COURT
FILE NO.: CRIMJ(F) 6474/02
DATE: 20041207
ONTARIO
SUPERIOR COURT OF JUSTICE
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B E T W E E N:
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HER MAJESTY THE QUEEN
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Mr. C. Walsh and Mr. S. Coroza, for the
Respondent
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Respondent
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- and -
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DOREEN SMITH
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Mr. M. Hamalengwa, for the Applicant
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Applicant
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HEARD:
November 18, 20, 21 and December 15, 2003, September 21, 22 and 23, 2004
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Dawson J.
Nature of the Application
[1] Doreen Smith is charged with importing cocaine contrary to s. 6(1)
of the Controlled Drugs and Substances Act,
S.C. 1996, Chap. 19. The
alleged offence occurred on March 15, 2001 when Ms. Smith arrived on a flight
from Jamaica with her six-year-old son. Canada Customs officers claim that the
shoes Ms. Smith was wearing, and other shoes in her suitcase, contained
cocaine.
[2] Ms. Smith was born in Jamaica but is now a Canadian citizen. She is
black and claims that she was selected for secondary customs examination on the
basis of racial profiling. She advances this position in pre-trial motions
alleging breaches of sections 7, 8, 9 and 15(1) of the Charter of Rights.
She seeks a stay of proceedings or the exclusion of the incriminating
evidence.
The Evidence – An Overview
[3] There are a number of conflicts between the evidence of Canada
Customs inspectors and the evidence of Doreen Smith given on the voir dire.
I will highlight these in this overview, but I will add important detail later
in my analysis of the evidence in the context of the arguments advanced.
[4] Ms. Smith arrived at Terminal One of Pearson International Airport
in Toronto at approximately 7:45 p.m. on March 15, 2001. She was returning
from Montego Bay, Jamaica where, she testified, she had taken her son for
“March break”. Her ticket was purchased approximately three days before her
departure. She testified the ticket was purchased by her boyfriend.
[5] Ms. Smith stated that after leaving the plane she lined up for
primary customs inspection. She selected which line to stand in and was not
directed to a particular line. She had travelled to Jamaica before and knew
she would have to pass through customs.
[6] Inspector Edna Soifer testified that she was the customs officer who
dealt with Ms. Smith at the primary inspection booth. She asked Ms. Smith
where she was coming from, where she had stayed, whether she lived close to the
travel agency where the ticket was purchased and the cost of the ticket. She
looked at Ms. Smith’s ticket, citizenship card and customs declaration. She
testified that the accused had written “rum and wine” on the declaration card
but not the quantity. Inspector Soifer questioned Ms. Smith about the quantity
and wrote “three bottles” on the card in response to the answers she received.
Ms. Smith was asked why she went to Jamaica and, according to Inspector Soifer,
said she went to see her family. She said she stayed in a guest house.
Inspector Soifer noticed that Ms. Smith’s ticket was purchased shortly before
travel for cash at Mirabel Travel. She wrote “R56” on Ms. Smith’s declaration
card, which meant Inspector Soifer had “doubt” about Ms. Smith and was
referring her for secondary customs inspection. Inspector Soifer testified she
did this on the basis of a number of “indicators”. These were:
1.
Ms. Smith’s ticket was purchased just before
travel;
2.
the ticket was paid for in cash;
3.
in the months before, a number of people who
purchased tickets at Mirabel Travel were found to be transporting drugs;
4.
when she asked Ms. Smith if she lived near the
travel agency she received no response;
5.
Ms. Smith avoided eye contact;
6.
Ms. Smith said she went to visit family but
stayed in a guest house.
[7] Ms. Smith denied that Inspector Soifer asked her the questions that
Inspector Soifer testified that she did. It is Ms. Smith’s position, advanced
by her counsel, that Inspector Soifer’s testimony was fabricated after the
racial profiling argument was advanced.
[8] Shortly after leaving the primary inspection counter Ms. Smith was
approached by Inspector Laurelle Boon. Inspector Boon was working as a member
of the Flexible Response Team of Canada Customs. Members of that team decided
to “rove” the flight Ms. Smith was on as there had often been drug seizures
from passengers returning from Jamaica. “Roving” means that members of the team
are present in the area between the primary inspection booth and the baggage
return area and speak to as many passengers as they can. Members of the team
would examine passenger’s customs declaration cards and documents and ask
questions to determine if the passenger should be sent for secondary customs
inspection. A secondary inspection would include an examination of the
passengers’ luggage.
