COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Towegishig, 2008 ONCA 338

DATE: 20080501

DOCKET: C48180

LASKIN, SIMMONS AND LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

LEO TOWEGISHIG a.k.a TOWEGEKICK

Appellant

Johnathan Rudin and Mandy Eason for the appellant

Eliott Behar for the respondent

Heard and released orally: April 25, 2008

On appeal from sentence imposed by Justice Louise Gauthier of the Superior Court of Justice dated April 3, 2007.

ENDORSEMENT

[1] We agree with Mr. Rudin that the trial judge erred in principle by failing to take into account the appellant’s aboriginal background and upbringing, and s. 718(2)(e) of the Criminal Code in determining the length of the penitentiary term. This error in principle entitles us to consider afresh what is a fit sentence.

[2] Determining a fit sentence on the facts of this case is difficult. On the one hand, as Mr. Behar points out, there are numerous aggravating factors. These include the seriousness of the offence itself, the significant position of trust the appellant occupied in the victim’s life, the life-long harm suffered by the victim at the hands of the only father she knew, and the appellant’s extensive criminal record.

[3] We note in particular the details of the severity and seriousness of the offence. The appellant sexually abused his step-daughter over 100 times. He engaged in full sexual intercourse. He caused a pregnancy, which led to a miscarriage. He threatened her, if she disclosed the abuse. And, he also gave her drugs.

[4] On the other hand, the appellant had a tragic upbringing, which included being sexually and physically abused at residential schools, being sexually abused by members of his family, witnessing the physical abuse of his brother, being forbidden from even speaking his native language, and having the spiritual practices of his people ridiculed as witchcraft. Undoubtedly, these considerations played a role in bringing the appellant before the court.

[5] The appellant is now 65 years of age and has a number of physical ailments. As the trial judge fairly noted, he is unlikely to re-offend. Still, denunciation and general deterrence remain paramount sentencing objectives in this case.

[6] Balancing these considerations as best we can, we conclude that a fit sentence is four years.

[7] Accordingly leave to appeal sentence is granted and the appellant’s sentence is reduced to four years.

Signature: “John Laskin J.A.”

“Janet Simmons J.A.”

“S.E. Lang J.A.”