R. v. Armbruster

Citation: R. v. Armbruster Date: 19990715 1999 BCCA 448 Docket: CA024449 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN:

REGINA

RESPONDENT AND:

JAMES ERNEST ARMBRUSTER

APPELLANT Before: The Honourable Madam Justice Ryan The Honourable Madam Justice Huddart The Honourable Mr. Justice Braidwood A.H. Zipp Counsel for the Appellant and Victoria Desroches W.F. Ehrcke, Q.C. Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia December 11, 1998 Place and Date of Judgment Vancouver, British Columbia July 15, 1999 Written Reasons by: The Honourable Madam Justice Ryan Concurred in by: The Honourable Madam Justice Huddart The Honourable Mr. Justice Braidwood Reasons for Judgment of the Honourable Madam Justice Ryan:

INTRODUCTION AND SUMMARY OF CONCLUSION [1] This is an application for leave to appeal sentence. The appellant, Mr. Armbruster, was sentenced on March 12, 1998 in Provincial Court to life imprisonment for one count of armed robbery and to a term of 10 years' imprisonment concurrent for one count of using a weapon in the commission of a sexual assault. The sentencing judge also imposed a lifetime firearms prohibition pursuant to s. 100 of the Criminal Code (the "Code"). [2] Section 344(b) of the Code provides a maximum penalty of life imprisonment for the offence of armed robbery. Section 272(2)(b) provides a maximum term of imprisonment of 14 years for the offence of using a weapon in the commission of a sexual assault. [3] For the reasons which follow I would grant leave and allow the appeal. I would reduce the life sentence to one of 20 years' imprisonment for the robbery and would apply the provisions of s. 743.6 to order that the appellant serve one- half of his sentence before he may be released on full parole. To reflect the seriousness of the sexual assault I would increase the sentence of 10 years imprisonment to 14 years to run concurrently with the sentence of 20 years imprisonment for the robbery. THE OFFENCES - FACTUAL BACKGROUND [4] The appellant was released from Mountain Institution on January 14, 1998 after serving over seven years in prison for nine armed

robberies. He was on a form of statutory release with a condition that he reside at Sumas Correctional Centre until April 12, 1998, the expiry date of his warrant of committal. [5] On January 19, 1998 the appellant decided to rob someone. He pilfered a fillet knife from the kitchen of the Sumas Centre. He left the Centre the next morning and made his way to a strip mall in Abbotsford. He decided that a vitamin store was the best target because the cash register was obscured by posters on the store windows and there was little customer traffic. After walking around the mall area for a while and observing the vitamin store from a nearby laundromat the appellant walked to the rear of the mall. Standing between some large dumpsters he disguised himself by stuffing his shoulder-length hair under a baseball cap and putting on some tattered clothes and gloves. He tucked the knife into his waistband and after walking around the mall a few times, entered the store. [6] When the appellant entered the store the clerk came forward to offer him assistance. After selecting some vitamins the two approached the cash register. As the clerk rang up the purchase the appellant pulled out the knife. He demanded money. The clerk refused. The appellant grabbed about $300 from the till. He told the clerk to take him to the back door. On the way out the appellant decided to rape the clerk. He told the

police that he did so because the clerk had looked at him with disgust and this had angered him. [7] The appellant forced the clerk to the floor, pulled off her underwear and attempted intercourse. This attempt failed because the appellant could not obtain an erection. He tried intercourse again by entering the clerk from behind while she was on her hands and knees. When this failed he demanded oral sex. He told the clerk that if she did not do it, he would cut her like she's never been cut before. The clerk complied but the appellant was unable to obtain an erection. He forced her to the floor again this time attempting cunnilingus and intercourse. The assault was interrupted when a customer entered the store. The appellant fled and was apprehended very soon thereafter by the police.

AGGRAVATING FACTORS [8] The most significant aggravating factor in this case is the appellant's enduring criminality. [9] At the time of sentencing for the offences which are the subject-matter of this appeal the appellant was 35 years old. He was first imprisoned in 1979 at the age of 16 for three counts of breaking and entering and three counts of false pretences. In the nineteen years that followed he lived outside the prison gates for a total of only three years. The record shows that almost, if not all of the offences the appellant committed after 1985 were committed while on mandatory supervision or parole. [10] Having served his first sentence of imprisonment, Mr. Armbruster was paroled in September 1979. He found employment working on road construction and stayed out of trouble for about a year. On January 13, 1981 he received a sentence of three months for breaking and entering and committing theft. [11] On June 3, 1981 Mr. Armbruster was sentenced to 18 months for two counts of mischief, two counts of breaking and entering, and 16 forgery-related offences. [12] Mr. Armbruster was paroled on December 18, 1981. Within three months he was convicted of possession of a weapon and sentenced to one year in prison. On June 18, 1982 he was convicted of attempting to escape custody and sentenced to one month consecutive. On August 6, 1982 his sentence of one year was reduced to

six months on appeal. [13] On October 5, 1983 he was convicted of one count of sexual assault and one count of assault causing bodily harm. He was sentenced to a total of three years' imprisonment. [14] He was released on mandatory supervision on November 18, 1985. On July 3, 1996 he was sentenced to six months' imprisonment for uttering threats and two weeks later recommitted as a mandatory supervision violator. [15] The record shows that on June 15, 1987 he was sentenced to 18 months for break and enter, theft, assault causing bodily harm, and possession of stolen property. Nineteen months later, in January 1989 he was convicted of 15 counts of break and enter and one count of attempted break and enter. He was sentenced to three years' imprisonment. [16] On January 25, 1991 he was released on mandatory supervision. Between February 11 and February 25, 1991 he committed nine armed robberies. On March 13, 1991, after a guilty plea, Mr. Armbruster received a series of nine-month consecutive sentences which totalled just over seven years' imprisonment. [17] Mr. Armbruster was released from Drumheller Institution on parole on December 8, 1995. His intention was to go to Prince George to work in a bush camp. He got as far as Edmonton. Within one day he had breached the terms of his parole by drinking with some individuals who eventually turned on him and assaulted him. Mr.

Armbruster contacted the authorities and he was recommitted. [18] On July 21, 1997 Mr. Armbruster was released on parole once again. He went to Prince George but a urinalysis tested positive for marijuana six days later and he was recommitted. [19] As I mentioned earlier Mr. Armbruster was released on January 14, 1998 from Mountain Institution. He committed the offences with which we are concerned five days later. [20] Prior to the case at bar the appellant had appeared for sentencing eleven times to deal with 64 Criminal Code offences. As counsel for the appellant pointed out, several of Mr. Armbruster's offences were property crimes committed as part of a spree. The fact that the offences are a part of a spree does not assist the appellant. The pattern shows that once released from prison the appellant indulges in crime until he is arrested again. It shows as well that the appellant's level of violence has escalated over the years. [21] The sentencing judge in this case heard the particulars of the prior sexual assault conviction in 1983. The judge was told that the appellant had been arrested for assault causing bodily harm. The assault was of his common-law wife. The appellant concluded that he would be going to prison for a lengthy period of time. He decided that he would get even with his 83-year-old grandmother who had treated him very badly over the years. He decided to

kill her, but in the course of it, changed his mind. He raped her instead. [22] The only inference that one can draw from the appellant's pattern of behaviour is that any change he has made has been for the worse. He has become a dangerous recidivist. This is borne out by the several psychological reports prepared while Mr. Armbruster has been in prison. [23] On August 9, 1993 a prison psychologist reported: To optimize clinical utility, the report [M.C.M.I. - II] highlights pathological characteristics and dynamics rather than strengths and positive attributes. This focus should be kept in mind by the reader. The M.C.M.I. - II must be viewed as only one facet of a comprehensive psychological assessment, and should be evaluated in conjunction with additional data, such as current life circumstances, observed behaviour, biographical history, and interview responses together with information from other sources. The profile obtained by Armbruster based on his test results, shows a high elevation for anti-social personality disorder. The elevation of avoidance personality, schizoid personality, and aggressive personality also shows significant elevations. Both drug and alcohol dependence are also significantly elevated. The computer printed narrative generated by Armbruster's responses indicate that he is a man suffering recurrent anxieties. A surface apathy and an overriding

sensitivity and occasionally angry resentment to those he sees as being either critical or disapproving of him. He is an individual who is frequently irritable and displays quite a bit of negativity. He feels himself to be misunderstood, unappreciated and to a certain degree demeaned by others, and because of this, ends up being characteristically pessimistic and disillusioned generally about life. He very clearly has low self esteem and a tendency not only toward introspection but also alienation particularly in how he views not only himself but others. Clearly Armbruster is a hypersensitive individual, somewhat depressively inclined, and he is an individual who constantly experiences undercurrents of both tension and anger. Testing clearly shows that Armbruster is an individual engaged in the abuse of drugs, and that his use of them not only helps him to deal with his level of tension and frustration, but also serves as a statement of resentful independence from the constraints of social convention. The same is true of his abuse of alcohol and almost certainly the pattern not only of abuse but the rationale for the abuse is exactly the same. [Emphasis added] [24] Under the title "PROGNOSTIC AND THERAPEUTIC IMPLICATIONS" the psychologist said: Because of this man's intense ambivalence between his desire for reassurance and his fear of trusting an unknown person, the

