COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanthasamy, 2021 ONCA 32

DATE: 20210120
DOCKET: C68293

2021 ONCA 32 (CanLII)

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
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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

2021 ONCA 32 (CanLII)

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 appellant’s 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 appellant’s 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.

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

2021 ONCA 32 (CanLII)

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 appellant’s 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 appellant’s 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 partner’s son from a

previous relationship. Since he was sentenced, the appellant’s 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 appellant’s family is deprived of his assistance in

coordinating the therapy, and of the income he generated to defray the costs of
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treatment. Also, since he was sentenced, the appellant’s common law partner

ceased working and is on long term medical disability at 60% of her former salary.

2021 ONCA 32 (CanLII)

This makes the loss of the appellant’s 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 appellant’s 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).
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[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

2021 ONCA 32 (CanLII)

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.”