R. v. Schurm, 2011 NUCJ 36

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Schurm, 2011 NUCJ 36 Date: 20111017 Docket: 08-10-197 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: Peter Stephen Schurm ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Respondent): Leo Lane Counsel (Applicant): John Harbic Location Heard: Iqaluit, Nunavut Date Heard: October, 17, 2011 Matters: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss. 8 , 9 , 24(2) ; Voir Dire REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Table of Contents

REASONS FOR JUDGMENT 1 I. INTRODUCTION 3 II. FACTS 3 III. ISSUES 5 IV. ANALYSIS 6 A. The arrest 6 B. Subjective belief in reasonable and probable grounds 7 C. Objective reasonable and probable grounds 10 D. The Search and Seizure 12 E. The Statement 14 F. Was the accused's statement voluntary? 15 V. CONCLUSION 17 I. INTRODUCTION [ 1 ] The accused is charged with possession of the proceeds of crime. He was leaving Iqaluit on a scheduled flight to Ottawa and had checked in some luggage.

Inside the luggage was approximately $110,000 in Canadian currency, which the Crown alleges are the proceeds of drug trafficking. [ 2 ] The accused seeks to have the money and a videotaped statement he made to the police excluded as evidence at the trial of this matter. II. FACTS [ 3 ] On February 23, 2010, Sgt. Robinson, a member of the Royal Canadian Mounted Police [RCMP] in Iqaluit received a text message from an airport security screener, an employee of the Canadian Air Transport Security Authority [CATSA].

The message was to the effect that while screening checked luggage destined for Ottawa (as opposed to luggage that travellers carry on) bundles of what appeared to be money, were located in a suitcase. A second message also identified the owner of the suitcase. Although the CATSA employee sent the text directly to Sgt. Robinson, the evidence is that the information was unsolicited and there was not an agreement or understanding between the RCMP and CATSA that information would be shared. [ 4 ] Sgt. Robinson felt the need to respond quickly, as he was aware that the flight to Ottawa would be leaving shortly.

He and another officer, Sgt. Gill, proceeded to the airport and, while en route, Sgt. Robinson contacted the Iqaluit Drug

Section to advise them of the situation. Sgt. Robinson was told to proceed with the investigation and was advised that it was not uncommon for people to transport money from Iqaluit to the south for legitimate purposes. He was advised that, in particular, workers in the hotel or taxi industry commonly come and work for several months and leave with large amounts of cash as they do not want to deal with banks. [ 5 ] When the officers arrived at the airport they went to the screening room and viewed the X-ray of the suitcase. Sgt.

Robinson estimated that there were 15 bundles of cash which, in his view, were too thick to be $1,000 bundles. He estimated each bundle to be $5,000, for a total of $75,000. This estimate was based upon his experience in drug investigations. The officers also checked the name tags on the two suitcases which were identified to them by the CATSA employee. The bags were tagged with the name of the accused and had a phone number with a “613” area code, which the officer knew to be for the Ottawa area. The officer did not recognize the address on the tags. [ 6 ] Sgt.

Robinson then spoke with the customer services agent for the airline and was advised that the accused had bought his ticket “at the last minute” and had paid cash. The accused had already cleared security and was in the boarding area. Departure of the flight was

imminent. [ 7 ] The two officers entered the boarding area. They approached the accused and asked if he was Steven Skrum. The accused corrected the pronunciation of his last name and said that he was Steven Schurm. Sgt. Robinson produced his badge and identified himself as a member of the RCMP. The accused was asked to accompany the officers out of the secured boarding area and into the main terminal. [ 8 ] Once in the main terminal, Sgt.

Robinson asked the accused “if there'd be any reason why there's any large amounts of money or anything illegal in his checked luggage.” The accused denied having cash in his luggage. [ 9 ] The officer then initiated a conversation, wherein the accused, in responding to questions, disclosed that while in Iqaluit he had stayed with W.K., that he had been in town for a couple of days, and that his visit had been cut short because of plumbing issues in the house. Cpl. Robinson then asked the accused if he would consent to a search of his luggage.

