R v Ippak, 2018 NUCA 3

In the Court of Appeal of Nunavut Citation: R v Ippak, 2018 NUCA 3 Date: 20180619 Docket: 08-15-001-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Moses Junior Ippak Appellant _______________________________________________________ The Court: The Honourable Mr. Justice Ronald Berger The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Frederica Schutz _______________________________________________________ Reasons for Judgment of The Honourable Mr. Justice Thomas W. Wakeling and The Honourable Madam Justice Frederica Schutz Reasons for Judgment of The Honourable Mr.

Justice Ronald Berger Concurring in the Result Appeal from the Decision by The Honourable Madam Justice Tulloch

Dated the 8th day of January, 2015 (2015 NUCJ 3 , 2015 NUCJ 03, Docket: 13-13-53) _______________________________________________________ Reasons for Judgment of The Honourable Mr. Justice Thomas W. Wakeling and The Honourable Madam Justice Frederica Schutz _______________________________________________________ The Majority: Overview [1] On November 1, 2013, police arrested and charged the appellant with possession of 3.7 pounds of marihuana for the purposeof trafficking. The Crown conceded that the appellant’s ss 8, 9, and 10(

b) rights under the Canadian Charter of Rights and Freedoms(“Charter”) were violated when he was arbitrarily detained and unreasonably searched prior to his arrest, without being informed ondetention of his right to retain and instruct counsel. [2] After a voir dire held at trial, the trial judge admitted the evidence seized after conducting an analysis under s 24(2) of theCharter pursuant to the test established in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant].

The issue in this appeal is whether thetrial judge erred in finding the evidence admissible. [3] The breaches in this matter were the result of a systemic and wholly unacceptable pattern of Charter violations by police inSanikiluaq, Nunavut, and the evidence should have been excluded at trial. I agree with my colleague Mr Justice Berger, in his concurringreasons when he states: “Nunavut and Sanikiluaq are not Charter free zones. The protections that are afforded to all Canadian citizensapply with full force and effect throughout the country.” [4] For the reasons that follow, the appeal is allowed.

Brief Facts [5] The police received an anonymous tip that the appellant was onboard an incoming plane from Montreal to Sanikiluaq,Nunavut, and that he was carrying alcohol. Alcohol is prohibited in the dry community of Sanikiluaq. [6] At trial, Corporal Breton acknowledged that the anonymous call provided insufficient grounds to obtain a search warrant orarrest the appellant, since such tips were common and frequently inaccurate. Despite this, the officer and his partner drove to the airportto investigate.

After confirming the appellant’s identity, the officers took the appellant to a private room in the airport and advised himhe was under investigation for transporting contraband liquor. [7] The officers were wearing their police issued winter jackets over their uniforms, with their utility belts, guns and otherequipment clearly visible. Cpl Breton acknowledged that the appellant was under investigative detention at this time, and he gave theappellant the standard police warning that he did not need to say anything to police.

The appellant was not however advised of his right tocounsel; when asked why, Cpl Breton stated that “it was just a routine – routine check at the airport.” [8] The appellant told the officers that he was not carrying liquor and said they could search his suitcase, whereupon Cpl Bretontook the appellant to retrieve his bag from the airplane baggage cart.

They then went to Cpl Breton’s police vehicle where the appellantstood outside with the officers in the cold and wind; Cpl Breton took out a Consent To Search Form and attempted to explain the form tothe appellant; a recording of this conversation was made and entered into evidence on the voir dire. [9] After obtaining the appellant’s signature on the form, Cpl Breton searched his bag. He testified that as soon as he opened thebag, he smelled a strong aroma of marihuana. The appellant immediately asked for the search to stop, and Cpl Breton then arrested theappellant for possession of marihuana.

Only then was the appellant advised of his 10(

b) right to counsel. [10] Cpl Breton testified that even if the appellant had not offered to have his bag searched, the police procedure in thecircumstances would have been to request that the appellant let the police search his bag. The police in Sanikiluaq specifically carryConsent To Search Forms to the airport with them for this very purpose, and frequent the airport “quite a bit” to conduct these types ofsearches, with the procedure they followed being described as a “regular thing”.

That is, that the police in Sanikiluaq frequently attendthe airport to detain and ask individuals for permission to search their bags without reasonable and probable grounds for a search warrantor an arrest, and without instructing them of their right to counsel. When pressed further on why individuals under investigative detentionare routinely not advised of their right to counsel, Cpl Breton stated that there was no suitably private phone at the airport to contactcounsel.

[ 11 ] Cpl Breton further testified that if individuals said “no” to signing the Consent To Search Form, then the police would take no further action. If consent was given, searches and sometimes seizures, took place.

Decision Below [ 12 ] While the Crown conceded breaches of the appellant’s ss 8, 9, and 10 Charter rights by the officers in this matter, it was argued that the breaches were not serious and the evidence seized was critical to the case against the appellant, both of which it was submitted, favoured admissibility under Grant . [ 13 ] The trial judge determined that the police breached the appellant’s s 9 rights by arbitrarily detaining him at the airport without sufficient information that a crime had been committed. As the Crown conceded, the trial judge also found that the appellant’s ss 8 and 10(

b) rights were also violated. [ 14 ] However, the trial judge ultimately determined that exclusion of the evidence would bring the administration of justice into disrepute; that the “court has a heavy responsibility to keep drug dealers and their couriers off the streets of Nunavut”.

In doing so, she went through the three factors set down in Grant : the seriousness of the breaches, the impact of the breaches on the Charter- protected interests of the appellant, and society’s interest in having the case adjudicated on its merits. [ 15 ] In reducing the seriousness of the ss 8 and 9 breaches in terms of the lack of information which lead the police to the airport in the first place and the manner in which they proceeded, the Court took “judicial notice of the fact that in a large number of criminal cases alcohol is a contributing factor” and referred to the evidence of Cpl Breton that liquor causes “lots of problem for the police” in Nunavut.

While the trial judge stated that she did not condone the conduct of the police in this matter, she did not classify the breaches at the high end of the spectrum of “wilful and reckless disregard” of the appellant’s Charter rights. Rather, she found that the officers “made every effort to be fair” to the appellant throughout, and particularly that even when he suggested they search his baggage, the police proceeded to present him with a Consent To Search Form first, which he understood and signed.

She held: 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. [ 16 ] With respect to the impact of the breaches on the Charter- protected interests of the appellant, the trial judge found that the appellant had a reduced expectation of privacy once his baggage was in possession of the Canadian Air Transport Security Authority , as it was until the police search was conducted.

She also found that the appellant’s offer to have the police search his bag was an important factor to consider, and that the total time the appellant was detained “was fairly brief”; again noting that he was “treated fairly and with respect”. [ 17 ] On the issue of society’s interest in adjudication of the matter on its merits, the trial judge found that the evidence was real and substantial, the drugs were in a large quantity, would have had a great impact on the community had they been distributed, and that trafficking is a serious offence. “Drug traffickers prey upon the most vulnerable in our society.

Without the drugs seized in this case, the prosecution’s case is over.” [ 18 ] As a result of these findings, the trial judge ruled the evidence seized was admissible at trial. [ 19 ] The appellant was ultimately convicted of trafficking under s 5(2) of the Controlled Drugs and Substances Act , and on March 5, 2015 sentenced to an 18-month conditional sentence.

Analysis [ 20 ] Section 24(2) of the Charter provides that where a court concludes that evidence was obtained in a manner that infringed or denied the rights guaranteed under the Charter , the evidence “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. [ 21 ] As provided in Grant at para 86 , where a trial judge has considered the proper factors under a s 24(2) analysis, appellate courts are to accord considerable deference to the ultimate decision on whether or not the evidence is excluded. [ 22 ] The trial judge’s reasons focused almost exclusively on the search performed by the police and in particular, failed entirely to deal with the fact that the appellant was also denied his right to counsel throughout the time the police placed him under investigative detention.

The compounding nature of the series of breaches that took place in this matter went unconsidered. [ 23 ] Further, while the trial judge accepted that the police had breached the appellant’s s 9 rights by attending at the airport and detaining the appellant while knowing they had insufficient grounds to do so, no true assessment was made of the seriousness of such a wilful breach. More importantly, no consideration was given to the fact that the police in Sanikiluaq routinely conduct such detentions and searches at the airport in flagrant breach of the Charter .

Indeed, this factor appears to be entirely ignored or overcome by the trial judge’s finding that alcohol “causes lots of problems for the police” in small Nunavut communities. [ 24 ] Moreover, the findings of the trial judge to the effect that the police “made every effort to be fair with Mr. Ippak” stands in stark contrast to the fact that the officers were aware they had no grounds to detain and search the appellant’s baggage and, did so anyway, all the while denying him his right to counsel.

The police conceded that the appellant is only one of many in Sanikiluaq to have been deprived of their Charter rights in such a manner; in my view, neither individual nor general fairness are features of this deliberate police conduct.

[ 25 ] The trial judge did not consider the proper factors under s 24(2); thus, no deference is owed that decision by this Court. An appellate court may conduct a s 24(2) analysis afresh where it is clear that the trial judge made a fundamental error in approach: R v Harrison , 2009 SCC 34 , [2009] 2 SCR 494 [ Harrison ]. [ 26 ] In considering the matter afresh, it is important to carefully consider the evidence given by Cpl Breton in this matter as follows: In Examination-in-Chief: Q So, you mentioned going out to the airport.

As far as you were concerned, did the information you received from your call and from your checks provide you with grounds for arrest? A No, no. It was - - it was just a general tip, and we get those, like, three, four times a week. We get anonymous callers reporting that kind of stuff all the time, so it was - - it was just information I wanted to verify. It was nothing that gave me grounds to arrest Mr. Ippak. Q And how about a warrant? Would you have had grounds for a warrant? A No. Not at that time. Q So what did you do instead?

A … I wanted to - - like I said, liquor is still very important, and actually, it’s - - I think it’s one of the most important thing[s] to investigate in Nunavut with all the problems that it cause[s], so I just - - I didn’t want to let it go. I wanted to, you know, to investigate the information I obtained. So, when Mr. Ippak - - when the flight arrived from Air Inuit, I went there with - - with the intention just to talk to Mr. Ippak and to clearly tell him that I got some information that I wanted to investigate, and this is what I - - is what I did.

So when I went to the airport, I went with Constable Barlow… It’s a two-man post, so we are the only two in Sanikiluaq…. So, [the appellant] walked in the airport, and as soon as he walked in, I introduced myself to him because I didn’t know him. I said I was police, and that I was Corporal Breton, and that I was there to investigate a Liquor Act complaint that I received involving him. . . So - - so I took him aside and I told him the right - - right from the get-go. . . . And as soon as I told him that, he looked surprised. He basically said, “I don’t have any liquor,” you know, “I have nothing on my person.

I don’t have liquor, so you can search my suitcase.” He was the one that told me that. So, what I did is I told him that that was fine, but I read some - - told him that I was going to read a form to him, which is the consent to search. I just didn’t want to search his suitcase without him knowing his rights…. . . . I was going to suggest it before he said it, so that’s the way - - you know, that’s the way we do it. We just - - you go, you investigate the tip.

And if - - as a last resort, if you have no other grounds and no other - - you know, like no things to check, you ask the person, like, “Can I check your bag?” And if they say no, well, you just leave. So that - - I worked in - - that was my - - I had that in the back of my mind, but he suggested it before I even brought it up. He said, “You can search my bag. I have no liquor”. . . . . . Q So before you got to that point, when you first walked up to him, you said you started by introducing yourself. Can you sort of walk us through how that conversation went? A Yeah.

I said, “Hey, I’m - - hello, I’m Corporal Breton with the RCMP. And you’re Moses Ippak?” And, you know, he said yes. And as soon as he said his name, I told him right away, “Listen, Moses, I got some information from a person I don’t know that told me that you’re bringing some liquor on that flight from Montreal.” And as soon as I said that, I told him “Just so you know, you don’t need to say anything to me. Anything you do say may be used as evidence.” That the police warning, basically, because what I was doing was an investigative detention.

Like, without telling him that he was detained, I said, you know, like, “You’re under investigation for that.” So I read the right to a lawyer – - or not a lawyer, sorry; the right to - - the police warning. So I made it clear right away that he didn’t have to talk to me… He replied that he understood. . . . . . Q And you’ve mentioned, Corporal Breton, that effectively, he was investigatively detained. At that time, did you realize that he was entitled to be told of his right to counsel once he was detained?

A Well, basically, like, that kind of detention, investigative detention in their location and the reality which is, like I said to you earlier, I had no reasons to suspect anything was going to happen.

It was just a routine call, and, you know, like the logistic that it involved to actually bring somebody to the office and the time it takes, which is a major breach on the person to bring them to the - - to the office. But yeah. At that time, it was not even in my mind to say that. It was just - - I was verifying a little information and I was going to move on. I - - I didn’t even believe that he had anything on his person at that time…. So my - - my assessment of the whole situation was really - - you know, it’s just a routine thing.

I’m checking if - - if he has liquor, and I’m going to move on with my day if - - you know, if it’s not. . . . I had no - - no grounds to believe anything serious was going to happen. It was just a routine - - routine check at the airport. . . . Q Is there a phone at the - - [airport] A … I think there might be a pay phone. But the thing is it’s not private. There’s no private place… he couldn’t be in private there at all… There’s no cell phone coverage, either, so there no way to – you know, like, to actually give a cell phone to – to call a lawyer… . . . Q And what was his demeanor like? A . . .

So it was just a - - like, we even talked about the weather, I think, when we were going in the police truck. It was just like a regular, routine thing. Like I said, I’ve done that tons of time[s] at the airport. So he was - - he didn’t appear nervous at that time. He was - - he was fine, yeah. Q So, you said that he suggested that you could search the bag and then you talked about reading him a form to be sure he was aware of his rights? A Yes, that’s correct. It’s an RCMP consent form, a consent to search form, which I brought to the airport.

You know, I always bring those just to make them aware of their rights… Q When you say you’ve done this before at the airport - - does it happen frequently that people offer to let you search their bags? A Yeah, exactly. Like I said, it happens quite a bit… So we – - we go there quite a bit, and like I said, it’s a regular thing. And sometimes it is positive. Sometimes they do – - you know, like they do have something on their person, and we do seizures. . . . Q When you ask people if you can search their bags, do they ever say no? A Yeah, it happens. Yes, it happens quite often.

Q And what do you do when that happens? A I just - - I just leave. That the reality of the - - and especially in that case, same thing. I – - when you have no grounds, you have no grounds, so you just investigate. You look – - you know, you investigate the information, but if you have no grounds to do anything, if they don’t give you consent to search the bag, you just move on and just on with the rest of your day. In cross-examination: Q And so, officer, you talked about getting lots of tips.

You said three to four tips, like anonymous tips a week about different things… And a lot of times, it turns out to that that’s - - somebody is saying something that’s not true to you, right, it turns out? A I - - I wouldn’t say, like, a lot of times, but it does happen, like. And what I was saying earlier is I don’t have the exact numbers, but I have personally been to two calls where that was false, yeah. Q And how often would… you say you go to the airport to stop somebody based on a random tip - - an anonymous tip. . . Mostly Sanikiluaq, if you can separate it out. A Yeah.

Well, at that time, November 1 st , I only had been there for two weeks, but like I said, I previously, during those two weeks, I had been to the airport a couple of times. I don’t - - I don’t exactly, but I remember one specific time. . . where we looked in the suitcase and it was negative. . . Q And after this evidence, there were other times that you went to the Sanikiluaq airport? A Yes.

Seriousness of the Charter Breaches [ 27 ] Under this aspect of the s 24(2) assessment, the court is required to consider whether the admission of the evidence would bring the administration of justice into disrepute by assessing the seriousness of the unlawful conduct by police. “The more severe or deliberate the state conduct that lead to the Charter violation, the greater the need for the courts to disassociate themselves from that

conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law”: Grant at paras 72, 75 . [ 28 ] As set out in Grant , unlawful state conduct will vary in seriousness. Evidence obtained through “inadvertent or minor violations” of the Charter are generally on the lower end of the spectrum in terms of undermining public confidence.

In contrast, “wilful and reckless disregard of Charter rights [which] will inevitably have a negative effect on the public confidence in the rule of law”, is at the high end of risk for bringing the administration of justice into disrepute: Grant at para 74 . [ 29 ] On the issue of seriousness of these breaches, a number of things are clear from the forthright manner in which Cpl Breton gave his evidence at trial.

No Reasonable Grounds [ 30 ] The first is that up until the point where Cpl Breton opened the appellant’s luggage, he did not have reasonable grounds to either arrest or search the appellant without a warrant. More importantly however, it was admitted that throughout this time Cpl Breton did not even have a reasonable suspicion that the appellant had done anything illegal.

Not only were the various tips received by Sanikiluaq police relatively unreliable, but the anonymous and unconfirmed tip that lead to this investigation was not spurred by anything more than “routine” police procedure because alcohol was viewed as “one of the most important things to investigate in Nunavut”.

That is, it was solely driven by the modus operandi of the RCMP in the small hamlet of Sanikiluaq, and more specifically because Cpl Breton “didn’t want to just let it go. . . [but] wanted to… investigate the information [he] obtained.” [ 31 ] This made the investigative detention of the appellant unjustifiable and entirely arbitrary, in violation of s 9 of the Charter , as admitted by the Crown.

Not only did Cpl Breton testify that subjectively he did not believe the appellant was carrying alcohol, objectively there was no reasonable grounds on the totality of the circumstances, both of which are required for lawful investigative detention: R v Mann , [2004] 3 SCR 59, 2004 SCC 52 [ Mann ].

This brings this matter in line with cases involving random stops or spot checks without justification, and there was no evidence that the Liquor Act referred to by Cpl Breton in his evidence allowed for any such kind of stops or checks. [ 32 ] I will set aside, for the moment, the fact that this police investigation was one in which these officers knowingly contravened the rights of the appellant, and that they do so regularly to other individuals – a fact which makes this conduct blatant and extremely serious.

