R. v. Gray, 2012 ABQB 725

Court of Queen ’ s Bench of Alberta Citation: R. v. Gray, 2012 ABQB 725 Date: 20121123 Docket: 080792112Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - Bradley Francis Gray Accused _______________________________________________________ Oral Decision of the Honourable Mr. Justice D.K. Miller _______________________________________________________ [ 1 ] This matter comes before me for the sentencing of Bradley Francis Gray on the charge of manslaughter under s. 236 (

b) of the Criminal Code . The Alberta Court of Appeal has set aside the murder conviction by the Jury and substituted a conviction for manslaughter, and remitted the matter back for sentencing. [ 2 ] I had sentenced Mr. Gray to life imprisonment with no eligibility for parole for ten years on the conviction of second degree murder in November 2009.

[ 3 ] The evidence put before the Jury and as summarized by the Court of Appeal is as follows: [ 4 ] During the evening of June 23, 2008, Bradley Gray spent several hours in his backyard socializing with a neighbour, Mr. Lavoie. Much of the following information came from Lavoie, who was the main witness for the prosecution. He testified that Bradley Gray had been complaining about aboriginal people committing petty crimes in his neighbourhood and the unwillingness or inability of the police to effectively respond. [ 5 ] At approximately 10:00 p.m., two aboriginal men, Mr. Many Shots and Mr.

Panther Bone, walked by the Gray residence. Lavoie advised that although neither man was doing anything wrong, Bradley Gray immediately went to them and began viciously beating Many Shots by punching and kicking him. When Many Shots collapsed, Bradley Gray ran after Panther Bone, caught him, and then beat him as well. Apparently neither man fought back or resisted the beating. Bradley Gray then returned to his residence.

While Many Shots lay unconscious in the back alley, Panther Bone made his way to a friend’s house a few blocks away. [ 6 ] Lavoie testified that Bradley Gray then put on a pair of boots and returned to the alley, where he kicked the unconscious Many Shots some more. Still later, Bradley Gray returned again and, according to Lavoie, broke a beer bottle beside Many Shots, apparently to seed the thought that Many Shots and Panther Bone had been fighting over alcohol.

Bradley Gray later called 911 to report that Many Shots had been beaten and was lying in the alley near his house. [ 7 ] The police and EMS attended to find Many Shots gravely injured. He was transported to a hospital, where he died shortly after his arrival. Bradley Gray advised the police that Panther Bone and Many Shots had fought each other and that it was Panther Bone who inflicted the injuries on Many Shots. A police tracking dog followed a trail of blood and Panther Bone’s scent to the residence where Panther Bone had gone. He was arrested there.

He told police that he and Many Shots had not fought each other; that they both had been beaten by a white man. [ 8 ] Many Shot’s body bore multiple injuries to the face, neck, torso (front and back) and limbs. The medical examiner documented at least forty external bruises, cuts and abrasions. There was bleeding in Many Shot’s left eye. His nose was broken, as was his sternum, his jaw (in four places) and eight of his ribs (four of them in two places). There were multiple lacerations to his liver. Lacerations to an artery and to the bowel covering caused significant abdominal bleeding.

The cause of death was blunt force trauma. [ 9 ] Panther Bone himself was seriously injured, having suffered a broken wrist, broken cheek bone, broken ribs, as well as extensive bruising and cuts to his body and wounds to his head that caused intra cranial bleeding. These and past head injuries left him with a very poor and unreliable recall of the events.

For example, he thought the assaults had occurred in the early afternoon, while all of the other witnesses, including Bradley Gray, testified that the events occurred in the evening. [ 10 ] As mentioned, Lavoie testified that Bradley Gray had been complaining that the police were indifferent to the petty crimes being committed in his neighbourhood by aboriginal people. Bradley Gray made similar comments to the police on their arrival to the scene. For example, he complained that the last time he called police in response to a theft, “it took you guys forever to get here.

Two Indians get into a fight and you’ve got the fire department, the police department here and you’re here in no time.” [ 11 ] Two days later, Bradley Gray told another investigator that he had not made any derogatory statements about aboriginal people, noting that “some of my best friends are fucking native people I got nothing against Indians at all.” [ 12 ] Bradley Gray testified at trial, and maintained that he had not beaten either man and that Panther Bone and Many Shots had fought each other.

The evidence of the Defendant by virtue of the Jury’s verdict was necessarily rejected as the Jury convicted the Accused and had no reasonable doubt. [ 13 ] The police investigation supported Lavoie’s testimony while contradicting that of Bradley Gray. For example, footprints apparently left by a bloodied sock were observed between the location where Many Shots was found and where Panther Bone was beaten. Lavoie’s evidence was that Bradley Gray was shoeless when he first beat Many Shots and pursued Panther Bone, while Bradley Gray denied having gone to the area where Panther Bone had been beaten.

