A Mohawk man from Akwesasne has beaten charges he was facing from the Canadian Border Services Agency (CBSA) with a never-before-used defence.
“It’s harassmen – they have no right to do this to people around here,” said Kanawakeron Jody Swamp.
In 2017, Swamp, 53, was pulled over at customs in Cornwall Ont., just across the river from where he lives in Akwesasne.
Swamp was in possession of about $300 worth of firecrackers.
He was charged with three violations of the Customs Act, along with a single charge for transporting explosives, even though he was coming from the Ontario side of Akwesasne, Kawehno:ke island.
“As soon as I saw this case, and read the legislation, I thought this doesn’t make sense and something needs to be done,” said Swamp’s lawyer Keith Gordon.
What upset Gordon is that CBSA doesn’t appear to be following its own rules.
So the Mohawk Ojibway lawyer set out to prove it.
Gordon argued before an Ontario judge that in 2012, the CBSA told a senate committee travellers not suspected of coming from the U.S. “would be release [sic] right away.”
This was in reference to Cornwall’s unique position as the only Canadian port of entry that has both local and international traffic.
That’s because the Akwesasne Mohawk Territory falls on the borders of Quebec, Ontario and New York State.
This means travellers coming from New York must cross through Kawehno:ke (also known as Cornwall island) in Akwesasne, before reaching the Canadian port of entry in Cornwall.
Even Akwesasne residents coming from the New York side who live on the island must pass through customs in Cornwall before returning to the island.
Mohawks who live on Kawehno:ke must pass through customs whenever they want to go into Cornwall, which they consider their unceded territory and where they need to do shopping and other errands.
“Everybody on this island [Kawehno:ke] they must go through there at least twice a day, three times a day. People want to get groceries and stuff like that,” explained Swamp when asked what daily life is like on Akwesasne’s Ontario side.
Akwesasne Mohawks make up about 70 per cent of traffic at the Cornwall customs, and during rush hours the wait can add quite a bit of time to the commute.
Gordon says they are treated like criminals on their own unceded territory.
“I’ve been asking myself, ‘Why isn’t it being challenged? Why is it being continued? Why am I hearing people of this community talk about discrimination, arbitrariness, harassment?'” he asked.
Last week, an Ontario judge ruled because Swamp was travelling within Canada, he could not be searched without reasonable suspicion.
“A weight was lifted off my shoulders, you know, having them come down on me, for no reason, and having me going through the court system for so long, it was just a big relief,” said Swamp.
In an email to APTN News CBSA declined to be interviewed and said they are “reviewing the court decision and will assess next steps.”
They have 30 days to appeal the decision.
For now, Gordon and Swamp will savour a victory they hope will set a precedent.
“The argument is, Canada, follow your own laws,” concluded Gordon.