Appeal Court finds no fault in murder trial judge’s inferences

Law360 Canada (January 29, 2025, 11:33 AM EST) --

John L. Hill

It all appeared very normal. On March 13, 2020, around 9:40 a.m., Leelavathi Seevaratnam, 74, was preparing to mop the family’s four-bedroom house in Agincourt when the doorbell rang. She opened the front door and saw a man holding a small brown box asking for a signature.

Hearing voices, Theepa Seevaratnam, 38, came downstairs from her bedroom, where she had been resting after working an overnight shift. Then gunshots were fired. Theepa slumped to the ground, where she died beside her injured mother, who had received bullet wounds to her left side.

Theepa’s husband, businessman and homeowner Vijendran Balasubramaniam, in his mid 40s, pleaded not guilty to first-degree murder and conspiracy to commit murder. Steadley Kerr, the alleged shooter, and Gary John Samuel, who prosecutors said drove the getaway car, also pleaded not guilty.

After an 11-week trial, a Toronto jury found that Vijendran Balasubramaniam was the architect of a conspiracy to have his wife, Theepa, killed. Kerr, the man Balasubramaniam hired to kill his wife, was also found guilty of first-degree murder and attempted murder of the victim’s mother.

None of the accused testified at trial. Samuel’s counsel told jurors his client rented a car to drive to Niagara Falls, Ont., for a romantic weekend but that Kerr had asked for a drive to the residence where the shooting occurred for unknown reasons. While he waited, evidence proved he would not have heard gunshots from his parked vehicle, his lawyer argued.

Samuel was sentenced to nine and a half years. He appealed his conviction and sentence. Acting for the appellant, Paul Calarco and Michael Bartlett contended that the sentencing judge made errors in reaching factual conclusions that lacked support from the evidence and were inconsistent with the jury’s verdict. Moreover, they argued that the sentence was unfit.

While we can never know how a jury decided which facts to believe, the sentencing judge, Justice P. Andras Schreck, listed five conclusions that were implied by the jury’s verdict:

• The appellant knew Kerr planned to commit a criminal offence where Balasubramaniam resided.
• The appellant was aware of this since at least the day before the murder, as he spent the night at Kerr’s house, drove directly to the rental agency in the morning, and Kerr was openly carrying the package.
• The appellant knew or should have known that in committing the offence, there was a likelihood of causing bodily harm to someone that was not trivial or transitory.
• The appellant was aware that Kerr was armed with a firearm.
•  Kerr's gun use was objectively foreseeable to the appellant, though not subjectively foreseeable.

The Ontario Court of Appeal, in its ruling handed down on Jan. 28, found no fault in the inferences the sentencing judge made (R. v. Samuel, 2025 ONCA 59). It was open for the sentencing judge to conclude that the appellant was aware that Kerr was armed with a gun and to consider this fact when determining the appropriate sentence. The evidence supporting this factual finding included that the appellant and Kerr spent the whole night before the murder together and that, at some point during the night, they visited Balasubramaniam’s house. Kerr also openly carried the box he used as a ruse to enter the house. The appellant and Kerr spent the day together after the murder, during which time the box and gun disappeared. It was not reasonably feasible for Kerr to have concealed the firearm from the appellant, given their joint efforts to execute their common unlawful plan.

The Appeal Court held these facts established a solid foundation for the sentencing judge’s conclusion that the appellant knew Kerr was carrying a firearm. Or do they? Could there be another plausible explanation of Samuel’s behaviour that could have elicited a reasonable doubt about his involvement? Since this was a jury trial and the accused did not give evidence, we must accept the Appeal Court’s brief (four paragraphs) analysis establishing Samuel’s guilt beyond a reasonable doubt.

With Samuel’s moral culpability established in a murder-for-hire scheme in which an innocent woman was gunned down in her home in a premeditated fashion, it was reasonable to impose a sentence in the eight-to-12-year range. The Court of Appeal correctly noted the focus on appeal is whether the sentence is demonstrably unfit, not whether the sentencing judge applied the correct starting point or sentencing range (R. v. Parranto, 2021 SCC 46).

The appeal was dismissed.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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