Court examines border agent powers at Cornwall Island in unique case

The people of Cornwall Island are the only Canadian citizens who must go through an international border when travelling from one continuous part of Canada to another

Court examines border agent powers at Cornwall Island in unique case
Cameron Fiske

A unique island in Ontario has raised legal questions about the powers of the Canada Border Services Agency at a mixed traffic corridor. 

The appeal decision, which is under reserve, focuses on travellers between Cornwall, Ont. and Cornwall Island, Ont. Because of the “peculiar” position of the Canadian Border in Cornwall, the people of Cornwall Island — who are predominantly Aboriginal — are the only Canadian citizens who must go through an international border when travelling from one continuous part of Canada to another part of the country, according to the factum for respondent Kanawakeron Jody Swamp. 

Cameron Fiske, a partner at Milosevic Fiske LLP in Toronto who argued the case last week for the respondent, says there is a tension to the case, which looks at s. 99.5 and 99 (1)(f) of the Customs Act. 

“We have people who are good people, who are solid Canadian citizens who live on Cornwall Island and have to come to Cornwall all the time,” says Fiske. “It’s akin to going from Etobicoke to Toronto — it’s not uncommon that you will go to the main city right by the island. Every time they go there, they go through an international border. The question is, are they to be treated the same as someone who is coming from the United States?” 

The CBSA searched and seized firecrackers from Swamp’s car when Swamp was stopped at a customs office and questioned about U.S. goods, even though Swamp was coming from Canada. Accused of an attempt to smuggle illegal firecrackers from the U.S. into Canada in the engine compartment of his truck, Swamp was detained, the parties’ factums said. 

“Does a Canadian driving from Gatineau, Quebec to Ottawa, Ontario on July 1st carrying fireworks . . . . need to present identification papers to an agent of the state and be at risk of search and seizure of his or her goods? Of course not. Nevertheless, according to the Crown’s position, it is only those Canadians travelling from Cornwall Island who are to be treated in that demonstrably inappropriate and indefensible manner,” Fiske’s factum said. 

The Ontario Court of Justice acquitted Swamp of violating the Customs Act, and found that s. 99 (1)(f) does not apply to travellers from Cornwall Island. However, the Crown’s factum said that the lower court’s decision “will hamper the CBSA’s ability to perform the crucially important function of preserving the integrity of Canada’s borders.”

The Crown’s factum argued that nothing in the wording of s. 99 (1)(f) limits border officers to searching international travellers. The factum also said that obligations to report imported goods under the Customs Act are not limited to international travellers. 

“The Supreme Court of Canada has long recognized the lowered expectation of privacy at the border,” the Crown’s factum said, noting that the firecrackers were explosive. “This Court has held that the reduced privacy rights in the mixed-traffic corridor for both domestic and international travellers are to be expected and are justified given the ease in which a domestic traveller — and contraband — could travel between the US and Canada without detection.” 

While Cornwall Island’s unique situation at the border — borne out of a long political history — isn’t likely to apply to many other Canadian ports, Fiske says that the case does have broad implications for Canada’s relationship with its indigenous peoples.

“If you picture any time you go through a border, there is a certain stress or nervousness — it’s not a particularly pleasant experience,” he says. “You are willing to do that to go to another country. But if you had to do that in your own country, maybe even multiple times a day?  . . . . That’s why we are arguing domestic travellers ought to be treated differently than international arrivals.”

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