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)

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I. INTRODUCTION

[1] Mr. Pameolik has pleaded guilty to a charge of impaired driving

causing bodily harm. At the sentencing hearing Crown and Defence
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 the imposition of
a driving prohibition is discretionary. The “peculiarity” of this was
noted by the court in R v Snooks, 2019 CanLII 76956 (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 mandatory for
impaired driving simpliciter and discretionary for impaired driving
causing bodily harm. From a practical perspective, it is difficult to
imagine 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. Counsel who
negotiate joint submissions are well placed to consider the many
factors that must be considered in such negotiations. Counsel are
familiar with the strengths and weaknesses of their case, they are
familiar with the witnesses that will be called and any vulnerability or
interests 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 trial bears some
risk for all parties. The outcome can never be certain. In the context of
a joint submission, each party gives up something in exchange for
certainty of outcome.
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[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. A
sentencing judge should not depart from a joint submission unless the
joint position would bring the administration of justice into disrepute 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 her
concerns and allowing counsel further opportunity to make
submissions. If, after hearing further submissions regarding the joint
submission 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 they
came upon the sister of the girlfriend walking along with the road with
a few other people. They stopped to talk with them. The girlfriend
agreed 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 on
his way on the ATV. He then turned around and drove back in the
direction towards the group. He was driving at approximately 15
km/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.
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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
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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.
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[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;

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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