Court of Appeal No. 07-19-002-CAS IN THE NUNAVUT COURT OF APPEAL. BETWEEN: HER MAJESTY THE QUEEN AppellanRespondent on Application ~and - MICHAEL IRNGAUT Respondent/Applicant on Application FACTUM OF THE APPLICANT Counsel for the AppellantiRespondent Counsel for the Respondent! on Application Applicant on Application Adrienne Silk Benson Cowan LSN# 2010069 LSN# 2019004 Department of Justice Legal Services Board Government of Nunavut of Nunavut 4 Floor Sivummut Bldg. (#1107) P.O, Box 29, Building 1104-B P.O. Box 1000, Stn. 540 Inuksigate Plaza Iqaluit, NU, XOA OHO Iqaluit, NU, XOA OHO (867) 975-6172 (867) 645-2536 (867) 975-6349 7s £. (867)975-2323 e. ASilk@gov.nu.ca e.benson.cowan@nulegalaid.comTABLE OF CONTENTS Part | — Statement of Facts Part Il - Grounds of Application and Remedy Sought Part ill - Law and Argument Part IV - Relief Requested Part V - Time EstimateSTATEMENT OF FACTS [1] For the purposes of this Application, the Applicant accepts the statement of facts 88 Presented by the Government of Nunavut in its factum appealing the Applicant's stays. For the purposes of this Application, only the following facts are highlighted [2] The Applicant was charged in February 2015 with the unlawful harvesting of a caribou and the possession of an unlawfully harvested caribou hide contrary to sections 69 and 85(1) of the Wildlife Act.’ {3} On June 18 2018, the Applicant was tried before Chief Justice Sharkey of the Nunavut Court of Justice. At all times during the proceedings, the Public Prosecution Service of Canada prosecuted the case on behalf of the Crown [4] On 13 February 2019, the Trial Judge ordered a stay of proceedings on both counts. Written reasons were released on 14 March 20192 [5] On March 12, 2019, the Government of Nunavut fled an appeal of the stays. On April 5, 2019, the Government of Nunavut filed an Amended Notice of Appeal 4 [6] The Public Prosecution Service of Canada did not file an appeal ! Wildife Act, SNu 2003, ¢ 26 ? Appeal Book, Tab 6 3 Appeal Book, Tab 2. “Appeal Book, Tab 3 3PART Il GROUNDS OF APPLICATION AND REMEDY SOUGHT PART II GROUNDS OF APPLICATION AND REMEDY SOUGHT (7] The Government of Nunavut does not have standing to appeal the decision in this matter and, as such, this court does not have jurisdiction to hear the appeal. The Applicant seeks to have the Notice of Appeal in this matter struck and the proceedings declared void, PART Ill - LAW AND ARGUMENT inal Code Bars the Attorney General of Nunavut from Appealing this Casi [8] In Nunavut, territorial offences are prosecuted pursuant to the summary conviction proceedings of Part XXVII of the Criminal Code.* The Criminal Code clearly states that in Nunavut the Attorney General for the purposes of Part XXVI is the Attorney General of Canada.® There is no federal or territorial statutory authority that delegates to the Attorney General of Nunavut any authority to prosecute under this section. Accordingly, the Government of Nunavut has no standing to appeal this matter and this court has no jurisdiction to hear the appeal 5 Criminal Code, RSC 1985, ¢ C-46, Part XXVII {Criminal Code}, ° tbid, $2. 4[9] Section 2 of the Nunavut Summary Convietion Procedures Act provides that the provisions of Part XVII of the Criminal Code apply to the prosecution of territorial offences.’ Part XXVII of the Criminal Code contains the procedural requirements for the prosecution and appeal of summary conviction matters.® Summary conviction offences 2. (1) The provisions of the Criminal Code relating to summary conviction offences apply, with such modifications as the circumstances require, to all offences created by an enactment or municipal by-law, except to the extent that the enactment or municipal bylaw or this Act or the regulations otherwise provides, Exemption (2) Subsections 145(2), (4) to (6), (8) to (11) and 803(2) and (3) of the Criminal Code do not apply to offences created by an enactment or municipal by- law. [10] Section 785 of the Criminal Code defines the prosecutor for a summary conviction proceeding as follows: prosecutor means the Attorney General or, where the Attorney General does not intervene, the informant, and includes counsel or an agent acting on behalf of either of them; [11] The Attorney General is defined elsewhere in section 2 of the Criminal Code. The Attorney General for Nunavut in respect of all provisions of the Criminal Code is the Attomey General of Canada.'0 Attorney General ” Summary Conviction Procedures Act, RSNWT (Nu) 1988, ¢ S-15, as enacted for Nunavut, pursuant to the Nunavut Act, SC 1993, ¢ 28, * Ibid, 6 2. * Criminal Code, supra note 5, § 785, "ibid, 52, 5{@) subject to paragraphs (b.1) to (g), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy, (b) with respect to Yukon, the Northwest Territories and Nunavut, or with respect to proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene, or counselling the contravention of, any Act of Parliament other than this Act or any regulation made under such an Act, means the Attorney General of Canada and includes his or her lawful deputy, [12] The Director of Public Prosecutions Act delegates the responsibility for the prosecution of all cases within the jurisdiction of the Attorney General of Canada on behalf of the Crown to the Director of Public Prosecutions and his or her duly authorized deputies and agents."' The Government of Nunavut is not a duly authorised agent of the Director of Public Prosecutions for the purposes of this matter. [13] _Itis submitted that the statutory regime is clear and complete; it lacks any ambiguity. All public prosecutions of territorial offences in Nunavut are conducted under the exclusive jurisdiction of the Attorney General of Canada as delegated by federal statute to the Director of Public Prosecutions. The Attorney General of Nunavut has no standing to commence an appeal or otherwise participate in prosecution. 8.___There is No Statutory Basis for the Attorney General of Nunavut to Appeal the Applicant's Acquittals in this Case [14] While the Summary Conviction Act allows for some flexibility and permits the terms of Part XXVII of the Criminal Code to be modified “as circumstances allowed’, this ™ Director of Public Prosecutions Act, SC 2006, ¢ 9, s 121, 8 2. 6general flexibility is not sufficient to allow for the displacement of a clear statutory regime. For the Government of Nunavut to have standing in this appeal, there must be a clear statutory authority granting the Attorney General of Nunavut the ability to prosecute territorial offences. There exists no such alterative federal or territorial statutory basis for the Government of Nunavut to appeal this case currently in effect in Nunavut. [15] The language of the Director of Public Prosecutions Act is clear and absolute. The Director of Public Prosecutions is the delegate for all Crown prosecutions within the Attorney General of Canada’s jurisdiction. The Act makes no exceptions for the prosecution of territorial offences in Nunavut. Indeed, at no point before or after the establishment of the Public Prosecution Service of Canada has one piece of federal legislation or regulation delegated the responsibility for the prosecution of territorial offences to the Attorney General of Nunavut. There is simply no federal statutory delegation to the Attorney General of Nunavut for the prosecution of offences on behalf of the Crown. [16] _Itis possible for a legislature to establish a regime where the Attorney General can enter into an agreement with a statutory body to prosecute cases either on behalf of the Crown or in the name of an entity other than the Crown. There many examples of this in provincial legislation. For example, in Ontario, the Attorney General prosecutes most provincial offences directly. However, municipalities also may enter into an agreement with the province authorising them to prosecute. Further, there are otherStatutory bodies — for example the Ontario Securities Commission or the ‘Ontario Motor Vehicle industry Council — which have the statutory authority to investigate breaches of their acts and to issue certificates or lay informations, The Ontario Provincial Offences Act preserves the power of the Attorney General to intervene in these case but authorises both municipalities and these other statutory entities to prosecute by defining “prosecutor” as follows'?: 1. The Attorney General, subject to paragraphs 2 and 3. 2. In the case of a proceeding to which a transfer agreement made under Part X applies and in which the Attorney General does not intervene, a person acting on behalf of a municipality in accordance with the agreement. 3. The person who issues a certificate or lays an information, if neither the Attorney General nor a person referred to in paragraph 2, or an agent of either of the, acts as prosecutor. Except for the Director of Public Prosecutions Act, no federal legislation delegates the Power to conduct Crown prosecutions. As discussed above, the delegation in that Statue is exclusively to the Director of Pubic Prosecutions. (17] The Applicant submits that the Nunavut Act might give the Government of Nunavut a limited jurisdiction to stablish a regime where the Attorney General of Nunavut could prosecute breaches of territorial offences on his or her own authority, At the very minimum, this would require legislation specifically giving the territorial Attomey General this power. An example of such legislation may be found in the Yukon. Section 1 of the Yukon Summary Convictions Act — which also incorporates most of the ” Provincial Offences Act, RSO 1990, ¢P.33, s.1 8Provisions of Part XXVII of the Criminal Code - identifies the Attorney General of Yukon as being the prosecutor for all territorial offences:"> “prosecutor” means (2) the Attorney General of Yukon, including counsel or an agent for the Attorney General of Yukon, (b) any person who commences proceedings under this Act unless the Attorney General of Yukon intervenes, or (0) in respect of an offence against a municipal bylaw, counsel or an agent for the municipality; « poursuivant » [18] The precise nature of prosecutions under the Yukon Summary Convietions Act and their constitutionality is not clear. They may in fact be ultra vires. Regardless, proceedings commenced under this authority could not be considered Crown Prosecutions. But this issue need not to be resolved in this case, as there is simply no such similar provision in any Nunavut legislation. At no time has the legislature of Nunavut passed any law or regulation purporting to give the Attorney General this power. [19] Neither the Summary Conviction Act, the Wildlife Act nor the Department of Justice Act, provide any authority for the Attorney General of Nunavut to prosecute territorial offences. There is simply no territorial or statutory authority that authorizes the Government of Nunavut to interfere in this case. The Department of Justice Act does Provide authority for the Nunavut Attorney General to “conduct litigation” on behalf of the Government of Nunavut. However, and as is discussed in more detail below, unlike * Summary Convictions Act, RSY 2002, ¢ 210, $1 9similar legislation that defines the office of the Attorney General at the federal and Provincial level, the Act specifically excludes any mention of litigation or prosecution on behalf of the Crown. Itis a fantastic stretch of statutory interpretation to suggest that this wording creates an alternative non-Crown regime for the prosecution of territorial offences. Further, even if it were capable of such an interpretation, it could not displace the Federal statutory regime that preserves this power for the Attorney General of Canada and delegates it to the Director of Public Prosecution. [20] _ Itis available for Canada and Nunavut to work together and create a clear statutory regime that either delegates to Nunavut the power to prosecute on behalf of the Crown or establishes its authority to prosecute as a non-Crown entity. But they have chosen not to do that. In the absence of either federal or territorial statutory authority, the Government of Nunavut's interference in this proceeding is not permissible. The ‘Government of Nunavut has no standing to appeal the decision in this matter. Accordingly, as this appeal is entirely statutory in nature, this Court has no jurisdiction to hear the Government of Nunavut's appeal. C.__The Attorney General of Nunavut has no Inherent Common Law or Constitutional Authority to represent the Crown in Public Prosecutions [21] The statutory regime in the Criminal Code that excludes the Attorney General of Nunavut from a role in prosecuting on behalf of the Crown is not an accident of statutory construction or an empty technical argument. That the Attorney General of Canada retains exclusive jurisdiction to conduct Crown prosecutions in Nunavut reflects the 10necessary constitutional reality of the relationship between Nunavut, the federal government, and the provinces, The Attorney Generals of Canada and the provinces have, notwithstanding any statutory authority, an inherent right to prosecute public offences. This right has ancient origins and is preserved in the Constitution of Canada [22] The Attorney General of Nunavut has no such latent or inherent power to prosecute on behalf of the Crown. As a territorial government, the Government of Nunavut, although a very sophisticated entity with significant authority and broad an important responsibilities, is entirely a statutory body. It only has the powers and Jurisdiction that are provided to it through federal law. Unlike the provinces, there is no constitutional or common law basis for the territorial Attorney General to act on behalf of the Crown. Put simply, there is no Crown in Right of the Government of Nunavut. The only Crown in Nunavut is the Crown in Right of the Government of Canada. Accordingly, only the Attorney General of Canada, through his or her statutory delegate the Director of Public Prosecutions, alone has the constitutional authority to appeal the decision in this matter. i The Royal Prerogative of Justice and the Primacy of the Attorney General in the Common Law [23] _ The Royal Prerogative refers to the powers, privileges and responsibilities that are unique to and, subject to legislation limiting or altering them, residual in the Crown, Professor Peter Hogg describes the Royal Prerogative as “the powers and privileges accorded by the common law to the Crown.” The classic Dicean definition is that the “Peter W Hogg, Constitutional Law of Canada, 4th ed (Scarborough: Thompson Carswell, 1997) at 1.8. 1"Royal Prerogative is the “residue of discretionary or arbitrary, which at any given time is left in the hands of the Crown."'5 While all aspects of the Royal Prerogative are difficult to enumerate, can be limited by statute, and may be defined and refined by the courts, it remains at the very bedrock of our constitutional order." It is necessary to ensure that the state functions and that government actions and responses in situations that do not fit within the four corners of the prescribed law have a locus of authority and legitimacy. [24] Aspects of the Royal Prerogative recognized by the courts and scholars include the conduct of foreign affairs, the making of treaties, the issuing of passports, the granting of honours, the issues of pardons and clemency and the prerogative of justice itself.17 [25] _ The prerogative of justice, also known as the King or Queen's Peace, reflects the Crown's obligation and authority to maintain law and order. Conceptually, the prerogative of justice lies at the root of the essential institutions in our current system of justice including the Superior Court, the concept of that court's inherent jurisdiction, judicial review, equitable remedies, the role and function of peace officers, and, of course, Crown prosecutions. "® *s Albert Venn Dicey, introduction to the Study of the Law of the Constitution, 10th ed (London: Macmillan, 1967) at 424, '* Ross River Dena Council Band v Canada, {2002} 2 SCR 816, 2002 SCC 54 (CanLll) at para.54, 7 Guy Regimbald & Dwight Newman, The /aw of the Canadian Constitution, (Markham, Ont: LexisNexis Canada, 2013). "Wilkes v The King, (1768] 97 ER 123 (HL); R. v. Smythe, 1971 CanLil 30 (ON CA) 12(26) While private disputes between individuals between people are resolved through the civil justice system, public offences have always been considered to be offences committed against, and prosecuted by, the Crown. As was stated by the House of Lords in 1768 in Wilkes v The King, (27) By our constitution, the King is entrusted with the prosecution of all crimes which disturb the peace and order of society. He sustains the person of the whole community, for the resenting and punishing of all offences which affect the community; and for that reason, all proceedings “ad vindictam et poenam" are called in the law the pleas or suits of the Crown; and in capital crimes, these suits of the Crown must be founded upon the accusation of a grand jury; but in all inferior crimes, an information by the King, or the Crown, directed by the King's Bench is equivalent to the accusation of a grand jury, and the proceedings upon it are as legally founded ; this is solemnly settled and admitted. As indictments and informations, granted by the King's Bench, are the King’s suits, and under his control; informations, filed by his Attorney General, are most emphatically his suits, because they are the immediate emanations of his will and pleasure.'® In the early days of the common law, there was, of course, no institutional Crown prosecution service. Criminal prosecutions for non-capital offences could be brought by officials appointed to act on behalf of the Crown or by members of the public who simply ‘swore an information alleging an offence. Regardless of the party bringing the suit, it remained a Crown prosecution, within the purview and jurisdiction of the Crown to either adopt and sanction the prosecution, or to discontinue it. A “private prosecution” at common law did not technically exist — it was still a suit on behalf of the Crown. Anyone who purported to be acting on behalf of the Crown had to establish that it was doing so under the Crown's authority through either “special or particular direction, or under a general authority".19 bid jbid, 13[28] As the common law evolved and developed, the network of officials purporting to act for the Crown came under the general direction and authority of the Crown's chief law officer: the Attorney General. While the origins of the officer are obscure, by the 1800s the Attorney General came to be seen as the Chief Law Officer for the Crown whose duties included oversight of all Crown prosecutions. Over time, the Attomey General would develop “nearly absolute powers" over Crown prosecutions, even those initiated by private citizens.2* [289] Both the origins and the nature of the Attorney General's relationship to the Crown and powers over prosecutions has created a unique status for the office.22 The special character of its office and its role in the conduct of Crown prosecutions are the source of the significant protection for the actions of an Attorney General from judicial review. In R v Smythe (which is also cited as Pityca v. Swetlishnoff) the Ontario Court of Appeal engaged in a lengthy analysis of the constitutional nature of the Attorney General's powers and the limits of judicial review:23 our constitution is the same in principle as that which existed in the United Kingdom in 1867. It had been the same so far as the criminal law is concerned since shortly after the middle of the 18th century. The Attorney-General’s, discretion springs from the Royal Prerogative of the Justice and its enforcement in maintaining the King's Peace. ® John Liewelyn Jones Edwards, The law officers of the Crown: a study of the offices of Attorney-General {and Solicitor-General of England with an account of the officer of the Director of Public Prosecutions of England (London: Sweet & Maxwell, 1964) at 12-31, 237-246. 2 Ibid at 399) ” Anne McLellan, “Review of the Roles of the Minister of Justice and the Attorney General of Canada’ at 10-11 Rv. Smythe, supra, note 17. 14if the Attorney-General may validly decide whether or not to lay a charge or which charge should lie, then a fortiori he must be able to validly decide whether to proceed summarily or by indictment |t would seem to me that the constitutional aspect of the Attorney- General's discretion in deciding whether to proceed by indictment or summarily is the same as his discretion in deciding whether to proceed at all, under which offence to proceed, or whether to exercise his right to withdraw a charge or enter @ nolle prosequi on an indictment. If he has the right under our constitution to do any one of these, then surely the discretion in the others are also of a constitutional nature and likewise within his authority Itis therefore clear that it was the King's constitutional right to prosecute all crimes, and it was on his behalf that the Attorney-General instituted the prosecutions From the above discussion it becomes very clear that there has existed in the United Kingdom, and thus in Canada, a constitutional discretion in the Attorney-General, which discretion is exercised on behalf of the Crown, to deal with the institution and control of prosecutions. | have dealt at considerable length with the position of the Attorney- General in the administration of our criminal law. It, of course, applies also to the Attomeys-General of the Provinces, although their authority is not in question here. But in greater or lesser degree they are all entitled in the administration of their offices to make decisions regarding prosecution in an independent and judicial manner. ii, ___The Origins and Authority of the Provincial Attorneys General Both Precede and were Affirmed by the British North America Act [30] Prior to 1867, the Province of Canada, which then comprised Canada West and Canada East (now Ontario and Quebec respectively), Nova Scotia, and New Brunswick each had the status of British Crown Colonies. In addition to having separate 15Lieutenant-Governors, legislatures with jurisdiction to make laws, and executive councils, Canada West and Canada East each had a separate Attorney General. These colonial Attorneys General shared the same roles and functions within the colony as that of the Attorney General of England and Wales, and operated as the chief law officer of the Crown, providing oversight over public prosecutions. (31] The British North America Act, 1867 (later renamed the Constitution Act, 1867 by the Canada Act, 1982) continued these provincial Attorneys General.® The Attorneys General of Nova Scotia and New Brunswick were continued through the operation of sections 64 and 88, which preserved the existing executive councils and provincial constitutions. Because the independent constitutions of Upper and Lower Canada had been revoked or subsumed with the formation of the Province of Canada in 1841, the British North America Act referenced the operation of the executive and legislative branches of Ontario and Quebec specifically. Sections 63 and 134 defined the Attorneys General of Ontario and Quebec. Section 63 outlined the composition of the executive councils in the two provinces while section 134 preserved the right of the Crown to appoint the Attorney General until the new provincial legislatures decided otherwise. [32] The Gritish North America Act divided the jurisdiction for the new country between these existing entities, now continuing as four provinces, and the new national ¥ Act of Union, 1840 (UK), 3 & 4 Viet, ¢ 35, s 47. * Constitution Act, 1887 (UK), 30 & 31 Vict, ¢ 3, s 91, reprinted in RSC 1985, Appendix II, No 5. 16entity of Canada,” Section 91 of the British North America Act assigned to Canada ‘most of the jurisdiction that had previously been retained by Great Britain and some of the jurisdiction that had once been a grant of power to the provinces. Most significantly, the Act assigned Canada the power to make criminal law and to broadly enforce peace, order, and good government. Previously the responsibilty of each colony, the Act granted these powers exclusively to Canada. [83] The British North America Act did not, however, remove the provinces entirely from the operation of criminal justice and Crown prosecutions. First, the prosecution of offences within their territory remained within the jurisdiction of each province. Second, the province retained the abil ity to create and prosecute provincial offences. Both forms of these public prosecutions came under the authority of the provincial Attorneys General. In Nova Scotia and New Brunswick, this was through the continuance of their Pre-confederation constitutions and executive authority. For Ontario and Quebeo, this was through the operation of section 134. It is important to note that the power to Prosecute was not specified in section 92 but came from the combination of the section and the power to prosecute that was inherent in the office of the Attorney General itself. [34] For the other existing Crown Colonies of Prince Edward Island, British Columbia, and Newfoundland, a specific provision was made in section 146 to admit the colonies as provinces subject to the will of both the Colonial legislatures and the new Canadian E:This discussion does not address the question of indigenous jurisdiction over their communities and traditional territories and rights to self-government that have developed under section 36 of the Constitution Act, 1982, 17Parliament. The Orders-in-Council that established British Columbia as a province in 1872 and Prince Edward Island as a province in 1873 both specifically continued the existing constitution and executive authority and otherwise applied the terms of the British North America Act.27 Newfoundland was admitted in 1949 by statute that contained