Sanikiluaq man acquitted of 2015 drug trafficking sentence
Police conduct “in flagrant breach of the Charter,” appeal court rules
A Sanikiluaq man has been acquitted of a drug trafficking sentence he received more than two years ago, after the Nunavut Court of Appeal ruled that 3.7 pounds of marijuana found in his suitcase in 2013 could not be used as evidence in court.
That’s because police breached Moses Ippak’s charter rights when they unlawfully detained him at the Sanikiluaq airport, and failed to tell him he could contact a lawyer, the appeals court ruled last fall.
“Nunavut and Sanikiluaq are not Charter-free zones,” Judge Ronald Berger wrote in a 22-page decision, prepared by three judges, which the Nunavut Court of Justice released on June 22.
The decision acquits Ippak of an 18-month sentence given to him in March 2015 by Nunavut Judge Bonnie Tulloch.
Details in the decision lead back to Nov. 1 of 2013, when RCMP in the Belcher Island community of just under 900 received an anonymous tip that Ippak was carrying alcohol on a flight from Montreal.
Alcohol is prohibited in Sanikiluaq. Ippak was the only passenger on the plane.
RCMP knew a tip did not give police grounds to search Ippak, but during the trial one officer said police in the community frequently went to the airport to investigate these kinds of calls.
Then, at the airport, police took Ippak to a private room where they told him he was being investigated for carrying liquor.
RCMP told Ippak he did not have to talk to police—but did not tell him he had the right to first obtain legal counsel.
That’s because there was no private phone line in the airport, and because this check was “routine,” an officer testified. There was a pay phone at the airport.
Ippak was surprised by the accusation and he told police they could look in his bag.
First, RCMP had Ippak sign a consent form for the search. Police said they often brought these forms to airport checks. But Ippak may not have understood what that form meant.
“A recording of the conversation between the two falls short of confirming the appellant’s understanding of the meaning and import of the form which he soon signed,” appeal Judge Ronald Berger wrote.
When police opened Ippak’s bag, they were met with “an overpowering aroma of raw marihuana.”
That’s when Ippak asked RCMP to stop looking in his bag. It was only after arresting Ippak that RCMP told him of his right to consult a lawyer.
“The unlawful detention and search in this matter impacted the appellant’s liberty and privacy interests,” Berger wrote. Continued breaches “impacted the appellant’s right to make a meaningful and informed choice about whether to speak to police and consent to a search of his baggage,” he said.
The officer who testified—Cpl. Breton, who was one of two officers in the community and who had been working at the detachment for two weeks—said he couldn’t look inside luggage if a member of the public said no to a search request.
During trial, Justice Tulloch said police attempted to be fair to Ippak, and made it clear they were investigating liquor—this reduced the seriousness of the breaches, she said.
“Drug traffickers prey upon the most vulnerable in our society. Without the drugs seized in this case, the prosecution’s case is over,” her decision at trial read.
“The court has a heavy responsibility to keep drug dealers and their couriers off the streets of Nunavut.”
But the Charter of Rights states that evidence should not be used if it brings “the administration of justice into disrepute,” appeal judges wrote.
Instead, Tulloch’s decision “entirely ignored” that police were “routinely” detaining and searching people at the Sanikiluaq airport “in flagrant breach of the Charter,” two appeal judges, Thomas Wakeling and Frederica Schutz, said in a joint statement.
“The police in Sanikiluaq frequently attend the airport to detain and ask individuals for permission to search their bags without reasonable and probable grounds for a search warrant or an arrest, and without instructing them of their right to counsel,” they wrote.
Berger considered in his decision that Inuit societal values encourage people to admit to wrongdoing.
“When Canadian law is married to and reconciled with Inuit law and culture … both favour exclusion of the evidence,” he said, when considering case law.
Because that evidence, 3.7 pounds of marijuana, is needed for the Crown to have a case, Ippak was acquitted.