R. v. Ippak, 2015 NUCJ 03

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Ippak, 2015 NUCJ 03 Date: 20150108 Docket: 13-13-53 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: Moses Ippak Junior ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Respondent): Amy Porteous Counsel (Applicant): Susan Charlesworth Location Heard: Iqaluit, Nunavut Date Heard: Nov. 25 and Nov. 28 2014 Matters: Voir Dire; 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 ss. 8 , 9 , 10(b) , and 24 ; Controlled Drugs and Substances Act, S.C. 1996, c. 19 s. 5(4) , s 5(4). REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The applicant, Moses Ippak Junior [hereinafter Mr. Ippak], lives in the small hamlet of Sanikiluaq, Nunavut. [ 2 ] On November 1, 2013, the applicant was returning home from Montreal. [ 3 ] That morning the Royal Canadian Mounted Police [RCMP] in Sanikiluaq received an anonymous phone call. The unidentified caller advised that Moses Ippak Junior was flying home from Montreal with at least 15 mickeys of alcohol in his luggage. Corporal Breton was told that the applicant was arriving on the Air Inuit flight that day. Mr.

Ippak Junior was described as a small guy with big eyes. [ 4 ] Shortly after noon on November 1, 2013, Constable Barlow and Corporal Breton travelled to the Sanikiluaq airport to investigate. They were in full police uniform and driving the RCMP marked vehicle. [ 5 ] Only one passenger exited the Air Inuit flight. That person identified himself to the officers as Moses Ippak Junior upon his arrival into the airport terminal. [ 6 ] Corporal Breton told the applicant right away that he had received an anonymous tip that he was bringing liquor back into the community. [ 7 ] Corporal Breton also told Mr.

Ippak that he was not being arrested or detained and that he was under no obligation to speak with the police. [ 8 ] The applicant told Corporal Breton that he did not have any liquor in his lone suitcase and at that time he offered to have the officer search it if he wished to do so. [ 9 ] Corporal Breton declined to search Mr. Ippak’s suitcase at that time. Instead he produced a standard RCMP Consent to Search form. He read the form to Mr. Ippak who asked some questions, but eventually signed the form authorizing the police to search his luggage. [ 10 ] When Corporal Breton opened Mr.

Ippak’s suitcase, he discovered a very strong odour of raw marijuana. He closed the suitcase immediately without seeing the drugs and without disturbing the contents. [ 11 ] At that point he placed the applicant under arrest for possession of marijuana, read him his rights to counsel, and escorted him to the RCMP station in Sanikiluaq. [ 12 ] A further search was conducted on Mr.

Ippak’s suitcase after his arrest and his rights to counsel were given. [ 13 ] 2.7 pounds of marijuana was concealed within the suitcase including approximately five thousand gram sized plastic bags. [ 14 ] The applicant was then charged with possession for the purpose of trafficking. He was given a second opportunity to speak to counsel at that time.

[ 15 ] The applicant applies for relief under s. 24 of the 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], that the evidence seized be declared inadmissible. Mr. Ippak Junior alleges infringements of his rights under sections 7, 8 , 9 , and 10 (b). He also argues that he did not fully understand the Consent to Search form because English is not his first language. [ 16 ] On November 25 and 28 last, a voir dire was conducted. The applicant and Corporal Breton testified. An agreed statement of facts was presented concerning Constable Barlow’s limited involvement and my ruling on the voir dire was reserved to today’s date. [ 17 ] At no time during this voir dire did the parties address a

section 7 breach of Mr. Ippak’s rights under the Charter . Therefore, this judgment addresses only the alleged breaches under sections 8 , 9 , and 10 (b). II. ISSUES 1. Was the applicant arbitrarily detained by Corporal Breton within the meaning of

section 9 of the Charter ? 2. Was the applicant’s

section 10(

b) Charter right to counsel violated upon his detention? 3. Was Corporal Breton’s search of the applicant’s personal luggage upon his detention a violation of his

section 8 Charter right to be free from unreasonable search and seizure? 4. Should the evidence obtained by the police be excluded pursuant to section 24(2) of the Charter ? III. FACTS [ 18 ] On November 1, 2013, at approximately 9:20 a.m. Corporal Breton [Breton] of the Sanikiluaq RCMP received information from an anonymous informant of unknown reliability. [ 19 ] The information received was that Moses Ippak Junior was returning from Montreal on the Air Inuit flight scheduled to land that day with at least 15 mickeys of alcohol. Mr.

