R v Lyta, 2013 NUCA 10

In the Court of Appeal of Nunavut Citation: R v Lyta, 2013 NUCA 10 Date: 201310 Docket: 08-13-001 CAP Registry: Icialuit Between: Her Majesty the Queen Appellant - and - David Lyta Respondent The Court: The Honourable Madam Justice Constance Hunt The Honourable Mr. Justice Clifton O'Brien The Honourable Mr. Justice Frans Slatter Memorandum of Judgment of The Honourable Madam Justice Hunt Concurred in by The Honourable Mr. Justice O'Brien Dissenting Memorandum of Judgment of The Honourable Mr. Justice Slatter Appeal from the Sentence by The Honourable Mr.

Justice Mahar Dated the 18th day of December, 2012 (2013 NUCJ 1 , 2013 NUCJ 01, Docket: 09-12-9) Memorandum of Judgment The Majority: [1] The Crown appeals the four-year sentence imposed on the respondent after he pleaded guilty to one count of intentionallydischarging a firearm into a place knowing that another person is present in the place contrary to Criminal Code, RSC 1985, c C-36, s244.2(1)(a): R v Lyta, 2013 NUCJ 1 (available on CanLII).

There is no appeal of the ancillary orders. [2] Among other things, the Crown raises the issue of how a sentencing judge should regard the four-year statutory minimum sentencefor this new offence enacted in 2009:

An Act to amend the Criminal Code (organized crime and protection ofjustice system participants),SC 2009, c 22, amending RSC 1985, c C-36. Facts [3] The facts are largely uncontroversial. On March 18, 2012, the only two members of the RCMP stationed in the small, isolatedcommunity of Kimmirut, NU were awakened during the night, along with members of their families, when shots were fired into theirresidences (adjoining units in a duplex). An RCMP officer, his wife and child were present in each residence. One child was three yearsold.

[4] The families took shelter in the safest part of their residences until the shooting stopped, then spent another two or three terrifyinghours trapped in their homes awaiting the arrival of help by plane from Iqaluit. Seven of the eleven shots fired by the respondent fromhis .22 caliber rifle hit the residences. [5] The respondent was 22 years old, aboriginal and had a previously good relationship with the RCMP. He was drunk and suicidalwhen he committed the offence. It was alleged by the defence, and not disputed by the Crown, that he did not intend to harm anyone. If itwere otherwise, of course, he could have been charged under other provisions of the Criminal Code such as

section 244, which carries alonger minimum sentence. He was eventually arrested without incident. It hardly needs to be said that it was extremely fortunate thatnone of the shots hit anyone. [6] The respondent entered an early guilty plea and consented to remaining in custody until sentencing. While in custody he attendedAlcoholics Anonymous and an Alternative to Violence Program.

No issue arises as to the 13.5 months credit given by the judge for pre-sentence custody (1.5 times the nine months in custody because the Baffin Correctional Institute where he was held is "notoriously over-crowded and under-resourced": Reasons at para 13). His previous record involved a 2008 break and enter when he took cigarettes, popand chips from a grocery store. [7] The central question is whether the judge should have imposed a sentence longer than the statutory minimum of four years. TheCrown had sought a sentence of eight years, a position it Page: 2 maintains on appeal.

Defence counsel had suggested an additional four years from the date of sentencing submissions (in other words,without credit for time served) and does not resile from this position on appeal. Sentencing Reasons [8] The judge reserved to consider, among other things, the victim impact statements and the "prevalence of gun crime directed atpolice officers in Nunavut": Transcript at 86/21-24. [9] The judge said that minimum sentences are not starting points, nor is the minimum reserved for the least serious offence and theleast culpable offender.

