R. v. Pruden, 2022 MBKB 240

Date: 2022 1215 Docket: CR 22-01-38906 (Winnipeg Centre) Indexed as: R. v. Pruden Cited as: 2022 MBKB 240 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: ) Appearances : ) HIS MAJESTY THE KING, ) Michael G. Himmelman ) for the Crown - and - ) ) Pamela D. Smith NORMAN RICHARD PRUDEN, ) for the accused ) accused. ) ) JUDGMENT DELIVERED: ) December 15, 2022 McCARTHY J. Reasons for Sentence [ 1 ] Norman Richard Pruden has pled guilty to the offence of manslaughter. The issue before this court is what constitutes a fit and appropriate sentence for this crime.

THE PURPOSE OF SENTENCING AND OBJECTIVES OF SENTENCING [ 2 ] The Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”) at s. 718 , sets out several objectives of sentencing. The offence for which Mr. Pruden has been convicted in this case is manslaughter, which requires that deterrence and denunciation be the paramount sentencing factors. The court may consider other factors as well, such as separation of the offender, rehabilitation, Gladue factors, and reparations to victims and the community. [ 3 ] The fundamental or overarching principle of sentencing must be proportionality.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. OTHER RELEVANT SENTENCING PRINCIPLES [ 4 ] Pursuant to s. 718.2 of the Code , the sentencing court must: (

a) Consider any aggravating and mitigating circumstances; (

b) Consider parity, with sentences being similar for similar offenders for similar offences committed in similar circumstances; (

c) Refrain from restricting liberty if less restrictive sanctions may be appropriate; (

d) Consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, with particular attention to the circumstances of Aboriginal offenders. THE GRAVITY OF THE OFFENCE [ 5 ] At the sentencing hearing there were no Victim Impact Statements reportedly because the victim was a very recent immigrant to Canada and no family have been located here. Victim Services had, at the time of the sentencing hearing, also been unable to locate his family abroad.

However, even without the input of his loved ones the court recognizes that the loss of any life is the most significant impact that can arise out of criminal conduct. Its impact is not measured differently because the victim has no family or friends available

to speak to who the victim was and how he is missed. Rather, the loss of any life is inherently tragic, and random attacks like this one impact the sense of security of the entire community. [ 6 ] The circumstances of this offence are outlined in as much detail as is available in an Agreed Statement of Facts. Those facts are based primarily upon video surveillance of an interaction between Mr. Pruden and the victim, Mr. Ifa Germosa, immediately preceding the assault, and upon the information from two individuals who witnessed the assault. [ 7 ] According to the Agreed Statement of Facts, Mr. Pruden and Mr.

Germosa, who was 41 years of age at the time of his death, were previously unknown to each other. [ 8 ] On the night of August 16, 2021, the deceased and Mr. Pruden came into contact with each other at the Mount Royal Hotel Beer Vendor, located at 186 Higgins Avenue, Winnipeg, Manitoba. [ 9 ] Video surveillance inside the beer vendor recorded initial interactions between Mr. Pruden, the victim, and two other individuals inside the vendor commencing around 10:51 p.m.

The interaction was very brief, and despite being unable to understand all of what was said, I would describe the tone of the interactions as light banter. [ 10 ] The victim left the vendor first, and Mr. Pruden, who had purchased alcohol, left almost immediately after. In the moments after the victim stepped outside, and before Mr. Pruden followed him, Mr. Pruden is agreed to have said to the men inside the vendor, “Hey you want me to beat him up? I’ll beat him up for you. I’ll [inaudible], you want me to fuck him up? That guy, the black guy. You want me to beat him?” [ 11 ] Then Mr.

Pruden, who was using an aluminum crutch at the time, followed Mr. Germosa outside. It was agreed that Mr. Pruden then walked up behind Mr. Germosa and struck him on the back of the head near his ear with the crutch. As a result, the victim fell to the ground. The offender then left the scene. [ 12 ] The assault outside was not caught on video, however, the two individuals who had been inside the vendor had followed Mr. Pruden outside and saw what happened and identified Mr. Pruden. [ 13 ] Video surveillance from 180 Henry Street shows Mr.

