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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)


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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.
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[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

1
HTO refers to a Hunters and Trappers Organization and RWO refers to a Regional Wildlife Organization:
Act, s 2.
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[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 itself”, failing
which “[l]egislative goals and objectives are undermined; disrespect
for the law is engendered”: R v Gulf Canada Corporation, [1987]
NWTR 277 at p 283, 2 CELR (NS) 261 (TC).

[10] Deterrence is a paramount consideration in the sentencing of public


welfare offences: R v Cotton Felts Ltd. (1983), 2 CCC (3d) 287 at p
294, CESHG 95, 056 (Ont CA). In the context of public welfare
offences, deterrence should be understood in the “widest sense”,
such that the sentence imposed should seek to emphasize
community disapproval of the offence committed 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 by the
offending corporation as a licence fee to commit illegal activity: R v
Terroco Industries Limited, 2005 ABCA 141 at para 60, 196 CCC (3d)
293; Cotton Felts Ltd. at p 295. Conversely, the fine should not be so
large that it results in economic inviability: Terroco Industries 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 White Holdings
Ltd., 2005 ABCA 188 at para 29, 47 Alta LR (4th) 233. As such, the
overall fine should not be “disproportionate to the blameworthiness of
the offender”: R v Jhutty, 2012 BCSC 168 at para 48, 28 MVR (6th)
249.
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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 $575
includes 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 degree of
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 Kingdom Inc. used
its wealth and power to delay the proceedings and resist prosecution.
The Crown points to the following events to support its position:
• 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, as compared 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 challenge
was 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, Arctic Kingdom Inc. tendered no evidence at trial and
called no witnesses.
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[16] The Crown also takes issue with the fact that Arctic Kingdom Inc. had
obtained a recording of Officer Jonathan Neely, one of the Crown’s
witnesses, giving a presentation on the wildlife licensing regime. The
Crown claims that this recording was taken without Officer Neely’s
knowledge and that, by advising that it had such a recording, Arctic
Kingdom Inc. sought to intimidate Officer Neely as a witness.

[17] The Crown submits that the $2000 per offence contribution to the
Fund will deter corporations from engaging in the type of tactics
employed 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. maintains that it is
the right of the accused to defend itself in prosecutions, that it was not
responsible for the alleged delays in the procedure, and that 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 local employment.
Further, it argues that an application of the sentencing considerations
set out in s 222 of the Act demonstrate that an additional $2000 per
offence contribution is not appropriate in the circumstances. First,
there is no evidence that the commission of the offences caused any
harm. Second, the offences were committed inadvertently as a result
of its belief that the Nattivak Hunters and Trappers Organization
(“HTO”) would approve the planned wildlife observation activities.
Third, Arctic Kingdom Inc. did not benefit from the commission of the
offences. In fact, once it learned that it would not obtain the expected
Wildlife Observation Licence, it cancelled two planned trips, refunded
its clients for these trips, and donated to the local community the food
and supplies that it had brought to Qikiqtarjuaq for these two trips.
Fourth, there is no information on the record as to whether Arctic
Kingdom Inc. is financially able to pay the fine. Fifth, Arctic Kingdom
Inc. does not have a history of non-compliance.
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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 the
circumstances of this case. I see no reason for increasing Arctic
Kingdom Inc.’s punishment because of how it conducted its defence.
In essence, Arctic Kingdom Inc. required that the Crown prove its
case. It was well within Arctic Kingdom Inc.’s rights to bring a
constitutional challenge, to request a change of venue, to have the
trial held in the community where the offences were alleged to have
been committed, and to choose not to call witnesses. Moreover, it is
well established that it is the prosecution’s duty to bring the accused
to trial: see R v Askov, [1990] 2 SCR 1199 at p 1225, 59 CCC (3d)
449; R v Morin, [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 $2000 per 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 to
use the recording to intimidate him as a witness. In short, the Crown’s
characterization of Arctic Kingdom Inc.’s intentions with respect to 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, I find
that the minimum fine is appropriate in the circumstances.
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[23] First, the harm caused by the commission of the offences was
minimal. There is no evidence of any harm caused to wildlife or to the
wildlife protection regime. Arctic Kingdom Inc. did not exhibit a total
disregard for the wildlife licensing scheme. Instead, it attempted to
work with the Nattivak HTO to obtain their approval of the planned
wildlife observation activities and to minimize any risks to 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 with the Nattivak
HTO and had made efforts to comply with the licensing regime. As
appears from an email dated February 20, 2017, from the Nattivak
HTA, Arctic Kingdom Inc. was given the impression that the Nattivak
HTO would approve the proposed wildlife observation 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 for
obtaining 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 already purchased 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.
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[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