



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Wawatie, 2021 ONCA 609

DATE: 20210913

DOCKET: C68256

Feldman, Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerry Wawatie

Appellant

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. Wawaties 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 Ottawas
    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 offenders unique systemic or
    background factors on their degree of responsibility, but also restorative and
    rehabilitative sanctions that may be appropriate because of the offenders 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. Wawaties 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. Wawaties 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. Wawaties
    desire for a culturally appropriate rehabilitative sentence and outlined the available
    options.

[6]

Armed with this information, both Mr. Wawaties 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 offenders Indigenous community. Although
    he did not overtly address each of the relevant features of Mr. Wawaties
    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. Wawaties 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.


