Jonathan Genest-Jourdain

[Aboriginal Affairs, January 29th, 2013]

Mr. Speaker, after decades of inaction, it is time to walk the talk.

Over a year ago, the Prime Minister committed to build a new relationship with aboriginal peoples, but he has not kept this promise. If the Conservatives had honoured their commitments, there would be no Idle No More.

On January 11, the Prime Minister once again committed to begin high-level dialogue, but nothing has happened since.

Can the Prime Minister tell us what meaningful action will result from his meeting with aboriginal leaders?

[Technical Tax Amendments Act, 2012, January 28th, 2013]

Mr. Speaker, I thank my colleague for that question.

I am going to draw on my experience. Over the holidays—they were supposed to be holidays, but that was not the case—I was asked to develop a course on the amendments to the Indian Act and on bills C-27, C-38 and C-45.

For Bill C-27, I addressed certain concepts related to accountability, sharing and public disclosure of financial information on economic transactions and the financial information of private on-reserve businesses. The imposition of those measures is a first in Canada. It is likely that they will be fast-tracked and ultimately adopted. Well, with Bill C-27, it will be a first. Private and corporate entities will have to make their financial information available to the general public on the band councils' websites for a minimum of 10 years.

Once again, it is likely that there will be cherry-picking, that these measures will be imposed on certain communities and that the government in power will be quite accommodating and hands-off with other communities that support it more. I submit to you that there is a willingness to keep the communities at a certain level.

[Technical Tax Amendments Act, 2012, January 28th, 2013]

Mr. Speaker, I would like to thank the hon. member for her question. I have briefly studied the bill before us, and the only mention of aboriginal peoples in it concerns the harmonization of taxation on reserves.

As for consultation, this is the federal government's duty because of the fiduciary relationship between the Crown and the first nations that takes precedence over any initiative, whether it deals with land, legislation or anything else that could interfere with or have a negative impact on the lifestyle of a reserve in 2013, whether traditional or modern.

If such an initiative could interfere with this lifestyle, the government must consult the communities. A pro forma consultation, if I may use a legal expression, is not enough. The communities and their members must be consulted at length. That has not been done in most cases. I do not even think this bill will be the subject of much consultation with the Canadian population in general.

I thank you.

[Technical Tax Amendments Act, 2012, January 28th, 2013]

Mr. Speaker, I will begin the New Year by addressing some notions that are, to say the least, tiresome, since they are associated with the ins and outs of the Canadian tax system. The spirit of plurality that should inform remarks made in this House and my constant concern to highlight the ethnic diversity of this country encourage me to present these comments, which deal with Bill C-48, from a perspective of exposing white-collar crime, tax avoidance schemes and corporate tax evasion on aboriginal lands.

At the risk of repeating myself, I did teach for one semester at the Cégep in Sept-Îles. My course was on legal and administrative aspects of aboriginal organizations. I have therefore gone very deeply into the subject, which I was teaching at the time at the college level, and I have decided to bring that knowledge up to date. Within the course, one section dealt essentially with white-collar crime, and the ways organized crime has found to interfere in the management and economic operations specific to Indian reserves. I think it is timely to share this information with all Canadians.

The Conservatives must already be telling themselves that they addressed this idea in Bill C-27. However, they are on the wrong track, because the people behind this economic malfeasance and who work on the fringes of Indian reserves in Canada are most often, in fact, non-aboriginal. They are foreign elements. They are financiers, lobbyists, people with special interests who prowl around the reserves and work on the fringes because of the special schemes relating to income and other taxes, among other things.

That is why these financiers propose phoney corporate vehicles, which are mere fronts. The most common method is to exploit a few willing Indians on a reserve. The corporate vehicle is developed with a very special capital structure. From that point, the rules respecting income and other taxes come into play. We have to address this reality when we talk about tax evasion on the reserves in 2013.

If we consider this interference in the context of economic expansion in our communities, it is related to the successive announcements about such matters as the development of natural resources in remote communities, but it is also related to economic growth. I have already indicated in the past that the people who live on Indian reserves across the country have been compelled over the last 150 years to develop what is designed to be a parallel economy, not “parallel” in the pejorative sense, but because it meets special requirements, responding to a way of life and to adversity.

The aboriginal communities in Canada have long been ignored in the development of economic growth measures as proposed by the various governments, even in 2013. These communities have been left behind, and for a long time, many communities, if not nearly all the Indian reserves in Canada, have gone without.

