7]

Mr. Singh  appeals on the basis that the trial
    judge erred by: (i) considering Mr. Singhs near miss with the Home Hardware
    truck as part of the dangerous driving offence; (ii) finding that the
    circumstances of the fatal collision constituted a marked departure from the
    standard of care of a reasonable driver; and, (iii) providing insufficient
    reasons for the conviction.

[8]

Mr. Singh submits that, by considering the Home
    Hardware truck incident in relation to the offence charged, the trial judge
    erred in two ways. First, he misapprehended the facts because, contrary to the
    trial judges finding, Mr. Singh did not pass the red sedan on the crest of a
    hill, but rather where the road had levelled. He points to the evidence of
    Andre Plourde, who was driving the U-Haul, that the road was straight. We do
    not agree that the trial judge misapprehended the evidence. It was open to him
    to accept the evidence of other drivers that Mr. Singh had passed as they were
    going up a little hill. In support of this finding, the police officer gave
    evidence that a rise in the road starts about a kilometer north of the point of
    collision.

[9]

Second, Mr. Singh submits that by labelling the
    Home Hardware truck event as dangerous driving the trial judge was convicting
    him of a crime for which he was not charged and this tainted and pre-determined
    his conclusion with respect to the fatal collision.

[10]

We do not agree.

[11]

Mr. Singhs conduct that led to the fatal
    collision was one series of events that demonstrated a pattern of behaviour. As
    the trial judge stated, the near miss should have caused him to modify his
    driving. It did not. The trial judge was entitled to consider the whole of his
    driving in relation to the fatal collision as part of a sequence of events. The
    trial judge did not  as Mr. Singh submits  erroneously consider the near-miss
    as similar fact evidence. It was part of the same transaction that was being
    prosecuted.

[12]

Mr. Singh also submits that his conduct did not
    constitute a marked departure from the standard of care of a reasonable person
    in the circumstances. In this regard, he relies on the fact that the other cars
    were passing that morning as well. This submission ignores the evidence of
    Pascal Plourde (the driver of the Ford truck) who testified that when Mr. Singh
    pulled out to pass, there was a whiteout, visibility was limited, and he could
    not see the logging truck ahead of him. As Mr. Singh moved to the northbound
    lane to pass him, Mr. Plourde saw the headlights of the Messenger truck.

[13]

Mr. Singh was driving a 53-foot tractor trailer.
    He was passing cars and trucks on a snowy, icy highway in weather conditions with
    intermittent whiteouts caused by blowing and drifting snow. The trial judge did
    not err in concluding that his attempt to pass the Ford truck almost represented
    a wanton and reckless disregard for the lives and safety of those on the road. Mr.
    Singh drove dangerously and is guilty of contravening s. 249(4) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
.

[14]

Finally, we do not agree that the trial judges
    reasons are insufficient. They clearly articulate the path to conviction and
    are capable of appellate review.

[15]

Mr. Singh submits that the sentence is harsh and
    excessive and that this court should substitute a sentence of 12 months custody
    and a one-year driving prohibition.

[16]

We see no error in principle warranting
    appellant intervention.

[17]

The appeal is dismissed. Leave to appeal the sentence
    is granted, but the sentence appeal is dismissed.

M.L. Benotto J.A.

David Brown J.A.

David M. Paciocco
    J.A.