On a more general level, the fact that police want to investigate an anonymous tip, does not automatically and legally mean the police can and should detain an individual. Nor does it give police a carte blanche on the manner in which they do so. Treating such detainees with civility, while knowingly breaching their rights, does not lessen the seriousness of the breaches or equate to good faith or fairness.

As was stated in Grant at para 75 , “deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.” [ 33 ] Here, it is also significantly egregious that at the point when Cpl Breton is about to present the appellant with the Consent to Search Form and search his luggage in violation of s 8 of the Charter , he still “didn’t even believe that [the appellant] had anything on his person at that time”. On this point, this matter is distinguishable from the facts in Grant where the Court found ss 9 and 10(

b) violations, but held that the police were operating in circumstances of considerable legal uncertainty in terms of the point at which detention began: compare also R v Paterson , 2017 SCC 15 , [2017] SCR 202 [ Paterson ]. [ 34 ] Here, there was no legal uncertainly and Cpl Breton knew he did not have grounds to detain and search the appellant.

As such, this case is akin to what took place in Harrison , a decision which notably was released by the Supreme Court on the same day as Grant . [ 35 ] In Harrison , the accused was driving a rental car when a police officer in Ontario noticed it had no front license plate. After pulling the vehicle over the officer realized that the vehicle was registered in Alberta and did not require a front license plate, but persisted in detaining the accused even though he had no grounds to suspect an offence had been committed.

The officer testified that he felt abandoning the investigation would affect the integrity of the police in the eyes of the public. As found by the Supreme Court of Canada at para 20, “[g]iven that the officer recognized prior to the detention that the appellant’s SUV did not require a front license plate, he should not have made the initial stop .

A vague concern for the “integrity” of the police, even if genuine, was clearly an inadequate reason to follow through with the detention.” [Emphasis added] [ 36 ] There, the Court agreed with the trial judge’s finding that the conduct of the officer was “brazen”, “flagrant” and “extremely serious”. They found at para 24, that while the violations of ss 8 and 9 of the Charter by the officer “may not have been ‘deliberate’, in the sense of setting out to breach the Charter , they were reckless and showed insufficient regard for Charter rights.

Exacerbating the situation, the departure from Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non- existent.” [ 37 ] Here, it appears that Cpl Breton and his partner set out to the airport to deliberately breach the Charter , as they knew they had no reasonable grounds for detention, arrest or a search. Unlike in Harrison , they also knew they would not be providing the appellant with his 10(

b) rights when they placed him under investigative detention . However, even if this is not clearly the case, it can be said that Cpl Breton’s actions were both “reckless and showed insufficient regard” for the appellant’s Charter rights. As in Harrison , the police conduct was “blatant” and the breaches were necessarily at the serious end of the spectrum: at paras 27, 35. Cpl Breton acknowledged from the outset and throughout his dealings with the appellant that he “had no reasons to suspect anything…. It was just a routine call… I didn’t even believe that he had anything on his person at that time”.

That this acknowledgement was offered as being the reason for failing to inform the appellant of his right to counsel, or take any steps to implement that right makes the breaches all the more egregious.

The officers unconstitutionally detained, questioned and searched the appellant’s personal luggage, while at the same time failing to inform him of the right to retain and instruct counsel which in all likelihood, would have resulted in him being advised of the unlawful nature of the police conduct and affirmed that he need not offer or consent to any illegal search. [ 38 ] Finally, although Harrison was a case in which there was no “systemic or institutional abuse”, the Court found that “while evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of

such a problem is hardly a mitigating factor.” At para 27, if police conduct is the result of blatant disregard for Charter rights, it is “serious, and not lightly to be condoned.” Systemic Breaches [ 39 ] Aggravating the seriousness of the breaches in this case, and weighing further in favour of exclusion, is that this matter was not the result of an isolated incident.

The systemic and institutional nature of the approach used by the police in investigating anonymous tips in Sanikiluaq, “is serious, and not lightly to be condoned.” That this occurs in a small community in Nunavut which may have its own particular problems with alcohol and drugs is largely, if not wholly, irrelevant in the face of blatant Charter breaches by those in law enforcement who are empowered and trained to follow proper investigative procedures and respect the Charter rights of those they detain. [ 40 ] In this case, the warning set down in Grant at para 75 is apt: “It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up evidence leading to a criminal charge.” This is indeed the admitted pattern of unlawful conduct by these officers in Sanikiluaq when investigating anonymous tips, many of which turn up nothing.

As was said in Grant at para 75 , in “recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that Charter -infringing conduct was part of a pattern of abuse tends to support exclusion”. [ 41 ] The Supreme Court of Canada’s recent decision in R v GTD , 2018 SCC 7 , allowing the accused’s appeal on the basis of the dissenting reasons of Veldhuis JA of this Court in R v GTD , 2017 ABCA 274 [ GTD ], reiterates the seriousness of breaches where the evidence lead at trial establishes a systemic and institutional pattern of Charter violations by a police service.

That matter concerned s 10(

b) breaches by police whose standard caution card asked all arrestees whether they wished to say anything about the offence being charged after the arrestee was advised and asserted his or her right to counsel, triggering the state’s obligation to hold-off eliciting evidence. See also R v Heng , 2014 ABCA 325 at paras 10-12 , 580 AR 397. [ 42 ] Here, the appellant was not provided with his s 10(

b) rights at all, consequently compounding the serious breaches of the appellant’s s 8 and 9 Charter rights, all as a result of the systemic manner in which the police carry out these types of near-random investigations in Sanikiluaq. Neither urgency nor danger were offered as excuses as to why the appellant’s rights were violated in this manner: see Paterson at para 47 . [ 43 ] In

summary, the conduct by police in this matter was serious and included wilful disregard for various Charter rights of the appellant. It is the type of conduct this Court should and must distance itself from and “not lightly. . . condone”, and weighs heavily in favour of exclusion of the evidence seized. Impact on the Charter- Protected Interests of the Appellant [ 44 ] This second branch of the assessment under s 24(2) looks at the seriousness of the impact of the Charter breaches on the Charter- protected interests of the appellant.

