COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baskaran, 2020 ONCA 25

DATE: 20200117

DOCKET: C62607 & C62608 & C62614 & C62652

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

DOCKET: C62607

BETWEEN

Her Majesty the Queen

Respondent

and

Majurathan Baskaran

Appellant

DOCKET: C62608

AND BETWEEN

Her Majesty the Queen

Respondent

and

Thirumal Kanthasamy

Appellant

DOCKET: C62614

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jananthan Kanagasivam

Appellant

DOCKET: C62652

AND BETWEEN

Her Majesty the Queen

Respondent

and

Srimoorthy Pathmanathan

Appellant

Daisy McCabe-Lokos, for the appellant Majurathan
    Baskaran

Cate Martell, for the appellant Thirumal Kanthasamy

Michael Dineen, for the appellant Jananthan Kanagasivam

Frank Addario and Julia Kindrachuk, for the appellant Srimoorthy
    Pathmanathan

Holly Loubert and Kathleen Doherty, for the respondent

Heard: December 12, 2019

On appeal from the convictions entered by Justice Michal
    Fairburn of the Superior Court of Justice, sitting with a jury, on March 18,
    2016 (C62607, C62608, C62614 & C62652), and from the sentences imposed on September
    6, 2016 (C62607, C62614 & C62652).

Nordheimer J.A.:

A.

Overview

[1]

These appeals arise from convictions that stem from a series of tractor
    trailer thefts and robberies spanning a period of six months. Majurathan
    Baskaran, Thirumal Kanthasamy, Jananthan Kanagasivam and Srimoorthy Pathmanathan
    appeal from their convictions on various counts of theft over $5,000, robbery,
    kidnapping, use imitation firearm and possession of stolen property. All four
    appellants challenge the trial judges ruling respecting a production order for
    cell phone tower records and her ruling permitting count to count similar act
    evidence. Mr. Baskaran and Mr. Kanthasamy challenge the trial judges s. 24(2) analysis
    with respect to two separate production orders that the Crown conceded had
    breached their rights under s. 8 of the
Canadian Charter of Rights and
    Freedoms
. Mr. Kanthasamy also challenges his convictions on two counts of
    possession of property obtained by crime. Finally, Mr. Baskaran, Mr.
    Kanagasivam and Mr. Pathmanathan seek leave to appeal the sentences imposed on
    them.

[2]

I would dismiss the conviction appeals. The trial judge made no
    reviewable error in her ruling respecting the production order for the cell
    phone tower data. Nor did the trial judge err in her similar act evidence
    ruling or in her s. 24(2) analysis. The guilty verdicts rendered by the jury
    against Mr. Kanthasamy in respect of the possession charges were not
    unreasonable and this ground of appeal also fails.

[3]

I would grant leave to appeal sentence to Mr. Baskaran, Mr. Kanagasivam
    and Mr. Pathmanathan, and would allow their sentence appeals. The trial judge
    erred in her comparison of these offences to home invasion robberies and, in
    the case of Mr. Pathmanathan, erred in her application of the parity principle.
    Their sentences must be reduced as a consequence.

B.

Background

[4]

The offences arise out of a number of thefts and robberies of tractor
    trailers that occurred between March 2009 and August 2009. The robberies
    involved a group of men who stole loaded trailers containing valuable products
    of different types. During many of the robberies, either the driver of the
    truck connected to the trailer, or a security guard working at the yard where
    the trailer was located, was confined and held. The theory of the Crown was
    that all of these robberies were committed by the same criminal group, although
    membership in the group varied from robbery to robbery.

[5]

The first theft occurred on March 13, 2009. A second occurred on May 2,
    2009, this time involving kidnapping and robbery, followed by a robbery on May
    12, 2009. The police investigating the May 12, 2009 robbery believed that the
    driver of the truck that was stolen had been followed for some time before he
    was confronted, held, and his truck stolen. Based on video footage, the police
    believed that there were at least two vehicles and five men involved in
    following the truck and in the resulting robbery. The police further believed
    that these individuals likely used cell phones to stay in touch with each other
    as they followed the truck. Consequently, the police sought a production order
    for cell phone records from certain cell towers that were along the route that
    the truck had taken. Put simply, they sought a so-called tower dump order.

[6]

Specifically, the police sought an order in the following terms:

All records pertaining to cellular calls through the cellular
    tower #27111 and tower #27217 of Rogers Communications Inc. during the time
    period 6:15 am on May 12, 2009 and 6:55 am on May 12, 2009.

All records pertaining to cellular calls through the cellular
    tower #26952 and tower #26958 of Rogers Communications Inc. during the time
    period 7:25 am on May 12, 2009 and 7:35 am on May 12, 2009.

All records pertaining to cellular calls through the cellular
    tower #38993 and tower #38999 of Rogers Communications Inc. during the time period
    8:25 am on May 12, 2009 and 8:40 am on May 12, 2009.

All records pertaining to cellular calls through the cellular
    tower #38993 and tower #38999 of Rogers Communications Inc. during the time
    period 8:30 am on May 5, 2009 and 8:50 am on May 5, 2009.

[7]

The order specified that the sought records shall include all
    subscriber records relevant during the time period of the requested records,
    including start or initiation of service and end or termination of service
    dates when the currently registered subscriber is different from the subscriber
    registered during the requested time period.

[8]

The police obtained this order on June 7, 2009 (the June production
    order). As a result of information received from the June production order,
    the police were able to identify Mr. Pathmanathan, along with others, as
    possibly being involved in the May 12, 2009 robbery. The police sought and
    obtained a further production order in August 2009 relating to three phone
    numbers identified from the June production order.

[9]

Mr. Kanthasamy and Mr. Baskaran, along with others, were arrested on
    August 28, 2009. Cell phones were seized from Mr. Kanthasamy and Mr. Baskaran
    incident to their arrests. After the arrests, the police obtained two further
    production orders  one in September 2009 and one in November 2009. These
    production orders were obtained, at least in part, based on improper searches conducted
    by a police officer of the phones seized from Mr. Kanthasamy and Mr. Baskaran. The
    Crown conceded that, once the improperly obtained information was excised from
    the Information to Obtain (ITO) for the September and November production
    orders, those orders could not have properly issued. The question then became
    whether the information obtained from those orders should be excluded from the
    evidence, pursuant to s. 24(2) of the
Charter
. The trial judge found
    that it should not be excluded.

[10]

The trial proceeded before a jury over a period of approximately 60 days
    from late 2015 into early 2016. The jury eventually returned with 61 verdicts.
    Prior to trial, four other accused pleaded guilty to their involvement in the
    robberies. Three of them testified at the trial.

C.

Analysis

[11]

The appellants raise two common grounds of appeal. One is with respect
    to the June production order and the other is with respect to the count to
    count similar act ruling. I will deal with the June production order first.

(1)

The June Production Order

[12]

The appellants say that the June production order should not have issued
    because (i) there were insufficient grounds for it to be granted and (ii) the
    order was overbroad. As a result, the seizure of the records infringed s. 8 of
    the
Charter
. The trial judge rejected both of these arguments. I do as
    well.

(a)

There Were Sufficient Grounds to Grant the June Production Order

[13]

The trial judge gave detailed reasons for her conclusions. The
    appellants have failed to establish any error in those reasons. The appellants
    contend that the police had nothing more than speculation that cell phones were
    being used by the perpetrators in their efforts to follow the truck and that
    speculation was insufficient to provide a proper foundation for the granting of
    the June production order. In contrast, the trial judge found that it was an
    available common sense inference arising from the facts that cell phones were
    likely being used so that the perpetrators could keep in contact with each
    other. That common sense inference provided the necessary foundation, along
    with other evidence, for the June production order to be issued.

[14]

There can be no realistic challenge to the trial judges conclusion on
    this point. Given that there were multiple persons keeping an eye on this truck
    in order to determine its route, so that they could subsequently confront the
    driver and steal the truck, the practical reality is that the perpetrators
    would need to keep in contact with each other. While the appellants suggest
    that they could have used two-way radios, even in 2009 it would be much more
    common for persons to have, and to use, cell phones for this purpose. I note,
    on that point, that in a case just two years later that, on its facts, is very
    similar to this one, this court referred to cell phone use as ubiquitous:
R.
    v. Mahmood
, 2011 ONCA 693, 107 O.R. (3d) 641 (
Mahmood

(ONCA)
),
    at para. 1, leave to appeal refused, [2012] S.C.C.A. No. 111.

[15]

In any event, the mere possibility that the perpetrators could have used
    two-way radios does not negate the possibility that cell phones were used. The
    issue is whether the use of cell phones was a common sense inference. The trial
    judge found that it was. I agree. The appellants point to the fact that the
    trial judge in
Mahmood
reached a contrary conclusion:
R. v.
    Mahmood
(2008), 236 C.C.C. (3d) 3 (Ont. S.C.) (
Mahmood

(SC)
),
    at paras. 90, 91. This court is not bound by that decision, but, in any event,
    the fact that two judges reached different conclusions on this issue does not,
    in and of itself, establish that one of the decisions is wrong. The trial judge
    in
Mahmood (SC)
was faced with a very different factual situation than
    was the trial judge here.

[16]

The appellants also quarrel with the trial judges reliance on the
    evidence of a police surveillance officer, contained within the ITO, regarding
    his surveillance experience. In fact, it is not clear that the trial judge
    placed any significant reliance on this evidence, other than to mention it. In any
    event, all that evidence did was confirm what would be a common sense
    understanding, that is, if multiple people in different vehicles are attempting
    to follow someone, there is a need for them to keep in touch with each other in
    furtherance of their objective. The police do this to maintain surveillance.
    The perpetrators were engaged in the same exercise.

