Court of Appeal for Ontario

Date: 2019-01-24

Docket: C62979 & C65340

Judges: Simmons, Lauwers and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Ronald McWatters Appellant

Counsel

Ronald McWatters, in person

Lindsay Daviau, duty counsel

Hannah Freeman, for the respondent

Heard and released orally: January 14, 2019

On appeal from the conviction entered on March 2, 2016, and the sentence imposed on November 10, 2016, by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of the following 15 offences: criminal negligence causing death; fail to remain at the scene of the collision; possession of property obtained by crime over $5,000 (i.e. a motor vehicle); possession of property obtained by crime under $5,000 (i.e. 18 beer kegs); and 11 counts of operating a motor vehicle contrary to s. 259(4) of the Criminal Code.

[2] He received a total sentence of 10 years and 3 months' imprisonment in addition to pre-sentence custody credited at 4.68 years for an effective sentence of 15 years' imprisonment. An order was also made under s. 743.6 of the Criminal Code recommending that the appellant serve half of his sentence before becoming eligible for parole. The trial judge also imposed the victim fine surcharge.

[3] At the hearing of this appeal, Mr. McWatters abandoned his appeal against conviction. That appeal is dismissed as abandoned.

[4] Mr. McWatters seeks leave to appeal his sentence on a number of grounds.

[5] First, Mr. McWatters argues that his credit for pre-sentence custody was miscalculated by the trial judge. We disagree. Crown and defence counsel had explicitly agreed to the amount of pre-sentence custody to be credited in this case.

[6] Second, Mr. McWatters argues that the overall length of his sentence was too long, especially having regard to his status as an Indigenous offender. In her helpful submissions, duty counsel (Ms. Daviau) argues that the sentencing judge erred by explicitly considering Mr. McWatters' lack of remorse to be an aggravating factor. We agree that this was an error. However, it was inconsequential. The trial judge referred to it when noting other aggravating and mitigating circumstances in this case. The trial judge took into account the very few factors that were helpful to the appellant, including his Indigenous offender status. However, any mitigating factors were overwhelmed by the many aggravating factors in this case, the most glaring of which was the appellant's very long record which contains many convictions for similar offences. In effect, we are not persuaded that the trial judge's error on the issue of remorse had any meaningful impact on the sentence that was imposed. Moreover, we consider the sentence to be fit.

[7] We are advised that Correctional Services Canada takes the position that the order made under s. 743.6 applies to the total sentence that was imposed. In our view, this is incorrect. We wish to clarify that according to the terms of s. 743.6 this order only applies to the sentence that was imposed for criminal negligence causing death. Finally, we agree that the victim fine surcharge should be set aside.

[8] Therefore, leave to appeal sentence is granted and the appeal is allowed, but only to the extent of clarifying the s. 743.6 issue and setting aside the victim fine surcharge. The appeal of quantum of sentence is otherwise dismissed.

"Janet Simmons J.A."

"P. Lauwers J.A."

"Gary Trotter J.A."