Lavoie testified that Bradley Gray put on shoes before he returned the second time to kick Many Shots.

[ 14 ] Forensic examination of the footwear and clothing of Panther Bone and Bradley Gray disclosed Many Shot’s blood on Bradley Gray’s clothing and footwear, but none on Panther Bone’s clothing. That was a particularly significant finding as Many Shots was bleeding profusely from many of the wounds he sustained, such that his blood would almost certainly have been transferred to his assailant during the assault. Thus, this forensic evidence implicated Bradley Gray as the assailant, while exculpating Panther Bone.

Also, the “missing twelfth bottle” of Bradley Gray was found in the alley beside Many Shots, though it was not broken as had been reported by Lavoie. [ 15 ] These are the facts I find pursuant to s. 724(2) of the Criminal Code for the purposes of sentencing on the manslaughter charge. [ 16 ] Bradley Gray has a rather lengthy record for such a young man. A record that includes several convictions for violence. In

summary, his convictions from the time he was 13 in 1992 to the time he was 26 years of age in 2005, he has a total of 73 criminal convictions, 19 violations of Court Orders, 30 property related offences, 17 offences of violence including nine assault convictions and three driving offences and two offences involving weapons. Mr.

Gray is 33 years of age, has been in custody since his arrest on this charge and has served his two year aggravated assault sentence. [ 17 ] The starting point in sentencing is found in s. 718 of the Criminal Code . 718 The fundamental purpose of sentencing is to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental of physical disability, sexual orientation, or other similar factor, or ... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ... [ 18 ] The Crown argues that the fit and proper sentence for Bradley Gray on the manslaughter conviction is life imprisonment with

no eligibility for parole for ten years. [19] The Defence on the other hand, argues for a term of incarceration of between five and eight years. [20] Sentencing in manslaughter cases can range on a continuum or spectrum and thereby vary from case to case depending on thecircumstances of the offence and the facts of each case. As our Court of Appeal has stated in R v Laberge, (1995) 1995 ABCA 196, CarswellAlta. 556 at para. 6: Different degrees of moral culpability attach to each along a continuum within that spectrum.

It is precisely because a sentence formanslaughter can range from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes whatrung on the moral culpability ladder the offender reached when he committed the prohibited act. The purpose of this exercise is to ensurethat the sentence imposed fits the degree of moral fault of the offender for the harm done. [21] The availability and authority for a life sentence as urged by the Crown is found in R v Hastings, (1985) 1985 ABCA 20, Carswell Alta. 20.

Admittedly maximum sentences are rare and are only appropriate if the offence is of a sufficient gravity andseriousness, and the offender displays sufficient blame worthiness. In other words, an appropriate sentence must have regard to both thecrime and the criminal. [22] In this case the Jury had clearly found the Accused guilty of second degree murder. A review of the facts in my view clearlyputs the criminal conduct of Bradley Gray in the third category of moral blameworthiness outlined by the Court of Appeal in R vLaberge, 1995 ABCA 196 , 1995 CarswellAlta 556 at para. 9.

The unlawful act of the Accused is of such a nature that it waslikely to put the victim at risk of, or cause life-threatening injuries. [23] Bradley Gray has very little to offer the Court in terms of mitigation. His record is very significant and he is only before thisCourt on a manslaughter charge due to the fact the Court of Appeal resisted an order for retrial on second degree murder. [24] R v Hastings,

(1985) Carswell Alta. 108, stands for the proportion that a life sentence can be imposed in Alberta formanslaughter as a means of preventative detention - in other words for the express purpose of preventing future crimes. Or, where thecircumstances of the offence and offender warrant a life sentence. [25] Sentencing in manslaughter cases are very case and fact specific. In this case we have facts on the extreme end of the severityrange. We also have an offender who has very little to offer in mitigation. The Report provided to the Court by Dr.

Reilly Smith, aForensic Psychiatrist of Alberta Health Services describes the Accused as follows: Mr. Gray was clear that he does not accept responsibility for Mr. Many Shots’ death and stated that he did not kill anyone. He indicatedthat he only tried to help Mr. Many Shots. He denied any guilt regarding events that evening. He described that he was convicted due to anumber of inconsistent accounts of events and postulated that Mr. Pantherwounds (sic) had changed his story to protect himself afterlearning that Mr. Many Shots had died, while Mr.

Lavoie changed his story due to fears to having his children apprehended. ...Throughout his admission Mr. Gray continually refused to accept responsibility for the index offense and displayed no remorse for hisactions. He consistently asserted that he had not been involved in an altercation with Mr. Many Shots or Mr. Panther Bone. [26] In addition, much of what Bradley Gray reports to Dr. Smith was at variance with collateral contacts.

