COURT FILE NO.: CR-21-30000474-0000 DATE: 2023 0629 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – STEADLEY JUNIOR KERR, VIJENDRAN BALASUBRAMANIAN, and GARY JOHN SAMUEL

S. Capogreco and B. Snow, for the Crown F. Davoudi, for Mr. Kerr J. Shulman, for Mr. Balasubramanian G. Partington, for Mr. Samuel

HEARD: June 28, 2023

REASONS FOR SENTENCE

SCHRECK J.:

[1] Theepa Seevaratnam was a 38-year-old mother of two who lived in a house in Scarborough with her husband, Vijendran Balasubramaniam, her two daughters, her mother, Leelavathi Seevaratnam, and her aunt, Mangaleswary Sivapalan. On the morning of March 13, 2020, Theepa was getting ready to sleep after having worked a night shift. Her husband had taken the children to school and her mother and aunt were preparing to clean the house.

[2] At about 9:40 a.m., a man approached the house holding a parcel and rang the doorbell. Leelavathi answered the door and the man told her that he was there to deliver the parcel and that he needed someone to sign for it. Theepa, who had heard the doorbell, came to the door, at which point the man tried to force his way into the house while Theepa tried to close the door on him. The man produced a handgun and shot Theepa, following which he shot Leelavathi. The man then left the house still carrying the parcel and got into a car that was waiting nearby. Theepa died of her injuries. Leelavathi survived.

[3] Following a 10-week trial, a jury concluded that the man who shot Theepa and Leelavathi was Steadley Kerr and that he had done so at the behest of Theepa’s husband, Vijendran Balasubramaniam. The jury also concluded that the man who drove Mr. Kerr to the house was Gary Samuel, and that while he knew that Mr. Kerr intended to commit an offence there, he did not know that Mr. Kerr intended to commit murder. That jury convicted Mr. Kerr and Mr. Balasubramaniam of first degree murder and conspiracy to commit murder, Mr. Kerr of attempted murder and Mr. Samuel of manslaughter. All three are now before the court for sentencing.

I. FACTS

A. The Offences

(i) The Relationship Between Mr. Balasubramaniam and Ms. Seevaratnam

[4] Mr. Balasubramaniam and Theepa Seevaratnam were married in 2002. The marriage was initially a happy one. The couple had two daughters and Mr. Balasubramaniam provided for the family by running a convenience store and buying properties which he would renovate and then sell. Ms. Seevaratnam initially stayed home and raised the children, but later began to work at a packaging company. They lived together in a house in Scarborough with their two daughters, Ms. Seevaratnam’s mother, Leelavathi Seevaratnam, and her aunt, Mangaleswary Sivapalan.

[5] The relationship between Mr. Balasubramaniam and Ms. Seevaratnam began to deteriorate beginning around 2015. Both parties mentioned the possibility of divorce to other family members, but neither took any steps in this regard. The couple argued on several occasions. Mr. Balasubramaniam admitted in a statement he made to the police that he had assaulted Ms. Seevaratnam on one occasion, but evidence from various family members suggested that this had happened at least several times.

[6] Ms. Seevaratnam had a younger cousin, Thivviya Sivapalan, who lived in Norway. Beginning around 2016, Mr. Balasubramaniam began a relationship with her. On one occasion while several family members were visiting Norway, some relatives saw Mr. Balasubramaniam asleep in the same bed as Thivviya. After Mr. Balasubramaniam’s arrest, the police found numerous photographs of her on his phone, several of which depicted her in various states of undress. According to family members, Ms. Seevaratnam was aware of and upset by this relationship.

(ii) Planning of the Murder

[7] In February 2020, Mr. Balasubramaniam became acquainted with Steadley Kerr through Ashley Owen, a customer at the convenience store where he worked. [2] Mr. Kerr was the father of Ms. Owen’s youngest child. At the time, he was residing with another woman and living on the Ontario Disability Support Program. Phone records show that there were numerous communications between Mr. Balasubramaniam and Mr. Kerr throughout February, and there was evidence that they met on at least four occasions. The jury was clearly satisfied that at some point during this period, Mr. Balasubramaniam and Mr. Kerr agreed that the latter would murder Ms. Seevaratnam.

