‘Appeal File No: 07-19-002-CAS IN THE NUNAVUT COURT OF APPEAL IN THE MATTER OF: HER MAJESTY THE QUEEN Appellant -and- MICHAEL IRNGAUT Respondent FACTUM OF THE APPELLANT Counsel for the Appellant: Counsel for the Respondent Michael Irgaut: Adrienne Silk Benson Cowan, Chief Executive Officer LSN Roll 2010069 Nunavut Legal Aid Whose address for service is: PO Box 29, Building 1104-B Department of Justice, Government of Nunavut | Inuksigate Plaza 1* Floor Sivummut Bldg. (#1107) Iqaluit, Nunavut XOA OHO P.O. Box 1000, Stn. 540 Igaluit, NU X0A OHO Telephone: (867) 975-6172 Facsimile: (867) 975-6349Contents PART I- STATEMENT OF FACT! Overview of Issues. Statement of Facts.. i. Introduction. ‘The Lower Court Judgment PART Il - GROUNDS OF APPEAL. PART III - POINTS OF LAW... The standard of review... The Test for Officially Induced Error.. Application of the Law to the Facts... ‘The Respondent never sought or obtained advice on the legality of his acticns.. ul ‘The Respondent did not consider the legality of his actions Me Daniel Qaialik was not n “appropriate oficial” within the meaning ofthe test stout in Jorgensen... 13 ‘The advice given to Mr. Qattalik and passed on to the Respondent was not reasonable, and the Respondent’s reliance on the advice was not reasonable; Chief Justice Sharkey erred by applying a subjective standard to Mr. Imgaut;... PART IV ~NATURE OF RELIEF DESIRED ... PART VI- TABLE OF AUTHORITIES... This document has been filed electronically in accordance with praciice directive #18PART I— STATEMENT OF FACTS Overview of Issues L. At issue is the ruling issued by the Honourable Chief Justice Sharkey, dated March 14, 2019, staying proceedings against the Respondent Michael Imgaut, who was charged with killing a caribou in contravention of an island-wide ban on caribou hunting on Baffin Island. 2. Chief Justice Sharkey issued a stay of proceedings, holding that Mr. Imgaut had successfully made out the excuse of officially induced error - he had been unknowingly broken the law after receiving incorrect advice from an appropriate official. 3. The appellant Government of Nunavut filed a Notice of Appeal on March 12, 2019, followed by an amended Notice of Appeal on April 5, 2019. 4, ‘The appellant states that Chief Justice Sharkey’s determination that the Respondent Ingaut ‘was excused from conviction on the basis of officially induced error was incorrect at law, and that the Respondent's actions do not approach the level of diligence required in order to make out this excuse at law. This document has been filed electronically in accordance with practice directive #18Statement of Facts i Introduction 1. On January 1, 2015, in response to dwindling herd numbers, the Minister of Environment of the Government of Nunavut enacted the Baffin Island Caribou Interim Management Order, which prohibited the harvesting of caribou on Baffin Island.! 2. The Respondent, Michael Imgaut, is a resident of Igloolik. He is employed as a fuel delivery driver, and is an avid hunter? 3. Mr. Imgaut is a member of the Canadian Rangers, a sub-component of the Cana Forces. He has been a member of the Rangers for 7 years? 4. On February 14, 2015, Mr. Imgaut and two other rangers set out from Igloolik to Mary River on a week-long patrol. The group of four was comprised of George Qattalik, a sergeant with the Rangers, his wife Lucy, Mr. Isa Ammag, and Mr. Imgaut.* 5. When he left Igloolik, Mr. Imgaut was aware that the Government of Nunavut had enacted a ban on hunting caribou on Baffin Island.> 6. On the first day of the patrol the group arrived on Baffin Island and set up camp. Soon after, George Qattalik telephoned his father, Daniel Qattalik, Mr. Imgaut did not know Daniel Qattalik personally, but he knew that he was an elder, and that he was a member of the local ‘Hunters and Trappers Organization (“HTO”).* 7. Mr. Imgaut was not party to the phone call between George Qattalik and his father Daniel, which took place outside the tent in which the group was staying. When Daniel re-joined the group, he told his fellow Rangers that his father has mentioned that they could harvest caribou if they wanted, and that there was no actual rule stating that they could not.’ ' Nunavut Gazette, 2014, Vol 16 No 12, Appellant's Book of Authorities, TAB 1 2 Appeal Book, Tab 5 — Transcripts, pp 29 - 30. 3 Ibid, p. 31 p34 "Tid, pp. 33-34, This document has been filed electronically in accordance with practice directive #188. Mr. Imgaut stated that he did not question Mr. Qattalik about his conversation with his father, and the group did not discuss the matter any further. Mr. Imgaut stated in direct examination that he became determined to harvest a caribou and that he believed Mr. Qattalik’s father “because he's the HTO member and what he says is probably valid”. 