Case File No: CR-19-300000341
DATE: 20210602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KATHIRGAMANATHAN SUPPIAH
Rosemarie Juginovic and Alex Penny for the Crown
Monte MacGregor and Amanda Warth for Kathirgamanathan Suppiah
Reasons for Sentence
MacDonnell, J.
[1] On March 1, 2021 Kathirgamanathan Suppiah appeared before this court for trial on an indictment charging that on December 12, 2017 he committed the second degree murder of his wife, Jayanthy Seevaratnam. With the consent of both Mr. Suppiah and the Attorney General, the trial proceeded without a jury. On May 6, 2021 I found Mr. Suppiah not guilty of murder but guilty of the included offence of manslaughter. He is before the court today for sentencing.
I. The Facts
(a) the circumstances of the offence
[2] As of the date of her death, Jayanthy Seevaratnam had been married to Mr. Suppiah for almost 20 years. They had two teenaged children, Sophia, who was a first-year university student, and Lageevan, who was in high school. The family was living in a three-storey townhouse in a Toronto Community Housing project in Scarborough. Throughout the marriage, Mr. Suppiah had subjected Ms Seevaratnam to verbal, emotional and occasionally physical abuse, particularly when he was intoxicated, which was almost every day.
[3] In the early afternoon of December 12, 2017, Sophia returned home from her classes at the university. When she entered the house, she called out for her mother but received no response. She continued to call out as she made her way up to the second floor and then to the third, but still no one responded. When she reached the third floor and looked to her left, she saw Mr. Suppiah sitting on the floor of the master bedroom, with his legs crossed in front of him, staring at a closet, obviously drunk. She asked where her mother was, and he pointed across the hall to Sophia’s bedroom.
[4] Sophia opened her bedroom door and discovered her mother lying unconscious on her back in the small space between the end of the bed and the bedroom closet. She had obvious signs of trauma to her face and head. Sophia called 911 and at the direction of the 911 operator she performed CPR until the paramedics arrived and took over. Notwithstanding the efforts of Sophia and the paramedics, Ms Seevaratnam remained vital signs absent. She was taken by ambulance to hospital where, at 2:45 p.m., she was pronounced dead.
[5] It was not in dispute that Ms Seevaratnam died from the loss of blood associated with a large laceration to the right lobe of her liver and that the laceration was caused by blunt force trauma to her chest and abdomen. She had also suffered a multiplicity of other injuries: the right side of her face was swollen, she had two black eyes, there were contusions and lacerations over her scalp and ears, including a large bruise on the right side of her head and a patterned injury in the area of her left temple and upper cheek that extended into the hairline. Within that area of injury were three sharp-edged lacerations. There were two injuries to her neck – a bruise to the left front and an abrasion on the right front – and two contusions on her chest. In addition, she had suffered multiple rib fractures. Some of these fractures were attributable to the CPR that had been performed in the attempts to save her life, but a number of them were hemorrhagic – that is, bleeding – which meant that they had occurred while she was alive and thus were not caused by CPR.
[6] As I explained in my reasons for conviction, I am satisfied beyond a reasonable doubt that all of the injuries to Ms Seevaratnam’s face, head, neck, chest, ribs and liver occurred in the course of a beating that was inflicted by the intoxicated defendant in Sophia’s bedroom at some point between 1:00 and 1:35 p.m. on December 12, 2017. Why he launched that assault cannot be determined. Nor can it be determined precisely how the assault unfolded or what he did to fracture Ms Seevaratnam’s ribs and lacerate her liver. The pathologist was unable to say whether the fractures and the laceration were caused by one or more than one impact, but she was clear that they would have required a significant amount of force.
(b) the circumstances of the offender
[7] Mr. Suppiah was 45 years of age at the time of the homicide. He is now 49. Both he and Ms Seevaratnam were born in Sri Lanka and both left that country in the early 1990s due to the civil war and emigrated to Canada. They did not know each other before they came to Canada. In the late 1990s, Ms Seevaratnam’s mother arranged for them to be married.
[8] Mr. Suppiah had completed Grade 9 in Sri Lanka. After arriving in Canada, he attended ESL classes for about three months, but then chose to start working. He was somewhat vague with respect to his employment history. He said that he had worked for a company that made office chairs for about 10 years and that he had also worked for a time driving a truck, although when and for how long was unclear. A few years prior to the death of his wife, he was injured in a motor vehicle collision, and it appears that he had been unemployed since that time. The only income that he brought into the family home were disability benefits flowing from the injuries he had suffered in the collision. Ms Seevaratnam, who was employed as a lunch supervisor at a neighbourhood elementary school, was responsible for managing the family’s income and for paying all the bills and expenses.
