You are on page 1of 24

Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. Irngaut, 2019 NUCJ 04


Date: 20190314
Docket: 07-15-33
Registry: Iqaluit

Crown: Her Majesty the Queen


-and-

Defendant: Michael Irngaut

________________________________________________________________________

Before: Chief Justice Neil Sharkey

Counsel (Crown): T. Buffalo


Counsel (Accused): S. Siebert

Location Heard: Igloolik, Nunavut


Date Heard: June 5, 2018
Matters: Charged with violating Wildlife Act. Judicial stay of
proceedings entered because of officially induced error.

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


2

TABLE OF CONTENTS

I. OVERVIEW ............................................................................................................... 3
II. BACKGROUND ........................................................................................................ 4
III. THE FACTS: MICHAEL IRNGAUT HARVESTS A CARIBOU ........................ 5
IV. ISSUES IN THE CASE ........................................................................................... 8
V. POSITIONS OF THE PARTIES ................................................................................ 8
A. Defence................................................................................................................. 8
B. Crown ................................................................................................................... 9
VI. ANALYSIS ............................................................................................................ 10
A. Sergeant George Qattalik’s Comments to Mr. Irngaut ...................................... 10
B. Defences Available for Strict Liability Offences ............................................... 11
1. Due diligence .................................................................................................. 11
2. Mistake of Fact ............................................................................................... 12
C. Does Mr. Irngaut’s belief Constitute a Mistake of Fact? ................................... 12
VII. MISTAKE OF LAW AND THE DEFENCE OF “OFFICIALLY INDUCED
ERROR” ................................................................................................................ 13
A. Threshold Requirements for the Defence of Officially Induced Error .............. 14
B. The Six Part Jorgensen Framework ................................................................... 15
1. Part 1: There must be an error of law or mixed fact and law ......................... 15
2. Part 2: The defendant must have considered the legal consequence of their
action .............................................................................................................. 15
3. Part 3: The advice must have been obtained from an appropriate official ..... 15
4. Part 4: The Advice must be reasonable in the circumstances......................... 18
5. Part 5: The Advice must have been erroneous ............................................... 22
6. Part 6: The defendant must have relied on the official advice ....................... 22
VIII. CONCLUSIONS AND DISPOSITIONS .......................................................... 22
IX. ADDENDUM ........................................................................................................ 24
A. Formal Adjudication .......................................................................................... 24
3

I. OVERVIEW

[1] This case deals with the interim prohibition ban on harvesting caribou
on Baffin Island, which came into effect on 01 January 2015. In
August of 2015 this moratorium was replaced by a ‘modest harvest’
quota system.

[2] On 26 June 2015, the Defendant, Michael Irngaut, was charged with
violating the ban by harvesting a caribou earlier in the year when the
ban was still in effect.

[3] Mr. Irngaut pleaded not guilty. The case was adjourned several times
(and for over a period of two years) at the request Mr. Irngaut’s
lawyers to allow them to prepare a Constitutional challenge to the
validity of the Minister’s Order which had created the ban. No such
challenge was, however, ever filed with the Court.

[4] Eventually (in late 2017), Mr. Irngaut got a lawyer who was prepared
to proceed to trial without mustering any legal challenge to the validity
of the moratorium itself. I presided at this trial, which took place in
Igloolik, in June 2018.

[5] Mr. Irngaut testified at the trial.

[6] He admitted to harvesting a caribou on 15 February 2015. He said,


however, that he did so under the mistaken belief that the proscription
against harvesting caribou had been lifted.

[7] Mr. Irngaut said he was 22 years old at the time; that he was a private
in the Canadian Rangers; and that it was while he was out on a
Ranger patrol that he shot the caribou.

[8] He said his patrol Sergeant made a radio call to check in with the
Igloolik Hunters and Trappers Organization (HTO). And that right
afterwards, the Sergeant reported that a board member from the
Igloolik HTO had said the proscription against harvesting caribou was
no longer in effect.

[9] Mr. Irngaut testified that if he had not been told the ban was not in
effect, he would not have shot the caribou. He said, “I would not have
thought to harvest that caribou if I was not given permission.”

[10] I accepted Mr. Irngaut’s testimony.


4

[11] I found that Mr. Irngaut harvested the caribou based on erroneous
information or advice which he had received from the HTO via his
patrol Sergeant. I found that he therefore had a valid defence called
‘officially induced error.’

[12] This defence is available in exceptional cases, and I found that this
was such a case.

[13] The law says that where the defence of officially induced error is
successful, the judge should not make a finding of ‘not guilty,’ but
rather should enter a judicial stay of proceedings.

[14] Accordingly, I stayed the proceedings against Mr. Irngaut.

