



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wittke, 2020 ONCA 835

DATE: 20201218

DOCKET: C62050

Hoy,
    Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zachary Wittke

Appellant

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 appellants
    sentence remain unaltered. In the circumstances, it is not necessary to
    consider the Crowns application to admit fresh evidence.

Alexandra Hoy J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


