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Fisheries officers blasted over narwhal case

Judge says officials employed "deliberate misuse of regulatory power"

GREG YOUNGER-LEWIS

Federal fisheries officers had no legal right to call three accused poachers in Taloyoak and demand they hand over their narwhal tusks, a Nunavut court judged has ruled.

Justice Robert Kilpatrick recently dealt a huge blow to the Crown's case against three hunters from the Kitikmeot community, where a controversial hunt of a nearby pod of narwhal took place nearly three years ago.

The hunters were charged under marine mammals regulations in the federal Fisheries Act. Together, they face a potential fine of $900,000. Prison terms are not permitted on a first offence.

Kilpatrick ruled on July 21 that he wouldn't admit the three narwhal tusks or the written and verbal confessions from the three men as evidence in their trial, because he believed the officers had violated the hunters' rights under the Charter of Rights and Freedoms to not incriminate themselves.

The judge also rejected the Crown's suggestions that the men came voluntarily to the office, in turn making these key pieces of evidence inadmissable.

Kilpatrick wrote in his voir dire judgement that the two investigating officers, Les Sanderson and John McCotter, employed a "deliberate misuse of regulatory power of inspection" when they phoned the three men, Saul Kooktoook, Kokiak Peetooloot and David Tucktoo, a handicapped elder.

According to the judgement, a local wildlife officer's wife was listening to local radio when she heard callers identify the men in an on-going illegal hunt of the narwhal, when their pod swam nearby on Sept. 5, 2001. Several narwhal were killed by hunters without tags.

The investigating officers knew that the radio report amounted to rumours, and wouldn't justify a warrant needed to search the homes of the accused poachers, Kilpatrick wrote.

Instead, the officers called the three men down to the wildlife office with the harvested tusks. The judge ruled they crossed the legal line when they failed to tell them that they were under no obligation to do so.

In each case, the officers took written confessions from the three men after they came down to the office and handed over the tusks.

Kilpatrick chastised the officers for not recording their phone conversation with the three accused men, calling the absence of a "clear record... very troubling."

Kilpatrick particularly criticized the officers' written summary of his phone conversation with Tucktoo, the elder who reportedly told the officer that he had been "defending his rights against government interference for longer than [the officer] had lived."

Kilpatrick also questioned the officers' handling of Tucktoo, who usually speaks Innuinaqtun. Although the elder's English skills were obviously weak, the officers read his charter rights to him in English.

One officer provided a plain-language explanation of the laws when Tucktoo indicated he was having a hard time understanding the technical jargon of the charter.

"Where an accused's level of fluency or comprehension in English is low, every effort should be made to accommodate the citizen's obvious language needs," Kilpatrick wrote, adding that an interpreter should be provided, even if the accused doesn't ask for one, if communication in one language seems compromised.

Although the judge said the officers should have made more effort to provide a translator, language issues did not affect his judgement.

The trial will continue on Oct. 6 in Taloyoak.

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