Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 35 - Evidence for May 1, 2013
OTTAWA, Wednesday, May 1, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-16, An Act to amend the Criminal Code (trafficking in contraband tobacco), met this day, at 4:16 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. We are meeting today to begin our consideration of Bill S-16, an Act to amend the Criminal Code (trafficking in contraband tobacco). To begin our deliberations, we are pleased to welcome back before the committee the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Minister Nicholson is accompanied by senior officials from the Department of Justice Canada: Carole Morency, Acting Director General and Senior General Counsel, Criminal Law Policy Section; and Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section.
Minister, please proceed.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much. I am here before this committee as you begin your review of Bill S-16, the tackling contraband tobacco act. I thank my colleague, Senator White, for his sponsorship of this bill in this chamber. The bill, as you may know, fulfills our government's 2011 election policy platform commitment to tackle the problem of trafficking in contraband tobacco by introducing legislation which would establish mandatory jail time for repeat offenders of trafficking in contraband tobacco.
As most of you are aware, there is no specific offence of trafficking in contraband tobacco in the Criminal Code. This bill creates a new offence of dealing with contraband tobacco in the code. Indeed, the bill prohibits the possession for the purpose of sale, offer for sale, the transportation, delivery or distribution of a tobacco product or raw leaf tobacco that is not packaged, unless it is stamped.
The offence cross-references the Excise Act, 2001 to ensure that the terms ``tobacco product,'' ``raw leaf tobacco,'' ``packaged'' and ``stamped'' have the same meanings as in section 2 of that act.
The penalty for a first offence would be up to six months of imprisonment on summary conviction and up to five years of imprisonment if prosecuted on indictment. Repeat offenders convicted of this new offence in cases involving 10,000 cigarettes or more, 10 kilograms or more of tobacco product, or 10 kilograms or more of raw leaf tobacco would be sentenced to a minimum of 90 days on a second conviction, a minimum of 180 days on third conviction, and a minimum of two years less a day on subsequent convictions.
The bill also amends the definition of ``Attorney General'' in the Criminal Code so as to give the Attorney General of Canada concurrent jurisdiction with the provinces to prosecute this new offence.
Overall, the proposals represent a tailored approach to the imposition of mandatory penalties for serious contraband tobacco activities. The bill proposes minimum penalties only in cases where certain aggravating factors are present.
The unlawful production, distribution and sale of cigarettes in Canada has reached unprecedented levels in recent years, creating challenges for public health officials, law enforcement, tax authorities, policymakers and the public. Contraband tobacco is a threat to the public safety of Canada, our communities and our economy. It fuels the growth of organized criminal networks, contributing to the increased availability of illegal drugs and guns in our communities.
We know that tobacco use leads most commonly to diseases affecting the heart, liver and lungs. What is particularly troubling is that young people are smoking more contraband tobacco in alarming numbers. Cheap prices, easy access and no age checks means youth, who should not be smoking at all, are having no trouble getting tobacco through the contraband market.
Criminals are selling contraband tobacco to teens and the proof is all over our schoolyards. In 2007, 2008 and 2009 a study was conducted on the proliferation of contraband tobacco at high schools in the provinces of Ontario and Quebec. Hundreds of sites were surveyed and the results were extremely worrisome. Nearly one third of the cigarettes found at Ontario high schools and over 40 per cent of those found at Quebec high schools were contraband products. I believe that one of the main reasons for the high smoking rates among the young is that contraband tobacco vendors and distributors do not bother to check for identification, making it easy for young people to purchase contraband tobacco. Contraband tobacco is cheaper than regular cigarettes, so they are more easily purchased by teenagers as well.
However, this bill is not meant just to discourage the smoking of contraband tobacco but also to address the more general problem that has become the trafficking in contraband tobacco. As you know, in addition to the introduction of this bill, the government is advancing its efforts to combat the trafficking and cross-border smuggling of contraband tobacco by establishing a 50-officer RCMP anti-contraband tobacco force. This anti-contraband tobacco force will target organized crime groups engaged in the production and distribution of contraband tobacco. Its goal is to have a measurable impact on reducing the contraband market and on combatting organized criminal networks. This will align with the RCMP's Contraband Tobacco Enforcement Strategy, which focuses on reducing the availability of and demand for contraband tobacco and the involvement of organized crime, and will build on existing federal enforcement measures.
As Bill S-16 proposes mandatory minimum penalties of imprisonment, let me take a moment to address considerations under section 12 of the Charter of Rights and Freedoms. This section provides that everyone has the right not to be subject to any cruel and unusual treatment or punishment. The section provides protection against punishment that is so excessive that it outrages our society's sense of decency. It would be no simple task to demonstrate a violation of section 12. The applicant must demonstrate that a particular provision inflicts punishment that is grossly disproportionate for the offence such that Canadians would find the punishment abhorrent or intolerable.
The minimum penalties of imprisonment proposed in Bill S-16 are put forward in order to address a phenomenon with significantly negative implications for the safety, health and economic well-being of Canadian society. They are narrowly tailored so as to apply only to repeat offenders of the new contraband tobacco offence created in the Criminal Code and in cases involving high volumes of contraband tobacco. They do not apply to instances of simple possession of contraband tobacco or to persons who have only been convicted of the Excise Act, 2001, offence of selling contraband tobacco.
These measures are reasonable, meaningful and a rational response to a serious problem that exists. I would submit, honourable senators, that the proposed mandatory penalties contained in this bill are reasonable. The Government of Canada recognizes that contraband tobacco smuggling is a serious problem. Canadians want to be protected from the violence associated with contraband tobacco smuggling operations and from organized crime that is also associated with this kind of activity.
Protecting society from criminals is a responsibility the government takes seriously. This bill is part of the government's continued commitment to take steps to protect Canadians and to make our streets and communities safer. Canadians want laws that impose penalties that properly reflect the serious nature of crimes such as trafficking in contraband tobacco. This bill is such a law, and I encourage you to support it.
The Chair: Thank you, Mr. Minister.
Senator Fraser: Welcome to the committee — your home away from home. I have several questions. I will try to get in as many as I can before the chair cuts me off.
First, the Excise Act contains quite severe provisions in respect of contraband tobacco, and this bill does not remove them. First, did you consider going the route of the Excise Act rather than the Criminal Code? Second, what happens if someone is charged twice? Is it likely or conceivable that someone would be charged twice, i.e., once under each act for the same offence?
Mr. Nicholson: When you put together proposed legislation, you consider the best options. Obviously, since some of these issues are contained in the Excise Act, that is always a consideration. What we are talking about here is not so much the collection of tax, which is the main focus of the Excise Act, but about criminal activity. I believe it was appropriate that there be a separate section within the Criminal Code to deal with the whole question of sale and distribution of contraband tobacco. The discretion as to where and how to charge individuals will be made on an individual basis. A person can be charged under both offences, but the conviction would be under either/or.
Senator Fraser: Proposed subsection 121.1(5) is where you refer to previous and subsequent offences. Elsewhere in the Criminal Code, almost everywhere, you get into this kind of consideration of a person's record. There is a time limit in there, and I believe it is usually 10 years. This bill has no time limit. Someone who is caught at the age of 18 and again at the age of 43 would still be liable under this. Why is that? Why would you not have built in some kind of time gap?
Mr. Nicholson: I did not see the necessity of building in timelines. If someone is convicted for the first time of dealing in contraband tobacco, there is not a mandatory minimum. The sentence would be as the courts deem appropriate. However, if an individual continues in the business and gets caught again a number of years later, the option will be for the prosecutors to proceed by indictment, in which case the mandatory penalties would kick in. There is always a space between crimes, but crimes are crimes.
Senator Fraser: What if one of the offences was very small? I appreciate the fact that when you are talking about large volumes, they truly are large volumes of tobacco; and I say that as a former smoker. One of the offences could be quite small, although it could still be contraband, so it seems that this might end up having perhaps unintentionally severe consequences.
Mr. Nicholson: If someone is convicted of a second, third or fourth offence of selling, distributing or dealing in more than 10 kilograms of tobacco or 1,000 cigarettes, then we are talking about small volumes. These people are often in the business of organized crime while trafficking in this kind of material.
The provision is that if it is your second, third, fourth or tenth conviction of this, it is large amounts and the Crown proceeds by indictment, I think the penalties are quite reasonable because this is a serious business.
Senator White: Thank you for being here, minister. I think for the public listening today there is a misunderstanding of what we are looking at. We are not looking at the 1980s and 1990s where legal tobacco was sold illegally. In fact, now we have illegal tobacco being sold illegally and the reality of what that entails.
This is an opportunity explain to the committee and to those watching that we are looking at organized crime and criminal organizations. You may want to touch on that a bit.
Mr. Nicholson: You made a very good point, senator. That is exactly what was taking place in the 1980s. Sometimes, as you say, legal tobacco was being shuffled in and out of the country to avoid the taxation that was in place. That is not what we are talking about for the most part here. We are talking about organized crime, and when I met with law enforcement agencies and other groups across this country, they were very clear about that. These are very often sophisticated operations.
Going back to the previous question from Senator Fraser, it is time and it is appropriate that this be included within the Criminal Code. That is where Canadians expect to see criminal activity. Again, when we considered all these, I had no hesitation in moving forward in this direction because we are dealing with sophisticated crime.
Many times the contraband tobacco is, in a sense, the currency for other illegal activity, be it drugs or guns. I have been told many times by law enforcement agencies they get caught up and are all part of this. The tobacco may be coming in for some other illegal product going out of the country. I think it was important for us to move in this direction and this is an appropriate response. I appreciate your leadership on this in this chamber.
Senator White: You have partially answered, but almost like Jeopardy I will answer with a question because I think we are also hearing that contraband tobacco is now being traded by the tonne for kilos of illegal tobacco, for cocaine and other drugs coming into the country. I want to applaud the formation of the extra officers and teams that will attack these.
I also think the misconception is that this is about a community that we are looking at; this has nothing to do with any community. We are trying to attack a problem and deal with organized crime in most efficient way possible. Would you agree?
Mr. Nicholson: That is exactly what we are doing. We are dealing with sophisticated criminals. From the information I have received in my discussions over the years, this is not some sort of one-off thing for people who get involved with this; in fact, this is organized crime.
Part of our challenge as members of Parliament is to continue to ensure that the Criminal Code reflects what is actually happening. I had this discussion with you, Senator White, and others a number of years ago on the business of car theft and sophisticated chop shop operations. The point made to me at that time was that the Criminal Code is not up to date enough to reflect what is happening out there. I had no hesitation in supporting new, updated legislation with respect to auto theft, but this is another example of what we are talking about. As you and I have both indicated in our comments, it is not just contraband tobacco. It is not just done in isolation. Many times this is caught up with other illegal activities such as firearms and drugs, to mention a couple.
[Translation]
Senator Rivest: Mr. Minister, once again, we have a bill that brings back the idea of minimum sentences, even though it is not directly the object of the bill.
Since you are honouring us with your presence here, I would like to ask about the whole series of bills and initiatives in recent years that have imposed minimum sentences without parliamentarians being able to evaluate them. Of course, each of the sentences that you have proposed has been done with insight and reason, and seeks a balance in the Criminal Code, but there are a number of provisions in the Criminal Code that impose minimum sentences. We are never able to assess them relatively. Why two years, compared to another crime?
Do you not think that your department should consider publishing a study analyzing those minimum sentences in terms of the offences? We do not know why you impose such and such a penalty for such and such an offence. Parliamentarians would find that useful.
As for the very idea of minimum sentences, about ten years ago, the Minister of Justice published a study on the specific idea of minimum sentences and their effectiveness. Given that you are going to the practice of minimum sentences very frequently, do you not think that it would be in the public interest to publish and analysis of the effectiveness and appropriateness of minimum sentences?
[English]
Mr. Nicholson: I am sometimes asked about this, and there are dozens of Criminal Code provisions that have mandatory sentencing. I suppose the biggest one is on first-degree murder. There is a 25-year mandatory minimum before the individual becomes eligible for parole. That being said, I believe it is part and parcel of our responsibility as legislators to set guidelines.
I remember about 20 years ago, as a parliamentary secretary to the Minister of Justice, a colleague said, ``Why are you putting a maximum of five years in this new Criminal Code provision; why not make it 10? Let the judge decide. Why are you doing this?'' I told him at the time that it is our responsibility. We have guidelines to try to make the Criminal Code provisions line up with other provisions and so, yes, five years may seem too low for some individuals as a maximum. This individual wanted 10 or perhaps even more.
At the other end, sometimes we do that as well. We give guidelines to the courts in terms of minimum provisions. Our job as legislators, when we enact legislation, is to send out a message that this kind of activity is taken very seriously in country, that it is wrong to get involved with this kind of activity, and that there can and should be serious consequences.
As you may have heard in my opening remarks, I gave a rather detailed discussion with respect to the constitutionality of these. If you look at them, these are relatively small mandatory sentences. We leave that discretion to the court, but I believe we have a responsibility as legislators to give those guidelines to the courts, sometimes on maximums and minimums.
In answer to your question, we look at other criminal activity within the department and say, where does this line up in terms of the seriousness and difficulties associated with it? We try to make them so they can all stand on their own, yet compare favourably to other serious sections in the Criminal Code. That is the challenge we have as legislators. With the advice I have been given and the initiatives we have taken, I think we have done a good job of that.
Senator McIntyre: Thank you, Mr. Minister, for your presentation. I note that the same day this bill was introduced, March 5, 2013, the Minister of Health and the Minister of Public Safety announced strategies to combat the trafficking and cross-border smuggling of contraband tobacco, both of which involve organized crime. I assume the reason for such strategies is rather clear. First, as I understand, the Excise Act is not effective enough to deal with the current situation and that stronger legislation such as Bill S-16 will help address this issue.
On top of that, trafficking and cross-border smuggling of contraband tobacco, as you have indicated, are often associated with other serious organized crime activities such as weapons and illegal drug trafficking. Am I correct in my assumption?
Mr. Nicholson: I think you are correct on both counts, senator.
You introduced a good point in terms of the announcement we made. Yes, it is appropriate that the Minister of Public Safety and the Minister of Health be involved with this. You may be hearing from Public Safety Canada with respect to the efforts that the RCMP are making and will continue to make with the implementation of this proposed legislation.
As I indicated briefly in my opening remarks, there are serious health considerations. We know that this is a major factor for cancer, respiratory diseases and heart disease. We are not talking about a simple product here but about something that poses a danger to people. You will remember my comments with respect to the proliferation of its use among young people in this country.
Yes, the government has moved in that direction. You will know of changes to the warning labels that were introduced over the last couple of years, the five-year renewal of the Federal Tobacco Control Strategy, and work on controlled initiatives to get the message out that this is not an activity where people want to get involved. The government banned little flavoured cigars that were targeting youth.
It is part of a comprehensive approach. I appreciate that when I am here we talk about one aspect of it, the Criminal Code. As alluded to by Senator White, there are provisions in part of this announcement with respect to the RCMP. In your discussions, you will get into that and into the health aspects. It is a comprehensive approach. This is one of them, but this is a very important one. I hope this bill will move expeditiously through the chamber.
Senator Baker: Minister, I have to congratulate you on the amount of proposed legislation you have introduced. You have set a record in Canada — probably throughout the Commonwealth.
Mr. Nicholson: Did they all have your support, senator, or most of them?
Senator Baker: As you say, Canadians should be able to read legislation and understand it. When I looked at this bill a moment ago, something stood out in clause 2(g), which states:
. . . either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them;
A normal person would take ``lawful deputy'' to mean a deputy minister or an assistant deputy minister. However, it does not mean that, because the French version says, ``. . . ou le substitut légitime de l'un ou l'autre.'' That means a legitimate substitute for each of them. It is not a deputy minister at all. In the English version it is clearly a deputy. You have to read the French version to know the truth, as you sometimes have to in legislation. Surely to goodness in drafting legislation we can say something like, ``any person acting on behalf of,'' which would fit there instead of ``deputy.'' An ordinary person would take ``deputy'' to mean the deputy minister or assistant deputy minister. It is an observation.
Mr. Nicholson: To be clear, the French and English versions are not meant to be translations of each other. They are to convey the same thought. Sometimes the wording and sentence construction are slightly different. They are not exactly translatable because they are drafted separately. I think that is appropriate in a bilingual nation.
The provision you are talking about indicates nothing more than there is concurrent jurisdiction between the federal attorney general and the provincial attorneys general for the prosecution of these offences. Prosecution under the Excise Act has been the responsibility of the federal government under the Criminal Code. Provincial attorneys general generally have the responsibility for that, but we want to ensure concurrent jurisdiction in this area, which underscores the importance we place on it.
While you made the point that we want our legislation to be clear, it is clear in this bill that if you get into the contraband tobacco business and sell and distribute large quantities of it, there will be serious consequences. Whether you are prosecuted by representatives of a provincial attorney general or of the federal attorney general might become a moot point because we just want to get the message out that this kind of activity is not to be tolerated.
Senator Baker: Do we take it to mean, when referring to the cabinet ministers, that ``lawful deputy'' does not refer to the deputy minister or the assistant or associate deputy minister? You have introduced the bill, so you have to give your interpretation of it. What does it mean?
Mr. Nicholson: My interpretation is that ``deputy'' means the agent of either a federal or provincial attorney general.
[Translation]
Senator Boisvenu: Mr. Minister, thank you for your presentation and congratulations on this bill.
One of my concerns with the bill, aside from smuggling, of course, is health. Statistics about tobacco use are troubling, especially with young people. In ``secondaire 1,'' the equivalent of grade 8, seven per cent of students are smoking illegal cigarettes and in ``secondaire 5,'' that figure is 40 per cent.
The Americans did a major study on the 17 metals in cigarettes. They compared legal and illegal cigarettes. With arsenic, mercury, lead, molybdenum and antimony, which are cancer-causing agents, especially in the liver and the kidneys, there is ten times more of those substances in illegal cigarettes. With tar, there is 160 per cent more; with nicotine, there is 80 per cent more; with carbon monoxide, there is 133 per cent more.
Would it not have been possible in this bill to have declared those cigarettes as hazardous and toxic substances and to have gone with harsher sentences? We are not just dealing with a trade in illegal cigarettes; we are dealing with a trade in toxic and hazardous products. In terms of the age of consumption, the people who stop smoking are not the young people; they are the baby-boomers who want to live longer. The increase in tobacco use among young people is a concern.
[English]
Mr. Nicholson: You make a good point about the health risks of tobacco. I am told that tobacco smoke contains over 4,000 chemicals, 70 of which are known to initiate or promote some type of cancer. We are dealing with a very serious product. As I indicated in my opening remarks, it is easier for young people to get hold of these cigarettes because they are not subject to the usual restrictions that apply when buying legal tobacco in a corner store.
We give discretion to the courts. I am very pleased any time someone recommends that we get tougher in these areas, and certainly I appreciate that. There is considerable discretion in the bill as presented to Parliament. A court will decide the seriousness of the particular offence and the role of the individual in moving and distributing contraband tobacco. I have confidence in the judicial system that under the guidelines presented in this bill appropriate action will be taken. This is a step in the right direction.
In answer to the earlier question, the Excise Act, for the most part, talks about the collection of federal taxes. Its original purpose was to ensure that the federal government received its taxes. In this bill, we are talking about, as you indicated, a serious health serious and about criminal activity. I have no hesitation in saying that this is criminal activity and should be in the Criminal Code. I have no hesitation in the implementation of the mandatory sentences that are a part of this, and we give discretion to the courts.
As you said, this is not simply a question of moving some type of illegal product in and out of the country but about a product that causes serious health issues. We have known about this for nearly 50 years. The proof has been out there.
The efforts we make with the Federal Tobacco Control Strategy, what Health Canada is doing, the warnings we are making, the work done at the provincial and municipal levels with respect to getting out information about cigarette smoking, are very important. This is just one more component of the efforts we must make to address this very serious problem. Thank you for your comments.
Senator Jaffer: Thank you once again for being here with us, minister.
I heard you very clearly that we have to deal with these serious issues, but there is also the issue of prevention. Some commentators have said that one way to resolve the issue of contraband is to have agreements with the Quebec and Ontario governments and American governments. What do you think of that suggestion and are efforts being made? We know part of all of this is that you do not always catch the big gang people; you also have to have prevention. What are we doing in that area?
Mr. Nicholson: You make a good point because the problem is not just exclusive to the federal government or within the federal jurisdiction. In my briefings and my research into this area, I am encouraged by fact that there are new laws on board in both Ontario and Quebec that deal with this area.
In my answer to Senator Boisvenu, I pointed out that I know there are extensive education initiatives taken by all provinces to get the message out, particularly into schools and other places about the dangers of that. I know there is ongoing cooperation with American officials. I have heard this over the years. Indeed, on some of the issues with respect to the sale of legal tobacco that was being moved in and out of the country, I know there was cooperation with American officials in terms of prosecution because the sharing of the information is absolutely essential.
You may address that question to those representing Public Safety in the next day or two in terms of the policing. However, I know from the briefings that I have had over the years that there remains a very good relationship with the United States in terms of cooperating. There was cooperation on many of those charges that related to the issues of legal tobacco coming into this country, and it will continue.
Senator Jaffer: Is there a formal agreement?
Mr. Nicholson: As with all criminal investigations, it usually involves the sharing of information with respect to criminal activity being tipped off. We have had a good working relationship with the United States, Great Britain, Australia and a number of other countries, and it has worked very well because we all face the shame challenges. That is one of the things impressed upon me in my role as Justice Minister and Attorney General; these are not exclusive to one country or another. We are all in this. To the extent we do cooperate — and I am pleased at the level of cooperation that exists between all these countries — we are all better off.
Senator Batters: Thank you for appearing before us today on this important issue. You have touched on this, but I am wondering if you could outline a little further the scope of the contraband tobacco problem in Canada.
Mr. Nicholson: It is considerable. Even just in the years I have been Justice Minister and Attorney General, and as some of your colleagues will know from my discussions with them over the years, there has been an increase in this kind of activity. This is the information that has been given to me. I noted in my opening remarks the amount of illegal tobacco that shows up discarded on high schools. When I get together with my provincial attorneys general and territorial attorneys general, they make the point that this is an ongoing issue.
Going back to what I said to Senator Jaffer, these problems are not exclusive to one country or the other. It does not matter what you are talking about. If you are talking about car theft, guns and drugs, you will find that these crimes do not respect or pay attention to boundaries. Sometimes they believe this presents them with an opportunity to move an illegal product into another jurisdiction. It underlines what I said in terms of the necessity for cooperation, but they tell me this is becoming a greater problem and that there is more of it. You can ask Senator White, your chairman, about the huge problem the provinces of Ontario or Quebec find regarding the movement of this type of product in and out of the country. It is a big problem and a growing one.
Everything I have heard over the last six and a half years as Justice Minister is consistent with the fact that it is getting worse. As I indicated in my opening remarks, I had no hesitation in coming forward with legislation to directly deal with that. I was very pleased that this was specifically mentioned in the 2011 election platform that we ran on.
Senator Joyal: Mr. Minister, this is in relation with the interpretation of proposed subsection 121.1(5), which is the paragraph dealing with subsequent offences. It seems, from those who will have to look into the act for its implementation, that they would consider a previous or former offence under the Excise Tax Act or the Criminal Code related to tobacco smuggling or trafficking as a previous offence that would trigger the minimum penalty. Are they right, or may I ask you the same question differently? Is it specifically under those sections that the previous offence must be —
Mr. Nicholson: Thank you for raising that, senator. It is good that we are clear.
First of all, this applies only to offences that go forward after the implementation of this bill.
Second, it does not apply to offences under the Excise Act. If charges are laid under the federal Excise Act, that is not we are talking about here. This is strictly with respect to the Criminal Code provisions that are ongoing after the implementation of the proclamation of this particular legislation.
Senator Joyal: This bill, in my opinion, is a major change in terms of policy regarding Aboriginal reserves that are more or less targeted by this legislation — which are of course Akwesasne and Kahnawake — where we know there is illegal contraband tobacco. According to the Excise Tax Act, only the RCMP are charged with the implementation of the act but with this act, any police forces — the RCMP, provincial police, municipal police or even Aboriginal police — would be charged with the implementation of this bill. Am I right in stating that the first police group targeted by this act, or that would have to implement this act, would be the Aboriginal police forces on Aboriginal reserves?
Mr. Nicholson: Again, you would have to ask those involved with policing, senator. I would say to you that I did not agree with the lead-up to the question; but, yes, if provincial, municipal or Aboriginal police forces come across evidence that a crime has been committed within the parameters of the legislation, they can lay the charge, as they do with all Criminal Code offences.
This will be treated like all other Criminal Code offences and, as you indicated, municipal, regional, provincial police forces would have jurisdiction to lay these charges.
[Translation]
Senator Dagenais: Mr. Minster, thank you very much for this bill. My question really is not a question, but I want to make this comment to you. I am sure that people in health care are very happy, and that people who have businesses, especially near First Nations' reserves are going to be happy.
We know there is a trade in cigarettes, and, having worked on the Kanesatake and Akwasasne for more than two years, I can tell you in all modesty that I have seen it. We counted on police officers' support to patrol those areas; at Kanesatake, it is always the Sûreté du Québec.
Have people in those areas come forward to support, not necessarily this bill, but the police? It is often difficult for police forces not to have the support of First Nations police and of the First Nations communities, because the damage is often being done in those communities.
[English]
Mr. Nicholson: It is not directed at any particular group or area. It has widespread neutral implications in the sense that it goes after organized crime wherever it exists. One thing unites Canadians wherever they are: No one is interested in and no one supports the idea of organized crime taking over their communities. Those tools put in place to attack organized crime will be welcomed by everyone in the country.
Senator Frum: My question is very much along the same lines, so it is repetitive. We know we will be hearing shortly from members of the Aboriginal justice communities who feel that this law will disproportionately affect their youth. I want you to comment on that.
Mr. Nicholson: There are huge health problems for young people who use and get involved with cigarettes. I am not the Minister of Health and I do not have a medical degree, but they tell me that the addiction to tobacco is very difficult to kick. We have known for decades about the serious health consequences associated with cigarette smoking. I agree with all those who say that young people are worried and should be worried about this because their health is important to everyone — their families, their communities and themselves. This is part of a comprehensive approach by the government to get the message out that this kind of activity will not be tolerated and that we want to do everything possible to help people stay away from this product.
The Chair: Thank you, Mr. Minister. We appreciate your appearance here today.
I have introduced the officials who remain with us until 5:45. We will begin questioning with Senator Fraser, deputy chair of the committee.
Senator Fraser: For the record, going back to my earlier question about subsequent offences, I would like to note that for the purposes of determining whether there has been a subsequent offence, the first offence can be comparatively minor because it can be by way of summary conviction; so it is not only for people who deal in lots of 10,000 cigarettes or more, which I agree is a problem.
You will understand why my mind has gone back to those hours and hours we spent on the drug bill. Mr. Saint- Denis sat through all those hours of repeated studies of that legislation.
I am looking at the proposed section 121.1. I do not have the bill or the Criminal Code before me, but it strikes me that the definition of the offence — no person shall sell, offer for sale, transport, deliver, distribute or have in their possession for the purpose of sale — sounds a lot like trafficking. Why did we not use the word ``trafficking''? The element of trafficking that has always given me pause is the fact that it includes giving or even offering to give. If we are going to crack down on people who go after the youth market, why are we not including giving, because giving a cigarette or carton of cigarettes is a great way to get people hooked?
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Justice Canada: You are right in saying that it looks very much like the definition of ``trafficking'' in the Controlled Drugs and Substances Act. However, there is no definition of ``trafficking'' in the Criminal Code that I am aware of.
Senator Fraser: You would have had to put it in.
Mr. Saint-Denis: Yes. There are elements of the definition of ``trafficking'' in the CDSA that have no application. Amongst other things, for instance, it talks about administering. You can administer a drug but you do not really administer a cigarette.
The issue of giving was also something that we thought about and decided to exclude largely because this is aimed at organized crime. It talks about largish amounts of cigarettes, so we did not want to get into the business of targeting individuals who would give contraband tobacco to someone else. For that reason, we did not include ``give.'' As I said, we did not simply take the definition from the CDSA and put it in the bill because there were elements of it that did not really wash.
Senator Fraser: My question has to do with the fact that the mandatory minimums are graduated. I am not a fan of mandatory minimums, but if you are going to have them, bringing them to bear on a graduated basis according to the number of offences strikes me as an interesting way to go.
Is there a reason the specific terms of 90 days for second offence, 180 days for the third offence and two years less a day for the fourth offence were chosen?
Mr. Saint-Denis: The question was asked of the minister earlier by, I believe, Senator Rivest. He asked how we determined what minimum penalties will apply. It is not a science. One factor that imposes a criterion is the maximum penalty. We can impose, for instance, a minimum of four years on an offence that is punishable by a maximum of five years. We tried to come up with minimum penalties that fit into the maximum penalty that was here. If we were going to have a graduated scheme, we could not start with a minimum of one year and then go to two years. We attempted to come up with a scheme that made some kind of sense in terms of a graduated scheme that was reasonable. We still have to bear the Charter in mind, so we thought this approach was conducive to that.
Senator Fraser: However, you were not just taking a grille that exists somewhere else and inserting it here?
Mr. Saint-Denis: No.
The Chair: Was there any consideration of the maximum of up to five years less a day that has implications in terms of costs to the system?
