Government of Nunavut loses appeal against Igloolik hunter

Appeal judge says Government of Nunavut has no standing to appeal

The Government of Nunavut has lost its appeal against Michael Irngaut, an Igloolik hunter who harvested a caribou in 2015 during a ban. (File photo)

By Emma Tranter

(Updated, April 28 at 2 p.m.)

The Government of Nunavut has lost its appeal against an Igloolik hunter who harvested a caribou during a ban in 2015.

Michael Irngaut of Igloolik, who was 22 at the time, was charged with two counts under Nunavut’s Wildlife Act for shooting and harvesting a caribou during a Canadian Ranger patrol in February 2015—a month after a ban had come into effect, prohibiting the harvest of caribou on Baffin Island.

Irngaut went to trial in 2018 where he admitted to harvesting the caribou in February 2015, but said he did so under the mistaken belief that the ban had been lifted. Irngaut pleaded not guilty to the two charges.

The case was adjourned several times over a period of two years, while Irngaut’s lawyers planned to launch a constitutional challenge of the ban itself.

Irngaut said in his testimony that before he harvested the animal, his patrol sergeant checked in with an elder and board member of the Igloolik Hunters and Trappers Organization, who informed the Rangers that the harvest ban was no longer in effect.

“I would not have thought to harvest that caribou if I was not given permission,” Irngaut testified at trial.

Justice Neil Sharkey found that Irngaut had acted “honestly and reasonably” on the information he had received and he was entitled to raise “officially induced error” as a defence. Sharkey stayed the charges against Irngaut.

Officially induced error is not a defence, but an answer to a criminal charge that excuses the accused and justifies a stay rather than a conviction.

In June 2019, the Government of Nunavut launched an appeal, stating that Sharkey “erred” when he stayed the charges against Irngaut.

But Irngaut’s lawyer, Benson Cowan, then filed an application to dismiss the appeal.

Justice Frans Slatter of the Alberta Court of Queen’s Bench heard arguments in the case in an Iqaluit courtroom for over two hours on Feb. 11.

At the time, Slatter reserved his decision to a later date.

The underlying issue in the appeal was whether Irngaut was entitled to the stay of a charge of unlawfully harvesting a caribou as a result of officially induced error. Another issue is whether the Government of Nunavut had standing to launch this appeal, Slatter wrote in a decision dated April 21.

The power to prosecute is a constitutional power that provinces received from the Crown when the provinces were created. But the territories do not have that constitutional power.

The Yukon and the Northwest Territories have amended their laws to allow them to prosecute certain cases, Cowan said on Feb. 11.

“It was open for the governments of Canada and Nunavut to create a system to allow Nunavut to prosecute—but Nunavut has chosen not to do that,” Cowan said.

“The parties agree that the Government of Nunavut has no direct juridical relationship with the Crown. In other words, there is no concept of “Her Majesty the Queen in Right of Nunavut,” Slatter wrote in his decision.

Slatter said there is no constitutional barrier to the Government of Nunavut to initiate prosecutions for offences under territorial legislation.

“There is no obvious reason why the territories cannot appoint Attorneys General, with many (if not all) the traditional powers of that office, and establish procedures for prosecuting territorial offences,” Slatter wrote.

If, for example, the conservation officer who charged Irngaut had launched a private prosecution, he could have continued the prosecution and appealed on that basis, Slatter said.

“Whether territorial prosecutions of territorial offences would be launched in the name of ‘The Queen’ or in the name of the ‘Government of Nunavut’ is an interesting question that need not be resolved at this time,” he wrote.

Slatter said in the end, the appeal was a question of statutory interpretation, meaning the way the courts interpret and apply legislation.

“In order to appeal, the Government of Nunavut must fit itself within the phrase ‘the informant, the Attorney General or his agent.’ This it cannot do, because s. 2 of the Criminal Code defines the ‘Attorney General’ as the ‘Attorney General of Canada.’”

Because of this, the government has no standing to appeal, Slatter said.

“If the Attorney General of Nunavut wishes to retain a role in the prosecution of territorial offences, legislative amendments may be needed,” Slatter wrote.

Although Slatter noted that because the appeal must be struck, it was not necessary to consider the issue of officially induced error, he also said it should be discussed since the issue was fully argued in court.

The burden of proof lies with the accused, Slatter wrote. In his view, Sharkey essentially reversed the burden of proof by placing it on the Crown.

“It was up to the respondent to prove officially induced error, and gaps in the evidence undermined his case, not the Crown’s,” Slatter said.

Slatter also said the defence of officially induced error failed “on the reasonableness of the reliance on that advice and the official status of the source of the advice.”

That’s because the elder and HTO board member who informed the Rangers that the harvest ban was no longer in effect is “not the equivalent of ‘official’ status making his advice binding on the government,” Slatter wrote.

Slatter also noted the Nunavut Land Claims Agreement indicates that the Nunavut Wildlife Management Board has primary responsibility for the management of wildlife in Nunavut, not HTOs.

“The reliance on the casual information the respondent received was not objectively reasonable. The respondent knew there was a ban in place,” Slatter wrote.

“If officially induced error was recognized on the facts disclosed by this record, it would have a serious detrimental effect on the ability of the Nunavut Wildlife Management Board to manage wildlife in Nunavut. The respondent did not prove the excuse in this case.”

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(9) Comments:

  1. Posted by Ray Donovan on

    Whats wrong here….if the GN knew they had no standing which one would assume would come from the Department of Justice representations then why pursue an appeal? Then there’s the question of what the GN had to actually gain. Apparently nothing.

    • Posted by Krampus on

      The GN has prosecuted some territorial offences (Liquor Act violations, for instance) for years. The GNWT has an identical summary conviction procedures act and prosecutes all of its own territorial offences, including appeals.

      I recommend that you read the whole judgement, including Justice Slatter’s ruling on the substantive issues. As Justice Slatter notes, It would be a problem if a person could just go out on the land and illegally harvest wildlife because a friend of a friend said it was fine.

  2. Posted by Hunter on

    When this ban for Caribou hunting on Baffin is not officially a law Ingaut should sue the GN.
    Its a great Idea to ban hunting when they won’t put some kind of compensation really great Idea, what government does that.

  3. Posted by Missing Information on

    The article misses the half of the decision where the Court confirmed that Justice Sharkey was wrong to allow the defendant to use officially induced error as an excuse for illegally killing the animal. So at the end of the day this guy was guilty despite the legalese about who prosecuted him.

    Is that a loss? Seems like the GN was right on the law here that actually matters – idiots killing animals contrary to the law can’t argue that “I heard from my uncle’s brother’s friend who is on the HTO that it is okay”. Nonsense.

  4. Posted by embarrasing on

    How embarrassing.

    I wondered what the Justice lawyers were doing when they first appealed this decision – in a territory full of Hunters, why would our government do that?

    Now it appears as if they jumped the gun. Having standing is a fundamental aspect of the law – it’s literally the first thing you double check before you even begin your paperwork.

    That they tried to appeal a case that wasn’t theirs to appeal speaks to their motivations and basic competence in a way that is tough to convey in this comment section.

    At the very least I hope this Irngaut character can move on without being harassed by government lawyers.

  5. Posted by Kitikmeotaq on

    As an elder, I am grateful he was not prosecuted.

  6. Posted by Uvaali on

    He checked, told it was no longer a ban so went ahead and hunted.

    He should be found not guilty.

    A stay can come back within a year.

  7. Posted by Tagak Curley on

    This case against the young inuk hunter reminds me of the colonial governments amongst Inuit on Canada. Often Inuit were charged for the wildlife infractions that were enacted based on southern hunting seasons that were often very foreign to northern regions. This young man Michael Iqaut had no premiditated plan or intent to break the law but trusted the information he recieved from his father that it was ok to harvest one caribou. What is amazing is that our DIOs failure to shown any interest or support for the young man. I care and hope this time it is over so that Michael will no longer be subject to mental distress or confusion. I pray it is over as it should. GN drop the case against the young hunter.

  8. Posted by Putuguk on

    If further proof was ever necessary as to how low a priority the GN places on the foundation of our society -wildlife- here it is.

    In front of the Ledge now there are dope bills, MLA retirement bills, a new estate law…they can do all this but still will not take full control of our wildlife that is the foundation of our lives?

    Let us not forget we are the largest area on the entire planet still inhabited and occupied by a culturally distinct active harvesting society, and the GN is our government; of us, for us, and by us.

    For the GN to condone the continued representation of the Crown in these cases by a crown attorney with the federal Department of Justice is a complete bow down to the continued colonization of our territory.

    Whether this young fellow was right or wrong, whether he ought to face a legal consequence, should only be a Nunavut concern.

    Come on guys, its been over 20 years now. You have even eroded the authority of the NWMB with this case. When are you going to take the diapers off and wear big boy pants?

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