R. v. Whynder, 2019 NSSC 386

SUPREME COURT OF Nova Scotia Citation: R. v. Whynder , 2019 NSSC 386 Date: 20191122 Docket: CRH 470463 Registry: Halifax Between: Her Majesty the Queen v. Ricardo Jerrel Whynder Decision – Parole Eligibility Hearing Judge: The Honourable Justice Denise M.

Boudreau Heard: November 22, 2019, in Halifax, Nova Scotia Counsel: Rick Woodburn and Sean McCarroll, for the Crown Trevor McGuigan and Colin Coady, for the Defence By the Court (Orally): [ 1 ] Ricardo Whynder is before the Court, having been found guilty by a jury of second degree murder of Matthew Sudds having occurred on October 10, 2013. [ 2 ] In accordance with the Criminal Code , I have already sentenced Mr. Whynder to life imprisonment. In this country that is the maximum sentence of incarceration. The present decision is related to the minimum amount of time that Mr.

Whynder will have to serve before he is able to apply for parole. [ 3 ] Since this was a jury decision, I obviously was not given any findings of fact by them. However, in my view, in order to convict Mr. Whynder the jury would have had to accept the following evidence. [ 4 ] I start with some more direct evidence. In October 2013, Matthew Sudds was 24 years of age and he lived with his mother at her apartment. He and Mr. Whynder were known to each other. On October 10, Mr.

Sudds and his friend William Cohoon left the apartment and took a taxi to the Burger King parking lot at Young Street and Kempt Road in Halifax. [ 5 ] They pulled in to that parking lot and waited approximately 10 to 15 minutes. Then a black Dodge Charger pulled in behind them. Mr. Sudds left the taxi saying he would be back, and he got into the front passenger seat of the Charger. Mr. Sudds was immediately pulled back in the seat. The door then closed and Dodge Charger left. Mr. Sudds did not return and was never seen alive again. [ 6 ] Mr.

Sudds body was found on October 14, 2013, in a wooded area off Africville Road in Halifax. He had been shot in the forehead, which was the fatal blow, and he had also been shot elsewhere. The evidence indicated that the shooting(

s) had occurred at that location. However, there was no direct evidence before the Court and before the jury as to the exact sequence of events between the time Mr. Sudds entered the vehicle until the time he was found deceased, nor was there any direct evidence as to who actually fired the shots at Mr. Sudds. [ 7 ] There was also evidence that Mr. Whynder, on March 9, 2017, called the Nova Scotia Unsolved Major Crime rewards call line, and acknowledged being present during the homicide of Matthew Sudds. [ 8 ] There was also a great deal of circumstantial evidence put forward by the Crown at this trial.

In my view, this jury would have had to have accepted at least some of that circumstantial evidence in finding Mr. Whynder guilty of this murder, whether as a principal or as an aider. [ 9 ] For example, Mr. Whynder was repeatedly seen in the black Dodge Charger, in the days leading up to Mr. Sudds’ murder. The

Dodge Charger was a rented vehicle, and Mr. Whynder was seen with the third party who had rented the vehicle, and was shown to havebeen communicating with her specifically at the relevant times of rental and return. The inference could easily be drawn, in my view, thathe was instrumental in the renting of that vehicle. Mr. Devlin Glasgow’s fingerprint was found in the vehicle, and there was evidence ofMr. Whynder being the person who picked up Mr. Glasgow at the Halifax airport the day prior, and there was evidence of them leavingHalifax together the next day by plane. [10] Mr. Sudds’ phone and Mr.

Whynder’s phone were in communication by text, prior to the meeting at the Burger King parkinglot. This leads to the clear inference that Mr. Sudds was going to meet Mr. Whynder specifically that evening. It also, in combinationwith the whole of the evidence, including what happened to Mr. Sudds when he got in the vehicle, leads to the inference in my view thatMr. Whynder arranged that meeting in full knowledge of what was going to happen to Mr. Sudds, and did so to assist. [11] In the days following Matthew Sudds’ disappearance, and before he was found, Mr. Sudds’ mother contacted Mr. Whynderlooking for Matthew.

Mr. Whynder told her “Matthew was in trouble, there had been shootings in Dartmouth, I had to put him on a planeto Montreal to get him out of the city.”, or words to that effect. Mr. Whynder further said he was at airport dropping off Matthew, andthat Matthew said not to worry. Clearly, none of that information was true. [12] It is clear that by convicting Mr. Whynder, the jury must have found as a fact that Mr.

Whynder was not only in that DodgeCharger vehicle that evening, but was also a participant in the murder of Matthew Sudds, at least as a person aiding in the murder, butpossibly as a more active participant as well. There was certainly evidence before them upon which they could reach the conclusions as Ihave described. [13] It is true that I do not know who actually pulled the trigger that night and shot Matthew Sudds. I cannot and do not assume thatMr. Whynder is the person who did that, and I must acknowledge that in the context of my role here today. Having said that, in my view,Mr.

Whynder’s involvement shows a very high degree of moral culpability in the killing of Matthew Sudds, whether he was the principalwho shot Mr. Sudds, or not. His actions in aiding the events of that evening, in my view, were very significant. Criminal Code sentencing provisions [14] Mr. Whynder was convicted of second degree murder. The Criminal Code, s. 235: 235 Everyone who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced toimprisonment for life.

(2) For the purposes of

Part XXIII, the sentence of imprisonment for life prescribed by this

section is a minimum punishment. [15] I also make reference to ss. 745.1(c), 745.4, and 746 of the Code: 745. Subject to

section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be (

c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life withouteligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more thantwenty-five years, as has been substituted therefor pursuant to

section 745.4; … … 745.4 Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder,the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard tothe character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, ifany, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but notmore than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. 746. In calculating the period of imprisonment served for the purposes of

section 745, 745.1, 745.4, 745.5 or 745.6, there shall beincluded any time spent in custody between (

a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken intocustody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed … [16]

Section 718 of the Code provides the fundamental purposes and principles of sentencing which must also be considered.

Thoseinclude denouncing unlawful conduct, deterring the offender and other persons from committing offences, separating offenders fromsociety where necessary, assisting in rehabilitation of offenders, providing reparations for harm done to victims or to the community andpromoting a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community. [17] Counsel have referred me to a number of leading cases which have addressed the issue of parole eligibility for second degreemurder. In R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, the Supreme Court of Canada noted: [23] The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. Thisclearly indicates that parole ineligibility is part of the “punishment” and thereby forms an important element of sentencing policy. Assuch, it must be concerned with deterrence, whether general or specific. The jurisprudence of this Court is clear that deterrence is a well-established objective of sentencing policy. …

[27] In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in then s. 744, the offender should wait a longer period before having his [or her] suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded. … [64]

Section 742(b) [as it was] of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole “until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to

section 744”. In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates toward the 10-year minimum does not, ipso facto , mean that any other period of time is “unusual”. [ 18 ] In R. v.

Hutchinson , 2014 NSSC 155 , the Court noted that, generally speaking, there are three time frames for parole eligibility for second degree murder. 32 The Court in Hawkins set out three time frames for parole ineligibility. The first being 10 to 15 years which is reserved for offenders for whom the prospects of rehabilitation appear good and for whom little would be served by extending this period other than to further the sentencing objectives of denunciation and retribution. The second time frame is 15 to 20 years and the third is 20 to 25 years of parole ineligibility.

The latter category is reserved for the worst of offenders in the worst of cases. The 15 to 20 years time frame is for those offenders falling between the first and third categories. [ 19 ] The Court in R v. Nash, 2009 NBCA 7 , agreed with these ranges of parole ineligibility and confirmed that, while these time frames are not cast in cement, they represent a basic starting point for analysis. [ 20 ] I note that sentencing is always a difficult exercise. It is individual to the case before the Court and the offender before the Court.

I must look at the circumstances of the offence, the circumstances of the offender, and review comparable cases. [ 21 ] With all I have said in mind, I turn to the specific matter of Mr. Whynder. [ 22 ] I have the benefit of a Pre-sentence Report and a Cultural Impact Assessment relating to Mr. Whynder. These documents, particularly the Cultural Impact Assessment, provide me with a great deal of information about Mr. Whynder’s background and circumstances. [ 23 ] Mr. Whynder is 34 years of age presently. He is of African Nova Scotian ancestry. [ 24 ] Mr.

Whynder, we can all agree, has had a difficult and painful life. From the reports, it is abundantly clear that Mr. Whynder is the product of a significantly dysfunctional and unstable childhood, involving both parents’ addiction to illicit drugs, the involvement of child protective services, and a chaotic home life including violence between his parents. Mr. Whynder also reports suffering sexual abuse as a child at the hands of a relative. Mr. Whynder started living with his maternal grandmother at the age of 12, and she appears to have been a positive and possibly the only stable force in his life.

Having said that, Mr. Whynder sadly appears to have continued to descend on a destructive path, after that time. Mr. Whynder describes being in and out of correctional facilities starting at the age of 13. [ 25 ] Mr. Whynder now has a long history with the criminal justice system. The criminal record before me shows nine youth convictions from 2000 to 2002, including drug offences, breaches of court orders and crimes of violence. As a 17 year old he committed an aggravated assault for which Mr. Whynder was tried as an adult and sentenced to seven years and nine months.

The circumstances of that offence are very significant here. Mr. Whynder took out a firearm and shot a taxi driver in the back of the head, at close range. Thankfully the person did not die, but I am told he has been blinded. In the context of my role here today, the fact that Mr. Whynder has, in his past, showed a complete willingness to not only brandish a firearm, but actually use it, and to not only shoot a person, but to do so into the back of their head while they are completely vulnerable, is an extremely aggravating circumstance. [ 26 ] Mr.

Whynder has six further adult convictions, not including the present offence. They are also in the nature of violence, including another aggravated assault, assaulting jail guards, failing to comply with court orders, and drug offences. I am advised that he has exhibited more violence within the correctional facility since his remand on the present charge. [ 27 ] At the time of his arrest for the present offence (March 10, 2017), Mr. Whynder was living in British Columbia. He was returned to deal with the present matter and has been remanded since that time.

He was and continues to be involved in a partnered relationship, and together they have a 2 year old child. There is an older child for whom Mr. Whynder has also taken on a parenting role. [ 28 ] Mr. Whynder’s history of education and employment is sparse. He has completed only grade eight and has had very sporadic employment history in his life, of short term employment involving labour type work. In terms of his health, Mr. Whynder was himself the victim of a shooting in 2016, which has caused him significant injuries to his hip and abdomen.

He discloses no addiction issues. [ 29 ] The Cultural Impact Assessment regarding Mr. Whynder was a very thought provoking document, but to be frank, I found it to be a bleak and grim read. It notes that Mr. Whynder was raised in a number of the African Nova Scotian communities in and around Halifax Regional Municipality, and that each of those communities has had, and continues to have, its struggles with systemic racism, economic disenfranchisement, and poor educational outcomes. In respect of Mr.

Whynder, specifically, the report notes that, unfortunately, he appears to have been caught up in somewhat of a “normalization” of violence that exists in the lives of some African Nova Scotian males within this sub-culture (p. 12): What is also important to reference is the complex social, cultural and jurisdictional – “turfs” and – intrapersonal and historical “beefs”

which negatively impact several of the African Nova Scotian communities in which there is a sub-culture of criminogenic factors at play inter-generationally between various communities … where historical and present day gun violence has become a normative socially sanctioned behaviour among a sub-section of young Black males as a way to “resolve” historical and contemporary beefs between individuals and “crews” from various communities. [ 30 ] The report goes on to note that this “normalization” of criminal acts has developed as a coping mechanism for young black males, as a way to cope with daily micro-racial aggression that they experience (p. 15): Often African Nova Scotian males lack the social emotional literacy to describe the effects of race-based and intrapersonal traumas on their lives.

Instead, they have normalized and have become detached from the emotional harms that have impacted on their overall emotional functioning. There is often no choice to be reflective when life is focused on survival in the home or on the streets. [ 31 ] The assessment further notes that, according to some sources, Mr.

Whynder is by now entrenched in this mind set, that it is unlikely he will be able to free himself from it, and that for him to get out of that lifestyle would be enormously difficult because it would mean separating himself from everything he has ever known. [ 32 ] I must say that I was enormously disturbed and saddened by this report, and its conclusions. As I said, it was a very bleak document to read. There can be no doubt that Mr. Whynder’s traumatic and chaotic childhood was, to say the least, tragic.