Mr. Saint-Denis: It does. We were also guided by the existence of the offence in the Excise Act, 2001, where the maximum penalty on indictment is five years. To a certain extent, we wanted to have a parallel with that so we did not go forward with five years less a day. We did consider that, but thought we would more or less match, in terms of penalties, what is there for the indictable side.
The Chair: You are familiar with the economics of policing initiative, are you?
Mr. Saint-Denis: I am not.
The Chair: I just wondered how that would conform with it.
Senator White: My question focuses on proceeds of crime. People convicted under this new legislation, should it pass, could also be charged and convicted under proceeds of crime legislation. If so, could their assets be processed in the same way through seized property as they are through the criminal trafficking of drugs, for example?
Mr. Saint-Denis: In fact, the offence I think you have in mind is the possession of proceeds offence.
Senator White: Yes.
Mr. Saint-Denis: Yes, that would be caught because this is an indictable offence. The proceeds provisions apply to designated offences that are, as far as the code is concerned, all of the indictable offences.
Senator White: That would allow us to attack what we could not attack in the past, the assets of criminal organizations, homes, boats, planes, trains and automobiles for argument's sake?
Mr. Saint-Denis: That is correct, on two bases. One is on the base of offence-related property. If we can demonstrate that the property was used to commit, on conviction we could go after that property. If we can demonstrate that some of the property belonging to the individual was derived from the commission of this offence, then, yes, we could after that as well.
Senator White: Some of the arguments, on border locations in particular, are that it is not uncommon for the equipment used by the offenders to be better prepared, better developed and more expensive equipment than being use by the police. We could reverse some of that trend as well by seizing those assets and, once convicted, selling them off.
Mr. Saint-Denis: That is correct.
Senator Baker: My major concern with this bill is that every day in Canada people are charged with bringing into Canada and transporting illegal tobacco. Huge jail terms are given out every single day. There are minimum fines in the Excise Tax Act for selling this sort of thing. In every province there is a provincial tobacco tax act — they call it different names — but under those, to sell illegal is an illegal act. In other words, trafficking is illegal and they get convicted every single day; huge jail terms in the provincial legislation in every province in Canada.
We have the provincial acts, the Excise Act, and as you mentioned it is Excise Act, 2001, because there are three of them. Then we have the Customs Act and now we the Criminal Code. There is such a thing in Canada as you cannot be charged with the same offence twice — double jeopardy, res judicata — and someone will have to make a decision, in the cases that follow, on what act? Is it provincial or the three federal acts that someone will be charged under? That, to me, suggests that you will have quite a problem in the courts if you are saying, okay, subsequent offences here, mandatory minimum. However, if the Excise Act was used for prosecution in the past, that does not apply. I do not know if the provincial act or the Customs Act applies, or convictions under that. In the courts, there would be a huge amount of confusion.
We come back to the original question that was put to the minister. Why was this not put in one of the existing acts, because the Excise Act contains the offence and far greater penalties than this proposes? Why was it not put in the Excise Act?
Mr. Saint-Denis: I think the minister answered that question, but with respect to the multiplicity of possible charges, these are not laid in an abstract condition; they are not laid in a vacuum. It is a case-by-case situation. If the individual is caught at the border, a customs offence may be laid. He may be charged a fine at the border for trying to bring in contraband tobacco. A criminal charge may not be laid against him.
If the provincial police that catch the individual, when this becomes a new offence in the code, they will have the option to lay either the new code offence or the applicable provincial legislation. They can lay both if they wish, and the prosecuting Crown will make a decision as to whether they wish to go with one or the other. At the end, you suggested you cannot be charged with both but you can be charged; you cannot be found guilty of both where the same fact situation exists.
That is largely based on the Supreme Court decision in Kienapple.
Senator Baker: Yes, if you are selling this, as this bill says, you are covered by the provincial act, by the Excise Tax Act, and now you are covered by the Criminal Code.
Mr. Saint-Denis: Except that —
Senator Baker: The person charged will wish that they were charged under one of the other acts for the same delict because they know if they are charged there they will not be charged over there. It would lead to confusion, I would say.
Mr. Saint-Denis: I am not sure. If fact, I respectfully do not agree, sir. If the individual is charged under, let us say, the code and the provincial legislation, they are different. One is for failure to perhaps pay the sales tax under the provincial legislation, and then here it would be —
Senator Baker: Under the fraud section.
Mr. Saint-Denis: That is correct. Here it would be for the offence of selling an unstamped tobacco product. They are actually two offences directed at two different things, and in that case I think it would be possible to be charged and convicted of both. As it happens now, it is possible for an individual to be charged both under provincial legislation and under the Excise Act, 2001, and they do get convicted for both because we have two separate offences dealing with different levels of government and different issues. It does happen.
Senator McIntyre: My understanding is that under both the Excise Act and the Criminal Code, prosecution will be handled by both federal and provincial Crown prosecutors. Is that correct?
Mr. Saint-Denis: At the same time or —
Senator McIntyre: Assume that the provincial Crown prosecutor decides not to go ahead with a charge, but the federal Crown prosecutor decides to go ahead, bearing in mind that there is sufficient evidence to proceed with the charge. In your opinion, could this type of procedure raise a constitutional challenge before the courts with the provincial Crown prosecutor deciding not to go ahead and the other deciding to go ahead with the charge?
Mr. Saint-Denis: I do not think so, sir. Right now we have that kind of possibility with provincial charges and the Excise Act, 2001 charges being laid. It is up to the Crown to decide with whether they wish to pursue or not, for one reason or another, and that would continue to be the case. It is quite conceivable that the provincial Crown chooses not to pursue the code offence, but that the federal prosecution believes that it is worth it.
[Translation]
Senator Joyal: As I read the new clause 121.1, it says that no person shall sell, offer for sale, transport, deliver, distribute or have in their possession for the purposes of sale tobacco products unless they are stamped.
Let us take this example. A kid, just like the ones we have heard so much about in the comments this afternoon, has two packs of cigarettes in his possession. He goes to a rave. My colleague Senator Baker likes to use situations like that as examples. He is with his friends. One of the friends asks, ``Do you have any cigarettes?'' He says yes, sells him a pack and is caught by the police who are watching for the other illicit drugs that can be found at a rave. He is charged under clause 121.1 with having unstamped products in his possession for the purposes of sale. He is charged under subsection 4(b) and is found guilty by summary conviction. He is therefore liable for imprisonment for a term of not more than six months. He is given a suspended sentence since it is a first offence and he is not a drug lord or a smuggling kingpin, he is just a kid. He is caught a second time. This time, he is charged under subsection 4(a) and, six months later, because of another packet of cigarettes, he is found guilty of an indictable offence and is liable to imprisonment for a term of not more than five years. For an indictable offence, as Senator Baker will tell you, they can take his fingerprints and photograph, and there he is, at 18 and a half, with a criminal record for selling two packs of cigarettes. That is what your bill provides for at the moment. Do you not find this way of designing legislation a little overstated?
I understand that you want to go after organized crime and smuggling. I have no objection to that. On the contrary, I am all for it. I do not smoke and I object to those who do. I have no problem being convinced of that. We have talked about health a lot this afternoon. I am trying to imagine where this bill can end up taking us. Am I wrong, or am I right?
Mr. Saint-Denis: There are a number of questions wrapped up in that one question. First, anyone charged and convicted by summary conviction can have their fingerprints taken anyway. The Identification of Criminals Act allows the police to take the fingerprints of anyone charged with a criminal act. A criminal act, according to the Interpretation Act, is an offence that is either an indictable offence or a hybrid offence.
Senator Joyal: That is the case here.
Mr. Saint-Denis: Anyone who is charged only with a summary offence will probably have his fingerprints taken the first time. If you look at the Excise Act, 2001, the same situation applies; it is a hybrid offence. It is possible to proceed either by indictment or by summary conviction. In both cases, that kid could theoretically have his fingerprints taken too.
We are not creating anything new here, we are not coming with a new approach. The Excise Act, 2001 would allow us to do exactly the same thing now. In that sense, we are not adding anything.
Senator Joyal: Except that the Excise Act, 2001 provides for minimum financial penalties instead of minimum prison terms. That is the fundamental difference.
Mr. Saint-Denis: If I understood your question correctly, you were objecting to the young person's fingerprints being taken. You did not seem to be troubled so much by the extent of the penalty.
Senator Joyal: And the conviction for an indictable offence, because that brings with it a criminal record.
Mr. Saint-Denis: That is the same in the Excise Act, 2001. There will be a criminal record, regardless of the kind of penalty. It is a kind of hybrid offence; the police can take finger prints, regardless of the penalties. That already exists. It is true that, in the Excise Act, 2001, the minimum penalties are fines, albeit quite heavy ones.
In this case, unless a person, on a second offence, traffics or has in his possession for the purpose of sale, to use your example, 10,000 cigarettes or 10 kilograms of tobacco product, there will be no minimum sentence. Those quantities show that we are not dealing with a clueless 18-year-old, it really is someone seriously involved in selling it.
First, we know that organized crime is heavily involved in these activities, although not exclusively so. So if someone gets caught for a second, third or fourth time, the chances are good that he is working in a network. If he is a member of a network, it means that he is a member of an organized crime group. I think that really is the kind of activity that the bill is intended to address.
Senator Joyal: I have some quibbles with that, because, as the minister and other senators have said, tobacco use is very addictive because of all kinds of chemical ingredients. People have an irresistible need to smoke. As a result, they are going to try to get tobacco products from any and all sources if they feel the need when they do not have any.
We cannot assume that anyone who buys tobacco is a member of a network. Most tobacco users are not members of a network, unfortunately; if they were, we could catch them all and there would be too many to fit in our prisons. The reality is that we know that there are tobacco-smuggling rings, especially in provinces with reserves close to the American border. We know that, but most tobacco users are not organized fraudsters or members of organized groups. You just have to look at our schoolyards to realize the extent to which most of the cigarettes smoked in our schools are contraband. The students are not part of organized rings. Someone somewhere is providing the supply, of course, no doubt about that. But the consumers are not necessarily the kingpins that keep the rings together. Certainly, without an end user, there would be no sales. Except we know very well that smuggling is caused by taxes and all kinds of other factors that are not only linked to the use.