II. BACKGROUND

[15] The defendant, Michael Irngaut, is charged under s. 69 of the Wildlife


Act, SNu 2003, c 26, for harvesting a caribou on 15 February 2015,
contrary to an order prohibiting harvesting on Baffin Island.

[16] He is also charged under s. 85(1)(a) of the Wildlife Act for being in
possession of a wild animal (hide) on 24 February 2015 that had been
unlawfully harvested.

[17] The prohibition in question is the Baffin Island Caribou Interim


Management Order (Nunavut Gazette, Vol 16 No 12). It prohibited the
harvesting of caribou on Baffin Island.

[18] The order came into force on 01 January 2015, and was to remain in
force until 31 December 2015 (unless terminated earlier by an order
made pursuant to a decision of the Nunavut Wildlife Management
Board, or by another order of the Minister).

[19] Mr. Irngaut pleaded not guilty to the charges and his trial proceeded
before me in Igloolik on 05 June 2018.

[20] The parties (Crown and Defence) prepared an Agreed Statement of


Facts (Exhibit P-1). In these stipulated facts, it is agreed that Mr.
Irngaut did in fact harvest a caribou (within the geographic area
5

covered by the ban), and was in possession of the animal’s hide at a


time when the prohibition order was in effect.

[21] Mr. Irngaut also testified as a witness at the trial.

[22] Accordingly, the only issue left for me to decide, after hearing from
Mr. Irngaut, and the closing statements of Crown and Defence
Counsel, was whether Mr. Irngaut had a valid defence to the charges.

[23] During the course of the trial, counsel made reference, for the most
part, to Mr. Irngaut simply as ‘Michael’, to George Qattalik as
‘George’, and to Daniel Qattalik as ‘Daniel’. I will, for the most part, do
likewise during the course of this judgment.

III. THE FACTS: MICHAEL IRNGAUT HARVESTS A CARIBOU

[24] The Defendant, Michael Irngaut, is an Inuk man who was 25 years old
on 05 June 2018 when the trial in this case took place. Michael told us
in court that he was born in Iqaluit, but grew up and still lives in
Igloolik. He said he completed Grade 10, but left school because he
wanted to get a job and focus more on hunting.

[25] Michael lives with his spouse, Samantha, and their three young
children. He works full-time as a community fuel truck driver. He is
also active on the land, and hunts, he says “as often as I can.”
Michael was modest in describing his abilities as a hunter, and
credited his father and older brother with teaching him land skills.

[26] Michael has been a Private in the Canadian Rangers since he was 18
years old. The Rangers are, as everyone knows, part of the Canadian
Forces. Michael does regular training with the Rangers, and in
addition goes on long patrols twice per year. One of these patrols, by
snowmobile, took place in February 2015, when Michael was 22
years old.

[27] The patrol was led by Ranger Sergeant George Qattalik, who is some
25 years older than Michael. The other members of the patrol were
George’s wife, Lucy, and a fellow Ranger named Isa Ammaq, who is
about 10 years older than Michael.
6

[28] The plan was to head north approximately 260 kilometres to Mary
River, and to meet up with people who had travelled south to Mary
River from Pond Inlet. If the weather was clear, they would be gone
from Igloolik for about a week.

[29] This can be a challenging trip in the February cold, albeit routine for
Rangers and others with land skills. They were well stocked with food,
and at least enough fuel for the outbound portion of the journey. They
had firearms for hunting animals they were permitted to hunt, as well
as for safety.

[30] Michael told the court that he was well aware, before the group left
the community, that there was a prohibition against harvesting
caribou. He knew there was a ban. He testified that he had heard
about it, not from radio or TV, or even on any community
announcement, but rather, “just from hearing people talk about it…just
from people saying there was a ban.” (see Trial Transcript: p.21, l, 20-
22; p. 22, l, 1-2)

[31] Michael said that he did not believe any community consultations had
taken place before the ban was put into effect. He was not aware, he
said, of consultations between the government, the Hamlet, and the
Igloolik HTO, which it appears had taken place in the community hall
on 24 January 2014.

[32] Michael said that some people in the community were in favour of the
ban, and some against it. And he freely admitted that he was against
the idea. Michael said that he thought the ban was made kind of
suddenly, but once he heard it was in place, “I just tried to not concern
myself so much of it after that.”(see Trial Transcript: p. 34, l, 4-5)

[33] The patrol (George and Lucy Qattalik, Isa Ammaq, and Michael) left
Igloolik on 14 February 2015. They traveled for eleven hours and then
stopped to camp for the night. After they set up their tent and had a
meal, George made a radio call from outside the tent, back to the
HTO in Igloolik to let people know where they were.

