Court File and Parties

COURT FILE NO.: 8355/21 DATE: 2024-01-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BRAD SOUTHWIND Defendant

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

HEARD: November 20, 21, 22, 23, 24, 27, 28, 29, 30, December 1, 4, 13, 2023

Varpio J.

Reasons for Judgment

[1] Mr. Brad Southwind stands accused of murdering Mr. Joseph Topping in the first part of 2018. Mr. Southwind and Mr. Topping were friends who lived in the same apartment complex in Elliot Lake, Ontario. They would spend time together and would use drugs with one another.

[2] Mr. Topping was last seen on or about January 1, 2018. He was reported missing by his mother on January 8, 2018. Police investigated his disappearance. On February 14, 2018, police dogs located Mr. Topping’s body in the bush near Elliot Lake. Mr. Topping had been stabbed 17 times.

[3] Mr. Southwind became a suspect in the killing. Ultimately, in the summer of 2018, Mr. Southwind confessed to killing Mr. Topping. Mr. Southwind was arrested for first-degree murder.

[4] In the summer of 2022, Mr. Southwind was tried by a judge and jury but his matter was declared a mistrial. He re-elected to have his retrial proceed as a judge-alone trial before me. The Crown and the defence filed the evidence from the first trial. They agreed that I ought to accept that evidence for the truth of its contents. Based upon my review of the evidence, and counsel’s submissions, I accept all the evidence filed as being true, save and except where I specifically note otherwise in these reasons.

[5] The only issue I must determine is the mens rea component of the case. Dr. Jeffery Van Impe, a psychiatrist, was the only witness called at trial. Early on in the proceedings. Dr. Van Impe met with Mr Southwind as part of a court-ordered assessment. Based on the evidence filed by the parties and based on Dr. Van Impe’s testimony, the defence submits that Mr. Southwind is guilty of manslaughter. The Crown submits that Mr. Southwind is guilty of first-degree murder.

[6] For the following reasons, I hereby find Mr. Southwind guilty of second-degree murder.

Facts

Discovery of the Body

[7] Mr. Topping was a resident of Elliot Lake, Ontario. He suffered from health issues that required regular medication. On December 27 or 28, 2017, Mr. Topping attended Freitag Pharmacy in Elliot Lake where the pharmacist provided Mr. Topping with his medication. Mr. Topping was scheduled to pick up his next dosage on January 4, 2018. Mr. Topping did not pick up that next dosage.

[8] In early January 2018, Mr. Topping’s mother called the Ontario Provincial Police (“OPP”) to report that she had not seen her son for a few weeks. She was concerned for his wellbeing. The OPP began investigating Mr. Topping as a missing person. Cst. Joshua Dagg of the OPP interviewed Mr. Topping’s friends, neighbours, and associates in hopes of finding Mr. Topping.

[9] On February 4, 2018, Detective Constable Steven Groot met with Mr. Southwind as regards Mr. Topping. Mr. Southwind was not yet a person of interest in the investigation. During the meeting, Mr. Southwind gave a key fob to D/Cst. Groot. The fob belonged to Mr. Topping.

[10] On February 14, 2018, Constable Barry Kelly, a K-9 officer with the OPP, was tasked with searching for Mr. Topping’s body near a snow dump on Canmet Road in Elliot Lake. The area had some bushes and other such Northern Ontario rural features. Cst. Kelly was working with his track dog, Dance, to execute the search. Around 10:00 a.m., Dance located Mr. Topping’s body under the snow in the area of a cattail swamp. The OPP also located Mr. Topping’s driver’s license and health card on Mr. Topping’s person.

[11] With the discovery of Mr. Topping’s body, the investigation changed from a “missing person” investigation into a “sudden death” investigation.

[12] Mr. Topping’s body was sent to the Sault Area Hospital for examination by Dr. Michael D’Agostino, a forensic pathologist. Dr. D’Agostino identified 17 stab wounds to Mr. Topping’s body including:

(a) Four stab wounds to the head; (b) One stab wound to the right neck; (c) Five stab wounds to the anterior torso; (d) Four stab wounds to the back; (e) One stab wound to the thigh; and (f) Two stab wounds to the hands.

[13] Dr. D’Agostino opined that Mr. Topping died as a result of “multiple stab wounds”. In particular, Dr. D’Agostino noted that three stab wounds were significant:

(a) Stab wound #1 to the right base of the neck, which penetrated Mr. Topping’s torso; (b) Stab wound #6 to the left chest that penetrated Mr. Topping’s left lung; and (c) Stab wound #11 to the right upper back that superficially penetrated Mr. Topping’s right lung.

[14] Dr. D’Agostino opined that any of these three stab wounds, either on their own or in combination with each other, would be fatal.

[15] Dr D’Agostino also opined that these stab wounds were caused by the repeated forceful thrusts of pointed and edged instruments that can stab and cut. The appearance and configuration of the stab wounds were consistent with being caused by an instrument such as a knife. The stab wounds caused possibly fatal effects including hemorrhagic shock, medically significant blood loss, pneumothorax, and/or hematoma related compression.

[16] The amount of force required to cause those injuries was significant enough to penetrate clothing (denim pants and multiple layers of upper body clothing) and to breach the body’s strongest barriers (skin, bone, muscle, and connective tissue) multiple times.

[17] As a result of Dr. D’Agostino’s autopsy, the investigation turned from a sudden death investigation into a homicide investigation.

Mr. Southwind Becomes a Suspect

[18] Constable Rodney Petroski of the OPP was the forensic identification officer in this case. On February 17, 2018, Cst. Petroski located a lighter near the area where Mr. Topping’s body was located. A subsequent DNA analysis of the lighter revealed the DNA of both Mr. Topping and Mr. Southwind. Mr. Southwind became a suspect.

[19] Police attempted to interview Mr. Southwind on March 1, 2018, but Mr. Southwind left the police station abruptly prior to the completion of the interview.

[20] On May 10, 2018, Cst. Petroski returned to the area where Mr. Topping’s body had been found and the officer discovered a black jacket under a piece of metal, approximately 30 metres from where Mr. Topping’s body had been located. Snow had previously covered the area. A DNA analysis of the jacket revealed the DNA of both Mr. Topping and Mr. Southwind.

[21] Approximately three months later, on August 19, 2018, Mr. Southwind’s grandfather, Mr. Carl Starnyski, was doing laundry when he found paperwork that suggested that Mr. Southwind was being investigated for a crime. Mr. Starnyski asked Mr. Southwind what had happened and Mr. Southwind responded that he had “stabbed Joe Topping”. Mr. Southwind also stated that he “stabbed Joe in the chest”. Mr. Starnyski then asked Mr. Southwind how he knew that Mr. Topping was dead and Mr. Southwind replied that Mr. Topping’s “eyes were still open, he wasn’t breathing”. Sgt. Chris Pritchard of the OPP testified that the cause of death (i.e. the stabbing) was “holdback” information, not released to the public.

