Court of Appeal for Ontario

CITATION: R. v. Samuel, 2025 ONCA 59

DATE: 2025-01-28

DOCKET: COA-23-CR-1239

Hourigan, Favreau and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Gary John Samuel Appellant

Counsel: Paul Calarco and Michael Bartlett, for the appellant Jim Clark, for the respondent

Heard: January 21, 2025

On appeal from the sentence imposed on June 28, 2023 by Justice P. Andras Schreck of the Superior Court of Justice.

REASONS FOR DECISION

Introduction

[1] This is a sentence appeal for a manslaughter conviction that was part of a murder for hire plot. Theepa Seevaratnam was shot and killed on the morning of March 13, 2020. Steadley Kerr shot Ms. Seevaratnam at her husband Vijendran Balasubramaniam's request. The appellant drove Mr. Kerr to Ms. Seevaratnam’s house and drove him to dispose of his clothes and meet Mr. Balasubramaniam after the murder.

[2] The appellant received a sentence of nine and a half years. He contends that the sentencing judge made errors in reaching factual conclusions that lacked support from the evidence and were inconsistent with the jury’s verdict. Moreover, he argues that the sentence is unfit.

[3] We are not persuaded by these submissions and therefore dismiss the appeal.

Facts

[4] The background to the murder is as follows. In February 2020, Mr. Balasubramaniam met Mr. Kerr through a customer at Mr. Balasubramaniam’s convenience store. Over the next few weeks, Mr. Balasubramaniam and Mr. Kerr communicated by text and it was arranged that Mr. Kerr would murder Ms. Seevaratnam. The appellant was an acquaintance of Mr. Kerr and occasionally employed Mr. Kerr in his landscaping business.

[5] On the evening of March 12, 2020, the appellant stayed overnight at Mr. Kerr’s residence. Cell phone towers tracked their location around 2:00 am on March 13, 2020, near the home of Mr. Balasubramaniam and Ms. Seevaratnam. At approximately 8:30 am that morning, the appellant and Mr. Kerr departed from Mr. Kerr’s house, with Mr. Kerr carrying a box. The appellant then drove Mr. Kerr to an Enterprise Rent-A-Car location, where the appellant rented a vehicle in his name.

[6] The appellant next drove Mr. Kerr in the rental car to Mr. Balasubramaniam and Ms. Seevaratnam’s house, arriving shortly before 9:40 am. Mr. Kerr exited the car and went to the door holding a box. Ms. Seevaratnam’s mother, Leelavathi, opened the door. Mr. Kerr said he needed someone to sign for the package. Ms. Seevaratnam came to the door and Mr. Kerr tried to push his way into the house. He then produced a handgun and shot Ms. Seevaratnam three to six times in the chest, following which he shot her mother twice. Ms. Seevaratnam died of her injuries while her mother was seriously injured but survived.

[7] After the murder, Mr. Kerr returned to the vehicle where the appellant was waiting. The appellant drove them to Mr. Kerr’s ex-girlfriend’s apartment, where Mr. Kerr changed his clothes. Following that, he returned to the vehicle, and the appellant drove them to Mr. Balasubramaniam’s convenience store and then back to Mr. Kerr’s apartment. The appellant returned the rental car that evening.

[8] The jury found the appellant guilty of manslaughter. Mr. Kerr and Mr. Balasubramaniam were found guilty of first-degree murder and conspiracy to commit murder. Mr. Kerr was also found guilty of attempted murder.

The Sentencing Judge’s Reasons

[9] During sentencing, the sentencing judge made findings of fact, some of which were necessarily implied by the jury’s verdict. The following findings of fact pertained to the appellant:

• The appellant was aware that Mr. Kerr planned to commit a criminal offence at the address where Mr. Balasubramaniam resided.
• The appellant was aware of this since at least the day prior to the murder, as he spent the night at Mr. Kerr’s house, drove directly to the rental agency in the morning, and Mr. Kerr was openly carrying the package.
• The appellant knew or should have known that in committing the offence, there was a likelihood of causing bodily harm to someone that was not trivial or transitory.
• The appellant was aware that Mr. Kerr was armed with a firearm.
• The use of the gun by Mr. Kerr was objectively foreseeable to the appellant, though not subjectively foreseeable.