(iii) Mr. Samuel’s Involvement

[8] Gary Samuel was a friend of Mr. Kerr’s. He operated a successful landscaping business and occasionally employed Mr. Kerr there. On the night of March 12, 2020, Mr. Samuel spent the night at Mr. Kerr’s home. Both of them left the house the next morning. Mr. Kerr was seen on security video carrying a parcel. The two of them drove in Mr. Samuel’s truck to a car rental agency. Mr. Kerr, who does not have a driver’s licence, waited in the truck while Mr. Samuel entered the agency and rented a car. He then picked Mr. Kerr up and they drove to the house where Mr. Balasubramaniam and Ms. Seevaratnam lived.

(iv) The Murder

[9] Upon arriving at the house, Mr. Kerr got out of the car carrying the parcel and rang the doorbell. Ms. Seevaratnam’s mother, Leelavathi Seevaratnam, answered the door. Mr. Kerr told her that he was there to deliver a package and needed someone to sign for it. Ms. Seevaratnam came to the door to see who was there. As she did, Mr. Kerr started to enter and Ms. Seevaratnam tried to push the door closed to prevent him from doing so. He produced a handgun and shot Theepa between three and six times in the chest area. He then shot Leelavathi twice, after which he left, still carrying the package. Theepa died of her injuries. Leelavathi was seriously injured but survived.

[10] Mr. Kerr returned to the car where Mr. Samuel was waiting and they drove away. They went to Ms. Owen’s apartment, where Mr. Kerr changed his clothes. From there they drove to the store where Mr. Balasubramaniam worked but it was closed.

(v) The Investigation

[11] Using security video from a variety of locations, the police were able to track the rented car from the house to Ms. Owen’s apartment, where its licence plate was visible. They traced it to the car rental agency and learned that it had been rented by Mr. Samuel. The police eventually identified Mr. Kerr as the shooter and he was arrested on March 30, 2020. Further investigation, including cell tower evidence, other video surveillance and an examination of the contents of several phones, led to the arrests of Mr. Balasubramaniam and Mr. Samuel on July 7, 2020.

(vi) Charges and Verdicts

[12] All three individuals were charged with first degree murder and conspiracy to commit murder. Mr. Kerr was also charged with attempted murder. Mr. Kerr and Mr. Balasubramaniam were convicted as charged. Mr. Samuel was found not guilty of first degree murder but guilty of the lesser offence of manslaughter. He was acquitted of conspiracy to commit murder.

B. Victim Impact

[13] Leelavathi suffered a broken collarbone as a result of being shot, for which she required surgery to implant a metal plate. She did not learn of her daughter’s death until after the surgery because her family were worried that the effect of learning about it might compromise her ability to survive the surgery. Leelavathi spent 10 days in the hospital as well as two and a half months in a rehabilitation facility. Because of the ongoing pandemic, she was unable to see family members during this period and was left to deal with the grief and shock of watching her daughter die before her eyes all by herself.

[14] The court received a number of victim impact statements from members of Theepa’s family and her friends. She was, by all accounts, a kind and gentle woman who consistently put the needs of others above her own. She was a devoted mother to her children and took care of her elderly mother and aunt. She was a source of support and comfort to many in times of need. All of the statements describe an overwhelming sense of loss resulting from her absence. It is clear that Theepa was a person who tried her best to make the world a better place for those around her.

[15] Murder trials are different than trials for other crimes of violence because the victim cannot speak for herself. It is easy in such cases to simply view the victim as “the deceased” and lose sight of the fact that she was a person who, like all of us, had hopes, dreams and aspirations. The victim impact statements are important because they allow others to speak for her and to provide me, the sentencing judge, with a sense of who Theepa was. These touching and eloquent victim impact statements have done that.

[16] The sentences I impose today obviously cannot bring Theepa back. They will not, I fear, do much to heal the deep wounds or immense sadness felt by those who loved her. They are not intended to, nor could they ever serve as a measure of how important she was or how much she will be missed.

C. The Offenders

(i) Mr. Kerr

[17] Mr. Kerr is 31 years old. At the time of his arrest, he was living on Ontario Disability Support and living with his girlfriend in an apartment in Scarborough. Mr. Kerr has two children from previous relationships and up until the time of his arrest was maintaining regular contact with at least one of them. He appears to have a fairly close relationship with his mother, who is blind and whom he visited regularly.

[18] In his statement to the police at the time of his arrest, Mr. Kerr said that he suffers from diabetes and was diagnosed with schizophrenia while in custody. However, I heard no further evidence about either of these medical conditions or what effect they had on Mr. Kerr.

[19] Mr. Kerr has a criminal record with a number of convictions between 2010 and 2018 for various offences, including disobeying various court orders, drug trafficking, possession of a weapon, and threatening. Apart from a one-year conditional sentence in 2013 for trafficking, he has never received a sentence longer than two months.