He said that all sentences must take account of the principles in s 718 of the Criminal Code, and s 718.2(

e) andrelevant jurisprudence (R v Gladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385 and R v Ipeelee, 2012 SCC 13,[2012] 1 SCR 433) when an aboriginal offender is involved. He said that "[a] greater sentence [than the statutory minimum] should onlybe given in those cases where, after proper consideration of the principles of sentencing, a sentence beyond the statutory minimum wouldbe necessary": para 8. [10] He acknowledged that the offence was "extremely serious" and terrorized the members and their families: para 9.

He also noted thestrong need for a denunciatory sentence when there is an attack on the police, especially when a firearm is used: para 10. [11] Although he expressed the view that the crime was terrible, he took account of the respondent's age and minor previous record.These factors as well as his remorse, early guilty plea and being of aboriginal descent argued in favour of restraint. [12] He concluded that the four-year minimum sentence was sufficient for denunciation and general and specific deterrence.

A longersentence would be "unnecessarily harsh" and give only minimal weight to the guilty plea and the offender's aboriginal background: para12. He imposed a DNA order and a mandatory life-time firearms prohibition: para 14. As mentioned, he deducted 13.5 months from thefour-year sentence as credit for the pre-sentence custody.

Standard of Review [13] An appellate court is obliged to defer to a sentencing judge's decision unless there is an error of principle, the sentence isdemonstrably unfit, or the judge failed to consider a relevant factor or overemphasized appropriate factors: R v M (CA), (SCC), [1996] 1 SCR 500, 105 CCC (3d) 327. Analysis [14] The Crown puts forward two grounds of appeal. First, the sentence is demonstrably unfit and second, the trial judge erred in findingthat statutory minimum sentences are not reserved for the best offender.

Page: 3 [15] On the second point, the Crown urges us to adopt statements found in the minority reasons of Arbour J in R v Morrisey, 2000 SCC39, [2000] 2 SCR 90, (a case about whether a statutory minimum sentence constituted cruel and unusual punishment) to conclude thatonly the so-called "best" offender should receive the statutory minimum sentence.

The Crown argues that the respondent cannot beconsidered a "best offender", because of the circumstances of the offence (not because of his personal characteristics). [16] Although we find it unnecessary to rule on this "best" offender submission, we reject the sentencing judge's approach to statutoryminimums in one respect. His reasons state that a sentence higher than the statutory minimum should be imposed only if a considerationof the sentencing principles suggests a higher sentence would be necessary.

We take this to mean that an appropriate sentence can bederived from general sentencing principles, without considering that Parliament has mandated a minimum sentence. With respect, thisapproach 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 beenParliament's intention. [17] Rather, the existence of a statutory minimum is a factor that must be put into the mix when applying the general sentencingprovisions of the Criminal Code to a particular offender. It clearly narrows the available range of sentences and, over time, will no doubtlead to inflating sentences for such offences: R v Guha, 2012 BCCA 423 at para 33, 328 BCAC 303. To say that, however, is notnecessarily to accept the "best offender" approach urged by the Crown.

Among other problems with the Crown's approach is the fact thatin Morrisey "Arbour J. did not define what she meant by `best offender': R v McAnuff, 2011 ONSC 4051 at para 22 (available onCan111).

"What she did make clear is that the minimum sentence should not serve as the standard sentence only to be exceeded in thevery worst circumstances": ibid. [18] Turning to the fitness of the sentence, we agree with the Crown that in all the circumstances the sentence should have been higher.Although the judge took proper account of a number of matters, in our view he overlooked or gave inadequate weight to severalsignificant aggravating factors. [19] In particular, he gave inadequate weight to the fact that the respondent's attack was on residences occupied by RCMP members andtheir families.

Acknowledging, as he did, that what happened was "terrible" and "extremely serious" is not the same as imposing asentence that is "usually ... at the higher end of the range permitted by Parliament" because the offence has been committed against apolice officer — let alone police officers and their families: R v Kelly (1994), 1994 ABCA 168 , 149 AR 273 at para 18, 90CCC (3d) 444 (CA).