[34] Michael testified that after George made the call, he came back to the
tent and told everyone that he had spoken to his father, Daniel
Qattalik (an Inuit elder and HTO board member), and that Daniel had
told him the ban on caribou was no longer in effect.
7

[35] Michael acknowledged that while he was surprised after George


conveyed this news, “we didn’t actually talk about it.” He said simply,
“I trusted his word and I was determined – I became determined to
harvest one.” He said “there were no documents presented or
anything like that. It was all verbal; and because it was coming from
someone who is a HTO [board] member, I – I trusted his word” (see
Trial Transcript: p. 22, l, 5; p. 21, l, 9-14).

[36] Michael’s lawyer asked him to expand on this in the following


exchange:

Question (Counsel) You said George’s father was on the board


of the HTO ?

Answer (Michael) Yes

Question (Counsel) And what did that mean to you ?

Answer (Daniel) That there is nothing to worry about

(see Trial Transcript: p. 20, l, 24-27; p, 21, l, 1-2)

[37] Michael also testified that he trusted what George told him Daniel said
about the ban, not just because Daniel was a member of the HTO
Board, but also because he (Daniel) was an elder.

[38] Michael said “Elders are the ones we help – help out and we are to
respect them. So what he said really meant something to me…I
trusted his word.” (see Trial Transcript: p. 20, 18-21)

[39] The next day, 15 February 2015, the patrol continued their trip to
Mary River. They reached Neergaard Lake (which was within the area
covered by the moratorium).

[40] Michael spotted a dozen caribou grazing about 1500 meters in the
distance. He then shot one of them – a male. The group ate some of
this caribou, but still had plenty to share with the patrol they met at
Mary River, who in turn shared maktaaq (muktuk) with them.

[41] Michael testified that after he shot the caribou, the other members of
the patrol were happy for him. He said he believed George and Isa
would also have liked to shoot a caribou, but that their rifles were
packed in their qamutiik.
8

[42] Michael said he never talked with George or Isa about whether either
of them was going to take a shot. However, as he explained “…it was
going to be another long journey…we still had a long way to go. They
really wanted to catch a caribou, but they decided not to.” (see Trial
Transcript: p. 31, l, 19-22)

[43] Michael said he kept the hide from the caribou, and a week later (on
24 February 2015) gave it to the conservation officer in Igloolik, when
asked to do so.

[44] As Michael’s testimony came to a close, his lawyer asked him the
following:

Question (Counsel) If George hadn’t told you about the


conversation with his father, would you
have harvested caribou on that trip ?

Answer (Mr. Irngaut) I would not have thought to harvest that


caribou if I was not given permission.

(see Trial Transcript: p. 23, l, 2-6)

IV. ISSUES IN THE CASE

[45] There are two (2) things that I need to decide:

a. First, whether to believe Michael Irngaut’s testimony about


what he says George Qattalik told him; and

b. Second, if I do believe Michael Irngaut, whether he has a valid


defence to the charges against him for unlawfully harvesting a
caribou, and for possession of a dead wild animal (hide) which
has been unlawfully harvested.

V. POSITIONS OF THE PARTIES


A. Defence

[46] Defence Counsel suggests that Michael acted with due diligence on a
mistaken set of facts that, if true, would render his act innocent, and
9

that he has shown, on a balance of probabilities, that his mistaken


belief was both honest and reasonable.

[47] Counsel says that Michael had an honest belief the caribou ban was
no longer in effect. The prohibition had only been in place a short time
(some 6 weeks). Counsel suggests that Michael is a relatively
youthful person with not much sophistication in how such a prohibition
is put in place, or how it might be lifted.

[48] Counsel asks that I accept Michael’s testimony to the effect that he
would not have harvested a caribou if he did not think he had
permission. Counsel says that Michael did not try to hide what he was
doing, brought the hide back to Igloolik, and surrendered it to the
conservation officer when asked.

[49] Counsel says further that it was reasonable for Michael to rely on
what George Qattalik (his Sergeant) told him – namely that Daniel
Qattalik (an elder and HTO board member) said the ban was no
longer in effect.

[50] Michael says he only found out about the ban from hearing people
talk around town. And so it would be reasonable, Counsel says, that
he might in turn rely on information passed to him orally that the ban
had been lifted.

[51] And finally, Counsel suggests that Michael ought to be able to rely on
the authority of Daniel Qattalik as a HTO board member.

B. Crown

[52] The Crown does not dispute what Michael said George Qattalik told
him – that the information was conveyed. (see Trial Transcript: p. 53,
l, 25-27; p. 54, l, 1-7)

[53] Nor does the Crown dispute Michael’s testimony that George Qattalik
was a Ranger Sergeant, or that Daniel Qattalik was an Inuit elder and
HTO Board member.

