Date: 20091221
Docket: T-1039-09
Citation: 2009 FC 1296
Ottawa, Ontario, December 21,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
GRAND CHIEF TIMOTHY THOMPSON,
THE MOHAWK COUNCIL OF AKWESASNE AND
THE MOHAWKS OF AKWESASNE
Applicants
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS,
THE PRESIDENT OF THE CANADA BORDER
SERVICES AGENCY AND
THE MINISTER OF TRANSPORT,
INFRASTRUCTURE
AND COMMUNITIES
Respondent
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 Cornwall Island, the CBSA advised the
Mohawks of Akwesasne that Border Services Officers at that port of entry would
begin carrying firearms on June 1, 2009.
[2]
This
decision resulted in a number of demonstrations taking place on Cornwall Island in the days
leading up to the implementation date. On the night of May 31, 2009, a large
crowd gathered near the border facility. The CBSA says that as a result of
concerns for the safety of its employees, the decision was made to evacuate
CBSA personnel and close the customs office on Cornwall Island. The CBSA facility on Cornwall Island remains closed to this
day, although a temporary customs facility has since been opened in the City of
Cornwall.
[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 Cornwall Island customs office.
[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 Canada as a “Band” and its members are recognized as
“Indians” as those terms are used in the Indian Act, R.S.C. 1985, c.
I-5. Moreover, the Mohawks of Akwesasne are also considered an “aboriginal
people” within the meaning of s.35 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[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 Canada, and to amend, cancel
or reinstate such designation at any time.
[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, Cornwall Island and New York State. Part of the stated
mission of the SIBC is to ensure the safe, efficient and secure flow of
commercial and passenger vehicles through the crossing.
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 Cornwall is on the north shore of the St. Lawrence River. Cornwall Island sits in the St.
Lawrence River to the south of the City of Cornwall. Both are in Canada. The southern shore of
the St. Lawrence River directly south of Cornwall Island is in the State of New
York near the town of Rooseveltown. The three areas are
connected by two bridges and a highway corridor across Cornwall Island.
[16]
As
its name suggests, the “International Bridge” crosses the Canada – U.S. border, and connects
the south shore of the St. Lawrence River to Cornwall Island. At its northern end, the International Bridge feeds into the
highway corridor that traverses Cornwall Island. Until May 31, 2009, the Cornwall Island port of entry
was located on this corridor.
[17]
The
“Three Nations Bridge” then connects Cornwall
Island to the northern shore
of the St. Lawrence River. Since July 13, 2009, a temporary border facility
has been located at the northern base of the Three Nations Bridge.
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 United States. The Mohawks of
Akwesasne have reserves set aside for them in the Provinces of Ontario and
Québec. The reserve lands in Ontario are referred to as Akwesasne Reserve No. 59, and include Cornwall Island (or
“Kawehnoke”). The reserve lands in Québec are known as Akwesasne Reserve No.
15, and are composed of two districts – “Tsi-Snaihne”, which is also known as
“the Chenail”, and St. Regis Village (or “Kanatakon”). There are approximately
10,800 persons living on the two Akwesasne Reserves in Canada.
[19]
The
Akwesasne Reservation is in New York State, on the south shore of the St. Lawrence River. It is directly below Cornwall Island, and adjoins the
mainland portion of Akwesasne Reserve No. 15 to the east and north. Grand
Chief Mitchell states in his affidavit that his information is that there are
some 4,000 persons living on the Akwesasne Reservation, although he
acknowledges that some of these people may also be included in the population
figures for the Mohawks of Akwesasne.
Background
[20]
The Cornwall Island border facility
is the 11th busiest land border port in Canada in terms of the number
of people processed annually. The CBSA has also identified this land border
port as one with a high risk for illegal activities such as smuggling.
[21]
Whether
they reside in Ontario, Québec or New York, the Mohawks of
Akwesasne consider themselves to be members of a single community. There is a
great deal of movement between the various districts that make up the community
of Akwesasne. Individuals may live in one part of the community, work in
another part, and have family members residing in the third.
[22]
One
cannot travel by car from the Akwesasne Reserve No. 15 in Québec to Cornwall Island without passing through
the United
States.
Movement between the Akwesasne Reservation in New York State and Cornwall Island requires the
crossing of an international boundary. As a consequence, there is a great deal
of regular cross-border traffic by members of the Akwesasne community, with the
result that the Mohawks of Akwesasne are heavy users of the bridges. Indeed,
it has been estimated that members of the Akwesasne community account for as
much as 70% of the bridge traffic.
[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 Cornwall Island to create the highway
corridor and CBSA border facility has been in issue for years, and is the
subject of ongoing proceedings in this Court (Court file number T-2210-76).
[25]
Most
recently, there have been allegations of racial profiling and other forms of
discrimination by CBSA officers working out of the Cornwall Island customs
facility, which have resulted in numerous complaints being filed with the
Canadian Human Rights Commission. There has also been opposition within the
Akwesasne community to the proposed expansion of the CBSA facility on Cornwall Island.
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 Canada and immediately notify
the appropriate police force.
[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
Cornwall Island with firearms.
[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 Cornwall
Island. The Mohawks of
Akwesasne strenuously opposed the arming of Border Services Officers, which
they viewed as encroaching on the issue of Mohawk self-government. They also
wanted a number of other issues resolved prior to Borders Services Officers
carrying arms on Cornwall Island.
[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 St. Regis Village that the CBSA intended to begin deploying armed
Border Services Officers at the Cornwall Island port of entry on June 1, 2009.
The Protests
at the Cornwall Island Port of Entry
[32]
After
being advised that the arming initiative would be implemented at the Cornwall Island border facility on June
1, 2009, Grand Chief Thompson advised the CBSA that the MCA would be engaging
in peaceful protests commencing on May 1, 2009. There were discussions between
the parties as to when and where these protests would take place, so as to
minimize the disruption to border services operations.
[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 Cornwall Island. R.N. had
previously been identified as someone who was potentially inadmissible to Canada. R.N. was accompanied
by 14 other individuals, some of whom self-identified as “warriors”. One
individual in the group advised the CBSA staff that the group was there to
ensure the safe passage of R.N. into Canada, as they did not recognize the Canada – U.S. border, or the
authority of the CBSA or the Government of Canada to deny R.N.’s entry into
this country.
[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 Canada. Surrounded by the
group, R.N. and T.H. were able to leave the CBSA facility and enter Canada.
[35]
While
there appears to be some question as to whether R.N. was attempting to enter Canada or was already in
Canada, I do not understand there to be any dispute about the fact that T.H.
was indeed trying to enter Canada from the U.S.
[36]
Lance
Markell was the District Director at the Cornwall Island port of entry at the time in question.
He states in his affidavit that he elected not to take any action with respect
to the entry of R.N. and T.H. into Canada so as not to escalate an already tense
situation.
[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 Oklahoma. The four men then walked out of the CBSA
facility surrounded by protesters and entered Canada.
[39]
The
four individuals were being questioned by CBSA because of concerns with respect
to their potential inadmissibility to Canada for reasons of serious criminality. Once
again, Mr. Markell states that he elected not to take any immediate action with
respect to the entry of these individuals into Canada so as not to further inflame the
situation. He did, however, request the assistance of CBSA Intelligence and
Inland Enforcement officials to locate these four individuals in Canada for fear that their
presence in this country could negatively impact the health and safety of the
local community.
[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 Cornwall
Island on the evening of May
31, 2009, I do not, however, understand there to be any dispute about the fact
that several hundred protesters gathered at the facility. Some of the
protesters were wearing combat fatigues, and some wore balaclavas or bandanas
obscuring their faces. A large backhoe was also brought to the site.
[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 Jerry Swamp, the Chief of the Akwesasne Mohawk Police
Service. It is uncontroverted that Police Chief Swamp told Mr. Markell that he was worried
that his officers might not be able to control the crowds, and that it may be
in the CBSA’s best interests if CBSA staff left Cornwall Island.
[46]
Approximately
40 minutes later, Mr. Markell was advised that SIBC employees working at the
toll booths at the north end of Cornwall Island were being evacuated out of fear for
their safety.
[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 Police Chief Swamp, who advised him that there was a large
crowd gathering at the CBSA facility on Cornwall Island, and that he could not guarantee the safety of
the Border Services Officers. The applicants do not dispute the fact that Police Chief Swamp suggested to Mr.
