R. v. Kooktook (S.) et al., 2006 NUCA 3

• Judge: Vertes, J.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: March 16, 2006
• Jurisdiction: Nunavut
• Citations: 2006 NUCA 3;(2006), 391 A.R. 1 (CA)

R. v. Kooktook (S.) (2006), 391 A.R. 1 (CA);

      377 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MY.134

Her Majesty the Queen (appellant) v. Saul Kooktook, Kokiak Peetooloot and David Tucktoo (respondents)

(25-04-0008CAS; 2006 NUCA 3)

Indexed As: R. v. Kooktook (S.) et al.

Nunavut Court of Appeal

Vertes, J.A.

May 5, 2006.

Summary:

The accused were charged with three offences contrary to the Marine Mammal Regulations made pursuant to the Fisheries Act: (1) fishing for narwhal without a licence; (2) killing a narwhal and failing to forthwith affix the licence under the authority of which it was killed; and (3) possession of a narwhal tusk without the licence under the authority of which the narwhal was taken being attached to it. A voir dire was held to determine the admissibility of statements made by the accused and the admissibility of three narwhal tusks seized from the accused by fishery officers. The trial judge ruled that the Crown had failed to prove the voluntariness of the statements made by the accused and that the seizure of the narwhal tusks violated the accused's rights against self-incrimination under s. 7 of the Charter. The trial judge excluded the tusks from evidence pursuant to s. 24(2) of the Charter. The accused's statements were also excluded. The Crown did not call further evidence and the trial judge dismissed the charges. The Crown appealed.

The Nunavut Court of Appeal, per Vertes, J.A., dismissed the appeal.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - Fishery officers were informed that three narwhals had been taken in excess of the annual quota for the community of Taloyoak and that each of the three accused was suspected of having taken a narwhal - The fishery officers telephoned the accused and asked them to come to the wildlife office and bring their narwhal tusks - The accused did so - The tusks did not have tags affixed to them and were seized - The accused were charged with offences contrary to the Marine Mammal Regulations - The trial judge held that the fishery officers were not engaged in the exercise of a statutory right of inspection when they made the demand for production of the tusks, but rather were engaged in a quasi-criminal investigation - The demand therefore violated the accused's s. 7 Charter rights against self-incrimination - The trial judge excluded the narwhal tusks under s. 24(2) of the Charter where the breach was serious and deliberate - In considering the effect that admission of the evidence would have on the administration of justice, the trial judge stated that there was a public interest in ensuring that the principles of fundamental justice were observed in areas that affected the Inuit's constitutionally protected right to harvest Narwhal - The Nunavut Court of Appeal, per Vertes, J.A., dismissed an appeal - See paragraphs 43 to 113.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3160 and Criminal Law - Topic 5338 ].

Civil Rights - Topic 8380.31

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Directions from the court - The accused were charged with offences contrary to the Marine Mammal Regulations - The trial judge ruled that the Crown had failed to prove the voluntariness of statements made by the accused to fishery officers and that the seizure of narwhal tusks from the accused violated their rights against self-incrimination under s. 7 of the Charter - The tusks and the statements were ruled inadmissible and the charges were dismissed - The Crown appealed - The Nunavut Court of Appeal, per Vertes, J.A., dismissed the appeal - As a remedy for the Charter breach, the accused had sought directions from the court to state authorities as to how they should conduct investigations in Nunavut in criminal and regulatory matters - However, the court held that it would not be appropriate for it to issue broad and general directions - There was no evidence of a wide-spread systemic problem - The case did not touch on a broad social issue or government policy - The concerns that were raised were addressed in the case and the court assumed that the relevant officials would take notice and amend their practices accordingly - See paragraph 144.

Criminal Law - Topic 5338

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - Fishery officers were informed that three narwhals had been taken in excess of the annual quota for the community of Taloyoak and that each of the three accused was suspected of having taken a narwhal - The fishery officers telephoned the accused and asked them to come to the wildlife office and bring their narwhal tusks - The accused did so - The tusks did not have tags affixed to them and were seized - Two of the accused also made formal statements - The accused were charged with offences contrary to the Marine Mammal Regulations - The trial judge held that the fishery officers' demand for production of the tusks violated the accused's s. 7 Charter rights against self-incrimination - The trial judge excluded the narwhal tusks under s. 24(2) of the Charter - The trial judge also excluded the statements made by the accused on the basis that they were tainted by what had happened before (the compelled attendance at the wildlife office and production of the tusks) and the Crown had therefore failed to prove voluntariness - The Nunavut Court of Appeal, per Vertes, J.A., dismissed an appeal - Although the court held that the analysis regarding the admissibility of the accused's statements should have been done under the framework of s. 24(2) of the Charter, it held that the conclusion would have been the same - See paragraphs 114 to 138.

Fish and Game - Topic 167

Fisheries - Regulation - Requirement to keep records and provide information - Section 61(1)(a) of the Fisheries Act provided that "The following persons may be required under this Act to provide information or to keep records, books of account or other documents: (a) any person who engages in fishing" - The accused argued that the use of the word "engages" in s. 61(1)(a) connoted the active sense so that, for a fishery officer to exercise any power under that section, the person in question had to be actively in the act of fishing - The Nunavut Court of Appeal, per Vertes, J.A., rejected the interpretation - The section encompassed people who were at present or had been fishing - See paragraph 64.

