R v Irngaut, 2020 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Irngaut, 2020 NUCA 4 Date: 20200421 Docket: 07-19-002-CAS Registry: Iqaluit Between: Her Majesty the Queen Applicant - and - Michael Irngaut Respondent _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Frans Slatter _______________________________________________________ Application to Strike an Appeal _______________________________________________________

Reasons for Decision of The Honourable Mr. Justice Frans Slatter _______________________________________________________ [ 1 ] The underlying issue in this

summary conviction appeal is whether the respondent was entitled to a stay of a charge of unlawfully harvesting a caribou as a result of “officially induced error”. A threshold issue is whether the Government of Nunavut had standing to launch this appeal. Facts [ 2 ] Effective January 1, 2015, the Baffin Island Caribou Interim Management Order imposed a ban on harvesting caribou in the Baffin Island Caribou - Island-Wide Moratorium Area. [ 3 ] The respondent is a resident of Igloolik, an avid hunter, and a member of the Canadian Rangers.

On February 15, 2015 he was on patrol with other Canadian Rangers in the Moratorium Area. When they stopped to camp for the first night, Sgt. George Qattalik telephoned his father, Daniel Qattalik, who was an elder and a member of the local Hunters and Trappers Organization, to report where they were camped that night. Daniel Qattalik told his son George that there was no ban on harvesting caribou in effect.

The respondent admitted that he believed that there was a caribou hunting ban in place when he left Igloolik, and he was surprised when he was told by his Sergeant that Daniel Qattalik said that there was no such ban in place. [ 4 ] The next day the patrol spotted a herd of caribou. The respondent took at face value the information that Sgt. George Qattalik had passed on from his father Daniel, and shot one of the caribou.

The trial judge found that the respondent had acted honestly and reasonably on the erroneous information received from Daniel Qattalik through his sergeant, and that he was entitled to raise “officially induced error ” as a defence. The trial judge accordingly found that the offence had been proven, but entered a stay: R. v Irngaut , 2019 NUCJ 4 . [ 5 ] The respondent was charged under the Nunavut Wildlife Act , SNu 2003, c. 26 . The Information was sworn by a Conservation Officer of the Department of Environment. The prosecution was conducted by counsel appointed by the Public Prosecution Service of Canada.

This appeal from the stay, however, was launched by the Department of Justice of the Government of Nunavut, identifying itself as the appellant, and describing the appellant variously as “Government of Nunavut” and “The Queen”. The respondent raises the initial objection that the Government of Nunavut had no standing to launch this appeal, and brought an application to have it struck. [ 6 ] The Public Prosecution Service of Canada and the Attorney General of Canada are aware of this appeal, but have not participated.

Legislative Authority Over Territorial Prosecutions [ 7 ] Whether Nunavut has standing to launch this appeal is not, as the respondent suggests, a question of legislative authority. The Legislative Powers of the Government of Nunavut are set out in the Nunavut Act , SC 1993, c. 28, s. 23 : 23(1) Subject to any other Act of Parliament, the Legislature may make laws in relation to the following classes of subjects: . . . (

e) the administration of justice in Nunavut, including the constitution, maintenance and organization of territorial courts, both of civil and of criminal jurisdiction, and the procedure in civil matters in those courts; . . . (

l) property and civil rights in Nunavut; . . . (

s) the preservation of game in Nunavut; . . . (

v) generally, all matters of a merely local or private nature in Nunavut; (

w) the imposition of fines, penalties, imprisonment or other punishment in respect of the contravention of any law made by the Legislature; . . . There is an obvious parallel between these provisions and the powers given to the Legislatures of the Provinces under s. 92 of the Constitution Act, 1867 . [ 8 ] It follows that there can be little doubt about the validity and applicability of the enactments involved: The Wildlife Act , SNu 2003, c. 26 , the Department of Justice Act , RSNWT (Nu) 1988, c. 97 (Supp ), and the

Summary Conviction Procedures Act , RSNWT 1988, c. S-15 . Further, clause 5.3.10 of the Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada , as ratified by the Nunavut Land Claims Agreement Act , SC 1993, c. 29, s. 4 , gives the Government of Nunavut a role in the implementation of decisions of the Nunavut Wildlife Management Board. [ 9 ] The parties agree that the Government of Nunavut has no direct juridical relationship with the Crown. In other words, there

is no concept of “Her Majesty the Queen in Right of Nunavut”: Fédération Franco-ténoise v Canada, 2001 FCA 220 at para. 43,[2001] 3 FC 641. When a prosecution or an appeal in Nunavut lists “The Queen” as a party, that must be a reference to Her Majesty theQueen in Right of Canada. [10] As noted, there seems to be no constitutional impediment to the Government of Nunavut initiating prosecutions for offencesunder territorial legislation.

The power to administer justice in Nunavut, to make laws respecting wildlife, and to provide for penaltieswith respect to contravention of those laws must imply an ability to prosecute territorial offences. Properly worded legislation could, ifnecessary, confirm how that capacity would be engaged and executed. Nunavut could, for example, enact its own stand-alone proceduresfor prosecuting territorial offences, including procedures respecting appeals. [11] The respondent points out that the Yukon

Summary Convictions Act, RSY 2002, c. 210 s. 1 identifies the Attorney Generalof Yukon as the prosecutor for territorial offences. There is no equivalent provision in Nunavut. The respondent speculates that theYukon provision may be unconstitutional, but it is difficult to see why that would be so. As noted, the territorial governments havepower to administer justice, which prima facie should include prosecution of territorial offences.

There is no obvious reason why theterritories cannot appoint Attorneys General, with many (if not all) the traditional powers of that office, and establish procedures forprosecuting territorial offences. [12] The Conservation Officer, as a citizen, could himself initiate a private prosecution in his own name, subject to the right of theAttorney General to take over the prosecution: McHale v Ontario (Attorney General), 2010 ONCA 361 at paras. 5, 57, 256 CCC (3d)26.

It seems anomalous that a citizen could initiate the prosecution of a territorial offence, but the Attorney General of Nunavut couldnot. [13] Whether territorial prosecutions of territorial offences would be launched in the name of “The Queen”, or in the name of the“Government of Nunavut” is an interesting question that need not be resolved at this time. Since

summary conviction offences are publicdelicts, they could possibly be prosecuted in the Crown’s name by analogy to private prosecutions: see Criminal Code, s. 785,“prosecutor”; s. 507.1; R. v Devereaux, (ON CA), [1966] 2 OR 290 at p. 293 (CA); Motor Coach Industries vInternational Association of Machinists and Aerospace Workers, [1982] 4 WWR 436 at pp. 438-9, 16 Man R (2d) 62 (Cty Ct) affirmedMacIssac (Private Prosecutor) v Motor Coach Industries Ltd, (MB CA), 16 Man R (2d) 419, [1982] 5 WWR 391(CA). That, however, does not answer the question of whether the Government of Nunavut had standing to launch this appeal. Prosecution of

Summary Conviction Offences [14] The prosecution of

summary conviction offences in Nunavut is governed by the

Summary Conviction Procedures Act,RSNWT 1988, c. S-15, which provides: 2(1) The provisions of the Criminal Code relating to

summary conviction offences apply, with such modifications as the circumstancesrequire, to all offences created by an enactment or municipal by-law, except to the extent that the enactment or municipal by-law or thisAct or the regulations otherwise provides. Territorial offences in Nunavut are not prosecuted under the Criminal Code. They are prosecuted under the

Summary ConvictionProcedures Act, which adopts by reference the procedures in the Criminal Code. There is no specific provision in the

SummaryConviction Procedures Act respecting appeals, which must therefore be governed by the procedure in the Criminal Code. [15] Section 2(1) is intended to apply to procedural issues. It incorporates by reference the procedures in the Criminal Code; itdoes not delegate responsibility for prosecuting territorial offences to Canada. Section 2(1) does not necessarily specify the authority ofvarious officials to initiate or conduct prosecutions.

Counsel advised that there is an agreement or understanding between theGovernment of Nunavut and the Public Prosecution Service of Canada, whereby the latter prosecutes territorial offences. That agreementis not in evidence, and these reasons must be read accordingly. [16]

Part XXVII of the Criminal Code deals with

summary conviction offences. The provisions respecting appeals are: 813. Except where otherwise provided by law, . . . (

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (

i) from an order that stays proceedings on an information or dismisses an information, (ii) against a sentence passed on a defendant, or (iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial, and the Attorney General of Canada or his agent has the same rights of appeal in proceedings instituted at the instance of theGovernment of Canada and conducted by or on behalf of that Government as the Attorney General of a province or his agent has underthis paragraph.

The respondent argues that the Department of Justice of the Government of Nunavut is not “the informant, the Attorney General or hisagent”, and hence has no standing to appeal. [17] The reference to “the informant” is a recognition that private prosecutions are still possible. This is confirmed by thedefinition of “prosecutor” in

Part XXVII of the Criminal Code: 785. “prosecutor” means the Attorney General or, where the Attorney General does not intervene, the informant, and includes counsel oran agent acting on behalf of either of them;

In this case, if the Conservation Officer had treated this as a private prosecution, he could have continued the prosecution, and couldhave appealed on that basis, subject to the recognized power of the Attorney General to assume conduct of the proceedings: McHale atparas. 32-33.

Section 813 therefore implies that the powers of the “Attorney General” in it are not necessarily exclusive, if only becausea private informant has a right to appeal. [18] The term “Attorney General” is defined in the Criminal Code: 2. Attorney General (

a) with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which thoseproceedings are taken . . . (

b) means the Attorney General of Canada and includes his or her lawful deputy with respect to (

i) Yukon, the Northwest Territories and Nunavut, or (ii) proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government . . . When read with the definition of “prosecutor” in s. 785, this definition provides that, with respect to

summary conviction offences underthe Criminal Code, the “Attorney General” in Nunavut is the Attorney General of Canada. [19] The essential argument of the respondent is that s. 2(1) of the

Summary Conviction Procedures Act adopts s. 2(

b) and s. 813 ofthe Criminal Code, giving the Attorney General of Canada the exclusive right to prosecute territorial offences in Nunavut. As a result,the Government of Nunavut had no standing to launch this appeal. The Attorney General of Nunavut argues that any delegation to theAttorney General of Canada (effectively the Public Prosecution Service of Canada) is not exclusive, and the Government of Nunavutretains a residual power to prosecute territorial offences and launch appeals. [20] In the end, this is simply a question of statutory

interpretation. Appeals are created by statute; there is no right to appealunless provided by the statute.

Section 813(

b) grants a right to appeal to “the informant, the Attorney General or his agent”. Since thereis no separate provision respecting appeals in the

Summary Conviction Procedures Act, s. 813(

b) must apply to appeals in territorialprosecutions. In order to appeal, the Government of Nunavut must fit itself within the phrase “the informant, the Attorney General or hisagent”. This it cannot do, because s. 2 of the Criminal Code defines the “Attorney General” as the “Attorney General of Canada”. [21] The phrase “with such modifications as the circumstances require” in s. 2(1) of the

Summary Conviction Procedures Act doesnot provide a solution. If the definition of “Attorney General” is “modified” so as to make the definition of Attorney General in s. 2 ofthe Criminal Code inapplicable, there is still a gap.

Section 813(

b) still restricts the right of appeal to “the informant, the AttorneyGeneral or his agent”. The term would have to be “modified” such that, for purposes of the

Summary Conviction Procedures Act,“Attorney General” would mean the Attorney General of Nunavut or the Attorney General of Canada, on a case by case basis. Whateverthe phrase “with such modifications as the circumstances require” may encompass, it cannot envision a re-writing of the statute to thatextent. [22] In conclusion, the Government of Nunavut had no standing to launch this appeal, and it must be struck. If the AttorneyGeneral of Nunavut wishes to retain a role in the prosecution of territorial offences, legislative amendments may be needed.