[54] The Crown’s argument is that even if Michael had an honest belief in
what George told him, it was not a reasonable belief.
10

[55] The Crown says that even taking Michael’s testimony at face value,
the paucity of his effort to either confirm the information George gave
him, or even to discuss it, is remarkable. So much so, says the
Crown, that it would not be reasonable, under the circumstances, to
allow him to rely on this information in any way to further his defence
to the charges.

[56] The Crown points out that the imposition of the caribou ban was a
significant topic of discussion in Igloolik. There were community
consultations. It was a big deal. And Michael admitted he was
surprised and excited to hear the news from George that the law
against harvesting caribou was no longer in effect.

[57] Yet, says the Crown, Michael made no effort to ask George if he had
heard correctly from Daniel – that he (George) had got it right – or to
ask George to confirm that the news was true. Nor, says the Crown,
did Michael make any effort to see what Isa, a fellow Ranger, had to
say about it. Indeed, Michael says the topic was never discussed
among the group, at all.

[58] Most importantly, however, the Crown says any mistake by Michael
about the status of the prohibition against harvesting caribou is not
mistake of fact, at all. It is simply a mistake of law. And the Crown
says it is well settled that ‘mistake of law’ is no defence – full stop.

[59] Further, the Crown says that Michael should not be allowed to rely on
the fact that Daniel Qattalik is an elder, or that Daniel Qattalik is a
member of the HTO board.

[60] Finally, the Crown says the fact that neither George nor Isa took
advantage of the chance to harvest any of the twelve caribou they
encountered on the trail is telling in terms of whether George and Isa
thought it was reasonable to rely on what Daniel had said.

VI. ANALYSIS
A. Sergeant George Qattalik’s Comments to Mr. Irngaut

[61] I accept Michael Irngaut’s testimony about what George Qattalik told
him – namely, that Daniel Qattalik said the caribou ban was no longer
in effect. Again, the Crown did not take issue with this.
11

[62] Generally, hearsay testimony is not allowed in court to prove the truth
of what is said by the original speaker who has not been called to
testify.

[63] In this case, however, Michael is not attempting to prove the truth of
what the original speaker, Daniel, said to George. To the contrary,
there is no dispute that the ban was in effect, and had not been lifted.

[64] Michael’s hearsay testimony is admissible in court for the purpose of


allowing Michael to show, (1) that George spoke to him, (2) that he
relied upon what George told him, and (3) that the person George
spoke with was Daniel Qattalik.

B. Defences Available for Strict Liability Offences

[65] It is not in dispute between the parties (Crown and Defence) that Mr.
Irngaut is charged with a strict liability offence. This means that if it is
proven he committed the prohibited act, then guilt is established
unless he can avail himself of the two defences which are available
for strict liability offences.

[66] These defences are, (1) an honest mistake of fact, and, (2) the
exercise of due diligence.

1. Due diligence

[67] The defence of due diligence comes into play when a defendant says
they have taken all reasonable steps to avoid committing the offence.
This defence of due diligence arises most often in regulatory offences
in relation to environmental or safety matters. The defendant in such a
case, usually a corporation, will plead that they did all they could to
prevent the environmental damage, or the accident which harmed a
worker.

[68] This defence is provided for in s. 234 of the Wildlife Act which says,
“no person shall be convicted of an offence under this act if the
person establishes that the person exercised all due diligence to
prevent the commission of the offence.”

[69] In order to be acquitted, however, they must persuade the court, on a


balance of probabilities, that what they did to prevent what happened
12

was all that a reasonable person could expect them to do under the
circumstances.
2. Mistake of Fact

[70] The ‘mistake of fact’ defence comes into play when a defendant says
they acted on a mistaken set of facts which, if true, would render their
actions innocent.

[71] In order to be acquitted, however, they must persuade the court, on a


balance of probabilities, that their mistake was an honest and
reasonable one.

[72] And sometimes, depending on the fact scenario, a defendant will


argue they exercised due diligence to support the idea their mistake
was an honest and reasonable one.

C. Does Mr. Irngaut’s belief Constitute a Mistake of Fact?

[73] The main argument put forward by Michael’s counsel, as noted


above, is that her client, Michael, acted on the basis of a mistaken
fact, which, if true, would render his action in shooting the caribou an
innocent one.

[74] Counsel says the mistaken fact which Michael acted upon was his
belief that the ban on harvesting caribou was not in effect – that it had
been lifted. And further, that Michael’s belief in this regard was both
an honest and reasonable one.

