Court File and Parties

Court: Ontario Court of Justice

Date: October 2, 2015

Court File No.: Cornwall 13-C340

Between:

Her Majesty the Queen

— AND —

Alicia Shenandoah

Elaine Thompson

Before: Justice P. Griffiths

Ruling and Judgement released on: October 2, 2015

Counsel

For the Federal Crown:

• M. Pare
• L. Bianchi

For the Defendants Alicia Shenandoah and Elaine Thompson:

• G. Campbell
• A. Unger

Griffiths J.:

[1] Introduction and Charges

Alicia Shenandoah and Elaine Thompson were separately charged on different dates with aiding and abetting others to enter Canada without appearing forthwith for examination before a Canada Border Services Officer contrary to section 124(1)(a) of the Immigration and Refugee Protection Act (IRPA). An Application of Constitutional Question was brought by counsel for Ms. Shenandoah and Ms. Thompson seeking relief from the operation of section 18(1) of IRPA. At the request of counsel and with the consent of the Crown, the Application and the evidence called on the Application will apply to each of the two defendants.

[2] Scope of Application

The Application is brought under sections 35(1) Constitution Act, 1982 and sections 15, 7, and 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter"). The Applicants claim an aboriginal right to mobility to travel freely within Mohawk territory at Akwesasne for family and community purposes without a requirement to report in person at the Cornwall Port of Entry. They further assert under section 15 of the Charter that section 18(1) of IRPA is discriminatory with respect to the people of Akwesasne generally and them in particular. They maintain that their liberty is infringed by the requirements of section 18(1) and that this infringement is not saved by reference to the principles of fundamental justice. Finally, the parties allege that being required to report at the Port of Entry without delay restricts their freedom of association. For the reasons that follow, this Application is dismissed.

1: OVERVIEW

[3] Statutory Framework

Section 18(1) of IRPA reads as follows:

Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter or remain in Canada.

[4] Regulations

The section is further elaborated by operation of section 27 of the regulations under IRPA which sets out the manner and timing of the duty to report as follows:

27(1) Unless these Regulations provide otherwise, for the purposes of the examination required by subsection 18(1) of this Act, a person must appear without delay before an officer at a Port of Entry.

(2) Unless these Regulations provide otherwise, a person who seeks to enter Canada at a place other than a Port of Entry must appear without delay for examination at the Port of Entry that is nearest to that place.

[5] Penalty Provisions

The penalty for breaching these sections is found at section 124(1) of the Act:

124(1) Every person commits an offence who

(a) Contravenes a provision of this Act for which a penalty is not specifically provided fails to comply with a condition or obligation under this Act.

[6] Sentencing Range

The offence is hybrid and in the cases before the Court, the Crown elected to proceed summarily. Under section 125(b), the maximum penalty is a fine of not more than $10,000 or imprisonment for six months or both.

[7] Geopolitical Context

The geopolitical setting of the Akwesasne reserve is complex and is central to this Application. Akwesasne is found south of the City of Cornwall. Cornwall Island (Ontario Reserve No. 59) is in the middle of the St. Lawrence River south of Cornwall. The city and Cornwall Island ("Kawehnoke") are connected by the "Three Nations Bridge". Cornwall Island is connected to the south shore of the St. Lawrence River by the "International Bridge". As the name suggests, the bridge connects the mainland of the United States with Canada. The border divides that bridge. Akwesasne continues in New York State around the town of Hogansburg as the Akwesasne Reservation. North of Hogansburg is found the international border between the Province of Quebec and New York State. North of that border, in Quebec, is found Akwesasne Reserve No. 15 which encompasses the districts of St. Regis Village ("Kanatakon") and the Chenail ("Tsi-Snaihne"). In the result, the Mohawks of Akwesasne can be found in the Provinces of Quebec and Ontario, New York State, Canada and the United States.

[8] Border Crossing Patterns

Many Mohawks reside in the Mohawk Reservation in the United States but work or have family or attend community or cultural events on the Reserves in Canada. They must cross the border frequently and for many Mohawks, the border is crossed many times in a single day. Seventy per cent of the border crossings at the Cornwall Port of Entry are made by Mohawks of Akwesasne.

[9] Port of Entry Location and Procedures

The Port of Entry highway corridor runs directly between the two bridges and is intersected in the middle of the Island by a main east-west roadway. The roadway leads to all residential, commercial, cultural, and social services on the Island. All people coming onto the Island from the south are required to go directly to the Port of Entry on the north shore of the St. Lawrence River in the City of Cornwall. Thus before turning onto the east-west roadway, one would have to pass the intersection, cross the Three Nations Bridge, and appear before a Border Services Officer (BSO) for examination. At peak times in 2011 and 2013, wait times at the Port of Entry could exceed one hour and at all times some waiting was required. For those whose final destination was on Cornwall Island, after the wait they would turn around and retrace their journey to the crossroad. This arrangement was very inconvenient and disruptive to the residents of Akwesasne.

2: Alicia Shenandoah and Elaine Thompson

[10] The Shenandoah Incident

On August 30, 2011, Alicia Shenandoah was travelling with her young daughter, her cousin Honey Myers and two others from her home on the Mohawk Reservation in New York State to attend a lacrosse match at an arena in Canada on Cornwall Island. To attend the match, she had to cross the international border and was thus required to attend without delay at the Port of Entry in the City of Cornwall before returning to the Island to attend the event. As she approached the intersection with the crossroads leading to the lacrosse arena, Honey Myers told her she did not have the proper identification on her person to submit at the Port of Entry. She asked Ms. Shenandoah to proceed directly to the arena where she hoped to meet a friend who had her identification. Ms. Shenandoah complied with this request. On arrival at the arena, Ms. Myers said she would simply get out there and avoid attending at the border. Ms. Shenandoah's young daughter was very restless in the car and she too was dropped off. Ms. Shenandoah then proceeded to the border where she was charged with aiding and abetting Honey Myers and Tara Myers, her daughter, to enter Canada without appearing for examination by a Border Service Officer. Ms. Myers was not a resident of Akwesasne nor was she a Mohawk, although she was a member of the Iroquois Confederacy.

[11] The Thompson Incident

Elaine Thompson was employed on January 18, 2013 at Cornwall Vocational Secondary School in the City of Cornwall. She resided in New York State on the Mohawk territory with her teenage daughter. She and her husband were living apart. On that day, she was getting ready to go to work and had arranged for her husband to pick up her daughter to take her to school. Her husband called to say he could not pick up the daughter and asked Ms. Thompson to drop the daughter off at his house so that she could use his car to drive herself to school. Ms. Thompson feared that she would be late for work if she drove her daughter to the Port of Entry for examination then returned to the husband's residence to drop her off, then returned again to the Port of Entry to proceed into the City of Cornwall. She decided to drop off her daughter before proceeding to the Port of Entry and thus aided and abetted her daughter to enter Canada without appearing for examination.