[22] On August 20, 2018, Mr. Starnyski took Mr. Southwind to the Elliot Lake OPP detachment where Mr. Southwind was arrested for murder.

The Police Interview

[23] On August 21, 2018, Mr. Southwind was interviewed by D/Sgt Caley O’Neill of the OPP. D/Sgt. O’Neill talked to the accused about Mr. Topping’s disappearance, Mr. Southwind’s mental health issues and his drug use. The officer then tried to get the accused to discuss the events in question. Mr. Southwind stated that Mr. Topping had suicidal ideations. Mr. Southwind also stated that Mr. Topping was “off his meds”. Mr. Southwind denied trying to “balance out the world”. Rather, Mr. Southwind stated that “it’s my own chemical balance that I’m trying to balance”.

[24] Mr. Southwind then stated that Mr. Topping had a death wish, that the latter did not want to take his medication or go to the hospital.

[25] Mr. Southwind stated that on the day in question, he and the victim “were smudging we were dancing and we were fucking doing drugs”. Mr. Southwind then offered that “it was my understanding he [Mr. Topping] wanted to die”. He then stated that “I really wish he was fuckin here man I don’t know I know I can’t take it back like it’s how I’ve lived this life a thousand fucking times and I can never get it right.”

[26] He further stated, “you know let’s fuckin’ do some drugs and we were doing some pretty wild stuff man it’s not explainable I it’s it’s like I’m you know hanging with your best friend and then… you lose control or something”. Ultimately, the accused stated, “I was all fucked I was all like high and…”.

[27] Mr. Southwind then stated

SOUTHWIND: then the next thing you know I was I was blessing him and he was he was like he was said you know he was sad but then he was happy and then he was sad and then next thing you know Joseph was gone and I try to be a best friend you know but I wasn’t the best friend in the world that’s for sure.

O’NEILL : where was the smudging happening or the blessing Brad

SOUTHWIND: my apartment

O’NEILL: okay

SOUTHWIND: his apartment I would’ve still had that fuckin braid of sweet grass I don’t know and that night that night I was just knocking on Keegan’s door and then fuckin buddy comes out and punches me and then Keegan has a fuckin knife and and like the the whole thing is twisted around you know like I don’t I don’t understand

O’NEILL: well we’re not talking about the night with Keegan the night

SOUTHWIND: I know I know I know but like move me losing my apartment that was like I was fuckin trying man

[28] At this point, the accused appeared to confuse the current episode for a different episode and D/Sgt. O’Neill brought him back to the night in question.

[29] The accused then stated that “it’s almost like he [Mr. Topping] could read my mind”. The accused also stated that Mr. Topping believed Mr. Southwind to be the “Medicine Man”. He stated, “like I don’t know he he he it’s like he he recognized me as a medicine man you know but like that that’s not that’s fucking I don’t know you can’t take you can’t I can’t take I can’t take it back…”. He further referenced this status by stating that Mr. Topping “was sick of life said he didn’t want to go to the hospital he didn’t he didn’t know what to do and he asked me he was he was always like like like you’re the medicine man Brad you know what to do it’s like we came to that decision together.”

[30] Mr. Southwind said when the pair were walking into the woods, they were “joking, dancing, all sorts of things and doing more drugs”. He stated that “the rest is just unexplainable.”

[31] Mr. Southwind admitted to stabbing the victim. After the victim began screaming, however, Mr. Southwind “didn’t want him to hurt so after the first time it was like you know I like I don’t know. I really don’t know.”

[32] Mr. Southwind told D/Sgt. O’Neill that he wanted to put coins on Mr. Topping’s eyes so as to give him “good rest”. He was not able to put the coins on Mr. Topping’s eyes so he put them nearby. Mr. Southwind also told D/Sgt. O’Neill that he tossed the fixed blade knife. Mr. Southwind was not sure where he got the knife – maybe from his house, maybe from Mr. Topping’s house, he was not sure. Mr. Southwind repeated that he was very high during the incident. Mr. Southwind added, “I swear he could read my mind though he told me the weirdest things like things I had I had never told anybody”.

[33] Close to the end of the interview, the following exchange took place:

O’NEILL: So did he talk about this what was gonna happen in the woods before you guys went out to the woods from your apartment?

SOUTHWIND: Yeah.

O’NEILL: Okay and what was said there the reason why I’m asking that Brad is because obviously you brought a knife with you right so

SOUTHWIND: Yeah.

O’NEILL: There must’ve been some degree of planning or talking about what was going to happen when you get there is what I’m getting at

SOUTHWIND: Yeah.

O’NEILL: So what did you guys talk about in your apartment?

SOUTHWIND: Farewells.

Dr. Jeffrey Van Impe

Examination-in-Chief

[34] Dr. Van Impe was called by the defence as an expert in forensic psychiatry.

[35] Dr. Van Impe works at both Burlington Hospital and at the Waypoint Centre for Mental Health Care in Penetanguishene as a forensic psychiatrist. At the latter institution, he works with people involved in the criminal justice system. He has given expert opinions to the court approximately 75 times.

[36] Mr. Southwind was referred to Dr. Van Impe in the fall/winter of 2018 for an assessment regarding a possible finding of “Not Criminally Responsible” (“NCR”) and regarding Mr. Southwind’s fitness to stand trial. Dr. Van Impe found that Mr. Southwind was fit to stand trial and did not meet the definition of NCR.

[37] Dr. Van Impe testified that he had no independent recollection of meeting Mr. Southwind given the number of people he meets in a given month. [1]

Overview

[38] Dr. Van Impe began his testimony by discussing Mr. Southwind’s drug use. Polysubstance abuse can have numerous effects. Dr. Van Impe opined that substance abuse can exacerbate an individual’s mental health issues. Further, it is well known in the psychiatric community that the use of crystal methamphetamine can mimic the symptoms of psychotic disorders, and can exacerbate pre-existing tendencies in that regard. Classic psychotic symptoms include hallucinations and other such reality-altering tendencies. The most common side effects of this psychosis and/or polysubstance abuse are auditory hallucinations (i.e. hearing voices) and delusional beliefs (believing something to be true that is not actually based in reality). These side effects can include bizarre speech patterns and bizarre thought processes.

[39] Schizophrenia is the most severe psychotic disorder diagnosis. Schizophrenia is diagnosed where an individual has at least a six month history of delusions, hallucinations, and disorganization of behaviour and functioning. While there may not be unanimity on this point, psychiatrists generally agree that those individuals who exhibit the most extreme psychotic symptoms have schizophrenia.

[40] Within schizophrenia, there are sub-types. The subtype describes the predominant symptom. In this case, Mr. Southwind was diagnosed with schizophrenia, paranoid type. The primary symptoms for someone diagnosed with schizophrenia paranoid-type are fear, mistrust, paranoia and paranoid delusions.