[10] The sentencing judge outlined the range of sentences for manslaughter: six to eight years for less serious cases, eight to twelve years when some significant aggravating factors are present, and twelve to fifteen years for cases involving the most severe aggravating factors. The Crown requested a twelve-year sentence, while the defence proposed six to eight years. The sentencing judge determined that the appellant fell within the middle range, noting the appellant’s awareness that a firearm would be used and that the offence demonstrated a certain level of planning.

[11] In categorizing the appellant in the middle range, the sentencing judge found that the aggravating factors included the involvement of a firearm, the premeditated nature of the offence (evidenced by the rental of a vehicle and the use of a package), the murder occurring in the victim’s home, and the appellant’s continued assistance following the murder. The mitigating factors were that the appellant was relatively young (29 years old) and had no previous criminal record. The sentencing judge also acknowledged the appellant's difficult childhood and upbringing in foster care and group homes. Diagnosed with several learning disabilities at a young age, the appellant also experiences some degree of cognitive impairment. At the time of the offence, he was successfully managing a landscaping business. A final mitigating factor was the harsh conditions the appellant faced in pre-sentence custody, which included being triple-bunked and subjected to lockdowns (Duncan credit).

[12] The sentencing judge ultimately imposed a sentence of nine and a half years, reduced by Summers' credit of four and a half years. This resulted in a net sentence of five years.

Analysis

[13] The appellant submits that the sentencing judge’s finding regarding the appellant’s awareness of the gun and its potential use lacked evidential support and was inconsistent with the jury’s verdict. We find these arguments unconvincing.

[14] Regarding consistency with the jury verdict, the sentencing judge’s finding that the appellant was aware of the gun does not conflict with the jury’s necessarily implied findings of fact. The verdict indicated that the jury found the appellant had a common unlawful purpose with Mr. Kerr. It also suggested that he knew, or should have known, that bodily harm was a likely consequence of pursuing that unlawful purpose. There is no inconsistency in concluding that the appellant intended to assist Mr. Kerr in committing an offence, was aware that the offence would likely lead to bodily harm, and recognized that Mr. Kerr was armed with a gun, while also concluding that subjective awareness of the gun's intended use had not been established beyond a reasonable doubt.

[15] Regarding the sentencing judge’s finding about the appellant’s awareness of the gun, it was open for the sentencing judge to conclude that the appellant was aware that Mr. Kerr was armed with a gun and to consider this fact when determining the appropriate sentence. The evidence supporting this factual finding included that the appellant and Mr. Kerr spent the whole night before the murder together, and that, at some point during the night, they visited Mr. Balasubramaniam’s house. Also relevant was the fact that Mr. Kerr openly carried the box he used as a ruse to gain entry into the house. Further, the appellant and Mr. Kerr spent the day together after the murder, during which time the box and gun disappeared. It was not reasonably feasible for Mr. Kerr to have concealed the firearm from the appellant, given their joint efforts to execute their common unlawful plan. These facts established a solid foundation for the sentencing judge’s conclusion that the appellant was aware Mr. Kerr was carrying a firearm.

[16] In oral submissions, counsel for the appellant points to what he says is an inconsistency in the sentencing judge’s reasons regarding the appellant’s knowledge of the potential use of the gun. Specifically, he notes that in paragraph 25 the sentencing judge concluded that the appellant should be sentenced on the basis that “the risk that the gun would be used was objectively but not subjectively foreseeable.” Yet, in paragraph 30, the sentencing judge says, “He was, as I have found, aware that a firearm was to be used…” Counsel submits that paragraph 30 suggests that the appellant had subjective knowledge. While the sentencing judge could have been more careful in his language in paragraph 30, we do not agree there is an inconsistency. The reference to his earlier finding made in paragraph 30, must be taken to refer to the appellant’s objective knowledge as found in paragraph 25.

[17] Finally, concerning the appropriateness of the sentence, the appellant received a fit sentence due to his significant moral culpability. He played a major role in a murder-for-hire scheme that involved the use of a gun and resulted in the death of an innocent person in her home. Further, the offence was not impulsive; it was premeditated. Therefore, it was reasonable to impose a sentence in the eight-to-twelve-year range. It bears adding that the focus on appeal is whether the sentence is demonstrably unfit, not whether the sentencing judge applied the correct starting point or sentencing range: R. v. Parranto, 2021 SCC 46, at para. 30.

Disposition

[18] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“C.W. Hourigan J.A.”

“L. Favreau J.A.”

“J. Dawe J.A.”