Nor did he specifically consider the number of shots fired or the period of time over which the shots were directedat the homes and the families obliged to await help from Iqaluit. [20] The prevalence of a particular offence in a particular area is a relevant factor to be taken into account in the sentencing process: R vMitchell (1981), (NS CA), 46 NSR (2d) 241, 89 APR 241 (CA); R v Johnas (1982), 1982 ABCA 331 , 41AR 183, 2 CCC (3d) 490 (CA). [21] Although the entire weight of what had previously happened in the same community (the killing of an RCMP member and anotherserious gun incident directed at the police) cannot be Page: 4 placed on the shoulders of this offender, the circumstances cry out for a denunciatory sentence beyond the mandatory minimum.

Shortlyafter this sentence was imposed, and partly as a result of the community's history, a sentence equivalent to seven years was imposed for atargeted attack on the police in the same community: R v Utye, 2013 NUCJ 14 (available on CanLII).

The facts of that case were moreaggravating, in that the offender had three previous convictions for offences involving police officers and thus was considered to needspecific deterrence, and he fired more shots. [22] At the same time, other Nunavut offenders using firearms have been given mandatory minimum sentences for such offences, alongwith consecutive sentences for other offences, see e.g., R v Paniuk (8 February 2013), Iqaluit 17-12-15, 17-12-46 (NU SC); R v Sangoya(4 April 2002), Pond Inlet 11-01-108, (NU SC).

In Sangoya, however, the mandatory minimum sentence was over and above the pre-sentence custody. [23] Utye and a number of other cases cited to us underscore the vulnerability of the police in isolated northern communities and the factthat more than the mandatory minimum sentence was required to send a message to the public and this offender that crimes against thepolice will be treated severely by the courts. [24] The judge appropriately took account of the respondent's relative youth, aboriginal status, guilty plea, remorse, minor record andunfortunate family background.

We give considerable deference to the weight he placed on these matters. [25] While an even higher sentence might have been imposed, under all the circumstances we consider that a sentence in line with thesubmissions of defence counsel at sentencing (i.e., a further four years) is appropriate. Conclusion [26] Accordingly, we grant leave to appeal and substitute a sentence of five years. From that should be deducted the 13.5 months pre-sentence custody credited by the judge. Appeal heard on September 24, 2013 Memorandum filed at Iqaluit, Nunavut this day of October, 2013 "Hunt, J.A." "O'Brien, LA." Hunt J.A.

Page: 5 Slatter J.A. (dissenting):

[27] This is a Crown appeal from a minimum sentence imposed upon the respondent for firing shots into a building, knowing that it wasoccupied. Facts [28] The facts are set out in greater detail in the majority reasons. Kimmirut is a small community of about 400 people on the southshore of Baffin Island. The population is over 90% Inuit. The community is remote, the only effective transport being a flight fromIqaluit. [29] Two RCMP officers are assigned to Kimmirut. They live with their families in a duplex in the community.

They essentially have nobackup, as any police or medical assistance must come from Igaluit. [30] During the evening of March 18, 2012 the respondent, who had been drinking and was suicidal, walked up the hill to the duplexand began firing shots. Initially he fired shots over the house, but he also fired seven shots into the house. [31] Constable Olson was in one side of the duplex with his wife, who was a teacher in the community, and his son who happened to bevisiting. His son was awakened by the sounds of gunfire penetrating the kitchen and bedroom windows.

He woke up his parents, and thefamily retreated to the room farthest away from where the shots were being fired. Once the shooting stopped, Constable Olson was ableto contact Iqaluit for assistance. [32] Constable Nolan was in the other side of the duplex with his wife (also a teacher) and his three-year-old child. His wife wasawakened by the noise of bullets going through the glass window into her son's bedroom.

Constable Nolan tried to contact ConstableOlson, but instead spoke to Icialuit, and also retreated to the bathroom and sheltered in the bathtub with his family. [33] The two families then waited until the Emergency Response Team arrived from Iqaluit several hours later. After lengthynegotiations, the respondent emerged from his aunt's house and surrendered. [34] As a result of these events, the respondent was charged with an offence added to the Criminal Code in 2009: 244.2

(1) Every person commits an offence (

a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present inthe place; or (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.

