How I Successfully Advanced a Racial Profiling Defence in a Drug Importation Case

   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 12^th 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 10^th, 2017 and that proceeding concluded on 

January 20^th, 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 17^th, 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 13^th, 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)