It considers the extent to which the breaches undermined the interests of the appellant, whether they are merely “fleeting and technical”, or “profoundly intrusive”. “The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence. . . [will bring] the administration of justice into disrepute”: Grant at paras 76-77 . [ 45 ] The unlawful detention and search in this matter impacted the appellant’s liberty and privacy interests. The s 10(

b) breach further impacted the appellant’s right to make a meaningful and informed choice about whether to speak to police and consent to a search of his baggage. [ 46 ] Although arguably the appellant’s detention in this matter was relatively brief and his expectation of privacy somewhat lowered in his checked baggage on a plane or at an airport, as was found in Harrison at para 31 , however, being stopped and subjected to a search by police without justification impacts on an individual’s “rightful expectation of liberty and privacy in a way that is much more than trivial.

As Iacobucci J observed in Mann , the relatively non-intrusive nature of the detention and search ‘must be weighed against the absence of any reasonable basis for justification’ (para. 56 (emphasis in original)). A person in the appellant’s position has every expectation of being left alone” unless lawful grounds exist for detention and search. The breaches in this matter were therefore a significant intrusion into the appellant’s ss 8 and 9 Charter- protected interests. [ 47 ] The breach of the appellant’s s 10(

b) rights is also significant. The wilful decision not to inform or provide the appellant with his right to counsel was not of a mere technical nature, nor was it a breach that was unlikely to have impacted the appellant’s understanding of his situation or his rights. Rather, the nature of the breach had a significant impact on the appellant’s right to receive meaningful legal advice about his right to silence and his right not to consent to a search of his baggage. As was the case in GTD at para 103 , the appellant’s legal vulnerability in this matter was significant, so too was his need for legal assistance.

The actions of the police officers were a significant intrusion on the appellant’s Charter- protected interests weighing in favour of exclusion. Society’s Interest in the Adjudication of the Charges on the Merits [ 48 ] The final consideration under a s 24(2) analysis focuses on “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant at para 79 .

The key considerations under this part of the test are whether the impugned evidence is reliable, whether it is important to the Crown’s case, and the overall seriousness of the offence charged.

[ 49 ] It is unquestionable that the drugs seized from the appellant’s luggage are highly reliable evidence. Further, the drugs are an essential part of the Crown’s case, without which the prosecution could not proceed. [ 50 ] It also unquestionable that trafficking is a serious offence. All of these factors generally weigh in favour of admission of the evidence in this matter. However, the fact that an offence is serious is not to take on a disproportionate significance.

As found in Grant at para 84 , “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.” See also Harrison at paras 34, GTD at para 107. [ 51 ] As noted in Harrison at para 41 , an assessment under s 24(2) is not to come down to “a contest between the misdeeds of the police and those of the accused.

The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s 24(2). We expect police to adhere to higher standards than alleged criminals.” [ 52 ] All of this having been noted, however, in my view this third part of the analysis nevertheless favours admission of the evidence, in furtherance of promoting the public’s interest in having this matter adjudicated on the merits. Balancing the Factors [ 53 ] The wilful disregard of the appellant’s ss 8, 9, and 10(

b) Charter rights is not only unjustifiable on an individual basis, but in considering its systemic nature, squarely defines this matter as a serious breach of the most fundamental protections under the Charter .

Criminality or addiction problems in the small hamlet of Sanikiluaq, or in any community in this country, cannot be solved by deliberately unlawful policing. [ 54 ] To condone the serious nature of the Charter breaches in this matter which resulted in a significant intrusion on the appellant’s rights, would undermine society’s confidence in the justice system and damage the long-term reputation of the administration of justice.

While the need for disassociation from police misconduct will not always trump the truth-seeking function of the criminal courts, the seriousness of the offence and the reliability of the impugned evidence do not outweigh the factors warranting exclusion in this matter. To reiterate Harrison at para 42 : “the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.” Conclusion [ 55 ] The appeal is allowed and the evidence is excluded. As the evidence is essential to the Crown’s case, an acquittal is entered.

Appeal heard on September 19, 2017 Reasons filed at Iqaluit, Nunavut this day of June, 2018 Schutz J.A. I concu r: Wakeling J.A. ______________________________________________________ Reasons for Judgment of The Honourable Mr. Justice Ronald Berger _______________________________________________________ [ 56 ] This appeal engages a consideration of s. 25 of the Charter .

It reads, in part, as follows: The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (

a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; …

[---] [ 57 ] The appellant, a member of the Inuit community of Sanikiluaq was found guilty under s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19, and sentenced on March 5, 2015 to an 18 month conditional sentence order plus ancillary orders. His place of incarceration appears to have been his own home. [ 58 ] On November 1, 2013, the RCMP arrested the appellant for possession of marihuana for the purpose of trafficking. The Crown concedes that the police violated the appellant’s Charter ss. 8, 9 and 10(

b) rights when he was detained and searched prior to his arrest. [ 59 ] The issue on appeal is whether the resulting conviction, premised upon a s. 24(2) ruling that the contraband was admissible, should be upheld. [ 60 ] Moses Ippak was the sole passenger on a plane from Montreal to Sanikiluaq, a small hamlet in Nunavut territory. Police received an anonymous tip that the appellant was onboard the plane and that he was carrying “at least 10-15 mickeys of alcohol.” [ 61 ] Sanikiluaq is a dry community; alcohol is prohibited.

The investigating officer, Corporal Breton, who is to be commended for his forthright and thorough testimony, acknowledged that such anonymous tips were common and frequently inaccurate. He and his partner approached the appellant after he deplaned and questioned him in a private room. Corporal Breton told the appellant that the RCMP were investigating a complaint that Mr. Ippak was transporting contraband liquor.

Corporal Breton characterized his actions as an “investigative detention”; he issued the standard police warning, reminding the appellant that he did not need to say anything, but did not advise him of his right to counsel. Corporal Breton explained: “It was just a routine-check at the airport” (TT pg. 41/25-27) [ 62 ] The appellant denied that he was carrying liquor and welcomed a search of his suitcase.

Corporal Breton and the appellant retrieved the appellant’s bag from the airplane baggage cart and went to the police vehicle at which time Corporal Breton produced a “consent to search form” which he purported to explain to the appellant. A recording of the conversation between the two falls short of confirming the appellant’s understanding of the meaning and import of the form which he soon signed. [ 63 ] Corporal Breton searched the appellant’s bag and detected that which he described as an overpowering aroma of raw marihuana. The appellant immediately asked for the search to stop. Mr.