[12] Procedural Status

Both Ms. Shenandoah and Ms. Thompson had their vehicles impounded as an administrative penalty until they paid fines in the amount of $1000.00 and were also charged with the offences before the Court. I have heard the evidence against them on each of the charges and have ruled that if this Application is unsuccessful, there will be a finding of guilt made against each.

3: ABORIGINAL RIGHT TO MOBILITY UNDER SECTION 35(1)

[13] Framing of the Aboriginal Right

The specific framing of the aboriginal right sought to be established changed several times over the course of the trial. The right was frequently framed as a right to mobility, or a right to cross the international border without reporting to a Border Service Officer (BSO). In the Applicant's factum, the right asserted is defined as "a right of mobility and access within their traditional territory, and more specifically with respect to their three districts (Kawehnoke, Tsi-Snaihne, and Kana:takon), for social, economic, harvesting, trade, community, and spiritual purposes. The infringement of the right in question is the requirement that members of the Mohawks of Akwesasne must report in person in Cornwall each and every time that they travel to Kawehnoke "[Cornwall Island]." In final submissions, counsel for the defendants acknowledged that the particular facts surrounding the charges against Ms. Shenandoah and Ms. Thompson do not engage social, economic, harvesting, trade, or spiritual issues. The right sought, then is to freely travel within the territory of Akwesasne for family or community purposes without reporting, without delay in person to Canada Border Services at the Port of Entry. This is the mobility right that will be examined below.

3.1: The Law and s. 35(1)

[14] Constitutional Recognition

Section 35(1) of the Constitution Act, 1982 provides the following:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

[15] Van der Peet Test

The Applicants assert an aboriginal right to mobility for family and community purposes, but they make no claim to a treaty right to mobility for the Mohawks of Akwesasne. In R. v. Van der Peet, [1996] 2 S.C.R. 507, Chief Justice Lamer set out the following tests to determine whether an aboriginal right claimed will be recognized under s. 35(1):

Para 46: "…in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group.";

Para 51: "The correct characterization of the appellant's claim is of importance because whether or not the evidence supports the appellant's claim will depend, in significant part, on what, exactly, that evidence is being called to support.";

Para 55: "He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was.";

Para 60: "The time period that a court should consider in identifying whether the right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior to contact between aboriginal and European societies…..it is to that pre-contact period that the courts must look in identifying aboriginal rights.";

Para 69: "Courts considering a claim to the existence of an aboriginal right must focus specifically on the practices, customs and traditions of the particular aboriginal group claiming the right."; and, finally,

Para 70: "The practice, custom or tradition cannot exist simply as an incident to another practice, custom or tradition but must rather be itself of integral significance to the aboriginal society.".

[16] Van der Peet Criteria

For a particular activity to rise to the level of a constitutionally protected aboriginal right, the test set out in Van der Peet requires that each of the following criteria be established by the Applicant on a balance of probabilities:

1. The practices, customs and traditions said to be aboriginal rights must have continuity with those that existed prior to contact.

2. The practice, custom, or tradition must be of central significance to the aboriginal society in question.

3. The existence of an aboriginal right depends "entirely on the practices, customs and traditions of the particular aboriginal community claiming the right"; Van der Peet para 69.

4. The practice, custom or tradition relied cannot exist as an incident of another practice, custom or tradition but must itself be of integral significance.

[17] Evidentiary Approach

Chief Justice Lamer further reminds Courts to approach the rules of evidence in light of the difficulties inherent in adjudicating historical issues where written records are absent.

[18] Akwesasne as Aboriginal People

In R. v. Adams, [1996] 3 S.C.R. 101, the Supreme Court of Canada recognized the Mohawks of Akwesasne as an aboriginal people that could appropriately make a claim for an aboriginal right. In that case, the Mohawks of Akwesasne were granted fishing rights on Lake St. Francis as an aboriginal right. Thus, they are a people who can claim an aboriginal right in the place they are now found at Akwesasne. Whether the claim to a right of mobility meets the other tests set out by Justice Lamer will be considered next. To ensure that the right claimed is thoroughly considered, I will address each of the four criteria although any single one is dispositive of this part of the Application.

3.2: Is mobility for family or community purposes a practice, custom or tradition that existed prior to contact?

[19] Expert Evidence

In 1609, Champlain made his second trip to the Montreal area and counsel agree that this date be used to designate the time of first contact with the Mohawks of the Iroquois Confederacy. I had the benefit at trial of both written reports and extensive testimony from three experts in pre-contact and post-contact aboriginal life along the St. Lawrence River. Professor Francis Scardera is an archeologist who has specialized in aboriginal archeology in upstate New York, eastern Ontario and Western Quebec. Professor Jon Parmenter of Cornell University and Professor Alain Beaulieu of the Université du Quebec are both historians who have studied and written extensively about aboriginal life in the period leading up to and post-contact.

[20] Pre-Contact Aboriginal Presence

Professor Scardera testified that there has been an aboriginal presence on the north and south shores of the St. Lawrence River for thousands of years. The archeological record shows settlements along the River that were inhabited by a tribe now called the Iroquoians or the Laurentian Iroquois. This tribe was related linguistically to many other tribes including the Hurons, the Cherokee, and the tribes of the Iroquois Confederacy. While there is an ancestral linguistic root connecting all these tribes, they are culturally distinct.

[21] Displacement of Laurentian Iroquois

When Cartier first sailed up the St. Lawrence River in 1534, he found two settlements inhabited by Laurentian Iroquois in the Montreal area. When Champlain returned in 1603, there was no sign of the settlements or of the people. Historians now believe that in the intervening years, several aboriginal tribes seeking to control access to European trading waged war all along the St. Lawrence River. By the time Champlain arrived, the Laurentian Iroquois had been defeated and the tribe wiped out or absorbed into other tribes. They no longer had a distinct identity.

[22] Mohawk Mobility and Settlement Patterns

The absorption of the Laurentian Iroquois as refugees from the war zone or as spoils of war was carried out by the Huron and the Abenaki tribes as well as the Mohawks. At the time of contact, the Mohawk homeland was found along the Mohawk River west of present day Albany. There was evidence from Professor Parmenter, that I accept, that the Mohawks at the time of contact were very mobile. They travelled extensively when at peace with the other tribes for the purposes of trade and diplomacy. At the time of contact, they were travelling to make war. Professor Scardera testified that there is no archeological evidence of Mohawk settlements in the area of Akwesasne or, indeed, anywhere along the St. Lawrence River, at the time of contact. The practice of the Mohawk to travel considerable distances for the purposes of hunting was relied upon to claim a Mohawk presence at or near Akwesasne. The claim is based on non-exclusive usage of the land and not occupancy or settlement.

