Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco) Senator Jane Cordy October 7th, 2014
On the Order:
Resuming debate on the motion of the Honourable Senator White, seconded by the Honourable Senator Dagenais, for the third reading of Bill C-10, An Act to amend the Criminal Code (trafficking in contraband tobacco).
Hon. Jane Cordy: Honourable senators, I rise today to speak to Bill C-10, the government's proposed legislation to tackle trafficking in contraband tobacco and to curb the rising economic and public health issues created by the contraband tobacco trade in Canada. As I stated in my previous speech at second reading of this bill, as well as when I spoke to the previous incarnation of this bill, Bill S-16 in the last session of Parliament, I am pleased to see the 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.
Over the past several decades, governments have made great strides in combatting tobacco usage among Canadians. There have been improvements in such things as labelling cigarette packages, enforcements of age restrictions on purchasing tobacco, restricting the open display of tobacco in stores and, of course, educating Canadians on the effects of smoking on their health.
There has indeed been an emphasis on keeping these products out of the hands of young people. The contraband tobacco trade essentially nullifies these efforts, providing Canadians, particularly young Canadians, easy access to cheap and unregulated tobacco products.
Bill C-10 will specifically target traffickers of contraband tobacco by creating a new offence in the Canadian Criminal Code. The new offence of trafficking in contraband tobacco states, and I quote:
No person shall sell, offer for sale, transport, deliver, distribute or have in their possession for the purpose of sale a tobacco product, or raw leaf tobacco that is not packaged, unless it is stamped. Bill C-10 also sets out penalties attached to these offences, and I quote again:
Every person who contravenes subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years . . . The creation of the new offence of trafficking in contraband tobacco in the Criminal Code will allow for the ordinary peace officer, non-RCMP officer, to apply this legislation. Currently, trafficking in contraband tobacco is only contained in the Excise Tax Act and is only enforceable by the RCMP.
Including the offence in the Criminal Code should provide law enforcement with additional tools and resources to combat these activities. Testimony from government agencies suggests strong ties between organized crime and the contraband tobacco trade, and those agencies hail Bill C-10 as a new weapon against organized crime.
The bill also proposes a series of what Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section of Justice Canada, calls "unusual penalties involving minimums." Repeat offenders under this new offence will be subjected to mandatory minimum sentencing policy: in the case of a second offence, a minimum punishment of imprisonment for a term of 90 days; in the case of a third offence, a minimum punishment of imprisonment for a term of 180 days; and in the case of a fourth or subsequent offence, a minimum punishment of imprisonment for a term of two years less a day.
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 when it comes to determining sentences as proposed, in this government bill, by imposing yet again mandatory minimum sentences. Canada has one of the best judicial systems in the world, and Canadians' faith and trust in our judges is the backbone of the system. To deny our judges the ability to rely on their expertise to determine a right and just sentence does a disservice to our justice system.
Many argue in favour of minimum sentencing policy from a political point of view. However, very little evidence exists that indicates minimum sentencing policy acts as a deterrent to these types of crime. In fact, much more evidence shows that minimum sentencing policies have little or no effect as a deterrent to crime, and mandatory minimums are routinely challenged in the courts as unconstitutional.
I have heard from an official of the Department of Justice that the deterrent effect of mandatory minimum sentences is speculative — speculative, honourable senators. Mandatory minimum sentencing policies have led to an explosion in the prison population in the United States, and I fear Canada is quickly moving in that same direction.
Since 2006, Canada's prison population has steadily increased to a point where there are now more Canadians in federal penitentiaries than at any other time in our history, and, honourable senators, this is during a period of falling crime rates across the country. An unfortunate reality is that Aboriginal Canadians continue to make up a disproportionate percentage of the inmate population. The latest statistics show that Aboriginal Canadians make up 20 per cent of federal penitentiary populations, whereas they comprise only 4 per cent of the Canadian population.
Many Aboriginal groups oppose the policy of mandatory minimums in the bill. Stuart Wuttke, legal counsel for the Assembly of First Nations, stated during his appearance before committee:
With respect to the criminalization of tobacco, we feel Bill C-10 predominantly would target and criminalize First Nations peoples. . . .
. . . The AFN opposes mandatory minimum sentences because we feel they do not advance the goal of deterrence . . .
He goes on to say:
We note that in 1995, Parliament enacted section 718 of the Criminal Code. Subsection 718.2(d) requires that the courts look at an offender and that the offender "should not be deprived of liberty." Section 718.2(e) of the Criminal Code states that "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."
