Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Treat Border Guards With Extreme Respect - Your Freedom Is In Their Hands

When travelling to the Canada-United States Border (or any border crossing for that matter), remember to be humble, remember to be respectful, remember that the border officers have great power. Have you been in the military? --- remember to respond respectfully "Yes Sir", "No Mam". Do you remember spending time with your Grandmother? --- "What can I do to be helpful?". Do you have a demanding boss? --- "Let me answer that question for you as best I can".

The truth is that border officers have a lot of power and can send you straight to jail. A small disagreement can turn into criminal charges and that will cost you a lot of money and possibly your freedom.

Just ask Peter Watts. He is a well known and respected Canadian writer. He found himself in a disagreement at a U.S. border crossing and on March 19, 2010 was convicted of assault, obstruction and resisting an officer. The facts seem unclear --- except that he and a border officer had a disagreement and the border officer overreacted. There were no illegal goods in Mr. Watt's car and there was no border problem other than the disagreement.

Mr. Watt's was arrested at the disagreement and he ensured the humiliation, stress and cost of a jury trial. In the final analysis, we has convicted and is yet to be sentenced --- possibly up to two years in jail.

He wrote about the trial on his blog (which provides some minimal insight into his experience) - go to the following link - http://www.rifters.com/crawl/?p=1186. Mr. Watts writes in part:

The press has frequently characterized the charge against me as “assaulting a federal officer". The alleged (and discredited) “choking��� episode has been repeated ad nauseum. Here at the Sarnia Best Western I don’t have the actual statute in front of me but it includes a lengthy grab-bag of actions, things like “assault", “resist", “impede", “threaten", “obstruct" — hell, “contradict" might be in there for all I know. And under “obstruct" is “failure to comply with a lawful order", and it's explicitly stated that violence on the part of the perp is not necessary for a conviction. Basically, everything from asking “Why?” right up to chain-saw attack falls under the same charge. And it’s all a felony.

What constitutes “failure to comply with a lawful command" is open to interpretation. The Prosecution cited several moments within the melee which she claimed constituted “resisting", but by her own admission I wasn't charged with any of those things. I was charged only with resisting Beaudry, the guard I’d “choked". My passenger of that day put the lie to that claim in short order, and the Prosecution wasn't able to shake that. The Defense pointed out that I wasn't charged with anything regarding anyone else, and the Prosecution had to concede that too. So what it came down to, ultimately, was those moments after I was repeatedly struck in the face by Beaudry (an event not in dispute, incidentally). After Beaudry had finished whaling on me in the car, and stepped outside, and ordered me out of the vehicle; after I’d complied with that, and was standing motionless beside the car, and Beaudry told me to get on the ground — I just stood there, saying “What is the problem?”, just before Beaudry maced me.

And that, said the Prosecutor in her final remarks — that, right there, was failure to comply. That was enough to convict.

I do not know what the jury said amongst themselves. But a question they sent out to the court yesterday afternoon — “Is failure to comply sufficient for conviction?” — strongly suggests that this was the lynchpin event. (Certainly Defense had demolished every other, and the Prosecution had conceded as much.) If that is the case, I cannot begrudge the jury their verdict. Their job is not to rewrite laws, or ignore stupid ones; their job is to decide whether a given act violates the law as written. And when you strip away all the other bullshit — the verbal jousting, the conflicting testimony, the inconsistent reports — the law doesn't proscribe noncompliance “unless you're dazed and confused from being hit in the face". It simply proscribes noncompliance, period. And we all agree that in those few seconds between Beaudry's command and the unleashing of his pepper spray, I just stood there asking what the problem was.

Whether that’s actual noncompliance or simply slow compliance is, I suspect, what the jury had to decide. That’s what they did, and while I think they made the wrong decision I'm obviously not the most impartial attendee at this party. I still maintain I did nothing wrong; but as far as I can tell the trial was fair, and I will abide by its outcome.

What strikes me the most is how the disagreement could have been avoided if Mr. Watts had appreciated the power of the border officer and just taken a more obsequious approach. I am not criticising Mr. Watts as I have friends and family members who could have been in Mr. Watt's shoes. What I say to friends and family members is to let the border officers do their job and to help them do your job. If the individual crossing the border does not have anything to hide, they should just open their kimono (car doors, truck, hood, bags, etc.). Report all acquisitions outside the jurisdiction truthfully. Answer all questions truthfully and respectfully. If you do not understand a question say "I am sorry sir, I want to answer your question, but I do not understand your question, would you help me give you a responsive answer by clarifying your question for me?"

This reminds me of my own disagreement at the border a few years ago. I was asked 'Where do you work". I said "Toronto". I was then asked "Where do you work". I responded again 'Toronto". I was asked again, "Where do you work". I responded "downtown Toronto". The officer then shouted at me, 'Are you an idiot, where do you work? You are not answering my question." At this time I tried a different approach, "I answered 'I am a lawyer with Lang Michener". The officer asked 'Was that so hard?" I answered "No sir". I then was passed through U.S. Customs and was allowed to board my plane.  Phew, I could have landed in  jail if I had not figured out the real question was "Who is your employer?"

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