[41] Dr. Van Impe also testified that Mr. Southwind had been diagnosed with general anxiety disorder. This is not a part of the spectrum of psychotic disorders, but is instead a part of the spectrum of anxiety disorders. Within the anxiety spectrum, a generalized anxiety diagnosis is most common and its symptoms include overthinking, overanalyzing, difficulty sleeping, profuse sweating, etc. In order for an individual to be diagnosed with generalized anxiety disorder, the symptoms suffered must have a direct impact on the individual’s functioning.

Mr. Southwind’s Medical History

[42] Mr. Southwind reported that he began using narcotics around the age of 12. Dr. Van Impe testified that Mr. Southwind’s initial encounters with healthcare were primarily related to the misuse of substances. The medical records reviewed by Dr. Van Impe reveal that, early on in Mr. Southwind’s treatment, there was a concern that cannabis made Mr. Southwind paranoid which changed Mr. Southwind’s mental state significantly.

[43] In 2015, Mr. Southwind began seeing a psychiatrist, complaining of thought insertions, and of hearing voices. The psychiatrist prescribed medication to treat the psychosis.

[44] In July 2016, Mr. Southwind’s medical evidence suggested that he was still hearing voices. The dosage of medicine that Mr. Southwind was taking was therefore increased.

[45] On December 18, 2017, Mr. Southwind’s records indicate that he no longer wished to take his medications. This is a common attitude, as per Dr. Van Impe, as the medication can have side-effects. In this case, the records suggest that Mr. Southwind began to believe that he was “The Medicine Man”, which is a reference that Dr. Van Impe thought may have cultural significance. Dr. Van Impe opined that schizophrenia is not a time-limited disorder and, as a result, the failure to take medication would result in the return of symptomology within 6 to 8 weeks of cessation. If someone like Mr. Southwind were to abuse substances while giving up his normal medication, it would be like “adding fuel to a fire” in that the substance abuse would speed up the onset and the intensity of the psychotic symptoms, as well as their impact upon an individual’s functionality and behaviour. The records indicate that Mr. Southwind’s last injection of his prescribed medication was in September of 2017. On December 18, 2017, Mr. Southwind stated that he was hearing voices that were not nice to him at times.

[46] On January 3, 2018, Mr. Southwind saw a nurse at the emergency department who wrote that Mr. Southwind was “becoming symptomatic”. Dr. Van Impe testified that he assumes that the symptoms referenced in the note pertain to psychosis because the notes also refer to antipsychotic medication. This combination of factors suggested to Dr. Van Impe that the symptoms referred to the worsening of voices, delusions and “that sort of thing”.

Dr. Van Impe’s Meetings with Mr. Southwind

[47] Dr. Van Impe first met with Mr. Southwind at a December 6, 2018 meeting. Mr. Southwind appeared guarded, and kept asking for his lawyer. Nonetheless, Mr. Southwind indicated that neither he nor his counsel objected to the NCR assessment. At that time, Mr. Southwind was medicated.

[48] On December 28, 2018 and January 10, 2019, Dr. Van Impe again met with Mr. Southwind and discussed, inter alia, Mr. Southwind’s drug use at the time of the offence. Mr. Southwind indicated that he had been snorting large quantities of crystal methamphetamines, was drinking between three and fourteen beers a night and was taking other narcotics. Mr. Southwind was not sleeping well during this time and was using opioids to reverse the effects of the crystal methamphetamines. Crystal methamphetamines can cause an individual to become psychotic, paranoid, reclusive and guarded. At other times, as per Dr. Van Impe, a person in this state can appear exuberant with hyperactivity, can see things and can become agitated.

[49] Opioids “[take] the edge off” and make an individual a little groggy. Someone abusing crystal methamphetamines will often take opioids to help them sleep. Mr. Southwind also claimed to be consuming alcohol at the time of the offence which can cause the individual to become more impulsive and may impair their decision-making. The doctor opined that the effects of alcohol would have paled in comparison to the effects of crystal methamphetamine.

[50] During these meetings, Mr. Southwind referred to his state of mind at the time of the offence. He indicated to Dr. Van Impe that he was “all meth’d out, you know”, referring to crystal methamphetamine usage. Mr. Southwind also believed that he was possessed by his own father and that Mr. Topping could read his thoughts. Further, Mr. Southwind recalled his belief that he was the “Medicine Man” and that he was in the wrong dimension. Mr. Southwind believed that he needed to dissolve in order to go back to the right dimension.

[51] As regards the killing, Mr. Southwind told the doctor that he was not “thinking straight”. On that day, Mr. Southwind reported that he was blessing, then drinking, wine. He also told the doctor of his belief that Mr. Topping could communicate with the accused telepathically. Mr. Southwind reported that he and Mr. Topping went into the woods because Mr. Topping could read Mr. Southwind’s mind. Mr. Topping wanted to die and both individuals understood that they were going into the woods to end Mr. Topping’s life.

[52] Mr. Southwind communicated that he believed that he would be rewarded for killing Mr. Topping and that he would see the victim “on the other side”.

[53] Dr. Van Impe opined that Mr. Southwind’s views were generated by both his psychosis and his substance abuse. Use of crystal methamphetamines and schizophrenia can both cause this type of thinking.

[54] By way of contrast, however, Dr. Van Impe noted that Mr. Southwind did not turn himself in to the authorities after the killing. The doctor opined that this fact at a minimum suggests that Mr. Southwind appreciated the legal wrongfulness of his actions. Individuals who are “incredibly psychotic” tend to remain at the scene of the crime because they want to explain their actions to the authorities.

[55] The doctor met with the accused again on February 7, 2019. The pair canvassed the accused’s aforementioned drug use. Mr. Southwind indicated that he was “pretty fucked up” and the doctor opined that this statement is an accurate reflection of Mr. Southwind’s mental state at the time of the killing.

[56] The doctor testified that, during the accused’s time at Waypoint, the accused did not indicate that he was suffering from any delusions, likely because Mr. Southwind was being treated with appropriate medication.

Dr. Van Impe’s Opinion

[57] The doctor was asked whether, but for the accused’s drug use and mental illness leading up to the killing, would the offence have occurred. The doctor gave the opinion that, at the time of the killing, the accused was likely in a state of psychosis by virtue of his schizophrenia which was amplified by substance abuse. But for the intoxication and the psychosis, the doctor opined that it was unlikely that the offence would have occurred. The underlying psychosis was thus worsened by substance abuse and Mr. Southwind would have been in a much more impulsive state as a result. The accused’s decision-making would have been much worse as a further consequence. The accused would also likely have been much more argumentative and irritated. Absent the drug use, the doctor did not think that the accused would have been in a state where this offence would have happened.