[23] Laurentian Iroquois Absorption

Modern Mohawks further assert aboriginal rights along the St. Lawrence River acquired from the defeated Laurentian Iroquois. It is asserted that when the Mohawks absorbed some Laurentian Iroquois members into their tribe as refugees or prisoners, the Mohawks became entitled to claim all aboriginal rights enjoyed by the defeated tribe including a right to freely and frequently cross the St. Lawrence River in the area of Akwesasne. They refer to the Laurentian Iroquois as their ancestors. Thus, their claimed mobility right to freely cross what is now the international border is derived principally from a right they say is derived from the rights of the extinct Laurentian Iroquois tribe.

[24] Insufficient Evidence of Continuity

There is scant evidence of the number of Laurentian Iroquois absorbed into the Mohawk tribe. Professor Scardera testified to archeological discoveries of Laurentian Iroquois pot shards in the Mohawk home communities along the Mohawk River. These pot shards are a very small minority of the total shards recovered and would support an inference that the number of Laurentian Iroquois absorbed was not large. Interestingly, Professor Beaulieu testified that significant numbers of Laurentian Iroquois were absorbed into Huron communities north of the St. Lawrence River. The Onondaga tribe around Ogdensburg also absorbed Laurentian Iroquois prisoners or refugees. While the evidence is overwhelming that there was a significant aboriginal presence on both shores of the St. Lawrence River and that those pre-contact people undoubtedly crossed the present day border for spiritual and trade purposes, there is not sufficient evidence to establish a link between the Mohawk tribe and the Laurentian Iroquois. I do not find the evidence sufficient on a balance of probabilities to establish the Mohawk tribe as the heirs and beneficiaries of any legal rights flowing from the practices, customs and traditions of the Laurentian Iroquois.

[25] Establishment of Akwesasne

As mentioned above, at the time of contact, there was no Mohawk settlement at or near present day Akwesasne territory. While there is some dispute as to the founding of the first post-contact community at Akwesasne, the accepted date is 1754 and it was no earlier than 1748.

[26] Occasional Border Crossings

At the time of contact, there is no evidence of regular crossing of the St. Lawrence River in the vicinity of Akwesasne by Mohawk. In R. v. Adams, the Supreme Court of Canada found that there was sufficient use of Lake St. Francis by the Mohawk to warrant a finding of a modern day aboriginal right held by the Mohawk of Akwesasne to fish there. That finding was based on evidence that Mohawks at around the time of contact regularly visited the St. Lawrence River to pursue acts of war with other competing tribes. The fish would be taken to sustain warriors while waging that war. There was no finding in Adams that the Mohawks of the day were regularly engaged in north-south travel across the St. Lawrence River. Professor Parmenter testified at length about the importance of mobility to the Mohawk way of life, but conceded that there would only have been occasional border crossings. In my view, the occasional nature of such crossings would not raise them to the level of a practice, custom, or tradition at the time of contact.

[27] Absence of Family Travel Evidence

Further, while much of the evidence at trial addressed whether there was a Mohawk aboriginal right to mobility per se, as indicated above, the Applicants ultimately particularized their claim as an aboriginal right to travel freely for family or community purposes within the territory of Akwesasne without reporting in person at the border. There is no evidence of any women accompanying Mohawk warriors to the area of Akwesasne around the time of contact for the purposes of supporting the warriors as they waged war. There is no evidence of any Mohawk travel across the St. Lawrence River at the time of contact for family purposes. There is no evidence that travel for family purposes across the St. Lawrence River was a custom, practice or tradition by Mohawks pre-contact. In the absence of any such evidence, that disposes of the Application with respect to an aboriginal right to travel freely within the Akwesasne territory for family purposes without reporting for examination at the Cornwall Port of Entry.

3.3: Is travel within the Akwesasne territory without reporting in person at the border for community purposes a practice, tradition or custom of central significance to the Mohawk people of Akwesasne?

[28] Community Importance

The freedom to travel anywhere in the Akwesasne territory is a tradition of central importance to the Mohawks of Akwesasne. Those that live on Cornwall Island may need to travel to St. Regis to see friends or family or visit the offices of the Mohawk Council of Akwesasne. To return home, they would have to cross the international border and, pursuant to s. 18(1), report to the Port of Entry before returning home. There are also those who live in Quebec or New York State territory off of Cornwall Island who may need to attend a health clinic, an elementary school, or the sporting arena but are required to factor into their journey a trip to the Port of Entry with, at the time of the offences, an uncertain wait time. Many residents, including Grand Chief Mitchell, testified about the negative impact the in-person reporting requirement has had on daily life in Akwesasne. I find that the possibility of long waits at the border at the time of the offences interfered in a significant way with many aspects of community life.

[29] Historical Context and Continuity

Was travel within the Akwesasne territory without reporting in person at the Port of Entry a part of the specific history of the Akwesasne Mohawk? The historical context of cross border travel at the area of Cornwall must be considered when assessing whether there is an aboriginal right attached to the Akwesasne Mohawks entitled to constitutional protection. The occasional crossing of the border that I found at the time of contact related to usage of the land, not settlement. It is impossible to say how often the St. Lawrence River was crossed in this area by Mohawks residing in the Mohawk River Valley for the purposes of trade, diplomacy, or war. There is no evidence of the continuity of this practice following the establishment of St. Regis mission in 1754. There is no evidence of the Mohawks living in the United States traveling freely through Akwesasne territory without reference to the Canadian border. There is a great deal of evidence of the practice of reporting without incident for the long period the Port of Entry was located on Cornwall Island between the southern shore of Cornwall Island and the east-west crossroads in the middle of the Island.

[30] Concession Regarding Border Control

At the outset of the Application, counsel for Ms. Shenandoah and Ms. Thompson conceded that Canada was entitled as a sovereign nation to control the flow of goods and people entering Canada. The argument was framed not as the right to evade reporting to the Canadian Border authorities while traveling within the Akwesasne territory, but rather as the right to avoid reporting in person.

[31] Proper Characterization of the Right

In my view, this particularization too finely defines the right sought. When Donald Marshall was fishing for eels without a licence and selling them without a licence, the aboriginal right sought was not limited to commercial trade in eels. The right sought and found was a right to fish generally – not only for eels: R. v. Marshall, [1999] 3 S.C.R. 45. Chief Justice McLaughlin addresses this issue in Mitchell in para. 15: The right claimed must be characterized in context and not distorted to fit the desired result. It must be neither artificially broadened nor narrowed. There is no evidence that Honey Myers sought to use an alternative form of reporting by telephone or electronic means to the Port of Entry. There is no evidence that either of the daughters of Ms. Shenandoah or Ms. Thompson attempted to report by an alternate means to in-person reporting. An aboriginal right to mobility within Akwesasne territory, without reference to the requirements of s. 18(1), while inside the Akwesasne Canadian-U.S. territory is the proper way to frame the right sought. This is particularly true given that there are no alternative means of reporting available to a community the size of Akwesasne. According to the evidence of numerous witnesses from the Canada Border Service Agency, this was true at all times up to and including June, 2015.