Ippak was described as a small Inuit man with big eyes. [ 20 ] After receiving the call, Breton made further inquiries as follows: • He contacted Air Inuit and confirmed that Moses Ippak Junior was the only passenger that day on the passenger flight arriving in Sanikiluaq from Montreal. • Breton then ran the applicant’s name in the police information systems: CPIC and PROS. He discovered that Mr. Ippak’s name was contained on two or three packages that were confirmed to have contained marijuana in the past. No further follow up was done by the police and Mr.

Ippak was never charged or questioned by the police in relation to the packages. • Breton testified that he did not put much weight on the CPIC or PROS information. There was no criminal record and no record of any kind indicating that the accused had personal contact with the RCMP in the past. • Breton discovered that Mr. Ippak was born in 1987 and therefore was 26 or 27 years old. [ 21 ] Breton passed this information on to his partner, Constable Barlow. [ 22 ] Breton confirmed that an Air Inuit flight was scheduled to arrive in the community around 11:00 a.m.

[ 23 ] The officers drove to the airport terminal and were advised that the flight at 11:00 a.m. contained cargo only and that the passenger flight would be arriving during the lunch hour at approximately 12:30 p.m. [ 24 ] The officers returned to the terminal in Sanikiluaq during the lunch hour and waited for the Air Inuit flight to touch down in the community. They were in full uniform and driving a marked RCMP vehicle. [ 25 ] Corporal Breton testified that he had no grounds for arrest and no grounds to obtain a warrant.

He gave evidence that the officers attendance was simply to investigate the tip they had received. [ 26 ] Both officers watched one lone passenger exit the aircraft and approach the airport terminal. [ 27 ] The passenger was Inuit, short, with kind of bigger eyes. He looked to be about the right age. [ 28 ] Both officers approached the man who identified himself as Moses Ippak Junior. [ 29 ] Breton introduced himself immediately and told Mr. Ippak that he was not being detained or arrested. He advised that he was investigating a liquor complaint.

The officer read the police caution to the applicant and told him that he did not have to say anything and that if he did say anything it could be used against him. Mr. Ippak said he understood. [ 30 ] Breton advised that he had received information that the applicant was carrying a quantity of liquor in his luggage. [ 31 ] Breton testified that the applicant looked surprised and told him right away that he didn’t have any liquor and that police could search his suitcase if they wished to do so. [ 32 ] Breton asked Mr. Ippak if they could talk further and took him to an area in the terminal which was less public.

He asked the applicant if he would sign a standard RCMP Consent to Search form and escorted him to the marked RCMP vehicle for that purpose. [ 33 ] The Applicant appeared to understand and did not appear nervous in any way. There were no threats or promises made to him at any time. [ 34 ] Breton opened the driver’s side door of the police vehicle and located the form which he explained to Mr. Ippak. [ 35 ] I had the benefit of listening to the audio taped interview which occurred before the applicant signed the Consent to Search form.

A transcript of what was said was entered as Exhibit #3 and the signed Consent to Search form was entered as Exhibit #1. [ 36 ] Once the consent was signed, Corporal Breton placed the applicant’s suitcase in the bed of the truck and opened it. He immediately detected a strong odour of what he believed to be raw marijuana. [ 37 ] The applicant withdrew his consent to search at that time and the officer closed the suitcase without disturbing any of the contents inside. [ 38 ] Mr.

Ippak was placed under arrest for possession of marijuana and escorted to the police station where he was given his rights to counsel for the first time.

[39] Once the applicant was lodged in the cells, his suitcase was searched thoroughly revealing 2.7 pounds of marijuana under someclothing. [40] In this case, the Crown prosecutor concedes that Mr. Ippak’s 10(

b) Charter rights were breached. He was not given his right tocounsel in a timely fashion and was therefore subject to an initial search which was unlawful in the circumstances. [41] The Crown and Defence differ with respect to whether or not the applicant was lawfully detained under

section 9 of the Charter. IV. ANALYSIS A. Was the applicant arbitrarily detained by Corporal Breton within the meaning of

section 9 of the Charter? (i). Applicant’s argument [42] In this case, the police unlawfully detained the applicant when he arrived at the airport in Sanikiluaq based on an anonymous tipfrom an unreliable and untested source that he was transporting liquor into the community. [43] The police did not have an arrest warrant or a search warrant because they had in law no grounds to obtain one under sections 111and 107, respectively, of the Nunavut Liquor Act, R.S.N.W.T. (Nu) 1988, c.

L-9, as duplicated for Nunavut by s.29 of the Nunavut Act,S.C. 1993, c. 28 [Liquor Act]. [44] Counsel referred to a case from the Territorial Court of the Northwest Territories (NWT) as being directly on point. The case of R vPanaktalok, 2011 NWTTC 19, [2011] NWTJ No.64 [Panaktalok], is one where the accused was charged under

section 2 of theTuktoyaktuk Liquor Restriction Regulations, NWT Reg 009-2010 [Regulations]. He was arrested and charged at the TuktoyaktukAirport after the RCMP discovered 12 forty ounce bottles of vodka in his checked luggage which exceeded the allowable quantity ofliquor that could be brought into the community under the Regulations. [45] The officer in the Panaktalok case had also received an anonymous tip from someone alleging that the accused was returning to thecommunity that day with a lot of booze.

No further information was provided. [46] One of the officers had received information personally with regard to Mr. Panaktalok bringing liquor into the community, but hehad never acted on that information. [47] The officer attended at the airport and watched the accused walk away without his luggage. He appeared to be nervous. The policeapproached Mr. Panatalok and the evidence is that he consented to have them search his luggage. [48] Although the decision in the Panaktalok case revolved around the alleged breach of his

section 8 rights under the Charter, counselargues that Judge Malakoe talks about an arrest under the Liquor Act being more restrictive than an arrest under the Criminal Code ofCanada [Criminal Code].

This case stands for the proposition that one must be found to be committing an offence before the person canbe lawfully detained. [49] The leading case on unlawful detention is the SCC case of R v Mann, 2004 SCC 52 , [2004] SCJ No 49, 185 CCC (3d)308 [Mann], which talks about when the police can detain someone for investigative purposes. [50] The facts in the case before the Court do not set out any reasonable grounds to suspect in all the circumstances that Mr.

Ippak wasin contravention of the Nunavut Liquor Act, and there was certainly nothing to suspect that he was involved in a crime under theCriminal Code or that such detention was necessary.

[ 51 ] The officer’s safety and the safety of the public was never at risk on these facts and therefore detention for investigative purposes does not fit within the legal principles outlined in Mann . [ 52 ] Counsel argues that a suspicion is not enough to detain someone under s. 9 of the Charter . (ii). Respondent’s argument [ 53 ] The initial detention of Mr.

Ippak was reasonable and lawful in the circumstances. [ 54 ] All that is required by law for an investigative detention is reasonable grounds to suspect that the accused is breaking the law. [ 55 ] The legal bar for investigative detention is very low. [ 56 ] Due to the anonymous tip and the additional preliminary investigation, there were reasonable grounds to be suspicious. [ 57 ] Breton advised Mr.

Ippak immediately that he did not have to speak to the police. [ 58 ] Not only did the applicant agree to speak with the Corporal, but he is the one who first suggested that the police should search his suitcase. [ 59 ] His detention was necessary in order to preserve the evidence because liquor is consumable. [ 60 ] Breton knows that if Mr. Ippak does not consent to a search of his luggage, the officer must walk away. [ 61 ] Counsel agreed that Mr. Ippak should have been given his right to counsel under

section 10 (

b) before signing the Consent to Search form, but they argue that the officer had sufficient information for an investigative detention. (iii). Analysis [ 62 ] I am satisfied that the police did not have sufficient information to detain the accused when they approached him at the Sanikiluaq airport that day. [ 63 ] Corporal Breton testified that all he had when he went to the airport on November 1, 2013, was general information. [ 64 ] Breton told Mr. Ippak that he was not being detained and was not being arrested.

He advised the applicant that he did not have to talk to the police. [ 65 ] The only information the officer had received was that Mr. Ippak was small with big eyes and he was likely to be bringing back alcohol.

[ 66 ] He did not know the applicant beforehand and, by his own testimony, Breton indicated to the Court that he had no grounds for arrest or search. [ 67 ] He told us that he put very little, if any, weight on the information he received from the police information databases. [ 68 ] He said at that time he had no reason to suspect anything was going to happen. He had nothing in his mind that would warrant giving the applicant his

section 10(

b) Charter right to counsel. [ 69 ] When questioned further, he said that his assessment was that it was just a routine check. [ 70 ] Breton said that there was nothing about the applicant’s demeanour to suspect that he was breaking the law when he was first approached. He did not appear to be nervous. They talked about the weather. Mr. Ippak was fully cooperative and polite. [ 71 ] Breton told this Court that the police regularly go to the airport to investigate these types of calls and often people allow them to search their luggage.

He went further to say that often the calls are unfounded. [ 72 ] He testified that if people do not want to sign the Consent to Search form or, if in response to the police request to search, they say no the officers are then obligated to simply leave. [ 73 ] There is absolutely no evidence before the Court that the information Breton received posed any form of danger or security risk to the police or to anyone else. [ 74 ] There was no immediate necessity to search in order to preserve the evidence. [ 75 ] I find that, on these facts, the applicant, Moses Ippak Junior, was arbitrarily detained by Corporal Breton within the meaning of

section 9 of the Charter . B. Was the applicant’s

section 10(

b) Charter right to counsel violated upon his detention? [ 76 ] The Crown in this case concedes that Mr. Ippak Junior’s right to counsel under

section 10(

b) of the Charter was violated. They agree that he should have been given his right to counsel before being asked to sign the Consent to Search form at the Sanikiluaq airport. C. Was Corporal Breton’s search of the applicant’s personal luggage upon his detention a violation of his

section 8 Charter right to be free from unreasonable search and seizure? [ 77 ] Again, Crown counsel concedes that the answer to this question is yes. Given the fact that the applicant was not given his right to counsel prior to the first search being conducted, it was unlawful in the circumstances. [ 78 ] I find that the second search of Mr. Ippak’s suitcase conducted at the RCMP station was lawful. The applicant at that time had been given his rights to counsel and the search was incident to his arrest. D. Should the evidence obtained by the police be excluded pursuant to section 24(2) of the Charter ? (i). Applicant’s argument

[79] Section 24(2) of the Charter provides that where, in proceeding under subsection (1), a Court concludes that evidence was obtainedin a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is establishedthat, having regards to all the circumstances, the admission of it in the proceedings would bring the administration of justice intodisrepute. [80] In the SCC decision in R v Grant, 2009 SCC 32 , [2009] 2 SCR 353, [2009] SCJ No 32 [Grant] at paragraph 72, it washeld that a judge should consider three factors in determining whether the admission of evidence would bring justice into disrepute.First, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interest of theaccused; and finally, society’s interest in the adjudication of the case on its merits.

D.i.1 Seriousness of the Charter-infringing state conduct [81] Counsel for the applicant argues that the breaches in this case are multiple and flagrant and therefore the evidence must beexcluded. The Court must distance itself from the unlawful behavior exhibited on these facts in order to preserve public confidence inthe rule of law and its processes. [82] Mr. Ippak was stopped at the airport and detained arbitrarily without reasonable grounds.

He was not given his right to counsel andwas subject to an arbitrary and unlawful search of his personal belongings which led to the discovery of a large quantity of marijuana. [83] Counsel referred to the decision of R v Kokesch, (SCC), [1990] 3 SCR 3, [1990] SCJ No 117 [Kokesch], at tabtwo of their book of authorities. Page 29, paragraph two states the following: Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone,not charge ahead and obtain evidence illegally and unconstitutionally.

When they take this latter course, the Charter violation is plainlymore serious than it would be otherwise, not less [paragraph 46]. [84] The Kokesch case involved a perimeter search of the accused’s residence. The Crown argued that the police possessed commonlaw authority to trespass upon the private property of the accused to conduct a search without a warrant. The Court found on the facts inthat case that the search was unreasonable and unlawful.

The gun which was seized in the search was subsequently excluded undersection 24(2) of the Charter. [85] Counsel then referred to the decision in R v Harrison, 2009 SCC 34 , [2009] SCJ No 34, 245 CCC (3d) 86. This was a2009 decision of the SCC which involved the stopping of a rental vehicle driven by the accused by an officer on highway patrol. Theofficer noticed that the vehicle had no front licence plate.

Before speaking to the occupants, the officer realized that the vehicle did notrequire a front licence plate as it was registered in Alberta. [86] The officer testified that even though he realized that he had no authority to stop the vehicle, he felt that abandoning the detentioncould affect the integrity of the police in the eyes of the observers so the officer questioned the driver and arrested him after discoveringthat his driver’s licence had been suspended. He then proceeded to search the vehicle and found 3.5 kg of cocaine. The evidence wasexcluded.

At paras 39-40 in the decision, the court says as follows: The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter. Toappear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhancethe long-term repute of the administration of justice: on the contrary, it undermines it. In this case, the seriousness of the offence and thereliability of the evidence, while important, do not outweigh the factors pointing to exclusion.

As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis“would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under theCharter and, in effect, declare that in the administration of criminal law “the ends justify the means”

[ 87 ] Counsel argued that in the case before the Court the multiple breaches of the accused’s rights under the Charter are both brazen and flagrant. The breaches in this case were therefore very serious. Corporal Breton’s actions were undertaken when he knew he did not have sufficient grounds to obtain a warrant or to detain Mr. Ippak. Evidence seized under such circumstances should be excluded pursuant to section 24(2) of the Charter.

D.i.2 Impact of the breach on the Charter-protection interest of the accused [ 88 ] The impact when you have multiple breaches of the applicant’s Charter rights is necessarily large. [ 89 ] Counsel referred back to the case of R v Panaktalok . This is the NWT case where the police received an anonymous tip that the accused was bringing excess liquor back into the community of Tuktoyaktuk. The case talks about the privacy interest of a citizen in his or her baggage. It also talks about air travel between small northern communities.

At paragraph 83, the Court says: “Each citizen must have confidence that his or her luggage will not be subject to search based on a tip from an anonymous stranger or the assessment by a police officer that the luggage could contain liquor.” [ 90 ] Counsel argued that there is a serious privacy interest that must be protected when one is travelling by air in northern communities. [ 91 ] There is a large impact on the interest of the accused when the police are allowed to search their personal belongings without appropriate reasonable and probable grounds to conduct a search. [ 92 ] The impact on the accused’s Charter protected rights acts in favour of excluding the evidence of the seized drugs in this case.

D.i.3 Society’s interest in the adjudication of the case on its merits [ 93 ] There is a necessity for the Court not to condone this type of conduct by the police in the future. [ 94 ] If the state does not have sufficient grounds to detain, arrest, or search, then the Court has an obligation to find that the evidence found should be excluded under section 24(2) of the Charter . [ 95 ] In this case, the large quantity of drugs discovered in Mr.

Ippak’s suitcase should not be the controlling factor. [ 96 ] Having the accused sign the Consent to Search form was unlawful without him being given his right to counsel. [ 97 ] The accused did not fully understand the Consent to Search that he signed and therefore it was not only unlawful, but it should be given little if any weight in the decision of whether to admit the evidence in this case or not. [ 98 ] Counsel submits that the serious and flagrant actions of the police on this occasion exhibited no concern whatsoever for the applicant’s personal rights under the Charter and the evidence must be excluded because the nature of the misconduct is so severe that it overrides society’s interest in the adjudication of the case on its merits. (ii).

