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

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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.

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[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.

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[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.

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[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.