Court File and Parties
Court of Appeal for Ontario Date: 2021-01-20 Docket: C68293
Hoy, Lauwers and Nordheimer JJ.A.
Between: Her Majesty the Queen Respondent
And: Thirumal Kanthasamy Appellant
Counsel: Frank Addario and Wesley Dutcher-Walls, for the appellant Holly Loubert, for the respondent
Heard: in writing
On appeal from the sentence imposed on September 6, 2016 by Justice Michal Fairburn of the Superior Court of Justice.
Reasons for Decision
[1] On January 17, 2020 this court released its reasons in appeals advanced by four accused persons arising from a series of tractor trailer thefts and robberies spanning a period of six months. [1] One of those accused was the appellant, Thirumal Kanthasamy. All four accused appealed their convictions. Three of the accused also sought leave to appeal their sentences. The appellant did not. We dismissed the conviction appeals but granted leave to appeal the sentences and reduced those sentences.
[2] Subsequent to our decision, the appellant sought leave to extend the time for leave to appeal his sentence. With the consent of the Crown, an extension of time was granted.
[3] The appellant seeks a reduction in his sentence on two bases. One is that the principle of parity requires a reduction in his sentence because this court reduced the sentences of his co-accused. The Crown agrees that such a reduction is appropriate and consents to the appellant’s sentence being reduced to six and one-half years from the original sentence of eight and one-half years.
[4] The other basis arises from changes in the appellant’s personal circumstances in the nearly four years he was on bail pending appeal, as set out in his fresh evidence application. As a result of those changes, the appellant seeks a further reduction in his sentence to five years, or four years after applying the pre-sentence credit of one year awarded by the trial judge.
[5] The Crown opposes the introduction of the fresh evidence on the basis that, if the information had been known at the time of the original sentencing, it would not have affected the result. In any event, the Crown says that the fresh evidence, even if accepted, does not justify any further reduction in the sentence imposed.
[6] The changes in personal circumstances advanced by the appellant fall into two categories. One relates to the appellant’s health. While there was evidence before the trial judge of some minor health issues involving the appellant, the appellant now suffers from coronary artery disease, discovered after a heart attack in 2017. The appellant says that his time in custody not only increases the consequences of his heart condition, through stress and alleged delayed access to medications, it also makes him more susceptible to serious harm should he become infected with COVID-19 while he is incarcerated.
[7] The other category relates to the appellant’s family situation. The appellant has two children with his estranged wife and a third with his current common law partner. He also acts as a father figure to his common law partner’s son from a previous relationship. Since he was sentenced, the appellant’s daughter with his estranged wife has been diagnosed with cerebral palsy. She requires frequent therapy, which necessitates assistance from family members and costs money. As a result of his incarceration, the appellant’s family is deprived of his assistance in coordinating the therapy, and of the income he generated to defray the costs of treatment. Also, since he was sentenced, the appellant’s common law partner ceased working and is on long term medical disability at 60% of her former salary. This makes the loss of the appellant’s income even more difficult for his common law partner and the children they share. Further, as a result of his incarceration, the appellant is unable to support his common law partner as she struggles with her medical issues.
[8] We would accept the fresh evidence. It cannot be said with certainty that this evidence might not have affected the result if it had been known at the time of sentencing.
[9] That said, while collateral consequences can properly impact the sentence imposed, the sentence that is ultimately imposed must still be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14. The three tractor trailer thefts and robberies of which the appellant was convicted involved the use of what was either a real or imitation firearm. In our view, a sentence of less than the six and one-half years consented to by the Crown would not be proportionate to the gravity of the offences and to the degree of the appellant’s responsibility.
[10] Accordingly, we grant leave to appeal sentence, allow the appeal, and reduce the sentence to six and one-half years (prior to the credit for pre-sentence custody).
[11] Before concluding, we note that it is open to the appellant to seek early parole from the Parole Board of Canada, which has express statutory authority under the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 121(1), to grant early parole to an inmate who is suffering from exceptional circumstances.
“Alexandra Hoy J.A.”
“P. Lauwers J.A.”
“I.V.B. Nordheimer J.A.”
[1] R. v. Kanthasamy, 2020 ONCA 25, 149 O.R. (3d) 409, reported as R. v. Baskaran.
