



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first reasonable opportunity, inform any
    witness under the age of eighteen years and the complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, make the order.

(3)
In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of information
    that could identify a victim, witness or justice system participant whose
    identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.N., 2013 ONCA 251

DATE: 20130423

DOCKET: C52395

Laskin, Blair and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.N.

Appellant

J.N., acting in person

Howard L. Krongold, as duty counsel

Frank Au, for the respondent

Heard: June 13, 2012

On appeal from the conviction entered on March 9, 2010
    and the sentence imposed on June 11, 2010 by Justice John A. Desotti of the Superior
    Court of Justice, sitting without a jury.

By the
    Court:

A.

introduction

[1]

The appellant was convicted of sexual assault, sexual interference and
    invitation to sexual touching for the prolonged abuse of his stepdaughter. His
    trial lawyer requested a
Gladue
report before sentencing, but none was
    provided because Aboriginal Legal Services could not confirm the appellants Aboriginal
    identity. The appellant was sentenced to seven years in prison less two years
    credit for pre-trial custody, for a total of five years.

[2]

The appellant appeals his conviction and sentence. We see no reviewable
    error in the trial judges reasons on conviction.  He properly applied the
    principles in
R. v. W.D
. He accepted the complainants evidence, and
    gave reasons for doing so.  Indeed, the complainants evidence was confirmed in
    several respects by her mother.  The trial judge rejected the appellants evidence,
    which he found vague and evasive.  The conviction appeal is dismissed.

[3]

On the sentence appeal the appellant seeks to file fresh evidence in the
    form of a
Gladue
report which, he submits, justifies a reduction in
    his sentence. The Crown concedes that the fresh evidence should be admitted but
    maintains that the original sentence is appropriate notwithstanding
Gladue
.

[4]

As we will explain, we are not persuaded that the fresh evidence affects
    the fitness of the appellants sentence for three reasons.

[5]

First, while the Crown accepts that the appellant is Aboriginal for the
    purpose of s. 718(2)(e) of the
Criminal Code
, in our view, his claim
    to the benefit of
Gladue
is weak.

[6]

Second, and related, the
Gladue
report is both general and
    speculative on the degree to which the appellants Aboriginal background may
    have contributed to his criminality.

[7]

Third, and most importantly, this is one of those cases where the crimes
    were so serious, and the aggravating factors so compelling, that the
    appellants ancestry makes little or no difference to the appropriate length of
    the sentence.

B.

BACKGROUND

(a)

The offences

[8]

This is a historical sexual assault case. The appellant lived in a
    common law relationship with the complainants mother in Sarnia, Ontario. The
    complainant testified, and the trial judge accepted, that the appellant began
    sexually abusing her when she was six or seven years old. The abuse occurred
    three or four times a week and consisted of the appellant touching and penetrating
    the complainants vagina with his fingers. There was also one incident of
    sexual intercourse. The abuse persisted until the complainant was fourteen
    years old, when the appellant was charged with assaulting the complainants
    mother. The complainant did not report the abuse to the police at that time
    because she did not feel emotionally strong enough.

[9]

The appellant testified and claimed to have no recollection of the
    events the complainant described. He also denied having a drinking problem
    despite abundant evidence to the contrary.

[10]

The
    trial judge found that the appellant either had memory problems or was
    purposely evasive about the events the complainant described. He also found
    that the appellant was and is heavily addicted to alcohol, which clouded his
    memory of undisputed events. By contrast, the trial judge found the
    complainants evidence detailed, descriptive and emotionally charged. He
    convicted the appellant on all counts.

(b)

The request for a
Gladue
report

[11]

Immediately
    following the trial judges verdict, the appellants lawyer told the court:
    [B]ased on what [the appellant] told me  he does have some native issues and
    the alcoholism at the very least is something that I think a
Gladue
report would be merited here. The trial judge agreed and scheduled the
    sentencing hearing to allow adequate time for preparation of the report.

