R. v. Qiyuk et al., 2023 NUCJ 25

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Qiyuk et al. , 2023 NUCJ 25 Date: 20231123 Docket: 18-20-158 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Methuselah Qiyuk et al. __________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Counsel (Accused): E. Baasch P. Smith J. Rempel Location Heard: Date Heard: Iqaluit, Nunavut September 01, 2023 Matters: Constitutional challenge of

section 320.24 of the Criminal Code ; Canadian Charter of Rights and Freedoms ss. 7 , 12 , 15 . REASONS FOR DECISION I. INTRODUCTION [ 1 ] The four applicants, all Inuit hunters, have pleaded guilty to alcohol related driving offences. Among other punishments, each applicant is liable on sentence to be subjected to a mandatory one-year driving prohibition. [1] The applicants have applied to the Court to

have the driving prohibition declared to be in breach of section 35(1) of the Constitution Act [2] and sections 7 , 12 , and 15 of the Canadian Charter of Rights and Freedoms . [3] Stated simply, the applicants say that the mandatory driving prohibition violates their constitutional right to hunt country food. II. BACKGROUND [ 2 ] The underlying facts placed before the Court were sparse. Mr. Qiyuk, Robbie Pilakapsi, James Enuapik, and Brad Sigurdson each pleaded guilty to driving in Rankin Inlet while the concentration of alcohol in their blood exceeded the legal limit. Mr.

Sigurdson’s blood alcohol content when he was tested by the police was 170 milligrams of alcohol in 100 millilitres of blood. This was more than twice the legal limit. James Enuapik pleaded guilty to impaired driving in Whale Cove. The four applicants await their sentences pending the result of this application. [ 3 ] I heard the application on September 1, 2023. These are my reasons for decision. III. APPLICABLE LAW A. The applicants rely upon the following statutory provisions: i.

The Constitution Act Section 35(1) [ 4 ] The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. ii. The Canadian Charter of Rights and Freedoms

Section 7 / life, liberty, and security of the person [ 5 ] Everyone has the right to life, liberty and security of the person and the right not to deprived thereof except in accordance with the principles of fundamental justice.

Section 12 / cruel and unusual punishment [ 6 ] Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Section 15(1) / equality rights [ 7 ] Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disabilities.

B. The onus of proof [ 8 ] The onus or burden of proof lies with the applicants on a balance of probabilities. IV. THE POSITIONS OF THE PARTIES A. The applicants [ 9 ] Defence Counsel ground their application in the right of Inuit to hunt as codified in the Nunavut Land Claims Agreement. [4] [ 10 ] The applicants’ position was summarised by Defence Counsel as follows: The effects of the mandatory prohibition are grossly disproportionate to its public safety purpose. The provision prevents the [applicants] from exercising their aboriginal right to hunt, as protected under s. 35 of the Constitution .

Hunting is integral to Inuit culture and community living. The provision also prevents the [applicants] from hunting to feed themselves, their family, and their broader community.

This would exacerbate food insecurity for their families and the community . [5] [ 11 ] At the hearing, Defence Counsel stated: Prohibiting Inuit hunters from using this [mechanized] mode of transport, which is integral to the hunt, is unreasonable, and denies the Inuit the right to exercise the hunt in their preferred manner. [6] [ 12 ] This prohibition, Defence Counsel continued, constitutes both deprivation of the applicants’ liberty and security as well as cruel and unusual punishment. This is the “kernel” or “core” of their submission. [7] Charter

section 12 , they maintained, is “the main event.” [8] B. The Crown [ 13 ] The Crown’s position was stated succinctly: The Crown concedes that the applicants have demonstrated on a balance of probabilities that the mandatory imposition of the driving prohibition orders results in cruel and unusual punishment in their particular circumstances.

To the extent that the order would prevent the applicants from operating conveyances on public lands other than public roads, and thereby effectively prevent them from hunting in order to sustain themselves, their families and their communities for a minimum of one year, s. 320.24(1) of the Criminal Code violates s. 12 of the Charter . Since each violation will rarely be justified, the Crown does not seek to justify these violations under s. 1 of the Charter . [9] V. ISSUES [ 14 ] The application presents only one issue for decision which may be framed as a question: 1.

Does the Criminal Code mandatory driving prohibition constitute a breach of any of Charter sections 7 , 12 , or 15 ? [ 15 ] In my view, the answer to the question is no.

[ 16 ] Taken at their strongest, the applicants’ affidavits only establish that it will be inconvenient for them to organise hunting trips “in their preferred manner” [10] should they lose their driving privileges for one-year. The evidence does not support the conclusion stated by Crown and Defence Counsel that the applicants would be prevented from hunting through the imposition of the mandatory driving prohibition. VI. ANALYSIS [ 17 ] The mandatory driving prohibition has been a part of Canadian criminal law for many decades.

I start my analysis by noting that no affidavits were filed by Inuit hunters who have experienced the revocation of their driving privileges. [ 18 ] I first extract the relevant portions of the affidavit evidence pertaining to this issue before I turn to the legal tests I must apply to that evidence. A. Mr. Qiyuk [ 19 ] Mr.

Qiyuk “mostly” hunts with his father, two brothers and a friend. [11] He stated: The Criminal Code driving prohibition prejudices me because it prevents me from participating in the harvest and hunt of Nunavut Wildlife (sic) and the included travelling which is at the heart of my Inuit culture and way of life . [12] [ 20 ] Mr. Qiyuk does not explain how or why he would be prevented from hunting. B. Mr. Enuapik [ 21 ] Mr. Enuapik “mostly” hunts alone, but “occasionally” he hunts with others. [13] He stated: I expect that the Criminal Code driving prohibition will prejudice me.

It will prevent me from participating in the harvest and hunt of Nunavut Wildlife (sic) and the included travelling, which is at the heart of my Inuit culture and way of life . [14] [ 22 ] Significantly, he continued: I believe the option of someone else operating the ATV or snowmobile to a non-residential area may prejudice me greatly because it could prevent me from hunting according to the

schedule and places that I am accustomed to hunting. [15] [ 23 ] Mr. Enuapik did not attest to how or why the driving prohibition would prevent him from hunting. C. Mr. Pilakapsi [ 24 ] Mr. Pilakapsi hunts “frequently” with his three brothers, and no longer hunts alone since he suffered a stroke. [16] He noted: The arctic and sub-arctic terrain is rough. It is not safe for me to have a passenger ride along me on snowmobile (sic). If I carry passengers, they are in my sled. [17] [Emphasis added]

I shall return to this important point in a moment. [ 25 ] Mr. Pilakapsi does not assert that a driving prohibition would prevent him from hunting. D. Mr. Sigurdson [ 26 ] Mr. Sigurdson “mostly” hunts with his father, brother, and a friend. His father is the leader when they hunt. [18] He stated: I expect that the Criminal Code driving prohibition will prejudice me.

It will prevent me from participating in the harvest and hunt of Nunavut Wildlife (sic) and the included travelling with the Hunting Party (sic), which is at the heart of my Inuit culture and way of life . [19] [ 27 ] With respect to the impact of a driving prohibition: I believe the option of someone else operating the ATV/ROV (sic) or snowmobile to a non-residential area may prejudice me greatly because it may prevent me from hunting according to the customary Nunavut Wildlife (sic) schedule.

My driving prohibition will prejudice the Hunting Party (sic) because 3 of the 4 snowmobiles used during the hunt, are used to carry hunting supplies/equipment (sic) and 1 snowmobile is used to carry the harvest . [20] Imposition of a driving prohibition would also “prejudice me emotionally,” he continued, because “it will prevent me from participating in an integral family and event, (sic) which will likely cause me to feel lonely .” [21] [ 28 ] Mr. Sigurdson does not explain how or why he would be prevented from participating in a family event. E.

Gabriel Nirlungayuq [ 29 ] Defence Counsel also submitted an affidavit from another resident of Rankin Inlet, Mr. Nirlungayuq. Mr. Nirlungayuq is an experienced hunter who prefers to hunt “with friends for safety reasons.” [22] His 14-page affidavit provides an instructive overview of traditional and modern Inuit hunting practices, particularly around Rankin Inlet. However, Mr. Nirlungayuq does not express any opinion on the effects of the imposition of a driving prohibition on the applicants. F.

