Supreme Court

R. v. Bruha, 2003 NWTSC 41
Date: 20030731
Docket: S-1-CR-2002000062

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


PAVEL BRUHA


Transcript of the Oral Reasons for Sentence by The Honourable Justice J. Z. Vertes, sitting in Hay River, in the Northwest Territories, on the 3rd day of July, A.D., 2003.


APPEARANCES:


Ms. L. Colton:   Counsel for the Crown

Mr. H. Latimer:   Counsel for the Defence/

Mr. S. Shabala:   Counsel for the Defence


THE COURT:   Pavel Paul Bruha has been convicted of manslaughter following a two-week jury trial. Specifically he was convicted of the unlawful killing of Yves Lebel, in Hay River, on January 16, 2002.

I am satisfied that the facts upon which the jury based its verdict were the following.

The offender Bruha, along with a fellow by the name of Craig Stromberg, were drinking. They were talking about rumours that Bruha's wife was having an affair with Lebel. The two of them decided to go to Lebel's residence to “teach him a lesson”. Stromberg kicked the door of Lebel's apartment open and the two of them went inside. Bruha struck Lebel by slapping him on the side of the face. Stromberg struck Lebel on the side of his head. Stromberg then tossed Lebel on to his bed from where Lebel rolled over on to the floor. Stromberg and Bruha picked up Lebel and put him back on the bed. Lebel appeared to Stromberg to be knocked out. Before they left, Bruha kicked at Lebel's foot as he lay on the bed. They then returned to Stromberg's home to continue their drinking.

It should be noted that Stromberg at least demonstrated some concern over Lebel's condition. Approximately 30 minutes after the assault he telephoned the RCMP, identifying himself by Lebel's nickname, gave Lebel's phone number, and asked that a

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police officer call that number back. An officer did call that number back and spoke to someone, quite likely Lebel, who said they did not need help.

The fact that Lebel was still alive and in fact was awake and doing things after the assault is not surprising. The medical examiner testified that the cause of death was a subdural hematoma that was likely caused several hours prior to the actual time of death. Lebel's body was not discovered until the day after the assault. The expert opinion was that an unprotected fall to the floor could convey sufficient force to Lebel's head so as to cause the subdural bleeding. There was some evidence that Lebel may have been more susceptible to this type of injury than the average person because he was an alcoholic and because he had suffered a similar injury sometime in the past. This, of course, makes no legal difference since the offender must take his victim the way he finds him.

The offender testified at his trial and denied any involvement in the assault on Lebel. Obviously this denial did not raise a doubt with the jury.

Stromberg testified at this trial. He pleaded guilty to manslaughter on July 4, 2002, and was sentenced to four years imprisonment.

The Crown's theory was that this was a joint endeavour and that Stromberg and Bruha were joint principal offenders and were jointly responsible for

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the assault on Lebel, which was the cause of Lebel's death. There is also the possibility, based on a question posed by the jury during its deliberations, that they regarded Bruha as aiding and abetting Stromberg. Either way, the offender is, in law, equally guilty of this crime.

The determination of an appropriate sentence in a manslaughter case is highly case-specific. The Criminal Code sets out a potential maximum penalty of life imprisonment but there is no prescribed minimum penalty. Thus there is a broad discretion to exercise. That is because the circumstances of the offence and the offender may vary so greatly. A wide spectrum of morally blameworthy behavior can fall under the category of unlawful act manslaughter. This was a point made by the Alberta Court of Appeal in R. v. Laberge (1995), 165 A.R. 375, at para. 6:

All unlawful act manslaughter cases have two common requirements: Conduct which has caused the death of another; and fault short of intention to kill. However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other... Different degrees of moral culpability attach to each along a continuum within that spectrum. It is precisely because a sentence for manslaughter can range from a suspended sentence up to life imprisonment that the court must determine for

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sentencing purposes what rung on the moral culpability ladder the offender reached when he committed the prohibited act. The purpose of this exercise is to ensure that the sentence imposed fits the degree of moral fault of the offender for the harm done.

This extract from Laberge was approved by a majority of the Supreme Court of Canada, in R. v. Stone (1999), 134 C.C.C. (3d) 353, who noted that the broad sentencing range for manslaughter accords with the principle that punishment must be proportionate to the moral culpability or blameworthiness of the offender.

In this case there are a number of notable features that elevate the gravity of the offence.

First, as I noted when I sentenced Stromberg last year, the offenders acted in concert to beat up the victim. No doubt that they did things, because they were together, that each of them may not have done if they were alone.

Second, it was a somewhat premeditated plan (no matter that it was conceived hastily and under the influence of alcohol).

Third, the fact that they forced their way into Lebel's apartment is an aggravating feature.

Now, having said that, I have to recognize that there are also various factors, peculiar to this offender, that act to mitigate the punishment.

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The offender is 52 years of age. He was born in Czechoslovakia but came to Hay River over 20 years ago. He is a Canadian citizen. He is married and has two grown daughters, one young adopted son, and two grand-children. I heard, at this sentencing hearing, from his eldest daughter and his brother-in--law. They described the offender as a loving and supportive parent, a conscientious and hard worker who overcame all sorts of difficulties in part due to a physical disability, and a person for whom violence is out of character.

The offender has a minor, and in my opinion an irrelevant, criminal record. He served approximately one month in pre-trial custody right after his arrest and has been on strict bail conditions for the past 17 months. I was not told of any psychological impairment affecting the offender and, while I have no doubt that his willingness to participate in the assault on Lebel was fuelled by alcohol, I was not told of any significant problem this offender may have concerning alcohol abuse.

Defence counsel has urged me to take an individualized approach to sentencing. This, of course, I must do. All sentencing decisions are a highly individualized exercise. But defence counsel also urged me to consider the separate level of responsibility for each offender in this case. I

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should look at the respective role played by Stromberg and by Bruha. According to defence counsel, it was Stromberg who “delivered the death blow by dropping the deceased on his head”. This, in my respectful opinion, is an overstatement and somewhat of a mis-statement. Stromberg said that he tossed Lebel on to the bed from where Lebel rolled on to the floor. It was a part of the overall assault, the overall assault jointly committed by these two people. Defence counsel also said that it was Stromberg who took the lead role and he played on Bruha's “vulnerability” by egging him on with stories about his wife's affair. Yet, the only evidence on this was that it was Bruha who pressed Stromberg for information and that it was Bruha who said “let's go”, meaning “let's go to Lebel's place”.

I have no doubt that Stromberg is a violent drunk but here, it seems to me, the two were clearly acting in unison. Furthermore, there was no evidence of any motive on the part of Stromberg to assault Lebel prior to his drunken discussion with Bruha. Indeed there was evidence that earlier the same day Stromberg, along with another person, was drinking with Lebel in Lebel's apartment. So it is extremely difficult to differentiate as between the moral culpability of the two of them in this crime.

Defence counsel suggested a sentence that

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combines some custody with a period of supervision on probation. This would of course limit any custodial sentence to less than two years. Such a disposition is not unheard of in manslaughter cases. Not even conditional sentences (as in R. v. Turcotte (2000), 144 C.C.C. (3d) 139) or suspended sentences (as in R. v. Sansregret (1983), 23 Man. R. (2d) 151) are precluded in manslaughter cases. They are extremely rare, of course, but they are not precluded. But, in this case, this offender, acting with another, set out to cause harm to Lebel. They set out to cause harm so as to “teach him a lesson”. This offender, at least on the evidence, did not particularly concern himself about the harm they did cause, notwithstanding the fact that they left Lebel unconscious. And the harm caused by their joint action in assaulting Lebel led to his death. So this is not one of those cases that is on the “near-accident” side of the manslaughter continuum. And, it is not one of those cases where anything but a significant period of incarceration is justified.

The real question in this case is, considering the fact that Stromberg received a sentence of four years, whether this offender should receive the same sentence. One of the principles of sentencing is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in

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similar circumstances.

Here the Crown is seeking a sentence of six years. So, is there justification for any disparity in sentencing? In my opinion there is and it comes down to one fact: Stromberg pleaded guilty.

In my opinion, a guilty plea must be worth something. Clayton Ruby, in his text Sentencing (5th ed.), says (at pg. 223) that it is a principle of sentencing that whenever possible a court should take into account, as a mitigating factor, the fact that the accused pleaded guilty. The extent to which it is a mitigating factor depends of course upon the facts of each case.

The rationale for the mitigating effect of a guilty plea is that it is an indicator of remorse (or at least of a willingness to be accountable for one's actions). In sentencing Stromberg I noted the fact that the guilty plea was entered at an early stage of the proceedings, without even having had a preliminary inquiry, and that I was convinced that Stromberg was truly remorseful for his part in this offence.

Now, in this case, there have been no expressions of remorse from this offender. That is not particularly surprising considering the position taken by him at the trial. And that lack of remorse is not to be used against him. It is not an aggravating factor. He had a right to a trial and to have his

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guilt or innocence determined by a jury. I do not hold that against him and I must not impose a harsher sentence because of that. But the reality is that he does not receive the mitigating effect of a plea of guilty as a sign of remorse.

Also, in my opinion, there are other good reasons to recognize a guilty plea as a mitigating factor. It saves the administration, and therefore the public, much time and expense. It alleviates the need for witnesses to disrupt their lives by attending court. So, I think that offenders who are guilty should be encouraged to plead guilty, and the most direct way to provide that encouragement is by showing that there is something to gain by it.

As I said previously, I cannot meaningfully differentiate between the moral culpability of the two offenders in this case. For these reasons, if I consider their roles to be equal and if I consider the mitigating effect that I extended to Stromberg because of his guilty plea, I am satisfied that there is justification here in imposing a sentence different from that imposed on Stromberg.

Considering all of the circumstances, I impose a sentence of imprisonment of five years. Considering as well the family circumstances of the offender, I will have the Warrant of Committal endorsed with my recommendation that he serve his term of imprisonment

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at the Yellowknife Correctional Centre or some other Northern facility.

In addition, since this is a primary designated offence, an order will issue authorizing the taking of a sample of bodily substance from the offender for the purpose of DNA analysis.

Also, an order will issue prohibiting the offender from having in his possession any firearm or other weapon or ammunition, as described in Section 109 of the Criminal Code, for a period beginning today and ending no earlier than 10 years from the date of his release from custody. If he has any firearms or ammunition in his possession now, they are to be turned over forthwith to the RCMP.

Finally, there will be no victim of crime fine surcharge in this case.

Mr. Bruha, the jury found you guilty based on all of the evidence. I have imposed a sentence of five years imprisonment. The reality is that you will likely be released, it could be as early as a year, or even less, from that sentence, released on some type of parole conditions. That is up to you and the correctional authorities. I have no control over that.

I have heard all of the good things said about you, and I have no doubt that they are true. I have no doubt that you are a loving and caring parent and

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that your family cares for you very much. It is now up to you as to what you do with the rest of your life. You may have a seat.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules

Joel Bowker
Court Reporter

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