[17]

In the end result, there were ample grounds for the June production
    order to issue.

(b)

The June Production Order Was Not Overbroad

[18]

The appellants also challenge the June production order on the basis
    that it was overbroad. They say that, by its terms, the order captured the
    private information of a great many innocent persons. The appellants say that
    the capture of all of this information cannot be justified. It involved too
    great an invasion of the privacy of innocent members of the public and
    constituted an unreasonable search or seizure. Consequently, the order resulted
    in an infringement of s. 8 of the
Charter
.

[19]

As the trial judge identified, there is a fatal flaw with this challenge
    to the seizure of records pursuant to the June production order. The actual
    information obtained by the police, pursuant to the order, was never placed in
    evidence before the trial judge. It was therefore impossible for the trial
    judge to evaluate how much information was actually obtained by the police, and
    the extent of that information. This court is left at the same disadvantage.

[20]

For example, in argument, the appellants contended that the police obtained
    financial information for everyone whose phone numbers appeared in the records.
    I do not know that to be the case because I do not have either the information that
    was actually produced or evidence about the information actually produced. Further,
    it is not clear that [a]ll records pertaining to cellular calls through the
    specified cell towers during the specified times that were relevant would
    have been interpreted, by the telco that received the production order, as
    including financial records, and, if so, what financial records. But this
    should not be a matter of speculation. If the appellants wished to advance the
    overbreadth argument on that basis, they bore the burden of putting before the
    trial judge the actual information that was produced to the police as the
    evidentiary foundation for their position. This they failed to do.
    Consequently, there was no basis for the trial judge to properly determine
    whether this had occurred. It follows that there is no basis for this court to
    make that determination either.

[21]

On this point, the appellants submit that the production order is overbroad
    on its face. I do not agree. The production order is narrow in its scope. It
    requires records from six towers, and covers only two dates. The order is
    narrowly circumscribed by time depending on the towers involved: 40 minutes, 10
    minutes, 15 minutes and 20 minutes, respectively. The police were responsible by
    limiting their request in an effort to avoid overbreadth. That said, it is
    inevitable, when an order of this nature is sought, that some information of
    innocent persons will be captured by any order that is ultimately granted. The
    task for the issuing justice is to limit that collection. In my view, the
    police took a responsible approach to that issue in terms of the order that
    they sought in this case.

[22]

On this point, the appellants place great reliance on the decision in
R.
    v. Thompson
, [1990] 2 S.C.R. 1111. In my view, that decision does not assist
    the appellants position. Indeed, that decision recognizes the reality that I
    have just noted, that is, that authorizations will inevitably intrude on the
    privacy interests of innocent persons. As Sopinka J. said, at pp. 1143-44:

In any authorization there is the possibility of invasion of
    privacy of innocent third parties. For instance, a wiretap placed on the home
    telephone of a target will record communications by other members of the
    household. This is an unfortunate cost of electronic surveillance. But it is
    one which Parliament has obviously judged is justified in appropriate
    circumstances in the investigation of serious crime.

[23]

The issue is whether that inevitable intrusion has been limited to an
    acceptable degree. Put another way, is the search no more intrusive than is
    reasonably necessary to achieve its objective?:
R. v. Vu
, 2013 SCC 60,
    [2013] S.C.R. 657 at para. 22. As I have said, I agree with the trial judge
    that the June production order was carefully limited in this case. I also agree
    with the trial judge that the appellants bore the onus of establishing their
    overbreadth challenge to the production order. Their failure to put before the
    court the actual information that was obtained was fatal to that challenge.

[24]

I therefore reject the overbreadth ground of attack on the June
    production order.

[25]

Nevertheless, I accept, admittedly with the benefit of hindsight, that the
    production order itself could have been more carefully drafted. In particular,
    the records requested could have been more clearly defined. It would be a better
    practice, in the future, for any production order to outline specifically the
    records being sought so that there is no confusion between what the police seek,
    and what the recipient provides. The issuing justice should ensure that this is
    done.

(c)

The Challenge to the August Production Order Also Fails

[26]

The appellants challenge to the August production order stands or falls
    based on the result respecting the June production order. Given my conclusion
    on the June production order, the challenge to the August production order also
    fails.

(d)

The Records Would Not be Excluded Pursuant to s. 24(2)

[27]

The appellants also take issue with the trial judges s. 24(2) analysis.
    It is technically not necessary to address this issue in light of my conclusion
    rejecting the challenge to the June production order. However, like the trial
    judge, I address it in the interests of completeness.

[28]

The seriousness of the
Charter
-infringing state conduct was not
    high. The police obtained a judicial authorization to obtain the information.
    They acted in good faith. They had a reasonable belief that cell phones had
    been used by the perpetrators, and they made reasonable efforts to minimize the
    production of private information of innocent parties, to which I have referred
    above.

[29]

The impact of the breach on the
Charter
-protected interests of
    the accused, while not insignificant, was moderate, given both the information
    that was obtained and the information that it, in turn, revealed. The impact
    was certainly not as high as it might be where other private information is
    obtained by the police. In addition, this court has recognized that the privacy
    interests in cell phone records is one that is significantly reduced:
Mahmood
    (ONCA)
, at para. 131.

[30]

I reiterate, however, that this evaluation depends on the precise nature
    of the information obtained and the corresponding information that is revealed.
    In the absence of the actual records produced pursuant to the production order,
    there is no basis to distinguish the records in this case from the usual cell
    phone records. In light of my conclusion, it is unnecessary to address the
    respondents argument that the records might have been obtainable under s.
    492.2 of the
Criminal Code
, that carries a reduced threshold.

[31]

The information obtained pursuant to the June production order was real
    evidence that was central to the investigation, and the identification of the
    persons involved. It was central to the prosecution of these serious offences.
    Society has a clear interest in the adjudication of this case on its merits.

[32]

In my view, the first and third factors from
R. v. Grant,
2009
    SCC 32, [2009] 2 S.C.R. 353, at para. 61, weigh strongly in favour of
    admission. The second factor weighs against admission but only weakly. A proper
    weighing of the factors as a whole supports the conclusion that the evidence should
    not have been excluded. Again, I agree with the trial judges conclusion on
    this point.

(2)

Count to Count Similar Act Ruling

[33]

The appellants second joint ground of appeal is their challenge to the
    trial judges ruling that the jury could, in deciding a particular count under
    which a particular appellant was charged, use the evidence on other counts with
    which that appellant was also charged to assist them. This ruling, reported as
R.
    v. Kanagasivam
, 2016 ONSC 2548 (
Kanagasivam II)
, was limited to
    certain counts related to kidnapping, robbery and use imitation firearm on seven
    of the 11 offence dates.

[34]

The central issue in this case was identity. As stated by Watt J.A. in
R. v. Durant
, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 90, the use of
    similar act evidence to establish identity generally requires an analysis of
    the similarities between the acts:

In the usual course where evidence of similar acts is proposed
    for admission in proof of a perpetrator's identity, the trial judge should
    review the manner in which the similar acts were committed, that is to say,
    whether the allegedly similar acts involve a unique trademark or reveal a
    number of significant similarities. This review enables the trial judge to
    determine whether the alleged similar acts were likely all committed by the
    same person.

[35]

The appellants argue that the trial judge erred in concluding that it
    was likely that the same group carried out each of the offences. In her reasons
    on this issue, the trial judge outlined 17 items of similarity, at para. 127:

·

The offences were accomplished with the theft of a truck.

·

The offences involved the theft of at least one trailer and load.

·

The kidnapping victims were all placed in the back sleeper areas
    of the trucks.

·

With one exception, two men got into the back sleeper areas of
    the trucks with each of the victims.

·

The victims were driven around in the back sleeper areas of the
    trucks.

·

With one exception, three or four people were inside the trucks.

·

The assailants used a language other than English.

·

The kidnapping victims were bound.

·

With one exception, each victim was bound in the sleeper areas of
    the trucks when they were abandoned.

·

With two exceptions, each kidnapping victim was the driver of the
    truck that was stolen.

·

The drivers in each incident generally knew how to operate a
    large truck.

·

There were no serious injuries.

·

With one exception, the kidnapping victims testified to the use
    or threatened use of a gun.

·

With one exception, the kidnapping victims had personal property
    taken from them.

·

The kidnapping victims were taken during the evening or as it was
    getting dark out.

·

In each case an effort was made to obstruct the kidnapping
    victims from seeing the assailants.

·

The loads that were taken were valuable.

[36]

I accept the appellants point that some of these similarities are
    generic, that is, they would be present in any case where these offences are
    committed. For example, the fact that the goods stolen are valuable. It is
    unlikely that robbers would steal worthless items. Another is the fact that a
    truck was stolen in each case. It is, of course, difficult to steal a transport
    trailer without a truck to move it.

[37]

However, there were other similarities that were more unique. These
    included that the perpetrators spoke in a language other than English. Another
    was that drivers or security guards were kidnapped and driven around during the
    course of the robberies. Yet another was that the drivers or security guards were
    all robbed of personal effects. Further, a gun was used, or its use was
    intimated, in all but one robbery. Lastly, all but one of the acts were linked
    to the same individual  the ringleader.

[38]

The overall point of this exercise is to show that the objective
    probability of coincidence, given all of the items of similarity, together with
    the connections among the individuals, is low. Thus, it is permissible to infer
    that the same group committed the acts:
R. v. Perrier
, 2004 SCC 56,
    [2004] 3 S.C.R. 228, at para. 31.

[39]

On this point, when considering similar act evidence in a context such
    as this, one should avoid placing too much emphasis on some of the language
    used, in various authorities, to describe the requisite degree of similarity,
    such as signature or fingerprints. What is required is that the trial judge
    be satisfied that there is the high degree of similarity needed to reach the
    necessary conclusion that the alleged similar acts were, more likely than not, all
    committed by the same group:
Perrier
, at para. 21. That sufficient
    degree is often characterized in different language. For example, it is
    sometimes characterized as striking. But the use of such adjectives does not
    change the nature of the inquiry. Using a word such as striking simply means
    that the circumstances stand out to an independent observer.

[40]

In my view, the trial judge was correct in concluding that the various
    robberies were sufficiently similar, based on the items of similarity that the
    trial judge mentioned, and which I have set out above. While some of those
    items can be challenged individually in terms of whether their similarity would
    suggest conduct by the same actors, that is not the proper approach. The proper
    approach is whether the similarities, viewed collectively, are sufficient to establish
    on a balance of probabilities that they are the product of the same actors. I
    have no difficulty in agreeing with the trial judge that, in this case, they are.
    The likelihood that these robberies occurred randomly at the instance of entirely
    different individuals, or groups of individuals, is remote. As Binnie J. noted
    in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 45: Coincidence,
    as an explanation, has its limitations.

[41]

The appellants also complain that the trial judge failed to consider for
    each appellant whether there was sufficient similarity between the offences with
    which that specific appellant was charged, and instead made this determination
    globally. This argument fails. The trial judge was not required to lay out her
    analysis in the manner suggested by the appellants. It is clear from her
    reasons that she was satisfied that each offence for which the Crown sought to
    admit count to count similar act evidence was committed by the same group. I
    note, in particular, that many of the similarities identified, including those
    identified by the trial judge as being the most striking, were present in
all
occurrences. Further, her jury charge, with which
    the appellants take no objection, made it clear to the jury that they were to
    assess similarity accused by accused. I see no error here.

[42]

Accordingly, I do not see any error in the trial judges analysis and
    this ground of appeal fails.

(3)

The September and November Production Orders

[43]

I now turn to the two individual grounds of appeal. The first of those
    is the appeal by Mr. Baskaran and Mr. Kanthasamy regarding the trial judges
    decision to admit the evidence gathered under the September and November
    production orders. Those orders were obtained based on an illegal search of the
    cell phones of Mr. Baskaran and Mr. Kanthasamy after the two had been arrested.

[44]

These appellants say that the trial judge took too narrow a view of the information
    obtained by those production orders and this resulted in her engaging in a
    flawed s. 24(2) analysis. In particular, these appellants complain that the
    trial judge underestimated the impact on their rights arising from the
    information that was revealed to the police as a consequence of the information
    that they obtained from the flawed production orders. I do not agree.

[45]

Central to these appellants complaint is their reliance on the decision
    in
R. v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, which, they
    contend, ought to have caused the trial judge to take a more serious view of
    the information obtained through the flawed orders and thus reach a different
    conclusion on the
Grant
factors. On this point, I agree with the Crown
    that the privacy interest arising from a customers name, address and telephone
    number information (CNA) is not unidimensional. It depends on the context in
    which the CNA is obtained, the use to which it will be put, and the information
    it reveals.

[46]

The multidimensional nature of the privacy interests associated with CNA
    is the reason why the interests engaged in this case are not comparable to the
    interests that were engaged in
Spencer
and why these two cases do not direct
    similar results. This distinction was noted by Cromwell J. in
Spencer
,
    at para. 47:

In my view, the identity of a person linked to their use of the
    Internet must be recognized as giving rise to a privacy interest beyond that
    inherent in the person's name, address and telephone number found in the
    subscriber information.

[47]

There was no corresponding invasion of any individuals anonymity in
    this case of the type that was involved in
Spencer
. The CNA here carried
    with it a reduced expectation of privacy  a fact that the trial judge also relied
    upon. The fact that the CNA revealed the location of these appellants out in
    the public at a particular point in time does not give rise to the type of
    breach of anonymity involved by the accused in
Spencer
regarding his
    activities in his own home. The infringement of privacy is of an entirely
    different, and lesser, magnitude.

[48]

The trial judge properly considered the impact and reached the same
    conclusion. I do not see any error in her conclusion on the proper application
    of s. 24(2).

(4)

Possession of Property Convictions

[49]

Mr. Kanthasamy appeals his convictions on two counts of possession of
    property obtained by crime. These convictions relate to the discovery in a
    warehouse of a load of LG appliances stolen on August 11, 2009 and a load of
    cigarettes stolen on August 27, 2009. Mr. Kanthasamy was not connected to the
    actual robberies of these goods. Rather, he was connected to the possession of
    them by his presence outside of the warehouse when the appellants and others
    were arrested, his presence at the warehouse the previous evening in the
    company of the ringleader of the robberies, and the presence of certain phone
    calls between him and the person who had rented the warehouse space in which
    the stolen goods were located.