Comerford that CBSA employees should leave the facility.
[48]
Mr.
Comerford then instructed Mr. Markell to evacuate CBSA personnel from the Cornwall Island facility and the port
of entry was closed.
[49]
The
next morning, Mr. Comerford spoke to Grand Chief Thompson and Police Chief Swamp, both of whom expressed
concerns for the safety of CBSA officers if they were to return to Cornwall Island carrying
firearms. Over the ensuing days, the Akwesasne Mohawk Police Service continued
to advise Mr. Comerford that it was not safe for CBSA employees to return to Cornwall Island, even if the purpose of
the visit was simply to pick up equipment left behind.
The Period
Between June 1, 2009 and the Opening of the Temporary Facility
[50]
The
closure of the Cornwall Island customs facility led to
the immediate closure of both the International and Three Nations Bridges. The blockading of the
Three Nations Bridge by officers of
the Cornwall Community Police Service meant that Mohawks could leave Cornwall Island, but could not return.
[51]
Similarly,
the blockading of the International Bridge by New York State Police and U.S. Customs and
Border Protection Officers meant that Mohawks could leave Cornwall Island for the United States, but could not return.
According to the applicants, these measures compelled the Mohawk Council of
Akwesasne to arrange emergency transport by boat with the assistance of
individual members of the Akwesasne community.
[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 Cornwall Island on May 31, 2009.
[53]
A
temporary CBSA facility and port of entry opened at the northern base of the Three Nations Bridge in the City of Cornwall on July 13, 2009. When
the temporary facility was opened, two-way traffic on the International and Three Nations Bridges was also restored.
[54]
Since
July 13, 2009, all travelers from the United States to Cornwall Island are required to
report their entry into Canada at the temporary
customs facility in the City of Cornwall. This means that members of the Akwesasne
community travelling from New York State to Cornwall Island have to drive just over three kilometres
further to the City of Cornwall to report, before doubling-back to Cornwall Island. In addition to the
extra distance that they have to travel, members of the community have also
experienced significant delays at the temporary customs facility.
[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 Canada present themselves at a
customs office. However, an evaluation process implemented by the CBSA to
measure the rate of traveler compliance with the reporting obligations revealed
that an average of 42% of vehicles heading north on the International Bridge
from New York State failed to report to the temporary border facility in the
City of Cornwall during the period between July 13 and August 31, 2009.
[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 Canada in contravention of the
reporting requirements of the Customs Act. Since then, the compliance
rate has increased dramatically.
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 Canada and the United States and particularly to Cornwall Island, part of Indian Reserve No. 59;
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 Cornwall
Island border facility with
unarmed Border Services Officers pending the determination of the applicants’
application for judicial review.
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 Cornwall Island.
[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 Cornwall Island to the mainland
in Canada. In this regard, the
applicants say that the CBSA has no authority to question persons travelling
from one location in Canada to another location in Canada.
[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 Cornwall Island port of entry on
the evening of May 31, 2009. The applicants have not brought an application
for judicial review with respect to either the CBSA’s 2006 decision to begin
arming border guards, or the decision communicated to Grand Chief Thompson on
March 6, 2009 to implement the arming initiative at the Cornwall Island port of entry on June
1, 2009.
[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 Cornwall took place a month and
a half after May 31, 2009, and more than two weeks after the applicants
commenced their application for judicial review. While the consequences of the
relocation of the port of entry for members of the Akwesasne community are
relevant to the issue of irreparable harm and balance of convenience on this
motion, they are not relevant to the legality of the May 31, 2009 decision in
issue in the underlying application.
[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 Cornwall Island on May 31, 2009.
[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 Cornwall Island to the mainland in Canada, it is not a serious
issue in this case, having regard to the nature of the underlying application
for judicial review. Indeed, I am advised that this question is currently
before the Ontario courts.
[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 Cornwall
Island port of entry meet the
appropriate threshold for the establishment of a serious issue for the purposes
of the injunctive test. The same is true with respect to the arguments advanced
by the applicants under sections 6, 8, 15 and 26 of the Canadian Charter of
Rights and Freedoms.
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 Union, Canada v. Canada (Attorney General), 2008 FCA 3, 168 A.C.W.S.
(3d) 315 at paras. 22-25.
[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 Cornwall port of
entry prior to responding to emergency calls.
[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 Cornwall Island
quickly.
[89]
Barry Montour is the Director of the Akwesasne Mohawk Board of
Education. The AMBE operates a school on Cornwall Island, one in Tsi-Snaihne and another in St. Regis Village. Students are
transported by bus from various regions within the Mohawk community to attend
these schools. Mr. Montour’s affidavit discusses his concerns with respect to
the harmful effects that requiring school buses to report at the port of entry
in the City of Cornwall will have for Mohawk
students. In particular, Mr. Montour asserts that the inordinate delays at the
border crossing will unduly lengthen the children’s school day and will
negatively affect their academic and emotional well-being.
[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 Cornwall port of entry is having
on employees of various organizations delivering educational, medical and
social services to the members of the Akwesasne community.
[95]
The
employees of these various organizations may reside in Québec, Ontario or New York, and deliver services
in all three parts of Akwesasne. Briefly stated, the concern is that the
lengthy wait times at the temporary border facility are taking up valuable
staff time that could otherwise be devoted to the delivery of services to the
most vulnerable members of the Mohawk community. It is therefore necessary to examine
the evidence with respect to border wait times at the temporary border
facility.
[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 Cornwall.
[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 Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, the Supreme Court stated
that this third branch of the injunctive test requires the determination of
which of the two sides will suffer the greater harm from the granting or
refusal of an interlocutory injunction, pending a decision on the merits: see
para. 35.
[104] As was noted earlier,
the applicants argue that the CBSA should be compelled to reopen the Cornwall Island border facility, and
that the facility should be staffed by unarmed Border Services Officers pending
the determination of the applicants’ application for judicial review.
[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 Cornwall Island to the City of Cornwall has significantly
disrupted the lives of many members of the Akwesasne community. However, as
was explained earlier in these reasons, I am not persuaded that the
inconvenience resulting from the relocation of the port of entry will result in
irreparable harm to members of that community between now and the time that the
underlying application for judicial review is decided. I am also satisfied
that the harm that would result from granting the forms of interlocutory relief
sought by the applicants greatly outweighs the inconvenience that these
individuals will experience in the relevant period.
[108] I will deal first with
the request that the Court order the reopening of the Cornwall Island border facility
with unarmed Border Services Officers. I do not need to resolve the
differences in the evidence as it relates to the nature of the protests that
took place on Cornwall
Island in late May of 2009 for
the purposes of this motion. It is uncontroverted that on May 31, 2009, the
Chief of the Akwesasne Mohawk Police Service told representatives of the CBSA
that he was concerned that his officers would not be able to control the crowds
that had gathered at the CBSA facility, and that it would be in the CBSA’s best
interests if the CBSA staff left Cornwall Island.
[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 Cornwall Island, even for the limited
purpose of picking up equipment left behind.
[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 Cornwall Island in circumstances
where the physical safety of Border Services Officers remains in doubt.
[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 Canada and the United States and particularly to Cornwall Island, part of Indian Reserve
No. 59”.
[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. Canada (Attorney General), 2000 SCC 57, [2000] 2
S.C.R. 764 at para. 9.
[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 Canada should such an interlocutory remedy be
granted. As a consequence, the balance of convenience clearly favours the
respondents in this regard.
[115] Finally, the applicants
seek an order that the respondents provide alternative reporting arrangements
for members of the Akwesasne community visiting Cornwall Island for the purposes of carrying on
their way of life.
[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 New
York State
to Cornwall
Island do, in fact, contain
members of the Akwesasne community, or others. Nor would the CBSA be able to
ascertain the purpose of these individuals’ travel to Cornwall Island.
[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 Cornwall
Island in a safe and secure
environment means that alternative reporting is simply not a viable option. I
agree.
[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 Canada’s border services operations in the Cornwall area. This is not the
function of this Court on a motion such as this: see North of Smokey
Fishermen’s Assn. v. Canada (Attorney General) 2003 FCT 33, 229 F.T.R. 1 at para.
27.
[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.
“Anne
Mactavish”
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