Justice Committee on Dec. 5th, 2013

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

I was told a number of years ago that a large percentage of the cigarettes being smoked by young people in high school in my community of Mississauga, which is a very urban area, and part of the Toronto area, are these kinds of contraband cigarettes.

One of my concerns, obviously, is the health of these young people and getting hooked on tobacco products in the first place, but also the fact that they are being sold these contraband tobacco products by the kinds of criminal organizations you're talking about. Once they've established a customer retailer relationship for tobacco, might they actually offer them some other product as well?

Do you see any link between those two things?

[Insp Jean Cormier]

As I said, it can be a gradual thing, or a graduating thing. You get involved in illegal cigarettes and it doesn't seem so bad, and the next thing, you don't know what may be offered. As I explained as well, the organized crime groups that are typically involved in cigarette trafficking are not only involved in cigarette trafficking, but also are involved in other types of contraband. It could be a possibility.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our final questioner for this panel is Madame Boivin, and I understand she's sharing her time with Mr. Jacob.

[Françoise Boivin, NDP, Gatineau, QC]

I will be brief, Mr. Chair.

I have a quick question for you, Inspector Cormier. Earlier I asked Mr. Leckey a question, and he said the statistics on contraband tobacco show an increase. Does the RCMP agree with this assessment? Have contraband activities increased? Last Tuesday a representative from the Coalition québécoise pour le contrôle du tabac appeared before the committee and told us that the statistics show a decrease in contraband activities.

So I'm trying to figure out what the facts are. You should know since you are investigating on the ground.

[Insp Jean Cormier]

The statistics presented by Canada Border Services Agency, or CBSA, are different from those of the RCMP. However, they coincide with the numbers we have seen. They presented statistics covering a similar period, in 2012 and 2013. While these numbers show an increase of 66%, the RCMP numbers show a decrease. However, this may be relative. The data collected by CBSA are not the same as those collected by the RCMP. There is therefore a correlation between them.

Moreover, let us look at other statistics we have, for example, for fine tobacco. Seizures increased by 105% between the months of January and June 2013 compared to the previous year. These percentages are calculated in kilograms. During the same period in 2012, 7,800 kilos of fine tobacco were seized. In 2013, during that same period, 16,000 kilograms were seized. From what I can see, based on the available numbers, there is definitely no decrease.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

Mr. Jacob, please go ahead.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Ms. Boivin.

Thank you to the witnesses for being with us today.

My first question is for Mr. Leckey. You are the Director General of Enforcement and Intelligence Operations at the Canada Border Services Agency. You stated that there was an increase in contraband but that you were not requesting additional resources.

In my riding, three border crossings have reduced their hours of operation. These are East Pinnacle near Frelighsburg, Glen Sutton in Sutton and Morses Line in St. Armand. There are repercussions on cyclists, on tourism and on agriculture that go beyond 4:00 p.m., as well as on the relationship between Canadian and American citizens. The regional economy has been severely affected. In addition, there is growing insecurity. I see a contradiction between increased contraband and decreased services. Personally, if I were a criminal, I would use darkness and small border crossings to smuggle contraband.

[Geoffrey Leckey]

That is a good question, thank you.

I will speak in my position as the director general of enforcement for the CBSA.

In my job, I'm responsible for intelligence, criminal investigations, and inland enforcement. We work together in a number of ways. One of those ways is to assess where the risk is highest. The information that we derive helps to guide the placement of the resources for all of CBSA, ensuring that those resources are placed in areas where the risk is highest. We consider ourselves to be an intelligence-led and risk-based organization.

I hope that helps to answer the question.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

You answered my question in part.

I will give the rest of my time to Mr. Kellway.

[Matthew Kellway, NDP, Beaches—East York, ON]

Thank you, gentlemen, for coming today. You've provided us with some sobering statistics on this particular issue. All of us are struck by the seriousness of the problem, and those statistics reinforce that.

Inspector Cormier, I'm looking at a graph showing statistics on cigarette seizures by the RCMP over time. They seem to have peaked around 2008-09, and have been on the decline since then. Meanwhile, on the border side of things, the seizures are going up at an astronomical rate. Inspector Cormier, did I understand your explanation for those declining statistics to be that, perhaps, they're being caught elsewhere, particularly at the border by the CBSA?

[Insp Jean Cormier]

Correct. That was part of my explanation. That would account for some of the changes.

[Matthew Kellway, NDP, Beaches—East York, ON]

That's interesting.

Mr. Leckey, you began your statement by saying that this bill will have a slight impact on the CBSA and what you are able to do to deal with this issue. I was struck, as well, by your assessment of how contraband is coming into the country these days, mainly in small packages from China, and I think I heard you say Korea, too—

[Geoffrey Leckey]

Yes.

[Matthew Kellway, NDP, Beaches—East York, ON]

—and probably not warranting criminal charges.

I'm looking at all of this and wondering if Bill C-10 is really missing the boat, at least in directly addressing the issue of contraband tobacco: where it's coming from, how best to stop it from hitting the streets, where youth are buying it, and those sorts of things. Could you comment on that, please?

[Geoffrey Leckey]

Yes.

The CBSA is responsible for enforcement at the ports of entry and the RCMP is responsible for enforcement between ports of entry. We see a situation where seizures being made by the RCMP between ports of entry are declining, but that's being matched by an increase in seizures at ports of entry.

At this time, when we are seeing a significant increase in seizures at ports of entry, Bill C-10 comes along and provides us with a new tool that enables us to refer those larger numbers of seizures we're seeing to the RCMP so that they can lay criminal charges.

In my opinion, it's good timing and good placement.

[The Chair, Conservative, Mike Wallace]

Thank you very much. That's your time.

[Matthew Kellway, NDP, Beaches—East York, ON]

Thank you.

[The Chair, Conservative, Mike Wallace]

Everyone, I want to thank the questioners today. I want to thank our witnesses for being here this morning and answering our questions. We appreciate your input.

Just so you know, we'll be dealing with this in the next hour. We will have another set of meetings with witnesses next Tuesday, and then next Thursday morning we hope to be doing clause-by-clause study on this particular item. Thank you very much.

Before we suspend for the next panel, on the table is a request for a budget of $512. It's been moved.

(Motion agreed to)

Thank you very much.

We'll suspend for a minute or two.

[The Chair, Conservative, Mike Wallace]

I call this meeting back to order.

Ladies and gentlemen, members of the committee, we're going to start again with our discussion of Bill C-10.

We're fortunate to have with us for the second hour from the Mohawk Council of Akwesasne, Chief Brian David and Chief Steven Thomas, and from the Mohawk Council of Kahnawake, Chief Gina Deer.

Thank you very much for joining us. You each will have 10 minutes for an opening statement, if you wish. Then we will go to questions and answers.

Chief David, would you like to start?

[Chief Brian David, Chief, Mohawk Council of Akwesasne]

Certainly.

Thank you very much for inviting us to make comments on this bill.

As you may be aware, we made a similar presentation last spring to the Standing Senate Committee on Legal and Constitutional Affairs.

My name is Brian David Tahononsoka:tha, and I am from the snipe clan. I am an elected chief with the Mohawk Council of Akwesasne, which is the elected government for the northern portion of the Akwesasne community.

The community of Akwesasne is located about 120 kilometres southeast of Ottawa. It is about 120 kilometres in distance away from Montreal. The territory is located along the St. Lawrence River near the city of Cornwall. It's intersected by the international borderline between the United States and Canada.

As most of you are aware, it is a multi-jurisdictional working environment. Part of our community is in the United States, part is in Canada, part is in the province of Quebec, and part is in Ontario. This is mostly not by our making but due more to the way constitutionally Canada evolved with Upper and Lower Canada, which were later defined as Quebec and Ontario. Naturally the international border has created the international line through our community. That gives rise to some of the situations we find ourselves in.

Because of our unique geography and close proximity to urban centres such as Ottawa, Toronto, Syracuse, Boston, and Philadelphia, it provides a prime opportunity for crime families to take advantage of this geographically strategic area in order to move goods back and forth across the line. We saw the bulk of that happen in the early 2000s up until about 2009. I understand from the previous presentation that there was a peak in 2009 and it's slowly declining, probably being picked up by the CBSA enforcement agencies at the border.

Part of the issue that we have, quite frankly—you all have a copy of my speech and I'll leave that for reference, hopefully—is that our community made a huge, large investment in ensuring that the St. Lawrence River is a safe environment to recreate in. That river means a lot to us. It probably defines our identity and who we are. Most of us as young people grew up with that river. We made a living off that river. We fished in the river. We trapped off the river. We used the river for transport.

Periodically throughout history we have these waves. From the 1930s with prohibition there was the movement of liquor into the United States. In the 1960s there was the movement of soft drugs, and the movement of gasoline. Now we find ourselves dealing with the movement of what is considered to be contraband tobacco by the authorities. I say “by the authorities”, because in a roundabout way, we don't really consider that as contraband until it leaves the territory.

The investment we made was to clear that river to ensure that we again had some sense of ownership over it so that we can conduct our customary activities over a 24-hour period. There was a period of time when it was absolutely dangerous for community members to go out onto the river at night and conduct any sense of, let's say, fishing or transportation at night because we didn't know who was out there. They could be from Akwesasne; they could be from Montreal; they could be from any of the crime families that were operating in that area. It was just a dangerous place to be. We've cleaned it up.

Where that comes in is there's a thought that this particular bill, Bill C-10, will have the effect of encouraging those people who have a lot to lose from engaging in trafficking activity.

On the contrary, what it will do is identify those who really don't have a lot to lose, the high-risk people. It will encourage the gang families to again come back out onto the river and make it again a dangerous place. That's what we're concerned about. It's a law that Canada is proposing that will have an impact on our community. Whenever there's an adverse impact on the community, it is at that time that we have to step forward and we have to bring that to the attention of the government. This is the government right here.

One of the other issues we have is that it seems to be that the objective of Canada is to, how would you say, directly disengage the crime families in Canada. At least that was the stated objective in the Senate hearings. If that is the stated objective, then why are we looking at a law that goes after traffickers? Why are we not looking at a law that goes after the crime families? Why are we not looking at a law that is a RICO-style law, as they have in the United States? Why is there not a law on the table that talks about going after the crime families in Canada? Why are we looking at a law that is at the lower end of the totem pole, that has low impacts and just goes after the symptomatic issues that are associated with this type of activity?

It would seem to me that we should be looking at a law that is much more dynamic and more direct, but on the other hand, how you intend to approach this is entirely up to Canada. We're here because we're concerned with the impact this will have on our communities.

In terms of policing, this could have an adverse effect on the manner in which we police our communities. Our policing services have not received any significant increase since 2004, and even at that time they were underfunded. The police agencies were established to basically provide road patrol. We are not able to patrol community. You read in the paper all the time that 60% of the activity is on the river. We are not equipped for marine patrol, yet we are being asked to conduct and engage in activities and be responsible for those activities without substantive and equitable funding for it. It's an issue.

The other issue I bring to the table comes from a slightly different area. It was just a while back that we had a Supreme Court decision. I think it was the Gladue decision. In that decision, the Supreme Court basically said that if there is a native person convicted of a crime, then what needs to be considered by the judge in the sentencing exercise are the cultural and socio-economic factors. That was put into practice. We have in place bilateral agreements between Akwesasne and Quebec and between Akwesasne and Ontario for diversion programs, for community sentencing programs.

This bill has no accommodation for that. In fact, it appears that it degrades the intent of the principles of the Supreme Court in that decision. It does that by introducing minimums and maximums. It takes away the discretion of the judge to divert certain cases back to the community. It criminalizes those cases. In a roundabout way it seems that it's counterproductive to what the Supreme Court's explicit intent was at that time.

These are issues that are of grave concern. These are some of the practical issues that I don't see. If Canada is going to proceed with Bill C-10, a very practical question is, what are we talking about in terms of tobacco? How have you defined tobacco? Is tobacco just tobacco? What are we going to do with ceremonial tobacco? What are we going to do in those cases where Akwesasne is planting spiritual tobacco and decides to trade that tobacco with Six Nations or Kahnawake? Somebody said that the police will tell the difference. The police don't know the difference. They don't know the difference. That ceremonial tobacco is an entirely different species and it's not even addressed in this law.

[The Chair, Conservative, Mike Wallace]

Thank you, Chief, for the presentation.

Chief Thomas, did you want to make any comments?

[Chief Steven Thomas, Chief, Mohawk Council of Akwesasne]

I can allude to some of the recommendations that we would suggest.

We appreciate what Canada is trying to accomplish in response to the trafficking of unregulated tobacco. Akwesasne is also trying to rectify the situation, although we are going about it in a different way. The development of a governance structure and our combined efforts are likely to provide a better path for the future. The following represents our recommendations in response to Bill C-10.

Honour the initiatives that are currently in development between Ontario and Quebec in Akwesasne. The initiative hopefully will answer many questions that are present in such areas as manufacturing, retail, wholesale, and trade with other first nations.

Allow for the development of an Akwesasne tobacco law and the development of governance structures. The cooperative effort to develop such structures is a far more effective answer than increased fines and mandatory jail sentences which will only add to aboriginals who are already overrepresented in the prison system.

Develop a federal protocol with Akwesasne which recognizes Akwesasne's justice programs, such as the Kanikonri:io or good minds program which is in operation as we speak. This protocol could act as a partnership in seeking cooperative resolutions on the issue of tobacco governance.

If moneys are to be spent in enforcement, add moneys to first nations policing. We have 23 miles of islands that border right into Quebec, into Lake Saint Francis. The expectation is that our police department enforce this jurisdictional area, of which we will not give up our jurisdictional rights. You had answers on meeting with CBSA and RCMP. Recently, I was on the police commission for two terms and I explained to the chief of police that the way the RCMP gets their money is through stats. We've been handing over all of the tobacco seizures to the RCMP. This is not right. We are undermanned in our police, and underequipped, and you expect us to be as effective as the outside. We cannot do that under the current operating conditions.

Throughout Ontario we belong to all the policing associations, the aboriginal police officers, the Canadian police boards. We have needs that far exceed other areas but they are not being addressed by Canada. We've been asking for Canada's help for many years now. We've asked questions. Assistance has not been forthcoming.

This bill will criminalize a whole generation of Mohawk people. You know that we live on a border and a great many of our people work on both sides of the border. We create America's skylines and Canada's skylines. This is what you see, but you never see the men working on it. This is our people. A great majority of them work in New York City. If you criminalize these people, they will not be able to work there because of the licensing requirements from the port authorities of New York, which controls the bridges and most of the buildings in Manhattan and the surrounding community. There will be no employment. This is not what this bill is intended to do. It will push us back into a Depression era mentality and that will open up a whole new can of illicit worms.

If Canada wants to assist, then fund this program. Fund our needs so that we may combat this illegal activity. You lose millions of dollars in tax revenue. A portion of that which you've lost, which you've identified in your stats, will go a long way to stop that which is a concern to all of us at this table.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Chief.

Our final presenter is Chief Deer.

You have 10 minutes.

[Chief Gina Deer, Council Chief, Mohawk Council of Kahnawake]

Thank you for having me here and listening today.

My name is Gina Deer. I'm one of the chiefs. I'm from Kahnawake. My document has been submitted, so I'll just touch on some of the points that we have submitted.

There are many challenges that have been imposed on our first nations that continue to hamper our progress towards full recognition and realization of our rights and interests. These challenges include the legacy of residential schools, traumatic and illegal expropriations of land, and the legacy and continued imposition of the Indian Act and other legislation that fails to take into account our history, our rights, and our grievances. Bill C-10 is one of those.

The Mohawks of Kahnawake have an inherent and aboriginal right pertaining to the production, transportation, trade, sale, and regulation of tobacco products. The Mohawks of Kahnawake assert these as inherent rights, but also as aboriginal rights under Canadian law.

The Mohawks of Kahnawake have historically and continuously engaged in the production, transportation, sale, and regulation of tobacco products for various purposes, including cultural practices, personal use, personal subsistence, trade, and for commercial gain. These practices are and always have been an integral part of our distinctive culture as Mohawk.

Bill C-10 proposes an infringement on our inherent aboriginal and treaty rights pertaining to the production, transportation, sale, and regulation of tobacco products. This application of proposed section 121.1 of the Criminal Code of Canada and corresponding mandatory minimum sentences to Mohawks of Kahnawake would constitute an unjustified infringement of our inherent aboriginal and treaty rights.

This bill is going to put people in jail. We bring up residential schooling because the residential schooling institutionalized people, our children. We had a great breakdown in our community. Simple things like hugging your children didn't happen. The effects were long-lasting, and then the government apologized for what they had done.

Yet, this bill just calls to reinstitutionalize people again, to take the mothers and the fathers and put them in jail. There's another breakdown in the family. Now the children will suffer again, growing up without a father. Does anybody know what it's like to grow up without a parent, a mother, a father? That's the effect this bill is going to have on our community and our people. How long will it take Canada to realize again that this wasn't the answer?

We already have an overpopulation of native inmates in our prison systems here in Canada. The prison systems were given recommendations on how to help rehabilitate inmates, and even that's failed. When we look at this as the answer, I can't comprehend where they come up with that: putting people in jail for what they believe and have known to be their rights.

In Kahnawake a lot of people have understood that as long as they practise within their own jurisdiction their right of the sale and trade of tobacco, they're not committing a crime, because it's not their duty to collect taxes. It's the duty of the people who come to our community to purchase it to remit those taxes. Nobody believed they were committing a crime.

We have a good economy around Kahnawake. We have nine municipalities that benefit from this trade, not just Kahnawake. If you look at all of the economic development, the stores, the growing economy in Châteauguay, Candiac, Ville Sainte-Catherine, it's had a positive effect for everybody there.

They talk about the criminal element and criminal organizations. They haven't just infiltrated the tobacco industry. Look what's happening in Montreal. There's the Charbonneau commission. They've infiltrated everywhere, right next door to us, right across the water, our neighbours, but Kahnawake seems to be highlighted as a spot for organized crime. Kahnawake works very hard to keep that element out.

One of the proposed solutions that Kahnawake has is for Canada to work with Kahnawake, to sit down and recognize the fact that Kahnawake has jurisdiction over our own territory. Let us make the laws that are needed to combat the criminal element, because that's how Kahnawake sees us doing this. We need to regulate and create laws within our community to protect ourselves and an industry that's been created in Kahnawake.

If you look back in history, you'll see that we as the native people are the ones who introduced tobacco. It was taken back to England to the Queen at one point. It was given by the native people. I had an elder say to me, “Gina, can you imagine if our moccasin making was a lucrative business? What would they do then?” This is something we've always had in our entire history and now we're going to be criminalized for practising something we've done throughout time.

We feel it is the responsibility of Canada to work with Kahnawake on a nation-to-nation or government-to-government basis. Canada gave permits to people in Kahnawake, licensed them to be tobacco manufacturers. They came to Kahnawake and they did inspections at these manufacturing places. They collected the taxes, and then they walked away. They didn't fulfill their part, which would have been to sit down with Kahnawake, Canada, and Quebec and discuss the transport of that tobacco. We were allowed to produce it, but we weren't allowed to transport it. It doesn't make any sense. It's not logical. Once they tried to transport it, they were arrested.

We've been here before. It's been discussed before. This bill was Bill S-16 previously.

We would like to take the opportunity to briefly address three common points that were raised by senators during Mohawk Council of Kahnawake's presentation earlier this year.

The first is the link between the tobacco industry on first nations lands and organized crime, which I just spoke about.

[The Chair, Conservative, Mike Wallace]

You have about a minute left.