(ii) Mr. Balasubramaniam

[20] Mr. Balasubramaniam is 45 years old. He was a successful businessman who operated a convenience store for several years and who owns a number of rental properties. He has been an active member of the Tamil Christian Prayer Church and spent a significant amount of time volunteering in assisting to have a new church built. He has two teenage daughters, who remain supportive of him. He has no criminal record.

(iii) Mr. Samuel

[21] Mr. Samuel is 29 years old. He had a difficult childhood. His mother was deported from Canada when he was very young and he grew up in foster care and group homes. He was diagnosed with various learning disabilities at a young age and has some degree of cognitive impairment.

[22] Despite his challenges, Mr. Samuel graduated from high school. He has a steady employment history and together with a partner started a successful landscaping business, which he was operating at the time of his arrest. Mr. Samuel has no criminal record.

II. ANALYSIS

A. Findings of Fact

[23] Section 724(2) of the Criminal Code requires me to accept as proven all facts, express or implied, that are essential to the jury’s verdict and also permits me to find other facts disclosed by the evidence. The approach to be taken in applying this section was recently explained in R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 89, at paras. 106-107:

… [T]here is a two-step process required in settling the factual record of sentencing in a jury trial. First, the sentencing judge must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender. Second, where it is necessary in order to sentence an offender to determine facts that were not expressed or necessarily implicit in the jury verdict, the sentencing judge is to engage in their own, independent fact-finding exercise.

To rely on aggravating facts that are not necessarily expressed or implicit in the jury verdict, the sentencing judge must come to their own independent determination that those aggravating facts have been proved, beyond a reasonable doubt: Criminal Code, s. 724(3)(e); R. v. Gardiner, [1982] 2 S.C.R. 368, at paras. 112-14.

[24] In this case, the jury was clearly satisfied beyond a reasonable doubt that Mr. Balasubramaniam and Mr. Kerr conspired together to murder Theepa Seevaratnam, and that Mr. Kerr did murder her, abetted by Mr. Balasubramaniam in accordance with the plan they had agreed upon. The jury was not satisfied beyond a reasonable doubt that Mr. Samuel was part of the conspiracy or that he was aware that Mr. Kerr went to the house planning to commit murder there. However, the jury was clearly satisfied beyond a reasonable doubt that Mr. Samuel knew that Mr. Kerr intended to commit some type of criminal offence at the house and that he knew or ought to have known that in doing so, it was probable that there would be a risk of bodily harm to someone that was neither trivial nor transitory.

[25] In addition to the express and implied factual findings outlined above, I make the following findings of fact:

• Mr. Balasubramaniam and Mr. Kerr began planning the murder of Ms. Seevaratnam at some point in February 2020. The communications between them start in February and occur frequently until after the murder takes place.
• Mr. Kerr agreed to murder Ms. Seevaratnam in exchange for some form of payment. Mr. Kerr had absolutely no personal motive for murdering Ms. Seevaratnam. There is no prior relationship between Mr. Kerr and Mr. Balasubramaniam such that the former would agree to commit murder as a favour. On this record, I am unable to say how much Mr. Kerr was to be paid or if he ever actually received any payment.
• While Mr. Samuel was not aware that Mr. Kerr intended to commit murder, he was aware that he was going to commit an offence at the specific address where Mr. Balasubramaniam lived. I infer this from the fact that after picking the car up from the rental agency, Mr. Samuel drove directly there.
• Mr. Samuel was aware that Mr. Kerr intended to commit an offence since at least the day before. He spent the night at Mr. Kerr’s home and the two of them went straight to the car rental agency in the morning. Mr. Kerr was openly carrying the parcel when they left and Mr. Samuel would have seen it.
• While I cannot say what offence Mr. Samuel believed Mr. Kerr intended to commit at the house, I find as a fact that he was aware that Mr. Kerr was armed with a firearm. He had spent the night at Mr. Kerr’s home and was aware of many of the details of the plan, such as that it would involved a rented vehicle and that Mr. Kerr would use a parcel to gain entry. The jury was clearly satisfied beyond a reasonable doubt that Mr. Samuel knew that a risk of bodily harm was a probable consequence of Mr. Kerr committing the offence.
• I am unable to conclude that Mr. Samuel subjectively foresaw the risk that the gun would be used. He rented the car in his own name and made no attempt at disguising his appearance when he did so. There is no evidence that Mr. Kerr had a propensity for violence known to Mr. Samuel. It is unknown what offence Mr. Samuel believed Mr. Kerr was going to commit, and there is no evidence that Mr. Samuel knew that Mr. Kerr intended to use the firearm. As a result, Mr. Samuel must be sentenced on the basis that the risk that the gun would be used was objectively but not subjectively foreseeable: R. v. Kwakye, 2015 ONCA 108, at para. 5.

B. General Sentencing Principles

[26] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society ….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. The individualization of the sentencing process requires that these different objectives be blended and prioritized so as to properly reflect the seriousness of the offence and the responsibility of the offender: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58.

[27] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30.

C. Count 1 – First Degree Murder (Mr. Kerr and Mr. Balasubramaniam) and Manslaughter (Mr. Samuel)

(i) First Degree Murder (Mr. Kerr and Mr. Balasubramaniam)

[28] Because of the combined effect of ss. 235(1) and 745(a) of the Criminal Code, I have no discretion with respect to the sentences that must be imposed on Mr. Kerr and Mr. Balasubramaniam on Count 1. Each must be sentenced to imprisonment for life without eligibility for parole until he has served 25 years of the sentence. Section 746(a) provides that the sentence begins on the day that the offender was arrested and taken into custody, which for Mr. Kerr is March 30, 2020 and for Mr. Balasubramaniam is July 7, 2020. As a result, Mr. Kerr will be eligible for parole on March 30, 2045 and Mr. Balasubramaniam will be eligible on July 7, 2045.

(ii) Manslaughter (Mr. Samuel)

(a) The Range

[29] Manslaughter is an offence that can be committed in a wide variety of ways and, as a result, the sentences that are imposed for the offence vary greatly: R. v. Ali, 2018 ONSC 5536, at para. 31. A number of authorities from the Ontario Court of Appeal and this court suggest that there are three broad ranges of sentence, as summarized in R. v. Wight, 2022 ONSC 5137, at para. 43, and R. v. Smith, 2022 ONSC 3800, at paras. 26-32:

• Six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential: R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864; Kwakye, at paras. 5-6.
• Eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim: R. v. Devaney, 2006 ONCA 768, 213 C.C.C. (3d) 264 (Ont. C.A.), at para. 14; R. v. Clarke, 172 O.A.C. 133 (C.A.); R. v. Cleyndert, 2006 ONCA 770, [2006] O.J. No. 4038 (C.A.), at para. 12.
• Twelve to 15 years in cases where the most serious aggravating factors are present, such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or a planned home invasion involving beating of the victims: R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Tahir, 2016 ONCA 136, at para. 2, aff’g [2012] O.J. No. 6449 (S.C.J.); R. v. Atherley, 2009 ONCA 195, at para. 4.

[30] In my view, Mr. Samuel falls into the middle range. He was, as I have found, aware that a firearm was to be used and the offence involved a degree of planning. As a result, the eight-to-12-year range applies. Situating Mr. Samuel within that range requires a consideration of the aggravating and mitigating factors.

(b) Aggravating and Mitigating Factors

[31] The most significant aggravating factor in this case is that a firearm was involved, which I have found Mr. Samuel knew about. Gun crimes are a scourge in this jurisdiction. The proliferation of illegal handguns, which are manufactured for the sole purpose of killing or seriously injuring people, is a significant threat to the safety of our community. While it would be naïve to think that sentences imposed by the courts will solve the problem, the consistent theme in the sentencing jurisprudence is that significant sentences must be imposed for offences where guns are involved: R. v. Bullock, 2017 ONCA 398, at para. 17; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 59-60; R. v. Danvers, 2005 ONCA 700, 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.

[32] Another aggravating factor is that whatever offence Mr. Samuel thought was going to occur, it involved a degree of planning, including the rental of a vehicle and the use of a package.

[33] In addition to this, the offence took place in the victim’s home, a place where she was entitled to feel safe and secure. Mr. Samuel would have known that Mr. Kerr expected someone to be home as he would have been aware that Mr. Kerr was using the parcel as a means of gaining entry.

[34] Another aggravating factor is that Mr. Samuel continued to assist Mr. Kerr after the murder, by which point he must have realized that the murder had taken place.

[35] With respecting to mitigating factors, Mr. Samuel is relatively young and has no criminal record. Prior to his arrest, he was operating his own successful landscaping company. It is clear that Mr. Samuel is capable of leading a prosocial life and that his decision to engage in criminal activity resulted from his association with Mr. Kerr. Based on this, I conclude that Mr. Samuel has significant rehabilitative potential.