[9] The injuries that Mr. Suppiah suffered in the motor vehicle accident may have been part of the explanation for his unemployment, but the more substantial reason was his long-standing and serious addiction to alcohol. He drank to the point of intoxication virtually every day. It was not uncommon for him to get so drunk that by the end of the day he could not make it up the stairs to the bedroom without assistance. Among the predictable consequences of his abuse of alcohol were multiple convictions for drinking and driving offences. Also predictable was the adverse impact that his drinking had on his relationship with his wife and his parenting of the children, especially Sophia, who testified that for years she had been ‘disconnected’ from him.
[10] It is impossible to know the extent to which Mr. Suppiah’s prior abuse of his wife was the product of his alcoholism because it had been many years since he had any meaningful period of sobriety. To his credit, he acknowledged that he is an alcoholic, although his acceptance of the way he generally behaved while intoxicated and the impact that his behaviour had on his family was equivocal at best.
[11] Mr. Suppiah has had health issues over the years, but apart from the fact that he is a diabetic there is very little evidence as to the nature of those issues. He was arrested on December 12, 2017, and as of today he has been in custody at the Toronto East Detention Centre (TEDC) for 1,269 days, just short of three and one-half years. Over the course of that time, there were 10 days on which the TEDC was in full lockdown and 198 days on which there were partial lockdowns. The overwhelming majority of the partial lockdowns (82%) were in the evening hours, between 6 pm and 11 pm. In-person visits and access to the yard are facilitated during the day and thus they were not affected by the evening lockdowns. During lockdown periods, inmates are not completely confined to their cells - the TEDC continues to run “all programs (showers, visits, medical, phone calls etc.) but under a more restrictive protocol”. On occasion, it becomes necessary to house three inmates in cells designed for two. When that occurs, one inmate must sleep on a mattress on the floor. The TEDC records indicate that Mr. Suppiah was housed three to a cell 63 times.
[12] The Covid pandemic has had an impact on the ability of prisoners to have visitors. In-person visits were cancelled between March 16, 2020 and July 6, 2020, and then again from November 23, 2020 until the present time. Since August 2020, prisoners have been able to schedule video visits once a week. The yard program has largely continued to be available throughout the pandemic.
[13] Mr. Suppiah testified about his experience in the TEDC. He claimed that he was assaulted by other inmates on about 5 occasions within the early portion of his time in custody. He said that these assaults did not result in any visible injury and that he did not seek or receive medical attention. He said that he reported the assaults, but that the unit officers told him that he had to make a written complaint, which he could not do due to his lack of facility in English. The information from the Security Manager at the jail, which on consent was received for its truth, is that any time that there is a complaint of assault the unit officer will complete an Occurrence Report and the inmate will be sent to the medical unit. There are no Occurrence Reports in Mr. Suppiah’s file in relation to alleged assaults.
[14] Mr. Suppiah testified that because he is a very large man, he has had trouble sleeping on the bed in his cell. The difficulty has been exacerbated by the lingering effects of a leg injury he suffered in the motor vehicle collision several years ago. I accept his evidence in that respect. Ironically, being occasionally housed three to a cell has been of some benefit to Mr. Suppiah because, as he explained, he finds sleeping on the floor to be more comfortable.
[15] Mr. Suppiah claimed that prior to Covid, he had only gone to the yard about twice a year and that since Covid he has not gone at all. He said that he stopped going because his leg injury made it too difficult to use the stairs and because the staff refused to let him use the elevator. I do not accept that claim, which was refuted by the Security Manager, who stated: “I have spoken to Mr. Suppiah on multiple occasions and he has never once mentioned a concern about not being able to participate in the yard program. If he had difficulty walking and requested to use the elevator, then it would have been facilitated.”
[16] I accept that the restrictions on in-person visits due to the pandemic have had an impact on Mr. Suppiah, although the extent of the impact is unclear. The gist of his evidence appeared to be that apart from his children (and, presumably, his counsel), no one would have visited him whether or not there had been a pandemic. I infer that his daughter Sophia would not have visited in any event because she is estranged from him. I accept, however, that his son, Lageevan, would have visited if he were able to do so.
