COURT FILE NO.: CR-20-30000096-0000
DATE: 20210105
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: her majesty the queen,
AND:
vykunthan kanthavel, Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Joshua Levy, for the Crown
Robert Tomovski, for the Defendant
DELIVERED at Toronto: January 5, 2021
REASONS FOR DECISION: SENTENCE
[1] Mr. Kanthavel is before me today for sentencing. On November 5, 2020, I convicted him on charges of Aggravated Assault (Count Two), and Dangerous Operation of a Motor Vehicle (Count Four). Although convicted as well of possession of a weapon for a dangerous purpose, a stay of that charge was entered pursuant to R. v. Kienapple at the request of the Crown. I heard sentencing submissions on November 13, 2020 and reserved sentence until this day at the request of the defence and without objection by the Crown.
Circumstances of the Offences
[2] I delivered reasons for judgment on November 5, 2020 that contain a detailed description of the circumstances of the offences which I shall not repeat here. By way of brief summary only, I found that Mr. Kanthavel drove a Mercedes sedan at one, the other or both of the two nearby pedestrians in the vicinity on five separate occasions over a period of less than a minute. Four of those five manoeuvres were characterized by sudden and swift acceleration that I described as “lunges”, the fifth being a slower and deliberate backing-up in the direction of the pedestrians, one of whom was already severely injured. None of these manoeuvres were the product of accident and I rejected any suggestion that self-defence can be considered applicable here.
[3] I was unable to state with certainty how many of those manoeuvres resulted in collisions between the vehicle piloted by Mr. Kanthavel and the victim. The victim of the aggravated assault, Mr. Sajeev Ramachandran, was not impacted on the first of them and was only lightly touched on the second. I found that he was impacted on two of the remaining three manoeuvres, he may also have been impacted by the last one as well and at least one of these last three manoeuvres produced the grievous bodily harm that was the essential element of the aggravated assault charge. The second pedestrian was not struck but was in the path of Mr. Kanthavel’s car and required to flee out of his way as well. In that capacity, she may be considered a victim of Mr. Kanthavel’s dangerous driving.
[4] It is unclear what triggered Mr. Kanthavel’s violent behaviour that night. None of the accounts of the events leading up to the confrontation were particularly reliable and none adequately explain it. There are conflicting accounts of who insulted whom and how. Whatever the trigger may have been, there is no doubt that Mr. Kanthavel decided to use his car as a weapon to threaten or harm both pedestrians and for a period of almost one minute he did so in a manner that was calculated, deliberate and remorseless.
[5] There were two pedestrians in the path of Mr. Kanthavel’s vehicle during each of these aggressive manoeuvres even if it quickly appeared that only one of them – Mr. Ramachandran – was the principal target.
[6] Mr. Ramachandran suffered very serious injuries. His recovery is not yet complete, and I cannot say if ever it will be. He suffered a compound fracture to his left tibia and fibula. I shall discuss his injuries below in further detail when referencing the victim impact statements.
[7] As severe as they were, the injuries sustained could well have been much, much worse. This offence must certainly be placed in the serious end of the spectrum of aggravated assaults and the conduct is clearly at or near the most serious end of the spectrum of dangerous driving cases as well.
Circumstances of the Offender
[8] Mr. Kanthavel is 35 years of age. He is a Canadian citizen born in Sri Lanka. In common with many, he came to Canada as a child brought by parents eager to rescue their children from the ravages of the civil war plaguing Sri Lanka in the 1990’s. He was nine years of age when he came to Canada along with his parents and five sisters.
[9] The family appears to be a close-knit one with Mr. Kanthavel playing an important role in helping to support and aid his aging parents and counsel his siblings. Mr. Kanthavel is married with two daughters, aged fourteen and ten, for whom he is the sole provider.
[10] Mr. Kanthavel has worked in the auto collision and repair business for the last several years. The incident occurred on the premises of his former employer. The two victims were former colleagues of his in that business who opened their own garage next door a few months before the incident. Mr. Kanthavel currently works in a different garage only a few hundred metres away.
