R. v. Shamee, 2020 NUCJ 9

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Shamee, 2020 NUCJ 9 Date: 20200123 Docket: 14-19-71 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Christopher Shamee ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): G. Wool Counsel (Accused): S. Hayward Location Heard: Arviat, Nunavut Date Heard: January 6, 2020 Matters: Criminal Code of Canada, RSC 1985, c C-46, s. 320.24(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Christopher Shamee has pleaded guilty to a charge of impaired driving pursuant to s.320.24(1) of the Criminal Code . The Criminal Code provides for a mandatory minimum sentence of a $1000 fine and a one-year driving prohibition. Counsel are in agreement that the sentence imposed should be the mandatory minimum and not something greater. The issue relates to the terms of the one-year driving prohibition. [ 2 ] Mr. Shamee is employed as a haul truck driver at a mine site. A driving prohibition will impact his ability to continue that work.

Defence counsel requests that the driving prohibition be restricted to “cars and trucks”. Counsel submit that such a restriction would permit Mr. Shamee to continue working as a haul truck driver. II. ANALYSIS [ 3 ] The Criminal Code provisions relating to impaired driving underwent a major review and revision in 2018. The current provisions of the Criminal Code are those set out in

Part VIII.I, Offences Relating to Conveyances, which provide as follows: s. 320.24 (1): If an offender is found guilty of an offence under subsection 320.14(1) or 320.15(1), the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (2). s. 320.11: “conveyance means a motor vehicle, a vessel, an aircraft or railway equipment.” “vessel includes a hovercraft” [ 4 ] “Motor vehicle” and “railway equipment” are not defined in

PART VIII.I of the Criminal Code however, they are defined in s. 2 , which provides as follows: Motor vehicle is a vehicle that is drawn, propelled or driven by any means other than muscular power but does not include railway equipment. … railway equipment means

a) any machine that is constructed for movement exclusively on lines of railway, whether or not the machine is capable of independent motion, or

b) any vehicle that is constructed for movement both on and off lines of railway while the adaptations of that vehicle for movement on lines of railway are in use; (matériel ferroviaire) [ 5 ]

Part VIII of the Criminal Code , Offences Against The Person and Reputation, provides that “aircraft” does not include a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine.

[ 6 ] The

definitions of motor vehicle and railway equipment set out in s. 2 of the Criminal Code apply to

PART VIII.I of the Code as they are general

definitions that apply to all provisions of the Criminal Code unless a particular part provides for a different definition. [ 7 ] It is not necessary for the purposes of this decision to determine whether the qualification on the meaning of “aircraft” set out in

PART VIII of the Criminal Code applies to

PART VIII.I of the Criminal Code . [ 8 ] The definition of “conveyance” sets out four modes of transportation; motor vehicles, transportation over water (vessels), transportation through the air (aircraft), and transportation on rail lines. [ 9 ] It is arguable that not all of these modes of transportation are necessarily motorized modes of transport, although they usually will be. Indeed, under the earlier impaired driving provisions a conviction was entered for being impaired while paddling a canoe ( R v Sillars , 2018 ONCJ 816 ).

It is noteworthy that the original version of the Bill revising the impaired driving provisions specifically excluded non-motorized vessels from the definition of “conveyance”. That version of the Bill was subsequently amended to remove that limitation.

Again, this is an issue that will not be decided in the context of this case. [ 10 ] Defence counsel submits that the driving prohibition relates to the “type of conveyance in question” and permits the court to further restrict the driving prohibition to classes or types of conveyances within one of the four categories of conveyance set out in the Criminal Code . [ 11 ] For example, if an offender was operating a truck at the time of the offence, the driving prohibition could be restricted to only cars and trucks, thereby permitting him to continue operating snowmobiles and ATVs. [ 12 ] I do not accept this proposition. [ 13 ] The definition of “conveyance” clearly sets out four categories or types of conveyances.

In my view, there is no ambiguity that must be resolved in favour of the offender, as suggested by counsel.

While there may be some overlap between the categories (for example, a prohibition on driving “motor vehicles” arguably may include vessels that have motors, while not all “vessels” are necessarily motor vehicles”) and while there may be some judicial refinement in the future, this does not extend to essentially creating sub-categories of types of conveyances within those provided for in the legislation. [ 14 ] Such an approach could potentially lead to an endless number of “types” of conveyances and render a driving prohibition essentially meaningless.

While in this instance the prohibition requested is restricted to “cars and trucks”, there is nothing that would prevent further requests to have driving prohibitions apply only to cars or to a particular brand of car, etc.

This is not in keeping with the intent of the legislation. [ 15 ] I note as well that the legislation in force prior to the amendments provided for a mandatory driving prohibition “…prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment as the case may be.” The prohibition was for one of the listed modes of transportation, without any further categorization within a particular mode.

A review of new legislation as it made its way through the legislative process to becoming law indicates that the amendments were intended to provide for the enforcement of drug-impaired laws, to eliminate certain defences to charges, and to streamline the enforcement and court process. I have not been able to find any discussion of the driving prohibitions and changes to them. While this is certainly not conclusive of the matter, and could not override an otherwise proper

interpretation of the legislation, it does provide limited assistance in interpreting the legislation. III. CONCLUSION [ 16 ] The term “type of conveyance” in

section 320.24(1) refers to one of four types of conveyances; motor vehicles, vessels, aircraft, or

railway equipment. IV. SENTENCE [ 17 ] Mr. Shamee is found guilty of the charge of impaired driving. He will pay a fine of $1000. He will have six months within which to pay the fine. Mr. Shamee’s future employment situation is not certain. The victim of crime surcharge is waived for reasons of hardship. [ 18 ] Mr. Shamee will be prohibited from driving a motor vehicle for a period of one year. Dated at the City of Iqaluit this 23rd day of January, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice