A proposed class-action lawsuit alleges Mohawk residents of an Ontario island face “systemic discrimination” as they are forced to go through a border crossing to access the rest of Canada.
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 inflicted on members of the Akwesasne reserve living on Cornwall Island.
The island is located in the St. Lawrence River, on Canadian territory, with bridges linking it to the U.S. and Cornwall, Ont. The Akwesasne reserve, meanwhile, stretches over parts of Ontario, Quebec and New York State.
A statement of claim says everyone going to the Canadian mainland from Cornwall Island must go through a port of entry, a unique arrangement it says is both “inconvenient and disruptive” for residents travelling domestically.
The document 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 situation has become intolerable for the people of Akwesasne,” said Cameron Fiske of Milosevic Fiske LLP, one of the firms involved in the suit.
“Nowhere else in Canada are people treated like this. Nowhere else in Canada do Canadians have to go through an international border when they are going from one part of Canada to another part of Canada.”
The allegations have not been proven in court and the government has not yet filed a statement of defence.
“Cornwall Island has a unique and complex set of challenges related to border management,” said Border Services Agency spokeswoman Jacqueline Callin.
“To address these, the (agency) and the Mohawk Council of Akwesasne are working in a Nation-to-Nation approach.”
Callin said a process to bring the two sides together began in April.
Fiske said Cornwall Island residents have to go through a border crossing to attend schools, doctors’ appointments or to eat in restaurants.
“Each time there is the uncertainty of not knowing what will happen at the border and the possibility of being sent to secondary inspection,” he said.
The lawsuit is seeking $100-million in damages and another $50-million in punitive damages, as well as a declaration that the defendants have violated the charter rights of the proposed class members.
The proposed class would include Indigenous people living on Cornwall Island who have been subject to inspections, detentions, searches or seizures by border guards at the port of entry since 2012.
The suit’s proposed representative plaintiff is Kanawakeron Jody Swamp, a member of the Mohawk Nation who lives on the island.
The statement of claim says Swamp was charged in 2017 with multiple offences under the Customs Act after border guards at the crossing found firecrackers in his car during a secondary inspection.
Swamp was cleared this spring after a judge found that because he was travelling within Canada, border guards needed reasonable grounds to search, question or detain him. The Crown is challenging the ruling.