R. v. Boynton, 2023 NUCJ 10

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Boynton, 2023 NUCJ 10 Date: 20230412 Docket: 18-21-19 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Matthew Boynton __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): R. Louis M. Eaton-Kent Location Heard: Date Heard: Iqaluit, Nunavut February 27, 2023 Matters: Decision in regards to applications under The Canadian Charter of Rights and Freedoms , ss. 7 , 8 , and 15(1) .

REASONS FOR DECISION (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] Mr. Boynton was charged on January 25, 2021, in Rankin Inlet with two offences under s. 84(

b) of the Nunavut Liquor Act (R.S.N.W.T. 1998,c.L-9) . It is alleged that between January 1, 2020 and January 15, 2021, he did (1) keep liquor for the purpose of selling [it] and (2) did sell or offer to sell liquor.

[ 2 ] Mr. Boynton was charged following the Royal Canadian Mounted Police’s (RCMP) execution of a search warrant on a Calm Air Cargo shipment in Rankin Inlet. The shipment, allegedly belonging to Mr. Boynton, contained two cases of 12 x 1.14 litre bottles of whiskey. [ 3 ] The reasonable and probable grounds used by the RCMP to obtain the search warrant included information provided to the RCMP by the Nunavut Liquor and Cannabis Commission (NULC) relating to liquor importing permits the NULC had issued to Mr. Boynton. The RCMP also relied upon statements of different witnesses to support the warrant. [ 4 ] Mr.

Boynton challenged the constitutionality of the search by filing two separate Notices of Charter [1] Application. The first application was filed on February 8, 2022, and claimed that Mr. Boynton’s

Section 8 right to be secure against unreasonable search and seizure had been breached through the NULC’s disclosure of the information on the importing permits to the RCMP. [ 5 ] The second Notice of Charter Application, filed May 30, 2022, alleged that his

Section 7 rights to life, liberty, and security of the person had been infringed as had his

Section 15 equality rights. [ 6 ] Mr. Boynton seeks an Order staying the charges, or a reduction in sentence, on account of the alleged Charter infringements. [ 7 ] I heard Mr. Boynton’s Application on February 27, 2023. These are my reasons. II.

FACTS [ 8 ] The facts are relatively simple: during 2020 the RCMP in Rankin Inlet received three different complaints from individuals alleging that the Applicant may be bootlegging and/or was selling liquor for cash or e-transfer payments. [ 9 ] In addition to the individual complaints made to the RCMP, in August 2020 and again in January 2021, Dan Young, who at the time was the Director of NULC, reported, unsolicited, to the RCMP that the Applicant had purchased excessive amounts of alcohol totalling 576 x 1.14 liter bottles of spirits between January 1, 2020, and January 13, 2021.

The last shipment of 24 bottles of whiskey was seized by the RCMP on January 15, 2021. [ 10 ] The NULC is a relatively new organization. Finding its origins as the Liquor Commission, it morphed into the NULC with the decriminalization of cannabis federally and the need for Nunavut to regulate the sale of cannabis within the Territory. It is responsible for regulating all legal sales of alcohol and cannabis in Nunavut. [ 11 ] The NULC is classified as a Public Body under Column 1 of

Schedule A to the Access to Information and Protection of Privacy Act regulations (R-206-96). Due to this classification, it is subject to provisions of the Access to Information and Protection of Privacy Act (C.S.Nu.,c.A-20) including sections 48(e), 48(

q) and 48(s)(

i) which read: 48. A public body may disclose personal information … (

e) to a public body or a law enforcement agency for law enforcement purposes; … (

q) when necessary to protect the mental or physical health or safety of any individual; … (

s) for any purpose when, in the opinion of the head,

(

i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. … [ 12 ] According to Mr. Young, in a letter dated May 17, 2022, the Act allows for the sharing of personal information related to unusually large or frequent purchases of liquor under the above noted sections. Mr. Young continued in his letter: [i]nformation sharing is sometimes initiated by a request from the RCMP to the NULC, other times it (is) initiated by the NULC when a pattern of large purchases is identified by frontline staff.

