R. v. Kanagalingam, 2017 ONSC 5489
CITATION: R. v. Kanagalingam, 2017 ONSC 5489
COURT FILE NO.: CR-15-9601
DATE: 20170915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THAVAKUMAR KANAGALINGAM
Defendant
COUNSEL:
Mary Lou Armour, for the Crown
Mark Rieger, for the Defendant
HEARD: June 5-9, 12-16, 2017
REASONS FOR SENTENCE
CHARNEY J.:
Facts
[1] The accused Thavakumar Kanangalingam was tried by a judge and jury on a count of attempted murder of Jeevatharan Sivaloganathan by stabbing on December 12, 2015 (with aggravated assault as an included offence). On June 14, 2017 the jury acquitted him of attempted murder but convicted him of aggravated assault. In so doing they rejected his claim that he had acted in self-defence. Mr. Kanangalingam also pled guilty to five charges of failing to comply with the conditions of his recognizance in relation to the events of that day. A seventh count relating to uttering a death threat against Rasathy Emayabalan was withdrawn by the Crown.
[2] The facts consistent with the jury’s verdict are as follows:
[3] Mr. Sivaloganathan and Mr. Kanangalingam have known each other since 1995. Mr. Kanangalingam is married to Mr. Sivaloganathan’s cousin, Rasathy. Rasathy had told Mr. Sivaloganathan that there were problems in her relationship with Mr. Kanangalingam, and the two men had previously talked on the phone about this issue.
[4] Mr. Kanangalingam’s ordinary residence was a basement apartment of a house at 130 Doubtfire Crescent in the City of Markham, where he lived with his wife and 5 children. On the date of this incident, however, he was bound by strict bail conditions to reside with his surety in Brampton, and he was not supposed to be at the house on Doubtfire Crescent. The bail conditions also prohibited him from being outside his residence with alcohol in his body and from possessing any weapon.
[5] On the night of the incident Mr. Kanagalingam was drunk. He drank three beer and a 750 ml. bottle of Crown Royal. His wife was not happy about this and they argued. Sometime after midnight she woke the children up and put them in the van and left the house. She did not tell Mr. Kanagalingam where they were going, although we now know they spent the night in the parking lot of a McDonald’s restaurant. He tried to call her cell phone but she did not answer it because she did not want to talk to him.
[6] Mr. Kanagalingam then called Mr. Sivaloganathan.
[7] Mr. Sivaloganathan came home from work at about 11:30 p.m. on Friday December 11, 2015. He drank 3 or 4 beers. At 12:38 a.m. he received a phone call on his cell phone from Mr. Kanagalingam, which he did not answer.
[8] Mr. Kanagalingam then phoned on the home phone and Mr. Sivaloganathan’s wife answered it, and gave the phone to Mr. Sivaloganathan. Mr. Kanagalingam wanted Mr. Sivaloganathan to come to his house, and told Mr. Sivaloganathan that if he did not come to his house, Mr. Kanagalingam would come to Mr. Sivaloganathan’s house. This worried Mr. Sivaloganathan because his children were sleeping, so he agreed to go to a house at 130 Doubtfire Crescent, where Mr. Kanagalingam lived in a basement apartment with his wife and children. He told his wife, who did not want him to go because he had been drinking, and she hid his car keys and called a family friend.
[9] The family friend arrived at the house and after some discussion agreed to drive Mr. Sivaloganathan to the house at 130 Doubtfire Crescent. During the ride Mr. Sivaloganathan and Mr. Kanagalingam had several more telephone conversations, the last one at 2:40 a.m. Mr. Sivaloganathan and his friend arrived at 130 Doubtfire Crescent shortly after 2:40 a.m. Mr. Kanagalingam was waiting on the driveway in front of the house. Rasathy’s van was not in the driveway of the house. The street was otherwise deserted.
[10] When Mr. Sivaloganathan agreed to come to 130 Doubtfire Crescent, Mr. Kanagalingam went to the kitchen and took a 12 inch kitchen knife and put it in his inside jacket pocket, and went outside to wait for Mr. Sivaloganathan.
[11] Mr. Kanagalingam was still drunk when Mr. Sivaloganathan arrived at his house.
[12] Mr. Sivaloganathan and Mr. Kanagalingam began to talk and argue. Mr. Kanagalingam told Mr. Sivaloganathan not to talk to Rasathy any more, but Mr. Sivaloganathan thought that he should be able to continue to talk to his cousin.
[13] Mr. Sivaloganathan told Mr. Kanagalingam that Mr. Kanagalingam had five children and that he should get a job so that he could have a better life for his wife and children instead of living in a basement. This was not the first time the two men had had this argument.