9. Mr. Imgaut then shot and killed a caribou. He and his fellow Rangers ate some of the caribou, and he brought the caribou’s hide with the group to Mary River, then, eventually, back to Igloolik. ? 10. In cross-examination, Mr. Imgaut admitted that he knew about the caribou hunting ban when he departed Igloolik, that he was not party to the conversation between Mr. Qattalik and his father, and that he was surprised when Mr. Qattalik told the group that they were allowed to hunt caribou. In spite of this, he did not question Mr. Qatallik about his conversation with his father. Nor did he discuss his plans to harvest a caribou with his fellow-Rangers.!° 11. Upon his return to Igloolik, the caribou hide was seized by a wildlife conservation officer. Mr. Imgaut was ultimately charged under s. 69 of the Wildlife Act, S. Nu. 2003, ¢ 26", with harvesting a caribou in contravention of an order prohibiting harvesting on Baffin Island. He ‘was also charged under s. 85(1)(a) of the Wildlife Act for being in possessior of a wild animal (hide) on February 24, 2015 that had been unlawfully harvested. * Ibid, p. 36. bid, ° Ibid, pp. 41-43. " Wildlife Act, SNu 2003, ¢ 26, s 168, Appellant's Book of Authorities, TAB 2. ‘This document has been filed electronically in accordance with practice directive #18‘The Lower Court Judgment 12. The Nunavut Court of Justice heard the case against Mr. Imgaut on June 5, 2018. On March 14, 2019, Chief Justice Sharkey issued his judgment, finding that Mr. Imgaut had met the requirements for the excuse of officially induced error. 13. Specifically, Chief Justice Sharkey held that Mr. Imgaut harvested the caribou based on erroneous information or advice which he had received from the HTO via his patrol sergeant, and that he therefore had a valid excuse called “officially induced error”. 14. Chief Justice Sharkey held that Mr. Imgaut had reasonably relied on the advice of an HTO ‘member, conveyed to him by his sergeant, and that he had considered the legal consequence of harvesting a caribou. Chief Justice Sharkey held that Daniel Qattalik was an “appropriate official” from whom Mr. Imgaut was entitled to accept advice, and that the advice given was reasonable. 15. Chief Justice Sharkey concluded at page 23 of his judgment that: [153] Mr. Imgaut’s case falls within such an exceptional combination of circumstances. He received information that the harvesting ban had been lifted when he was physically and geographically isolated from any other authority or possible source of information. His immediate source of information — his Ranger Sergeant with control of communications to the outside world - was someone he was sworn to trust and obey. And the original source of the information was both an Elder and a HTO board member. [154] Mr. Imgaut is therefore entitled to the remedy prescribed by Jorgensen — namely, the entry of a judicial stay of proceedings ‘This document has been filed electronically in accordance with practice directive #18PART Il—- GROUNDS OF APPEAL 18. The Appellant submits that the learned trial judge erred at law: a. Incorrectly determining that Mr. Imgaut had considered the legal consequences of his actions; b. Incorrectly holding that Daniel Qattalik, an elder and HTO member, corstitutes “an appropriate official” within the meaning of the term as set out in the jurisprudential test for offically induced error; c. Incorrectly holding that the advice given by Daniel Qattalik via his son, George Qattalik, was reasonable; d. Incorrectly applying a subjective standard in determining whether Mr. Imgaut’s reliance on Mr. Qattalik’s advice was reasonable; and e. Incorrectly applying the test for officially induced error by taking into consideration facts which were not relevant. ‘This document has been filed electronically in accordance with practice directive #18PART II - POINTS OF LAW The standard of review 16. Whether the test for officially induced error was properly understood and applied is a question of law, and the standard of appellate review is correctness, '? The Test for Officially Induced Error 17. Ignorance of the law is not a valid excuse for the commission of a criminal offence." 18. The doctrine of “officially induced error” is a narrow exception to this rule." The leading case on officially induced error is the Supreme Court’s judgment in R. v. Jorgensen.'* Although Jorgensen was decided on other grounds, it is best known for Justice Lamer’s fulsome analysis, of the history, policy rationale, and elements of the excuse of officially induced error. 