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)

 2

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”
 3

[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.
 4

[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.
 5

[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