Border guards wrong to search Indigenous man’s vehicle, court says in upholding acquittal

An Ontario court has ruled border guards at a crossing between a Canadian island and the rest of the country were wrong to search an Indigenous man’s vehicle on grounds that he had a criminal record and associated with others convicted of breaking the law.

In a decision released last Friday, Ontario Superior Court Justice Nathalie Champagne said Kanawakeron Jody Swamp’s criminal record didn’t justify the search that led him to be charged under the Customs Act in 2017.

What’s more, the judge said, nearly everyone on Cornwall Island —situated in the St. Lawrence River with bridges linking it to the U.S. and Cornwall, Ont. — has a relative with a criminal record, which means that also cannot be considered reasonable grounds for a search.

Neither can the fact that Swamp, a member of the Mohawk Nation who lives on the island, drives a “low-value” vehicle — another indicator cited by one of the border guards involved in the search.

Swamp was charged with multiple offences after border guards found American firecrackers in his car during a secondary inspection.

He was acquitted after the trial judge found border guards at a mixed-traffic crossing such as the one in Cornwall, Ont., can’t question or search travellers coming from within Canada, but the Crown appealed the ruling.

In her decision, Champagne said that while the trial judge erred in his interpretation of the law on mixed-traffic crossings, the search was nonetheless unjustified and the acquittal should be upheld.

“The evidence shows that Mr. Swamp’s criminal record was not for smuggling and almost every family who resides on Cornwall Island has a family member with a criminal record. Thus, the fact that Mr. Swamp kept company with individuals who had a criminal record is not surprising and is not … reasonable grounds to suspect,” she wrote.

Meanwhile, border guards did not explain the significance of the value of Swamp’s truck, she said, and that is insufficient to establish grounds for a search.

Cameron Fiske, who represents Swamp, called the ruling a step in the right direction for the population of Cornwall Island.

“Ultimately, what is at stake is Canada’s relationship with its Indigenous population,” he said in an email.

“Given the peculiar configuration of the border at Cornwall, wherein an entire island is essentially wedged between two countries in a ‘mixed traffic corridor,’ the treatment of Aboriginal persons in that mixed traffic corridor is certainly a matter of significant public interest. No one else in the country is in that unique situation.”

Swamp is also the representative plaintiff in a class-action lawsuit that alleges the Mohawk residents of Cornwall Island face systemic discrimination because of the border crossing.

Fiske, who also represents Swamp in that suit, has said residents have to go through the crossing to attend schools, doctor’s appointments or to eat in restaurants.

The lawsuit alleges the Canada Border Services Agency and the Attorney General of Canada have turned a blind eye to illegal searches, seizures and detention imposed on members of the Akwesasne reserve living on the island.

The statement of claim alleges the CBSA and the Attorney General were negligent and breached their duties in allowing border guards to treat island residents travelling within Canada like foreign visitors.

The allegations have not been tested in court. The CBSA has said Cornwall Island represents “a unique and complex set of challenges related to border management,” and that it is working with the Mohawk Council of Akwesasne to address the issues.

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