19. In examining the development of the doctrine of officially induced error Justice Lamer notes at paragraph 10 that: The number of laws under which any person in Canada may incur criminal liability is nothing short of astounding. While knowledge of the law is to be encouraged, its certainly reasonable for someone to assume he knows the law after consulting a zepresentative of the state acting in a capacity which makes him expert on that particular subject. (Emphasis added) 20. In Jorgensen, Justice Lamer held that the excuse of officially induced error is only available once all elements of the crime have been made out. If the defendant can prove the following, they will be excused from the consequences of their unlawful behaviour: ) that an error of law or of mixed law and fact was made; b) that the person who committed the act considered the legal consequences of his or her actions; ® R ¥, Shiner, 2007 NLCA 18, at para 28, Appellant's Book of Authorities, TAB 3. ® Criminal Code, RSC, 1985, ¢ C-46, 519, Appellant’s Book of Authorities, TAB 4. ¥ The rule against ignorance of the law applies equally to regulatory offences (R. v. Pontes, (1995) 3 SCR 44 at paras 33-34), Appellant's Book of Authorities, TAB 5. 5 Rv Jorgensen, [1995] 4 SCR 55, Appellant’s Book of Authorities, TAB 6. ‘This document has been filed electronically in accordance with practice directive #18©) that the advice obtained came from an appropriate official; 4) that the advice was reasonable ~ in order to meet this requirement, the accused must show, not only that the advice was reasonable, but that his or her reliance on the advice was reasonable; ) that the advice was erroneous; and that the person relied on the advice in committing the act.16 21. This is a difficult standard to meet, An accused who seeks to rely on this excuse must have weighed the potential illegality of his actions and made reasonable enquiries.'” 22. At paragraph 35, Justice Lamer noted that the accused must also demonstrate reliance on the advice provided, which can be shown by, inter alia, proving that the advice was obtained before the actions were taken, and that the accused posed questions to the official that were specifically tailored to the accused's situation.'® 23, Justice Lamer stressed that ignorance of the law is, in and of itself blameworthy, but that, in some caises, the blame is shared with the state official who gave the erroneous advice. He went ‘on to note the similarity between officially induced error and entrapment, stating at paragraph, 37 that: As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses rather than justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed to the actor. (See R. v. Mack, [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment, the accused has done nothing to entitle him to an acquittal. but the state has done something which disentites it to a conviction (Mack, at p. 975). Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.” (Emphases added) "5 Lévis (City) v. 2629-4470 Québec Ine, [2006] | SCR 420 [Lévis] at para 26, Appellant's Book of Authorities, TAB. 2 Jorgensen, at para 22. 2 Pei, at para. 35 » Wid, at para 37. ‘This document has been filed electronically in accordance with practice directive #1824. In Lévis v. 2629-4470 Québec Inc, (“Lévis”?®, the Supreme Court further refined the test, holding that, not only must the advice received be objectively reasonable, butthat the accused’s reliance on the advice must also be objectively reasonable! 25. In Jorgensen, Justice Lamer stated that officially induced error was similar tc entrapment? In both cases, an authorized representative of the state permits the wrongful act that the state then seeks to prosecute” 26. In Lévis, Justice Lebel elaborated on this requirement, holding that, it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice. In making a determination of whether the accused’s reliance was reasonable, the Court must consider: (i) the efforts made by the accused to obtain information, (ii) the clarity or obsourity of the law, (iii) the position and role of the official who gave the information or opinion, and (iv) the clarity, definitiveness and reasonableness of the information or opinion™, 27. The Supreme Court adopted this line of reasoning in Bédard, below. 28.In Rv. Bédard, Chief Justice McLachlin stated that the defence of officially induced error is “intended to protect a igent person who first questions a government authority about the interpretation of legislation so as to be sure to comply with it and then is prosecuted by the same government for acting in accordance with the interpretation the authority gave him or her”25 29. In R. v. Cancoil Thermal Corporation, an earlier judgment of the Ontario Court of Appeal, Justice LaCourciere held that the defence of "officially induced error" is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or ® Supra note 3, Lévs at para 21. 