



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ochrym, 2019 ONCA 272

DATE: 20190408

DOCKET: C65798

Feldman, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrell Ochrym

Appellant

Jessica Zita and Mitchell Huberman, for the appellant

Eric Whitford, for the respondent

Heard and released orally: April 5, 2019

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 appellants 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 judges 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 judges 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.


