R. v. Lyta (D.), (2013) 561 A.R. 146

• Judge: Hunt, O'Brien and Slatter, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: September 24, 2013
• Jurisdiction: Nunavut
• Citations: (2013), 561 A.R. 146;2013 NUCA 10

R. v. Lyta (D.) (2013), 561 A.R. 146; 594 W.A.C. 146 (NUCA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.081

Her Majesty the Queen (appellant) v. David Lyta (respondent)

(08-13-001 CAP; 2013 NUCA 10)

Indexed As: R. v. Lyta (D.)

Nunavut Court of Appeal

Hunt, O'Brien and Slatter, JJ.A.

October 15, 2013.

Summary:

The Crown appealed the four year sentence imposed on the accused after he pleaded guilty to one count of intentionally discharging a firearm into a place knowing that another person was present in the place (Criminal Code, s. 244.2(1)(a)). See 2013 NUCJ 1. Among other things, the Crown raised the issue of how a sentencing judge should regard the four year statutory minimum sentence for this new offence enacted in 2009.

The Nunavut Court of Appeal granted leave to appeal and substituted a five year sentence, less the 13.5 months' presentence custody credited by the sentencing judge. Slatter, J.A., dissenting, would have substituted a seven year sentence, less the credit for time served.

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - The Nunavut Court of Appeal stated that "[the sentencing judge's] reasons state that a sentence higher than the statutory minimum should be imposed only if a consideration of the sentencing principles suggests a higher sentence would be necessary. We take this to mean that an appropriate sentence can be derived from general sentencing principles, without considering that Parliament has mandated a minimum sentence. With respect, this approach seems to undervalue the existence of the statutory minimum and might be taken to mean that a higher than minimum sentence would be imposed only on an unusually bad offender committing an unusually bad offence. We do not consider that to have been Parliament's intention. Rather, the existence of a statutory minimum is a factor that must be put into the mix when applying the general sentencing provisions of the Criminal Code to a particular offender. It clearly narrows the available range of sentences and, over time, will no doubt lead to inflating sentences for such offences ..." - See paragraphs 16 and 17.

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5836 ].

Criminal Law - Topic 5836

Sentencing - Considerations on imposing sentence - Deterrence - Prevalence of similar crime - The only two RCMP members stationed in the small, isolated community of Kimmirut, Nunavut, were awakened during the night, along with members of their families, when shots were fired into their residences (adjoining duplex units) - The accused was 22 years old, aboriginal and had a previously good relationship with the RCMP - He was drunk and suicidal at the time - He did not intend to harm anyone - It was extremely fortunate that no one was hurt - The Crown appealed the four year sentence imposed on the accused after he pled guilty to one count of intentionally discharging a firearm into a place knowing that another person was present in the place (Criminal Code, s. 244.2(1)(a)) - The offence was subject to a four year statutory minimum sentence - The Nunavut Court of Appeal substituted a five year sentence, less the 13.5 months' presentence custody credited by the trial judge - The trial judge gave inadequate weight to the following aggravating factors: the attack was on residences occupied by RCMP members and their families; the number of shots fired; the period of time over which the shots were directed at the homes and the families were obliged to await help from Iqaluit; and the prevalence of offences involving police officers in this area - See paragraphs 1 to 26 - Slatter, J.A., dissenting, would have substituted a seven year sentence, less the credit for time served - See paragraphs 27 to 61.

Criminal Law - Topic 5877

Sentence - Dangerous or careless use of firearm - [See Criminal Law - Topic 5836 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - [See Criminal Law - Topic 5836 ].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [paras. 9, 59].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 2012 SCC 13, refd to. [paras. 9, 59].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [paras. 13, 36].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [paras. 15, 40].

R. v. Guha (M.D.) (2012), 328 B.C.A.C. 303; 558 W.A.C. 303; 2012 BCCA 423, refd to. [paras. 17, 40].

R. v. McAnuff (Z.L.), [2011] O.T.C. Uned. 4051; 2011 ONSC 4051, refd to. [para. 17].

R. v. Kelly (B.G.) (1994), 149 A.R. 273; 63 W.A.C. 273; 90 C.C.C.(3d) 444 (C.A.), folld. [para. 19].

R. v. Mitchell (1981), 46 N.S.R.(2d) 241; 89 A.P.R. 241; 23 C.R.(3d) 1, refd to. [para. 20].

R. v. Johnas et al. (1982), 41 A.R. 183; 2 C.C.C.(3d) 490; 1982 ABCA 331, refd to. [para. 20].

R. v. Utye, 2013 NUCJ 14, refd to. [paras. 21, 50].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 36].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 40].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 41].

R. v. Keough (J.A.) (2012), 519 A.R. 236; 539 W.A.C. 236; Alta. L.R.(5th) 68; 2012 ABCA 14, refd to. [para. 41].

R. v. D.W.C. et al., [2013] A.R. Uned. 362; 2013 ABPC 112, refd to. [para. 42].

R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C.(3d) 251; 1996 ABCA 63, refd to. [para. 46].

R. v. Seruhungo (J.W.) (2012), 522 A.R. 346; 544 W.A.C. 346; 2012 ABCA 54, refd to. [para. 50].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 50].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 244.2 [para. 34].

Counsel:

M.E. Bryant, for the appellant;

J.C. Morton, for the respondent.

This appeal was heard at Iqaluit, Nunavut, on September 24, 2013, by Hunt, O'Brien and Slatter, JJ.A., of the Nunavut Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on October 15, 2013, which was comprised of the following opinions:

Hunt, J.A. (O'Brien, J.A., concurring) - see paragraphs 1 to 26;

Slatter, J.A., dissenting - see paragraphs 27 to 61.