[11] Mr. Kanthavel does have a criminal past. In addition to a Youth Court entry from 2004 (entered after his eighteenth birthday), his record includes the following adult entries beginning in 2004 at the age of nineteen:
a. 2004 – possession of counterfeit money, 2 x fraud under, theft under, uttering counterfeit money and obstruction: suspended sentence and one year probation;
b. 2004 – 2 x obstruct peace officer, fail to comply: suspended sentence and one year probation;
c. 2005 – theft, possession of proceeds under, fail to comply: 54 days intermittent plus two years probation;
d. 2007 – dangerous driving and assault peace officer: 5 months conditional, 18 months driving prohibition and one year probation;
e. 2008 – Obstruct peace officer, fail to comply: suspended sentence and 19 months probation; and
f. 2012 – possession of proceeds of crime: $300 fine
[12] A few observations emerge from this history. The longest period of detention ordered was a 54 day intermittent sentence – I have not reproduced the short periods of pre-sentence custody credited in each of the noted sentences. While parallels to the present charges are not predominate, the history does include dangerous driving (2007) and an assault charge (also 2007). The more serious offences all occurred while Mr. Kanthavel was a comparatively young offender (between the ages of nineteen and twenty-three). Finally, there is a fairly considerable gap in the record between 2008 and 2018 interrupted only by a clearly minor offence that resulted in only a $300 fine.
[13] I have not been provided with any further details regarding Mr. Kanthavel’s criminal record. I infer that none of the prior charges were as serious as the ones before me from their nature and the sentences handed down.
[14] Mr. Kanthavel has expressed some regret: regret as to the injuries sustained by Mr. Ramachandran and regret about having come to the garage that night in the first place. His regret appears to me most clearly focused primarily upon the consequences of his actions upon himself. Such regret is a long way from anything like genuine insight into how and why he lost control of his anger to the point that he evidently did. It is a step towards actual remorse but falls short of the real thing. I note as well that Mr. Kanthavel’s choice to depart from the scene of the incident and to go into hiding for two weeks thereafter limits the degree to which I can attribute significant weight to his recent expressions of regret.
Victim Impact Statement
[15] Mr. Ramachandran was the victim of the aggravated assault while both Mr. Ramachandran and his associate Ms. Gayathri Sanmugalingam were victims of the dangerous driving, the latter suffering no physical injuries during the incident.
[16] Mr. Ramachandran’s physical injuries were very serious ones. He suffered compound fractures to his left fibula and tibia. He required five days in hospital and surgery to repair the injuries, including the insertion of a rod into his lower leg. His victim impact statement speculates that he may never fully heal and refers to the psychological treatments he is receiving. At trial, I heard his evidence that he was required to flee from Mr. Kanthavel hopping on one leg with an excruciatingly painful compound fracture preventing him from using his left leg at all. The lasting trauma and pain associated with that can be imagined but not described.
[17] The Crown filed two reports on the sentencing that appear to have been prepared in connection with whatever civil litigation has been brought involving the motor vehicle insurers. The defence objected to these, particularly as they contained some recitations of background facts that are either in dispute or actually contrary to agreed facts in this case. I found no need to dive deeper into that issue as neither report was of any particular utility to me in assessing the impact of this crime on Mr. Ramachandran. Their purpose and utility are in a forum different from this and I gave them no weight.
[18] Ms. Sanmugalingam described the additional duties she had to take on in the garage as a result of Mr. Ramachandran’s absence due to his injuries. She described the psychological trauma she has suffered from being involved in and witnessing this incident.
Position of the parties
Crown
[19] The Crown emphasized the numerous aggravating circumstances of the offence that were outlined in my judgment. Nothing in the facts justified Mr. Kanthavel’s disproportionate response to any perceived slight. There were five separate manoeuvres over 45 seconds. The actions of the accused were calculated, deliberate and remorseless. While rehabilitation prospects are an important factor, Mr. Kanthavel is not a youthful offender. He left the scene of the incident and hid out for two weeks. He has a criminal record which, while somewhat dated, nevertheless includes offences indicative of assaultive behaviour as well as a previous dangerous driving offence. The gravity of the offence, the harm to the victims, the prior criminal record of this offender all require that primary consideration be given to denunciation, deterrence and protection of the public.
[20] The Crown sought a penitentiary term of three years plus ancillary orders of a three year driving prohibition and a s. 109 lifetime firearms prohibition order.
Defence
[21] The defence emphasized the good character references of Mr. Kanthavel and the strong indications of his community and family support. He has always been gainfully employed and is the primary support for his young family. While acknowledging Mr. Kanthavel’s conviction record, the defence urged me to note the significant gaps in it, the relatively short length of his prior periods of incarceration and the fact that most of the offences were of a non-violent type.
