Nunavut appeal judge reserves ruling on complex caribou hunting case

The Nunavut Court of Appeal has reserved its decision in a case involving a young Inuk hunter who harvested a caribou during the 2015 Baffin Island harvesting ban.

Michael Irngaut of Igloolik will have to wait to find out if a Nunavut judge’s decision in 2019 to stay the charges against him will be reversed by the appeals court.

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.

First, Slatter heard arguments on an application to dismiss the appeal and then arguments on the appeal itself. Both sets of arguments involved complex legal issues.

In February 2015, a Nunavut wildlife officer charged Irngaut, aged 22 at the time, with the illegal harvest of a caribou outside Igloolik.

At the time, the Government of Nunavut had imposed a moratorium on caribou harvesting out of concern for the animal’s declining population on Baffin Island.

In a 2019 decision, Chief Justice Neil Sharkey stayed the two charges against Irngaut because of an unusual defence called “officially induced error.”

Usually, ignorance of the law is not a defence against committing a crime. For example, if you drive while intoxicated, but didn’t know that was illegal, you would still be found guilty of breaking the law.

But in rare circumstances, a crime is committed when an accused acts on false information from a recognized official. The accused in such circumstances are not guilty of committing that crime.

Irngaut, a junior member of the Nunavut Rangers at the time, knew of the ban when he left Igloolik with a small hunting party, Sharkey heard at trial.

Out on the land, one member of the hunting party, a sergeant with the Rangers, spoke with his father, an elder and board member with the local hunters and trappers organization.

The elder said the party could harvest a caribou, information the sergeant relayed to Irngaut, according to trial testimony. At the time, the harvesting ban was still in place.

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

Dispute over Nunavut’s power to prosecute

The GN’s lead constitutional lawyer, Adrienne Silk, appealed Sharkey’s decision in 2019. Sharkey erred in his conclusion because it was not reasonable for Irngaut to rely or act on the second-hand information, Silk argued in documents filed with the court.

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

The GN has no jurisdiction to appeal this case—only the Crown, under federal law, can do that, Cowan told the appeals court on Feb. 11. The Crown prosecuted the case at trial.

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.

“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.

And after inserting itself into this case at this late stage, the Nunavut government is unfairly asking Irngaut to pay for the government’s legal expenses, Cowan added.

“They’re seeking costs to punish the response to the appeal…. That does not honour this court,” Cowan said.

Slatter asked Silk to respond to Cowan’s arguments.

“This is not the way to administer justice anywhere,” Slatter said.

Silk said this comes down to a misunderstanding based on a common practice.

When offences under territorial laws are alleged, the GN has an agreement with the Crown’s office that the Crown will prosecute those cases, Silk said.

That’s why the Crown is listed as the prosecuting party in such cases and not the Nunavut government.

But that is just a common if misleading practice, Silk said. For territorial laws, such as the Wildlife Act under which Irngaut was charged, the GN retains jurisdiction, even if the Crown is named as a party, Silk added.

But when asked by Slatter if the agreement with the Crown’s office, or one of the cases Silk referred to, had been filed with the court for the judge to consider, Silk said no.

The appeals court cannot hear new evidence in a case—it must rely on the evidence given at trial. Material related to the appeal can be filed with the court.

Man did not question elder’s advice

The GN appeared to fare better in Silk’s arguments on the appeal itself.

The ban did not come up in the conversation between the elder who was an HTO board member and the hunters, according to testimony at trial, Silk pointed out.

Instead, the elder said there was no rule that said they couldn’t hunt, Silk said, based on trial testimony.

Irngaut said he was surprised they could hunt caribou, but did not ask any further questions, Silk told the appeals judges.

In order for the “officially induced error” defence to hold, the accused must prove that he seriously considered the legality of his actions—and Irngaut did not do that, Silk said.

“It’s almost like willful blindness,” Slatter said. “If you get two conflicting pieces of information, you can’t just pick one.”

Cowan said Sharkey considered all of this information appropriately at trial and concluded that Irngaut couldn’t be held responsible because of the information from an official—an HTO board member.

Usually, officially induced error defences involve individuals licensed under a complex regulation regime, Cowan said.

Given the Nunavut context—that this is the case of a young Inuk man exercising his hunting rights under the Nunavut land claims agreement—Sharkey interpreted the defence correctly, Cowan said.

At the end of the two-hour hearing, Slatter said he would reserve his decision until a date to be determined.