Court of Appeal for Ontario

DATE: 20210913 DOCKET: C68256

Feldman, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jerry Wawatie Appellant

Counsel: Jessica Smith Joy, counsel for the respondent Amy J. Ohler, counsel for the appellant

Heard: September 2, 2021 by video conference

On appeal from the sentence imposed on August 8, 2019 by Justice Peter K. Doody of the Ontario Court of Justice.

Reasons for Decision

[1] Mr. Wawatie pleaded guilty to aggravated assault and breach of probation arising out of a June 4, 2019 attack on his former intimate partner, an Indigenous woman. The attack occurred after Mr. Wawatie attended at her place of residence in violation of two separate court orders. He punched the complainant in the face, knocking her to the ground. He then held his knee on her neck, endangering her life by restricting her ability to breathe. She began to see spots and involuntarily urinated before the attack ended. She was left with multiple injuries.

[2] This was not Mr. Wawatie’s first offence relating to the complainant. He had repeatedly been convicted of breaching court orders prohibiting him from contacting her and attending her residence. He had also previously been convicted of being unlawfully in her dwelling house, causing mischief to her property, assaulting her, and assaulting her causing her bodily harm by breaking her wrist. Mr. Wawatie was convicted of the assault causing bodily harm only nine months prior to the June 4, 2019 offences.

[3] Mr. Wawatie has a long history of alcohol and substance abuse and he has serious mental health issues. Soon after his arrest his counsel concluded that his mental health was deteriorating. He sought a swift resolution of the charges, with a view to achieving a rehabilitative sentence for Mr. Wawatie at the St. Lawrence Valley Correctional and Treatment Centre. On June 19, 2019, he successfully arranged for Mr. Wawatie to enter a guilty plea in Ottawa’s Indigenous Peoples’ Court with a view to securing a report pursuant to s. 21 of the Mental Health Act, R.S.O. 1990, c. M-7, that would assist in securing the rehabilitative sentence he sought. After the s. 21 report was completed, that plea was struck and a new plea was entered before the trial judge, also in the Indigenous Peoples’ Court. After a plea inquiry, Mr. Wawatie was found guilty of both the aggravated assault and the breach of probation charges. On August 8, 2019, the trial judge rejected the defence submission for a reformatory sentence and sentenced Mr. Wawatie to 30 months’ imprisonment.

[4] Mr. Wawatie seeks leave to appeal that sentence. He argues that the trial judge erred by failing to apply the Gladue principles as required when sentencing Indigenous offenders. Those principles require a trial judge to consider not only the impact of an Indigenous offender’s unique systemic or background factors on their degree of responsibility, but also restorative and rehabilitative sanctions that may be appropriate because of the offender’s Indigenous heritage: R. v. Gladue, [1999] 1 S.C.R. 688, at para. 66. Mr. Wawatie submits that the trial judge failed to give due consideration to either of these required inquiries.

[5] We do not agree. Although the trial judge did not have a Gladue report before him, the s. 21 report included extensive, highly specific biographical information about Mr. Wawatie’s experience as an Indigenous man, including his connection to his culture, his traumatic and abusive upbringing, its link to intergenerational trauma, and the profound mental health and addiction challenges that have plagued Mr. Wawatie’s life. The report described how the significant trauma Mr. Wawatie had experienced, the behaviour he was exposed to, and his addictions, contributed to his low frustration tolerance and his inability to maintain control over his emotions. Commendably, the s. 21 report also expressed Mr. Wawatie’s desire for a culturally appropriate rehabilitative sentence and outlined the available options.

[6] Armed with this information, both Mr. Wawatie’s counsel and the Crown made submissions on the impact that the Gladue principles should have on sentencing. The trial judge inquired how he was to resolve the interplay between those principles and s. 718.04 of the Criminal Code. Section 718.04 requires sentencing judges to give primary consideration to denunciation and deterrence if the offence involved the abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female. The trial judge said, “I would have thought I had to take both into account in the particular circumstances of this offence and this offender”.

[7] It is clear from his sentencing reasons that the trial judge did so. He said explicitly that he had considered the Gladue principles. He also identified the role those principles play in identifying the moral culpability of the offender, and in encouraging alternative sanctions which may more effectively achieve the objectives of sentencing in the offender’s Indigenous community. Although he did not overtly address each of the relevant features of Mr. Wawatie’s background, or speak directly to the alternative sentencing options, he did not have to. This was an experienced trial judge sitting in a specialized Indigenous Peoples’ Court in a heavily burdened court system. Although he could have been more explicit, the reasons he provided were sufficient. There is no basis for concluding that he failed to give due consideration to the Gladue principles.

[8] Moreover, the trial judge was entitled to conclude that the Gladue principles that he had considered did not require a lesser sentence than would otherwise be the case, or a sentence more focused on rehabilitation. Mr. Wawatie had consistently terrorized the complainant. Prior efforts at his rehabilitation had failed, as had prior efforts to protect the complainant from Mr. Wawatie. The aggravated assault, in particular, was a grave offence and Mr. Wawatie’s level of violence was escalating in each assault. The sentence was fit and not unduly harsh.

[9] We grant Mr. Wawatie leave to appeal his sentence, but we dismiss his appeal.

“K. Feldman J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”