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Federal Court
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Cour fédérale
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PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE MOHAWK COUNCIL OF AKWESASNE AND
THE MOHAWKS OF AKWESASNE
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS,
THE PRESIDENT OF THE
SERVICES AGENCY AND
THE MINISTER OF TRANSPORT,
INFRASTRUCTURE AND COMMUNITIES
REASONS FOR ORDER AND ORDER
[1] In 2006, the decision was made that Border Services Officers working at land and marine ports of entry operated by the Canada Border Services Agency (“CBSA”) should begin carrying firearms when performing their duties.After twice postponing the implementation of the arming initiative at the customs office on
[2] This decision resulted in a number of demonstrations taking place on
[3] Because of the peculiar geography of the area, the Mohawks of Akwesasne face particular challenges as a result of the closure and subsequent relocation of the port of entry.The applicants, who represent members of the Mohawk community in various capacities, now seek a range of interlocutory remedies to alleviate the hardship allegedly faced by the Mohawks of Akwesasne, pending the hearing of the applicants’ application for judicial review of the decision to close the
[4] For the reasons that follow, I have concluded that the applicants will not face irreparable harm in the period between now and the time that their application for judicial review is finally determined, and that the balance of convenience favours the respondents. As a consequence, the motion will be dismissed.
The Parties
[5] The Mohawks of Akwesasne are recognized in
[6] The Mohawk Council of Akwesasne (“MCA”) is a community government elected by the Mohawks in Akwesasne under customary election law.According to the applicants, it is a “council of the band” within the meaning of the Indian Act. The MCA administers the local affairs of the Mohawks of Akwesasne, and represents them in their dealing with Canadian governmental bodies.
[7] Grand Chief Timothy Thompson was the elected Grand Chief of the Mohawks of Akwesasne as of the date of the issuance of this application for judicial review.He has since been replaced by Grand Chief Michael Kanentakeron Mitchell.
[8] The Minister of Public Safety and Emergency Preparedness is charged with responsibility over the Canada Border Services Agency in accordance with section 6 of the Canada Border Services Agency Act (“CBSAA”), S.C. 2005, c.38.Section 5 of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) confers power on the Minister to designate customs offices inside or outside
[9] The CBSA’s mandate is described in subsection 5(1) of the CBSAA which states that the “Agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation…”
[10] The CBSA is responsible for enforcing a number of statutory instruments that form part of the program legislation, including the Customs Act and the Immigration and Refugee Protection Act, S.C. 2001, c.27.
[11] The President of the CBSA is responsible for the management of the CBSA and all matters connected with it, under the direction of the Minister of Public Safety and Emergency Preparedness.
[12] The Minister of Transport, Infrastructure and Communities is responsible for the security and safety of international bridges and tunnels, in accordance with section 17 of the International Bridges and Tunnels Act, S.C. 2007, c.1 (“IBTA”).
[13] Although not named as a party to this proceeding, the Seaway International Bridge Corporation Limited (SIBC) is also involved in the events giving rise to this matter.The SIBC is a subsidiary of the Federal Bridge Corporation Limited, a Transportation Crown Corporation within the portfolio of the Minister of Transport. The SIBC operates and manages the international toll bridge system linking the north shore of the St. Lawrence River,
The Geography of the Area
[14] In order to understand the issues on this motion, it is necessary to have some familiarity with the geography of the area.To assist in this regard, a map of the region is attached as an appendix to these reasons.
[15] Briefly stated, the City of
[16] As its name suggests, the “
[17] The “
The Mohawks of Akwesasne
[18] The Mohawks of Akwesasne are part of the greater Mohawk community of Akwesasne, whose members include the St. Regis Mohawk Tribe in the
[19] The Akwesasne Reservation is in
Background
[20] The
[21] Whether they reside in
[22] One cannot travel by car from the Akwesasne Reserve No. 15 in Québec to
[23] The creation of an international boundary dividing the Akwesasne community, and the regulation of the movement of people and goods across that border has generated significant conflict and litigation over the years.
