R. v. Akpalialuk, 2013 NUCJ 12

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Akpalialuk, 2013 NUCJ 12 Date: 20130711 Docket: 08-12-407 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Lucy Akpalialuk ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): John MacFarlane and Faiyaz Alibhai Counsel (Accused): Scott Wheildon Location Heard: Iqaluit, Nunavut Date Heard: June 18, 2013 Matters: Territorial Liquor Act, R.S.N.W.T. 1988, c. L-9 as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 ; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Lucy Akpalialuk is charged with possession of liquor for the purpose of unlawful sale contrary to

section 84 of the Territorial Liquor Act, R.S.N.W.T. 1988, c. L-9 as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c.28 [Liquor Act]. [ 2 ] The defendant alleges that the investigating authorities violated her constitutionally protected rights to be free from unreasonable search and seizure and arbitrary arrest and detention. This Court is urged to exclude evidence collected during the investigation by the police as a consequence of these alleged Charter breaches, Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. II. THE FACTS A. The grounds for suspicion [ 3 ] The RCMP in Iqaluit received information that the defendant would be receiving a large shipment of permitted alcohol from southern Canada on April 20, 2012, and that this same defendant had just received a large shipment of 375 ml bottles of vodka the week before. [ 4 ] This information was given to the RCMP by a confidential informant. The tip arrived by email. This same informant had provided information “rich in detail” to the authorities on 40 other occasions over the previous 18 months.

The information provided by this unknown source had never proven to be false or misleading. [ 5 ] Constable Allen of the Iqaluit RCMP Drug

Section completed an Access to Information and Protection of Privacy Act [Access to Information Act] , request and forwarded this to the Iqaluit Liquor Licensing Branch.

He requested disclosure of the defendant’s recent permitting history. [ 6 ] Shortly thereafter, Constable Allen received copies of four liquor import permits issued to the defendant between March 20 and April 17, 2012, under the authority of the Access to Information Act. [ 7 ] Government records indicated that: • On March 20, 2012, an import permit was issued to the defendant authorizing the import of twelve 375ml bottles of alcohol; • On March 26, 2012, an import permit was issued to the defendant authorizing the import of thirty-six 375ml bottles of alcohol; • On April 10, 2012, an import permit was issued to the defendant authorizing the import of twenty-eight 375ml bottles of alcohol; • On April 17, 2012, an import permit was issued to the defendant authorizing the import of thirty-eight 375ml bottles, two 1750ml bottles of alcohol, and 24 cans of beer. [ 8 ] Based on the type, frequency, and volume of alcohol being purchased, Constable Allen formed the belief that the defendant was acquiring alcohol for the purpose of unlawful sale contrary to the provisions of the Liquor Act.

B. The arrest and search

[ 9 ] Constable Allen staked out the First Air Cargo offices in the afternoon of April 20, 2012. A female was observed exiting the Air Cargo office with a number of boxes. Constable Allen has had significant street experience with the enforcement of the Liquor Act. The boxes in the possession of the defendant were of a size consistent with that ordinarily used to transport liquor.

The number of boxes was also consistent with the size of the permitted order that was the subject of the police investigation. [ 10 ] After the boxes were loaded into a motor vehicle, Constable Allen approached the female and identified himself as a peace officer. The white labels attached to the outside of the boxes clearly identified Lucy Akpalialuk as the consignee. [ 11 ] The female was asked to identify herself, and she did so, giving the name and date of birth of the defendant.

This name and date of birth matched the name and date of birth contained on the liquor import permits in the possession of the police. The defendant was 20 years of age. [ 12 ] Constable Allen then seized the boxes in the motor vehicle and arrested the defendant for keeping liquor for sale. [ 13 ] Constable Allen transported the defendant back to the Iqaluit detachment. The defendant’s mother, younger brother, and four year old child were left behind with the vehicle outside the air cargo office. The defendant was given access to a phone and had an opportunity to speak to a lawyer.

The defendant was then placed in police cells. [ 14 ] The boxes seized by Constable Allen were opened at the detachment. The boxes contained the alcohol identified in the permit dated April 17, 2012. [ 15 ] Constable Allen became involved in another investigation. After completing this investigation, Constable Allen took some time off to attend his son’s birthday party. [ 16 ] Nine hours after the initial arrest, Constable Allen returned to the police detachment. The defendant was taken out of cells and interviewed. The defendant did not want to give a statement.

On five occasions the defendant either declined to give a statement or asked to leave the interview room and return to her cell. Constable Allen pressed on with the interview, however. The defendant ultimately gave the Constable the incriminating statement he was looking for. [ 17 ] Defense counsel has admitted that this statement given by the accused to Constable Allen was made freely and voluntarily within the meaning of the common law jurisprudence. Defense counsel has waived the necessity of a voir dire to determine this issue. III. THE ISSUES A. Did the investigating authorities violate

section 8 of the Charter when they searched for and seized the boxes containing liquor from the defendant? [ 18 ]

Section 107 of the Liquor Act gives peace officers an express statutory power to search for and seize liquor that is being kept for an unlawful purpose. [ 19 ] This

section provides: Search 107.

(1) A peace officer may, at any time, (

a) without a warrant, enter and search any vehicle in which the peace officer has reasonable grounds to believe that liquor is unlawfully kept or had, or kept or had for unlawful purposes, and, subject to

section 112, search any person found in that vehicle;

. . . Seizure

(2) A peace officer who has made a search under subsection (1) may at any time seize and take away (

a) any liquor and packages in which the liquor is kept contrary to this Act or the regulations; and (

b) any book, paper or thing that the peace officer reasonably believes may be evidence of the commission of an offence under this Act. [ 20 ] The defendant argues that the police did not have the reasonable grounds required by

section 107 to justify the seizure of the defendant’s boxes of alcohol. The defendant argues that the only evidence in the possession of the police suggested that the defendant had used lawful government processes to acquire the liquor in question. The defendant argues that, by issuing the permit, the government had authorized the defendant to import and possess the liquor in question. It is said that this could not give rise to grounds to believe that the defendant’s possession of the liquor was unlawful. [ 21 ] I disagree. [ 22 ] The requirement for reasonable grounds in

section 107 does not require the peace officer to have evidence establishing a prima facie case against the defendant before the search power can be used.

Section 127 of the Territorial Liquor Act allows common sense inferences to be drawn from evidence related to the type, volume, and frequency of liquor being received by an accused. The constitutionality of this

section of the Liquor Act is not the subject of a Charter challenge. [ 23 ] Government records in the lawful possession of the police confirmed the issuance of permits to the defendant on four occasions over 28 days. During this time, the defendant acquired 114 mickey bottles, two 60 ounce bottles, and 24 cans of beer. This information was compelling. This information, based as it was on government records, was credible.

Government records amply corroborated the tip received earlier from the confidential source. [ 24 ] It may well be that the Government of Nunavut’s Liquor Licensing Branch knew, or ought to have known, from the records in their possession that this volume of permitted liquor was likely destined for sale.

The apparent complicity of the Liquor Licensing Branch in facilitating the possession of this amount of alcohol by a single individual and profiting from it may give rise to other legal issues or concerns, but these concerns were not raised in argument in this proceeding. [ 25 ] This Court finds that the type, frequency, and volume of alcohol being permitted and apparently received by the defendant in this short span of time was sufficient to give the investigating authorities reasonable and probable grounds to believe that an offence of unlawfully keeping liquor for sale was being committed.

The search of the defendant’s motor vehicle was therefore justified by

section 107 of the Liquor Act. [ 26 ] The Court consequently finds that the defendant has not established a breach of

section 8 of the Charter on a balance of probabilities. The evidence seized by the police in the course of the search of the defendant’s motor vehicle is therefore admissible at the trial proper. B. Did the investigating authorities violate

section 9 of the Charter (arbitrary arrest and detention), when they arrested and detained the defendant on suspicion of an offense contrary to

section 84 of the Liquor Act? [ 27 ]

Section 111 of the Liquor Act gives a peace officer a limited power of arrest for offenses committed under the Liquor Act or its regulations. [ 28 ]

Section 111 provides as follows: Arrest without warrant

111. A peace officer may arrest without a warrant a person whom the peace officer finds committing an offence under this Act or the regulations. (emphasis added) [ 29 ] This

section does not authorize arrests in situations where an offence has been committed in the past out of the presence of a peace officer. Nor does this

section authorize the arrest of a citizen who is about to commit an offence under the Liquor Act. The broader arrest provisions given to peace officers by the Canadian Criminal Code, RSC 1985, c. C-46 [ Criminal Code ], for other types of offences are not included in this statutory power of arrest. The Court infers that this omission was deliberate.

The arrest provision set out in the Liquor Act was intended to limit arrests under the Liquor Act to only those situations where a citizen is found committing or apparently committing a Liquor Act offence. [ 30 ] The defendant argues that the peace officer did not have reasonable and probable grounds to believe that the accused was committing or apparently committing an offense under the Liquor Act and that therefore the arrest and subsequent detention of the accused was arbitrary and a violation of

section 9 of the Charter . [ 31 ] The Defense suggests that the authorities’ arrest of the accused was premature and that an intercepted sale of alcohol was in some way necessary to confirm that the defendant had the requisite intention to sell the alcohol in her possession. [ 32 ] I disagree. [ 33 ] The offence of unlawfully keeping liquor for sale under

section 84 (Liquor Act), is complete when an individual comes into legal possession of alcohol with the requisite intention or state of mind – the intention to sell the alcohol. No more is required. There need be no evidence related to actual sales of alcohol. Evidence directly relating to unlawful sales of alcohol relates to a different offence – the offence of bootlegging or unlawful sale of alcohol. [ 34 ] The reasonable grounds precondition to a lawful arrest does not require the authorities to have proof beyond a reasonable doubt, nor does it require evidence sufficient to establish a prima facie case.

It is only a standard of “more probable than not” that applies at the point of arrest. [ 35 ] The authorities observed the accused physically take possession of the boxes believed to contain alcohol. The authorities had reviewed the recent permitting history of the defendant prior to making the arrest.

This permitting history led the authorities to reasonably believe that the alcohol now possessed by the defendant was destined for sale. [ 36 ] This Court finds that this information was sufficient in law to give the authorities reasonable and probable grounds to believe that the offense under investigation was being committed. [ 37 ] The authorities may have had grounds to arrest the defendant. This does not end the inquiry, however. C. The application of the Criminal Code arrest provisions to arrests made under the Liquor Act [ 38 ]

Section 2 of the

Summary Convictions Procedures Act, R.S.N.W.T. 1988, c. S-15 as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c.28 of Nunavut, provides as follows: 2.

(1) The provisions of the Criminal Code relating to

summary conviction offences apply, with such modifications as the circumstances require, to all offences created by an enactment or municipal by-law, except to the extent that the enactment or municipal bylaw or this Act or the regulations otherwise provides. [ 39 ] Section 495(2) of the Criminal Code requires all arrests to be justifiable in the public interest. This

section goes on to define what is

meant by the public interest.

(2) A peace officer shall not arrest a person without warrant for (

a) an indictable offense mentioned in

section 553, (

b) an offence for which the person may be prosecuted by indictment or for which he is punishable on

summary conviction, or (

c) an offence punishable on

summary conviction, in any case where (

d) he believes on reasonable grounds that the public interest, having regard to all the circumstances, including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii)prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (

e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. (emphasis added) [ 40 ] This Court declines to follow the broad proposition of law set out by the Northwest Territories Territorial Court in R v Minoza, 2007 NWTTC 1 , [2008] AWLD 30 [Minoza] , to the effect that the general provisions found in

section 495 of the Criminal Code do not apply to territorial offences. The Territorial Court’s rationalization for this proposition is found at paragraph 16 of the Minoza judgment, where the Court says this: However, in my view, the general powers of arrest contained in sections 494 and 495 of the Criminal Code are inapplicable to territorial offenses. The relevant powers of arrest provided for by those sections all relate to “indictable offences” or “criminal offenses”.

Clearly the applicable offences created by the Liquor Act of the Northwest Territories are not “indictable” or “criminal offenses”. [ 41 ] It is only sections 495(2) (a) (referencing arrest for indictable offenses) and 495(2) (b) (referencing arrest for hybrid offenses) that have no application to offenses created by a territorial enactment. All offenses under territorial legislation are punishable by

summary conviction. Section 495(2) (c), (d), and (

e) of the Criminal Code expressly apply to all “offences punishable by

summary conviction”. These subsections do not specifically reference either indictable offenses or criminal offenses. [ 42 ] This Court concludes that the provisions of section 495(2) do apply in law to all

summary conviction offenses under territorial enactments unless these provisions can be said to be expressly or, by necessary implication, excluded from application by the territorial legislation in question. [ 43 ] There is nothing in

section 111 of the Liquor Act to suggest that the Territorial Legislature intended to exclude the application of the Criminal Code provision requiring arrests to be in the public interest. [ 44 ] Section 495(2) of the Criminal Code is of profound significance to the preservation of individual liberties in the criminal process. It stands as a bulwark against arbitrary arrest.

It parallels and complements the Charter , along with common law principles that have protected the rights and liberties of the subject through the ages. [ 45 ] This Court will not lightly infer a legislative intention to do away with an important legal safeguard for individual liberties. The application of section 495(2) , subsections (

d) and (

e) of the Criminal Code is not expressly excluded by the Liquor Act. Nor can its application be said to be excluded by necessary implication. [ 46 ] There are therefore two criteria that must be met in order for an arrest under

section 111 of the Liquor Act to be lawful:

1. There must be reasonable and probable grounds to believe that a Liquor Act offense is being committed at the point of arrest. The arresting officer must not only have an honest subjective belief that these grounds exist, but these grounds must be justifiable from an objective point of view. 2. The arresting officer must also have an honest belief that an arrest is necessary in the public interest, having regard to the criteria set out in section 495(2) (

d) and (

e) of the Criminal Code . This belief must also be justifiable from an objective point of view. [ 47 ] The Crown has established that the authorities had the requisite grounds to believe that the defendant was committing an offense under the Liquor Act. I move now to consider whether the arrest and subsequent detention of the defendant in this case can be said to be objectively justified in the public interest. IV. ANALYSIS A.

The public interest justification for the arrest of the defendant [ 48 ] Constable Allen was asked these questions by Crown Counsel and gave these answers in relation to the public interest justification for the arrest. Q. Officer, I want you to sort of put your mind to the point in time when you had arrested Ms. Akpalialuk. At that point in time you knew what her identity was, is that correct, at the time that you arrested her? A. I believe I knew what her identity was. Q. Did you know what evidence she had in the vehicle? A.

I believed that there was alcohol which contained two 60s and 38 mickies and some beer in there. And I also believed that that liquor was for sale and not just for her own personal consumption. Q. And did you give your mind thought to the consideration that if the alcohol was in the vehicle, that there was no need to arrest her and you could seize that evidence without arresting her? A. I never gave it a thought, no.

Because I like to, when I have the opportunity, provide people their -- I would be detaining her or arresting her at some point to confirm her identity, I would have liked to have taken a statement from her or attempted to take a statement from her and I would also want to ensure that she was able to exercise her right to counsel.

And I know by following the Charter card, bringing her back to the detachment, allowing her access to counsel, I didn't want to have any issues in the future coming back saying that, you know, if I had just talked to her and asked her about it, I'm quite certain that anything she told me would not be admissible here today. (Transcript of Proceedings on June 18, 2013, p 26 at line 13 - page 27 at line 17). [ 49 ] It is clear from the evidence heard in this proceeding that an arrest was not needed to confirm the identity of the defendant.

The defendant had cooperated with the Officer and had readily confirmed who she was. The defendant’s house number and phone number was already known to the police. This information was on the defendant’s Liquor Import Permits that the police had collected prior to making their arrest. [ 50 ] The police had seized the alcohol from the defendant’s vehicle. There was no basis to conclude that the offence of unlawfully

keeping liquor for sale would be continued without the alcohol now held by the investigating authorities. [ 51 ] Nor was there any basis to conclude that the defendant was a flight risk and might not attend court as required. [ 52 ] The defendant had no criminal record of any kind. There was no reason to believe that the defendant would be tempted to repeat this offence or other offences if unconditionally released upon a promise to appear. [ 53 ] If there was no arrest or detention, there was no need for the defendant to be immediately given an opportunity to retain counsel.

Absent an arrest, transport of the suspect back to the detachment was not necessary for this purpose. [ 54 ] The only justification advanced by Constable Allen for the arrest and detention in the circumstances of this case was the investigating officer’s desire to take a statement from a citizen who was not legally required to give a statement in the first place. [ 55 ] There is no evidence to suggest that the defendant was ever asked prior to her arrest whether she would like to give a statement. This experienced officer knew that a suspect in any police investigation has a legal right to remain silent.

This experienced police officer knew that there was no basis in law to compel the giving of a statement if a suspect wished to remain silent. [ 56 ] If the suspect in this case had indicated a willingness to give a statement, which is not the case here, there was no apparent reason why she could not have attended the detachment on her own at a later time and date to do so without the necessity of an arrest. There was clearly no urgent need to take a statement from the defendant.

The arresting officer was prepared to keep the defendant in cells for 9 hours until it was convenient for him to attend the detachment and take a statement. In the circumstances of this case, the arresting Officer’s family affairs were accorded a higher priority than this defendant’s liberty interest. [ 57 ] The Crown urges this Court to find that the public interest justification for the arrest made in this case can be found in the Officer’s belief that the arrest was needed to “secure or preserve evidence of or relating to the offence”.

The Court now turns to examine the meaning of the phrase “secure or preserve evidence” as found in section 495(2) (d)(ii) of the Criminal Code . B. The need to secure or preserve evidence [ 58 ] In accordance with common law principles of statutory

interpretation, the statutory provision justifying arrest contained in section 495(2)(d)(ii) ( Criminal Code ), must receive a narrow

interpretation in order to best achieve the policy objectives underlying this legislation. This statutory provision was intended to safeguard personal liberties. It seeks to limit police powers of arrest to those circumstances truly warranting arrest and detention in the public interest. [ 59 ] The broad or liberal

interpretation of the phrase “secure or preserve evidence” advanced by the Crown would undermine the policy objectives underlying section 495(2) (

c) and (d) ( Criminal Code ). It would be a rare case where a police investigation could not benefit from an inculpatory statement being provided by a suspect. If arrests can be justified to take statements from suspects, then section 495(2) would afford no real protection of a citizen’s liberty interests. Arrests would be commonplace. Section 495 (2) would be reduced to a hollow protection more honoured in the breach than in its observance. [ 60 ] Allowing arrests for the purpose of taking statements would clearly subordinate the citizen’s liberty interest to police interrogation.

Liberty could be stripped away to accommodate a police officer’s desire to take a statement in circumstances where a suspect or an accused has a legal right to remain silent. [ 61 ] This could not have been intended by Parliament. Parliament itself is bound to respect the rights and freedoms guaranteed to all citizens by the Charter . To confer such a broad

interpretation upon section 495(2) (d)(ii) of the Criminal Code would undermine the law’s protection of the citizen’s right to remain silent. It would cheapen and degrade the liberty interest that the common law has long regarded as the foremost right, in a panoply of freedoms, held by citizens in a free and democratic society.

[ 62 ] The Oxford English Dictionary defines “preserve” when used as a verb as meaning “to maintain something in its original or existing state” . The reference in section 495(2) (d)(ii) to a need to “preserve” evidence relates to the preservation of something that is already in existence. One cannot preserve something that does not exist. The use of the word “preserve” thus excludes the notion that the arrest can be made to obtain evidence that does not yet exist.

The Court infers that an arrest can be justified by the need to seize and “preserve” real evidence that may be secreted on the person of the suspect, but not otherwise. [ 63 ] The Oxford English Dictionary defines “secure” when used as a verb to mean “to fix or attach something firmly so that it cannot be lost; to protect against threats, to make safe; and to succeed in obtaining something with difficulty” . [ 64 ] Parliament did not speak of the need to “obtain” evidence as a justification for arrest.

Nor did it use the conjunction “and” in association with the verb “preserve” in the phrase “obtain and preserve”. [ 65 ] This Court concludes that Parliament’s conjunctive association of secure with the narrower and more precise verb “preserve” suggests that the broad meaning attributed to the word “secure” by the Crown was not intended by Parliament.

The conjunction “or” in this case was intended to connect alternatives for the same thing. [ 66 ] To the extent that the use of the English word “secure” is ambiguous and capable of referencing an arrest made to “obtain” evidence that does not yet exist, it must be read down to make it consistent with the meaning associated with the verb “preserve”. [ 67 ] For all of the reasons advanced above, this Court concludes that Parliament intended the words “secure or preserve” in section 495(2) (d)(ii) to reference only the gathering or receiving of evidence that is already in existence for the purpose of keeping it or preserving it for later use.

This Court concludes that the public interest does not contemplate or countenance arrests being made solely for the purpose of taking statements. More is required. [ 68 ] Nor is an arrest justifiable solely for the purpose of facilitating access to counsel. Allowing arrests for the purpose of facilitating access to counsel in circumstances where an arrest is not otherwise necessary in the public interest makes a mockery of the Charter . The Charter was intended to be a shield to protect the liberty of the individual from unjustifiable state encroachment.

The Charter is not a sword to be wielded by the state to cut down the very liberties that the Charter seeks to confirm and protect. [ 69 ] It is troubling that the arresting officer in this case did not appear to turn his mind to whether the arrest of the defendant in this case was justifiable in the public interest. The law requires peace officers not to arrest except where an arrest is mandated in the public interest. The arresting officer indicated that it was “his practice” to make arrests. The law gives peace officers a legal discretion.

This discretion, to arrest or not, is to be determined on a case by case basis on the strength of the public interest criteria set out in section 495(2) (d)(i)(ii)(iii) and (e). It was apparent from this officer’s evidence that he routinely fails to exercise this discretion. The exercise of discretion to arrest or not was fettered by a “practice” to arrest in every case. This is a “practice” that is not contemplated by the law. [ 70 ] Section 495(3) of the Criminal Code “deems” arrests made under section 495(1) of the Criminal Code to be lawful notwithstanding non-compliance with section 495(2) .

Section 495(3) provides as follows: Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (

a) any proceedings under this or any other Act of Parliament; and (

b) any other proceedings, unless in any such proceedings, it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). [ 71 ] The arrest in this case was not made under section 495(1) of the Criminal Code . The arrest of the defendant in this case was made under

section 111 of the Territorial Liquor Act. The “deeming” provision set out in section 495(3) of the Criminal Code thus has no application to the arrest of Lucy Akpalialuk. Furthermore, the “proceeding” in this case is a proceeding under the territorial Liquor Act. It is not “a proceeding under the Criminal Code or other Act of Parliament”.