[14] The two men were standing and smoking in front of the car, and then they both sat on the curb and talked for about 20 minutes. Both men got up but Mr. Kanagalingam blocked Mr. Sivaloganathan and hugged him from behind. Both men fell to the ground. When Mr. Sivaloganathan stood up he noticed that he was bleeding and he called his friend to say that he had been stabbed. He saw the knife on the grass, and held Mr. Kanagalingam by the jacket and asked him if he had stabbed him, but Mr. Kanagalingam did not answer. Mr. Sivaloganathan fainted and fell down, and Mr. Kanagalingam was held by the friend until the police arrived at approximately 3:07 a.m.
[15] Mr. Kanagalingam had stabbed Mr. Sivaloganathan with the kitchen knife he had earlier concealed in his jacket pocket. While Mr. Sivaloganathan’s injuries were not life threatening, the knife did penetrate the left lower side of his abdomen and resulted in an injury to his diaphragm requiring surgery to repair the diaphragm and he was discharged on December 15, 2015. There was no victim impact statement, although Mr. Sivaloganathan testified during the trial that he still has a pain in his stomach from the stabbing and that he tires easily and cannot work like he did before.
Position of the Crown and the Defence
[16] The Crown takes the position that Mr. Kanagalingam should be sentenced to a prison term of 4 years, before credit for pre-sentence custody, for the aggravated assault. An additional consecutive sentence of one year should be levied for the breaches of recognizance, for a total sentence of 5 years.
[17] The Crown points to several aggravating factors in this case. Mr. Kanagalingam’s actions of December 12, 2015 were the direct result of his violation of multiple court orders, and the assault occurred while he was on bail. The incident arose out of a domestic dispute in which his wife fled the home with her 5 children and spent the night sleeping in her van in a McDonald’s parking lot.
[18] The accused took a knife to the meeting with Mr. Sivaloganathan, and hid the knife in his inside jacket pocket, indicating an element of premeditation. Certainly the only purpose for bringing the knife was to use it as a weapon. It is only a matter of luck that Mr. Sivaloganathan’s injuries were not more serious.
[19] The Defence takes the position that Mr. Kanagalingam should be sentenced to time served (which he calculates as 23.5 months based on 471 days pre-sentence custody at a credit of 1.5:1), plus 2 years probation. He argues that the accused’s actions were the direct result of a serious alcohol addiction which he has taken steps to address. While there were a number of breaches of recognizance, none related directly to Mr. Sivaloganathan, and all were the result of his alcoholism.
[20] In addition, this was a case of a single stab wound, unlike many of the cases at the upper end of the range that involved multiple stab wounds.
[21] While the Crown initially argued for a credit of 1.2:1 for time served (13 months credit as of the date of sentencing submissions), the Crown has acknowledged that 1.5:1 would be more appropriate in this case. See R. v. Summers, 2014 SCC 26.
[22] Defence counsel has advised that the accused was subject to 123 days of lockdown, the longest lasting twenty days during a strike. I received no affidavit evidence regarding the nature of the lockdown, although the accused has provided a letter with some details in this regard. Several cases have recently discussed whether long periods of lockdown or other "particularly harsh" treatment should result in enhanced credit (beyond 1.5:1) given to the accused for pre-trial custody. Many of these cases were recently reviewed by Gilmore J. in R. v. DeSousa, 2016 ONSC 5493 at paras. 51 - 69. See also R. v Passera, 2017 ONSC 2799 at paras. 120 - 133. In Passera Woollcombe J. observes (at para. 121) that,
The phrase “lock-down” must be used with some care. “Lock-down” can mean different things in different situations. In this case, Ms. Passera uses it to refer to any period of time in which she was confined to her cell when the rules of the unit suggested that she should have been permitted out of her cell. This is a very different use of the term than in some of the other cases in which credit for lock-down has been considered.
Given the limited evidence regarding the specific nature or conditions of the lockdown I am not prepared to provide enhanced credit beyond the 1.5:1 already granted, although I have taken these conditions into account as an additional mitigating factor in determining the appropriate sentence.
[23] Similarly the accused was subject to strict bail conditions regarding where he could reside. He ignored these conditions and went back to live at 130 Doubtfire Crescent. Had he complied with these bail conditions I might have considered this a valid reason to provide some extra credit, but given his failure to comply with these conditions it is not appropriate to consider credit in these circumstances.
[24] Defence also argues that this was a “consent fight”, since Mr. Sivaloganathan went to the accused’s home. I reject this argument because the evidence does not support the assertion that Mr. Sivaloganathan went to 130 Doubtfire Crescent looking for a physical altercation. He went expecting a discussion, and perhaps an argument, but the evidence indicates that he was not expecting a physical altercation and did not consent to any fight. Indeed, he was walking away when the accused grabbed him from behind, drew a concealed weapon and stabbed him in the chest. There was no suggestion that Mr. Sivaloganathan was armed.