[58] Ultimately, based upon his own assessment, the doctor was of the opinion that Mr. Southwind’s primary diagnoses are “Schizophrenia, Polysubstance Use Disorder, Conduct Disorder, and Antisocial Personality Traits”. The doctor testified that Polysubstance Use Disorder is new terminology for addiction and that Conduct Disorder is a precursor to Antisocial Personality Disorder. Dr. Van Impe described Conduct Disorder as a disregard for rules and regulations. In younger people, this diagnosis will often be accompanied by a myriad of possible symptoms including school truancy, disregard for parents, staying out overnight and cruelty to animals.

[59] The doctor also opined that Mr. Southwind was more prone to psychosis than the average person, but that the specific symptoms that were occurring around the time of the offence were the result of extreme intoxication flowing from the use of illicit substances.

[60] The doctor did not believe that the accused “lost knowledge of the legal or moral wrongfulness” of his actions. The doctor indicated that the accused gave competing versions of events: Mr. Southwind’s recitation of the killing shifted from a view that the killing was metaphysical to more of an “assisted suicide” version of events. Based upon this disclosure and the remainder of his interviews with the accused, Dr. Van Impe was not satisfied that Mr. Southwind felt morally justified in doing what he was doing. The doctor testified that, if Mr. Southwind had taken the average person’s views of the killing into account, Mr. Southwind would not have thought that this average person would think that the killing was morally justified.

[61] With respect to foreseeability, Dr. Van Impe opined that, in his state of intoxication, Mr. Southwind would have known that repeatedly stabbing Mr. Topping would have hurt, injured and/or killed the victim. In other words, Dr. Van Impe testified that Mr. Southwind had no disconnect between his awareness of his own behaviour and the potential negative outcomes of that behaviour. Nonetheless, the doctor testified that the accused’s decision-making was likely impaired and that no one will know the conversation that actually happened as between the accused and the victim and how that delicate interplay occurred.

Cross-Examination

[62] The doctor clarified that his view of Mr. Southwind’s symptomology was based on both self-reporting and medical documentation from other physicians and service providers.

[63] He further testified that schizophrenia is a common diagnosis in his line of work. People with this diagnosis are still capable of rational choices.

[64] Dr. Van Impe testified that stress can affect symptomology and that killing a person is a stressful event such that Mr. Southwind’s symptomology post-killing may be different than his symptomology pre-killing.

[65] The doctor clarified that his view of Mr. Southwind’s “extreme intoxication” was not a reference to a legal standard. He then opined that Mr. Southwind was affected by substance abuse and mental illness in combination, and that the accused’s substance use would have made the accused more impulsive because that is true of most people.

[66] The Crown then took the doctor to the following passage in his report:

When asked why he hadn’t turned himself in if he truly believed that the victim had wanted to be killed, Mr. Southwind stated that he had realized the reality of his situation shortly after the offence had occurred and had come to understand that “maybe they wouldn’t think this was assisted suicide”. I asked him again why he hadn’t turned himself in earlier and he said, “I dunno. I really don’t know”. He admitted that he was fearful that “the cop would just say you’re going away for a long time, a doctor would help with therapy”.

[67] From this passage, Dr. Van Impe reaffirmed that Mr. Southwind’s version of events had shifted to an “assisted suicide” narrative.

[68] The doctor testified that it was his opinion that the accused’s symptomology did not impact his ability to understand the nature and consequences of his actions. The accused was more impulsive, but he did not reach the state where he lost the ability to appreciate his actions. Thus, the symptomology did not impact the accused’s ability to make rational decisions or his ability to appreciate the consequences of his actions.

[69] Dr. Van Impe was then taken to the following passage of his report:

I am of the psychiatric opinion that substance use had either caused or significantly accentuated any psychotic symptoms Mr. Southwind was experiencing. Regardless, I do not believe that his psychotic symptoms reached the point whereby he lost an appreciation for the moral or legal wrongfulness of his actions or lost the ability to make rational choices about his behaviour.

[70] Dr. Van Impe was then taken to the following passage of his report and he indicated it reflected his opinion as of the date of his testimony:

To summarize, I have no doubt that Mr. Southwind had full awareness of the actions he was engaged in as he was ending the victim’s life. I am of the opinion that Mr. Southwind knew that he was stabbing the victim and that his actions would cause the victim to die. I have no doubt that Mr. Southwind appreciated that his actions ran counter to the law and were legally wrong.

[71] Mr. Southwind’s statements about the offence were then put to Dr. Van Impe. Mr. Southwind recalled telling the victim his concerns about the killing and recalled the victim replying “don’t worry, you’ll only get four months of house probation”. Dr. Van Impe testified that Mr. Southwind recalled grabbing the knife that he used to kill the victim and putting the knife in his coat. He then testified that Mr. Southwind recalled giving Mr. Topping pills so that the victim would not feel any pain. Mr. Southwind also recounted the victim screaming and recounted his developing worry that he would “get” attempted murder. Further, Mr. Southwind told Dr. Van Impe that he stabbed the victim 20 to 30 times because the victim would not stop moving. Finally, Mr. Southwind recalled bringing coins with him as part of a death ritual. These statements, as per Dr. Van Impe, were indicative of the accused considering consequences and engaging in intentional behaviour.

Position of the Parties

[72] Mr. Southwind submits that he is guilty of manslaughter. Given Dr. Van Impe’s opinion that Mr. Topping’s death would not have occurred but for Mr. Southwind’s drug fueled psychosis, his impulsivity, and his alleged inability to foresee consequences, Mr. Southwind is therefore guilty of manslaughter.

[73] The Crown submits that Mr. Southwind is guilty of murder because the “common sense inference” demands that Mr. Southwind knew that stabbing someone 17 times would cause death. The murder is first-degree murder, as per the Crown, because it was planned and deliberate.

Analysis

The Law

Murder

[74] Section 229(1)(a) of the Criminal Code of Canada describes the offence of murder:

Murder

229 Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[75] Sections 231(1), (2) and (7) of the Criminal Code of Canada state:

Classification of Murder

231 (1) Murder is first degree murder or second degree murder.

Planned and deliberate murder

(2) Murder is first degree murder when it is planned and deliberate.

Second degree murder

(7) All murder that is not first degree murder is second degree murder.

