Sentencing delayed for Nunavut tourism operator found guilty of violating Wildlife Act
Territorial government accuses Arctic Kingdom of “leveraging its deep pockets to unnecessarily delay or derail the proceedings”
A Nunavut tourism operator will have to wait a bit longer to find out how much it will have to pay for violating the territory’s Wildlife Act.
Arctic Kingdom, which has operated in Nunavut for the last 20 years, faced four charges in the form of tickets for offering wildlife observation activities without a licence in March 2017, in contravention of section 117 (2) of the Wildlife Act.
Earlier this week, the company was found guilty of all four charges in a decision read over the phone by Justice Paul Rouleau at the Nunavut Court of Justice on Monday, Jan. 20.
At a sentencing hearing also held over the phone in Iqaluit on Thursday, Jan. 23, Arctic Kingdom, represented by Iqaluit lawyer Anne Crawford, and the Government of Nunavut, represented by Department of Justice lawyer William Lu, made submissions on the company’s sentence.
But Crawford argued Lu’s submissions veered into a procedural review of the case, something to which she objected. Crawford asked for the sentencing to be delayed to make further submissions.
Prosecution accuses company of footdragging during proceedings
The Nunavut Wildlife Act, under a part of the law that’s headed “commercial and other activities,” states companies need a licence to conduct activities in which wildlife is “the object of interaction, manipulation or close observation, including the making of a film or the provision of an expedition, safari or cruise.”
Because it violated the act, Arctic Kingdom now faces a fine ranging from a minimum of $500 to a maximum of $1 million.
Lu argued the company should pay $575 in fines for each charge and a contribution of $2,000 per charge to the Natural Resources Conservation Trust Fund, for a total fine of $10,300.
“The most important factor, and one that would significantly influence the analysis, is the size and wealth of the corporation, and what that size and wealth was used to accomplish in these proceedings,” Lu said.
Lu argued that Arctic Kingdom used its wealth to delay the proceedings.
“What we saw here was not the exercise of a constitutional right to a fair trial, but a sustained effort of a large corporation leveraging its deep pockets to unnecessarily delay or derail the proceedings,” Lu said.
Lu argued it was rare for this type of case to take several years to get to trial. He also said the trial was moved several times until it was finally scheduled for June 18, 2018.
But on June 1, 2018, 17 days before the trial was set to start, the company filed a notice of a constitutional challenge that argued the charges infringed section seven of the Charter of Rights, which guarantees life, liberty and security of the person.
The challenge was heard on April 25, 2019, and was struck down by Rouleau. A trial was set for Nov. 26, 2019.
Lu argued the company caused another delay when it requested that the trial be moved to Qikiqtarjuaq, 17 working hours before it was set to begin.
Lu said he questioned why the trial was moved to Qikiqtarjuaq, because Crawford did not call any witnesses from the community and no one from Arctic Kingdom showed up or phoned into the trial.
Lu also said that in Oct. 2019, one month before the trial, an audio recording was made of a presentation on wildlife licensing given by Jon Neely, a conservation officer involved in the case.
That audio recording, allegedly made without Neely’s knowledge, was obtained by Arctic Kingdom and disclosed as part of the proceedings, Lu said.
Company wants time to respond to government’s “mischaracterization of the trial process”
Crawford said she was taken aback by the government’s position and “mischaracterization of the trial process.”
Crawford noted the court was delayed in going to Qikiqtarjuaq for the trial because of a tuberculosis outbreak in 2018.
She also argued the prosecution had no evidence of Arctic Kingdom’s wealth and noted that operating excursions in Nunavut is very expensive.
Crawford also argued the responsibility to move the trial forward falls on the prosecution, in this case the Government of Nunavut.
“I want to go day by day over the record that they’re suggesting. Without case law, they are arguing that it is on the defendant to cause a speedy trial,” she said.
Company found guilty on all counts
The sentencing followed Rouleau’s decision just a few days earlier on Jan. 20.
The charges stem from four successive days, from March 25 to March 28, 2017, when the company allegedly organized an outing where wildlife was “the object of close observation in the vicinity of Qikiqtarjuaq” without a licence. Arctic Kingdom pleaded not guilty to the charges at the time.
According to witness testimony, Joseph Guay, a conservation officer, was informed by local hunters that there was a camp set up in the vicinity of Qikiqtarjuaq. Guay then checked with Neely if a licence had been issued for any wildlife observation activities taking place at the camp. Neely confirmed a licence had not been issued.
After meeting with the local Nattivak HTO, Guay understood the HTO had not approved of the setting up of camp-based trips in the area. The HTO also expressed concern that the camp would interfere with polar bear families emerging from a nearby fjord.
Guay was also provided with a letter addressed to the Nattivak HTO from Arctic Kingdom dated Feb. 20, 2017, stating its intentions to schedule camp-based trips for “high-end tourists and film groups” in the Qikiqtarjuaq area.
But a March 23, 2017, letter from the Nattivak HTO to Arctic Kingdom said after consulting with the community, it had rejected the company’s request to operate near Qikiqtarjuaq.
“From this documentation and the surrounding context, it is clear that Arctic Kingdom was proposing to establish, offer or provide trips or safaris in which wildlife was the object of close observation. Such activities would require a licence pursuant to s. 117(2) of the Act,” Rouleau wrote in his decision.
Wildlife Observation Licence applicants must submit an activity outline detailing what activities they intend to do in the area to the local HTO. The HTO then has 40 days to provide comment to Nunavut’s superintendent of wildlife.
“In this case, the HTO’s letter of non-support meant that no licence would be issued in time to authorize the March 2017 Qikiqtarjuaq trip shown in the Arctic Kingdom brochure,” Rouleau wrote.
Guay also testified that he met with Wayne Broomfield, Arctic Kingdom’s camp manager, and informed him that a licence was required for the wildlife observation activities taking place at the camp that had been set up near Qikiqtarjuaq.
“Mr. Broomfield enquired whether moving the camp to another location would assist in some way, to which Officer Guay responded that it would not. The issue was the absence of the required Wildlife Observation Licence,” Rouleau wrote.
According to testimony, emails between Arctic Kingdom and conservation officers show that Arctic Kingdom began enquiring about a 2017 Wildlife Observation Licence on March 15, 2017. An application form for the licence was sent to Arctic Kingdom the same day.
On March 22, Neely sent an email to Arctic Kingdom following up on the status of the licence application.
“I have been lenient with Arctic Kingdom the past couple of years as the licence was new, but by now I know you are well aware of the process and there is no reason for you not to have your licence in place already,” Neely wrote.
Approximately half an hour later that same day, Arctic Kingdom forwarded a completed application.
On March 25, Guay travelled to the camp, which was 30.9 kilometres from Qikiqtarjuaq. Guay testified that when he visited, he was told by Broomfield that the clients were out touring. Guay testified he also met with Arctic Kingdom staff Dave Briggs.
Judge rejects company’s defence
Crawford argued that statements made by Broomfield and Briggs to Guay could not be used against the company to establish it had contravened subsection 117 (2) because they had not been made voluntarily.
But Rouleau said the prosecution provided enough evidence that showed the statements were given voluntarily.
Crawford also argued that the Crown had not proven beyond a reasonable doubt that the company committed the offences. Rouleau disagreed.
Rouleau also rejected Crawford’s submissions that there was reasonable doubt as to whether Arctic Kingdom had a licence.
Finally, Crawford argued that the Government of Nunavut did not comply with the act’s licensing requirements—specifically, that the licence application made on March 22, 2017, was refused without the Government of Nunavut complying with the notice requirements set out in section 33 of the act.
“That section states that applicants are to be provided with reasons for considering not issuing a licence, as well as a final written decision, with reasons, for the denial of a licence,” Rouleau wrote.
Rouleau rejected the submission and said it was not relevant to the charges in the case.
“Given that the application was only made on March 22, 2017, the licence, if granted, would be issued sometime after the 40-day consultation period, well after the activities had finished.”
Rouleau said he will issue a written decision on Arctic Kingdom’s sentence sometime after Feb. 3, 2020.