2 Ibid, “te 18 not sufficient in such cases to conduct a purely subjective analysis ofthe reasonabieness of the information. This aspect ofthe question must be considered from the perspective of reasonable person ina situation similar to that ofthe accused” 2 Jorgensen, at para 25, 2 Ibid, at para 22. Also, at para 34, Lebel finds that reliance onthe authority fails where the accused cannot “considfer] the legal consequences of its conduct on the basis of advice from the offical in question, nor could it [the accused] have acted in reliance on that opinion, since no information regarding the natute ard effects ofthe relevant legal obligations hd been requested or obisined.” ® Lévis, at para. 27 % R v, Bédard, [2017] 1 SCR 89, Appellant's Book of Authorities, TAB 8. ‘This document has been filed electronically in accordance with practice directive #18enforcement of the particular law. The reasonableness of an accused’ reliance on an erroneous legal opinion of an official will depend on several factors, including the efforts the accused made to ascertain the proper law, the complexity of obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableress of the advice given 30. In Maitland Valley Conservation Authority v. Cranbrook Swine Inc., anothe: judgment of the Ontario Court of Appeal, Justice MacPherson, citing Cancoil and Jorgensen, held that although Chief Justice Lamer’s comments concerning "specifically tailored" questions relate to the reliance component of his analysis, it goes without saying that one would have to advert to the prohibited aspect of one's conduct at some point in order to pose appropriate questions27 31. To summarize, the excuse of officially induced error represents a very narrow exception to the ‘maxim that ignorance of the law is no defence, The subjective belief of an accused that they are acting legally is not relevant. ‘The test, as set out in Jorgensen and elaborated upon in Lévis, Maitland, and Bedard, is objective. It requires that an accused consider the legality of their actions, and take active steps to seek out advice about the state of the law from an appropriate official. In order to ground reasonable reliance, the advice itself must be, objectively, reasonable. That means that the accused must ask questions that are specifically tailored to elicit an accurate assessment from the official. The response from the official should be clear and unequivocal 2* 32. In short, the excuse of officially induced error does not hinge on the subjective belief of an individual, but is rather aimed at the protection of individuals who take external, recognizable steps to obey the law, but end up breaking the law because of faulty advice provided by a state official. % Rv. Cancoil Thermal Corporation, 1986 CanLII 154 (ON CA), atp. 8, Appellant's Book of Authorities, TAB 9, ® Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 64 O.R. (34) 411, at para. 70 - Appellant’s Book of Authorities, TAB 10. ® Supra Levis, at para. 27, citing Cancoil. ‘This document has been filed electronically in accordance with practice directive #18Application of the Law to the Facts The Respondent never sought or obtained advice on the legality of his actions 33. Mr. Imgaut did not seek advice from an appropriate official before killing e caribou. Rather, he relied on a statement made Daniel Qattalik and relayed to him by George Qattalik. The information relayed by George indicates that his father Daniel was low on detail; Daniel Qattalik never stated that the ban had been repealed, and provided no context for his statements. No evidence was entéred to show that Daniel Qattalik was acting in any official capacity as a member of the HTO. Mr. Imgaut asked no questions, in spite of admitting that he was surprised by George Qattalik’s comments. 34, While there are circumstances where an accused may rely on the advice of an official without having direct communication, the Appellant submits that no such circumstance existed in this case.”* The common thread in such cases is the receipt, if indirectly, of formal and detailed information from state officials. In Jorgensen the “advice” took the form of an official approval from an agency of the Government of Ontario tasked with classifying films. In R. v. Ralph, the accused relied on detailed guidelines written and promulgated by the Department of Fisheries and Oceans. 35. It is difficult to see how Mr. Imgaut’s reliance on a one-sentence statement made to a fellow Ranger and not directly to him, compares in any way to Jorgensen or Ralph, both cases of reliance on state entities and/or official publications. 