COURT OF APPEAL FOR ONTARIO

DATE: 2006-04-13

DOCKET: C43843

RE: HER MAJESTY THE QUEEN (Respondent) – and – MARK REX KAKEKAGAMICK (Appellant)

BEFORE: LASKIN, SIMMONS and LaFORME JJ.A.

COUNSEL: Mark Kantor for the appellant Lance Beechener for the respondent

HEARD: February 28, 2006

On appeal from the conviction entered on February 16, 2006, and the sentence imposed on May 2, 2005, by Justice Helen M. Pierce of the Superior Court of Justice.

E N D O R S E M E N T

[1] The appellant appealed his conviction and his sentence for aggravated assault. This court heard the appeal on February 24, 2006 and reserved its decision in respect of both. The matters remain under reserve.

[2] In order to properly decide the issues on appeal, this court requires the receipt of further evidence pursuant to s. 687(1) of the Criminal Code and in accordance with R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, namely:

Where a sentencing judge at the trial level has not engaged in the duty imposed by s. 718.2(e) as fully as required, it is incumbent upon a court of appeal in considering an appeal against sentence on this basis to consider any fresh evidence which is relevant and admissible on sentencing.

[3] Accordingly, it is ordered that a further report in the nature of a pre-sentence report will be completed in relation to Mr. Kakekagamick. The report will consider this offence, committed by this offender, harming this victim, in this community. In addition it shall, using best efforts, address those matters for consideration specifically addressed in Gladue, for example, alternatives to incarceration that may exist inside or outside Mr. Kakekagamick’s Aboriginal community.

[4] For further guidance as to the matters the report should focus on, reference should be had to the entire Gladue decision. Some specific instruction is found in paragraph 80 of that decision:

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?

[5] We trust that the office of the Crown Attorney will make the appropriate arrangements to comply with this order.[^1] As Mr. Kakekagamick is currently incarcerated, we order that the report is to be completed within 30 days after the release of this endorsement. Upon completion of the report it is to be forthwith filed with this court to the attention of this panel. Should there be any matters in connection with this endorsement and the timely completion of the report, an appointment can be made with a member of this panel.

“J.I. Laskin J.A.”

“J.M. Simmons J.A.”

“H.A. LaForme J.A.”

[^1]: We understand that further guidance as to the form and substance of a Gladue report can be obtained from Aboriginal Legal Services, Toronto, Ontario.