[50]

Mr. Kanthasamy says that the evidence showed that the ringleader of
    these robberies would hire people, such as Mr. Kanthasamy, on an
ad hoc
basis to assist in committing the robberies. He says that the evidence in this
    case shows nothing more than that he may have been hired to help move these
    stolen goods. There appears to be no dispute that this was the reason why all
    of these persons were present at the warehouse that particular evening when the
    arrests occurred. The evidence revealed that they had to move the stolen goods
    to another location.

[51]

In his submissions, Mr. Kanthasamy ignores the salient fact that this
    was a trial before a jury. It was the jurys job to decide whether they were
    satisfied, on the evidence and beyond a reasonable doubt, that Mr. Kanthasamy
    was guilty of these offences. No issue is taken with the instructions that the
    trial judge gave with respect to these offences  or otherwise for that matter.

[52]

In light of that reality, Mr. Kanthasamys argument has to rise to the
    level of saying that the verdicts were unreasonable. To that end, he would have
    to establish that there was no evidence upon which this properly instructed
    jury, acting judicially, could reasonably have rendered these verdicts.

[53]

I note that this was an issue upon which Mr. Kanthasamy brought a
    directed verdict application. That application was dismissed, with reasons
    reported at
R. v. Kanagasivam
, 2016 ONSC 2545 (
Kanagasivam I
).
    In dismissing the application, the trial judge referred to the above evidence
    and concluded, at para. 106:

The jury could infer from all of this evidence that the men who
    had met earlier, who were in the van that had passed by the address earlier,
    and who parked where they could observe a moving van come into the area, were
    there because they were in joint or constructive possession of the property
    that they were about to move. For Mr. Kanthasamy, this inference is only
    bolstered by his presence in the area the night before and his contact with [the
    person who rented the warehouse space] the night before.

[54]

The same analysis and conclusion apply to the argument in this court.
    There was evidence upon which the jury could conclude that Mr. Kanthasamys
    presence at the warehouse was the result of him being more than just a hired
    hand. For example, if he was just a hired hand being used to move the goods, why
    was he communicating with the person who rented the warehouse space, and why
    was he outside the warehouse the night before?

[55]

It was up to the jury to evaluate all of the evidence and decide whether
    it proved that Mr. Kanthasamy had possession of the stolen property. They
    reached the conclusion that he did. That was a verdict that was open to the
    jury on the evidence. This ground of appeal fails.

(5)

The Sentence Appeals

[56]

Each of Mr. Baskaran, Mr. Kanagasivam, and Mr. Pathmanathan seek leave
    to appeal the sentences imposed on them by the trial judge. I would grant them
    leave and allow the appeals.

[57]

I will begin by explaining the approach that the trial judge took to
    imposing sentences on these four appellants, and the error that I find that she
    made in reaching the conclusions that she did.

[58]

The trial judge first determined the appropriate sentence for each
    offence. For example, she determined that the counts of theft over $5,000 would
    attract a five year sentence, the robbery and kidnapping counts would attract a
    three year sentence (save for one robbery where a three and one-half year
    sentence was imposed), and the use imitation firearm counts would attract a one
    year sentence. The trial judge also concluded that sentences on the robbery and
    kidnapping counts should be concurrent in each occurrence, but that the
    sentence on the imitation firearm counts should be consecutive.

[59]

The trial judge also concluded that the sentences for the offences for
    each occurrence should be consecutive to each other. This conclusion invariably
    led to very high total sentences. For example, on this approach, the total
    sentence for Mr. Pathmanathan amounted to 26½ years. Recognizing the problem
    that consecutive sentences led to, the trial judge applied the principle of
    totality and reduced the sentences accordingly. In Mr. Pathmanathans case, the
    26½ year sentence was reduced to 16 years.

[60]

In fashioning each of the ultimate sentences imposed, the trial judge
    also considered the principle of parity. She recognized that the sentences had
    to reflect the varying degrees of involvement of each of the appellants in this
    series of occurrences, both in relation to each other and in relation to others
    who had earlier pleaded guilty. Of the appellants, Mr. Pathmanathan was the
    most heavily involved. It would follow that Mr. Pathmanathan would receive the
    highest sentence.

[61]

The appellants first submit that the trial judge erred in imposing the
    same sentence on each appellant with respect to each robbery/theft from
    occurrence to occurrence. They submit that this approach failed to distinguish
    between the varying roles that each of the appellants played in carrying out
    these robberies/thefts.

[62]

I accept that, if one looks at the sentence starting point that the
    trial judge used, it would appear that there was a failure to distinguish
    between the levels of involvement of the various players. However, this isolated
    viewpoint fails to take into account the trial judges recognition, and
    application, of the parity principle in arriving at the ultimate sentence. For
    example, Mr. Pathmanathan, who was the person most heavily involved in all of
    these occurrences, received a much higher sentence than did the others. This
    reflects the very different role that he played.

