Sentencing Must Be Both Proportionate and Humane

A recent decision from Ontario's Court of Appeal raises an important question about criminal sentencing: what happens when a sentence that was clearly too lenient cannot be corrected without causing serious harm to the person serving it?

In R v Kulatheeswaran, 2026 ONCA 128, Chief Justice Tulloch acknowledged that the original sentence was too low for the offences committed — but still declined to send the respondent to jail. The result is a meaningful reminder that sentencing in Canada must account not only for the gravity of an offence, but for the human circumstances of the person being sentenced.

What Happened

The respondent was convicted of a series of serious offences arising from a single incident: he collided with another vehicle in a residential neighbourhood, accidentally discharged a loaded firearm he was carrying, fled the scene, and discarded the gun in a snowbank. When police apprehended him, he refused to provide a breath sample.

These were serious crimes. Driving offences, illegal firearm possession, and flight from police attract significant sentences — particularly when a loaded gun is discharged in a residential area. The Crown sought a 46-month term in the penitentiary..

The trial judge, however, had significant mitigating factors before him. The respondent was young, had no prior criminal record, and suffered from a serious neurological condition. The brief period he spent in custody after his conviction had disrupted his medical treatment. Taking all of this into account, the trial judge imposed a conditional sentence — essentially, house arrest — at the maximum term available. The Crown appealed.

The Court of Appeal's Decision

Chief Justice Tulloch agreed with the Crown that the sentence was manifestly unfit. A conditional sentence at the maximum term did not adequately reflect the gravity of the respondent's conduct. Discharging a loaded firearm in a residential neighbourhood, fleeing from the scene of an accident, and refusing a breath sample are not offences that can be adequately addressed without meaningful recognition of their seriousness and their potential consequences for public safety.

Ordinarily, a finding that a sentence is manifestly unfit means the appellate court steps in and imposes the sentence that should have been given in the first place. That typically would have meant jail time.

But by the time the appeal was heard, the picture had changed significantly. The respondent had served more than half of his remaining conditional sentence. He had complied strictly with all of its conditions. He had taken meaningful steps toward rehabilitation. And his neurological condition appeared to have worsened during the appeal process itself.

Faced with this updated picture, Chief Justice Tulloch exercised his discretion and declined to order incarceration. The finding that the original sentence was unfit — and the public judgment that came with it — was itself a form of denunciation. Re-incarcerating the respondent at that stage, given everything that had happened since sentencing, would not have served the purposes that imprisonment was meant to achieve. The Crown's appeal was dismissed.

Why Fresh Evidence Matters in Crown Sentence Appeals

This case illustrates something important about how sentence appeals work in practice, especially when it is the Crown doing the appealing.

When an appellate court finds that a sentence was wrong, it does not simply impose a harsher version of what was originally ordered. It sentences the person afresh — meaning it considers everything that is known about the offender and the offence at the time of the appeal, not just at the time of the original sentencing. The world has moved on, and the court has to reckon with that.

This creates a real opportunity for defence counsel in Crown sentence appeals. Evidence of what has happened in a client's life since the original sentence was imposed — compliance with conditions, rehabilitation efforts, employment, family circumstances, and health — can all be placed before the appellate court as "fresh evidence." In the right case, that evidence can be the difference between the court correcting a lenient sentence by ordering incarceration and the court finding that doing so would no longer serve any useful purpose.

That is exactly what happened here. The combination of strict compliance, genuine rehabilitative progress, and a deteriorating medical condition gave the Court of Appeal reason to pause. The sentence may have been too low when it was imposed, but the respondent had used the time well — and that mattered.

If you or someone you know is involved in a Crown sentence appeal, understanding this dynamic is essential. The appeal is not just about what happened at the original sentencing hearing. It is an opportunity to tell the full story of what has happened since.

The full decision is available here.