probability of sustained therapeutic relationships is highly unlikely. Indeed the high probability would be that either there would be total noncompliance or very strong resistance which would only serve to further force this man deeper into his shell. If however rapport could be established, the most helpful therapeutic approach would be of supportive psycho therapy leading to formal behaviour modification. The goal of therapy would be to guide this particular individual into recognizing the sources and character of his ambivalence, and to reinforce a more consistent approach to life and its challenges. And, under "Analysis of Psychological Testing" the psychologist said: The testing very clearly shows an individual who is ill equipped to deal with the challenges of every day life. He has very low self esteem, he is extremely resentful of those around him he sees as being successful, he fails to comprehend the pathway towards successful interaction and turns consistently to the abuse of either alcohol or drugs to deal with his sense of tension and frustration that arises out of the conflicts of every day life. All of these findings are further confounded by a low level of education and some impairment that appears to have developed over a period of years with its basis in his heavy substance and alcohol abuse. [25] In March 1994 another psychologist reported: Mr. ARMBRUSTER

was very easily engaged in discussion regarding this life, his situation, is release plans, his concerns about his Parole, and what he plans to do with his life. He certainly is someone who, in a therapeutic program, should do very well and this, of course, is part of his release plans. RELEASE PLANS: In that he is applying for both Day and Full Parole but recognizing that Day Parole is more realistic, he wishes to go for treatment at the David Lander Center, Claresholm, for their 28 day program. After that he wishes to be employed in Lethbridge. In this institution he has been working in the Cabinet Shop and he feels that he has developed some expertise. Other than that when he was younger he worked on road companies and he is prepared to do that again. He realizes that he will need assistance in developing employment and knows that it is important to the success of his plan. Under the heading "Risk Assessment" the psychologist said: For Mr. ARMBRUSTER to not continue in his present life-style is to develop a totally new way of living. He will need to enter the work force and hold a 9 to 5 job and remain drug free. Alcohol does not seem to have played a very large part in his crimes, if at all, and is of lesser importance. The David Lander program will obviously help him to pinpoint some of these difficulties. For him to minimize risk is to become very involved in the

development of himself as a pro-social citizen. Friends, peer groups, co- workers, and a good relationship with his Parole supervisor seem to have been important in the past. His only successful parole was one where he had a supervisor whom he trusted and he felt that he could use in a counselor-kind of format. A counselor available to this man to help him with some of his reactive situations and with what might at times be some distorted or inadequate judgement calls might also assist him within the community. He has taken courses this time and seems to have involved himself more readily than he has in the past. [26] After this report Mr. Armbruster was released on parole in December 1995. He breached parole and was recommitted. In the psychological report which followed, Mr. Armbruster admitted to having breached his parole by drinking alcohol less than seven hours after his release, but said that he didn't realize that "they could stop him legally". Although he had been given the opportunity to go to a bush camp outside of Prince George, he had not taken it. The psychologist concluded: Mr. Armbruster clearly needs: 1. Thorough substance abuse treatment in a residential setting.

2. He needs educational upgrading and vocational training.

3. He needs to face the fact that he has an anti- social personality disorder which makes him choose criminal activity rather than gainful employment. All of the above factors are indicators of recurrent recidivism with its inherent risk not only to property but to individual harm. The armed robberies were conducted with a knife and it is most fortunate that no one was harmed. For the risk level to be lowered by any measure, Mr. ARMBRUSTER will have to accomplish a monumental change in attitude, motivation and maturity. Risk therefore of recidivism, aided and propelled by alcohol and substance abuse is seen to be at an unmanageable level. [Emphasis added] [27] After his re-incarceration Mr. Armbruster voluntarily went into segregation. It appears that he participated in no prison programs until his statutorily mandated release in January 1998. As noted earlier, he committed the offences with which we are concerned within five days of his release. [28] The appellant has no support in the community. His father is dead. He did not know the whereabouts of his mother until the Native Courtworker assigned to his case located her after the appellant's arrest for the offences at bar. He has two brothers who are in prison. He has had no contact with his common law wife since he assaulted her in 1983. He has no children. [29] The victim impact statement gives us a glimpse into the consequences and aftermath of these crimes for the victim. I will not demean her suffering by attempting to measure it. It is enough to say that the trauma of the ordeal was profound. It remains with her day and night and colours her every experience.