[22] The defence recommended a sentence of nine months in respect of the aggravated assault and a concurrent sentence of four months for dangerous driving as well as a term of probation between one and two years in length on terms that would include pursuing any recommended counselling programmes. In terms of ancillary orders, the defence suggested a one-year driving prohibition and only the minimum mandatory order under s. 109 of ten years.
Having regard to the stringent house arrest conditions imposed upon Mr. Kanthavel for a period of two years, the defence also suggested that an appropriate Downes credit would be nine months, resulting in a net sentence of time served plus probation and ancillary orders.
Application of Sentencing Principles
General
[23] Part XXIII of the Criminal Code sets out in considerable detail the sentencing principles that must be pursued by me in fixing a fit and proper sentence. The process is not a cookie-cutter process. A fit and proper sentence does not emerge from the mechanical application of established facts to arid mathematical principles. It is fact-driven and tailored to the particular circumstances of each offender and each offence. It balances the interests of the offender, the community and victims. It is, without doubt, one of the most important tasks laid upon our shoulders as judges.
Gravity of the Offence and degree of responsibility of the offender
[24] Clearly, these offences are very serious ones. While the injuries suffered by Mr. Ramachandran were not in fact life threatening, that was in no way due to any special care taken by Mr. Kanthavel. He deliberately directed a large glass and steel motor vehicle at speed towards an unarmed and unprotected pedestrian on multiple occasions over a short period of time. The injuries suffered by Mr. Ramachandran were grave. The weapon utilized by Mr. Kanthavel – a motor vehicle – is no less capable of inflicting grievous bodily harm than a knife, gun or pair of fists. In the spectrum of aggravated assaults, this must rank towards the more serious end of the scale.
[25] The same comments apply to the dangerous driving conviction which addresses a different but obviously related aspect of Mr. Kanthavel’s behaviour that night even if this offence concerns the manner of driving and the risks entailed by it more than the actual consequences that occurred in fact.
Denunciation, Deterrence and Protection of the Public
[26] It is clear to me that the particular circumstances of these offences as described above, Mr. Kanthavel’s prior record and his degree of responsibility all require that significant weight must be granted to the sentencing objectives of denunciation, deterrence and protection of the public. I propose to do so.
Parity and Proportionality
[27] The Crown provided me with three cases to review as precedents on sentencing. The three selected R. v. Balcha, 2004 CanLII 396; R. v. Dobovina 2015 ONSC 1518 and R. v. McConaghie, 2017 ONCA 306 – were selected because they involved the use of motor vehicles in somewhat analogous circumstances although each presenting with highly distinguishable characteristics as well. The sentence sought by the Crown in this case is beyond the sentences handed down in any of the three cited cases, although arguably well within the range contemplated by the Court of Appeal in McConaghie.
[28] While these precedents were of some use, the broader universe of aggravated assault sentencing cases – particularly cases involving the use of a weapon – would have provided a useful benchmark to consult as well. I found the description – albeit highly generalized – of the low, middle and upper end of the range in the decision of M.A. Code J. in R. v. Tourville, 2011 ONSC 1677 to be a helpful conceptual framework within which to consider the parity principle and the six cases the parties cited to me.
[29] The defence also submitted three cases.
[30] R. v. Pulido, 2010 ONSC 3143 was an aggravated assault case arising out of a bar fight. The offender was similar in age and family circumstances to Mr. Kanthavel with two prior convictions (theft under and assault causing bodily harm) both of which were ten or more years in the past. The offender accepted full responsibility for causing one of the injuries sustained and denied responsibility for another – he was sustained in that latter denial at trial. A 90-day intermittent sentence was handed down.
[31] In R. v. Randhawa, 2020 ONCA 668 a youthful first-time offender had her sentence reduced from 12 months plus probation to suspended plus probation for an aggravated assault with a knife. The circumstances of the offence were unique and involved, among other features drugs (for which the offender had since received treatment) and a perhaps misguided and certainly disproportionate attempt to protect a third party who was at the losing end of a fight.
[32] In R. v. Hearns, 2020 ONSC 2365, Pomerance J. agreed with a joint submission that an offender who had already amassed the equivalent of more than 33 months of pre-sentence custody should be released on time served plus probation following an unprovoked and brutal attack on a vulnerable victim. The case was cited primarily for its comments regarding the impact of the pandemic on sentencing, being a relatively early case in that regard. No evidentiary basis for any particular consideration of the impact of the pandemic upon Mr. Kanthavel has been suggested in this case.