Over the last 50 years, there has been an expansion, with the development of special schemes and alternative measures. There has been a genuine expansion. Economic conditions in some communities are very good. This is not true of most Indian reserves, but some communities are fairly well provided for with respect to their economic basis. This interference by harmful elements and criminal elements has been accentuated with this growth in the economic strength of Indian reserves.

The concerted efforts of tax authorities, combined with joint investigations carried out by specialized police units in Canada, have in fact highlighted the real mark left by embezzlement on the part of organized cells of shady operators, on the fringes of the aboriginal communities in Canada.

I said there are special tax rules for Indian reserves. Nonetheless, it took a few years for promoters from outside the communities to find compliant actors, among other things, on Indian reserves.

To set up these business vehicles, which are dubious, to say the least, it still takes a token member of the community. Often, these people are well placed and visible within the communities, but there also has to be a form of compliance on the part of both the federal and the provincial government authorities.

At one point, when I worked for my band council, I submitted this problem to the Indian affairs representative who travelled there. I was told quite brusquely that this did not fall within their mandate and I should approach some other authorities to resolve that kind of problem. In other words, they turned a deaf ear. I concluded as follows: there was compliance and blinkers had been very carefully placed on the representatives of government agencies at both the federal and provincial levels. This is a known fact.

When I taught that course, I based what I said on information compiled by information agencies here, agencies of Canada. So this was a well documented problem. When we talk about tax havens, we think of foreign destinations, but this type of scheme operates and is observed right here in Canada. We cannot ignore this.

On the subject of the compliance that existed, I would say that the various governments engaged in cherry-picking. In other words, they take a different view of operations in communities that are more docile or are relatively supportive of the policies of a particular government.

Other communities, some of whose representatives come to testify before the committee fairly regularly, support the existing government policies. In those communities, the schemes run by shady operators, organized crime or white-collar crime will be given free rein, even though that is not how it looks at first glance. These kinds of operations will be allowed to go on in certain more docile communities that toe the line promulgated by the government authorities.

The New Democrats believe this kind of tax avoidance and tax evasion has to be combatted, while at the same time preserving the integrity of our tax system. We support the changes this bill makes, and particularly those aimed at reducing tax avoidance.

I indicated that measures like the ones in Bill C-27 will make us look at our own community leaders and members as negative influences and the only ones responsible for tax avoidance and obvious financial wrongdoing, and this is a mistake. This is false in most cases, based on what has been proven. Studies and wiretaps from undercover operations and intelligence agencies in Canada indicate that these negative influences are located outside of the community. These include businesspeople as well as people involved in organized crime. Biker gangs have also expressed interest.

Furthermore, it is important to understand that most native reserves are located in isolated communities in the north. Verifications are done by financial institutions. However, based on my own experience and my own reality, other auditors and people in a position to shed some light on these kinds of economic activities and wrongdoings take very little interest in the development of and the realities facing communities above the 52nd parallel. That is why these kinds of wrongdoings can persist.

Make no mistake, in most cases, the expertise comes primarily from people who are outside of the community. Legal and judicial advisors have developed economic and financial schemes. They also develop share capital and divide this phony share capital in such a way that puts all voting shares in the hands of one individual or group. Everything is calculated very carefully. The same goes for imposing shotgun clauses.

Since I have studied corporate law at the post-graduate level, I am in a position to dissect share capital and to see it for what it really is. On the face of it, a business can call itself aboriginal, even though that technically may not be the case. A business might be owned by aboriginal interests on paper, but when we really look at how the share capital is divided up, we quickly see that the power is held by individuals outside of the community.

I submit this respectfully.

[Questions Passed as Orders for Returns, January 28th, 2013]

With regard to funding for First Nations, Inuit and Métis, for each department and program in the last five years, how much funding was spent on: (a) operating costs, broken down by (i) salaries and benefits for government employees, (ii) salaries and fees for consultants hired by the government, (iii) other enumerated costs; and (b) transfers to First Nations, Inuit and Métis, broken down by (i) payments made to First Nations, Inuit and Métis organizations, (ii) payments made to First Nations bands on-reserve, (iii) other enumerated transfer payments?

[Petitions, January 28th, 2013]

Mr. Speaker, I wish to table a petition expressing the need to adopt a national housing policy.

