



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Randhawa, 2020 ONCA 38

DATE: 20200122

DOCKET: C65708

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Prithvi Randhawa

Appellant

Owen Wigderson, for the appellant

Michael S. Dunn, for the respondent

Heard: December 13, 2019

On appeal from the sentence imposed by Justice James R.
    Chaffe of the Ontario Court of Justice on July 24, 2018.

Nordheimer J.A.:

A.

Overview

[1]

Prithvi Randhawa appeals the sentence imposed on him by the sentencing
    judge of nine years (before credit for pre-sentence custody) concurrent on
    three counts of impaired driving causing death and five years concurrent on one
    count of impaired driving causing bodily harm.

[2]

The appellant advances two alleged errors made by the sentencing judge.
    First, he contends that the sentencing judge erred in his parity analysis in
    deciding on where he fit within the ranges of sentence for the offences
    involved. In particular, the appellant says that the sentencing judge omitted
    or mischaracterized certain facts from other cases to which he referred in
    deciding on the appropriate sentence. The appellant also says that the sentencing
    judge misapprehended a key submission made by the defence. Second, the
    appellant contends that the sentencing judge failed to consider a significant
    collateral consequence that the appellant will suffer arising from his conduct
    and this led him to impose a sentence that was unfit.

[3]

I would grant leave to appeal and allow the sentence appeal. The trial
    judge erred in his parity analysis based, at least in part, on an erroneous
    characterization of the appellants conduct relative to the conduct revealed in
    the comparative cases to which he referred.

B.

Background

[4]

The basic facts can be summarized briefly. After a night of drinking,
    the appellant drove his car, with four other occupants, at a high rate of speed
    through a residential neighbourhood. He had approximately twice the legal limit
    for alcohol in his system. Eventually, his car clipped another car, he lost
    control of the vehicle, the vehicle went airborne and crashed. All four
    passengers were ejected from the car. Three of them died and one was seriously
    injured. The appellant himself suffered a traumatic brain injury in the crash. The
    appellant was 22 years old and his passengers ranged in age from 19 to 24 years
    old.

C.

Analysis

[5]

I begin by noting the principle laid down in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: [E]xcept where a sentencing
    judge makes an error of law or an error in principle that has an impact on the
    sentence, an appellate court may not vary the sentence unless it is
    demonstrably unfit.

[6]

Central to his conclusion on what was the appropriate sentence to impose
    on the appellant, was the sentencing judges view of the appellants conduct
    relative to the conduct revealed by three prior cases. On that central point, the
    sentencing judge said, at para. 53: In terms of parity in sentencing, I find
    that his egregious conduct exceeds that of the drivers in the cases of
Kummer
,
Luskin
and
Muzzo
. The sentencing judge repeated this finding
    at para. 57. The sentencing judge then imposed a sentence of nine years, one
    year more than the sentences in
R. v. Kummer
, 2011 ONCA 39, 103 O.R.
    (3d) 641 and
R. v. Luskin
, 2012 ONSC 1764, 282 C.C.C. (3d) 542, but
    one year less than the sentence in
R. v. Muzzo
, 2016 ONSC 2068, 353
    C.C.C. (3d) 411.

[7]

The sentencing judge did not provide any reasons for this central finding.
    While he does review the aggravating and mitigating factors relating specifically
    to the appellant in his reasons, he does not explain how any of those factors
    would support a finding that the appellants conduct was more egregious than
    that of the offenders in those three other cases.

[8]

I have reviewed the facts in this case and the facts in
Kummer
,
Luskin
, and
Muzzo
, and I am unable to find a basis upon which
    the sentencing judges finding could be supported. This is of concern because,
    as I have said, it is this finding that clearly drove the sentencing judge to
    determine that a sentence of nine years was appropriate.

[9]

The mere failure to give reasons does not, by itself, amount to an error
    of law. As noted by McLachlin C.J.C. in
R. v. R.E.M.,
2008 SCC 51,
    [2008] 3 S.C.R. 3, at para. 37:

As we have seen, the cases confirm that a trial judge's reasons
    should not be viewed on a stand-alone, self-contained basis. The sufficiency of
    reasons is judged not only by what the trial judge has stated, but by what the
    trial judge has stated
in the context of the record, the issues and the
    submissions of counsel at trial
. The question is whether, viewing the
    reasons in their entire context, the foundations for the trial judge's
    conclusions  the why for the verdict  are discernable. If so, the functions
    of reasons for judgment are met. [Emphasis in original.]

