CITATION: R. v. McKay, 2010 ONCA 323

DATE: 20100503

DOCKET: C51538

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and MacFarland JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Lyndon Thomas Alex McKay

Appellant

Jonathan Rudin and Mandy Wesley, for the appellant

Michelle Campbell, for the respondent

Heard & endorsed orally: April 29, 2010

On appeal from the sentence imposed by Justice P.T. Bishop of the Ontario Court of Justice dated July 20, 2009.

ENDORSEMENT

[1] The appellant seeks leave to appeal his sentence of 3 years and 4 months (in addition to 83 days of pre-trial custody) imposed following his plea of guilty to sexual assault.

[2] We do not accept the submission that the trial judge erred with respect to the principles of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688.

[3] The trial judge, very experienced in the area of dealing with aboriginal offenders, recognized the need for a Gladue report. He requested and obtained a pre-sentence report with a Gladue component to ensure that he had the relevant Gladue information especially as alcohol was a factor in this offence.

[4] We agree that the trial judge’s statement that the more serious the offence, the less applicable are the Gladue considerations is not an accurate reflection of the law: see R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207. However, we are satisfied that, at the end of the day, the trial judge applied Gladue correctly and that he did take the Gladue factors into account.

[5] In our view, the more complete Gladue report prepared for this appeal as fresh evidence does not materially add to the information that was before the trial judge. The fresh evidence elaborates many of the problems and challenges faced by aboriginal people, but it does not add significantly to this offender’s background. The trial judge was aware of the appellant’s early suicide attempt and of the fact that he was raised by his grandparents. The fresh evidence does relate an incident of sexual abuse suffered by the appellant, but we are not persuaded that that incident had any meaningful bearing on this offence.

[6] While alcohol was certainly a factor in this offence, the appellant does not appear to have a history of alcohol abuse. He was in a responsible position as a teacher’s assistant in the same school where the victim worked as a teacher.

[7] This was a very serious sexual assault involving repeated acts of forced anal and vaginal sex that had a devastating and enduring impact on the victim and her family.

[8] We are not persuaded that there is any basis upon which we can interfere with the sentence. Accordingly, leave to appeal sentence is granted, but the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”