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| John L. Hill |
Around 7:30 p.m. on Sept. 13, 2023, Nottawasaga OPP responded to a report of an attempted abduction in Treetops Park in New Tecumseth, about 70 kilometres north of Toronto.
A 12-year-old girl, A. K-M., had been approached by an “old man” who began asking her questions and requesting that she get into the car to listen to music. The girl called the police. A short time later, police arrested Baskaran Balasooriyan in a 2010 Honda Accord that had been stolen from a repair shop two days prior. He was charged with four counts, including attempted abduction of someone under 14, criminal harassment of the youth, and mischief by interfering with A. K-M.’s lawful use and enjoyment of property (the public park), and possession over $5,000 (the stolen car). Police also found a pocketknife and cannabis in the Honda.
Balasooriyan was on release for domestic assault. He had a criminal record of 20 convictions dating from 2003-2012 that included offences against the administration of justice, driving offences and property offences. He has received custodial sentences and a conditional sentence order, as well as fines and probation.
Balasooriyan was in custody during the trial and then released post-conviction on a judicial interim release order with the consent of the Crown. He was given enhanced credit
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On sentencing, the first issue was whether the facts giving rise to the attempted abduction charge were the same as those substantiating the mischief charge and the criminal harassment charge. The Kienapple principle results in a stay of proceedings when the physical acts related to one count are identical to those of a second count (R. v. C. (M.), 2012 ONSC 2505). Here, the repeated communication with A.K-M, which gave rise to the harassment charge, was identical to that supporting the mischief charge. Those charges are, therefore, stayed, and only the attempted abduction charge will stand.
A second issue was determining whether an order of prohibition under s. 161(1) of the Criminal Code should be made, restricting Balasooriyan from being in places where children are likely to be present. The prohibition was designed to protect children. The judge found the evidence sufficient to impose such an order. He was utilizing a stolen vehicle and attempting to lure a 12-year-old girl into that vehicle to abduct her. Whether or not he successfully achieved his goal was not relevant to the consideration of whether he posed a risk to children.
Even though Balasooriyan had emigrated to Canada from war-torn Sri Lanka when he was 21 and was diagnosed with bipolar personality disorder, those factors did not drive his conduct. They are not to be considered in mitigation.
Even though the 12-year-old complainant was not physically or mentally harmed by this encounter, the sentencing judge gave no heed to the defence counsel’s recommendations. She wrote, “The defence position is wholly inappropriate and contrary to the principles of sentencing, especially proportionality, moral blameworthiness, denunciation and deterrence. It also does not align with any of the caselaw presented or reviewed. The suggested sentence is disproportionate to the gravity of the offence.”
The sentencing judge dismissed the defence counsel’s plea for a conditional sentence and relied on the provisions of s. 718.01, which state that a judge should give primary consideration to deterrence and denunciation when an offence involves the abuse of a person under the age of 18.
The judge refused to reduce Balasooriyan’s sentence to under six months so he wouldn’t be deported, saying the defence submission of a conditional sentence of 179 days was “wholly inappropriate” considering the seriousness of trying to abduct a child.
“The risk of deportation cannot justify the imposition of an inadequate or artificial sentence, particularly for the purpose of circumventing Parliament’s will on matters of immigration,” McLeod wrote.
Applying the pretrial credit and giving effect to the sentencing principle of restraint, the remainder to be served amounted to zero days. A three-year probation order was imposed, plus a 10-year weapons prohibition order.
This offender had done multiple acts deserving of punishment. However, the Ontario Court of Justice seemed to be most concerned with preventing future harm.
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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