Court File and Parties

Ontario Court of Justice

Date: 2016-07-29

Court File No.: Toronto 4817 998 16-75001014

Between:

Her Majesty the Queen

— and —

Kurtis Sutherland-Cada

Before: Justice Rebecca Rutherford

Guilty Plea: April 28, 2016

Sentencing Submissions: July 14, 2016

Reasons for Sentence Released: July 29, 2016

Counsel

Daniel Brandes — counsel for the Crown

Dan Johnson — for the defendant Kurtis Sutherland-Cada

RUTHERFORD, J.:

Introduction

[1] On April 28, 2016 Mr. Sutherland-Cada pleaded guilty to robbery. A Gladue Report was ordered. On July 14, 2016 sentencing submissions were made by both counsel. Mr. Sutherland-Cada spoke to the Court. I adjourned my reasons to today's date. These are my reasons.

Facts of the Offence

[2] On February 20, 2016 Mr. Sutherland-Cada and his co-accused Daniel King attended the area of Shuter and Sherbourne Streets in Toronto. They approached a taxi that was parked on Shuter Street.

[3] The driver, Mr. Aziz, had just finished his shift and was resting in his cab. Mr. Sutherland-Cada and Mr. King banged on the driver's window demanding a ride. The victim refused. The men entered the vehicle. Mr. Sutherland-Cada sat in the rear driver's seat and Mr. King sat in the front passenger seat. Both men began to punch the victim. Mr. Sutherland-Cada choked him. Mr. King continued to punch Mr. Aziz and then stole his pouch. The victim screamed.

[4] Citizens approached the cab. Mr. Sutherland-Cada and Mr. King fled the scene with the victim's belongings. The police were called. The victim was taken to the hospital with injuries. The following property was stolen and not recovered:

1. Cell phone
2. Black pouch with $100.00
3. Car and house keys
4. Identification

[5] Mr. Sutherland-Cada was arrested on March 16, 2016.

Circumstances of the Offender

[6] Mr. Sutherland-Cada is a 24 year old indigenous man. He is a registered member of the Constance Lake First Nation. He was born in Toronto. His parents separated and at the age of four Mr. Sutherland-Cada moved to Constance Lake with his father. He lived in Constance Lake until he was 15 years old. He lost contact with his mother during these years.

[7] Mr. Sutherland-Cada's paternal grandparents and possibly his great grandparents attended a residential school. Susan Sutherland a social worker at the Mamawmatawa Holistic Education Centre on Constance Lake First Nation is married to Mr. Sutherland-Cada's cousin. She explained that when Mr. Sutherland-Cada's father Eli was a child growing up, his home was filled with violence and substance abuse. She stated that it had a real impact on Eli and the other family members. She recalled that Mr. Sutherland-Cada's upbringing was similar to that of his father.

[8] Mr. Sutherland-Cada was exposed to violence and substance abuse. His father was addicted to prescription drugs. He often was so overcome by his addiction that Mr. Sutherland-Cada would become the target of physical abuse.

[9] Mr. Sutherland-Cada went to a school off reserve. He struggled in school. He had difficulty learning. He experienced bullying and racism. He began to get into trouble. The more trouble Mr. Sutherland-Cada got into at school the angrier his father would get escalating the violence.

[10] The Children's Aid Society became involved when Mr. Sutherland-Cada was in grade three. The agency suspected that Mr. Sutherland-Cada was being physically abused. He was removed from his father's home and placed into the care of his uncle. After six months he returned to his father's custody. He continued to live with his father or his grandmother. They would move from place to place sometimes sleeping wherever they could.

[11] The violence and drug abuse continued. Mr. Sutherland-Cada's father and grandparents began to enlist Mr. Sutherland-Cada to order prescription pills from his friends. Soon Mr. Sutherland-Cada himself was abusing alcohol and getting into more trouble.

[12] At the age of 14 Mr. Sutherland-Cada was sent off reserve to Toronto to live with his mother. He had no relationship with his mother and felt like a stranger in the home. He enrolled in secondary school but only lasted one month. He was abusing alcohol and spent much of his time in an intoxicated state.

[13] Mr. Sutherland-Cada was then asked to leave his mother's home. He moved in with his sister but things did not change. He abused alcohol and continued to get into trouble with the law.

[14] Mr. Sutherland-Cada has a criminal record which began as a young person. He has convictions for violence.

