ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Deborah Kinsella, for the Crown
- and -
Nicholas Andrew Webber
Christopher Watkins, for the Defendant
Defendant
Sentencing Submissions Heard: January 2, 2013, at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Reasons For Sentence
(Delivered Orally)
Overview
[1] The accused Nicholas Andrew Webber, pleaded guilty to the charge that he unlawfully killed Robert Topping and thereby committed manslaughter, contrary to S. 236 (1) of the Criminal Code. He also pleaded guilty to the charge that he broke and entered a dwelling house, and committed therein the offence of robbery, contrary to S. 348 (1)(b) of the Criminal Code.
Circumstances of the Offence
[2] The circumstances of the offence are taken from the Agreed Statement of Facts entered as Exhibit 1 at the sentence hearing:
[3] On March 18, 2011, Paulette Cloutier was housesitting for her son, Dustin Cloutier, at 875 Minnesota Street in Thunder Bay. Dustin Cloutier ran a cash based business from his home. Robert Topping had been in a relationship with Paulette Cloutier and they had a son, Dustin’s younger brother Jordan. Although they were no longer together, they remained good friends.
[4] At approximately midnight, Ms. Cloutier was watching television in the living room. She saw shadows outside the residence and could hear males outside, so she placed a call to Mr. Topping, who lived very nearby, asking him to drive by to see if he saw anything.
[5] After hanging up the phone, the rear door came crashing in and three males entered. The first male was holding a knife and all the males had hooded sweatshirts drawn up to conceal their faces. The males indicated they were looking for Dustin’s jewellery, money and dope. The males pinned Ms. Cloutier to the floor and one held the knife to her. Mr. Webber was one of the males, although he was not holding a knife and did not hurt Ms. Cloutier. A fourth male, Christopher Hawk entered shortly after. He was also wearing a hooded sweatshirt. She told them there was no jewellery or money and she would give them some dope. She led them into the living room where they asked about a cash box and jewellery. She gave them some marijuana she had concealed in the couch cushions and they took her Blackberry and a pack of cigarettes.
[6] She told the males that she did not have a cash box or jewellery in the home but they did not believe her and called Mr. Hawk to come hold her down on the couch, which was along the wall adjacent to the only bedroom in the home. The other three went into the bedroom. Ms. Cloutier noted that Mr. Hawk appeared to be scared and told her he was not going to hurt her. Shortly after they went into the bedroom, Ms. Cloutier heard Robert Topping say “what the fuck are you doing?” and it seemed to her as if he was standing near the bedroom door when he spoke. She could then hear the sounds of a struggle including screaming, hitting, and something striking the wall. This went on for approximately a minute before Mr. Hawk got up and fled the residence.
[7] Nicholas Webber admits that he was one of the males in that bedroom. They were looking for drugs and other goods when they were surprised to see a larger male, Mr. Topping, standing at the door to the bedroom, saying “what the fuck are you doing?” Mr. Topping stepped into the room, which was extremely small, and an altercation ensued. Although Mr. Webber acknowledges participating in the altercation, he did not have a knife nor did he stab Mr. Topping. He did see one of the other males in the room with a knife and saw that male raise and lower the knife several times. When he left the residence, he was not aware that Mr. Topping had been mortally wounded.
[8] Ms. Cloutier then could hear Mr. Topping yell “run and call the police” as well as saying something about being stabbed. She grabbed her car keys and ran out of the home in order to get assistance as there was no phone in the house and she did not know what the males had done with her cell phone. As she came outside, she could see Mr. Hawk running towards Southern Avenue. Mr. Cloutier saw that her car had been blocked by Mr. Topping’s van so she went to the next-door neighbour’s home and yelled at them to call the police.
[9] She then went to Mr. Topping’s van (the rear door was open) to find something she could use to protect herself. She selected a metal bar. She then turned to go back into the residence when she saw the other three males exit the house and walk slowly between her car and Mr. Topping’s van. They walked the opposite way of Mr. Hawk.
[10] Upon re-entering the residence to check on Mr. Topping, Ms. Cloutier found him coming out of the bedroom and sat him on the edge of the couch. He told her had had been stabbed and to call police. She could see that he was bleeding heavily and was having difficulty breathing so Ms. Cloutier returned to the neighbour’s and banged on the door asking them to call an ambulance. By this point, Mr. Topping had walked out the door to the rear deck. He repeated again that he had been stabbed and that he did not believe he was going to make it. He also told her that blood was filling his lungs.
[11] The police arrived followed by paramedics. They attend to Mr. Topping. Mr. Topping collapsed and was no longer breathing. Mr. Topping was transported to the Thunder Bay Regional Health Sciences Centre, where he was pronounced dead.
[12] A post-mortem examination done on Mr. Topping determined the following:
- He had four horizontal stab wounds to the back, varying in size between 3.5 cm and 4.5 cm in length and 7 cm and 13.2 cm in depth;
- Two of the wounds reached his lungs while one reached the diaphragm and liver;
- He also had a contusion on his left lower lip and a small cut to his right thumb and an abrasion on his wrist;
- The cause of death was hypoxia and blood loss due to or as the consequence of stab wounds to the chest.
[13] The police examined the home at 875 Minnesota Street. They found that the main door into the home was broken, as it was hanging off the hinges, with pieces of the frame broken off. At least one footwear impression was visible on the door. The police found staining later identified as Mr. Topping’s blood stretching from the bedroom, to the edge of the living room, through the kitchen and out to the back porch. The bedroom appeared to have been ransacked and there was evidence that a struggle had occurred.