(c)

The sentencing hearing

(1)

The absent
Gladue
report

[12]

When
    the parties reappeared for sentencing, counsel for the appellant advised the
    court that Aboriginal Legal Services did not complete a
Gladue
report
    on the basis that they couldnt confirm [his] Aboriginal identity. The mater
    was not discussed further and counsel proceeded to make their submissions.

(2)

Counsels submissions

[13]

The
    appellants lawyer acknowledged that his client was in a position of trust toward
    the complainant, that he had shown no remorse for his actions, and that he had
    a long criminal record. On the other side of the ledger he noted that none of the
    appellants previous convictions were for sexual offences and that he had a
    drinking problem, though the appellant continued to deny it. Counsel suggested
    that the ballpark range for sentence was between three and four years to
    eight and ten years.

[14]

The
    Crown submitted that given the nature of the offences, the age of the complainant,
    the prolonged pattern of abuse, the breach of trust, and the impact of the
    abuse on the complainant, a sentence in the range of seven years was
    appropriate.

(3)

The pre-sentence report

[15]

The
    pre-sentence report stated that the appellant was born in San Diego, California
    in 1959. His parents divorced when he was a child. He moved to Ontario in 1972
    when his mother married a Canadian man. The appellant reported that his mother
    was part Aboriginal and that while his Aboriginal ancestry is an important
    part of his background, he is not affiliated with any local reservation and
    does not have Aboriginal status in Canada. A
Gladue
caseworker advised
    that she was unable to confirm the appellants Aboriginal ancestry for
    sentencing purposes.

[16]

The
    appellant reported that he had a good childhood with no history of physical,
    emotional or sexual abuse. His mother was often a victim of domestic violence
    but he denied ever witnessing it. He also denied that his mother had any
    history of alcohol or drug addiction.

[17]

The
    appellant graduated from high school in Sarnia and then completed a six-month
    course in auto mechanics. He denied ever having been suspended or expelled from
    school but stated that he fought with other children and was sent out of class
    occasionally.

[18]

The
    appellant denied having a drinking problem, despite having been fined on 24
    occasions between 2006 and 2009 for alcohol-related offences.

[19]

The
    author of the pre-sentence report gave the following assessment:

Prior to his detention, the subject was unemployed and in
    receipt of social services. Probation and police records document a pattern of
    alcohol and drug abuse, domestic violence and non-compliance dating back to
    1981.

The subjects response to community supervision has been poor,
    and he has continued to re-offend within the community. He has consistently
    failed to attend counselling to address substance abuse or anger management.
    Although he has indicated that he would attend counselling if required as a
    condition of probation upon sentencing, he has denied any sexual offending
    behaviour and does not feel that he requires counselling.

(4)

The reasons for sentence

[20]

The
    sentencing judge held that the principles of denunciation and deterrence were
    paramount. Ultimately he sentenced the appellant to seven years on each of the
    four counts, to be served concurrently. He explained:

Seven years is from my perspective the low end of this range.
    Seven to ten years is where I was at. The Crown sought seven years, I am
    prepared to accept that. I just want to indicate that this is a horror crime.
    The last person that anyone should be abusing in a position of trust is their
    child, step-child or not.

[21]

The
    sentencing judge referenced decisions of this court on the appropriate
    sentencing range for sexual offences involving breaches of trust, and
    continued:

This conduct is to be expected, by any court, to be denounced
    and by any court to be deterred. So beyond the pale that it violates a
    communitys sensibilities. And for that reason it has to mete justice, the
    penalty has to be meted out in the most serious manner. As I said, seven to ten
    was the range I had and the Crown chose at the low end of that range.

C.

THE APPEAL

(a)

The s. 684 appointment and the search for information

[22]

The
    appellant filed a notice of appeal of his conviction and sentence. Legal Aid
    was refused and the matter came before this court on the inmate list, with Ms. Jill
    Presser acting as duty counsel. In November 2010, the court appointed Ms.
    Presser counsel under s. 684 of the
Criminal Code
for the limited purpose
    of investigating whether the appellant is Aboriginal for
Gladue
purposes
    and if so preparing the necessary fresh evidence for the sentence appeal.

