Date: October 21, 2021 NBPC 10

R v. Bradley Dustyhorn 2021NBPC10 PROVINCIAL COURT JUDICIAL DISTRICT OF MIRAMICHI Citation: Date: October 21, 2021 Docket: 15671613, 15742113, 15755713 Between: HER MAJESTY THE QUEEN - and - BRADLEY DUSTYHORN Before: His Honour Cameron Gunn Date of sentencing: October 21, 2021 Appearances: Jean Guy Savoie - for Her Majesty the Queen Dustin Caissie - for Bradley Dustyhorn DECISION GUNN, J.: Introduction 1 . Bradley Dustyhorn was an inmate in Atlantic Institution for a period of time in 2019 and 2020. During that period, he was accused of and ultimately pleaded guilty to several offences.

This decision is about the sentences that will be imposed as a result of those guilty pleas. 2 . The Crown and counsel for Mr. Dustyhorn differ in their recommendations. Most significantly, the Crown seeks a global sentence of 5 years consecutive to sentences that Mr. Dustyhorn is serving, while Mr. Dustyhorn’s counsel proposes that all sentences should run concurrent to the sentences he is currently serving. Facts 3 . The facts in relation to the offences to which Mr. Dustyhorn has pleaded guilty are, briefly: a.

October 25, 2019 (Section 268): Inmate Joshua Preeper was walking from the range to the common room in Unit 1. 4 attackers set upon him and using saps (frozen bottles of water within braided socks) began to strike him. Mr Preeper was able to defend himself for a short time, until he fell to the ground where all attackers continued to attack him, striking him with the saps, and kicking him in the head. The attack was only halted when gas was deployed by correctional officers. Mr. Preeper was assisted away and received sutures to close a wound to the back of his head and he had fractures to his facial bones; b.

May 22, 2020 (Sections 266(

a) and 264.1(1)(a)): Dr. Camille Haddad, working as a physician within the Institution, was interviewing the accused about his medications, when the accused became angry and lunged at him. The accused punched the doctor in his left jaw with a closed fist. A correctional officer intervened and he was taken the ground and restrained. The accused either said that he would stab Dr. Haddad the next time or that he was lucky that he had not stabbed him; c. June 25, 2020 (Section 270(1)(a)): Correctional Officer Carson Silliker was moving inmates from one area to another. The accused was among those being moved.

During this procedure, two inmates began to assalt a third inmate. Correctional officer Silliker intervened and restrained one of the inmates and had taken him to the ground. Mr. Dustyhorn, who was not part of the original assault, ran up and kicked the officer in the ribs, which knocked the wind out of him. He then attempted to strike the inmate and the officer. Other officers arrived and restrained Mr. Dustyhorn. The officer had sore ribs and had a wound on his arm. The Issue 4 . Of course, the ultimate issue I must decide is what is a fit and proper sentence for the offences to which Mr.

Dustyhorn has pleaded guilty. This will, in part, be influenced by how I apply the totality principle.

The Parties 5 . The parties do not agree on the appropriate sentences. 6 . The Crown suggests that the October 25, 2019 incident, for which the three co-accused received three years in jail (or the equivalent after credit for pre-trial remand) demanded a three year sentence of imprisonment, the May 22, 2020 incident merited a sentence of one year for both offences, and the June 25, 2020 assault required a two year sentence. 7 .

While the Crown said the incidents should normally require consecutive sentences, an application of the totality principle should compel me to make some adjustment to the sentences to reduce the global sentence for all of the offences to five years. 8 . Mr. Dustyhorn’s counsel proposes sentences of one year for the aggravated assault, six months for the assault on Dr. Haddad and three months for the threat, and six months for the assault on the correctional services officer. Mr Dustyhorn’s counsel proposes that, as Mr.

Dustyhorn is effectively serving a cumulative 26 year sentence (according to his calculations), all of the sentences I impose should be concurrent to each other and concurrent to the sentences he is serving as anything else may be considered cruel and unusual. The Law 9 . The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the “ credibility of the criminal justice system in the eyes of the public”. [1] 10 .

The task is governed by the provisions of the Criminal Code but it involves “ the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” [2] The purpose and principles of sentence as set out in the Criminal Code allow for “sentence individualization" [3] and guide the sentence I must impose. The Fundamental Purpose of Sentencing 11 .

Section 718 describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 acknowledgment of the harm done to victims or to the community. 12 . The imposition of a just sentence requires “ sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender.” [4] 13 . Before considering the circumstances of the offences and the offender, I will briefly address the objectives and principles of sentence and highlight those that are predominant in this case. The Objectives

14 . The objectives described in s. 718 may have predominance in a set of circumstances dictated by the offence, the offender or both. Where trial judges are required to attribute “ the objectives of denunciation and deterrence their proper predominant influence” that absent extraordinary circumstances a sentence of imprisonment must be imposed. [5] 15 . Deterrence is also subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstance of the offender and the prospects for rehabilitation must be considered.

