Government of Nunavut (Attorney General and Minister of Environment) v. Arctic Kingdom Inc., 2020 NUCJ 5

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Government of Nunavut (Attorney General and Minister of Environment) v. Arctic Kingdom Inc. , 2020 NUCJ 5 Date: 20200210 Docket: 02-17-12660; 02-17-12661; 02-17-12662; 02-17-12663 Registry: Iqaluit Crown: Attorney General of Nunavut as represented by the Attorney General of Nunavut and the Minister of Environment -and- Accused: Arctic Kingdom Inc. ________________________________________________________________________ Before: Mr. Justice Rouleau Counsel (Crown): W. Lu Counsel (Accused): A.

Crawford Location Heard: Iqaluit Date Heard: January 23 and 29 and February 3, 2020 Matters: Sentencing for contraventions of s. 117(2) of the Wildlife Act , S.Nu. 2003, c. 26 REASONS FOR SENTENCE (NOTE: This document may have been edited for publication) I. OVERVIEW [ 1 ] Arctic Kingdom Inc. was charged with four contraventions of s 117(2) of the Wildlife Act , SNu 2003, c 26 (“ Act ”). The charges relate to Arctic Kingdom Inc.’s failure to obtain a Wildlife Observation Licence for wildlife observation activities that it established, offered or provided in Qikiqtarjuaq on March 25 to 28, 2017.

[ 2 ] On January 20, 2020, Arctic Kingdom Inc. was found guilty of all four offences. [ 3 ] On January 23, 2020, I heard the parties’ submissions on the issue of sentencing. Arctic Kingdom Inc. presented further submissions on January 29, 2020, and the Crown presented a reply on February 3, 2020. [ 4 ] Both parties agree that the minimum fine of $575 per offence is appropriate in the circumstances. However, the Crown submits that this court should direct Arctic Kingdom Inc. to pay an additional $2000 per offence to the Natural Resources Conservation Trust Fund (“Fund”), pursuant to s 229(1)(

h) of the Act . Arctic Kingdom Inc. disagrees. II. ANALYSIS A. Relevant sentencing principles [ 5 ] As provided by s 221(1)(

a) of the Act , the minimum fine for a corporate offender is $500 and the maximum fine is $1 million. [ 6 ] Section 12(1) (

a) of the Victims of Crime Act , RSNWT (Nu) 1988, c 9, (Supp ) requires any person convicted of an offence under an enactment to pay a victim surcharge.

Section 2 of the Victims of Crime Regulations , NWT Reg (Nu) 013-92 sets the victim surcharge at 15 percent of the fine imposed. [ 7 ] Under the Act, the sentencing judge or justice of the peace has the discretion to make a number of orders in addition to imposing a fine. In exercising this discretion, a sentencing judge or justice of the peace can direct the offender “to pay an amount of money the justice of the peace or judge considers appropriate to the Fund, in the manner prescribed by the justice of the peace or judge”: Act , s 229(1)(h). [ 8 ]

Section 222 of the Act expressly sets out the factors that are to be taken into account by the judge or justice of the peace tasked with determining the appropriate sentence following a conviction.

Section 222 reads as follows: 222. When imposing a sentence, the justice of the peace or judge shall take into account, in addition to any other principles that he or she is required to consider, the following factors: (

a) the harm or risk of harm caused by the commission of the offence; (

b) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently; (

c) any property, benefit or advantage received or receivable by the offender through the commission of the offence; (

d) the ability of the offender to pay a fine; (

e) any penalty that may have been imposed on the offender by a HTO or RWO if the offender also contravened its by-laws by committing the offence; (

f) any evidence from which the judge may reasonably conclude that the offender has a history of non-compliance with legislation designed to protect wildlife or habitat; and (

g) all available sanctions that are reasonable in the circumstances. [1] [ 9 ] Even where wildlife was not harmed by the commission of the offence, a breach of the wildlife licensing regime can be viewed as harmful in and of itself: see R v Maynes , 2010 BCPC 353 at para 39 . For this reason, the sentencing court “must act to protect the integrity of the scheme, recognizing the importance of the interest it is designed to protect, and impose sentences which have real deterrent value”: Maynes at para 39 .

In other words, in determining the appropriate sentence for a failure to comply with a licensing regime, the sentencing court should seek to “uphold the law its elf”, failing which “[ l]egislative goals and objectives are undermined;

disrespect for the law is engendered”: R v Gulf Canada Corporation, (NWT TC), [1987] NWTR 277 at p 283, 2CELR (NS) 261 (TC). [10] Deterrence is a paramount consideration in the sentencing of public welfare offences: R v Cotton Felts Ltd. (1983), (ON CA), 2 CCC (3d) 287 at p 294, CESHG 95, 056 (Ont CA).