In response, the accused queried if things would go better for him if he consented. [ 10 ] At this point, the accused was placed under arrest for possession of the proceeds of crime and was advised of his right to retain and instruct counsel, pursuant to

section 10 (

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. [ 11 ] The accused was taken to the police truck and was in the custody of Sgt. Gill while Sgt. Robinson seized the accused's two pieces of luggage from the airport screening room. Once at the detachment the accused was placed in cells until a room could be made available for him to call counsel. [ 12 ] The accused did speak with local defence counsel, subsequent to which he was interviewed by the police.

The interview was videotaped and the Crown seeks to enter it as evidence. [ 13 ] The police obtained the “consent” of the accused to open the luggage which they had seized from the airport. One of the suitcases contained approximately $110,000 in cash. III. ISSUES [ 14 ] Was the accused arbitrarily detained or arrested in breach of

section 9 of the Charter and, if so, should the money that was seized or the videotaped statement that was given be excluded pursuant to section 24 (2) of the Charter? [ 15 ] If the arrest of the accused was lawful, was the seizure and search of his luggage valid as incidental to arrest? If not, was it unreasonable and contrary to

section 8 of the Charter and, if so, should the money be excluded pursuant to section 24 (2) of the Charter? [ 16 ] Was the accused's statement voluntary? [ 17 ] Should the videotaped statement be excluded on the basis that it is ambiguous and its prejudicial value outweighs its probative value? [ 18 ] Were the accused's rights to counsel pursuant to

section 10 (

b) of the Charter infringed and, if so, should the videotaped statement be excluded pursuant to section 24 (2) of the Charter? IV. ANALYSIS

A. The arrest [19] Was the accused arbitrarily detained or arrested in breach of

section 9 of the Charter and, if so, should the money that was seized orthe statement that was given be excluded pursuant to s. 24 (2) of the Charter? [20] The accused was not arrested when the police first approached him in the boarding area. It was not until after he had been taken tothe main part of the terminal and questioned that he was placed under arrest. Despite this, the arresting officer testified that he felt that hehad reasonable and probable grounds to arrest when he first approached the accused in the boarding area.

The officer testified that hechose not to make an arrest immediately as he knew the flight was departing and, on the “off chance” the accused could justify thepossession of the money, he would be free to leave and would not miss the flight. The officer testified that had the accused attempted toleave when first approached, he would have been arrested. [21] There are two issues that must be decided in determining if the arrest was lawful:

i) Did the arresting officer subjectively believe that he had reasonable and probable grounds to make an arrest when he first approachedthe accused in the secure area; and, ii) Objectively, were there reasonable and probable grounds to make an arrest? [22] To make an arrest an officer must personally believe that there are reasonable and probable grounds to arrest. In addition, areasonable person, with the same knowledge as the officer, must be able to conclude that there are reasonable and probable grounds foran arrest.

If either the subjective belief or objective justification are absent, the arrest is unlawful (R v Storrey, (SCC),[1990] 1 SCR 241, 75 CR (3d) 1). B. Subjective belief in reasonable and probable grounds [23] The Defence argues that when he first approached the accused in the boarding area, Sgt. Robinson did not have a subjective beliefin the reasonable and probable grounds necessary to effect an arrest. In support of this they point to the fact that he did not arrest theaccused and to various notations made by Sgt.

Robinson which suggest that he relied upon both the information he had prior toapproaching the accused and the information he gained through his initial questioning of the accused to form the reasonable andprobable grounds for an arrest. [24] The Crown's position is that, although Sgt. Robinson subjectively believed he had reasonable and probable ground for an arrest, hechose not to effect an arrest immediately just in case the accused had a legitimate explanation for the money and could be sent on hisway. [25] Sgt. Gill testified about the events at the airport.

Unfortunately, he did not make notes and his recollection is not very good. As aresult, his evidence is of little assistance to the Court. [26] Sgt. Robinson testified that after receiving the text message he and Cpl. Gill went to the airport luggage screening area. They spokewith the CATSA employee who advised them that, in his opinion, the X-ray of the accused luggage showed bundles of cash. Sgt.Robinson viewed the X-ray with the CATSA employee, counted the bundles, and estimated the amount of cash to be approximately$75,000. Sgt. Robinson conceded that they could not identify the bundles as Canadian currency.

