



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bhangal, 2016 ONCA 857

DATE: 20161116

DOCKET: C58005

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lakhvinder Singh Bhangal

Appellant

John Rosen and Lindsay Daviau, for the appellant

Scott Latimer, for the respondent

Heard:  November 9, 2016

On appeal from the conviction entered on June 28, 2013 by
    Justice Hourigan of the Superior Court of Justice, sitting with a jury, and the
    sentence imposed on December 3, 2013.

ENDORSEMENT

[1]

The appellant was a truck driver. His truck
    drifted into oncoming traffic and collided, head-on, with a mini-van, killing
    the driver.

[2]

The jury apparently accepted the Crowns
    position that the appellant knowingly breached the rules and regulations
    governing truck drivers' sleep
requirements and put
    incorrect information into his driving logs and fell asleep at
the wheel. It convicted the appellant of dangerous driving causing death
    and criminal negligence causing death.

[3]

The trial judge stayed the conviction of
    dangerous driving causing death in accordance with the principle in
Kienapple v. R.
, [1975] 1 S.C.R. 729.
    He sentenced the appellant to five years imprisonment and ordered a
    fifteen-year driving prohibition.

[4]

The appellant appeals his conviction for
    criminal negligence causing death on the basis that the trial judge:  (1)
    failed to adequately  explain to the jury the elements of criminal negligence
    causing death and how that offence differs from the offence of dangerous
    driving causing death; and (2)  failed to adequately relate the evidence to the
    offence. He does not appeal his conviction for dangerous driving causing death.

[5]

He seeks leave to appeal sentence on the bases
    that the trial judge erred in principle by not imposing a lesser sentence than
    would be imposed in a case involving impairment by alcohol and that the
    sentence imposed is demonstrably unfit.  He says a sentence of two to three
    years, and a driving prohibition of five years is a fit sentence.

[6]

In our view, the trial judge properly instructed
    the jury on the elements of criminal negligence causing death and explained the
    difference between that offence and the lesser offence of dangerous driving
    causing death.

[7]

He first instructed the jury about the elements
    of dangerous driving causing death and then told the jury that more was
    required for a person to be guilty of criminal negligence causing death. He
    explained that the appellants conduct must show a wanton or reckless disregard
    for the lives or safety of other people and that the conduct must be a marked
    and substantial departure from what a reasonably prudent person would do in the
    same circumstances. He explained how Crown counsel might prove the required
    marked and substantial departure from what a reasonably prudent person would
    have done.

[8]

In a response to a question from the jury
    seeking clarification about the difference between the offences of dangerous
    driving causing death and criminal negligence causing death, he repeated the
    relevant portions of his charge and added that in the case of criminal
    negligence causing death, the conduct must be more marked than for dangerous
    driving in both the physical and mental elements of the offence. He again
    explained the difference between criminal negligence causing death and
    dangerous driving causing death.  Appellants counsel acknowledged that the
    trial judges response to the jurys question was correct.

[9]

The trial judge reviewed both his charge and his
    proposed answer to the jurys question with counsel in advance. Trial counsel
    did not object to either.

[10]

Nor did the trial judge fail to sufficiently
    relate the evidence to the offence. After first explaining the elements of the
    two offences and the difference between them, the trial judge turned to the
    dangerous driving count. He again reviewed the elements of that offence and
    then summarized the relevant evidence, including the evidence regarding the
    regulation governing the hours that a commercial vehicle driver can be on the
    road driving and the appellants knowledge of the regulation and the evidence
    that the appellant had falsified his drivers log.  Then, the trial judge again
    set out the elements of the offence of criminal negligence causing death.

[11]

Contrary to the appellants submission, the trial judge
    did not err by at this point failing to repeat his summary of the relevant
    evidence and instead instructing the jury that the evidence that he had
    reviewed also applied to this charge. Indeed, highlighting the evidence that
    would support a finding that what the appellant did was a marked
and substantial
departure  as opposed to the marked departure standard applicable in the
    case of dangerous driving  from what a reasonably prudent person would have
    done in the circumstances would likely have harmed rather than helped the
    appellant.

[12]

We are not persuaded that there is any basis to interfere with the
    sentence imposed by the trial judge.

[13]

The trial judge imposed a sentence that in his opinion was fit in the
    particular circumstances of the case. He considered the circumstances of the
    offender, including that the appellant had no criminal record. He specifically
    acknowledged that this case was factually unique from the case that parties had
    submitted to him with regard to the appropriate range of sentences because it
    did not involve the consumption of alcohol and was in the context of the
    commercial operation of a motor vehicle.  He found that the appellant had
deliberately
ignored the driver safety rules, had
    doctored his log books in an effort to avoid his rest obligations and had put
    his economic interests ahead of public safety. He correctly concluded that the
    appellants deliberate course of conduct was a significant aggravating factor.
    Further, he found that there was a clear need for specific deterrence because
    the appellant had received a warning about excess driving only days before the
    accident.

[14]

The sentence that the trial judge imposed is not demonstrably unfit.

[15]

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

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

K. van Rensburg J.A.


