Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17, Evidence - September 25, 2014
OTTAWA, Thursday, September 25, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco), met this day at 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Senate Standing Committee on Legal and Constitutional Affairs.7
We are continuing our consideration of Bill C-10, An Act to amend the Criminal Code, trafficking in contraband tobacco. According to its summary, Bill C-10 would amend the code to create a new offence of trafficking in contraband tobacco and would provide for mandatory minimum penalties of imprisonment for repeat offenders.
Bill C-10 was previously introduced in the last parliamentary session as Bill S-16. In the last session, this committee held four meetings on Bill S-16, hearing from a total of 17 witnesses.
On May 9, 2013, this committee reported Bill S-16 back to the Senate without amendment but with an observation with respect to the definition of ''officer,'' as it relates to this bill and other coordinating legislation.
As you all know, Bill S-16 died on the order paper, as a result of prorogation, and Bill C-10 was introduced in its place on November 5, 2013. This is our third meeting on the bill.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast at sen.parl.gc.ca. You can find more information on the schedule of witnesses on the website under ''Senate Committees.''
For our first panel today, please welcome from Public Safety Canada, Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies Directorate; from Canada Border Services Agency, Geoff Leckey, Director General, Enforcement and Intelligence Operations; from the Royal Canadian Mounted Police, Superintendent Jean Cormier, Director, Federal Coordination Centers; and from the Ontario Provincial Police, Superintendent Carson Pardy, Director of Operations, OPP East Region.
I have been given a list in terms of your opening statements, and we will begin with Mr. Bhupsingh.
Trevor Bhupsingh, Director General, Law Enforcement and Border Strategies Directorate, Public Safety Canada: Good morning, Mr. Chair, honourable senators. I would like to thank you for the opportunity this morning to speak to this committee hearing today in support of the study of Bill C-10, the tackling contraband tobacco act.
Contraband tobacco is a significant problem that not only negatively impacts our economy but, more importantly, is a serious threat to the public safety of Canadians and their communities.
This is not a victimless crime. The manufacture and distribution of this illegal commodity fuels the growth of organized criminal networks that reinvest the proceeds into other forms of criminal activity, including drugs, weapons and human trafficking.
In 2012, intelligence assessments suggested that more than 58 known organized crime groups were involved in the manufacture and distribution of contraband tobacco. In addition to the organized crime factor, the availability and low price of contraband tobacco makes it more attractive to our youth, which undermines our public health objectives in many instances.
[Translation]
The intent of Bill C-10 is to specifically target the organized crime groups that are involved in high-volume trafficking of contraband tobacco and thereby reduce the presence of this illegal commodity in our communities. The bill will provide the RCMP and its enforcement partners, including provincial police forces, with a new tool to target organized crime involved in the contraband tobacco trade.
[English]
Bill C-10 will also complement existing federal tobacco control efforts that aim to reduce both the supply and demand of contraband tobacco, including the RCMP's Contraband Tobacco Enforcement Strategy and the Federal Tobacco Control Strategy, which has established a comprehensive approach to tobacco control under the pillars of prevention, cessation, protection and harm reduction.
In addition, the new proposed offence will support the efforts of the RCMP's Anti-Contraband Tobacco Force that is designed to target organized crime involved in the contraband tobacco market and is currently operational in the London to Valleyfield corridor, an area known for a high level of contraband tobacco activity.
The largest quantity of contraband tobacco found in Canada flows from manufacturing operations in First Nations communities on both sides of the Canada-U.S. border. Organized crime networks are exploiting these First Nations communities and the jurisdictional and politically sensitive relationship between these communities, governments and law enforcement agencies.
However, First Nations communities are receptive to working with federal and provincial governments to address organized crime. To this end, the RCMP works closely with First Nations police, such as the Akwesasne Mohawk Police Service, in support of joint force operations to target organized crime in and around the community. Building on this partnership, 10 First Nations police officers will be added to increase the investigative capacity of First Nations police services to combat organized crime in our high-risk communities.
Several groups have expressed their support for these measures being proposed in Bill C-10, including the Canadian Convenience Stores Association and the National Coalition Against Contraband Tobacco, which acknowledged that the measures will increase the power of police to address contraband tobacco.
While many of my remarks have focused on enforcement activities, it alone cannot solve the problem. That is why Public Safety Canada, along with federal partners, will continue to explore additional countermeasures to address contraband tobacco in partnership with our provincial, territorial and First Nation governments, law enforcement agencies, industry, stakeholders, and in some instances our international community.
In closing, the implementation of Bill C-10 would not only provide an additional tool to both our federal and provincial enforcement agencies, but also criminalizes the act of trafficking in contraband tobacco by creating a new Criminal Code offence whereby the penalties reflect the seriousness of the crime and by establishing mandatory jail time for repeat offenders.
Thank you again for providing me with the opportunity to speak on this important issue, and along with my colleagues I welcome your questions.
Superintendent Jean Cormier, Director, Federal Coordination Centers, Royal Canadian Mounted Police: Good morning, Mr. Chair and members of the committee. Thank you for inviting me here today alongside my colleagues to speak about Bill C-10, the tackling contraband tobacco act, which will create a new offence for trafficking in contraband tobacco and establish mandatory sentences for repeat offenders.
[Translation]
To assist your committee in its study, I would like to provide you with a general overview of the current scope of the challenges related to contraband tobacco from an RCMP perspective, as well as an overview of our enforcement activities.
[English]
Criminal organizations are involved in the production, distribution and trafficking of contraband tobacco and are exploiting First Nations communities, where violence and intimidation tactics continue to be associated with illegal tobacco. The revenue that criminal organizations derive from the illegal sale of contraband tobacco often provides financing for other organized crime activities including, but not limited to, illicit drugs and firearms.
[Translation]
Contraband tobacco remains a serious threat to public safety, and if left unchecked, criminal organizations will continue to profit. Combatting organized crime is a strategic priority of the RCMP.
[English]
Recognizing the level of criminal involvement in illicit contraband, the RCMP launched the Contraband Tobacco Enforcement Strategy, also known as the CTES, in 2008. The overarching objective of the CTES is to reduce the availability and decrease the demand for contraband tobacco in Canada.
In addition to tobacco smuggling at Canada-U.S. ports of entry, extensive smuggling continues to occur in the Cornwall-Valleyfield corridor area. Cornwall, Ontario, falls within the most active region for tobacco smuggling in Canada, with the majority of activities in this area occurring between the ports of entry. This presents a unique enforcement challenge for law enforcement.
[Translation]
In 2012, the tobacco products seized while in transit involved automobiles, snowmobiles, all-terrain vehicles and boats.
[English]
The RCMP has also seen contraband tobacco transported using the postal system and air services. The RCMP works closely with our law enforcement and government partners to address these challenges.
The RCMP partners with a number of agencies to combat contraband tobacco. For example, in Cornwall, the RCMP works with the Akwesasne Mohawk Police Service, Ontario Ministry of Finance and CBSA to combat organized crime and its involvement in contraband tobacco and other forms of criminality.
In 2013, the government further committed to addressing contraband tobacco by announcing the establishment of the new RCMP Anti-Contraband Force, or the ACF, which has been operational since the summer of 2014, so just this past summer. The ACF operates in areas where intelligence shows a high level of contraband tobacco activity and focuses on organized crime activities.
[Translation]
The anti-contraband force has increased the RCMP's capacity to investigate organized crime and cross-border smuggling, as well as target unscrupulous tobacco growers and illicit manufacturers.
[English]
The ACF also conducts outreach to engage tobacco growers and suppliers of raw material used in the tobacco manufacturing process.
In addition to the above initiatives, Budget 2014 allocated $91.7 million over five years, which will allow the RCMP to enhance its ability to combat organized crime through the implementation of increased border technology solutions. This funding will be used to increase intelligence-led policing efforts against contraband tobacco, as well as other cross-border criminality or criminal activities, and the ability to respond in real-time to high-risk alerts. These goals will be achieved through the creation of a Geospatial Intelligence and Automated Dispatch Centre, which will integrate and analyze technical intelligence data, and the deployment of a range of sensor devices to detect movement on the border in high-risk areas, from the Maine-Quebec border to the Oakville, Ontario area. The RCMP is in the process of identifying the specific technology that will be deployed in those areas.
[Translation]
Thank you for inviting me to participate in this important hearing. I look forward to any questions you may have.
[English]
Geoff Leckey, Director General, Enforcement and Intelligence Operations, Canada Border Services Agency: Good morning. Thank you, Mr. Chair and honourable senators, for the opportunity to provide testimony in your consideration of Bill C-10, the proposed tackling contraband tobacco act.
As I testified last December before the House of Commons Justice and Human Rights Committee, the illicit cigarette market in Canada has changed markedly over the past two decades. Previously, the majority of the contraband market consisted of duty-free and exported Canadian cigarettes. Today, this market in Canada is comprised, firstly, of illicitly manufactured Native brand cigarettes that are transported by land and, secondly, of Chinese and other international brands of tobacco products entering Canada through all modes of transit.
[Translation]
The committee will appreciate that disrupting criminal networks that engage in the cross-border movement of contraband tobacco depends on reliable information and intelligence, and on an ability to respond. The response to the illicit tobacco situation in Canada must be a holistic one, with all agencies working together in partnership to contribute to the solution.
For its part, the Canada Border Services Agency maintains an intelligence program, which contributes to, and is informed by, the broader intelligence community. This collaboration helps everyone obtain timely, reliable and relevant information. It also helps develop tactical and strategic intelligence products that assist in the effective targeting of high-risk individuals, goods and companies.
[English]
As a contributor to the intelligence community, the CBSA joins forces with other government departments, law enforcement agencies, international organizations and foreign governments to analyze the operations and the activities of organized crime, including contraband criminal markets.
As an active member in a number of joint force operations in the St. Lawrence Valley area, the agency participates in, for one thing, the Combined Forces Special Enforcement Unit, which brings together members of the RCMP, the Ontario Provincial Police, and municipal law enforcement mandated to expose, investigate, prosecute, dismantle and disrupt organized crime enterprises.
Another entity that I will mention is the integrated Criminal Intelligence Section, which brings together Canadian and U.S. law enforcement agencies, including the Akwesasne Mohawk Police Service, to deal with the cross-border movement of illicit tobacco.
[Translation]
Of our many partners, the CBSA works most closely — in fact, daily — with the RCMP and the United States Customs and Border Protection on law enforcement matters. For example, along with our U.S. partners, the Canada Border Services Agency and the RCMP participate in integrated border enforcement teams (IBETs). There are 15 IBETs that work in 24 locations to enhance the integrity and security of the Canada-U.S. border.
The Canada Border Service Agency also assists RCMP-led operations involving the controlled delivery of contraband tobacco. This technique allows containers of illicit cigarettes, previously intercepted by the CBSA at a port of entry, to be forwarded under strict controls to the intended destination with the objective of arresting and prosecuting the offenders upon receipt.
[English]
Information and intelligence, while necessary, are not, in and of themselves, sufficient for effective border control. The agency also relies on a combination of officer training and technology to interdict illicit goods, including tobacco products, from crossing the border. The CBSA uses large-scale imagery equipment to inspect marine containers and transport trucks and provides its front-line officers with counterfeit detection kits for an immediate determination in the field as to whether a tobacco product is counterfeit or not.
[Translation]
Most recently, on September 16, at our Cornwall port of entry, border services officers stopped a truck that was subject to a lookout for smuggling contraband cigarettes. During the examination, two false compartments were located in the box of the pickup truck. Concealed in the two compartments were 14 cases of contraband cigarettes containing a total of 700 cartons, with 200 cigarettes each. This seizure demonstrates CBSA's success when officer training and intuition, detection and enforcement all come together.
[English]
Mr. Chair, while the specific amendments in the bill before the committee are expected to have minimal impact on the daily activities of the agency, the CBSA continues to be an active and engaged partner in the law enforcement continuum on this serious and important matter.
I hope I have provided the committee with a better understanding of the partnerships that are required among many organizations to tackle the trafficking of contraband tobacco. I would be pleased to take any questions the committee may have.
