Saturday, October 18, 2014

Canada (Attorney General) v. Tam, 2014 FCA 220 how the Federal Court of Appeal missed the boat on a text-book case of racial profiling

Canada (Attorney General) v. Tam, 2014 FCA 220 how the Federal Court of Appeal missed the boat on a text-book case of racial profiling and Stereotyping in law enforcement investigative and decision-making processes

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on October 18, 2014

Setting the scene – My own experience of racial profiling at Canada’s Port of Entry

On the long Victoria Day weekend, between May 21 and May 24, 1999, I took a trip From Fort Erie, Canada to New York by way of a Amtrak Train to Grand Central Station in New York City.  The idea was to rest, sight-seeing and catch-up with family members in New York City.

On my return to Canada, I was the only Black male in a car with approximately 90 passengers. I presented my Customs Declaration Card (E311 ) and answered questions from the Customs Officer about the purpose of my trip out of Canada. I also had produced both my Canadian Citizenship Card and my Immigration and Refugee Board identification card identifying me as a middle level bureaucrat (Refugee Claim Officer [PM-04]) with the Federal Civil Service.

The Customs Officer, however, determined that he was searching my luggage. No reasons were given for the search. The search was conducted in a manner that humiliated me. I then requested to speak to a supervisor who made things worse by addressing me as "Billy Jack" in the face of my demands for answers for the search.

I filed a complaint with the Canadian Human Rights Commission (CHRC), against the Department of National Revenue (now the Canadian Customs and Revenue Agency (CCRA) wherein I alleged that I was subject to differential treatment while crossing the Canada - U.S. border at Fort Erie on May 24, 1999. In particular, the substance of my complaint was I was singled out by a Customs Officer for a search of my luggage because of my race.[1]

Student Customs Officer, Ryan Timmins stated that he proceeded with a routine inspection of my baggage for the purpose of verifying my declaration and to confirm that I did not have any contraband or improperly reported goods. Mr. Timmins listed the indicia that triggered the search as follows:
I conducted examination of Mr. Pieters' luggage under the authority of 99 (1) (a), (b), and (c) of the Customs Act, which do not mention reasonable grounds. However, I would like to elaborate on, what I am convinced is reasonable grounds for an examination of Mr. Pieters.
·         he was alone
·         had been away for only three days
·         was traveling from a drug source city
·         he was exhibiting behaviour which indicated he did not want his baggage to be examined
·         finally, he appeared abnormally agitated during primary examination

All of the indicia above can be explained away and in their totality does not give rise to reasonable suspicion of criminality.

The CHRC investigated the complaint and determined the matter warranted a public hearing before the Canadian Human Rights Tribunal.[2] This was the first complaint alleging racial profiling[3] by a law enforcement agency to get sent on by the CHRC for a public hearing before the CHRT.[4] In this case, having regards, to the factors listed by Customs for the search and the failure of the Officer conducting the search to provide reasons at the material time, CBSA has in effect failed to provide a credible, non-discriminatory, reason for searching my luggage and/or suspecting that I fit the profile of a drug courier.

On January 30, 2002, on the eve of the commencement of a hearing into the matter, I settled the human rights complaint with Canada Border Services Agency, that amongst other remedies mandated the collection of demographic data on passengers referred to secondary inspection at Canada's Ports of Entry. This was one of the first human rights cases against a law enforcement agency that mandated such a process in Canada.[5]

How is the Tam case instructive for lawyers on discrimination and racial profiling?

Racial profiling can be defined as:

                Criminal profiling based on race. Racial or colour profiling refers to that phenomenon  whereby certain criminal activity is attributed to an identified group in society on the  basis of race or colour resulting in the targeting of individual members of that group. In   this context, race is illegitimately used as a proxy for the criminality or general criminal     propensity of an entire racial group.[6]

In Moorev. British Columbia 2012 SCC 61, the Supreme Court of Canada held that:
[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

In Canada(Attorney General) v. Tam, 2014 FCA 220 the Federal Court of Appeal conducted no meaningful examination of the test to be applied in cases of discrimination and racial profiling nor did it applied the test to the facts of Ms. Tam’s case.

To the extent that this case is instructive to lawyers on discrimination and racial profiling it reinforces to human rights lawyers to be eternally vigilant as a Court in one decision and without the proper context and/or analysis can render a decision that adds a judicial stamp to discrimination and racial profiling.

Any concerns regarding the extent to which customs officers can use their on-the-job experience to inform decisions about whom to stop and search?

Canada Border Services Agency has undertaken since 2002 “that the criteria applied by Customs officers at ports of entry shall not include criteria that discriminate unlawfully on the basis of race, colour, national or ethnic origin or gender, or other prohibited grounds.”

If that is the case then the Federal Court of Appeal missed the boat on the test for discrimination since it only requires “race, colour, national or ethnic origin” to be a factor in the investigative and/or enforcement action for a finding of discrimination to be made out. Thus when the Federal Court of Appeal accepted that “The officer simply asserted in his statement that in his experience it was not uncommon for Chinese persons to bring agricultural products with them upon returning from China” it put the judicial stamp of legitimacy on the stereotypical action of the Customs Officers that referred Ms. Tam to secondary examination.