Respondent’s argument [ 99 ] The applicant in this case has not met the burden of proof. The applicant has not shown on a balance of probabilities that admission of the drugs would bring the administration of justice into disrepute and the evidence should therefore be admitted.

[100] The police conduct in this case, although unlawful, was not flagrant. [101] The evidence of Corporal Breton establishes that he was trying to treat the applicant fairly throughout his interaction with Mr.Ippak. [102] The officer did not search the applicant’s luggage when he was given verbal permission to do so by Mr. Ippak. [103] The officer was not acting in bad faith, but instead was acting on information received that caused him to be suspicious. He madesome attempts to corroborate the information and he immediately told Mr. Ippak that he did not have to talk to him.

He told the applicantinitially that he was a police officer and that he was investigating an anonymous tip he received that the applicant was bringing liquorinto the community. [104] When Mr. Ippak offered to have him search his bag, the officer did not do so. Instead he asked if he would sign a Consent toSearch form. Breton took him to the privacy of the police vehicle and explained the form to him before getting his signature on it. [105] The officer knew that he would have had to walk away if Mr.

Ippak chose not to consent to the search. [106] Even though it is clear that the applicant should have been given his right to counsel before he signed the Consent to Search, he isthe one who suggested the search subsequently taken by the police officer. [107] The Crown argues that there was one primary breach of Mr. Ippak’s rights under the Charter. That primary breach is being deniedhis right to counsel and the other breaches flow from there. [108] Mr. Ippak is 26 and was in grade 11 at the time of his arrest. [109] He speaks English every day and he understood the Consent to Search form.

He knew for instance that he had the right to stop thesearch at any time. He knew this because he did stop the search once the police officer smelled the drugs. Once his consent had beenwithdrawn, Breton immediately stopped the search. [110] The consent form was fairly detailed and it met the requirements in R v Wills, [1992] OJ No 294, (ON CA)[Wills]. [111] The second search of Mr. Ippak’s luggage was lawful as it was conducted incident to his arrest and after he exercised his rights tocounsel. [112] At no time did the officers threaten the accused. They were respectful and polite throughout their interaction.

They were trying veryhard to be fair to the applicant. [113] The impact of the breach on the applicant’s Charter protected interests was minimal. [114] The entire detention was of short duration, from detention to release, a little over an hour and a half in length. [115] Although the accused did have an expectation of privacy in the contents of his luggage, that expectation was somewhat diminishedbased on the fact that all checked luggage is outside one’s control and subject to search. Although you do not abandon your privacyinterest, you take a risk that the luggage will be opened at any time.

[116] Society’s interest in the adjudication of the case on its merits is very high. Without admitting the evidence obtained the case for theCrown is gutted. [117] Corporal Breton testified that the amount seized in this case from Mr. Ippak’s suitcase was significant. He said he had reviewed anumber of drug files upon his arrival in the community and the amount of drugs seized from the applicant’s suitcase was far more thanwas typical in any of the files he had reviewed. [118] Society has a very substantial interest in getting drugs off the streets, particularly in Nunavut.

The cases of R v Devries, 2012NUCJ 7 , 2012 NUCJ 07, 2012 CarswellNun 11 [Devries], and R v Qrunngnut, 2013 NUCJ 8 , 2013 NUCJ 08, 2013CarswellNun 17, talk about the impact of the drug trade in this territory. [119] Weighing all the factors one must consider based on the Grant test, the Crown submits that exclusion of the evidence in this casewould bring the administration of justice into disrepute. (iii).

Analysis [120] Case Counsel agree that the leading case with respect to whether or not evidence should be excluded under section 24(2) of theCharter is R v Grant [supra para 80]. [121] The SCC in Grant talks about each case being decided on its specific facts taking into account all of the circumstances surroundingthe particular breach of the Charter found on the evidence produced during the voir dire. [122] As laid out in Grant, three main factors are to be considered by the Court as already set out in this decision: The seriousness of theCharter-infringing state conduct, the impact of the breach on the Charter-protected interest of the applicant, and finally, society’s interestin the adjudication of the case on its merits.

