COURT FILE NO.: 8355/21 DATE: 2024-08-07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BRAD SOUTHWIND Defendant

Counsel: David Didiodato / Karen Pritchard, for the Crown Donald Orazietti, K.C., for the Defendant

HEARD: July 5, 2024

Varpio J.

Reasons for Sentence

[1] I am tasked with sentencing Mr. Brad Southwind. I previously found Mr. Southwind guilty of second-degree murder in the killing of Mr. Joseph Topping. He must receive a life sentence, and I must determine the period of parole ineligibility.

Evidence Considered

Victim Impact Statement

[2] Ms. Laura Topping read her Victim Impact Statement to the court. She presented as a woman who was attempting to make sense of a personal tragedy.

[3] She described her brother, Mr. Joseph Topping, as a man that “always tried to help others”. He grew up in a family that was wracked by mental health issues and Mr. Topping tried to make his way in the world despite these difficulties.

[4] For a period of time, he worked two jobs and appeared to be living a pro-social life.

[5] He then found himself in a position where he lost people close to him and his life began a downward spiral. Ultimately, he was murdered by Mr. Southwind.

[6] Ms. Topping showed considerable empathy for Mr. Southwind, and she is to be commended for her ability to understand the humanity in all people, including the humanity found in the man who took her brother’s life.

[7] I have no doubt that Mr. Topping’s death has caused Ms. Topping and others considerable grief.

[8] I am saddened for their loss.

Pre-Sentence Report

[9] The pre-sentence report sent to the court indicated that Mr. Southwind’s mental condition was such that he was unable to participate in the process.

Gladue Report

[10] The Gladue Report writer indicated that they could not adequately assess Mr. Southwind’s indigeneity as a result of his inability to participate in the report writing process. This inability stems from Mr. Southwind’s mental illness.

[11] Mr. Didiodato for the Crown conceded that Mr. Southwind comes from an indigenous background. To Mr. Didiodato’s credit, he synthesized the evidence filed with the court that proves Mr. Southwind’s indigeneity. I accept that evidence and am satisfied that the Gladue principles apply.

The Crime

[12] The specifics of the crime are detailed in my reasons for judgment (2024 ONSC 464). The following facts are relevant to my sentencing considerations:

1. The attack was brutal, involving 17 separate stab wounds when Mr. Southwind and Mr. Topping were in the bush in Elliot Lake, Ontario;
2. The attack happened when Mr. Southwind was suffering from serious drug-induced psychosis;
3. Mr. Southwind had been abusing drugs for some period of time prior to the incident;
4. The crime was unprovoked; and
5. There were elements of planning that fell short of first-degree murder.

The Criminal Record

[13] Mr. Southwind has a moderately lengthy criminal record that features nine separate entries for assaults (either assault, or assault police officer). The first entry occurred in 2013 and the most recent such entry was in 2021.

Mr. Southwind’s Statement to the Court

[14] During Mr. Southwind’s statement, it became apparent to me that his mental health concerns and his medication were such that his cognitive abilities were limited. He struck me as an almost frail man whose mental health problems have had an effect on his physical health.

Position of the Parties

[15] The Crown submits that the appropriate sentence in this case requires parole ineligibility for 12 to 15 years given the aggravating and mitigating features of this case. The Crown suggests that the offender’s criminal record, the brutal nature of the crime and the elements of planning demand that period of parole ineligibility even considering the Gladue factors, the need for restraint and the accused’s mental health.

[16] Mr. Southwind submits that his indigenous heritage and mental health status are such that I ought to impose a 10-year period of parole ineligibility. I should also consider the time that Mr. Southwind has already served in custody.