[9] Ms. Smith testified that Inspector Boon only asked her one question:
why she had been in Jamaica. She replied she had taken her son for March
break. Inspector Boon testified that she examined Ms. Smith’s ticket,
identification and customs declaration card. She asked where Ms. Smith had
been, the reasons for her trip, and about her ticket. Ms. Smith said it was
purchased by her fiancé. Inspector Boon noticed the ticket was purchased March
3, 2001 for a March 7, 2001 departure. She also noticed the ticket was
purchased at Mirabel Travel. She was aware of recent drug seizures from
passengers who had purchased tickets from that travel agency. Inspector Boon
wrote her call sign, “J4”, on Ms. Smith’s customs declaration card. While she
could see that the primary officer had already coded Ms. Smith for secondary
inspection, Inspector Boon testified she made an independent decision to
conduct a secondary customs inspection. Putting her call sign on the card
meant that Inspector Boon would do the secondary inspection herself unless
something came up to prevent that.
[10] Inspector Boon testified that her decision was based on the
cumulative effect of a number of indicators which she described as follows:
1.
Ms. Smith’s ticket was purchased at Mirabel
Travel;
2.
the ticket was purchased shortly before travel;
3.
she said she stayed in a villa when she was
visiting her family;
4.
the person who bought the ticket did not travel
with Ms. Smith.
[11] Inspector Boon testified that she asked Ms. Smith similar questions
later when she conducted the secondary inspection and received the same
answers.
[12] During the examination of Ms. Smith’s luggage Inspector Boon noticed
that a pair of shoes seemed unusually heavy. She x-rayed the shoes and saw an
inconsistency in the soles. She poked the soles with a knife and detected
white powder which tested positive for cocaine in a field test. Inspector Boon
arrested the accused and took her to a nearby search room. Other shoes in the
luggage did not contain cocaine, but the shoes on the accused’s feet also felt
heavy and were determined to contain cocaine.
[13] Ms. Smith denied that Inspector Boon asked her the questions
Inspector Boon testified she asked. She denied that Inspector Boon wrote
anything on her declaration card. She testified that when she arrived at the
secondary inspection area Inspector Boon searched two of her bags but did not
find anything. Contrary to Inspector Boon’s evidence that all of the luggage
was searched in Ms. Smith’s presence, Ms. Smith testified that Inspector Boon
took her black suitcase away and then came back and arrested her. She
testified that the shoes containing cocaine allegedly found in her suitcase
were not hers. She denied that the second pair of shoes which contained
cocaine were hers and denied they were on her feet. It is Ms. Smith’s position
that both inspectors have fabricated their evidence about the indicators used
to send her to secondary examination, and that Inspector Boon is lying about
finding the two pair of shoes containing cocaine. Her counsel argues that I
should disbelieve the evidence of Inspectors Soifer and Boon as to why they
sent Ms. Smith to secondary and conclude that racial profiling emerges from the
circumstances as the real reason Ms. Smith was subjected to a secondary customs
inspection.
The Law in Relation to Racial Profiling
[14] In R. v. Richards
1999 CanLII 1602 (ON C.A.), (1999), 26 C.R. (5th) 286
(Ont. C.A.), at para. 24, the court set out the definition of racial profiling
advanced by the African Canadian Legal Clinic, an intervener in that case:
Racial
profiling is 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 or 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.
[15] This definition was adopted by the Ontario Court of Appeal in its
subsequent decision in R. v. Brown
2003 CanLII 52142 (ON C.A.), (2003), 64 O.R. (3d) 161, 173
C.C.C. (3d) 23, 9 C.R. (6th) 240, at para. 7. In Brown the
court noted that the attitude underlying racial profiling may be one that is
consciously or unconsciously held, and that overt racism will not necessarily
accompany the phenomenon. The court was careful to point out that those
involved in racial profiling are unlikely to admit it. Where it exists, racial
profiling will only be discovered by a careful examination of all of the
evidence, and in particular the circumstantial evidence.
[16] In Brown the issue at trial was whether the accused was
stopped for articulable cause when his motor vehicle was pulled over on the Don
Valley Parkway in Toronto. The police maintained that cause existed, while the
accused denied it and contended that the appropriate inference was that he was
pulled over because he was black and driving an expensive motor vehicle. The
accused raised the issue under the rubric of arbitrary detention in
contravention of s. 9 of the Charter of Rights. In that context
the Court of Appeal made the following comment (at para. 11):
… to
succeed on the application before the trial judge, the respondent had to prove
that it was more probable than not that there was no articulable cause for the
stop, specifically, on the evidence in this case, that the real reason for the
stop was the fact that he was black.