Officially Induced Error [23] Since the appeal must be struck, it is not necessary to consider the substantive issue of “officially induced error”. However, inthe interests of judicial economy, and since the issue was fully argued, some discussion is warranted. [24] Officially induced error is not a defence, but rather an answer to a criminal charge that excuses the accused, and justifies astay rather than a conviction. It is a limited exception to the rule that ignorance of the law does not excuse criminal conduct. [25] The burden of establishing officially induced error is on the accused.

The trial judge held: 143 Further, I do not think it probative that the only witness called to testify by the Defence was Mr. Irngaut. In my view, this is a red-herring. The Agreed Statement of Facts (Ex: P-1) identifies all the people on the trip. The Crown signed off on this document on 05December 2016. 144 Accordingly, if the Crown thought that testimony from George, Lucy, or Isa was important, then the Crown had well over a yearto interview and obtain statements from them.

Similarly, the Crown could have applied to call any of them to testify in rebuttal afterMichael testified, and sought leave from me to cross-examine them. The Crown was aware that Michael would testify at the trial, andcould easily have had these people subpoenaed and standing by. This reasoning essentially reversed the burden of proof.

It was up to the respondent to prove officially induced error, and gaps in theevidence undermined his case, not the Crown’s. [26] The test for officially induced error can be extracted from the concurring reasons of Lamer C.J. in R. v Jorgensen, (SCC), [1995] 4 SCR 55, from Lévis (City) v Tétreault, 2006 SCC 12, [2006] 1 SCR 420 and from R. v Bédard, 2017 SCC 4,[2017] 1 SCR 89. The following factors are identified:

a) The error is one of law or mixed fact and law: Jorgensen at para. 28;

b) The accused actually considered the legal consequences of the intended action, to maintain an incentive for citizens to inform

themselves of the law: Jorgensen at para. 29 ; Lévis at para. 34; Bédard at para. 1 ;

c) The advice was obtained from an appropriate official, one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question: Jorgensen at paras. 30-2 ; Lévis at para. 27;

d) The advice was objectively reasonable in the circumstances: Jorgensen at para. 33 ; Lévis at para. 27; Bédard at para. 3 ;

e) The advice was erroneous, which will usually be self-evident when the charge has been made out by the Crown: Jorgensen at para. 34 ;

f) The accused relied on the official advice, and that reliance was objectively reasonable: Jorgensen at para. 35 ; Lévis at para. 27. Imbedded in these criteria must be a requirement that the accused believed the advice to be accurate. An accused who acts on advice he does not honestly believe remains morally culpable for the offence. [ 27 ] Some of the identified criteria overlap. For example, Lévis states: 27. . . . it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice . . . .

Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion . . . This passage blends consideration of the reasonableness of the advice, and reasonableness of the reliance, with the nature of the official and the particularity of the advice. [ 28 ] In this case the trial judge found that the respondent acted honestly and in good faith.

Although when he left Igloolik he thought that there was a hunting ban in place, he genuinely believed the contrary advice he received from his sergeant. That finding of fact discloses no reviewable error. The excuse of officially induced error fails, however, on the reasonableness of the reliance on that advice and the official status of the source of the advice. [ 29 ] In addition to being directly contrary to the respondent’s belief when he left Igloolik, the advice was given in a very informal context. The group of Canadian Rangers had stopped to camp for the first night. Sgt.

Qattalik telephoned his father to report where they were camped. The group had not seen any caribou, and the call was not to seek advice about hunting bans. How the issue of hunting bans came up in the call was not proven, nor was there any evidence about what the sergeant asked his father. It is not clear if the discussion about hunting bans was just part of an informal conversation, or if Sgt. Qattalik asked his father for “official advice”.

The respondent was not a party to the call, did not overhear it, and so was relying on second hand, imprecise information. [ 30 ] Daniel Qattalik was an elder, which would give his advice social credibility, but that is not the equivalent of “official” status making his advice binding on the government. The Moratorium was issued by the Minister of Wildlife under the Wildlife Act . Daniel Qattalik had no position with, or authority from, the Department or the Nunavut Wildlife Management Board.

There is no evidence Daniel Qattalik was even asked to provide advice in any official capacity. [ 31 ] Daniel Qattalik’s official status was said to arise from his directorship in the local Hunters and Trappers Organization. Such Organizations are recognized in the Nunavut Land Claims Agreement :

PART 7: SPECIAL FEATURES OF INUIT HARVESTING Hunters and Trappers Organizations (HTOs) and Regional Wildlife Organizations (RWOs) 5.7.1 In addition to the functions given to the NWMB [Nunavut Wildlife Management Board], the exercise of harvesting by Inuit shall be overseen by HTOs and RWOs. 5.7.2 Each community, and each outpost camp that prefers a separate organization, shall have an HTO. Membership in each HTO shall be open to all Inuit resident in a community. Each HTO may, by by-law, provide for classes of non-voting membership and privileges that flow therefrom, and may distinguish between persons who are Inuit by descent or custom, but who are not enroled under

Article 35 and other persons. Existing community Hunters and Trappers Associations may, subject to their adaptation to the provisions of this Article, act as HTOs. Two or more HTOs may join together for the purpose of discharging their functions over any or all species of wildlife on a joint basis. 5.7.3 The powers and functions of HTOs shall include the following: (

a) the regulation of harvesting practices and techniques among members, including the use of non-quota limitations; (

b) the allocation and enforcement of community basic needs levels and adjusted basic needs levels among members; (

c) the assignment to non-members, with or without valuable consideration and conditions, of any portion of community basic needs levels and adjusted basic needs levels; and (

d) generally, the management of harvesting among members. 5.7.4 Each Region shall have an RWO. . . . 5.7.5 made up of representatives from each HTO in the Region. . . . 5.7.8 In conformity with this Article, each HTO and RWO shall develop and adopt by-laws guiding its operations. . . . 5.7.11 No by-law or decision of an HTO or RWO shall unreasonably prevent the individual Inuk from harvesting for the purpose of

meeting the consumption needs of himself or herself and his or her dependents. 5.7.12 Every member of an HTO or RWO shall be subject to the by-laws of the organization. Each RWO and HTO shall develop its ownby-laws, including by-laws to discipline its membership for violation of its by-laws. . . . 5.7.14 HTOs and RWOs shall not exercise their authority pursuant to Sub-section 5.7.3(

a) or 5.7.6(

a) in such a way as to conflict withany other regulations governing harvesting practices and techniques. . . . Parallel provisions are found in s. 167 of the Wildlife Act. [32] The Nunavut Land Claims Agreement makes it clear that the Nunavut Wildlife Management Board has primary responsibilityfor the management of wildlife in Nunavut. The Hunters and Trappers Organizations have a limited role in allocating local quotas, andin managing local hunting practices. As summarized in the trial reasons: 104.

The HTOs regulate and allocate the harvest at the community level, in those instances where regulation is required. They negotiatequotas and prohibitions where necessary, and, for example, issue ‘tags’ for the harvesting of controlled species. In addition, HTOs, inconjunction with the Department of Fisheries and Oceans (Canada), manage community hunting events, such as bowhead whale hunts. .. . 109. Nunavut’s HTOs do not, however, lay charges for violations of the Wildlife Act. For example, by swearing long form Informationsor issuing

Summary Offence Ticket Informations (SOTIs) for alleged breaches of the Wildlife Act. 110 This function is given to “conservation officers” who are appointed pursuant s.163 of the Wildlife Act, and whose main duty,pursuant to s.164 of the Wildlife Act, is to ensure compliance with and enforce the provisions of the Wildlife Act.

The Hunters and Trappers Organizations do not grant permission to hunt, and have no role in issuing moratoriums on hunting, or inenforcement. [33] In order to make out the excuse of officially induced error, the erroneous advice must usually come from the governmentagency directly involved in the relevant area of regulation. As stated in Jorgensen at para. 30: One primary objective of this doctrine is to prevent the obvious injustice . . . [of] the state approving conduct with one hand and seekingto bring criminal sanction for that conduct with the other.