[24] Amongst other things, the right of members of the Mohawks of Akwesasne to bring goods into Canada from the U.S. for trading purposes without paying customs duties was the subject of proceedings in the Supreme Court of Canada: see Mitchell v. Canada (Minister of National Revenue - M.N.R.), 2001 SCC 33, [2001] 1 S.C.R. 911.The legality of the expropriation of land on
[25] Most recently, there have been allegations of racial profiling and other forms of discrimination by CBSA officers working out of the
The CBSA Arming Initiative
[26] According to the respondents, Border Services Officers face a growing challenge, particularly at land borders, in intercepting potential threats including high risk individuals, firearms, explosives, drugs and illegal contraband.Prior to being provided with firearms, Border Services Officers were unable to deal with individuals endeavouring to cross the border who were identified as “armed and dangerous”.Officers were instructed to let such individuals into
[27] The lack of immediate police assistance and the number of armed and dangerous travelers or “look-outs” passing through the border led to numerous instances of Border Services Officers abandoning their posts due to perceived unsafe work conditions.This contributed to the decision in August of 2006 to provide Border Services Officers working at land ports of entry such as that located on
[28] There were a number of discussions between representatives of the Mohawks of Akwesasne and the CBSA in the period between August of 2006 and May of 2009 with respect to the implementation of the arming initiative at the border crossing on
[29] Moreover, many Mohawks perceived the deployment of an armed force that was not accountable to the Mohawk community as a form of “intersocietal aggression”. Indeed, the MCA advised the Minister of Public Safety and Emergency Preparedness that the deployment of arms would be viewed within the Mohawk community as “an act of war”.
[30] The implementation of the arming initiative was postponed twice.Despite further discussions between the CBSA and members of the Mohawks of Akwesasne, no resolution of the issue was arrived at, and the CBSA came to the conclusion that no resolution was likely. Indeed, Grand Chief Thompson confirmed in his cross-examination that as far as the MCA was concerned, the issue was, and still is, “non-negotiable”.
[31] Consequently, on March 6, 2009, the Executive Vice-President of the CBSA advised Grand Chief Thompson and two district Mohawk Chiefs from
The Protests at the
[32] After being advised that the arming initiative would be implemented at the
[33] There is a disagreement between the parties with respect to the nature of the protests that ensued.It is, however, uncontroverted that on May 25, 2009, an individual later identified as “R.N.” entered the CBSA building on
[34] During this exchange, the group saw a second individual known as “T.H.” being questioned by CBSA personnel.T.H. evidently had a history of involvement in serious criminal activity, and there was a question as to his admissibility to
[35] While there appears to be some question as to whether R.N. was attempting to enter
[36] Lance Markell was the District Director at the
[37] On May 29, 2009, a group of approximately 100 protesters gathered at the CBSA facility.Grand Chief Thompson led a group of about 40 protesters into the CBSA building.He read aloud an MCA resolution opposing the arming of Border Services Officers, and someone in the crowd then advised Mr. Markell and others that this was the “first notice” to CBSA.
[38] One of the individuals accompanying Grand Chief Thompson noticed four men being examined by CBSA officials.When the men were asked who they were, they announced that they were Native Americans from
[39] The four individuals were being questioned by CBSA because of concerns with respect to their potential inadmissibility to
[40] On May 30, 2009, a crowd of approximately 200 protesters gathered at the CBSA facility.Grand Chief Thompson once again read the MCA resolution opposing the arming of Border Services Officers, and advised Mr. Markell and others that this was the “second notice” to the CBSA.
The Protests on May 31, 2009 and the Closure of the CBSA Facility
[41] There is also a disagreement between the parties as to the nature of events which took place on May 31, 2009. The applicants submit that there was a peaceful political demonstration against the arming of CBSA Border Services Officers scheduled to take effect the following day.The applicants point to the fact that no one was ever arrested for actions occurring on that evening as support for their position that the protest remained peaceful. On the other hand, the CBSA witnesses state that the protests on the evening of May 31, 2009 presented a threat to the safety of the CBSA officers on duty.