[32] Narrow Framing of the Right

I find that the right sought here is too narrow. It reflects an attempt at limitation similar to the right to pass freely across the border to trade goods with other native people that was sought by Grand Chief Mitchell in R. v. Mitchell, 2001 SCC 33 , [2001] 1 S.C.R. 911 at p. 933. In that case, Chief Justice McLaughlin reframed the right sought to be recognized as it had been too narrowly framed. I would do the same here for the same reason.

[33] Proper Framing

Properly framed, the aboriginal right would be a right to mobility within Akwesasne territory without the requirement of reporting at the Port of Entry. This right would not encompass travel onto the north shore of the St. Lawrence River without reporting. It was conceded here that Akwesasne travellers crossing to the north shore of the St. Lawrence River must report without delay and in person at the Port of Entry.

3.4: The existence of an aboriginal right will depend entirely on the practices, customs, and traditions of the particular community claiming the right.

[34] Specificity to Akwesasne Mohawks

The aboriginal right claimed must be specific only to Akwesasne Mohawks. If this mobility right is found, it will not be universal or transferable. Honey Myers is not a member of the Mohawks of Akwesasne. She belongs to the Onondaga tribe. This right claimed cannot apply to Honey Myers. Counsel for Ms. Shenandoah argued in his final submissions that the right sought should be characterized as the right of a Mohawk resident of Akwesasne to travel freely within Akwesasne territory without reporting in person at the border and any member of the Iroquois Confederacy (the Haudenosaunee) in the company of such a resident would likewise not be required to report at the border. There is no evidence historically to support this contention. Ms. Shenandoah aided and abetted her cousin to evade reporting in person without delay at the Port of Entry and this action was not saved by any recognizable aboriginal right.

[35] Historical Reporting Practice

There is no evidence that Mohawks of Akwesasne always traveled freely within their territory without being required to report at the Port of Entry. Chief Justice Lamer pointed out Van der Peet at para. 69 that "…the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right." Up until June 1, 2009, the history of the Mohawks of Akwesasne related in court always included a limitation on their travel within Akwesasne to report in person at the Canadian Port of Entry on Cornwall Island. Even at the time of contact, there is no evidence that Mohawks had or exercised a right to travel across border in this area without permission. The Applicants acknowledge this reality at para. 19 of their factum where it is admitted: "To the best of our knowledge, from the establishment of the Port of Entry on Kahwenoke in 1896 until the relocation of CBSA to the City of Cornwall in 2009, there had never been an issue with reporting compliance…" The Applicants do not succeed on this arm of the Van der Peet test.

3.5: The practice, custom, or tradition relied upon cannot exist as an incident of another custom, practice or tradition.

[36] Mobility as Means, Not End

There could be no aboriginal right of Akwesasne Mohawks to stand-alone mobility. Mobility is a means or method of doing something else. Mobility would need to be tied to a substantive activity that is itself an aboriginal right. For example, in Adams, the Supreme Court found there was an aboriginal right held by the Mohawks of Akwesasne to fish in Lake St. Francis. One would have to be mobile to exercise that right. The aboriginal right, though, is fishing, not mobility. The right is the purpose of the mobility, not the mobility itself.

[37] Vagueness of "Community Purpose"

In this case, the right to mobility is defined and particularized. It is the right to travel within the Akwesasne territory for community or family purposes without reporting in person to the Port of Entry. The submissions and evidence were silent on what would or would not form a community purpose. The right, to be meaningful, must be clear and unequivocal. Those who live in the community or provincial or federal governments enacting laws that affect the community must know with clarity what the right entails. How do you distinguish 'community purpose' from trade, politics, fishing, harvesting, or importing goods for resale?

[38] Personal Convenience

The particular purpose that Ms. Thompson and Ms. Shenandoah were pursuing is murky at best. Each dropped off their daughter on the Island after crossing the International Bridge without bringing them to the Port of Entry for examination. What community or family purpose consistent with a custom, practice, or tradition of the Mohawk was served? Their purpose was personal. Simply put, it was inconvenient to report at the bridge before dropping off their daughters.

[39] Conclusion on Vagueness

I find that mobility for the purpose of a "community or family purpose" is too vague to constitute an aboriginal right and further, that if it is an aboriginal right, the Applicants cannot benefit from it on the facts of this case.

[40] Failure of Aboriginal Rights Claim

In the result, the Applicants have failed to establish an aboriginal right to mobility for the purpose of traveling within Akwesasne territory without reporting - or without reporting in person – without delay for examination to the Port of Entry and accordingly, the aboriginal rights portion of the Application fails. I turn now to the Charter portion of the Application.

4: Charter Applications

4.1: Section 15(1)

[41] Equality Rights

S. 15(1) of the Charter provides:

"15(1) Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."

[42] Two-Part Test

The test under s. 15(1) was described by Justice Abella in Quebec (Attorney General) v. A., 2013 SCC 5 , [2013] 1 S.C.R. 61 (SCC) as two-fold:

1. Does the law create a distinction based on an enumerated or analogous ground?

2. Is the distinction discriminatory?

[43] Contextual Inquiry

Justice Abella gives additional guidance as to how the test is to be applied in para. 331:

"Kapp [R. v. Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483] and Withler [Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396] guide us, as a result to a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group. As Withler makes clear, the contextual factors will vary from case to case – there is no rigid template".

[44] Relevant Factors

The factors set out are pre-existing disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected. These factors are suggestions for consideration but are not exhaustive and need not be expressly canvassed in every case: Quebec para 331 and 417. A substantive disadvantage can also be shown if their disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the Applicant: Withler para 36.

[45] Effective Distinction

The first stage of the test is to determine if the impugned law creates a distinction based on an enumerated or analogous ground. Section 18(1) makes no explicit distinction as to who should report in person without delay at Canadian border crossings based on enumerated or analogous grounds. The question here is whether the law creates an effective even if unintended distinction. The Applicant submits that the reporting requirements have an adverse effect on the Mohawks of Akwesasne because the geography of the community is unique. The division of the Akwesasne territory by the international border has created hardships for the community, it is argued, that were exacerbated when the Port of Entry was moved from Cornwall Island to the City of Cornwall after June, 2009. Before that date, there is no complaint that s. 18(1) had a discriminatory effect. After the Port of Entry was moved, the requirement to report in person created considerable disruption in the daily affairs of the community. The Applicants maintain that the hardships suffered entitled them to a benefit given other groups but denied them for reasons based on unfounded stereotypes arising from their ethnicity as aboriginal Mohawks.

[46] Failure to Provide Benefit

It is not the burden created by the Application of s. 18(1) that is the source of the complaint but rather the failure to provide a benefit of more convenient reporting arrangements that were made available to others.