[63]

That said, as I shall explain, I do find an error in the trial judges analysis.
    It is an error that drove the sentences that she imposed across the board and
    thus contributed to the problem that the totality principle attempted to
    address. The particular error has to do with the comparison of these offences
    to home invasion robberies.

[64]

In identifying this error, I am conscious of the fact that the trial
    judge was not provided with any authority that purported to establish a range
    of sentence for these types of offences in these circumstances. The trial judge
    was, therefore, very much dealing with a matter of first instance.

[65]

On this point, the trial judge said that she agreed with Crown counsel
    that it is appropriate to compare tractor trailer robberies and kidnappings to
    carjackings and home invasions. I do not agree. I appreciate that, because of
    the nature of their work, drivers of tractor trailers may be required to sleep
    in their vehicles. That is the nature of long-haul truck transport. However,
    comparing that aspect of their employment to the nature of a persons intimate connection
    to their personal home space overstates any relationship that there may be
    between the two. It would also exaggerate the relative impact of the offence.

[66]

In considering this issue, I am mindful of the fact that people like to
    believe that they should be safe in a variety of different locations: walking
    down a residential street, sitting in the back of a cab, staying in a hotel
    room, riding on a bus or train, and in many other places. The fact is that people
    should be safe in all of those locations, but the unfortunate reality is that
    they are, too often, not. This is due in part to the fact that these places are
    easily accessible by other people. In contrast, private homes are special
    places. They are not easily accessible to others. Homes take on a special
    significance as a consequence of that physical reality, coupled with the mental
    state that accompanies it. Simply put, the sleeping cab of a truck cannot be
    properly analogized to the sanctity of a home.

[67]

I agree that it was appropriate for the trial judge to take into account
    that the victims of these occurrences were vulnerable persons arising from the
    nature of their work. However, she overemphasized that vulnerability, in terms
    of sentencing, in drawing comparisons with sentences imposed in home invasion
    robberies. It was an error for the trial judge to do so and this error impacted
    the sentences that she imposed.

[68]

In particular, this comparison led her to impose a five year sentence on
    each of the offences of theft over $5,000. The circumstances surrounding these
    offences would not have warranted that high a sentence for those offences. Had
    the comparison not been drawn, a more moderate sentence would have been imposed,
    the total sentence would have been reduced, and the application of the totality
    principle would then have reduced the sentences further, certainly below those
    that the trial judge settled on.

(a)

Srimoorthy Pathmanathan

[69]

The error, to which I have just referred, impacted the sentences imposed
    on each of these accused persons. It thus falls to this court to inquire into
    the fitness of the sentence and replace it with the sentence it considers
    appropriate:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 43.

[70]

Admittedly, Mr. Pathmanathan was involved in all of these many occurrences.
    At the same time, the occurrences took place over a relatively short period of
    time. Further, Mr. Pathmanathan was a person with no criminal record and who
    expressed remorse for his actions. A sentence of 16 years fails to adequately
    reflect those salient mitigating factors.

[71]

Further, in terms of parity, the trial judge found that Mr. Pathmanathans
    role was very much on par with that of the ringleader. The ringleader had
    pleaded guilty five years earlier. He pleaded guilty, however, to only some of
    the occurrences, fewer than the ones in relation to which Mr. Pathmanathan was
    convicted. In addition to his guilty plea, the ringleader was going to be
    deported after he completed his sentence. This was another distinguishing
    feature from Mr. Pathmanathan. The ringleader received a sentence of seven
    years. The trial judge characterized this sentence as extremely light.

[72]

When one views the sentence imposed on Mr. Pathmanathan contrasted with
    the one imposed on the ringleader, in my view, it reveals a serious problem in
    terms of parity. I accept that the ringleader pleaded guilty to offences in a
    lesser number of occurrences, but I also observe that the facts relating to
    some of the other occurrences were read in as part of his sentencing. Further,
    his plea to lesser counts does not change the fact, acknowledged by the trial
    judge, that he was the orchestrating mind behind all of these occurrences.

[73]

Further, the discounts that the ringleader received on his sentence
    because of his guilty plea, and because of the deportation factor, cannot, in my
    view, justify imposing on Mr. Pathmanathan, as the trial judge did, a sentence
    that is almost two and one-half times as great as that imposed on the
    ringleader.

[74]

In the end result, in light of the mitigating factors that I have
    mentioned, and the principle of parity, an appropriate sentence for Mr. Pathmanathan
    would be 12 years (before credit for pre-sentence custody).

(b)

Majurathan Baskaran

[75]

Using the same approach that I set out above, the trial judge imposed a
    sentence of 19 years on Mr. Baskaran, which she reduced to 11 years applying
    the totality principle.

[76]

I do not accept Mr. Baskarans submissions that the level of his
    involvement in the offences was minor. The trial judge considered all of the
    relevant factors in determining Mr. Baskarans sentence. She noted that he had
    been convicted of a large number of offences. She also noted that he had a
    criminal record. At the same time, the trial judge was fully aware that Mr.
    Baskaran was a young man who had expressed sincere remorse for his actions.