a provision continuing the province's 1934 constitution and executive authority,2@ [35] Manitoba, Saskatchewan, and Alberta did not yet have the status of Crown Colonies. They were within what was then Prince Rupert's Land or the North-West Territory and were admitted generally by section 146 of the British North America Act as provinces subject to the will of the Canadian parliament. In 1870, Manitoba was created as a province by a statute of Canada establishing a Lieutenant-Governor with the power to appoint an executive council, and a legislature ~ this Act was confirmed by the British Parliament in section § of the British North America Act, 1871.29 In 1905, two separate British statutes created the provinces of Alberta and Saskatchewan. These acts also created a lieutenant governor with the power to appoint an executive committee and a legislature. They also transferred any official authority from the existing Federal officials in the North-West territory to new provincial officials. [36] Accordingly, all of the provinces either had existing Attorneys General whose Powers and functions continued after, or were created through, Confederation. Nothing ® Order of Her Majesty in Council admitting British Columbia into the Union, 1871; Order of Her Majosty in Council admitting Prince Edward Island into the Union, 1873. 2 British North America Act, 1949 (UK), 12 & 13 Geo VI, ¢ 22. 2 Manitoba Act, 1870 (Can) 33 Vict, ¢ 3 18in these acts interfered with or limited the origin of their authority to prosecute — the Royal Prerogative — but the acts did define the jurisdiction in which they were to operate. In this way, the principle of separate federal and provincial Crowns envisioned by the British North America Act was realized. The Supreme Court of Canada in Mercer v Attorney General for Ontario recognized that the common law constitutional principles that governed the administration of justice in the Crown Colonies continued through the British North America Act, giving both the Federal Government and the Provincial Governments the ability to represent the Crown in respect of the areas of their jurisdiction.2° [37] While this bifurcation of the Crown is a central element to the Canadian constitution, it is not the case for Yukon, the Northwest. Territories, and Nunavut. While there were pre-existing indigenous governments and communities in these territories, from a traditional constitutional point of view, the territories themselves are entirely creatures of federal statute. Nothing in the various federal or United Kingdom statutes that created or amended their governance ever created a separate Crown entity, delegated Canada’s power to prosecute on behalf of the Crown, created a separate nlon-Crown power to prosecute, or otherwise limited or altered the Royal Prerogative. The Establishment of the Territories ‘Mercer v Attomey General for Ontario, [1881] 5 SCR 538, 1881 CanLl 6 19[38] In 1868, an English Order-in-Council approved the sale of the vast holdings of the Hudson's Bay Company to the Government of Canada and placed the territories under Federal jurisdiction, While the indigenous peoples living in the territory were not Consulted or given a voice, the Canadian government was granted “full power and authority to legislate for the future welfare and good government" of the territories." In anticipation of this, in 1869, the Parliament of Canada had passed An Act for the temporary Government of Rupert's Land and the North-Westem Territory when united with Canada that renamed the whole territory the North-West Territory. The Act established both a Lieutenant-Governor to administer the territory under instructions from Ottawa and a council with broad powers as determined by Ottawa.22 [39] To further clarify the extent of the Canadian government's power over these territories, the British North America Act, 1871 gave the government of Canada the right to create provinces in the territories it controlled and affirmed its jurisdiction to make laws for “the administration, peace, order, and good government of any territory not for the time being included in any Province." No federal or imperial legislation either established or recognized a Crown in Right of the new North-West Territory or an Attorney General with authority to act on behalf of the Crown. [40] In 1875, the temporary measures were replaced. The North-West Territories Act 1875 confirmed the appointment of a Lieutenant Governor who was to administer the 1 Order of Her Majesty in Council admitting Rupert's Land and the North-Western Temnitory into the union, 1870, % An Act for the temporary Government of Rupert's Land and the North-Western Territory when united with Canada, 1869 (Can) 32 & 33 Viet, ¢ 3 20government “under instructions...given to him by Order in Council, or by the Secretary Of State of Canada." A territorial council could be appointed by Ottawa, The Lieutenant-Governor and Council had the power to make “ordinances” in an enumerated list of areas including the administration of justice on terms simiar to that \which existed for the provinces. The Act contained detailed provisions for the administration of justice including giving the Lieutenant-Governor the power to appoint a sheriff, establish a police force, appoint magistrates, and administer the Courts. In 1892, {he new Criminal Code was passed and, using similar language to the provision that is stilin effect, clearly asserted that the Attorney General of Canada had jurisdiction over the prosecution of offence: the territory.** No federal or imperial legislation either established or recognised a Crown in Right of the Northwest Territory or a territorial Attorney General with authority to act on behalf of the Crown [41] _ In 1898, Canada established the Yukon and the model for territorial governments Going forward. The Yukon Territory Act established a chief executive for the territory to be appointed by the Government of Canada.