[15] In 2006 Mr. Sutherland-Cada connected with Aboriginal Legal Services of Toronto (as it then was). He attended Pow Wows, learned how to braid sweet grass and went to counselling sessions at ALST. Mr. Sutherland-Cada connected to the indigenous community in Toronto and learned about indigenous history. He learned about colonization, identity, family reconnection and more.

[16] At the age of 18 Mr. Sutherland-Cada moved in with his girlfriend. They have a son.

[17] The relationship ended just after the child was born. Mr. Sutherland-Cada became depressed. Mr. Sutherland-Cada has not seen his son for several months.

[18] The child is in Mr. Sutherland-Cada's mother's custody. After the relationship with the child's mother ended Mr. Sutherland-Cada left Toronto and began to seriously abuse drugs, specifically cocaine. He went to jail in Quebec.

[19] He was diagnosed at this time with drug induced schizophrenia. He returned to Toronto and reconnected with Aboriginal Legal Services. The organization helped him to obtain proper identification so he could receive medical and psychological health care. They also helped him to find housing.

[20] Prior to his arrest Mr. Sutherland-Cada was living at the Dowling Community Service Residence. He was prescribed medication.

[21] Mr. Bronson Bob introduced Mr. Sutherland-Cada to an Elder while Mr. Sutherland-Cada was incarcerated at the Central North Correctional Centre. Upon release Bronson Bob will connect Mr. Sutherland-Cada to an Elder at Anishnawbe Health Toronto. Mr. Sutherland-Cada is anxious to meet the Elder.

[22] ALS is prepared to support Mr. Sutherland-Cada upon his release. The report sets out a variety of available programs.

[23] Mr. Sutherland-Cada hopes to take part in intensive counselling to deal with his many challenges. He is anxious to re-establish a relationship with his son.

Victim Impact

[24] No victim impact statement was filed at the sentencing hearing, however it goes without saying that what the victim experienced was violent and frightening. As a cab driver, Mr. Aziz is an easy target for people looking to rob and steal. Mr. Aziz had just finished work. He was resting when suddenly he was attacked by two men. He sustained injuries, was hospitalized for a brief period of time and had cash and other important items stolen from him. Mr. Sutherland-Cada's actions in my view would have had a significant impact on him.

Crown Position

[25] The Crown argues that although an upper reformatory sentence is normally appropriate in these circumstances, Mr. Brandes submits that in this particular case the Court ought to sentence Mr. Sutherland-Cada to 12 months in custody followed by a lengthy period of probation. Mr. Brandes argues this sentence takes into account Mr. Sutherland-Cada's specific circumstances and background as an indigenous man while at the same time addresses the principles of denunciation and deterrence.

Defence Position

[26] Mr. Johnson argues that pre-sentence custody of 6 ¾ is sufficient. He argues that I ought to impose a lengthy period of probation with the conditions set out in the Gladue Report. He agrees that the principles of general deterrence and denunciation are important however he urges the Court to give equal weight to the principles outlined in R. v. Gladue and R. v. Ipeelee.

[27] Mr. Johnson points out the traumatic and difficult circumstances and conditions in which Mr. Sutherland-Cada was raised. He was separated from his mother at a young age. He began to abuse alcohol and drugs at a young age. He was the subject of racism at a young age and he was also the victim of violence at a young age. Mr. Johnson argues this demonstrates how Mr. Sutherland-Cada's circumstances as an indigenous man lead him into the criminal justice system.

[28] Mr. Johnson further argues that Mr. Sutherland-Cada's mental health is deteriorating in custody because he is not receiving medication. He argues that to separate Mr. Sutherland-Cada from the community further would be counterproductive from an individual and societal point of view, especially when he has supports available to him in the indigenous community.

Sentencing Principles

[29] The criminal law is a system of values. In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

[30] The sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[31] The sanction that the court imposes should have one or more of the following objectives:

• to denounce unlawful conduct
• to deter the offender and other persons from committing offences
• to separate offenders from society, where necessary
• to assist in rehabilitating offenders
• to provide reparations for harm done to victims or to the community
• to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community

[32] How much emphasis a court places on each of these objectives will vary accordingly to the nature of the crime and the circumstances of the accused.

Aggravating and Mitigating Factors

[33] There are a number of aggravating factors that I must consider:

1. Mr. Sutherland-Cada has a violent criminal record.
2. Mr. Aziz, as a taxi driver, is a vulnerable victim whose life was significantly affected by Mr. Sutherland-Cada's actions.
3. The violence was serious. Mr. Aziz suffered injuries, was hospitalized and had personal property stolen.
4. Mr. Sutherland-Cada was not alone when he robbed Mr. Aziz. It was two on one making the victim even more vulnerable.