[77]

There is, however, a cascading effect to the error that I earlier identified
    in the trial judges approach. Because I have reduced the sentence for Mr. Pathmanathan,
    who had a greater involvement in these occurrences than did any of the other
    appellants, parity requires that Mr. Baskarans sentence be reduced. At the
    same time, that same principle suggests that Mr. Baskarans sentence should be
    higher than that imposed on Mr. Kanthasamy (who did not appeal his sentence) of
    eight and one-half years. Mr. Kanthasamy was convicted of a lesser number of
    offences than was Mr. Baskaran.

[78]

In the end result, I would reduce Mr. Baskarans sentence to nine years
    (before credit for pre-sentence custody).

(c)

Jananthan Kanagasivam

[79]

Mr. Kanagasivam received the lowest sentence of the four appellants. He
    was convicted of offences relating to only two of the occurrences. The trial
    judge sentenced him to six years which was reduced to four years and two months
    after the application of the totality principle.

[80]

As noted by the trial judge, Mr. Kanagasivam was a young man with no
    criminal record. However, he was heavily involved in one of the kidnappings. He
    also participated in two separate occurrences that were almost four months
    apart. The nature of his conduct warranted a penitentiary term of imprisonment,
    even though this was a first offence for him.

[81]

Again, however, because of the cascading effect that I mentioned, and to
    maintain parity with the other sentences, including those in relation to other
    offenders who pleaded guilty and who were similarly situated to Mr. Kanagasivam
    (and to which the trial judge made reference), I would reduce his sentence to
    three years (prior to credit for pre-sentence custody).

D.

Conclusion

[82]

I would dismiss the conviction appeals. I would grant leave to appeal
    sentence to Mr. Baskaran, Mr. Kanagasivam, and Mr. Pathmanathan, allow their
    sentence appeals, and reduce their sentences as set out above.

Released: A.H January 17, 2020

I.V.B.
    Nordheimer J.A.

I
    agree. Alexandra Hoy A.C.J.O.

I
    agree. P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chaly, 2020 ONCA 35

DATE: 20200121

DOCKET: M50182

Benotto, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alisa Chaly

Appellant

Alisa Chaly, acting in person

Andrew Hotke, for the respondent

Heard and released orally: January 13, 2020

REASONS FOR DECISION

[1]

The motor vehicle Ms. Chaly was operating was stopped on April 15, 2016.
    After investigation, she was arrested for impaired driving and a breath demand
    was made. She was ultimately charged with impaired driving, refusing to provide
    a breath sample, and breaching the keep the peace condition of a peace bond
    recognizance that was in effect.

[2]

After trial, Ms. Chaly was acquitted of impaired driving but convicted
    of refusing to provide a breath sample and breach of recognizance. She was
    fined $1,000 and $100 respectively and a one-year driving prohibition was put
    in effect.

[3]

Ms. Chaly unsuccessfully appealed her conviction to a summary conviction
    appeal court. She now brings an inmate appeal to this court seeking leave to
    appeal, raising two grounds of appeal, one relating to whether proper rulings
    were made on the arbitrariness of her detention and the other relating to the
    treatment of the loss of the booking area video.

[4]

This is not an appropriate case for leave to appeal, since there are no
    questions of law raised that have significance to the administration of justice
    and no clear errors were committed. Even if we granted leave to appeal, we
    would be required to dismiss Ms. Chalys appeal.

[5]

Ms. Chaly urges that the trial judge erred in denying her claim that she
    was arbitrarily detained by being held longer than required after she was charged.
    The trial judge denied this claim because Ms. Chaly failed to offer evidence of
    how long she had been detained. Absent such evidence, her
Charter
motion
    could not succeed.

[6]

Nor was there an error in the summary conviction appeal justices
    decision to deny an appeal from the trial judges refusal to grant a stay based
    on the loss of the booking area video. The trial judge found appropriately that
    the loss of the video was not caused by negligence but by reasonable policies
    relating to the retention of booking area videos. We see no basis for
    interfering with that decision.

[7]

Moreover, the destruction of the video caused Ms. Chaly no material
    prejudice. The trial judge explicitly chose not to rely on what transpired in
    the booking area as evidence against Ms. Chaly as proof of her impairment, and
    the video could have only marginal relevance on the remaining charges. There
    was video tape evidence relating to Ms. Chalys refusal to provide a sample. The
    refusal charge turned on that video, not on issues relating to the officers
    credibility. As the trial judge noted:

The evidence that is disclosed in the breath room video
    provides ample support for the contention by the Crown that there was a deliberate
    refusal to provide breath samples.

[8]

Leave to appeal the conviction appeal is therefore denied. On consent,
    we set aside the victim surcharge.

M.L. Benotto
    J.A.

David M.
    Paciocco J.A.

Thorburn J.A.