[36] The conditions in which Mr. Samuel spent time in presentence custody is a relevant factor. Institutional records and an affidavit from Mr. Samuel show that he spent a significant amount of time “triple bunked” or subject to lockdowns because of staff shortages and was only offered access to fresh air in an outdoor yard for a fraction of the time he ought to have been.

[37] It is now well accepted that the existence of unduly harsh conditions in presentence custody is a relevant factor on sentencing. Reducing a sentence on this basis is often referred to as “Duncan” credit after the decision in R. v. Duncan, 2016 ONCA 754. However, in R. v. Marshall, 2021 ONCA 344, at para. 52, the court explained that this is not really a “credit,” but rather a mitigating factor to be considered together with other aggravating and mitigating factors, provided that the overall sentence does not offend the principle of proportionality.

[38] While I do not intend to quantify its effect, in my view, the ongoing unacceptable treatment of presumptively innocent individuals in Toronto detention centres is a significant mitigating factor. That said, I recognize that the ultimate sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

(c) The Appropriate Sentence

[39] Balancing the various aggravating and mitigating factors to determine where within the appropriate range a sentence falls is not a mathematical exercise. In this case, given the significant aggravating factors, the sentence must give effect to the objectives of general and specific deterrence. At the same time, Mr. Samuel has rehabilitative potential and encouraging his rehabilitation will ultimately be the best way to protect society. In my view, a proper balancing of all the factors in this case results in a sentence of nine and a half years.

[40] Mr. Samuel is entitled to credit in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. He has spent approximately three years in custody and is entitled to a credit of four and a half years. The sentence that remains is therefore one of five years.

D. Count 2 – Conspiracy to Commit Murder (Mr. Kerr and Mr. Balasubramaniam)

(i) The Range

[41] There is a wide range of sentence for the offence of conspiracy to commit murder and where a case falls within that range will depend on the particular aggravating and mitigating factors: R. v. Nipitella, at paras. 36-37; R. v. Brokenshire, 2020 ONSC 534, at para. 29. In R. v. MacDonald, 2018 ONSC 1103, at para. 48, Boswell J. suggested that the range is 10 to 20 years.

(ii) Aggravating and Mitigating Factors

[42] One of the relevant factors will be the degree of planning involved: R. v. Hillbach, 2023 SCC 3, at para. 104. In this case, the conspiracy lasted for at least several weeks and appeared to be carefully planned. Mr. Kerr used a car that was rented for the sole purpose of carrying out the murder. The presence of the parcel shows that thought had gone into how Mr. Kerr was to gain entry into the house. In addition to this, there was evidence that Mr. Balasubramaniam had disabled his home’s security video system.

[43] Another relevant factor will be whether the murder that is the object of the conspiracy was actually carried out: MacDonald, at para. 49. In this case, it was.

[44] The fact that the conspirators planned to carry out the murder at the victim’s home is, in my view, a significant aggravating factor. Ms. Seevaratnam was in the place where she was entitled to feel the safest.

[45] With respect to Mr. Kerr, the fact that he committed the offence for profit is an aggravating factor: C.C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §5.37-5.41.

[46] With respect to Mr. Balasubramaniam, s. 718.2(a)(ii) of the Criminal Code provides that the fact that the offence involved an intimate partner is an aggravating factor.

[47] There are few mitigating factors with respect to Mr. Kerr. With respect to Mr. Balasubramaniam, he has no criminal record and prior to the commission of the offence had a good employment history and, as mentioned, volunteered at his church. However, the effect of this evidence of good character is somewhat diminished by his history of domestic violence against his wife which, I find, consisted of more than the single incident he admitted to in his statement.

(iii) The Appropriate Sentences

(a) Mr. Kerr

[48] The facts in MacDonald, where the accused had murdered a woman for money at the behest of her spouse, bear some similarity to those in this case. In that case, the sentence imposed for conspiracy to commit murder was 18 years. I find that the same sentence is appropriate in this case for Mr. Kerr.

(b) Mr. Balasubramaniam

[49] While Mr. Balasubramaniam did not commit the offence for profit, he did so in relation to a domestic partner. As a result, the same sentence, 18 years, is appropriate for Mr. Balasubramaniam.

E. Count 3 – Attempted Murder (Mr. Kerr)

(i) The Range

[50] As was noted in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 129, “[t]he moral blameworthiness of attempted murder is always very high.” Indeed, there is no distinction between the moral culpability of a person who commits attempted murder from that of a person who commits murder: Forcillo, at para. 130.

