R. v. Irngaut, 2019 NUCJ 4

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Irngaut, 2019 NUCJ 04 Date: 20190314 Docket: 07-15-33 Registry: Iqaluit Crown: Her Majesty the Queen -and- Defendant: Michael Irngaut ________________________________________________________________________ Before: Chief Justice Neil Sharkey Counsel (Crown): T. Buffalo Counsel (Accused): S. Siebert Location Heard: Igloolik, Nunavut Date Heard: June 5, 2018 Matters: Charged with violating Wildlife Act . Judicial stay of proceedings entered because of officially induced error. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Amended Decision : An amended decision was issued on March 18, 2019; the corrections have been made to the text and the amendment is appended to this judgment. TABLE OF CONTENTS I. OVERVIEW ... 4 II. BACKGROUND .. 5 III. THE FACTS: MICHAEL IRNGAUT HARVESTS A CARIBOU .. 6 IV. ISSUES IN THE CASE . 9 V. POSITIONS OF THE PARTIES . 9 A. Defence . 9 B. Crown . 10 VI. ANALYSIS . 11 A. Sergeant George Qattalik’s Comments to Mr. Irngaut 11 B. Defences Available for Strict Liability Offences . 12 1. Due diligence . 12 2. Mistake of Fact 13 C. Does Mr. Irngaut’s belief Constitute a Mistake of Fact? . 13 VII.

MISTAKE OF LAW AND THE DEFENCE OF “OFFICIALLY INDUCED ERROR” 14 A. Threshold Requirements for the Defence of Officially Induced Error 15 B. The Six Part Jorgensen Framework . 16 1.

Part 1: There must be an error of law or mixed fact and law .. 16 2.

Part 2: The defendant must have considered the legal consequence of their ... action . 16 3.

Part 3: The advice must have been obtained from an appropriate official 16 4.

Part 4: The Advice must be reasonable in the circumstances . 19 5.

Part 5: The Advice must have been erroneous . 23 6.

Part 6: The defendant must have relied on the official advice . 23 VIII. CONCLUSIONS AND DISPOSITIONS . 23 IX. ADDENDUM ... 25 A. Formal Adjudication . 25 I. OVERVIEW [ 1 ] This case deals with the interim prohibition ban on harvesting caribou on Baffin Island, which came into effect on 01 January 2015. In August of 2015 this moratorium was replaced by a ‘modest harvest’ quota system.

[ 2 ] On 26 June 2015, the Defendant, Michael Irngaut, was charged with violating the ban by harvesting a caribou earlier in the year when the ban was still in effect. [ 3 ] Mr. Irngaut pleaded not guilty. The case was adjourned several times (and for over a period of two years) at the request Mr. Irngaut’s lawyers to allow them to prepare a Constitutional challenge to the validity of the Minister’s Order which had created the ban. No such challenge was, however, ever filed with the Court. [ 4 ] Eventually (in late 2017), Mr.

Irngaut got a lawyer who was prepared to proceed to trial without mustering any legal challenge to the validity of the moratorium itself. I presided at this trial, which took place in Igloolik, in June 2018. [ 5 ] Mr. Irngaut testified at the trial. [ 6 ] He admitted to harvesting a caribou on 15 February 2015. He said, however, that he did so under the mistaken belief that the proscription against harvesting caribou had been lifted. [ 7 ] Mr.

Irngaut said he was 22 years old at the time; that he was a private in the Canadian Rangers; and that it was while he was out on a Ranger patrol that he shot the caribou. [ 8 ] He said his patrol Sergeant made a radio call to check in with the Igloolik Hunters and Trappers Organization (HTO). And that right afterwards, the Sergeant reported that a board member from the Igloolik HTO had said the proscription against harvesting caribou was no longer in effect. [ 9 ] Mr. Irngaut testified that if he had not been told the ban was not in effect, he would not have shot the caribou.

He said, “I would not have thought to harvest that caribou if I was not given permission.” [ 10 ] I accepted Mr. Irngaut’s testimony. [ 11 ] I found that Mr. Irngaut harvested the caribou based on erroneous information or advice which he had received from the HTO via his patrol Sergeant.

I found that he therefore had a valid defence called ‘officially induced error.’ [ 12 ] This defence is available in exceptional cases, and I found that this was such a case. [ 13 ] The law says that where the defence of officially induced error is successful, the judge should not make a finding of ‘not guilty,’ but rather should enter a judicial stay of proceedings. [ 14 ] Accordingly, I stayed the proceedings against Mr. Irngaut. II.

BACKGROUND [ 15 ] The defendant, Michael Irngaut, is charged under s. 69 of the Wildlife Act , SNu 2003, c 26 , for harvesting a caribou on 15 February 2015, contrary to an order prohibiting harvesting on Baffin Island.

[ 16 ] He is also charged under s. 85(1) (

a) of the Wildlife Act for being in possession of a wild animal (hide) on 24 February 2015 that had been unlawfully harvested. [ 17 ] The prohibition in question is the Baffin Island Caribou Interim Management Order (Nunavut Gazette, Vol 16 No 12). It prohibited the harvesting of caribou on Baffin Island. [ 18 ] The order came into force on 01 January 2015, and was to remain in force until 31 December 2015 (unless terminated earlier by an order made pursuant to a decision of the Nunavut Wildlife Management Board, or by another order of the Minister). [ 19 ] Mr.

Irngaut pleaded not guilty to the charges and his trial proceeded before me in Igloolik on 05 June 2018. [ 20 ] The parties (Crown and Defence) prepared an Agreed Statement of Facts (Exhibit P-1). In these stipulated facts, it is agreed that Mr. Irngaut did in fact harvest a caribou (within the geographic area covered by the ban), and was in possession of the animal’s hide at a time when the prohibition order was in effect. [ 21 ] Mr. Irngaut also testified as a witness at the trial. [ 22 ] Accordingly, the only issue left for me to decide, after hearing from Mr.

Irngaut, and the closing statements of Crown and Defence Counsel, was whether Mr. Irngaut had a valid defence to the charges. [ 23 ] During the course of the trial, counsel made reference, for the most part, to Mr. Irngaut simply as ‘Michael’, to George Qattalik as ‘George’, and to Daniel Qattalik as ‘Daniel’. I will, for the most part, do likewise during the course of this judgment. III. THE FACTS: MICHAEL IRNGAUT HARVESTS A CARIBOU [ 24 ] The Defendant, Michael Irngaut, is an Inuk man who was 25 years old on 05 June 2018 when the trial in this case took place.

Michael told us in court that he was born in Iqaluit, but grew up and still lives in Igloolik. He said he completed Grade 10, but left school because he wanted to get a job and focus more on hunting. [ 25 ] Michael lives with his spouse, Samantha, and their three young children. He works full-time as a community fuel truck driver.

He is also active on the land, and hunts, he says “as often as I can.” Michael was modest in describing his abilities as a hunter, and credited his father and older brother with teaching him land skills. [ 26 ] Michael has been a Private in the Canadian Rangers since he was 18 years old. The Rangers are, as everyone knows, part of the Canadian Forces. Michael does regular training with the Rangers, and in addition goes on long patrols twice per year.

One of these patrols, by snowmobile, took place in February 2015, when Michael was 22 years old. [ 27 ] The patrol was led by Ranger Sergeant George Qattalik, who is some 25 years older than Michael. The other members of the patrol were George’s wife, Lucy, and a fellow Ranger named Isa Ammaq, who is about 10 years older than Michael. [ 28 ] The plan was to head north approximately 260 kilometres to Mary River, and to meet up with people who had travelled south to Mary River from Pond Inlet.

If the weather was clear, they would be gone from Igloolik for about a week. [ 29 ] This can be a challenging trip in the February cold, albeit routine for Rangers and others with land skills. They were well stocked

with food, and at least enough fuel for the outbound portion of the journey. They had firearms for hunting animals they were permitted to hunt, as well as for safety. [ 30 ] Michael told the court that he was well aware, before the group left the community, that there was a prohibition against harvesting caribou. He knew there was a ban.

He testified that he had heard about it, not from radio or TV, or even on any community announcement, but rather, “just from hearing people talk about it…just from people saying there was a ban.” (see Trial Transcript: p.21, l, 20-22; p. 22, l, 1-2) [ 31 ] Michael said that he did not believe any community consultations had taken place before the ban was put into effect.

He was not aware, he said, of consultations between the government, the Hamlet, and the Igloolik HTO, which it appears had taken place in the community hall on 24 January 2014. [ 32 ] Michael said that some people in the community were in favour of the ban, and some against it. And he freely admitted that he was against the idea.

Michael said that he thought the ban was made kind of suddenly, but once he heard it was in place, “I just tried to not concern myself so much of it after that.”(see Trial Transcript: p. 34, l, 4-5) [ 33 ] The patrol (George and Lucy Qattalik, Isa Ammaq, and Michael) left Igloolik on 14 February 2015. They traveled for eleven hours and then stopped to camp for the night.

After they set up their tent and had a meal, George made a radio call from outside the tent, back to the HTO in Igloolik to let people know where they were. [ 34 ] Michael testified that after George made the call, he came back to the tent and told everyone that he had spoken to his father, Daniel Qattalik (an Inuit elder and HTO board member), and that Daniel had told him the ban on caribou was no longer in effect. [ 35 ] Michael acknowledged that while he was surprised after George conveyed this news, “we didn’t actually talk about it.” He said simply, “I trusted his word and I was determined – I became determined to harvest one.” He said “there were no documents presented or anything like that.

It was all verbal; and because it was coming from someone who is a HTO [board] member, I – I trusted his word” (see Trial Transcript: p. 22, l, 5; p. 21, l, 9-14). [ 36 ] Michael’s lawyer asked him to expand on this in the following exchange: Question (Counsel) You said George’s father was on the board of the HTO ? Answer (Michael) Yes Question (Counsel) And what did that mean to you ?

Answer (Daniel) That there is nothing to worry about (see Trial Transcript: p. 20, l, 24-27; p, 21, l, 1-2) [ 37 ] Michael also testified that he trusted what George told him Daniel said about the ban, not just because Daniel was a member of the HTO Board, but also because he (Daniel) was an elder. [ 38 ] Michael said “Elders are the ones we help – help out and we are to respect them. So what he said really meant something to me…I trusted his word.” (see Trial Transcript: p. 20, 18-21)

[ 39 ] The next day, 15 February 2015, the patrol continued their trip to Mary River. They reached Neergaard Lake (which was within the area covered by the moratorium). [ 40 ] Michael spotted a dozen caribou grazing about 1500 meters in the distance. He then shot one of them – a male. The group ate some of this caribou, but still had plenty to share with the patrol they met at Mary River, who in turn shared maktaaq ( muktuk ) with them. [ 41 ] Michael testified that after he shot the caribou, the other members of the patrol were happy for him.

He said he believed George and Isa would also have liked to shoot a caribou, but that their rifles were packed i n their qamutiik. [ 42 ] Michael said he never talked with George or Isa about whether either of them was going to take a shot. However, as he explained “…it was going to be another long journey…we still had a long way to go.

They really wanted to catch a caribou, but they decided not to.” (see Trial Transcript: p. 31, l, 19-22) [ 43 ] Michael said he kept the hide from the caribou, and a week later (on 24 February 2015) gave it to the conservation officer in Igloolik, when asked to do so. [ 44 ] As Michael’s testimony came to a close, his lawyer asked him the following: Question (Counsel) If George hadn’t told you about the conversation with his father, would you have harvested caribou on that trip ? Answer (Mr.

Irngaut) I would not have thought to harvest that caribou if I was not given permission. (see Trial Transcript: p. 23, l, 2-6) IV. ISSUES IN THE CASE [ 45 ] There are two (2) things that I need to decide: a. First, whether to believe Michael Irngaut’s testimony about what he says George Qattalik told him; and b. Second, if I do believe Michael Irngaut, whether he has a valid defence to the charges against him for unlawfully harvesting a caribou, and for possession of a dead wild animal (hide) which has been unlawfully harvested. V. POSITIONS OF THE PARTIES A.

Defence [ 46 ] Defence Counsel suggests that Michael acted with due diligence on a mistaken set of facts that, if true, would render his act innocent, and that he has shown, on a balance of probabilities, that his mistaken belief was both honest and reasonable.

[ 47 ] Counsel says that Michael had an honest belief the caribou ban was no longer in effect. The prohibition had only been in place a short time (some 6 weeks). Counsel suggests that Michael is a relatively youthful person with not much sophistication in how such a prohibition is put in place, or how it might be lifted. [ 48 ] Counsel asks that I accept Michael’s testimony to the effect that he would not have harvested a caribou if he did not think he had permission.

Counsel says that Michael did not try to hide what he was doing, brought the hide back to Igloolik, and surrendered it to the conservation officer when asked. [ 49 ] Counsel says further that it was reasonable for Michael to rely on what George Qattalik (his Sergeant) told him – namely that Daniel Qattalik (an elder and HTO board member) said the ban was no longer in effect. [ 50 ] Michael says he only found out about the ban from hearing people talk around town.

And so it would be reasonable, Counsel says, that he might in turn rely on information passed to him orally that the ban had been lifted. [ 51 ] And finally, Counsel suggests that Michael ought to be able to rely on the authority of Daniel Qattalik as a HTO board member. B.

Crown [ 52 ] The Crown does not dispute what Michael said George Qattalik told him – that the information was conveyed. (see Trial Transcript: p. 53, l, 25-27; p. 54, l, 1-7) [ 53 ] Nor does the Crown dispute Michael’s testimony that George Qattalik was a Ranger Sergeant, or that Daniel Qattalik was an Inuit elder and HTO Board member. [ 54 ] The Crown’s argument is that even if Michael had an honest belief in what George told him, it was not a reasonable belief. [ 55 ] The Crown says that even taking Michael’s testimony at face value, the paucity of his effort to either confirm the information George gave him, or even to discuss it, is remarkable.

So much so, says the Crown, that it would not be reasonable, under the circumstances, to allow him to rely on this information in any way to further his defence to the charges. [ 56 ] The Crown points out that the imposition of the caribou ban was a significant topic of discussion in Igloolik. There were community consultations. It was a big deal.

And Michael admitted he was surprised and excited to hear the news from George that the law against harvesting caribou was no longer in effect. [ 57 ] Yet, says the Crown, Michael made no effort to ask George if he had heard correctly from Daniel – that he (George) had got it right – or to ask George to confirm that the news was true. Nor, says the Crown, did Michael make any effort to see what Isa, a fellow Ranger, had to say about it.

Indeed, Michael says the topic was never discussed among the group, at all. [ 58 ] Most importantly, however, the Crown says any mistake by Michael about the status of the prohibition against harvesting caribou is not mistake of fact, at all. It is simply a mistake of law.

And the Crown says it is well settled that ‘mistake of law’ is no defence – full stop. [ 59 ] Further, the Crown says that Michael should not be allowed to rely on the fact that Daniel Qattalik is an elder, or that Daniel Qattalik is a member of the HTO board. [ 60 ] Finally, the Crown says the fact that neither George nor Isa took advantage of the chance to harvest any of the twelve caribou they

encountered on the trail is telling in terms of whether George and Isa thought it was reasonable to rely on what Daniel had said. VI. ANALYSIS A. Sergeant George Qattalik’s Comments to Mr. Irngaut [ 61 ] I accept Michael Irngaut’s testimony about what George Qattalik told him – namely, that Daniel Qattalik said the caribou ban was no longer in effect.

Again, the Crown did not take issue with this. [ 62 ] Generally, hearsay testimony is not allowed in court to prove the truth of what is said by the original speaker who has not been called to testify. [ 63 ] In this case, however, Michael is not attempting to prove the truth of what the original speaker, Daniel, said to George.

To the contrary, there is no dispute that the ban was in effect, and had not been lifted. [ 64 ] Michael’s hearsay testimony is admissible in court for the purpose of allowing Michael to show, (1) that George spoke to him, (2) that he relied upon what George told him, and (3) that the person George said he spoke with was Daniel Qattalik. B. Defences Available for Strict Liability Offences [ 65 ] It is not in dispute between the parties (Crown and Defence) that Mr. Irngaut is charged with a strict liability offence.

This means that if it is proven he committed the prohibited act, then guilt is established unless he can avail himself of the two defences which are available for strict liability offences. [ 66 ] These defences are, (1) an honest mistake of fact, and, (2) the exercise of due diligence. 1. Due diligence [ 67 ] The defence of due diligence comes into play when a defendant says they have taken all reasonable steps to avoid committing the offence. This defence of due diligence arises most often in regulatory offences in relation to environmental or safety matters.

The defendant in such a case, usually a corporation, will plead that they did all they could to prevent the environmental damage, or the accident which harmed a worker. [ 68 ] T his defence is provided for in s. 234 of the Wildlife Act which says, “no person shall be convicted of an offence under this act if the person establishes that the person exercised all due diligence to prevent the commission of the offence.” [ 69 ] In order to be acquitted, however, they must persuade the court, on a balance of probabilities, that what they did to prevent what happened was all that a reasonable person could expect them to do under the circumstances. 2.

Mistake of Fact [ 70 ] The ‘mistake of fact’ defence comes into play when a defendant says they acted on a mistaken set of facts which, if true, would render their actions innocent. [ 71 ] In order to be acquitted, however, they must persuade the court, on a balance of probabilities, that their mistake was an honest and

reasonable one. [ 72 ] And sometimes, depending on the fact scenario, a defendant will argue they exercised due diligence to support the idea their mistake was an honest and reasonable one. C. Does Mr.

Irngaut’s belief Constitute a Mistake of Fact? [ 73 ] The main argument put forward by Michael’s counsel, as noted above , is that her client, Michael, acted on the basis of a mistaken fact, which, if true, would render his action in shooting the caribou an innocent one. [ 74 ] Counsel says the mistaken fact which Michael acted upon was his belief that the ban on harvesting caribou was not in effect – that it had been lifted.

And further, that Michael’s belief in this regard was both an honest and reasonable one. [ 75 ] Before I assess whether Michael’s mistaken belief was an honest one, or a reasonable one, I must first determine whether his mistake is a factual one. [ 76 ] In my view, it is not. [ 77 ] For example, many Provinces pass regulations encouraging or prohibiting the harvesting of certain animals – such as wolves, coyotes, and foxes. A person may have a valid licence to hunt for coyotes in a Province where there is a proscription against harvesting wolves.

If that person is charged with shooting a wolf, they would have a good defence if they could persuade a judge they honestly and reasonably believed they had shot a coyote. [ 78 ] And in such a case, the defence would be based on a mistake of fact; they were mistaken about the kind of animal they were shooting. [ 79 ] In contrast, the Alberta case of R v Legrande, 2014 ABCA 192 , 575 AR 355 , illustrates an unsuccessful mistake of fact defence. The two defendants (Legrande and Gauchier) were charged with hunting illegally inside a road corridor wildlife sanctuary.

They were on a gravel road and took shots at fake moose which had been set up to catch offenders. [ 80 ] They claimed a mistake of fact defence because they believed the gravel road (and the fake moose) were outside the wildlife sanctuary. It turned out, however, that the gravel road was inside the sanctuary. [ 81 ] The defendants were found guilty at trial and appealed. The Court of Appeal rejected their claims of mistake of fact.

The Court said that the defendants knew physically where they were on the gravel road, and were mistaken only as to the ‘legal characterization’ of their location. [ 82 ] The Court said their mistake was therefore one of law, not fact. [ 83 ] Similarly, Michael Irngaut knew he was harvesting a caribou. In my view therefore, his belief in the ‘fact’ the ban on harvesting caribou had been lifted, is not, strictly speaking, a mistake of fact, at all. [ 84 ] Rather, it is a mistake about his ‘legal right’ to shoot the caribou. It is a mistake of law – which, under Canadian law, is not a defence.

VII. MISTAKE OF LAW AND THE DEFENCE OF“OFFICIALLY INDUCED ERROR” [85] It is a basic premise throughout the common law world, and in Canada by virtue of s. 19 of the Criminal Code, RSC 1985, c C-46,that “ignorance of the law by a person who commits an offence is not an excuse for committing that offence.” (Section 19, which isfound in

Part I of the Criminal Code, as well as all of

Part XXVII respecting

summary matters, govern Nunavut territorial prosecutionsby virtue of s. 2 of the

Summary Procedures Convictions Act, RSNWT (Nu) 1988, c S-15). [86] The only time a person may be acquitted where they have made a mistake of law is where they have placed reliance on advicegiven by an appropriate official. [87] The defence of officially induced error is available as a defence to a regulatory statute, or offence where a defendant hasreasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement ofthe particular law. A.

Threshold Requirements for the Defence of Officially Induced Error [88] The Supreme Court of Canada has given trial judges guidance and direction about the availability of the defence of officiallyinduced error.

It will only be accepted in the narrowest of circumstances or exceptional and rarest of cases – in order to respect theprinciple that ignorance of the law is not an excuse for unlawful actions. [89] In the case of R v Jorgensen, (SCC), [1995] 4 SCR 55, 129 DLR (4th) 510 [Jorgensen], Lamer CJ, wrotea heavily cited obiter dicta opinion which set out a number of criteria or requirements which need to be met before this defence isavailable.

He also clarified the overarching policy consideration for this defence, namely, that ‘the defendant has done nothing to entitlehim to an acquittal, but the state has done something which disentitles it to a conviction.’ (para 37 CanLII) [90] It is upon the defendant to prove the officially induced error on a balance of probabilities. Strictly speaking, an officially inducederror operates as an excuse rather than a defence.

The appropriate remedy or outcome therefore is not an acquittal, but rather a judicialstay of proceedings. [91] In Jorgensen, undercover police officers charged the defendant, a retailer, with selling obscene material (a video) contrary to theCriminal Code. Jorgensen had thought the video might be ‘borderline’, so he relied on the Ontario Film Review Board (OFRB) approvalbefore offering it to the public for sale. He actually paid the OFRB by the minute to review the video. [92] At the end of the day, Jorgensen himself was acquitted because of the Crown’s failure to prove the offence.

Lamer CJ, was clear,however, that this was a textbook case where officially induced error would have been successful. B. The Six Part Jorgensen Framework [93] Jorgensen identifies a six (6) part test which must be met to establish the defence of officially induced error. It must be shown that: 1. The error is one of law or mixed fact and law 2. The defendant considered the legal consequences of the action 3. The advice was obtained from an appropriate official

4. The advice was reasonable in the circumstances 5. The advice was erroneous 6. The defendant relied on the official advice [ 94 ] I must accordingly determine whether these criteria, have been satisfied in this case. 1.

Part 1: There must be an error of law or mixed fact and law [ 95 ] This part of the test requires little scrutiny. Mr. Irngaut’s error is clearly a legal one. Mr. Irngaut believed the ban had been lifted, which was an error in law because the ban was still in effect. Thus, I find this aspect of the test is met. 2.

Part 2: The defendant must have considered the legal consequence of their action [ 96 ] This part of the test requires little scrutiny. I accept Mr. Irngaut’s testimony that, had he not believed the prohibition had been lifted, he would not have harvested a caribou. Thus, I find this aspect of the test is met. 3.

Part 3: The advice must have been obtained from an appropriate official [ 97 ] This part of the test requires scrutiny. [ 98 ] I find the source of Michael’s information to be Daniel Qattalik.

The issue here, however, is whether Danial Qattalik, as an Igloolik HTO board member, qualifies as an ‘appropriate official’. [ 99 ] One of the central themes in the creation of Nunavut was that Inuit would have control over the harvesting of animals. [ 100 ] Each community in Nunavut has a Hunters and Trappers Organization [HTO], which represents the hunting interests of the community, and which is incorporated as a non-profit Society. [ 101 ] HTOs are established by the Nunavut Land Claims Agreement and Wildlife Act , and their membership includes the Inuit of each community.

They are incorporated under the Societies Act , RSNWT 1988, c S-11 , pursuant to which each community elects a Board of Directors from among the membership at an Annual General Meeting (AGM). [ 102 ] The powers and functions of the HTO are established in s. 5.7.3 of the Nunavut Land Claims Agreement, and given legislative effect in s. 167 of the Wildlife Act . These enumerated powers include: (

a) the regulation of harvesting practices and techniques among members, including the use of non-quota limitations, (

b) the allocation and enforcement of community basic needs levels and adjusted basic needs levels among members, (

c) the assignment to non-members with or without valuable consideration and conditions, of any portion of community basic needs levels; and (

d) generally, the management of harvesting among members.

[ 103 ] The HTOs are therefore the practical arm of a management scheme set out in the Wildlife Act , and constitutionally protected by s. 35 of the Constitution Act , 1982 , and the Nunavut Land Claims Agreement. [ 104 ] The HTOs regulate and allocate the harvest at the community level, in those instances where regulation is required. They negotiate quotas and prohibitions where necessary, and, for example, issue ‘tags’ for the harvesting of controlled species. In addition, HTOs, in conjunction with the Department of Fisheries and Oceans (Canada), manage community hunting events, such as bowhead whale hunts. [ 105 ] In terms of ‘enforcement’ of rights,

section 5.7.15 of the Nunavut Land Claims Agreement and s.167(4) of the Wildlife Act both provide that “where a right of action in relation to Wildlife accrues to an Inuk, the HTO of which that Inuk is a member may, with the consent of the Inuk, sue on that Inuk’s behalf.” [ 106 ] In addition s. 5.7.8 of Nunavut Land Claims Agreement requires HTOs to develop and adopt by-laws guiding its operations, and s. 5.7.12 requires that HTOs provide a mechanism to discipline members who violate the by-laws.

This scheme is duplicated in s. 172 of the Wildlife Act . [ 107 ] Further, s.169(2) of the Wildlife Act requires each HTO to provide a dispute resolution process for persons ‘aggrieved’ at any decision it makes in respect of matters under the Wildlife Act , either in accordance with s.7 of the Societies Act or by appeal to the membership as a whole. [ 108 ] And finally – and again in terms of enforcement, s. 172(3) of the Wildlife Act allows for an HTO to impose a fine of up to $500.00 upon a member in breach of a by-law.

Such a breach does not, however, constitute any offence under the Wildlife Act and may only be recovered as a debt to the HTO. [ 109 ] Nunavut’s HTOs do not, however, lay charges for violations of the Wildlife Act . For example, by swearing long form Informations or issuing

Summary Offence Ticket Informations (SOTIs) for alleged breaches of the Wildlife Act . [ 110 ] This function is given to “conservation officers” who are appointed pursuant s.163 of the Wildlife Act , and whose main duty, pursuant to s.164 of the Wildlife Act , is to ensure compliance with and enforce the provisions of the Wildlife Act . [ 111 ] However, pursuant to s. 219 of the Wildlife Act , HTOs are permitted to make a special request to the Minister for an investigation as to whether a particular person has committed an offence under the Wildlife Act . [ 112 ] Often, in simple cases of officially induced error, a defendant has received bad advice or information from a law enforcement official: for example, a fisheries officer who tells the defendant they do not need a licence to fish for a certain species, or in a specific area, when in fact, they do need such a licence. (see, R v Colbourne (W.) , 2007, Nfld & Labrador Supreme Court, commentary at para 36, R v Colbourne , 2007 NLTD 152 ). [ 113 ] Jorgensen, however, does not actually require that the ‘appropriate official’ be a person who has the power to enforce the law. [ 114 ] Indeed, in Jorgensen , the appropriate official or agency was not the ‘enforcement branch’ of government (i.e., police who laid the charge).

Rather, it was an officer or official from the OFRB that the defendant had paid to preview the film before offering it for sale. [ 115 ] The defendant obviously believed that the OFRB would be responsible for giving advice about whether his video was ‘over the line’ as far as obscenity goes. [ 116 ] The case authorities, both before and after Jorgensen, are clear that the defence of officially induced error requires that an accused has relied upon the opinion or advice of an official who is responsible for the administration or enforcement of the particular law.

[ 117 ] In Jorgensen , Lamer CJ stated: “the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question.” (para 30) [Emphasis added]. [ 118 ] HTOs are state sanctioned bodies. They are ‘creatures’ of statute in that their organizational make-up (including membership) and powers are recognized and expressed in the Societies Act and Wildlife Act .

And these same powers respecting their jurisdiction over the management of harvesting wildlife are expressed and constitutionally entrenched in the Nunavut Land Claims Agreement. [ 119 ] Accordingly, it follows that Daniel Qattalik, as a member of the Igloolik HTO board, is a person who the defendant, Michael Irngaut, would normally consider responsible for advice about the Wildlife Act . [ 120 ] Thus, I consider this aspect,

Part 3 of the test, to be met. 4.

Part 4: The Advice must be reasonable in the circumstances [ 121 ] This part of the test also requires scrutiny. [ 122 ] There is an obvious objective component in determining whether it was reasonable for a defendant to rely on the advice or information they were given. At the same time since the factual scenarios where a defendant relies on such advice vary so greatly, it is also necessary to determine whether it was reasonable for ‘the particular defendant’ to have placed reliance on the advice they were given. [ 123 ] Indeed, this approach has been affirmed by the Supreme Court of Canada.

In the case of Levis (City) v Tetreault ; Levis (City) v 269-4470 Quebec Inc., 2006 SCC 12 , [2006] 1 SCR 420 , the Court affirmed the existence of officially induced error as a defence. [ 124 ] However, it tweaked the fourth criteria in Jorgensen by adding a requirement that the reasonableness of the advice should be “considered from the perspective of a reasonable person in a situation similar to that of the accused.” (para 27) [ 125 ] I must therefore apply an objective test with a nuanced component. I must look at things from the perspective of a reasonable person put into Michael’s situation.

This means looking at things from Michael’s point of view – from the point of view of a 22 year old Inuk, the junior member of a small Ranger patrol, two days into a long trip, and far from home in the middle of winter. [ 126 ] I may accept Michael’s testimony – and conclude he is being honest and telling the truth. But the question is not whether he is honest – for obviously, if I do not believe he was honest, then that ends the matter.

The question is whether it was reasonable ‘in the circumstances’ for him to rely on the information he was given by George Qattalik. [ 127 ] I think it appropriate to re-state, briefly, the Crown’s position. The Crown says that Michael’s failure to confirm the information he received from George shows a lack of due diligence on his part. [ 128 ] The Crown says, even taking Michael’s testimony at face value, the paucity of his effort either to confirm the information George gave him, or even to discuss it, is remarkable.

So much so, says the Crown, that it would not be reasonable in the circumstances to allow him to rely on this information. [ 129 ] Respectfully, I disagree. [ 130 ] In my view this is not a case where Michael should have seen a ‘red flag’ when George came back to the tent and told everybody what Daniel had said; a flag which signaled he should not just take George’s word; that he should obviously do something more.

[ 131 ] I am hard pressed to think of anything more Michael could have done. Indeed, the Crown was equally hard pressed during argument to think of anything specific beyond suggesting that Michael should have double checked with George to see if he had gotten the information right. (For an exchange on this point see Trial Transcript: p. 55, I, 1-27). [ 132 ] In this regard, I am mindful that this trip to Mary River was a Ranger patrol. Michael was, and still is, a Private. The person in charge of the patrol, George, was his Sergeant.

We do not know Isa’s rank, but he was about 10 years older than Michael. [ 133 ] In this context, I rely on Lamer CJ in Jorgensen , “that the determination relies on common sense rather than constitutional permutations” (at 31).

I do not find it remarkable that Michael would accept what his Sergeant told him without question – just as for example, he would be required to follow an order given by his Sergeant without question. [ 134 ] I think it is also important that the provenance of the information was Daniel Qattalik – who, in addition to being a member of the Igloolik HTO, is an Elder. [ 135 ] I accept Michael’s testimony that he relied on the Elder because, as he said “…we are to respect them…So what he [Daniel Qattalik] said really meant something to me, like what he said that time.

I trusted his word." [ 136 ] I do not suggest that a person is excused for breaking the law simply because an elder told them a certain activity is not illegal, when in fact it is illegal.

I am simply saying the fact Daniel was an elder is a factor to take into account when assessing whether Michael’s belief in the information he received was reasonable. [ 137 ] I am also persuaded that Michael, 22 years old at the time, was not particularly sophisticated in terms of understanding how the harvesting ban came into being. [ 138 ] Indeed, his testimony, which I accept, is proof in the pudding for this proposition: he said “I was surprised…it seemed so sudden the ban was on. And usually you get to have a consult with the public and they never had that.

And I just tried not to concern myself so much of it after that.” [ 139 ] Accordingly, it follows that when Michael received word that a HTO board member said the ban was lifted he (Michael) would not need to concern himself with talking about it. Once again, his testimony, which I accept, is proof in the pudding. Michael was asked by his lawyer what it meant that the information came from HTO board member.

And his response was “that there is really nothing to worry about.” [ 140 ] Within this context, it is not remarkable to me that Michael, the junior member of the group, did not initiate any discussion, at all, on the nitty-gritty of how or why the ban could have been lifted. [ 141 ] Nor do I find it remarkable that only Michael shot a caribou. I accept Michael’s testimony that they had just started their trip and still had a long journey ahead of them. There was no need to harvest and carry additional caribou at this point. There were only four of them.

They ate some of Michael’s caribou, and still had plenty to share with people at their final destination. [ 142 ] I accept Michael’s testimony that he, as the youngest of the group, was the most excited at the prospect of harvesting a caribou after he was told that the ban had been lifted, and that after he did so the rest of the group “were happy for me.” [ 143 ] Further, I do not think it probative that the only witness called to testify by the Defence was Mr. Irngaut. In my view, this is a red- herring. The Agreed Statement of Facts (Ex: P-1) identifies all the people on the trip.

The Crown signed off on this document on 05 December 2016. [ 144 ] Accordingly, if the Crown thought that testimony from George, Lucy, or Isa was important, then the Crown had well over a year to interview and obtain statements from them. Similarly, the Crown could have applied to call any of them to testify in rebuttal after

Michael testified, and sought leave from me to cross-examine them. The Crown was aware that Michael would testify at the trial, and could easily have had these people subpoenaed and standing by. [ 145 ] Accordingly, and in light of this, I find no traction to the Crown’s submission that the Court only has Michael’s word to assess the reasonableness of his belief or what occurred generally. [ 146 ] I found Michael to be a forthright and honest witness. And, he acquitted himself well during a skillfully conducted cross- examination by the prosecuting attorney. I was also impressed with Michael’s candour.

He freely admitted not being in favour of the harvesting ban when I asked him how he felt about it. And I accept Michael’s testimony when he said “I would not have thought to harvest that caribou if I was not given permission.” [ 147 ] It is clear as well that once he returned to Igloolik, Michael made no attempt to conceal what he had done, and provided the caribou hide to the local conservation officer when asked to do so. [ 148 ] I consider that the advice given was reasonable in the circumstances. Thus, I find that this aspect of the test,

Part 4, is met. 5.

Part 5: The Advice must have been erroneous [ 149 ] This part of the test requires little scrutiny. It is clear that the advice or information which Mr. Irngaut received from George Qattalik was incorrect. Thus, I find this aspect of the test is met. 6.

Part 6: The defendant must have relied on the official advice [ 150 ] This aspect of the test requires little scrutiny. I accept Mr. Irngaut’s testimony that after hearing that the prohibition was not in effect he became ‘determined’ to harvest a caribou. Thus, I find this aspect of the test is met. VIII. CONCLUSIONS AND DISPOSITIONS [ 151 ] Mr. Irngaut has satisfied the test set out in Jorgensen necessary to establish a viable defence of officially induced error. [ 152 ] Mr.

Irngaut has also satisfied the additional criteria, which allows the defence of officially induced error in only the ‘rarest of cases’ and/or the “narrowest of circumstances”. [ 153 ] Mr. Irngaut’s case falls within such an exceptional combination of circumstances. He received information that the harvesting ban had been lifted when he was physically and geographically isolated from any other authority or possible source of information. His immediate source of information – his Ranger Sergeant with control of communications to the outside world – was someone he was sworn to trust and obey.

And the original source of the information was both an Elder and a HTO board member. [ 154 ] Mr. Irngaut is therefore entitled to the remedy prescribed by Jorgensen – namely, the entry of a judicial stay of proceedings. [ 155 ] Accordingly, I order the proceedings stayed.

Dated at the City of Iqaluit this 14th day of March, 2019 ___________________ Chief Justice N. Sharkey Nunavut Court of Justice IX. ADDENDUM A. Formal Adjudication [ 156 ] In accordance with the Criminal Rules of the Nunavut Court of Justice , and specifically pursuant to Rule 110(1)(b), this Judgment is the Formal Adjudication of this matter. _______________________________________________________ Amendment of the Reasons for Judgment Reserved of Chief Justice Neil Sharkey _______________________________________________________ In paragraph 64, the words “said he” were added between “George” and “spoke”.

Paragraph 78 was amended to read: “And in such a case, the defence would be based on a mistake of fact ; they were The defendant was mistaken about the kind of animal they were he was shooting.” In paragraph 139, the word “member” was added after “HTO board". Please replace the amended pages in your hard copy of the judgment.