ONTARIO COURT OF JUSTICE
DATE: February 6, 2025
COURT FILE No.: 24-81300072
BETWEEN:
HIS MAJESTY THE KING
— AND —
BASKARAN BALASOORIYAN
PUBLICATION BAN
S. 486.5(1)
Before Justice Angela L. McLeod
Sentencing hearing January 27, 2025
MIRIAM VILLAMIL-PALLISTER ....................................................... counsel for the Crown
JEFFREY FISHER ....................................................................... counsel for the Defendant
McLeod J.:
OVERVIEW
[1] Mr. Balasooriyan was convicted at trial of:
(1) Possession of stolen property exceeding $5000 (a vehicle);
(2) Attempted abduction of A.K-M. (a person under the age of 14 years);
(3) Mischief by interrupting or interfering with the lawful use, enjoyment of property (a public park);
(4) Criminal harassment of A.K-M.
[2] On the day of the sentencing hearing, he entered a guilty plea to one count of breaching his release order.
[3] The parties do not agree on the following:
(1) The appropriate length of the custodial sentence;
(2) Whether or not the sentence should be served in the community pursuant to a conditional sentence order;
(3) Which count should be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729;
(4) Whether or not this court has the jurisdiction to make an order under s. 161 of the Criminal Code;
(5) Length and terms of a probation order.
REVIEW OF THE FACTS
[4] This court found that Mr. Balasooriyan brazenly stole a car from a repair shop mid-day while the shop was open and operating on September 11, 2023.
[5] The value of the vehicle was at least $5000, and in the specific range of $6000-$9000.
[6] When, ultimately, Mr. Balasooriyan was arrested on September 13, 2023, police located cannabis in the vehicle, and I find that those drugs belonged to him. Additionally, on his person police located a pocketknife and other assorted and sundry items.
[7] A.K-M. was 12 years old at the time of the attempted abduction, September 13, 2023. She was at a public park in her neighbourhood, with friends near a splash pad. Mr. Balasooriyan initiated a conversation with her that lasted some time. I find that the conversation was pointed and an attempt to ingratiate himself and to encourage her to trust him. He spoke of being a soccer coach, and that he had a 13 year old daughter among other things. The conversation stopped and re-started.
[8] Mr. Balasooriyan attempted, repeatedly, to get A.K-M. to come with him to his car, enticing her with the prospect of listening to music. She refused and he sped off in his car blasting music. She was very scared, and her friends were scared. She called the police. She testified that she “knew straight away that, uh, something was obviously going to happen in the car because I’ve heard of those stories, and I’ve had dreams about them. So, I immediately got like the ick”.
[9] In his actions of attempting to abduct A.K-M., Mr. Balasooriyan interfered or interrupted her lawful enjoyment of the public park.
[10] In his actions of speaking to A.K-M. in segments, after she had walked away and after he had left her immediate area, he caused her to fear for her safety.
[11] Mr. Balasooriyan was on release at the time of the offences for domestic assault. Indeed, a copy of his release order was located within the stolen vehicle.
[12] Mr. Balasooriyan has a criminal record which includes 20 convictions dating from 2003-2012. Convictions have been registered for offences against the administration of justice, driving offences, property offences et al. He has received custodial sentences and a conditional sentence order as well as fines and probation.
[13] Mr. Balasooriyan was in custody during the trial, and then released post conviction on a judicial interim release order on consent of the Crown. He amassed 375 presentence custody days, which I enhanced to 563 days as of the date of the sentencing hearing, and to 575 days as of the date of the imposition of sentence today.
POSITION OF THE PARTIES
[14] The defence submits that a conditional sentence order is appropriate, suggesting that the principles of sentencing can be met by imposing 105 days for the attempted abduction, 60 days concurrent for the criminal harassment, 45 days consecutive for the possession over and 29 days consecutive for the breach of release order. The defence seeks a stay of the mischief count. The total sought is 179 days, to ensure that Mr. Balasooriyan does not face any immigration issues.
[15] The Crown submits that a conditional sentence order is inappropriate, suggesting that the principles of sentencing can only be met by imposing 420 days for the attempted abduction, 90 days concurrent for the criminal harassment, 30 days concurrent for the mischief and 60 days consecutive for the possession of stolen property. The Crown argues that none of the counts should be stayed. The total sought is 480 days, and the Crown argues that reducing the sentence to 179 days to avoid immigration issues would make the sentence demonstrably unfit.
[16] Both parties agree that the sentence should be reduced by the presentence custody served. Both parties agree that probation is required but disagree as to the length and terms. Both parties agree that a DNA order is required. Both parties agree that a s. 109 order is mandatory.
[17] The Crown seeks a s.161 order, the defence argues that is not available.
WHICH COUNT, IF ANY, SHOULD BE STAYED PURSUANT TO KIENAPPLE?
[18] The rule against multiple convictions, or the Kienapple principle (supra) “proposes that an individual should not be subjected to more than one conviction arising out of the same ‘cause or matter’ or the same ‘delict’, consisting of a single criminal act committed in circumstances where the offences alleged are comprised of the same or substantially the same facts and elements”. It is the logical application of res judicata.
[19] To apply, there must be both a sufficiently close factual nexus and a sufficiently close legal nexus between the two offences in the circumstances. R. v. Aharonov, 2015 ONCJ 787 (Ont. C.J.) at para. 14.
[20] Whether there is a sufficient factual nexus turns on whether both offences were committed on the basis of a single set of underlying facts. The court must be satisfied that the same act of the accused grounds each of the charges. (Aharonov, supra, para. 15.)
[21] The Kienapple principle provides that where the physical acts related to one count are identical to those that pertain to a second charge, the rule against multiple convictions is engaged and a stay of proceedings is entered. R. v. C. (M.), 2012 ONSC 2505 (Ont. S.C.J.) at para. 21.
[22] I find that the repeated communication with A.K-M. underlying the criminal harassment was one in the same that underlies the actus reus of the mischief. The criminal harassment was in essence the actus reus of the attempted abduction. There is both a factual and a legal nexus between the attempted abduction and both the mischief and the criminal harassment. A stay will be granted with respect to each of those counts.
DOES S. 161 APPLY TO ANY OF THE CONVICTIONS
[23] Section 161 of the Criminal Code falls under PART V, Sexual offences, Public Morals and Disorderly conduct. It reads:
161(1) Order of prohibition
When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
161(1.1) Offences
The offences for the purpose of subsection (1) are
(a) an offence under section 151, 152 or 155, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1 or 172.2, subsection 173(2), section 271, 272, 273 or 279.011, subsection 279.02(2) or 279.03(2), section 280 or 281 or subsection 286.1(2), 286.2(2) or 286.3(2);
(b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983;
(c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(d) an offence under subsection 212(1) (procuring), 212(2) (living on the avails of prostitution of person under 18 years), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years) or 212(4) (prostitution of person under 18 years) of this Act, as it read from time to time before the day on which this paragraph comes into force.
(emphasis added)
[24] In R. v. J. (K.R.), 2016 SCC 31, the Supreme Court wrote as follows:
44 The legislative history, judicial interpretation, and design of s. 161 all confirm that the section has an overarching protective function: to shield children from sexual violence.
45 Section 161 was enacted in 1993 in response to the decision in R. v. Heywood, 20 B.C.A.C. 166 (B.C. C.A.), in which the British Columbia Court of Appeal struck down under s. 7 of the Charter the offence of loitering: see An Act to amend the Criminal Code and the Young Offenders Act, S.C. 1993, c. 45, s. 1. After 1993, s. 161 continued to evolve and, in 2012, the impugned amendments were introduced through the Safe Streets and Communities Act. The protective function of s. 161 generally, and the 2012 amendments specifically, was repeatedly emphasized throughout the legislative debates. For example, at the Bill's third reading, the Minister of Justice stated that the proposed amendments are "an important step forward in the protection of children in this country" (House of Commons Debates, vol. 145, No. 144, 3rd Sess., 40th Parl., March 11, 2011, at p. 8967).
(emphasis added)
46 The jurisprudence interpreting and applying s. 161 confirms the provision's protective purpose: see, e.g., R. v. Heywood, [1994] 3 S.C.R. 761 (B.C. C.A.), at p. 803; R. v. A. (R.K.), 2006 ABCA 82, 208 C.C.C. (3d) 74 (Alta. C.A.), at para. 20; R. v. Perron, 2009 ONCA 498, 244 C.C.C. (3d) 369 (Ont. C.A.), at para. 13.
47 As well, the design of s. 161 is consistent with its purpose of protecting children from sexual violence. Section 161 orders are discretionary and "subject to the conditions or exemptions that the court directs" (s. 161(1)). They can therefore be carefully tailored to the circumstances of a particular offender. The discretionary and flexible nature of s. 161 demonstrates that it was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community. Failure to comply with the order can lead to a term of imprisonment of up to four years (s. 161(4)).