[76] In R. v. Nygaard, [1989] SCJ No. 110 (SCC) at para. 13, the Supreme Court of Canada explained the classic definitions of “planned” and “deliberate”:

What then is the meaning of planned and deliberate and can that classification be applied to the requisite intents set forth in s. 212(a)(ii)? It has been held that "planned" means that the scheme was conceived and carefully thought out before it was carried out and "deliberate" means considered, not impulsive. A classic instruction to a jury as to the meaning of "planned and deliberate" was given by Gale J., as he then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153:

I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

[77] Campbell J. recently synthesized the jurisprudence regarding “planned” and “deliberate” in R. v. Mohiadin, 2023 ONSC 2520. At para. 27 of his reasons, he stated:

As juries are typically instructed, the words "planned" and "deliberate" mean different things. "Planned" means a calculated scheme or design that has been carefully thought out. The consequences of it have been thought over, weighed and considered. The plan does not have to be complicated, or sensible. Indeed, it may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out. A planned murder is one that it is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. There is no requirement that a plan must take hours or days to prepare - in short, there is no minimum period of time required. However, a murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder. "Deliberate" means "considered, not impulsive", "carefully thought out, not hasty or rash", "slow in deciding", "cautious." A deliberate act is one that the accused has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the murder starts. A murder committed on a sudden impulse, and without prior consideration, even with an intention to kill, is not a deliberate murder. See, for example: David Watt, Watt's Manual of Criminal Jury Instructions (2023), at pp. 729-740; R. v. Widdifield (1961), 6 Crim.L.Q. 152 (O.H.C.J.), at pp. 153-154; R. v. Reynolds (1978), 44 C.C.C. (2d) 129 (Ont.C.A.) ; R. v. Smith (1979), 51 C.C.C. (2d) 381 (Sask.C.A.) ; R. v. Droste, [1984] 1 S.C.R. 208 ; R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084 ; R. v. Aalders, [1993] 2 S.C.R. 482, at pp. 489-491, 502-504; R. v. Ayotte, [1998] O.J. No. 4700, at paras. 64-65 ; R. v. Weese, 2010 ONSC 3589, at para. 17 ; R. v. Banwait, 2011 SCC 55, reversing: 2010 ONCA 869, at paras. 178-189 ; R. v. Robinson, 2017 ONCA 645, at para. 34.

The Common Sense Inference

[78] The Supreme Court of Canada described the “common sense inference” at paras. 19 and 20 of R. v. Seymour, [1996] 2 SCR 252 (SCC). Specifically, the Supreme Court indicated that it can be inferred that “sane and sober” people intend the consequences of their actions:

When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused's state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.

It used to be a standard instruction to juries that there was a presumption that a person intends the natural and probable consequences of his or her acts. However, the Ontario Court of Appeal wisely held in R. v. Giannotti (1956), 115 C.C.C. 203, that, rather than a presumption, it should be considered a reasonable inference which may be drawn but is not required to be drawn by juries. This reasoning was subsequently affirmed in Mulligan v. The Queen, [1977] 1 S.C.R. 612. [Emphasis in original.]

Intoxication

[79] Intoxication affects the “common sense inference” given the condition precedent of a “sane and sober” person. In this regard, the Supreme Court stated in Seymour at paras. 21 to 23:

However, different considerations will apply where there is evidence that the accused was intoxicated at the time of the offence. The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused's actual intent.

That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor in any consideration of that inference. It follows that the jury must be instructed to take into account the evidence of the accused's consumption of alcohol or drugs, along with all the other evidence which is relevant to the accused's intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions.

One of the effects of severe intoxication is an inability to foresee the consequences of one's actions, much less intend them. It was for this reason that the Ontario Court of Appeal in MacKinlay, supra, at p. 322, held that the state of mind required to commit the crime described in s. 229(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act and that, therefore, the jury should consider whether intoxication affected his ability to have the required foresight.

It is common knowledge that a significant degree of intoxication may affect a person's state of mind and thus the ability to foresee the consequences of actions.

It is, therefore, essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference. See Robinson, at para. 65. A trial judge is obliged to ensure that the jury understands two important conditions: (1) the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and (2) the inference cannot be applied if the jury is left with a reasonable doubt about the accused's intention.

[80] Building upon this principle, the Supreme Court of Canada recognized three levels of intoxication: mild, advanced and extreme. Mild intoxication does not affect an accused’s criminal liability, whereas advanced and extreme intoxication can. In R. v. Daley, [2007] SCC 53 at paras. 41 to 43, the Supreme Court discussed the three levels of intoxication and their impact:

Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call "mild" intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p. 99. Second, there is what we might call "advanced" intoxication. This occurs where there is intoxication to the point where there is an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials:

In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para. 49]

A defence based on this level of intoxication applies only to specific intent offences.

It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved. This was recognized by this Court in Robinson, at para. 52, in regards to some types of homicides:

[I]n cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an "air of reality" to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone's head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill.

Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused's act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type.

The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. As discussed above, such a defence would be extremely rare, and by operation of s. 33.1 of the Criminal Code of Canada, limited to non-violent types of offences.

Mental Health

[81] As noted earlier, mental health and mens rea are often interwoven, especially when one considers that the “common sense inference” is to be applied to “sane and sober” people. In R. v. Walle, 2012 SCC 41, [2012] 2 SCR 438 (SCC), the Supreme Court of Canada dealt with said interplay. In Walle, the accused suffered from a series of mental health issues. He also fired a gun at the victim’s chest from close range, thereby causing the victim’s death. At para. 40 of the decision, the court stated:

The appellant’s principal argument on appeal is that the trial judge was wrong to apply the “common sense inference” before considering all of the evidence bearing on the appellant’s mental state at the time of the shooting, namely, the appellant’s developmental delays and his alcohol consumption. As will become apparent when I address the proposed fresh evidence under the second issue, the appellant is said to suffer from a number of psychological disorders including Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder, and alcohol abuse disorder. That said, at trial there was no forensic evidence relating to these disorders — nor, as I shall explain, any other evidence — that could realistically have impacted on the issue of the appellant’s mental state at the time of the shooting. In particular, no evidence was directed at whether in shooting the deceased in the chest at close range, the appellant was aware of — and thus can be said to have intended — the consequences that were likely to follow from his action.

[82] At paras. 47 to 52 of Walle, the Supreme Court highlighted the kinds of evidence a court may examine when considering how mental health issues impact foreseeability:

First, the appellant’s evidence about his developmental delays is based on Ms. Stewart’s testimony. Ms. Stewart testified as a lay witness. Her evidence did not address the issue of the appellant’s intent and, more particularly, what impact, if any, the appellant’s “developmental delays” may have had on his awareness of the consequences of firing a bullet into someone’s chest at close range.

The evidence of the appellant’s hospitalization on a mental health warrant is equally unhelpful. No evidence was led at trial as to the nature of the health problem or what impact, if any, it may have had on the appellant’s mental state at the time of the shooting.

The appellant’s “blank” affect at the bar, as described by one witness, is of little import. The appellant himself admitted to being nervous when he entered the bar for the third time, knowing that he had the gun concealed under his coat. His own evidence shows that he was aware of what he was doing and very much alive to the potential consequences of his actions.

As for the appellant’s hand gestures while testifying and the evidence that he was waving the gun around before it discharged, the trial judge was clearly aware of these features. They related directly to the appellant’s primary, if not singular, defence that his act of pulling the trigger was involuntary and that the discharge of the gun was therefore unintentional. The trial judge considered and rejected the appellant’s “unintentional discharge” theory. He found the appellant to be not credible. Accordingly, the appellant was not entitled to have the same evidence taken into account by the trial judge in his assessment of the appellant’s awareness of the consequences of firing a gun at close range into someone’s chest.

