R. v. Ittinuar, 2013 NUCJ 26

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Ittinuar, 2013 NUCJ 26 Date: 20131029 Docket: 18-12-291 Registry: Rankin Inlet Crown: Her Majesty the Queen -and- Accused: Evangeline Ittinuar ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): M. Girard Counsel (Accused): K. Kellough Location Heard: Rankin Inlet, Nunavut Date Heard: September 19, 2013 Matters: Criminal Code, s. 255(5) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. BACKGROUND

[ 1 ] Ms. Ittinuar is charged with impaired driving and driving while the concentration of alcohol in her blood exceeded eighty milligrams of blood in one hundred millilitres of blood. [ 2 ] At the June, 2013 circuit in Rankin Inlet she appeared personally in court with counsel and entered a guilty plea to driving while the concentration of alcohol in her blood exceeded eighty milligrams of blood in one hundred millilitres of blood. The court was advised that an application would be made for a curative discharge, pursuant to s.255(5) of the Criminal Code, RSC 1985, c C-46 [Criminal Code].

The matter was set over to the September, 2013 circuit so that the application for a curative discharge could be prepared. [ 3 ] During the September, 2013 circuit, Ms. Ittinuar appeared with different counsel. An application was brought to set aside the guilty plea and set the matters for trial. The crown does not oppose the application. [ 4 ] In support of the application Ms. Ittinuar provided an affidavit in which she attests that the guilty plea was entered by her counsel without her knowledge or permission.

She states that she did not provide her counsel with instructions that amounted to an admission of the essential elements of the offence. She further attests that while she had discussions with her counsel regarding the curative discharge provisions set out in s. 255(5) of the Criminal Code , she was of the understanding that a successful curative discharge application would not result in a criminal record or a driving prohibition. [ 5 ] There is no evidence before the court to contradict these assertions. In particular, the crown has not sought any evidence from Ms.

Ittinuar's prior counsel as to the nature of their discussions. II. LAW ON SETTING ASIDE GUILTY PLEA [ 6 ] To be valid, a guilty plea must be voluntary, unequivocal, and informed. A voluntary plea is one which is entered without threats, pressure or inducement. What constitutes improper pressure or inducement sufficient to set aside a guilty plea will depend to some extent on the circumstances. For example, an accused may feel some pressure or feel that he is being induced to plead guilty in the context of a plea bargain because in so doing the crown will seek a lesser sentence or not proceed on all charges.

However, in most cases this would not be sufficient basis for setting aside the plea. There are pressures and benefits and disadvantages which flow from the nature of criminal proceedings and the various decisions that must be made throughout the process. Generally, these are not considered to undermine the voluntariness of the decisions made. [ 7 ] There is no suggestion that Ms. Ittinuar's ability to make a decision was impaired in any way. The plea was not unequivocal.

Indeed, counsel indicated on the record that a curative discharge would be sought, suggesting that a strategy for dealing with the charges had been established and a guilty plea was part of that strategy. [ 8 ] Ms. Ittinuar attests that she does not admit the allegations against her and that she did not instruct her counsel that she wished to plead guilty.

She attests that, although she had a series of meetings with her counsel in the four to five months leading up to the June court date, her counsel did not explain to her the difference between a guilty plea and a trial, although they did discuss the possibility of a curative discharge.

Even without contrary evidence it is difficult to accept that discussions with counsel would focus in on relatively complex sentencing options without having covered the basics of the criminal process. [ 9 ] A guilty plea must also be an informed plea, in that the accused must be aware that by entering a guilty plea she is admitting the essential elements of the offence and foregoing her right to have the crown prove the case.

An accused must also be aware of the consequences that will flow from a guilty plea, including the fact that a criminal conviction will be entered and the potential penalties that might be imposed. [ 10 ] The only evidence before the court is that Ms. Ittinuar was not fully aware of the consequences of being granted a curative discharge. She attests that she thought she would be required to attend residential treatment and pay a fine, following which the matter would “go away”.

She did not think she would have a criminal record, which is accurate, and she did not think she would lose her driver’s license, which is not accurate. Pursuant to s.259 of the Criminal Code , the offender would be prohibited from driving any

motorized vehicle for the applicable time period, as set out in the section. [ 11 ] From a practical perspective, it is also of note that this matter is at a very early stage of the proceedings. The application to set aside the plea is not being brought after a lengthy sentencing hearing and the imposition of sentence. It is the practice in this jurisdiction for the court to undertake an inquiry into the facts that support the plea.

If an accused does not admit the essential elements of the offence or if the court is not satisfied that the allegations make out the offence, the court will not accept the guilty plea and will set the matter for trial. Further, if there is a dispute on the facts that is significant enough to impact the sentence imposed the court will direct that a sentencing hearing be held to establish the facts. [ 12 ] In this matter, Ms. Ittinuar states that she is innocent, the natural inference being that the essential elements of the offence are not admitted.

Accordingly, the likelihood is that the court would not be able to accept the plea and would have to set the matter for trial in any event. [ 13 ] The application to strike the guilty plea is granted. Both counts on the Information will proceed to trial on November 18, 2013, in Rankin Inlet, if the crown can compel attendance of witnesses by then, failing which the matter will be spoken to on November 18, 2013, to set a trial date. Dated at the City of Iqaluit this 29th day of October, 2013 ________________________________ Madam Justice Susan T. Cooper