DATE: 20060227

DOCKET: C43626

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – LEO BRIZARD (Appellant)

BEFORE: ROSENBERG, CRONK and GILLESE JJ.A.

COUNSEL:

Leo Brizard, In person

Alison Wheeler, for the respondent

Bob Goddard and Louis Strezos, Duty Counsel

HEARD & RELEASED ORALLY: February 14, 2006

On appeal from sentence imposed by Justice Lynn D. Ratushny of the Superior Court of Justice dated April 4, 2005.

E N D O R S E M E N T

[1] We are satisfied that the trial judge did not misapprehend the facts. However, in our view, the trial judge erred in principle in two respects.

[2] First, the trial judge held that the appellant’s plea to manslaughter fully accounted for the mitigating effect of the appellant’s intoxication at the time of the offence. We agree with Ms. Wheeler and Mr. Goddard that this holding is inconsistent with the decision of the Supreme Court of Canada in R. v. Stone, [1999] 2 S.C.R. 290.

[3] Second, the trial judge erred in failing to give adequate weight to the appellant’s aboriginal status in accordance with s. 718.2(e) of the Criminal Code and the decisions of the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207. Although the appellant, like many native offenders, does not reside on a reserve, the principles enunciated in those cases apply. See Gladue at paras. 90 and 91. The court is required to take judicial notice of the systemic and background factors and the approach to sentencing that is relevant to aboriginal offenders. See Gladue at para. 83. In any event, we note that the appellant’s background of verbal, physical and emotional abuse at the hands of his stepfather and his own early abuse of alcohol and drugs is consistent with the systemic conditions that have plagued the First Nations’ people.

[4] Finally, the restorative approach need not take place within or be specific to the aboriginal community. See Gladue at para. 92. There is the kind of plan in place contemplated by Gladue that will assist the appellant with his treatment for substance abuse and to upgrade his education so that he may obtain employment.

[5] While this was a very grave offence, the appellant, who was heavily intoxicated, was only a party to the offence and did not administer any of the fatal blows. The appellant has no prior record for crimes of violence and his longest prior sentence of imprisonment was four months in 1999.

[6] Accordingly, we would grant leave to appeal, allow the appeal and reduce the sentence to fifteen months imprisonment. In addition to the credit of three years and nine months for pre-sentence custody this is an effective sentence of five years imprisonment.

[7] The appellant will also be placed on probation for twelve months on the statutory terms and on condition that upon release he report within two working days to a probation officer at Brockville and thereafter as required for the purpose of facilitating his attendance at Brock Cottage and attendance at Algonquin College. The person releasing the appellant will comply with the provisions of s. 732.1(5) of the Criminal Code.

Signed: “M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“Eileen E. Gillese J.A.”