(c) the impact of the offence on others
[17] Victim impact statements were not provided in this case, but Mr. Suppiah’s son provided a letter in which he stated that he misses his mother and father very much. He said: “My dad is a good man, he always loved us and supported us. He has never let me down… [He] is a helpful person, he always wants to help others, which makes him happy. He always tells me you should always help someone when there is need. He is very positive, and he supported us on our goals.”
(d) [section 726](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[18] In addition to testifying on the sentencing hearing, Mr. Suppiah took the opportunity to address the court pursuant to section 726 of the Criminal Code. He stated that he wanted to apologize to his family and to Ms Seevaratnam’s family for what happened to her and that he was ‘regretful and remorseful’. To be clear, Mr. Suppiah’s regret and remorse was not for his conduct, because, as he had at trial, he maintained that Ms Seevaratnam suffered her fatal injuries in a fall that occurred while she was chasing after him.
[19] Mr. Suppiah also stated that he intends to never drink alcohol again.
II. The Positions of the Parties
[20] On behalf of the Crown, Ms Penny submitted that the appropriate sentence for Mr. Suppiah, leaving aside credit for pre-sentence custody, is 15 years imprisonment (5475 days). She concedes that 1189 of the 1269 days of Mr. Suppiah’s pre-sentence custody is attributable solely to this matter, and that he is entitled to a credit for that time of 1783.5 days (1189 times 1.5), which would leave 3691 days left to be served (just over 10 years).
[21] On behalf of Mr. Suppiah, Mr. MacGregor submitted that the usual range of imprisonment for domestic manslaughter is 7 to 12 years. He submitted that the appropriate sentence for Mr. Suppiah would be a prison term in the lower to middle part of that range, less a credit of 1783.5 days for the time already served. He further submitted that the conditions under which the pretrial custody was served merit a further reduction in the sentence.
III. Discussion
[22] Section 718 of the Criminal Code provides, in part, that 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 that have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.
[23] Section 718.1 provides that whatever sanction is selected “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2(a) provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…” Further, pursuant to s. 718.2(b), a court that imposes a sentence must take into consideration the principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
Mitigating Circumstances
[24] Regrettably, there is not much to be said by way of mitigation in this case. I appreciate that Mr. Suppiah’s son describes him as a good father, but it is difficult to square that assessment with the evidence of Sophia Nathan with respect to Mr. Suppiah’s relationship with her and his mistreatment of her mother. That mistreatment precludes an assertion that the fatal assault was out of character. Further, while Mr. Suppiah’s criminal record for drinking and driving offences is unrelated to violence, its persistence demonstrates that he has been either unwilling or unable to control his behaviour while under the influence of alcohol.
[25] In appropriate circumstances, particularly harsh presentence incarceration conditions can be relevant in the determination of an appropriate sentence: see R. v. Duncan, 2016 ONCA 754, at paragraph 6. The approach to be taken in this regard was clarified recently by Doherty J.A. in R. v. Marshall, 2021 ONCA 344:
The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.[^1]
[26] As I read Justice Doherty’s reasons in Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of pretrial custody is not to be encouraged because it may obscure the fact that the harshness of pretrial custody is only one of many factors that go into the determination of an appropriate sentence: see paragraph 53.
[27] While Mr. Suppiah had a number of complaints about his time at the TEDC, the inconvenience and restrictions caused by the lockdowns was not one of them. In Duncan, the Court of Appeal stated that “in considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.”[^2] In R. v. Omoragbon, 2020 ONCA 336, the Court noted: “In the absence of any adverse effect of the lockdown conditions on [the offender], enhanced credit is not warranted…”[^3] In the circumstances, I do not consider the lockdowns to be a mitigating circumstance in the determination of a sentence for Mr. Suppiah. He is entitled, however, to some mitigation as a result of the dozens of times he was triple-bunked in a cell designed for two persons, and for the loss of access to in-person visits.
Aggravating Circumstances
[28] The most significant aggravating circumstance in this case is that the victim of the homicide was Mr. Suppiah’s spouse. Pursuant to s. 718.2(a)(ii) of the Criminal Code, abuse of a spouse is a statutorily aggravating circumstance. In R. v. Lavallee, [1990] 1 S.C.R. 852, at paragraph 32, Justice Wilson stated: “The gravity, indeed, the tragedy of domestic violence can hardly be overstated”. In R. v. Rahaman, 2008 ONCA 1, at paragraph 46, Justice Watt stated: “In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominant sentencing objectives are denunciation and deterrence… Further, sentences imposed must promote a sense of responsibility in offenders and an acknowledgement of the harm done, not only to the immediate victim, but also to the community at large”.
