R. v. Pameolik, 2020 NUCJ 10

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Pameolik, 2020 NUCJ 10 Date: 20200123 Docket: 14-20-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ruben Pameolik ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): J. Badali Counsel (Accused): S. Hayward Location Heard: Arviat, Nunavut Date Heard: January 7, 2020 Matters: Criminal Code of Canada, RSC 1985, c C-46, s. 320.14(2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [1] Mr. Pameolik has pleaded guilty to a charge of impaired driving causing bodily harm. At the sentencing hearing Crown andDefence counsel put forward a joint position on sentence of a $1000 fine and a period of probation that included a condition that Mr.Pameolik perform 40 hours of community service work. Counsel jointly requested that a driving prohibition not be imposed. II. THE LAW ON IMPAIRED DRIVING CAUSING BODILY HARM [2] The law on driving prohibitions in relation to impaired driving is curious.

If a person is convicted of impaired driving simpliciter,there is a mandatory driving prohibition of a minimum of one year. If a person is convicted of impaired driving causing bodily harm theimposition of a driving prohibition is discretionary. The “peculiarity” of this was noted by the court in R v Snooks, (NL PC) at para 36. [3] I have not been provided with, nor has my research disclosed, the policy reason as to why the driving prohibitions are mandatoryfor impaired driving simpliciter and discretionary for impaired driving causing bodily harm.

From a practical perspective, it is difficult toimagine a case of impaired driving causing bodily harm where a driving prohibition would not be imposed. III. THE LAW ON JOINT SUBMISSIONS [4] Joint submissions on sentence are both common and necessary to the smooth functioning of our criminal justice system. Counselwho negotiate joint submissions are well placed to consider the many factors that must be considered in such negotiations.

Counsel arefamiliar with the strengths and weaknesses of their case, they are familiar with the witnesses that will be called and any vulnerability orinterests that they may have, and they are familiar with the circumstances of the particular offender before the court. [5] One of the biggest benefits of a joint position on sentence for both Crown and Defence is certainty of outcome. Going to trialbears some risk for all parties. The outcome can never be certain.

In the context of a joint submission, each party gives up something inexchange for certainty of outcome. [6] The law is clear that a judge should rarely depart from a joint submission. The test for departing from a joint submission is high.

Asentencing judge should not depart from a joint submission unless the joint position would bring the administration of justice intodisrepute or would otherwise be contrary to the public interest. [7] Further, if a sentencing judge is inclined to depart from a joint submission, she should do so only after advising counsel of herconcerns and allowing counsel further opportunity to make submissions. If, after hearing further submissions regarding the jointsubmission the court is still inclined to depart from it, the accused should be given the opportunity to withdraw his guilty plea.

Finally,on those rare occasions when a court does depart from a joint submission, it must provide clear and cogent reasons for doing so. IV. THE FACTS [8] The allegations that support the conviction are that Mr. Pameolik was intoxicated and was driving an All Terrain Vehicle (ATV)with his girlfriend on the back as a passenger. It seems there was some tension or disagreement between them. As they were driving theycame upon the sister of the girlfriend walking along with the road with a few other people. They stopped to talk with them. The girlfriendagreed that she would go with her sister and got off the ATV.

She joined the group on the side of the road. Mr. Pameolik continued onhis way on the ATV. He then turned around and drove back in the direction towards the group. He was driving at approximately 15km/hour. As he got close to the group, his girlfriend's sister came out from behind the group, in front of the ATV. She was hit by the

ATV and her leg was broken. [ 9 ] The victim’s leg was in a cast for several weeks, she had ongoing medical treatment and a limited range of motion for some time. I am advised that she has fully recovered. V. PROCEDURAL HISTORY [ 10 ] The procedural history of this matter is important in order to understand the position of counsel. [ 11 ] Mr. Pameolik was initially charged with assault causing bodily harm. He entered a plea of not guilty to the charge and the matter was set for trial. The issue at trial was to be whether or not there was the necessary intent for an assault. In other words, did Mr.

Pameolik intentionally hit the victim with the ATV or was it essentially an accident as she unexpectedly stepped out into the path of the ATV. Had the matter gone to trial on the charge of assault causing bodily harm and had Mr. Pameolik been acquitted, he could not have subsequently been charged with impaired driving causing bodily harm. [ 12 ] During the circuit week that the trial was scheduled to proceed discussions between counsel led to the resolution. The Crown would lay a new Information charging the accused with impaired driving causing bodily harm, to which Mr.

Pameolik would plead guilty, and the joint position on sentence would be put to the court. [ 13 ] During the sentencing hearing I expressed concern about the lack of a driving prohibition. During this discussion with counsel I also expressed a view of the facts that suggested Mr. Pameolik intended to hit the victim with his ATV. Counsel provided me with further information and background in this regard and I accept that Mr. Pameolik did not intend to hit the victim. I accept that she unexpectedly stepped out from behind a group of people on the side of the road and Mr. Pameolik was unable to avoid her.

I do note however, that he has pleaded guilty to impaired driving causing bodily harm, so a causal link between the impairment and the bodily harm is admitted. [ 14 ] I advised counsel that I was still concerned about imposing a sentence that did not include a driving prohibition and stated that I was inclined to not follow the joint submission on this point.

Counsel were given the opportunity to consider their positions and give further submissions to the court or request some other relief. [ 15 ] Counsel discussed the matter and took the opportunity to provide further submissions to the court, jointly requesting an increase in the number of community service work hours from 40 hours to 100 hours, and additional conditions in the probation order that Mr. Pameolik drive only for hunting purposes and that he not drink.

Counsel were still in agreement that a driving prohibition should not be imposed. [ 16 ] Counsel did not want the opportunity to consider bringing an application to set aside the guilty plea or in some other way return to the situation as it had been prior to the agreement made by counsel. As Defence counsel put it, they were content to “leave it to the court”. VI. ANALYSIS [ 17 ] My research has suggested that there are few cases where a conviction for impaired driving causing bodily harm does not result in a jail sentence.

Prior to the 2018 amendments to the impaired driving provisions of the Criminal Code , impaired driving causing bodily harm was a straight indictable offence. It may well have been that many cases of impaired driving which resulted in bodily harm on the less serious end of the spectrum were proceeded with as impaired driving simpliciter, with the fact of bodily harm being put to the court as an aggravating factor.

With the change in the law to permit a charge of impaired driving causing bodily harm to be proceeded with either summarily or by indictment, it may be that we will see more of these offences with lesser bodily harm and accordingly, a shift in the sentencing regime.

[ 18 ] The test that I must apply when considering a departure from a joint submission is a high one. I am required to follow a joint submission unless following it would bring the administration of justice into disrepute or otherwise be contrary to the public interest. [ 19 ] In my view, the public interest to be considered in this matter is that of maintaining confidence in the justice system and the manner in which it treats similarly situated offenders. [ 20 ] Most of the impaired driving cases which come before the court are impaired simpliciter.

It is well known that if you are convicted of impaired driving you will be prohibited from driving. That driving prohibition, perhaps as much or more than any other aspect of the sentence, is hoped to have a deterrent effect, both on individual accused and in general. [ 21 ] There were four charges of impaired driving, including this one, on the docket in this community during this particular circuit. The other three charges were impaired simpliciter, involving two offenders. Each of those offenders received a driving prohibition.

I am very concerned about the message that court is sending if there is no driving prohibition in this matter. [ 22 ] I am also required to consider the impact of the joint submission on the administration of justice as viewed through the eyes of an informed citizen, one who understands the role joint submissions play in the criminal justice system and the various factors that might come in to play in negotiating them. [ 23 ] This particular matter is, as stated by Defence counsel, a true “quid pro quo”. This is not a case where a conviction on the offence charged was inevitable.

The accused in this case gave up more than his right to a trial. He gave up a reasonable opportunity for an acquittal.

I cannot lose sight of this in considering the appropriateness of the joint submission. [ 24 ] As stated by the Supreme Court of Canada in R v Anthony-Cook , 2016 SCC 43 at para 53 : The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. [ 25 ] I am prepared to accede to the joint submission as it was put to the court after having provided counsel with the opportunity to provide further submissions. [ 26 ] The sentence is:

a) A fine in the amount of $1000 with six months to pay;

b) Probation for a period of one year;

c) Keep the peace and be of good behavior;

d) Appear before the court when required to do so;

e) Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

f) Report to the probation officer within 5 days of today and thereafter as directed;

g) Perform 100 hours of community service work under the direction of the probation officer;

h) Abstain absolutely from the possession or consumption of alcohol; and

i) Do not drive any motor vehicle except for snowmobiles, ATVs, or boats and only for the purpose of hunting. Dated at the City of Iqaluit this 23rd day of January, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice