r v. SONYA KAWAPIT, 2021 QCCQ 15639

R. c. Kawapit 2021 QCCQ 15639 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF VAL-D’OR “Criminal and Penal Division” No.: 614-72-002911-219 DATE: December 13, 2021 / ORAL DECISION ______________________________________________________________________ PRESIDED BY THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

SONYA KAWAPIT Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant, Sonya Kawapit, is charged with two offences regarding the by-law of the Whapmagoostui First Nation regulating alcohol in the community of Whapmagoostui. [ 2 ] The charges are as follows: 1 On or about 24 December 2020, within the Category 1A lands of the Whapmagoostui First Nation, to wit, at or near Band Office, Whapmakw Maskino, did possess in a quantity superior to the limit permitted, contrary to

section 5.3 of Law No. 2013-150, and did thereby commit an offence pursuant to the

section 12 of the said Law. 2 On or about 24 December 2020, within the Category 1A lands of the Whapmagoostui First Nation, to wit, at or near Band Office, Whapmakw Maskino, did purchase or order alcohol other than beer, wine or cider, contrary to

section 8.7 of Law No. 2020-330 (as amended by amending law 2020-350), and did thereby commit an offence pursuant to the

section 12 of the said Law. [ 3 ] The trial raised the following questions: − Can the fact that the defendant was not aware of the contents of the bag be a defence against the charge of possession of alcohol? − Has the charge of purchasing or ordering alcohol other than beer, wine or cider been proved? − Has the right to be secure against unreasonable search or seizure been breached? − In the event of a violation, must the evidence be excluded under section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter )?

THE CONTEXT [ 4 ] On December 24, 2020, the defendant was working at the airport as a security guard. [ 5 ] The police department of Whapmagoostui received information concerning cargo from Chisasibi containing alcohol. The shipment (a hockey bag) was sent by someone in Chisasibi to Noella Georges. [ 6 ] The defendant had a request from her aunt, Noella Georges, to pick up the hockey bag received by cargo and bring it to her. [ 7 ] This request was not unusual, considering her work at the airport.

She had frequently done this kind of favour for family members or friends in the past. [ 8 ] The defendant took the hockey bag when she finished work. She placed it in her vehicle and drove to the centre of the community. [ 9 ] She was intercepted on Whapmakw Maskino, in front of the Band Office. The defendant was informed by the police officer that he suspected she had alcohol in the hockey bag.

[ 10 ] They asked to search the hockey bag and she agreed. [ 11 ] They found 14 bottles of alcohol, as follows: − 12 bottles of Smirnoff vodka, 26 oz. each; − 10 bottles of Smirnoff vodka, 750 ml. each; − 2 bottles of Smirnoff raspberry vodka, 750 ml. each; − 1 bottle of Smirnoff vodka, 1.14 l.; − 1 bottle of Bailey’s Original, 750 ml.; [ 12 ] She was charged with possession of alcohol in a quantity superior to the limit permitted and to have purchased or ordered alcohol other than beer, wine or cider, contrary to the Whapmagoostui by-law. [ 13 ] The Court must decide whether the prosecutor has proved these offences beyond a reasonable doubt, and more specifically, answer the following question: Can the fact that the defendant was not aware of the contents of the bag be raised as a defence against the charge of possession of alcohol? [ 14 ] In her defence, the defendant stated she did not have knowledge of the contents of the bag.

Noella Georges, her aunt, asked her to pick up her bag at the airport and bring it to her place. She is a security guard at the airport, so she frequently receives requests so that friends or family members can avoid going to the airport. [ 15 ] She did not verify inside the bag before taking it, even though it was heavy. [ 16 ] The prosecutor submits that the defendant’s behaviour was wilful blindness and the defendant has not made out the due diligence defence, since she did not take all reasonable steps in the circumstances to avoid committing the offense. [ 17 ] In R . v. Sault Ste.

Marie , [1] the Supreme Court dealt with the distinction between true criminal offences and public welfare offences. Public welfare offences may be referred to as strict liability offences. [ 18 ] Clearly, the offence set out in

section 5.3 of By-law No. 2013-150 is a regulatory public welfare offence and therefore prima facie an offence of strict liability. [ 19 ] An offense of strict liability is one in which mens rea need not be established, but where the defence of reasonable belief in a mistaken set of facts or the defence of reasonable care is available. [ 20 ] With respect to the defence of due diligence against the strict liability offense, the Court is of the opinion that the defendant has not met her burden of establishing on a balance of probabilities that she took all reasonable steps in the circumstances to avoid committing the offense.

Before her decision to take the bag at the airport, the minimum would have been to open it to verify the contents. It could have been even more serious than alcohol. The fact that it was someone related to her who made the request did not exempt her from taking reasonable steps to verify. [ 21 ] For that reason, the Court finds that the offence has been proved and the fact that the defendant was not aware that alcohol was in the bag cannot be raised as a defence against her liability for such offense.

