R. v. Armistead

2003BCCA0699.htm

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Armistead, 2003 BCCA 699 Date: 20031217 Docket: 29575 Between: Regina Respondent And Robert Richard Armistead Appellant

BAN ON PUBLICATION S. 486(3) C.C.C. Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry Oral Reasons for Judgment G.D. McKinnon, Q.C. Counsel for the Appellant J. Duncan Counsel for the (Crown) Respondent Place and Date: Vancouver, British Columbia December 17, 2003 [1] DONALD, J.A.: This is an appeal from a finding by Madam Justice Downs that the appellant is a dangerous offender. She pronounced her decision on 29 April 1998, well before this Court's judgment in R. v. Johnson, 2001 BCCA 456, 158 C.C.C. (3d) 155 and the decision on appeal to the Supreme Court of Canada, 2003 SCC 46. [2] The Crown respondent concedes that the sentencing judge erred in law in finding the appellant a dangerous offender without first considering whether he was a long-term offender. The Crown does not invoke the curative proviso, influenced no doubt by the statement of the Supreme Court of Canada in Johnson, supra, at para. 49 that the proviso "may be exercised only in the rarest of circumstances." [3] In his factum the appellant requested that this Court make an order allowing the appeal and directing a new sentence hearing. [4] The respondent's factum seeks the same order. [5] The appellant has revised his position. He now asks this Court to declare him a long-term offender with time served, approximately five years, fixed as the

determinate sentence. The request is accompanied by an application to adduce fresh evidence that the appellant is gravely ill with lung cancer and under palliative care. The evidence is offered in support of a submission that he is too disabled to pose any significant risk to the community and that he is now unquestionably a suitable candidate as an long-term offender [6] The Crown does not oppose the new evidence and is prepared to agree to a disposition consistent with the order given by this Court in R. v. Goodwin [2002] B.C.J. No. 2116. [7] In that case the court made a long term offender designation in place of a dangerous offender designation for an offender with a mental disability on terms that allowed for release on a conditional supervision order after giving the parole board 90 days, the time they required to conclude its processes, to place him in a suitable facility. This was effected by sentencing him to time served plus 90 days followed by a supervision order for the maximum 10 years. [8] In the present case parole officers have located two suitable places for the appellant. It is proposed that he would receive the proper care and supervision either at the Chilliwack Community Correctional Centre or at a private facility in Kamloops. The centre in Chilliwack is under renovation at the moment and will not be able to take the appellant until the end of February

2004. It seems that a 90-day extension to the time served would accommodate this schedule. [9] The parole authorities have responded quickly to the court's request for a community assessment prior to our determination whether a substituted designation is appropriate. Their prompt attention to this matter is much appreciated. In a report dated 16 December 2003 Marcia Minor, parole officer, writes concerning the proposed supervision plan involving the Kamloops option as follows: MR. ARMISTEAD is dying of inoperable lung cancer. He also suffers from obstructive pulmonary disease and Parkinson's disease. He has been given 3 to 12 months to live and is receiving strong does of pain medication. He is confined to a motorized cart or wheelchair. While he is currently able to look after most of his personal hygiene needs, his condition will deteriorate over time. On a release to the Kamloops area, it is felt that MR. ARMISTEAD's needs could best be met in a Private Home Placement where both his health needs and his risk of re-offence can be strictly monitored. [10] There appearing to be two suitable options for the community placement and given the compassionate grounds advanced by the appellant, I find it appropriate that this Court grant the order sought and set aside the dangerous offender designation and substitute a designation that he is a long-term offender. [11] The determinate

sentence will be five years, 10 months and six days to run from 29 April 1998 and concurrent on both counts in the indictment and there will be an order that the duration of his community supervision is 10 years. [12] Before concluding my reasons I want to commend the Crown for its compassionate position in respect of this matter and in responding to the extraordinary circumstances of this case. [13] SAUNDERS, J.A.: I agree. [14] LOWRY, J.A.: I agree. [15] DONALD, J.A.: So ordered. "The Honourable Mr. Justice Donald"