Superintendent Carson Pardy, Director of Operations, OPP East Region, Ontario Provincial Police: Good morning, Mr. Chair and committee members. It is my pleasure to appear, once again, before you on behalf of the Ontario Provincial Police.
The Ontario Provincial Police continues its efforts to control the manufacture, distribution and sale of contraband tobacco. Contraband is, of course, closely linked to smuggling and organized crime. In fact, it is impossible to separate the three. Since these activities cross many jurisdictions, the fight against contraband tobacco, smuggling and organized crime requires effective partnerships on the part of all police services.
Despite various partnerships formed since 1996, including the Cornwall Regional Task Force, a significant amount of contraband tobacco smuggling continues to take place on the St. Lawrence River near Cornwall and through the Akwesasne First Nation.
In 2010, we expanded our policing partnership within the Cornwall Regional Task Force team, which now consists of officers from the RCMP, the OPP, Cornwall Community Police Service, the Ontario Ministry of Revenue, the Canada Border Services Agency, Public Prosecutions Services Canada, and provincial prosecutions. They are also part of this team. The Cornwall Regional Task Force is a proven, effective joint forces operation, contributing largely to public safety.
Within this task force, OPP officers work directly with the RCMP and have enforcement authorities that they otherwise would not have. Elsewhere in Ontario, under current provincial law, police services cannot conduct search and seizure of contraband tobacco unless Ministry of Revenue representatives are present. However, in 2011, some much-needed changes to provincial legislation gave police in Ontario the authority to directly seize illegal, unmarked tobacco if it is in plain view — and I stress ''plain view'' — and lay appropriate charges without the involvement of the Ministry of Revenue. More severe fine levels for possessing illegal cigarettes in Ontario were also introduced. From the beginning of 2010 to the present, OPP highway enforcement teams have confiscated tens of thousands of cartons of contraband cigarettes.
As the price of contraband tobacco has soared, increasing criminal profits for those involved in the smuggling and distribution, public safety concerns have also increased. Smugglers have used private properties, such as docks and waterfront homes, to break the law. Smugglers have been known to act aggressively with anyone who tries to stop or challenge them. They also used high-powered boats at night and at great speeds without running lights, creating a significant navigational hazard.
Of course, problems with contraband tobacco are not limited to smuggling in the Cornwall region. The southwestern part of Ontario is also involved. Smoke shacks, as they are commonly referred to, are still a presence in the Highway 6 corridor which borders the Six Nations community. Most are strategically located so non-Natives can purchase untaxed cigarettes, an illegal act. However, it is the possession of the contraband cigarettes by non-Natives that is clearly illegal and enforced to the best of our ability.
The sale of tobacco from smoke shops is a multi-agency issue and not one that the OPP alone can address. The OPP does not enforce federal tobacco legislation and provincial tax laws, but we do work in cooperation with the agencies responsible. When enforcement action is taken by the Ontario Ministry of Revenue, the OPP provides support to ensure public and traffic safety.
While anyone can smuggle or sell contraband cigarettes, the activity in Ontario is often tied to residents of various First Nations communities. This can complicate enforcement, as the issues can be compounded with claims related to treaty rights and traditional Native practices.
Contraband tobacco is a complex issue, and I have only touched on a few aspects of the problem in my remarks. As always, the Ontario Provincial Police supports any legislative changes that can be shown to reduce and deter the smuggling, distribution and sale of contraband tobacco.
Thank you and I would be very happy to answer any questions you may have.
The Chair: Thank you all. I have a long list of questioners, beginning with Deputy Chair Baker.
Senator Baker: Thank you to the presenters. I will try to be as brief as I can because we're under time restrictions. I will ask three specific questions.
Mr. Leckey, you mentioned that in the last two decades the scene has changed as far as smuggling is concerned. We hear a lot about smuggling as it relates to the First Nations. However, the biggest smuggling case that I know of within the past two decades is a case now that is before our courts today in a civil action involving the Tobacco Growers of Ontario versus the large tobacco companies. Part of your submission was that this has now changed, so we don't have the large tobacco companies doing the smuggling, but smuggling has now switched to the areas of First Nations. Is that correct?
Mr. Leckey: Certainly the large tobacco companies are not involved anymore.
Senator Baker: That's gone. You are sure?
Mr. Leckey: Well, we are not seeing it.
Senator Baker: Anymore?
Mr. Leckey: The two large court cases with extremely large penalties that were paid by the large companies had a very significant impact on that type of activity.
Senator Baker: Good.
Mr. Leckey: What we are seeing is very large quantities of fine-cut tobacco being smuggled in, and of course that is the kind of tobacco that goes into illicitly produced cigarettes being produced either on the American side or the Canadian side and finding their way into the illicit tobacco market.
Senator Baker: Thanks to the RCMP, that agreement was reached with the large tobacco companies, and they agreed that they were guilty or they admitted to smuggling over a period of time.
Let me address a question to Mr. Bhupsingh now, because he's an expert in this area. When we look at the actual wording of the legislation, the key words are ''unless it is stamped.'' Then it says the definition of stamp is under section 2 of the Excise Act, 2001. I recall when that act was passed. I think the definition of ''stamped'' is there's a stamp showing that the excise tax has been paid by the manufacturer. Is that correct?
Mr. Bhupsingh: That is correct.
Senator Baker: In other words, you find tobacco, whether it is in a package or not, and you find that label that goes over that says ''excise tax.'' That's the stamp.
Well, the tobacco that's manufactured in First Nations today, according to a recent judgment of the superior court in the province of Ontario, has that stamp affixed to it, yet it is a lot cheaper than the tobacco you would find outside. So none of the tobacco manufactured under permit in the First Nations that has that stamp affixed is covered by this legislation. Is that correct?
Mr. Bhupsingh: That is stamped? It wouldn't be included by this legislation. The problem is that the producers are mixing illicit activity with licit activities. That is the difficulty that we are facing. What we are seeing in Ontario and Quebec is that there is the illicit manufacture of tobacco that is not stamped. That is what this particular bill is trying to achieve in terms of targeting organized crime elements in these illicit manufacturers that are on reserve.
