COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nahmabin, 2010 ONCA 737

DATE: 20101103

DOCKET: C51966

Rosenberg, Cronk and MacFarland JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

John Edward Nahmabin

Applicant (Appellant)

William Thompson, for the appellant

Amy Alyea, for the respondent

Heard and released orally: October 22, 2010

On appeal from sentence imposed by Justice A. E. McFadyen of the Ontario Court of Justice, dated January 11, 2010

ENDORSEMENT

[1] This appellant has had a tragic background that has led to almost continuous terms of imprisonment since a young age. He faces considerable challenges in dealing with substance abuse, anger management and commitment to treatment. That said, it is conceded that the trial judge erred in principle in failing to make further inquiries into the appellant’s aboriginal background and failing to take into account s. 718(2)(c) of the Criminal Code. In fairness to the trial judge, it does not appear that defence counsel at trial wished to have a Gladue report. The fresh evidence before this court in the form of a Gladue report and an updated report suggests a planned response to the appellant’s treatment needs resulting from the impact of systemic factors and the appellant’s personal needs.

[2] Accordingly, leave to appeal is granted, the appeal is allowed and the sentence of imprisonment is reduced to time served. The probation order will remain with the terms as set out by the trial judge and with additional terms that the appellant will reside with his father John Rogers until accepted by the KiiKeeWanNiiKaan Southwest Regional Healing Lodge, attend counselling weekly with Lila Bruyere and attend at the Healing Lodge if accepted by the Lodge.

Signed:

“M. Rosenberg J.A.”

“E. A. Cronk J.A.”

“J. MacFarland J.A.”