Ippak was then arrested for possession of marihuana and only then advised of his 10(

b) Charter right to counsel. The search of the appellant’s bag revealed no alcohol but did result in a seizure of 3.7 pounds of raw marihuana. [ 64 ] It emerged at trial that for some considerable time the constabulary in Sanikiluaq attended the airport on a regular basis to search suitcases of deplaning passengers, sometimes on the basis of anonymous tips; sometimes not. The protocol is to seek permission from those who are disembarking an aircraft to search their luggage; in the event that permission is denied, no further steps are taken.

Corporal Breton reaffirmed that individuals under investigative detention were routinely not advised of their right to counsel because, as he put it, there was no suitable private phone at the airport for individuals to contact counsel (TT pg. 41/28 – pg. 42/22). [ 65 ] Notwithstanding the Crown’s acknowledgment that breaches of ss. 8 , 9 and 10(

b) of the Charter were committed by the investigating officers in the course of detaining the appellant and searching his luggage, the Crown contended at trial and reasserts on appeal that because the breaches were not sufficiently serious and the evidence in question was crucial to the Crown’s case, the test for exclusion set out in R. v. Grant, 2009 SCC 32 was not made out and the evidence should be admitted.

The trial judge acceded to the Crown’s position motivated by the following observations: “[The] court has a heavy responsibility to keep drug dealers and their couriers off the streets of Nunavut… [the Court takes] judicial notice of the fact that in a large number of criminal cases alcohol is a contributing factor…[the evidence of Cpl Breton discloses that liquor causes] lots of problem for the police” in Nunavut… Drug traffickers prey upon the most vulnerable in our society. Without the drugs seized in this case, the prosecution’s case is over.” R. v.

Ippak , 2015 NUCJ 3 at para. 126 , 127, 160-162 [ 66 ] With respect to the seriousness of the Charter breaches the trial judge ruled as follows (at para. 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 Constable Breton did not legitimize the search, it did reduce the seriousness of the subsequent breaches in this case.” [ 67 ] With respect to the impact of the Charter-protected interests of the accused, the trial judge focused on the diminished expectation of privacy of luggage checked through airport security, the appellant’s initial offer to have the officers search his luggage, the duration of his detention, the privacy afforded him at the airport and the officers’ general efforts to treat the appellant fairly and to ensure he was aware of his rights. [ 68 ] With respect to society’s interest in adjudication of the case on its merits, the trial judge cited the large amount of cannabis seized and the social problems caused by cannabis dependence, including an increased risk of suicide and diversion of substantial funds from necessities, brought about by the high cost of black-market cannabis (TT pg. 149-161).

The judge construed the infringements as somewhat minor, reiterated the social problems caused by cannabis, and concluded that because the impugned evidence (the contraband) represented the essence of the Crown’s case, mindful of the broader interest in having such cases adjudicated, she was obliged to rule in favour of its admission. [ 69 ] The appellant was accordingly convicted of trafficking under s 5(2) of the Controlled Drugs and Substances Act , and on March 5, 2015 sentenced to an 18-month conditional sentence.

ANALYSIS Introduction [ 70 ] The issues on appeal have their genesis in breaches of ss 7, 8, 9 and 10(

b) of the Charter of Rights and Freedoms (The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]). A tension arises, however, between Inuit law and traditions and the protection of individual liberty through Charter remedies. In order to reconcile the two, I have concluded that Inuit law’s restorative justice approach, providing as it does an alternative form of justice, furnishes a just solution in the case at bar that is not inconsistent with Canadian legal principles. The Legislative Framework [ 71 ] The Inuit have treaty rights under the Land Claims Agreement, SC 1993, c 29 .

Section 26(1) of the Nunavut Act, SC 1993, c 28 , and the Liquor Act, RSNWT 1988, c L-9 , give legislative power to restrict access to alcohol in Nunavut. Licensing is required to permit the sale/possession of alcohol. The Liquor Act also prohibits the sale of alcohol to an “intoxicated person” and being in “an intoxicated condition in a public place” (Liquor Act, ss 52(2), 80).

These restrictions mirror the initial colonial legislation to control indigenous peoples’ access to alcohol. [ 72 ] Unlike other areas of Canada, under s 41 of the Liquor Act , in order for a community to allow the sale of alcohol, there must be a plebiscite conducted by secret ballot.

The Belcher Islands (with Sanikiluaq as the only permanent settlement) have prohibited the purchase, sale, transport, and possession of alcohol (Belcher Islands [Sanikiluaq] Liquor Prohibition Regulations, RRNWT 1990, c L- 12). [ 73 ] In his seminal work entitled “ Aboriginal Justice and the Charter – Realizing a Culturally Sensitive

Interpretation of Legal Rights ”, UBC Press 2012, David Milward acknowledges that the culturally sensitive

interpretation of legal rights “actually involves addressing two different kinds of tension.” He explains at pg. 72: “One source of tension is the conflict between protecting individual liberty through Charter rights and maintaining legal space for aboriginal traditions that, by comparison place greater emphasis on the collective good.” [ 74 ] He proposes that principles of constitutional balancing provide a workable method to address this tension. [ 75 ] Citing s. 35(1) of the Constitution Act , 1982, Milward asserts that “an essential consideration involved with realizing the culturally sensitive

interpretation of legal rights is the exploration of how the concept may fit within the broader Canadian legal system.

In his review of the competing views on how legal rights impact upon aboriginal rights, he relies on the proposition that s. 25 of the Charter (referenced at the start of this judgment) should be interpreted in a way that balances the rights of aboriginal individuals with the collective rights of aboriginal people. [1] [ 76 ] Aboriginal communities create positivistic laws, which are enacted by formal proclamation by a centralized authority, such as a chief, shaman, or bandleader (John Burrows, Indigenous Legal Traditions in Canada , Law Commission of Canada (2006) at para. 7 [ Indigenous Legal Traditions ]).