[25] Defence also takes the position that while the accused has pled guilty to five breaches of recognizance, two of them relate to the requirement that he reside with his surety in Brampton, and two of them relate to the non-consumption of alcohol, and based on the Kienapple principle I should not consider multiple convictions for the same conduct. The Crown agrees that Kienapple should apply in this circumstance. I accept this argument and I will stay counts 4 and 6 and consider only three distinct breaches of recognizance: the requirement that he reside with his surety in Brampton (count 2), the requirement that he not be outside his residence with alcohol in his body (count 3), and the requirement that he not possess any weapons (count 5).
[26] Following the conviction Mr. Kanagalingam also pled guilty to an additional breach of his recognizance on January 20, 2017. On that date he returned to the basement apartment at 130 Doubtfire Crescent without his surety. He was intoxicated by alcohol and got into an argument with his son, who called the police, and Mr. Kanagalingam fled from the home and was located by the police near a local plaza. Mr. Kanagalingam consented to a change in the Crown’s election to proceed by indictment in this Court, and the Crown takes the position that the sentence for this breach should be no more than 6 months since Mr. Kanagalingam consented to a change in the Crown election and as such should not be prejudiced by that choice.
Pre-Sentence Report
[27] The Pre-sentence report indicates that Mr. Kanagalingam is 42 years of age. He is a first offender, although he has been involved in previous altercations that were dealt with by a peace bond. He was born in Sri Lanka, where his parents still live. Two of his siblings reside in Canada. He began living with his wife in 1995, and they were married in 2001. They have five children, ages 6 to 14.
[28] He attended elementary school in Sri Lanka and secondary school in Scarborough, Ontario. He did not obtain his secondary school graduation diploma, and left school at the age of 19.
[29] He worked at a document binding company from 1995 to 2009. He started his own flooring business which closed down.
[30] Mr. Kanagalingam has a serious alcohol abuse problem which began in 2009 or 2010. He acknowledges that his drinking affects his ability to carry out his daily tasks and duties, including his parental responsibilities. Prior to the offence he was spending approximately $600 - $700 per month on alcohol and would drink every day. He has had alcohol related seizures. All of the York Regional Police Service (YRPS) contact with Mr. Kanagalingam has been as a result of his abuse of alcohol.
[31] Mr. Kanagalingam attended a residential treatment centre program in July, 2016 to address his alcoholism and the alcohol addiction services during his stay at the Central East Correctional Centre (CECC). He has also completed some anger management courses at the CECC. His addiction counsellor at the CECC indicates that Mr. Kanagalingam has “some insight with respect to his alcohol intake” and realizes that alcohol is at the centre of these legal problems. That being said, all agree that the alcoholism continues to be a problem.
[32] The YRPS reported that when Mr. Kanagalingam is sober he is a pleasure to deal with, but when he is drinking he is violent and unpredictable. There are concerns that his wife is at risk of domestic violence, but his wife told the probation officer preparing the pre-sentence report that she understands that he has made a decision to abstain from drinking and she wants him to return home so he can assist with parenting.
[33] Mr. Kanagalingam also provided a letter from a former employer indicating that they have a position available for him upon his release if he is interested.
Analysis
[34] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. The following objectives must be considered in forming a just sanction:
(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[35] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.
[36] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code.
[37] In cases of violence, emphasis must be placed on denunciation and deterrence (R. v. Triolo, 2017 ONSC 4726 at para. 19).
[38] With regard to the breaches of recognizance, courts have held that a consecutive term of imprisonment is often appropriate. In R. v. Costain, 2014 ONSC 4247 at para. 37 Quigley J. stated:
[T]he objectives of sentencing require that a separate meaningful sentence be levied for breach of court orders. If the court does not do that, the violation of such orders becomes meaningless. Consecutive sentences for breaches of such orders have varied in length, depending on the severity of the repeat breach, or the number of times that such orders have been breached.
[39] This statement is consistent with the Ontario Court of Appeal’s conclusion in R. v. Mascarenhas (2002), 2002 CanLII 41625 (ON CA), 60 O.R. (3d) 465 at paras. 31 and 32:
[E]nsuring that those under a recognizance comply with its terms, protects a different societal interest than the prevention of drunk driving, and it is therefore no error in principle to impose consecutive terms of imprisonment.
[40] The cases indicate a wide range of sentences for aggravated assault. That offence carries a maximum sentence of fourteen years imprisonment (Criminal Code s. 268(2)).
[41] Code J. reviewed many of the sentencing cases for aggravated assault in R. v. Tourville, 2011 ONSC 1677 at paras. 27 – 30, and his guidance in this regard continues to be relied upon: see R. v. Pomanti, 2017 ONCA 48 at para. 35. The midrange cases typically involve first offenders and generally contain some elements suggestive of consent fights but where the accused resorted to excessive force or violence. These cases generally attract sentences between 18 months and two years less a day. Cases at the high end of the range “generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence”. These cases generally attract sentences of between four and six years: see para. 30.
[42] The present case involves elements of both the midrange and high-end cases. The accused does not have a criminal record, although he has resolved earlier incidents with a peace bond. He has expressed a sincere desire to abstain from alcohol, and has taken some steps to accomplish that goal by participating in programs that were available to him. These are all mitigating factors.
[43] On the other hand, the evidence indicates that this was an unprovoked attack against an unarmed man. Mr. Sivaloganathan was attacked from behind when he was walking away from the accused. There were elements of premeditation. It was the continuation of an alcohol-fuelled violent episode that forced his wife and children to flee their residence. It was the direct result of the accused’s disrespect for the bail conditions that he had promised to follow as a condition of his release. Finally, the accused used a 12 inch kitchen knife for the assault, which increased the likelihood of serious injury to the victim. While the injuries in this case were not life threatening, that was a matter of chance, and I would not consider that good fortune to be a mitigating factor.
[44] While the breach of recognizance is an aggravating factor because the breaches related directly to the aggravated assault, they are also separate offences for which Mr. Kanagalingam will receive separate consecutive punishments. Accordingly, it would be wrong to consider this conduct both to increase his sentence for aggravated assault and also to impose a separate penalty for breach of recognizance. That would amount to double punishment. Accordingly, I will not consider the breach of recognizance as an aggravating factor with regard to the sentence imposed for aggravated assault.
[45] That being said, the breaches of recognizance in this case are quite serious. They demonstrate a total disrespect and flagrant disregard for the court and for the accused’s own promise to abide by these conditions. He broke all three of these conditions on the night that he stabbed Mr. Sivaloganathan. He violated the terms of his recognizance again on January 20, 2017.
Conclusion
[46] In all of these circumstances I am satisfied that the accused falls between the midrange and high-end sentences for aggravated assault, and sentence him to 33 months imprisonment for aggravated assault, and an additional 9 months consecutive for each of the three breaches of recognizance, for a global sentence of 42 months before pre-sentence custody credit of 23.5 months. This leaves a total remaining sentence of 18.5 months.
[47] To be clear, the total 42 month sentence is divided as follows:
(a) Count 1 (aggravated assault): 33 months imprisonment;
(b) Counts 2, 3 and 5 (breaches of recognizance): 9 months imprisonment consecutive to count 1, with each 9-month sentence to be served concurrently;
(c) Counts 4 and 6: stayed pursuant to Kienapple;
(d) 6 months imprisonment for the breach of recognizance on January 20, 2017, to be served concurrently with the 9-month sentences in Counts 2, 3 and 5.
[48] Since the actual term of imprisonment imposed at the time of sentencing after taking into account time spent in pre-sentence custody does not exceed two years, the Court may also impose a term of probation pursuant to s. 731(1)(b) of the Criminal Code (see R. v. Mathieu, 2008 SCC 21 at paras. 11, 18, 19 and 22). I have taken the availability of a probation order into account in deciding the appropriate length of the remaining prison sentence (Mathieu at para. 22). Given the accused’s alcohol abuse problem I find that a period of probation is appropriate and necessary to promote his rehabilitation.
[49] Accordingly, in addition to imprisonment the accused will be placed on probation for a period of two years on the following terms and conditions. You are to:
Report to a probation officer as required;
keep the peace and be of good behaviour;
keep your probation officer advised of your place of residence and your employment;
attend and complete counselling for alcohol abuse and anger management, as recommended by your probation officer, and sign all releases necessary to that end;
not to have any association, communication or contact, direct or indirect, with Jeevatharan Sivaloganathan; and
provide such proof of your compliance with your probation terms as may be required by your probation officer.
[50] I also impose two ancillary Orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage. The second is an Order under section 109 of the Criminal Code prohibiting you from possessing any firearm or ammunition or any other item referred to in that section, for a period of 10 years from today. There will also be a mandatory victim fine surcharge.
Justice R.E. Charney
Released: September 15, 2017
CITATION: R. v. Kanagalingam, 2017 ONSC 5489
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
THAVAKUMAR KANAGALINGAM
Defendant
REASONS FOR SENTENCE
Justice R.E. Charney
Released: September 15, 2017