MITIGATING FACTORS [30] Counsel for Mr. Armbruster submitted that in spite of this awful history there may still be hope that the appellant is capable of rehabilitation. The appellant pleaded guilty on his first appearance in court on these matters. Although he was advised to obtain counsel and was told that the Crown was contemplating dangerous offender proceedings Mr. Armbruster insisted on pleading guilty. [31] He is guileless. He confessed his crimes to the police on his arrest filling in details about them unobtainable without his help. He expressed remorse about what he had done to his victim. This portion of his interview with the police was read into the record on sentencing: JA: No, Im d - an eye for an eye is never right but I believe uh - I believe uh, a person deserves a peace of mind, you know. She wasn't - she didn't do nothin to deserve this. Nothin whatsoever. Nothin whatsoever. Wasn't cause the colour of her skin, colour of her hair, nothin. I just - stupid. DM: I have no other questions for James. KW: Do you have anything else that you want to add uh, James? JA: No. KW: Is there anything that you wanted to say to the lady? JA: Oh, yeah I guess I would like to say some (U/I) [Unintelligible] to the lady. KW: What would you like to tell her? JA: Can I think for minute to get my words straight? KW: Go right ahead, take as much time as you need. JA: Uhm, I'm very

sorry for what happened. It was not you. You never dis - did anything or you never said - you never said nothin that would prompt the kind of reaction that - you're an innocent person. I - I didn't want to harm you in no way, but I did. I can't even imagine what you're going through. Can't even imagine. But I'll try saving you further pain of going to court and testifying and all these things. Cause that's brutal in itself. I wouldn't have a lawyer going up there to - to uh, harass you basically, that's what he'd be doin, that's what they do. I'm not going to make you sit there and look at me. I don't know if you'd ever get back to your same life. I can't give it back to you. I'm very sorry for what I put you through. Very, very sorry. There's nothin that you could have said or what you done that would have changed what happened. Now - I don't know, I " I don't know what to say. KW: Okay, James we'll make sure your thoughts are passed on to her if you'd like. JA: Yes. KW: If you'd like us to do that we will be speaking to her further. JA: (U/I) her wish. KW: Pardon me? JA: It would be her wish if she wanted to or not. KW: Okay. Well we will definitely pass that on what you uh - uh, what you said and what you - what you wanted to say to her. JA: Yeah. And there won't be no court case. KW: There won't be no c - court case? JA: No. KW: And why is that? JA: I'm pleading guilty

(U/I). KW: Okay. Is there anything that the courts can do for you? You mentioned earlier, counselling? JA: Not only for that it " KW: I don't know, is it? JA: I don't know. I don't know. [32] Before he was sentenced Mr. Armbruster made this statement to the Court: . . . I'll make this short. I'd like to thank Mr. Skilnick for helping me. His help is greatly appreciated. And especially to Victoria DeRoche, Native court worker. She was under a great deal of personal stress. She received some telephone calls that were unwarranted, concerning this matter. Concerning me. I want to thank you 'cause she done a great job. To be an Indian, in Canada, is hard. But, she showed me the way. I would like to -- especially for the victim. I want to say there is no words to describe how I -- how I feel. I -- I plead guilty so I could try to spare her some pain. I'm very sorry. [33] Counsel for the defence submitted that for the first several years that Mr. Armbruster was in the provincial system he was offered no assistance in the form of psychological counselling. Counsel submitted as well that Mr. Armbruster had a limited ability to complete a number of courses offered in the federal system because most of them were pitched to a grade 10 equivalency. Mr. Armbruster has only grade six. In spite of it he has successfully completed courses on financing, cognitive skills, interpersonal communications, employment and career skills, and some drug and alcohol courses. He has not upgraded his formal education by obtaining a general equivalency degree. Counsel submitted that Mr. Armbruster has demonstrated in the past that if he puts his mind to it, he can learn and benefit from courses offered in the institution.