In the context of public welfare offences, deterrence should beunderstood in the “widest sense”, such that the sentence imposed should seek to emphasize community disapproval of the offencecommitted and brand it as reprehensible: Cotton Felts Ltd. at p 295, citing R v Roussy, [1977] OJ No 1208 at para 5 (CA). [11] In determining the quantum of a corporate fine, the courts have held that a fine should not be set so low that it can be regarded bythe offending corporation as a licence fee to commit illegal activity: R v Terroco Industries Limited, 2005 ABCA 141 at para 60, 196CCC (3d) 293; Cotton Felts Ltd. at p 295.

Conversely, the fine should not be so large that it results in economic inviability: TerrocoIndustries Limited at para 60. [12] A sentencing court should also have regard to the totality principle when imposing fines for multiple offences: R v Great WhiteHoldings Ltd., 2005 ABCA 188 at para 29, 47 Alta LR (4th) 233. As such, the overall fine should not be “disproportionate to theblameworthiness of the offender”: R v Jhutty, 2012 BCSC 168 at para 48, 28 MVR (6th) 249. B. Position of the parties [13] Both parties agree that the minimum applicable fine of $575 per offence is appropriate in the circumstances.

The amount of $575includes the minimum fine of $500 for corporate offenders, as provided by s 221(1)(

a) of the Act, plus the 15 percent victim surcharge,as prescribed by the Victims of Crime Act and the Victims of Crime Regulations. [14] The Crown recognizes that Arctic Kingdom Inc. made efforts to rectify the situation, that its conduct did not engage a high degreeof criminality, and that Arctic Kingdom Inc. did not gain a financial benefit from the commission of the offences. [15] Nevertheless, the Crown submits that an additional $2000 per offence contribution to the Fund is justified because Arctic KingdomInc. used its wealth and power to delay the proceedings and resist prosecution.

The Crown points to the following events to support itsposition: • Three years elapsed between the issuance of the ticket and the trial. • Arctic Kingdom Inc. requested that the trial be moved to Qikiqtarjuaq. Moving the trial increased the costs to the prosecution, ascompared to a trial in Iqaluit. • Arctic Kingdom Inc. sent notice of a constitutional question 17 days before the trial was set to start. The constitutional challengewas not successful and, in the Crown’s view, frivolous. • At the hearing on the constitutional question, Arctic Kingdom Inc.’s expert witnesses provided flawed

interpretations of the law. • Arctic Kingdom Inc. requested a new venue virtually on the eve of the trial. • Despite having sought and obtained a change of venue to Qikiqtarjuaq, because this was the location of the alleged offences, ArcticKingdom Inc. tendered no evidence at trial and called no witnesses. [16] The Crown also takes issue with the fact that Arctic Kingdom Inc. had obtained a recording of Officer Jonathan Neely, one of theCrown’s witnesses, giving a presentation on the wildlife licensing regime.

The Crown claims that this recording was taken withoutOfficer Neely’s knowledge and that, by advising that it had such a recording, Arctic Kingdom Inc. sought to intimidate Officer Neely as awitness. [17] The Crown submits that the $2000 per offence contribution to the Fund will deter corporations from engaging in the type of tacticsemployed by Arctic Kingdom Inc. and uphold the integrity of the law.

[18] Arctic Kingdom Inc. objects to the Crown’s characterization of the procedural history of this case. Arctic Kingdom Inc. maintainsthat it is the right of the accused to defend itself in prosecutions, that it was not responsible for the alleged delays in the procedure, andthat it is the right of the accused not to call witnesses. [19] Arctic Kingdom Inc. submits that it is a good corporate citizen that works with and in the local community by creating localemployment.

Further, it argues that an application of the sentencing considerations set out in s 222 of the Act demonstrate that anadditional $2000 per offence contribution is not appropriate in the circumstances. First, there is no evidence that the commission of theoffences caused any harm. Second, the offences were committed inadvertently as a result of its belief that the Nattivak Hunters andTrappers Organization (“HTO”) would approve the planned wildlife observation activities. Third, Arctic Kingdom Inc. did not benefitfrom the commission of the offences.

In fact, once it learned that it would not obtain the expected Wildlife Observation Licence, itcancelled two planned trips, refunded its clients for these trips, and donated to the local community the food and supplies that it hadbrought to Qikiqtarjuaq for these two trips. Fourth, there is no information on the record as to whether Arctic Kingdom Inc. is financiallyable to pay the fine. Fifth, Arctic Kingdom Inc. does not have a history of non-compliance. C.