[47] Relocation of Port of Entry

As the complaint has its seeds in the decision to move the Port of Entry off of Cornwall Island, the circumstances surrounding the relocation and any steps taken to ameliorate the impact of the move need to be considered.

[48] Original Port of Entry

Prior to June 1, 2009, the Port of Entry was located on Cornwall Island south of the east-west road running the length of the Island. Between the international boundary and that Port of Entry, there were no side roads. The Port of Entry effectively caught all vehicular traffic entering the Island from the south. In addition to primary inspection lanes, there was an additional lane specifically designated for the Mohawks of Akwesasne to expedite their travel. All lanes including the "native" lane were staffed by the CBSA. The location and procedures were efficient and effective in controlling the flow of goods and people across the border.

[49] Arming Initiative

In 2006, the Government of Canada announced it would implement a campaign promise to arm all Border Service Officers to enhance public security and officer safety at Canada's borders. This initiative would include the arming of the CBSA personnel working on Cornwall Island. The Applicant's maintain that this initiative was unknown to the Mohawks of Akwesasne. I find that the evidence establishes there were discussions about the initiative between CBSA and community representatives from at least March 2009. On two occasions, the implementation of the arming initiative was delayed for the Cornwall Port of Entry and the final date of implementation was set for June 1, 2009.

[50] Community Opposition

The Akwesasne community was strongly opposed to having armed CBSA officers on the Mohawk Territory of Cornwall Island. The opposition came from all sectors of the community and from the community leadership represented by the Mohawk Council of Akwesasne, The St. Regis Mohawk Tribal Council and the Mohawk Nation Council of Chiefs. The evidence of Lance Markell of the CBSA and Wesley Benedict, a District Chief at the time of the events, stressed that the arming initiative was strenuously opposed. The MCA made it clear that it viewed the arming of the CBSA officers as "non-negotiable" and an act of war against the Mohawks.

[51] Escalating Tensions

Lance Markell arrived at Cornwall in mid-May 2009 to take charge of the situation on behalf of the CBSA. He testified that there was considerable tension at the Port of Entry created by a growing number of demonstrators on site day and night. He also testified about two incidents in the days leading up to May 31st where groups of Mohawks entered the CBSA building at the Port and interfered with the ability of CBSA personnel to examine two different individuals seeking entry to Canada. Each time, intimidation tactics were used to bring those individuals into Canada without being examined and approved. He testified that a backhoe was brought to the highway by Mohawks on the afternoon of the 31st and parked, blocking the highway. The atmosphere was tense and volatile and unarmed CBSA officers had reasonable fears for their safety.

[52] Closure of Port of Entry

In the evening of May 31st, the leadership of the MCA, the St. Regis Tribal Council and the Mohawk Nation Council of Chiefs met with Lance Markell and told him they had unanimously agreed they wanted the CBSA to leave the Island and the Port of Entry. The Akwesasne Chief of Police told Mr. Markell he could not guarantee the safety of the CBSA officers. In the face of this volatile situation, Lance Markell took the decision to close the Port of Entry and remove all CBSA personnel immediately from the Island.

[53] Temporary Port of Entry

The Cornwall Port of Entry was closed for about 6 weeks while the CBSA looked for an alternative. Once they left the Island, they were never invited to return. Arming of the BSOs was unacceptable to the Mohawks of Akwesasne and yet leaving them as the only Canadian unarmed Border Service Officers was an unacceptable risk to the CBSA. Quickly, the CBSA created a temporary Port of Entry in the City of Cornwall on the north shore of the St. Lawrence River. This temporary Port was the only solution available but was less than satisfactory. It would initially have only two inspection lanes creating long back-ups and long wait times for the public at peak hours.

[54] Intention to Return

It was the intention of the CBSA to return to the original Port of Entry on Cornwall Island and work again at the original smooth functioning location in an armed capacity. Paul Porrior of the CBSA and Lance Markell both testified to that effect. Grand Chief Mitchell said that at the request of the CBSA, the community was surveyed in November 2009 to see if it would support the return of the CBSA to the Island in an armed capacity. The survey revealed that the community remained opposed to the return of the CBSA to their original post.

[55] Self-Imposed Disruption

Section 18(1) remained and its requirement to report in person without delay was unchanged throughout this time. I have found that the change in the location of the Port of Entry from the Island to the City of Cornwall caused significant disruption to ordinary life in Akwesasne, but this disruption was not a function of s. 18(1), creating a discriminatory distinction on an enumerated ground. The disruption was self-imposed by the Akwesasne community. There was no distinction created by the legislation and there was no discrimination based on an enumerated ground.

[56] Alternative Reporting Arrangements

The Applicants have set out a second alleged s. 15(1) breach. While the Applicants have accepted the importance of the duty to report, their complaint is with the manner of reporting that is required. There is provision in IRPA for alternative reporting arrangements other than reporting in person. It is argued that failure to extend the benefit of alternative reporting to the Mohawk residents of Akwesasne, while extending such a benefit to other communities, is discriminatory. They allege the CBSA has stereotyped all the Mohawks of Akwesasne as smugglers and criminals who cannot be trusted and, further, that the refusal to provide for alternative reporting arrangements is a petty form of punishment against the Mohawks for compelling the CBSA to leave Cornwall Island. It is argued that the insistence of the CBS that everyone report in person without delay is unnecessarily and cruelly rigid. Such stereotyping and/or punishment would create a distinction based on the enumerated ground of race or ethnic origin such that step 1 of the s. 15(1) test is met.

[57] No Evidence of Stereotyping

The evidence does not support the contention that the failure to provide the benefit of alternative reporting arrangement arises out of either stereotyping or targeted punishment.

[58] High-Risk Designation

The Applicants have failed to introduce any evidence of an alternative reporting arrangement that could be done remotely without the presence of armed CBSA officers in a community similar to Akwesasne. That is to say, a community with over 13,000 residents at a high traffic volume border crossing where there is a proven history of smuggling of arms, people, and contraband. The evidence of the CBSA officials is that this border crossing is designated as high risk for the actions of a few. The vast majority of the Akwesasne population was acknowledged to be law abiding. In creating this designation, the CBSA maintains they were acting on intelligence and real experience and not stereotyping the whole community. I find that this is the case.

[59] Exceptional Circumstances Programs

There are alternative reporting arrangements that have been made in exceptional circumstances in other locations. These were described by Ms. Arianne Reza the CBSA Director of Traveller Programs. To give context to the exceptions, Ms. Reza testified that 100 million passages per year in Canada are screened under the provisions of s. 18(1) – that is, the traveller is required to report in person without delay for examination by a BSO. She said there are a very small number of programs that are available in special circumstances. None of these programs apply to an entire undefined large community at a high volume, high risk Port of Entry.

[60] NEXUS Program

NEXUS is a program that still requires the traveller to report at the border, but provides for an expedited process. The travellers are pre-screened for the NEXUS program and it is designed for individuals, not communities. Ms. Reza offered to Grand Chief Mitchell to look into arranging a NEXUS lane for the Mohawks but he did not take up her offer.

