Court of Appeal for Ontario

Citation: R. v. Wittke, 2020 ONCA 835

Date: 2020-12-18

Docket: C62050

Before: Hoy, Trotter and Paciocco JJ.A.

Between:

Her Majesty the Queen Respondent

and

Zachary Wittke Appellant

Counsel:

Zachary Wittke, in person Brian Snell, appearing as duty counsel Hannah Freeman, for the respondent

Heard: December 10, 2020 by videoconference

On appeal from the sentence imposed by Justice Robert G. Selkirk of the Superior Court of Justice, on April 19, 2016.

Reasons for Decision

[1] The appellant entered pleas of guilty to the following offences: theft of a motor vehicle (Criminal Code, R.S.C. 1985, c. C-46, s. 333.1); possession of a weapon for a purpose dangerous to the public peace (s. 88); uttering a threat to members of the public (s. 264.1(1)(a)); threatening a justice system participant (s. 423.1(1)(b)); theft under $5,000 (s. 334(b)); and driving while disqualified (s. 259(4)). The trial judge imposed a jail sentence of two years less a day, followed by two years of probation. He also made ancillary orders, including a lifetime driving prohibition.

[2] The appellant appeals the imposition of the lifetime driving prohibition. Ms. Freeman for the Crown fairly concedes that the trial judge erred by purporting to impose a prohibition for life pursuant to what was then s. 259(1)(c) of the Criminal Code; the maximum length of a prohibition that was available in this case was five years: s. 259(1)(b). She submits that we should substitute a five-year prohibition for the order made by the trial judge. The appellant does not oppose this order.

[3] In our view, the nature of the offences committed by the appellant, along with his criminal record at the time of sentencing, which includes numerous driving-related offences, warrant the maximum prohibition in the circumstances – five years.

[4] Accordingly, the appeal against sentence is allowed to the extent that the lifetime driving prohibition is set aside. We substitute a prohibition of five years. All other aspects of the appellant’s sentence remain unaltered. In the circumstances, it is not necessary to consider the Crown’s application to admit fresh evidence.

"Alexandra Hoy J.A."

"Gary Trotter J.A."

"David M. Paciocco J.A."