R. v. Towegishig

R. v. Towegishig Collection Decisions of the Court of Appeal Date 2008-05-01 Neutral citation 2008 ONCA 338 Docket numbers C48180 Judges Laskin, John Ivan; Simmons, Janet M.; Lang, Susan Elizabeth Subject Criminal Decision Content CITATION: R. v. Towegishig, 2008 ONCA 338 DATE: 20080501 DOCKET: C48180 COURT OF APPEAL FOR ONTARIO LASKIN, SIMMONS AND LANG JJ.A. BETWEEN: HER MAJESTY THE QUEEN Respondent and LEO TOWEGISHIG a.k.a TOWEGEKICK Appellant Johnathan Rudin and Mandy Eason for the appellant Eliott Behar for the respondent Heard and released orally: April 25, 2008 On appeal from sentence imposed by Justice Louise Gauthier of the Superior Court of Justice dated April 3, 2007. ENDORSEMENT [1] We agree with Mr. Rudin that the trial judge erred in principle by failing to take into account the appellant’s aboriginal background and upbringing, and s. 718(2)(e) of the Criminal Code in determining the length of the penitentiary term. This error in principle entitles us to consider afresh what is a fit sentence. [2] Determining a fit sentence on the facts of this case is difficult. On the one hand, as Mr. Behar points out, there are numerous aggravating factors. These include the seriousness of the offence itself, the significant position of trust the appellant occupied in the victim’s life, the life-long harm suffered by the victim at the hands of the only father she knew, and the appellant’s extensive criminal record. [3] We note in particular the details of the severity and seriousness of the offence. The appellant sexually abused his step-daughter over 100 times. He engaged in full sexual intercourse. He caused a pregnancy, which led to a miscarriage. He threatened her, if she disclosed the abuse. And, he also gave her drugs. [4] On the other hand, the appellant had a tragic upbringing, which included being sexually and physically abused at residential schools, being sexually abused by members of his family, witnessing the physical abuse of his brother, being forbidden from even speaking his native language, and having the spiritual practices of his people ridiculed as witchcraft. Undoubtedly, these considerations played a role in bringing the appellant before the court. [5] The appellant is now 65 years of age and has a number of physical ailments. As the trial judge fairly noted, he is unlikely to re-offend. Still, denunciation and general deterrence remain paramount sentencing objectives in this case. [6] Balancing these considerations as best we can, we conclude that a fit sentence is four years. [7] Accordingly leave to appeal sentence is granted and the appellant’s sentence is reduced to four years. Signature: “John Laskin J.A.” “Janet Simmons J.A.” “S.E. Lang J.A.”