[10]

In this case, the why  the basis for the sentencing judges finding that
    the appellants egregious conduct exceeds that of the drivers in the cases of
Kummer
,
Luskin
and
Muzzo
  is neither obvious nor discernable. It is
    also not supported in the context of the record.

[11]

That failing leads to the concern that the sentencing judge misapplied the
    parity principle and thus erred in his conclusion. It is an error that clearly
    impacted on the sentence because it was the sentencing judges comparative view
    of the actions of the appellant, in relation to the actions of the accused in
    those three other cases, that drove him to impose the sentence that he did. It
    thus falls within the first of the two categories of cases identified in
Lacasse
,
    at para. 44, that warrant appellate intervention, that is, the failure to
    consider a relevant factor or the erroneous consideration of an aggravating or
    mitigating factor that had an impact on the sentence. This is to be contrasted
    with the second category, noted at para. 52, where [i]t is possible for a
    sentence to be demonstrably unfit even if the judge has made no error in
    imposing it.

[12]

As a consequence of the error in the application of the parity principle,
    it falls to this court to inquire into the fitness of the sentence and replace
    it with the sentence it considers appropriate:
Lacasse
at para. 43.
    In that regard, this court determined in
R. v. Altiman
, 2019 ONCA 511,
    56 C.R. (7th) 83, that there was a range of four to six years for these
    offences where the offender does not have a prior criminal or driving record
    and a range of between seven and one-half to 12 years where the offender has a
    prior criminal or driving record: at para. 70. At the same time, I note that the
    decision in
Lacasse
holds that sentencing ranges are primarily
    guidelines, and not hard and fast rules: at para. 60.

[13]

In my view, the conduct of the appellant in this case is very similar to
    that of the offenders in
Kummer
and
Luskin
. In each case, the
    offender had a high blood alcohol content, drove at excessive speed, and caused
    multiple deaths. Two facts distinguish the appellant from those offenders
    though. First, his young age distinguishes him from the offender in
Kummer
.
    He was 22 years old at the time of the offence, similar to the age of Mr.
    Luskin. Second, and more importantly, unlike those other accused, the appellant
    suffered very serious injuries, including a traumatic brain injury that has
    left him without memory of the events. He is both physically and mentally
    vulnerable as a result. This is a serious mitigating factor to which the
    sentencing judge failed to give adequate consideration.

[14]

This latter fact would suggest that a sentence should be imposed on the
    appellant that is slightly below the ones that were imposed in
Kummer
and
Luskin
. In saying that, I recognize that making comparisons has
    its limits. No two cases are ever identical. The principles of parity and
    consistency are not to be tested against such a standard. As Lamer C.J.C. said
    in
R. v. M. (C.A.),
[1996] 1 S.C.R. 500, at para. 92: Sentencing is
    an inherently individualized process, and the search for a single appropriate
    sentence for a similar offender and a similar crime will frequently be a
    fruitless exercise of academic abstraction. Nevertheless, it remains a goal of
    the sentencing process to ensure that similar sentences are imposed on similar
    offenders for similar offences committed in similar circumstances:
Lacasse
,
    at para. 2.

[15]

In my view, the proper application of the parity principle would lead to
    a sentence of seven years being imposed on the appellant.

[16]

Before finishing, I should say that I have had the benefit of reviewing
    the dissenting reasons of my colleague. She outlines a possible basis by which
    the sentencing judges conclusion could be justified. I have two concerns with
    her approach, though. My first concern is that there is no way for this court
    to know whether the justification that my colleague has developed mirrors what
    the sentencing judge had in mind and thus permits meaningful appellate review.

[17]

My other concern is that many of the points upon which my colleague
    relies to justify the sentencing judges result involve very fine line
    distinctions for sentencing purposes. For example, comparing 122 km/h in a 70
    km/h zone with 135 km/h in a 60 km/h zone when it comes to considering the
    impact of speeding, or whether an accused is 20 or 22 when it comes to a
    youthful offender, or the presence or absence of demerit points when a driving
    record is proven
[1]
,
    strike me as thin reeds upon which to rely to remove 12 additional months of a
    persons liberty.

[18]

Finally, in light of my conclusion, it is unnecessary to address the
    other issues raised. Nevertheless, I would add that I do not accept the
    appellants contention regarding collateral consequences. On this point, the
    appellant said that he was subject to numerous lawsuits emanating from these
    events, lawsuits that would ultimately leave him subject to large judgments
    that he would be unable to honour. The appellant contended that this was a
    consequence that he would suffer arising from his conduct and that should
    militate against the sentence to be imposed.