There can also be no doubt that those experiences, added on to the historic and continuing racism that his community and that he himself has experienced, have all contributed in very large measures to the person before me today. I acknowledge and understand those factors. [ 33 ] Sadly, the tragedies here have only continued and compounded. Mr. Whynder’s need to protect himself and his loyalty to the “street codes” discussed in the report seems very deep indeed. He now stands here convicted of murder, in the killing of another young man who died by way of a gun shot to the head. Mr.

Whynder’s involvement in criminal behaviour is very long standing and has only escalated over the years. There is, frankly, very little in this report that gives me much hope that Mr. Whynder is interested in rejecting the dysfunctional coping strategies that he has developed, or in making a better life for he and his children. [ 34 ] Having read this report, I well understand how Mr. Whynder could have developed into the person he is today. But nothing I have seen or read excuses his behaviour. Mr.

Whynder stands responsible for the death of another human being and he is to be held accountable for that. [ 35 ] As to the offence itself, the way Matthew Sudds died was violent, brutal, and cruel. He was taken away into the night, he was shot, shot more than once, with the fatal blow being a gun shot to the head. Looking at the whole of the evidence, I agree with the Crown that this does not seem to have been either an entirely random or spontaneous killing. There was no evidence of any motive for this murder.

This is not an essential element of the offence, but I say that only to point out that I do not know why Matthew Sudds was taken to the Africville Road and murdered. [ 36 ] It was also further cruelty and callousness to simply leave Mr. Sudds’ body abandoned in that wooded remote area, with little hope of being found quickly, thereby adding to the pain felt by his family. [ 37 ] Having said all of that, as noted by our Court of Appeal in the R. v. Hawkins , 2011 NSCA 7 case, most murders are brutal and callous, as this one was. Murder by definition is as serious a crime as one can commit.

I do note that the circumstances of this offence did not impart any of the aggravating elements found at s. 718.2, such as the existence of a relationship of trust, or a domestic situation. [ 38 ] I have read and heard the Victim Impact Statements provided by the family and friends of Mr. Sudds. The pain and grief that is experienced by these people speaks for itself. Matthew Sudds was a well loved person. He was good to his family and he was a friend to all. He is sorely missed by everyone and we can see that he will never be forgotten. I am truly sorry that his family and friends have lost him.

His death is yet another tragedy; his family has suffered and continues to suffer today. I do not know why Mr. Sudds was murdered, but what I do know is that he should be alive today and be with his loved ones. [ 39 ] I have already sentenced Mr. Whynder to life imprisonment, as the Criminal Code provides. That is the maximum sentence that a Canadian court can render. As noted by defence counsel, that sentence must be kept in mind today. Today my mandate is to determine Mr.

Whynder’s parole eligibility date; not the date he will be paroled, but rather the date when he will be eligible to seek parole. [ 40 ] I note that the jury provided me with their recommendations for parole eligibility after they convicted Mr. Whynder. That document has been made into an exhibit. The jury’s recommendations were: five jurors had no recommendations; two recommended ten years; three recommended 15 years; and two recommended 20 years. [ 41 ] Mr. Whynder has not accepted responsibility for this crime.

I understand that to mean that he stands by his not guilty plea and he maintains his innocence despite being convicted. That is his prerogative. I take nothing from that fact and that is not a factor that I take into account in making the present decision. [ 42 ] In terms of the parties positions, the Crown says that Mr. Whynder’s parole ineligibility date for the second degree murder conviction should be set within the highest range of 20 to 25 years. [ 43 ] Mr.

Whynder, through his counsel, proposes that his parole ineligibility should be set at 12 years. [ 44 ] I have looked at a number of cases to determine what other sentencing courts have done in parole eligibility hearings. I have reviewed all of the cases referenced by counsel, but I wish to refer specifically to a few of them. [ 45 ] In R. v. Hawkins , 2011 NSCA 7 , the Court of Appeal reduced a 20 year period of parole ineligibility handed down by the trial judge to 15 years. The accused had broken into the victim’s home in order to commit a robbery and killed the owner of the home in the process.

The victim was stabbed to death and strangled. He was also noted to be mentally handicapped. The accused had a consistently strong work ethic, but had a significant substance abuse problem. He also had only one prior conviction of a violent nature.