The applicable legal tests [ 30 ] The Supreme Court of Canada (Supreme Court) has articulated what the applicants must establish to ground a finding that a Charter right has been infringed. i. Charter

section 7 / life, liberty, and security of the person [ 31 ] As I have noted,

section 7 of the Charter guarantees that everyone in Canada “has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[ 32 ] To find that the mandatory driving prohibition violates their

section 7 rights the applicants must establish: that the law interferes with, or deprives them of, their life, liberty, or security of the person. Once they have established that s. 7 is engaged, they must then show that the deprivation in question is not in accordance with the principles of fundamental justice . [23] [ 33 ] I disagree with Defence Counsel that a driving prohibition impacts the applicants’ liberty interests because “it impacts their fundamental life choices, exercising their Aboriginal right to hunt …” [24] [ 34 ] The applicants shall remain free to hunt.

They will no doubt be inconvenienced during the period of the driving prohibition as they will have to rely on others in the hunting party to operate the motor vehicles. However, cooperation, flexibility, and ingenuity have always been hallmarks of the hunt. Furthermore, no evidence was led as to how the physical act of driving during a hunt, while perhaps desired, was fundamental or inherently personal to the individual applicants.

Section 7 is not infringed by the mandatory driving prohibition. [ 35 ] We cannot risk trivializing the Charter and the protections it affords by extending its coverage to every encounter between an individual and the state. As La Forest J stated in Godbout v. Longueil (City) when discussing the scope of

section 7 protections, …individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”.

Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence . [25] [ 36 ] The applicants, through their affidavit evidence, at best describe a personal preference to drive during hunts in their arguments advancing a

section 7 violation. No evidence was tendered which could lead me to conclude the act of manually driving a conveyance during a hunt was a fundamentally or inherently personal activity that engages the dignity and independence of the applicants. [ 37 ] The driving prohibition is a legitimate sentencing tool which emphasizes the primacy of denunciation and deterrence in cases of drinking and driving. As Cory J noted: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak, and destruction.

From the point of view of numbers alye, it has a far greater impact on Canadian society than any other crime. In terms of deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. [26] [ 38 ] Cory J continued to discuss the nature of driving as a licenced privilege rather than a constitutional right: In Galaske v. O'Donnell , … it was noted that the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence.

Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licensed right to drive. One of the prime responsibilities of a driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in a manner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driver who, by definition, endangers others. [27] [ 39 ] The applicants have failed to meet their burden respecting Charter

section 7 . ii. Charter

section 12 / cruel and unusual punishment [ 40 ]

Section 12 guarantees that everyone in Canada has the right not to be subjected to any cruel and unusual treatment or punishment. The essence of the right is the protection of the intrinsic human dignity and worth of every person. The applicants have claimed, and the Crown has conceded, that the Criminal Code ’s imposition of a mandatory one-year driving prohibition, following a conviction for impaired driving, violates

section 12 as it constitutes cruel and unusual punishment when imposed on Inuit sustenance hunters.

[ 41 ] To understand why the

section 12 arguments of Defence and Crown are untenable, the analysis must start with an understanding of the purpose of

section 12 . [ 42 ] In 2020, the Supreme Court was unanimous in stating that the purpose of

section 12 is: to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals . [28] [ 43 ] In R v Bissonnette , the Supreme Court expanded on what it had said in Quebec by explaining that: Although dignity is not recognized as an independent constitutional right, it is a fundamental value that serves as a guide for the

interpretation of all Charter rights. Generally speaking, the concept of dignity evokes the idea that every person has intrinsic worth and is therefore entitled to respect. This respect is owed to every individual, irrespective of their actions. [29] [ 44 ] It is through this lens of human dignity that the Supreme Court in Bissonnette recently considered the two prongs of the right not to be subjected to cruel and unusual punishment: 1. First, that the punishment not be so excessive as to be incompatible with human dignity; and 2.

Secondly, that the punishment not be intrinsically incompatible with human dignity. [30] [ 45 ] The first prong requires the applicants to establish that the driving prohibition is “grossly disproportionate to what would have been appropriate” either for the offender or for a different offender in a reasonable hypothetical case. [31] [ 46 ] This Court must first consider what constitutes a proportionate sentence having regard to the objectives and principles of sentencing.

Again, from Bissonnette I am instructed that the Court must then ask: whether the impugned provision (mandatory driving prohibition) requires it to impose a sentence that is grossly disproportionate to one that would be just and appropriate for the offender or for another offender in a reasonable hypothetical case. [32] If so, it is a violation of

section 12 . [ 47 ] As noted by Cory J above, impaired driving is a scourge on Canadian society, resulting yearly in the most social loss of all Criminal Code offences. A minimum one-year ban, following a conviction for impaired driving, is a fit and proper sentence to denounce and deter this crime. I am not being asked to impose a grossly disproportionate sentence on any of the applicants. [ 48 ] I now turn to whether the mandatory suspension would be grossly disproportionate to a reasonably hypothetical offender.

Defence Counsel presented the following reasonable hypothetical Inuk offender in support of their argument: one who hunts to provide the main source of food for themself and their family, struggles with poverty and severe food insecurity, and already had two impaired driving convictions. [33] [ 49 ] I note that by reason of the hypothetical offender’s third conviction he or she would be subject to a minimum three-year driving prohibition. [34]

[50] In my view, the reasonable hypothetical does not assist the applicants. [51] The evidence did not establish that a driving prohibition would prevent any of the applicants or a reasonable hypothetical offenderfrom hunting. The evidence established that the applicants and hypothetical offender would only have to be flexible in the future andcooperate with others to participate in the hunt.

Inconvenience cannot, and does not, conflate with constitutional infringement. [52] Again, I would find that the reasonable hypothetical accused, advanced by the defendants, would, at a minimum, be prohibitedfrom driving for at least three-years. There is no threat of a grossly disproportionate sentence being imposed due to the mandatorydriving prohibition in light of the harm the criminal act presents to society. The penalty passes the first branch of the

section 2 test. [53] The second prong of the

section 12 test deals with “a narrow class of punishments that are cruel and unusual by nature.” Thesepunishments will always be “grossly disproportionate” as they are an obvious affront to human dignity. Cruel and unusual punishment covers a category which includes corporal and capital punishments, amongst other penalties that are affronts to human dignity.[35] I againlook to the words of Cory J. in Galaske, where he states: “the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence”.

A one-year driving suspension is not a sentence that falls into this narrow category of crueland unusual punishments. [54] I find, despite the concession of the Crown, that the mandatory one-year driving prohibition does not violate

section 12. iii. Charter

section 15 / equality rights [55] This application is focused on a statutory provision which is clear, unambiguous, and of general application to all Canadians. Thequestion remains however, does it contravene the section 15(1) right of the applicants, as Inuit sustenance hunters, to equal protectionand equal benefit of the law without discrimination based on ethnicity? [56] A contextual analysis is required to determine this question. As Abella J stated recently: 16 The approach to s. 15 was most recently set out in Quebec (Attorney General) v. A, 2013 SCC 5 , [2013] 1 S.C.R. 61, atparas. 319-47.

It clarifies that s. 15(1) of the Charter requires a "flexible and contextual inquiry into whether a distinction has the effectof perpetuating arbitrary disadvantage on the claimant [page556] because of his or her membership in an enumerated or analogousgroup": para. 331 (emphasis added). 17 This Court has repeatedly confirmed that s. 15 protects substantive equality: Quebec v. A, at para. 325; Withler v. Canada (AttorneyGeneral), 2011 SCC 12 , [2011] 1 S.C.R. 396, at para. 2; R. v. Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483, atpara. 16; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143.

It is an approach which recognizesthat persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society andseeks to prevent conduct that perpetuates those disadvantages.

As McIntyre J. observed in Andrews, such an approach rests on the ideathat not every difference in treatment will necessarily result in inequality and that identical treatment may frequently produce seriousinequality: p. 164. 18 The focus of s. 15 is therefore on laws that draw discriminatory distinctions - that is, distinctions that have the effect of perpetuatingarbitrary disadvantage based on an individual's membership in an enumerated or analogous group: Andrews, at pp. 174-75; Quebec v. A,at para. 331.

