Court File and Parties

Ontario Court of Justice

Date: 2019-05-10

Court File No.: Toronto 4817 998 18-75004213-00

Between:

Her Majesty the Queen

— and —

Kurtis Sutherland-Cada

Before: Justice Howard Borenstein

Plea of Guilty: February 28, 2019

Submissions on Sentence: April 16, 2019

Reasons for Sentence Released: May 10, 2019

Counsel

Ms. Mauve Mungovan — counsel for the Crown

Mr. Daniel Johnson — counsel for the accused Kurtis Sutherland-Cada

Reasons for Sentence

BORENSTEIN, J.:

[1] Mr. Kurtis Sutherland-Cada is a 28-year-old Indigenous Canadian man. He has had struggles growing up as a result of a major substance abuse disorder likely the result and effect of what is commonly referred to and acknowledged as intergenerational trauma, caused by prior Canadian government policy. He was in a near self-induced psychotic state when he committed these offences. He may suffer as well from a schizophrenic spectrum disorder. His history is well set out in the judgments of my colleagues, which I will refer to, as well as the various reports that have been filed. But he remains violent and dangerous. And undeterred.

[2] Sutherland-Cada plead guilty to aggravated assault and a breach of probation requiring him to not possess any weapons. There is a joint submission before me for 40 months in jail less pre-sentence custody.

[3] In August of 2018, the accused was drinking with his cousin and another person. Around 2:30 in the morning, without warning or provocation, he went to the kitchen, picked up a large knife and stabbed his cousin repeatedly in the face and back. The attack only stopped when the victim and 3rd party subdued Sutherland-Cada, and he was arrested.

[4] There were six separate stab wounds in the back, in the scalp and one under the eye.

[5] He was on a probation order dated June 22, 2018 with a condition not to possess any weapons.

[6] As noted, he is Aboriginal and the Gladue factors apply. A Gladue Report was filed. I also have the benefit of two thoughtful judgments concerning Mr. Sutherland-Cada by Justice Rutherford and Justice Melvyn Green; both of this court. A psychiatrist report has also been filed. And there is a joint submission.

[7] He has a worrying record with numerous entries of violence. He has convictions for assault, assault causing bodily harm, assault with a weapon, four (4) assault peace officers, two (2) robberies and 15 breaches of Court Orders. And this was a violent attack while on probation. And he has attacked numerous people while in jail. He has also taken counselling while in jail.

[8] By way of background, I quote from the 2016 decision of Justice Rutherford which sets out the then 24-year-old's background from her sentencing judgment in a robbery case where Sutherland-Cada and a co-accused got into a cab and punched and choked and robbed the driver. He received a sentence equivalent to one year. Now quoting Justice Rutherford:

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.

[9] A month after he got out of jail on that sentence, he committed a further violent offence. He robbed a teller in a cheque cashing establishment, pretending to have a weapon. He was on probation. And a month after his arrest on that charge and while in detention, he and another inmate viscously assaulted two prison correctional officers. He plead guilty to those four offences, robbery, two assaults and a breach of probation before Justice Melvyn Green. On August 21, 2017, at the sentencing, he had the equivalent of 15 months of pre-sentence custody. Justice Green sentenced him to a further 15 months in jail followed by three years probation.

[10] These offences occurred in August 2018, shortly after he got out of jail, following the sentence imposed by Justice Green. And as I already noted, he has assaulted numerous people while in custody.

[11] The aggravating factors are many. This was an unprovoked, violent attack by a man who drinks and knows he gets very violent and continues to do this repeatedly. He is undeterred by the knowledge that he harms others greatly and has done little to reduce his risk. He is completely undeterred by Court Orders. He breaches them no sooner than the ink is dry. His record has many entries for violence.

[12] By way of mitigation, he has plead guilty. He has taken some counselling while in custody. But he has assaulted many people while in custody. His background and consequent substance abuse and mental health issues diminishes his moral culpability, but does not diminish his dangerousness or the need to protect society.

[13] The sentencing principle that need to be emphasized for the protection of society is specific deterrence. Nonetheless, his rehabilitation is still to be given some weight, and is reflected in what I consider a moderate sentence for this offence, in this case. Fortunately for Mr. Sutherland-Cada, the Crown has not sought a dangerous offender application this time, likely out of Gladue considerations. But you are very dangerous. That possibility should be some deterrent inside and outside of prison.

[14] For these brief reasons, I will adopt the joint submission for this offence and this offender. I will therefore sentence you to 40 months in jail less the pre-sentence custody. There will be a lifetime weapons prohibition pursuant to s. 109 and an Order that you provide a DNA sample. You know the harm you cause when you drink and use drugs yet you do not follow up on counselling. The Court is full of people who love and support you. But you have to make serious and hard efforts to deal with this. If not, you will be in jail for many years to come.

Released: May 10, 2019

Signed: "Justice H. Borenstein"