[75] Before I assess whether Michael’s mistaken belief was an honest


one, or a reasonable one, I must first determine whether his mistake
is a factual one.

[76] In my view, it is not.

[77] For example, many Provinces pass regulations encouraging or


prohibiting the harvesting of certain animals – such as wolves,
coyotes, and foxes. A person may have a valid licence to hunt for
coyotes in a Province where there is a proscription against harvesting
wolves. If that person is charged with shooting a wolf, they would
have a good defence if they could persuade a judge they honestly
and reasonably believed they had shot a coyote.
13

[78] And in such a case, the defence would be based on a mistake of fact.
The defendant was mistaken about the kind of animal he was
shooting.

[79] In contrast, the Alberta case of R v Legrande, 2014 ABCA 192, 575
AR 355, illustrates an unsuccessful mistake of fact defence. The two
defendants (Legrande and Gauchier) were charged with hunting
illegally inside a road corridor wildlife sanctuary. They were on a
gravel road and took shots at fake moose which had been set up to
catch offenders.

[80] They claimed a mistake of fact defence because they believed the
gravel road (and the fake moose) were outside the wildlife sanctuary.
It turned out, however, that the gravel road was inside the sanctuary.

[81] The defendants were found guilty at trial and appealed. The Court of
Appeal rejected their claims of mistake of fact. The Court said that the
defendants knew physically where they were on the gravel road, and
were mistaken only as to the ‘legal characterization’ of their location.

[82] The Court said their mistake was therefore one of law, not fact.

[83] Similarly, Michael Irngaut knew he was harvesting a caribou. In my


view therefore, his belief in the ‘fact’ the ban on harvesting caribou
had been lifted, is not, strictly speaking, a mistake of fact, at all.

[84] Rather, it is a mistake about his ‘legal right’ to shoot the caribou. It is a
mistake of law – which, under Canadian law, is not a defence.

VII. MISTAKE OF LAW AND THE DEFENCE OF “OFFICIALLY


INDUCED ERROR”

[85] It is a basic premise throughout the common law world, and in


Canada by virtue of s. 19 of the Criminal Code, RSC 1985, c C-46,
that “ignorance of the law by a person who commits an offence is not
an excuse for committing that offence.” (Section 19, which is found in
Part I of the Criminal Code, as well as all of Part XXVII respecting
summary matters, govern Nunavut territorial prosecutions by virtue of
s. 2 of the Summary Procedures Convictions Act, RSNWT (Nu) 1988,
c S-15).
14

[86] The only time a person may be acquitted where they have made a
mistake of law is where they have placed reliance on advice given by
an appropriate official.

[87] The defence of officially induced error is available as a defence to a


regulatory statute, or offence where a defendant has reasonably
relied upon the erroneous legal opinion or advice of an official who is
responsible for the administration or enforcement of the particular law.

A. Threshold Requirements for the Defence of Officially Induced


Error

[88] The Supreme Court of Canada has given trial judges guidance and
direction about the availability of the defence of officially induced
error. It will only be accepted in the narrowest of circumstances or
exceptional and rarest of cases – in order to respect the principle that
ignorance of the law is not an excuse for unlawful actions.

[89] In the case of R v Jorgensen, [1995] 4 SCR 55, 129 DLR (4th) 510
(CanLII) [Jorgensen], Lamer CJ, wrote a heavily cited obiter dicta
opinion which set out a number of criteria or requirements which need
to be met before this defence is available. He also clarified the
overarching policy consideration for this defence, namely, that ‘the
defendant has done nothing to entitle him to an acquittal, but the state
has done something which disentitles it to a conviction.’ (para 37
CanLII)

[90] It is upon the defendant to prove the officially induced error on a


balance of probabilities. Strictly speaking, an officially induced error
operates as an excuse rather than a defence. The appropriate
remedy or outcome therefore is not an acquittal, but rather a judicial
stay of proceedings.

[91] In Jorgensen, undercover police officers charged the defendant, a


retailer, with selling obscene material (a video) contrary to the
Criminal Code. Jorgensen had thought the video might be ‘borderline’,
so he relied on the Ontario Film Review Board (OFRB) approval
before offering it to the public for sale. He actually paid the OFRB by
the minute to review the video.

[92] At the end of the day, Jorgensen himself was acquitted because of
the Crown’s failure to prove the offence. Lamer CJ, was clear,
15

however, that this was a textbook case where officially induced error
would have been successful.

B. The Six Part Jorgensen Framework

[93] Jorgensen identifies a six (6) part test which must be met to establish
the defence of officially induced error. It must be shown that:

1. The error is one of law or mixed fact and law


2. The defendant considered the legal consequences of the action
3. The advice was obtained from an appropriate official
4. The advice was reasonable in the circumstances
5. The advice was erroneous
6. The defendant relied on the official advice

[94] I must accordingly determine whether these criteria, have been


satisfied in this case.