[51] In Forcillo, at para. 131, the Ontario Court of Appeal affirmed the sentencing range for attempted murder of six years to life imprisonment that had been set in R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 35. The low end of that range was based on R. v. Boucher, 2004 ONCA 409, 186 C.C.C. (3d) 479 (Ont. C.A.), where the accused had struck his estranged wife’s vehicle with his own vehicle in what was found to be an attempt to run her off the road and kill her, and was also applied in Forcillo, where a police officer attempted to kill an individual after justifiably shooting him in the execution of his duties.

[52] Higher sentences in the double digits have been applied in situations involving the use of a firearm, “planned executions” and domestic situations: R. v. Cunningham, 2023 ONCA 36; R. v. Chevers, 2011 ONCA 569, 282 O.A.C. 388; R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Lieug, [1995] O.J. No. 2424 (C.A.); R. v. Mesgun, 36 O.R. (3d) 739 (C.A.); R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 148; R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264; R. v. K.G., 2012 ONCA 177, 266 O.A.C. 334; R. v. Martin, 2022 ONSC 2354.

[53] Life sentences have been imposed in cases of “stark horror,” very serious and permanent injuries to the victim, or a lengthy criminal record; R. v. Pan, 2023 ONCA 362, at paras. 148-156; R. v. Mesgun, 36 O.R. (3d) 739 (C.A.); R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264, at paras. 31-32; R. v. Lieug, O.A.C. 317 (C.A.), at paras. 9-15; R. v. Kawal, 2018 ONSC 7531.

(ii) Aggravating and Mitigating Factors

[54] In this case, the aggravating factors are that a firearm was used, that the offence took place in the victim’s home, and that the victim was particularly vulnerable because of her age. Another important factor is the extent of the victim’s injuries: Tan, at para. 39. Leelavathi Seevaratnam needed surgery as a result of her injuries, spent significant time in a rehabilitation facility, and continues to experience pain and numbness throughout her body.

[55] There are few mitigating factors apart from the fact that Mr. Kerr is relatively youthful and appears to have been a caring son to his mother.

(iii) The Appropriate Sentence

[56] The facts of this case bear significant similarity to the facts in Pan, where, in upholding a life sentence for attempted murder, the court noted at para. 150 that the circumstances included “a crime of terrifying violence,” a “murder for hire,” an offence facilitated by a person the victim trusted and which took place in the family home and where the victim’s survival was pure chance. All of those circumstances exist in this case. The only difference is that the unsuccessful murder of the victim in Pan was planned and deliberate while the attempted murder in this case was not. Planning and deliberation is, of course, a significant aggravating factor, which is evident from the different sentences imposed for first and second degree murder.

[57] Having considered all of the circumstances, I conclude that the appropriate sentence in this case is one of 18 years.

III. DISPOSITION

[58] The sentences imposed on Mr. Kerr are as follows:

• Count 1 – Imprisonment for life without parole eligibility for 25 years
• Count 2 – 18 years
• Count 3 – 18 years

All sentences are to run concurrently.

[59] The sentences imposed on Mr. Balasubramaniam are as follows:

• Count 1 – Imprisonment for life without parole eligibility for 25 years
• Count 2 – 18 years

All sentences are to run concurrently.

[60] The sentence imposed on Mr. Samuel on Count 1 is nine and a half years, from which four and a half years will be deducted as credit for three years in presentence custody. The sentence left to be served is five years.

[61] Pursuant to s. 109(3) of the Criminal Code, Mr. Kerr is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life. Pursuant to s. 109(2), Mr. Balasubramaniam and Mr. Samuel are prohibited from possessing the items described in s. 109(2)(a) for a period of 10 years after their release from imprisonment and prohibited from possessing the items described in s. 109(2)(b), including any prohibited or restricted firearms, for life.

[62] Pursuant to s. 487.051(2) of the Criminal Code, all three defendants are ordered to provide a sample of their DNA for inclusion in the national databank.

[63] Pursuant to s. 743.21, the defendants are prohibited from communicating, directly or indirectly, with any of the individuals named in the order during the custodial period of their sentences.

Justice P.A. Schreck

Released: June 29, 2023

[1] An abbreviated version of these reasons was delivered orally in court on June 28, 2023. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] Ms. Owen was charged with conspiracy to commit murder and accessory after the fact to murder. The jury found her not guilty on both counts.