[29] The seriousness of the assault on Ms Seevaratnam is aggravated by its cowardly nature. Mr. Suppiah was 9 inches taller and more than 200 lbs heavier than his wife, who had been feeling ill for several weeks, and who was lying down to rest in her daughter’s bedroom at the time she was attacked. The fact that the attack occurred within the home and in those circumstances highlights the breach of trust involved in it. I have no doubt that Ms Seevaratnam did nothing that could be reasonably characterized as provocation. The brutality of the beating is also aggravating, as is the fact that at the conclusion of it Mr. Suppiah left his wife crumpled on the floor in the small space between the end of the bed and the closet, making no effort to do anything to obtain the medical intervention that she obviously required.
[30] In some cases, convictions for manslaughter rather than murder result from situations where the defendant meant to cause serious bodily harm and knew that there was a risk of death but did not know that death was likely to result. Such a state of mind comes very close to the state of mind required for murder. Manslaughter cases with that state of mind generally attract sentences at the higher end of the usual range or, indeed, above it: see, for example, R v. Grandine, 2020 ONSC 110, at paras 51-52. I cannot say that that Mr. Suppiah had that state of mind. The evidence of his intoxication and the absence of evidence as to how the assault unfolded have left me with a reasonable doubt not only with respect to whether he knew that death was likely to result from his conduct but also with respect to whether he knew that there was a risk of death.
[31] Mr. Suppiah’s intoxication at the time of the homicide is not a mitigating circumstance. Having said that, if there were evidence of genuine remorse, the fact that he was intoxicated might have been a basis for optimism for his rehabilitation. However, I am unable to discern any indication that he accepts real responsibility for his wife’s death. The regret and remorse that he expressed when he addressed the court was not for his conduct in killing Ms Seevaratnam. He continues to maintain that she suffered her fatal injuries in a fall that occurred while she was chasing him.
[32] A lack of remorse is not ordinarily an aggravating factor in relation to the offence, but “absence of remorse is a relevant factor …with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed…”: R. v. Shah, 2017 ONCA 872, at para. 8. This, in turn, may exacerbate the offender’s risk of re-offending: R. v. J.S., 2018 ONCA 675, at paragraph 82. Similarly, Mr. Suppiah’s prior abuse of his wife is not an aggravating factor in relation to the offence, but it sheds light on his background and his character and thus it is relevant to an assessment of the need for specific deterrence and rehabilitation: R. v. B.M., 2008 ONCA 645, at paragraph 11; R. v. Edwards (2001), 155 C.C.C. (3d) 473, at paragraph 63 (Ont. C.A.). The prior history in this case reveals a longstanding predilection to spousal abuse, which highlights the need to clearly and firmly impress upon Mr. Suppiah the necessity of changing his behaviour.
The Principle of Parity
[33] The principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” necessarily draws a sentencing court to a consideration of sentencing precedents for analogous cases. While sentencing for manslaughter remains quintessentially case-specific, the Ontario Court of Appeal has identified the usual range of sentence for domestic manslaughters to be a term of imprisonment of between 7 and 12 years: see e.g., R. v. Kimpe, 2010 ONCA 812, at paragraphs 14 and 19. That is not to say that a sentence within that range is mandatory. Rather, “the exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender”: R. v. Devany, [2006] O.J. No. 3996, at paragraph 34 (C.A.).
[34] The Crown’s position is that the facts of this case and the circumstances of Mr. Suppiah call for a sentence well above the usual range. In support of that position, the Crown has referred to a number of sentencing precedents. Among them are three decisions in relation to parole ineligibility in cases of domestic murder: R. v. Czibulka, 2011 ONCA 82, R. v. Fernandes, 2018 ONSC 7784, and R. v. Baig, 2019 ONSC 2713. The Crown relies on those cases for the proposition that the abuse of an offender’s spouse in the course of committing an offence is a significant aggravating circumstance on sentencing. It was unnecessary to refer to parole eligibility decisions in murder cases to make that point, which is undisputed. The fact that spousal abuse is a significantly aggravating circumstance is what engages the range of 7-12 years for domestic manslaughter. It is not per se a reason for exceeding that range.