36. Further, these exceptions do not neutralize the obligation on an accused to show that he took proactive steps to seek out official advice about the state of the law. 37. The Appellant submits that, in the absence of any proactive steps by Mr. Imgaut to seek out advice or clarity regarding the state of the caribou ban, the Respondent has not met one of the core requirements of the test for officially induced error. ® In Jorgensen, the accused relied upon an offical approval ofthe Ontario Fil Review Board. In Rv. Ralph (2002), 220 Nfld. & P.ELR. 351 (NL. T.D) the accused relied upon detailed departmental guidelines, This document has been filed electronically in accordance with practice directive #18‘The Respondent did not consider the legality of his actions 38. Chief Justice Sharkey held that it was clear that the Respondent had considered the legality of his actions because he testified that he would not have killed a caribou had he not believed that the prohibition had been lifted: [96] This part of the test requires little scrutiny. I accept Mr. Imgaut’s testimony that, had he not believed the prohibition had been lifted, he would not have harvested a caribou. Thus, I find this aspect of the test is met, 39, With respect, the satisfaction of this aspect of the test for officially induced error is not determined by reference to the beliefs of the accused. To do so would be to merge this aspect of the test into the first requirement ~ i.e, that the accused must have been acting under a ‘mistake of law or mixed law and fact. 40. This aspect of the test for officially induced error requires more than an assertion that, had the accused known that they acted illegally, they would not have done so, Rather, it requires the accused to consider whether what they are proposing to do might be illegal, and to seek out advice as a result? 41. It is not sufficient for the accused to simply state that they believed their actions to be legal, and would not have taken such actions if they had thought they were breaking the law. They must consider that they may be contemplating a crime, and take active steps to seek advice. 42, This factor is critical to preserving the rule that ignorance of the law is ne defence, and is underpinned by strong policy considerations. By requiring that an accused must have considered whether their conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that, their conduct was permissible.>! 2° Supra Jorgensen, at para. 29, 3 Tbid. ‘This document has been filed electronically in accordance with practice directive #18Mr. Daniel Qattalik was not an “appropriate official” within the meaning of the test set out in Jorgensen 43. It is not sufficient for an accused to simply show that they were mistaken and that they took steps to get advice. Mr. Imngaut was also obliged to prove, on a balance of probabilities, that Daniel Qattalik was an “appropriate official”. 44. Chief Justice Sharkey noted in his reasons for judgement that Daniel Qattalik was a member of the HTO, and that he was an elder. He cited the Nunavut Land Claims Agreement and the Wildlife Act, which sets out the make-up and duties of an HTO, which include the creation of by-laws and the management of harvesting among members of the HTO. 45. However, in holding that Mr. Qattalik was an “appropriate official”, Chief Justice Sharkey conflated Mr. Qattalik as an individual, and the father of George Qattalik, with the HTO. "This would be analogous to the accused in Jorgensen having relied, not on an official approval of a government agency, but on a statement made in a non-official context by a staff member of the agency. Simply put, Mr. Qattalik is a member of the HO, but that does not mean that advice from Mr. Qattalik, given out of context in a non-official capacity, constitutes advice from the HTO. 46. It noteworthy that HTO membership is open to all Inuit residents in a community: unter and Trapper Organizations and Regional Wildlife Organizations Requirement 166. (1) Pursuant to the Agreement, each community, and each outpost camp that prefers a separate organization, shall have an HTO. 72 8.Nu. 2003,¢.26 Membership (2) Pursuant to the Agreement, membership in each HTO is open to all Inuit resident in a community. *? 47. In short: membership in an HTO does not confer any regulatory authority or role on individual members. To the extent that an HTO has'a regulatory role, itresides with the entity as a whole, not with individual members: HTO authority % Surpra Note 10, ats. 166 This document has been filed electronically in accordance with practice directive #18167. (1) Pursuant to the Agreement, an HTO may provide for (a) the regulation of harvesting practices and techniques among members, including the use of non-quota limitations; (b) the allocation and enforcement of community basic needs levels and adjusted basic needs levels among members; (©) the assignment to non-members, with or without valuable consideration and conditions, of any portion of community basic needs levels and adjusted basic needs levels; and @ generally, the management of harvesting among members.