



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McWatters, 2019 ONCA 46

DATE: 20190124

DOCKET: C62979 & C65340

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald McWatters

Appellant

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
    appellants very long record which contains many convictions for similar
    offences. In effect, we are not persuaded that the trial judges 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.