While the process of developing laws is culturally dependent, many indigenous communities use a “deliberative” approach that engages the whole community through councils or gatherings ( Indigenous Legal Traditions at 8). Finally, customary laws develop from the behaviours of a particular community and become “laws” when those rights and obligations are regulated within the community ( Indigenous Legal Traditions at 8). [ 77 ] Laws provide guidance for living peacefully in the world, creating order, and overcoming conflict ( Indigenous Legal Traditions at 3).

This legal framework guides political, economic, spiritual, and social values, which community elders teach and pass through generations (John Borrows, “ With or Without You: First Nations Law (in Canada) ” (1996) 41: McGill LJ 629 at 646. The Community of Sanikiluaq [ 78 ] Sanikiluaq is the southernmost community in Nunavut, located on Flaherty Island in the Belcher Islands of Hudson Bay.

The current hamlet was established in 1974, but the area has been settled since approximately 500 BC. [ 79 ] As part of the Qikiqtani Truth Commission, the Qikiqtani Inuit Association collected community histories from Sanikiluaq. The final report included the following brief history of Sanikiluaq: The first significant contact with colonial trade in the region occurred in the early twentieth century. The Hudson’s Bay Company investigated whether the island could sustain a trading post, and scouted for potential mining opportunities.

The Hudson’s Bay Company opened a trading post that stayed in business until the 1950s. At this time, there were two settlements on the island, one on the north end and the other on the south end. The Government gradually introduced services in the Belcher Islands. In 1970, the government consolidated all services and moved all residents in the islands to the northern settlement, renamed Sanikiluaq. Until 1999, the hamlet was part of the Northwest Territories. When Nunavut was formed, Sanikiluaq was integrated into the new territory.

Sanikiluaq is the only permanent settlement in the archipelago, and contains all the main amenities and services. [ 80 ] According to Statistics Canada, Sanikiluaq’s population, as of 2016, is 882 people. This number increased from 800 in the 2011 census. The area of Sanikiluaq is roughly 114 km2, with a population density of about 7.7 people/km2.

The average age is 26.1 years old, and the median age is 22.2 year - an increase from 20.8 in the previous census. 530 people range from 15 – 64 years of age, 320 are between zero – 14 years of age, and only 35 people are over 65 years old. [ 81 ] Of the roughly 880 people, 850 are Inuit, 45 are Scottish, and 35 are First Nations. Some individuals identify as more than one ethnicity.

Only 10 people, or 1.1 percent of the total population, are immigrants to Canada who arrived between 2011 and 2016. [ 82 ] As of 2016, 815 people’s mother tongue is an aboriginal language – in this case Inuktitut. 850 people speak Inuktitut at home. Otherwise, English is the most common language with 70 native speakers, and 495 people using English regularly at home.

[ 83 ] The decision to keep Sanikiluaq “dry”, while it has its origins in colonization, appears to conform to the positivistic approach in Aboriginal law that engages community members to create binding laws and regulate behaviour (John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 46 [ Indigenous Constitution ]). These types of laws rely on the authority of a “sufficient number of people within a community” and create a guide for behaviour ( Indigenous Constitution at 47).

Positivistic laws, when used in an Aboriginal context, still carry a connection to sacred rules in their particular culture. A bandleader or other important figure would often declare positivistic laws, however, these laws can also develop from the community’s group perspective on an issue ( Indigenous Constitution at 50).

While the plebiscite conforms to a statutory framework based on Canadian law, its implementation via plebiscite makes it enforceable from an Inuit law perspective as well. [ 84 ] It seems to me that aboriginal legal principles and perspectives on criminal law and on the application of the Charter must be taken into account in pursuit of the objective of mutually enriching and harmonizing Canadian and Indigenous legal orders. [ 85 ] A cautionary note is in order.

As Chief Justice Finch of the Court of Appeal for British Columbia pointed out in his paper The Duty to Learn: Taking Account of the Indigenous Legal Orders in Practice , published in November 2012 for The Continuing Legal Education Society of British Columbia, there is a danger that “in retaining and imposing our ideas of what constitutes ‘law’, according to our training and established habits of mind, we may inadvertently give weight only to those elements of an Aboriginal legal system which are recognized in Canadian law, rendering the Canadian legal framework determinative.

At the same time, we may fail to perceive essential elements of these legal orders. At the very least, we must question our assumptions; at most, we must unlearn them. Not, of course, in every context. But for purposes of approaching Aboriginal legal orders, we must do our utmost to recognize and to relinquish our preconceptions of what objectively constitutes a ‘law’ or a ‘system of laws.’” [ 86 ] Nunavut and Sanikiluaq are not Charter free zones. The protections that are afforded to all Canadian citizens apply with full force and effect throughout the country.

How then to apply the Grant analysis in the case at bar without derogating from Charter imperatives while, at the same time, retaining a critical awareness of Indigenous legal principles. [ 87 ] Within the Inuit legal paradigm, whether a person breaches Canadian law or Inuit maligait, the ultimate consequence is that the person will shorten his or her life ( Inuit Elders: Perspectives on Traditional Law (Iqaluit: Nunavut Arctic College, 1999) at 13 [ Traditional Law] ).

The primary intent of Inuit law, as I understand it, is to preserve the community and avoid negative consequences for the individual and the group as a whole. [ 88 ] In Inuit culture, individuals are encouraged to confess any wrongdoings, as harbouring a secret transgression can cause illness in the person or community ( Traditional Law at 144).

The Inuit believe that it is dangerous to fail to disclose wrongdoings, and are socialized within their culture to confess to them ((Mariano Aupilaajurk et al, Inuit Perspectives on the 20 th Century, Volume 4: Inuit Quajimajatuqangit: Shamanism and Reintegrating Wrongdoers into the Community (Iqaluit: Nunavut Arctic College, 2002) at 180 [ Reintegrating Wrongdoers ]).

Upon confession, the community engages with the offender to reconcile and reintegrate them into the community as each individual is a “potentially valuable” member of society ( Reintegrating Wrongdoers at 718). [ 89 ] Under Inuit law, especially for less serious offences, the primary goal is to preserve the community by reintegrating the offender. Imprisonment, any type of isolation of an individual, or removing him or her from the community has a negative impact on both the individual and the community itself ( Reintegrating Wrongdoers at 18).

