R. v. Bradburn, 2021 MBPC 17

CITATION: R. v. Bradburn , 2021 MBPC 17 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) V. Gama for the Crown - and - ) ) ) Donovan Conner Bradburn ) ) ) L. LaBossiere and K. Burczynski, for the Accused ) ) ) Reasons for Decision ) Delivered: May 3, 2021 ROLSTON P.J. INTRODUCTION [ 1 ] Donovan Bradburn pled guilty to assault with a weapon stemming from an eleven on one attack that occurred on April 11, 2019 in the Manitoba Warriors unit at Stony Mountain Penitentiary.

The Crown proceeded by indictment. [ 2 ] The Crown has maintained that the principles of sentencing should be applied equally to each of the several inmates that were charged. The Crown therefore submits that the appropriate sentence in this case is 45 months consecutive to any remaining sentence Mr. Bradburn is currently serving. [ 3 ] The Defence submits that a 45-month sentence overemphasizes the remedial principles of sentencing in light of the case law on this area. Further, the Defence points out that Mr.

Bradburn is in a different position than his co-offenders in light of his youthful age, due to the impact of COVID-19 on him, and due to the fact that he was not serving a life sentence when the incident took place. Accordingly, the Defence suggests that less emphasis should be placed upon the principle of parity in this case. The Defence therefore seeks a sentence in the range of 18 months to two years. [ 4 ] The Court is obligated to determine the fit and appropriate sentence for Mr. Bradburn.

It is necessary to consider the context of this offence, and to apply the principles of sentencing in light of that context. As always, the Court must pay particular attention to the fact that Mr. Bradburn is an indigenous offender and exercise the principle of restraint. It is also necessary to examine the principle of parity in this case in light of the fact that Mr. Bradburn is the last offender to be sentenced from this incident, and in light of his participation in this incident. Context of the Incident and Principles of Sentencing [ 5 ] At the time of the incident, Mr.

Bradburn was serving a close to four-year sentence for a violent offence. Stony Mountain Institution is a maximum security facility, and Mr. Bradburn was placed on a unit that housed members and associates of the Manitoba Warriors gang. Mr. Bradburn was not necessarily directly associated to the Manitoba Warriors, but his father and other family had been members and he had grown up around many of the Manitoba Warrior membership. It was for this reason that he wished to be on this range. File information supported that Mr.

Bradburn had been associated to another gang which is friendly with the Manitoba Warriors and as such, Mr. Bradburn was a good fit for this unit. While this offence involved members of the Manitoba Warriors, the incident that leads Mr. Bradburn to court was only tangentially associated to gang membership. [ 6 ] Mr. Bradburn was nearing the end of his penitentiary stint on April 11, 2019 when the offence occurred. At that time, he was eligible for full parole, and his statutory release date was February 20, 2020. During his stay at Stony Mountain, Mr.

Bradburn’s participation in his case plan was described as “hot and cold” (See Crown’s Amended Sentencing Materials, Tab 10, page 6 of 14). In October 2017, a “Final Performance Report” was completed by the institution that serves as an unfortunate foreshadowing of the events of April 11, 2019 (See Crown’s Amended Sentencing Materials, Tab 6, page 8 of 8). The report commented:

Mr. Bradburn will need to stay strong and work on his skills to maintain commitment to making changes in his life. He understood each step of his crime process, how and why it escalates, but needs to remain aware at all times and remember that he is the one responsible for his choices and he needs to use willpower and personal strength when faced with choices that could affect his future, like substance abuse. He is reminded not to give in to temptation, stay focused on the long term rewards of being substance free and crime free.

He is aware of the skills required to manage his deficits, he will need to practice and be very prepared with the application of these skills, especially when under stress or when he is feeling under pressure from others. He will need to work hard to develop the skills to manage his deficits especially considering his Aboriginal Social History. Part of the Defence’s submission during sentencing pointed out Mr. Bradburn’s relatively youthful age and suggested that he was beholden to follow the actions of the group. Sadly, Mr.