Fish and Game - Topic 167

Fisheries - Regulation - Requirement to keep records and provide information - Fishery officers were informed that three narwhals had been taken in excess of the annual quota for the community of Taloyoak and that each of the three accused was suspected of having taken a narwhal - Fishery officers telephoned the accused and asked them to come to the wildlife office and bring their narwhal tusks - The accused did so - The tusks did not have tags affixed to them and were seized - The accused were charged with offences contrary to the Marine Mammal Regulations - The Crown argued that s. 61(3) of the Fisheries Act required the accused to keep "records" - In this case, the Crown submitted that those records were the tags that had to be affixed to any killed narwhal or narwhal tusk - The Nunavut Court of Appeal, per Vertes, J.A., rejected the argument - The "records" contemplated by s. 61(3) were such as might be required by the regulations or licence - But that was not what the officers demanded to see - They demanded the tusks - See paragraphs 65 to 66.

Fish and Game - Topic 5621

Enforcement - Inspection - General - Fishery officers were informed that three narwhals had been taken in excess of the annual quota for the community of Taloyoak and that each of the three accused was suspected of having taken a narwhal - Fishery officers telephoned the accused and asked them to come to the wildlife office and bring their narwhal tusks - At issue was whether the fishery officers were engaged in a regulatory inspection authorized by the Fisheries Act - The Nunavut Court of Appeal, per Vertes, J.A., held that s. 49(1) of the Act, which empowered fishery officers to "enter and inspect" any place, did not apply to the telephone demands made by the fishery officers - Section 49(1) necessarily contemplated a physical inspection by actually going into some place - That could not be done over the telephone - See paragraphs 61 to 62.

Fish and Game - Topic 5642

Enforcement - Searches - Inspection v. search - [See Civil Rights - Topic 3160 ].

Practice - Topic 7355

Costs - Costs in criminal proceedings - Payable by Crown - Appeals - The accused were charged with offences contrary to the Marine Mammal Regulations - The trial judge ruled that the Crown had failed to prove the voluntariness of the statements made by the accused to fishery officers and that the seizure of narwhal tusks from the accused violated their rights against self-incrimination under s. 7 of the Charter - The tusks and the statements were ruled inadmissible and the charges were dismissed - The Crown appealed - The Nunavut Court of Appeal, per Vertes, J.A., dismissed the appeal - The court also denied the accused's request for solicitor-client costs against the Crown pursuant to s. 826 of the Criminal Code - The accused had argued that costs should be awarded because: (a) the appeal was unmeritorious; (b) the prosecution and appeal had stretched out over five years; and (c) the appeal was important to the people of Nunavut - However, this was not an exceptional case that justified a costs order - The court could not say that the appeal was unmeritorious - The case was not a "test" case having a wide social impact - The length of the proceedings could have been due to a multitude of factors - See paragraphs 140 to 143.

Practice - Topic 7461

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Appeals where no arguable question raised - [See Practice - Topic 7355 ].

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - [See Practice - Topic 7355 ].

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - [See Practice - Topic 7355 ].

Cases Noticed:

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1; 102 C.C.C.(3d) 144; 129 D.L.R.(4th) 129, dist. [para. 45].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241; 89 C.C.C.(3d) 353, refd to. [para. 48].

R. v. Crompton Co. (2005), 203 O.A.C. 137; 78 O.R.(3d) 135 (C.A.), refd to. [para. 62].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 169 C.C.C.(3d) 1; 6 C.R.(6th) 23; 219 D.L.R.(4th) 233; [2003] 3 W.W.R. 197; 8 Alta. L.R.(4th) 1; 2002 CarswellAlta 1440; 2002 SCC 73, consd. [para. 78].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 21 C.R.(6th) 1; 2004 SCC 52, refd to. [para. 96].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 98].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 98].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 101].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 174 C.C.C.(3d) 97; 2003 SCC 30, refd to. [para. 103].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481; 16 C.R.(4th) 273, refd to. [para. 106].

R. v. Oickle (R.F.), [2000] 3 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 115].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48; 26 C.R.(4th) 119; 109 D.L.R.(4th) 140; 86 C.C.C.(3d) 289; 19 C.R.R.(2d) 156, refd to. [para. 118].

R. v. Haniliak, [1985] N.W.T.R. 352 (N.W.T.S.C.), refd to. [para. 130].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289; 33 C.R.(4th) 1; 6 M.V.R.(3d) 1; 118 D.L.R.(4th) 83; 19 O.R.(3d) 802; 1994 CarswellOnt 100, refd to. [para. 133].

R. v. Ouellette, [1980] 1 S.C.R. 568; 32 N.R. 361; 52 C.C.C.(2d) 336, refd to. [para. 140].

R. v. Gagnon (2000), 147 C.C.C.(3d) 184 (Que. C.A.), refd to. [para. 140].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 49(1) [para. 61]; sect. 61 [para. 63].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003), p. 8-105 [para. 120].

Counsel:

Alex Ikejiani, for the appellant;

Marvin Bloos, Q.C., for the respondent.

This appeal was heard on March 16, 2006, at Iqaluit, NU, before Vertes, J.A., of the Nunavut Court of Appeal, who delivered the following judgment on May 5, 2006.