R. v. Mainville, 2011 ONCA 383

CITATION: R. v. Mainville, 2011 ONCA 383

DATE: 20110517

DOCKET: C52585

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Becky-Jo Mainville

Appellant/Applicant

Counsel:

Katherine Hensel, for the appellant

Joanne Stuart, for the respondent

Heard and endorsed: May 16, 2011

On appeal from sentence imposed by Justice McKay of the Ontario court of Justice dated August 24, 2010.

APPEAL BOOK ENDORSEMENT

[1] In our view, this appeal must be allowed. The trial judge made errors in principle which requires this court’s intervention. Most importantly, although the appellant is aboriginal there was virtually no information that addressed the Gladue factors. Particularly if the trial judge intended not to accede to the position of the parties that there be a non-custodial sentence, he should have obtained the information that would be in a Gladue report. The material before us shows that the appellant’s aboriginal background and the impact of residential schools on her father, her and her community have been significant. As well, the fresh evidence shows that the use of oxycontin, which was the cause of the offence in this case, is pervasive in the community and has devastated that community.

[2] The trial judge also erred in treating this offence as a breach of trust. The complainant was no doubt vulnerable and dependent on the money from the settlements, but the relationship with the appellant was not the type of trust relationship that attracts the sentence principle applied by the trial judge.

[3] This was not a case for a jail sentence.

[4] Accordingly, the appeal is allowed and the sentence of imprisonment is reduced to time served. The 18 months probation order will stand on the same terms as imposed by the trial judge.