CITATION: R. v. Chickekoo, 2008 ONCA 488
DATE: 20080620
DOCKET: C48448
COURT OF APPEAL FOR ONTARIO
CRONK, GILLESE and WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
RUBY CHICKEKOO
Appellant
Jonathan Rudin and Mandy Eason for the appellant
Robert Gattrell for the respondent
HEARD: June 17, 2008
On appeal from the sentence imposed by Justice John dePencier Wright of the Superior Court of Justice on August 15, 2007.
BY THE COURT:
[1] After a trial by judge alone, the appellant, Ruby Chickekoo, was convicted of aggravated assault and sentenced to eighteen months in jail, followed by two years of probation. She appeals from sentence alone.
[2] Counsel for the appellant submits that the sentence is too long. He contends that the pre-sentence report fell short of that which is required by Gladue because it did not fully set out the appellant’s circumstances and the relevant background factors. As a result, it is argued, the sentencing judge dismissed the real and significant issues that the appellant faced and failed to consider all the relevant circumstances of the appellant as an aboriginal offender.
[3] The appellant seeks to tender, as fresh evidence, a more comprehensive Gladue report. The Crown did not object to the panel reading the fresh evidence but argues that it does not meet the test for fresh evidence.
Background
[4] The appellant and a group of others were drinking together when an argument developed and a fight broke out. The appellant smashed a beer bottle over the head of Margaret Boyce, one of the people with whom she had been drinking. The victim suffered severe lacerations to her face. She was left alone after the assault. As a result of a fire alarm being pulled, the police attended at the apartment in which the incident occurred and discovered the victim sitting in a pool of her own blood, unconscious and bleeding.
[5] The victim’s injuries were severe, life-threatening and permanently disfiguring. It took over 100 stitches during a three-hour operation to repair the lacerations to her head and face. The victim also suffered a punctured eardrum and has ongoing problems with a twitching eye. Damage to a tendon in the victim’s hand led to the loss of a nerve in two of her fingers and has resulted in restricted mobility of the hand. The victim lost the feeling on the right side of her face. She also suffers from chronic facial pain and headaches and significant facial scarring.
Analysis
[6] After noting that all those involved in the incident, including the appellant, are aboriginal persons, the sentencing judge adjourned the sentencing proceedings and ordered that a pre-sentence report be prepared on a Gladue basis. [R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688].
[7] At the sentencing hearing, Crown and defence counsel were in agreement that, given the serious violent nature of the offence, denunciation would have to inform whatever sentence was imposed. Defence counsel did not suggest that anything other than a period of incarceration would meet the needs of sentencing. As the appellant is an alcoholic, he argued for a sentence of ten months as that would have allowed the appellant to complete a treatment program at the Algoma Treatment and Remand Centre in Sault Ste. Marie. The Crown asked for a sentence in the range of eighteen months to two years less a day. The appellant’s criminal record was also before the court. It showed one conviction for assault and numerous breaches of probation and bail.
[8] In R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664, this court stressed the need for a pre-sentence report that adequately sets out the circumstances of the offender and the systemic and background factors that contributed to the aboriginal offender coming before the court. We accept that the original pre-sentence report fell short of meeting those requirements.
[9] For example, in the original pre-sentence report, there is a passing reference to the appellant having suffered a sexual assault as a youth. The fresh evidence explains that when the appellant was 14 years old, she was at a party when her older sister started to physically assault her. When that was stopped, the appellant went outside. Another woman at the party asked if the appellant was all right. She told the appellant to follow her and led her to another house a short distance away. The woman left the appellant in the house and went back to the party. The appellant was then gang-raped and warned not to tell anyone or her assailants would kill her family.
[10] Further, the original report does not adequately indicate how the unsolved murder of the appellant’s common law spouse was related to the circumstances of life on her reserve. Nor does it address the verbal and physical abuse the appellant received from other children on the Miskeegogamang First Nation, how that behaviour is related to the historic relationship between that First Nation and Cat Lake, where the appellant was born and lived as a young child, and the effects on the appellant.
[11] Accordingly, in order to properly decide the issues on appeal, we accept the need for the further evidence that has been tendered. Having reviewed the further report, we find it helpful and necessary, given the information that is mandated by Gladue.
[12] That said, we wish to note that it is evident -- both from the conduct of the sentencing hearing and the reasons for sentence - that the sentencing judge approached his task in a manner that was completely consistent with the principles enunciated in Gladue and the requirements of s. 718.2(e) of the Criminal Code. It would not have been apparent to the sentencing judge that the original pre-sentence report was deficient in that it failed to address adequately the appellant’s circumstances and background.
[13] Nonetheless, we would not interfere with the sentence imposed as it is, in all the circumstances, fit and appropriate. Given the serious violence of the offence and the extreme consequences to the victim, the sentence appropriately meets the need for denunciation and deterrence. It falls at the lower end of the range appropriate in this case and reflects the full benefit of the mitigating factors, despite the fact that the sentencing judge had a less fulsome explanation of those factors than that provided to this court.
Disposition
[14] Accordingly, the appeal is dismissed.
RELEASED: June 20, 2008 9 (“E.A.C.”)
“E.A. Cronk J.A.”
“E.E. Gillese J.A.”
“David Watt J.A.”