Superior Court of Justice
B E T W E E N:
HER MAJESTY THE QUEEN
v.
SAHILAN WALTER SURENDRAN
Reasons for Sentence
OF THE HONOURABLE JUSTICE M. FUERST
On February 18, 2020, at NEWMARKET, Ontario
APPEARANCES:
N. Young Counsel for the Crown R. Rusonik Counsel for Sahilan Surendran
Superior Court of Justice
Table of Contents
Page No.
Reasons for sentence of Fuerst J. 1 Transcript ordered: February 27/20 Judicial Approval received: May 29/20 Transcript completed: May 31/20 Ordering party notified: May 31/20
Tuesday, February 18, 2020
Reasons for Sentence
FUERST J. (Orally):
Introduction
As of June 2018, Kyle Baker and Sahilan Surendran knew one another through the Oshawa drug scene. Mr. Baker, who was 24 years old, had an addiction to crack cocaine. Mr. Surendran, who was 27 years old, was actively engaged in drug dealing, including in crack cocaine. Mr. Baker was one of Mr. Surendran’s customers.
Neither Mr. Baker nor Mr. Surendran were strangers to the criminal justice system. Mr. Baker had dozens of criminal convictions, many of which were related to his drug habit. Mr. Surendran had a lengthy criminal record and had served time in the penitentiary for offences of violence.
Mr. Baker’s circumstances in June 2018 were particularly difficult. He was effectively homeless, and in the throes of his addiction.
The Circumstances of the Offence
On the afternoon of June 5, 2018, Amber Porter saw Mr. Baker in a local parking lot. She too was a drug addict. She was a friend of Mr. Baker, although he had stolen from her many times. On this occasion, she thought he looked drug sick.
She saw Mr. Surendran in the same area.
That evening, Mr. Baker went to an Oshawa residence commonly frequented by drug dealers and their customers. It was a place where drugs were freely bought and used. A group of people that included Ms. Porter were hanging out there that night. Everyone present was using drugs, including Mr. Baker, who was given some crack by another woman in the group.
Mr. Surendran arrived at the house a few minutes before 2:00 a.m. on June 6. He went straight to the kitchen, where he usually did his drug dealing.
As Mr. Surendran entered the kitchen, Mr. Baker accosted and assaulted him. Mr. Surendran believed that Mr. Baker was going to rob him. Mr. Baker gained the physical advantage over Mr. Surendran. Mr. Surendran called out for help, but no one came to his assistance.
Mr. Surendran was armed with a .22 calibre revolver. He fired two shots at Mr. Baker in self-defence. Mr. Surendran shouted, “Let go, let go, let go.” Mr. Baker said, “Yo, if I let you go, it’s all over.” Mr. Baker released Mr. Surendran.
Mr. Surendran shot Mr. Baker several more times, including in the back of the head.
The Crown and the defence agree that while Mr. Surendran intended to kill Mr. Baker with this last volley of shots, Mr. Surendran had lost his sense of self-control and acted on the sudden.
Mr. Surendran retrieved his bag of drugs and left the house.
First responders were called to the house and arrived within minutes, but Mr. Baker was without vital signs. At 2:20 a.m. he was pronounced dead at the scene, from multiple gunshot wounds.
Mr. Baker suffered five gunshot wounds. One to the back of the left neck was not fatal. One to the right medial thigh was not fatal. One to the left temple would have been fatal. One to the left lateral chest nicked the liver, diaphragm, stomach and left lung. It would have been fatal. One to the left mid-back pierced the heart and lung and resulted in 50 per cent of the blood in Mr. Baker’s body being dumped into his lungs. It would have been fatal.
Additionally, the entrance wounds to the left temple, left lateral chest, and left mid-back were stippled. Stippling refers to pinpoint abrasions to the skin caused by unburned powder grains exiting from the gun. In order for stippling to occur, blood must still be circulating, meaning that the person is still technically alive.
The pathologist’s opinion was that Mr. Baker would have fallen from the wound to the left mid-back, and would have lost consciousness shortly afterward, such that it was unlikely he was fighting after this wound. Ms. Porter, who was the sole eyewitness to the shooting, testified at the preliminary hearing that Mr. Baker was standing at all times when shots were fired. The Crown and the defence agree that all of the shots were fired before Mr. Baker fell.
Mr. Baker also had minor blunt force injuries to the right forehead, right ear, back of the right wrist and left finger.
It is agreed by the Crown and the defence that the altercation between Mr. Surendran and Mr. Baker took place in close quarters. Ms. Porter never saw Mr. Surendran’s arm extended with the firearm.
Mr. Surendran went into custody on July 5, 2018, and has been in custody since that date.
In the courtroom, Mr. Surendran described Mr. Baker as his friend. He said that he realizes Mr. Baker’s death was his fault, that he regrets what happened every day, and that he realizes his way of life led to this and he needs to change.