*> 48. In other words, Mr. Daniel Qattalik’s membership in the HTO did not confer upon him any regulatory role in his individual capacity, nor did it denote any particular expertise in the area of state-imposed harvesting restrictions. 49. Chief Justice Sharkey compared Mr. Daniel Qattalik to the Jorgensen case, in which the accused paid an official from Ontario Film Review Board (“OFRB”) to review the impugned films and make a determination about their content. However, with respect, there is a clear difference between Mr. Qattalik, who is a member of the HTO, making a comment in the context of a conversation with their son, and a member of the OFRB issuing a determination about a film’s classification decision in response to a specific request. Further, the OFRB and its individual members are state actors ~ they are officers of an agency of the Government of Ontario. 50. An HTO is a society, and has a role to play in regulation of wildlife. However, itis also a non- government entity, with membership open to any Inuit in a community. In other words, HTO membership does not make a person an “official”, nor does it denote any particular expertise. $1.In this case, Daniel Qattalik’s comments were unsolicited — ie. they did not arise from a specific question, They were relayed without context, and came from him in his individual, unofficial capacity. 52. In light of the above, we submit that Mr. Daniel Qattalik was not an “appropriate official”. » Ibid, at . 167. This document has been filed electronically in accordance with practice directive #18The advice given to Mr. Qattalik and passed on to the Respondent was not reasonable, and the Respondent’s reliance on the advice was not reasonable; 53. The Respondent’s testimony reveals that, when he left Igloolik, he was aware of a ban or hunting caribou on Baffin Island. Eleven hours later, the Respondent based his conclusion that the ban had been lifted on a second-hand conversation between George Qattalik and his father, Daniel Qattalik. It is helpful to review the evidence regarding what George told the Respondent: Q. Tell me about the first night when you were camping. ‘A. THE INTERPRETER: We left from here. Then we chose the campsite and we set up camp and slept there. After we settled, then we ate. And then one of the guys had called and contacted someone from Hunters and Trappers Organization, HTO, member. And then he had given him information saying that we came here at this time and this is what ‘we're doing, that sort of information. And then that's the time when a member of the HTO had mentioned that we -- we could harvest caribou if we wanted. There was no actual tule that says we cannot. Q. So who made that phone call? A. THE INTERPRETER: George had made the call to his dad, who is — his name is Qattalik and he's the one that said that we're able to harvest, ** Then later, in cross-examination: Q. Okay. Now, so you heard that - let me see here, how did . . . So were you present ‘when George had the conversation with ~ let me see here ~- Daniel? ‘A. THE INTERPRETER: I was ~ I was present in that camp, but I was inside the tent and he was outside the tent having that conversation. Q. Okay. So you didn't hear yourself what Daniel said. You just know what George told you. A. THE INTERPRETER: Yes. Q. So when George told you this, were you surprised that -- with the information? A. THE INTERPRETER: Yes. Q Right. Because how long did it take you to get from Igloolik to the camp? How many hours? A. THE INTERPRETER: About 11 hours. Q. Okay. So at one moment you know that there is a ban, And 11 hours leter, you're hearing something different. Appeal Book, Tab 5, pp. 33-34. ‘This document has been filed electronically in accordance with practice directive #18A. THE INTERPRETER: Yes Q. And when George told you this, did you question him any further? A. THE INTERPRETER: I was just thinking about it. I didn’t actually ask him. And I thought the —I guess the ban was lifted, and then I was determined to harvest a caribou. 54, A number of things stand out in the Respondent’s testimony. According to Mr, Imgaut, George Qatallik did not state that the ban had been lifted. Nor did he say that it was not legal to hunt caribou. Rather, Mr. Qatallik informed the group that his father had told him that “they could harvest caribou if we wanted, and that there was no actual rule stating that they could not”. 