[14] Further investigation by the police led them to question the residents of an apartment on Vickers Street. One of those residents was the ex-girlfriend of Dustin Cloutier. Ms. Meza-King told police that she had been partying at this apartment for a couple of weeks with a number of people, including Mr. Webber, whom she was interested in. She admitted that she had been bragging about her ex-boyfriend’s cash business during that time period. She also indicated that she told people at the party that Mr. Cloutier was going out of town just prior to March 18, 2011.
[15] Nicholas Webber states that he was asked to go and participate in the break and enter. He did not believe anyone would be at Dustin Cloutier’s residence in light of what Mr. Cloutier’s ex-girlfriend told him.
[16] Another resident of the apartment told police that on the evening of March 18, 2011, she gave a ride to a number of males, and dropped them off very close to Dustin Cloutier’s home. She said that the same males she had given a ride to returned to her apartment. They were acting “jittery”, appeared panicked and one was “freaking out”. She said that Nicholas Webber was putting something into a garbage bag and placed that bag next to a garbage bin in the pantry in her apartment. Later that same morning, sometime around 9:00 am Ms. Mesa-King received a phone call from her mother telling her that Mr. Topping had been murdered. When she repeated this information, four males got up and quickly left the apartment. One of those males was Nicholas Webber. According to Ms. Meza-King, Mr. Webber mouthed the word “sorry” as he was leaving.
[17] The police searched the apartment on March 20, 2011. In the pantry, they found a black garbage bag next to a garbage bin. In that bag was a hooded sweatshirt with Robert Topping’s blood on it. A small quantity of Nicholas Webber’s blood was also found on that same sweater.
[18] Mr. Webber was arrested on March 19, 2011. He had no injuries.
[19] At the time of this incident, Mr. Webber had a significant problem with drug use, specifically marijuana.
Information from the Pre-Sentence Report
[20] Mr. Webber is 20 years of age. He is the second eldest of five children born to Connie Webber. Ms. Webber’s first four children are from the same marital union while the youngest child is from a subsequent relationship. Mr. Webber was born in Thunder Bay. He relocated to British Columbia with his family before he was one.
[21] Ms. Webber reports that she left the offender’s father because he physically abused her, which the children witnessed.
[22] Ms. Webber returned to Thunder Bay in about 1998 and left her four children in care of their father in British Columbia. She visited with them annually in British Columbia in the spring. They visited with her in Thunder Bay in the summer.
[23] In 2001, Ms. Webber lost contact with the children and their father. Unbeknownst to her, the children were placed in foster care in 2001. They were moved among four different foster homes. Ms. Webber eventually located the children and they were returned to her in Thunder Bay in 2003, when the offender was 10 or 11 years of age.
[24] Ms. Webber advised the author of his pre-sentence report that he was using marijuana around the age of 13 and started consuming alcohol at age 15.
[25] His criminal record begins in 2007, as a young offender. His convictions include assault, robbery with violence, armed robbery, wearing a disguise with intent to commit an indictable offence and aggravated assault. He has multiple convictions as a young offender for breaches of court orders.
[26] Mr. Webber reports that he met many of his peers in custody and continued to associate with them in the community.
[27] The pre-sentence report indicates that the relationship between Mr. Webber and his mother was often antagonistic, with involvement of the local child welfare agency. Ms. Webber called the agency in 2007 for assistance because Mr. Webber would not abide by her house rules and was negatively affecting his younger siblings.
[28] In September 2007, the agency was contacted about a confrontation between Mr. Webber and his mother that became physical. Mr. Webber continued to violate his court ordered curfews while Ms. Webber was his surety. Notwithstanding their conflicts, Ms. Webber is very supportive of her son.
[29] Mr. Webber earned approximately three credits at the Grade Nine level at two different high schools in Thunder Bay. He was expelled for marijuana use. Mr. Webber reports that he has now completed about 25 high school credits, mostly while in custody.
[30] In July 2009, Mr. Webber was placed in a work program through the March of Dimes. He was terminated after six weeks for not reporting to work.
[31] The pre-sentence report states that sources indicate that daily marijuana use and alcohol use have been problematic for Mr. Webber, and that he has used oxycodone and Percocet. Mr. Webber does not believe he has an alcohol or drug problem.
[32] The author of the pre-sentence report states that Mr. Webber presented as a very polite young individual during interviews for the report. However, he was not forthcoming regarding his family history and appeared to idealise his relationships with his parents. The report states that Mr. Webber’s youth file indicates that he did not consider the consequences of his actions and he just wanted to fit in.
[33] The report indicates that attempts to engage Mr. Webber in counselling or psycho-social/psycho-educational assessments have been fruitless, that he minimizes his substance abuse and superficially discussed his previous criminal behaviour. The author of the pre-sentence report provides the opinion that a psycho-social assessment would be of benefit to Mr. Webber.
[34] During his interviews for the pre-sentence report Mr. Webber wanted to discuss his new found faith and how he has found God. He stated that once released from custody he “wants to do God’s bidding.”
(Decision continues verbatim in the same structure through paragraphs [35]–[116], maintaining exact wording and formatting.)
The Hon. Mr. Justice D. C. Shaw
Released: February 11, 2013
COURT FILE NO.: CR-11-000142-00
DATE: 2013-02-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Nicholas Andrew Webber
Defendant
REASONS FOR SENTENCE
Shaw J.
Released: February 11, 2013
/mrm