R. v. Sidhu, 2023 BCPC 77

Citation: R. v. Sidhu 2023 BCPC 77 Date: 20230224 File No: 266296-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MANDIP KAUR SIDHU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. SUTHERLAND Counsel for the Crown: E. Poll (as Agent for P. Sebellin) Counsel for the Defendant: W. Smart, KC and S. Humphrey Place of Hearing: Vancouver , B.C. Date of Hearing: February 8, 2023 Date of Judgment: February 24, 2023 INTRODUCTION

INTRODUCTION [ 1 ] THE COURT : By way of introduction, Charanjit Parhar was a bus driver with the Coast Mountain Bus Company. At approximately 8:15 a.m. on September 27, 2021, he parked his bus at a bus stop on West Cordova Street in Vancouver. He put on his four-way flashers, a reflective vest, and got out due to a mechanical issue. The accused, Mandip Sidhu, another Coast Mountain bus driver, pulled her bus in behind Mr. Parhar's. She spoke briefly to him on the sidewalk and then returned to her bus as Mr. Parhar went between the buses to pull down the trolley poles of his bus. While between the buses, Ms.

Sidhu engaged her bus, intending to drive around Mr. Parhar's bus. Instead, her bus accelerated straight ahead, pinning Mr. Parhar between the buses. He succumbed to his injuries and passed away the next day. Ms. Sidhu has pled guilty to driving without due care and attention, which is an offence under the Motor Vehicle Act . She is now before me for sentencing. [ 2 ] The Crown and defence together propose as a fit sentence a $1,500 fine without a driving prohibition. I will state at the outset that I am prepared to endorse the joint recommendation as an appropriate sentence.

To explain why, I will outline in more detail the circumstances of the offence to put the accused's moral blameworthiness for the offence into sharper focus. I will then describe Ms. Sidhu's background, the task of sentencing generally, and I will analyze how the objectives and principles of sentencing that apply to the unique circumstances of the offence and Ms. Sidhu's background lead to my conclusion. THE CIRCUMSTANCES OF THE OFFENCE [ 3 ] Turning, firstly, to the circumstances of the offence. On the morning of September 27, 2021, Ms. Sidhu and Mr. Parhar were both driving articulated trolley buses.

An articulated bus is one that consists of two bus cars that are connected by a flexible joint. A trolley bus is one that is powered by electricity from overhead wires. The electricity transfers down to the bus via poles that extend from the top of the bus that connect to the wires above. On the floor of the bus to the right of the steering column are two pedals. The pedal on the far right is the power pedal which controls the amount of power that is being transferred to operate the bus. The pedal on the left is the brake pedal. Ms. Sidhu was trained to use her right foot for both pedals.

On the control panel to the left of the driver's seat is a knob that engages the airbrakes of the bus. Ms. Sidhu was trained to use her left hand with respect to engaging the airbrakes. The airbrakes are important because the bus does not have a parking gear. Rather, there are three gears, drive, neutral, and reverse, and consequently, the airbrakes are used when the bus is in neutral which would be when the bus is parked. [ 4 ] On the morning of September 27, Ms. Sidhu was assigned a route that she was well familiar with, and she was well familiar with driving an articulated bus.

She was driving east on West Cordova Street at about 8:16 a.m, when she stopped at a designated bus stop directly behind Mr. Parhar's bus. His bus had its four-way flashers on which signalled the mechanical issues that the bus was having. [ 5 ] Because Ms. Sidhu could not drive around Mr. Parhar's bus while Mr. Parhar's bus had its poles connected to the overhead wires, she got out of her bus to find Mr. Parhar walking to the rear of his bus wearing a reflective vest and, again, the four-way flashers were on on his bus. They had a brief conversation where Mr. Parhar told her of the mechanical issue. Ms.