[34] In mitigation:

1. Mr. Sutherland-Cada pleaded guilty sparing the victim from having to come to court to relive the incident.
2. Mr. Sutherland-Cada is remorseful. This is evident from his comments in the Gladue Report and from the words he spoke in Court on July 14, 2016. Mr. Sutherland-Cada's remorse is genuine.
3. Mr. Sutherland-Cada has mental health challenges and has demonstrated an understanding of his need to seek help to address them.
4. Mr. Sutherland-Cada has support in the indigenous community. He will have access to programs that will assist with homelessness, mental health, addictions and importantly help him develop insight into his indigenous identity. There are Elders from whom he can receive counsel.

Analysis

[35] What Mr. Sutherland-Cada did on February 20, 2016 was deplorable. He and another man preyed on a vulnerable member of the community. They viciously attacked Mr. Aziz, two on one, and stole his property. Mr. Aziz was injured, briefly hospitalized and had personal property stolen from him.

[36] Cab drivers deal with strangers every day. They expect the public to respect them and behave appropriately. When their personal safety is violated Courts must send a strong message to the community that gratuitous and random violence of this nature will not be tolerated. Denunciation, protection of the public and general deterrence must be emphasized.

[37] Mr. Sutherland-Cada is a 24 year old indigenous man. He is genuinely remorseful for his actions. This is obvious in the Gladue Report and by his comments in Court.

[38] Mr. Sutherland-Cada has a significant history of trauma. His life has been full of violence, addictions, dislocation from family and community. He has been subjected to and witnessed things that no person should experience. His grandparents and possibly his great grandparents went through the residential school system.

[39] In the Gladue Report, Ashley Quinn discussed the intergenerational impact of the residential school experience. At page nine she says:

Residential schools have caused long term intergenerational harm to those who did not attend school but had a family or community member who did. According to the findings compiled in Reclaiming Connections: Understanding Residential School Trauma Among Aboriginal People, a resource manual published by the Aboriginal Healing Foundation, the intergenerational Residential School effects are threefold: the trauma experienced by many former students of Indian Residential Schools affects not only the individual, but their family as well as their descendants, and the community. The effects include, but are not limited to:

i) communication barriers, especially an inability to express affection;

ii) families where no nurturing or affection was present for generations;

iii) discomfort expressing love for children in physical ways, especially hugs;

iv) lack of communication within the family;

v) children taken into custody by the Children's Aid Society;

vi) addictive and self-destructive behaviours

[40] I accept, looking at Mr. Sutherland-Cada's history, that he has suffered harm and trauma stemming from his family members' experience in the residential school system. He was separated from his mother at the age of two. He moved to Constance Lake Reserve to live with his father. Although his father cared for him he raised him the only way he knew, in an atmosphere of violence where drug use was rampant.

[41] Mr. Sutherland-Cada had difficulty in school. He struggled with learning. He experienced racism. He used drugs and drank alcohol. He became frustrated and exhibited negative behaviour. He was forced to leave the reserve.

[42] He moved back to Toronto to live with his mother, a woman he barely knew. The violence and addictions continued. To this day violence and addictions appear to control his life. As a result of this lifestyle he has developed serious emotional and mental health issues.

[43] At page 19-20 of the Gladue Report, Ms. Quinn states:

The effects of unresolved trauma are transmitted to successive generations through shared cultural memories, patterns of parenting, psychological memory processes and a biologically inherited predisposition to post-traumatic stress disorder. A product of trauma includes the transmission of unhealthy coping strategies such as inability to trust people, or institutions or to even understand root emotional causes of unhealthy behaviours. Lacking the ability to trust makes it difficult to seek out forms of professional assistance, or to believe there is a system available that could help them. It also means that individuals are not equipped with the knowledge to be reflective of themselves and recognize the need to seek assistance. This is particularly challenged when these unhealthy coping mechanisms, such as drug addiction are not necessarily seen as abnormal, or even unhealthy, and are utilized by others in your family or community.

A further component of historical trauma is the use of the numbing effects of drugs and alcohol. When people experience intense feelings of fear, shame, anger and guilt and do not possess healthy coping strategies to address these negative feelings they may respond by seeking a numbing process. Statistics on alcohol use shows that Aboriginal people drink less overall than the general population, but when they do drink that they drink more than the average person. This is evidence that alcohol use is serving as a numbing, rather than a social function.

