Aug 17, 2018

R. v. Ippak, 2018 NUCA 3 - Summary

R v Ippak, 2018 NUCA 3 (CanLII)

An accused "was arbitrarily detained and unreasonably searched prior to his arrest, without being informed on detention of his right to retain and instruct counsel." (par. 1) The issue turned on whether the evidence these rights violations uncovered, 3.7 pounds of cannabis, should be excluded under s. 24(2) of the Canadian Charter of rights and freedoms.

In strong language, the Court of Appeal of Nunavut overturns with two sets of reasons the decision of the lower court not to exclude the evidence. The majority's reasons focus on Canadian law as classically applied, while the concurring reasons take a detour through Inuit law to try to reconcile the Canadian approach to it.

The facts in this case are in some way baffling. Indeed, "[t]he breaches in this matter were the result of a systemic and wholly unacceptable pattern of Charter violations by police" (par. 3). "[T]he police in Sanikiluaq frequently attend the airport to detain and ask individuals for permission to search their bags without reasonable and probable grounds for a search warrant or an arrest, and without instructing them of their right to counsel." (par. 10).

Under the Canadian legal lense, in considering that they were not bound by the lower court's decision (par. 25), Justices Wakeling and Schutz took into account that "[t]he compounding nature of the series of breaches that took place in this matter went unconsidered." (par. 22). The lower court's decision ignored the fact that the breaches were wilful, and routine (par. 23).

Looking at the three branches of the R. v. Grant, 2009 SCC 32, test, on the seriousness of the breaches, Justices Wakeling and Schutz held that police had no reasonable grounds nor any reasonable suspicion on which to found their actions (par. 30). Anonymous tips are a poor basis for detention: "On a more general level, the fact that police want to investigate an anonymous tip, does not automatically and legally mean the police can and should detain an individual. Nor does it give police a carte blanche on the manner in which they do so. Treating such detainees with civility, while knowingly breaching their rights, does not lessen the seriousness of the breaches or equate to good faith or fairness." (par. 32) Knowing that had no leg to stand on, they still knowingly went to breach the accused rights (par. 37). These breaches were also systemic in nature, as the police followed local protocol when brazenly acting as they did (par. 39). This favours exclusion of the evidence.

On the impact of the Charter breaches on the Charter-protected interests of the appellant, Justices Wakeling and Schutz found that it was significant. "A person in the appellant’s position has every expectation of being left alone unless lawful grounds exist for detention and search" (par. 46): this expectation was completely shattered. The failure to give him his rights to an attorney, under 10b) of the Charter, was also significant given the accused's position of vulnerability (par. 47). This favours exclusion of the evidence.

Finally, on the interest in the adjudication of the charges on the merits, Justices Wakeling and Schutz found that this third branch favoured admission of the evidence. Indeed, the cannabis is a reliable element, and central to the prosecution's case (par. 49). On the question of the seriousness of the charge, however, they qualify their finding. Though "trafficking is a serious offence", "the fact that an offence is serious is not to take on a disproportionate significance" (par. 50). Quoting R. v. Harrison, 2009 SCC 34, at par. 41, they remind us that "an assessment under s 24(2) is not to come down to “a contest between the misdeeds of the police and those of the accused. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s 24(2). We expect police to adhere to higher standards than alleged criminals.”" (par. 51)

Balancing the three branches, they resolutely find that the evidence should be excluded. Indeed:
"[53] The wilful disregard of the appellant’s ss 8, 9, and 10(b) Charter rights is not only unjustifiable on an individual basis, but in considering its systemic nature, squarely defines this matter as a serious breach of the most fundamental protections under the Charter. Criminality or addiction problems in the small hamlet of Sanikiluaq, or in any community in this country, cannot be solved by deliberately unlawful policing.
[54] To condone the serious nature of the Charter breaches in this matter which resulted in a significant intrusion on the appellant’s rights, would undermine society’s confidence in the justice system and damage the long-term reputation of the administration of justice. While the need for disassociation from police misconduct will not always trump the truth-seeking function of the criminal courts, the seriousness of the offence and the reliability of the impugned evidence do not outweigh the factors warranting exclusion in this matter. To reiterate Harrison at para 42: “the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.”"

