Abegweit First Nations man pleads not guilty after cigarette bust, citing treaty rights
John Bernard argues he should be able to earn a moderate livelihood selling cigarettes
A man from the Abegweit First Nation who had unstamped tobacco seized from his car has pleaded not guilty to the charges on the grounds he has the treaty right to sell cigarettes without paying taxes to the government.
John Bernard, 63, said he was openly running a smoke shop out of his home on the reserve in Scotchfort, P.E.I., for about a year before he was pulled over by police and arrested.
During that time, he was travelling to the Listuguj First Nation in Quebec, just across the border from Campbellton, N.B., to purchase the unstamped tobacco from a shop there.
Bernard told CBC News that once he returned to P.E.I. he would then trade or sell the cigarettes as his primary source of income.
"That was just one way of trying to improvise, trying to survive," Bernard said during a recent interview.
"I was transporting it… and the big deal is about the stamp, a tax stamp. I live on reserve, I don't pay taxes."
In Canada, excise duties are charged on products like spirits, wine, beer and tobacco. It's separate from sales tax, and the product is marked with a sticker to signify that it's been paid.
The government considers any unstamped products to be illegal or contraband tobacco. The 40 cartons RCMP seized from Bernard's car on April 3, 2024, were not stamped.
"It's just a waste of time, taxpayers' money and resources," Bernard said of the investigation.
The Mi'kmaw man said he feels he has the treaty right to trade and sell the product — on and off reserve — and that it's not the business of the Canadian government.
"They herded us onto reserves — stolen land — and then they call this the reserve," Bernard said. "We can only do what they tell us on the reserve. Now, what's wrong with that picture?"
Courts find treaties binding
Before Canada was established as a country, British colonists and the Mi'kmaq made a series of agreements, including the Peace and Friendship Treaties, which were signed in the 1700s to ensure the co-existence of the two groups.
The signed treaties outline the responsibilities of the British Crown to the Mi'kmaq, like providing continued access to hunt and fish on their land and to trade and sell products.
Meanwhile, the Mi'kmaq never actually ceded their land to the colonizers.
These agreements include the right to trade tobacco and tobacco products on a commercial scale on traditional Abegweit First Nation territory.— Bernard's lawyer in court filing
The treaties have since been affirmed under Section 35 of the Constitution and are applied in decisions by courts across Canada.
In Bernard's case, his defence lawyer says those treaties are relevant.
"These agreements include the right to trade tobacco and tobacco products on a commercial scale on traditional Abegweit First Nation territory and other territories contemplated by the treaties without any regulation, duty, tax or collection obligation in favour of the colonial powers," Bernard's lawyer argued in the Charter application filed in court.
In modern times, the Supreme Court of Canada affirmed the right of the Mi'kmaq to fish, hunt and gather to earn a "moderate livelihood" based on the same treaties in the case of Donald Marshall Jr.
"A moderate livelihood includes such basics as 'food, clothing and housing, supplemented by a few amenities', but not the accumulation of wealth," reads the 1999 written decision.
"It addresses day-to-day needs. This was the common intention in 1760. It is fair that it be given this interpretation today."
Bernard said this concept of moderate livelihood should also apply to his tobacco business.
The defence is currently waiting on a report from a history professor with expertise in early North America, with a focus on the interactions between British and Indigenous peoples.
After that, the federal Crown told provincial court Judge Nancy Orr it intends to commission its own report.
Eventually, there will be a hearing on the matter.
CBC News reached out to the Public Prosecution Service of Canada, but officials declined to comment, citing the accused's right to a fair trial.
Bernard's case is scheduled to be back in court for an update in June.
RCMP surveying Bernard
According to the agreed statement of facts provided in court, P.E.I. RCMP were watching Bernard's movements for more than three weeks before his arrest.
The document said police received a tip that Bernard was travelling from the Island to Quebec to purchase the cigarettes, then watched him cross the Confederation Bridge and return three times between March and early April 2024.
RCMP also got a warrant to track Bernard's phone. After he was arrested, they also searched his home where "several items were seized, including 4 packs of contraband cigarettes."
Bernard said losing the income from his smoke shop has been difficult on him and his family.
"I've got a truck out there with no transmission. I've got a tire out there with two flats. I haven't driven them since Christmas. I can't afford to run them. And even if I did, I can't afford the insurance. That got cancelled because I can't afford that either," he said.
Bernard said he and his wife get $445 every two weeks from the First Nations band, but it's not enough to make ends meet.
"Come live on reserve for a week. Go through what I go through, eat what I eat," he said. "You might understand a little better."
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