[Aboriginal Affairs, January 28th, 2013]

Mr. Speaker, the Conservatives and the Conservatives alone are responsible for the protests being organized by the Idle No More movement.

When the Conservatives imposed omnibus bills C-38 and C-45 without any consultation, they showed their arrogance towards all Canadians who support the aboriginal cause. The path to reconciliation begins with respecting the nation-to-nation relationship.

Will the Conservatives acknowledge what is happening outside or will they continue to pass legislation that does not respect treaties or the basic rights of aboriginal people?

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, I thank my colleague for his question.

I mentioned section 718.2 of the Criminal Code. A provision in the code already deals with aboriginal offenders. However, I have seen a few lawyers specifically refer to this provision at the time of sentencing, when presenting their sentencing arguments. Some of my colleagues mentioned this provision. They reminded the judge that pursuant to section 718.2, the court had to take into account the circumstances and the fact that their client was aboriginal. The judge, however, is not necessarily bound by this. He must look at whether a sanction other than imprisonment can be considered.

However, there are limitations. At some point, an individual must be held accountable. In the case of repeat offenders, ultimately if there is no sanction other than imprisonment that is deemed appropriate, then the judge will sentence the offender to prison. I saw this happen during my years as a practising lawyer pleading cases. So then, even though there is a specific provision in the Criminal Code, the judge is not necessarily bound 100% by it. He must consider the circumstances, but there are limitations and ultimately, the offender must bear responsibility for his actions.

That is all I have to say.

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, I thank my hon. colleague for her question.

When I stated that the majority, if not virtually all, of my clients were aboriginal, it is important to understand that where I come from, the figure is not necessarily 91%. The statistics we had at the time showed that 75% were aboriginal.

When we go and meet with inmates in the basement of the courthouse in Sept-Îles—and even in Baie-Comeau, since space is fairly limited at the courthouse in Sept-Îles—it is quite obvious to us that the inmates are primarily aboriginal. This is unfortunate, but it is also a reflection of the breakdown of the communities’ social fabric. Deviant elements can be observed every day on reserves. There are nearly 15,000 Indians in my riding: Innu and Naskapi. So then, by force of circumstance, deviant behaviours can also be observed in the communities. It is most unfortunate, but this is first and foremost a societal problem that must be addressed from within.

As for the victim surcharge, it is important to understand that there were many female clients, especially in light of the number of cases of domestic violence that I handled. Many female aboriginal clients will also turn to the criminal injuries compensation board. So then, in the final analysis, increasing accountability by raising the victim surcharge amounts can only be beneficial to the healing process and the social intervention that must take place in cases of domestic violence.

[Increasing Offenders' Accountability for Victims Act, December 11th, 2012]

Mr. Speaker, because of my ongoing concern with shedding light on the concrete application and real impact of measures designed to address a social issue that has been identified, it strikes me as essential to introduce into this debate a number of imponderables with respect to cases that give rise to the imposition of a victim surcharge by a sitting judge in a criminal court.

At the risk of being redundant and repeating myself, I will draw upon my past experience in a legal aid office to illustrate what I am talking about. When I joined the legal aid office, one of the first concepts that I learned was the ability to pay. I had been provided with a binder showing the financial scales applicable to individuals, meaning clients, who came to our office to check whether they were financially eligible to obtain legal aid, whether for criminal or civil cases. It is one of the first concepts you learn when you begin in the practice.

When I joined the Sept-Îles legal aid office in 2007, the financial limit was approximately $20,000 to $25,000 for a person to be eligible for free services. If the amount exceeded $20,000 to $25,000, then services were still available, although a small financial contribution from the client was required. Allow me to reiterate that this is one of the first concepts you learn when you begin practising law.

When you meet a client, you need to complete a fact sheet that includes information such as principal source of income and all sources of additional earnings. These are the first things you learn. You complete the fact sheet and before meeting clients, you check it to determine whether they are eligible for services.

Even though I have been referring to this financial scale, most of my legal aid clients were of course receiving social assistance or other income security benefits. They were therefore eligible for the services provided by the legal aid office. For me, it became pretty much automatic. My employer at the time, the attorney who introduced me to practising in the trenches, instilled this reflex in me to some degree. After completing one's submissions on sentencing, one says, more often than not, “I would ask that my client be exempted from paying the surcharge because he is receiving social assistance.”