[46] In R. v. Hutchinson, 2014 NSSC 155. The victim was the mother of two young children who was stabbed to death by theaccused with whom she was in an intimate relationship. He had 71 prior convictions, most of which involved violence. The Court foundthat this had been a brutal and savage killing which had been committed by an accused with an increasing propensity for violence asevidenced by his record. The Court ordered 21 years before he would be eligible to apply for parole. [47] In R. v.

Young, ON CA (1992) (ON CA), 73 CCC (3d) 289, the accused shot and killed two young men inexecution style killings while they were lying wounded on the ground. Fifteen years was imposed and upheld by the Court of Appeal. [48] In Nova Scotia again, R. v. Riley, 2019 NSSC 92, the accused shot and killed a pizza delivery person and killed him. It wouldappear the victim had been chosen deliberately because of dispute with the accused. The accused was 19 at time of murder and had 18prior criminal convictions starting from the age of 14, some of which were for offences of violence. Fifteen years imposed. [49] R. v.

Butcher, 2018 NSSC 194. The accused killed the victim in her home by stabbing her repeatedly while she lay in bed. Theyhad been in an intimate relationship and there was some evidence that the victim wished to end the relationship. The accused had norecord prior to this event and the Court ordered 15 years before eligible for parole. [50] R. v. Garnier, 2018 NSSC 196. The accused and the victim met socially and returned to his residence. During a sexualencounter, the accused beat the victim and strangled her, causing her death. The accused had no record prior to this incident.

The Courtordered 13.5 years before being eligible for the seeking of parole. [51] It seems clear to me, in light of the caselaw and the three ranges outlined in Nash, Hawkings, and Hutchinson, that thecircumstances before me would fall within the middle range. I reject the defence’s suggestion that this is a case falling within the lowestscale. The caselaw is very clear that such would be the case, for example, for a first time offender. Mr Whynder is far from such aperson. Mr.

Whynder’s criminal record is extensive and involves crimes of significant violence, including a past occasion of the use offirearm to shoot a person into his head at close range from behind. I see the likelihood of his continuing to exhibit violence in the futureis very high, given his past record, and his long-standing involvement in a criminal lifestyle. Mr. Whynder will need to develop someserious interest in leaving behind the violence of his past. So far that has not happened. As to the offence committed by Mr.

Whynderhere, I have already commented as to its aggravating features. [52] Having said that, I also disagree with the prosecution that this case fits within the highest range possible, meant for the worstcase and the worst offender. Mr. Whynder is still a relatively young man, and he has shown the ability to maintain a peaceful life forsome periods of time. Mr. Whynder is not yet on the level of, for example, Mr. Hutchinson and his 71 convictions. I consider the manyand myriad disadvantages he has faced and continues to face. Mr.

Whynder can have a future if he so chooses. [53] I also, to some extent, agree with Mr. McGuigan’s point that it is relevant at this stage to remember that we do not know whatMr. Whynder actually did at the time of the actual murder. I say this to point out that in determining his moral culpability, it is ratherdifficult to characterize his actions as a “worst case”, as the caselaw describes, when we do not know the extent of his actions. [54] I also repeat that this offence did not contain any of the statutorily aggravating factors, which would increase its seriousness.

Ofcourse those are not the only aggravating factors, and that other aggravating factors existed here, but by noting them obviouslyParliament intended to specifically highlight them as particularly aggravating. [55] Sentencing processes are always difficult, and most difficult in my view are those where a murder has occurred. It isenormously difficult to try and compare the circumstances of murders because murder is always a horrendous act. As always, a review ofthe caselaw is a litany of one shocking and abhorrent act after another.

The Court must try and situate the matter before it, on any givenday, within that context. [56] I find that Mr. Whynder’s matter falls within the middle range described by the caselaw, given the nature of the offence here,Mr. Whynder’s significant record, the caselaw, the principles of sentencing as set out in the Code, and all of the circumstances I haveoutlined in this decision. [57] Therefore, it is my decision that Mr. Whynder will serve a period of parole ineligibility of 17 years; that is to say, he will beineligible to apply for parole until he has served 17 years of his life sentence. I note that Mr.

Whynder has been in continuous custodysince his arrest on March 10, 2017, which will need to be factored in. [58] Lastly, I would indicate a request to the correctional authorities that in arranging programming within the correctional facilityfor Mr. Whynder, they try whenever possible to arrange programming that takes into account his racial and cultural background. Boudreau, J.