On April 21, 2020, a single judge of the Nunavut Court of Appeal released its decision in R. v Irngaut (2020 NUCA 04), a saga about an allegedly illegal caribou harvest. The Court held that the Government of Nunavut, the party who initiated the appeal, does not have standing to pursue the appeal.
The Court held that, absent legislative amendments to the Summary Conviction Procedures Act, appeals of territorial summary conviction offences in Nunavut are in the exclusive jurisdiction of the Attorney General of Canada (represented by the PPSC), or an individual who initiates the private prosecution in the lower court. Had the Government of Nunavut prosecuted the accused as agent for the wildlife officer who laid the information in the first place, then it would have had standing to appeal the trial judge’s decision.
While this appeal was specific to Nunavut, the relevant section of the Northwest Territories Summary Conviction Procedures Act contains identical language, suggesting that the Northwest Territories may be similarly limited in its ability to appeal territorial offences initiated in the same way.
In 2015, the accused was charged under the Wildlife Act with illegally harvesting a caribou during a territorially imposed moratorium on caribou harvesting in the Qikiqtaaluk Region of Nunavut. The Public Prosecution Service of Canada (PPSC), pursued conviction at the trial level
The trial judge accepted the accused’s evidence that he was advised by an elder at the Igloolik Hunter and Trappers’ Association, prior to harvesting the caribou, that the moratorium had been lifted. The trial judge stayed the conviction stating that the accused had acted under officially induced error.
The Government of Nunavut was not a party to the prosecution on the court record in the trial court. However, the Government of Nunavut appealed the trial decision on the grounds that the judge erred in applying the defence of officially induced error.
Counsel for the accused argued that the Government of Nunavut was not a party to the proceeding and did not have standing to appeal the trial court’s decision.
The Nunavut Court of Appeal focused on the language in the Summary Conviction Procedures Act, which imports the procedural rules from the Criminal Code rather than creating Nunavut-specific rules and procedures for territorial summary charges. As a result of importing Criminal Code procedure, coupled with the fact that the Summary Conviction Procedures Act is silent with respect to appeals, the Criminal Code is the governing authority on summary conviction appeals. Section 813 of the Criminal Code states that only the informant (a private prosecutor) or the Attorney General has the authority to appeal summary conviction offences.
The Criminal Code defines the Attorney General as the Attorney General of Canada thus, excluding the Government of Nunavut from appealing summary conviction offences.
While the Summary Conviction Procedures Act states that the Criminal Code only applies to territorial summary convictions “with such modifications as the circumstances require”, in the Court’s view, that phrase “cannot envision a re-writing of the statute” to allow Attorney General of Canada to be read as Attorney General of Nunavut, even though the Court acknowledged that Nunavut had the legislative authority to create the offence to begin with.
While this prosecution originated in Nunavut, this may be a cautionary tale for the Northwest Territories as their territorial summary conviction legislation is identically worded, implying that the Government of the Northwest Territories could encounter a similar hurdle in obtaining standing in summary conviction offences where the territorial government did not originate the proceedings by way of private prosecution.
Stefanie is an associate in the Yellowknife office with a practice focused on labour and employment, civil litigation and child protection law.
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