Mohawks’ right to freely cross Canada-U.S. border trumped by national security: judge
Federal border officers’ duty to safeguard Canada trumps the right of Mohawks to freely travel their Akwesasne territory that straddles Ontario, Quebec and New York state, a judge has ruled.
Two Akwesasne women had tried to assert an “aboriginal right to mobility to travel freely” within the territory for family or community purposes, and claimed that having to check in at the Cornwall, Ont., port of entry violated their Charter rights.
But in a new ruling, Judge Peter Griffiths of the Ontario Court of Justice said the inconvenience of checking in at the border was minimal and necessary to ensure national security.
The Cornwall border crossing has a “proven history of smuggling of arms, people and contraband” and the Canada Border Services Agency’s mission is to ensure the security of Canada by managing the access of people and goods, the judge said.
“The evidence of senior (CBSA) officers was clear that, without a requirement that each person seeking entry into Canada report in person at the border without delay, the integrity of the border would be severely at risk,” the judge said.
This is not the first time someone from the Mohawk community has publicly challenged Canada’s border rules. In 2011, Joyce King expressed outrage when border officers refused to accept her Iroquois passport. “They called it a ‘fantasy document,’ but that’s my identity,” she said at the time.
The recent “constitutional test case” was sparked after two women, who live on the Mohawk reserve in New York State, were charged in separate incidents after they dropped people off on Cornwall Island, which is on the Canadian side of the border, without checking in first with border agents.
Cornwall Island, which is part of the Akwesasne Mohawk reserve, sits in the middle of the St. Lawrence River. When someone wants to visit the island from the U.S. side, they must first report to the port of entry in Cornwall on the north side of the river. Once they’ve passed examination they have to turn around to get to the island.
But in August 2011, Alicia Shenandoah dropped off her six-year-old daughter and a cousin at a Cornwall Island arena to attend a lacrosse match before reporting to border authorities. Similarly, in January 2013, Elaine Thompson dropped off her daughter with her husband on the Island before checking in with border officers.
Both were charged with aiding and abetting a person to enter Canada without appearing for examination by a border officer.
The Mohawk Council of Akwesasne said the criminal charges were “absurd” and showed the “hardship community members endure to simply travel within their own community and attend community events.” Seventy per cent of the border crossings at the Cornwall port of entry are made by Mohawks and many Mohawks have to cross the border several times a day, court heard.
The women tried to claim a historical aboriginal right to freely travel within the Akwesasne territory. Court heard that right derived from the mobility rights enjoyed by the extinct Laurentian Iroquois tribe.
However, the judge said there was insufficient evidence to show the Mohawk tribe benefited from any rights flowing from the customs of the Laurentian Iroquois.
When Shenandoah and Thompson dropped off their children on the island, it wasn’t related to any historical custom, practice or tradition, the judge continued. “Their purpose was personal. Simply put, it was inconvenient to report at the (port of entry) before dropping off their daughters.”
The judge also was not swayed by their Charter arguments. Both women argued the in-person reporting requirements were discriminatory in that they created a unique hardship for the Mohawk community, infringed on their liberty rights, and restricted their freedom of association.
But the judge said the hardship was “self-imposed” by the Akwesasne people. Up until 2009, the port of entry was located on Cornwall Island. But when the CBSA announced its officers would be armed, the Akwesasne community was fiercely opposed, leading to demonstrations. CBSA officials moved the port of entry to the city of Cornwall.
Remote video-monitoring stations on the island were presented in court as a possible alternative to in-person reporting. But the judge said that and other ideas were not realistic and lacked substance.
Gordon Campbell, the Ottawa lawyer who represented the women, said Wednesday there are no plans to appeal the ruling. While he said he was disappointed with the outcome, the case at least drew attention to the “extreme disruption” Mohawks face daily from “onerous” border rules.
The Mohawk Council of Akwesasne said in a statement the judge sentenced both women to a conditional discharge for a period of six months — the most minimal penalty available.