Sgt. Robinson testified that, in his view,that amount of money, placed in checked luggage is suspicious. He testified “So, my suspicion was that it was the result of drug activity,and either going down as – from drug sales or going down to replenish a supply” (Transcript, page 109, lines 15-18). He viewed this assuspicious because placing the money in checked luggage, as opposed to carry on, meant that the passenger would not be called upon toexplain to security personal the reason for possessing such a large sum of cash.

In his view, such a large sum of money from a legitimatesource would be transferred through the banks. [27] Sgt. Robinson testified that he then spoke with the First Air agent and determined that the accused had bought his ticket at the lastminute and had paid cash for it. In his experience, this is a common technique used by those in the drug trade as it minimizes the time

luggage is in the terminal and available to be searched and it ensures there is little or no documentation regarding the sale of the ticket. [ 28 ] Sgt. Robinson testified that at that point he was satisfied he had grounds to arrest or detain the accused. He testified that he did not arrest the accused nor did he advise him of his right to counsel because he was sensitive to the fact that departure of the flight was imminent. If the accused could provide a satisfactory explanation for the money, the officer intended to let him board the plane and leave.

The officer felt that arresting the accused or advising him of his right to counsel and having him exercise that right would almost certainly result in the accused missing the flight. [ 29 ] Sgt. Robinson took notes as the investigation unfolded on February 23, 2010. On February 26, 2010, he prepared a General Occurrence Report and on March 18, 2010, he swore an affidavit in support of a Production Order. [ 30 ] Defence counsel relies upon some of the notations in these documents to argue that Sgt.

Robinson did not actually believe that he had the grounds to arrest the accused until after he had spoken with the accused and gathered additional information from him. [ 31 ] Defence counsel cross-examined Sgt.

Robinson on both his notes made on February 23, 2010, and the General Occurrence Report prepared on February 26, 2010. [ 32 ] The General Occurrence Report includes the following paragraph: Based on his short trip to Iqaluit, the cost of a return trip, the observations of CATSA, it was my belief that he was in possession of money likely from the proceeds of drug sales in Iqaluit. [ 33 ] This is followed by an indication that the accused was then arrested for possession of property obtained by crime. [ 34 ] Defence counsel also cross-examined Sgt.

Robinson on an Affidavit he swore on March 18, 2010 [the Affidavit]. The Affidavit is not before the Court. In paragraph 13 of the Affidavit, Sgt. Robinson relates the following: I made a patrol through security. I met with Steven Shurm. I escorted him back into the main terminal and had a conversation with him, and learned the following: (

a) He advised that he travelled to Iqaluit two days earlier. (

b) He advised that he stayed with WK. (

c) He advised that he did not have any money in his luggage, but then said that if he consented to a search, would things go easier for him. [ 35 ] Paragraph 14 of the Affidavit states: A short time after our conversation, I arrested Steve Shurm for possession of proceeds obtained by crime and he was transported along with his luggage to Iqaluit detachment. [ 36 ] Defence counsel argues that the General Occurrence Report establishes that information obtained from the accused was relied upon to form the reasonable and probable grounds necessary for an arrest. [ 37 ] Defence counsel also argues that the Affidavit does not disclose an intention to arrest the accused until paragraph 14.

He argues that the structure of the Affidavit, with details of the conversation with the accused in paragraph 13 preceding details of the arrest in paragraph 14, indicates that grounds for the arrest were not formed until after the conversation with the accused.

[ 38 ] Defence counsel submits that the General Occurrence Report and the Affidavit both support the proposition that reasonable and probable grounds for arrest were not formed until after the conversation with the accused and that the officer's testimony that he formed reasonable and probable grounds for arrest prior to speaking with the accused should not be accepted. [ 39 ] With respect to the General Occurrence Report, I am of the view that the Court is being asked to impose too exacting a standard.

Notes taken at the time and following an investigation are intended to set out the development of an investigation and are to be a memory aid to the officer. It is inevitable that some details will not be included or that information might be summarized. While it is true that the officer indicated in the General Occurrence Report that the length of the accused's trip to Iqaluit was in his mind when he made the arrest, it is also true that he did not indicate in the General Occurrence Report that the accused had paid cash for his ticket and had bought it at the last minute.

Does this mean that these factors were not in the officer's mind and played no

part in his decision to make an arrest? I do not think so. [ 40 ] With respect to the Affidavit, the significance of the excerpts referred to is difficult to assess without the entire Affidavit being before the court. One must always be cautious about considering individual sentences or paragraphs in isolation from the entire document. In my view, counsel is reading too much into the Affidavit. Paragraph 14 does not speak to the existence of grounds for an arrest; it speaks to the fact of an arrest. The fact is that the accused was arrested after Sgt. Robinson had a conversation with him.

Paragraphs 13 and 14 simply set out events as they occurred. The Court's attention has not been brought to anything in the Affidavit that speaks to the formation of a subjective belief in the grounds for an arrest. [ 41 ] Perhaps the most compelling argument in favour of a finding that the officer did not have the necessary subjective belief for an arrest arises from the fact that he did not make an arrest. However, a power to arrest does not impose a concurrent duty to arrest. Police are called upon to exercise their discretion in carrying out their duties.

I accept that in this instance the officer exercised his discretion to not arrest the accused in the event that there was a legitimate explanation for the money. In hindsight, that decision may have been unwise, but that does not make the eventual arrest unlawful. C.

Objective reasonable and probable grounds [ 42 ] Notwithstanding the subjective belief of the arresting officer, the Court must assess the information available to the officer and determine if, objectively, there were reasonable and probable grounds for the arrest. [ 43 ] The officer had the following information available to him: • large bundles of what was believed to be cash in luggage that was checked in on a flight to Ottawa; • the ticket was purchased “at the last minute”; • the ticket was paid for with cash. [ 44 ] Counsel have referred the Court to a number of decisions in which it was held that simply being in possession of a large sum of money was not sufficient to provide reasonable and probable grounds for an arrest. [ 45 ] In R v Perello, 2005 SKCA 8 , 193 CCC (3d) 151 , the accused was stopped on the highway for a speeding infraction.

He subsequently consented to a search of his camper during which $55,000 in cash was found. The Court of Appeal held that possession of a large sum of money, without more, cannot form reasonable and probable grounds for arrest. [ 46 ] In R v Nolet, 2010 SCC 24 , 256 CCC (3d) 1 , the accused were travelling in an empty tractor-trailer which was stopped for a random check pursuant to highway traffic legislation. A search disclosed licensing violations, discrepancies in the documentation, and $115,000 cash in small denominations. The accused were arrested for possession of the proceeds of crime.

The Court held at paragraph 48 that while possession of a large sum of money may not, on its own, constitute objective, reasonable, and probable grounds for arrest for possession of the proceeds of crime, the cash may contribute to reasonable and probable grounds when the circumstances are such that it is a reasonable inference that the money is proceeds of crime. The Court found that the circumstances before it were such that there were reasonable and probable grounds for an arrest.

[47] Carrying a large sum of money within Canada is not illegal. Purchasing an airline ticket at the last minute is not illegal. Payingcash for an airline ticket is not illegal. But legality or illegality is not the test. Activities which are legal may, none the less, be highlysuspicious. A number of legal, but highly suspicious activities, taken together, may constitute reasonable and probable grounds for anarrest. [48] In determining what inferences, if any, can be drawn from particular facts, the Court is entitled to rely upon any expertise thearresting office or the CATSA agent might have. Sgt.

Robinson has many years of experience with the RCMP. He has been involved inmany drug investigations and has taken courses relating to drug investigations. As previously indicated, Sgt. Robinson's experience ledhim to believe the manner in which the ticket was purchased was consistent with the manner in which those involved in the drug tradepurchase tickets. The CATSA agent is specifically trained to identify objects in X-rays of luggage. Sgt. Robinson was entitled to relyupon the opinion of the CATSA agent as to the nature of the bundle identified in the luggage. [49] It was also of concern to Sgt.

Robinson that the cash was placed in luggage that was checked in and therefor, no longer in thephysical possession of the accused. One does not need expertise in the drug trade to see this as a concern; one simply needs to be aregular air traveller. People who place money in checked baggage are prepared to lose it rather than be found with it on them. Few, ifany, people who are in possession of such a large sum of money earned from a legitimate source are prepared to take such a risk. This, incombination with the manner in which the ticket was purchased, provided reasonable and probable grounds for an arrest. D.

The Search and Seizure [50] If the arrest of the accused was lawful, was the seizure and search of his luggage valid as incidental to arrest? If not, was itunreasonable and contrary to

section 8 of the Charter and, if so, should the money be excluded pursuant to section 24 (2) of the Charter? [51] The Crown does not rely upon the consent of the accused to validate the search and seizure of the luggage.

Instead, the Crownargues that the opening of the luggage at the police detachment and the seizure of the money was authorized as a search incidental toarrest. [52] Canadian courts have recognized a common law power to search incidental to arrest for the purposes of ensuring safety of thepolice and the accused, preventing the escape of the accused, or gathering evidence related to the offence for which the accused wasarrested.

The arresting officer does not require reasonable and probable grounds to believe that officer or accused safety would becompromised, that the accused has possession of items likely to aid an escape, or that evidence related to the offence is likely to befound, but the officer must be able to articulate reasons for the search which relate to one of the three permissible purposes (Cloutier vLanglois, (SCC), [1990] 1 SCR 158, 53 CCC (3d) 257; R v Stillman (SCC), [1997] 1 SCR 607, 113CCC (3d) 321; R v Caslake, (SCC), [1998] 1 SCR 51, 121 CCC (3d) 97). [53] The issue in the present matter is whether the power to search incidental to arrest extends to the luggage of the accused. [54] In R v Caslake, the accused was arrested for drug charges while he was driving.

He was taken to the police detachment and hisvehicle was towed to a garage. Six hours later the vehicle was searched so that an inventory of its condition and contents could be taken.The inventory search was in keeping with police policy, which required that all impounded vehicles be searched to safeguard valuablesbelonging to the owner and to note the general condition of the vehicle (presumably to protect against claims that the vehicle wasdamaged while in the care of the police).

During the search narcotics and a large sum of money were discovered, which the Crownsought to use as evidence at trial. [55] The majority held that the search of the vehicle was not a search incidental to arrest, as it was not undertaken for one of the threevalid purposes. However, in doing so, the majority stated that had the search been for the purpose of finding evidence, it would havebeen within the scope of a search incidental to arrest. [56] In this matter the search of the luggage was clearly for purposes related to the arrest.

The subject matter of the charge, the proceedsof crime, was believed to be in the luggage. There were reasonable grounds for that belief. The purpose of the search was to obtain andpreserve evidence related to the charge. The luggage was in the constructive possession of the accused at the time of his arrest. It was notin a remote location and without any nexus to the arrest.

[ 57 ] The fact that the arresting officer did not believe that he had the authority to search the luggage incidental to arrest is, in my view, irrelevant to the analysis, as it does not detract from the valid objective of the search. [ 58 ] Although the Crown is not relying on the accused's consent to search, I must express some concern regarding statements by the officer in the course of trying to obtain such consent from the accused.

The officer states a number of times that whether the accused consents or whether the officer gets a search warrant “the result will be the same”, the result being that the luggage will be searched. The comments by the officer regarding the process of obtaining a search warrant portray the process as simply a formality that delays the inevitable. In my view, this undermines the independence and integrity of the judiciary as it portrays them as simply “rubber stamping” what is put before them by the police.

Justices of the Peace and Judges are tasked with the responsibility of independently reviewing and assessing applications for search warrants to ensure they comply with the technical requirements of the law and that they meet the necessary standard to justify the invasion of privacy that necessarily flows from a search. This responsibility is taken very seriously. E. The Statement [ 59 ] The Crown concedes that the accused was detained when he was first approached by the officers in the boarding area and that he should have been advised of his right to counsel pursuant to s. 10 (

b) of the Charter at that time. Accordingly, the Crown is not seeking to rely upon statements made by the accused in the airport prior to his arrest and being advised of his right to counsel. [ 60 ] The statement which is at issue is that which was taken and videotaped at the RCMP detachment. [ 61 ] The text message from CATSA was received at approximately 12:56 p.m. and the accused was placed in cells at the local detachment at 1:44 p.m. He was taken from the cells at 2:40 p.m. so that he could call a lawyer.

