I have heard it said countless times that the Canada Border Services Agency has the right to search people at the airport and that it is not possible to successfully raise a racial profiling defence in the context of a drug importation case. I do not accept that proposition. I did so successfully recently and think the experience significant enough that it should be shared.
In my view when race is used as a basis to single out individuals for scrutiny this is prima facie unconstitutional. This conduct deprives the person so singled out to the equal protection and benefit of the law guaranteed by section 15 of the Canadian Charter of Rights and Freedoms. The tools that I employ in bringing the racial profiling defence to fruition are the following: 1. discovery/preliminary inquiry 2. O'Connor Application for CBSA training and other policies on discrimination, human rights and racial profiling and 3. Charter/Abuse of Process Motion challenging search, right to counsel and arbitrariness.
Discovery/Preliminary Inquiry:
In my experience most law enforcement personnel in Ontario are not trained on how to identify and avoid acts and omissions in the execution of their work which may amount to racial profiling or plain old arbitrariness. Nowhere was this more evident than when I decided to advance a racail profiling defence on behalf of an African-Canadian person charged with importing a few kilograms of cocaine at Pearson International from Jamaica.
The preliminary inquiry in criminal matters is a highly effective tool for securing evidence in support of a racial profiling case. In my case I asked and the Crown made available all of the CBSA officers involved in the transaction with my client for examination. One by one I sought information from them on their training in the areas of - 1. recognizing and removing racial and other bias from the discharge of their duties; and 2. recognizing and eliminating "tunnel vision" from the discharge of their duties. One by one they all confirmed that they were not given any such specific training. They were trained to treat everyone the same and "not discriminate". For the most part they were unfamiliar with the concept of "tunnel vision." The record I prepared made it abundantly clear that these officers were not properly trained to discharge their duties.
Production of training records sought:
I properly sought production of training materials used by the CBSA officers on the areas identified above. The Crown refused production taking the position they are not in their possession. Accordingly, I was forced to bring an O'Connor Application which I did. The learned Motions Judge denied my motion. That did not deter me in my quest to save my poor African-Canadian client harmless from what I perceived to be a discriminatory application of the law.
Notice of Application, Supporting Affidavit
and Factum:
I served the Crown with a Notice of Motion, Supporting affidavit, Factum and Book of Authorities as required by the Rules. On the day that the trial date was to be confirmed the charges were withdrawn by the Crown. Below is a copy of the NOA, and the factum I used*.
SUPERIOR COURT OF JUSTICE
(Brampton)
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
NOTICE OF MOTION
TAKE NOTICE THAT the Applicant intends to bring a motion before the Trial Judge on to be adjudicated prior to trial or at the
conclusion of the trial or as ordered by
the Trial Judge or as soon thereafter as the motion can be heard at 7755
Hurontario Street, Brampton, Ontario.
Relief Sought:
1. An
Order that the Applicant’s rights under sections 7, 8, 10, 9 and 15 of the
Canadian Charter of Rights and
Freedom have been violated by the law enforcement personnel involved in the Applicant’s
selection for a secondary search, arrest and subsequent processing;
2. An
Order either excluding the unconstitutionally seized evidence from consideration
by the trier of fact on the issue of
guilt or innocence or alternatively an Order staying the Applicant’s continued prosecution outright;
3. An
Order curing any irregularity in the bringing of the within motion;
4. Such
further remedy as the Court may deem just in the circumstances.
The Grounds for the Application are:
1. The Applicant stands accused of importing cocaine into
Canada –
an allegation which she denies.
2. The Applicant is a Canadian Permanent Resident woman of
African-Canadian
racial background(“black
complexion”) who was born in Jamaica and was returning
home from a visit when her interaction with CBSA
staff took place.
3. The Applicant asserts that she was singled out for criminal
scrutiny based on
her race, national
or ethnic origin and her colour, i.e. “black complexion”, denied
her right to counsel and subjected to a dehumanizing
strip-search – all in violation
of her protected rights under s.7,8, 9,10 and 15 of the Charter and charged
with
importing cocaine;
4. Admitting the fruits of the unlawful search and seizure
along with the
violation of her right
to counsel would bring the administration into disrepute;
5. The Applicant’s trial was initially set to commence on June 12th
2017.
