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Criminal - Sentencing - Demonstrably Unfit. R. v. Kulatheeswaran
In R. v. Kulatheeswaran (Ont CA, 2026) the Ontario Court of Appeal considered the criminal sentencing concept of 'demonstrably unfit':1. The Sentence Was Demonstrably Unfit
[14] I agree with the Crown that the conditional sentence imposed was demonstrably unfit because the trial judge lost sight of the gravity of the offence: R. v. Burke-Whittaker, 2025 ONCA 142, 175 O.R. (3d) 726, at para. 42, per Favreau J.A., and at para. 136, per Hourigan J.A., leave to appeal granted, [2025] S.C.C.A. No. 162. As a result, it is not necessary to address the errors in principle alleged by the Crown.
[15] A sentence is demonstrably unfit where it constitutes “a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 69 (citation omitted). This test guards against unreasonable departures from the fundamental principle of proportionality and the other principles of sentencing, including denunciation: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53-54. As explained in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81:The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. [Emphasis in original.] [16] Possessing a loaded firearm in a public place gravely endangers the public. Denunciation and deterrence are paramount, and a penitentiary sentence is normally required. While sentences at the lower end of the penitentiary range may sometimes be available, three-year sentences are common even if the firearm does not discharge and mitigating factors are present. Reformatory and conditional sentences typically require strong mitigating factors or personal circumstances that significantly reduce moral blameworthiness or substantially intensify the impact of incarceration: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 71, 82, 125-131, 151; Burke-Whittaker, at paras. 38, 50-51, per Favreau J.A., and at para. 136, per Hourigan J.A.
[17] Aggravating factors that intensify public safety risks must be reflected in the sentence imposed. As Morris held, “[t]he risk increases dramatically when the gun holder flees, and still again when the gun holder discards the weapon in a public place”: at para. 68. As Burke-Whittaker ruled, “danger increases exponentially when the firearm is discharged in public,” which is “a very serious aggravating factor”: at para. 48, per Favreau J.A., and at para. 137, per Hourigan J.A.
[18] Each escalation described in Morris and Burke-Whittaker occurred here. As the trial judge acknowledged, this case involves aggravating features beyond simple possession. The firearm was loaded with an overcapacity magazine, it discharged, and the respondent discarded it in a residential neighbourhood during his flight from the scene. The convictions establish conduct of grave seriousness presenting an obvious and pronounced risk to public safety. The potential for catastrophic harm was obvious.
[19] The conditional sentence imposed does not meaningfully reflect the seriousness of the aggravating findings. Neither does it adequately denounce conduct of this gravity. A penitentiary term was required. The important mitigating factors relied upon by the trial judge – youth, lack of a prior record, strong rehabilitative prospects and family support, and a serious health condition – temper the length of imprisonment, as I will later explain. In the circumstances of this case at the time of sentencing, however, these considerations could not overwhelm the other principles of sentencing or remove the need for incarceration: Habib, at para. 6, 30, 43; R. v. Premji, 2021 ONCA 721, at para. 6.
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