[17] Clearly, a stop based on racial profiling is improper and cannot
amount to articulable cause, or, as it has more recently been described by the
Supreme Court of Canada in R. v. Mann (2004), 185 C.C.C. (3d)
276, “reasonable grounds to detain for investigation”.
[18] In Brown the Court of Appeal upheld the decision of a summary
conviction appeal court that a new trial was required on the basis of a
reasonable apprehension of bias on the part of the trial judge. That
apprehension arose from comments that could lead a reasonable observer to
believe the judge was not open to the possibility that racial profiling was the
reason for the vehicle stop. The Court of Appeal noted that there was
circumstantial evidence that could support such a finding and referred (at
para. 45) to how racial profiling might be proven.
The
respondent submits that where the evidence shows that the circumstances
relating to a detention correspond to the phenomenon of racial profiling and
provide a basis for the court to infer that the police officer is lying about
why he or she singled out the accused person for attention, the record is then
capable of supporting a finding that the stop was based on racial profiling. I
accept that this is a way in which racial profiling could be proven. I do not
think that it sets the hurdle either too low (which could be unfair to honest
police officers performing their duties in a professional and unbiased manner)
or too high (which would make it virtually impossible for victims of racial
profiling to receive the protection of their rights under section 9 of the Charter.)
[19] This approach was foreshadowed in an earlier trial judgment in R.
v. Peck, [2001] O.J. No. 4581 (S.C.), and applied in the recent
judgment in R. v. Khan, [2004] O.J. No. 3819 (S.C.).
[20] In Peck, Trafford J. rejected police evidence that they saw
the accused holding a small bag in his hand from a distance of 30 yards in a
dark laneway. The accused was a well-dressed black man walking through an area
of downtown Toronto notorious for drug trafficking. The court concluded that
in the circumstances race was likely an operative factor that led the police to
confront the accused. The court found that there was an unreasonable search
and that the accused was arbitrarily detained. Evidence that the accused was
found in possession of crack cocaine was excluded on the basis that there was a
serious breach of sections 8 and 9 of the Charter.
[21] In Khan, Molloy J. disbelieved two police officers’ testimony
about why they had stopped the accused and searched his vehicle. The accused
was black and driving a Mercedes in downtown Toronto. The police evidence was
inconsistent with the timing of certain known events and with the evidence of
witnesses whose evidence tended to support that of the accused. The accused denied
the conduct attributed to him by the police and testified to a sequence of
events that was consistent with other evidence accepted by the court. Molloy
J. concluded that racial profiling was the real reason for the stop and
search. Cocaine found in a search of the accused’s motor vehicle was excluded
on the basis of a serious breach of sections 8 and 9 of the Charter.
[22] I wish to refer to a case that did not involve racial profiling but
is important to a proper analysis in cases where racial profiling is raised.
In Brown v. Durham Regional Police Force
1998 CanLII 7198 (ON C.A.), (1998), 131 C.C.C. (3d)
1 (Ont. C.A.), the court dealt with a civil case that involved police
checkpoints set up to target motorcycle gang members. Members of the targeted
group were stopped, inspected and questioned for the purpose of enforcing the Highway
Traffic Act,
R.S.O. 1990 c. H.8, to investigate other criminal activity and
for intelligence gathering purposes. Members of the motorcycle gang were
detained at the checkpoints for these purposes. They sued the police for
damages for breach of their right to be free from arbitrary detention pursuant
to s. 9 of the Charter. The action was dismissed and they appealed.
[23] In order to assist in determining if the appellant’s detention was
arbitrary, the court found it helpful to consider whether it was authorized by
law. An issue arose whether purposes other than highway safety took the stops
outside the scope of s. 216(1) of the Highway Traffic Act, which was the
statutory basis for the stops relied upon by the police, and rendered them
unlawful. The court held that as long as the additional police purposes were
not improper they did not taint the lawfulness of the detention. However, if
one of the purposes for the stop was improper, the stop and detention would be
rendered unlawful notwithstanding that legitimate considerations were also
involved: see paras. 31, 34 and 37.
[24] On the basis of Brown v. Durham, a finding that racial
profiling was involved in selection of an individual for investigative detention
will render that detention unlawful even if there are also legitimate reasons
for it.
Which Sections of the Charter Might
Apply in this Case?
[25] I wish to comment on which of the four Charter sections
relied upon by the accused might apply in the circumstances of this case. The
accused submits that a finding of racial profiling should lead to a conclusion
that sections 7, 8, 9 and 15(1) of the Charter have been breached.