Bradburn was unable to exercise the skills that he had explored in treatment when he participated in the incident that leads him to Court. [ 7 ] The incident amounts to a vicious eleven on one premeditated attack on the victim that lasted just over two minutes. A video of the incident has been filed as exhibit S-3, and the incident has been described by counsel. In the minutes leading up to the assault, participating inmates were seen gathering strategically around the victim’s cell, which is on the second tier of the range. Mr. Bradburn was located on the stairs below. Both Mr. Bradburn and an inmate named Mr.

Anderson had long spear-like weapons in their hands. A third offender, Mr. Chubb, called for security to open the victim’s cell in order for the remaining offenders to begin the attack. This was Mr. Chubb’s only involvement in the attack. He was sentenced to 45 months for his role in the incident. As the victim desperately tried to hold the cell door closed, the remaining attackers converged on the cell to attempt to get in. One inmate, Mr. Wapash approached and threw boiling hot water from a can onto the victim, but never participated further. Mr.

Wapash has also pled guilty and was sentenced to 45 months for his role in the incident. Mr. Anderson and Mr. Bradburn ran up the stairs and took turns thrusting their respective spears into the cell bars at the victim. Mr. Anderson pled guilty for his role and was sentenced to 45 months. The victim, who was uncooperative with the investigation, suffered from burns from the hot water, and several lacerations to his back, leg and hands. The incident ended when guards deployed pepper spray into the cell where the victim was being kicked and punched. By that time, Mr. Bradburn was long gone.

The Applicable Principles of Sentencing [ 8 ]

Section 718 of the Criminal Code sets out the principles of sentencing of offenders. Each principle of sentencing always applies in every case, however certain principles require more emphasis in certain circumstances. Counsel have provided several cases illustrating the various principles that are important when a serious assault happens in the context of a jail setting.

It is not controversial that the principles of deterrence, denunciation and protection of the public are the primary focus of sentencing judges in these circumstances. [ 9 ] While the various courts in the cases filed expressed the reasons for this in very eloquent words, it is sufficient for our purposes to simply state the reasons why these principles should be emphasized. Firstly, the sentence must send a message to other inmates that their behaviour will not be tolerated.

This is known as general deterrence and is important because the inmates in the institution will know of the incident, and will need to learn of the result. If jails are to remain in the control of the authorities, inmates must know that their actions have real consequences. In this court’s view, this is a particularly compelling reason to emphasize deterrence. Secondly, offenders who violently offend while they are incarcerated illustrate that they are not able to be controlled or control themselves. They are therefore a threat to the safety of the public. The court must place weight on protection of the public.

While the case law expands on these general themes, they represent the impetus for emphasis on remedial principles of sentencing. Clearly, in sentencing Mr. Bradburn, the Court must be mindful of the application of these same principles. [ 10 ] The Court is obligated to consider the aggravating and mitigating circumstances of the offence and the Offender. [ 11 ] The Crown has highlighted the many aggravating factors about the offence itself: • The incident took place in a custodial setting, • It was an eleven on one attack. The victim, Mr.

Malcolm never had a chance against those odds, • The attack occurred in the victim’s home. My respective colleagues only briefly alluded to this fact in their reasons, but in my view, this is a significant aggravating factor. In mainstream society, our home is considered to be our castle. In the institution, it is at the very least one’s small place of refuge from the goings on in jail. This attack undermined Mr. Malcolm’s right to find his safe place in a profound way, • There was significant planning done to co-ordinate this attack.

Weapons were prepared for the purpose of extending into the cell, a shield was fashioned to protect against counter attack, the attack group formed a milieu around the cell to prevent escape, and a plan was formulated to breach the locked door. • Mr. Malcolm sustained serious injuries. While these injuries could have been far worse, they were significant enough to warrant medical attention. These aggravating factors are common to all of the offenders that have been sentenced already, and apply equally to Mr. Bradburn. [ 12 ] The Court must also examine any aggravating factors specific to Mr.