Sidhu then went back into her bus and Mr. Parhar went in between the two buses to pull the poles to disconnect them, allowing her to drive around his bus. [ 6 ] Ms. Sidhu does not recall precisely what she did that morning when she went to set her bus in motion. She typically followed the same procedure and sequence of events each time she was pulling away from the curb. That involved putting her right foot on the brake pedal.

Once her foot was on the brake pedal, releasing the airbrakes, signalling her turn, checking her mirrors, and then initiating her turn and as she would do so, in terms of initiating her turn, it was a matter of gently releasing the brake pedal with her right foot to slowly move her bus to pull around. She had gone through these steps many times before and they were somewhat second nature and executed in quick succession, typically. [ 7 ] Perhaps because she had executed these procedures many times before, she cannot quite remember exactly what she did on this occasion.

She is left to speculate and try to reconstruct it. In the course of that speculation, she believes that she put her foot on the wrong pedal. She thought her foot was on the brake pedal, but on reflection, she believes it may have been on the power pedal, a mistake that she had not made before. [ 8 ] In the end, she has been charged because her bus went straight instead of around Mr. Parhar's, resulting in his tragic death. She has been charged with driving without due care and attention on the basis that she knew Mr. Parhar was between the buses and in a vulnerable position.

She did not alert him to her intention of driving around and, in terms of piecing this together, she appears to have released the emergency brake while having her foot on the accelerator. This fell short of the standard of care expected of a reasonable person in her circumstances as a transit bus operator driving this type of bus. [ 9 ] The effect of the accident has, to summarize, been devastating. By all accounts, Mr. Parhar, who was 64, married with three daughters, was a kind-hearted man who tried to make the world better through the way he treated people.

I have been provided with three victim impact statements, which is where I get that characterization. I am simply going to paraphrase from the victim impact statements, but I am going to paraphrase from each one individually. I want the members of the Parhar family to be aware that, despite paraphrasing, I have read though the victim impact statements and, to be frank, I have read through them more than once or twice. [ 10 ] Referring, firstly, to Baljit Parhar, she notes that Mr. Parhar was many things to many people.

A devoted husband of 40 years, a selfless father, a loving grandfather, a best friend to a grandson. Consequently, his life coming to an end, as it was described in her victim impact statement, has shattered a number of people in their world. There is a dark hole of grief, there are shaken belief systems, and just a hard time reconciling it all. [ 11 ] Pamela Parhar, in her victim impact statement, notes many of the same things that her sister did and describes how she shared the same birthday with her father, which has made a happy occasion a dark one going forward.

She is having a hard time moving forward focusing on things to do, enjoying life, and being happy. She feels that, although Mr. Parhar was the principal victim, that her and her sisters and her mother are also feeling like they have been profoundly victimized, as well. There are many aspects of her life and her existence that she mourns, having lost the participation of Mr. Parhar in her life. For example, his projected influence on her children. She feels sad when she is reminded of her loss, which is every day. As she describes in her summarizing paragraph, her life has changed forever.

She feels right now, understandably, for the worse. She worries that she will never be able to revert back to how she was. I

should not say she worries; she has concluded she will not – completely understandably, that she misses her father and that she will live with that pain for the rest of her life. [ 12 ] Reena Parhar echoes the same things that her sisters have, and describes, again, her shaken belief system in religion, in karma, in how people treat one another. She feels unstable. She feels she has lost motivation.

She feels like she cannot envisage her present or her future and she feels like every day and every thought is different than it used to be and that her world seems smaller, scarier, less optimistic, and less hopeful; further, that the accident is a constant and pervasive thought that makes sleeping difficult and she feels she has lost her safety. Despite being brought up to be fiercely independent, there was always the safety net of her father. THE CIRCUMSTANCES OF MS. SIDHU [ 13 ] I now wish to turn to Ms. Sidhu and her background. Ms. Sidhu is 47 years of age. She has no criminal record.