Finally, the trial judge considered the evidence of the appellant’s alcohol consumption and found that it did not leave him in a state of reasonable doubt as to whether the appellant knew that death would likely result if he shot the deceased in the chest at close range.

In short, none of the evidence that the appellant points to could have assisted him at trial on the issue of his awareness of the consequences of firing a gun into a person’s chest at close range. Thus, while it might have been preferable had the trial judge referred specifically to the items of evidence that the appellant has identified, he was not obliged to do so any more than he was obliged to refer to all of the evidence that pointed in the opposite direction — of which there was a good deal.

[83] In R. v. Lawlor, 2022 ONCA 645 (ONCA) [2], the Court of Appeal for Ontario dealt with a situation where the accused appealed his conviction for first-degree murder based on the fact that the trial judge failed to adequately instruct the jury on the impact of the accused’s mental health on intent, planning and deliberation. At paras. 45 and 46, the Court of Appeal highlighted the benefits of expert evidence in this area:

First, the limited nature of the mental health evidence in this case undermines the appellant’s attack on this aspect of the jury charge. While there was evidence that the appellant had mental health problems, there was no evidence of any diagnosis, or any evidence, expert or otherwise, to relate the symptoms he complained of (blackouts and memory loss) to the issues of his intent and planning and deliberation. For example, the appellant’s support worker, Ms. Cybulski, testified that she worked at an organization that assisted people with significant mental health issues and that she had provided supportive counselling to the appellant for about 12 years before the offence. She testified, however, as a lay witness and she was not privy to any diagnosis from a psychiatrist. In a similar vein, Dr. Al-Battran, who dealt with the appellant at the Grand River Hospital in March and April of 2014, testified that the appellant’s prescription drugs, based on the dosages, would be used as a sleep aid or in the treatment of anxiety. He did not, however, testify that the appellant suffered from any particular psychiatric disorder or provide evidence relating to how such a disorder might have affected the appellant’s intent and planning and deliberation.

Although a psychiatric diagnosis is not required for mental health evidence to be relevant and admissible, the limited nature of the mental health evidence in this case is an appropriate consideration in assessing the adequacy of the charge: see, for example, R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 48. Not only was there little evidence concerning the appellant’s mental health, but there was an absence of evidence relating to the impact, if any, of the appellant’s mental health issues on whether he intended to kill Mr. McCreadie and whether the killing was planned and deliberate.

Findings

Actus Reus

[84] I am satisfied beyond a reasonable doubt that Mr. Southwind in fact killed Mr. Topping by stabbing him 17 times in the bush near Elliot Lake, Ontario. I am also convinced beyond a reasonable doubt that the killing was unlawful. In fact, defence counsel conceded that Mr. Southwind unlawfully killed Mr. Topping in his submissions and that Mr. Southwind was guilty of manslaughter. A review of the evidence makes clear that this concession on Mr. Southwind’s behalf was entirely appropriate.

Dr. D’Agostino’s Evidence

[85] Dr. D’Agostino confirmed that Mr. Topping suffered 17 stab wounds to his head, neck, back, legs and torso. The stab wounds varied in depth, size and severity but Dr. D’Agostino opined that three of the stab wounds individually or collectively were fatal.

Confession to Grandfather

[86] Mr. Southwind told his grandfather, Mr. Starnyski, that he had stabbed Mr. Topping. During this conversation, Mr. Southwind indicated that he knew that Mr. Topping was dead because the victim’s eyes were open but that Mr. Topping wasn’t breathing. Mr. Southwind indicated to Mr. Starnsyski that he did not know how many times he stabbed Mr. Topping, which suggests that Mr. Southwind stabbed Mr. Topping more than once. The specificity and accuracy of this evidence adds weight to the probity of the confession. The fact that Mr. Topping was stabbed to death was “holdback” information that, presumably, only the killer knew. This gives the confession considerable weight. With that being stated, I have other concerns about Mr. Southwind’s confessions that will be reviewed later in these reasons.

Police Interview

[87] First, Mr. Southwind admitted to stabbing Mr. Topping during his police interview. During the course of this interview, Mr. Southwind gave considerable detail regarding certain physical aspects of the homicide. He described the physical location where the killing occurred, which was corroborated by the finding of Mr. Topping’s body in that location.

[88] Second, Mr. Southwind indicated that he stabbed Mr. Topping, which was not information that anyone other than the killer would likely have known. The effect of this “holdback” evidence is weighty and leads to the obvious conclusion, which I accept, that Mr. Southwind killed Mr. Topping.

Confession to Dr. Van Impe

[89] Mr. Southwind confessed to Dr. Van Impe on several occasions that he had, in fact, stabbed Mr. Topping sometime between January 1, 2018 and February 14, 2018. The level of discussion as between Dr. Van Impe and Mr. Southwind involved a discussion of motivations, understanding of moral consequences, and the like, and was not a simple discussion of “who did it”. Mr. Southwind was medicated during those conversations.

[90] Thus, the specificity of the conversations with the doctor are strong pieces of evidence that Mr. Southwind killed Mr. Topping.

Physical Evidence

[91] The police recovered a black jacket at the location where Mr. Topping’s body was found. Forensic examination revealed that Mr. Southwind’s DNA was on the inside wrist of the jacket, while Mr. Topping’s DNA was on the outside of the jacket.

[92] A Bic lighter was also found on scene that had Mr. Topping’s DNA on it.

[93] Coins were found in a location near Mr. Topping’s body. The location was consistent with where Mr. Southwind had indicated that he had left coins after the killing in his statement to police.

[94] These pieces of physical evidence confirm that Mr. Southwind was at the scene of the killing which in turn provides further weight to Mr. Southwind’s confessions to police and to his grandfather.

Unlawfulness of the Killing

[95] Mr. Southwind indicated in his statement to police that Mr. Southwind believed that Mr. Topping “wanted to die”. As was noted in R. v. Jobidon, [1991] 2 S.C.R. 724, a person cannot consent to bodily harm, let alone death, absent exceptional circumstances that do not apply to this case (i.e. medically assisted suicide, etc.). There is no evidence before me of any other possible explanation for Mr. Topping’s killing (i.e. self-defence, etc.). Mr. Southwind’s killing of Mr. Topping, therefore, is certainly unlawful.

Conclusion

[96] I am satisfied beyond a reasonable doubt that Mr. Southwind killed Mr. Topping by stabbing him 17 times and that said killing was unlawful.

[97] Mr. Southwind is thus guilty of at least manslaughter.