Bradburn. • He played a significant role in the attack, possessing a spear-like weapon and thrusting it into the cell so as to inflict injury upon his victim. Interestingly, the Crown only proceeded upon those whose role was certain and significant. The sentences meted out to date may suggest that my colleagues have viewed the differing roles as equally aggravating. However, both Mr. Anderson and Mr. Bradburn’s action do constitute the actus reus of the offence and are therefore the most significant. • Mr. Bradburn has a criminal record that is lengthy and related.

While he is the youngest of the offenders involved, he had been

sentenced 6 times prior to this offence as an adult and 4 times as a youth. He was in the Penitentiary for a violent offence and had prior violent convictions on his record. Again, while these factors are unique to Mr. Bradburn, his background is in many ways similar to his co-offenders. [ 13 ] As stated, the Court also must consider the mitigating factors about the offence and the offender. [ 14 ] The Defence has pointed out that Mr. Bradburn was the youngest offender of the group. Further, the Defence says that the weapon used by Mr.

Bradburn was less dangerous in that there was no sharp end attached as compared to Mr. Anderson’s weapon. Defence also points to the video which depicts that Mr. Bradburn was being pushed into continuing the assault. Lastly, it is agreed that Mr. Bradburn was “long gone” once the authorities intervened, and did not participate in the ongoing assault. The Defence contends that these factors sum up to the fact that Mr. Bradburn was in a no win situation leading up to the assault. It was either participate, or face the wrath of the power brokers on the unit. [ 15 ] The Court accepts that Mr.

Bradburn was in a tenuous position. The words referenced earlier from his progress report so much as predicted that Mr. Bradburn would soon face difficult decisions in order to stay on the straight and narrow. In this Court’s view, Mr. Bradburn’s predicament goes to his moral culpability. Generally speaking, one would consider participating in an eleven on one attack in an institution while armed against a defenceless victim a highly morally culpable and cowardly act. In this case, Mr. Bradburn’s moral culpability is tempered somewhat by the difficult position he was in. Mr.

Anderson alluded to a similar difficult position to Judge Moar as to his involvement. Judge Moar spent time outlining the plight of indigenous offenders and how often they become susceptible to falling into a pattern of continued criminality in order to survive. As Judge Moar concluded with Mr. Anderson, these factors do not excuse the behaviour. It should be noted that the video evidence shows that despite having to be pushed forward to participate, Mr. Bradburn’s actions in thrusting his weapon at Mr. Malcolm was vicious and unrestrained.

At the end of the day, aside from this one small mitigating factor, there are no other mitigating facts about the incident in Mr. Bradburn’s favour. [ 16 ] There are some other mitigating factors that require attention about Mr. Bradburn. First of all, he pled guilty to the offence. While on one hand, he would have certainly been convicted based upon the video evidence presented to this court, which waters down his guilty plea, the Court is mindful that a prosecution would have been expensive and difficult in terms of resources and management of inmates to attend trial.

In that respect, he gets credit for his guilty plea. [ 17 ] Defence counsel spent considerable time speaking about the impact of COVID-19 on Mr. Bradburn. There were several aspects of life altered by the Covid pandemic for Mr. Bradburn based upon the submissions made by counsel. While the only Covid related evidence placed before the court was a statistical comparison of Covid positive cases across Canadian penitentiaries, Crown counsel did not take issue with the submissions of counsel as to the impacts of Covid upon Mr. Bradburn. [ 18 ] According to counsel, Mr.

Bradburn and other inmates faced restrictions on their freedom within the institution. There was no access to library, no visitors, no programming, no work and no school for Mr. Bradburn between March and December, 2020. In fact, Mr. Bradburn was allowed out of his cell for only ½ hour per day. Notwithstanding these measures, Mr. Bradburn and many others in his unit became infected with Covid and Mr. Bradburn was sick for 14 days. Since December 2020, Mr. Bradburn has completed his sentence and has been transferred to Headingly Correctional Institute.

He has been confined to his range and has limited access to school, programming and extra curricular activities. The contentious issue in the case at hand is not based upon any contest as to these facts, but instead as to what impact those facts have on the sentence. [ 19 ] Crown counsel has properly maintained from the outset that each offender involved in this incident should receive the same sentence. In fact, the first offender to be sentenced was Mr. Chubb. In that case, the Crown sought 48 months as a sentence. The Court gave Mr. Chubb credit for his guilty plea and as such imposed a 45-month sentence.