She has never been previously investigated for any offence, as far as anybody knows. Despite her many years of experience as a driver, she has a near perfect driving record. [ 14 ] She was born in India, married there when she was 22 years of age, and then came to Canada later to join her husband. When she came to Canada, she could not speak English. She did not have work, but she had a dream of becoming a bus driver. Unfortunately, her marriage presented challenges. She and her husband separated while she was pregnant with their second son. Her first son is 21 years of age, her second son, 19.

Her husband was an alcoholic and emotionally and physically abusive and, although they would reconcile and separate as a recurring cycle, they eventually divorced finally in 2020. [ 15 ] Essentially, Ms. Sidhu was a single mother as she did not receive financial support from her ex-husband. Consequently, she worked hard to try to make ends meet for her family. Her parents took care of the children while she tried to take steps to realize her dream of being a bus driver. Eventually, she did obtain her Class 1 driver's licence which allowed her to work as a bus driver. [ 16 ] Ms.

Sidhu was hired by Third Wave Bus Services in Richmond where she worked for approximately 12 years driving different kinds of buses. A letter has been provided by Murray Nicholl who is the president of Third Wave Enterprises. He describes having had, over the years since 1987 when he started the company, over 600 employees and so he feels that he has a perspective on what makes a good driver and that he can recognize a good driver when he sees one. He says he would put Ms.

Sidhu in the top five percent of all drivers that he has employed over the last 36 years, particularly with respect to having a responsible attitude toward vehicle safety. She drove a school bus for many years with Third Wave. She was not involved in any accidents or incidents that resulted in disciplinary issues. He said she performed her tasks well, was always diligent with safety, and someone who took great pride in being a professional. [ 17 ] Ms. Sidhu left Third Wave Bus Services around 2019 and joined the Surrey School Board as a bus driver.

The change would allow her to have benefits for her and her children. A letter has been provided by a Mr. Rai who has worked for the School District for 33 years and as a foreman for close to five years. He had direct contact with Ms. Sidhu when she worked there for a year and a half. He described her as a very hard worker who very much enjoyed the job. She had no accidents or disciplinary issues, had a strong work attitude, and it was well known that driving a bus for Coast Mountain was her dream job. When she got that job, she used to send him photos of her and her bus. [ 18 ] Ms.

Sidhu was hired by Coast Mountain on November 30, 2020, and did a month and a half of training, passed all of her tests, and was on her way. [ 19 ] Today, she is a single parent who cares for her two sons, both of whom live at home, her eldest son suffering from a learning disability and, as a result, only made it so far in his formal education. [ 20 ] Ms. Sidhu fully cooperated with the Vancouver Police and WorkSafeBC in the course of their investigations into the accident. [ 21 ] Ms.

Sidhu too has suffered in her own way, different of course, from the Parhars and their loved ones, but certainly significantly in her own way. Following the accident, she was diagnosed with posttraumatic stress disorder and major depressive disorder. She has been unable to work, has been receiving disability benefits, and has recently been referred for assessment for permanent disability benefits as a result of her continuing mental health challenges. She works with a clinical counsellor on a regular basis. [ 22 ] She provided an apology to the family of Mr. Parhar.

In her apology, which she read in open court, she stated that she was deeply remorseful for what she takes full responsibility for having done, and that includes the pain, the grief, and the trauma that she has caused the Parhar family. She says she cannot find the words to express her guilt, shame, and sorrow; that she knows that she will have those feelings with her for the rest of her life; and that she deserves to feel that way. [ 23 ] Ms. Sidhu said that she thinks about Mr. Parhar daily, visualizes him, thinks about the grief that she has caused the Parhar family and Mr. Parhar's loved ones.

She thinks about it every day; and that she punishes herself whenever she thinks about him. She prays that the Parhars have the strength to endure the pain that she has caused. She said there will never be a day when she does not think about him and what she has done and how her life has changed forever, as well; that she is not the same person. I have already mentioned her comment about the guilt, shame, and sorrow and that she feels she deserves to feel that way. In

summary, she describes herself as devastated. SENTENCING: GENERAL COMMENTS [ 24 ] I now wish to make some general comments about sentencing. Although a joint submission has been presented to the Court, sentencing is complex, particularly sentencing somebody such as Ms. Sidhu. In a momentary lapse of attention, the Parhar family, Ms.

Sidhu and her own family and those that know them, respectively, and their community have been tragically changed. [ 25 ] A Court has to consider the purposes and principles of sentencing that are contained in the Criminal Code and, as well, an offender's personal circumstances and the circumstances of the offence, all with a view to trying to determine an offender's moral blameworthiness for the commission of the offence. Ultimately, this assessment guides the Court to arrive at a sentence that is

proportionate to the gravity of the offence and the offender's degree of responsibility, and this process is individual to each case and eachoffender. No two cases are the same, just like no two people are the same. [26] The purposes and principles of sentencing contained in the Criminal Code are meant to account for the needs of the communityand the offender as an individual. In the end, the Court needs to balance these needs giving weight to some more than others dependingon the circumstances of the individual case.

For example, where the objective is general deterrence and denunciation, a sentence may bedifferent than if the emphasis is more on rehabilitation and reformation. Those are some of the objectives that are stated in the CriminalCode. [27] From this, it is hopefully apparent that sentencing someone like Ms. Sidhu is a complex task, and I wish to really emphasize thatthe sentence I impose is not intended to replace the loss that has been suffered by the Parhar family. Indeed, nothing could replace thatloss. Furthermore, the law cannot relieve the grief of the Parhar family or the internal torment of Ms. Sidhu.

The law is simply notequipped to address those emotional consequences in a way that will ease the pain of those who have suffered from this tragic accident. ANALYSIS [28] The overriding sentencing consideration is to contribute to respect for the law and the protection of society and the community. With respect to protecting the community and society, Ms. Sidhu herself, in my view, does not present a risk to the public even whileoperating a motor vehicle. She has no criminal record and has never been implicated in any criminal investigation before.

Asmentioned, she has a virtually clean driving record, despite the many kilometres that she has driven over the years. She is by allaccounts, based on the information that has been presented to me and hearing her apology to the Parhar family, someone who caresabout people, has empathy and compassion for them. Her statement revealed a profound remorse that confirms this, in my view. [29] Her life has had its challenges before this tragic accident, but through perseverance, resilience and hard work, she forged a lifewithout having to rely on unlawful means to do so.

In my view, the sentencing objectives of specific deterrence, and rehabilitation, donot need to be emphasized here, nor does she present a risk to the public requiring that she be separated from society. [30] The tragic consequences of Ms. Sidhu's inattention requires retribution to be considered. Retribution in the criminal context wasdescribed in R. v. M.(C.A.), (SCC), [1996] 1 SCR 500, as representing an objective, reasoned, and measureddetermination of an appropriate sentence that reflects an offender's moral culpability.

It reflects the intentional risk taking that theyengaged in when the offence was committed. It factors in how that offender normally conducts themself, and the harm that was caused. It incorporates a principle of restraint such that it requires the imposition of a just and appropriate punishment, but nothing more. [31] In previous driving cases involving an offence caused by momentary inadvertence, general deterrence as a sentencing objectivehas been held to be the primary sentencing objective, as a reference, there is the case of R. v. Campbell, 2019 BCPC 11.

More specific tothe present circumstances, referring to the principle of general deterrence, commercial bus drivers must know from the sentence, and thepublic that depends on them must be assured that bus drivers will devote their complete attention to the task of driving, and that failure tocomply with that standard will result in court-imposed consequences. [32] The harm caused by Ms. Sidhu is tragic. Her normative character is law-abiding and careful. Her moral culpability for theoffence, in my view, appears to be at the lower end of the spectrum.

