R v Shenandoah

The Ontario Court of Justice issued a decision on October 2, 2015 in R v Shenandoah, dismissing a Notice of Constitutional Question that sought to challenge charges against two Mohawk individuals, Alicia Shenandoah and Elaine Thompson, for aiding and abetting others to enter Canada without first appearing before a Canada Border Services Officer. The applicants claimed an Aboriginal right to travel freely within Mohawk territory across the United States—Canadian border without having to report in person at the Cornwall Port of Entry, and further asserted that the section of the Immigration and Refugee Protection Act (IRPA) under which they were charged breaches sections 2(d), 7 and 15 of the Charter of Rights and Freedoms.


Section 18(1) of the Immigration and Refugee Protection Act (IRPA) states that every person wanting to enter Canada must appear for examination in order to be authorized for entrance or authorized to remain in Canada.

The Akwesasne reserve is a unique location between Canada and the United States. Cornwall Island is located in the middle of the St. Lawrence River and is within Canada’s boundaries. The Three Nations Bridge connects the city of Cornwall on the Ontario mainland with the north of Cornwall Island, and the International Bridge connects the southern tip of Cornwall Island with the mainland of the United States. The entirety of Cornwall Island is included in Ontario Reserve No 59, but Mohawk people (Kanien'kehá:ka) can be found in the provinces of Ontario and Quebec, as well as within the United States. Many Mohawk people within the United States cross the border into Canada to attend work, visit family, or attend cultural community events multiple times a day. About 70% of the traffic at the Cornwall Port of Entry is made up of Mohawks from Akwesasne.

Originally, there was a border crossing located on Cornwall Island. However, after the federal government passed a law in order to allow Border Services Officers to carry firearms many Mohawk people protested, forcing the border crossing to close in 2009. A temporary border crossing was reopened across the Three Nations Bridge, on the mainland of Ontario north of Cornwall Island. The new location now requires any Mohawk people travelling northward from the United States to drive through Cornwall Island and across Three Nations Bridge to the new border crossing. Mohawk people travelling to Cornwall Island would have to take this route and then retrace their journey back across Three Nations Bridge to Cornwall Island to reach their final destination.

Alicia Shenandoah and Elaine Thompson failed to check in immediately at the Port of Entry for examination. They were both charged with aiding and abetting individuals into Canada and subsequently had their vehicles impounded. Both individuals are Mohawk and filed an application for dismissal of the charges based on an asserted Aboriginal right to mobility under section 35(1) of the Constitution Act, 1982, arguing that they had a right to travel freely within Mohawk territory for family and community purposes without a requirement to report in person at the Cornwall Port of Entry. They also applied under sections 15, 7, and 2(d) of The Charter of Rights and Freedoms, arguing that the infringement of their rights was not saved by principles of fundamental justice. The individuals traveling with them were not of Mohawk descent.


Aboriginal mobility right

The Court noted that according to the test set out by the Supreme Court of Canada in the Van der Peet decision in order for an activity to be classified as an Aboriginal right the activity must be one that comprises an element, custom or tradition integral to the culture of the Aboriginal group in question, dating back to the pre-contact period. Griffiths J began by examining whether the Mohawks of Akwesasne had a traditional practice of mobility for family or community purposes dating back to the pre-contact era. Griffiths J relied on testimonial evidence from experts on pre-contact and post-contact Aboriginal life around the St. Lawrence River. Griffiths J found no archaeological evidence in support of the Mohawk having settled along the St. Lawrence River at the time of contact and noted that while the Mohawk may have hunted near Akwesasne, there was no convincing evidence of exclusive use of the land.

The applicants asserted their Aboriginal right claim in part on the notion that the Mohawks of Akwesasne absorbed rights from the Laurentian Iroquois of the region that they historically defeated, subsequently taking in various members as refugees or prisoners and now referring to this extinct group as among their ancestors. Griffiths J found “scant evidence” of the number of Laurentian Iroquois absorbed into the Mohawk people, however, and further noted evidence of members of this extinct group being absorbed into Huron communities north of the St. Lawrence River. Griffiths J did not find sufficient evidence to establish the Mohawk as heirs and beneficiaries of any legal rights flowing from the practices, customs and traditions of the Laurentian Iroquois and found that the Mohawk appeared to have only occasionally crossed the border in the pre-contact period in pursuit of acts of war with other competing tribes. The section 35(1) argument was accordingly dismissed.

Griffiths J also weighed in on the proper characterization of the right. Relying on the Supreme Court of Canada's decision in Mitchell v MNR, in which the Chief Justice stated that the right claimed should be characterized in its context and not distorted to fit a desired result, Griffiths J found that the applicants’ claim was framed too narrowly. Griffiths J reframed the claim as one pertaining to mobility within Akwesasne territory without the requirement of reporting at the Port of Entry. Even if the claim was properly framed, however, Griffiths J noted that the asserted right would have been limited to Akwesasne Mohawks only, rather than being universal or transferable to other individuals. Ms. Shenandoah had aided and abetted her cousin, a member of the Onondaga Nation, who would not have fallen under the protection of the right even if proven. Griffiths J also opined that the applicants’ characterization of the right as allowing travel for “community or family purposes” was too vague to constitute an Aboriginal right, and that even if such a right had been proven, it would not have provided a defence from the specific charges in this case.

Charter discussion

The Court’s discussion of whether section 18(1) of the IRPA was discriminatory under section 15(1) of the Charter largely focused on the Crown’s failure to provide an arrangement for the Mohawks of Akwesasne after the border office was moved from its original location on Cornwall Island. No issues arose with respect to failures to check in at the border until after the office had moved. Griffiths J found the history surrounding the moving of the office was key to his analysis, which involved tense and sustained protests against CBSA officers being armed while stationed on Cornwall Island in Mohawk territory. The Mohawk Council of Akwesasne had made it clear that it viewed the arming of CBSA officers on the island to be “non-negotiable” and an act of war against the Mohawk, whereas the CBSA saw leaving its Cornwall Island officers as the only unarmed officers in the country as an unacceptable risk. Griffiths J found no discrimination was occasioned through section 18(1), noting that the provision existed prior to the movement of the border office from Cornwall Island, and further finding that the disruption involved checking in at the new border office location was self-imposed by the Akwesasne community through their refusal to allow the arming of CBSA officers at the original port of entry.

In terms of the section 7 analysis, Griffiths J noted that for this section of the Charter to be breached it must be shown that state action had a severe effect on a person’s psychological integrity greater than ordinary stress or anxiety. While wait times were expected at the border office, the Court held that the process was minimally intrusive and did not create a response that was above normal severity. A person also expects a degree of intrusion by the state into their personal autonomy when they are crossing a border. The requirement to report in person was found to be in line with the principles of justice as a minimal intrusion into the freedoms of individuals. Griffiths J found that this was saved under section 1 of the Charter.

Finally, Griffiths J rejected the applicants’ argument that the requirement of in-person reporting at the border was having a chilling effect on travel to Cornwall Island that rose to the level of interference with the Mohawks of Akwesasne’s guarantee of freedom of association. This was argued on the basis that many members of Akwesasne testified that they were reluctant to travel to the island to visit family or friends or to attend cultural events because of the uncertain border wait times. It was argued that these wait times exceeded the level of a mere inconvenience to become an interference with the social fabric of the community. Griffiths J rejected this argument on the basis that while there were delays to the ability of Akewasasne’s members to meet with friends and family and attend cultural organizations on the island, there was no prohibition against such meetings and none of the delays reached the point where they might be seen as interfering with the constitutionally protected right of freedom of association.

The application was dismissed in its entirety.

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