Pruden leaving his room with an aluminum crutch shortly before the assault, and returning to his room after the assault, still in possession of a crutch which appears to be damaged upon return. Mr. Pruden was arrested that night. An aluminum crutch which was bent in a manner consistent with the assault was found in his room. [ 14 ] Following the assault, police attended and found the victim unconscious and in medical distress. [ 15 ] He was rushed to hospital where a CT scan revealed extensive fracturing to the base of his skull and an intracranial hemorrhage. Mr. Germosa died the following day.

An autopsy identified a constellation of head injuries consistent with a fall onto the back of his head as the cause of death. [ 16 ] With respect to this offence, the consequences are certainly significant. As stated earlier, the outcome was the most severe outcome known to the criminal justice system. However, on sentencing the focus is on the degree of moral culpability of the offender for his actions.

In this case, when looking at the offence itself, and the actions of this offender, I do not agree with the submissions of the Crown that the gravity of this offence is at the most serious end of the scale. [ 17 ] The Crown urged me to find that the actions of Mr. Pruden were premeditated given his comments made just prior, and that given his apparent sobriety, they were fully intentional. The Crown does not, of course, assert that Mr.

Pruden intended to kill the victim, given the acceptance of a guilty plea to manslaughter, but argued that his intentional, random and unprovoked use of violence warrants a sentence at the top end of the scale for manslaughter. [ 18 ] The defence argued that the actions of Mr. Pruden in this case are nowhere near the top end of the scale. The defence disputed the characterization that the attack was planned or premeditated.

They argued that the accused impulsively, in response to something that was said inside the vendor, offered to teach the victim a lesson, and immediately thereafter struck him one time. [ 19 ] The defence also argued that the characterization of the crutch as a weapon, in the sense that Mr. Pruden was carrying it for a dangerous purpose is not a proven, or agreed upon, fact. They argued that Mr. Pruden was using a crutch to walk at the time. They argued that this was a spontaneous and unplanned assault, with the unfortunate, but unexpected result that the victim hit his head and died.

The defence argued that this offence appropriately belongs at the lower end of the spectrum of manslaughter.

They argued that it cannot be compared to the brutal and relentless assaults that often result in death and asked the court to give significant weight to the fact that there was not a second blow, or any further contact with the victim once he fell to the ground. [ 20 ] In my view, having regard to the submissions of both counsel, and the case law filed with respect to this matter, on the spectrum of manslaughter, from near accident to near murder, this is not at either end of the spectrum, but rather somewhere in the middle. [ 21 ] As the Alberta Court of Appeal outlined in R. v.

LaBerge , 1995 ABCA 196 , at para. 9 , all manslaughters involve conduct that causes the death of another and involve fault short of the intention to kill.

However, in order to classify the degree of fault of a particular offender for sentencing purposes the court must assess what his mental state was at the time of the offence and what degree of harm was likely to result from his actions. [ 22 ] While I accept that in this case the offender could reasonably foresee that striking the victim in the head once with a crutch would likely cause serious bodily harm, I do not find that he could reasonably foresee that one blow to the head would likely result in the victim’s death.

It is for that reason that I find that this offence is not at the most serious end of the spectrum of manslaughters. The Crown bears the onus of establishing aggravating factors such as the intention of the accused and in this case the evidence only supports a finding that Mr. Pruden intended to assault Mr. Germosa and did so almost immediately after forming the intention to do so.

THE CIRCUMSTANCES OF THE OFFENDER [ 23 ] With respect to the circumstances of the offender, the court must consider whether there are any circumstances that increase or reduce the moral culpability of the particular individual before the court. [ 24 ] In this case, Mr. Pruden is a 38 year-old Indigenous man from Winnipeg. His extended family has roots in Little Black River First Nation. Mr. Pruden was raised by his parents who both suffered from substance abuse issues. His mother died from alcoholism at the age of 40.

He and his step-mother reported that he was subjected to both abuse and neglect during his childhood when his parents were drinking. By the age of 10 he had consumed marijuana, by the age of 13 he was drinking alcohol and by the age of 18 he was addicted to methamphetamine. [ 25 ] He first became involved with the judicial system as a teenager. As a youth he was convicted and sentenced for a number of offences including assault, robbery, possession of a weapon and manslaughter. [ 26 ] As part of the sentencing hearing on this matter the court was provided with a transcript from the sentencing of Mr.