[44] I accept that Mr. Sutherland-Cada's young life as an indigenous man led him straight into the criminal justice system. He has experienced every systemic issue that the Supreme Court of Canada identified in Gladue and Ipeelee. I cannot ignore this when I sentence Mr. Sutherland-Cada.

[45] The Supreme Court of Canada was also very clear that the over representation of indigenous men and women in our jails is at a crisis level. As sentencing judges we must address this serious issue. We must consider and give proper weight to the systemic factors unique to the offender, in this case Mr. Sutherland-Cada, and take a restorative approach in sentencing while at the same time balancing other sentencing principles.

[46] When sober Mr. Sutherland-Cada is a gentle and good person however when he drinks and uses drugs he becomes violent and is a danger to the community. It is crucial, therefore, that Mr. Sutherland-Cada address his substance abuse addiction. The indigenous community is prepared to assist Mr. Sutherland-Cada. There are multiple indigenous counselling programs available to him in the community including counselling from Elders. He genuinely wants to take part in these services. He has an established relationship with ALS.

[47] Mr. Sutherland-Cada suffers from emotional and mental health issues, issues that stem from his upbringing and childhood. Prior to his incarceration Mr. Sutherland-Cada was taking medication to relieve symptoms of depression. Since his incarceration Mr. Sutherland-Cada has been prescribed nothing. His mental health has deteriorated and his depressive symptoms are exacerbated. In this state Mr. Sutherland-Cada is not only a risk to himself but also to the community. I am mindful therefore that incarceration has effectively augmented his risk.

[48] As I stated earlier this offence is serious and there are many aggravating features that must not be ignored. I find, therefore, that a jail sentence is required. The question I ask myself is how much in light of Mr. Sutherland-Cada's circumstances.

[49] In my view the appropriate sentence is 12 months.

[50] Mr. Sutherland-Cada has served the equivalent of 6 and ¾ months at the Toronto South Detention Centre.

[51] I am mindful of the conditions at the Toronto South Detention Centre. There have been many lockdowns, meaning prisoners remain in their cells and are unable to access programs, medical assistance or exercise. Prisoners are chronically late for court delaying proceedings causing them stress and anxiety because they cannot have proper conversations with their lawyers and/or other community agency personnel.

[52] In relation to Mr. Sutherland-Cada specifically, he has received no medication and is experiencing deteriorating mental health. I remind myself that Mr. Sutherland-Cada's mental health challenges stem from his chaotic and traumatic upbringing as an indigenous child, adolescent, teenager and young adult, that is, all the systemic factors outlined in Gladue and Ipeelee have contributed to his failing mental health. I cannot ignore this nor should any government institution or agency ignore it.

[53] As of July 12, 2016, Mr. Sutherland-Cada spent 49 days in lockdown where he could access nothing. I suspect there have been more lockdowns between the sentencing hearing and today's date. I am also aware that on many appearances before me Mr. Sutherland-Cada was brought to court late which affected his ability to deal with his case in a timely manner causing more anxiety to his already depressed state.

[54] I am mindful of Justice Mel Green's decision in R. v. Doyle.

[55] Green, J. found that the impact of pre-sentence custody must be assessed in both a quantitative and qualitative manner. From a qualitative perspective, Green, J. considered the impact of the conditions at the institution and how those conditions affected Mr. Doyle. He found that the defendant suffered extremely harsh conditions while on remand and as a result Green, J. ordered a reduction in his sentence.

[56] I find that as a mentally ill indigenous offender Mr. Sutherland-Cada has experienced harsh conditions while awaiting sentence. This results in a two and one half month reduction in sentence. The sentence therefore is 9.5 months. Mr. Sutherland-Cada has served the equivalent of 6 ¾ months. He will serve a further 67 days followed by probation for two years.

Probation Conditions

While on probation Mr. Sutherland-Cada, you are to:

• Report to a probation officer as and when directed.
• Reside at an address approved of by your probation officer.
• Attend and actively participate in any culturally competent counselling as directed by your probation officer and sign the necessary consents and releases.
• Have no contact directly or indirectly with the victim Mr. Aziz.
• Not be in possession of any weapons as directed by the Criminal Code including firearms, ammunition, explosive substances or prohibited weapons.
• Not be in possession of a firearms acquisition certificate or a gun licence.
• Submit to a DNA order.
• Be subject to a section 109 order for life.

Delivered Orally: July 29, 2016

Released: October 27, 2016

Signed: Justice Rutherford