It seems that this is aclear attempt by the Accused to minimize his blameworthiness or responsibility for certain actions when others constantly view hisresponsibility differently. [27] This shows a clear, consistent and continuous lack of remorse.

[ 28 ] Finally, Dr. Smith reports according to various forms of testing that, while he would not be classified as a psychopath as per this diagnostic instrument this score places Mr. Gray at the moderate range of psychopathic traits and behaviours, at the 39.7 percentile compared to a male offender population! [ 29 ] After reviewing risk assessment factors “Mr. Gray would be classified at a high risk of violent recidivism” according to Dr. Smith. [ 30 ] In addition to the facts already outlined and the circumstances of the offender, the Court is compelled to review the sentencing principles outlines in s. 718.2(1)(

I) of the Criminal Code . [ 31 ] Counsel for Bradley Gray argues that the Crown has failed to establish beyond a reasonable doubt that the offence was motivated by bias, prejudice or hate based on race, and therefore the Court cannot consider this an aggravating factor.

Further, Defence submits that the Crown failed to argue that it was a racially motivated crime at the original sentencing hearing and for the Crown to do so now is disingenuous. [ 32 ] The Crown’s response to the point of not raising it at first instance is that it simply was not necessary. [ 33 ] What does it mean that an offence was motivated by bias, prejudice or hate based on race? [ 34 ] The facts disclose the following as it relates to the factors in s. 718.2 of the Criminal Code .

In reciting these facts I use the actual language of the witnesses who testified at trial. - Complaint by the Accused to the Lethbridge Police about the slowness of their response to his first complaint - “we do nothing but fucking put up with drunken Indians” - Accused expressed frustration with the Indians in his neighbourhood, either because they were intoxicated or doing property related offences. - He reported the incident to police falsely and crudely describing a fight between two Indians. - He was dismissive of the particulars of the incident - “he is just another Indian to me”. - The Accused expressed concern about the police’s inordinate attention to this supposed fight between two Indians. - Mr.

Lavoie testified that the Accused complained to him prior to Mr. Panther Bone and Mr. Many Shots walking by his house of Indian people committing crimes with apparent impunity. [ 35 ] When one considers the context leading up to the vicious attack by Bradley Gray upon Mr. Panther Bone and Mr. Many Shots, it is hard to come to any other conclusion then that this Accused had deep seated animus towards aboriginals. I find the Crown has made a convincing case for the application of s. 718.2 .

[ 36 ] The personal circumstances of Bradley Gray and many of the letters filed in his support say he is not racially prejudiced. This is hard to square with the clear and incontrovertible evidence at trial.

On the evening of these unfortunate events, the darker side of Bradley Gray got the better of him and not only did he viciously cause the death of one unfortunate man, it culminated an evening of racial animosity and venom. [ 37 ] Defence argues quite forcefully that a life sentence is excessive and unreasonable, largely because of the lesser moral culpability in a manslaughter conviction as opposed to second degree murder. This case is however, on the most serious end of the manslaughter spectrum.

In fact, the Court of Appeal opined: I do not agree that manslaughter is the verdict that “should have been found,” or that it would have been found had the jury been properly charged. The beating was of such severity that murder may well have been the proper verdict. [ 38 ] I cannot agree with the Defence assertion that this case falls in the middle category of the Laberge analysis. [ 39 ] This case calls for denunciation of Bradley Gray’s conduct. It also calls for deterrence. People of any race should be free to walk down the streets of Lethbridge at their will.

This type of wanton and vicious attack requires clear denunciation and this Accused and others need to be deterred. [ 40 ] When one considers the facts of this case, the sentencing principles in the Criminal Code and the principles outlined in R v Hastings , the further aggravation of this being a racially motivated attack I am of the view that on its own, a sentence as suggested by Defence is simply inappropriate and inadequate. [ 41 ] I am of the view that given the facts, the record of Bradley Gray, his complete and total lack of remorse and his racially motivated animus, that a fit and proper sentence is life imprisonment with no eligibility of parole for ten years.

Given Dr. Smith’s Report, it is clear that Bradley Gray requires lifelong parole supervision. [ 42 ] Mr. Gray based on the conviction for manslaughter, I am sentencing you to life imprisonment with no eligibility for parole for ten years. As well, I am imposing a lifetime weapons prohibition under

Section 109 of the Criminal Code , and I am ordering a mandatory DNA sample under

Section 487.051(1) of the Criminal Code . Heard on the 17 th day of July, 2012, and the 23 rd day of November, 2012. Dated at Lethbridge, Alberta this 23 rd day of November, 2012. D.K. Miller J.C.Q.B.A.

Appearances: Alberta Justice Lethbridge Crown Prosecutor’s Office David A. Labrenz, Q.C. For the Crown Molle Roulston Chow Karen Molle for the Accused