A Thunder Bay judge has issued an absolute discharge so an Indian trucker who pleaded guilty to dangerous driving in a fatal crash can avoid deportation.
The Ontario Superior Court of Justice heard Ajitpal Singh was driving too close behind another truck that lost control and jackknifed on Highway 102 in December 2021, killing the driver of a truck heading in the opposite direction, and severely injuring a passenger.
“Mr. Singh has been living in Canada since 2018, where he has studied and worked to make a life in this country; If convicted, he will almost certainly face deportation, which would be a result unique to Mr. Singh in that no Canadian citizen would face a similar consequence if he or she pleaded guilty to the same crime,” Justice Stephen J. Wojciechowski wrote in a recent decision.
“Deportation would be a disproportionate result to the crime which this sentencing hearing is addressing.”
Singh pleaded guilty last November to dangerous operation of a motor vehicle on Dec. 12, 2021.
The Crown was seeking a conviction for Singh with a two-year driving prohibition and a $3,000 fine
Singh’s lawyer sought the discharge, with the trucker “making a voluntary payment of $10,000 as a victim fine surcharge or restitution, in addition to agreeing to a driving prohibition for a period of five to 10 years,” said the May 4 decision.
“The Crown’s position was that the discharge requested by the defence would be contrary to the public’s interest. Mr. Singh’s conduct and driving behaviour warrants accountability and a sentence which reflects general deterrence,” said the decision.
“Despite the fact that immigration consequences could flow from a conviction, these are simply collateral to the main issues of sentencing and are not to be considered as either aggravating or mitigating factors.”
The court heard that on the day of the crash, “Singh was following another tractor trailer which was being driven by Mohamed Ahmed, who in turn was following a passenger vehicle,” said the decision.
James Young was driving a red Ford sport utility vehicle (SUV) in front of Ahmed’s tractor trailer.
When the SUV began to slow down to turn into the Wildwood Variety store in Kaministiquia, about 30 kilometres west of Thunder Bay , Young noticed “in his rear-view mirror that Mr. Ahmed was not slowing down, and as such, he took evasive action and pulled right and forward off the highway in order to avoid a rear end collision with Mr. Ahmed,” said the decision.
“Mr. Ahmed, upon noticing the passenger vehicle’s manoeuvre, braked heavily in an attempt to avoid the SUV, causing his tractor trailer to enter the eastbound lane of Highway 102.”
Another tractor trailer was heading east, with Michel Pharand at the wheel and Marie-Paule Landry in the passenger seat.
“As Mr. Ahmed applied his brakes suddenly, his tractor trailer jackknifed into the eastbound lane. At the same time, Mr. Singh was following so closely that he did not have much time to react,” said the decision.
“While Mr. Singh attempted to use his brakes as well, it was too late to prevent the front of his tractor trailer from colliding with the rear of Mr. Ahmed’s vehicle. The resulting collision pushed Mr. Ahmed’s vehicle further into the eastbound lane and a head on collision occurred with Mr. Pharand’s vehicle. Upon examination at the scene, no brake or skid marks were found on the highway caused by Mr. Singh’s vehicle.”
The crash killed Pharand and left Landry with severe injuries, including a fractured pelvis. Singh was not hurt.
Landry “has experienced anger and sadness with the loss of her partner, Mr. Pharand, including the loss of no longer being in each other’s company, sharing their thoughts, traveling together, and enjoying their lives with their children and grandchildren,” said the decision. “Emotionally and financially, Mr. Pharand’s death has been difficult for Ms. Landry, noting that she will never be the same person she was before the accident which has had repercussions to her having a normal life.”
Landry’s daughter, Karine Bedard, told the court that “the loss of Mr. Pharand has had a major impact upon Ms. Bedard and her family, including her three young children. As well, Ms. Bedard detailed the heartbreak of watching her mother have to cope with chronic pain and limited mobility caused by the accident. Her heart is full of sadness, unable to find peace with the events which have left her mother struggling every day and which caused the permanent loss of her guardian angel and her children’s grandfather, Michel.”
Her husband, Michael Jewer, was “close friends” with Pharand, who played “the role of a father figure” for him even before he married Bedard, said the decision. “So, his loss is intensified with the fact that ultimately Mr. Pharand became family to Mr. Jewer, his wife and their three children. When hearing of his death, Mr. Jewer describes the feeling as like someone tearing his heart out of his chest and stepping on it. While trying to be strong for his family, he has felt the need to occasionally retire to his basement to cry and let out his emotions.”
The Crown argued that on the day of the fatal crash, “Singh was operating a tractor trailer on a single lane highway in a convoy-like fashion, limiting any ability for him or other users of the highway to react, which calls for deterrence and denunciation,” said the decision.
“Only a conviction will deter other drivers who operate commercial vehicles on Canadian highways from doing what Mr. Singh did.”
Singh’s lawyer produced a letter from an immigration lawyer who indicated convicting him of dangerous driving would make him “inadmissible to Canada,” meaning he could be deported without a hearing.
“While persons with status of a permanent resident or a protected person would have the right to advance an appeal to (Immigration Minister Lena Diab) in the event a removal process was instituted, Mr. Singh does not hold status under either of those categories, and as a foreign national would have no recourse to removal following a dangerous driving conviction,” according to the letter.
Singh’s lawyer said his client “does not mean to diminish the terrible tragedy which occurred, and appreciates the loss of life which resulted from the accident,” said the decision.
“Mr. Singh’s role, however, was not causative of Mr. Pharand’s death according to the agreed upon facts and positions of the parties. Mr. Singh admitted to following too closely, and was unable to brake in time to avoid hitting Mr. Ahmed’s vehicle. Mr. Ahmed, on the other hand, was separately charged for his role in this accident, and a trial has already commenced in this regard. In fact, Mr. Singh has agreed to be a witness in that trial.”
Singh, who needed a Punjabi translator for the sentencing hearing, is 33 and didn’t have a criminal record before the crash.
“His parents reside in India, and one of his sisters has immigrated to Canada with his remaining siblings still resident in India,” said the decision.
Singh completed his studies in Canada in 2019 and applied for a work permit as a mechanic. He later obtained a truck driver’s licence and moved to Manitoba.
Singh kept driving trucks after the fatal crash, but “stopped in August 2022 due to the trauma of the accident which caught up to him through ongoing flashbacks,” said the decision. “Since that time, Mr. Singh has turned to religion for guidance and support, and in addition has completed over 100 hours of community service.”
According to the judge, “it appears that it was Mr. Ahmed and his driving behaviour which ultimately resulted in Mr. Pharand’s death.”
Singh’s conduct that day “did not make the situation any better as a result of the impact between his vehicle and the rear of Mr. Ahmed’s vehicle, but did not worsen the situation either such that his conduct caused the tragic outcome which resulted.”
Wojciechowski accepted that Singh “would be deported to India” if he was convicted of dangerous driving.
He granted Singh an absolute discharge, ordered him to pay Landry $10,000, and banned him from driving for eight years.
Last fall, Conservative MP Michelle Rempel Garner introduced a private member’s bill, C-220, that would prohibit judges from taking into account the impact a sentence would have on an offender’s immigration status.
The bill was defeated this past March with a vote of 192 to 136.
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