Social problems are viewed as something that affects the whole community, not just an individual ( Traditional Law at 17).

An individual can be reintegrated in different ways depending on the nature of the incident. [ 90 ] Alcohol and other intoxicating substances present a unique challenge to Inuit law, as individuals struggling with substance abuse have a “totally different way of life” than Inuit elders ( Reintegrating Wrongdoers at 186). [ 91 ] It follows that the question then becomes whether the issues on appeal can properly be resolved through the concurrent application of Inuit and Canadian law. [ 92 ] Application of an Inuit law approach from the time of the appellant’s detention might well have resulted in the appellant’s diversion from the traditional criminal justice system entirely.

I am given to understand that the Sanikiluaq community had in place a Justice Committee that would have been able to provide an alternative to prosecution and punishment under Canadian law. In no way do I diminish the significant adverse consequences of trafficking in marihuana; nor does the community of Sanikiluaq. I say only that under Inuit law the objective of community reintegration predominates to recover from the harm caused by the offender’s behaviour.

My understanding (based on my reading of the recited sources of Inuit law) is that incarceration is reserved within the Inuit community for only the most serious offences. Inuit law would likely address the importation of marihuana into the community through elder counselling and the Justice Committee Program. [ 93 ] As discussed above, the general focus of aboriginal justice is on restoration and healing, as opposed to the adversarial system’s focus on deterrence and punishment.

When there is a conflict between aboriginal law and Canadian law, scholars have called for the incorporation of Aboriginal values and “accommodations” in the adversarial system (Dale Dewhurst, “Pa rallel Justice Systems ”, Catherine Bell & David Kahane eds., Intercultural Dispute Resolution in Aboriginal Contexts (Vancouver: UBC Press, 2004) at 215 [ Parallel Justice ]). [ 94 ] Accordingly, it is important to consider how Inuit legal values can be integrated into each stage of the s. 24(2) analysis to which I now turn.

Seriousness of the state conduct [ 95 ] The first stage of the Grant analysis determines how serious the Charter -infringing state conduct was. The actions of the police in the case at bar were the product of a systemic practice whereby individual members of the community were improperly detained when they arrived at the airport. Such practices, of course, have implications for the appellant, but also for the Inuit community at large. Police action on the facts of this case cannot be construed as equivalent to the interventions of elders with social authority within

the Inuit community. It follows that the Canadian state actor, engaged in the enforcement of Canadian law cannot be said to be entitled tothe same deference in the context of traditional Inuit maligait or tirigusuusiit[2]. [96] The investigative detention of the appellant was both unjustifiable and arbitrary. Corporal Breton acknowledged from theoutset and throughout his dealings with the appellant that he “had no reasons to suspect anything…. It was just a routine call… I didn’teven believe that he had anything on his person at that time.” Moreover, he failed to inform Mr.

Ippak of his right to counsel. [97] R. v. G.T.D., 2018 SCC 7 makes clear that where the Charter infringing conduct is the result of an institutionally approvedhabitual and systemic practice, and not an isolated occurrence, the breach is more serious. See also, R. v. Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R. v. Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R. v. McGuffie, 2016ONCA 365 at para 67, 131 OR (3d) 643.

Grant recognized “the need for courts to distance themselves from this behaviour”,and confirmed that “evidence that Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.” [98] I conclude that the Charter infringing state conduct was serious and favours exclusion. Impact on the accused’s Charter-protected interests [99] While the Charter provides common protection for all Canadians, there may be space within the aboriginal law perspective toconsider the socio-cultural impact on the appellant by breaching his rights.

My imperfect lens, focused as it is on the limited reading thatI have done of the cited publications on aboriginal law, leads me to conclude that under Inuit law a wrongdoer such as the appellantwould face much lower jeopardy and would almost certainly be reintegrated into the community as long as he welcomed counsellingfrom elders and changed his behaviour. Instead, the appellant in this case whose recorded conviction will follow him for the rest of hislife, was sentenced to a form of imprisonment (albeit in his own home).

The breach of the appellant’s Charter-protected interestsresulted in a significant differential negative effect on him flowing directly from the actions of officers of the State. The unlawfuldetention and search in this matter impacted the appellant’s liberty and privacy interests. The s 10(

b) breach further infringed theappellant’s right to make a meaningful and informed choice about whether to speak to police and consent to a search of his baggage.Importantly, the recording of a conviction and the punishment that was imposed under Canadian law, operates directly in conflict withthe objective of Inuit law to reintegrate the individual and preserve the community. The impact on the accused’s Charter-protectedinterests when considered in juxtaposition with Inuit law was profound.

Society’s interest in adjudicating the matter on its merits [100] It is under this third aspect of the Grant analysis that the dichotomy between the competing goals of the “two societies” –Canadian and Inuit – emerges most apparent and significant. [101] Grant at para. 84 explains that: “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vitalinterest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.” [102] Inuit law’s approach to evidence of wrongdoing relies almost entirely on the cleansing power of the offender admitting hiswrongdoing.

Reintegration into the community is paramount. The admission of the marihuana – the physical evidence of crime – is not amatter of concern (apart from forfeiture) to the Inuit legal system. [103] The appellant was in breach of his community’s admonition to ban alcohol and mood-altering drugs from Sanikiluaq. BothCanadian law and Inuit law recognize his transgression; they differ, however, in addressing it.

Canadian society’s preoccupation withadjudication (read: conviction and sentencing) does not accord with Inuit culture’s principal focus on reintegration of the individual andpreservation of the community. [104] Yet when Canadian law is married to and reconciled with Inuit law and culture in the application of the Grant factors, bothfavour exclusion of the evidence.

CONCLUSION [105] In the result, the competing interests and resulting tensions set out at the outset of this judgment are, in my opinion, reconcilableupon invocation and application of a more inclusive analysis that recognizes and embraces Inuit law and culture in assessing the Grantfactors. [106] It follows that for the reasons set out, I would exclude the evidence, quash the conviction and substitute an acquittal. Appeal heard on September 19, 2017 Reasons filed at Iqaluit, Nunavut this day of June, 2018 Berger J.A.

Appearances: Alison Crowe for the Appellant Shannon O’Connor for the Respondent