R. v. Mainville, 2011 ONCA 383

APPEAL BOOK ENDORSEMENT

1In our view, this appeal must be allowed. The trial judge made errors in principle which requires this court’s intervention. Most importantly, although the appellant is aboriginal there was virtually no information that addressed the Gladue factors. Particularly if the trial judge intended not to accede to the position of the parties that there be a non-custodial sentence, he should have obtained the information that would be in a Gladue report. The material before us shows that the appellant’s aboriginal background and the impact of residential schools on her father, her and her community have been significant. As well, the fresh evidence shows that the use of oxycontin, which was the cause of the offence in this case, is pervasive in the community and has devastated that community.

2The trial judge also erred in treating this offence as a breach of trust. The complainant was no doubt vulnerable and dependent on the money from the settlements, but the relationship with the appellant was not the type of trust relationship that attracts the sentence principle applied by the trial judge.

3This was not a case for a jail sentence.

4Accordingly, the appeal is allowed and the sentence of imprisonment is reduced to time served. The 18 months probation order will stand on the same terms as imposed by the trial judge.