[23]

Ms.
    Presser had a hard time obtaining information about the appellants Aboriginal
    background beyond his self-reporting that his mother always told him he had
    ancestors from the Cherokee and Apache tribes. He also noted that his
    stepfather is a full Native American and his half-sisters are half-Native,
    but the appellant was unable to point Ms. Presser to family members who could
    provide more information. The appellant signed a waiver authorizing Aboriginal
    Legal Services to share any information it had obtained prior to sentencing,
    but none was forthcoming.

[24]

Not
    content to let the matter rest, Ms. Presser hired a private investigator who
    was able to locate two of the appellants relatives, a sister and an uncle. The
    sister said she believed that one or both of the appellants parents may have
    been at least partially Aboriginal but she could not provide more concrete
    information. Similarly, the uncle said he believed the appellant might have
    some Aboriginal ancestry but he did not know for sure.

[25]

In
    August 2011, Ms. Presser brought an application on the appellants behalf
    seeking an order for a
Gladue
report. She submitted that the appellant
    met the criteria for recognition as a non-status Indian as set out by the
    Supreme Court in
R. v. Powley
, 2003 SCC 43, [2003] 2 S.C.R. 207: (1)
    self-identification as Aboriginal, where the self-identification is not of recent
    origin; (2) evidence of an ancestral connection to an Aboriginal community; and
    (3) evidence of acceptance by the modern Aboriginal community. This last
    criterion was satisfied in part through the report of an elder at the Bath
    Institution who attested to the appellants participation in an Aboriginal
    healing plan.

[26]

The
    application was allowed and the court ordered that a
Gladue
report be
    produced.

(b)

The fresh evidence

(1)

Authorship of the
Gladue
report

[27]

Despite
    her best efforts, Ms. Presser could not find someone to prepare the
Gladue
report and so she and her associate, Ms. Lucy Saunders, did it themselves. Ms.
    Saunders explained in her affidavit accompanying the report:

Unfortunately, it is not within the mandate of Aboriginal Legal
    Services to prepare
Gladue
reports for inmates in the Kingston area.
    Ms. Presser and I conducted extensive investigations to find a
Gladue
writer to assist with the preparation of the report. We contacted a number of
    organizations including the John Howard Society, Katarokwi Native Friendship
    Centre, the Ontario Federation of Indian Friendship Centres, the United Chiefs
    in Counsel of Manitoan, the Thunder Bay Native Friendship Centre, NAmerind
    Friendship Centre and Kingston Probation. We ultimately concluded that there
    was no organization or individual able to produce a
Gladue
report for
    an inmate in the Kingston area. [The appellant] was unwilling to waive his
Gladue
rights or his statutory rights under s. 718.2(e) of the
Criminal Code
.
    Consequently, Ms. Presser and I drafted and produced a
Gladue
report.
    Neither Ms. Presser nor I have experience as
Gladue
writers, and we
    are not of Aboriginal ancestry. However, for guidance we consulted extensive
    resources including precedent
Gladue
Reports drafted by ALS, journal
    articles, and a
Gladue
primer published by the Legal Services Society
    of British Columbia. We [researched] the resources available to [the appellant]
    in the community as an Aboriginal person with substance abuse issues. In
    addition, I conducted interviews with [the appellant] at Bath Institution, as
    well as the Aboriginal Liaison Officers and Elder at the penitentiary.

(2)

Content and conclusions of the
Gladue
report

[28]

The
    background information in the
Gladue
report mirrored the information
    in the pre-sentence report that was before the sentencing judge. It noted that the
    appellant had a good childhood with no history of physical, emotional or
    sexual abuse and that his mother had no history of addiction. The appellant reported
    that he did not feel poor because he always had a roof over his head and enough
    food on the table. He appreciated his mother and felt she did real good.
    Although he was teased in school because he was Aboriginal and American, he
    made a couple of good friends, both of whom were members of the Chippewa tribe.