Senator Baker: Finally, a question to the police: You mentioned, both of you, the seizures that you have made on the highways, snowmobiles, boats and this sort of thing. You mentioned ''in plain view,'' which is very important. Should any change be made to the law that you can think of? I don't know if you can answer this question. You would have to have what we commonly refer to as articulable cause or to make an investigative detention. You have heard of these phrases, I'm sure, from your police officers. What are the grounds for an investigative detention? What do they have to observe in order to ground an investigative detention to allow for a search to take place or an investigation to take place for a search? Do you still find that that's a difficult road to follow and that, in many cases, your officers are not able to do what they want to do because of the restrictions in law, which I agree with, by the way, that prevent, in some cases, legitimate searches from taking place?
Mr. Pardy: I can speak from the Ontario Provincial Police perspective. I would agree with you, senator, that with the law as it exists today, the ''plain view'' doctrine is available to all law enforcement officers. It is well entrenched in our training and in common law authorities within our courts. Plain view being what it is, the officers must see.
I would agree with you that, beyond plain view, what they see without touching or uncovering or searching, they would have to rely on the statutory authorities found in the Criminal Code to have reasonable and probable grounds to seek a search warrant before a court in order to conduct a search beyond plain view.
Senator Baker: Does the RCMP have any comment?
Mr. Cormier: We have somewhat different authorities under the Excise Act, which provides us obviously some ability to effect searches, but obviously everything has to be based on reasonable and probable grounds, also many times with the aid of court orders. The Charter of Rights exists, and we have to respect that and act within the boundaries of the laws provided to us.
Would there be any other legislation or laws that could improve that? I'm not sure that I'm in a position to answer that exact question.
[Translation]
Senator Boisvenu: Thank you very much for your very enlightening comments. I have a few questions I hope will not be too tough. Aboriginal representatives came before us to fiercely argue against this bill. They claimed that there was no organized crime in their communities. However, I see in your brief, Mr. Cormier, that organized crime is allegedly involved in the production. Is that somewhat contradictory to the position of aboriginal chiefs, who were saying that there was no contraband? When you talk about production, you are referring to production in aboriginal communities, correct?
Mr. Cormier: To answer your question, yes, organized crime is everywhere. No one is safe from organized crime. Of course, when we target crime involving tobacco, we are not focusing on geopolitical criteria. We are focused on organized crime, so that is what we target. So, yes, organized crime is present on Indian reserves, as well. No one is immune to that. It is unfortunate, but that is how things are. In fact, most of the tobacco is produced on Indian reserves.
Senator Boisvenu: Legally.
Mr. Cormier: Yes, legally, but the diversification of legal products will also result in those products ending up on the market illegally.
Senator Boisvenu: The bill is facing fierce opposition from aboriginal authorities, who claim the legislation will affect workers. They say that the production of cigarettes creates jobs and has improved their communities. Moreover, arrests and fines would potentially affect small fry.
Considering the aboriginal political authorities' opposition to this bill, what will be your relationship with aboriginal police officers who may come upon resistance or be pressured into not getting involved? We have seen what has happened. Senator Dagenais talked about Chief Gabriel, who was pressured in such a way. How will you manage to create some sort of harmony and balance between your work and that of aboriginal police officers if problems could arise in terms of political opposition?
Mr. Cormier: I have a few comments in response to your question. The goal is not to target workers involved in the industry; the goal is to target organized crime. Any aboriginals involved in organized crime will have to be investigated, as well. Partnerships and relations with aboriginal communities are a sensitive topic that must be managed carefully. We have to consider their positions, their rights and the illegal aspect, and then figure out how we can work together. That is something we are currently doing. We are having discussions with them. We are already working with them. I do not think the new laws will make our relationship worse. That is an aspect we will have to be aware of, and we will have to work on maintaining this relationship.
[English]
Senator Cordy: I have a follow-up to Senator Boisvenu's question to you, Mr. Bhupsingh. In your speech, you talked about First Nations communities being receptive to working with the federal and provincial governments to address organized crime, and we heard that from our witnesses. You said Public Safety Canada, along with its federal partners, will continue to explore additional countermeasures to address contraband tobacco in partnership with provincial, territorial and First Nations governments. That is a laudable thing to do.
We heard from a number of Aboriginal witnesses yesterday and last week, and I met with them in my office. Not one Aboriginal group was consulted in the development of this bill. You speak about provincial partnerships, but not one Minister of Justice from any provincial or territorial government was consulted. If we talk about partnerships and relationships, why weren't these groups consulted in the development of the bill?
The bill was before us a year and a half ago. When I spoke in the Senate at that time, I spoke about the importance of consultation. Parliament prorogued, and there has been a year where consultation could have taken place. None has taken place before the previous bill, nor this bill. In terms of building relationships, I think that would be a very important part. Could you comment on that, or is that within your realm of jurisdiction?
Mr. Bhupsingh: I'm happy to comment, Mr. Chair, to the senator's question.
You are right: There wasn't consultation done on this particular bill. The witnesses we have today are largely involved in the enforcement side of the contraband tobacco issue. Regardless of whether there was consultation being done specifically on this bill with Aboriginal groups, there are long-standing and existing relationships with provincial partners and Aboriginal First Nations on this particular issue.
I can tell you that in Budget 2013 there was an initiative put forth for an additional 10 First Nation officers. I would say we are in a lot of discussion with First Nations to implement those 10 First Nation officers, to really get at the heart of this particular issue.
I am personally engaged in public safety with my federal partners who engage the provinces, territories, law enforcement and First Nations chiefs to discuss these issues and proactively to go forward in terms of looking at initiatives outside of just enforcement, whether that's awareness campaigns to the general public to address these particular issues.
I can't get into why First Nations or provincial counterparts weren't consulted for this particular bill. That's not within my mandate. I can tell you that, with respect to the witnesses here today on the enforcement side, we are regularly engaged with First Nations stakeholders and our provincial counterparts.
Senator Cordy: If you read the testimony, you'll find that all of the Aboriginal groups who appeared before us are extremely upset and unhappy that they have been left out of the consultation process.
Mr. Leckey, I've been to the Cornwall border entry, and I was very impressed by the work done by the border officials. It was certainly interesting and informative to be taken behind the scenes and see what goes on. It is certainly a very challenging job.