Mr. Wuttke was not the only witness to question whether mandatory minimums violate section 718.2 of the Criminal Code and the potential to incarcerate more First Nations residents. R. Donald Maracle, Chief of the Mohawks of the Bay of Quinte, said:
This bill puts in place minimum penalties for repeat offenders. The provisions for mandatory minimum imprisonment violate the Gladue decision and section 718.2 of the Criminal Code. The Criminal Code was previously amended to accommodate the principles under Gladue.
The imposition of minimum sentences has the potential to send more of our people into the justice system and incarceration, where First Nations people are already overrepresented.
Honourable senators, the realities of the contraband tobacco trade have changed drastically over the past two decades. Where once the trade was predominantly legally made products, smuggled into the United States and then back into Canada and sold illegally, now the trade involves illegally made products smuggled into Canada and sold illegally.
We have heard at committee that the bulk of contraband tobacco found in Canada is manufactured in First Nations' communities on both sides of the Canada-U.S. border. We also heard that a substantive number of counterfeit cigarettes are also making their way into Canada from China and South Korea.
According to testimony from Geoff Leckey, Director General, Enforcement and Intelligence Operations, Canada Border Services Agency, the majority of seizures, upwards of 80 per cent of them, are made on the Quebec border and in Southeastern Ontario.
With the tobacco trade being a large part of the economy of some First Nations territories, one should assume that the federal government should consult closely with these groups when developing an anti-contraband tobacco strategy, including the drafting of the bill.
However, the committee learned during the study of this bill — and Bill S-16 of the last session of Parliament — that not one single government department that appeared before the committee consulted one single Aboriginal chief or representative of the Aboriginal community in the drafting of either Bill C-10 or Bill S-16. Honourable senators, there was no attempt made to reach out at all.
When asked at committee if anyone at Justice Canada consulted with any Aboriginal groups, Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Justice Canada said:
We had no consultations. We knew that the Aboriginal people would be testifying before this committee. In a sense, that's a form of consultation. Parliamentarians will have had the benefit of their views in terms of this legislation, but we did not consult outside of the federal family. We did speak with people from Excise, Finance, the RCMP and Public Safety.
In response to Mr. Saint-Denis' comment, this is what Chief R. Donald Maracle had to say:
The federal government has a duty to consult. In this particular instance, the legislation directly impacts our community and rights. We were not consulted on the proposed legislation prior to its drafting. Previously, the Iroquois Caucus requested an appearance before the standing committee of the House of Commons and was denied. Only Akwesasne and Kahnawake were able to appear and make presentations at that point in time.
The federal government views adequate consultation as an appearance before a couple of committee hearings of the Senate and the House of Commons prior to the passage of proposed legislation. This is not meaningful consultation; in fact, it is not any form of consultation. We had to request an appearance before a committee, be it a House of Commons or Senate committee, and hope we are selected to voice our concerns. Any participation in the standing committee process does not constitute consultation. Consultation is not to be selective; it is to include everyone who wishes to participate, as well as those most directly impacted.
I agree wholeheartedly with Chief Maracle. Participation in the Senate committee proceedings does not constitute consultation. On the contrary; it is an insult to Aboriginal groups to suggest that appearing before a committee, either in the House of Commons or the Senate, is consultation. Consultation, honourable senators, takes place when a bill is being drafted. In my speech on Bill S-16 during the last session, I spoke about the need for consultation, and yet here we have the same bill brought forward, Bill C-10, and still no consultation.
Another witness, Kris Green, Representative of the Haudenosaunee Trade Collective had this to say about the lack of government consultation:
How are you going to discharge your obligations to Aboriginal peoples when you have evidence that you haven't talked to us?
And then she said:
All we're asking for is that you honour the obligations that have been set out in many laws, the Constitution and in decisions of the Supreme Court.
As Senator McInnis stated during the committee proceedings when talking about the federal government consulting with Aboriginal groups:
Whether they will agree or you think they will not agree with what you're about to do with legislation, it's always helpful to consult with them.
Mr. Saint-Denis agreed completely with this statement. Apparently, however, the directives from the minister's office did not include consulting with the First Nations peoples.
Senator McInnis mentioned in his comments during the committee meeting the importance of consultation. He was speaking of his time in provincial politics and the Royal Commission report on the wrongful conviction of Donald Marshall Jr. of Nova Scotia. One of the essential recommendations of the report was to establish a tripartite forum that would include the federal government, provincial government and the Aboriginal community. As Senator McInnis points out - and I fully agree - it is extremely important that there is always consultation in these matters.