Analysis

General Principles

[17] In R. v. Madison, 2022 ONSC 2537, Dambrot J. synthesized the principles to be applied when sentencing indigenous offenders for murder. At paras. 37 to 40, Dambrot J. stated:

The Principles of Sentence Applicable to Parole Ineligibility

37 In determining the appropriate sentence to be imposed in this case, I bear in mind that the fundamental purpose of sentencing as set out in s. 718 of the Criminal Code is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which include among other things denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgment of the harm that criminal activity brings to our community. I must also take into consideration the sentencing principles found in s. 718.2 of the Criminal Code.

38 While the foregoing considerations apply to sentencing in general, s. 745.4 of the Criminal Code requires a judge setting a period of parole ineligibility to have particular regard to the following:

1. the character of the offender;
2. the nature of the offence and the circumstances surrounding its commission; and
3. the recommendation of the jury, if any, pursuant to s. 745.2.

39 The absence of specific reference to denunciation, general and specific deterrence and rehabilitation in s. 745.4 does not remove them from consideration as factors in the fixing of a period of parole ineligibility. Section 718 remains applicable. In addition, denunciation falls within the s. 745.4 criterion of "the nature of the offence"; deterrence is relevant because lengthened periods of parole ineligibility can be expected to deter some persons from reoffending; and all of these considerations are well-established objectives of sentencing policy and are of concern in the application of s. 745.4. Their importance will vary according to the nature of the crime and the circumstances of the offender. ( See R. v. Shropshire, [1995] 4 S.C.R. 227, at pp. 238-242.)

40 In addition, a sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 87. Sentencing judges should pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique, and different from those of non-aboriginal offenders. Sentencing judges must exercise restraint in sentencing aboriginal offenders and reduce the use of imprisonment: R. v. Gladue, [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, at paras. 37-48. Section 718.2(e) and the Gladue principles must be considered when determining parole eligibility: R. v. Jensen (2005), 74 O.R. (3d) 561, 195 C.C.C. (3d) 14 (C.A.), at para. 28, and R. v. Van Every, 2016 ONCA 87, 346 C.C.C. (3d) 381, at para. 87.

The Range

[18] The Crown provided me with a useful chart and casebook. The cases all dealt with indigenous offenders that committed murder.

[19] In R. v. Fox, 2022 MBKB 207, a 15-year parole ineligibility period was imposed where an indigenous offender with significant Gladue factors chased an individual down an alleyway and then stabbed the victim seven times with a knife. The offender was addicted to heroine and fentanyl. The killing was unplanned, and the offender had a criminal record for violence.

[20] In R. v. Jensen, [2005] OJ. No. 1052 (ONCA), the Court of Appeal for Ontario upheld a 12-year period of parole ineligibility where the offender was intoxicated and stabbed his friend 16 times. The offender was highly intoxicated at the time of the offence. The offender had a record for crimes of violence.

[21] In R. v. Madison, Dambrot J. imposed a period of parole ineligibility of 13 years. At para. 58, Dambrot J. stated:

In the end, even bearing in mind the restraint in the use of imprisonment that I must exercise in sentencing an indigenous offender, the seriousness of the crime and its devastating impact on the family of the deceased do not permit me to endorse the 10--12-year range for parole ineligibility advanced by counsel for the offender. Instead, I settle on 13 years, the low end of the range advanced by Crown counsel, as the shortest period of parole ineligibility that still satisfies the applicable principles of sentencing.

[22] In R. v. Moar, 2022 MBCA 36, the Manitoba Court of Appeal upheld a period of parole ineligibility of 15 years. In this case, the offender rang the victim’s doorbell and stabbed the victim three times in the chest. The offender suffered from mental health issues and had a record for violent offences. The offender appealed the parole ineligibility and, at paras. 51 and 52, the court stated:

The trial judge gave lengthy written reasons for the sentence that he imposed. There were a significant number of documents filed at the sentencing hearing regarding the accused's background, including a number of pre-sentence reports, Gladue reports and psychological assessments, all of which were referred to in the reasons for sentence (see para 6). Those reasons demonstrate that the trial judge was very attuned to the accused's circumstances, to his very dysfunctional upbringing and to the applicable Gladue principles.