Pruden for manslaughter at the age of 15. The events had occurred when Mr. Pruden was 14 years of age. At that time, he brutally and repeatedly struck his disabled uncle, first with a piece of lumber, and then with a carjack. After the assault he placed his uncle on his bed where he was later found dead. The transcript tragically describes a scenario where the victim in this case, who resided with Mr. Pruden’s family, had previously been assaulted within the household. There were allegations that his father had been involved in the abuse and on the day of the assault that led to his uncle’s death, Mr.

Pruden’s mother had witnessed the assault and instructed him not to hit his head only his legs. It is clear from this evidence that by the time he was a teenager Mr.

Pruden had been immersed in violence and dysfunction. [ 27 ] He was convicted of manslaughter in 1999 with respect to the above offence and received the maximum sentence as a youth of three years closed custody and probation. [ 28 ] His offending behavior continued into adulthood resulting in a serious criminal record for property related offences, assaulting a police officer, possession of weapons, sexual assault of a 13 year old, and assault with a weapon.

He also has approximately eight failures to comply with various court orders on his record. [ 29 ] He has also been charged with various institutional offences including for the manufacture and use of alcohol as recently as 2021. He appears to have no institutional offences for violence. [ 30 ] Mr. Pruden did not complete school past grade 8 and he has been employed only minimally, never full time, and never for a full year at a time. [ 31 ] He has been inadequately housed, living in a shelter for several years prior to this offence.

He has spent a significant amount of his life incarcerated or on probation. [ 32 ] He is open that his peer group is other people who hang out together and use drugs and consume alcohol on a daily basis. [ 33 ] Mr. Pruden has not maintained relationships with his family. Although this may be understandable given the circumstances of his upbringing as described above. His parents are both now deceased and he has siblings who he is not in contact with. He has also not maintained a relationship with his step-mother. He reportedly has one child that he is not in contact with. Mr.

Pruden’s supports and positive contacts in the community are very limited. [ 34 ] He reports that he does not have a significant connection to his Indigenous culture or his family’s community of Little Black River First Nation. He reports that his maternal grandmother attended residential school. [ 35 ] The information before the court suggests that this offender has had a very hard life and a tragic upbringing.

He was abused and neglected as a child and has been completely disconnected from his family, community and culture since he was a teenager. [ 36 ] Despite his acknowledged daily drug and alcohol use and his addictions issues Mr. Pruden has never attended a treatment program.

He has also never had counselling for what seems to be significant childhood trauma. [ 37 ] His counsel pointed out that given his background and the reality of his life, much of which was spent on the streets trying to survive, that it was not surprising that he has trust issues and does not think that counselling and programming will assist him. [ 38 ] He was described by his step-mother as always having kept his emotions deep inside.

This, his counsel pointed out was not surprising given his experiences as a child and as an adult. [ 39 ] With respect to the more systemic circumstances of this offender, he was raised as a child in a family which has experienced violence, poverty, and substance abuse. At least one member of his immediate family was a survivor of the residential school program which separated and damaged many families. [ 40 ] There are, in this case, obvious effects of colonialism that have impacted Mr. Pruden through his family history.

In my view, his personal, family and community history identify many Gladue factors which help to explain and, to some degree, mitigate his culpability. I will consider what weight to attribute to these factors in the

section on mitigating factors below. AGGRAVATING FACTORS [ 41 ] I find the following to be aggravating factors in this case: • the attack on the victim was random and seemingly unprovoked;

• the victim was defenseless in the sense that the attack occurred from behind; • the attack involved the use of the weapon, although I accept that there is no evidence that he was carrying a crutch solely for the purpose of using it as a weapon; • he did not take any steps to ensure that the victim was okay or received attention; and • the offender’s record of violence shows a pattern of disregard for others and the failure to learn from his past offending behavior, or the consequences imposed by the criminal justice system. [ 42 ] I decline to find the offender’s sobriety to be an aggravating factor as suggested by the Crown.