Has the charge of purchasing or ordering alcohol other than beer, wine or cider been proved? [ 22 ] There is no evidence that the defendant purchased or ordered the alcohol. [ 23 ] According to the defendant’s testimony, which is believed by the Court, she merely transported the hockey bag at her aunt’s request. [ 24 ] For these reasons, there will be no question regarding the exclusion of the evidence under section 24(2) of the Charter , and the defendant will be acquitted of count #2 for a charge under

section 8.7 of By-law No. 2020-330 (as amended by by-law 2020-350). CHARTER CONSIDERATIONS Has the right to be secure against unreasonable search or seizure been breached? [ 25 ] A self-represented defendant is a challenge for a trial court. [ 26 ] There is a duty placed on a judge to provide some level of assistance, especially with regard to potential Charter issues. [ 27 ] In the present case, it was a warrantless search, which is prima facie unreasonable. The prosecution bears the onus of proving

otherwise. [ 28 ] In Hunter et al . v. Southam Inc ., [2] the Supreme Court stated that

section 8 of the Charter guarantees a broad and general right to be secure from unreasonable search and seizure. Reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found, with a prior authorization by a neutral arbiter, are generally required for a valid search and seizure. [ 29 ] In R . v. Edwards , [3] the Supreme Court of Canada decided that the expectation of privacy is one of the factors to consider to determine whether or not a warrantless search under the Charter is reasonable. [ 30 ] In the case of R . v.

Winter , [4] the offender was charged under the Controlled Drugs and Substances Act for possession of cocaine. The offence took place in the Aboriginal community of Sachigo Lake, a self-governing community under the Indian Act , which is accessible by winter road or air. [ 31 ] The community had adopted a by-law on intoxicants abuse to control a serious social issue. [ 32 ] To decide whether or not a warrantless search was reasonable, the Superior Court of Justice of Ontario assessed the expectation of privacy that an individual was entitled to under the circumstances.

The Court stated: [10] In any event, considering all of the evidence relating to the dry reserve status of the Sachigo Lake community and its neighbouring communities, it would seem from a purely objective point of view that anyone entering the community, because of the difficulty the community was having with intoxicants and their battle to combat same, would have a considerably lessened expectation of privacy than one might find in some other communities in the country. [ 33 ] By-law No. 2013-150 prescribes a seizure procedure: SEIZURE AND DESTRUCTION OF ALCOHOLIC BEVERAGES 10.1 Every Peace Officer who has reasonable cause to believe that alcoholic beverages are being or have been consumed in a vehicle may require the vehicle to stop and require the driver or the owner to allow him to inspect the alcoholic beverages transported .

The driver or owner must comply without delay.

The Peace Officer may, upon stopping the vehicle, seize any alcoholic beverages possessed or transported in contravention of the laws of the Province of Quebec or the present By-Law. 10.2 Whenever a Peace Officer believes on reasonable grounds that an offence is being or has been committed against one or more of the provisions of the present By- Law, he may seize all goods and chattels by means of or in relation to which he reasonably believes the offence is being or was committed. […] [underlined by the court] [ 34 ] According to the by-law, police officers have an inspection power to enforce the regulation. [ 35 ] The previous by-law [5] also mentioned its reasons for existence in the following whereas clauses: WHEREAS the alcohol abuse is to be deemed a serious social problem within the community of Whapmagoostui; WHEREAS the Whapmagoostui First Nation and the Northern Village of Kuujjuaraapik have agreed to work together in addressing the issue of alcohol use in their respective communities; WHEREAS it is appropriate and desirable that the Whapmaggostui First Nation regulate the sale, exchange, possession or consumption of alcoholic beverages; [ 36 ] The expectation of privacy the defendant is entitled to under the circumstances takes into account the facts that the community is a dry community and that the by-law permits inspections in order to ensure compliance. [ 37 ] The members of the community knows or should know that such a verification or inspection is possible. [ 38 ]

Section 8 of the Charter must be applied with flexibility and in accordance with the objective pursued [6] by the by-law. With respect to inspections, it is established that the expectation of privacy is very low [7] . [ 39 ] For these reasons, the Court finds that the search and seizure were not in breach of the defendant’s Charter rights under

section 8 . [ 40 ] For all the above reasons, the defendant is found guilty on count #1 for possession of alcohol in a quantity superior to the limit permitted, contrary to

section 5.3 of By-law No. 2013-150.

Signed in Val-d’Or on January 20, 2022 __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Audrey Demarsico Counsel for the prosecution Sonya Kawapit Representing herself Date of hearing: December 13, 2021