55. The Respondent admits that he found this information surprising, as the ban had been in place just 11 hours prior when he had departed Igloolik. He also admitted that he did not ask any further questions, and did not discuss the matter with Mr. Qattalik or his fellow Rangers. ‘56. In order for the Respondent's actions to be legal, the Minister of Environment would have had to enact a repeal of the Baffin Island Caribou Interim Management Order sometime between ‘Mr. Imgaut’s departure from Igloolik on Saturday, February 14, 2015, and George Qattalik’s conversation with his father on Sunday, February 15, 2015. 57. In light of the above, the advice provided to the group from Daniel via George Qattalik was not plausible. In other words, it was not reasonable for Daniel Qattalik to assert that there was “no actual rule stating that they could not” hunt caribou, when it was common knowledge that there was a caribou hunting ban in place. 58. Nor was it reasonable for Mr. Imgaut to rely on the assertion by Daniel Qattalik. As noted in Jorgensen and Lévis, the reasonableness of a given accused’s reliance will hinge on what steps they took to make sure that they acted in accordance with the law. Mr. Imgaut took no steps. 59. The Appellant submits that, in light of the circumstances, the advice received by the accused from Daniel Qattalik via his son George was not reasonable, and, in the absence of any efforts to verify that the caribou ban had been lifted, Mr. Imgaut’s reliance on Daniel Qattalik’s statements was not reasonable. This document has been filed electronically in accordance with practice direChief Justice Sharkey erred by applying a subjective standard to Mr. Irngaut; 60. 61. 62. 63. At paragraph 121 of his judgement, Chief Justice Sharkey began his analysis of whether the advice received by Mr. Imgaut from Daniel Qattalik via his son George Qattalik was reasonable. While acknowledging that the test is objective, Chief Justice Sharkey nonetheless opined that reasonableness must be gauged with reference to each particular defendant.35 Chief Justice Sharkey opined that the reasonableness of Mr. Imgaut’s reliance on the statements of George Qattalik must be assessed from the perspective of a 22 year old Inuk, the junior member of a small Ranger patrol, two days into a long trip, far from home in the middle of winter.** He noted too, that Daniel Qattalik is an elder, and that this factor was relevant to whether Mr. Imgaut acted reasonably. Chief Justice Sharkey relied on Justice Lebel’s statements at paragraph 29 the Levis judgement to ground his emphasis on Mr. Imgaut’s personal characteristics. However, with respect, we submit that the Honourable Chief Justice misapplied that judgement. Here for reference, is the centire paragraph cited: 27 Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established. Provincial appellate courts have followed this approach to consider and apply the defence of officially induced error (R. v. Larivigre (2000), 2000 CanLII 8295 (QC CA), 38 CR. (Sth) 130 (Que. C.A.); Maitland Valley Conservation Authority v. Cranbrook Swine Inc. (2003), 2003 CanLl 41182 (ON CA), 64 OR. Gd) 417 (C.A}). I would also note that, in this appeal, neither the prosecution nor the intervener, the Attorney General of Canada, has questioned the existence of this defence in Canadian criminal law as it presently stands. At most, the Attorney General of Canada has suggested another condition in addition to those enumerated by Lamer C.J., namely that the act was committed contemporaneously with the reception of the information. I do not think this addition is necessary. The Attorney General of Canada’s concerns relate more to the need to demonstrate that the advice was reasonable and that the accused relied onit. It should be noted, as the Ontario Court of Appeal has done, that it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice (R. v. Cancoil Thermal Corp. (1986), 1986 CanLII 154 (ON CA), 27 C.C.C. Gd) 295; Cranbrook Swine). Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information. the clarity or obscurity of the law, the position and role of the official who gave the information or 3 Reasons for Judgement, at TAB 6 of the Appeal Book, pare, 122 Ibid par. 125. ‘This document has been filed electronically in accordance with practice directive #18opinion, and the clarity, definitiveness and reasonableness of the information or opinion (Cancoil Thermal, at p. 303). Itis not sufficient in such cases to conduct apurely subjective analysis of the reasonableness of the information. ‘This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the aecused >” 64. Chief Justice Sharkey rejected the Crown’s view that Mr. Imgaut ought to bave taken further steps to clarify the particulars of what he had heard. Chief Justice Sharkey concluded that there was no reason for Mr. Imgaut not to take George Qattalik’s word, and that he was under no obligation to do more. He cited the fact that Mr. Imgaut, was junior to his fellow patrol officers, and the statement was coming from a sergeant, Finally, Chief Justice Sharkey noted that Daniel Qattalik, the source of the statement, is an elder. 