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Law Times • June 13, 2011 Tobacco crackdown sparks native impasse H ow far does a gov- ernment's duty to consult First Na- tions on legislative change go? It's an intriguing question heading into the summer as First Nations take issue with Bill 186, the Supporting Smoke-Free Ontario by Re- ducing Contraband Tobac- co Act. Th e bill's provisions take aim at the proliferation of smoke shacks, particularly those around Cornwall, Ont., and Haldimand County. Th e Association of Iroquois and Allied Indians is furious. It claims there's a constitutional burden on Ontario to consult with First Nations on any leg- islative change that might aff ect their rights. According to grand chief Randall Phillips, First Na- tions have traded tobacco for thousands of years and are com- pliant with federal law. "We don't think Ontario has ju- risdiction here," he says. "Up until now, that duty has been applied to land rights. But we're saying it ap- plies to all rights. Th e Crown has to act with honour and fairness. Th is isn't fair or honourable." Why the government acted is perfectly clear. Bulk cigarettes, sold in plastic baggies, have be- come a commodity freely avail- able across the province for a fraction of the price of regularly packaged smokes. Th e new rules now require producers, processors, sellers, im- porters, and just about anyone else who touches raw-leaf tobacco to apply for a certifi cate from the Ministry of Revenue. Th ose who import cigarette-making equip- ment into Ontario must also reg- ister, although registrants under the Farm Products Marketing Act are deemed to have complied. Fines can go as high as $20,000 on third conviction from an ini- tial maximum of $10,000, but the most severe penalties of up to $1 million apply to those who violate s. 8 of the act by mark- ing or stamping fi ne-cut tobacco without a permit. Annie Th uan, a lawyer who practises environmental and ab- original law at Rueter Scargall Bennett LLP, says broadening the scope of aboriginal rights beyond land and natural resources like fi shing, hunting, and trapping is something many First Nations groups would like to achieve. "Th ey'd have to meet the Van der Peet test, which includes estab- lishing the practice, custom or tra- dition was integral to the distinc- tive culture of the community be- fore European contact," she says. Th e R. v. Van der Peet mat- ter is one of three landmark Su- preme Court of Canada cases relating to s. 35 of the Constitu- tion. In it, the court ruled that while catching salmon for food or ceremonial purposes was an historic right for the Stó:lō Na- tion in British Columbia, selling it commercially was not. Similarly, Th uan says, Tsuu T'ina Nation v. Alberta (Envi- ronment) suggests that if there Inside Queen's Park By Ian Harvey is a duty to consult, it can be low on the scale and often can be easy to meet. While First Nations may have grown and traded tobacco before the Europeans arrived, there are also questions related to the logical evolution of their activities such as cultivation, mass processing, im- portation, transportation, com- mercial packaging and sale, as well as at what level and within which communities this historic practice was engaged in before contact. Phillips is adamant that tobac- co is a long-standing part of First Nations culture. "Th is is about money," he says. "It's about whether First Nations can make their own money so we can send our kids to hockey camps and other activities." Th e National Coalition Against Contraband Tobacco, a lobby group comprised of store own- ers and cigarette manufacturers, agrees the issue is about money. "Th ere's huge money here," says coalition spokesman Gary Grant. "Th ere are some cigarettes being manufactured under li- cence which are supposed to be consumed on the reserve and not sold off -site unless the tax is paid. Th en there are others which are being manufactured illegally." Grant says illegal smokes are a "cash cow for organized crime" that helps fund other activities like guns, drugs, and human smuggling among 175 identifi ed gangs. Much of the product is being shipped across the border by water. Th e new amendments give authorities the power to crack down. "Before, you'd pull someone over and fi nd contraband to- bacco and then have to wait for the RCMP or Ontario Revenue to come to the scene," Grant says. "Now police have those powers." What Phillips and his col- leagues want is to sit down and discuss the impasse with the rel- evant players, perhaps as a pre- lude to going to court or taking more direct action. For his part, he's not talking about blockades or other civil disobedience. Still, we need only to look at recent history to see that the biggest participants in native tobacco are from the most militant communities. Furthermore, threats over the implementation of the HST as it aff ected First Nations are also fresh from last summer. It's going to get interesting. Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. COMMENT KATHRYN SMITHEN CLARIFIES PAYMENTS Your editorial in the June 6 edition of Law Times (see "In praise of second chanc- es") does not, in my view, provide a complete and full picture of what occurred in relation to the 2010 motion in the Superior Court of Justice surrounding the compensation order imposed on me in my criminal matters in May 1993. I ask you to print this letter so that your read- ers are provided with a full and complete ac- counting of the situation. Th e 2010 motion was of two parts: a mo- tion in the nature of certiorari or, in the alter- native, a motion in the nature of mandamus. Th e fi rst part dealt with the fact that I believed that I had been denied the principles of natu- ral justice by not being heard at the time the sentence was imposed on the issue of whether a compensation order should be imposed in the fi rst place, which is something that the case law at the time I was sentenced and since says is critical and required. Th e second part dealt with