Given that the remaining offenders offered guilty pleas since, the Crown has adjusted its position for all of the co-offenders in the name of parity. [ 20 ] Interestingly, none of the previously sentenced offenders made submissions through counsel as to how Covid might impact their respective sentence. In Chubb , Judge Slough indicated that 48 months would be an appropriate sentence, but imposed 45 months due to the guilty plea. Covid was not mentioned at all. In Anderson , no submissions were made as to Covid, but Mr.

Anderson advised Judge Moar that his aunt had died “due to Covid”, and that he himself had contracted Covid in custody. He described a plight similar to the one described by Mr. Bradburn’s counsel. Judge Moar alluded to the impact of Covid, but did not undertake an analysis as to the extent to which Mr. Anderson should get a reduction on his sentence. Covid was not mentioned in the sentencing of Mr. Wapash. Exhibit S-2 shows that there have been 371 cases of Covid at Stony Mountain Institution as of January 20, 2021.

Given the narrow time line of Covid, one can only conclude that each of the mentioned offenders has resided with the same institutional restrictions as the others. What should be the impact of Covid for Mr. Bradburn in light of this apparent gap in the evidence? [ 21 ] It is clear that Covid has and can be considered to reduce a sentence. The starting point in any discussion as to the impact it has on a sentence is to examine how Covid is to be considered. Justice Pomerance made an important distinction in R . v.

Hearns , 2020 ONSC 2365 at paragraphs 15 and 16 : How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions. [Emphasis added]. COVID-19 also affects our conception of the fitness of sentence.

Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served.

As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

There are several important points to be taken from Hearns . Covid cannot make an unfit sentence fit. However, Covid can be a consideration that causes a court to depart from ensuring that the principle of parity is achieved, so long as the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 22 ] The difficulty in the case at bar is that all of the offenders were living in the same conditions and at least one of them contracted Covid in the same way as the offender before the court.

In Hearns , the Court went on to point out that a sentence may be reduced, “where the sentence would have a more significant impact on the offender”, due to the impact of the “social conditions of the time” (at paragraph 20). In this case, those social conditions were equally present for all offenders. Accordingly, while the Court accepts that Covid has a role to play in the consideration as to the appropriate sentence, each of the offenders in this case should receive consideration. In the case of Mr. Anderson and Mr. Bradburn, who both contracted Covid, that consideration is more of a factor in sentencing.

In the case of Mr. Anderson, Judge Moar acknowledged that Covid had impacted him and arrived at a sentence deemed to be appropriate for Mr. Anderson. Mr. Bradburn will be afforded the same consideration. [ 23 ] Therefore, Mr. Bradburn is entitled to consideration for his guilty plea and for the impact of Covid as personal circumstances that mitigate a fit and appropriate sentence in line with Mr. Anderson. Gladue Considerations [ 24 ] Counsel on both sides presented several cases outlining a range of sentences for serious jailhouse assaults.

Sadly, there was a second common element amongst the cases in that most, if not all of the cases involved offenders who had each been significantly impacted by the imposition of colonialism. [ 25 ] Mr. Bradburn’s history is particularly noteworthy in light of the context of this case. He was born in Winnipeg into a family with 10 siblings, but his family connection is to the God’s Lake First Nation. There was significant substance abuse in the family in his parent’s generation, while his grandparents endured the residential school system. Mr.

Bradburn was subjected to Child and Family Services and ultimately raised in part by his grandmother. There was poverty throughout his family and his father ended up joining the Manitoba Warriors as an answer to the poverty and abuse he had been subjected to. Mr. Bradburn followed suit, using alcohol and drugs as a young man and violence as an outlet to anger he understandably experienced. Before long, he followed his father’s path into the gang life, and ultimately found himself at Stony Mountain living in the Manitoba Warriors range. [ 26 ] It is clear that for Mr.

