The second phase of the cross-border tobacco trading trial with Kahnawake’s Derek White and Hunter Montour began this week, with its first expert witness testimony.
The second phase of the trial challenges the applicability of the federal provisions, which form the basis of the criminal charges against the community members.
White and Montour, both 48 at the time, were arrested on March 30, 2016, as part of Project Mygale. Sixty people were arrested in total, for allegedly evading taxes in cross-border tobacco trading. Montour and White were the only two who went to trial.
A police investigation, which involved undercover officers, surveillance, and intercepted communications, took place between August 2014 and March 2016 and revealed how tobacco was trafficked into Canada via border crossings at Lacolle, Lansdowne and Fort Erie and sold in Kahnawake and Six Nations of the Grand River in Ontario.
In the first phase of the trial, White and Montour were charged under the Criminal Code for offences related to the federal Excise Act, 2001 and the provincial Tobacco Tax Act.
In May 2019, the jury heard four weeks of testimony about the investigation of at least 158 shipments totalling 2,085,600 kilograms of tobacco into Canada via border crossing.
White was acquitted of provincial fraud charges amounting to $44 million in tobacco taxes, as the defense argued that there was no evidence that the tobacco shipped into Kahnawake was sold in Quebec.
However, both were found guilty on federal charges: White, guilty of conspiracy to commit fraud and profiting from organized crime, and Montour, guilty of aiding organized crime.
The verdict has not been registered, pending the second phase of the trial, which is based on a constitutional defence that alleges Aboriginal rights, treaty rights, and other inherent and international rights.
Following the acquittal, White and Montour launched a constitutional challenge. They argued that the Excise Tax Act is not pertinent to Kanien’kehá:ka, citing Section 35 Constitution Act rights and the United Nations’ Declaration on the Rights of Indigenous Peoples and their inherent rights to trade tobacco tax-free.
The second phase of the trial began on Monday, September 13, with opening statements from all four parties: the defendants, Gordon Campbell, Nathan Richards, Vincent Carney, and their applicants White and Montour; Danie Benghozi and Stephanie Roberts for the Counsel for the Attorney General of Quebec; Geneviève Bourbonnais, Stéphanie Dépault and David Lukas as Counsel for the Attorney General of Canada; and Paul Williams, Counsel for the Mohawk Nation Council of Chiefs (MNCC).
MNCC had previously attempted to intervene in the case, however they amended their motion to testify alongside White and Montour, with conditions, which were accepted by the men. That judgement was released earlier this year:
“On January 7, 2020, the MNCC sent a letter asking the Court to hear its request that the Court not consider the rights invoked in the constitutional pleading because they are collective rights and have been put at issue in the accused’s proceeding as part of a criminal trial, which is an inappropriate forum for this purpose.”
However, an amendment by the MNCC asked to call to the stand two witnesses:
“The first is an expert in Haudenosaunee cultural and historical research, who will submit a report and testify on the factors to be considered when reading and interpreting the primary historical documents from a Haudenosaunee perspective,” it read.
“The second witness is a Mohawk chief recognized by the Haudenosaunee institutions, who, based on his education and personal experience in the Haudenosaunee tradition as well as his personal research, will testify on the MNCC’s perspective on the principles and provisions of the treaties. He may also testify on the impact of the tobacco trade on Mohawk society and communities.
“Second, the MNCC requests authorization to cross-examine the witnesses for the other parties and to present arguments like the other parties. It undertakes not to present any motions, to meet any deadlines the Court may impose, to comply with the management schedule already established by the Court such as the deadline for filing expert reports, and not to unduly prolong the proceedings,” read the judgement.
Opening statements concluded Tuesday afternoon at the Quebec Superior Court at the Palais de justice de Longueuil, which was followed by a voir dire to qualify Gerald Taiaiake Alfred, expert witness for the applicants.
On Wednesday, Alfred gave his testimony and presented evidence on the political identity and treaty history of the Kanien’kehá:ka Nation and the Mohawks of Kahnawake.
He spoke about Kanien’kehá:ka traditional territory, sovereignty, Catholicism in relation to the Mohawks, the relationship of the Kahnawake Mohawks to the Mohawk Nation and the Haudenosaunee (Iroquois Confederacy), the different Kanien’kehá:ka settlements throughout Turtle Island, the resurgence of Kanien’kehá:ka nationalism in the 20th century, the Seaway, and the complex relationship between the elected government and the traditional government in Kahnawake.
Derek White was pleased with the strong start.
“Taiaiake is doing a great job informing the Crown and the judge about our history and the treaty rights and everything else that goes along with it,” he said. “They need to uphold our rights and stick to their obligations nation-to-nation.”
On Thursday, he was cross-examined by the other parties. The Eastern Door will continue following the case and report on that next week.
Richards, one of the three defense lawyers working on this portion of the trail, said Alfred was a good first witness.
“We got a good start, we’re very happy,” Richards said. “We’re pleased to have Alfred as an expert witness in this case, and we were very pleased he was able to put his perspective forward. He has a lot of experience relevant to understanding the community.
“You want to make a good first impression, and we thought he was a good first impression.”
Approximately 16 other witnesses will provide testimony in the coming weeks. The evidential proceedings are expected to end sometime in November and closing arguments from all parties are anticipated to occur in December. The trial is slated to end on December 17.
“We all know it’s going to be a long process and we have some complex issues coming up and a lot of evidence,” Richards said.
After the trial ends, the court will take the case under advisement and judge Sophie Bourque will deliver the final judgement.
Richard said he is expecting the final judgement to be delivered at the end of 2022.
Originally, the second half of the trial was scheduled to begin in March 2020, but because of the COVID-19 pandemic, all legal proceedings were halted by the government and the trial got pushed back 18 months later.
“I’m glad we’re underway. I’ve been waiting for a long time for this,” Richards said. “We’re happy we’re here. Things are going well and we’re getting accustomed to the dynamics of this trial.”
Before the second phase of the trial was scheduled to begin in March 2020, Richards said the defense team was handling interlocutory hearings and manners they needed to address.
While waiting for the second phase of the trial to be rescheduled, Richards said the team was in preparations regarding witnesses and documents.
The next witness to speak in the trial will be remote.
“It is quite a unique process,” he said. “I feel great that we are underway and that we can get this thing moving; I’m optimistic we’re going to do something interesting here.”
Richards said while this isn’t the first or last tobacco case to be seen in court, it is different, because this case brings together more effort and a lot more knowledge of the law and Kahnawake than previous cases before have.
“This is another step on a long road, and we know that it’s a very long journey that the Mohawks of Kahnawake and their tobacco industry are taking. I don’t think this is the end of that journey and it’s certainly not the beginning.”