R. v. Montour, 2023 QCCS 4154

Bourque JCS held that the tobacco duty imposed by s. 42(1) of the Excise Act, 2001 unjustifiably infringes the Aboriginal right and the treaty right of the Mohawks as guaranteed by s. 35(1) of the Constitution Act, 1982 and is of no force and no effect against them, so that the criminal procedures against the Mohawk accused (who had imported tobacco in bulk from the U.S. without paying excise duty) were permanently stayed.

After finding that the conditions for departing from stare decisis were met, so that she was not bound by Van der Peet ([1996] 2 S.C.R. 507), she concluded that the participation of the Mohawks in the tobacco trade was protected by their aboriginal right to “freely pursue economic development” (para. 1409). Furthermore, “the Excise Act, 2001 violates their Aboriginal rights by giving broad discretion to the Minister to issue licences without providing any guidance regarding Aboriginal or treaty rights, thereby imposing an unreasonable limitation of the rights” (para. 1465). In addition, there was “no evidence that the interests of the Mohawks of Kahnawà:ke have been taken seriously in the elaboration of the Excise Act, 2001” (para. 1605) notwithstanding that the Mohawk Council of Kahnawà:ke had “constantly repeated its desire to discuss the issue of tobacco regulation” (para. 1609) so that the “the Crown did not discharge its duties to consult - and even less to accommodate” (para. 1622).

Bourque JCS held that the tobacco duty imposed by s. 42(1) of the Excise Act, 2001 unjustifiably infringes the Aboriginal right and the treaty right of the Mohawks as guaranteed by s. 35(1) of the Constitution Act, 1982 and is of no force and no effect against them, so that the criminal procedures against the Mohawk accused (who had imported tobacco in bulk from the U.S. without paying excise duty) were permanently stayed.

In this regard, she concluded that the participation of the Mohawks in the tobacco trade was protected by their aboriginal right to “freely pursue economic development” (para. 1409). Furthermore, “the Excise Act, 2001 violates their Aboriginal rights by giving broad discretion to the Minister to issue licences without providing any guidance regarding Aboriginal or treaty rights, thereby imposing an unreasonable limitation of the rights” (para. 1465). In addition, there was “no evidence that the interests of the Mohawks of Kahnawà:ke have been taken seriously in the elaboration of the Excise Act, 2001” (para. 1605) so that the “the Crown did not discharge its duties to consult - and even less to accommodate” (para. 1622).