Court of Appeal Decision of the Week

Nunavut Not a “Charter Free Zone”

Case: R v Ippak, 2018 NUCA 3 (CanLii)

Keywords: Charter, exclusion of evidence, arbitrary detention, right to counsel, search & seizure

Synopsis:

The small hamlet of Sanikiluaq in Nunavut is a dry community. The police are particularly vigilant investigating trafficking and routinely search and detain people at the airport. In the present case, the RCMP received an anonymous tip that Mr. Ippak, who was flying from Montreal to Sanikiluaq, was carrying alcohol. In questioning him at the airport, Mr. Ippak denied he was carrying liquor and welcomed a search of his suitcase. Mr. Ippak was presented with and signed a “consent to search form”. Although he was warned he didn’t need to say anything, police did not advise him of his right to counsel. Police proceeded to search his bag and found 3.7 pounds of cannabis.

At trial, the Crown conceded Mr. Ippak’s ss. 8, 9, and 10(b) Charter rights were violated. He was arbitrarily detained and unreasonably searched prior to his arrest, without being informed on detention of his right to counsel. The trial judge undertook a s. 24(2) analysis to determine whether or not to exclude the evidence and determined that exclusion of the evidence would bring the administration of justice into disrepute. In particular, she stated that the “court has a heavy responsibility to keep drug dealers and their couriers off the streets of Nunavut” (CA para. 14).

The Court of Appeal allowed the appeal. Justices Wakeling and Schutz wrote the reasons for judgment of the majority. They found the wilful disregard of the appellant’s Charter rights unjustifiable and downplayed by the trial judge. The systemic nature of the breaches in this case put them on the serious end of the spectrum and favoured exclusion. The majority stated, “Criminality or addiction problems in the small hamlet of Sanikiluaq, or in any community in this country, cannot be solved by deliberately unlawful policing.” (para. 53)

Justice Berger wrote concurring reasons. Interestingly, rather than taking a traditional s. 24(2) approach following R. v. Grant, 2009 SCC 32 and R. v. Harrison, 2009 SCC 34, Berger J.A. considered whether the issues on appeal could “properly be resolved through the concurrent application of Inuit and Canadian law” (para. 91).

Importance:

The Court of Appeal of Nunavut makes it clear that police still need the occasional reminder the Charter applies, even if you are far north. In both sets of reasons, the Court of Appeal judges agree, “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.” (paras. 3 & 86)

This case also serves as a reminder to lawyers and judges of the proper approach to s. 24(2) and how to determine when a case is like Grant (admitting evidence of a gun) or like Harrison (excluding evidence of 35 kg of cocaine). For the majority in the present case, the trial judge erred by minimizing the severity of the police conduct, not considering the denial of the right to counsel, and ignoring that there was an admitted pattern of unlawful conduct by officers in Sanikiluaq when investigating anonymous tips.

The concurring reasons of Justice Berger looks at the tension between Inuit law and traditions and the protection of individual liberty through Charter remedies. He considers how Inuit legal values can be integrated into a s. 24(2) analysis and specifically asks, “whether the issues on appeal can properly be resolved through the concurrent application of Inuit and Canadian law” (para. 91). He concludes 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.” (para. 70)

Other than with Gladue reports and Aboriginal sentencing, it is rare to see this level of analysis of an Aboriginal legal system and its interplay with Canadian criminal law. Berger J.A. also goes to some lengths to incorporate a number of recent scholarly articles making this decision a short but very worthwhile read.

Counsel for the Appellant: Alison Crowe (Law Society of Nunavut, Iqaluit)

Counsel for the Respondent: Shannon O’Connor (Public Prosecution Service of Canada, Iqaluit)

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Posted: Wednesday, July 25, 2018