[61] CANPASS Program

The CANPASS program is offered to pre-screened travelers who are travelling by private plane or boat. It is not available to travellers traveling by car. In this program, the traveller is required to call ahead some hours before arriving in Canada to report and declare their arrival. It is still open to the BSO, on a random basis, to attend at the marina or airfield to examine the traveller in person. Such a BSO, like all such Officers in Canada, would be armed. This program would not address the concerns of the Akwesasne. It is not designed for passages made at border crossings accessed by road. It is not a workable alternative.

[62] Pilot Programs

Ms. Reza testified that at the time of her testimony, there were no alternative reporting programs for land or highway crossings although two pilot programs were being developed. The pilot programs were for specific small remote communities with very high levels of compliance. The communities also had very low volume of traffic consisting of 23 – 30 cars per day for each. The situation at Akwesasne is dramatically different as set out above.

[63] Feasibility Study

The benefit of an alternative reporting system was requested in May 2013 – after the laying of the charges before the Court. Mr. Alec Attfield testified that after May 2013, he and his team were charged by CBSA to look into the feasibility of an alternative reporting arrangement for Akwesasne. The CBSA at that time had no experience with establishing or running such a program. Mr. Attfield worked on this feasibility study for some 10 months. He found that it was feasible to set up video monitors at or near the site of the previous Port of Entry on the Island. In reaching that conclusion, he considered the availability of technical capacity to set up remote video stations beside the highway that would also be in direct communication with a CBSA official outside of Akwesasne. He thought the development of a secure status identification card was also possible.

[64] Security Concerns

It was not the technical feasibility that caused Mr. Attfield to conclude that a remote reporting arrangement, while feasible, could not meet the security standards required to protect Canadians from the illegal flow of goods or people not entitled to enter Canada. He testified to the following concerns that could not be addressed by such an arrangement:

• No process was in place for the identification of who would be entitled to benefit from the alternative program;

• Remote video monitoring could not see into the vehicle to determine if there were goods or people hidden inside;

• Who would monitor the actual remote video station to ensure compliance? The CBSA has no authority to delegate their function to others. If the CBSA was to monitor, it would have to be with armed officers. If this is the alternate reporting system and it is agreeable to the Mohawks, the Port of Entry might as well be returned to the Island;

• The remote reporting arrangement suggested by the Mohawks gave no method to compel travellers to proceed to secondary inspection in the absence of Border Service Officers.

• They considered whether the proposed remote reporting arrangement would maintain border integrity. Paul Porrior and Jeff Davidson, both with the CBSA, testified that the Cornwall Port of Entry is designated a high risk area. The designation is assigned not because of stereotyping, but in response to actual circumstances. They said there is frequent smuggling activity including the illegal movement of firearms, drugs, tobacco and people. There was testimony that in the first two months of operation of the temporary Port of Entry at the end of the Three Nations Bridge, 40% of travellers were non-compliant with the requirement to report. This level of illegal activity and non-compliance would impede an officer's ability to fulfill the CBSA mandate to provide border integrity.

[65] Decision Not to Proceed

The inference I draw from the concerns expressed by Mr. Attfield with the adequacy of a remote reporting arrangement for this border crossing is that the CBSA concluded the agency's mandate to ensure the security of Canada's borders could not be met with such an arrangement. I find the decision not to proceed further with a remote reporting project was not taken to deny an available benefit to the Akwesasne Mohawks or for any improper purpose.

[66] Border Security Mandate

The mission statement of the CBSA is "To ensure the security of Canada by managing the access of people and goods to and from Canada." Many of the residents of Mohawk lands on Cornwall Island, St. Regis, and the Chenail are not only proud Aboriginals, they are also Canadians entitled to the same protection of their lands from the smuggling of illegal goods or illegal aliens as any other Canadian. The CBSA is responsible for the security of the border that divides the Territory. To permit a remote reporting system that provides inadequate protection would itself become a discriminatory act if adopted by the CBSA.

[67] Conclusion on Section 15(1)

In the result, I find that the Applicants have failed to satisfy me on a balance of probabilities that IRPA creates a distinction based on an enumerated of analogous ground or, if I am wrong, I find that any distinction is not discriminatory, but rather was properly responsive to the unfolding reality of the expulsion of the CBSA from Cornwall Island.

4.3: Section 7

[68] Liberty and Security of the Person

Section 7 of the Charter reads:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The inquiry mandated by s. 7 in this case is two-fold:

1. Does s. 18(1) limit the right of Ms. Shenandoah and Ms. Thompson to life, liberty and security of the person; and

2. If so, is the limitation in accordance with the principles of fundamental justice?

[69] Claimed Limitations

The Applicants maintain that s. 18(1) limits both their liberty and their security of person. In particular, it is argued, their liberty is limited because the section is enforced by s. 124(1) of IRPA which provides that those who assist others to avoid reporting without delay are subject to a fine or imprisonment or both. It is this possibility of imprisonment for non-compliance that is said to limit the liberty of the complainants. It is further argued that the security of the person of each complainant is limited by reason of the impact of the s. 18(1) on their psychological integrity. In short, the mere fact of reporting in person to a Border Service Officer at the Port of Entry is an infringement of both their physical and psychological integrity.

[70] Threat of Incarceration

Where legislation is enforced by a threat of incarceration, it imposes a restriction on liberty and will meet the first arm of the test. I will examine the second arm of the test – is the limit imposed in accordance with the principles of fundamental justice – shortly. First, it is necessary to consider whether there has been a limit placed on the security of the person.

[71] Psychological Integrity Standard

The Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para 60 gave some guidance on the sort of psychological stress that would give rise to a limitation:

"[f]or a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety."

[72] Thompson's Testimony

First, the subjective impact of reporting at the border should be considered. Ms. Thompson testified that she crosses the border daily to go to her workplace. She said the wait time at the border when she travels is usually 3 – 5 minutes. She also said that at other times, the wait times could be longer, but less than 20 minutes at the new interim Port of Entry. She did not give a maximum wait time at the former temporary Port. She testified that she is reluctant to come onto Cornwall Island to access services or visit friends and family because of the extra time and inconvenience caused by reporting in person at the border. I do not find that the inconvenience or stress she describes would qualify as creating "a serious and profound effect on [her] psychological integrity."

[73] Shenandoah's Testimony

Turning to Ms. Shenandoah, she also indicated that since the charge was laid, she is reluctant to come onto Cornwall Island from her home in the United States because of the wait times at the border. She recounted one holiday weekend when it took her an hour and a half to travel from her home, cross the border, return to Cornwall Island to pick up a babysitter then return home. Again, I do not find that the inconvenience and stress caused by being required to report at the Port of Entry before proceeding to her destination on Cornwall Island would create a "serious and profound effect on [her] psychological integrity."