(2) For the purpose of paragraph (1)(a), "place" means any building or structure — or part of one — or any motor vehicle, vessel,aircraft, railway vehicle, container or trailer. Page: 6

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of,at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to aminimum punishment of imprisonment for a term of (

i) five years, in the case of a first offence, and (ii) seven years, in the case of a second or subsequent offence; and (

b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for aterm of four years. (4) [determining whether a convicted person has committed a subsequent offence] The respondent promptly pled guilty to the charge, thereby exposing himself to the minimum sentence of 4 years, and the maximumsentence of 14 years. [35] At the sentencing the Crown took the position that an 8 year sentence was appropriate. The defence argued for a 4 year sentence inaddition to pretrial custody credit of 13.5 months, effectively a sentence of a little over 5 years.

The sentencing judge imposed theminimum sentence of four years, and then deducted pretrial custody credit of 13.5 months, effectively imposing a sentence shorter thanthat even suggested by the defence: R. v Lyta, 2013 NUCJ 1 , 2013 NUCJ 01. Standard of Review [36] Sentencing decisions attract considerable deference: R. v C.A.M., (SCC), [1996] 1 SCR 500 at paras. 89-90; R. vL.M., 2008 SCC 31 at para. 14, [2008] 2 SCR 163.

Absent an error in principle, failure to consider a relevant factor, or an overemphasisof the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrablyunfit. [37] On careful consideration of the principles of sentencing, the sentence under appeal discloses reviewable error. While it mentions themany aggravating factors, the eventual sentence gives no or inadequate consideration to them. The sentencing judge over-emphasized the

few mitigating factors present, and under-emphasized the seriousness of the offence. The sentence also discloses an error of principle inthe method of dealing with minimum sentences. Minimum Sentences Page: 7 and a maximum sentence, they set the outer limits of the sentence. The numerous principles of sentencing set out in the Code must beapplied to find a fit sentence within that range. [39] The minimum sentence is not a starting point, nor a presumptive sentence, nor the "usual" sentence, just as the maximum sentenceis none of those things.

The sentencing judge erred when he held at para. 8 that: "A greater sentence should only be given in those caseswhere, after proper consideration of the principles of sentencing, a sentence beyond the statutory minimum would be necessary." [40] The existence of the minimum and a maximum do not displace the ordinary application of the other principles of sentencing. TheSupreme Court made this point in R. v Solowan, 2008 SCC 62 at para. 3, [2008] 3 SCR 309 with respect to maximum sentences: 3 The "worst offender, worst offence" principle invoked by the appellant in the Court of Appeal has been laid to rest.

It no longer operates as a constraint on the imposition of a maximum sentence where amaximum sentence is otherwise appropriate, bearing in mind the principles of sentencing set out in

Part XXIII of the Criminal Code,R.S.C. 1985, c. C-46: R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16; R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31.Unwarranted resort to maximum sentences is adequately precluded by a proper application of those principles, notably the fundamentalprinciple of proportionality set out in s. 718.1 of the Code, and Parliament's direction in s. 718.2(

d) and (

e) to impose the least restrictivesanction appropriate in the circumstances: see R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. By analogy, in the presence of a statutory minimum, the appropriate sentence should be imposed considering the principles set out in theCode, having regard to the range defined by the minimum and maximum: R. v Morrisey, 2000 SCC 39 at para. 75, [2000] 2 SCR 90; R.v Guha, 2012 BCCA 423 at para. 33, 328 BCAC 303.

It is not possible to sweep away those other principles of sentencing withaphorisms like "the minimum sentence is not reserved for the least serious offence and the least culpable offender". [41] Where Parliament amends the Code to add a minimum sentence to a crime, that should be taken as an indication that Parliamentregards the sentences previously imposed as being inconsistent with the principles of sentencing: R. v Nasogaluak, 2010 SCC 6 at para.45, [2010] 1 SCR 206. In those situations the minimum can be seen as an "inflationary floor": Morrisey at para. 75.

