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.
[2]
Canadian Human Rights Commission, Press Release “Tribunal Will Hear
Discrimination Complaint Against Canada Customs” (May 23, 2001), online:
Canadian Human Rights Commission
<http://www.chrc-ccdp.ca/news-comm/2001/NewsComm230501.asp?l=e> (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,
3.1.2.3 Litigation
<http://www.tbs-sct.gc.ca/rma/dpr/01-02/CHRC/chrc01-02dpr02_e.asp>
[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"
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