[29]

The
    report went on to note that the appellant has been unable to maintain regular
    employment, primarily because of substance abuse issues. He has lost touch with
    all three of his long-term girlfriends and had not seen his only child, an
    adult daughter, since his incarceration in 2009.

[30]

Regarding
    the appellants Aboriginal ancestry, the report stated that he was raised not
    knowing much about his heritage and that he felt deeply disappointed by this
    disconnection. He regained a connection while at the Bath Institution, where
    he has been extremely active in the Aboriginal community.

[31]

The
    report discussed the role the appellants Aboriginal background may have had in
    bringing him before the court:

[S]ubstance abuse and the effects of community fragmentation,
    resulting in his and his familys estrangement from the Aboriginal community,
    have impacted on [the appellants] criminality.



While [the appellants] estrangement from the Aboriginal community
    means that he has not been effected [
sic
] as greatly by the cultural
    differences between Aboriginal and non-Aboriginal peoples, he does appear to
    have experienced racism to a certain degree, reporting that lack of acceptance
    of his Aboriginal ancestry caused some conflict at school. Moreover, such
    dislocation from the Aboriginal community is in itself an expression of
    colonialism and has been held by our Superior Court in
R. v. Prevost
to be a relevant factor for consideration.

[32]

The
    report recommended that the appellants sentence should be reduced from seven
    years to two years less a day, plus three years probation. Not coincidentally,
    this would spare him from being deported back to the United States:
    non-citizens who are sentenced to prison terms over two years are automatically
    marked for deportation to their countries of origin upon release.

[33]

The
    report also recommended that the appellant should be required to abstain from
    alcohol and continue to receive counselling for substance abuse, and
    participate in such Aboriginal community activities, rituals and education as
    recommended and approved by a probation officer.

(c)

Counsels submissions on appeal

[34]

At
    the appeal hearing in Kingston, duty counsel submitted that the sentencing
    judge erred by failing to obtain information about the appellants Aboriginal
    status before making his decision. Although the Crown did not concede this
    point, counsel agreed that this court should admit the fresh evidence. The real
    controversy was over what weight to give to the
Gladue
report in
    assessing the fitness of the appellants sentence.

[35]

Duty
    counsel submitted that the conclusions in the
Gladue
report support a
    reduction in the appellants sentence because, as he eloquently put it, the
    rehabilitative and restorative objectives of
Gladue
are not exhausted
    in this case. He pointed out that alcoholism is clearly a major contributor to the
    appellants criminality, and that the balance of his criminal record is for
    minor offences.

[36]

Duty
    counsel fairly conceded that a seven year sentence was certainly in the
    appropriate range for the prolonged abuse of the appellants stepdaughter and
    that the sentence recommended in the
Gladue
report was insufficient.
    Nevertheless, duty counsel submitted that this court should reduce the sentence
    in recognition that the appellants current regrettable state is attributable 
    at least to some extent  to his Aboriginal background.

[37]

The
    Crown submitted that given the seriousness of the offences, a seven year
    sentence is still appropriate notwithstanding
Gladue
. Counsel noted
    that the appellants background did not fit the classic
Gladue
pattern. Rather, his was a story of disconnection and reconnection to his Aboriginal
    heritage. Counsel submitted that the appellants disconnection from the Aboriginal
    community before his incarceration effectively neutralized the impact of
    systemic discrimination on him. At the same time, his reconnection since
    joining the Aboriginal community at the Bath Institution has given him a sense
    of belonging that he did not have before.

[38]

The
    Crown suggested that if this court is inclined to adjust the appellants
    sentence, any reduction should not exceed one year. He also noted that the
    appellant faces deportation regardless of the outcome of the sentence appeal,
    because the immigration consequences of his conviction have already been
    triggered. Moreover, counsel submitted that although deportation can be
    relevant to sentencing considerations, it cannot be used to take a sentence out
    of the appropriate range.

D.

ANALYSIS

[39]

As
    stated at the outset, we are not persuaded that the fresh evidence affects the
    fitness of the appellants sentence. We, therefore, dismiss the sentence appeal.