PERSONAL BACKGROUND [34] If the appellant ever stood a chance of living a happy, civil and productive life the circumstances of his upbringing help to explain why he never did. [35] Mr. Armbruster's mother, an aboriginal woman, first began her association with Mr. Armbruster's father, a man of German descent, when she was 15 years of age and he was 36. The first child was born when the mother was 16. The appellant was born when the mother was 19. The appellant last saw his mother when he was two years of age. The mother left home and never came back. [36] The father, an abusive alcoholic, was left to raise the children. The father often left home, either to work or to drink, and when he did he left the children with his parents. The grandmother was a severe woman, who referred to her grandson as a "half breed", a "black little bastard", and on several occasions, it is said, tried to "wash the Indian off of him." [37] At the age of 10 the appellant moved to his father's house. One night when his father had returned home in a drunken state he grabbed his son's hand and shoved it into a meat grinder. A friend of the father who was present retrieved the fingers and rushed the boy to the hospital. The fingers were reattached, but infection soon set in and they were subsequently surgically removed. What remains is part of the thumb and ring finger and the whole of the baby finger on

his right hand. [38] The appellant came to school in an unwashed and unkempt condition. He had a speech impediment, scored low on tests for academic potential, and was socially inept. He was asked to leave school in grade six. He made three attempts at readmittance and was refused each time. He was living on his own at age 14. At 16, for his first adult offences, he was sent to prison for nine months.

REASONS FOR SENTENCE [39] Before the sentencing judge, Crown counsel took the position that a denunciatory and isolative sentence was required. He submitted that a global sentence in the 15 to 20 year range was appropriate. Counsel for the defence suggested a range of 10 to 15 years. [40] When summing up the position of the defence the sentencing judge referred to s. 718.2(e) of the Code which dictates that a sentencing judge must consider all available sanctions other than imprisonment that are reasonable in the circumstances with particular attention to the circumstances of aboriginal offenders. The sentencing judge did not allude to this section in his final determination of sentence. He did not have the benefit of the Supreme Court of Canada's recent decision in R. v. Gladue (1999), 133 C.C.C. (3d) 385. I will return to Gladue later in these reasons. [41] The sentencing judge gave a lengthy and considered judgment. He mentioned all of the relevant aggravating and mitigating factors. The sentencing judge found that the sexual assault was much more disturbing than the robbery. He said: The most disturbing aspect of this sexual assault is his motive and intention for the rape, and the continued sexual assaults. He has admitted he has a lot of resentment and hate. The sexual assaults here were not for the purposes of sexual gratification. The sexual assaults were for the

purposes of power and control. [42] In settling on a sentence of life imprisonment the sentencing judge was motivated primarily by the dangerousness of the appellant. He said this: I accept that he has been horribly mistreated much of his life, but his actions are best described by his criminal record. Since 1979, he reoffends very quickly any time he is released. He is in a word "institutionalized." It is significant that this is his tenth armed robbery and his second sexual assault. His conduct coupled with his refusal to abide by rules anywhere make him at this time a dangerous person to have in society. His actions on January 20th, 1998, depict the extent of his anger and the level of his dangerousness. I am therefore of the view that protection of the public requires an isolative sentence which will keep Mr. Armbruster from being part of society for a lengthy period. His motives and his intentions constitute a worst case scenario in terms of the sexual assault. [Emphasis added] [43] It is worth noting here that the trial judge did not find that the robbery was a "worst case". He said: The nature of the planned and premeditated robbery which the accused carefully planned and cased and viewed to the extent of planning his avenue of escape, setting his disguise, and robbing a lone woman at knifepoint, also calls for a retributive sentence. It is my view this robbery is not a

worst case offence, but having regard to the character of this accused, it warrants a sentence in excess of ten years, due to the extensive record of the accused, and his failure to be individually deterred. [44] The sentencing judge concluded his reasons in this way: I return to my consideration of this case. It is my view that having regard to the principles of sentencing, the circumstances of this offender are such that for these crimes and this offender, a fit and proportionate sentence is one which properly reflects his degree of moral culpability. Mr. Armbruster, will you please stand? Sir, on count 1, I sentence you to life imprisonment. On count 2, I sentence you to ten years concurrent.

THE GROUNDS OF APPEAL [45] Counsel for the defence submitted that the trial judge erred in imposing a life sentence for the robbery offence. He submitted that as horrible as Mr. Armbruster's record may be the robbery cannot be categorized as the "worst offence" committed by the "worst offender" and that the imposition of a life sentence was therefore in error. He submitted that where a court is not dealing with a "worst offence, worst offender" case, but there is a real prospect of recidivism, the Crown must resort to the dangerous offender provisions rather than the maximum sentence to deal with the danger. He submitted that the trial judge erred in abandoning any hope of rehabilitation. And, defence counsel submitted that the trial judge gave insufficient consideration to Mr. Armbruster's aboriginal status and s. 718.2(e) of the Code.

