Citation: R v Nasikapow, 2016 MBCA 35 Date: 20160404 Docket: AR15-30-08396 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) A. K. Gowenlock ) for the Appellant Respondent ) ) D. L. Carlson ) for the Respondent - and - ) ) Written joint submission filed: ) March 31, 2016 NAZARETH NASIKAPOW ) ) Judgment delivered: (Accused) Appellant ) April 4, 2016 PER CURIAM [ 1 ] The only issue on this appeal is the constitutionality of section 719(3.1) the Criminal Code .

This Court in R v Kovich (GW); R v Bittern (CN) , 2016 MBCA 19 , held that the exemptions to enhanced credit for pre-sentence custody in section 719(3.1) were unconstitutional. In this case, the sentencing judge applied section 719(3.1) and refused to give the appellant enhanced credit for the time he served in pre-sentence custody. [ 2 ] As a result of Kovich; Bittern , the appellant applies for leave to appeal, and if leave is granted, he appeals his sentence of 1,095 days, seeking enhanced credit for pre-sentence custody at the rate of 1.5:1 as opposed to the rate of 1:1 that he received.

The sentencing judge granted a pre-sentence custody credit of 625 days based on the rate of 1:1, leaving a sentence of 470 days.

Applying the 1.5:1 rate to the 625 days the appellant spent in pre-sentence custody results in 937 days, less 15 days as agreed upon by counsel, thereby leaving 922 days of credit to be applied to his sentence of 1,095 days . [ 3 ] The Crown consents to the appeal and both parties consent to conducting this appeal in writing. [ 4 ] Accordingly, leave to appeal is granted and the appeal is allowed only to the extent that the sentence is varied to reflect pre-sentence custody credit of 922 days, for a resultant sentence of 173 days. All other aspects of the sentence remain the same. CJM JA JA