** This executive was called the Commissioner, who was empowered to administer the territory under instruction from the Governor-in-Council, essentially the Crown in Right of Canada, The Commissioner was essentially a federal employee and not a representative of the Crown. The Governor-in-Council could also directly appoint members of the Commissioner's Council. The Commissioner's council had broad powers to make “ordinances” for the & North-West Terntories Act, 1875 (Can) 38 Vict, ¢ 49, 32 Act respecting the Criminal Law (Can) 55-86 Vict c.29.,3(b) % Yukon Territory Act, 1898 (Can) 64 Vict ¢ 6 24‘administration of the territory but the ordinances could be disallowed by the Governor- in-Council, Further, the Federal Governor in Council could make its own ordinances to administer the territory without parliamentary oversight. No federal or imperial legislation either established or recognised a Crown in Right of the Yukon or a territorial Attorney General with authority to act on behalf of the Crown. [42] Following the creation of Manitoba and Saskatchewan, what remained of the North West Territory, which comprised the entirety of the current Northwest Territories and Nunavut, was put under a similar administration as existed in the Yukon with the Passing of the North-West Temitories Act.2° The Lieutenant-Governor was replaced by a Commissioner and Council who were subject to instructions from Ottawa and had the Power to make ordinances which could be disallowed by Ottawa. The Criminal Code still reflected that the Attorney General of Canada had jurisdiction over the prosecution of offences in the territory. No federal or imperial legislation either established or recognized a Crown in Right of the Northwest Territory or a territorial Attorney General with authority to act on behalf of the Crown. [43] By the time Nunavut was created, the approach to the administration and governance of the territories had changed with a concerted focus on increasing devolution to the territories of responsibilities. Accordingly, the Nunavut Act is more complex and nuanced than the mostly 19" century statutes described above.” The Act contemplates a high functioning system of responsible government that replicates many & Northwest Territories Act, 1906 (Can) 4 & 5 Edward VII, ¢ 27. * Nunavut Act, SC 1993, ¢ 28, 22of the powers that the provinces have. However, lke its predecessors, the Act contains Significant limits on the authority of territorial officials and institutions. Also like its predecessors, the Nunavut Act could not, and did not, create a Crown in Right of Nunavut [44] _ Significantly, the Nunavut Act established a Commissioner, who is subject to direct control from Ottawa, an executive couneil, and a legislature with broad Powers to ‘egislate that are similar in scope and nature to the areas of provincial jurisdiction These powers include the authority to legislate "the imposition of fines, penalties, Imprisonment or other punishment in respect of the contravention of any law made by the Legislature". However, there is no mention of a territorial Attorney General, no Prescribed jurisdiction for any territorial official or institution to prosecute territorial offences, and no delegation of the federal Attorney General's exclusive jurisdiction to Prosecute on behalf of the Crown in Nunavut. The provisions of the Nunavut Act are not Sufficient on their own to create a free-standing power to prosecute territorial offences, iv. There is No Crown in Right of Nunavut [45] | That there is a Government of Nunavut but that there is no Crown in right of Nunavut well-settled and has been recognized by the Courts, sometimes at the pleading of the Government of Nunavut itself. In Northwest Terntories v the Public Service Alliance of Canada, the Federal Court commented on the constitutional nature of the territory: a Northwest Territories v Public Service Alliance of Canada, [1999] 183 DLR(Ath) 175, 1999 Cant! 9202 at paras 31-32 23| cannot accept the argument of the GNWT that there was an evolution toa separate Crown in the NWT and that this evolution towards responsible government would give rise to a separate entity placing the NWT on the same footing as the ten Canadian provinces. As mentioned by counsel for the CHRC, Such a theory would create “constitutional Darwinism’, In biology, the theory of evolution teaches that a species is born out of a rudimentary species and becomes a different and more complex entity, Undoubtedly, the powers and authority of the GNWT have increased over the years, but the source of its increased powers and authority remains the Federal Crown. The English Crown has divested itself of its power and authority over Canada in favour of Parliament and the Legislatures of the provinces but not in favour of the territories until they have achieved full provincial status. The Northwest Territories Act is purely a federal statute providing for a local government headed by a federal appointee. The NWT has not become a Province by evolution but itis stil a territory under simple delegation of power. [48] _ This passage was quoted approvingly by the Federal Court of Appeal in Commissioner of the Northwest Territories v Canada.® In this case, the question of the NWT's constitutional status was necessary to resolve a jurisdiction question. The Court held: (a) Constitutionally Constitutionally, the Territories do not have the same status as provinces. They remain a creature of the federal government, subject in principle to the good will of the Government of Canada. Her Majesty the Queen, in the Territories, is Her Majesty the Queen in right of Canada. Although some legislative and political arrangements may have the appearance of agreements between the Government of Canada and the Government of the Territories, these arrangements cannot convert the Territories into a province: indeed, the Territories cannot gain provincial status without an amendment to that effect to the Canadian Constitution, in accordance with the method provided by the Constitution (0) Legislatively Legislatively, the Parliament of Canada has invested the Territories with the attributes of a genuine responsible government and given this government the plenary executive, legislative and judicial powers that the country's Constitution allowed Parliament to delegate, stopping just short of the plenary powers associated with a sovereign responsible government, those powers being limited by the Constitution to the government of Canada and the provincial governments, ** Commissioner of the Northwest Territories v Canada, 2001 FCA 220 at paras 38-43. 24(47) However, Parliament has reserved to the Governor in Council the ultimate control over the exercise by the Government of the Territories of its legislative power. And Parliament went to some pains to note in its legislation that federal laws applied to the institutions of the Territories failing provision to the contrary. Although any comparison between territories and municipalities is unfair to the Territories since their status is closer to that of a province than itis toa municipality, ittcan be said that the Territories are no more the agents of their respective creators than are the municipalities when they administer the territory they have been empowered to manage. () Politically Politically, the Government of Canada deals with the Territories as if it were dealing with provinces, inasmuch, it seems to me, as this is allowed by the Constitution ‘The political reality can clarify the juridical issue; however, it cannot falsify it whatever the political appearances may be, there is not, in law, a “territorial” Crown, or_a “territorial” province, or Her Majesty the Queen “in right of the Territories”. (emphasis added) In the case of NT/ v Canada (AG) at the Nunavut Court of Justice, the Government of Nunavut relied on the Commissioner of Northwest Territories v Canada in support of its argument that it did not, and could not be construed to, represent the Crown. The Court held that “there is only one Crown in the territories and that is the Crown in right of Canada. There is no Crown in right of Nunavut...""° The Nunavut Court of Appeal upheld this decision." [48] _ While it is uncontroversial that there exists no territorial Crown in Canadian constitutional law, there are sophisticated Governments with significant responsibilities. The above cases are clear that, while a territorial government cannot to represent the Crown, they are have broad regulatory and administrative functions, may enter into. © NTIv Canada (AG), 2008 NUCJ 11 at para 92. “Nunavut Tunngavik Incorporated v Canada (AG,) 2009 NUCA 2. 25agreements, and, when necessary, conduct non-Crown litigation to advance or defend their actions and interests. In this case, the Applicant submits that while the Government of Nunavut is a legal entity and it has standing as a litigant generally, there 's no inherent or residual right of the Government of Nunavut to conduct a Crown Prosecution. The language of the statute that created and defined the role of the territorial Attorney General reflects this principle. ¥.__ Statutory Limits of the Power of the Nunavut Attorney General [49] _ For Canada and eight of the provinces, there is legislation that affirms and defines the role of the Attorney General. The same is true of the territories, with two significant differences. First, in the territories, the Attorney General is entirely a statutory Creature where, as described above, the original authority of the provincial Attorneys General comes from the Crown Prerogative, the common law, and the constitution. Second, the powers of the Nunavut Attorney General specifically excludes any reference to conducting prosecutions on behalf of the Crown. [50] While the statutory instruments of each of the provinces and Canada have defined the role of the Attorneys General differently, the statutes specifically reference the unique relationship between the Crown and its chief law officer. For example, the relevant Attorney General statutes for Canada, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia all clearly state that the Attomey General represents the interests of the Crown.*? Canada, British Columbia, Alberta, ‘GDepartment of Justice Act, RSC 1985, c J-2, 5(a): Attorney General Act, RSBC 1996, C 22, $ 1(2); Government Organization Act, RSA 2000, ¢ G-10, Schedule 9, s 1(1); Justice and Attorney General Act, 26Saskatchewan, Manitoba, Quebec, and Nova Scotia statutes all state that the Attorney General is the adviser to the Crown's representative, the Governor General, or the Lieutenant-Governor.*? Further, Canada, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, and Nova Scotia all specify that, among other duties, the Attorney General is authorized to represent the Crown in litigation. 4 [51] _ While provincial legislation defining the role of the Attorney General is helpful, for the reasons addressed earlier, the constitutional nature of the office means that, if the Provincial statutory regime were to be rescinded, or in Newfoundland and Prince Edward Island where there is no statutory definition, there would be no confusion about, or impediments to, a provincial Attorney General's right to conduct a Crown prosecution, This authority is inherent in the office having, as described above, its origin in the Royal Prerogative. This is not the case for the Attorney General of Nunavut. [52] Although it uses the same name and asserts a similar role, the Attorney General of Nunavut is not an Attorney General in the traditional sense of the office. This was recognized in the 1966 Report of the Advisory Commission on the Development of Government in the Northwest Territories, also known as the Carrothers Commission, SS 1983, ¢ J-4.3, § 6; Department of Justice Act, CCSM, c J-36, s 1.2; Ministry of the Attorney General Act, RSO 1997 ¢ M.17; Public Service Act, RSNS 1988, c 376, $ 29(1)(a). ‘A Department of Justice Act, RSC 1985, c J-2, 5(b); Attorney General Act, RSBC 1996, C 22, s 2(a); Government Organization Act, RSA 2000, ¢ G-10, Schedule 9, s 2(a); Justice and Attorney General Act, SS 1983, ¢ J-4.3, 5 6, Department of Justice Act, CCSM, c J-35, s 2(a); Act respecting the Ministere de la Justice, CALR ¢ M-19, s 3; Public Service Act, RSNS 1969, ¢ 376, s 29(1)(a). & Department of Justice Act, RSC 1985, ¢ J-2, 5(d): Government Organization Act, RSA 2000, c G-10, ‘Schedule 8, s 2(h); Justice and Attomey General Act, SS 1983, ¢ J-4.3, 8 6; Department of Justice Act, CCSM, c J-35, s 2.1(b); Ministry of the Attomey General Act, RSO 1997 ¢ M.17, s 5(h); An Act Respecting the Role of the Attorney General, RSNB 2011, c'116; Public Service Act, RSNS 1969, ¢ 376, 5 29(1)(e). a7which recommended against the use of the term Attorney General as it implied incorrectly the presence of a Crown in right of the territory.*® [53] Notwithstanding the recommendation of the Carrothers Commission, the three territories did each establish territorial Attorneys General through statute. The Northwest Territories did so in 1988 through the Department of Justice Act.® The Yukon did so in 2002 through its Department of Justice Act.*” Nunavut's Attorney General was created in 1999 in an Act of the same title.