[19]

The appellant complains that the sentencing judge did not mention this contention
    in his reasons. While true, that fact does not amount to an error. For one, a
    judge is not required to mention every argument that may be made. For another,
    it is not a consequence that I would see as having any significance to the
    determination of the ultimate penalty to be imposed. It is likely that there will
    often be lawsuits that will arise from such events. That reality fails to
    distinguish this case from any other of its type.

D.

Conclusion

[20]

I would grant leave to appeal sentence and I would allow the appeal. I
    would reduce the appellants sentence to seven years, leave the driving
    prohibition unchanged and set aside the victim impact surcharge.

I.V.B. Nordheimer J.A.

I agree. P. Lauwers. J.A.

Hoy A.C.J.O. (Dissenting)

[21]

I am not persuaded that this court is justified in intervening with the sentence
    imposed by the sentencing judge.

[22]

Except where a sentencing judge makes an error of law or an error in
    principle that has an impact on the sentence, an appellate court may not vary
    the sentence unless it is demonstrably unfit:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11. The appellant does not argue that the
    sentence imposed is demonstrably unfit, and I am not satisfied that the
    sentencing judge made an error of law or principle.

[23]

I disagree with my colleague that the sentencing judge made an error in
    principle in finding that the appellants conduct was more egregious than that
    of the drivers in the cases of
R. v. Kummer
, 2011 ONCA 39, 103 O.R.
    (3d) 641,
R. v. Luskin
, 2012 ONSC 1764, 282 C.C.C. (3d) 542, and
R. v. Muzzo
, 2016
    ONSC 2068, 353 C.C.C. (3d) 411  other cases in which the offender caused
    multiple deaths.

[24]

The sentencing judge carefully considered, and reviewed the facts in,
    each of
Kummer
,
Luskin
, and
Muzzo
. On the record
    before him, it was open for the sentencing judge to conclude that the appellants
    conduct was more egregious than that of the drivers in these other cases.

[25]

The appellant was travelling at a faster speed in a zone with a lower
    speed limit than was the driver in
Kummer
. As the sentencing judge
    detailed, Mr. Kummer was travelling at 122 km/h in a 70 km/h zone, whereas, in
    the moments before impact, the appellant was travelling towards a stale red
    light at 135 km/h in a 60 km/h zone.

[26]

The appellant was slightly older, more intoxicated, and had a worse
    driving record than the driver in
Luskin
. Mr. Luskin was about 20
    years of age at the time of the collision, whereas the appellant was 22 years
    of age. Mr. Luskin had a blood alcohol concentration (BAC) between 122 and
    157 mg of alcohol in 100 mL of blood at the time of collision:
Luskin
,
    at para. 5. As the sentencing judge noted in this case, the appellant had a BAC
    at the time of driving between 178 and 204 mg of alcohol in 100 mL of blood. As
    the Crown highlighted in its sentencing submissions, at the time of sentencing,
    it was a statutorily mandated aggravating factor under s. 255.1 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to have a BAC above 160 mg in 100mL of blood.
    The appellant was above this threshold, while Mr. Luskin was below it.
    Moreover, Mr. Luskins driving record was negligible:
Luskin
, at
    para. 25. By contrast, the sentencing judge in this case noted that the
    appellant had amassed eight demerit points in two years of driving and
    described the appellants driving record in this way, at para. 27:

In January of 2014, [the appellant] was convicted of driving a
    motor vehicle unaccompanied and had his licence suspended until March of 2014.
    In January of 2015, he disobeyed a traffic sign. In the same month he was found
    travelling 90 [km/h] in a 70 [km/h] zone. In March of 2016, he failed to stop
    at an intersection. Five days before the incident, in which he drove at a rate
    of no less than 135 [km/h] into the intersection of Jane and Sheppard Avenue
    West against a red light, he was found to have disobeyed a red light.

[27]

As to
Muzzo
, the appellant was driving faster in a busier area
    with a lower speed limit and had more demerit points than Mr. Muzzo. The
    appellant was travelling significantly faster than Mr. Muzzo was (135 km/h
    compared to 85km/h at time of impact) and in a zone with a lower speed limit
    (60 km/h, compared to 80 km/h): see
Muzzo
, at paras. 6, 23. The
    collision in
Muzzo
occurred in a less developed area of York Region:
Muzzo
, at para. 5; whereas the appellants collision took place at
    Jane Street and Sheppard Avenue West and other vehicles were in the appellants
    path. Additionally, while Mr. Muzzo had a lengthy prior record for driving
    infractions, including ten convictions for speeding, in contrast to the
    appellant, he did not have any demerit points at the time of the offence:
Muzzo
,
    at paras. 54, 71. In any event, the sentencing judge imposed a lesser sentence
    on the appellant than was imposed on Mr. Muzzo.