48 Further, I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: see A. (R.K.), at para. 32; see also R. v. B. (R.R.), 2013 BCCA 224, 338 B.C.A.C. 106 (B.C. C.A.), at paras. 32-34. These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender's specific circumstances.
(emphasis added)
[25] The offence of abduction, s. 281, is captured as an enumerated offence under section 161(1.1)(a). The offence does not require a sexual element. Parliament intended to extend the punishment to more than sexual offences, distinguishing categories of offences into sections a, b, c and d. The punishment is anchored in the protection of children and the mitigation of risk thereto. Section 281 is specific to the abduction of someone under the age of 16 years; a child.
[26] Herein the defence argues that because Mr. Balasooriyan was not successful in his efforts, and thus convicted of an attempt, the prohibition is not applicable.
[27] The court in R. v. Belbin, 2015 ONSC 1714, found that:
107 Mr. Belbin's behaviour and the absence of any explanation for it raise concerns about the risk he presents to children in general. I therefore make an order under s. 161 of the Criminal Code prohibiting him from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so under the supervision of a person whom the court considers appropriate.
[28] Section 161 applies to the attempted abduction conviction. The goal of the section is to protect children from the risk of harm. I find that there is an evidentiary basis upon which to conclude that Mr. Balasooriyan poses a risk to children and that the specific terms of the order are a reasonable attempt to minimize that risk. He was utilizing a stolen vehicle, and attempting to lure a 12 year old girl into that vehicle in order to abduct her. Whether or not he successfully achieved his goal is not relevant to the consideration of whether or not he poses a risk to children. Attempted offences are referenced in s. 161(1.1)(b).
[29] Moreover, as in Belbin, supra, the absence of any explanation for Mr. Balasooriyan’s actions and behaviour raise concerns about the risk he presents to children in general.
MR. BALASOORIYAN’S PERSONAL CIRCUMSTANCES
[30] Mr. Balasooriyan did not request a presentence report nor other reports or assessments.
[31] His counsel advised that:
(1) He came to Canada in 1999 as a refugee.
(2) He was 21 years old at that time.
(3) He is a permanent resident of Canada.
(4) The civil war in Sri Lanka affected him and he moved numerous times within the country and his family finances were lessened.
(5) He was married in 2008 and divorced after 14 years.
(6) He has 2 daughters. His ex-wife has full custody of the children.
(7) He was diagnosed with bipolar personality disorder 2 years ago. His sister believes that he also suffers from PTSD.
(8) He last worked in the summer of 2023.
(9) Recently, post release from custody, he has been taking his prescribed medication, seeing a psychiatrist, and is surrounded by family. It should be noted that he was living with his sister, on release for the alleged domestic assault at the time of these offences.
AGGRAVATING AND MITIGATING FACTORS
[32] I find that there are little to no mitigating factors to be considered. While Mr. Balasooriyan has a mental health diagnosis, there is no evidence to suggest that it was a significant factor in his behaviour on the day in question. His mental health diagnosis does not reduce his moral culpability.
[33] I am mindful of defence counsel’s submission regarding Mr. Balasooriyan’s difficult early life, living in a war-torn country and his need to seek refuge here in Canada. I cannot find that this is a mitigating factor as there is no evidence upon which this court can conclude that there is any connection between those difficulties and the offences at bar.
[34] I find the following to be aggravating factors for consideration:
(1) The criminal record, which is lengthy and covers a spectrum of offences;
(2) That Mr. Balasooriyan was on release for an alleged crime of violence at the time of these offences; furthermore, he subsequently breached his release while awaiting trial on these offences. He was on a GPS monitoring term of release and left his residence without his surety. He lied to the police when arrested. The breach was brazen and gives rise to concern about risk to the community.
(3) That Mr. Balasooriyan was utilizing a stolen vehicle to affect the abduction attempt; a vehicle that would not be traceable to him. The use of the vehicle increased the potential risk as the child could have been easily and quickly transported away from the jurisdiction.
(4) That Mr. Balasooriyan had drugs in the vehicle;
(5) The impact upon A.K-M. who testified at trial that she suffers from nightmares since the incident. The impact upon the other children who were present at the park and who were frightened by Mr. Balasooriyan’s actions. The impact upon the other members of the community who were also concerned and who called the police to report his actions.
CONDITIONAL SENTENCING
A. CONDITIONAL SENTENCES – LAW AND GENERAL PRINCIPLES
[35] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:
a. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
b. the court must impose a term of imprisonment of less than two years;
c. the safety of the community would not be endangered by the offender serving the sentence in the community; and,
d. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[36] The first three criteria establish whether a CSO is available; the last whether it is appropriate.