[42] While the two sides place a very different spin on what happened at the CBSA facility on
[43] At approximately 8:00 in the evening, Grand Chief Thompson and others presented Mr. Markell with the “third and final notice” of the MCA resolution. Mr. Markell had a discussion with Chief Cheryl Jacobs, who asked if the implementation of the arming of the Border Services Officers could be postponed.Chief Jacobs also advised Mr. Markell that she was doing her best to control the protesters, but that “there was a group of angry men prepared to take matters into their own hands”.
[44] Over the course of the evening, individuals wearing “Warrior” insignias on their clothing shone lights at surveillance cameras on the site, making it difficult to monitor the area around the CBSA facility.Bonfires were also set at several locations surrounding the CBSA facility.
[45] At around 11:00 p.m., Mr. Markell spoke to
[46] Approximately 40 minutes later, Mr. Markell was advised that SIBC employees working at the toll booths at the north end of
[47] Richard Comerford, the Regional Director General for the CBSA’s Northern Ontario Region, was monitoring the situation by video feed.Just before midnight, Mr. Comerford spoke by phone to
[48] Mr. Comerford then instructed Mr. Markell to evacuate CBSA personnel from the
[49] The next morning, Mr. Comerford spoke to Grand Chief Thompson and
The Period Between June 1, 2009 and the Opening of the Temporary Facility
[50] The closure of the
[51] Similarly, the blockading of the
[52] On June 26, 2009, the applicants filed their application for judicial review of the decision to close the international port of entry located on
[53] A temporary CBSA facility and port of entry opened at the northern base of the
[54] Since July 13, 2009, all travelers from the
[55] On July 30, 2009, the CBSA/Cornwall Taskforce was established.Members of the Taskforce include representatives of the CBSA, the MCA, the St. Regis Tribal Mohawk Council, and the Mohawk Nations Council of Chiefs.The Taskforce has met regularly since July 30, 2009 in order to try to address CBSA operational issues affecting members of the Akwesasne community, amongst other things.
[56] In the period between July 13, 2009 and September 16, 2009, the CBSA did not actively enforce the statutory requirement that individuals arriving in
[57] The CBSA advised representatives of the MCA and other groups representing the Mohawks of Akwesasne that it would resume enforcing the reporting requirements under the Customs Act and the Immigration and Refugee Protection Act in mid-September, 2009. In the view of the CBSA, this was necessary to ensure public safety and national security.
[58] On September 18, 2009, the CBSA began seizing vehicles that had been used to transport persons into
The Applicants’ Motion for Interim Relief
[59] The applicants’ motion seeks “Interim Orders, an Interlocutory Injunction and other Interim Relief” pending the final determination of their Application for Judicial Review.Specifically, the applicants seek:
a) to suspend and prohibit the seizure by Respondents or the Canada Border Services Agency of vehicles of any of Applicants the Mohawks of Akwesasne at the purported new customs facility … and purported new international port of entry in the city of Cornwall … and to suspend and prohibit the imposition of fines or other liability on the Mohawks of Akwesasne for failure to report to the Canada Border Services Agency (“CBSA”) at the new port of entry when traveling only to Cornwall Island from the United States across the international bridge linking Rooseveltown to Cornwall Island for purposes of carrying on their daily lives, occupations or activities or the way of life of the Mohawks of Akwesasne or community activities, including to reach their residences, to transport Mohawk children to schools and Mohawk patients to health facilities, to provide, administer or receive educational, health, social or public services and programs, or for the purposes of Mohawk governance.