Bradburn, this offence is directly linked to Gladue factors. His upbringing was marred by abuse that goes back at least two generations and contributed to poverty, anger and addictions. These factors played into his offence cycle and his direct connection to the Manitoba Warriors led to his placement on the very range that this offence took place. This background must be considered in sentencing Mr. Bradburn. [ 27 ] As stated, it is noteworthy that each of the co-offenders in this case suffered from the impact of Gladue factors in their own respective ways. In particular, Judge Moar in Mr.

Anderson’s sentencing spent significant time detailing how Mr. Anderson’s path led him to be standing beside Mr. Bradburn. The Court can never say that one person’s Gladue experience is worse than another’s. Each are unique, and must be considered by the respective sentencing judge. In Mr. Bradburn’s case, his background does blunt the moral culpability of his actions, particularly when considered in conjunction with the fact that he was the youngest offender and was in the difficult predicament he was in of going along with the offence or suffering consequences of his own.

The Appropriate Sentence [ 28 ] As stated at the outset, the context of this assault with weapon is an important factor in determining the fit and appropriate sentence. This is an eleven on one attack in the cell of the victim within a penitentiary setting. Deterrence, denunciation and protection of the public are paramount considerations. Several facts which have been outlined serve as aggravating features that increase the need for an exemplary sentence.

In this Court’s view, based upon these factors, a sentence in the range of 4 years is wholly appropriate. [ 29 ] The Defence in this case has argued that parity should be of less importance, and should serve to reduce the sentence. The reduction applied by Judge Slough for the guilty plea should apply equally to each offender. Also, each co-offender was plagued by similar Gladue considerations and each offender had to deal with Covid in a similar way. At the same time, Mr. Bradburn’s involvement as a primary actor in the assault puts him in an arguably worse position than Mr. Chubb and Mr. Wapash.

However, the Court is satisfied that the fact that he was holding the weapon is likely a function of his lower position within the power structure of the range. For Mr. Bradburn, this reduced moral culpability puts him at par with the other offenders. The Court finds 45 months is an appropriate sentence that balances each of these considerations. At the end of the day, while there are some differences between Mr.

Bradburn’s involvement and background as compared to that of his co-offenders, some differences trend towards an increased sentence, while other factors trend towards a decreased sentence. [ 30 ] The Defence also argued for a lesser sentence for Mr. Bradburn on the basis of parole eligibility. The Defence pointed out that Mr. Bradburn is the only offender who is not currently serving a life sentence, and therefore the sentence imposed will have a greater impact upon him than the other offenders. It is not precisely clear what that greater impact would be for Mr. Bradburn.

However, in the Court’s view, the Defence’s argument in this regard goes to totality. It is clear that Mr. Bradburn has been in custody for an extended period of time, so the Court must consider whether the total impact of that time is crushing in nature. At the same time, the totality consideration must be considered in conjunction with the other principles of sentencing. [ 31 ] As stated, the paramount consideration for jailhouse assaults is deterrence, denunciation and public protection.

Inmates must know that irrespective of their role in such offences, there is a real and tangible price to pay for involvement. If one offender is given a lesser sentence because of a certain potential parole calculus, similarly positioned inmates may be recruited to engage in the worst elements of future criminal activity due to perceived lesser consequences.

The escalating nature of violence within institutions as born out by the case law and the materials filed in this case must be met with a clear, strong and consistent message that no offender gets off with a light touch as compared to the others who are involved. While the imposition of an additional 45 months is a heavy price to pay, it is the least restrictive that can be imposed based upon Mr. Bradburn’s involvement in the offence and his background.

[ 32 ] Therefore, the appropriate sentence is 45 months (1350 days). Mr. Bradburn is entitled to 1.5 days for every day served since he completed his sentence for the index offence. As of May 3, 2021, that amounts to 141 days x 1.5 = 212. Therefore, his sentence going forward amounts to 1138 days (or around 38 months). There will be a mandatory DNA order and a

section 109 order prohibiting the possession of certain firearms for life. “Original signed by:” ROLSTON P.J.