Bernie Herman, left, and Braden Herman, right, pose in a photo provided by Braden Herman’s family. Bernie Herman, a former Saskatchewan RCMP officer, was convicted of killing Braden while wearing his uniform.
The Saskatchewan Court of Appeal has dismissed both Crown and defence appeals challenging the conviction of former RCMP officer Bernie Herman for the manslaughter death of Braden Herman, but reduced his sentence from 11 years to eight years.
In a comprehensive 74-page ruling released Thursday, a three-judge panel upheld the trial judge’s finding that Herman, 55, was provoked into shooting the 29-year-old victim in a wooded area outside Prince Albert on May 11, 2021. However, the appeals court found the trial judge had erred in his application of Gladue principles and improperly treated Herman’s continuation of the abusive relationship as an aggravating factor.
The killing
At the time of the shooting, Herman was a serving RCMP officer in full uniform, armed with his service pistol, baton, and pepper spray. He had picked up Braden Herman — no relation — after work, bought him coffee at Tim Hortons, and the pair engaged in oral sex while waiting in a Dairy Queen drive-through lane.
They then drove to a remote wooded area. According to evidence accepted at trial, the victim removed all his clothing. Herman remained dressed. Minutes later, Herman shot the victim with his service pistol as the victim bent down to pick up something from the forest floor, then drove off, inadvertently running over the body.
Herman immediately texted his wife: “I just shot and killed him.” He then called his supervising officer, saying he had “done something really bad.”
Trial decision
At trial in January 2024, Court of King’s Bench Justice Richard Danyliuk acquitted Herman of first-degree murder and rejected his claim of self-defence, finding he did not genuinely believe he was under threat. However, the judge accepted the partial defence of provocation, reducing what would otherwise have been second-degree murder to manslaughter.
The judge found the victim’s conduct — bending down to pick up what could have been a weapon in the context of a long and volatile abusive relationship — constituted provocation under the Criminal Code. Herman was sentenced to 11 years in prison.
Appeal rulings
The Crown appealed the acquittal on second-degree murder, arguing the provocation defence had “no air of reality” and should never have been considered. Herman appealed his manslaughter conviction, arguing the trial judge had reversed the burden of proof and misapprehended evidence about the abusive relationship.
Justice Georgina Jackson, writing for a unanimous appeal court, rejected both appeals.
“The judge did not err in any of the ways alleged by the Crown or Mr. Herman,” Jackson wrote. “A properly instructed jury could find that the victim’s act of provocation and Mr. Herman’s response were equally sudden.”
The court found the trial judge was entitled to disbelieve Herman’s self-defence claim while still harbouring a reasonable doubt about whether the Crown had disproven provocation — noting the two defences rest on different legal foundations.
“Self-defence requires a subjective belief that force is being used against you,” said Jackson. “Provocation focuses on whether the accused acted suddenly in response to provocation before their passion had cooled.”
Sentence reduced
However, the appeal court unanimously agreed the 11-year sentence was excessive and disclosed two errors in principle.
Justice Jackson found the trial judge had improperly applied Gladue principles — which require sentencing courts to consider the unique systemic and background factors affecting Indigenous offenders. Herman is a member of the Clearwater River Dene Nation, attended day school where he was physically and sexually abused, witnessed domestic violence as a child, lost his father at age seven, and experienced racism throughout his RCMP career.
“The trial judge appeared to be searching for a causal link between Mr. Herman’s Gladue factors and the crime he committed,” Jackson wrote. “It is an error to suggest an offender must establish a causal link before being entitled to have those matters considered.”
Even more significantly, the appeal court found the trial judge wrongly treated Herman’s continuation of the abusive sexual relationship as an aggravating factor that overwhelmed all mitigating considerations.
The trial judge had written that Herman was “in a trap of his own making” and that his “self-interest” in maintaining the relationship “led to creating the environment for further violence.”
Justice Jackson rejected this reasoning: “It is difficult to see how staying in a coercive sexual relationship with an abusive partner can be an aggravating factor that would overwhelm all mitigating factors.”
The court noted the victim “had always been the aggressor” with “a history of abusing Mr. Herman both mentally through such actions as threatening blackmail and physically by way of assaults.”
A fit sentence
Balancing the aggravating factors — killing with a service firearm while in uniform, the victim’s vulnerability, the profound loss to his family — against significant mitigating factors including no criminal record, sincere remorse, full cooperation, low risk of reoffending, and Herman’s Gladue circumstances, the court imposed an eight-year sentence.
With credit of 295 days for pre-sentence custody, Herman’s remaining sentence is seven years, two months and nine days.
“Killing someone with a firearm is, in itself, an aggravating circumstance,” Jackson acknowledged. “But this was not a premeditated crime. The trial judge held that Mr. Herman was provoked. This is a significant feature that serves to set this case apart.”
