R. v. Brake, 2012 NSSC 372

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Brake, 2012 NSSC 372 Date: 20120917 Docket: CR.Am. 398001 Registry: Amherst Between: Her Majesty the Queen v. Zachary Quinn Brake Judge: The Honourable Justice J. E. Scanlan Heard: 17 September 2012, in Amherst, Nova Scotia Written Decision: 23 October 2012 Counsel: Bruce Baxter, for the crown Robert Gregan, for the defence By the Court : [ 1 ] There is no more serious crime than murder. For the victim, there is no way out. It is final.

What this court has to do today is determine what an appropriate sentence is for Zachary Brake, taking into account the facts of the offence itself. Clearly this was a brutal murder. As noted by the Crown, Mr. Brake took a piece of marble from the kitchen, went in to his sleeping mother ’ s bed. The Crown indicates there were at least eight blows to the head, one would assume either with the pots or the marble. Indicative of the force of the blows is the extent of the injuries to the victim and the broken handles on a pot. One handle was partially broken off, the other was completely broken off. Clearly Mr.

Brake intended, as he stated to the police, to finish the job. He not only struck the victim with the marble, the pots, but there were at least three separate knives used to stab his mother repeatedly. It was clearly Mr. Brake ’ s intention to cause the death of his mother on the night in question. [ 2 ] This is a tragedy, as noted by defence counsel, which was 19 years, give or take, in the making. The agreed statement of

facts refers to his mother, now the victim, having a pregnancy that was marred and complicated by excessive alcohol and drug use. Mr.Brake was assessed, although he didn’t have all of the indicia of fetal alcohol syndrome, certainly he was noted as having fetal alcoholaffect. He was also diagnosed as having ADHD. [3] The 2002 report that was prepared, I understand it to have been the one prepared by Dr. Charles Emmrys, noted, as pointedout by the Crown, what turned out to be something of a prediction in terms of this offence.

He said, and I quote from page two of theagreed statement of facts, “Any crisis in attachment would lead to rather exaggerated symptoms”. In this case, I am satisfied that Mr.Brake, on the days preceding the incident, had thought that finally he was back with his mother, after all of these years of having beenabandoned. I should not say abandoned by his mother. I understand Mr. Brake was taken away from his mother at the age of threebecause of her ongoing problems with substance abuse. But finally, Mr.

Brake understood and agreed with his mother that he could livewith her and be with her, and that she could care for him. Why? Because it was reported to him that she had finally stopped abusingdrugs and alcohol. [4] Mr. Brake, on the night in question, discovered paraphernalia which would suggest to him that his mother did not defeat thosedemons, the crack pipe and the needles. As Dr. Emmrys predicted, this created a crisis with rather exaggerated symptoms, and I mustsay, that’s an understatement. [5] Zachary Brake discussed the dreams, the recurring dreams that he had.

He talked about waking up in dreams, in a darkbasement, several doors, no matter which one he took, he would always end up in the same room. That in fact is the story of Mr. Brake’slife. Every door that he opened, when he wanted to go back to be with his mother, he always ended up in that very same room, one inwhich his mother was still there and still addicted to alcohol and to drugs. [6] He was treated with some drugs to help him deal with his sleep difficulties; these terror dreams I suppose one could describethem.

On the days leading up to the murder, after he had reinitiated that contact, and in the presence of his mother, he was off of hismedications, consuming non-prescribed drugs. [7] I already referred to the circumstances or facts in relation to the murder itself, but I am concerned and will continue to beconcerned in relation to some of the comments that Mr. Brake made to the police officers following his report to the police station. Hedid walk to the police station after the incident and gave a full warned confession to two police officers.

It concerns the court because hesaid, for example, “It scares me that I don’t feel anything”. Even after having just murdered his mother, he doesn’t feel anything. Thereis no expression of remorse or regret. He was asked, “Do you feel bad about what happened...” He replied, “Not really”. [8] Then he refers to his favourite TV show, at page 77 of the transcript, Criminal Minds. He watched it the day before. Hesays, “...that’s one of my favourite shows that I watch almost every day...there was a kid who, when he kills people, he either enjoyed itor, it struck something for him...”.

And what’s of concern to this court is the last four words in that passage when Mr. Brake said, “hekept doing it”. [9] This individual shows no remorse, has no regret, talks of his favourite TV show, some kid who killed people. He either tookpleasure from it, in the sense that he enjoyed it, or it struck something in him, and he kept doing it. One would hope that that is not apredictor, in terms of what is to come for Mr. Brake, when or if he is released from prison. [10] Mr. Brake just turned 18 about a month before the offence. In fact, as defence counsel pointed out, exactly one month prior tothis incident.

A very youthful offender, committed a most heinous crime involving somebody who normally would expect there wouldbe a relationship of unconditional love. He killed his mother. [11] I have to be guided by the cases that go before and by the circumstances of the accused. It was noted in R. v. Hawkins 2011NSCA 7 , [2011] N.S.J. No. 33, that the range of sentencing for this type of offence is life in prison, with no eligibility forparole for 11 to 15 years. The agreement as between counsel in the joint recommendation is that I impose a period of 14 years, lesscredit for time served on remand up to today.

As I pointed out to counsel, I think it’s about 29 days short of a year that he’s been onremand. [12] I am satisfied the cases that have been referred to by counsel are indeed relevant and appropriate cases. They do set out therange. I take into account the guilty plea in this case, as well as the youthful age of the offender. But I take into account as well, as I

said, the lack of remorse, and what I hope are not prescient words when he refers to his favourite show, and the fact that the individual portrayed in that show just kept doing it. One would hope and expect that that would be part of the considerations when it comes to the issue of parole eligibility down the road. [ 13 ] I impose a period of 14 years less credit for time served, 13 years. As I noted earlier, there will be a

section 109 order for 25 years prohibition, and a DNA order which I will sign, requiring Mr. Brake to give a sample of his bodily fluids or substances. J.