Court of Appeal for Ontario

Date: 2023-11-03 Docket: C70364

Fairburn A.C.J.O., Favreau and Copeland JJ.A.

Between

His Majesty the King Respondent

and

Jessy Mandino Appellant

Counsel: Najma Jamaldin, for the appellant Raoof Zamanifar, for the respondent

Heard and released orally: October 31, 2023

On appeal from the sentence imposed by Justice Cidalia C.G. Faria of the Ontario Court of Justice on January 10, 2022.

Reasons for Decision

[1] The appellant was convicted of two counts of break and enter. He entered the second house while a 17-year-old resident found herself home alone, terrified and locked in a bathroom calling the police. The appellant pled guilty to both counts. He received a 3-year sentence, less 18 months for presentence custody. This is an appeal from sentence.

[2] The appellant argues that the trial judge erred by incorrectly applying Gladue principles, largely because the trial judge is said to have failed in her duty to fill in evidentiary gaps in the record: R. v. Gladue, [1999] 1 S.C.R. 688, at para. 84.

[3] Aboriginal Legal Services said it was unable to assist the appellant with a Gladue report given that it could not confirm the appellant’s Indigenous descent. Upon returning to court six months after the guilty pleas were entered, the trial judge noted that the sentencing should proceed. She accepted the appellant’s Indigenous heritage and that it had impacted his moral culpability. However, she found that his Indigenous heritage was of no assistance in considering the possibilities for rehabilitation.

[4] The appellant contends that the trial judge should have done more to fill in the evidentiary gaps in relation to what might be available for rehabilitation. To do so would have required another adjournment.

[5] In the circumstances of this case, we disagree that this was required.

[6] The trial judge was under no obligation to adjourn. She specifically requested the assistance of defence counsel and received that assistance. Defence counsel put significant relevant information about the appellant’s Indigenous background before the court. As well, the trial judge specifically inquired about the availability of a rehabilitation program that the appellant could access. In response, defence counsel noted that there was an addiction program that the appellant had been pre-screened for, but that he did not wish to make this part of his sentence.

[7] We see no error in the trial judge’s approach in the circumstances of this case. In our view, the trial judge complied with her duties under Gladue.

[8] While the Crown respondent requests that the appeal be dismissed as moot because, at this stage, the appellant’s warrant expiry date has passed, in light of our reasoning above, there is no need to deal with this argument.

[9] Leave to appeal is granted. The appeal is dismissed.

“Fairburn A.C.J.O.”

“L. Favreau J.A.”

“J. Copeland J.A.”