The reason for the delay at the detachment was due to there being only one room from which accused could make phone calls and the room was being used by another person for an extended period. [ 62 ] The accused spoke with resident duty counsel. The police commenced a videotaped statement with the accused at 3:10 p.m., which concluded at 5:55 p.m. At one point in the statement the arresting officer left the room and turned the interview over to a second officer. F. Was the accused's statement voluntary? [ 63 ] The onus of proving, beyond a reasonable doubt, that the statement was voluntary rests with the Crown.

The Court must consider the concept of voluntariness broadly, focusing not just on whether threats or promises were held out, but also whether the accused had an operating mind, whether the circumstances under which the statement were taken were oppressive, or whether there was police trickery which the Court must distance itself from. [ 64 ] I have reviewed the videotaped statement. The physical conditions under which the statement was taken were not harsh or uncomfortable. The accused was provided with coffee and breaks for cigarettes (apparently contrary to policy).

Arrangements were made for the accused to access his prescription medication. The physical relationship between the accused and the officers was not threatening or oppressive. Neither officer raised his voice to the accused. The accused was comfortable enough to address the officers on a first name basis. In fact, in many respects the statement was a collegial exchange. [ 65 ] The accused was clearly aware that he did not have to speak with the officers and he was aware that if he did speak to them, what he said might be used to his detriment.

At several points during the statement he commented that his lawyer would be angry with him for consenting to a search of his luggage and for saying as much as he has said. Clearly he was aware that he had a choice to speak to the officers or not and he was aware that if he did say anything it could be used against him. [ 66 ] At one point in the statement the officer talks about how a judge might treat accused differently depending upon whether they have apologized or said nothing (Transcript, page 34).

The officer does not suggest that he has any control over the ultimate disposition, the comments appear to have little or no impact on the accused, and they made up a very small portion of a lengthy interview.

[ 67 ] I am satisfied that the Crown has discharged its burden and that the statement was voluntary. [ 68 ] Should the videotaped statement be excluded on the basis that it is ambiguous and its prejudicial value outweighs its probative value? [ 69 ] A review of the statement in its entirety shows that it consists largely of narrative by the officers, with non-committal responses by the accused. [ 70 ] There are several portions of the statement where the conversation refers back to the discussion between the officer and the accused at the airport, prior to his arrest.

These portions of the statement are, for the most part, the only portions of the statement which have any probative value. The Crown has conceded that the utterances at the airport are not admissible. To admit the statement with these references included would simply nullify the determination that the utterances at the airport are not admissible. [ 71 ] Further, interspersed throughout the statement are references to the accused having spent time in jail on prior occasions, including, on one occasion, for a drug offence.

It would be very difficult to edit these portions of the statement. [ 72 ] The probative value of the statement is negligible. The prejudicial effect of the statement is considerable, as it is essentially the police painting a scenario of the circumstances under which they believe the accused came to be in possession of the money. It is essentially a statement as to the theory of the prosecution. [ 73 ] The statement is not amenable to editing. I am satisfied that the probative value of the statement is outweighed by its prejudicial value and that it should be excluded as evidence. V.

CONCLUSION [ 74 ] Was the accused arbitrarily detained or arrested in breach of

section 9 of the Charter and, if so, should the money that was seized or the videotaped statement that was given be excluded pursuant to section 24 (2) of the Charter? The accused was not arbitrarily detained or arrested. [ 75 ] If the arrest of the accused was lawful, was the seizure and search of his luggage valid as incidental to arrest? If not, was it unreasonable and contrary to

section 8 of the Charter and, if so, should the money be excluded pursuant to section 24 (2) of the Charter? The search of the luggage was a valid search incidental to arrest. [ 76 ] Was the accused's statement voluntary? The accused's statement was voluntary. [ 77 ] Should the videotaped statement be excluded on the basis that it is ambiguous and its prejudicial value outweighs its probative value? The videotaped statement should be excluded as its probative value is outweighed by its prejudicial value.

[ 78 ] Were the accused's rights to counsel pursuant to

section 10 (

b) of the Charter infringed and, if so, should the videotaped statement be excluded pursuant to section 24 (2) of the Charter? Not necessary to answer in light of its exclusion. Dated at the City of Iqaluit this 17th day of October, 2011 ___________________ Justice S. Cooper Nunavut Court of Justice