DFO rapped again for charter breaches

“The honour of the Crown is at stake”

By JIM BELL

The Nunavut Court of Justice has for a second time found that enforcement officers with the Department of Fisheries and Oceans violated the charter rights of Taloyoak narwhal hunters.

Justice Robert Kilpatrick, in a decision issued last week, found that statements made in 2002 by six Taloyoak narwhal hunters — David Klengenberg, Raymond Mannilaq, Jayko Neeveacheak, Gideon Qauqjuaq, Nauyaq Ugyuk and Pitsiulaq Ukuqtunnuaq — should be be deemed inadmissible as evidence.

“The court was concerned that the DFO not take advantage of the fundamental honesty of these Inuit hunters. When the Supreme Court says something about the rights of accused persons, the DFO needs to listen,” said defence lawyer Peter Harte, in a press release issued by the Kitikmeot Law Centre.

DFO officers, who had come to the community to investigate allegations of overharvesting, charged the men with illegally hunting narwhal after taking statements from them between Sept. 12 and Sept. 17, 2002.

The officers attempted to caution each man about his rights before taking his statement. But Kilpatrick found the “caution” that DFO officers used was incomplete and misleading.

They told the hunters they had the right to apply for legal aid and the right to call a lawyer.

But they did not tell the men that Nunavut’s legal aid program offers a 24-hour-a-day standby service available through a free telephone call, and they did not formally offer them the use of a telephone or a telephone directory.

“The ‘caution’ used in this case failed to provide practical information to the detainees about how to access this preliminary legal advice service,” Kilpatrick said.

Kilpatrick found this violates long-established principles set by the Supreme Court of Canada stating that citizens who are arrested or held in detention must be given enough information to make an “informed decision” about whether or not to call a lawyer.

He compared the caution used by the DFO officers with the standard police caution that RCMP members use. The standard RCMP caution in Nunavut contains words that say legal advice is free and available immediately through a free telephone call.

Kilpatrick then went on to state that if the evidence obtained by DFO officers as a result of the charter violation were used in court, it would make the trial unfair and bring the administration of justice into disrepute.

He quoted from a decision he issued last year concerning another group of Taloyoak narwhal hunters, who were charged with similar offences in 2001 subjected to similar charter breaches.

“The Crown has a vital interest in ensuring that principles of fairness and due process are scrupulously observed in regulatory areas that affect the exercise of a constitutionally protected right of harvest by Inuit. The honour of the Crown is at stake,” Kilpatrick said in his earlier decision.

In that case, three Taloyoak men — Saul Kooktook, Kokiak Peetooloot, and David Tucktoo — were charged in September of 2001 with illegally harvesting narwhal.

DFO officers summoned the three men to the local wildlife office, seized a narwhal tusk from each man, and took statements from each man without providing them with any cautions or warnings.

Kilpatrick found that DFO officers committed “deliberate and flagrant” breaches of the three hunters’ charter rights, and he declared that all statements made by the hunters be declared inadmissible.
With no evidence left to tie the three hunters to the three tusks, the Crown’s case collapsed and the men were acquitted. But Kilpatrick said he had no choice but to let the Crown keep the three seized narwhal tusks.

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