While intoxication may at times be mitigating, aggravating or neutral, being sober in my view is not aggravating. The accused is sentenced on the basis that he is presumed to be responsible for intending the action that he has pled guilty to. MITIGATING FACTORS [ 43 ] I find that there are mitigating factors with respect to the circumstances of the offence of manslaughter in this case. Although the offence resulted in the death of the victim, the conduct of the offender was limited to one blow.

I have also found that the offender’s mental state was one that anticipated harm to the victim, but not the likelihood of death. [ 44 ] The mitigating factors with respect to the circumstances of the offender are that he has pled guilty which has saved court resources and, more importantly, spared witnesses from having to testify at trial. Although the accused initially contested the charges, he was originally charged with the more serious offence of second-degree murder. Mr. Pruden pled guilty shortly after his preliminary inquiry.

It is in my view an important consideration on sentencing that there be an incentive to take responsibility for one’s conduct by pleading guilty at any stage in the proceedings. Of course the earlier the better. [ 45 ] Mr. Pruden has also expressed remorse for his actions. I do not find anything in his comments to the probation officer that satisfy me that he does not feel bad about what happened to Mr. Germosa. He also offered his apology to the court saying that he did not intend for anyone to get hurt. [ 46 ] As stated by the Supreme Court in R. v.

Ipeelee , 2012 SCC 13 , (at para. 73 ), consideration of factors which we term Gladue factors (as set out in R. v. Gladue, 1999 SCC 679) may speak to the culpability of an Indigenous offender if they reveal something about his moral blameworthiness. [ 47 ] With respect to Mr.

Pruden’s Gladue factors, I take judicial notice of the fact that he, and his extended family, have suffered many of the adverse effects of colonialism and residential schools. [ 48 ] The Gladue factors in this case, as a whole, are significant and as I said earlier, help to explain his conduct and lessen his moral culpability to some degree. [ 49 ] However, these factors must be balanced with other considerations such as this offender’s history of involvement with the criminal justice system and his pattern of violent behavior that threaten the life and safety of others.

Whatever the cause of his violent behavior, and whether it is planned or impulsive, the reality in this case is that Mr. Pruden poses a danger and that must be addressed by the sentence. [ 50 ] Therefore, in this case I find that the Gladue factors in this case do not serve to significantly reduce or change the sentence that is appropriate. FIT AND APPROPRIATE SENTENCE [ 51 ] With respect to manslaughter, the range of circumstances can vary from a near accident, to a murder reduced to manslaughter as a result of provocation, or intoxication. The circumstances of individual offenders can also vary greatly.

Therefore, determining the appropriate sentence is a very case-specific exercise. [ 52 ] In this case, the defence suggested that the appropriate sentence is 10 years. [ 53 ] The Crown, on the other hand, argued that the appropriate sentence is life in prison. [ 54 ] In some cases a life sentence, as permitted by the Code , is determined to be appropriate for manslaughter (see R. v. Piche , 2006 ABCA 220 , and R. v.

Williams , 2022 MBQB 125 ). [ 55 ] The Crown argued that a life sentence is appropriate here because of the aggravating factors I have outlined above, and in particular, the unprovoked nature of the assault involving a weapon and a strike to the victims head from behind.

They also argued that the criminal record of this offender for violence, including a prior manslaughter, the horrific circumstances of which were presented in court, require that the only sentence sufficient to protect the public is life in prison. [ 56 ] They argued that the cases relied upon by the defence, which reflect lower sentences for manslaughter, are not binding on this court and are factually different, and that the only way to keep the public safe from this particular offender is a sentence of life in prison. [ 57 ] The defence argued that the primary difference between this case and cases where a life sentence has been found to be appropriate is generally the magnitude and brutality of the offence itself.

The cases relied upon by the Crown, they argued, involved violent and prolonged attacks. They also argued that the circumstances of the offender, such as being on parole for manslaughter at the time of the second offence ( Williams ), or a having a more serious criminal record for violence ( Piche ), distinguish these cases.

[ 58 ] The defence relied on a number of cases where they argued that the facts were more serious than the case at bar, and where the sentences ranged from nine to 16 years.