A court must look at the “individual, his record and attitude, his motivation and his reformation and rehabilitation”. [6] 16 . General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider “the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it.” [7] 17 .

The Criminal Code mandates denunciation and deterrence as the primary consideration when imposing a sentence for an offence under s. 270(1) . [8] Mr. Dustyhorn is being sentenced for one such offence. 18 . The separation of an offender from society is occasionally necessary. The application of the objective must be read, in concert with s. 718.2(e), which essentially requires that imprisonment be the sentence of last resort. There are circumstances of both offender and offence, however, that require the offender to be imprisoned.

For instance, where an offender commits a serious violent offence and previous efforts to rehabilitate have failed, jail may be necessary. [9] 19 . The maintenance of a just, peaceful and safe society, as is mandated by s. 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court has held, “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world.” [10] 20 .

The Criminal Code also holds that the fundamental principle of sentence is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle. 21 . Other principles are important in crafting an appropriate sentence here. First,

section 718.2(

b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." This is the codification of the parity principle which has particular resonance here given that Mr. Dustyhorn’s co-accused in one of the offences have already been sentenced. [11] 22 .

Section 718.2 (

a) of the Criminal Code indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."

Section 718.2 also dictates that: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Bradley Dustyhorn 23 . Mr. Dustyhorn is 26 years old and a member of the Cree peoples from Kawacatoose First Nation. At the sentencing hearing his counsel confirmed his grandparents were victims of the 60’s scoop. His father was a physically and emotionally abusive alcoholic and his mother ran away to escape him. This led to Mr.

Dustyhorn being raised in a group home from the age of 12, before going into a juvenile detention centre at 13. He was in and out of detention from 13 to 18 and eventually received his first adult sentence. After one year of living in the community, he has largely been incarcerated since that time. He has a son who is 5. 24 . Mr. Dustyhorn suffers with depression, multiple personality disorder, anger anxiety, and impulse control issues. He has suicidal ideations and has attempted suicide. He has been a heavy drug user but is sober due to the Suboxone program. Currently he is taking programming in the Institution.

His statutory release date is 2029/11/28. [12] 25 . Mr. Dustyhorn has expressed remorse through his guilty pleas and oral representations to the court and these are mitigating circumstances. 26 . As indicated above, Mr. Dustyhorn is an Aboriginal. As such, two duties arise as articulated in Gladue [13] and Ipeelee [14] . The Supreme Court of Canada has been clear that a sentencing judge has an obligation to consider the following factors: a. The unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and b. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. [15]

27 . As the sentencing judge I have an affirmative obligation to take judicial notice of “such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.” [16] 28 . That is not to say that “ s. 718.2 (

e) should be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is Aboriginal”. [17] Rather it is a direction to address over-representation of Aboriginal offenders by crafting sentences that are fit and proper, respecting the individual and community circumstances that bring the offender before the Court. 29 . In this case, both the Gladue component of the pre-sentence report and the representations by counsel for the accused provided important information about the accused. Mr.

Dustyhorn has been affected by: i. substance abuse in his home; ii. physical and emotional abuse; iii. poverty; iv. family breakdown; v. personal trauma; vi. mental health issues; vii. intergenerational trauma; and viii. personal addiction issues. 30 . Of course, in considering Mr. Dustyhorn ’s personal circumstances it is a relevant consideration that he has a substantial criminal record. Beginning in 2013 he has 17 previous convictions, including a previous aggravated assault and 2 offences for attempt to commit murder. The criminal record is an aggravating circumstance. The Offences 31 .

The offences to which the offender has admitted are serious. They involve assaults of a varying degree of severity on a fellow inmate, a treating physician, and a correctional services officer. 32 . The prevailing jurisprudence affirms the need for deterrence and denunciation in cases involving assaults of prison guards and inmates. [18] Justice Jack Walsh wrote in R. v. Thompson [19] : In my view, that obligation is intensified when the crime is committed inside prison walls.

If the prison authorities cannot stop the mindless violence, then courts must do what they can to exert some type of control through the sentences meted out by way of denunciation and deterrence (both specific and general); general in this context meaning directed at other sentence serving prisoners.

For it can never be that inmates are handed sentences for violent crimes that are interpreted as a 'license' by the specific offender and other like-minded inmates; For it can never also be that just because those crimes occur among prisoners that somehow those kinds of acts are not deserving of society's full denunciation and condemnation. And it can never be forgotten that every citizen, whether free in the community or not, is deserving of protection by the courts. Nor can it be overlooked that when such crimes occur the safety of those who work inside prisons are put at risk.