Mr. Saint-Denis: You are quite right, Senator Joyal. But I would like to point out that this bill does not target the consumers. It targets only the suppliers, the traffickers, the sellers.
As I said, the bill does not target the consumers. It targets only the suppliers, like the ones you identified.
Senator Boisvenu: Mr. Saint-Denis. I have a question about some information. In the United States, the biggest cigarette traffickers are the Chinese. They even deliver them through the Internet. They even have an illegal trade in the tax stamps. So, as well as selling you the cigarettes, they can even sell you the stamp so that they look legal. We know that the Chinese are very clever.
Senator Joyal: Mr. Chair, rather than saying the Chinese —
[English]
It is many people. I do not think we should single out persons.
[Translation]
Senator Boisvenu: I am sorry, you are right. I will talk about China. An American study that has just been published says that China really is a major producer of cigarettes. A large number of illegal cigarettes enter the United States and leave again to enter Canada through our somewhat porous border. Is the increase in the products coming in from China the same problem?
Mr. Saint-Denis: I really cannot give you much information about whether the Bill is to be applied that way.
You are going to be talking with people from Public Safety tomorrow and I am sure that they will be able to give you a better answer than I can. I do agree with the statement that China is a source country for contraband tobacco.
[English]
Senator Fraser: I have a one-track mind here and am still noodling around on this parallel between the bill and the Excise Act, 2001. You made a valid distinction between some offences that would be different under the two and how a person could be charged with one offence under the Excise Act and another offence under the bill. However, some of the language is exactly the same. The bill says ``no person shall sell, offer for sale or have in their possession for the purpose of sale . . . .'' The Excise Act, 2001 says, ``No person shall dispose of, sell, offer for sale, purchase or have in their possession raw leaf tobacco'' that has not been stamped. As well, it says that no person shall sell, offer for sale, or have in their possession a tobacco product that has not been stamped. The parallels are so great that proposed subsection 121.1(1) refers to the Excise Act for definitions of these terms. Proposed subsection 121.1(2) includes all of the exceptions that exist for those offences in the Excise Act, 2001, i.e., when it is lawful to have possession of unstamped raw tobacco or products.
I come back to this question, maybe because I am just too thick to get it: What happens if someone is found offering contraband tobacco for sale? How is the decision made as to which law to prosecute under? What if the prosecutor tries to proceed for that offence under both laws? To pick up on Senator Baker's word, this strikes me as confusing. Can you try to enlighten me?
Mr. Saint-Denis: The decision to lay a charge will be made by the police.
Senator Fraser: In some places, the Crown prosecutor decides.
Mr. Saint-Denis: No. There will be pre-charge clearances in the sense that in some provinces the Crowns will look at what the police wish to charge and will comment. The police will lay the charge. They will decide whether they wish to lay a charge under one piece of legislation or another or both.
Once that is done, the prosecuting Crown will make a decision as to whether to go ahead with the one or the other or both. In the end, there will not be a conviction for both. The Crown will have to make a selection because the individual would not be able to be convicted for both offences. As Senator Baker pointed out, the case law is quite clear on that.
Police can lay two charges now — one under the Excise Act, 2001, and, if they are provincial police, another under the provincial revenue statute. The two charges could go forward, but they deal with different issues — the non- payment of a provincial tax versus the non-payment of a federal tax. In such a case, you could have dual conviction.
Senator Fraser: We are talking about the identical thing here.
Mr. Saint-Denis: In this case, the Crown will have to elect whether to drop one or go with both. Frankly, I hesitate to believe that they would go with both because it is more work and only one offence would result in a conviction, not both.
Senator White: I want to start by making a statement around my disgust with tobacco use. As I move forward, it will sound like I am supporting the tobacco industry, but I do not. It is the only consumer product that will kill half its users when used as intended.
We continue to talk about the organized crime aspect, so I want to point out that it is having a dramatic effect on legitimate legal businesses in this country. When I was a police chief, a number of businesses in the city of Ottawa would approach me about the local police being stricter in investigating, charging and hopefully participating in the prosecution of illegal tobacco. Business owners are complaining that in Canada we do not have the tools to allow the police to do their job to take this seriously. Is that not true?
Mr. Saint-Denis: I believe it is true. I believe that you have the Canadian Convenience Stores Association appearing tomorrow. I am sure they will confirm exactly what you are saying.
Senator White: I am sure they will as well.
Mr. Saint-Denis: Contraband tobacco products are being sold for considerably less than legitimate tobacco products, so there is undercutting. Legitimate tobacco users are finding themselves cut out of the picture.
Senator White: You talked about undercutting, but we are not comparing tobacco to tobacco here. There is evidence to indicate that illegal tobacco being sold illegally also contains everything from feces to insects to mold. I could go on and on. Those things are found in the ``tobacco'' being sold in that manner.
Mr. Saint-Denis: I think that is correct. It is a worse product than the legitimate product.
Senator White: That is bad.
Senator Baker: I note where you are inserting this in the Criminal Code: under frauds against the government. Each of these sections is referenced: section 380 of the Criminal Code is fraud; section 382.1 is fraud on a prospectus, I believe; and section 400 is the same. As you pointed out, provincial legislation and the Excise Act, 2001, are about money. You are all in the same field. I do not see the distinction. The Excise Tax Act, 2001, deals with tax; and this bill deals with tax as it is a fraud on the government. That is where it is being put in the Criminal Code.
Senator McIntyre's question earlier was on point because if you have a provincial offence and a federal offence, then you have two Crowns, especially if you have a specific federal act other than the Criminal Code at stake, such as the Excise Act, 2001.
I appreciate your testimony, as everyone does. When both of you are here, you provide excellent information.
I am just wondering, in conclusion, whether you have any other reasons for listing the Attorney General of Canada and the Solicitor General of the province and then saying ``or their lawful deputy,'' when you do not mean their deputy at all but someone completely different than a deputy. Do you have any historical accountability for this use that appears, on the face of it, not to be legitimate?
Mr. Saint-Denis: I am not quite sure what your concern is here. The lawful deputy in this case, would be, I guess, the Director of Public Prosecutions, who is the Attorney General's lawful deputy. Then, it would be anyone that he chooses to delegate or sub-delegate, pursuant to the legislation that created the prosecution services.
Senator Baker: Why would you not put it like the French is? The French is very clear here. An ordinary citizen is supposed to be able to read these bills that we are passing and understand what is in them. Mr. Saint-Denis, if an ordinary citizen reads this and says, ``Here are the minister and the lawful deputy of the minister,'' they assume it is the deputy minister.
Mr. Saint-Denis: In fact, it does not say the minister; it says the Attorney General.
Senator Baker: The Attorney General and his lawful deputy.
Mr. Saint-Denis: His lawful deputy would be the chief Crown officer federally.
Senator Baker: Anyone could be delegated.
Mr. Saint-Denis: Anyone could be delegated, but I would like to point out two things. First, I am not aware of anyone raising this as an issue or of it having been raised in any case that has come up.
Second, this was not an exercise in trying to correct, amend or generally just deal with the definition of ``Attorney General.'' The only thing we did here is to insert the reference to 121.1 in an existing definition.
Senator Baker: The only reason I raised it is that it was brought in in 1969, and I recall very well when the words ``lawful deputy'' were inserted and the very concerns that I am raising now were raised. There is case law on this. I must admit that it is not a front and centre case. It is at the lower level of the court, but there is case law on this.
Mr. Saint-Denis: I would be more than happy to receive the references so that I can read up on this. Perhaps we could have a chat later on.
Senator Jaffer: Could I just clear something up? I could be wrong. I thought that the police recommend and that the Crown lays charges. Am I wrong on that?
Mr. Saint-Denis: The police lay the charge. They do not make a recommendation except in British Columbia, Quebec and New Brunswick, where this is a pre-charge clearing sort of regime.
Senator Jaffer: They recommend.
Mr. Saint-Denis: They will discuss with the Crown what they will lay.
Senator Jaffer: The Crown decides. I am sure that in my province the Crown decides, in the end, to lay the charges.
Mr. Saint-Denis: It is a pre-charge approval. I am not sure exactly how that works, but it might be more of a recommendation in those provinces.
Senator Jaffer: I will find out.
Mr. Saint-Denis: In the other provinces, certainly, the police will lay the charge.
Senator Jaffer: Not in mine, but I will find out.
[Translation]
Senator Joyal: Mr. Saint-Denis, did your department conduct an assessment of the sentences handed out as the Excise Act was enforced?
Mr. Saint-Denis: No. We did not do that kind of assessment.
Senator Joyal: You have no assessment to tell you whether the courts tend to be strict with their sentences or to take a broader approach?
Mr. Saint-Denis: If I am not mistaken, I believe that the courts previously tended to impose fines but that they have started to clamp down in perhaps the last few years. To answer your question, no, we have not studied that.
Senator Joyal: You have reached no conclusions on sentencing that could have guided you as you drafted subparagraphs 4 and 5 of the bill?
Mr. Saint-Denis: No. Our mandate was to create a system of minimum sentences for repeat offenders. That is what we did within the legislative framework with which we were familiar, which, at that time, was the Excise Act, 2001.
Senator Joyal: Great. Thank you.
[English]
The Chair: Thank you, Mr. Saint-Denis and Ms. Morency. We appreciate your appearance and your assistance with our deliberations.
The next witnesses are here and ready to provide testimony. For the final panel of the evening, I would like to welcome Brian W. David, Chief of the Mohawk Council of Akwesasne. Joining Chief David is Joyce King, Director of the Akwesasne Mohawk Justice Department.
Welcome, we appreciate your appearance here this evening. We had another witness who was going to appear and I explained earlier that he will not be appearing tonight but possibly later on during the committee's deliberations.