1. Life Sentence v. Dangerous Offender Proceedings [46] It is often said that the imposition of a maximum sentence generally is reserved for a situation involving the worst offence and the worst offender. A maximum sentence in those circumstances is justified to protect society. But to say that these are the only circumstances that can attract the maximum sentence is to go too far. [47] In R. v. Mesgun (1997), 121 C.C.C. (3d) 439, the Ontario Court of Appeal upheld a life sentence for attempted murder imposed on a first offender. In so doing the Court held that where the case is one of the worst offence committed by the worst offender the maximum sentence is to be expected. The Court went on to say at para. 12: It has also been a basic sentencing principle that where the circumstances of the crime itself are so vile as to bespeak stark horror, the maximum sentence can be justified as appropriate under ordinary sentencing principles. [48] The question posed by this appeal is whether the maximum may be imposed where the offence is not the worst offence, but the accused is the worst offender in that he poses a continuing danger to society. [49] In R. v. Elliot (R.D.) (1995), 64 B.C.A.C. 644, a sentence totalling nine years' consecutive was substituted by this court for a life sentence which had been imposed in the trial court. The appellant had pleaded guilty to three counts of

robbery. In each instance he had entered a banking institution claiming to have a weapon and demanded money from the tellers. The appellant's record consisted of 20 offences composed of robberies and breaking and entering. The appellant had been in prison for 20 of the last 23 years. In reducing the sentence to one of three years' consecutive for each offence Southin J.A. said this, at paras. 13-15: Under Part XXIV of the Criminal Code, application can be made before sentence for a declaration that a prisoner is a dangerous offender and such an application, if successful, may lead to an indeterminate sentence. No such application was made here by the Crown. In my opinion, a life sentence for robbery where there was no violence but simply a threat which, in fact, could not be implemented as the accused had no weapon, is in and of itself unfit. It is true that a sentence must fit the criminal as well as the crime but, in my opinion, it is the nature of the crime which must be the most compelling consideration. The learned judge placed too much emphasis on the criminal record. [50] The Elliot decision reflects the concern of the Supreme Court of Canada, mentioned in obiter in R. v. Lyons, [1987] 2 S.C.R. 309 and again in R. v. M. (C.A.), [1996] 1 S.C.R. 500, that the imposition of a maximum sentence should not be used as a substitute for a dangerous offender application. Briefly,

the concern arose in this way. In R. v. Hill (1974), 15 C.C.C. (2d) 145 (Ont. C.A.), Jessup J.A. had stated at pp. 147- 8: When an accused has been convicted of a serious crime in itself calling for a substantial sentence and when he suffers from some mental or personality disorder rendering him a danger to the community but not subjecting him to confinement in a mental institution and when it is uncertain when, if ever, the accused will be cured of his affliction, in my opinion the appropriate sentence is one of life. Such a sentence, in such circumstances, amounts to an indefinite sentence under which the parole board can release him to the community when it is satisfied, upon adequate psychiatric examination, it is in the interest of the accused and of the community for him to return to society. [51] In Lyons, La Forrest J. commented on Hill at pp. 330-1: It is true that the Hill principle, which amounts to judge-made dangerous offender law, has clearly been limited by subsequent decisions. However, the basis of the retrenchment has not been a rejection of the principle of indeterminate detention for dangerous offenders. Rather, it has been the concern that the Hill principle not be used to circumvent the provisions of Part XXI with its attendant safeguards for the offender. . . . [52] Following Lyons, Lamer C. J. C said this at p. 562 in M. (C.A.): In Lyons, supra, I was in

substantial agreement with the majority judgment of La Forrest J. that there may indeed be circumstances where a life sentence, motivated in large part by the dangerousness of the offender, may be undesirable in light of Parliament's creation of a separate and distinct dangerous offenders regime. [53] In 1997 a division of this Court reviewed the comments of the Supreme Court of Canada in R. v. Robinson (1997), 121 C.C.C. (3d) 240. Esson J.A. concluded at paras. 22-3: What then is the extent of the limitation on the use of life sentences expressed or implied by the dicta in Lyons and M.(C.A.)? In my view, in both cases the court was directing itself to circumstances where, in the language of Hill, the accused "suffers from some mental or personality disorder rendering him a danger to the community ... and when it is uncertain when, if ever, the accused will be cured of his affliction". It is reasonable to infer that Part XXIV, which was enacted in its present form after R. v. Hill was decided, was intended to be directed at those circumstances. An indication that such was the legislative intent can be found in s.755(1) which provides that the court "shall hear the evidence of at least two psychiatrists". I conclude that there are cases in which the imposition of a life sentence for manslaughter based on future dangerousness will not circumvent the provisions of Part XXIV. In

