R. v. Mikijuk, 2017 NUCA 5

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Mikijuk, 2017 NUCA 5 Date : 2017-09-22 Docket: 08-17-003 Registry : Iqaluit Between: Her Majesty the Queen Appellant -and- Jamie Mikijuk Respondent _______________________________________________________ The Court : The Honourable Mr. Justice Ronald Berger The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Frederica Schutz Memorandum of Judgment Appeal from the Sentence by

The Honourable Mr. Justice Paul Bychok Dated the 3rd day of February, 2017 MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. BERGER, J.A. FOR THE COURT [ 1 ] The respondent pleaded guilty and was sentenced to three years and eight months of imprisonment on a charge of intentionally discharging a firearm while being reckless as to the life or safety of another person contrary to s. 244.2(1) (

b) of the Criminal Code .

Section 244.2(3) (

b) of the Criminal Code imposes a mandatory minimum punishment (“MMP”) of four years.

In the Court below, the respondent did not mount a constitutional challenge to the MMP. [ 2 ] The Warrant of Committal on conviction and the Probation Order signed by the sentencing judge reflect 1,088 days deducted as credit for time served in pre-trial detention notwithstanding that at the time of sentencing the respondent had been in custody on remand for 645 real days and that accordingly, as the Crown concedes, 968 days were properly deducted from the sentence at the enhanced pre- sentence rate of 1.5:1. [ 3 ] In the result, the Crown submits that the trial judge erred in passing a sentence that is four months below the MMP.

We agree that the trial judge imposed an illegal sentence and that, as conceded by counsel for the respondent, appellate intervention is warranted. [ 4 ] In the result, the appeal is allowed, and a sentence of four years imprisonment is substituted, subject to a credit of 968 days from the date that the initial sentence was imposed. [ 5 ] We thank counsel for their kind assistance in resolving this appeal. Appeal heard on September 19, 2017 Memorandum filed at Iqaluit, Nunavut This 22nd day of September, 2017

Appearances: Ivan Nault for the Appellant William McNair for the Respondent