Court of Appeal for Ontario

Date: 2023-03-06 Docket: C68935

Huscroft, Sossin and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Vykunthan Kanthavel Appellant

Counsel: Janani Shanmuganathan, for the appellant Kristen Pollock, for the respondent

Heard: February 28, 2023

On appeal from the convictions entered by Justice Sean F. Dunphy of the Superior Court of Justice, dated November 5, 2020, with reasons reported at 2020 ONSC 8175, and from the sentence imposed on January 5, 2021, with reasons reported at 2021 ONSC 57.

Reasons for Decision

[1] At the conclusion of the hearing, the appeal was dismissed with reasons to follow. These are the court’s reasons.

[2] Shortly after midnight on October 6, 2018, the appellant, Vykunthan Kanthavel and the complainant, Sajeev Ramachandran, got into a verbal argument in the parking lot of their neighbouring auto shops. Following the argument, the appellant got into his car and repeatedly drove at the complainant and his friend, Gayathri Sanmugalingam (“GS”), who were on foot. At some point during nearly a minute of deliberate and aggressive driving by the appellant, his car struck the complainant, causing a compound fracture to the complainant’s left tibia and fibula.

[3] Based largely on video evidence from an exterior camera, the trial judge found that the key points arising from the incident were that: (i) a verbal altercation occurred and the appellant, complainant, and GS all participated in it; (ii) this phase ended with the complainant having returned to his side of the fence, the appellant getting into his car, and GS standing beside the car; and (iii) the complainant heard a cry of distress from GS, which prompted him to return to the scene, at which point the incident giving rise to the complainant’s injury took place.

[4] The trial judge had credibility and reliability concerns about the testimony of all four eyewitnesses (the appellant, the complainant, GS, and the appellant’s friend, Subangi Selvamenan (“SS”)). Each witness had the opportunity to review the surveillance video, which has inevitably tainted their memories to some degree. In particular, the trial judge characterized the appellant’s testimony as “self-serving and, on the whole, quite implausible”. He found that all four witnesses “were prepared to be insincere at times.”

[5] The trial judge stated he was “comfortably able to sort the reliable from the exaggerated” in the case of the complainant and GS, partly due to the fact that their prior statements, including statements they made before seeing the video evidence, had “placed a natural limit on their flights of fancy”. He was “far more selective and cautious” when it came to the evidence of the appellant and SS, whose evidence showed “dangerous signs of rehearsal”.

[6] The trial judge convicted the appellant of dangerous operation of a motor vehicle, possession of a weapon, and aggravated assault.

[7] The trial judge acquitted the appellant of attempted murder. He noted that while he was satisfied that the appellant deliberately directed the car at the complainant, the Crown had not proven beyond a reasonable doubt that the appellant had a specific intent to kill him.

[8] The trial judge sentenced the appellant to three years imprisonment, which was the Crown’s recommendation (and which the trial judge considered to be “objectively towards the lenient end of the range of sentences”). Aggravating factors included the repeated and deliberate nature of the appellant’s actions, the risk of grave harm inherent in his actions, the significant injurities suffered by the complainant, and the appellant’s failure to remain at the scene and render assistance. Mitigating factors included the appellant’s caregiver roles, family supports, gainful employment, gaps in his criminal record, and the lack of planning and premeditation for his actions. The trial judge noted that the appellant had strong rehabilitative prospects. However, given the particular circumstances of the offence, the appellant’s moderately lengthy prior criminal record, and his degree of responsibility, the trial judge considered denunciation, deterrence, and protection of the public to be primary sentencing objectives.

Analysis

[9] While a range of issues were raised in the appellant’s Notice of Appeal and factum, at the hearing, counsel for the appellant indicated that only three grounds of appeal were being pursued:

(1) First, that in his credibility assessment, the trial judge placed improper and unfair reliance on the existence of prior statements. (2) Second, that in his credibility assessment, the trial judge subjected the appellant’s evidence improperly to a frame-by-frame analysis. (3) Third, the trial judge failed to apply the principle of restraint in sentencing the appellant.

[10] We are not persuaded that the trial judge erred in any of these respects.

[11] We address each of these grounds of appeal below.

(1) The trial judge did not err in considering the prior statements of the complainant and GS

[12] We do not agree that the trial judge erred in his credibility assessments. First, while the prior statements of GS and the complainant were used to highlight the problematic areas of their testimony, this does not mean that the trial judge considered that their evidence that was consistent with the prior statements was more reliable. The trial judge made this clear when he noted that comparing their testimonies with their prior statements allowed him to “pretty comfortably … sort the reliable from the exaggerated in their cases.”