The trial judge recognized that these circumstances had to be balanced with other circumstances related to the accused. This included his serious criminal record of violent offences with weapons, the finding that he was at a high risk to reoffend violently, the fact that he was unlawfully at large at the time of this offence and, regarding the offence, that this was a brutal attempt to gain access to a group home to get access to another person.

[23] In R. v. Picken, 2024 SKKB 14, the offender stabbed the victim 35 times in the chest. The offender had no record. A period of 12 years of parole ineligibility was imposed.

[24] In R. v. Robinson, 2013 BCSC 772, the offender pleaded guilty to stabbing the victim eight times after a drug deal. The offender had a lengthy record and suffered from substance abuse problems. He received a period of parole ineligibility of 10 years as a result of a joint position by Crown and defence.

[25] Finally, in R. v. Ryle, 2018 MBQB 32, the court imposed a period of parole ineligibility of 15 years for an offender who drank eight beers and took Xanax then entered someone’s home and repeatedly stabbed the person to death. The offender engaged in callous post-offence behaviour. The offender was only 19 years old at the time of the offence.

Character of the Accused

[26] In this case, the character of the offender is difficult to assess because of his inability to participate in the report writing process. However, I am able to draw certain conclusions from the evidence. At trial, I heard testimony from an assessing psychiatrist who testified that Mr. Southwind was suffering from a serious psychosis at the time that he stabbed Mr. Topping to death. It would appear from medical records (as described by the psychiatrist) that Mr. Southwind has struggled with mental health issues his whole life. Accordingly, I find beyond a reasonable doubt that Mr. Southwind’s personal circumstances are to some extent driven by his mental illness such that his psychoses are a defining element of his character.

[27] I also accept beyond a reasonable doubt that Mr. Southwind is a violent individual. His criminal record is replete with entries for crimes of violence. In fact, he committed offences of violence while in custody. As such, it must be stated that his personality features serious violent tendencies.

[28] Mr. Southwind is also a person who undoubtedly abuses drugs as a consequence of his mental health problems. Mr. Southwind began using alcohol and drugs at the age of 11. He reported feeling paranoid when using marijuana and he therefore quit for some time. After a short break, the offender recommenced abusing drugs and alcohol and has been abusing same for the much of his life. I therefore accept beyond a reasonable doubt that Mr. Southwind’s serious drug issues are related to his mental health.

[29] With respect to Mr. Southwind’s indigeneity, there are a number of relevant Gladue factors that enter into the analysis. In this case, Mr. Southwind suffered from displacement, substance abuse, mental heath issues, abuse at the hands of a stepfather, CAS involvement in his life and other issues that the courts tragically encounter with far too much frequency. Coupled with those systemic factors that I am required to consider, the Gladue factors have played a serious role in bringing Mr. Southwind before the court.

[30] Finally, Mr. Southwind has remorse as demonstrated in his statement to Officer O’Neill wherein Mr. Southwind effectively stated that he wished he could take the incident back.

Nature of the Offence

[31] As noted above, the instant crime can be characterized as being “horrific”. Seventeen separate stab wounds must have been an awful way to die. While I could expand upon this statement, the simple facts speak for themselves.

[32] It should also be noted that the victim appears to have been unarmed at the time of the murder and that the offence was unprovoked.

[33] The offence surely has had a traumatic effect upon Mr. Topping’s family and friends as his unexpected loss of life leaves them with a hole in their lives.

[34] Also, although falling short of first-degree murder, there were elements of planning that existed in the instant offence: the offender had coins and a knife. As per R. v. A. (T.S.), [1995] O.J. No. 535 (Ont. C.A.), this phenomenon must be considered in the imposition of the period of parole ineligibility. In A.(T.S.), the offender was found guilty of second-degree murder in a contract killing. At paras. 18 to 21, the court stated:

The appellant submits that this discloses an error in principle. A "contract killing" is a species of planned and deliberate murder and, therefore, is first degree murder (Criminal Code ss. 231(2) and (3)). Although the record in this case disclosed elements of planning and deliberation, the appellant submits that the sentencing judge was precluded from considering this evidence as a basis for increasing the period of parole ineligibility.