[28]

Moreover, the sentencing judge concluded that the appellants reckless
    driving in the moments leading up to the collision was an additional
    aggravating factor. In none of
Kummer
,
Luskin
, or
Muzzo
is there discussion of additional recklessness leading up to the collision that
    put others at risk beyond those tragically injured or killed in the collision.
    By contrast, in this case, the sentencing judge explicitly noted that the
    appellants reckless driving in the moments before the collision included
    fleeing responsibility for another accident, travelling at excessive speed,
    and weaving in and out of traffic: at para. 58. The sentencing judge described
    the appellants reckless driving in detail, at paras. 12-13:

At 3:18 [the appellant] drove the Acura out of the parking lot
    onto Jane Street south travelling at a high rate of speed. He passed a Mercedes
    at speed north of Shoreham drive. The rear bumper of [the appellants vehicle]
    flew off striking the Mercedes. The two cars stopped at the light and the
    passenger of the Mercedes rolled down the window and the driver and passenger
    told [the appellant] that they should exchange information because of the
    accident. [The appellant] replied, Have you ever seen a fucking V6?, then
    sped off driving very quickly on Jane Street. [The appellant] sped, moving from
    lane to lane, straddling lanes and accelerated at an extremely high rate of
    speed while swerving and weaving between traffic.

[The appellant] approached a stale red light at Sheppard Avenue
    West. A white Acura was stopped waiting for the light. [The appellant]
    approached at no less than 135 [km/h] in the posted 60 [km/h] zone, driving
    into the right rear portion of the stopped car, continued on through the
    intersection, mounted the southwest curb across the sidewalk colliding with a
    traffic signal pole. The trunk of his vehicle remained at the pole, the rest of
    the car shot into the air, rotating, striking trees and a fence lining the
    adjacent golf course landing on its roof in the grass west of the sidewalk,
    south of the intersection.

[29]

As I have stated, on this record, it was open to the sentencing judge to
    conclude that the appellants conduct was more egregious than that of the
    drivers in
Kummer
,
Luskin
, and
Muzzo
.

[30]

I also reject the appellants argument that the sentencing judge erred
    in principle in his parity analysis by failing to consider that the victims
    were passengers who had asked the appellant for a ride, after engaging in an
    evening of drinking, as opposed to innocent members of the public, lawfully
    using the highways. He submits that the sentencing judge misapprehended his
    submission. The sentencing judge stated that the Court cannot appreciate any
    principled reason for the notion that those that kill their friends and family
    are less morally blameworthy or the lives of the deceased less valued, than
    when they take the lives of a stranger: at para. 50. However, the appellant
    clarifies that he does not argue that his actions were less morally blameworthy
    because the victims had asked for a ride. Rather, the appellant argues his
    victims were less vulnerable than those in
Kummer
,
Luskin
,
    and
Muzzo
because they voluntarily assumed the risk of being in an
    accident and suffering death or bodily harm as a result. In effect, he argues
    that an aggravating factor that was present in those cases was absent here.

[31]

According to the appellants admissions pursuant to s.
    655 of the
Criminal Code
, all the victims had been drinking. Ravina Budhoorams BAC was 71 mg in
    100 mL; Rivera Ramsahais BAC was 235 mg in 100 mL; Tej Gangoos BAC was 139 mg
    in 100 mL; and Atul Vermas BAC was between 72 and 92 mg in 100 mL. Even if
    voluntary assumption of risk might, in certain circumstances, operate as
    distinguishing factor (and I do not decide that it could), it cannot do so in
    this case where the victims judgment and ability to assess risk, like that of
    the appellant, was impaired by alcohol. Further, innocent members of the
    public, lawfully using the roads, were at risk. The appellants bumper flew off
    and struck another vehicle he passed at speed before he hit another vehicle
    stopped at a red light, lost control of his own vehicle and crashed.

[32]

Finally, I agree with my colleague that the sentencing
    judges failure to address and accept the appellants argument that the fact
    that he is subject to numerous lawsuits as a result of these events is a mitigating
    factor, or at least a distinguishing factor, does not constitute an error in
    principle.

[33]

Accordingly, I would grant leave to appeal sentence,
    but dismiss the appeal.

Released: A.H January 22, 2020

Alexandra Hoy
    A.C.J.O.





[1]

I note, for example, that if a person is convicted of certain
    offences and the penalty imposed by the court includes a period of licence
    suspension, no demerit points are recorded:

Demerit Point System
, O.
    Reg. 339/94, ss. 2-3, made under the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8.