Chief, do you have opening comments you wish to make?
Brian W. David, Chief, Mohawk Council of Akwesasne: Yes, I have a few.
I would like to acknowledge the honourable chair, the honourable deputy chair and honourable senators; I thank you very much for the invitation. It is certainly a privilege and honour to be here at this time to discuss an issue of such significant importance not only to your government, your people, but to our government and to our constituents.
Very much of what goes on in Ottawa has an impact sometimes good, sometimes adverse, on the jurisdictions over which we govern. It is good and timely that we sit down and discuss these matters.
Since the 1990s, the Mohawk community of Akwesasne has been caught in the middle of a contraband trade network that has created enforcement and jurisdictional nightmares for all parties involved, particularly for our community members. At that time we sent a warning to the federal government on the impact that would follow by raising the taxes on cigarettes. We told of the problems that would create for Akwesasne and our community, and we offered reasonable solutions to address them. We asked for the government's help and cooperation. Our voice was ignored and as a result an illegitimate economy developed that has been seen by our community, and we have been victimized over the past few decades by outside criminal elements.
Canada has made Akwesasne their scapegoat in the continuing saga of stigmatizing Akwesasne as the nation's capital for the sale of illegal smokes, the transportation of contraband tobacco and therefore, to some extent, stamping Akwesasne as a criminal haven.
Akwesasne is sounding the alarm once more on the impact that Bill S-16 will have on the Mohawks of Akwesasne and how it is another step in the wrong direction. It will only further criminalize our community members and perpetuate a negative image of Akwesasne. It is not the approach that we have been proposing to Canada, Ontario and Quebec to effectively deal with contraband tobacco that can be supported by Akwesasne.
We have stated and continue to say that the ultimate solution to deal with contraband tobacco is not with harsher sentences or another layer of law enforcement around our community; rather, it entails identifying our common goals and developing respectful relationships through political protocols and memorandums of understanding, agreements and other arrangements that help define our relationship. It does not entail forcibly imposing one's will on another.
Yes, we do have a common goal, but we are coming at it from different directions. You want to effectively deal with the issue of contraband trafficking and we want to provide meaningful and lasting employment for our people. Where our two paths meet is in the development of an economic recovery strategy for Akwesasne that will replace an illegitimate economy with a legitimate one.
Politically, the Mohawk Council of Akwesasne has no harsh objection to what Bill S-16 proposes to accomplish. The MCA does, however, have concerns over the impact that the legislation will have on efforts and recognition that have been secured in the Supreme Court of Canada's ruling in Gladue, as well as other measures obtained through protocol agreements with the various provincial Crowns.
Gladue is a decision of the Supreme Court of Canada. The bill seriously countermands this decision by imposing a sentencing scheme without consideration to Gladue principles. The Criminal Code Canada, section 718.2, states:
. . . all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
If Bill S-16 is passed with its ``maximum minimums,'' this takes away the current discretion of the Crown prosecutor and judge to use diversion programs or other forms of alternative justice processes that engage the community in dealing with the less serious offences. If this is not the case, then it is not very clear in the current wording of Bill S-16.
There is already a disproportionate number of Aboriginals incarcerated in prison, both at federal and provincial institutions. The scale is generally 30 per cent of inmates are Aboriginals at the federal level, and in Ontario Aboriginals represent 10 per cent of the incarcerated population. Comparatively, Aboriginals in Canada are a mere 3 per cent of the national population. Bill S-16 will only serve to increase the number of Aboriginals in the penitentiary system by giving no consideration to an individual's culture or ethnic status before imposing a sentence.
If Bill S-16 is passed with its ``maximum minimums,'' there is no doubt it will increase the risk for transporting unmarked cigarettes. While this may result in some of our people deciding to leave the trade due to the increased risk, we are concerned that they will only be replaced by hardened criminal elements from off the territory who have nothing to lose.
We also think that the punitive side of the bill will primarily punish the mules being used in the transportation of contraband tobacco: people who are experiencing economic hardship in these trying times, people who are bound by their addictions and who will go to any means to support their habits.
We saw this phenomenon happen years ago when Canada brought in the new Firearms Act. A new black market for firearms was created in large Canadian cities, and we saw the river, our river, become a very dangerous place to be during the night hours. Over the past seven years it is been a struggle to regain control over our river jurisdiction. We do not want to lose any gains we have made in this area because of this change in Canada's approach. We want to know what measures Canada is going to take to ensure that this does not happen again.
Another disturbing application of Bill S-16 is inclusion of raw leaf tobacco and the impact it will have on the unique social and cultural practices of First Nations people, including the Mohawks of Akwesasne. This is another example of the federal government failing to understand the long-standing practice of using sacred tobacco solely for ceremonial purposes.
How will law enforcement differentiate between unmarked tobacco and our locally grown tobacco used for ceremonial purposes? We know the difference and most botanists know the difference, but I have yet to meet a law enforcement officer off reserve who knows the difference between these two types of tobaccos. Will Bill S-16 have an adverse effect on the conduct of ceremonial functions where we have to travel between communities with our ceremonial tobacco? What provisions are being made to ensure this does not happen?
The Mohawk Council of Akwesasne does not believe that criminalizing the tobacco trade will solve the Government of Canada's concerns with First Nations' tobacco. There is already a disproportionate number of Aboriginal inmates in Canada's penal system and this legislation will only make those numbers worse. Instead, what is needed is to engage First Nations directly in finding solutions to tobacco issues in ways that are respectful to all parties involved. It is through cooperation, cooperative efforts that include First Nations as part of the solution, that a lasting resolution of tobacco concerns can best be achieved.
The Mohawk Council of Akwesasne is a case in point. Over the past year, it has been working with the Government of Ontario and the Government of Quebec to build a cooperative relationship around common interests. Addressing the provincial government's tobacco concerns with the Akwesasne community has been one of those areas of common interest that has been identified.
Toward that objective, the Mohawk Council of Akwesasne and the Government of Ontario have created a tobacco technical table to bring senior political and operational administrative representatives of Ontario together with the MCA to address topics and issues of concern in regard to tobacco and the multi-jurisdictional nature of the Akwesasne community. The work of the table will result in joint cooperative efforts and resources being directed toward achieving practical and workable solutions.
The effort to work together has led to the Government of Ontario making a two-year, close to $500,000 commitment in funding to support the development of an Akwesasne tobacco law and a regulatory framework. The Akwesasne Tobacco Pilot Project is one of the two First Nation projects in the province. It will result in Akwesasne regulating the manufacture, wholesale and retail sale of tobacco products in its territory. It is hoped that it will lead to tobacco trade agreements between Akwesasne and other First Nations in Ontario and allow for legal revenue generation from tobacco sales for the Mohawk Council of Akwesasne.
The Mohawk Council of Akwesasne is also working to build off its efforts with the Government of Ontario and then reach a similar agreement with the Government of Quebec.
Last year, high-level meetings were held with the Government of Quebec on this subject, and in August 2012 a meeting of both provincial governments and the Mohawk Council of Akwesasne occurred to see how all three can work together to resolve tobacco concerns. Akwesasne and the Governments of Ontario and Quebec have committed themselves to building a legal economy for the Akwesasne community by identifying potential resources and reviewing revenues generated to form part of our strategy to take Akwesasne away from the tobacco industry and replace it with other forms of development that would continue to generate a positive economy.
The Mohawk Council of Akwesasne welcomes the opportunity to engage the federal government in these initiatives. In fact, the MCA signed a political protocol with Canada in May 2012 to address Akwesasne's unique jurisdictional circumstances and to support the negotiation and implementation of new arrangements between Akwesasne and Canada. Tobacco issues could easily be introduced through this protocol.
With respect to recommendations, we appreciate what Canada is attempting to accomplish in response to trafficking contraband tobacco. To assist in that effort, Akwesasne is redefining itself by developing a legitimate economy that can address the lack of opportunities that many of our community members face that in the past has compelled them to take part in the ``dark-of-night economy.''
Recognizing our justice department, which oversees the country's largest operating First Nation court, supporting our professionally trained Mohawk police department, and letting us replace the so-called illegal economy with positive economic development are some measures that we have proposed. They entail replacing the hundreds of illegal jobs that will be lost with legitimate ones.
We recognize what the federal government is trying to do, but increasing enforcement and harsher penalties will not effectively achieve your goal.
To get there, we offer the following recommendations in response to Bill S-16. First, honour the initiatives currently in development between Akwesasne and Ontario. Akwesasne has built a legitimate economy based on the legal sale of tobacco cigarettes, as provided for under an Indian Act bylaw. Further development of this legislation through the Mohawk Council of Akwesasne's Law Enactment Procedural Regulation will ensure that the legal sale of tobacco is under strict regulation. This is a success that is only too apparent as one travels through Akwesasne and north in Canada where the area is not, I repeat, is not laden with cigarette shacks and makeshift booths for cigarette sales. You do not see that in Akwesasne.
Second, exercise good governance and accept our invitation to come to Akwesasne to see for yourselves. The community of Akwesasne is proactive in developing legislation based on being a responsible government, like all governments should be to their people.
We are a progressive community in Akwesasne, and inroads are being established by creating partnerships to support a legal economy. The Mohawk Council of Akwesasne is a responsible government that promotes and creates responsible economic growth that meets the demands of the community and strives to meet the demands of the day.
Third, develop a federal protocol that recognizes the Akwesasne Community Justice Program for youth offenders under the Excise Act. The Mohawk Council of Akwesasne has a program under the Akwesasne Justice Department called the Akwesasne Community Justice Program. ACJP has been around since 1999 and is an alternative justice program. The ACJP is funded by the Mohawk Council of Akwesasne, the Ministry of the Attorney General of Ontario, the Ministry of Justice in Quebec and the Aboriginal Justice Strategy in Canada.
MCA has also successfully negotiated with the provincial Crowns and developed a protocol agreement between Akwesasne, Ontario and Quebec. The provincial Crowns refer ACJP class 1 and some class 2 offences for diversion programs and sentencing recommendations.