D.iii.1 Seriousness of the Charter-infringing state conduct [123] On one end of the spectrum are those cases where the evidence is obtained through inadvertent or minor violations of the Charterwhere public confidence is minimally affected and at the other end of the spectrum are those cases where the police obtained evidencethrough a willful or reckless disregard of the individual’s Charter rights. [124] As Breton explained, police officers often get anonymous tips from community members indicating that someone is bringingillegal liquor or drugs into the community. [125] In his evidence, Breton talked about what the police generally do when they receive these kinds of complaints.

He said that theywould attend at the airport and speak to the individuals identified. [126] He told the Court that liquor causes lots of problems for the police when it is brought into the small communities of Nunavut. [127] This Court takes judicial notice of the fact that in a large number of criminal cases alcohol is a contributing factor. [128] I say this not to condone the conduct by the police officers in this case, but to address the factors discussed in Grant with respect towhether or not there was a willful and reckless disregard of the applicant’s Charter rights and whether there was bad faith on behalf ofthe officers.

[ 129 ] Breton and the applicant both testified and their evidence collectively supports a finding that the officer made every effort to be fair with Mr. Ippak in his dealings throughout. [ 130 ] There were no promises, no threats, and there was no oppression. [ 131 ] When Mr. Ippak suggested that the officer search his luggage, Breton put on the brakes. He did not plow ahead without regard for the applicant’s rights under the Charter , but instead he took the time to explain to the applicant that in order for him to search his luggage Mr.

Ippak needed to sign a standard Consent to Search form which the officer then produced and explained to the applicant. [ 132 ] I have carefully reviewed Mr. Ippak’s testimony on this voir dire and I find that his command of the English language is very good. I find that he knew what he was signing and he knew he could stop the search at any time. This is confirmed by his actions when he did stop the search after the officer detected drugs upon opening his suitcase. [ 133 ] The applicant was in grade 11 at the time. He admitted, albeit reluctantly, that he speaks English every day.

He did not ask for an interpreter at any time during his testimony in this Court and he agreed that he was able to communicate with and understand his lawyer without the necessity of an interpreter. [ 134 ] He said that he knew they (meaning Breton and Barlow) were police officers. He told us he is the one who offered to let the police search his luggage. He said it was his idea at first. He told us that the police did not want to do it right away and asked if he would sign a Consent to Search form which he eventually did sign before any search was conducted. [ 135 ] Mr.

Ippak said that the Consent to Search form was read to him and he understood most of what Breton was saying to him. In his testimony he admitted that even though he knew that they were looking for liquor, he also knew that if they found drugs he would be in trouble. [ 136 ] At one point, the applicant testified that he was feeling alone and scared at the airport that day, but his own evidence does not support such a finding. [ 137 ] When re-examined on this point, he said that there was no difference between him being in Court and him talking to the police at the airport.

He was asked if he was scared of the Court and he said “no he was not.” There is no evidence that Mr. Ippak seemed frightened or intimidated by the officers. [ 138 ] The police made it clear from the beginning that they were engaged in a liquor investigation and that the applicant did not have to say anything to them. They believed, because of Mr. Ippak’s immediate offer to allow them to search his suitcase, that he was consenting to the search and although this belief by Corporal Breton did not legitimize the search, it did reduce the seriousness of the subsequent breaches in this case.

D.iii.2 The impact of the breaches on the Charter protected interests of the accused [ 139 ] R v Grant at paragraph 77 instructs the Court to identify the interests protected by the relevant Charter right and assess the degree to which the breach impacted on those rights. [ 140 ] Under this heading we must assess the degree of privacy with respect to Mr. Ippak’s luggage. [ 141 ] Given the policy of the Canadian Air Transport Security Authority [the Authority], there is a limited expectation of privacy in the contents of one’s checked luggage when someone is travelling by air.

In accordance with Canadian security regulations, agents of the Authority are required to inspect checked baggage. If that baggage is locked, they have the authority to open it by force and they assume

no liability for damage to personal property resulting from this necessary security measure. [ 142 ] Everyone who travels knows that once they check their luggage, they no longer have control over it. The bags are subject to search by the Authority and one gives up their reasonable expectation of privacy until the bag is back in their possession. [ 143 ] In this case, the bag made it through security, but the bag was still not in Mr. Ippak’s control when he spoke with the police officers at the Sanikiluaq Airport Terminal that day.