The introduction ofthe minimum shifts the range within which appropriate sentences will be found. That may not necessarily mandate longer sentences, ifqualitatively more onerous sentences are available: R. v Keough, 2012 ABCA 14 at para. 34, 57 Alta LR (5th) 68. [42] This case concerns a new offence, which was recently introduced into the Code with a 4 year minimum. This minimum cannot be areflection on prior sentences, but rather is an indication of the seriousness with which Parliament regards the newly created offence.

Theseriousness is obviously a reflection of the grave risk that firing gunshots into occupied buildings can have, as reflected by the tragicconsequences in cases like R. v D. WC., 2013 ABPC 112. Page: 8 The Appropriate Sentence [43] The sentencing judge erred when he treated the minimum sentence as a presumptive or default sentence. This Court must sentenceafresh. [44] The Criminal Code mandates in s. 718.1 that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

Offences involving firearms are to be regarded as being more serious, if only because Parliament haschosen to impose stem minimum sentences for many of them. Not only was this an offence involving a firearm, there were numerousaggravating factors. [45] The fact that the target of the shots were police officers is a seriously aggravating factor. The police represent the frontline of thesystem, and must often place themselves in harm's way in the discharge of their duties.

There are several offences in the Criminal Codethat provide specific protection to police officers, which is itself a reflection of this aggravating feature. It is doubly aggravating that theshots not only targeted the police officers, but their families. [46] It is a further aggravating fact that the shots here were fired into a dwelling. The offence in s. 244.2 relates to any "place", includingmotor vehicles, and if the place is an occupied private dwelling that is an aggravating factor.

As noted in R. v Matwiy, 1996 ABCA 63,178 AR 356, 105 CCC (3d) 251: 26 We are of the view that the home invasion robbery merits a higher starting point sentence than the armed robbery of a bank or commercial institution. While offences of violence are abhorrent wherever theyoccur, offences which strike at the right of members of the public to the security of their own homes and to freedom from intrusiontherein, must be treated with the utmost seriousness. Individuals in their own homes have few of the security devices available tocommercial institutions.

They are often alone, with little hope that help will arrive. Such offences, whether they result in injuries or not,are almost always terrifying, traumatic experiences for the occupants of the residence often leaving them with a total loss of any sense of

security. The law has always regarded violations of the private dwelling of a victim as being an aggravating feature. [47] The offence in s. 244.2 is made out by a single shot "into or at" a place. Multiple shots are a further aggravating factor. The respondent fired 4 shots at the duplex, and 7 shots into the duplex. [48] A compounding aggravating feature is the remoteness of this community.

Medical assistance and police backup were several hours away, enhancing the danger created by the respondent. [49] If the minimum 4 year sentence reflects anything, it is that general deterrence and denunciation are the primary sentencing principles to be applied in cases of violence with firearms. The involvement of a dwelling house, and the police, only emphasize that. Page: 9 [50] One particular manifestation of the sentencing principle of deterrence arises from the prevalence of the offence in the community.

Repeated occurrences of a serious offence warrant stiffer sentences as a deterrent to other like-minded individuals: R. v Seruhungo, 2012 ABCA 54 at para. 12 , 522 AR 346 ; R. v Hutchings, 2012 NLCA 2 at paras. 97-8 , 282 CCC (3d) 104 . There has been, unfortunately, a wave of violence in Nunavut against the police. The situation was summed up in R. v Utye , 2013 NUCJ 14 : 25 The Nunavut territory has experienced a number of targeted attacks on police and police detachments in the last decade. Many of these cases have involved armed confrontations and firearms offences against police officers.