[74] Objective Assessment

To determine if there is a limitation on an individual's security of the person, the circumstances must also be looked at objectively "with a view to their impact on the psychological integrity of a person of reasonable sensibility." The impact "must be greater than ordinary stress or anxiety." Various members of the community testified to the inconvenience of driving past their destination to report at the City of Cornwall. The time required to report and return to their ultimate destination varies widely according to the time of day, whether there is a special event occurring on the Island and when over time the trip was made. Members of the community testified to the inconvenience and disruption caused by the requirement to report in the City of Cornwall after the CBSA was compelled to leave their facility on the Island. The witnesses all agreed, however, that the new bridge and Port of Entry has significantly reduced wait times.

[75] Border Procedures and Reasonable Expectations

All parties agree that Canada has a duty to maintain the security of its borders. Entry into Canada at any border crossing brings with it the reasonable expectation that the traveller will be stopped and asked questions and their person or vehicle may be searched. This process is minimally intrusive and is foreseeable. It is a process that applies to the 100 million passages into Canada each year. There is no expert evidence relied upon to establish the psychological impact on the Akwesasne community. In R. v. Simmons, [1988] 2 S.C.R. 495, the Supreme Court had occasion to consider border procedures in the context of the s. 8 freedom from unreasonable search and seizure. The Court found at para 49 that "the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign States have the right to control both who and what enters their boundaries. For the general welfare of the nation, the State is expected to perform this role." I find that a reasonable person in the position of the complainants would be annoyed at the inconvenience created by the border controls, but that annoyance would not rise to the level of a 'serious and profound effect on a person's psychological integrity." Thus, I do not find any deprivation to the security of the person created by s. 18(1).

[76] Arbitrariness and Gross Disproportionality

I have found that the right to liberty is impacted by s. 18(1) and so will turn now to the second part of the test namely, is the deprivation of liberty in accordance with the principles of fundamental justice? The Applicants argue that the requirement for "strict" reporting at the Port of Entry, which I take to mean reporting in person without delay, is both arbitrary and grossly disproportionate and thereby violates the fundamental principles of justice. In support, it is argued that "It is both misleading and simplistic to suggest that the objectives of border security and national security can only be achieved by forcing Mohawks of Akwesasne to report in person in the City of Cornwall when viable alternatives are available". However, there is no evidence of a viable alternative to the present reporting arrangements until such time as the Port of Entry can be moved onto the south shore of the St. Lawrence River in the United States. The arrangements for such a move are underway with the first step of attaining an international treaty with the United States achieved. The evidence of Mr. Attfield referred to above is overwhelming on this point as is the failure of the Mohawks of Akwesasne to suggest an existing or proposed viable alternative that would ensure border integrity.

[77] Enforcement Not Arbitrary

There is no evidence that the requirement to report in person is arbitrary. Ms. Thompson testified that when she was arrested, it was the second time she had dropped off her daughter without having her report first at the border. The first time this happened, about a year prior to the date of the charge, she was given a warning and was not charged. That is not an arbitrary action consistent with the Applicant's characterization of a "strict", meaning inflexible, reporting regime. From July 13, 2009, when the border was reopened, until mid-September of that year, the reporting requirement was not enforced by administrative fines or the impounding of vehicles. Absent those enforcement measures, approximately 40% of the travellers from the Akwesasne community did not report as required by s. 18(1). It cannot be said that enforcement measures are arbitrary, if lesser measures did not result in compliance. I do not find that the s. 18(1) requirements or the manner in which they were enforced to be arbitrary or inconsistent.

[78] Balancing Individual and Societal Interests

Finally, I find that the Ontario Court of Appeal in [R. v. Jones, [2006]) gives helpful direction when considering the impact of international travel on the principles of fundamental justice. In that case, the Applicant sought to exclude a statement made to Border Service Officers under s. 7. Justice Doherty in giving the judgement of the Court said at para 29:

"[T]he s. 7 analysis involves a balance. Each principle of fundamental justice must be interpreted in light of other individual and societal interests that are of sufficient importance that they may appropriately be characterized as principles of justice in Canadian society.";

and at para. 30:

"No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada…..The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and co-operate with that state intrusion in exchange for entry into Canada. [31] I also have no hesitation in describing Canada's effective control over its borders as a societal interest of sufficient importance to be characterized as a principle of fundamental justice."

In keeping with the Jones decision, I find that the minimal intrusion involved in requiring people entering Canada, including the Mohawks of Akwesasne, to report in person at the Port of Entry is entirely consistent with the principles of fundamental justice when balanced against the societal interest in maintaining the integrity of Canada's borders. This is for the protection of all Canadians, including the Mohawks of Akwesasne.

[79] Conclusion on Section 7

I find that the Applicants have established on a balance of probabilities that the liberty of the Applicants was at risk by operation of s. 18(1) but that the section complies with the fundamental principles of justice.

4.4: Section 1 Canadian Charter of Rights and Freedoms

[80] Section 1 Analysis

Having found that section 18(1) breaches section 7 of the Charter by putting at risk the freedom of individuals who do not comply with the requirement to report without delay and in person at a Port of Entry upon entry into Canada, I now must turn to section 1 of the Charter to determine if this requirement is a reasonable limit on liberty notwithstanding that I have found the limit to be in keeping with the principles of fundamental justice.

[81] Section 1 Text

Section 1 of the Charter provides:

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrable justified in a free and democratic society."

[82] Oakes Test

The primary test to determine if the purpose of legislation is demonstrably justifiable in a free and democratic society is found in R. v. Oakes, [1986] 1 S.C.R. 103. In a unanimous decision of the Supreme Court, Chief Justice Dickson set out a two-step process as follows:

1. There must be a pressing and substantial objective and

2. The means for achieving the objective must be proportional, meaning there must be minimal impairment of rights, the means must be rationally connected to the objective and there must be proportionality between the infringement and the objective.

[83] Pressing and Substantial Objective

The Applicants acknowledge that the control of goods and people across Canada's border is a pressing and substantial objective that is fundamental to Canadian sovereignty, so I turn to the second stage of the test to determine if the Respondent has demonstrated, on a balance of probabilities, that the means of achieving that objective are proportional.