[37] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:
22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.
[38] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:
41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,
in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.
A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.
42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).
GENERAL SENTENCING PRINCIPLES
[39] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is "to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society."
[40] This fundamental purpose is achieved by imposing sanctions on offenders that have one or more of the following objectives:
- denouncing unlawful conduct;
- deterrence of the offender and other persons from committing offences;
- separation of offenders from society, where necessary;
- assisting in the rehabilitation of offenders;
- to provide for reparations of harm done to victims, or the community; and
- to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community.
[41] Section 718.1 provides that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances. In section 718.2(a) a number of deemed aggravating circumstances are enumerated. Section 718.2 goes on to provide the following guidelines for arriving at a fit and proper sentence:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[42] The purpose, objectives, and principles of sentencing set out in s.718 and following, of the Code, as interpreted by the courts, provide the framework for the imposition of a fit sentence on the offender.
[43] A principled approach to sentencing requires an analysis without prejudice or sympathy.
[44] In R. v. Burghardt, 2020 ONCJ 517, at para 34, Justice West wrote:
Sentencing is highly individualized (see R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.
[45] The purpose of sentencing is to enhance the protection of society. Sentences should reflect the gravity of the offence and the degree of responsibility of the offender. These factors can be characterized as the moral culpability of the offender’s conduct.
[46] In R. v. Vader, 2019 ABCA 488, para. 16, the court wrote:
In assessing moral blameworthiness, a sentencing judge must consider all of the circumstances that bear on an offender's moral culpability. This includes not only the nature of the unlawful act, but also the degree of planning and deliberation involved in the unlawful act and any other factor that is relevant to the offender's moral blameworthiness, such as the personal characteristics of the offender that may aggravate or mitigate the offender's moral culpability.
[47] In R. v. T., 2006 MBCA 15, the court wrote:
24 Denunciation of unlawful conduct is a discrete principle of sentencing. It is one of the objectives of sentencing set out in s. 718 of the Criminal Code. Denunciation is "the communication of society's condemnation of the offender's conduct" (Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 102). It is "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values" (Lamer C.J. in R. v. M. (C.A.) at para. 81). Denunciation is typically reserved for crimes that are particularly offensive or prevalent. When applicable, it usually prevails over the principle of rehabilitation.
[48] The principle of deterrence is succinctly summarized in R. v. Bourgeois, 2022 NBPC 2 as follows:
33 Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered. A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation.
34 General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it.
[49] The principle of rehabilitation is succinctly summarized in Bourgeois, supra, as follows:
36 The maintenance of a just, peaceful and safe society, as is mandated by section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held"Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world" (see R. v. Lacasse, 2015 SCC 64 at para. 4).
[50] In R. v. Rawn, 2012 ONCA 487, paras. 17-18 and 30, the Court wrote:
17 The principle of parity of sentences is set out in s. 718.2(b) of the Code:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.
30 In R. v. Issa (1992), 57 O.A.C. 253 (Ont. C.A.), this court expressed the role of the parity principle as follows, at para. 9:
So long as sentencing remains an individual process there maybe sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together." [Citations omitted.]
[51] In R. v. Batisse, 2009 ONCA 114, pp. 32, the principle of restraint was reviewed:
32 The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest, 30 O.R. (3d) 538 (Ont. C.A.), at p. 545.
33 Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 207 O.A.C. 226 (Ont. C.A.), at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
34 In serious cases and cases involving violence, rehabilitation alone is not the determinative factor — general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
35 Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly for Aboriginal offenders. Subsection 718.2 (d) of the Criminal Code provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". Subsection 718.2 (e) provides:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
IMMIGRATION OR COLLATERAL CONSEQUENCES
[52] A sentencing jurist may exercise her discretion to take collateral immigration consequences into account but is not compelled to adjust a sentence in order to fulfill those consequences, R. v. Pham, 2013 SCC 15.
[53] The risk of deportation cannot justify the imposition of an inadequate or artificial sentence, particularly for the purpose of circumventing Parliament’s will on matters of immigration, R. v. Badhwar, 2011 ONCA 266, [2011] O.J. No. 1541 (C.A.).
CASELAW SPECIFIC TO ABDUCTION
[54] Both counsel addressed the case of R. v. Marini, 2014 BCPC 288 which is the sentencing decision of Justice Skilnick; the trial decision, which is helpful for the facts of the case, is cited as R. v. Marini, 2014 BCPC 3.