In general, therefore,. . . government officials who are involved in theadministration of the law in question will be considered appropriate officials. In narrow circumstances, advice from other official sources might suffice. For example, in Jorgensen the accused attempted to justifyfederal charges for the possession of pornographic videos by showing that they had been approved by the Ontario Film Review Board.

In that case, however, the Board was shown to have a mandate over the particular topic, namely the classification of films. [34] Further, in order to be “official”, the representation must generally have a level of formality to it. It will rarely be reasonable torely on casual conversations with officials, particularly those made in an informal social setting. For example, in Jorgensen the reliancewas based on the official approval of the videos.

In other cases, reliance was on written guidelines and directives: R. v Ralph (2002), (NL SC), 220 Nfld & PEIR 351. [35] There is no evidence establishing that the Hunters and Trappers Organization of which Daniel Qattalik was a director had anymandate over the Moratorium Area. The Moratorium covers all of Baffin Island. The respondent, George Qattalik and Daniel Qattalikare all from Igloolik, which is on Igloolik Island near the Melville Peninsula.

Even if a Hunters and Trappers Organization has someauthority to make representations about hunting bans in its local area, that cannot reasonably extend to all of Nunavut. [36] There is also no evidence that the Hunters and Trappers Organization in question had taken on the role of advising huntersabout bans, or that individual directors were authorized to speak on behalf of the Organization. There is no evidence that George Qattalikconsulted his father in his official capacity, rather than in an informal family way. The burden of proof on all these issues was on therespondent.

Casual comments made in social settings or informally in the community are not sufficient to establish the excuse ofofficially induced error, even if made by an official. [37] On this record, the opinion of Daniel Qattalik about the Moratorium was not shown to be anything more than his privateopinion. It was an error to conflate that private opinion with an official statement. This is not a case of “the state approving conduct withone hand and seeking to bring criminal sanction for that conduct with the other”. [38] The reliance on the casual information the respondent received was not objectively reasonable.

The respondent knew therewas a ban in place: 30 Michael told the court that he was well aware, before the group left the community, that there was a prohibition against harvestingcaribou. He knew there was a ban. He testified that he had heard about it, not from radio or TV, or even on any communityannouncement, but rather, “just from hearing people talk about it . . . just from people saying there was a ban.” . . .

In the face of this actual knowledge about the ban, which was common knowledge in the community, it was objectively unreasonablefor the respondent to harvest a caribou based on second hand, unverified and informal information from someone with no obviousauthority. It was unreasonable to believe the ban had been lifted only 11 hours after the Rangers left Igloolik. In the absence of anymeans of reconciling the conflicting information, the respondent had an obvious option: “Don’t hunt”.

The respondent, however, testifiedthat he was “determined to get a caribou”. [39] The trial judge placed considerable emphasis on the fact that the respondent was only 22 years old, and the youngest memberof the hunting party. The test, however, is primarily objective. As stated in Lévis at para. 27:

It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the accused. It is an error to overemphasize the personal characteristics of the accused in assessing the reasonableness of the reliance on the information. On this record it was also irrelevant that the respondent may have had a constitutional right to hunt for food.

While the respondent stated he was opposed to the ban, it was admittedly in place, and its legality was not challenged. [ 40 ] As noted, all these factors must be considered collectively in assessing whether an officially induced error justifies the offending conduct.

Having regard to the efforts made by the respondent to obtain information, the clarity of the ban, the limited official position and role of the person who gave the opinion, the lack of clarity and definitiveness of the conflicting information, the informal setting in which the opinion was given, and the objective reasonableness of that information, the respondent did not prove officially induced error. [ 41 ] If officially induced error was recognized on the facts disclosed by this record, it would have a serious detrimental effect on the ability of the Nunavut Wildlife Management Board to manage wildlife in Nunavut.

The respondent did not prove the excuse in this case. Conclusion [ 42 ] In conclusion, the application to strike the appeal is granted. Appeal heard on February 11, 2020 Reasons filed at Iqaluit, Nunavut this 21st day of April, 2020 Slatter J.A. Appearances: A. Silk for the Applicant B. Cowan for the Respondent