They have a right to go home to their families too. [20] 33 . There has been some critical commentary on how judges sentence inmates for violent offences without consideration “of systemic problems in Canada’s correctional system that contribute to criminal behaviour”. [21] I will return to a consideration of that commentary below. Aggravating and Mitigating Circumstances 34 . I consider it aggravating that: a. Mr. Dustyhorn has a criminal record that contains various violent offences. The last of those, two charges of attempt to commit murder, appear to have been committed while he was incarcerated; b. Mr.

Dustyhorn attacked a physician engaged in his treatment; and c. the level of violence meted out on Mr. Preeper and that the assault stopped only when gas was deployed by corrections officials. 35 . I consider it mitigating that:

a. Mr. Dustyhorn has pleaded guilty; b. He has expressed remorse; c. He has taken programing within the institution and has maintained sobriety; and d. He is still a young man who now has the opportunity for family support. Range of Sentence Aggravated Assault 36 . In R. v. Howe , [22] and R. v. Lambert and Ward [23] Ferguson, J. extensively canvassed the sentence range for aggravated assaults in New Brunswick. That review of cases in New Brunswick revealed a range of sentences from 6 months to 11 years. 37 .

In this case, and in keeping with the parity principle, I am also mindful that the co-accused in the aggravated assault all received sentences of 3 years (or the equivalent). Assault and Threat on Dr. Haddad 38 . It is difficult to establish sentencing ranges for cases of assault on non-correctional officer staff in the penitentiary setting. In this case, I find that the offence, though clearly motivated in part by a disagreement about medical treatment, was still a crime of violence and intimidation. It involved a not insignificant level of violence though no injuries resulted.

That it happened within the confines of a penitentiary, regardless of the occupational status of the victim, makes it akin to an inmate on correctional officer assault and I am guided by the jurisprudence in those cases which I will address next. Assault on Correctional Officers 39 . I have mentioned above the need for denunciation and deterrence in inmate on guard violence. In R. v. Daviau [24] Dunnigan, J. wrote: A number of valuable principles emerge from the decisions [referred to by the Crown] instructive to sentencing courts: (

a) assaults committed while incarcerated, whether against fellow inmates or guards, are to be viewed more sternly and should attract longer sentences; and (

b) deterrence of other inmates from engaging in such behaviour is the paramount consideration in assaults on prison guards; and (

c) the over-riding impetus in sentencing is the maintenance of order in penal institutions. [25] 40 . A review of cases that provide a range of sentences for inmate on guard assaults shows a range of one year to three years though many of the cases were for offences where bodily harm was occasioned-such is not the case here. [26] The Totality Principle 41 . Given that I am sentencing the offender for 4 separate offences I must consider whether consecutive or concurrent sentences are appropriate.

Consecutive sentences are to be imposed unless there is a reasonably close nexus between the offences in time and place as part of one continuing criminal operation or transaction. If a consecutive sentence is to be imposed, the totality principle is engaged ( s. 718.2 ( c )). The offences here are committed in relation to separate victims and are separate and discreet offence. They involve different incidents of violence and injury and do not, in my view, have a reasonably close nexus, as that term is meant, to each other. I believe consecutive sentences are appropriate. 42 .

As I am obligated to do, however, I have considered the appropriate sentence for each offence. I have taken one last look at the total sentence to determine if the total sentence is unduly long or harsh. [27] 43 . This consideration takes on a special significance as counsel for Mr. Dustyhorn has proposed that given the current sentences he is serving that my totality review must include those sentences as well. This proposition has been made in at least one paper as a means of addressing perceived problems with sentences imposed on inmates. [28]

44 . This proposition has found some favour in at least one Court of Appeal. In R. v. Barrett [29] where Hoegg, J.A. wrote: A totality analysis pursuant to

section 718.2(

c) does not expressly address consideration of offences which are not before the sentencing court. In ordinary circumstances, a judge who is imposing sentence for multiple offences conducts his or her totality analysis on considerations relating to sentencing for the multiple offences which are before him or her and does not usually consider a sentence previously imposed by another judge. This is not to say that consideration of an offender's past convictions and sentences is not relevant to his sentencing for the current offences.

The circumstances of an offender are always relevant to sentencing, notably with respect to the principle of rehabilitation, and the fact that an offender is incarcerated and for how long is a factor which could be considered by a sentencing judge. The issue is how consideration of this factor can be addressed when the circumstances of the case engage a totality analysis. (Emphasis added) [30] 45 . In a later decision of that same Court, however, R. v.