Sections 8 and 9 of the Charter
[26] It must be remembered that the allegation of racial profiling in
this case arises in a border crossing context. It is the accused’s position
that the impropriety occurred when the accused was selected for secondary
customs inspection. It was during the secondary customs inspection process
that the narcotics were found.
[27] A substantial body of jurisprudence establishes that the crossing of
an international border is a context of significance when it comes to the
application of the Charter: see R. v. Kwok
reflex, (1986), 31
C.C.C. (3d) 196 (Ont. C.A.); R. v. Jordan (1984), 11 C.C.C. (3d)
565 (B.C.C.A.); R. v. Simmons
1988 CanLII 12 (S.C.C.), (1988), 45 C.C.C. (3d) 296
(S.C.C.); R. v. Jacques
1996 CanLII 174 (S.C.C.), (1996), 110 C.C.C. (3d) 1 (S.C.C.); Dehghani
v. Canada (Minister of Employment and Immigration),
1993 CanLII 128 (S.C.C.), [1993] 1
S.C.R. 1053; R. v. Monney
1999 CanLII 678 (S.C.C.), (1999), 133 C.C.C. (3d) 129 (S.C.C.).
These cases establish that there is a reduced expectation of privacy on the
part of travellers crossing a border. Travellers expect to be scrutinized and
have their luggage examined. They also expect to be subjected to a degree of
restraint and direction during the customs and immigration process. This goes
hand in hand with the public interest in ensuring the security of the nation
and that hazardous or illegal substances and illegal immigrants not enter the
country.
[28] In Simmons, Dickson C.J.C. concluded (at p. 313) that in
relation to routine questioning and a search of luggage: “No stigma is attached
… and no constitutional issues are raised.” In Kwok, Finlayson J.A.
held there is no detention in a constitutional sense during routine procedures
to gain entry to Canada, despite the fact that a traveller’s movements are
subject to direction and control during the process. These cases establish, in
my view, that no issue arises as to the reasonableness of a search under s. 8
of the Charter, nor in relation to the arbitrariness of detention under
s. 9 of the Charter, at these early stages of the customs and
immigration process. This flows from the fact that there is no reasonable
expectation of privacy and no constitutional detention involved in undergoing
such routine inspection.
[29] These cases establish that it is not until more intrusive and
non-routine measures are taken during the customs and immigration process that
a traveller will be considered detained, or that s. 8 of the Charter will become applicable.
However, this does not mean that a Charter remedy is not available when racial profiling occurs in a border
crossing context.
Section 7 of the Charter
[30] The Crown concedes that s. 7 of the Charter will have been breached if I find that racial profiling was a
factor in the decision to refer the accused for secondary customs inspection.
I am in full agreement with this concession.
[31] The interests which s. 7 of the Charter protects are “life, liberty and security of the person”. Human
dignity has been held to constitute a protected interest which falls within
these concepts: R. v. Morgentaler, Smoling
and Scott
1988 CanLII 90 (S.C.C.), (1998), 37 C.C.C. (3d) 449 (S.C.C.), per Wilson J. at pp. 549-550; Rodriguez v. British
Columbia (Attorney General),
1993 CanLII 75 (S.C.C.), [1993] 3 S.C.R. 519,
per Sopinka J. at para. 136-137. These cases also hold that freedom from
improper stigma and undue psychological stress fall within the concept of
security of the person.
[32] It is important to keep in mind that I am here speaking of human dignity
as a protected interest under s. 7 of the Charter, and not as a principle of fundamental justice. The Supreme Court
of Canada held in Rodriguez, that while human dignity is a protected interest, it is not a part
of the rules of fundamental justice. In the words of Sopinka J. at para. 145:
While
respect for human dignity is the genesis for many principles of fundamental
justice, not every law that fails to accord such respect runs afoul of these
principles. To state that “respect for human dignity and autonomy” is a
principle of fundamental justice, then, is essentially to state that the
deprivation of the appellant’s security of the person is contrary to principles
of fundamental justice because it deprives her of security of the person. This
interpretation would equate security of the person with a principle of
fundamental justice and render the latter redundant.
[33] Racism and its effects are undeniably an affront to human dignity.
Whether overt, subconscious or systemic, racism undermines the self-image and
respect of its victims, causes psychological stress and, of course, may cause
tangible disadvantages of every manner and kind: see, Paying the Price: The Human Cost of Racial Profiling, Ontario Human Rights Commission, Toronto, 2003.
[34] Simmons, and the related cases I have
referred to, dealt with issues of search and seizure and detention and the
right to counsel. They did not deal with the phenomenon of racial profiling.