Interestingly, Justice Berger wrote concurring reasons focusing on Inuit law. As he puts it, "[a] tension arises, however, between Inuit law and traditions and the protection of individual liberty through Charter remedies. In order to reconcile the two, I have concluded that Inuit law’s restorative justice approach, providing as it does an alternative form of justice, furnishes a just solution in the case at bar that is not inconsistent with Canadian legal principles." (par. 70). "It seems to me that aboriginal legal principles and perspectives on criminal law and on the application of the Charter must be taken into account in pursuit of the objective of mutually enriching and harmonizing Canadian and Indigenous legal orders." (par. 84)

He holds that "Nunavut and Sanikiluaq are not Charter free zones. The protections that are afforded to all Canadian citizens apply with full force and effect throughout the country." (par. 86) Justices Wakeling and Schutz agree (par. 3). This poses the problem of "[h]ow then to apply the Grant analysis in the case at bar without derogating from Charter imperatives while, at the same time, retaining a critical awareness of Indigenous legal principles." (par. 86).

Justice Berger makes a review of what Inuit law entails: par. 87-90. It focuses on the collective healing of ill individuals, and favours reintegration. He then turns the three branches of the Grant test, but while integrating to it "Inuit legal values" (par. 94).

On the seriousness of the breaches, while otherwise agreeing in effect with the majority, he makes the point that "[p]olice action on the facts of this case cannot be construed as equivalent to the interventions of elders with social authority within the Inuit community. It follows that the Canadian state actor, engaged in the enforcement of Canadian law cannot be said to be entitled to the same deference in the context of traditional Inuit maligait [things that have to be followed] or tirigusuusiit [things that have to be avoided]." (par. 95)

On the impact of the Charter breaches on the Charter-protected interests of the appellant, Justice Berger finds it to be even worse than the majority's description because of the comparison to Inuit law:
"[99] While the Charter provides common protection for all Canadians, there may be space within the aboriginal law perspective to consider the socio-cultural impact on the appellant by breaching his rights. My imperfect lens, focused as it is on the limited reading that I have done of the cited publications on aboriginal law, leads me to conclude that under Inuit law a wrongdoer such as the appellant would face much lower jeopardy and would almost certainly be reintegrated into the community as long as he welcomed counselling from elders and changed his behaviour. Instead, the appellant in this case whose recorded conviction will follow him for the rest of his life, was sentenced to a form of imprisonment (albeit in his own home). The breach of the appellant’s Charter-protected interests resulted in a significant differential negative effect on him flowing directly from the actions of officers of the State. The unlawful detention and search in this matter impacted the appellant’s liberty and privacy interests. The s 10(b) breach further infringed the appellant’s right to make a meaningful and informed choice about whether to speak to police and consent to a search of his baggage. Importantly, the recording of a conviction and the punishment that was imposed under Canadian law, operates directly in conflict with the objective of Inuit law to reintegrate the individual and preserve the community. The impact on the accused’s Charter-protected interests when considered in juxtaposition with Inuit law was profound."

Finally, on the interest in the adjudication of the charges on the merits, Justice Berger finds that "[t]he admission of the marihuana – the physical evidence of crime – is not a matter of concern (apart from forfeiture) to the Inuit legal system." (par. 102) Indeed, "Canadian society’s preoccupation with adjudication (read: conviction and sentencing) does not accord with Inuit culture’s principal focus on reintegration of the individual and preservation of the community." (par. 103)

On the overall balance, he finds that "when Canadian law is married to and reconciled with Inuit law and culture in the application of the Grant factors, both favour exclusion of the evidence." (par. 104)

The result of this case is welcome. It is worth grappling with Justice Berger's approach, however. It stands in parallel with the Canadian legalistic approach of the majority, ending in the same result, yet it remains in stark contrast. Forcing ourselves into this alternative way of thinking through legal issues can be useful to challenge our unspoken assumptions, and to recognise the unique position of the aboriginal peoples of Canada in our legal order.