A $2000 per offence contribution to the Fund is not warranted in the circumstances [20] I do not find that an order requiring Arctic Kingdom Inc. to make a $2000 per offence contribution to the Fund is warranted in thecircumstances of this case. I see no reason for increasing Arctic Kingdom Inc.’s punishment because of how it conducted its defence. Inessence, Arctic Kingdom Inc. required that the Crown prove its case.

It was well within Arctic Kingdom Inc.’s rights to bring aconstitutional challenge, to request a change of venue, to have the trial held in the community where the offences were alleged to havebeen committed, and to choose not to call witnesses.

Moreover, it is well established that it is the prosecution’s duty to bring the accusedto trial: see R v Askov, (SCC), [1990] 2 SCR 1199 at p 1225, 59 CCC (3d) 449; R v Morin, (SCC),[1992] 1 SCR 771 at p 801, 71 CCC (3d) 1. [21] I also reject the Crown’s submission that Arctic Kingdom Inc.’s actions in relation to a recording of Officer Neely justify a $2000per offence contribution to the Fund. It is not known who recorded the presentation.

Even assuming that it was Arctic Kingdom Inc.,there is nothing prohibiting it from recording Officer Neely’s public presentation and there is no evidence to suggest that it intended touse the recording to intimidate him as a witness. In short, the Crown’s characterization of Arctic Kingdom Inc.’s intentions with respectto the recording is purely speculative. D.

The minimum fine is the appropriate sentence [22] After considering the applicable factors listed in s 222 of the Act, along with the other relevant sentencing principles noted above, Ifind that the minimum fine is appropriate in the circumstances. [23] First, the harm caused by the commission of the offences was minimal. There is no evidence of any harm caused to wildlife or tothe wildlife protection regime. Arctic Kingdom Inc. did not exhibit a total disregard for the wildlife licensing scheme.

Instead, itattempted to work with the Nattivak HTO to obtain their approval of the planned wildlife observation activities and to minimize any risksto wildlife. This is not a case where a large fine is required to protect the integrity of the licensing scheme. [24] Second, Arctic Kingdom Inc. did not intentionally or recklessly commit the offences. The corporation had attempted to work withthe Nattivak HTO and had made efforts to comply with the licensing regime.

As appears from an email dated February 20, 2017, fromthe Nattivak HTA, Arctic Kingdom Inc. was given the impression that the Nattivak HTO would approve the proposed wildlifeobservation activities, which, in all likelihood, would have resulted in the issuance of the Wildlife Observation Licence being sought. [25] Third, there is little to suggest that Arctic Kingdom Inc. gained a financial benefit from the commission of the offences.

The fee forobtaining a Wildlife Observation Licence is minimal and, in any event, Arctic Kingdom Inc. did eventually pay the licensing fee.Moreover, Arctic Kingdom Inc. cancelled two subsequent trips. This caused a financial loss as Arctic Kingdom Inc. had alreadypurchased materials and was forced to refund its clients. [26] Fourth, there is no indication that Arctic Kingdom Inc. has a history of non-compliance. This is the corporation’s first offence.

Further, the trial record demonstrates that Arctic Kingdom Inc. had obtained a Wildlife Observation Licence for past wildlife observation activities and had tried to obtain one for the March 25 to 28, 2017 activities. [ 27 ] Fifth, although there are four convictions, each attracting a minimum fine, all four offences arise from a single trip established, offered or provided by Arctic Kingdom Inc., resulting in an overall fine well above the minimum for a single offence. [ 28 ] The factors set out at ss 222(

e) and (

g) of the Act are not relevant to the instant case. Further, I note that there is nothing on the record that allows me to determine Arctic Kingdom Inc.’s ability to pay a fine. As such, I am unable to gauge the impact of the proposed fine on the corporation. [ 29 ] In light of these considerations, all of which serve as either mitigating or neutral factors, I agree that the minimum fine is appropriate in the circumstances and disagree with the Crown’s submission that a $2000 per offence contribution to the Fund is warranted.

I am satisfied that, based on the particular facts of this case, the minimum fine will adequately uphold the wildlife licensing regime. [ 30 ] The total amount of $2300, including the victim surcharge, represents the minimum fine for all four offences. In the circumstances, I consider it to be proportionate to the low level of blameworthiness associated with Arctic Kingdom Inc.’s conduct. III. DISPOSITION [ 31 ] For these reasons, I impose a fine of $500 per offence, plus the prescribed 15 percent victim surcharge, for a total of $575 per offence.

As Arctic Kingdom Inc. was found guilty of four offences, I impose a total fine of $2300. Dated at the City of Iqaluit this 10th day of February, 2020 ___________________ Justice P. Rouleau Nunavut Court of Justice