Lawyers on a Nunavut court case argue that driving prohibitions for people found guilty of impaired driving violate the Charter rights of Inuit hunters in the territory by preventing them from operating vehicles on the land.
In Canada, people convicted of impaired driving on a first offence, face a mandatory driving ban of at least one year. That mandatory minimum prohibition increases to two years after a second offence, then three years after a third.
Lawyers in the potentially precedent-setting Charter challenge argued in the Nunavut Court of Justice on Friday that mandatory minimum driving bans breach Inuit rights by preventing Inuit hunters from going out on the land to harvest, a right that's also protected under the Nunavut Agreement.
In Nunavut, hunters often travel long distances by snowmobile, boat or ATV to harvest animals like caribou, whales, seals, fish, walrus and more.
The case focuses on three Inuit hunters who have all been charged with impaired driving while operating vehicles in town. In affidavits filed with the Nunavut Court of Justice, the three men describe how the practice of hunting connects them to their culture, provides their families and communities with food and also helps with rehabilitation.
Nunavut defence lawyer Patrick Smith said he wants "a clear answer for our clients" who hunt and face driving prohibitions.
He wants Inuit hunters specifically to be exempt from the ban for vehicles used for hunting outside of town limits.
Crown concedes Charter breach
Smith, along with his colleague Jocelyn Rempel, argued mandatory driving prohibitions violates the rights of Indigenous people under the Constitution Act and Sections 7, 12 and 15 of the Charter — related to rights of life, liberty and security, protection from cruel and unusual punishment and the right to equality.
"Every single community in Nunavut participates in one way or another in the hunt," Smith said. "It's inherent to the very fabric of Inuit values and society."
Smith noted that traditional hunting in Nunavut has evolved from using dog teams and qamutiik, or sleds and harpoons, to using rifles and motorized vehicles.
"The evolution does not invalidate the Inuit right to hunt. It has been a consistent practice since time immemorial, as far as Inuit culture," Smith said.
Smith also compared the proposed driving exemption to how court-ordered firearm bans are handled in Nunavut, which don't apply to guns when they're used for hunting.
Crown lawyer Emma Baasch admitted that prohibiting Inuit hunters from driving out on the land to hunt does violate their rights and conceded to the defence's Charter application.
When the Crown concedes that a right has been breached, the judge can decide to give Parliament one year to amend its current laws.
Smith and Rempel also suggested that if Justice Paul Bychok, who heard the case, does not decide to suspend the mandatory driving prohibition for one year, he can create an exemption category for hunters charged with impaired driving. In that case, hunters would have to prove they are Inuit, they are sustenance hunters and that hunting is essential to their Inuit culture.
Smith cautioned Bychok against dismissing the application, arguing that rights don't erode by blunt force, but "piece by piece."
"If a driving prohibition stops a client from going out twice, it's still a violation of their rights," he said.
Bychok said that at a future court appearance on Oct. 30, he will set a date to render his decision.