R. v. G.A., (1994) 115 Nfld. & P.E.I.R. 258 (NFCA)

• Judge: Goodridge, C.J.N., Gushue and Steele, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 26, 1994
• Jurisdiction: Newfoundland and Labrador
• Citations: (1994), 115 Nfld. & P.E.I.R. 258 (NFCA)

R. v. G.A. (1994), 115 Nfld. & P.E.I.R. 258 (NFCA);

    360 A.P.R. 258

MLB headnote and full text

Her Majesty The Queen (appellant) v. G.A. (respondent)

(1993 No. 54)

Indexed As: R. v. G.A.

Newfoundland Court of Appeal

Goodridge, C.J.N., Gushue and Steele, JJ.A.

January 26, 1994.

Summary:

An accused pleaded guilty to sexually assaulting his stepdaughter. The trial judge sentenced the accused to two years' impri­sonment, less a day, followed by 12 months' probation. The Crown appealed, raising the issue of whether, the accused, by reason of being Native, could be sentenced on a dif­ferent basis than others.

The Newfoundland Court of Appeal, con­cluded that a court must be aware of the culture, traditions and other facets of being Native that are relevant to the sentencing process. The court allowed the appeal in part, af­firm­ing the sentence of two years' im­prisonment, less a day, and increas­ing the probationary period to three years with additional condi­tions.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Native people - The Newfoundland Court of Appeal reviewed the relevance of aboriginal status to sen­tenc­ing - See paragraphs 35 to 49 - The court concluded that "[E]vidence of Native cul­ture and traditions may be pres­ented and considered where relevant to a sen­tence. Such evi­dence may have little or no weight. Where it has weight, it may be of mitigating or aggravating value. It is something to be weighed and considered with all other factors affecting sentence." - See para­graph 54.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Native people - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - An accused Innu pleaded guilty to sexually assaulting his stepdaughter - Five incidents, includ­ing sexual intercourse, while the daughter was 10 to 11 years old - The accused, born in 1965, was abused as a child by his alcoholic father - Supporting a wife and children - Stable family life - Former foster parent - Three prior convictions, including an assault on the stepdaughter, resulted in noncustodial sentences - Dia­betic - Anxious to receive counselling for alcohol problem and sexual deviance - Remorseful - Good candidate for proba­tion - The Newfoundland Court of Appeal, noting that the trial judge was influ­enced by the accused's Innu status, affirmed a sentence of two years' imprisonment less a day, but extended the probation period to three years with addi­tional conditions.

Cases Noticed:

R. v. Onalik (1987), 65 Nfld. & P.E.I.R. 74; 199 A.P.R. 74 (Nfld. C.A.), consd. [para. 36].

R. v. Fireman (1971), 4 C.C.C.(2d) 82 (Ont. C.A.), consd. [para. 38].

R. v. Naqitarvik (1986), 69 A.R. 1; 26 C.C.C.(3d) 193 (N.W.T.C.A.), consd. [para. 38].

R. v. Brown (C.R.) et al. (1992), 125 A.R. 150; 14 W.A.C. 150; 73 C.C.C.(3d) 242 (C.A.), consd. [para. 42].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, consd. [para. 46].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 245(b) [para. 21]; sect. 266(b) [para. 23]; sect. 271(1)(a) [para. 1]; sect. 430(4) [para. 22]; sect. 737(1) [para. 62].

Counsel:

Thomas Eagan, for the appellant;

Michael Crystal, for the respondent.

This appeal was heard on November 16, 1993, before Goodridge, C.J.N., Gushue and Steele, JJ.A., of the Newfoundland Court of Appeal.

Goodridge, C.J.N., delivered judgment for the Court of Appeal on January 26, 1994, and issued a subsequent addendum.