The s. 15(1) analysis is accordingly concerned with the social and economic context in which a claim of inequality arises,and with the effects of the challenged law or action on the claimant group: Quebec v. A, at para. 331. 19 The first part of the s. 15 analysis therefore asks whether, on its face or in its impact, a law creates a distinction on the basis of anenumerated or analogous ground.

Limiting claims to enumerated or analogous grounds, which "stand as constant markers of suspectdecision making or potential discrimination", screens out those claims "having nothing to do with substantive equality and helps keep thefocus on equality for groups that are disadvantaged in the larger social and economic context": Corbiere v. Canada (Minister of Indianand Northern Affairs), (SCC), [1999] 2 S.C.R. 203, at para. 8; Lynn Smith and William Black, "The EqualityRights" (2013, 62 S.C.L.R. (2d) 301, at p. 336.

Claimants may frame [page557] their claim in terms of one protected ground or several,depending on the conduct at issue and how it interacts with the disadvantage imposed on members of the claimant's group: Law v.Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, at para. 37. 20 The second part of the analysis focuses on arbitrary - or discriminatory - disadvantage, that is, whether the impugned law fails torespond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner thathas the effect of reinforcing, perpetuating or exacerbating their disadvantage: The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of suchdiscrimination should be curtailed.

If the state conduct widens the gap between the historically disadvantaged group and the rest of

society rather than narrowing it, then it is discriminatory. [ Quebec v. A , at para. 332] 21 To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group. At the second stage of the analysis, the specific evidence required will vary depending on the context of the claim, but "evidence that goes to establishing a claimant's historical position of disadvantage" will be relevant: Withler , at para. 38 ; Quebec v.

A , at para. 327. [36] [ 57 ] Does the mandatory driving prohibition, on its face or by impact, create a discriminatory distinction contrary to Charter

section 15 on the basis that the defendants are Inuit sustenance hunters? I find that it does not. Nothing in the affidavit material persuades me that the driving prohibition will create a disproportionate effect on the applicants arising from their membership in the protected group. [ 58 ] The applicants’ evidence established that hunting is frequently a group activity, often even preferred as a group activity for safety reasons.

The evidence goes no further than establishing that having to rely on others to drive for a hunt is inconvenient or, perhaps initially, embarrassing to those who are prevented by law from driving. However, this fact does not conflate with being an infringement of the

section 15 equality rights of Inuit hunters. [ 59 ] Sanctions for criminally breaking the law are always inconvenient for offenders. Parliament enacted the mandatory driving prohibition to be a deterrent. In my experience, the driving prohibition is often said to be the most significant penalty for driving offences. The applicants have failed to make a prima facie case that the driving prohibition has a disproportionate effect on Inuit sustenance hunters. [ 60 ] Having found no prima facie case of discrimination, I keep my comments brief on the second part of the

section 15 test. Again, the evidence tendered by the applicants that hunting is often a group activity frustrates their argument that the driving prohibition “ imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage .” [ 61 ] The mandatory driving prohibition does not impose a discriminatory punishment on Inuit hunters. The applicants will continue to be free to participate in the sustenance hunt during the prohibition period.

The applicants simply may not operate a motorised vehicle for one-year as a direct result of their convictions for drinking and driving. [ 62 ] The applicants have not met their burden respecting Charter

section 15 . VII. CONCLUSION [ 63 ] This application does not engage the right of Inuit to hunt for country food. Nor does the application engage the cultural or dietary importance of country food to Inuit. The impugned Criminal Code driving prohibition addresses solely the revocation of the privilege to operate a motorized conveyance. The evidence failed to establish that the applicants will be prevented from hunting if they lose their driving privileges for one-year. [ 64 ] I dismiss the application. [ 65 ] The Court shall sentence the applicants accordingly. Dated at the City of Iqaluit this 23rd day of November 2023. ___________________

Justice P. Bychok Nunavut Court of Justice [25] Godbout v. Longueuil (City), (SCC), [1997] 3 SCR 844,1997, para 66. [26] R v Bernshaw, (SCC), [1995] 1 SCR 254, para 22.