** All three territorial acts use almost exactly the same language to describe the office. [54] According to the Act, the Attorney General of Nunavut has the responsibility for the administration of justice in the province. However, the Act does not purport to make the Attorney General the Chief Law Officer or a representative of the Crown in any respect. It specifically makes the Attorney General the adviser to the Commissioner, who is not a Crown representative. Further, while it authorizes the Attorney General to ‘represent the Government of Nunavut in litigation, it does not authorize the Attorney General to represent the Crown or to conduct prosecutions. [55] The Act does contain one passage that reflects the traditional roles and responsibilities of the office. It states that the Attorney General of Nunavut ..is entrusted with the powers and charged with the duties which belong to the Attorney General and Solicitor General of England by law or usage, in or far as “ Order-in-Council, Report of the Advisory Commission on the Development of Government in the Northwest Territories (August 1966) (Chair. AWR Carrothers) at pp. 159-160. ** Department of Justice Act, RSNWT 1988, ¢ 97. 4” Department of Justice Act, RSY 2002, c $6. * Department of Justice Act, RSNWT (Nu) 1988, c 97, as enacted for Nunavut, pursuant to the Nunavut Act, SC 1993, ¢ 28, 28those powers and duties are applicable to Nunavut, and also with the powers and duties which by the laws of Canada or of Nunavut belong to the Attorney General for Nunavut, Whatever powers or duties this passage might create in the office of the Attorney General, this passage cannot import into Nunavut the right to represent the Crown in Public prosecutions in a manner that does an end run around the Constitution of Canada. As with the rest of the Act, the most it can do is to create some flexibility regarding the definition of the role and function of the Attorney General as the legal to the Government of Nunavut in its range of non-Crown functions. vi__The Government of Nunavut Has No Residual or Inherent Right to Pr rosecute Territorial Offences [56] For the reasons outlined above, at no point during the development of territorial governments and the creation of Nunavut did Canada create a territorial Crown, delegate its Crown authority to prosecute, establish jurisdiction for the Government of Nunavut to prosecute on its own behalf, or otherwise limit the Royal Prerogative of Justice. Nor could anything Nunavut could do within its own jurisdiction have done any of these things. Indeed, at no point has Nunavut ever attempted to give such authority to itself through legislation. As described above, it avoided any reference to Crown Powers in defining the role of the Attorney General and neither the Summary Conviction Procedures Act nor any other territorial acts purport to make the Attorney General a prosecutor of territorial offences. 29[57] _ The power to prosecute any offence in Nunavut on behalf of the Crown lies exclusively with the Attorney General of Canada. This power has been delegated solely to the Director of Public Prosecutions. The Public Prosecution Service of Canada is the only entity with the authority to conduct and appeal a prosecution on behalf of the Crown in Nunavut. Accordingly, the Government of Nunavut has no standing in this matter and, as such, this Court has no jurisdiction to hear their appeal PART IV - RELIEF REQUESTED [58] The Respondent requests that the Notice of Appeal be struck and that the proceedings in this matter be declared void. PART V ~ TIME ESTIMATE [59] Submissions on behalf of Mr. Imgaut will v7) hour, | ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS/29th DAY OF OCTOBER, 2019 Law Society Roll No. 2019004 Counsel for the ReSpondent/Applicant on Application 30AUTHORITIES CITED LEGISLATION Act of Union, 1840 (UK), 3 & 4 Vict, ¢ 35, s 47. Act respecting the Criminal Law (Can) 55-86 Vict c.29,s.3(b) Act respecting the Ministere de /a Justice, CQLR ¢ M-19, s 3. An Act for the temporary Government of Rupert's Land and the North-Western Territory when united with Canada, 1869 (Can) 32 & 33 Vict, ¢ 3 An Act Respecting the Role of the Attorney General, RSNB 2011 British North America Act, 1949 (UK), 12 & 13 Geo VI, ¢ 22. Constitution Act, 1867 (UK), 30 & 31 Vict, ¢ 3, s 91, reprinted in RSC 1985, Appendix II, No 5, Criminal Code, RSC 1985, c C-46, Department of Justice Act, CCSM, ¢ J-35, Department of Justice Act, RSC 1985, c J-2 Department of Justice Act, RSNWT 1988, c 97. Department of Justice Act, RSNWT (Nu) 1988, c 97. Department of Justice Act, RSY 2002, ¢ 55. Director of Public Prosecutions Act, SC 2006, ¢ 9, s 121 Government Organization Act, RSA 2000, c G-10. Justice and Attorney General Act, SS 1983, c J-4.3, Manitoba Act, 1870 (Can) 33 Viet, ¢ 3. Ministry of the Attorney General Act, RSO 1997 c M.17. Northwest Territories Act, 1905 (Can) 4 & § Edward VI, ¢ 27 North-West Territories Act, 1875 (Can) 38 Vict, c 49. 31Nunavut Act, SC 1993, c 28. Order-in-Council, Report of the Advisory Commission on the Development of Government in the Northwest Territories (August 1966) (Chair: AWR Carrothers). Order of Her Majesty in Council admitting British Columbia into the Union, 1871. Order of Her Majesty in Council admitting Prince Edward Island into the Union, 1873. Order of Her Majesty in Council admitting Rupert's Land and the North-Westem Territory into the union, 1870. Public Service Act, RSNS 1989, c 376. Summary Convictions Act, RSY 2002, c 210. Summary Conviction Procedures Act, RSNWT (Nu) 1988, c $-15. Wildlife Act, SNu 2003, c 26. Yukon Territory Act, 1898 (Can) 61 Vict ¢ 6. JURISPRUDENCE Commissioner of the Northwest Territories v Canada, 2001 FCA 220. Mercer v Attomey General for Ontario, [1881] 5 SCR 538, 1881 CanLil 6. Northwest Territories v Public Service Alliance of Canada, [1999] 183 DLR(4th) 175, 1999 CanLi! 9202, NTI v Canada (AG), 2008 NUCJ 11 ‘Nunavut Tunngavik Incorporated v Canada (AG,) 2009 NUCA 2. Ross River Dena Council Band v Canada, [2002] 2 SCR 816, 2002 SCC 4 (CanLIl) Wilkes v The King, [1768] 97 ER 123 (HL), SECONDARY SOURCES Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (London: Macmillan, 1967). 32Anne McLellan, “Review of the Roles of the Minister of Justice and the Attorney General of Canada’, Guy Regimbald & Dwight Newman, The law of the Canadian Constitution, (Markham, Ont: LexisNexis Canada, 2013). John Llewelyn Jones Edwards, The law officers of the Crown: a study of the offices of Attorney-General and Solicitor-General of England with an account of the officer of the Director of Public Prosecutions of England (London: Sweet & Maxwell, 1964). Peter W Hogg, Constitutional Law of Canada, 4th ed (Scarborough: Thompson Carswell, 1997). 33