Derek White hasn’t been allowed to leave Canada since March 2016, when he and 60 others were arrested as part of Project Mygale on suspicion of evading taxes in cross-border tobacco trading.
On Wednesday, November 1, a judge will finally decide whether White and fellow Kahnawa’kehró:non Hunter Montour will win a constitutional challenge that will dictate the future of both men after seven years of waiting.
White said that he won’t give up, even if the verdict doesn’t go his way. “I’m fighting this right till the end, which is good, because there was nobody else that was willing to step up to the plate and fight it,” he said. “If I win, it’s a win for everyone. If I lose, I’m going to appeal it. It’s not going to be over if we end up losing.”
The challenge rests on the argument that Indigenous people have autonomy over their own economies, including the tobacco trade. Gerald Taiaiake Alfred, who stood as an expert witness in the case, said that the Crown’s attempt to control Indigenous tobacco trade is at odds with Montour and White’s rights as Onkwehón:we.
“That’s actually an infringement or an assault on our existence as Indigenous Peoples, because it’s diminishing the few rights that we have left and the few ways that we as a collective are able to exercise our own self-determination,” he said. “We’ve been, over a long period of history, reduced in terms of the number of ways that we could exercise this. That’s entirely unjustified.”
After four weeks of testimony in 2019, a jury acquitted the duo on provincial charges amounting to $44 million in tobacco taxes on the basis that there was no evidence that tobacco shipped via Kahnawake was ever sold in Quebec. The jury instead found them guilty only on federal charges for not paying excise taxes on imported tobacco.
This led Montour and White to launch a constitutional challenge, arguing that the Excise Tax Act is not applicable to Kanien’kehá:ka. They cited Section 35 Constitution Act rights and the United Nations’ Declaration on the Rights of Indigenous Peoples (UNDRIP) and their inherent rights to trade tobacco tax-free.
The constitutional challenge saw various expert witnesses, including Alfred and Peggy Mayo-Standup, take the stand from October to December 2021, with oral arguments lasting into April 2022. Judge Sophie Bourque has been deliberating ever since.
Though it’s normal for complex cases such as this to take a long time, the past 18 months have been a particularly long period of deliberation. This is in part due to the sheer volume of evidence the judge has to consider, including expert witness reports from over 16 individuals.
“These constitutional cases involving Aboriginal treaty rights require enormous amounts of evidence and can be complex, so we didn’t expect it to take this long, but it’s also not a sort of expertise that the courts have,” said Vincent Carney, lawyer for the defence. “Unfortunately our clients live with this reality that the administration of justice is slow for most people, and is particularly slow for them.”
Alfred presented a paper to the court on the history of Kahnawake and how it relates to the issues being decided upon in the case. He focused on how treaties that Kahnawake is party to should allow the community to engage in economic activities which are rooted in inherent Indigenous rights, as opposed to those regulated by Canada.
Alfred said his testimony supported the idea that restrictions and regulations on activities such as tobacco trade are an infringement on Indigenous rights.
“The fact that some people don’t like the tobacco trade or some people don’t like Hunter or Derek is beside the point,” he said. “In terms of what I contributed, it was that there’s a collective, general sense that’s shared by nearly all Mohawks, that we have the right to do whatever we want in our own territory.”
Awaiting the verdict
The verdict will be read at 10 a.m. on November 1 in room 511 of the Montreal Courthouse in a session that will be open to the public.
White plans to bus in community members from Kahnawake to the Montreal Courthouse to watch the verdict unfold in-person. People will be picked up at 8:30 a.m. from the Old Malone 99 Gas Station, leaving at 9 a.m.
“Whoever shows up is more than welcome,” White said, adding that extra transportation would be arranged if the bus gets full. “We’re providing the ride there and the ride back for whoever’s interested.”
White said he particularly hopes owners of tobacco factories and stores will send representatives.
“They’re in this business, they need to have someone there so that we’re not there alone,” he said. “We need people. We need support.”
White said he’s convinced the November 1 court date won’t be the end of the gruelling seven-year ordeal.
“Whoever loses is going to appeal,” White said. “So it could get dragged on for another five to 10 years. It could be all wrapped up (on November 1), who knows. But I doubt it.”
Project Mygale is North America’s largest tobacco smuggling bust to date. The operation saw 700 police officers raid 70 businesses and homes in Montreal, the Laurentians, and Six Nations, among other places, confiscating more than 52,800 KG of tobacco worth $13.5 million. More than $1.5 million was also seized from transactions in Canada as well as $3 million in US cash and 800 KG of cocaine.
Though 60 people were arrested, Montour and White were the only two to plead not guilty on various charges of tax fraud after authorities found that 2,294 tons of tobacco had been illegally smuggled into Canada between 2014 and 2016. Quebec’s provincial police force, the Surete du Quebec (SQ), said that the smuggling represented $530 million in unpaid taxes.
If the verdict goes in his favour, White already knows the first thing he’s going to do.
“I’ll be able to go to Plattsburgh,” he said. “I’ll be going to Taco Bell right away. It’s been a long seven years.”