[55] Factually, Mr. Marini was convicted after trial of attempting to abduct a 12 year old child from a public library. He commented to the child that his shoes looked worn and offered to take him to buy new ones. He asked the child repeatedly.
[56] I adopt the following passages of Justice Skilnick’s sentencing decision:
2 The innocence of children is something that is precious and highly valued by our society and, therefore, in sentencing persons who threaten those values and who commit an offence under this section, the law has set out that deterrence and denunciation are very important sentencing principles and, of course, counsel have acknowledged this as well.
3 In sentencing Mr. Marini for the offence that he has been convicted of, I am guided by a number of parts of the Criminal Code and I am going to review some of those just very briefly. Section 718 of the Criminal Code, as counsel has pointed out, directs that the fundamental purpose of sentencing is to contribute respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have the following objectives: denouncing unlawful conduct, deterring the specific offender and other like-minded persons from committing offences, separating offenders from society where necessary, assisting in the rehabilitation of offenders, providing for harm done to victims or to the community and promoting a sense of responsibility in offenders an acknowledgment done to victims and the community. Again, as counsel have pointed out, for an offence of this nature, deterrence and denunciation are particularly important. The prospect of harm coming to a child is something that not only harms the child and the family but the community as a whole and it is something that the community as a whole finds abhorrent.
4 Section 718.01 of the Criminal Code says that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18, it shall give primary consideration to the objectives of deterrence and denunciation of such conduct.
(emphasis added)
[57] Aggravating in the Marini, supra, case was the fact that offence took place a few months after he had been placed on a conditional sentence order for a sexual assault against a teenaged boy, and as a result was on a s. 161 order. Assistance in determining the appropriate sentence was had via a psychological report in which it was opined that Mr. Marini was a low to moderate risk for future sexual misconduct.
[58] Justice Skilnick’s review of the caselaw at the time suggested an appropriate sentence was in the range from six to 30 months. This was long before the Supreme Court decision in R. v. Friesen, 2020 SCC 9. The courts have garnered a better understanding of the impact and harm upon children, (their families and communities) when they are victimized.
[59] Mr. Marini was sentenced to 14 months custody, 36 months probation, s.161 for life and a SOIRA order for life.
[60] In R. v. Ellis, 2023 NSCA 63, the court reduced a sentence of 2 years to 9 months for a mother who attempted to abduct her own 4 year old daughter.
[61] At paragraph 72, the court referenced Friesen, supra, and noted that the principles therein should be considered:
Consideration should be given to Friesen as the Court stated the principles established therein can also be drawn upon when imposing sentences for child abduction (para. 44). In particular, the sentences must reflect the life altering consequences that can and often do follow from these offences. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm that flows from them; and (3) the actual harm that results. As a result, upward departures from prior precedents and sentencing ranges may be required to impose proportionate sentences (Friesen, paras. 74, 75, 76 & 107).
[62] There are scant reported sentencing decisions for the offence of attempted abduction, and fewer for those involving persons unrelated to one another.
[63] In R. v. Jones, 2002 O.J. No. 5148, following a guilty plea, the court imposed a sentence 2 ½ years custody less 14 months presentence custody for the attempted abduction of an infant from a maternity ward.
[64] In R. v. Batisse, 2009 ONCA 114, the court considered four Canadian cases on infant abduction, allowed the sentence appeal and imposed a sentence of 2 ½ years custody, in addition to presentence custody where a victimized mother who had recently delivered stillborn child, abducted a new born infant from a maternity ward. Ms. Batisse had no criminal record, was a “30-year-old Aboriginal woman”, who had “survived an unimaginably abusive and cruel childhood, in which she was physically, emotionally and sexual abused”.
[65] In Re X, 2021 CarswellNat 10435, the Immigration and Refugee Board of Canada noted that a review of the applicable caselaw suggests that the appropriate sentence for abduction, or attempted abduction, depends on which of the three categories or types of abduction occurred. The court wrote:
The first category I describe as the "impulsive abduction", where the accused abducts his or her child and the child is returned within a relatively brief period of time. These types of abductions usually end after an Amber Alert, as was the case before me. The sentence imposed in this type of case has resulted in a suspended sentence — see R. v. Lewin, 2018 ONCA 882; an 18 month conditional sentence — see R. v. Baksh, 2006 O.J. No. 2398, as well as a period of incarceration that has ranged between three months and two years less a day — see R. v. Pasdari, 2003 O.J. No. 319 (Ont. C.A.); R. v. Singh, 1990 B.C.J. No. 2409 (BCCA); R. v. McBeath, 2014 BCCA 305.