Mens Rea Analysis

The Accused’s Admissions and Dr. Van Impe’s Evidence – Mr. Southwind’s State of Mind

[98] The most obvious insight into Mr. Southwind’s mental state comes from his admissions to his grandfather, the police and to Dr. Van Impe. It must be noted, however, that Mr. Southwind’s statement to Dt. Sgt. O’Neill was at times disjointed and that Mr. Southwind did not give a precise recitation of the timing of events. For example, the accused appeared to mistake the alleged “blessing” that occurred in the apartment on the night of the murder for events that occurred with “Keegan” on another night. This is not a surprising reality given the fact that Mr. Southwind was recalling events that occurred when the accused claimed to be highly intoxicated and suffering from serious mental illnesses. Nonetheless, this fact demands that I be cautious when I examine Mr. Southwind’s admissions, especially as regards timing of events.

[99] Equally, Mr. Southwind recounted hallucinations and delusions that are plainly not based in reality. For example, in his statement to police, Mr. Southwind effectively indicated that it was like he had lived this life a “thousand times.” This suggests that Mr. Southwind believed that he was either living parallel contemporaneous existences, or sequential and repeated lives. He also described his status as the Medicine Man and was firm that, at the time of the killing, he believed that Mr. Topping could read his mind. Given these delusions, it would be dangerous to place considerable reliance upon Mr. Southwind’s admissions regarding his beliefs and reasoning at the time of the offence unless those admissions were meaningfully corroborated.

[100] Dr. Van Impe testified regarding Mr. Southwind’s mental state. I accept Dr. Van Impe’s evidence in its entirety, including his diagnosis that Mr. Southwind suffers from Schizophrenia, Polysubstance Use Disorder, Conduct Disorder, and Antisocial Personality Traits. Dr. Van Impe’s testimony was probative in that he gave evidence that was clear, precise with respect to the bases of his diagnosis, and nuanced as regards the nature of the diagnosis and its effects. The doctor gave evidence that was not simply a “broad stroke” description of the nature of the malady, but was rather an insightful description into the nature of the psychosis itself, the effects of drug use on the accused’s underlying mental health issues, and the fact that the “driver” for much of Mr. Southwind’s problems may have actually been the accused’s drug use, as opposed to Mr. Southwind’s schizophrenia.

[101] The doctor’s credibility is bolstered by his obvious professional credentials, his in-depth review of Mr. Southwind’s medical history, and his personal interviews with the accused. For example, Dr. Van Impe rightly noted that Mr. Southwind’s narrative of the murder changed from a “changing dimension” phenomenon to a view that the killing was effectively “assisted suicide”. While the change in narrative was subtle, it was clear that the doctor’s approach to the shift (i.e. that it suggests that Mr. Southwind grasped the nature of his endeavours) spoke to the considerable weight to be given to the doctor’s opinions.

[102] Both Crown and defence accepted Dr. Van Impe’s evidence, as well they should have. The doctor gave excellent evidence. I accept it as well.

[103] Mr. Southwind told Det. Sgt. O’Neill and Dr. Van Impe on several instances that he was intoxicated and was using several types of narcotics at the time of the offence. These statements are consistent with the medical evidence reviewed by Dr. Van Impe which suggests that Mr. Southwind was regularly treated for drug use throughout his life and that Mr. Southwind had ceased taking his anti-psychotic medication in the fall of 2017. Dr. Van Impe thus opined that Mr. Southwind was likely quite intoxicated at the time of the killing. I also note that I have no evidence contradicting that view.

[104] Therefore, considering all the relevant evidence, including Mr. Southwind’s admissions and Dr. Van Impe’s evidence, I am satisfied that Mr. Southwind was highly intoxicated at the time of the killing and that he was also suffering from psychotic delusions (whether these delusions were caused by drug abuse, mental illness, or a combination of the two).

Intention to Kill

[105] The next question that I must resolve is whether the Crown has proven that Mr. Southwind either:

1. Meant to kill Mr. Topping; or
2. Meant to cause Mr. Topping bodily harm that Mr. Southwind knew was likely to cause Mr. Topping’s death, and was reckless whether death ensued or not.

[106] I note that the Crown need not decide which of these two avenues it wishes to prove: R. v. Thatcher, [1987] 1 S.C.R. 652. It is of course axiomatic to state that the burden of proof always rests with the Crown to satisfy the court of all constituent elements of an offence “beyond a reasonable doubt”.

[107] Thus, if the Crown proves either of these mens rea elements, then Mr. Southwind is guilty of at least second-degree murder.

[108] The crux of the argument regarding the accused’s mens rea hinges upon Mr. Southwind’s mental health issues and his intoxication as they affect the “common sense inference”.

[109] Dr. Van Impe testified that, but for Mr. Southwind’s mental illness/intoxication issues, the offence in question would not have occurred. The defence argued that this statement suggests that Mr. Southwind could not have foreseen the consequence of his actions and, as such, that Mr. Southwind is guilty of only manslaughter.

[110] I disagree with that submission.

[111] I acknowledge that it appears counterintuitive to hear testimony that a murder would not have taken place but for intoxication/mental illness while also finding that the intoxication/mental illness fails to provide a defence to the charge of murder. With that stated, however, that is not the law as I understand it to be. As was discussed in Seymour, Lawlor, and other jurisprudence referenced above, the test is not a “but for” test as implicitly suggested by the defence. Rather, in this case, I must decide whether the accused’s intoxication and mental health issues are such that I have a reasonable doubt that the accused could not foresee the consequences of his actions, thereby preventing me from engaging the “common sense inference”.

[112] As regards the “common sense inference”, I note that the killing was particularly brutal. Mr. Topping was stabbed 17 times, including three stab wounds in the head / upper torso area that were the likely cause of death. Dr. D’Agostino noted that many of the stab wounds were of significant force. These two facts by themselves demand that I engage the “common sense inference” that Mr. Southwind intended to kill Mr. Topping on the day in question.

[113] Other factors that bolster the “common sense inference” include Mr. Southwind’s statements to police and to Dr. Van Impe wherein Mr. Southwind makes clear that it was his intention to kill Mr. Topping. Mr. Southwind did not state that he did not understand the consequences of his actions. Instead, he effectively admitted that he intended to cause Mr. Topping’s death.

[114] I also note that Dr. Van Impe’s evidence supports the usage of the “common sense inference” in this case: “I am of the opinion that Mr. Southwind knew that he was stabbing the victim and that his actions would cause the victim to die.” Dr. Van Impe’s evidence could not have been clearer.

[115] I therefore accept beyond a reasonable doubt that Mr. Southwind intended to kill Mr. Topping. Specifically, I find that :

1. The brutal and forceful nature of the stabbing are such that Mr. Southwind intended the logical consequences of 17 stab wounds, many of which pierced layers of bone, muscle, and clothing and many of which struck his torso, and I hereby engage the “common sense inference”;
2. The “common sense inference” is bolstered by Mr. Southwind’s admission that he intended to kill Mr. Topping, although I place limited weight on these admissions given the frailties of Mr. Southwind’s recollections of his mindset during a period of intoxication and psychosis; and
3. Dr. Van Impe’s evidence, contrary to the defence submissions, supports the view that Mr. Southwind was aware of the consequences of his actions irrespective of his intoxication and psychosis.