b) to suspend the application by Respondents to Applicants of the Customs Act, and other relevant federal legislation in respect to the travel by Applicants within or between the Akwesasne Reserves situated in
c) in the alternative, permitting the Applicants the Mohawks of Akwesasne to report to the CBSA, at a location on Cornwall Island, for the purposes of the Customs Act and other relevant federal legislation, when Applicants the Mohawks of Akwesasne and the Mohawk Council of Akwesasne travel from the United States to destinations on Cornwall Island;
d) in the further alternative, directing Respondents to make alternative arrangements respecting reporting by Applicants pursuant to the Customs Act and other relevant federal legislation in relation to the travel of Applicants from the United States to destinations on Cornwall Island;
e) in the alternative, to direct the Respondent Minister of Public Safety and Emergency Preparedness to issue an authorization to the Applicants, including all Mohawks of Akwesasne, allowing them to present themselves in an appropriate and practical alternative manner when traveling from the United States to destinations on Cornwall Island;
f) in the further alternative, to direct the President of the CBSA to reopen the CBSA facility on Cornwall Island in order to permit the Applicants traveling from the United States to Cornwall Island to report their entry into Canada at that facility as it operated prior to May 31, 2009, the whole under reserve of the proceedings under court number T-2210-76 concerning title to those lands;
g) to make such other order or provide such other interim relief as to this Honourable Court may seem just.
[60] The primary focus of the applicants’ arguments in their initial oral submissions was on having the CBSA provide alternative reporting arrangements for the Mohawks of Akwesasne.In contrast, in their reply submissions, the focus of the applicants’ argument was their contention that the CBSA should be compelled to reopen the
The Test for Injunctive Relief
[61] The parties agree that in determining whether the applicants are entitled to the relief sought, including an interlocutory injunction, the test to be applied is that established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR-MacDonald].
[62] That is, the applicants must establish:
1) That there is a serious issue to be tried in the underlying application for judicial review;
2) That irreparable harm will result if the injunction is not granted; and
3) That the balance of convenience favours the granting of the relief sought.
[63] Given that the test is conjunctive, the applicants have to satisfy all three elements before they will be entitled to relief.
Serious Issue
[64] In RJR-MacDonald, the Supreme Court of Canada observed that the threshold for establishing the existence of a serious issue is a low one.In this regard, the Supreme Court noted that:
Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. (at para. 50)
[65] The respondents contend that the nature of the relief sought by the applicants (namely an exemption from, or modification of the application of the Customs Act and the Immigration and Refugee Protection Act) would give the applicants more than they would be entitled to in a final decision on the merits of their application for judicial review.The respondents further submit that the applicants are seeking a temporary declaration of invalidity with respect to provisions of the Customs Act and the Immigration and Refugee Protection Act as they apply to the applicants.
[66] In such circumstances, the respondents say that the Court should take a hard look at the merits of the underlying application before finding that it raises a serious issue.As will be explained further on in these reasons, I find it unnecessary to resolve this question in this case.
[67] Although they acknowledged that they were not challenging the decision to arm Border Services Officers, the applicants made arguments with respect to the alleged failure of the CBSA to properly consult with respect to the implementation of the CBSA arming initiative at the port of entry on
[68] During their oral submissions, the applicants also made arguments with respect to the alleged illegality of the establishment of the temporary border facility on lands which the applicants say are the subject of land claims, and the failure of the respondents to consult with the applicants with respect to the use of these lands.In addition, the applicants made submissions regarding the alleged illegality of the seizure of motor vehicles by the CBSA commencing in mid-September of 2009.
[69] The applicants also take issue with the legality of CBSA Border Services Officers at the temporary border facility questioning members of the Akwesasne community who are travelling from
[70] It is not, in my view, necessary to consider whether any of these issues meet the relevant threshold for the establishment of a serious issue for the purposes of the tripartite injunctive test.Whether there are serious questions with respect to any of these matters, they are not “serious issues” for the purposes of the underlying application for judicial review.
[71] It bears repeating that the applicants’ application for judicial review was filed on June 26, 2009, with respect to the decision to close the
[72] Therefore, to the extent that the implementation of the arming initiative at the Cornwall Island Port of Entry is relevant to this proceeding, it is relevant as background information providing a factual context for the decision under review.
[73] Similarly, the opening of a temporary border facility in the City of
[74] Insofar as the seizure of motor vehicles by the CBSA commencing in September of 2009 is concerned, these seizures began three and a half months after the decision under review was made, and nearly three months after the application for judicial review was filed.Thus the seizure of motor vehicles is not relevant to the legality of the decision to close the port of entry on
[75] I would also note that there is an administrative remedy available to the affected individuals under the provisions of the Customs Act in the event that they want to challenge the seizure of their vehicles.