In 2001 and again in 2007, members of the RCMP were shot to death in firearm related killings. 26 The case authorities filed by the Crown reference a number of firearm related cases. The case of Willie Ishultak in 2001 [Unpublished] was followed by the case of Salomonie Jaw in 2001 [Unpublished]; Rueben Sangoya in 2002 [Unpublished]; R. v. Kolola, 2010 NUCJ 4 , 2010 CarswellNun 1 [Kolola] ; the case of IS.0 in May 2010 (Youth Justice Court) [Unpublished]; R. v, Lyta, 2013 NUCJ 1 , [2012] Nu.J. No. 31 [Lyta] ; and R. v. Attutuva, 2013 NUCJ 10 , [2013] Nu.J. No. 13 .

This Court is aware of a number of other cases not referenced by the Crown in this sentencing hearing. 27 The case now before the Court for sentence is the fourth incident of its kind since 2007 involving the RCMP in Kimmirut. The case of Kolola involved the first degree murder of a young police constable who was shot while sitting inside a marked police vehicle. The case of J.S.U involved an armed confrontation with a member of the RCMP. A hunting rifle was pointed at the member in question in an extremely dangerous and volatile stand-off.

The case of Lyta involved the deliberate targeting of police residences at night with a high powered rifle. It involved multiple shots being directed at the police and their families while they lay sleeping. 28 This Court must attempt to address Nunavut's unique systemic problems through its sentencing posture. This Court reiterates what it said in the case of Kolola : The peace officer is charged with the responsibility to preserve and protect the peace and to enforce the law on behalf of others in the community.

In symbolic terms, an attack upon a peace officer is an assault upon the community for which they serve. It is an assault upon the rule of law. Those who take on the peace officer, those who challenge their authority, also challenge the law upon which this authority is based. Deliberate attacks upon police officers thus merit a severe response from the law and from the courts that administer this law. Denunciation and deterrence must be the foremost Page: 10 consideration of any court called upon to sentence individuals convicted of such attacks....

For many years, peace officers in Nunavut's small rural detachments have been required to carry out their duties alone or without adequate reinforcements. This was an operational reality of policing in Nunavut. This is now changing. But the reality is that the peace officer in Nunavut still remains a vulnerable target. The constable is not made of iron or steel. The peace officer can bruise, bleed and die, like any other human being.

Where duty puts the peace officer in harm's way there is a corresponding need for the courts to recognize this vulnerability through the sentencing process ( Kolola para. 16 - 17 ). 29 This Court's position in Kolola was a restatement of what this judge had said in the case of Rueben Sangoya (April 2002): Sentencing emphasis in the north upon general and specific deterrence is rooted in

part in the hard realities of northern policing. Reinforcements are not readily available in small detachments, particularly in response to life threatening emergencies. Those who deliberately target justice personnel can and should expect a severe response from both the intended targets and the courts. ...Police officers, of course are human beings. They have emotions. They have fears. They, too, have family members that can be hurt and killed. Those who deliberately expose police to the risk of death or severe injury can expect an emphasis on deterrence, not rehabilitation to follow from such an attack. (Sangoya transcript [unpublished decision], pg. 9 lines 5-10)

To emphasize the issue, not only is violence directed against the police prevalent in Nunavut, there have been four incidents in Kimmirutalone, this small community of 400 people. That factor alone makes the minimum sentence imposed by the sentencing judgedemonstrably unfit. [51]

Section 718.2 of the Criminal Code directs the sentencing court to consider the impact of the offence on the victim. The sentencingjudge noted that the respondent had "terrorized" and "traumatized" these families. The victim impact statements filed by them confirmthat it would be very difficult to put into words the immediate and long-term effects of this crime on them.

The trial judge, however, thenobserved that: "What happened was terrible, but it is also a terrible thing when a young aboriginal person of previous good character hasto be sent to the penitentiary." This observation does not give proper weight to the impact of the crime on the victims. The suggestionthat the respondent, by being held responsible for his actions, is in anything like an analogous situation to the victims reflects an error ofprinciple. Page: 11 [52] Considering all of these aggravating factors, imposing the minimum sentence on this respondent was demonstrably unfit.