[ 72 ] For all of the above reasons, this Court finds that the defendant has established that her arrest was unlawful by reason of the authorities’ non-compliance with section 495(2) of the Criminal Code . The Court therefore finds that the defendant’s right to be free of arbitrary arrest and detention under

section 9 of the Charter has been violated. The Court moves now to consider whether the evidence collected by the police as a consequence of this breach should be declared inadmissible C.

Should the confession obtained by the authorities as a consequence of the arrest be excluded pursuant to section 24(2) of the Charter ? [ 73 ] In making this determination, the Court is required to consider the seriousness of the Charter violation, the impact that this violation has had on the Defendant’s Charter protected interests, the impact that exclusion of the evidence would have on the Crown’s ability to prosecute the allegation, and society’s interest in having the matter adjudicated on its merits. (i).

Seriousness of the Charter violation and its impact on the defendant’s Charter protected interests [ 74 ] This 20 year old defendant was arrested and detained in circumstances where the authorities ought to have released her unconditionally. The defendant was separated from her mother, younger brother, and four year old child. She was detained for nine hours in a police cell. She was induced to give the authorities a statement admitting the offence, though repeatedly verbalizing her reluctance to do so. The Charter violation in question has impacted this citizen’s liberty interests.

The Charter violation was not momentary or transitory. It was not technical or trifling. The Charter violation was deliberate. It was egregious and arbitrary. Liberty was taken in an effort to induce a confession in circumstances where the defendant had a legal right to remain silent. (ii). The impact that exclusion of the evidence will have on the Crown’s ability to prosecute the offence and society’s interest in adjudication on the merits [ 75 ] The offence of unlawfully keeping liquor for sale is an extremely serious offence.

This offence, along with the offence of bootlegging, attracts the most serious penalties known to territorial law. Substance abuse is tearing Nunavut’s families and communities apart. Much of Nunavut’s violent crime is alcohol related. Much of this crime is driven by bootleg alcohol. [ 76 ] Bootlegging is an offence that is driven by profit. This is an enterprise that preys upon the vulnerable. The underage minor and the addict will pay many times the retail value of a bottle to satisfy their craving. Many vulnerable citizens go without necessities, so the addict can have a fix. Alcoholics are also vulnerable.

Many lack the strength to say no. For these reasons, bootlegging and its related offenses cannot be said to be victimless offenses. Nunavut society has a significant interest in seeing that charges related to the unlawful sale of alcohol are disposed of on their merits. [ 77 ] In this case, exclusion of the evidence related to the statement does not cripple the Crown’s ability to prosecute the charge against the Defendant. Even if the evidence related to the statement is excluded, the evidence flowing from the seizure of the alcohol remains admissible.

Section 127 of the Territorial Liquor Act allows a trier of fact to draw inferences from the frequency, volume, and type of alcohol being received by an accused. [ 78 ] The circumstances surrounding the taking of the Defendant’s statement raises questions about its reliability. The Court has been deprived of the opportunity through a voir dire to assess the issue of voluntariness. Voluntariness of the Defendant’s statement was admitted by Defense counsel. A statement, unlike real or physical evidence, does not always speak for itself. V.

CONCLUSION [ 79 ] All citizens have a profound interest to ensure that the legal rights fundamental to a free and democratic society are preserved and protected. [ 80 ] The Charter ensures that our legal rights and fundamental freedoms are not eroded in a rush to justice. Where the forces of the state exceed their authority and violate the rights guaranteed by the Charter, the evidence so gathered must occasionally yield to a higher

value. While society does have a significant interest in having serious allegations of misconduct addressed on their merits, due process must be observed through the process of investigation and adjudication if these freedoms are to be maintained. This is freedom’s price. [ 81 ] The administration of justice is damaged by the admission of evidence obtained at the expense of individual rights. On balance, this Court is of the view that the admission of the statement obtained in the circumstances presented here would bring the administration of justice into disrepute.

The statement is consequently excluded from evidence under section 24(2) of the Charter . [ 82 ] The Crown has quite properly conceded that should the Court decide to exclude the statement of the defendant, the expert report given by RCMP Sgt. Paul Robinson should also be excluded from the evidence to be considered at trial. The expert’s opinion was premised in part upon the information gathered during the statement taking process. The expert opinion evidence is therefore excluded from the trial evidence. A.

The trial evidence [ 83 ] Counsel have agreed that all the evidence heard by this Court on the Charter voir dire can be considered on the trial proper. All the evidence related to the search and seizure of the alcohol from the defendant’s vehicle is therefore trial evidence. The Court has the evidence related to the four alcohol permits obtained by the defendant between March 20 and April 17, 2012. In addition, the Court has four First Air waybills matching the four liquor import permits. These waybills confirm receipt of the shipments identified in the waybills.

The signature on the waybills matches the signature on the Liquor Import Permits. [ 84 ] The trial evidence therefore indicates that on March 20, 2012, the defendant applied for and received a Liquor Import Permit #235- 32158 authorizing the acquisition by the defendant of 12 375ml bottles of spirits. This alcohol was subsequently received by the defendant from First Air Cargo as indicated by First Air waybill bearing number 245-4299051. [ 85 ] Six days later, on March 26, 2012, the defendant applied for and received a Liquor Import Permit #235-32253 authorizing the defendant to import 36 375ml of spirits.

This alcohol was subsequently received by the defendant from First Air Cargo as indicated by First Air waybill number 245-43161403. [ 86 ] On April 10, 2012, fifteen days later, the defendant applied for and received an additional Liquor Import Permit #235-32503 authorizing the defendant to import a further 26 375ml bottles of spirits.

This shipment was subsequently received from the defendant from First Air Cargo as indicated by First Air waybill number 245-43161403. [ 87 ] Finally, by Liquor Import Permit #235-32663 dated April 17, 2012, the defendant applied for and received a Liquor Import Permit authorizing her to import 38 375ml bottles of spirits, two 60 ounce bottles of spirits, and 24 cans of beer. This alcohol was received by the defendant from First Air cargo as indicated by First Air waybill number 245-43173465. This was the shipment that was intercepted by the RCMP and seized from the defendant’s motor vehicle on April 20, 2012.

This is the shipment that underlies the charge before the Court. [ 88 ]

Section 127 of the Territorial Liquor Act provides as follows: Circumstantial evidence 127. On the hearing of a charge of selling or purchasing liquor or of the unlawful having or keeping of liquor contrary to this Act or the regulations, the court may draw inferences of fact (

a) from the kind or quantity of liquor found in the possession of the person accused or in any building, premises, vehicle or place occupied or controlled by that person; (

b) from the frequency with which liquor is received by the person accused or is received at, or in or removed from any building, premises, vehicle or place occupied or controlled by the person accused; (

c) from the circumstances under which liquor was obtained or is

kept or dealt with…. [ 89 ] The evidence before the Court confirms that the defendant received 114 mickey bottles, 2 60 ounce bottles, and two cases of beer in four applications made over 28 days. [ 90 ] This evidence leads to an irresistible inference that the liquor was being possessed unlawfully by the defendant for the purpose of sale. The volume, frequency, and type of bottle being received by the defendant was not consistent with personal use by the defendant in a span of 28 days. [ 91 ] This Court is satisfied on proof beyond a reasonable doubt that on April 20, 2012, the defendant Lucy Akpalialuk was in unlawful possession of liquor for the purpose of sale contrary to

section 84 of the Liquor Act. She is therefore convicted of the offence charged. Dated at the City of Iqaluit this 11th day of July, 2013 ___________________ Justice R. Kilpatrick Nunavut Court of Justice