Law360 Canada (May 13, 2026, 11:10 AM EDT) --

John L. Hill

Bernie Herman, a married man and a 30-year RCMP officer, was charged with the first-degree murder of Braden Herman, his intimate same-sex partner.

The two men were unrelated, even though they had the same surname. After a judge-alone trial, the trial judge acquitted him of first-degree murder and rejected his claim of self-defence but found that he had acted under provocation. As a result, the offence was reduced from second-degree murder to manslaughter. He received an 11-year sentence, which was later appealed by both sides.

The relationship between the two men was volatile and abusive. Although unrelated, Braden had lived with Bernie and Bernie’s wife after arriving from the same northern Saskatchewan community. Their relationship later deteriorated into repeated jealousy, threats, violence and assaults. Evidence showed Braden had previously attacked both Bernie and his wife, sometimes with objects, and had continued to threaten and manipulate Bernie after moving out.

On May 11, 2021, after a day of emotional text exchanges with his wife and attempts to contact Braden, Bernie picked Braden up while still in an RCMP uniform and carrying his service pistol, baton and pepper spray. After stopping for food and coffee, the two drove to a remote wooded area. Braden removed his clothes, and shortly afterward Bernie shot him with his service pistol and drove away, running over him in the process. Bernie later texted his wife that Braden had “gone too far” and told a police sergeant he had shot him.

At trial, Bernie claimed self-defence, saying Braden bent down as though reaching for something that could be used as a weapon. The judge rejected this defence. The judge found Bernie was not credible when he claimed he feared for his safety, had no memory of firing the gun or was impaired by PTSD. The judge emphasized that Bernie never told others immediately afterward that he had acted out of fear or self-protection. The judge also concluded Bernie had alternatives available, including retreating to his truck or using non-lethal police equipment instead of deadly force.

However, the judge accepted that the history of abuse and the circumstances at the scene could support the partial defence of provocation. The judge found there was some evidence Braden may have been threatening another assault and that the abusive relationship, humiliation, emotional pressure and fear of exposure could have caused an ordinary person to lose self-control. The judge concluded the Crown had not disproven provocation beyond a reasonable doubt, reducing the offence to manslaughter.

Both sides appealed. The Crown argued the defence of provocation should never have been considered because there was no “air of reality” to it. The Crown said the evidence of any immediate assault or weapon was speculative, especially since Braden was naked, unarmed and some distance away when shot. The Crown also argued Bernie, as a veteran police officer trained to handle violence, would not reasonably lose self-control in those circumstances.

Bernie appealed as well, arguing the judge wrongly rejected self-defence, improperly relied on post-offence conduct, misunderstood evidence and failed to properly consider the abusive dynamics of the relationship and his Indigenous background. He also argued the verdict was unreasonable.

The Saskatchewan Court of Appeal released its decision on April 30, 2026 (R. v. Herman, 2026 SKCA 57). The judgment is lengthy (205 paragraphs), containing an abundance of descriptors and dialogue that could make it read like a true-crime novella.

The Court of Appeal dismissed both the Crown’s appeal and Bernie Herman’s appeal against conviction. It held that the trial judge had made no error in rejecting self-defence and had properly found sufficient evidence to leave provocation available as a defence. The court therefore upheld Herman’s manslaughter conviction and dismissed the Crown’s attempt to substitute a conviction for second-degree murder.

However, the Court of Appeal reduced Herman’s sentence from 11 years to seven years, two months and nine days, while leaving the ancillary orders in place. The court found that the sentencing judge had failed to give sufficient weight to the impact of Herman’s Indigeneity and the abusive relationship on his moral culpability.

The appeal judges described the interplay between Gladue factors and moral culpability as a “rigorous and complex” process (R. v. Gladue, [1999] 1 S.C.R. 688). Herman’s Gladue report concluded that he “carries multiple forms of trauma” stemming from his attendance at what was then called an “Indian Day School,” as well as from childhood sexual abuse and exposure to domestic violence.

Although the trial judge acknowledged those findings, he concluded they did not significantly shape Herman’s personal circumstances or contribute to the offence. The Court of Appeal disagreed, finding that the sentence failed to properly weigh the mitigating factors identified in the presentence and Gladue reports. These included Herman’s lack of a prior criminal record, his low risk of reoffending, absence of addictions, pro-social lifestyle and support network, and strong religious beliefs grounded in a strict moral code. It also credited him for his personal service as a policeman.

Citing case law from the Supreme Court of Canada (R. v. Lavallee, [1990] 1 S.C.R. 852), the Appeal Court (R. v. Naslund, 2022 ABCA 6) said it is an error to suggest causal links must be drawn between “background factors” and the “commission of the current offence” to have them properly considered in sentencing. Although s. 718.2(a)(ii) deems intimate partner violence an aggravating factor, it does not mean that a dysfunctional relationship overtakes all mitigating factors of a crime.

The Appeal Court also found the trial judge didn’t consider how Bernie Herman’s past experiences with domestic violence might affect how he decided to end his relationship with the victim. It also decided that more weight should have been given to Herman having no previous criminal record and being a low risk to reoffend.

While the court shortened Herman’s sentence, it upheld his manslaughter conviction and dismissed an appeal from the Crown, which challenged the fact that Herman was found not guilty of second-degree murder.

In upholding Bernie Herman’s conviction, the appeal judges said the trial judge was correct in rejecting his claim of self-defence. They determined the trial judge was correct in finding that the victim may have provoked Herman during the fatal altercation and, therefore, lacked the intent necessary for a murder conviction.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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