



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanthasamy, 2021 ONCA 32

DATE: 20210120

DOCKET: C68293

Hoy, Lauwers and Nordheimer
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thirumal Kanthasamy

Appellant



Frank
Addario and Wesley Dutcher-Walls, for the appellant

Holly
Loubert, for the respondent

Heard:
in writing

On appeal from the sentence imposed on September
6, 2016 by Justice Michal Fairburn of the Superior Court of Justice.

REASONS FOR DECISION

[1]

On January 17, 2020 this court released its
reasons in appeals advanced by four accused persons arising from a series of tractor
trailer thefts and robberies spanning a period of six months.
[1]
One of those accused was the
appellant, Thirumal Kanthasamy. All four accused appealed their convictions.
Three of the accused also sought leave to appeal their sentences. The appellant
did not. We dismissed the conviction appeals but granted leave to appeal the
sentences and reduced those sentences.

[2]

Subsequent to our decision, the appellant sought
leave to extend the time for leave to appeal his sentence. With the consent of
the Crown, an extension of time was granted.

[3]

The appellant seeks a reduction in his sentence
on two bases. One is that the principle of parity requires a reduction in his
sentence because this court reduced the sentences of his co-accused. The Crown agrees
that such a reduction is appropriate and consents to the appellants sentence
being reduced to six and one-half years from the original sentence of eight and
one-half years.

[4]

The other basis arises from changes in the
appellants personal circumstances in the nearly four years he was on bail
pending appeal, as set out in his fresh evidence application. As a result of
those changes, the appellant seeks a further reduction in his sentence to five
years, or four years after applying the pre-sentence credit of one year awarded
by the trial judge.

[5]

The Crown opposes the introduction of the fresh
evidence on the basis that, if the information had been known at the time of
the original sentencing, it would not have affected the result. In any event,
the Crown says that the fresh evidence, even if accepted, does not justify any
further reduction in the sentence imposed.

[6]

The changes in personal circumstances advanced
by the appellant fall into two categories. One relates to the appellants
health. While there was evidence before the trial judge of some minor health
issues involving the appellant, the appellant now suffers from coronary artery
disease, discovered after a heart attack in 2017. The appellant says that his
time in custody not only increases the consequences of his heart condition,
through stress and alleged delayed access to medications, it also makes him
more susceptible to serious harm should he become infected with COVID-19 while
he is incarcerated.

[7]

The other category relates to the appellants
family situation. The appellant has two children with his estranged wife and a
third with his current common law partner. He also acts as a father figure to
his common law partners son from a previous relationship. Since he was
sentenced, the appellants daughter with his estranged wife has been diagnosed
with cerebral palsy. She requires frequent therapy, which necessitates
assistance from family members and costs money. As a result of his incarceration,
the appellants family is deprived of his assistance in coordinating the
therapy, and of the income he generated to defray the costs of treatment. Also,
since he was sentenced, the appellants common law partner ceased working and
is on long term medical disability at 60% of her former salary. This makes the
loss of the appellants income even more difficult for his common law partner
and the children they share. Further, as a result of his incarceration, the
appellant is unable to support his common law partner as she struggles with her
medical issues.

[8]

We would accept the fresh evidence. It cannot be
said with certainty that this evidence might not have affected the result if it
had been known at the time of sentencing.

[9]

That said, while collateral consequences can
properly impact the sentence imposed, the sentence that is ultimately imposed must
still be proportionate to the gravity of the offence and the degree of
responsibility of the offender:
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R.
739, at para. 14. The three tractor trailer thefts and robberies of which the
appellant was convicted involved the use of what was either a real or imitation
firearm. In our view, a sentence of less than the six and one-half years
consented to by the Crown would not be proportionate to the gravity of the
offences and to the degree of the appellants responsibility.

[10]

Accordingly, we grant leave to appeal sentence,
allow the appeal, and reduce the sentence to six and one-half years (prior to
the credit for pre-sentence custody).

[11]

Before concluding, we note that it is open to
the appellant to seek early parole from the Parole Board of Canada, which has
express statutory authority under the
Corrections and Conditional Release
Act
, S.C. 1992, c. 20, s. 121(1), to grant early parole to an inmate who
is suffering from exceptional circumstances.

Alexandra
Hoy J.A.

P.
Lauwers J.A.

I.V.B.
Nordheimer J.A.





[1]

R. v. Kanthasamy
, 2020
ONCA 25, 149 O.R. (3d) 409, reported as
R.
v. Baskaran
.