However, it was re- scheduled by the
Court on its own motion on account of
concerns with the SCC ruling in R v.
Jordan. An O’Connor Application was
ordered to be heard January 10th, 2017 and that proceeding concluded on
January 20th, 2017
with the court ruling that the Applicant’s request
for the CBSA training documents on racial profiling and the formulation of
grounds for secondary searches was
not “likely relevant” to any issue;
6. Such
further grounds as counsel may advise and the Court may entertain.
The
following documentary/viva voce evidence will be relied upon:
1. All evidence
entered on trial relevant to the issues raised;
2. Viva
voce testimony of the Applicant, CBSA officers involved in the
decision to
forward the Applicant to
secondary, the CBSA/RCMP officers
involved in the secondary interrogation of the Applicant including
the strip-search;
3. Such
further evidence that the court may consider relevant.
The
following legal authorities will be relied upon:
1. Decision
of Bielby J. on O’Connor Application
2. R v. Smith 2004 Canli 46666 (As above)
3. R v.
Neyazi 2014 ONSC 6838 (As above)
4. R v.
Brown 2003 Canli 521(ONCA) (As above)
5. Peel
Law Association v. Pieters 2013 ONCA 396 (As above)
The Applicant may be
served with documents related to this appeal at the office of his solicitor of
record, Ernest J. Guiste, of E.J. Guiste Professional Corporation, 2 County
Court Boulevard, Suite 494, Brampton, Ontario, L6W 3W8 pursuant to the Rules.
January 23rd, 2016
E. J. GUISTE
PROFESSIONAL
CORPORATION
Trial
& Appellate Advocacy
2
County Court Blvd., Suite 494
Brampton,
Ontario
L6W
3W8
(416)
364-8908
(416)
364-0973 FAX
Ernest
J. Guiste for Counsel
PUBLIC PROSECUTION SERVICE OF CANADA
Federal Crown’s Office
201 County Court Blvd., Suite 600
Brampton, Ontario, L6W 4L2
Mr. Ostap Melnik, Esq.
(905) 454-2168 FAX and e mail
Counsel for the Crown
AND TO:
SUPERIOR COURT OF JUSTICE
Trial Co-ordinator’s Office
7755 Hurontario Street
Brampton, Ontario
Fax (905) 456-4834
SUPERIOR COURT OF JUSTICE
(Brampton)
BETWEEN:
HER
MAJESTY THE QUEEN
Respondent
-and-
Applicant
APPLICANT’S FACTUM
PART I
STATEMENT
OF THE CASE
1. The Applicant seeks a remedy from this
Honourable Court for the violation of her rights
under sections 7,8,9,10 and 15 of the Canadian Charter of Rights and Freedoms, in that
1. the primary CBSA officer’s referral of
the Applicant
to secondary
was tainted by racial profiling – s.15 breach;
2. consequently, the Applicant was subjected
to an unconstitutional
search and
seizure and the denial of her right to
counsel;
3. the seized evidence was obtained as a
result of a serious breach
of the
Applicant’s Charter Rights and is by any standard a
serious affront
to her dignity as a person and must be excluded
in order to preserve
the integrity of the administration of justice.
PART II: THE FACTS
2. The
Applicant is a woman of African descent originally from Jamaica with noticeably
dark skin.
Applicant’s
Affidavit at para 4
3. She
is a Landed Immigrant whose sickly father and some other relatives reside in
Jamaica and therefore require her to travel there occasionally.
Applicant’s Affidavit at para 8
4. In
2014 the Applicant took made two visits to Jamaica. The first in August, 2014 for three weeks in
order to care for her elderly father who had suffered a debilitating stroke and
then in November, 2014 when her aunt, Ms. , who she had arranged to assist with
her father’s care in Jamaica, passed away and she attended her funeral.
Applicant’s Affidavit at para 9-12
5. On
or about November 17th, 2014 the Applicant was returning from
Jamaica and passed through customs at Lester B. Pearson International Airport
and encountered Officer 1 of the Canada Boarder Services Agency. According to Officer
1 – “At 2120 hours passenger -- approached my counter. -- is female, black complexion, was wearing
glasses and a beige hoodie. ...I asked her the purpose of her trip, she told me
she attended her aunt’s funeral. She
then voluntarily wanted to show me the funeral invitation card but I told her
that there is no need. I asked -- what
her occupation was, and she told me she was unemployed. I then asked her who had purchased her ticket
to go to Jamaica, she told me her mom who had paid cash at the travel
agency. I asked her how many checked
luggage she had, she told me one. During my interview, I noticed --’s voice was
trembling and she was avoiding eye contact with me.”