1. Part 1: There must be an error of law or mixed fact and law

[95] This part of the test requires little scrutiny. Mr. Irngaut’s error is clearly
a legal one. Mr. Irngaut believed the ban had been lifted, which was
an error in law because the ban was still in effect. Thus, I find this
aspect of the test is met.

2. Part 2: The defendant must have considered the legal


consequence of their action

[96] This part of the test requires little scrutiny. I accept Mr. Irngaut’s
testimony that, had he not believed the prohibition had been lifted, he
would not have harvested a caribou. Thus, I find this aspect of the test
is met.

3. Part 3: The advice must have been obtained from an


appropriate official

[97] This part of the test requires scrutiny.


16

[98] I find the source of Michael’s information to be Daniel Qattalik. The


issue here, however, is whether Danial Qattalik, as an Igloolik HTO
board member, qualifies as an ‘appropriate official’.

[99] One of the central themes in the creation of Nunavut was that Inuit
would have control over the harvesting of animals.

[100] Each community in Nunavut has a Hunters and Trappers


Organization [HTO], which represents the hunting interests of the
community, and which is incorporated as a non-profit Society.

[101] HTOs are established by the Nunavut Land Claims Agreement and
Wildlife Act, and their membership includes the Inuit of each
community. They are incorporated under the Societies Act, RSNWT
1988, c S-11, pursuant to which each community elects a Board of
Directors from among the membership at an Annual General Meeting
(AGM).

[102] The powers and functions of the HTO are established in s. 5.7.3 of
the Nunavut Land Claims Agreement, and given legislative effect in s.
167 of the Wildlife Act. These enumerated powers include:

(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
(d) generally, the management of harvesting among members.

[103] The HTOs are therefore the practical arm of a management scheme
set out in the Wildlife Act, and constitutionally protected by s. 35 of the
Constitution Act, 1982, and the Nunavut Land Claims Agreement.

[104] The HTOs regulate and allocate the harvest at the community level,
in those instances where regulation is required. They negotiate
quotas and prohibitions where necessary, and, for example, issue
‘tags’ for the harvesting of controlled species. In addition, HTOs, in
conjunction with the Department of Fisheries and Oceans (Canada),
manage community hunting events, such as bowhead whale hunts.
17

[105] In terms of ‘enforcement’ of rights, section 5.7.15 of the Nunavut


Land Claims Agreement and s.167(4) of the Wildlife Act both provide
that “where a right of action in relation to Wildlife accrues to an Inuk,
the HTO of which that Inuk is a member may, with the consent of the
Inuk, sue on that Inuk’s behalf.”

[106] In addition s. 5.7.8 of Nunavut Land Claims Agreement requires


HTOs to develop and adopt by-laws guiding its operations, and s.
5.7.12 requires that HTOs provide a mechanism to discipline
members who violate the by-laws. This scheme is duplicated in s. 172
of the Wildlife Act.

[107] Further, s.169(2) of the Wildlife Act requires each HTO to provide a
dispute resolution process for persons ‘aggrieved’ at any decision it
makes in respect of matters under the Wildlife Act, either in
accordance with s.7 of the Societies Act or by appeal to the
membership as a whole.

[108] And finally – and again in terms of enforcement, s. 172(3) of the


Wildlife Act allows for an HTO to impose a fine of up to $500.00 upon
a member in breach of a by-law. Such a breach does not, however,
constitute any offence under the Wildlife Act and may only be
recovered as a debt to the HTO.

[109] Nunavut’s HTOs do not, however, lay charges for violations of the
Wildlife Act. For example, by swearing long form Informations or
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.

[111] However, pursuant to s. 219 of the Wildlife Act, HTOs are permitted
to make a special request to the Minister for an investigation as to
whether a particular person has committed an offence under the
Wildlife Act.

[112] Often, in simple cases of officially induced error, a defendant has


received bad advice or information from a law enforcement official: for
example, a fisheries officer who tells the defendant they do not need a
licence to fish for a certain species, or in a specific area, when in fact,
18

they do need such a licence. (see, R v Colbourne (W.), 2007, Nfld &
Labrador Supreme Court, commentary at para 36, R v Colbourne,
2007 NLTD 152).

[113] Jorgensen, however, does not actually require that the ‘appropriate
official’ be a person who has the power to enforce the law.

[114] Indeed, in Jorgensen, the appropriate official or agency was not the
‘enforcement branch’ of government (i.e., police who laid the charge).
Rather, it was an officer or official from the OFRB that the defendant
had paid to preview the film before offering it for sale.

