



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dhillon, 2019 ONCA 159

DATE: 20190228

DOCKET: C63655

Watt, Huscroft and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Narankar Dhillon

Appellant

Alan D. Gold and Alex Palamarek, for the appellant

Deborah Krick, for the respondent

Heard: January 29, 2019

On appeal from the conviction entered on February 13,
    2017 and the sentence imposed on April 13, 2017 by Justice John R. Sproat of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was found guilty of manslaughter,
    kidnapping, and offering an indignity to a body, arising out of the death of Herminder
    Bhandal. An unlawful confinement charge was stayed pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

The trial judge found that the appellant
    believed that the deceased had stolen from him and ordered his kidnapping as a
    result. On August 23, 2013, Mr. Bhandal was lured into the basement of one of
    the kidnappers with the promise of drugs. After consuming methamphetamine,
    Bhandal was beaten by five men and kidnapped. His hands and feet were bound and
    his mouth was taped shut. At the direction of the appellant, Bhandal was
    transported to the appellants automotive shop and left on a wooden bench. He
    was later moved to the second floor of the shop, where he remained bound with
    his mouth taped shut. By the next morning Bhandal had died. At the appellants
    direction, his body was driven to an isolated area. The vehicle, with Bhandals
    body in it, was set on fire.

[3]

The appellant was sentenced to a global sentence
    of 16 years imprisonment: 14 years for manslaughter, 10 years concurrent for
    kidnapping; and 2 years consecutive for offering an indignity to a body. At the
    time of sentencing the appellant had 1 year and 10 months remaining on a 7-year
    sentence for trafficking heroin. The 16-year sentence was consecutive to the
    trafficking sentence.

[4]

The appellant appeals the manslaughter
    conviction and the sentence. He submits the trial judge erred in concluding
    that the
actus reus

and
mens
    rea

of manslaughter were made out. He seeks leave
    to appeal his sentence on the basis that the trial judge erred in principle and
    that the sentence imposed was harsh and excessive.

[5]

In our view, there is no merit to either ground
    of appeal. The appeal is dismissed for the reasons that follow.

The
actus reus

[6]

The trial judge found that Bhandals death was
    caused by his voluntary consumption of methamphetamine and/or cardiac
    arrhythmia, but the precise cause of death could not be determined because the
    body had been burned. The appellant submits that the trial judge erred in
    assuming the cause of death, and that without proof of the cause of death it
    was impossible to determine the appellants contribution to that death and his
    legal liability as a result. The appellant argues that s. 228 of the
Criminal
    Code
prevents the stress of kidnapping from being a cause
    of death at law.

[7]

We disagree.

[8]

The kidnapping of Bhandal ordered by the
    appellant cannot be considered in isolation. It included a violent attack by
    several men and the forcible restraint and confinement of Bhandal over a period
    of several hours.

[9]

It was open to the trial judge to find that, in
    all of the circumstances, the kidnapping gave rise to exertion and stress that
    raised Bhandals heart rate and blood pressure, and was a substantial
    contributing cause of his death. This finding was amply supported by the
    evidence and was sufficient for purposes of establishing factual causation:
R.
    v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71;
R. v.
    Maybin
, 2012 SCC 24, [2012] 2 S.C.R. 30, at para.1.

[10]

The finding that methamphetamine toxicity was a
    possible cause of death does not undermine this conclusion. The trial judge
    carefully reviewed the medical evidence. Although methamphetamine causes heart
    rate and blood pressure to increase, in some cases resulting in death from a
    cardiac arrhythmia, an increase in heart rate and blood pressure can also
    result from fear and stress resulting from being kidnapped, bound, and
    confined. There was evidence that a person who is physically stressed and has
    taken methamphetamine is in greater danger or more vulnerable to an arrhythmia
    than a person who is stressed but has not taken methamphetamine.

[11]

It is of no moment whether other factors, in
    particular Bhandals consumption of methamphetamine, may have contributed to
    his death. There was no obligation on the Crown to prove the medical cause of
    death in order to establish causation. It was enough that the trial judge found
    that the kidnapping

was a substantial contributing cause of Bhandals
    death.