The Victim Impact Information
In her Victim Impact Statement, Mr. Baker’s mother described a conversation with her son the weekend before he was killed, in which he expressed that he wanted to leave the drug life and get clean and sober with the help of her and her husband. She expresses the depression, anxiety and anguish that she has experienced and continues to experience, because of her son’s death and its circumstances. The emptiness overwhelms her. She does not know if she will ever be able to live her life in the same way as she did. She is haunted by her son’s killing and its impact on the family.
The Circumstances of Mr. Surendran
Much of the information about Mr. Surendran’s background came to me from a report prepared by Dr. Julian Gojer, who is a forensic psychiatrist. Dr. Gojer described Mr. Surendran as difficult to interview.
Mr. Surendran was raised by parents who broke up and reconciled frequently. His father was physically abusive of his mother, and verbally abusive of him.
Because of his parents’ marital instability, Mr. Surendran attended nine different elementary schools, and six different secondary schools. While he was in elementary school, it was suggested that he had ADHD.
Mr. Surendran completed high school. However, he has virtually no work history. He began selling drugs as a teenager, and his life revolved around drug dealing. He told Dr. Gojer that he uses cannabis regularly, cocaine sometimes, and alcohol to excess.
Mr. Surendran’s criminal record dates back to 2007, when he was found guilty of assault and assault with a weapon, as a youth. In 2009 he was convicted of robbery while armed and sentenced to two years less a day in jail, after credit for nine months of pre-sentence custody, followed by three years of probation. He was paroled, but recommitted as a parole violator. In 2012 he was convicted of two counts of robbery and sentenced to two years in jail after nine months of pre-sentence custody. He was convicted of various other offences from March 2014 into 2018, including assault, and fail to comply with different court orders. He was on probation when he killed Mr. Baker.
While on parole, he enrolled in a mechanical engineering program at Durham College. His parole was revoked, and he never completed the program.
Mr. Surendran suffered a head injury as a child. When he was five years old, he fell out of a third story window of the home. Records from the Hospital for Sick Children indicate that he suffered a closed head injury with right frontal scalp contusion and that the injury involved “some mild tentorial subdural haematoma”. His neurologic examination five months after the injury was “entirely within normal limits,” and no neurologic problems were noted. He was described as recovering without consequence. However, Mr. Surendran told Dr. Gojer that he suffered head injuries on two subsequent occasions as a youth, and was hit in the head on multiple occasions as a teenager and an adult. These events apparently were not documented, or the subject of medical evaluations.
In 2017 he was stabbed in the leg by someone unknown to him.
Mr. Surendran told Dr. Gojer that he is constantly paranoid, and has had difficulty managing his temper in the past. He has memory problems.
Dr. Gojer suggests that Mr. Surendran has a brain injury with frontal lobe features that seems to be intertwined with a disordered personality. Dr. Gojer also opined that Mr. Surendran suffers from Post Traumatic Stress Disorder and schizophrenia. He said that Mr. Surendran requires further neuropsychiatric and neuropsychological assessment.
Mr. Surendran’s parents divorced in 2007. He has a good relationship with each of them. His mother now works as a realtor. His father works as a mortgage specialist. Mr. Surendran’s older brother is an accomplished professional. He is not particularly close to his brother.
Mr. Surendran’s mother provided a letter stating that on his release from jail, he can live with her. She proposes to take him to training programs that may assist him in getting employment.
The Positions of the Parties
On behalf of the Crown, Mr. Young seeks a sentence of nine years in jail, less time in pre-sentence custody calculated at one and a half to one as 30 months, and an additional four months’ credit because of lockdowns, leaving a sentence to be served of 74 months, which is six years and two months. He also seeks a DNA order, a s. 109 weapons prohibition order for life, a s. 743.21 non-communication order in respect of Amber Porter, and a forfeiture order.
Mr. Young emphasizes the significant aggravating facts, including Mr. Surendran’s prior criminal record, his use of a firearm in the commission of the offence, the fact that Mr. Surendran was bound by three firearms prohibition orders at the time, that the offence occurred in the course of Mr. Surendran’s drug-dealing, that Mr. Baker’s death could have been avoided had Mr. Surendran walked away when Mr. Baker released him, and the impact of the death on Mr. Baker’s mother.
On behalf of Mr. Surendran, Mr. Rusonik submits that the range of sentence is six to twelve years in jail. He urges me to impose a sentence at the lower end of the range, less credit for pre-sentence custody and lockdown credit as calculated by Mr. Young. He does not oppose the ancillary orders sought by Mr. Young.