Roberts [31] , some clarification was added, and the Court held that: a. there must be at least two current sentences at issue which, absent the application of totality, are liable to be served consecutively; b. it is only the unexpired portion of the existing sentence that can be added to the other sentences to determine whether the combined period of incarceration will be unduly long or harsh; c. where one or more of the offences for which the offender is currently being sentenced is what triggers the existence of the prior unexpired sentence, as for example, where the offender is on parole which is forfeited as a result of commission of the offences for which he or she is now being sentenced, the impact of the unexpired sentence is substantially minimized; d. it is only the fact that [the offender] is serving an incarcerating sentence and its duration that can be considered. [32] 46 .

Other courts have recognized the application of the totality principle “where a sentencing judge must impose a fit sentence on an offender convicted of one or more offences where that offender is at the same time serving the remainder of a sentence for a previous conviction or convictions.” [33] In this province, Justice Glennie considered and did not reject the notion that the totality principle includes consideration of unexpired sentences where the offender committed the offences for which they were being sentenced while on parole. [34] 47 . The jurisprudence is not without nuance. In R. v.

Johnson the Court also noted that an overly lenient sentence, or one that is unresponsive to other purposes and principles that underpin the sentencing regime may be seen as the offender reaping benefits from his previous serious criminal misconduct. In such a case the totality principle would have a substantially reduced effect. [35] 48 . While the cases cited relate to offences committed while the offender had been released or paroled, there is nothing in them that makes the reasoning inapplicable to crimes committed while incarcerated. 49 . From the cases I draw the following guidance: a.

The totality principle is engaged where a sentencing judge must impose a sentence for multiple offences or where the offender is being sentenced for one or more offences and where that offender is at the same time serving the remainder of a sentence for a previous conviction or convictions; b. it is only the unexpired portion of the existing sentence that can be added to the other sentences to determine whether the combined period of incarceration will be unduly long or harsh; c. the totality principle would have a substantially reduced effect where, in considering the unexpired portion of sentences, the resulting sentence would be unresponsive to the other purposes and principles that underpin the sentencing regime. 50 .

Applying the guidance described above, the overarching principle remains to ensure that the proportionality principle is met by imposing a sentence which is “just and appropriate” and does not exceed the offender's overall culpability, nor is it “unduly harsh” or “crushing. [36] 51 .

In this case, I have considered the sentencing range revealed in the decisions of Justice Ferguson discussed above. [37] Given the gravity of the offence, the offender's moral culpability, the harm done to the victim, the offender's record and his future prospects, the proposed sentence might well be described as on the low end of what might have otherwise have been imposed. 52 . I am also mindful here that were I to impose the sentence suggested by counsel for the offender, I might have the unintended consequence of licensing violent behaviour by Mr. Dustyhorn or others in similar circumstances.

This would run afoul of other sentencing principles and be inconsistent with jurisprudence from other courts, including the Court of Queen’s Bench in this province. 53 . Considering the gravity of the offences, the offender's moral culpability, the harm done to the victims, the offender's record and future prospects and whether the effect of the sentence would be "crushing," I do find that some adjustment to the sentence I might otherwise have imposed is merited and I will adjust the sentences accordingly.

I find that the sentences proposed by the Crown, including the proposed change for the offences in relation to Dr. Haddad from consecutive to concurrent, are an appropriate modification. 54 . One last point on this issue. Counsel for the accused used the phrase “cruel and unusual”. This, of course, is the language in s. 12 of the Canadian Charter of Rights and Freedoms . Counsel did not, however, advance a Constitutional argument or assert that any provisions of the Criminal Code were unconstitutional. Thus, despite the language used by counsel, I have considered his submissions

within the rubric of the consideration of a fit and proper sentence. Sentence 55 . Taking into consideration all the aggravating and mitigating factors together with the other principles of sentence that must be applied, I believe that a fit and proper sentence is: a. for the count contrary to s. 268 3 years imprisonment consecutive to any other sentence I impose here and any other sentence he is currently serving; b. The sentence for the offence contrary to s. 266(

a) is one-year imprisonment, but that sentence will run concurrently; c. The sentence for the offence contrary to s. 264.1(1)(

a) is one-year imprisonment, but that sentence will run concurrently; d. The sentence for the offence contrary to s. 270(1)(a), the assault on Carson Silliker, is 2 years imprisonment and that sentence will run consecutively to any other sentence he is currently serving and any other sentence I impose here today. 56 . In addition, ancillary orders are required: a. Pursuant to

section 109 of the Criminal Code I make an order that Mr. Dustyhorn be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life; b.

Section 268 is a primary designated offence under

Section 487.04 of the Criminal Code and thus pursuant to s. 487.051 I order that such samples of bodily substances that is reasonably required for forensic DNA analysis be taken from Mr. Dustyhorn. 57 . I am not imposing victim fine surcharges given that the offender is serving long term sentences. ________________________ Cameron Gunn, PCJ.