the case of a person who committed manslaughter who had no prior record but where there was some psychiatric or psychological evidence indicating future dangerousness, to impose a life sentence might well be to circumvent the protections of Part XXIV. But there will be cases where the prior criminal record, considered along with the facts of the offence for which sentence is being imposed, will be enough to support a conclusion that a life sentence is called for in order to protect society. As the trial judge observed, the most reliable predictor of future conduct is often past performance. In such a case, psychiatric or psychological evidence may generally be introduced, but is not necessarily essential. That is a question to be decided in light of the particular circumstances. [Emphasis added] [54] Thus, the Robinson case recognized that a trial judge might impose a life sentence in a case where, based largely on the record, the Court concludes that the accused poses a continuing danger to society. In so saying the Court did not overrule the Elliot decision. A life sentence would not be imposed solely on the basis of the record, the circumstances of the offence continue to form an important part of the decision. In spite of Mr. Elliot's record the circumstances of the offence simply did not warrant a life sentence. [55] Accordingly it will be appropriate to impose the maximum

sentence for the purpose of prevention only where the sentence "fits the crime". As Wilson J. said in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at p. 533, and approved by the Court in M. (C.A.), at para. 40: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system. [Emphasis added] [56] This principle is now codified in s. 718.1 of the Code as the fundamental principle of sentencing: FUNDAMENTAL PRINCIPLE 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [57] Section 718.2 lists the other sentencing principles as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual

orientation or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender's spouse or child, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. A sentencing judge must take into account all of the factors set out in s. 718.2, but at bottom the sentence must fit the crime. In the case at bar the appellant robbed a vulnerable lone female storekeeper at knife point. Although the longest sentence imposed on Mr. Armbruster prior to the commission of this offence was just over seven years in 1991, his record for similar offences is horrendous. He was on parole at the time he committed this robbery. These circumstances called for a denunciatory and isolative sentence. At the sentencing proceeding the Crown sought a sentence of 15 to 20 years. In my view that was the appropriate range. A sentence of life imprisonment in these circumstances was not fit.

2. The Effect of Section 718.2(e) of the Criminal Code [58] I am reinforced in my views about the fitness of this sentence by the recent decision of the Supreme Court of Canada in Gladue. In that case the Supreme Court of Canada analyzed s. 718.2(e) of the Code which provides: A court that imposes a sentence shall also take into consideration the following principles: . . . (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [59] Mr. Armbruster is an aboriginal offender. The Gladue case interpreted s. 718.2(e) as a remedial provision which requires restraint in the resort to imprisonment as a sentence, and recognition by the sentencing judge of the unique circumstances of aboriginal offenders. Under the heading "Search for a Fit Sentence" the Court said this at paras. 75-81: The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking into account all the circumstances of the offence, the offender, the victims, and the community. Nothing in Part XXIII of the Criminal Code alters this fundamental duty as a general matter. However, the effect of s. 718.2(e), viewed in the context of Part XXIII as a whole, is to alter the method of analysis which sentencing judges must

use in determining a fit sentence for aboriginal offenders. Section 718.2(e) requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 567, 105 C.C.C. (3d) 327, Lamer C.J.C. restated the long-standing principle of Canadian sentencing law that the appropriateness of a sentence will depend on the particular circumstances of the offence, the offender, and the community in which the offence took place. Disparity of sentences for similar crimes is a natural consequence of this individualized focus. As he stated: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions of this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. The comments of Lamer C.J.C. are particularly apt in the context of aboriginal offenders. As explained herein, the circumstances of aboriginal offenders are

markedly different from those of other offenders, being characterized by unique systemic and background factors. Further, an aboriginal offender's community will frequently understand the nature of a just sanction in a manner significantly different from that of many non-aboriginal communities. In appropriate cases, some of the traditional sentencing objectives will be correspondingly less relevant in determining a sentence that is reasonable in the circumstances, and the goals of restorative justice will quite properly be given greater weight. Through its reform of the purpose of sentencing in s. 718, and through its specific directive to judges who sentence aboriginal offenders, Parliament has, more than ever before, empowered sentencing judges to craft sentences in a manner which is meaningful to aboriginal peoples. In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some

offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively

serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstances in light of the aims and principles of sentencing as set out in Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet

comply with the mandated principles and purpose of sentencing. In this way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [Emphasis added] [60] There is no question that Mr. Armbruster has suffered because of his aboriginal status. His grandmother brutalized him for it. The school system was not able to deal with him. For his first adult offences he was sentenced to imprisonment for nine months. Because he was M‚tis he was thought to be "institutionalized" before he began to serve his first prison sentence. This is evidenced by an excerpt from the Admission Report prepared by a social worker on Mr. Armbruster's first adult admission to the provincial facilities in Regina on May 10, 1979: Expected Adjustment to Incarceration: [Armbruster] is not expecting [any] major adjustments to take place. The subject being a first offender, has not as yet been exposed to the general inmate population. He may experience some adjustments as time progresses and [as] exposure to his surroundings develops. The subject being of metis origin may be better equipped to cope with the pressures of incarceration [than] his peers. [61] In Gladue the Supreme Court of Canada has said that s. 781.2(e) alters the method of analysis in determining a fit sentence for aboriginal offenders. The section requires that sentencing determinations

take into account the unique circumstances of aboriginal peoples. The sentencing judge in the case at bar did not have the benefit of the decision of the Supreme Court of Canada on this issue. In my view our analysis of the fitness of Mr. Armbruster's sentence must take into account the new method. [62] The trial judge recognized that Mr. Armbruster had not benefited from his time in prison. Although his counsel pointed out some successes that he had in completing certain courses in the prison system, Mr. Armbruster is hardly equipped to deal with life outside the prison. Counsel for Mr. Armbruster has noted, in material filed with this Court following the Gladue decision, that Mr. Armbruster has tried, with the help of a Native Elder, to define a realistic plan to identify behaviourial problems he must address if he is ever to lead a productive life. He is currently working with a Native Elder and enrolled in educational programming. He is now taking advantage of programs which specifically address the needs of aboriginal people and which were unavailable when Mr. Armbruster first entered the prison system in 1979. [63] Unique systemic and background factors have contributed to Mr. Armbruster's inability to function in a civil society. It is possible that he will be assisted in dealing with his behaviourial issues. In my view the Gladue case requires the Court to take these facts into account in determining a fit sentence.

CONCLUSION [64] As I stated earlier the sentence of life imprisonment for this offence of robbery does not fit the crime as it is disproportionate to the gravity of the offence and the degree of culpability of the offender. On the other hand, the seriousness of the robbery cannot be ignored. It was planned. It was committed while the appellant was armed with a knife and while he was on statutory release. The appellant has a record for possession of a weapon, uttering threats, nine armed robberies and one attempted robbery as well as a number of assault charges and breaking and enterings. Mr. Armbruster is, in his mid-30s, a disadvantaged recidivist. Based on his past performance Mr. Armbruster is highly likely to commit violent crimes once he is released. The practical reality is that right now Mr. Armbruster poses a danger to society and, based on his past conduct, has only the slimmest chance of changing his behaviour. But the possibility of rehabilitation is not foreclosed entirely. The appellant's guilty plea and expression of remorse were accepted as genuine by the sentencing judge. The psychological reports filed at sentencing recognize that Mr. Armbruster is not mentally ill. He has been brutalized by his circumstances and unable to find real help while in prison. At the sentencing proceedings it was apparent that he had a burgeoning understanding of his difficulties and

wanted to address them. It is said that he is starting to do that now. [65] Balancing all of these factors, I would reduce the sentence from life imprisonment to one of 20 years. If Mr. Armbruster is to change it will take time. I would therefore accede to the request of the Crown and order, pursuant to s. 743.6 that he serve one half his sentence before he is considered for parole. [66] The trial judge categorized the circumstances of the sexual assault with a weapon as a "worst case" because it was designed to degrade and humiliate. Mr. Armbruster has sexually assaulted in the past for the same motive. His record of violence puts him in the worst offender category. I would defer to the findings of the trial judge. I would increase the sentence of 10 years for sexual assault with a weapon to the maximum, 14 years to be served concurrently with the sentence of 20 years' imprisonment for the robbery. "The Honourable Madam Justice Ryan" I AGREE: "The Honourable Madam Justice Huddart" I AGREE: "The Honourable Mr. Justice Braidwood"