Mr. Rusonik emphasizes that there are extraordinary mitigating circumstances in this case. In particular, the time between Mr. Surendran’s acts in lawful self-defence and under provocation is minimal, Mr. Surendran’s guilty plea is very meaningful because there were weaknesses in the Crown’s case and the potential for a defence of self-defence, and Mr. Surendran’s mental makeup as descried by Dr. Gojer is complex, involving a brain injury complicated by a difficult upbringing and intertwining with a disordered personality. Mr. Surendran has prospects of rehabilitation as his mother has pledged to assist him on his release from jail.
The Principles of Sentencing
The objectives of sentencing are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
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 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
In every case, the determination of a fit sentence is a fact-specific exercise. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.” The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.
Sentencing in Manslaughter Cases
Under s. 236 of the Criminal Code, where a firearm is used in the commission of manslaughter, there is a minimum sentence of four years in jail, and a maximum sentence of life imprisonment.
A diversity of circumstances will found a conviction for manslaughter. Accordingly, there is wide variation in the range of sentence, and it is difficult to identify that which is applicable in a given case. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity: see, R. v. Carrière, 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10.
Manslaughter is a serious offence because it involves the taking of a life, and ordinarily attracts a lengthy sentence: see, R. v. Head, [1985] O.J. No. 153 (C.A.). To arrive at the appropriate sentence in a particular case, the sentencing judge must consider the context in which the manslaughter occurred, meaning the case-specific circumstances of the offence and the offender: see, R. v. Simcoe, [2002] O.J. No. 884 (C.A.). Provocation is a mitigating factor that must be taken into account in sentencing: see, R. v. Clarke, 172 O.A.C. 133 (C.A.).
Analysis
The principles of sentencing that govern in this case are denunciation and deterrence, both general and specific. I do not overlook rehabilitation, given Mr. Surendran’s age, but it merits decidedly less weight.
The aggravating facts in this case include:
- Mr. Surendran was on probation when he shot and killed Mr. Baker. It is obvious from his criminal record and from the circumstances of this offence that Mr. Surendran has no respect for court orders. He has violated them repeatedly.
- Mr. Surendran had no legitimate business at the residence where the shooting occurred. He was there only to pursue illegal activity, that of selling drugs.
- Mr. Surendran chose to arm himself with a loaded and deadly handgun that he used to fire multiple shots in quick succession. It is a reasonable inference, and one I draw, that he was aware carrying a loaded handgun involved a risk of harm to others.
- Mr. Surendran armed himself with a loaded firearm notwithstanding that he was bound by three separate weapons prohibition orders.
- Mr. Surendran did nothing to summon help for Mr. Baker after the shooting. Instead, he retrieved his bag of drugs and immediately left the scene.
- Mr. Surendran has a serious prior criminal record that includes multiple offences of violence. He has been a parole violator.
- Kyle Baker’s death and the manner of it, has had an immense impact on his mother.
I must also consider the mitigating factors. Before I turn to them, I wish to comment on Dr. Gojer’s report. Defence counsel relied heavily on it. Regrettably, the report is lacking in confirmatory information that would enable me to accept Dr. Gojer’s diagnosis without reservation. Dr. Gojer indicated that his sources of information were the Agreed Statement of Facts, “interview with Mr. Surendran”, “interview with his father and mother”, and records from hospitals about the fall from the window as a child and the stabbing in the leg. However, he does not indicate for how long he interviewed Mr. Surendran or either of his parents. The review of independent records that might have confirmed (or not) the information provided by Mr. Surendran and his parents, was extremely limited. No school records were reviewed. Although Mr. Surendran served sentences of some length in both the reformatory and penitentiary systems, no institutional records were reviewed. No medical records documenting head injuries beyond the fall from the window were reviewed. In fairness to Dr. Gojer, it seems there may never have been any such records. The medical record about the stabbing in the leg is summarized by Dr. Gojer in a line and a half, to the effect that Mr. Surendran was treated at hospital and released, without any detail. Additionally, no psychological testing of any kind was done on Mr. Surendran.
I accept that Mr. Surendran suffered a closed head injury as a child that may have impacted his cognitive skills and his behaviour as he grew older, that he has a personality disorder of some kind, and that he has abused drugs and alcohol. I otherwise give limited weight to Dr. Gojer’s conclusions.
The mitigating factors include:
- Mr. Surendran pleaded guilty, which is a sign of his remorse and willingness to take responsibility for his actions. He expressed genuine remorse in his remarks in the courtroom.
- He pleaded guilty, notwithstanding that the Crown’s case against him had weaknesses and his conviction after a trial was not assured.
- Mr. Surendran was raised in a home environment that was unstable, through no fault of his own. It is unclear to what extent this contributed to his anti-social behaviour and mental make-up, but I accept that it played some role.
- Although the details are unclear in the absence of medical records and a neurological assessment, he suffered at least a closed head injury as a child. That may have impacted his cognitive skills and his behaviour as he grew older.
- Mr. Surendran acted under provocation. The shooting happened very quickly after, and in response to, Mr. Baker accosting and assaulting him.
- Mr. Surendran’s mother has offered him a place to live and other support on his release from jail.
I have considered all the cases relied on by Crown and defence counsel in their submissions on the sentencing hearing. The decision in R. v. Gill, 2011 ONSC 2598 is particularly noteworthy. The offender was convicted of manslaughter after a trial on a charge of second degree murder. The offence occurred at a party. The offender acted under provocation when he fired multiple shots and killed the deceased immediately after the deceased struck him on the head with a bottle and grabbed him. There was significant post-offence conduct, including the theft of an escape vehicle at gunpoint and the subsequent burning of it. The offender was a drug dealer who habitually carried a gun. He had a prior criminal record including for an assault. He was on bail and bound by a house arrest condition at the time of the shooting, was on probation, and was subject to a weapons prohibition order. Dr. Gojer assessed him as having an anti-social personality disorder and posing a moderate risk of re-offending. The offender was sentenced to ten years in jail.
Conclusion
Mr. Surendran committed a very serious offence by which he took the life of a young man. He did so while armed with a loaded handgun that he carried in pursuit of his illicit activity as a drug dealer. He armed himself in clear defiance of three separate firearms prohibition orders. It is self-evident that if Mr. Surendran had not been armed with a loaded firearm, Mr. Baker might be alive today. Mr. Surendran’s conduct must be denounced, and those who would persist in carrying loaded handguns, particularly for the purpose of drug dealing, must be deterred. In 2011, the trial judge in Gill described the presence of unlawful handguns in the community as a “plague”. That remains true today in the Greater Toronto Area. It must continue to be addressed by the imposition of lengthy jail sentences for offences involving firearms.
Specific deterrence of Mr. Surendran is also important. He has a criminal record that is indicative of someone who chose a life of crime. His previous convictions include significant crimes of violence. It appears that he learned nothing from rehabilitative opportunities offered to him through probation on more than one occasion in the past, and from a penitentiary sentence. He demonstrated his disrespect for court orders imposed to control his behaviour and ensure the safety of the community, including the probation order that was in effect when he killed Mr. Baker.
Mr. Surendran’s prospects of rehabilitation are, at best, uncertain. It is important, however, that he expressed remorse not just through his guilty plea but also in his remarks in the courtroom. It is a hopeful sign that he told Dr. Gojer he would like to work with a psychologist while in custody and to participate in rehabilitative programming. A neurological assessment might well be of benefit in determining his needs. His mother, who is a stable member of the community, is prepared to take him into her home on his release from jail and to support him in taking steps toward legitimate employment.
In all the circumstances of the offence and of Mr. Surendran, including that he pleaded guilty to manslaughter based on provocation, the appropriate sentence is eight years in jail.
Mr. Surendran, please stand. I sentence you to eight years in jail, less credit for pre-sentence custody of 594 days calculated at one and a half to one as 30 months, and an additional four months because of lockdowns. I treat the pre-sentence custody as 34 months. That leaves a sentence to be served of five years and two months.
I make a DNA order, a s. 109 weapons prohibition order for life, a s. 743.21 non-communication order in respect of Amber Porter, and a forfeiture order as requested by Crown counsel. You may be seated.
Is there anything, Mr. Rusonik, Mr. Young, that needs to be clarified?
MR. YOUNG: Not from the Crown.
MR. RUSONIK: No, thank you.
THE COURT: All right. Just give me a moment to endorse the indictment. I have endorsed on the indictment: Mr. Surendran is sentenced for the offence of manslaughter to eight years in jail less credit of 34 months for pre-sentence custody, including lockdowns, leaving a sentence to be served of five years and two months in jail. There is a DNA order, a s. 109 order for life, a s. 743.21 non-communication order in respect of Amber Porter and a forfeiture order. All right.
So, Mister Registrar, we’ll do the paperwork as promptly as we can. Thank you. And thank you, I appreciate counsel coming to Newmarket.
I think Count 2 was addressed previously. Is that your thought?
MR. YOUNG: There was two counts on the indictment.
THE COURT: Yes.
MR. YOUNG: So, the count that hasn’t been dealt with, I think it’s a s. 95 count. That should be withdrawn.
THE COURT: That was done on an earlier occasion. Yes, I checked earlier today. It was done I think at the time the guilty plea was entered perhaps. Thank you all very much.
M A T T E R C O N C L U D E D
Form 2
Certificate of Transcript (Sub-Section 5(2))
Evidence Act
I, Monica Mayer, certify that this document is a true and accurate transcript of the recording of R. v. Sahilan Surendran, in the Superior Court of Justice, held at NEWMARKET, Ontario, on February 18, 2020, taken from Recording No. 4911_401_20200218_08436_30_FUERSTM, which has been certified in Form 1 by D. Letts.