Court of Appeal for Ontario

Date: 2022-05-12 Docket: C69653

Judges: Simmons, Harvison Young and Coroza JJ.A.

Between: Her Majesty the Queen, Respondent and Vasanthan Navarathinam, Appellant

Counsel: Vasanthan Navarathinam, acting in person Fredrick Schumann, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: May 3, 2022

On appeal from the convictions entered on December 17, 2020, and the sentence imposed on June 11, 2021, by Justice Gillian E. Roberts of the Superior Court of Justice, with reasons reported at 2021 ONSC 4241.

Reasons for Decision

Overview

[1] The appellant appeals his convictions for aggravated assault and possession of a weapon for a dangerous purpose. [1] He also seeks leave to appeal the four-year global sentence imposed by the sentencing judge, divided as follows: four years’ imprisonment on the aggravated assault conviction and one year imprisonment on the weapons dangerous conviction (to be served concurrently). After accounting for credits, the remaining sentence to be served was 26 months, 10 days.

[2] Duty counsel advised the court at the outset of oral argument that he had identified a potential ground of appeal with respect to the conviction appeal, but that the appellant did not wish to advance his conviction appeal, as he did not desire any outcome that would require a new trial. The appellant affirmed this position, and advised the court that he wanted to abandon his conviction appeal. Duty counsel then made submissions concerning the sentence appeal.

Background Facts

[3] The appellant chased the victim through at least two hallways of an apartment building and slashed him with a meat cleaver, causing serious wounds to his head and left cheek. This entire attack was captured on video by several apartment hallway cameras. The sentencing judge noted that the victim was completely vulnerable at the time of the attack. The surveillance video showed the victim fleeing from the appellant and another male, and then giving up and collapsing to the ground, lifting his arms up in a position of surrender. The appellant paused for a moment and then attacked the victim.

Analysis

[4] On behalf of the appellant, duty counsel submits that leave to appeal sentence should be granted and that the sentence imposed by the sentencing judge should have been between 18 months and 2 years less a day. On the basis of the appellant’s credit, duty counsel submits that the resulting sentence should be reduced to time served.

[5] Duty counsel makes two submissions.

[6] First, while the sentencing judge described the appellant’s tragic and sympathetic background at the outset of her reasons, reading the reasons as a whole suggests that she ignored these significant mitigating circumstances. This led the sentencing judge to impose a sentence that was not proportionate because greater weight should have been assigned to the appellant’s rehabilitative potential.

[7] We are not persuaded by this submission. The sentencing judge was certainly aware of the appellant’s tragic background, as provided to her through a presentence report, two psychiatric reports, and the appellant’s allocution at sentencing. While we agree that the sentencing judge did not explicitly state that the appellant’s background was a mitigating circumstance, it cannot be said that she ignored it. Even if she did fail to weigh it as a mitigating circumstance, there is no basis for appellate intervention as long as the sentence is proportionate. On the sentencing judge’s findings that this was an attack on a completely defenceless victim that caused him significant injury, we cannot say that the sentence is demonstrably unfit.

[8] Moreover, the sentencing judge did take the appellant’s rehabilitative potential into account. The sentencing judge recognized that the appellant had gained control over his alcohol abuse since the offence, which factored meaningfully into her sentencing calculus:

Most importantly, [the appellant] appears to have gotten control of his alcohol abuse. He has been sober in the over four years since the offence. And he has stayed out of trouble. I agree … that this is a tangible expression of remorse. It shows rehabilitation must be given emphasis, notwithstanding the objective seriousness of the offence. It has a powerful mitigating effect on sentence.

[9] Second, duty counsel contends that the sentencing judge considered herself bound by the ranges described in R. v. Tourville, 2011 ONSC 1677, which describes the high end of the range for aggravated assault cases to be four to six years’ imprisonment. The sentencing judge found that the circumstances of the aggravated assault in this case situated the appellant at the upper end of the high-end range (six years), but mitigating circumstances and collateral consequences brought the sentence to the lower end of the high-end range (four years). Duty counsel argues that the sentencing judge improperly considered Tourville as a straitjacket, which prevented her from reducing the sentence below the identified high-end range despite finding that there were specific mitigating circumstances.

[10] We do not give effect to this submission. While we agree with duty counsel that it is an error in principle to apply a sentencing range rigidly or to misidentify the appropriate range, such an error will only warrant appellate intervention where the sentence was actually impacted as a result: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. As long as the sentence imposed by the sentencing judge remains proportionate to the offence and the offender, it will be a fit sentence.

[11] Taking into account the gravity of the offence and the circumstances of the offender, we are of the view that the sentence imposed was fit and appellate intervention is not warranted.

Disposition

[12] The conviction appeal is dismissed as abandoned. We grant leave to appeal sentence, but the sentence appeal is dismissed.

“Janet Simmons J.A.”

“A. Harvison Young J.A.”

“S. Coroza J.A.”

[1] A finding of guilt on an assault with a weapon charge was conditionally stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729.