[76] Finally, while there may be some debate as to the authority of Border Services Officers to question individuals travelling from
[77] As was noted earlier, there is a disagreement between the parties as to whether the applicants simply have to meet the low “neither vexatious nor frivolous” threshold identified in the RJR-MacDonald decision, or whether the nature of the relief being sought on an interlocutory basis mandates that the Court take a hard look at the merits of the underlying application.
[78] Because the applicants have failed to satisfy either of the remaining two branches of the injunctive test, I do not need to resolve this question for the purposes of this motion.I also do not need to determine whether the arguments advanced by the applicants with respect to their rights under international law or their aboriginal or treaty rights to unimpeded travel throughout their traditional lands or their asserted right to live as a single community raise serious issues in light of the decision of the Supreme Court of Canada in Mitchell v. Canada (Minister of National Revenue - M.N.R.).
[79] Nor do I need to consider whether the applicants’ arguments with respect to the alleged failure of the respondents to consult with the applicants regarding the decision to close the
Irreparable Harm
[80] Injunctive relief should only be granted in cases where it can be demonstrated that irreparable harm will occur between the date of the hearing of the motion for interim relief and the date upon which the underlying application for judicial review is heard, if the injunction is not granted: Lake Petitcodiac Preservation Assn. Inc. v. Canada (Minister of the Environment) (1998), 149 F.T.R. 218, 81 A.C.W.S. (3d) 88 at para. 23.
[81] Irreparable harm is harm that cannot be quantified in monetary terms, or which cannot be cured by an award of damages: RJR-MacDonald at para. 59.
[82] The burden is on the party seeking the relief to adduce clear and non-speculative evidence that irreparable harm will follow if their motion is denied: see, for example, Aventis Pharma S.A. v. Novopharm Ltd., 2005 FC 815, 140 A.C.W.S. (3d) 163 at para.59, aff'd 2005 FCA 390, 44 C.P.R. (4th) 326.
[83] That is, it will not be enough for a party seeking injunctive relief to show that irreparable harm may arguably result if the relief is not granted. Moreover, allegations of harm that are merely hypothetical will not suffice. Rather, the burden is on the party seeking the stay to show that irreparable harm will result: see International Longshore and Warehouse
[84] Before turning to consider the specific allegations of irreparable harm advanced by the applicants in this case, it should be observed that some of the affidavits provided by the applicants in support of their allegations of irreparable harm were sworn in July of 2009, and deal with the situation as it stood prior to the opening of the temporary border facility in the City of Cornwall.As such, they are of limited assistance in evaluating the harm faced by the applicants in light of the current situation.
[85] A number of other affidavits provided by the applicants were sworn in late September, 2009, and provide an updated view of the situation as it stood to that point. It is, however, evident from the affidavits filed by the respondents and from the cross-examination of various witnesses for both sides that the situation faced by the Mohawks of Akwesasne remains somewhat fluid.That is, the situation has continued to evolve since late September, as specific difficulties created by the relocation of the port of entry are identified by the applicants and arrangements are made to address those concerns.
[86] This evolution in the facts is particularly important as it relates to the concerns identified in affidavits relied upon by the applicants with respect to the ability of emergency vehicles such as ambulances, police cars and fire trucks to respond to urgent calls on Cornwall Island in a timely manner.
[87] Indeed, Grand Chief Mitchell confirmed on his cross-examination that although the applicants had genuine concerns in the summer of 2009 with respect to the ability of emergency vehicles to respond to urgent calls in a timely fashion, the concerns that he had expressed in his September 30, 2009 affidavit have now been addressed.He further acknowledged that emergency vehicles are no longer required to report at the City of
[88] The evidence of Sakakohe Pembleton was to a similar effect. Ms. Pembleton is the Director of the Department of Health for the Mohawk Council of Akwesasne. Ms. Pembleton testified that arrangements have been made with the SIBC to clear bridge traffic so as to enable ambulances to get on and off
[89] Barry Montour is the Director of the Akwesasne Mohawk Board of Education. The AMBE operates a school on
[90] However, in cross-examination, Mr. Montour acknowledged that since the beginning of the school year in September, school buses have not in fact been reporting to the temporary border facility. Grand Chief Mitchell also acknowledged on cross-examination that the concerns with respect to school bus traffic have now been largely addressed.
[91] It is also evident from the cross-examination of Grand Chief Mitchell that as a result of concerns expressed by members of the Akwesasne community, similar accommodations have been made by the CBSA with respect to funeral processions.
[92] Grand Chief Mitchell attributes the fact that the CBSA was willing to negotiate a resolution to the concerns regarding emergency vehicles, school buses and funeral processions to the fact that the applicants had initiated these proceedings.Whatever the impetus may have been for the accommodations made by the CBSA in this regard, the fact is that at this point, the concerns of the Akwesasne community in this regard have now been largely addressed.
[93] The applicants are concerned that the accommodations provided by the CBSA are not “enshrined” anywhere, and could thus be changed or withdrawn at any time.However, there is nothing in the evidence before me to suggest that the CBSA has any intention of changing the arrangements that have already been put into effect in relation to emergency vehicles, school buses and funeral processions, and the applicants’ arguments in this regard are thus entirely speculative.Furthermore, if the situation should change, it will be open to the applicants to initiate such further legal proceedings as they deem appropriate.
[94] Mr. Montour and several other affiants also discuss their concerns with respect to the negative impact that the requirement to report at the City of
[95] The employees of these various organizations may reside in
[96] A number of the applicants’ witnesses have provided anecdotal evidence in their affidavits of having encountered delays of up to two hours at the temporary facility in the City of
[97] However, Grand Chief Mitchell acknowledged in cross-examination that the wait times at the temporary border facility have improved since September of 2009 when the last of the applicants’ affidavits were sworn.Moreover, the statistical evidence adduced by the respondents with respect to border wait times suggests that such lengthy delays are very much the exception.
[98] That is, the statistics kept by CBSA for the period between August 14, 2009 and October 4, 2009 indicate that 86% of the time there are no delays whatsoever at the port of entry, that 10% of the time, the wait was between 20 and 55 minutes, and that roughly 3% of the time, the wait exceeded 60 minutes. While there may well be some frailties with the CBSA’s record-keeping, I am nevertheless satisfied that the concerns with respect to border wait-times identified by a number of the applicants’ witnesses relate to exceptional situations.
[99] I am also satisfied that many of the difficulties with respect to the additional administrative burden imposed on employees by the duty to report at the temporary border facility can be addressed in the short term through administrative measures, such as altering hours of work so as to avoid peak traffic periods.
[100] Avoiding peak traffic hours would also serve to address the concerns expressed as to the reluctance of certain individuals to attend medical appointments or visit family members in different parts of the community so as to avoid long wait times.
[101] In light of the foregoing, the applicants have failed to satisfy me with clear and non-speculative evidence that irreparable harm will occur between now and the date upon which the underlying application for judicial review is determined, in the event that the injunction is not granted.
[102] The injunctive test is conjunctive.As a consequence, the finding that the applicants have not demonstrated that they will suffer irreparable harm is sufficient to dispose of the motion.That said, in the interests of completeness, I will also address the issue of balance of convenience.
Balance of Convenience
[103] In
[104] As was noted earlier, the applicants argue that the CBSA should be compelled to reopen the
[105] Alternatively, the applicants contend there should be a temporary suspension of the reporting requirement, or that the CBSA should be ordered to provide alternative reporting arrangements for members of the Akwesasne community that do not involve personal presentation at the temporary border facility in the City of Cornwall.
[106] In my view, the balance of convenience clearly favours the respondents in this case.
[107] I accept that the relocation of the port of entry from
[108] I will deal first with the request that the Court order the reopening of the
[109] It is also not disputed that in the period following the closure of the port of entry, the Chief of the Akwesasne Mohawk Police Service advised CBSA representatives on at least three separate occasions that it was not safe for CBSA employees to return to
[110] Moreover, as Grand Chief Mitchell has stated in his affidavit and again in cross-examination, the situation in Akwesasne “remains volatile and unpredictable”.
[111] As a consequence, I am of the view that it would be inappropriate to order the reopening of the port of entry on
[112] One of the applicants’ alternative requests is that the respondents be ordered to “suspend the application by Respondents to Applicants of the Customs Act, and other relevant federal legislation in respect to the travel by Applicants within or between the Akwesasne Reserves situated in
[113] In assessing the balance of convenience in a case where a party is seeking to restrain a public authority carrying out its statutory mandate, the Court must proceed on the assumption that the law – in this case the obligation on individuals to report at a CBSA facility when entering Canada imposed by subsection 11(1) of the Customs Act - “is directed to the public good and serves a valid public purpose”. Moreover, this “assumption of the public good in enforcing the law weighs heavily in the balance”: see Harper v.
[114] The balance of convenience does not favour suspending the application of the reporting requirement as it relates to the applicants.The applicants are seeking to restrict the CBSA’s ability to carry out its statutory responsibility to provide “integrated border services that support national security and public safety priorities” while facilitating the free flow of persons and goods.Such a result would be contrary to the public interest in light of the potential harm that could result to the security of
[115] Finally, the applicants seek an order that the respondents provide alternative reporting arrangements for members of the Akwesasne community visiting
[116] Subsection 11.1(1) of the Customs Act authorizes the Minister of Public Safety and Emergency Preparedness to issue to any person an authorization to present him or herself in an alternative manner.Paul Porrior, the CBSA’s Director of the Intelligence and Enforcement Division, Northern Ontario Region, states in his affidavit that telephone reporting is authorized in locations where there is no permanent customs office.
[117] While acknowledging that such discretion exists, the respondents say that it would be inappropriate to order such alternative measures for the applicants in this case. In this regard, the respondents point out that there are somewhere between 12,000 and 15,000 people in the Akwesasne community to whom the alternative reporting measures would apply.There would be no way for the CBSA to verify if cars travelling from
[118] Such a practice would also raise concerns with respect to the ability of the CBSA to monitor compliance with the alternative reporting requirement by members of the Akwesasne community.In this regard, it should be recalled that there was a very high level of non-compliance with the statutory reporting requirement by members of the Akwesasne community until such time as the CBSA began seizing vehicles in mid-September of this year.
[119] Moreover, while counsel for the applicants acknowledged in their submissions that the Mohawks of Akwesasne are obliged by law to report to the CBSA when entering Canada from the United States, they also observed that “the vast majority” of members of the Akwesasne community believe that they have no duty to report to the CBSA when they are travelling within Mohawk territory.This was confirmed by Chief James Ransom in his cross-examination.
[120] As Mr. Porrior observed in his affidavit, where alternatives to physical presentation are used, there must be an ability on the part of the CBSA to verify compliance. He further noted that the inability of CBSA officers to conduct random compliance examinations on
[121] I am therefore satisfied that imposing the alternative reporting measures requested by the applicants would not be appropriate in this case, as such an order would significantly impair the CBSA’s ability to carry out its statutory mandate insofar as it relates to its national security and public safety priorities.
[122] I would also note that the applicants are essentially asking this Court to direct the CBSA as to how it should manage and police
[123] Having regard to all of the circumstances, I find that the balance of convenience clearly favours the respondents in this case.
ORDER
THIS COURT ORDERS that the applicants’ motion is dismissed, with costs in the cause.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1039-09
STYLE OF CAUSE: GRAND CHIEF TIMOTHY THOMPSON, ET AL v.
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, ET AL
PLACE OF HEARING:
DATE OF HEARING: December 8, 9 & 10, 2009
APPEARANCES:
| James A. O’Reilly
Nathan Richards
Gary Carot
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| Jeff Anderson
Lynn Marchildon
Myriam Firard
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SOLICITORS OF RECORD:
| O’REILLY ET ASSOCIÉS
Barristers and Solicitors
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| John H. Sims, Q.C.
Deputy Attorney General of
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