Nothing prohibits the federal Crown from having a protocol agreement with the Akwesasne Community Justice Program to work with young persons under the Excise Act. In many cases, youth charged under this law are also victims. We see youth being used by adults to smuggle and then are subjected to fines they cannot pay. A federal protocol with the federal Crown would leave a profound positive impact on decreasing youth charged under the Excise Act.
Thank you very much, and I leave myself open to questions.
Senator Fraser: Thank you; that was a fascinating presentation. I suspect that I alone could keep you here for four hours with questions.
It seems pretty clear from your presentation, Chief David, that you are trying to get out of a problem that has existed for a while and has changed but has nonetheless created a lot of problems.
Two things you said interested me. One was that Akwesasne has built a legitimate economy based on the legal sale of tobacco cigarettes. The other is that in order to get out of this problem and get good, productive and legal development going, that will entail replacing hundreds — that was your word — of illegitimate jobs that will be lost if the illegal tobacco trade can be curbed.
Could you explain on the one hand how the legal business operates and on the other how it compares in size today with the illegal or illegitimate — to use your words — one that continues to exist on reserve?
Mr. David: We have had in place a bylaw that deals with tax-exempt tobacco cigarettes. We have had that in place for some time now. That bylaw allows us to acquire wholesale tobacco, wholesale cigarettes, and we get that provincially. We have set up our own regulatory system for that, for local sales. That is what I was referring to.
Senator Fraser: These are tax-exempt cigarettes, so they are still cheaper than what I would buy downtown here.
Mr. David: They are cheaper than what you would buy across the street, for sure.
What percentage that might be of the whole larger picture, I can tell you that it is just a very small fraction. I do not think law enforcement at this time has a very clear picture of what the total universe looks like in terms of the contraband. I have examined some of the most recent reports. The one I am looking at here is from Laura Dawson, a consultant who works out of Ottawa, and only deal with estimates, and law enforcement will only provide estimates. No one has a clear handle on this.
The other aspect of this is that when I say hundreds of jobs, that is the full gamut, from the time of production right to full distribution. There are easily hundreds of jobs involved.
The other part of the legal aspect speaks to this: At one time there were four federal licences in Akwesasne. There were individuals who had acquired four licences to manufacture cigarettes. I think two of those were unsuccessful, and one is in abeyance right now. One party is forming a company and is very close to a full-scale operation. They are talking of market and already have the patents and have all the paperwork required. All they are waiting on is approval by the Province of Ontario to use the highways for distribution.
Senator Fraser: Presuming as they get more, there would be, I suppose, a reasonable chance that they would absorb some people now working in the illegal, illegitimate trade; yes or no?
Mr. David: Yes.
Senator Fraser: Thank you. Now you can shoehorn the rest of your answer into the answer to my next question.
I appreciate that it is very difficult to get statistics on things that are not sanctioned by the law, but what would be your best guess as to the proportion of the illegal trade that involves American sources?
Mr. David: As a personal guesstimate, on the legal side I would say 10 per cent and on the underground economy probably 90 per cent. That is the baseline I have been operating with for the past 18 months.
If I could go back to the previous question, I do not want to create the impression that we are putting all our eggs in one basket and saying that we are going to manufacture cigarettes and hire all of our people in doing that. We are introducing a series of other initiatives for new infrastructure such as broadband and high-speed Internet. We are talking about putting our own data centre into place to create the kinds of jobs that our youngsters are studying for. We are looking at the resources we have available, such as our wonderful, beautiful river. We want to reclaim the river and take advantage of it, perhaps by developing the tourist industry. We want to take full advantage of youngsters who are coming out of hospitality colleges. Why do we not partner with local casinos and with Cornwall, as we are already doing? We are having regular meetings with all the local governments, because it is a local engagement. This is no longer a singular problem.
I remember having a discussion with our local MP. When we talked about contraband, he asked when we were going to take care of our problem. I said, ``Wait a minute; have you not been reading the papers? How is it our problem? Nine out of ten people who are getting caught are your constituents, not mine.'' If you thought that everyone getting caught was from Akwesasne, you ought to read the police log, because they are not from Akwesasne. The great majority of the people who are caught on the 401 corridor are off-territory; they are not our residents. Our stake in that is perhaps 10 per cent.
That is what I was getting at. Once this bill is passed, if it is, those penalties will become harsher. It will drive people out of the industry, which will create new opportunities, but they will be higher risk opportunities that will attract only people who have nothing to lose, such as hardened criminals from bike gangs in Toronto and Ottawa, and they will come right onto Akwesasne territory, just as they did when the Firearms Act came in.
While we think we are doing the right thing, off the territory of Akwesasne we are creating another nightmare of a situation right in our jurisdiction, and the fingers will come back asking what we are going to do about our problem. We are not the ones who adjusted the tax rates in Canada; we did not create the problem, yet everyone says, ``Take care of it.''
Senator White: Chief David, thank you for being here today. You stated exactly what I say, that it is not Akwesasne's problem, and this legislation is not being brought forward to deal with the people of Akwesasne. It is really about criminal organizations that are, in many cases, using your community in exactly the way you stated.
Our challenge is that you cannot separate this as a tobacco problem. This is an organized crime problem that includes tobacco, drugs, firearms, and just about everything in between. We have to find a way to continuously attack organized crime, and in this case I believe that it has become so mangled that excluding tobacco would allow them to continue to access that as revenue generation.
Some people will argue, as I know you may, Chief David, that this may not be the right way to go, but having been in policing for 31 years I must say that it is one more tool that every officer who has worked in those communities that are being used will say will help to deal with the issue.
What do you expect us to do on this issue, knowing the global challenge it presents to policing when it comes to drugs, tobacco and firearms? It is very difficult, I know, but what would you suggest should be done instead with regard to a tool for the police to deal with this issue?
Mr. David: When I received this bill, I read it quickly and my first impression was that this it is going after traffickers and wants to treat the commodity in the same way as it treats trafficking in marijuana. If the intent is to go after organized crime, why does the bill not say that? Why are we going after the traffickers?
Senator White: As a Criminal Code offence, people connected to organized crime who are convicted will find themselves subject to organized crime legislation as well as to proceeds of crime legislation. Your local police service could access the revenue generated from proceeds of crime after assets are seized from these people.
I am not suggesting that this one tool will fill the tool box, but I believe it is one more tool that police agencies will have. That is really the goal.
Mr. David: I do not disagree. We are on the same page with regard to the goals. There will always be a debate and discussion around methodology.
Senator White: Yes, and that is very healthy.
Mr. David: That is where we are. We are at the stage where we are trying to find out what we need to put in place to co-exist peacefully in the future in that part of the country. You know what I am talking about.
Part of the difficulty is that policing priorities in Canada are quite different than they are in the United States. The policing priority in Canada seems to be contraband tobacco, while the preoccupation south of the border is with drugs and marijuana. It is quite a bit different. They seem to have no problem licensing tobacco manufacturing plants which generate the products that are creating the problems on this side of the border.
There is a lot of disconnect on these issues, and it is unfortunate that the community of Akwesasne is caught right in the centre of it. We see it all; we see the whole thing.
Senator White: As a follow-up to your commentary on alternative measures and restorative justice, I take it you do understand that a large amount of restorative justice or community justice is done pre-conviction, which may mean that no conviction is registered. It is done pre-charge in some cases as well. I am sure you understand that you would still have the opportunity for some community restorative justice when dealt with pre-charge or pre-conviction in the court. Do you understand that in relation to your local community justice initiative?
Mr. David: That was not very clear to us. There was an absence of verbiage on that.
Senator White: I offer to meet with you any time and discuss it, if you wish.
Mr. David: Thank you.
Senator Jaffer: Chief, we have learned from you and respect what you said. In another world of mine, I am very much involved in the issue of racial profiling. There was a television program about racial profiling around contraband tobacco. Could you tell us whether racial profiling of First Nations people is occurring in relation to contraband tobacco investigations? If so, will this bill make it worse?
Mr. David: About three or four years ago, we had an incident where the CBSA implemented their arms policy. They had a customs port on Cornwall Island. We did not particularly agree with the arming policy — it was a nation-wide initiative — mainly because the relationship between the port authorities and the community was not all that good. There were things that should have been done in the past that had not been. In fact, I would say a relationship did not exist, so when the arming policy came in, there was much concern and fear that there could be retaliation.
There was a demonstration. When the port was re-established in Cornwall, there were allegations of racial profiling against our younger women, particularly women who were driving large, reasonably nice cars. We took note of all those complaints through our justice department. We brought that to the attention of the Canadian Human Rights Commission and we have been monitoring it for the last seven or eight years. We are keeping track of it.
On the question on whether something of this nature would make it worse, I think we have gone through the worst of it, hopefully. I do not think that will happen with this. With Bill S-16, what I am more concerned about is not so much racial profiling but the encouragement back into our territory of those criminal elements that we do not want there. We have made gains regaining control over the river, the nighttime, making it a safe place where fishermen can fish at night and not have to worry about who is on the river, whether they are carrying a gun, whether they are from Akwesasne or part of a gang from Montreal or Ottawa. We have taken care of that. That has kind of quelled right now and we do not want to see it come back. We enjoy fishing at night. When we wanted help on that issue, by the way, we could not get it. We had to take care of that ourselves, and we did.
The Chair: You are going back to the times when there was gun running and that sort of thing. Are you suggesting you are not aware of any non-Aboriginals connected to organized crime that are currently present in your community? Are you saying there is no one like that currently present in your community?
Mr. David: Any non-Aboriginal —
The Chair: Connected to organized crime. Are you aware of any?
Mr. David: I am not aware of any. If I was, I would certainly be talking to law enforcement about it. We have our own community residency law and trespass laws. As a matter of fact, there is a lot of concern in our community about strangers being in sensitive areas where they ought not to be, including our schools, elders' homes and areas where we have vulnerable people. We are sensitive to that kind of thing.