That she “did bring into Canada pork products which she failed to declare upon entry” does not end the matter. The question is how many Chinese persons returning from China are referred to secondary examination on the basis of the “officer’s hunch, based on his experience and his observance of the respondent’s demeanour” that in the end turns out to be non-resultant.

Reliance of an “officer’s hunch” and “experience” interacting with travelers at Canada’s Port of Entry is precisely why in 2002, it was agreed that Customs would:

implement a pilot project intended to develop statistics on referrals to secondary examination, based on race, colour, national and ethnic origin and gender of referrals in the context of all passengers passing through ports of entry.   The time frame and location(s) of the pilot project will be determined by the Respondent in consultation with the external contractor, the CHRC and the ACLC.  The project will also analyze, on the basis of race, colour, national or ethnic origin and gender, the impact of the criteria applied by Customs officers at ports of entry and make appropriate recommendations.[7]

The Canadian Human Rights Commission, in its Departmental Performance Reports observed that the Pieters case against Canada Customs presented an opportunity to deal constructively with systemic problems:
In the Pieters case, a settlement agreement was reached between the complainant and the respondent, Canada Customs and Revenue Agency (CCRA) which impacts on the treatment of visible minorities at Canadian ports of entry. Mr. Pieters alleged that CCRA discriminated against him when he was returning by train from a trip to New York City. Passengers on the train including Mr. Pieters were orally examined by Customs officers at Fort Erie, Ontario. Mr. Pieters alleged that unlike Caucasian passengers, he was asked questions about his citizenship status and his purchases and that his bags were searched. He alleged that when he objected to this behaviour believing it to be discriminatory, a Customs officers made a slur to him that he perceived to be racist.
Through the years, the Commission has received a number of complaints by visible minorities alleging that they have been unfairly singled out for secondary searches at Canadian ports of entry. However, such allegations are very difficult to confirm in light of the fact that the CCRA has not collected information with respect to the race, colour or national or ethnic origin of individuals subject to such searches. In settling the Pieters case, CCRA has agreed, among other things, to work with the Commission to develop and implement a special pilot project which will generate statistical information (race, colour, national/ethnic origin, and gender) on individuals entering the country who are referred to secondary examination, analyse the data and make appropriate recommendations.[8]

The current lack of an efficient and effective means of collecting latitudinal and longitudinal data disserved both Canada Boarder Service Agency in measuring its efficiency in crime control and the citizens whose expectations are that Customs Officers exercising discretion would do so in a manner that does not in effect or impact discriminate based on race, sex, age or any other Code or Charter related grounds.

It is beneficial to collect, analyze, and disseminate data on stop, secondary examinations and searches by Customs Officers with the need to examine, re-evaluate and redefine the exercise of discretionary authority and its impact or effect on ethno-socio and racial minorities.

Perhaps if Mr. Justice Marc Nadon had statistical data or the analysis of counsel experienced in litigating racial profiling and discrimination cases he would have been forced to confront the assumptions of the Customs Officer and his own assumptions that led to the judgment in Tam.[9].

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn most recently litigated the racial profiling case of:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941
M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102
M. (R.) v. Toronto Police Services Board, 2013 HRTO 73
M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158
M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410
M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)
M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349
M. (R.)v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

[1] Pieters v. Canada (Department of National Revenue) [2001] C.H.R.D. No. 42 (Q.L.),
[2] Canadian Human Rights Commission, Press Release “Tribunal Will Hear Discrimination Complaint Against Canada Customs” (May 23, 2001), online: Canadian Human Rights Commission <> (date accessed: January 02, 2003).
[3] Definition for “racial profiling” “investigative or enforcement action initiated against a member of an identifiable group by an individual officer based on his or her stereotypical prejudicial or racial perceptions of who they believe to be in wrong doing or crime”. Source: Association of Black Law Enforcers, Minutes of General Meeting - December 7, 2002,  p. 1.
[4] The referral to a Tribunal generated print, radio and television coverage. See, for example, John Saunders, “Black traveller calls search racial profiling: Rights body to hear Selwyn Pieters's case involving two Canada Customs agents over train incident, JOHN SAUNDERS reports”, The Globe and Mail (June 04, 2001), p. A16.
[5] See, for example, Paul Waldie, "Customs to gather racial data to see if officers use profiling" The Globe and Mail (December 16, 2002), p. A1.
[6] R. v. Richards, (1999), 26 C.R. (5th) 286 at 295, Rosenberg J.A. (ON C.A.), quoting the African Canadian Legal Clinic  definition in its submissions
[7] Pieters v. Department of National Revenue Canada Human Rights Tribunal (Minutes of Settlement as approved January 30, 2002. Tribunal File No.: T650/3801)
[8] Canadian Human Rights Commission, Departmental Performance Reports, 2001-2002, Litigation
[9] The Court’s record reflects that Ms. Tam was self-represented: “This matter comes on for hearing on 30-SEP-2014 at Ottawa before The Honourable Mr. Justice Nadon The Honourable Mr. Justice Webb The Honourable Mr. Justice Scott Appearances: Mr. Adrian Bieniasiewicz - Tel: (613) 670-6312 for the applicant Ms. Ting Ting Tam & her cousin for the respondent. Total duration: 1h30min Before the Court: Judicial Review Result: allowed Reasons delivered from the Bench Minutes of Hearing entered in Vol. 213 page(s) 206 - 209 Abstract of Hearing placed on file"

No comments: