CASE LAW Using experience was not racial profiling
December 8, 2014 By Mike Novakowski
CBSA officers working the front line are not expected to ignore their experience observing people from different countries entering Canada.
The inspector asked Tam whether she had “any food items, plants or vegetation, candies or anything edible.” He said he asked this question because “it has been [his] experience working in the air mode stream that it is more than common that individuals of Chinese origin returning from China to bring agricultural products with them.”
Tam specifically responded that she did not have any food or agricultural products in her bags. When doing so, the inspector noticed that her response was sharper and quicker then to the other questions she had been asked, and she appeared nervous. Because of her demeanor and answers, the inspector referred Tam for a secondary examination. Pork products purchased in China were discovered. She was issued a notice of violation with an $800 penalty for importing an animal by-product, contrary to <s. 40> of the Health of Animals Regulation.
Tam filed a request for review before the Canada Agricultural Review Tribunal, which found Tam’s referral to secondary inspection was made on the basis of race, an irrelevant consideration. In its view, there was direct evidence of racial profiling through the inspector’s own report.
“The concept of racial profiling and the prohibitions against same, as developed in criminal law, are equally applicable to proceedings involving a determination to issue a notice of violation in relation to an administrative monetary penalty,” the tribunal wrote.
“To maintain such proceedings when racial profiling has, as here, been admitted to by the agency, would bring the system of justice into disrepute.”
Although the tribunal imputed no bad faith in relation to the primary inspector’s conduct, it nonetheless concluded that the referral to secondary inspection was initially based on “discriminatory criteria” and this improper purpose contributed to the issuance of the violation notice. The tribunal rendered the notice a nullity and Tam was not liable for the penalty.
The Attorney General of Canada then sought judicial review of the decision before the Federal Court of Appeal. Justice Nadon, delivering the court’s opinion, found the tribunal’s decision could not stand for the following reasons:
Tam did, in fact, bring pork products into Canada, which she failed to declare upon entry.
The tribunal failed to consider the whole of the evidence surrounding the inspector’s decision to refer Tam for a secondary examination. Not only did the officer refer to his experience in making his decision, but he considered Tam’s demeanour and the manner in which she answered questions. She appeared nervous and her response to questions regarding importing food were different than her other responses.
There was no evidence of racial profiling. “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,” said Nadon. “The officer’s hunch, based on his experience and his observance of the [traveller’s] demeanour, was confirmed by the secondary examination.”
Nadon said that “officers on the front line, such as the first officer herein, cannot be expected to leave their experience, acquired usually after many years of observing people from different countries entering Canada, at home or at a place far removed from their place of work…
“To find, as the tribunal did in this case, that the first officer had exercised racial profiling and that to not declare the notice of violation a nullity would tend to bring the system of justice into disrepute is, in our respectful opinion, a view which is unsupportable in the circumstances of this case and is therefore totally devoid of merit.”
The Attorney General’s application for judicial review was allowed, the tribunal decision set aside and the matter was returned to the tribunal for reconsideration of whether Tam committed the violation and the penalty to be imposed.
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