[Translation]
Senator Dagenais: Thank you, Mr. David and Ms. King. I know your reserve well, having patrolled the Quebec portion in 1990, 1991 and 1992. As contraband cigarettes are traded openly on the reserve, do you consider that manufacturing them is legal?
[English]
Mr. David: I was on the wrong interpretation channel and did not catch the full question.
[Translation]
Senator Dagenais: Let me repeat the question. I know your territory well; I was once a police officer with the Sûreté du Québec. The trade in contraband cigarettes is conducted openly on the reserve, about 90 per cent of it, you said. Do you consider that producing those cigarettes is legal?
[English]
Mr. David: Producing cigarettes is perfectly legal in most cases. Those cigarettes are produced at licensed manufacturing plants and the licences were acquired on the American side. They are completely regulated, completely licensed. It does not become an issue until those cigarettes come across the river. Pass through our territory into Canadian jurisdiction, and at that point the question you are asked is whether they are legally manufactured. Yes, they are.
You are probably trying to get at what point they become illegal. I think from Canada's perspective they become illegal when they across the international border. From our perspective, we tend to take a more liberal look at it to say, yes, that is true, but politically they do not become illegal until they technically leave the Akwesasne territory. That leaves some room available for us to put into place a regulatory regime to regulate that if we desire, which is the direction we are going.
[Translation]
Senator Dagenais: You also said you have a beautiful river. I know that too. But tobacco smuggling makes it a dangerous river. Even back then, we often used to intercept boats with no lights carrying cigarettes to Canada at night.
In your view, is it First Nations people who are benefitting from smuggling, or organized crime?
[English]
Mr. David: That is on a cumulative scale. Without question, organized crime takes the greater portion of any profits. A certain benefit would accrue to anyone involved as the cigarettes move from hand to hand through the trafficking system. However, let us be realistic; who gets the larger lion's share of the profit is going to organized crime, whoever that might be. I bring this back to Bill S-16 and wonder why there is not more of a targeted initiative at organized crime rather than on the trafficking part of it.
Senator Baker: I congratulate you on your presentation.
One of your main points to this committee is that you have been working together with the Government of Ontario. You feel that this bill may disrupt the cooperation you have established with the Government of Ontario, which we all know has legislation in place with regard to the sale, transport and possession of tobacco that is legal and not legal. You have had a relationship and have developed a protocol with the Government of Ontario. Do you think that all of this work that has gone in with the Government of Ontario, the agreements you have, might now be disrupted by this legislation?
Mr. David: I do not think it will be disrupted by any means; it just adds a different dimension that we will have to take into account as we are moving forward. I do not see it as a major hurdle. The reason I brought it forward in this manner was to bring the message that we have contacted Canada a number of times to join us to become engaged in the initiative that we are working on — or to at least come to the table to discuss this — in full partnership with Ontario and Quebec, to look at the issue of specifically targeting Akwesasne. With this bill, instead of taking an opportunity to look for solutions, what we see coming is something we were not looking for, which is more legislation and more law enforcement.
Senator Baker: Right now you are confronted on the federal end with the Customs Act and the Excise Act and on the provincial end with your tobacco act. I think they call it the tobacco act, but I am not sure what the act is called provincially in Ontario. Now you are going to be confronted with the Criminal Code.
Mr. David: Yes, with the Criminal Code.
Senator Baker: It will really confuse matters. That is your major concern. The Customs Act, for enforcement purposes, defines an officer as a ``customs officer or a member of the RCMP.'' A provincial police force does not have authority under the Customs Act but, of course, they have authority under The Excise Act, 2001. You are saying that this will provide another punishment when people are already being charged under three other pieces of legislation.
Mr. David: Exactly.
Senator Batters: I want to confirm something. We have been advised that according to media reports, Mr. Keith Gordon, from the Akwesasne justice department, voiced concerns that offenders might have contested their first defence more vigorously if they had known that any conviction could be used to increase jail time for further offences. Was that a belief held just by Mr. Gordon and not by you? I want to dispel that because under this bill, the first offence would have to be under this brand new law, not under the Excise Act, 2001. I want to ensure that both of you are aware of that and do not have that misconception.
Joyce King, Director, Akwesasne Mohawk Justice Department, Mohawk Council of Akwesasne: Yes, we know that the offence will be brand new.
The Chair: Out of curiosity, there are two issues dealing with the cross-border checkpoint and the move of the checkpoint off the island to the Cornwall area. Are you aware if that has had an impact with respect to smuggling? I understand that in the future the checkpoint will move to the U.S. side. How do you see that impacting the potential for increased smuggling perhaps?
Mr. David: There has been more active reporting on the movement of contraband through the port following the move from Cornwall Island to Cornwall, where the temporary port is located. That particular move allowed customs more immediate ``hands-on'' to take a look at the level coming across the bridge.
Was it the full scale of everything? No, it was just a small percentage. There was still a considerable amount going across the river. I still read media reports of the river being used from the south shore to the north shore. There is still quite a bit of movement occurring where the port is not involved, but to what ratio, I do not know. I would have to speak to police and law enforcement authorities to get a better handle on that.
Would that change if they moved the port to the American side? If it is not really making a difference now that they have moved the port to Cornwall, it will not really make a difference if they move it to the United States.
If it becomes more difficult or riskier to bring contraband through the ports, then the river becomes the main vehicle because it is less risky and there is no port involved. That is what makes night activity more dangerous on the river. These are not activities that occur only in Akwesasne. They occur clear up the St. Lawrence River right into the Thousand Islands. I was told at one time that the actual problem is far greater in the Wolfe Island area than it is in Akwesasne. I learned that in conversation with an OPP official. It is just that Akwesasne really enjoys the media attention when these issues come up.
Senator Fraser: For sure you have had a lot of media attention over the years, but not all of it was sought or desired, I expect. Some of that is partly because although Akwesasne is certainly not the only place where there is a problem with contraband or illegal tobacco, it is maybe the most complex because of the multiple jurisdictions that you have to deal with. I think it is unique. I do not think there is any other place in Canada that has anything like that kind of legal and jurisdictional complexity to deal with. If my assumption that you are unique is accurate, then it is in that context that I would like to hear the answer to my question. Were you consulted when this bill was being drafted? I was impressed with the number of different consultative vehicles and initiatives that you outlined in your speech. Through any of these vehicles or others, were you consulted about this bill?
Ms. King: Not that I am aware of.
Mr. David: Not that I am aware of. I made an application when I heard about this bill coming up. I spoke to the administrator for this table here and asked whether I could have an audience with this honourable standing committee.
Senator Fraser: We are not always all that honourable, but most of the time.
Mr. David: As the day gets on, I get sharper. Apparently what happened, it was at the close of the last session, so there was no opportunity. I was given assurances that if there were subsequent hearings, I would be contacted, and that is what happened here.
Senator Fraser: This is the consultation.
Mr. David: This is the consultation. I had the opportunity to read a draft of the bill about a month ago. I am not sure if there were subsequent changes.
Senator Fraser: I do not think so, no.
Mr. David: We based our brief on that and wondered where this will fall into play, given the direction we seem to be going, where we would like to go and some of the dynamics that we have going on politically. We wondered how this would fit in or not fit in.
Senator Fraser: Thank you.
Senator Baker: I congratulate the witnesses for their excellent presentation — an excellent way of putting forward their point.
[Translation]
Senator Dagenais: I have one last question for Chief David. If a huge police operation were mounted on your territory in order to root out the source of the smuggling for good, do you think that, at that time, the police forces from your territory would stand shoulder to shoulder with the RCMP in order to uphold the law? Would the police forces cooperate to eliminate the major problem once and for all?
[English]
Mr. David: There is a presumption that the heart of the problem is in Akwesasne and so we should concentrate all law enforcement in Akwesasne. We have a different view. We are saying that organized crime is not in Akwesasne. Those families are in Montreal, Ottawa and Toronto. You will not find them in Akwesasne. Why are we focusing all our energies and resources in an area where the problem is not located? If the heart of the problem is not there, why are we concentrating so much attention there?
[Translation]
Senator Dagenais: That is your point of view, of course. Thank you, Mr. David.
[English]
The Chair: I have a comment. I am looking at something from 2009. The then Centre for Public Integrity in the United States published what they described as an exposé on Canada's boom in smuggled cigarettes. They asserted that the 12-mile stretch of the Canada-U.S. border that runs through Akwesasne is a major security soft spot and cited a case in that year where U.S. authorities arrested 10 people, alleging they were part of a ring that smuggled 50,000 pounds of marijuana through Akwesasne into the United States. One of the ring leaders had a tobacco manufacturing licence from the Canadian government.
As suggested by Senator Dagenais, the problem there has been recognized by a lot of people. I know you are talking about some of these ring leaders in other locations, but the argument could be made that they are using Akwesasne for their purposes. That is one of the reasons there is a focus through this proposed legislation and other measures.
Mr. David: I can certainly appreciate that. Canada will move forward as it sees fit in the best interests of its constituents. From our side, we would not have had this problem if we had not had the Indian Act, if our traditional economies had been left in place, and if we had been allowed to evolve and develop vibrant and wholesome economies on our territories. If we had vibrant and wholesome economies, we would not be having this discussion today. Our young people would be employed. We would have a job force there. In that type of economy our young people could look to the future with certainty and say, ``Yes, we will stamp out smuggling and you will not see it.'' They would not want to take the risk if they had those kinds of legitimate opportunities.
That is where we are coming from and the point I wanted to make.
The Chair: Thank you, chief. We appreciate your appearance here and Ms. King to provide your input to the committee during its deliberation of this important piece of legislation.
Mr. David: I want to thank you very much for the time you have taken to allow us to speak. We appreciate it.
The Chair: You are more than welcome.
Our next meeting is tomorrow morning at 10:30. Continuing with Bill S-16, we will hear from law enforcement representatives dealing with border integrity, as well as merchants. It will be interesting.
(The committee adjourned.)