First, do you have numbers to give us over the past year of the number of packages of illicit tobacco that have been stopped at the borders?
Second, do you do random checks? I know you spoke about the training of the officers at the border entries. Do you do random checks or just checks based on intelligence that you would gather from your partners?
Mr. Leckey: I will start by answering the second part of your question.
The majority of our checks are intelligence-driven. Another important number of our checks are driven by suspicions formed by border services officers when they are face to face with an individual in front of them — suspicion, knowledge, expertise, intuition even. Random checks are also done.
I will be happy to provide you with an update on statistics. The two major types of seizure we make have to do with fine-cut tobacco and cartons of cigarettes. Over the last three years, we saw a significant upsurge in seizures of fine-cut tobacco. In 2011, we seized 35,000 kilograms; in 2012, 148,000 kilograms, so a four-fold increase; and in 2013, 221,000 kilograms, so six times more than two years before.
Up to the end of August this year, the equivalent number if 54,000 kilograms, a significant drop from 221,000. If we were to project that number to the end of year, it would be about 80,000.
Why might it have dropped this year? We believe it has something to do with law enforcement activities, with the success in making seizures in recent years, and not insignificant in that equation would be the outcome of Project Lycose in Quebec, in April 2014.
The Chair: Where do most of those seizures occur?
Mr. Leckey: The majority of those seizures, upwards of 80 per cent of them, are made on the Quebec border and in southeastern Ontario.
Senator Cordy: Where were they coming from mainly?
Mr. Leckey: In those cases, at the land border in the areas that I just mentioned, they were coming from the United States.
The other significant amount of seizures that we make has to do with cartons of cigarettes, and there we see a trend toward seizures of cartons of counterfeit cigarettes. By far, the largest country that they are coming from is China, followed by South Korea and then the United States in third place.
[Translation]
Senator Dagenais: I want to thank our guests for joining us. I want to go back to our relationship with Mohawk police officers. As a Sûreté du Québec police officer in the 1990s, I worked on the Akwesasne reserve, on the Quebec side, where I came across colleagues from other police forces. If you recall, two aboriginals were murdered at the time because of cigarette contraband. Mohawk police officers no longer had any authority on the Akwesasne reserve. That is why various police forces were involved. We were actually on the ground for two or three years. At that time boats with their lights off were crossing the river at full speed. We would occasionally manage to intercept some of them.
My understanding was that a Mohawk police force has been re-established in Akwesasne. I would like to know what kind of a relationship you have with that police force. We know the force is made up solely of aboriginal brothers. Can Mohawk police officers be trusted? Do you have a good relationship with them?
Mr. Cormier: I can definitely answer your question. However, I cannot provide you with details, as the aboriginal police force does not report to me. I can confirm that the members of C Division in Quebec have a good relationship with aboriginal police. The relationship is a delicate one that must be managed carefully. We want to avoid another similar crisis. We do not want that to happen again. We still have a good relationship with them. We collaborate with them. We also have another group that has joined Montreal and is participating in our operations. Some members of the aboriginal police force are even part of our Montreal teams.
Senator Dagenais: I know that, at the time, mistrust made it hard for us to enter Kanesatake and Akwesasne. Do you have access to those areas? Are Mohawk police officers the only ones authorized to enter the reserves?
Mr. Cormier: Our relationship makes it possible for us to enter the reserves, but as I already said, we have to be diplomatic. We enter a reserve in the spirit of cooperation with the Mohawk police.
Senator Joyal: I would like to come back to that issue, as I feel it is a key factor when it comes to the effectiveness of all objectives in the fight against contraband tobacco.
[English]
Mr. Leckey, I noticed that when you made your presentation, your written brief, on page 3 you did not refer to the cooperation of the Akwesasne police. You added it verbally, and it drew my attention.
I have the impression that we are walking on eggshells when we're dealing with the Aboriginal police forces. It seems to me that if the RCMP unit that you announced has been in operation since last summer, the Anti-Contraband Force, is to be effective, I don't see how you cannot partner with the Aboriginal police forces. You will always be stopped at the border of the reserve. It is, as we say in French, une vue de l'esprit. It's to think in pink to believe that we are going to be effective, you're going to be effective, the Department of Public Safety will be effective, the trans-border group will be effective, if we are not in a trust relationship with the police forces and if this is not formalized in a partnership that has been negotiated and defined. Otherwise, you'll be leading an investigation, and it will depend on what the political ambience on the reserve is whether they will say no or yes to you to come in or get out. It seems to me that there is a need, on a long-term basis, to develop that kind of partnership, which is essentially based on trust. We can think what we want to think about the Aboriginal police, but we have no other choice than to deal with them.
Is it not the preoccupation of the trans-border group or you at the RCMP or at the OPP to have that kind of systematic approach to the issue, instead of dealing with it on an investigation-by-investigation basis, hoping that when you are ready for an operation the Aboriginal police will cooperate with you? Would it not be better to have a broader understanding and share objectives and have a clear discussion with them?
Mr. Pardy: I can certainly speak on behalf of the Ontario Provincial Police in that regard. I think it is well known that relationships are much better fostered before there is a crisis so that we are speaking a common language and understand each other's roles. From our perspective, we have a very solid, trusting partnership with the Akwesasne Mohawk Police Service. We meet with them on a regular basis. They are part of our joint management team efforts on all organized crime issues in the Cornwall area. We have conducted investigations at their request. They know that we are one phone call away, and we do respond when they call. Their focus on the territory is no different than ours in our communities in eastern Ontario. Whether it is organized crime, the illicit drug trade, serious crime, crimes against persons, they routinely call upon our assistance. We have been on the territory with our tactical teams to do take-downs on serious criminal matters.
I do believe, however, that the tobacco issue is unique in that within the territory, as you have heard from First Nations leaders, the community itself supports it, so it places the police in, I would respectfully submit, a very awkward position.
However, I can tell you unequivocally that our relationships are ones of regular contact. We have our provincial liaison teams that are regularly meeting with them. We work with First Nations youth in programs to assist them. Those relationships do exist, and we spend a considerable amount of time and effort to ensure that they are meaningful relationships.