I do not accept this submission. It ignores the requirement in s. 744 of the Code that the court consider, among other factors"the nature of the offence and the circumstances surrounding its commission"; it does not follow from the proposition in Gourgon and the other cases cited above; and it is contrary to a well-established course of decisions.

With respect to the Gourgon proposition, it is clear that a court must not sentence on the basis of a fact or facts which have not been found. See also R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.) and R. v. Brown (1991), 66 C.C.C. (3d) 1 (S.C.C.). That, however, is not the case here. The facts are agreed upon and they include features of planning and deliberation. These features are woven throughout the events, and are an inextricable part of the facts.

In determining the gravity of the offence, it is proper for the sentencing judge to consider the planning and deliberation aspects of the evidence as relevant evidence of the "nature of the offence and the circumstances surrounding its commission" and many courts have done so: R. v. S.B.S. (1990), 44 O.A.C. 326 (C.A.); R. v. Johnston, [1991] O.J. No. 1065 (Ont. C.A.), June 25, 1991; R. v. Young (1992), 73 C.C.C. (3d) 289 (Ont. C.A.); R. v. Chaudhary (No. 2) (1988), 31 O.A.C. 243 (C.A.); R. v. Able (1993), 65 O.A.C. 37 (C.A.); and R. v. Kulba (1986), 27 C.C.C. (3d) 349 (Man. C.A.).

The Balancing

[35] While I have sympathy for Mr. Southwind’s position that he should receive a ten-year period of ineligibility as a result of his tragic personal history, this position fails to adequately consider the aggravating features of this case. First, I do not have much, if any, hope that Mr. Southwind can be rehabilitated. His criminal record, coupled with his mental health and drug relapses suggest that the issues that underly Mr. Southwind’s behaviour will not ever be adequately addressed.

[36] Second, I consider the factors described in s. 718 of the Criminal Code of Canada. I hereby engage in judicial restraint as demanded by s. 718 (e) and Gladue. Despite same, the need for deterrence and denunciation are paramount in this case. I agree with the Crown that the offence was brutal in nature, with 17 separate stab wounds proving that Mr. Topping met a horrifying end.

[37] Third, there are also elements of planning in this offence that, while they fall short of first-degree murder, are nonetheless serious factors to be considered as per R. v. A.(T.S.).

[38] Thus, the aforementioned aggravating factors must be given serious weight, even when I engage in judicial restraint as the Criminal Code and the binding jurisprudence require. While I realize that Mr. Southwind is an indigenous person with mental health concerns, the disturbing nature of the crime, the elements of planning, and the offender’s violent tendencies as evidenced by his criminal record demand that denunciation and deterrence be given paramount consideration. A ten-year period of parole ineligibility would not reflect that reality.

[39] This is a case that is at the upper-end of the range as described in the aforementioned jurisprudence. The accused’s record is substantial and the facts contain elements of planning. The accused has little chance of rehabilitation and the crime was heinous. As such, a 15-year period of parole ineligibility must be imposed in this case to address the varied principles of sentencing despite the fact that I am engaging in judicial restraint. Anything less fails to give adequate weight to the three aforementioned aggravating factors.

[40] The defence suggested that I ought to consider Mr. Southwind’s time in pre-sentence custody. As per R. v. McKenna 2020 NBCA 71, that is not a relevant consideration in the imposition of a period of parole ineligibility.

Conclusion

[41] Mr. Southwind is hereby sentenced to life imprisonment with no chance of parole for 15 years.

[42] He will provide a sample of his DNA.

[43] He will be subject to a s. 109 order for life.

Varpio J. Released: August 7, 2024