Officer 1 Narative – Motion Record Tab 1
6. According
to Officer 1 she made the decision to send the Applicant for secondary search
for prohibited drugs on the following basis:
“At this point, I decided to pink high highlight her ABC printed
declaration card for the system’s immigration hit, stamp over the free to leave
code and write R555 at the bottom, referral for drugs based on the following
indicators:
-
arriving from a drug source country
-
cash paid ticket - unemployed
- voice trembling -
no eye contact - voluntarily wanted to
show me the funeral’s memorial/invitation card
As above
7. As
a result of Officer 1's referral to secondary, the Applicant was subjected to a
search of her luggage and a quantity of cocaine clandestinely sealed in food
seasoning and coffee packaging was located by the CBSA officer conducting the
luggage search. Officer 2 was then tasked with conducting a personal search of
the Applicant which included a fully intrusive strip search which included
requests to cough and squat to propel any matter potentially lodged in the
Applicant’s vagina or anus.
Inidictment – Applicant’s Affidavit
Testimony
of Ofc 2 at p.2
Applicant’s
Motion Record – Tab 2
8. The
Applicant was provided her right to counsel following the search of the luggage
and strip-searching.
Applicant’s Affidavit
Pretext
and Racial Profiling
9. The
Applicant took two trips to Jamaica in 2014.
Once to visit and seek care for her sick elderly father who was
hospitalized from a severe stroke in August and another time when the person
she entrusted to take care of him passed away and she attended her funeral some
three months later.
Applicant’s Affidavit para 9-12
10. Contrary
to Officer 1’s evidence, her ticket was not purchased by a third party for
cash. She received a loan from her mother and purchased the ticket herself with
a combination of cash and a debit payment from her bank account.
Applicant’s Affidavit at para 3
Flight
Centre Invoice/Statement – Ex A
11. Officer
1 made a sarcastic comment to the Applicant looking her straight in the eyes,
smiling and stating, “your mommy must really love you to buy you a ticket to go
to your aunt’s funeral.”
Applicant’s Affidavit at para 16
12. Officer
1 scanned the Applicant up and down with her eyes in a manner which conveyed to
the Applicant a sense of contempt and intolerance which she had previously
experienced causing her to feel that Officer 1 was of the mindset that she was
not deserving of respect on account of her race, place or origin and the fact
that she was not working at the time.
Applicant’s Affidavit at para 18
13. Contrary
to Officer 1’s evidence, the Applicant’s voice was not trembling and she
maintained proper eye contact with her.
Applicant’s Affidavit at para 19
14. Contrary
to Officer 1’s evidence, the Applicant did not volunteer to show her a funeral
invitation. Instead, the Applicant presented her with a bundle of documents
relevant to her inquiry and the bundle included a copy of the funeral program.
Applicant’s Affidavit at para 20-21
Funeral
Program – Exhibit B
PART III: ISSUES
15.
(i) Was
the decision to direct the Applicant to secondary tainted by any irrelevant
considerations, including racial profiling ?
(ii) Assuming the decision to direct the Applicant was tainted by
irrelevant considerations and or
racial profiling and the Applicant was detained, searched, arrested, charged and then subjected
to an invasive strip search and only thereafter provided her right to counsel – were not her rights under
sections 7, 8, 9, 10(b) and 15 of the
Canadian Charter of Rights and Freedoms violated ?
PART III : THE LAW
16. Racial
profiling will rarely – if ever – be established based on direct evidence. If
it is to be established at all it will be established on circumstantial
evidence.
R
v. Brown 2003 Canlii 52142 (Ont.
C.A.)