[Translation]
Mr. Cormier, did you want to add anything?
[English]
I referred to you both individually, so I will give you a chance to at least comment on that.
Mr. Cormier: Yes, if you don't mind, I'd like to add something because I think your question stems from my previous response as well.
Just to reinforce, yes, we recognize that there is always room for improvement in any relationship. We do have a working relationship with them. We do work together on joint investigations. As far as the relationship and improving it, there is always room for improvement. There is always still a relationship that exists currently, and it has also come a long way from the days in Quebec of the Oka crisis and the other crisis described there as well. We have come a long way, and it's a relationship that we continue to foster.
Mr. Leckey: Thank you for your comments. I'd like to say that I agree with every single one of your comments. Law enforcement that involves Native reserves cannot succeed without the active support of Native police agencies.
You are quite right; I did add a few words to my opening remarks that weren't in the written version. I specifically mentioned the involvement in one particular joint section, the integrated Criminal Intelligence Section of the Akwesasne Mohawk Police Service. I did that because I wanted to emphasize the point you are making.
It might be worthwhile noting, and I'm not sure if I'm stealing Mr. Bhupsingh's thunder here, two other initiatives that actively seek to involve native police. The Akwesasne Partnership Initiative, Public Safety led, aims to provide that police service with the opportunity to participate in collaborative, investigative activities with the RCMP and other agencies such as the CBSA that target criminal activity. The First Nations Organized Crime Initiative, also Public Safety led, has similar objectives. Our relations with the Akwesasne Mohawk Police Service are daily, they are close and they are good.
Senator McIntyre: Thank you for your presentations.
Yesterday our committee heard from Mr. Ed Myers, an editor of FrontLine Security, a quarterly magazine that has a controlled distribution of some 20,000 readers and an estimated 50,000 e-viewers, comprised mostly of law enforcement, security personnel, including border security, as well as government policy professionals from all government levels. The magazine focuses around issues of public safety and national security.
Approximately two years ago, the magazine decided to do an investigation on organized crime and contraband tobacco. According to Mr. Myers, true enough, the investigation pointed to the links between illicit trade and organized crime, especially biker gangs. The magazine's findings and thoughts on the matter were then published.
Mr. Myers then went on to say that his group tried to look at how law enforcement was responding to the situation. I have to admit that he painted a rather dark picture of this situation. I say this because, to my surprise, and I'm sure colleagues recall, his answer was that they could not find, and I'll use his own words, ''a single credible law enforcement voice on the subject that understood the extent of the contraband activity.''
He then concluded his opening statement with nine points, two of which are as follows: Local and provincial law enforcement need the mandate and the resources required to stop the flow of contraband tobacco. Obviously you agree with this one. The other one is that law enforcement has neither the mandate nor the motivation to provide a meaningful response to the illicit trade in tobacco and its public safety or national security implications. These are pretty strong words. I would like to hear you further on that, especially about his use of the word ''motivation.''
Mr. Cormier: I can probably answer part of that, but I would not necessarily have a position or a statement to make in relation to that because I am not privy to Mr. Myer's report that he wrote on this, or his research. I would like to have a chance to read it before I comment on it.
As far as connection of illicit tobacco to national security implications, certainly there are connections to organized crime. Is organized crime connected down the road as well to terrorist financing types of activity? Possibly, but I would only be speculating at this point.
I don't know if my colleagues have something to add.
Senator McIntyre: What disturbs me a bit is that he used the word ''motivation.'' From what I have heard today, gentlemen, you do have motivation because you want to put this tiger to the ground. Is that not correct?
Mr. Leckey: Of course, that's absolutely correct. We are highly motivated, as are the colleagues beside me, to, as you say, put this tiger to the ground, because if you look at the term ''tobacco smuggling,'' each of those terms leads to something else. Smuggling leads to organized crime leads to, once the tobacco is in Canada, serious health issues, to health costs. If you look at tobacco, the same networks that smuggle tobacco can also be easily exploited to smuggling cocaine, heroin and people. So starting with tobacco smuggling, we are highly motivated to address the issue at its origin and put it to bed.
Senator Batters: Thank you very much for being here and providing us with some perspective on the significant problem that contraband tobacco has become in these certain areas in Canada. I think a couple of you were previously before us on this particular bill. Maybe all of you, but I'm not sure. We previously heard testimony about the same pipelines being used to smuggle tobacco also being used to smuggle drugs and guns, and Mr. Bhupsingh said this morning it is also used for human trafficking. Could you provide more information about that particular part of it? As you said, this is not a victimless crime, even though we have heard many First Nations organizations try to portray that picture. I would like to hear more about contraband tobacco pipelines being used for these other significant criminal activities and organized crime developing those pipelines for those purposes.
Mr. Bhupsingh: On the human trafficking opening statements, we have just seen, in terms of our look at organized crime groups, that the profits from contraband tobacco are being used for other illicit activity, including human trafficking. I can't get into names and sources, but there are links to other illicit activities, which is really troubling and speaks to the other conversation we were just having about the motivation behind trying to tackle some of these groups that we want to take down. I would just say that it is a problem for us for all the reasons that we've mentioned.
I would add that it's a very sensitive issue because tobacco in general is a legal commodity. The problem is the illicit activity around a legal commodity. The other piece to this is with Aboriginal communities. In many ways, it's a very sensitive issue because many Aboriginal groups have a spiritual and cultural connection to tobacco, so it's always a very fine line in terms of ensuring that we're respecting those rights but also ensuring that we're enforcing the law and attacking the criminality elements around this particular issue.
Having said all of that, I would just say for the committee that this is an issue about which we are very motivated. This is a significant issue for us, and we want to do something about it. I would just add that Bill C-10 provides us with a couple of extra tools and instruments to help us in that battle.
Senator Batters: Are there other panellists who can comment and specifically talk about these same pipelines being used to smuggle drugs and guns?
Mr. Pardy: The word ''pipeline'' is sometimes maybe confusing to people. The Highway 401 corridor is well known to be a pipeline for illegal criminal activity. Our enforcement efforts along that corridor have proven that. Today, our enforcement teams might interdict a load of contraband tobacco. Tomorrow, it's narcotics. The next day it could be human trafficking, and so on.