The
mens rea

[12]

The appellant argues that the Crown did not
    prove that the bodily harm causing death was reasonably foreseeable to him. He
    submits that objective foresight of the kind of bodily harm that caused death
    was required.

[13]

We disagree.

[14]

The trial judge recognized that the Crown must
    prove that the accused had an objective foreseeability of the risk of bodily
    harm which is neither trivial nor transitory in the context of a dangerous
    act. He found that [s]etting five men to kidnap a young able-bodied man
    clearly meets this standard.

[15]

The appellant argues that even if the deceased
    died from methamphetamine toxicity triggered

by exertion and stress from
    being kidnapped, it was not bodily harm that was reasonably foreseeable to
    the appellant.

[16]

But the kidnapping cannot be parsed in this way.
    It includes the violent struggle to subdue Bhandal, in addition to the lengthy
    period in which he was held bound and gagged. It cannot be said that the risk
    of non-trivial bodily harm was not reasonably foreseeable in these
    circumstances. The appellant knew of the surrounding circumstances, and in
    particular knew that drugs would play a role in the kidnapping. It was
    objectively foreseeable that drugs would play a role in the kidnapping and give
    rise to a risk of non-trivial harm to the respondent. The Crown was not
    required to establish that the appellant knew the precise details as to how the
    kidnapping would proceed in order to satisfy the
mens rea
requirement.

Sentence

[17]

The appellant argues that the trial judge
    violated the totality principle by ordering that the 16-year global sentence be
    served consecutively to the 7-year sentence imposed for the appellants
    previous trafficking conviction, which had 22 months left to run. The result
    was a 23-year sentence the appellant says is substantially above the normal
    sentence for manslaughter and is crushing. The appellant contends that his lack
    of foresight of death was a mitigating factor that ought to have been
    considered, and that his sentence was excessive having regard to that of the
    others involved in the kidnapping. The appropriate range, according to the
    appellant, was 8-10 years.

[18]

We disagree.

[19]

It is well established that, absent errors in
    law or in principle that affect the fitness of a sentence, the trial judges
    decision is entitled to deference unless it is demonstrably unfit:

R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[20]

The trial judge recognized that the starting
    point for the manslaughter sentence was the sentence of 10-10.5 years imposed
    on the five co-accused who had pleaded guilty. However, the appellants moral
    culpability was far greater: he was the leader, and the others followed his
    orders. It was his decision to order the kidnapping, a crime he had to
    appreciate would involve a significant violent assault. Had he not given the
    order, the kidnapping would never have occurred. The trial judge found that the
    appellants decision was no momentary aberration; the appellants conduct in
    attempting to kidnap Bhandal persisted over a lengthy period of time, and
    included a prior failed attempt. Moreover, the appellant was on bail on a
    charge of trafficking in heroin when the offences were committed.

[21]

The trial judge noted that two of the co-accused
    had received consideration for their guilty pleas, reducing the 12-year
    sentences that would otherwise have been appropriate. In these circumstances,
    it cannot be said that the 14-year sentence for manslaughter was unfit.

[22]

The
    2-year sentence
for offering an indignity to a body reflected
    the different interests at play. As the trial judge noted, the burning of
    Bhandals body undermined the administration of justice by destroying evidence,
    and created a dangerous situation that put passersby and first responders at
    risk. It was appropriate for this sentence to run consecutively:
R.
    v. Fournel
, 2014 ONCA 305, at para. 58.

[23]

The decision for the 16-year sentence to run consecutively from the
    sentence the appellant was already serving for heroin trafficking does not
    violate the totality principle. It was open to the trial judge to exercise his
    discretion under 718.3(4) to make the sentences consecutive rather than
    concurrent. The trial judge made no error in exercising his discretion, nor can
    it be said that the total sentence imposed  an effective sentence of 17 years
    and 2 months  was demonstrably unfit.

Conclusion

[24]

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

David
    Watt J.A.

Grant
    Huscroft J.A.

L.B.
    Roberts J.A.