4.3(i) Minimal impairment of rights

[84] Proportionality and Minimal Impairment

Prior to the expulsion of the CBSA from Cornwall Island, there was no complaint about the requirement to report at the Port of Entry in person. The claim that s. 18(1) is a disproportional impairment of the s. 7 right arises from the location of the Port, not from the reporting requirement itself. As I have found, the movement from a convenient Port of Entry to an inconvenient Port of Entry was solely attributable to the demand of the Mohawks of Akwesasne and the proportionality of the new reality created by that movement has to be viewed in light of that background. The only way to control the flow of goods and people across the border is to require everyone to report in person or to be liable to report in person. There are alternative reporting arrangements that have been approved for those entering Canada by private airplane or boat, but those people can be required at random to wait at their landing place, pending the arrival of an armed Border Service Officer. Such an arrangement does not meet the community mandated prohibition against armed CBSA officers attending on the territory of the Mohawks of Akwesasne. As I have already found above, there is no alternative reporting arrangement suitable for Akwesasne that will enable the CBSA to carry out its mandate of protecting the integrity of Canada's borders. The Supreme Court of Canada addressed a similar issue in R. Simmons, [1988] 2 S.C.R. 495. In that case, an individual was required to submit to a search by a Customs Officer at the border. In upholding the search as reasonable, the Chief Justice Dickson said at para. 49:

"I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation, the State is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders are legally entitled to enter the country, the State would be precluded from performing this crucially important function."

[85] Minimal Impairment Finding

I find that the requirement that every person report in person at the Port of Entry without delay is proportional to the critical purpose of s. 18(1) and is a minimal impairment of rights as set out in Simmons.

4.3(ii) Are the means rationally connected to the objective?

[86] Rational Connection

The means – requiring in-person reporting without delay – are obviously rationally connected to the objective. 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 search for a more convenient alternative to the present disruptive reporting regime was carried out by Mr. Attfield over many months and no alternative was found that could be safely implemented. I find the alternatives suggested by counsel for the Applicants were not realistic or developed. They were ideas without substance. The means – requiring in-person reporting without delay – are obviously rationally connected to the objective. This reporting is not frivolous, arbitrary, or unnecessary. The purpose of the reporting has been acknowledged and approved the Supreme Court of Canada in Simmons.

4.3(iii) Is there proportionality between the infringement and the objective?

[87] Accommodations and Ameliorative Measures

Are there ways of achieving the legislative goal of securing Canada's borders through less restrictive means? After June 1, 2009, a joint MCA and CBSA Committee was established to address border issues. The committee recommended relieving emergency services such as the police and ambulances from the reporting requirement. Accommodations were also granted over time to school buses and funeral processions. A training program was developed and delivered to sensitize border officers to the local Aboriginal history, customs, and spiritual practices. An aboriginal was hired to act as a liaison with the community on resolving the border complaints of individuals.

[88] Expansion of Port Capacity

The temporary Port of Entry in the City of Cornwall was inadequate to handle the volume of traffic resulting at long delays at peak periods. The CBSA negotiated with the city to obtain enough land to add a third primary inspection lane. At the request of the MCA, the new lane was designated for native use. The designated lane had the opposite effect from what was intended – it added to the wait time. After consultation, the three lanes were then all designated for general use.

[89] Special Event Procedures

The CBSA suggested and implemented procedures to address the increased traffic created by special events on the Island. When there was a lacrosse tournament, they would pre-screen incoming teams with the cooperation of the MCA so that the delay at the border for examination would be reduced. They also added extra staff during special events to speed processing.

[90] New Bridge and Port Facility

In January 2014, a new bridge was completed connecting Cornwall Island and the mainland. This bridge was significantly shorter than the old bridge and there was enough space on the north shore to create a new interim Port of Entry with five primary inspection lanes. The MCA was consulted extensively in the design of this new interim facility. It has cut wait times to less than 20 minutes at any time of the day, according to unchallenged CBSA records.

[91] International Treaty and Permanent Solution

The CBSA and the Mohawks of Akwesasne have always maintained that the most efficient and effective location for a permanent Port of Entry would be in the United States on the south shore of the St. Lawrence River. Grand Chief Mitchell acknowledges that a Port of Entry at that location would address all of the concerns of the Akwesasne community. The Government of Canada, aware of the importance of finding a permanent solution to the disruptions of daily life caused by a Port located on the north shore, entered into negotiations with the United States. In March 2015, after three years of joint effort, an international treaty was adopted that approved in principle the need for a process of border pre-clearance on U.S soil. Before the first pre-clearance station can be established, many amendments to Canadian and US legislation will be needed, but testimony indicated a strong commitment from both countries to move forward. This is a national treaty affecting potentially many Ports of Entry, but both nations have agreed to make the crossing at Cornwall Island the first priority.

[92] Proportionality Conclusion

These actions by the CBSA have shown a commitment to ameliorate the impact of the relocated Port of Entry that is proportional and appropriate. The objective of s. 18(1) is to ensure the security of Canada's borders. That security is a fundamental protection for all the people of Canada including those who reside on Cornwall Island. The infringement, I find, is minimal and proportional. It has been and continues to be mitigated respectfully by the CBSA having regards to the needs of the people of Akwesasne for minimal disruption of their daily routines and the needs of Canada to maintain secure protect borders.

[93] Section 1 Justification

Having balanced all of the criteria set out in Oakes, I am satisfied that the s. 18(1) infringement of section 7 rights is saved by section 1 of the Charter. Section 18(1) is a reasonable limit fully justified in a free and democratic society.

4.4: Freedom of Association s. 2(d)

[94] Freedom of Association Claim

Section 2(d) of the Charter provides:

"2 Everyone has the following fundamental freedoms…

(a)…

(b)…

(c)…

(d) freedom of association."

The Applicants contend that the requirement of in-person reporting at the border has had a chilling effect on travel to Cornwall Island that rises to the level of an interference with the guarantee of freedom of association. Many members of the Akwesasne community including the two Applicants testified that they are reluctant to travel to Cornwall Island to visit family or friends or to attend cultural events because of the uncertain border wait times. No one testified that they had been forbidden or excluded from associating with any individual or group or organization as a result of s. 18(1). They argue that border wait times have exceeded the level of mere inconvenience to become an interference with the social fabric of the community. This is a novel argument. It is clear from the case law that the freedom of association section was drafted to protect workers seeking to join a union. There is no precedent for expanding this freedom to include a right to associate with alacrity. It may be that a significant and long lasting impediment to association that was not an actual bar to association could yet be considered enough of an inhibition to amount to denial of the right. That is not the case here.

[95] No Actual Bar to Association

The Applicants have not given any testimony of any organization, individual or group with whom they have been unable to associate as a result of the operation of s. 18(1). It is clear that to meet with some of their friends or family or social or cultural organizations found on Cornwall Island, they must allow for longer travel time. It may take them an extra 10 to 20 minutes now and somewhat longer at the time of the charges to associate with those on Cornwall Island, but there is no prohibition from such a meeting. There has been no testimony of any delay in meeting or associating with others that is not measured in minutes or, at most, less than two hours. These are not delays measured in days, weeks or months. The delays do not reach the point where they interfere with the constitutionally protected right of freedom of association.

[96] Dismissal of Application

The applicants have failed to prove on a balance of probabilities any breach of sections 15(1), 7, or 2(d) of the Charter that is not saved by section 1 and, accordingly, the Application is dismissed in its entirety.

Released: October 2, 2015

Signed: "Justice P. Griffiths"