[35] Crown counsel rely on two domestic manslaughter cases in which sentences of 15 years were imposed: R. v. Grandine, supra, and R. v. Loppie, [2006] O.J. No. 1025 (Sup. Ct.). Grandine was quite a different case from the case at bar, in part because of the manner in which the offender came to be tried on an indictment charging him only with manslaughter. In effect, the sentencing judge found him to be guilty of a callous, planned and deliberate manslaughter.[^4] As she pointed out, his moral culpability was on the cusp of culpability for murder.[^5] Loppie, which involved the use of a firearm by a defendant with a prior record for violence, was the product of a joint submission that the sentencing judge accepted without reference to the caselaw.
[36] All of the other domestic manslaughter cases to which the parties have referred or which I have reviewed fall within the 7-12 year range. The Crown did not include any cases from the lower end of the range, but on several occasions the Ontario Court of Appeal has imposed or affirmed sentences of 7 years imprisonment: see, for example, R. v. Roncaioli, 2011 ONCA 378; R. v. Craig (2003), 177 C.C.C. (3d) 321; and R. v. Head (1985), 10 O.A.C. 87. In both R. v. Wood (1988), 43 C.C.C. (3d) 570, and R. v. Soucie, [1970] O.J. No. 764, the Court of Appeal reduced sentences imposed at trial to 8 years. Counsel for Mr. Suppiah has also drawn to my attention the case of R. v. Dupuis, 2014 ONSC 3573, in which Justice Forestell imposed a sentence of 8 years. Two things that those six cases have in common might be noted. First, each of them has aspects that make the offence itself serious: in Roncaioli, the defendant, a physician, injected his wife with anesthetic drugs, breaching her trust in him both as her husband and her treating physician; in Craig, the assault on the victim involved elements of brutality, including attempted strangulation; in Wood, Head and Dupuis, the offender used a knife; in Soucie, the offender used a gun. Second, in each of them there was at least one significant mitigating circumstance, such as the absence of a prior record or prior abusive conduct (Roncaioli, Dupuis), a guilty plea (Wood, Soucie, Craig ), genuine remorse (Craig, Head, Wood, Dupuis), cooperation with the police (Craig), or provocation from the deceased (Soucie). Mr. Suppiah is not in a position to claim the benefit of any of those mitigating circumstances.
[37] The Crown has cited three cases at the upper end of the 7-12 year range: R. v. Klimovich, 2013 ONSC 2888, R. v. Boutilier, [2003] O.J. No. 4515 (Sup. Ct.), and R. v. Devany, supra. I have also considered the reasons of the Court of Appeal in R. v. Jamieson, 2014 ONCA 593. In each of those cases the offender used a weapon, namely a knife. In Klimovich, the offender, who was much bigger and stronger than his wife, stabbed her “well over” 40 times in the face, throat, neck, head and torso. He also inflicted blunt force injury. The trial judge did not accept that the offender was remorseful, but he had no prior record, there was no history of abusive behaviour, there was some evidence that he had been provoked, and he had called 911. The judge imposed a sentence of 11 years. In Boutilier, the offender, unprovoked, stabbed his common law wife twice in the abdomen with a butcher knife as she was sitting in a kitchen chair. He was ‘blind drunk’ at the time. He pleaded guilty and he was remorseful. However, he had a prior record for violence. The trial judge imposed a sentence of 12 years. In Devany, the offender stabbed his landlady 107 times while he was intoxicated. He had no prior record. The trial judge imposed a sentence of 11 years. In Jamieson, the offender inflicted a serious life-threatening stab wound to the abdomen of his spouse and then went partying, effectively leaving her to die. He had a serious criminal record which included convictions for domestic abuse, two of which involved the victim, and he committed this offence while subject to a court order not to associate with her. The Court of Appeal affirmed a sentence of 12 years imprisonment.
[38] Three cases relied upon by the Crown fall into the middle of the range: R. v. Kimpe, 2010 ONCA 812, R. v. Campsall, 2020 ONSC 4681, and R. v. Sun, 2020 ONSC 3806. In Kimpe the offender strangled his common law wife – a mechanism of death that carries a high degree of moral culpability. The offence occurred within their home. He then set fire to the house. There was evidence that he had been provoked, he was extremely remorseful, he had offered to plead guilty to manslaughter, he had been a hard worker, and he was effectively a first offender. The sentence of 10 years imposed by the trial judge was upheld by the Court of Appeal, although its conclusion that the sentence was “not clearly unreasonable” might be seen as something less than a firm endorsement of that number. In Campsall, the offender strangled the victim with a ligature, which the sentencing judge described as “a particularly cruel form of death”. He then tried to dismember her body. There was evidence of prior abuse and he was on probation arising from that prior abuse. However, he was remorseful, and he pleaded guilty. He received a term of imprisonment of 9 years. In Sun, the offender strangled his wife after inflicting significant blunt force trauma to her head with a claw hammer – causing, among a multitude of other injures, five separate skull fractures. There was no prior history of abuse, the offender had no criminal record, and he was remorseful. The trial judge imposed a sentence of 9 years.
[39] The Crown’s position that the sentences imposed in Klimovich, Boutilier, Devany, Kimpe, Campsall and Sun, all of which were within the 7 to 12 year range, support a sentence above the range for Mr. Suppiah rests essentially on two propositions. The first is that the offenders in each of those cases could do something that Mr. Suppiah cannot, namely point to one or more circumstances of mitigation, such as remorse, a guilty plea, a clean criminal record or the absence of prior abuse. The second is that in none of those cases were the circumstances of the homicide more egregious than those of this case. It follows, the Crown argues, that on a proper application of the principle of parity the sentence for Mr. Suppiah should be greater than was imposed in any of those cases.
[40] I agree with the first of those propositions, but I reject the second. Drawing distinctions with respect to the relative gravity of the underlying conduct in manslaughter cases is an odious exercise, but it is a necessary one. The principles of proportionality and parity require it. An acknowledgment that the conduct of the offender in most if not all of the cases relied on by the Crown – for example, the 107 stab wounds in Devany, the more than 40 stab wounds in Klimovich, the multiple blows to the skull with a claw hammer followed by strangulation in Sun, the strangulation followed by attempted dismemberment in Campsall – was worse than the conduct of Mr. Suppiah does not require that the gravity and brutality of what he did be diminished. It simply assists in locating his conduct on the spectrum of unlawful, dangerous and often brutal conduct that can underlie a conviction for manslaughter. In my respectful view, the Crown’s position that in none of Klimovich, Boutilier, Devany, Kimpe, Campsall or Sun was the underlying conduct further along that spectrum than the conduct of Mr. Suppiah is unreasonable. I do not accept that those cases support a sentence outside of the usual range.
IV. Disposition
[41] Taking into account the aggravating and mitigating circumstances of this case, and the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, I was initially of the view that a fit sentence for Mr. Suppiah would be 10 years imprisonment. However, I am persuaded that a modest adjustment of that number is called for in light of the conditions of his pre-sentence custody. I conclude, therefore, that the appropriate sentence is a term of imprisonment of 9½ years.
[42] Mr. Suppiah has been in custody since December 12, 2017, 1269 days ago. While in custody, he was convicted of driving while disqualified and other offences. After crediting 80 days of his time in custody to those matters, the trial judge suspended the passing of sentence. Deducting those 80 days from the overall total leaves 1189 days attributable solely to this case. The parties agree that he is entitled to a credit of 1.5 days for each of those days, which amounts to 1783.5 days.
[43] A sentence of 9½ years would be 3467.5 days. Subtracting the credit for presentence custody leaves 1684 days to be served. Therefore, the sentence I now impose is a term of imprisonment of 1684 days (approximately 4 years and 7½ months).
[44] Because Mr. Suppiah has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), the prohibition in relation to any prohibited firearm, weapon, ammunition or device, and any restricted firearm is for life. The prohibition in relation to any other firearm, cross-bow, explosive substance, ammunition and restricted weapon is for a minimum of 10 years following Mr. Suppiah’s release from prison. No weapon was involved in this case, and there is no indication that Mr. Suppiah has ever been in possession of a weapon. I will leave the discretionary portion of the s. 109 order at 10 years.
[45] Manslaughter is a primary designated offence within the meaning of s. 487.04, paragraph (a) of the Criminal Code and accordingly a DNA order is mandatory. Therefore, I direct that Mr. Suppiah provide a sample of his DNA.
MacDonnell, J.
Released: June 2, 2021
[^1]: at paragraph 52 [^2]: at paragraph 6 [^3]: at paragraph 32 [^4]: At paragraph 48 [^5]: At paragraph 51