[40]

As
    a threshold matter we observe that although it may be unusual for counsel
    acting under a s. 684 appointment to prepare a
Gladue
report, this was
    an unusual case. In our view Ms. Presser and Ms. Saunders acted entirely
    appropriately in preparing the
Gladue
report and we commend them for
    their work.

(a)

Did the sentencing judge err by failing to inquire into the appellants Aboriginal
    background?

[41]

In
    Ontario, the law requires that a
Gladue
analysis be performed in
all
cases involving an Aboriginal offender:
R. v. Kakekagamick
(2006), 81
    O.R. (3d) 664 (C.A.), at para. 38 (emphasis in original). See also
R. v.
    Jensen
(2005), 74 O.R. (3d) 561 (C.A.), at para. 27.

[42]

In
R. v. Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207, the Supreme Court
    clarified the scope of a sentencing judges duty following
Gladue
, at
    para. 55:

[I]t was never the Court's intention, in setting out the
    appropriate methodology for this assessment, to transform the role of the
    sentencing judge into that of a board of inquiry. It must be remembered that in
    the reasons in
Gladue
, this affirmative obligation to make inquiries
    beyond the information contained in the pre-sentence report was limited to appropriate
    circumstances, and where such inquiries were practicable (para. 84). The
    application of s. 718.2(e) requires a practical inquiry, not an impractical
    one.
As with any other factual finding made by a court of first instance, the
    sentencing judge's assessment of whether further inquiries are either
    appropriate or practicable is accorded deference at the appellate level.
[Emphasis
    added.]

See also
R. v. Pelletier
, 2012 ONCA 566, 295
    O.A.C. 200, at para. 140.

[43]

In
    this case, the sentencing judge had been told that Aboriginal Legal Services
    could not confirm the appellants ancestry, and the appellant himself was
    unable to provide any further information. In these circumstances we are
    reluctant to second-guess the sentencing judges decision not to pursue the
    matter further. As noted above, the Crown has consented to the admission of the
Gladue
report as fresh evidence. The real controversy is over the
    weight to be given to the
Gladue
report.

(b)

Does the fresh evidence affect the fitness of the appellants sentence?

[44]

In
    our view the
Gladue
report should be given little weight and does not
    affect the fitness of the appellants sentence for three reasons.

[45]

First,
    although the Crown has conceded that the appellant is Aboriginal for
Gladue
purposes, it is not at all clear to us that this is correct. As we have
    explained, the appellant was born in San Diego and moved to Canada as a young
    teenager. Taking the evidence of his Aboriginal roots at its highest, it
    appears the appellant had some Cherokee and Apache ancestors. Both of these
    tribes are indigenous to the American south and are, so far as we can tell,
    distinct both from modern-day indigenous Canadian Aboriginal tribes and from
    other Native American tribes that straddle the U.S.-Canadian border.

[46]

As
    the Supreme Court explained in the
Gladue
decision itself, Aboriginal
    heritage is relevant to sentencing to account for the unique systemic and
    background factors which may have played a part in bringing the particular
    aboriginal offender before the courts (at para. 66). While one can generalize
    about the impact of colonialism on all Aboriginal peoples,
Gladue
is
    expressly intended to redress the consequences of colonialism in Canada  and
    particularly the devastating legacy of residential schools. Thus, we are
    sceptical that
Gladue
is applicable to an American-born offender who
    traces his Aboriginal ancestry to tribes indigenous to the United States.

[47]

Second,
    however, even assuming for the sake of argument that
Gladue
applies,
    the evidence that the appellants Aboriginal ancestry may have played a part in
    his criminality is weak. In coming to this conclusion, we are mindful of this
    courts direction in
R. v. Collins
, 2011 ONCA 182, 104 O.R. (3d) 241,
    at paras. 32-33, that an Aboriginal offender does not bear the burden of
    establishing a direct causal link between the systemic and background factors
    and the commission of the offence.
Gladue
simply requires that the
    sentencing judge take those systemic and background factors into account in
    shaping an appropriate sentence.