When, in the opinion of the Director (or higher), an individual’s purchase history does not clearly meet the reasons for disclosure listed above, the NULC will refuse to share the information. All information sharing from the NULC to law enforcement is approved by the Director (or higher) and records of the exchange are kept electronically in an email folder or on a spreadsheet stored in a password-protected folder. Generally, the information that is shared with the RCMP is the individual’s name, purchase history, and community. In some cases, the person’s address or DOB is shared to confirm identity.

The NULC does not share information about any individuals who are purchasing amounts which, even if larger than average, appear they could be for personal consumption. [ 13 ] There is no definition of “pattern of large purchases” in the law or provided by Mr.

Young as a policy. [ 14 ] Cpl Mezdour of the RCMP in Iqaluit confirmed, through correspondence addressed to Crown counsel, that on occasion the RCMP receives information from the NULC, “when individuals order distinctly large quantities of alcohol, and does so by providing the name of the customer, the number of bottles they ordered, and in certain cases, the frequency of the large orders.” III. THE POSITION OF THE APPLICANT [ 15 ] The Applicant’s Charter arguments can be distilled as follows: A.

Section 7 [ 16 ]

Section 7 of the Charter guarantees that everyone in Canada has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 17 ] The Applicant argues that, because there is no standard used by the NULC for what constitutes “a pattern of large purchases of alcohol”, any disclosure of lawfully issued permits by the NULC to the RCMP is arbitrary.

Acting arbitrarily is not in accordance with the principles of fundamental justice. [ 18 ] Further, to continue with a charge based on arbitrary disclosure of information would deprive the Applicant of his right to security of the person in a way that is not in accordance with the principles of fundamental justice. B.

Section 8 [ 19 ]

Section 8 of the Charter guarantees that everyone in Canada has the right to be secure against unreasonable search or seizure.

[ 20 ] The Applicant argues that the information contained in his liquor permit is private, personal information that was unreasonably “seized” and therefore unlawfully provided to the RCMP. C.

Section 15(1) [ 21 ] Section 15(1) of the Charter says, Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 22 ] The Applicant argues that he is part of a group analogous to a racial group that deserves to be treated equally by the law, but that the law in Nunavut imposes a regulatory burden on him (applying for a permit) that is not imposed elsewhere in Canada. IV.

POSITION OF THE CROWN A.

Section 7 [ 23 ] The Respondent argues that the Applicant’s

Section 7 argument is a misapplication of the principle of arbitrariness, which applies when there is “no rational connection” between the law and the state action involved. In this case, the Legislature, through the Access to Information and Protection of Privacy Act provides for voluntary disclosure of information by the NULC to the RCMP. That is not arbitrary. B.

Section 8 [ 24 ] The Respondent Crown argues that the provision of information by the NULC to the RCMP does not amount to a search, and the Applicant has no reasonable expectation of privacy in that information in any event. In that regard, the Respondent cites para. 48(

e) of the Access to Information and Protection of Privacy Act , which says: 48. A public body may disclose personal information … (

e) to a public body or a law enforcement agency for law enforcement purposes … [ 25 ] Finally, the Crown notes that any permit obtained must be attached to the liquor that is imported, and there is no reasonable expectation of privacy at the Calm Air Cargo building in Rankin Inlet. C.

Section 15

[26] The Crown argues that the recent Supreme Court of Canada decision in R. v. Sharma, 2022 SCC 39 requires that, in a s.15 argument, the Applicant demonstrate disproportionate impact on Indigenous offenders relative to non-Indigenous offenders, and thatliquor laws are individual to each province or territory, so it makes no sense to consider the impact relative to people in otherjurisdictions. There is no disproportionate impact on Inuit within Nunavut; all Nunavummiut are treated the same regarding liquorpermits. V. ANALYSIS A.

Section 7 [27] Mr. Boynton is alleged to have sourced permits for the purchase and import of 576 bottles of whiskey into Nunavut in a 12-monthperiod. Ordering 576 bottles of whisky over the span of a year (over one and a half bottles per day) constitutes a pattern of large alcoholpurchases. [28] The NULC followed prescribed authority in disclosing the large order information to the RCMP. This was not done arbitrarily butas prescribed by law. I find there is no merit to the

Section 7 application; it is dismissed. B.

