Justice Committee on Dec. 3rd, 2013

[Paul Saint-Denis]

Quite possibly, but we felt it was as important for the Attorney General of Canada to be able to prosecute as well as allowing for the normal situation of the provinces to prosecute.

[Patrick Brown, Conservative, Barrie, ON]

Have there been other cases where it has been done that way?

[Paul Saint-Denis]

Well, yes, the drug offences, for instance. There's concurrent prosecution there. Our prosecution service prosecutes most of the drug offences, but in Quebec and in parts of New Brunswick, the provincial prosecution prosecutes drug offences. With certain Criminal Code offences, there is concurrent jurisdiction.

You have to remember that all of the offences of the Criminal Code are normally prosecuted by the provinces. That's the norm. So we've created something of an exception here, and there are a few other such exceptions in the code where both the province and the Attorney General of Canada can prosecute. So what we've done is add this particular exception to a small list of offences.

[Patrick Brown, Conservative, Barrie, ON]

Can you elaborate on the summary and indictable offences as they relate to this bill?

[Paul Saint-Denis]

Essentially, it gives the opportunity for the prosecution to determine whether to prosecute using a process whereby a lesser penalty is available if one prosecutes by way of summary conviction. If the circumstances are serious enough then the prosecutor can choose to go by way of indictment. Practically speaking, the process is more simplified when it's by way of summary conviction. It tends to be a little more complicated by way of an indictment.

[Patrick Brown, Conservative, Barrie, ON]

The other question I wanted to follow up on, and which we touched on a little bit, is where Bill C-10 states that a person “is guilty of an indictable offence and liable to imprisonment for a term of not more than five years and, if the amount of tobacco product is 10,000 cigarettes or 10 kg or more of any other tobacco product, or the amount of raw leaf tobacco is 10 kg or more.”

Can you elaborate on why these particular amounts were set?

[Paul Saint-Denis]

First, it was important for us to have a fairly significant quantity of product to justify a minimum penalty and also to resist a charter challenge. It would have been problematic if someone were selling a single cigarette and was looking at a minimum of 90 days. The courts would have had some serious problems with that.

It was important for us to have a certain quantity. We chose those quantities because they represent what the RCMP tends to focus on as a minimum. If an individual has 10 kilograms of cigarette product or 10,000 cigarettes, this is the kind of quantity that attract RCMP attention. The RCMP will get involved with lesser amounts but prefers to focus their attention on large-scale operations. For them, large-scale operations usually means a master case involving about 10,000 cigarettes. So, 10,000 cigarettes or more is what they'll want to focus on and that was the amount we thought was best.

[Patrick Brown, Conservative, Barrie, ON]

I have one last quick question.

Since you're in the policy section I realize there are a lot of funds involved in contraband tobacco. In your research have you found that the funds associated with contraband tobacco contribute to other forms of crime?

[Paul Saint-Denis]

We assume that it does to the extent that organized crime is involved. Organized crime usually is not limited exclusively to one very specific activity, particularly in the area of contraband. Often the same contraband routes will be used to smuggle not just tobacco but also drugs or firearms. The money that's made in one area such as contraband tobacco can be used to finance other illicit activities.

Yes, I believe that does happen.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is from the New Democratic Party, Madame Péclet.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you, Mr. Chairman.

I would like to thank Mr. Saint-Denis for being here.

My first question has to do with the sentences which have been imposed until now involving contraband tobacco. Can you give us any examples? Are there the beginnings of a jurisprudence by the courts?

[Paul Saint-Denis]

The jurisprudence varies widely. I believe that the imposition of jail sentences has only recently become more frequent. Up until the last few years, the tendency was more to impose fines. However, often people did not pay their fines, because they did not necessarily have the money to pay them.

I think that over time, the courts saw that there was a problem. The phenomenon of contraband tobacco is growing. Now there is a tendency to impose prison sentences, but they are not very long.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

So, if you compare mandatory minimums as laid out in the bill and the sentences which courts have until now handed down, what do you expect will happen?

[Paul Saint-Denis]

In this case, what is proposed by the bill puts us into unknown territory, because we don't know whether federal prosecutors will use the new offence or the former one.

If they use the new offence, we don't know whether they will proceed by summary conviction or on indictment. Therefore, it's a little early to try to predict what the results will be.

However, if you take into account the factors which call for a minimum sentence, I believe that, normally, the courts would have imposed a jail sentence anyway. But I don't know how long that jail sentence would have been.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

You are surely familiar with the Gladue report.

[Paul Saint-Denis]

Yes.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

In fact, I have two small questions about the report.

Do you believe that imposing a minimum mandatory sentence for someone who has reoffended could be in conflict with the report and its recommendations, in cases where a judge can take other factors into consideration when considering what type of sentence to impose?

[Paul Saint-Denis]

The Gladue report and the Ipeelee case are both based in part on the existence of certain provisions in the code. At section 718.2, it says that the courts have to take into account the circumstances involving an accused who is aboriginal. However, nowhere does it say that the government cannot make a legislative change to the impact of provision 718.2, as it applies to the aboriginal population.

This is not the first offence which calls for a mandatory minimum sentence. I believe that in this case...

Section 718.2 is a provision which was created by Parliament. Parliament can certainly, at its discretion, amend the intent of section 718.2 by imposing mandatory minimums in certain cases involving certain activities.

Section 718.2 is not an absolute provision. Section 718.2 must be interpreted in light of other provisions which are in the code. Some of these provisions call for mandatory minimums which would have the same repercussions on aboriginals as on other offenders.

Does this risk having a disproportionate effect on aboriginals? I don't know, because I do not know to what extent aboriginals are involved in certain activities related to what we call the trafficking of contraband goods. We know that in some cases, it is clear that aboriginals are involved in the manufacturing of a product. However, are they involved in the distribution of the product which was manufactured? Are they the ones who transfer, transport or distribute these cigarettes? I don't know.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

I am sorry to interrupt, but you might well know that in its most recent report, the Office of the Correctional Investigator pointed to a disproportionately high rate of aboriginals in prisons. Therefore, we might ask ourselves what the impact of Bill C-10 would be on the incarceration rate of aboriginals, since it calls for imposing mandatory minimums, which might go against the provisions in section 718.2.

[The Chair, Conservative, Mike Wallace]

Thank you.

Thank you for those questions and answers.

The next questioner from the Conservative Party is Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you, Mr. Saint-Denis, for your appearance here this morning.

In answer to a question from my colleague Mr. Brown, you elaborated a bit on the constitutional review process that you go through when you're drafting legislation. I wonder if you could elaborate more on what the department did to examine whether or not this legislation would withstand a constitutional challenge. Perhaps you could tell us a little bit about how that works generally within the department in relation to any new legislation that's coming forward.

[Paul Saint-Denis]

In this case, we're talking about minimum terms of imprisonment. We're aware that the courts have a certain view of mandatory terms of imprisonment. I don't want to say we've had conflicting judgments, but we've had decisions that will give constitutional sanction to certain terms and certain provisions with MMPs provided, and others have been struck down as being disproportionate.

When we're looking at creating a range of MMPs for an offence, either a new offence or an existing offence, we want to make sure that it will not be considered cruel and unusual punishment as set out in section 12 of the charter. We try to set up a system whereby perhaps some factors are attached to the imposition of the MMP. In this case, for instance, there needs to be a minimum quantity of contraband product. There need to be a number of previous offences for which there were convictions. The offence has to be prosecuted by way of indictment. By attaching all of these factors, we try to structure a system that will appear to the courts to be a rational link between the prohibited activities—the aggravating factors—and the imposition of the MMP. We think that in that fashion the courts will be able to examine that and conclude that it's a reasonable and rational approach to this offence.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

That's very good. The way you've explained it helps us to understand how that review is done. Is this done in every case of new criminal legislation?

[Paul Saint-Denis]

It's certainly done in every case where an MMP is being contemplated. You may recall that Bill C-10 had, for instance, in the case of drug offences, a number of MMPs dealing with schedule 1 and schedule 2 substances for things like trafficking and so on. For all of those offences, all of these penalties were available but only in the presence of aggravating factors. The use of aggravating factors is something that bolsters the argument that this is a reasonable penalty in light of the presence of the aggravating factors and this particular substance.

That particular legislation has been in force for just under a year now. I'm not aware of any successful charter challenge, but these are still early days, so there may be a successful charter challenge to those penalties. We think the regime and structure we put together was rational and defendable before the courts.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you. That's very helpful.