''Pipeline'' is a word used to describe the routes they take. They generally take the path of least resistance. With the Highway 401 corridor being one of North America's busiest freeway corridors, it makes their passage that much easier. All commodities seem to use the same route.
Senator Batters: Absolutely.
Mr. Leckey: It is very rare that we encounter a single-issue smuggler, a smuggler that will say, ''I will do tobacco, but I won't do heroin or cocaine.'' One thing does lead to another once the pipeline is established.
Also involvement in contraband tobacco tends to be an entry-level step on the organized crime ladder. Many young people start by doing a run of cigarettes across the border and they will progress from that into more serious organized crime networks.
Senator McInnis: Thank you for being here.
Senator Joyal hit the nub of the difficulty here. This is a quote from an article that I read, and it was alluded to here by the Natives that appeared before the committee. Let me just quote:
. . . they have done far more for economic development than federal or band governments, and challenging the legitimacy of native administrations they call a creature of colonialist laws.
You may want to take the tiger by the tail and put it to bed, but it strikes me that this is more than enforcement. It seems to me that the protocol and approach will be extremely crucial here. These cigarette lords live on the reserves and employ a lot of people, and it is a very tender situation. We have heard that.
Some are working towards a regulatory regime that will legitimatize this production, but it seems to me that this is more than enforcement. This is more negotiation. Thirty per cent of the cigarettes produced in Canada that are smoked are produced by the Native communities. It is a major challenge, and it is not something that can be thrown to the ground quickly. I see it as a very tender situation and one that has to be treated in a way that does not provoke. I would like for you to comment on that.
Mr. Bhupsingh: As I noted in my opening remarks — and, senator, I think you were getting to this — that enforcement alone is not going to solve the problem just because of the complexities.
There were a number of issues raised today that we would be in agreement with. The first thing is enhancing our existing relationships with First Nations and provinces and territories to ensure that we remain cognizant of all the issues that are going on in these contexts. The federal government isn't going to resolve this issue by itself.
I will not go over it again, but we are engaged with these partners. I agree we need to continue to enhance these partnerships.
The other piece that has come before this committee today and previously is largely around awareness, and that's to attack not the supply side of it but more the demand side of the health impacts with youth getting involved at early stages with respect to crime. There is a lot that could be done in terms of public awareness campaigns to talk about the harms and the counterproductive impacts that happen.
Last is just in terms of collaboration between not only our provincial, territorial and Aboriginal counterparts, but also our U.S. law enforcement and regulatory agencies to really develop additional integrated models.
One thing we haven't talked about is we have some integrated law enforcement initiatives that are helping us with the contraband tobacco initiative such as Shiprider, which is an integrated law enforcement marine surveillance and interdiction initiative that we have with U.S. law enforcement that helps us on the water boundary between the Canada and U.S. border.
There are probably other opportunities for us there to tackle those issues. It is a combination of working on our partnerships, awareness, and making sure that we're looking at new opportunities, at least from an enforcement perspective, to try to tackle this problem.
The Chair: Superintendent Cormier, in your opening statement you referenced the Geospatial Intelligence and Automated Dispatch Centre. You may have indicated it is $24 million for this fiscal year. I think in your opening comments you said you're looking at not down the road too far here — we're halfway through the fiscal year — and I'm wondering if you have encountered some problems with respect to how you move on that. Do you see it being completed with respect to the commitment made for this fiscal year?
Mr. Cormier: We didn't run into any issues there. Obviously it is a complicated process that involves accessing the money, for one thing. In accessing the money, we have to provide a compelling plan as to what technology will be deployed, so it is an ongoing project right now.
The Chair: How does that work with the United States? What kind of coordination is there? Is there cost sharing? These sensors are going to be detecting people entering Canada and I assume going the other way. How does that work?
Mr. Cormier: There is collaboration with the States, but there is no cost sharing on that initiative. The sensors are going to be on the Canadian side to protect Canadians, but it will inadvertently or vicariously benefit the U.S. partners as well.
The Chair: It is one thing to see a boat coming across the lake or river, but what are your interdiction capabilities? How quickly can you respond to something that the sensors pick up?
Mr. Cormier: We have detachments strategically located along the border where those sensors are located. It is monitored 24-7. We have personnel ready to respond 24-7.
I don't have the details with me, but there are already sensors in certain locations that have resulted in successful cases in that regard; so where detection was made by the sensors, prompt dispatch occurred, a response ensued, and some apprehension ensued.
The Chair: I may be wrong, but the RCMP is responsible for enforcement between ports of entry. There's a case — I think it was out west, maybe Manitoba — in the last few weeks where CBSA folks tried to assist the police and were taken to task by management.
CBSA assets and personnel, if you have a situation where your people are unable to respond in a timely way, you can't call on CBSA. Is that the case?
Mr. Cormier: We can't outside of the border, and maybe Mr. Leckey would be in a better position to respond to that, but there are limitations in how those resources can be deployed.
The Chair: If they had that flexibility, would it be helpful to you in terms of how you respond?
Mr. Cormier: If it would mean an increase in personnel, definitely. We are working together already, but yes, it could be a consideration.
Mr. Leckey: The CBSA has considerable legislative authorities but most of them are tied to the port of entry. Once you get outside the port of entry, there are legislative constraints.
Senator Joyal: What is the distance that you cover?
The Chair: It is just the ports of entry he's indicating.
Mr. Leckey: The boundaries of a port of entry.
Senator Joyal: Just around the border crossing?
Mr. Leckey: Yes.
The Chair: You indicated legislative impediments. I thought it was an order-in-council.
Mr. Leckey: Certain constraints have been imposed in a thoughtful manner by Parliament that don't make it impossible for us to collaborate with other law enforcement agencies outside of a port of entry but do require some prior thought be given to it, and apply certain limitations and constraints to what we're able to do outside of a port of entry.
Senator Baker: The suggestion has been made the last time that this legislation came before us that we should amend the Customs Act as follows: ''Officer'' means a person employed in the administration or enforcement of this act and includes any member of the Royal Canadian Mounted Police — which is there — adding the words ''or any provincial police force.'' Do you have any comments on that, Superintendent Pardy, or shall I leave it and go to another question?