They also pointed to the case of R v Parisian , 2018 MBCA 16 , filed by the Crown, where they argued that the offence was again far more serious than the case at bar and the sentence was 11 years. [ 59 ] With respect to these arguments while both the Piche and the Williams cases bear some similarities to the present case with respect to the offenders having serious records for violent crimes, including a prior manslaughter conviction, I agree with the defence that there are important differences with respect to the circumstances of the offence and the offender in those cases. [ 60 ] In the Williams case the offender had a history of violence and offending behaviour, and, at the time of the manslaughter for which he was being sentenced, he was on parole and had not yet finished serving a sentence for a prior conviction for manslaughter.

He had also been consuming drugs and alcohol at that time in contravention of his release conditions knowing that his substance abuse often led to violence. [ 61 ] With respect to the offence itself in Williams , it was a very violent and relentless pursuit and stabbing of a random victim. Two other innocent bystanders were also assaulted during the course of the offence. The offender was acquitted of second degree murder after trial only because of expert evidence that he was in a drug induced psychotic state at the time and incapable of forming the requisite intent for murder.

The offence in that case was at the highest end of the manslaughter scale. He was also found by the court, relying upon the Pre-Sentence Report of the probation officer, to lack any genuine remorse. [ 62 ] In Piche the offence was also more prolonged and brutal, being described by the sentencing judge as “savage”, and being conceded by the defence to be “… in the most serious class of unlawful act manslaughter”.

The accused in that case was originally convicted of second degree murder by a jury, however, a conviction for manslaughter was substituted on appeal because of a concern about the instruction given to the jury on intent. The offender in that case also had a somewhat more serious criminal record including a manslaughter conviction and an accessory after the fact to another murder. [ 63 ] I see the facts and circumstances of the offence currently before the court as being very different from these cases. In this case, the Crown has accepted that there was insufficient evidence to establish that Mr.

Pruden intended to kill Mr. Germosa. And here, while Mr. Pruden is certainly guilty of an unprovoked attack on the victim, while the victim was unable to defend himself, both of which are aggravating factors, the offence itself was one blow to the victim. The medical cause of death was trauma to the victim’s head resulting from his fall to the ground, not the blow itself.

The circumstances here are somewhere between a one punch manslaughter, and an assault so brutal, that but for extreme intoxication or provocation, the conviction would be for murder, and an automatic life sentence would follow. [ 64 ] Even with the added aggravating factor that the blow was to the victim’s head with a metal object, it does not, in my view, fall near the top end of the scale. [ 65 ] Turning then to the cases submitted by the defence, each of those cases involved an offence that was more prolonged or involved a repeat attack on the victim.

In the case of R v Profeit , 2020 ABQB 138 , the Crown sought a life sentence because the assault causing the death was domestic in nature. Also, in all of the cases the offender would, or should, have been aware that the assault was likely to cause very significant harm or even death. [ 66 ] In R. v. Loon , 2020 ONSC 619 , the attack was violent and prolonged and involved a beating with a skateboard and a stabbing. The fatal blow was struck when the victim was unconscious. The offender in that case had 26 violent convictions, including manslaughter. The sentence in that case was 16 years.

That is the high end of the cases submitted by the defence. [ 67 ] In other cases filed, the range was nine to 12 years including in cases cited by those courts in their analysis, and including cases where there was a prior record for violence, including manslaughter. The defence submits that given the more serious nature of the offence itself in the filed cases, Mr. Pruden should be sentenced at the lower end of this range and should receive 10 years. [ 68 ] The defence has also argued that I am not to automatically sentence Mr.

Pruden more harshly because of his record, and in particular, the fact that he has a previous conviction for manslaughter. Relying upon R. v. Wright , 2010 MBCA 80 , they argued that he has already served what was deemed to be the appropriate sentence for that offence and for all of the convictions on his record and that there is no principle in law for an automatic step-up in sentences for subsequent offences. [ 69 ] I accept the premise that I am to sentence this offender for this offence only and the magnitude of the offence is not to be judged more harshly because it is the second such offence.

However, it is also impossible to consider the circumstances of this offender without considering his prior record and experiences within the judicial system in assessing his risk to the public and his moral culpability. His record is relevant to address specific deterrence, protection of society and his prospects for rehabilitation ( Wright ). [ 70 ] In this case Mr. Pruden’s prior conviction for manslaughter dated back 23 years to 1999.

The offence, as reprehensible as it was, occurred when he was only 14 years of age and clearly being influenced by a very dysfunctional family environment. [ 71 ] His circumstances are not the same, in my view, as someone having committed the same crime more recently as an adult. Having said that, Mr. Pruden’s record demonstrates a pattern, starting from a very young age, and now well into adulthood, that suggests that he is capable of serious violence.

From his own description of his lifestyle, sometimes he is the victim of violence, and sometimes he is the perpetrator, but violence is a regular part of his life. And nothing I have seen to date suggests that Mr.

Pruden is likely in the foreseeable future to change that reality. [ 72 ] The paramount objectives of the court in determining an appropriate sentence where there has been a violent offence is to impose a sentence that meets the objectives of denunciation and deterrence, both specific and general. [ 73 ] The court must also consider factors such as separation of the offender, rehabilitation, Gladue factors, and reparations to victims and the community.

[ 74 ] While in some cases the only way to ensure protection of the public may be separation of the offender from society, the sentence still has to be appropriate. The court cannot just impose the longest sentence available because it would potentially protect the public to keep the offender in custody. It still must be proportionate to the offence committed and the moral culpability of the offender. It must also be consistent with other sentences in similar circumstances. [ 75 ] The defence argued that in this case the court should give considerable weight to the adverse circumstances Mr.

Pruden has experienced as result of his personal background and as an Indigenous person, and impose a more moderate sentence as a result. They argued that the Crown’s emphasis on Mr. Pruden’s lack of programming and addictions treatment are overstated, first because there is no allegation that substance use was a factor in this offence, and second because, through no fault of his own, it is unrealistic to expect Mr.

Pruden to easily and openly embrace treatment to overcome a lifetime of trauma and disadvantage. [ 76 ] While I accept those submissions, the concern remains that based upon the information in the Pre-Sentence Report there is not, at this point, a promising path forward for Mr. Pruden. Although the reasons can be understood, the reality remains that this offender has not availed himself of any programming options, now, or at any point in the past.

Notwithstanding that he acknowledges that his substance abuse has been a factor in his criminality, and that he is going to want to use drugs and alcohol when he is released, he is not considering treatment until possibly after he is released. He has no plans to seek help for his anger, no interest in trying to build community connections for support, and he has no plans to further his education. [ 77 ] His plan is to keep doing exactly what he has been doing, to remain living in a shelter and associating with friends that use drugs and alcohol on a daily basis.

All indications are that if nothing changes in his life, nothing will change in his lifestyle, which includes daily substance use and frequent violence. The community is at risk as a result.

Therefore, in this case, the circumstances of the offender are such that significant weight must be given to protection of the public through separation of the offender. [ 78 ] While his circumstances as an Indigenous offender, and his personal circumstances as an inadequately housed and unemployed person with addictions, trauma and very limited supports, serve to reduce his moral blameworthiness somewhat, he is also by all accounts capable of recognizing that his circumstances do not give him a license to randomly harm defenseless and innocent people.

The Gladue factors present here cannot serve in the circumstances to reduce the length of the appropriate sentence for Mr. Pruden. [ 79 ] And finally, while I hope for his sake and that of the community that Mr. Pruden will choose to work toward change, the prospects of rehabilitation at this time are just too remote to be given significant weight.

CONCLUSION [ 80 ] I have determined that the objectives of denunciation, deterrence and separation from society for the protection of the public are the paramount considerations in this sentencing. [ 81 ] In my view the sentence of slightly higher than the 10 years suggested by the defence is required to meet those objectives given the history of this offender with the criminal justice system and where he is currently with respect to recognizing the danger he poses.

However, as I have already stated, the circumstances of the offence also do not warrant the harshest sentence available, or even the top end of the range for similar crimes. [ 82 ] I therefore find in all of the circumstances that a sentence of 12 years is appropriate for this offence and this offender. [ 83 ] Norman Richard Pruden is hereby sentenced to 12 years in prison.

The sentence will be reduced by his time in custody to date of 485 days at a rate of 1.5 times for a total reduction of 728 days. [ 84 ] There will also be an order for a mandatory lifetime weapons prohibition pursuant to s. 109, and provision of a DNA sample pursuant to s. 487.051(1) of the Code . ___ __ J.