[13] Throughout the reasons, the trial judge noted instances where the complainant and GS’s testimony was consistent with the video evidence and where it was not. The trial judge did not accept the prior statements which were consistent with the video as a basis for his findings of fact. Rather, he used the cross-examination of the Crown witnesses on those statements as a basis to establish limits on the “flights of fancy” on the part of the witnesses. The comparison allowed him to “have a sense of where and why … [they] were being insincere and to discount their testimony appropriately.” A fair reading of the trial judge’s reasons demonstrate that he did not use the prior statements impermissibly to bolster the testimony of the Crown witnesses.

[14] The appellant was not put at a disadvantage as a result of exercising his right not to provide a prior statement. Rather, the trial judge rejected the appellant’s evidence for other reasons, including that he found it implausible. The trial judge’s stated concerns about the appellant’s testimony, particularly with respect to the “dangerous signs of rehearsal”, stemmed from the appellant’s collaboration with his friend, SS. Unlike the situation in R. v. JC, 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 113, which is cited by the appellant, the trial judge did not unfairly presuppose that the appellant’s “testimony may not have stood up to cross-examination had a prior statement been provided.”

[15] Credibility findings are accorded a high degree of deference by appellate courts, and appellate intervention is only warranted where the appellant can show a palpable and overriding error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 48-50, 54.

[16] We find no such error in this case and therefore reject this ground of appeal.

(2) The trial judge did not subject the evidence of the appellant to an impermissible frame-by-frame analysis

[17] The appellant argues that the trial judge used the surveillance video to scrutinize the appellant’s evidence in minute and unrealistic detail. In his analysis, the trial judge divided the video, which was approximately 50 seconds long, into nine segments of between four and 15 seconds each.

[18] The trial judge reiterated that he viewed the incident as a whole in his reasons. The examples cited by the appellant of unacceptable granular analysis are largely in disagreement with the trial judge’s findings of fact. The trial judge was entitled to describe the video in detail, to do so coherently by referring to different segments of the video separately, and to analyze how those segments impacted the facts in dispute.

[19] The trial judge did not err by viewing the video in segments and making specific findings about the different moments of the incident. In fact, the trial judge specifically cautioned himself on the limitations of this type of frame-by-frame analysis, stating, at para. 44 of his reasons:

I shall describe what is captured on the surveillance video – soundless and objective as far as it goes. I am quite aware of the limitations of this sort of evidence. Allowances must be made for the distance, the fixed perspective, the night lighting conditions, the image quality and the fact that real life does not occur in a frame-by-frame manner even if film can be viewed in that fashion. However, what is recorded is not subject to the filtering that strong emotions, trauma, the fog of alcohol, the power of suggestion or the passage of time can bring to human recollections of the same events. [Italics in original; underlining added.]

[20] This case is clearly distinguishable from R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at paras. 24-25, referred to by the appellant, where this court held that the trial judge erred by parsing the conduct of the accused down to the split-second, and by holding the accused in that case to a standard of perfection informed by hindsight knowledge.

[21] We reject this ground of appeal.

(3) The trial judge did not err in imposing a sentence of three years imprisonment

[22] The threshold for appellate intervention in sentencing is high. An appellate court can only intervene to vary a sentence if the sentence is demonstrably unfit, or it is apparent that an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor, had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 49, and 78.

[23] We reject the appellant’s argument that the trial judge failed to apply the principle of restraint. The trial judge’s application of the principle of restraint is clear from his statement of the importance of rehabilitation in the appellant’s circumstances, his discussion of the mitigating circumstances generally, and his consideration of whether a lower sentence than the one recommended by the Crown would give appropriate weight to the aggravating circumstances.

[24] The trial judge concluded, “I cannot see that a lower sentence would afford the appropriate weight to the aggravating circumstances and the need for an exemplary sentence.”

[25] The appellant brought a motion to admit fresh evidence related to the appellant’s responsibilities as a father. We agree with the respondent that the proposed fresh evidence, even if it were admissible, cannot reasonably be expected to have affected the result. The trial judge was aware of the appellant’s role as a caregiver for his children, and we do not accept that the fresh evidence presents a substantially different picture with respect to his family situation.

[26] For this reason, we would not grant leave to admit the fresh evidence.

[27] We grant leave to appeal the sentence, but dismiss the sentence appeal.