Criminal Code Bill to Amend-Second Reading


Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco) Senator Jane Cordy June 18th, 2014

On the Order:

Resuming debate on the motion of the Honourable Senator White, seconded by the Honourable Senator McInnis, for the second reading of Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco).

Hon. Jane Cordy: Honourable senators, I am speaking today to Bill C-10, the government's trafficking in contraband tobacco legislation.

As I stated last year when we debated the previous incarnation of this bill, I am pleased to see this government acknowledge the considerable problem contraband tobacco operations have become in Canada. I'm in favour of legislation which aims to curb these activities and limit young people's access to tobacco products, particularly contraband tobacco.

Teenage smoking is a health issue. It is important for the health of our young people that the Government of Canada be continually vigilant and proactive in countering all smoking, but particularly teenage smoking. We know those who start smoking at a young age are likely to continue smoking for a long time.

We know that contraband tobacco is particularly attractive to young Canadians because of its low price and easy access with no identification checks. Having fewer young people who take up smoking is always a positive thing. I am always supportive of efforts by any government - federal, provincial or municipal - that takes serious steps to curtail tobacco use among Canadians.

Contraband tobacco is not only a health issue, but it can also be a public safety issue. With contraband tobacco we must also be aware of the nature of the business. It can be a criminal activity. We know that contraband tobacco can be closely linked to smuggling and organized crime with profits directly funding other illegal and sometimes violent activities.

Bill C-10 addresses the illegal activities of contraband tobacco by specifically targeting traffickers of contraband tobacco with amendments to the Criminal Code to create a new offence of trafficking in contraband tobacco. The bill sets conviction penalties of minimum and maximum imprisonment sentences for repeat offenders.

I support the government's intent of targeting traffickers of contraband tobacco and agree they should be penalized; however, I strongly object to the limitations placed on a judge's discretion proposed in this bill by imposing yet once again mandatory minimum sentences.

I have heard from an official of the Department of Justice that the deterrent effect of mandatory minimum sentences is speculative - speculative. The deterrent effect of mandatory minimums is speculative and this seems to be the government's solution to any new law related to crime.

It was a year ago when we debated the previous incarnation of this bill and at that time I commended the government for its efforts to tackle the serious issue of contraband tobacco in our communities. At the same time, I expressed concerns with the bill, as Bill C-10 is basically a carbon copy of that previous bill, my concerns with this legislation bear repeating.

As I said, I am very supportive of legislation that targets tobacco use in Canada, especially by young people. Tackling the problem of contraband tobacco across Canada is an important step to reduce tobacco usage and it can be a tool to target organized crime.

But, as with any piece of legislation, there can be unintended consequences. In the case of this bill, some concerns have been expressed by Aboriginal and First Nations leaders, as some of Canada's contraband tobacco originates from First Nations territories. However, I was surprised to hear during the hearings last year that an increasing amount of contraband tobacco is actually making its way into Canada from China.

Because of the fact that much of the contraband tobacco originates from First Nations communities, they often become the focus of law enforcement agencies. This focus of law enforcement on their communities has raised concerns from Aboriginal and First Nations leaders that these new measures are somewhat misguided as a tool to target organized crime. The leaders believe that their communities are being unfairly targeted and their people are disproportionately prosecuted. It has been stated that the majority of those taking part in these activities are from off the territory, primarily run by organized crime.

The Mohawk Council of Akwesasne has expressed its views on the bill and, while politically they do not have any harsh objections to what Bill C-10 proposes to accomplish, they are concerned with the impacts of the legislation. The Mohawk Council of Akwesasne, the Government of Ontario and the Government of Quebec have worked together to build a cooperative relationship around common interests. This cooperative approach with the federal government, however, is sadly lacking, as the Mohawk Council testified it was not even given the thoughtfulness of being consulted by the federal government when this bill was first drafted last year.

Aboriginal and First Nations leaders have also expressed concerns that this bill will worsen the serious issue of incarcerated First Nations youth. At a time when the incarcerated Aboriginal population comprises over 20 per cent of the federal prison inmate population, while making up only 4 per cent of the Canadian population, they fear more Aboriginal youth who are tempted into these activities will ultimately end up in prison in increasing numbers. These concerns were raised by Brian David, Chief of the Ontario portion of the Akwesasne First Nation, who said that recruiters — some from organized crime groups outside the reserves - work hard to pull their young people into smuggling.

Also concerned by the implications of this bill and the criminalization of tobacco on Six Nations territories is a group of Six Nations business owners I had the opportunity to meet with earlier this month. The Six Nations Trade Collective fears the criminalization of the tobacco trade on reserves will devastate their business and their way of life. Tobacco is the major industry on the Six Nations territory, employing thousands of residents and supporting many small mom-and-pop businesses. The fear is that Bill C-10 will criminalize the tobacco industry on their territories, putting at risk jobs and the economy of the Six Nations Reserve. I was told that this bill will affect 2,000 employees in the community and about 150 businesses. Honourable senators, 2,000 jobs could be lost on the reserve.

I had the opportunity to speak with Six Nations Chief Ava Hill last week and she expressed the same frustration of not being consulted by the federal government. She fears that Bill C-10's criminalization of the tobacco trade will hurt business on reserve. Her MP made public statements that he had been in conversation and consulted with her regarding Bill C-10 and assurances were made to ensure the legal tobacco trade on reserve will be unaffected. However, Chief Hill said that no such conversations ever took place, either between her and her MP, Mr. McColeman, or between her and any officials from the federal government.

She feels ignored by the government in this matter and stated that it is the Six Nations' treaty right to regulate their own tobacco industry and not that of the federal government. She is quoted as saying: The Six Nations elected council has repeatedly informed the government that the economy and trade in our territory is our right to govern and regulate. In 1994, the elected council passed a resolution stating that any product made on Six Nations is tax free.

I encourage the committee that will study Bill C-10 to include the Six Nations Chief Ava Hill as a witness at the hearings when this bill is studied in committee. She can explain the effect the bill will have on her community and the jobs that may be lost on the reserve.

Chief Hill also shared her concerns that Bill C-10 will open the door to on-reserve taxation; that Bill C-10 will also allow on-reserve confiscation of property; and that Bill C-10 will criminalize First Nations business people. I believe these concerns should be addressed before the bill passes. It is our responsibility as senators to ensure that there are no unintended consequences that would harm good business owners and their employees.

Honourable senators, targeting contraband tobacco traffickers with possible imprisonment penalties may be a positive approach to combatting the problem of contraband tobacco, but, again, I do not agree with Bill C-10's approach of imposing mandatory minimum sentencing policies.

I do not believe minimum sentences are an effective deterrent and I do not agree with taking away a judge's discretion on sentencing. Why does this government not seem to trust that judges, whose job it is to weigh evidence, can come up with a punishment that fits the crime? In Canada, we have one of the best justice systems in the world, and I believe that judges have the knowledge and wisdom to determine an appropriate punishment without mandatory minimums.

I look forward to the opportunity to continue to study this bill in committee.