[115] The defendant obviously believed that the OFRB would be


responsible for giving advice about whether his video was ‘over the
line’ as far as obscenity goes.

[116] The case authorities, both before and after Jorgensen, are clear that
the defence of officially induced error requires that an accused has
relied upon the opinion or advice of an official who is responsible for
the administration or enforcement of the particular law.

[117] In Jorgensen, Lamer CJ stated: “the official must be one whom a


reasonable individual in the position of the accused would normally
consider responsible for advice about the particular law in question.”
(para 30) [Emphasis added].

[118] HTOs are state sanctioned bodies. They are ‘creatures’ of statute in
that their organizational make-up (including membership) and powers
are recognized and expressed in the Societies Act and Wildlife Act.
And these same powers respecting their jurisdiction over the
management of harvesting wildlife are expressed and constitutionally
entrenched in the Nunavut Land Claims Agreement.

[119] Accordingly, it follows that Daniel Qattalik, as a member of the


Igloolik HTO board, is a person who the defendant, Michael Irngaut,
would normally consider responsible for advice about the Wildlife Act.

[120] Thus, I consider this aspect, Part 3 of the test, to be met.

4. Part 4: The Advice must be reasonable in the circumstances

[121] This part of the test also requires scrutiny.


19

[122] There is an obvious objective component in determining whether it


was reasonable for a defendant to rely on the advice or information
they were given. At the same time since the factual scenarios where a
defendant relies on such advice vary so greatly, it is also necessary to
determine whether it was reasonable for ‘the particular defendant’ to
have placed reliance on the advice they were given.

[123] Indeed, this approach has been affirmed by the Supreme Court of
Canada. In the case of Levis (City) v Tetreault; Levis (City) v 269-
4470 Quebec Inc., 2006 SCC 12, [2006] 1 SCR 420, the Court
affirmed the existence of officially induced error as a defence.

[124] However, it tweaked the fourth criteria in Jorgensen by adding a


requirement that the reasonableness of the advice should be
“considered from the perspective of a reasonable person in a situation
similar to that of the accused.” (para 27)

[125] I must therefore apply an objective test with a nuanced component. I


must look at things from the perspective of a reasonable person put
into Michael’s situation. This means looking at things from Michael’s
point of view – from the point of view of a 22 year old Inuk, the junior
member of a small Ranger patrol, two days into a long trip, and far
from home in the middle of winter.

[126] I may accept Michael’s testimony – and conclude he is being honest


and telling the truth. But the question is not whether he is honest – for
obviously, if I do not believe he was honest, then that ends the matter.
The question is whether it was reasonable ‘in the circumstances’ for
him to rely on the information he was given by George Qattalik.

[127] I think it appropriate to re-state, briefly, the Crown’s position. The


Crown says that Michael’s failure to confirm the information he
received from George shows a lack of due diligence on his part.

[128] The Crown says, even taking Michael’s testimony at face value, the
paucity of his effort either to confirm the information George gave him,
or even to discuss it, is remarkable. So much so, says the Crown, that
it would not be reasonable in the circumstances to allow him to rely on
this information.

[129] Respectfully, I disagree.


20

[130] In my view this is not a case where Michael should have seen a ‘red
flag’ when George came back to the tent and told everybody what
Daniel had said; a flag which signaled he should not just take
George’s word; that he should obviously do something more.

[131] I am hard pressed to think of anything more Michael could have


done. Indeed, the Crown was equally hard pressed during argument
to think of anything specific beyond suggesting that Michael should
have double checked with George to see if he had gotten the
information right. (For an exchange on this point see Trial Transcript:
p. 55, I, 1-27).

[132] In this regard, I am mindful that this trip to Mary River was a Ranger
patrol. Michael was, and still is, a Private. The person in charge of the
patrol, George, was his Sergeant. We do not know Isa’s rank, but he
was about 10 years older than Michael.

[133] In this context, I rely on Lamer CJ in Jorgensen, “that the


determination relies on common sense rather than constitutional
permutations” (at 31). I do not find it remarkable that Michael would
accept what his Sergeant told him without question – just as for
example, he would be required to follow an order given by his
Sergeant without question.

[134] I think it is also important that the provenance of the information was
Daniel Qattalik – who, in addition to being a member of the Igloolik
HTO, is an Elder.

[135] I accept Michael’s testimony that he relied on the Elder because, as


he said “…we are to respect them…So what he [Daniel Qattalik] said
really meant something to me, like what he said that time. I trusted his
word."

[136] I do not suggest that a person is excused for breaking the law simply
because an elder told them a certain activity is not illegal, when in fact
it is illegal. I am simply saying the fact Daniel was an elder is a factor
to take into account when assessing whether Michael’s belief in the
information he received was reasonable.

[137] I am also persuaded that Michael, 22 years old at the time, was not
particularly sophisticated in terms of understanding how the
harvesting ban came into being.
21

[138] Indeed, his testimony, which I accept, is proof in the pudding for this
proposition: he said “I was surprised…it seemed so sudden the ban
was on. And usually you get to have a consult with the public and they
never had that. And I just tried not to concern myself so much of it
after that.”

[139] Accordingly, it follows that when Michael received word that a HTO
board said the ban was lifted he (Michael) would not need to concern
himself with talking about it. Once again, his testimony, which I
accept, is proof in the pudding. Michael was asked by his lawyer what
it meant that the information came from HTO board member. And his
response was “that there is really nothing to worry about.”

[140] Within this context, it is not remarkable to me that Michael, the junior
member of the group, did not initiate any discussion, at all, on the
nitty-gritty of how or why the ban could have been lifted.

[141] Nor do I find it remarkable that only Michael shot a caribou. I accept
Michael’s testimony that they had just started their trip and still had a
long journey ahead of them. There was no need to harvest and carry
additional caribou at this point. There were only four of them. They ate
some of Michael’s caribou, and still had plenty to share with people at
their final destination.

[142] I accept Michael’s testimony that he, as the youngest of the group,
was the most excited at the prospect of harvesting a caribou after he
was told that the ban had been lifted, and that after he did so the rest
of the group “were happy for me.”

[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 05
December 2016.

[144] Accordingly, if the Crown thought that testimony from George, Lucy,
or Isa was important, then the Crown had well over a year to interview
and obtain statements from them. Similarly, the Crown could have
applied to call any of them to testify in rebuttal after Michael testified,
and sought leave from me to cross-examine them. The Crown was
aware that Michael would testify at the trial, and could easily have had
these people subpoenaed and standing by.
22

[145] Accordingly, and in light of this, I find no traction to the Crown’s


submission that the Court only has Michael’s word to assess the
reasonableness of his belief or what occurred generally.

[146] I found Michael to be a forthright and honest witness. And, he


acquitted himself well during a skillfully conducted cross-examination
by the prosecuting attorney. I was also impressed with Michael’s
candour. He freely admitted not being in favour of the harvesting ban
when I asked him how he felt about it. And I accept Michael’s
testimony when he said “I would not have thought to harvest that
caribou if I was not given permission.”

[147] It is clear as well that once he returned to Igloolik, Michael made no


attempt to conceal what he had done, and provided the caribou hide
to the local conservation officer when asked to do so.

[148] I consider that the advice given was reasonable in the


circumstances. Thus, I find that this aspect of the test, Part 4, is met.

5. Part 5: The Advice must have been erroneous

[149] This part of the test requires little scrutiny. It is clear that the advice
or information which Mr. Irngaut received from George Qattalik was
incorrect. Thus, I find this aspect of the test is met.

6. Part 6: The defendant must have relied on the official advice

[150] This aspect of the test requires little scrutiny. I accept Mr. Irngaut’s
testimony that after hearing that the prohibition was not in effect he
became ‘determined’ to harvest a caribou. Thus, I find this aspect of
the test is met.

VIII. CONCLUSIONS AND DISPOSITIONS

[151] Mr. Irngaut has satisfied the test set out in Jorgensen necessary to
establish a viable defence of officially induced error.

[152] Mr. Irngaut has also satisfied the additional criteria, which allows the
defence of officially induced error in only the ‘rarest of cases’ and/or
the “narrowest of circumstances”.
23

[153] Mr. Irngaut’s case falls within such an exceptional combination of


circumstances. He received information that the harvesting ban had
been lifted when he was physically and geographically isolated from
any other authority or possible source of information. His immediate
source of information – his Ranger Sergeant with control of
communications to the outside world – was someone he was sworn to
trust and obey. And the original source of the information was both an
Elder and a HTO board member.

[154] Mr. Irngaut is therefore entitled to the remedy prescribed by


Jorgensen – namely, the entry of a judicial stay of proceedings.

[155] Accordingly, I order the proceedings stayed.

Dated at the City of Iqaluit this 14th day of March, 2019

___________________
Chief Justice N. Sharkey
Nunavut Court of Justice
24

IX. ADDENDUM
A. Formal Adjudication

[156] In accordance with the Criminal Rules of the Nunavut Court of


Justice, and specifically pursuant to Rule 110(1)(b), this Judgment is
the Formal Adjudication of this matter.