[48]

In
    this case, the evidence suggests that the appellants Aboriginal background
    played a minor role in bringing him before the court. By his own account, the
    appellant had a good childhood. He was cared for by a loving mother and did
    not suffer abuse. He had a solid academic attendance record and graduated high
    school, even going on to learn a trade. There is no evidence of a family
    history of addiction or sexual abuse. To the extent that the appellant reports
    having been bullied at school, it was because he was Aboriginal
and
    American
 (emphasis added). In short, there is nothing other than the
    appellants own evidence to suggest that his sense of dislocation from his Aboriginal
    heritage contributed to his criminal behaviour.

[49]

We
    acknowledge that in
R. v. Prevost
, 2008 CanLII 46920 (ONSC), at para.
    47, Ducharme J. observed that assimilation itself is relevant to the
Gladue
analysis as part of the broader historical reality experienced by Canadas Aboriginal
    peoples. In that case, there was evidence that the Metis offenders parents had
    actively discouraged him from identifying as Aboriginal because of his fathers
    own experience with discrimination. There is no comparable evidence in this
    case.

[50]

The
    most compelling evidence in the
Gladue
report about the appellants Aboriginal
    identity relates to his embrace of Aboriginal culture and traditions while in
    prison. Both the elder and the Aboriginal liaison officers at the Bath
    Institution report that the appellant has become a very active member of the Aboriginal
    community there. Through regular group ceremonies and one-on-one counselling, the
    appellant has gradually started to work through his history of addiction and
    physical abuse and is starting to feel like a more complete person, though he
    acknowledges that he needs to undertake further healing activities. In our
    view, this evidence suggests that a lengthy penitentiary term is facilitating the
    appellants rehabilitation, not frustrating it.

[51]

Finally,
    and most significantly, this is simply one of those cases where the crimes were
    so heinous, and the aggravating factors were so compelling, that the
    appellants Aboriginal status should not affect the length of the sentence
    imposed.

[52]

In
Gladue
the Supreme Court instructed, at paras. 79-80:

Generally, the more violent and serious the offence the more
    likely as a practical reality that the terms of imprisonment for aboriginals
    and non-aboriginals will be close to each other or the same, even taking into
    account their different concepts of sentencing.

As with all sentencing decisions, the sentencing of aboriginal
    offenders must proceed on an individual (or a case-by-case) basis: For this
    offence, committed by this offender, harming this victim, in this community,
    what is the appropriate sanction under the
Criminal Code
?

[53]

This
    court underscored the point in
Kakekagamick
, at paras. 34 and 36:

[I]t is not a mitigating factor on sentencing simply to be an
    Aboriginal offender. Nor is being an Aboriginal offender  a get out of jail
    free card.



[W]hile s. 718.2(e) requires a different methodology for
    assessing a fit sentence for an Aboriginal offender; it does not necessarily
    mandate a different result. The subsection does not alter the fundamental duty
    of the sentencing judge to impose a sentence that is fit for the offence and
    the offender. [Citation omitted.]

[54]

The
    appellant sexually abused his stepdaughter starting when she was six or seven
    years old. The abuse continued, week after week, year after year, until another
    act of violence  the appellants assault on the victims mother  finally
    brought it to an end.

[55]

In
R. v. D.D.
(2002), 58 O.R. (3d) 788, at para. 44, this court described
    a fit sentence for this sort of crime: [A]s a general rule, when adult
    offenders, in a position of trust, sexually abuse innocent young children on a
    regular and persistent basis over substantial periods of time, they can expect
    to receive mid to upper single digit penitentiary terms.

[56]

Applying
    this principle, there is no doubt that a seven-year sentence was appropriate in
    this case.

E.

CONCLUSION

[57]

Both
    the conviction and sentence appeal are dismissed.

Released: Apr 23, 2013                                          John
    Laskin J.A.

JL                                                                     R.A.
    Blair J.A.

Alexandra
    Hoy J.A.


