CORNWALL/AKWESASNE – Two women, charged with failing to properly report to the Canada Border Services Agency, have been given a conditional discharge.
A Cornwall court made the ruling Friday and gave both women six months probation.
In a conditional discharge, an individual is found guilty of an offence but a conviction is not registered with the court. The case is purged from the person’s police record after three years.
Court documents did not state the reason for the dismissal.
Alicia Shenandoah of Hogansburg, N.Y. and Elaine Thompson of Akwesasne had been facing charges under the Customs Act and the Immigration and Refugee Protection Act.
In an interview with Cornwall Newswatch, their lawyer, Gordon Scott Campbell, said he’s still studying the decision and consulting with his clients about their next steps.
Campbell believes the verdict sends some sort of message but it isn’t precedent-setting.
“It’s fair to say it was a test case but, given that it’s at the level of the Ontario Court of Justice, it’s not a binding precedent because it’s a lower level of court. There is also ongoing litigation at the federal court…that’s civilly pursuing these matters as well,” Campbell said.
The federal civil case involved a number of people whose vehicles were seized at the border by the Canada Border Services Agency in 2009 and 2010. The higher court’s latest ruling in May 2015 on appeal, sided with the plaintiffs that a Supreme Court of Canada decision in 2001 over questions of trans-border trade did not directly, or separately for that matter, deal with issues of trans-border travel.
The Mohawk Council of Akwesasne had considered this provincial case “a criminal test case” on whether residents should have to report to the border when travelling between the Quebec and Ontario portions of the reserve. That travel requires one to go through New York State.
The Ontario Court of Justice case against the two women stemmed from both families dropping off members of their family on the reserve before coming to Cornwall to report to the CBSA.
Mohawk Council of Akwesasne Grand Chief Abram Benedict told Cornwall Newswatch they are still reviewing Friday’s decision. He said the ruling is “relieving” but there is some disappointment with part of the decision.
“We’re disappointed in the constitutional questions that were put forward to the court with respect to aboriginal rights. I don’t think the court, based on the testimony, specifically around the rights of mobility, the court didn’t find that there was sufficient evidence through the hearing that rights existed at a certain time, I believe it was 1600,” the grand chief said.
“We are still looking through the decision and determining next steps,” Benedict added.
According to court documents, the only terms of Shenandoah and Thompson’s six month probation, which started Friday, is to keep the peace, report to the court if requested and to notify the court of any change of name or address.
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