compelling the court clerk to accept my compensation pay- ments that the clerk had refused to do prior to the motion. Th is motion became necessary because for six months, my eff orts to resolve the issue (at least as far as the clerk accepting payments was concerned) with the director of Crown operations and the Toronto Police Ser- vice were unresolved. No one in any offi cial capacity would assist me in setting up a plan so that I could make regular compensation payments. It was not until the motion was brought that I learned that the Crown in 1993 had not informed the victims of their entitle- ment under a compensation order. Hence, it was never registered with the court clerk. While the court denied both parts of my motion — because it was not convinced of my argument with regard to the denial of natural justice and due to the fact that as the com- pensation order had not been registered by the victims, there was no duty to accept payments — the court did in fact ask the Crown and police to co-operate with me in the future to ensure that payments that I wanted to make were forwarded to the victims of my off ences. Since that time, $15,011 in payments have been received by the victims. Th e outstand- ing amount of approximately $22,200 is owed to one fi nancial institution. I will continue to make payments to that bank until all my ob- ligations are satisfi ed. Th is is information that Law Times editor Glenn Kauth has confi rmed now through copies of drafts that I have faxed to him and letters from the Crown. It was through the co-operation of my admission proceedings counsel and the Crown's offi ce that these payments were facilitated after the motion was concluded. I feel that making this clarifi cation on the record is necessary because your editorial leaves the impression that compensating the victims of my 1993 off ences was a very low priority to me and that my primary concern in bring- ing the motion was to evade the consequences of my past conduct and secure a pardon. Th is is not accurate. Th e motion brought these is- sues to light and provided the encouragement to previously reluctant offi cials to assist me in getting compensation to the victims. Making things right with the victims as well as qualifying to apply for a pardon have been of equal concern to me during my life- time. While I did not have the means before to compensate my victims, I have followed through with my obligations since that has changed. Th e panel hearing my matter at the Law Society of Upper Canada was aware of this fact, and an acknowledgment of my $15,011 in payments was included in an agreed state- ment of facts at the good character hearing. Getting a pardon has not been just about improving my employability in spite of what has been written about me. It has been about coming full circle in my life and having soci- ety recognize the enormous strides that I have www.lawtimesnews.com Editorial PAGE 7 Correspondence made to change my behaviour in a perma- nent way that is acknowledged offi cially. To try to suggest that trying to achieve that goal through legitimate means demonstrates a lack of remorse on my part for my past conduct is most unfair. Kathryn Smithen, Toronto ABANDON ARTICLES Th e LSUC should long ago have abandoned articling for a comprehensive and rigorous U.S.-style bar examination. After all, who re- ally believes fi rst-year associates in the U.S. are a menace to the public because they haven't ar- ticled? It doesn't appear to be a concern down there. Th ey have confi dence in their system, and it's certainly more fair to students than ours. You become a lawyer on your own mer- its, not because any particular fi rm chooses to hire you. Unfortunately, articling has simply become an entrenched rationale for the big fi rms to get a cheap pool of student labour rather than have to pay full associate salaries to their en- try-level hires, and the LSUC and law schools collaborate with them. Comment on lawtimesnews.com by Rob about "Articling crisis set to grow." MORE STUDIES I believe the Law Society of Upper Canada al- ready did a study on articling via a committee headed by former LSUC treasurer Vern Krish- na. Th e licensing and accreditation task force was appointed in March 2007 and published a report a year later. How will this new study diff er from that one? Comment on lawtimesnews.com by David Debenham about "Articling crisis set to grow." ARTICLING CRISIS NOT NEW I articled 32 years ago, and there was an arti- cling crisis then as the second oil boom in Al- berta collapsed. It seems there has been an ar- ticling crisis every year since then. I was men- tored for about eight years by a lawyer who got his call in 1933, which was actually a great year for lawyers. His take on the articling crisis was that "there is always a shortage of really good students." I suspect this is true today. Comment on lawtimesnews.com by Anders Bruun about "Articling crisis set to grow." OFFSHORING, PARALEGALS ALSO FACTORS IN ARTICLING Another way to look at this is not that there are too many students but that there is far less entry- level work that can be assigned to them, at least not under the umbrella of the traditional fi rm. Demand is for lawyers who are fully formed. Much of the work that students used to do for training is increasingly being taken up by do- it-yourself Internet sites or paralegals. Soon, off shoring will be added to that list. So where will the work for students come from? Increasingly, only the very large fi rms will have the necessary volume of these entry- level assignments. Consider also the increas- ing costs of legal education as salary expecta- tions of indebted students trend in exactly the opposite direction to demand for these posi- tions. Is the law society really ready to take on outsourcing, aggregation of legal services in large fi rms, and the increasing costs of a legal education in crafting a lasting solution to this problem? Comment on lawtimesnews.com by Skeptical about "Articling crisis set to grow."