Shaw v. Phipps 2012 ONCA 155
17. The
evidence of Officer 1 in this case presents clear and cogent circumstantial
evidence of pretext to conceal a racially motivated decision to direct the
Applicant to secondary. This
includes: 1. Clear use of the irrelevant
identifier, “black complexion”; 2. Reliance on “arriving from a drug source
country without any attempt to consider and evaluate the Applicant’s reasons
for travel; 3. Erroneously concluding that a third party purchased the
Applicant’s ticket for case despite the clear evidence to the contrary from
Exhibit A – the invoice/statement from Flight Centre presented to the officer;
4. Officer’s sarcasm and looking at the
Applicant with contempt and intolerance; 5. Evidence from Officer’s 2 and 3 stands
in stark contrast to Officer 1 on the issue of the Applicant’s visits to Jamaica
in the circumstances; 6. Indifference exhibited by CBSA officers to Applicant’s
Charter rights.
R
v. Brown (supra)
R v.
Neyazi 2014 ONSC 6838
18. Once
racial profiling can be established as the reason for sending to secondary
inspection, that person’s Charter rights have been violated – calling for a
remedy under the Charter.
Canadian Charter of Rights and Freedoms –
s.15
R v.
Neyazi 2014 ONSC 6838
R v.
Smith 2004 Canli 46666
R v.
Simmonds [1988] 2 S.C.R. 495
Search
of luggage:
19. Section
8 of the Charter protects individuals from “unreasonable” search and
seizure. An unlawful search is
necessarily unreasonable. A warrantless
search and seizure, where an accused has a reasonable expectation of privacy,
is prima facie unreasonable. (Hunter v.
Southam Inc. [1984] 2 S.C.R. 265 at para 22)
R
v. Neyazi(supra)
20. The
CBSA officers searched the Applicant’s luggage without a warrant and therefore
the onus is on the Crown to establish, on a balance of probabilities, that the
search was reasonable. (R v. Collins, [1987] 1 S.C.R. 265 at para 22)
As above
21. To
establish that the search was reasonable the Crown must prove:
1. the search was authorized by law;
2. the law itself is reasonable; and
3. the manner in which the search was
carried out was reasonable.
22. The
evidence in this case most clearly invites a finding that the CBSA officer’s
search was unreasonable and unconstitutional.
Right
to Counsel:
23. s.10(b)
provides that everyone has the right on arrest or detention to be informed of
their right to counsel and to retain and instruct counsel without delay.
Charter and R v. Neyazi(supra)
24. The
facts here reveal that the Applicant was not provided her right to counsel
until after she was detained, arrested, her luggage was searched and she was
then subjected to a full strip-search.
This evidence establishes a clear breach of her section 11(b) rights.
R
v. Neyazi(supra)
Impact
of breaches on
Protected
rights:
25. [216] A finding of racial profiling is an affront
to human dignity.
while
this fact will also be relevant at the second stage of the
s.24(2)
analysis, at this stage of the analysis the court is
concerned
with the prospective protection of the justice
system. Court must distance themselves from evidence
obtained
where racial profiling is involved – consciously or
unconsciously.
26. On
the facts of this case, the seized evidence ought to be ordered inadmissible in
order to protect the integrity of the administration of justice plain and
simple. There was simply too much
indifference at the lowest level and reckless disregard for the law for this to
be condoned by this Honourable Court.
R v.
Neyazi(supra)
PART IV:
ORDER REQUESTED
27. An
Order excluding the seized evidence and dismissing the charge against the
Applicant. Alternatively, an Order
staying the Applicant’s prosecution on account of the Charter breaches.
28. ALL OF WHICH IS RESPECTFULLY SUBMITTED.
January 23rd, 2017 (Amended June 13th,
2017 per Justice Durno)
_____________________________
Ernest J. Guiste
SCHEDULE A
1. R v.
Brown 2003 Canli 52142 (Ont. C.A.)
2. Peel Law
Association v. Pieters
3. R v.
Smith 2004 Canli 46666
4. R v.
Neyazi 2014 ONSC 6838
5. R v. Simmonds [1988] 2 S.C.R. 495
NOTE: *This piece is published here as a public service.
The lesson here is that sometimes the very
bringing of an application seeking a remedy like
a stay can be an effective tool in obtaining
a successful result for one's client even though
some legal scholars may opine that one is
unlikely to obtain a stay if the application is argued.
The exercise is not an offer of legal
advice or a representation that the law as quoted is
gospel.
SCHEDULE B
1. Canadian Charter of
Rights and Freedoms – s.7,8,9,10 and 15(1)