Although the expectation of privacy was not completely lost, it was somewhat reduced. [ 144 ] As well, in this case, the applicant’s offer to have the police check his bag upon his arrival in the terminal that day is an important factor to consider. [ 145 ] Another factor to be assessed is the duration of the detention and the impact of that detention on Mr. Ippak’s constitutional rights under the Charter . [ 146 ] In this case, the total time the applicant was detained or held in custody was fairly brief in duration. Breton testified that the plane landed around 12:30 p.m. and Mr.

Ippak left the police station shortly after the warned statement was taken at 1:40 p.m. He was released on a promise to appear. [ 147 ] Paragraph 76 of R v Grant indicates that more substantial and protracted breaches tend to more strongly support exclusion than more technical breaches. [ 148 ] At all times the applicant was treated fairly and with respect by Breton. He was afforded privacy at the terminal and the officer took a number of steps to make sure Mr. Ippak understood that he did have rights under the Charter .

D.iii.3 Society’s interest in the adjudication of the case on its merits [ 149 ] Paragraph 81 of Grant talks about the reliability of the evidence being an important factor.

The more relevant and reliable the evidence is, the more likely its admission is to be supported. [ 150 ] This is a case where the evidence is real and substantial. [ 151 ] The Court in Grant also says that where the breach (or in this case, breaches) undermine the reliability of the evidence (such as statements made without access to counsel) the more likely exclusion will occur. [ 152 ] And finally, at paragraph 82, the SCC indicates that the more important the evidence is to the case for the prosecution, the more likely the evidence will be admitted. [ 153 ] The seriousness of the offence will tend to be an equivocal factor. [ 154 ] Breton testified to prior experience with respect to drug investigations.

He had been part of the drug

section in Iqaluit for almost two years before being transferred to Sanikiluaq. [ 155 ] Breton testified that the drugs seized from the applicant were not a typical amount of drugs in relation to other drug files he had reviewed upon being stationed in Sanikiluaq. He testified that he had never seen anything close to the amount that was contained in Mr. Ippak’s suitcase.

[ 156 ] There have been a number of cases in this jurisdiction that have talked about the impact of trafficking in marijuana on citizens who live in Nunavut. [ 157 ] Justice Kilpatrick stated in the case of Devries (a 2012 decision of this Court), that substance abuse is a big social problem in Nunavut where the cannabis offence rate is four times the national average. He talked about the fact that many people in Nunavut who live in poverty and cannot afford it are spending money on this drug instead of providing the necessities of life to their families.

Justice Kilpatrick also noted that counselling services to address substance abuse problems are extremely limited in Nunavut and added that significant amounts of police time and resources are being expended to combat a growing underground trade in illicit drugs. [ 158 ] Justice Johnson in the case of Qrunngnut (a 2013 decision of this Court), at paragraph 51 noted the following: The recent report entitled Learning from Lives that Have Been Lived by Dr.

Edwardo Chachamovich and Monica Tomlinson that was released on June 5, 2013, listed cannabis abuse and dependence as a major risk factor in the high suicide rate in Nunavut. [ 159 ] Trafficking in marijuana is a very serious charge. Those who are addicted to drugs contribute to many social problems resulting in, among other things, criminal charges and disharmony in many homes throughout this territory. [ 160 ] Drug traffickers prey upon the most vulnerable in our society. [ 161 ] Without the drugs seized in this case, the prosecution’s case is over. V.

CONCLUSION [ 162 ] I am satisfied that the exclusion of this evidence would bring the administration of justice into disrepute. This court has a heavy responsibility to keep drug dealers and their couriers off the streets of Nunavut. [ 163 ] The application is hereby dismissed and the evidence seized in this case is admissible at trial. Dated at the City of Iqaluit this 8th day of January 2015

___________________ Justice B. Tulloch Nunavut Court of Justice