Aggravating Circumstances
[33] As I have indicated, the aggravating circumstances applicable to these offences were described in considerable detail in my reasons for judgment. These include:
a. the repeated nature of Mr. Kanthavel’s actions – there were five separate instances where he caused the automobile driven by him to be aimed at one or the other of the two pedestrians present;
b. the forgoing circumstance underscores the quite deliberate nature of his actions;
c. the risk of grave harm inherent in his actions;
d. the significant injuries in fact suffered by Mr. Ramachandran; and
e. his failure to remain on the scene and render assistance.
[34] The last of these is of course different in kind than the first four which are inherent to the manner in which the offences themselves were committed. I consider the described post-offence conduct to be aggravating but not bearing the same aggravating weight as the others. I disbelieved Mr. Kanthavel’s claim not to have been aware of the injury to Mr. Ramachandran at the time he left the scene of the incident.
Mitigating Circumstances – General
[35] I consider the following circumstances to be worthy of consideration as mitigating circumstances:
a. Lack of planning or premeditation: this was not a planned altercation but one that certainly arose spontaneously. Whatever existing level of conflict or bad blood existed between Mr. Kanthavel and the two victims of these crimes, it was on a very, very low simmer prior to the incident. There was nothing to suggest anything like what happened being in the cards. The fact that these three happened to meet where and when they did was a random twist of fate as was the fact that sparks flew between them to the degree that Mr. Kanthavel determined to respond as violently as he did.
b. Gaps in his criminal record – the most recent conviction (2012) was clearly for a minor matter given the fact that only a small fine was levied. But for that minor matter, Mr. Kanthavel’s problems with the law all appeared to be ascribed to his youth and consigned to the past.
c. Strong family and community ties: I discuss this in further detail below under prospects of rehabilitation.
Mitigating Circumstances – Downes
[36] The Court of Appeal in R. v. Downes, 2006 CanLII 3957 (ON CA) found that stringent release conditions ought to be considered by the sentencing judge as a mitigating factor. Mr. Kanthavel was required to live with his parents (who were also his sureties) and not to leave that residence except in the presence of one of his three sureties.
[37] I have no hard evidence as to the impact of the house release conditions upon Mr. Kanthavel. I have no information about why his house arrest terms required him to live apart from his wife. There is no evidence Mr. Kanthavel opposed this or sought a variation. I shall not speculate on such matters. He was also prohibited from being in the front seat of an automobile except while working and repairing vehicles at his place of employment. A 2019 variation of that order allowed him to drive to and from work and court unaccompanied. Once again, I have no information about the practical impact of such an order on him. He was able to work in a garage at his profession.
[38] While “bail is not jail”, these conditions are certainly relatively harsh release conditions even if the degree of harshness is difficult to assess with precision.
[39] There are two means of approaching Downes credit that are commonly employed. Some judges work out a precise numerical “credit” which they apply to the sentence otherwise determined. I have done so on occasion, but it is not an approach that I find very satisfactory because it suggests an artificial degree of mathematical certainty to the application of mitigating circumstances of which Downes credit is but one. Other judges consider all of the mitigating circumstances together when fashioning a fit and proper sentence and do so in a manner that accounts for all of them on a global basis. That is the approach that I prefer in this case, particularly given the number of factors, both aggravating and mitigating that must go into the mix in determining a proper sentence.
Prospects of Rehabilitation
[40] I was asked to conclude that Mr. Kanthavel presents with very strong prospects of rehabilitation.
[41] Mr. Kanthavel does have the benefit of a very strong, pro-social family, work and community network. I shall not quote at length from the numerous letters of friends, family, employers and co-workers and community leaders all of whom emphasize his generous disposition and the degree to which his whole extended family relies upon him. Throughout most of these is the confident expression of the writers that the incident that has brought Mr. Kanthavel before me for sentencing is not representative of his character and will not be repeated. One letter, from a long-time friend, also urged me to consider the possibility that Mr. Kanthavel’s past and current legal troubles may be connected in some way to trauma suffered during his childhood in Sri Lanka and the conditions of civil war that prevailed at that time.
[42] These are indeed strong and glowing testimonials and they augur very well for Mr. Kanthavel’s future. An offender who has a strong community network to fall back on offers strong prospects for a successful rehabilitation. There are few priorities in the criminal justice system higher than reducing if not eliminating the risk of repeat offenders.
[43] These observations must be tempered with the realization that Mr. Kanthavel does have a moderately lengthy criminal record, albeit one with some significant gaps in it. This same strong pro-social network was not sufficient to deter him from offending on this occasion. That too must be borne in mind.
Conclusion: Fit and Proper Sentence
Custodial Term
[44] I am of the view that the custodial term sought by the Crown is objectively towards the lenient end of the range of sentences that ought properly to be considered in this case. While there are relatively few cases of aggravated assault where the weapon deployed was a motor vehicle, I can see no basis in principle to differentiate between aggravated assault based on the weapon used. Some cases involve nothing but fists, others involve whatever blunt instruments were nearest to hand while still others involve knives or guns. The deliberate inflicting of grievous bodily harm on another in the course of an assault is a serious crime and the circumstances of this offence combined with the degree of responsibility of this offender objectively place it on the more serious end of the spectrum of similar offences.
[45] This is clearly a case where the gravity of the offence, the degree of Mr. Kanthavel’s responsibility, his criminal record and the consequences of the crime require the imposition of an exemplary custodial sentence. Mr. Kanthavel’s strong social network, his excellent prospects of rehabilitation, the spontaneous, unplanned nature of the incident, his dependent family, the number of years he has remained free of legal entanglements and the time he has spent under house arrest conditions all argue for some significant leniency to be shown.
[46] In my view, the Crown’s recommendation of three years already reflects an appropriate weighting for all of these mitigating circumstances and I cannot see that a lower sentence would afford appropriate weight to the aggravating circumstances and the need for an exemplary sentence. I considered imposing a more severe sentence but ultimately declined to do so for the reasons favouring leniency I have just stated.
[47] I am therefore imposing a custodial term of three years in respect of the aggravated assault. There shall also be a twelve-month sentence for dangerous driving which shall be served concurrently. There shall be deducted from this three days of pre-sentence custody credit. I consider that the sentence imposed reflects adequate weight being afforded to the mitigating circumstances I have discussed, including Downes credit, and I shall make no further downward adjustment.
Ancillary Orders
[48] As Mr. Kanthavel has been convicted of a primary designated offence, there shall be a DNA order issued. This being the first time Mr. Kanthavel has been convicted of an offence referenced in s. 109(1)(a) of the Criminal Code, a prohibition order in the terms of s. 109(2) shall issue for a period of ten years following his release from imprisonment in the cases of those items listed in s. 109(2)(a) and for life in the case of those referenced in s. 109(2)(b) of the Criminal Code. No basis to make an order beyond the minimum prescribed by s. 109(2) was advanced in argument and the minimum order appears sufficient in the circumstances of this case. A ten-year firearms prohibition order shall accordingly issue.
[49] A driving prohibition of 18 months was handed down on the occasion of Mr. Kanthavel’s initial dangerous driving conviction. While I do not have the full circumstances of that conviction, it appears to have been a much less serious matter than the present one given the sentence meted out. I am conscious of the limitations a driving prohibition may place upon Mr. Kanthavel’s ability to earn his living. I have no information that his current position as a repair appraiser requires him to drive, nor shall I speculate as to whether he would be allowed to do so by insurance requirements. Such matters are properly in hands other than mine. The seriousness of this crime and the deliberate nature of his decision to use a motor vehicle as a weapon in this case both warrant the imposition of a significant driving prohibition. I also consider that any prohibition must be materially longer than the 18-month prohibition previously handed down for his prior dangerous driving conviction.
[50] A three-year driving prohibition shall issue. The maximum discretionary driving prohibition order available under the terms of the Criminal Code in effect at the time of the offence was ten years, placing this order well below the maximum notwithstanding an offence objectively much nearer the upper end of the scale in terms of gravity.
Disposition
[51] Accordingly, I hereby sentence Mr. Kanthavel as follows:
a. Aggravated Assault (Count Two): a custodial term of three years less three days of pre-sentence custody, a DNA order and a s. 109(2) firearms prohibition order for ten years.
b. Dangerous Driving (Count Four): a custodial sentence of twelve months concurrent to the above plus a driving prohibition of three years following his release from custody.
[52] Orders accordingly.
S.F. Dunphy J.
Date: January 5, 2021