65. This emphasis on the subjective beliefs of the accused is evidenced again at paragraphs 135 and 136, where Chief Justice Sharkey states: [135] I accept Michae!’s testimony that he relied on the Elder because, as he said “...we are to respect them. ..So what he [Daniel Qattalik] said really meant something to me, like ‘what he said that time. I trusted his word.” [136] Ido not suggest that a person is excused for breaking the law simply because an elder told them a certain activity is not illegal, when in fact it is illegal. Lam simply saying the , fact Daniel was an elder is a factor to take into account when assessing whether Michael's belief in the information he received was reasonable.** 66. The error here is apparent: the test is not satisfied if a person believes legal advice that they receive to be reasonable. The advice must actually be reasonable.>° 67. Chief Justice Sharkey concluded by stating that given these circumstances, it was, in his opinion, unsurprising that Mr. Imgaut did not seek further information before harvesting a caribou: [139] Accordingly, it follows that when Michael received word that a HTO board member said the ban was lifted he (Michael) would not need to concern himself with talking about it. Once again, his testimony, which I accept, is proof in the pudding. Michael was asked by his lawyer what it meant that the information came from HTO board member. And his response was “that there is really nothing to worry about.” Supra Note 16, at para. 27. > Reasons for Judgement, et TAB 6 ofthe Appeal Book, paras. 135 136 » Levis, Supra, at para, 26, This document has been filed electronically in accordance with practice directive #18(140] Within this context, it is not remarkable to me that Michael, the junior member of the group, did not initiate any discussion, at all, on the nitty-gritty of how or why the ban could have been lifted.” 68.With respect, the Government submits that, by placing importance on the personal characteristics and perceptions of the accused, Chief Justice Sharkey improperly applied a subjective standard to Mr. Imgaut’s behaviour. 69. The standard of reasonableness is gauged not by the personal characteristics of an accused, but by how a reasonable person would behave in the circumstances. The policy reasoning is clear; by using the reasonable person standard, the courts avoid subjective evaluations, and the result is that the law behaves in a uniform, predictable manner. This is particularly important given the strong policy considerations that militate against exceptions to the axiom that ignorance of the law is no excuse. PART IV — NATURE OF RELIEF DESIRED 19. For all of the reasons the appellant respectfully requests that this Honourable Court allow the Appeal, set aside the decision of the Chambers Judge, and enter a conviction against the Respondent. All of which is respectfully submitted on August 19, 2019. 5 ‘Adrfénne Silk, LSN# 2010069 Department of Justice Government of Nunavut Ist Floor Sivummut Bldg. (#1107) P.O. Box 1000, Stn. 540 Iqaluit, NU XOA OHO Solicitor for the Appellant “© Reasons for Judgement, at TAB 6 of the Appeal Book, paras 139 ~ 140, ‘This document has been filed electronically in accordance with practice directive #18PART VI- TABLE OF AUTHORITIES AUTHORITY TAB Baffin Island Caribou Interim Management Order, Nunavat Gazette, 2014, Vol | 16 No 12 Wildlife Act, 8.Nu. 2003,c.26, s. 168 2 Ry. Shiner, 2007 NLCA 18 7 3 Criminal Code, RS.C., 1985, ¢. C-46, 8. 19 4 Rv. Pontes, [1995] 3 SCR. 44 e R v. Jorgensen, [1995] 4 SCR 55 e Lévis (City) v. 2629-4470 Québec ine., [2006] 1 SCR 420 7 Rv. Bédard, [2017] 1 SCR 89 3 Rv. Cancoil Thermal Corporation, 1986 CanLl 154 (ON CA), 9 ‘Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 64 OR. Gd) | 1 417 Ry. Ralph (2002), 220 Nid. & PELR. 351 (NL. TD.) ul This document has been filed electronically in accordance with practice directive #18Appeal File No: 07-19-002-CAS In the Nunavut Court of Appeal IN THE MATTER OF: ‘Her Majesty the Queen ‘Appellant -and- Michael Imgaut Respondent Factum of the Appellant This factum is filed by: Adrienne Silk, Counsel for the Appellant LSN Roll No: 2010069 Whose address for service is: Department of Justice, Government of Nunavut Ist Floor Sivummut Bldg (#1107) P.O. Box 1000, stn. 540, Iqaluit, NU XOA OHO This document has been filed electronically in accordance with practice directive #18