





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



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 courts 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 appellants 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.