If thisrespondent is entitled to the minimum sentence for this crime, then virtually every other person charged would be able to say "myoffence was less serious than Lyta". The minimum sentence would essentially become the only sentence. [53] There were also some mitigating factors that must be taken into account. Referring back to the wording of s. 718.1, the mitigatingfactors all related to the "degree of responsibility of the offender". They did nothing to minimize the "gravity of the offence". [54] The respondent is entitled to recognition of his early guilty plea, and his genuine expressions of remorse.

Those factors cannot,however, appreciably diminish the moral culpability of what he did. [55] It is not mitigating nor particularly relevant that no one was injured. The offence as defined in the Code is clearly directed at risk,not actual harm. If actual harm had resulted, the respondent would undoubtedly have been charged with different offences. [56] It is also not mitigating that the respondent stated he did not mean to harm the occupants of the dwellings, but was only seekinghelp. An intention to harm would undoubtedly be an aggravating factor, but the absence of that intention is not mitigating.

Further, thismethod of "seeking help" is so inherently inappropriate and dangerous that his motivation is not mitigating either. [57] The respondent is 22, and as such is younger than many offenders. He is perhaps on the cusp of being a "youthful" offender, but heis not so young that this can be a serious mitigating factor. [58] The respondent has no relevant prior record, which is also the absence of an aggravating factor. [59] The respondent had a difficult upbringing.

He apparently was raised in a family with an alcoholic stepfather who was abusive.While he is of aboriginal descent, it is difficult to apply the factors in R. v Gladue, (SCC), [1999] 1 SCR 688 and R. vIpeelee, 2012 SCC 13, [2012] 1 SCR 433 to a case like this. Virtually all the members of the community are aboriginal, and withoutbeing excessively pessimistic it is likely that there are many others who also had unfortunate upbringings. The RCMP are in thecommunity to ensure the security of all of the residents.

To the extent that there is the risk of criminal activity in the community, it is arisk that is borne by other aboriginal residents. It is difficult to see why the respondent should be able to assert his aboriginal heritage inmitigation for crimes committed against his aboriginal community and neighbours. The police are there to maintain the rule of law,which accrues to the benefit of all the residents of the community, including the aboriginal members. Ipeelee noted that consideration ofsystemic factors might not result in a different sentence.

Aboriginal offenders are to be sentenced in a manner that is meaningful to theaboriginal community. In this regard, there is no reason to recognize any different attitude towards sentencing in cases of violenceagainst the police. The nature of this crime (involving firearms, directed against the police) is one where the Gladue and Ipeelee factorscan have little weight. Page: 12 [60] Sentences should also have regard to other sentences imposed on like offenders in like circumstances: s. 718.2(b). Because violenceagainst the police is unfortunately common, there are numerous precedents to consider.

The facts of each differ, as do the circumstancesof the offender, and the particular offence involved. No clear pattern emerges, likely because the principles to be observed in cases likethis are not well established. [61] The sentence below is demonstrably unfit, and the appeal must be allowed. Having regard to the "gravity of the offence", thisoffence called for a sentence well above the minimum imposed by the sentencing judge. The 8 year sentence proposed by the Crownwas a better reflection of the principles of sentencing set out in the Criminal Code.

Considering the "degree of responsibility of theoffender", and the mitigating circumstances previously noted (particularly the prompt guilty plea), one year should be deducted, giving asentence of 7 years. The respondent is entitled to 13.5 months of credit for pre-sentencing custody. The appeal should be allowed, and asentence of 7 years (less 13.5 months credit) should be substituted. Appeal heard on September 24, 2013 Memorandum filed at Iqaluit, Nunavut this day of October, 2013 "Slatter, J.A."

Slatter J.A. Page: 13 Appearances: M.E. Bryant for the Appellant J.C. Morton for the Respondent