[30] The second type of case I describe as "the retribution abduction". This type of abduction often occurs where there has been an acrimonious family law/custody fight and the accused seeks to inflict the greatest harm on the other spouse, by abducting the child and taking the child outside the jurisdiction of the court to a country where Canada has no ability to enforce its laws.
[31] The recent decision of Molloy J. in R. v. C. M. L., 2016 ONSC 4406, is just one example where the court has reflected a much higher sentence when one parent removes a child from Canada, with no intention of ever complying with a Canadian court order requiring that the child be returned to the lawful custodial parent. The Court of Appeal in R. v. Li, 2017 ONCA 509, upheld the decision of Molloy J. In upholding the sentence of seven years Trotter J.A. noted at para. 41 that the crime was ongoing, and that the father had been completely deprived of the right to parent his child and, as such, had been completely excluded from the child's life. In imposing the sentence that she did, Molloy J. took into account that the mother had no criminal record, and but for this mitigating fact would have considered the maximum sentence of 10 years would have been appropriate (My emphasis.)
[32] The third type of child abduction is one that might be described as "the hospital abduction". This type of abduction is characterized by an accused posing as a member of the hospital staff, who then abducts a newborn from the maternity ward. While Lesage J. in R. v. Hill, 1994 O.J. No. 4613, imposed a sentence of seven years in this type of abduction, the Court of Appeal in R. v. Batisse, 2009 ONCA 114, recognizing the mental health issues of the accused imposed a sentence of 2.5 years for this type of abduction. While not a hospital abduction the accused in R. v. Nguyen, 2008 ONCJ 367, stole a car that had a baby inside. The accused plead guilty to child abduction and dangerous driving, and received a sentence of three years.
(emphasis added)
[66] I find that in fact there is a fourth category of abduction offences; those in which a stranger abducts an unrelated child who is not an infant. That is the case herein, albeit an attempted abduction.
[67] In Nguyen, supra, the defendant stole a running motor vehicle from a driveway. There was a 6 month old infant in the backseat. He then drove dangerously through residential neighborhoods and onto a major highway. He ignored the crying of the infant, aware that he had taken the child when he took the vehicle. He plead guilty to dangerous driving and abduction. He had emigrated to Canada at 14 years of age. He had a criminal record. There were immigration consequences at play.
[68] Mr. Nguyen was sentenced to 3 years in the penitentiary, less presentence custody.
CONCLUSION
[69] The conviction has been registered for an attempt abduction, the maximum sentence is 5 years.
[70] I find Mr. Balasooriyan’s moral culpability to be high.
[71] The defence position is wholly inappropriate and contrary to the principles of sentencing, especially proportionality, moral blameworthiness, denunciation and deterrence. It also does not align with any of the caselaw presented or reviewed. The suggested sentence is disproportionate to the gravity of the offence.
[72] The necessary reduction from an appropriate sentence to one that would not cause Mr. Balasooriyan potential immigration consequences would render the sentence inadequate and I find would then circumvent Parliament’s will on matters of immigration.
[73] A conditional sentence is equally inappropriate and in the circumstances of this offence and this offender, would not meet those principles.
[74] The gravity of the potential risk to the community, to the children of the community is high, should Mr. Balasooriyan be permitted to serve his sentence in the community.
[75] This court has not been provided any insight into his offending behaviour and thus cannot address the potentially rehabilitative aspect of a conditional sentence.
[76] Additionally, Mr. Balasooriyan was on release at the time of this offence and subsequently breached his release post his arrest for this offence. The safety of the community would be endangered by the offender serving the sentence in the community. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[77] The position of the Crown is generous, very generous. Exercising the principle of restraint, I accept that position and in respect of the attempted abduction impose a sentence of 420 days custody less 280 presentence days of custody enhanced to 420 days, leaving a remnant sentence of zero days. This is to be followed by 36 months probation, a DNA order, a s. 161 order, subsections (a)(a.1)(b) and (c) for 5 years, and a s. 109 order for 10 years.
[78] In respect of the possession over $5000, I impose a sentence of 60 days custody less 40 presentence days of custody enhanced to 60 days, leaving a remnant sentence of zero days. This is to be followed by a concurrent 36 month probation order.
[79] In respect of the breach of the release order, I impose a sentence of suspended sentence and a concurrent 36 month probation order.
Released: February 6, 2025.
Signed: Justice Angela L. McLeod