[116] Mr. Southwind is thus guilty of murder. I must now resolve whether he is guilty of first- or second-degree murder.

First- or Second-Degree Murder

[117] The Crown submits that five pieces of evidence and/or logic, prove that the murder was planned and deliberate such that Mr. Southwind is guilty of first-degree murder:

1. Mr. Southwind saw the murder as a solution to the problem that Mr. Topping wanted to die;
2. The plan took time to formulate in that Mr. Southwind indicated that Mr. Topping was consistently asking to be killed;
3. Mr. Southwind stated that “we came to that decision together” and that said plan was in place prior to the pair leaving Mr. Southwind’s apartment, where the pair said their “farewells” prior to the murder in the woods;
4. Mr. Southwind took a knife with him from the apartment to the murder scene; and
5. Mr. Southwind had two coins with him in order to engage in a post-death ritual.

[118] While I agree that these five points provide reasonable evidence of planning and deliberation, they do not satisfy me beyond a reasonable doubt that the murder was in fact planned and deliberate.

[119] As described earlier in these reasons (see paragraphs 98 and 99), Mr. Southwind’s admissions, standing on their own, cannot be afforded considerable weight given the accused’s heightened level of intoxication and psychotic symptoms at the time of the murder. I have real doubts about Mr. Southwind’s ability to recall what was said at the time of the murder, the timing of specific sensations, and even whether any of the specific sensations described by Mr. Southwind actually occurred. While aspects of Mr. Southwind’s admissions cannot be simply explained away (i.e. Mr. Southwind’s knowledge of the “holdback” evidence regarding the stabbing as the mechanism of death), other aspects of Mr. Southwind’s admissions ought to be viewed with caution absent strong corroboration.

[120] With respect to the Crown’s first two submissions, I am not satisfied that Mr. Topping in fact asked to be killed. It may be that Mr. Southwind believed that Mr. Topping asked to be killed. It may be that Mr. Topping made that request over an extended period. It may also be that, given Mr. Southwind’s propensity for delusion and hallucination, Mr. Topping never made such a request and that Mr. Southwind is recalling events that did not occur. The unreliability of Mr. Southwind’s recollections, therefore, cause me to doubt Mr. Southwind’s belief that Mr. Topping made such a request. It must also be noted that evidence of Mr. Topping’s alleged suicidal ideation, while a potential motive for a murder, is not evidence that Mr. Southwind in fact planned to kill Mr. Southwind prior to going into the bush.

[121] Mr. Southwind’s issues with evidential reliability affect the weight to be given to his statement that he and Mr. Topping planned the murder and said their “farewells” in the apartment. The “planning” and “farewells” admissions come at the end of a long account of events that was not precise as regards timing. Therefore, I do not attribute much weight to Mr. Southwind’s statement that the pair said “farewells” in the apartment as they planned the murder because I am not satisfied that this verbal exchange actually occurred given the limited reliability to be afforded a statement that recalls events clouded by hallucinations, delusions, and substance abuse driven psychosis. The same concerns also limit the weight I give to Mr. Southwind’s statement that he gave Mr. Topping pills so as to reduce the victim’s pain.

[122] While the admission that Mr. Southwind brought the knife to the murder scene is some evidence that Mr. Southwind planned the murder, Mr. Southwind’s inherent lack of reliability coupled with possible innocent explanations for carrying a knife requires that the weight to be attributed to this admission is mitigated. As noted above, I have considerable difficulty accepting the accuracy of Mr. Southwind’s admissions given his mental state. Therefore, I have some doubt as to the knife’s provenance. This is especially the case when I note that Elliot Lake is a small northern community of approximately 10,000 citizens. Rural citizens will often bring knives with them into the bush for a myriad of innocent purposes. Thus, an admission that someone brings a knife into the bush does not necessarily lead to the logical conclusion that the knife was brought to the murder scene in furtherance of a plan to kill a human. This is not an instance where someone living in a large city brings a knife to an urban mall and a stabbing ensues. In this case, it is possible that an Elliot Lake resident going into the bush would have a knife for innocent reasons and I therefore attribute mitigated weight to Mr. Southwind’s admission in this regard.

[123] The same logic applies to the admission regarding the coins. Mr. Southwind admitted to bringing coins into the bush in order to perform a post-murder death ritual. The fact that coins were located near Mr. Topping’s body does corroborate Mr. Southwind’s confession that he brought coins with him as part of a plan to kill Mr. Topping. However, people carry coins for any number of reasons. My concerns regarding Mr. Southwind’s ability to recall his thought process at the time of the murder are such it could well be that Mr. Southwind’s memory of the coins is inaccurate. It could well be that Mr. Southwind had the coins with him and only decided to place them near the victim after the murder occurred. I therefore mitigate the weight given this admission.

[124] Finally, Mr. Southwind’s admissions themselves suggest that the murder may have been an impulsive act. Mr. Southwind stated that he lost control and “the next thing you know” Mr. Topping was dead. These statements suggest that the murder occurred as a result of impulsivity, as opposed to planning and deliberation. This is especially noteworthy when I consider Dr. Van Impe’s testimony that Mr. Southwind would have been more impulsive given his psychosis and his substance use. This combination of evidence must therefore be given reasonable weight.

[125] Thus, when I consider all the relevant evidence, I cannot find that Mr. Southwind engaged in planning and deliberation beyond a reasonable doubt. Ms. Southwind’s admissions regarding his state of mind leading up to the murder are seemingly unreliable as they are to be viewed through the lens of psychosis and intoxication. The presence of corroborating evidence (the coins and the knife) may have innocent explanations. Finally, Mr. Southwind’s confessions themselves suggest that he may well have acted on impulse, a suggestion that is supported by the doctor’s diagnosis. The totality of these factors are such that I have a reasonable doubt that Mr. Southwind planned and deliberated upon Mr. Topping’s murder.

Conclusion

[126] For the above reasons, Mr. Southwind is hereby found guilty of second-degree murder.

Varpio J.

Released: January 31, 2024

COURT FILE NO.: 8355/21 DATE: 2024-01-31 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – BRAD SOUTHWIND REASONS FOR JUDGMENT Varpio J. Released: January 31, 2024

[1] Counsel for Mr. Southwind and the Crown conceded that the statements made by Mr. Southwind to Dr. Van Impe were both voluntary and admissible at trial. The parties also conceded that the findings and recordings in the doctor’s report were admissible pursuant to “past recollection recorded”. I accepted those submissions based upon the evidence I received: McKinlay Transport Ltd. v. The Queen, [1979] 1 S.C.R. 588.

[2] Decision reversed on other grounds, but this reasoning was cited with approval: R. v. Lawlor, [2023] S.C.J. No. 34 at para. 3.