Federal Court

Customs and Excise

Conveyances at issue are not exempt from seizure

Plaintiffs consisted of 115 individual members of Mohawks of Akwesasne and their elected community government, Mohawk Council of Akwesasne (“MCA”). Mohawks of Akwesasne are recognized as “Indians” under Indian Act (Can.) (“IA”), and group as “aboriginal people” within meaning of s. 35 of Constitution Act, 1982. They have reserve territory that spans across Provinces of Ontario and Quebec (Reserve Nos. 59 and 15, respectively), and into State of New York. Cornwall Island is entirely within Reserve No. 59 in Ontario. Only practical way to cross by land between Reserve Nos. 15 and 59 is by crossing International Bridge into United States. Akwesasne community comprise up to 70% of border traffic at Cornwall Point of Entry (“POE”). Cornwall POE is eleventh busiest land border crossing in Canada in terms of number of people processed annually. It has also been identified by Canada Border Services Agency (“CBSA”) as port with high risk for illegal activities, such as smuggling. On September 18, 2009, CBSA began active enforcement of reporting requirement. This enforcement involved seizing vehicles that had allegedly been used to transport persons into Canada, who then failed to report to POE. Each plaintiff was lawful owner of vehicle seized by CBSA. At all material times, each plaintiff was ordinarily resident of Canadian Reserves. Between September 18, 2009, and April 30, 2010, vehicle owned by each of 115 individual plaintiffs was seized for failing to report to POE, as required by Customs Act (Can.) (“CA”). CBSA subsequently released vehicle when driver or, more frequently, MCA, paid specified amount for its release. In most cases, this amount was set at $1,000. Plaintiffs brought proceedings pertaining to seizure of their vehicles. Joint motion was brought for preliminary determination of question of law: does seizure of vehicles by CBSA at POE at Cornwall constitute unreasonable interference with plaintiffs’ privacy interest; are plaintiff’s vehicle protected from seizure by s. 89 of IA; and does CBSA official who made final determination regarding plaintiff’s appeals (i.e. of finding that vehicle was used in contravention of CA and confirmation of forfeiture of assessed amount held in exchange for release of vehicle) have properly delegated authority to make such a decision?. Seizure of vehicles by CBSA at POE at Cornwall does not engage right to be secure against unreasonable search or seizure under s. 8 of Canadian Charter of Rights and Freedoms, and cannot, therefore, constitute violation thereof. As CA provisions at issue constitute civil proceedings, this case does not meet even basic threshold to engage s. 8 of Charter. Seizures effected under CA are beyond scope of protections in s. 89 of IA, and conveyances at issue are not exempt from seizure. CBSA’s use of civil remedies provided for in CA to enforce border legislation does not fit within scope of s. 89. Such action is distinct from other mechanisms listed in s. 89 of IA, including mortgages, levies and execution of civil judgments. CBSA official who made final determination regarding plaintiffs had properly delegated authority to make such a decision.

Mohawk Council of Akwesasne v. Canada

(Minister of Public Safety and Emergency Preparedness) (Dec. 6, 2012, F.C., D.G. Near J., File No. T-859-12) 226 A.C.W.S. (3d) 416.

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