Senator McInnis, as many of you know, served as minister and deputy premier in Nova Scotia between 1978 and 1993, and I do know that consultation was very important to him when he was minister, and I congratulate him for that.
Gordon Peters, Grand Chief of the Association of Iroquois and Allied Indians, objected to the lack of consultation, and he believes the Supreme Court of Canada entitles Aboriginal peoples of Canada the right to negotiate with the federal government on Aboriginal peoples' economic issues. He said:
We're at a place where we believe that this particular bill should be withdrawn on several bases. First and fundamental is the duty to consult. It is clear that the Supreme Court of Canada has provided the Government of Canada with the honour of the Crown, which is a duty to consult. That duty to consult requires Canada to work with us, not only to consult but to be able to negotiate and accommodate us as well. That remains outstanding because there has been no consultation with respect to Bill C-10. In our eyes, Bill C-10 is an economic issue. Clearly, it is not something that we take lightly. It will impact our communities immensely.
In my discussions with Chief Ava Hill, she also pointed to the fact that Bill C-10 has the potential to devastate First Nations economies. As she stated in her testimony before the Senate committee:
This bill will have a devastating effect on our economy. It will create an economic void for Six Nations. It will mean a loss in our community alone of 2,000 jobs and unparalleled unemployment. Unemployment will be created in tobacco industry jobs related to tobacco farming, retail outlets, the manufacturers and the many spinoff businesses that generate revenue out of that industry. For many, this bill will lead to poverty.
Many of the Aboriginal representatives who appeared before the committee objected to the government's claim that organized crime has a stranglehold over the First Nations tobacco industry and associating contraband tobacco with gun-running, drug-smuggling and human-trafficking. As Chief Hill stated:
Six Nations acknowledges that there may be a criminal element in many sectors of business and society, but it must be stated clearly that we do not support or condone any connection with criminal activity related to the tobacco industry. The truth is the majority of producers, growers and sellers at Six Nations are not involved in organized crime and they, too, stand against any criminal element being involved in tobacco.
She went on to say:
Our community doesn't want any organized crime there. If it's there, we're going to work to get rid of it.
In response to a committee member's statement that First Nations organizations do not view the contraband tobacco trade as a victimless crime, Kris Green of the Haudenosaunee Trade Collective had this to say:
What we have said all along is we do not support the criminal elements.
She went on to say:
We do not want them attempting to take advantage of our industry. We do recognize the criminal elements related to true contraband within Canada and do recognize that it needs to be dealt with and support the work that needs to be done to make that a reality.
I must reiterate that I fully support the intentions of Bill C-10, and I applaud the government for recognizing the serious nature of the contraband tobacco trade and the negative effect it has on the health of Canadians, particularly young Canadians who are attracted to the low cost and easy access of these products.
As the health minister stated:
Taking action against individuals involved in the illegal trafficking and smuggling of contraband tobacco is essential to protect the gains we have made in reducing smoking among Canadians, particularly our young people.
Honourable senators, it is not unreasonable for the Aboriginal peoples of Canada to ask for and expect consultation when drafting legislation which could potentially negatively impact the economic and social well-being of their communities.
Just as any new piece of legislation, Bill C-10 could bring with it a multitude of unintended consequences, and First Nations representatives have real fears about this bill. It would have been helpful and reasonable to consult with these groups prior to the federal government's drafting of first Bill S-16 in the last session and now Bill C-10 to address the concerns the Aboriginal groups have expressed regarding this bill.
Although I do not object to the intent of this bill, I do strongly object to the lack of respect the government has shown toward Aboriginal peoples relating to Bill C-10. The greatest weakness of Bill C-10 is the government's complete lack of respect for the views and opinions of Canada's Aboriginal peoples, which it has demonstrated by completely cutting them out of the conversation when drafting this legislation.
Motion in Amendment
Hon. Jane Cordy: Therefore, honourable senators, I move:
That Bill C-10 be not now read a third time, but that it be amended, on page 2,
(a) by replacing line 38 with the following:
"4. (1) This Act comes into force on a day to be"; and
(b) by adding after line 39 the following:
"(2) No order may be made under subsection (1) unless the Government of Canada has consulted with representatives of the Aboriginal peoples of Canada and accommodated their views in respect of the tobacco trade and the implementation of this Act.".