Section 8 [29] The NULC is legislatively classified as a “public body” under the Regulations of the Access to Information and Protection ofPrivacy Act.

Section 48 of the Act grants the NULC authority to disclose personal information in certain circumstances to lawenforcement. This legislative set up cements the conclusion that there was nothing arbitrary to the scheme that was followed by theDirector of the NULC in disclosing to the RCMP that Mr. Boynton had been ordering large amounts of alcohol. [30] On January 15, 2021, the RCMP executed a search warrant at the Calm Air Cargo facility in Rankin Inlet. Through executing thewarrant the RCMP seized Mr. Boynton’s order of 24 bottles of Royal Reserve Whiskey. Each bottle was 1140 ml in volume. The orderhad Mr.

Boynton’s name displayed on the permit attached to the shipment to allow for easy tracking by airline personnel. [31] The search warrant was issued to the RCMP by a Justice of the Peace pursuant to Section 107(1)(

b) of the Liquor Act which allowspeace officers to: “under the authority of a warrant…..enter and search any residence, building or place in which the peace officer has reasonable groundto believe that liquor is unlawfully kept or had, or kept or had for unlawful purposes, and subjection to

section 112, search any personfound in that residence, building or place.” [32] Mr. Boynton was not subject to an unreasonable search of his person, nor did he have a reasonable expectation of privacy at theCalm Air Cargo facility. In fact, having his name labelled on the impugned seizure was necessary for commercial purposes to allow forthe airline to get the shipment to Mr. Boynton as a customer.

Any employee at the cargo facility, or at the airline, who may have beenconcerned for the safety of her community could have contacted the RCMP to provide them with notice of the shipment of 24 bottles ofwhiskey being stored in the warehouse. It is a risk anyone involved in the alleged importation of regulated materials takes when using acommercial shipper. [33]

Section 8 offers fundamental protection to individuals against unreasonable search and seizure by the state when there existlegitimate expectations of privacy. The argument that Mr. Boynton had a legitimate expectation of privacy when a large shipment ofwhiskey sat in a cargo warehouse in Rankin Inlet, with his name labelled on the shipment, is without merit. I dismiss the

Section 8application. C.

Section 15

[34] The Applicant’s s. 15 argument, as I understand it, is that like the non-resident members of the Batchewana Indian Band, who hadlost their franchise to vote for band council by not being “ordinarily resident” on the reserve as required by Section 77(1) of the IndianAct, Inuk Nunavummiut who wish to purchase alcohol free of regulatory prescriptions, form an analogous ground subject to protectionunder Section 15(1) of the Charter. [35] Counsel for the applicant argued that “in this case the applicant is analogous to the applicants in Corbiere [v.

Canada (Minister ofIndian and Northern Affairs), (SCC), [1999] 2 SCR 203] as the Applicant could only change his residence status atgreat cost. In this case, it is made even more stark given the purpose behind the creation of the territory.” [36] The Supreme Court of Canada in R. v. Sharma, 2022 SCC 39, reaffirmed the two-step test required by Section 15(1): The two-step test for assessing a s. 15(1) claim requires the claimant to demonstrate that the impugned law or state action

a) creates adistinction based on enumerated or analogous grounds, on its face or in its impact; and

b) imposes a burden or denies a benefit in amanner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. [37] The Territorial regulatory requirement that a permit be procured to import alcohol into Nunavut is not dependant on race.

A non-indigenous individual who resides in Nunavut and wishes to order alcohol into the territory is subject to the same regulatory scheme asan indigenous customer. [38] The Liquor Act and the prescriptions which require permits to import liquor into Nunavut are a product of Nunavut’s legislature.The Legislative Assembly, since the creation of Nunavut, has been predominantly made up of Inuit representatives.

All provinces andterritories in Canada have legislated control over liquor imports. [39] I find there has been no violation of Section 15(1) and dismiss the application. [40] This matter is put to May 1, 2023 at 1:30 p.m. to be spoken to. Dated at the City of Iqaluit this 12th day of April, 2023 ___________________ Justice S. Charlesworth Nunavut Court of Justice