To put that conclusion into some perspective, one can look at otherdriving offences. For example, Ms. Sidhu did not deliberately engage in risky driving behaviour knowing it to be risky, for example, aperson who is drinking and driving, excessively speeding, or some other form of aggressive driving. In those cases, the offender isthought to have a higher degree of moral culpability. [33] Nor did she deliberately fail to respond to an existing risk or take reasonable steps to avoid the risk.

For example, the driver whocannot see the colour of the traffic lights because of the way the sun is shining, but goes through anyway. Here, a risk existed once Mr.Parhar was between the buses and Ms. Sidhu was aware that he was there. She took what she thought were the proper steps to safelyrespond to that risk, but in a few critical seconds of inattention, she either missed a step or made an error in performing a step. These areimportant elements in properly calibrating Ms.

Sidhu's moral blameworthiness for the offence. [34] In terms of a range of sentence, as noted by the Honourable Judge Harris in Campbell, the offence of driving without due careand attention under the Motor Vehicle Act is a regulatory offence with a maximum penalty of a $2,000 fine. However, a fine in the rangeof $1,200 to $2,000 is typically imposed where momentary driver inattention results in death or serious injury.

The proposed fine of$1,500 falls within that range and adequately addresses, in my view, the aggravating and mitigating circumstances of the case which Iwill mention now. [35] I find it aggravating that Ms. Sidhu was driving a large heavy vehicle when she had her momentary lapse of attention. A largeheavy bus presents a greater risk of danger on its own, but also it attracts pedestrians given its function is to transport them. Furthermore,the area where the accident occurred, given the purpose of the vehicle, was an area where one would expect people and vehicle traffic tobe.

Finally, of course, there are tragic consequences. [36] In mitigation, as mentioned, Ms. Sidhu has no criminal record or driving record to speak of. The character letters establish thatshe is otherwise a very careful driver who took her responsibilities seriously. She pled guilty at an early stage and is profoundlyremorseful. [37] I also factor in a few other considerations. Ms. Sidhu has suffered profoundly for her offence, and perhaps that is as it should be,but that suffering goes some distance in satisfying the objective that I mentioned earlier of general deterrence.

For example, she has losther dream job without the hope of recovering it. Her posttraumatic stress and major depressive disorders may have rendered herunemployable for the long-term future. Finally, she has been publicly prosecuted for her offences with the shame, guilt, humiliation andstigma that accompanies that. I consider those factors as well in looking at all of the considerations. In conclusion, there are unique andrare circumstances in this case.

A brief and discrete set of actions intended to avoid a risk ended tragically. [38] The sentence that I impose is not directly for the harm caused and does not reflect the value of the loss of Mr. Parhar's life or the

profound suffering that it has caused, but in balancing all of the considerations that I must, I find -- and, Ms. Sidhu, can you please stand up for a moment? I find that a fine of $1,500, plus there is a mandatory victim fine surcharge that applies, as well, which I believe is 10 percent of the amount of the fine, to be a fit and proportionate sentence. [ 39 ] In that regard, Ms. Humphrey, how long will Ms. Sidhu need to pay that? [ 40 ] CNSL S. HUMPHREY: We would request six months in order to allow her to make those payments.

She is still receiving Worker's Compensation benefits at this time, and the fine is a significant amount for her to make monthly payments on. [ 41 ] THE COURT: Okay. Firstly, that is fine. The victim fine surcharge is an amount of money that gets put into an initiative to assist victims of crime. That is what I am referring to. I know it did not come up in the course of the submissions, but it is well placed here. How about it will be payable by August 31? That should be six months -- [ 42 ] CNSL S. HUMPHREY: Yes. [ 43 ] THE COURT: -- and you are sure that is sufficient time? [ 44 ] CNSL S.

HUMPHREY: Thank you. [ 45 ] THE COURT: Okay. I want to thank counsel and I want to thank everybody who came out to provide the Court with information. It was of great assistance and that includes the submissions, of course, made on behalf of Ms. Sidhu. [ 46 ] Thank you. (REASONS CONCLUDED)