Evidence of meeting #8 for Justice and Human Rights in the 41st Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was products.
A recording is available from Parliament.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
By deeming that they're going by indictment, that would send the message or send an indication to the accused that a mandatory minimum sentence may be contemplated.
Senior Counsel, Criminal Law Policy Section, Department of Justice
It may send the message, but unless there's a clear notice given—
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes, there has to be notice given.
Conservative
The Chair Conservative Mike Wallace
Thank you for those questions and answers.
Our next questioner, from the Liberal Party, is Mr. McKay.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Thank you, Chair.
Could an officer, director, or employee of a Canadian cigarette manufacturing company be convicted under this offence?
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes, if he meets the various elements of this offence. If he sells 10,000 unstamped cigarettes, yes.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
But is the issue of stamping the complete defence for any officer, employee, or director of a Canadian manufacturing company?
Senior Counsel, Criminal Law Policy Section, Department of Justice
I don't believe it is, actually. If the cigarette is stamped, this offence would not apply. If the cigarette is stamped it means that the federal excise tax has been paid, but there are provincial taxes that have to apply as well.
Theoretically, it would be possible for an officer or an employee of a cigarette company to sell stamped cigarettes, but in a manner as to avoid provincial sales tax, and so be able to sell cigarettes that are less than the going price. He would be caught by provincial revenue statutes then. But I don't think he would get caught by this—
Liberal
John McKay Liberal Scarborough—Guildwood, ON
We're basically asked to engage in an exercise in suspended belief about how these cigarettes end up in the hands of criminal organizations, and aboriginal peoples in particular, that somehow or another cigarettes get made here, they get stamped, they get marked for Estonia, and then somehow they fall off the truck, somewhere around Akwesasne or someplace like that.
It strikes me as the wrong end. That's the genesis of the question. In order to have a conspiracy, if you will, you actually have to have two people work together. What's curious to me is how, in what is a clear pattern of criminal activity, the liability seems to end when the product leaves the country in an “otherwise apparently legal transaction”.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Are you talking about unstamped tobacco here?
Liberal
John McKay Liberal Scarborough—Guildwood, ON
That's the issue. The stamping is what basically gives it the imprimatur of legality.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Right, but the manufacturing of the unstamped tobacco, which is really the source of the problem this legislation is trying to get at, is largely being done in Canada, and it's not normally for export outside of Canada. It's for consumption within Canada. You have a situation where you have manufacturers of illicit cigarettes. They're manufactured in places like Akwesasne, for instance, and are then shipped to distributors in Ontario and Quebec. They're not stamped. They're not meant to be exported either, they're essentially being sold domestically.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
So then I go back to my original question. If in fact entity X, through their employees, directors, or officers, is manufacturing unstamped cigarettes, does that mean that they would be caught up in this section?
Senior Counsel, Criminal Law Policy Section, Department of Justice
No, because under the Excise Act, there's a licensing regime that will give authorizations for people to—
Liberal
John McKay Liberal Scarborough—Guildwood, ON
So the licensing regime exempts them from criminal liability?
Senior Counsel, Criminal Law Policy Section, Department of Justice
That's correct. If you look at the legislation, subsections 30(2) and 32(2) of the Excise Act, 2001 provides a list of exemptions, so licensees, authorizations, and so on are exempted from the operation of this legislation.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I just have a question on R. v. Nur, and the slapping down of minimum mandatory sentences. Are you concerned at all that the reasoning in R v. Nur will actually impact on your desire to impose a minimum mandatory?
Senior Counsel, Criminal Law Policy Section, Department of Justice
Well, the courts have handed down mixed decisions in the case of mandatory sentences. It really is something that's almost case by case. You have to look at the minimums being imposed and the activities that risk attracting these kinds of minimums. In the Nur case we're talking about firearms. The imposition of the penalty as far as a court was concerned was unconstitutional, but I think in a parallel case they found that another offence with minimums was constitutional.
So the regime that is set up here provides for a number of factors that need to be present for the minimum to be imposed. We believe that those factors, taken together...and it does mean that it requires at least a previous conviction under this legislation, and a minimum quantity of the contraband product to be present for the minimum to be imposed, and then there's a sliding scale of minima. So you start off with the 90 days, and under the normal circumstances it's quite possible that given the presence of all of these factors, a court would impose something around that penalty.
So I'm fairly confident that we put together a rational structure for a minimum penalty.
Conservative
The Chair Conservative Mike Wallace
Thank you very much. Thank you for those questions and answers.
Our next questioner, from the Conservative party, is Mr. Brown.
Conservative
Patrick Brown Conservative Barrie, ON
I have a few questions. Thank you for your responses so far.
I'm certainly very interested in this. I know that north of our riding we've had a few media reports of contraband tobacco in the Simcoe North area, and so I think it's great that we have some action on this. The bill gives the Attorney General of Canada concurrent jurisdiction with the provincial attorneys-general to prosecute this new offence. Can you elaborate on that and what practical implications that would have?
Senior Counsel, Criminal Law Policy Section, Department of Justice
In practical terms, it means that if there had not been a provision allowing for concurrent jurisdictions, only the provinces would be able to prosecute. So you would have either the RCMP or provincial law enforcement laying charges, but only the provinces would be prosecuting.
With concurrent jurisdiction, it does mean that the federal prosecution service will be able to prosecute these offences as well. So practically speaking, it's likely that the RCMP will lay charges and the federal prosecution service will prosecute in many cases, and in other cases, either form of law enforcement will lay a charge and then the provincial prosecutors will prosecute. It really will depend on the area.
Conservative
Patrick Brown Conservative Barrie, ON
And do you believe, if it were done otherwise, you would see gaps in enforcement and prosecution?