nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut

Citation: Date: Docket: Registry:

R. v. Lyta, 2013 NUCJ 01
20130110 09-12-9 Iqaluit

Crown:

Her Majesty The Queen
-and-

Accused:

David Lyta

______________________________________________________________________________ Before: Counsel (Crown): Counsel (Accused): Location Heard: Date Heard: Matters: The Honourable Mr. Justice A. Mahar P. Culver C. Lyons Iqaluit, Nunavut December 18, 2012 Criminal Code, s. 244.2(1)(a)

REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [1] David Lyta has entered a guilty plea to one count of Criminal Code section 244.2(1)(a), intentionally discharging a firearm into a place knowing that another person is present in the place. II. BACKGROUND [2] On March 18, 2012, RCMP members Larry Olson and Stephen Nolan and their families were sleeping in their residences, adjoining units in a duplex, in the Hamlet of Kimmirut. They awoke in the middle of the night to numerous shots being fired into their homes. Bullets from a .22 calibre rifle entered both the general living areas and two bedrooms at an upward angle, lodging in window frames and ceilings. One of the bedrooms was occupied by the 3 year old son of Stephen Nolan and Heather McCann, who heard glass breaking through a baby monitor. [3] The members had no way of knowing how many assailants were outside their homes or what sort of weapons were involved; all they knew was that they and their families were in extreme danger. They called Iqaluit for assistance and waited several long and terrifying hours for help to arrive. As Stephen Nolan wrote in his Victim Impact Statement, “We were trapped, alone, scared and frightened. I will never forget the scared look on my wife’s face as we sat on the bathroom floor”. [4] The shooter was someone they could not have anticipated. David Lyta, 22, worked at the Northern Store. He was not a problem for the RCMP and in fact had a friendly relationship with the members. On the night in question he was drunk and suicidal. He claims to have shot at the members’ homes in a perverse attempt to get help. It is claimed by the Defence and not contradicted by the Crown that he never intended to cause anyone harm. After the shooting was over, he left the area.

[5] The members, huddled in their homes, had no way of knowing any of this. The emergency response team arrived from Iqaluit. The accused was arrested without incident. At one point, he even contacted one of the victim members, essentially looking for help because of what he had done. [6] After arrest, David Lyta consented to his detention pending the outcome of this matter. He has been in custody ever since. A guilty plea was entered on October 2, 2012, on the date originally set aside for a preliminary inquiry. I am told that his intention at all times was to plead guilty and that the Crown was aware of this. [7] Section 244.2(1)(a) carries a minimum penalty of 4 years in the penitentiary. The Crown, Mr. Culver, seeks a sentence of 8 years. On behalf of David Lyta, Defence counsel Mr. Lyons suggests a sentence in the range of 4 years. Neither counsel takes issue with credit being given for remand time; although whether or not I should give enhanced credit is not agreed upon. III. ANALYSIS [8] Minimum sentences are not starting points; the minimum is not reserved for the least serious offence and the least culpable offender. Minimum sentences cast a wide net which catches a lot of different fish. All sentencings must take into account the fundamental principle of proportionality and the sentencing objectives in Section 718 of the Criminal Code. All sentencings of aboriginal offenders must also consider the remedial provisions of Section 718.2(e) and the principles laid out in the decisions of the Supreme Court of Canada in R v Gladue, [1999] 1 SCR 688, 133 CCC (3d) 385 [Gladue] and R v Ipeelie, 2012 SCC 13, [2012] SCJ No 13 [Ipeelie]. A greater sentence should only be given in those cases where, after proper consideration of the principles of sentencing, a sentence beyond the statutory minimum would be necessary.

[9] The events of March 18, 2012, were extremely serious. RCMP members Larry Olson and Stephen Nolan, as well as their families, were terrorized by David Lyta. They were all traumatized by these events and the emotional impact will likely be long lasting, especially for the officers who bear the additional burden of guilt for unknowingly placing their loved ones in harm’s way. That they were in no way responsible for what occurred does not make their feelings any less legitimate. The inexplicable character of the incident also had a lasting impact. David Lyta was a young man whom they got along with and liked. There was nothing predictable about this, which can only leave the victims more suspicious and less trusting. [10] The RCMP, and police officers generally, are tasked with the protection of the public and the maintenance of law and order. Any attack on the police is an attack on our civil society itself. There is a strong need for a denunciatory sentence in any case such as this, especially when a firearm is used. [11] On the other hand, David Lyta was only 22 years old at the time. He had a very minor criminal record. Prior to these events, he had a good relationship with the RCMP. He was extremely intoxicated and suicidal. He surrendered without incident. He entered a guilty plea, without any evidence being called. He is of aboriginal descent. All these factors must be taken into account and they argue in favour of restraint. IV. SENTENCE [12] What happened was terrible, but it is also a terrible thing when a young aboriginal person of previous good character has to be sent to the penitentiary. The 4 year minimum sentence is sufficiently harsh to meet the need for denunciation, as well as general and specific deterrence. A greater sentence beyond the minimum would be unnecessarily harsh. To impose such a sentence would require me to give minimal weight to the guilty plea of the accused, the guidance of the Supreme Court of Canada in Gladue and Ipeelie, and the remedial provisions of Section 718.2(e). The sentence of the Court is 4 years.

[13] I will now deal with the time the accused has spent in custody prior to today. I have heard nothing to suggest that the accused was attempting to prolong these matters, my discretion in this matter is not limited statutorily, and the Baffin Correctional Center, where he has been held, is notoriously over-crowded and under-resourced. I am going to exercise my discretion and apply 1.5 days credit against the 9 months to the day of remand time, for a total credit of 13 and ½ months. The time remaining to be served, by my count, is 34 and ½ months. [14] This is a primary designated offence and a DNA order follows. Under section 491, I order the weapon forfeited to the Crown for destruction. A firearms prohibition order is also mandatory under Section 109. The minimum is 10 years. Given the circumstances in this case, I make the prohibition for life. I do not make an exception under section 113. David Lyta has forfeited the privilege of possessing and owning firearms. Dated at the City of Iqaluit this 10th day of January, 2013

___________________ Justice A. Mahar Nunavut Court of Justice

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