Even today, although I have not been pleading cases for two years, it is still mechanical, by which I mean that I can repeat this stock phrase from memory. It was somewhat redundant, because at the end of each of my cases, I had to repeat this set phrase because most of my clients were social assistance recipients. Even when I was in private practice, I was first and foremost handling legal aid assignments. It became second nature to me.

In short, if the lawyer tells the judge that the client should be exempted from paying the surcharge upon sentencing, then the judge has to decide on the sentence applicable to the individual on the basis of that person’s sources of income and ability to pay a fine. I will refer to this later and will go into the subject in more detail. I simply wanted to raise this concept.

An offender's ability to pay is the determining factor at the submissions on sentencing stage. Like the codified guidelines applicable to cases involving an aboriginal offender, judges have considerable latitude in determining and handing down alternatives to imprisonment. I will refer to the section of the Criminal Code that covers this particular case.

But we must understand that judges have some latitude when sentencing. Although it is not mandatory, the judge will still ask questions to see what sentence would be appropriate in a given case. Judges have few options, meaning that they can choose from among two or three options: either a prison sentence, a fine or community service. It always depends on the individual's willingness and ability to pay a fine.

Earlier I mentioned the Criminal Code. I will now read part of it. It is sometimes a good idea to refer to the wording of legislation, because it helps prevent mistakes. So that is what I will do. Paragraph 718.2(e) of the Criminal Code states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:...

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

When I was practising law, I dealt with aboriginal offenders every day, since most of my clients were Innu and Naskapi people from my riding.

This paragraph in the Criminal Code indicates that the judge must make decisions regarding alternatives to a prison sentence in a given case. Obviously, this type of sentence does not apply only to aboriginal offenders, but it applies to them in particular.

The Supreme Court of Canada also ruled that an offender cannot be imprisoned for not paying a fine if he or she is truly unable to pay it. The judge has some latitude in verifying the offender's true willingness to pay.

Generally speaking, when clients, especially those receiving social assistance, are exempted from paying the fine, there may be an alternative sentence. I have seen this in some instances. Even if the client is on social assistance, he must pay the fine if the judge deems him capable of doing so. However, a schedule of payments will be established. The judge will ask how much the person would be prepared to pay on a monthly basis to discharge the fine. Simply because people are receiving social assistance or some other form of income support does not necessarily mean that they will not have to pay anything. There is always that possibility, even if the person has limited financial resources. There is always the possibility of paying a fine. I am not speaking about a surcharge, but rather a fine. First and foremost, the judge will attempt to determine whether it would be preferable for the person to do community service or to make a donation.

As for the surcharge, when the client is receiving income security benefits, the judge will tend not to require payment of the surcharge. The judge will even exempt the offender from paying it because the offender’s ability to pay is already limited. The surcharge, it should not be forgotten, is above all for people who have financial assets, perhaps not considerable assets, but enough in the end to pay the surcharge.

The surcharge is mainly intended to make people accountable. It is a form of empowerment to encourage the individual to take responsibility and give back to society. That is the ultimate reason for assessing a victim surcharge.

When all is said and done, I believe that the important thing to remember is the compensation aspect of the surcharge to be paid by an offender. There is an etymological perspective here too.

The funds raised by the surcharge partly pay for services to crime victims. In Quebec, there is IVAC, the Crime Victims Compensation Act. Under this act, victims receive the compensation surcharge directly, which is enough of a reason to support this bill at third reading.

I will now move on to a brief aside to discuss crime victims compensation boards.

Lawyers, at least practising litigators, work on a regular basis with IVAC. Even in the Sept-Îles courtroom, the IVAC office was right beside the Crown attorneys’ office. Most of the people working for IVAC are social workers. They attend nearly all of the hearings. I used to kid around with some of them who were more knowledgeable about law than I was after only a year, because they attended the hearings for virtually all the courtroom cases.

In short, some of the victim surcharges would ultimately be redirected to the crime victims compensation boards. These boards are extremely important. The workers there deal mainly with victims and children. If you visit, you will see some toys for children to play with. They are friendly and family oriented because there is a wide variety of victims. It is therefore essential for the funds that are collected to be redistributed. Those who ultimately have the ability to pay, those with substantial income, and those with solid financial assets who are capable of paying, should be held accountable and required to pay a higher surcharge so that the services so essential to the maintenance of acceptable social standards can be provided.

I submit this respectfully.