Court of Appeal for Ontario

Date: 2019-04-05 Docket: C65798

Judges: Feldman, Trotter and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Terrell Ochrym Appellant

Counsel

For the Appellant: Jessica Zita and Mitchell Huberman

For the Respondent: Erica Whitford

Heard and Released Orally: April 5, 2019

On Appeal

On appeal from the sentence imposed on May 8, 2018 by Justice Graham Wakefield of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant's sentence appeal is based on the submission that the sentencing judge erred by imposing consecutive sentences on the drive while disqualified and possession for the purpose charges, when there was originally at the pre-trial a joint submission that included as a term that the sentences be concurrent. There was also an issue regarding the changing positions of the sentencing Crown.

[2] In our view, a close reading of the record discloses some uncertainty and lack of clarity regarding the sentencing judge's intention whether to make the sentences consecutive or concurrent. Crown counsel on the appeal has fairly conceded that the record is unclear on the issue and that the court may view it as such.

[3] We have concluded that we are not able to resolve the lack of clarity in the record on the issue of the sentencing judge's intent for consecutive or concurrent sentences.

[4] In the circumstances, the appeal is allowed and the sentence that was recorded is reduced to reflect concurrent sentences.

[5] Counsel have agreed that the sentence of incarceration should have been 556 days, which reflected time served plus one day, for possession for the purpose of trafficking, concurrent to the two years for the drive while disqualified, which would have left at the time of sentencing, 174 days to serve, plus three years' probation on the terms outlined by the trial judge, together with a driving prohibition of 10 years, a lifetime firearms prohibition and a DNA order. Those terms remain in place together with any other orders that the sentencing judge made at the time except for the victim fine surcharge.

K. Feldman J.A.

G.T. Trotter J.A.

Fairburn J.A.