Mr. Pardy: I do believe that while the two pieces of legislation are very closely linked, they're also very different. The Excise Tax Act is largely a commodity-focused enforcement initiative, while the Criminal Code provisions focus on the act itself.
If our officers were designated under the Excise Act, there are significant training implications, whereas under the Criminal Code it's the same laws, the same search authorities, just a different commodity.
I think either would work. I would agree with you. However, the Excise Act designation certainly does pose some difficulty. It also doesn't speak to our mandate, because currently we have no mandate in the province of Ontario for that piece of federal legislation.
Senator Baker: All in all, you're saying you wouldn't have any objection to it, given these other considerations being taken into account. You said you would have to educate your members in an additional area, whereas the Criminal Code is fairly consistent, but the Criminal Code provisions relating to search of tobacco products are constantly changing, as it is with marijuana and other things. Once upon a time, you could use a dog for a particular purpose and now, as you know, a dog search, at my last check, is actually a search and cannot be used in certain circumstances.
Do you have a regular program of keeping RCMP, border and provincial police officers up to date on the ever-changing law as far as reasonable expectations of privacy are concerned in automobiles, boats, airplanes and in other places? Is this a constant thing, or do you just leave it alone and the mistakes are made and then whatever you seize is just released at the end of the day and everybody is acquitted?
Mr. Pardy: Sir, it is a daily evolution.
Senator Baker: How do you do it?
Mr. Pardy: With the advent of social media, electronic transmission with video training through teleconferencing. In the past, when new case law came out, it was mailed out and hopefully it reached everyone. Today, if a case is adjudicated in the courts, we know about it the next day. We're communicating the impacts of those adjudications directly to our officers that are enforcing these laws.
I would suggest that we have a very robust, like all of our partners, specialized training activity. Even the officers on the ground or front-line officers are mandated in Ontario under provincial law to go through annual re-qualification and training.
Senator Cordy: Superintendent Cormier, could you talk about the 50-officer RCMP Anti-Contraband Tobacco Force? I know it has just started, so it's difficult to give full analysis of what is going on. What will it do differently? How will it make a big difference in what is going on? To go back to Senator McIntyre, Mr. Myers suggested yesterday that, and I will quote what he said:
. . . my view would be that instead of spending $90 million on the RCMP, take half that money and create an investigative ombudsman position and give him the powers to investigate contraband tobacco and its ancillary issues at the federal, provincial and local levels.
What will it do? How will it make things better? How will it make things different? Could you also tell us, where do these 50 officers come from? Are we short 50 officers in the RCMP — they're still members of the RCMP, but for other jobs within the RCMP have we just pulled them from other areas without replacing them or, in fact, are these 50 new positions within the RCMP?
Mr. Cormier: I will try to be brief and to the point. There are two 25-person teams located in the provinces of Quebec and Ontario. The benefit that will derive from that will be that they will have a focus on tobacco enforcement as opposed to previously where they were part of the greater federal policing resources.
The reality is that no new funding had come for those positions, so yes, those positions came from within the RCMP, but that is not new. It was a priority identified by the Government of Canada, and we are engaged to deliver. It is common practice to assess the greatest risks and threats that exists and where resources should be deployed and reassigned.
It is always a challenge. Mind you, it is never an easy task, but that is reality.
[Translation]
Senator Joyal: Mr. Cormier, in you presentation you referred to, and I quote, ''The contraband tobacco enforcement strategy.''
[English]
In English, it's the Contraband Tobacco Enforcement Strategy, or CTES, a strategy that you have come to publish in 2008. Do you have the document with you now?
Mr. Cormier: No, I don't, sorry.
Senator Joyal: I don't want to embarrass Mr. Cormier. Could you tell us in succinct words what is the recognition of the role of the Aboriginal police in that strategy?
Mr. Cormier: That strategy talks about the partnership, obviously. You need that relationship and partnership, not only on the prevention enforcement awareness, but also I should say in all three pillars of the enforcement, awareness and education process.
Senator Joyal: Could you send it to the clerk of the committee so we can look into it and have an idea of at which stage they are involved and what is the role and responsibility that you recognize for the Aboriginal police forces in that strategy?
Mr. Cormier: I will do that.
Senator Joyal: In 2013, it was re-evaluated. If in the 2013 document, again, there was a re-evaluation of the role of the Aboriginal police forces, I would be grateful if you could send that also so that we could have an idea or a clear perception of where they fit in the picture, if I can use that popular expression.
Mr. Cormier: Absolutely.
The Chair: Gentlemen, thank you all for your very interesting and helpful testimony today.
Senators, we will now move into clause-by-clause consideration of the bill. Is that agreed that the committee proceed to clause-by-clause consideration of Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco)?
Senator Joyal: Mr. Chair, I want to inform the members of the committee that Senator Cordy, Senator Baker and I will abstain on the vote on this bill because we intend to introduce an amendment at third reading. We are not against the objective of the bill but, at this stage, we are not in a position to support it. That is why I wanted to inform you that we will be abstaining.
The Chair: Thank you for apprising us of that.
I will start again. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco)?
Some Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Some Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
Senator Joyal: Abstention.
The Chair: Carried.
Shall clause 3 carry?
Some Hon. Senators: Agreed.
Senator Joyal: Abstention.
The Chair: Carried with abstentions.
Shall clause 4 carry?
Some Hon. Senators: Agreed.
Senator Joyal: Abstention.
The Chair: Carried with abstentions.
Shall clause 1, which contains the short title, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Cordy: Abstention.
Senator Joyal: Abstention.
The Chair: Carried with abstentions.
Does the committee wish to consider appending observations to the report?
Senator Joyal: No.
The Chair: I should point out that the observation was included in our previous legislation and is on the public record, so there is really no necessity to repeat it.
Is it agreed that I report this bill to the Senate?
Some Hon. Senators: Agreed.
The Chair: Thank you all.
Senator Joyal: What is the subject of our next meeting, Mr. Chair?
The Chair: We are looking at the transgender bill; I believe it is Bill C-279. That should be interesting as well.
(The committee adjourned.)