While all persons passing through customs may be subject to being scrutinized
and searched, that does not diminish the potential affront to human dignity
that occurs when someone is singled out for scrutiny on the basis of their
race. It does not follow from the fact that a customs inspector does not need
a reason to refer a person for secondary examination, that reliance upon race
as a basis for doing so can be ignored. In my view, the potential affront to
human dignity involved in the use of race in this way implicates the interests
protected by s. 7. It calls for an analysis of whether race is being used in a
manner that breaches the principles of fundamental justice, in the
circumstances of the particular case. If there is no legitimate reason to use
race to select an individual for scrutiny, the principles of fundamental
justice will have been contravened. This will always be so in the case of
racial profiling.
[35] It is important to keep in mind the definition of racial profiling
and to distinguish racial profiling from the use of race as an accurate
descriptor of an individual or group of individuals. Racial profiling is
repugnant because, by its definition, it illegitimately attributes criminal
activity to all members of a group defined by their race or colour. Racial
profiling will always contravene the principles of fundamental justice because,
having regard to its definition, there can be no legitimate state interest in
its use.
[36] However, there may be state as well as individual interests to be
balanced in other circumstances where race is used as a descriptor. The use of
race as a descriptor of an individual or group of individuals, where there are
other reasons to differentiate or select on the basis of race, may or may not
contravene the principles of fundamental justice. This will depend on whether
there are legitimate reasons which arise from the combination of race and other
factors which make it legitimate to use race as a descriptor in the course of
selecting a person, or group of persons, for scrutiny. An obvious example
would be where the victim of a crime describes the perpetrator in part by
reference to the perpetrator’s race. Another example might be where there is
solid evidence to link a group, defined in part by their race, to a legitimate
state interest or concern.
[37] As has been pointed out by the Supreme Court of Canada in Rodriguez, and also in Cunningham v. Canada,
1993 CanLII 139 (S.C.C.), [1993] 2 S.C.R.
143, it may be necessary to engage in a balancing of state and individual
interests in order to determine if the principles of fundamental justice have
been breached in any given set of circumstances. In the words of McLachlin J.
(as she then was) in Cunningham v. Canada, at
pp. 151-152:
The principles of fundamental justice are concerned not only with
the interest of the person who claims his liberty has been limited, but with
the protection of society. Fundamental justice requires that a fair balance be
struck between these interests, both substantially and procedurally [citations
omitted].
[38] In the case at bar it is “racial profiling” that is in issue. There
is no suggestion of the presence of any other factors which would render the
use of race legitimate in this case. Consequently, the Crown’s concession is
completely appropriate.
[39] I add that the Crown concedes that if I find a breach of s. 7 on the
basis of racial profiling, the breach would be very serious and the
incriminating evidence should be excluded. It is agreed that an acquittal
would then follow. This concession eliminates the need to consider the remedy
of a stay of proceedings, should I find that there was racial profiling in this
case.
Section 15(1) of the Charter
[40] In view of the Crown’s concession that a finding of racial profiling
would constitute a breach of s. 7 of the Charter, I asked counsel for
the accused if there was any need to undertake a s. 15(1) Charter
analysis. Counsel was not able to suggest any scenario that would lead to a
finding of a breach of s. 15(1) that would not fall within the Crown’s
concession in regards to s. 7 of the Charter. In these circumstances I
conclude that further Charter analysis is not required.
Was There Racial Profiling in this Case
[41] The accused argues that the evidence of Inspectors Soifer and Boon
is not credible, and that the evidence of Ms. Smith is. As in Peck and Khan,
the argument is that once the basis put forward by the customs inspectors for
referring Ms. Smith to secondary is disbelieved, the absence of any legitimate
reason for doing so should lead me to infer that racial profiling has been
established. As the accused alleges a breach of the Charter, the burden
is on the accused to establish the basis for the breach on a balance of
probabilities.
[42] Inspectors Soifer and Boon each testified that they independently
concluded that Ms. Smith should be sent to secondary. Each did this on the
basis of “indicators” that emerged from their discussions with Ms. Smith. There
is evidence that customs inspectors are trained in the use of such indicators
and that inspectors regularly meet to discuss trends that they observe in
respect of recent seizures, in order to identify new or emerging indicators.
[43] Part of the accused’s attack involves a submission that the use of
such indicators has been destroyed by the judgment of the Ontario Court of
Appeal in R. v. Calderon, [2004] O.J. No. 3474. In that case police
officers stopped a car travelling in Northern Ontario late at night for
speeding. However, the officers testified they were more interested in
investigating the occupants for drug trafficking. The officers relied on
indicators they had been told to watch out for during a one week course. The
indicators utilized were that the large car was rented and appeared to be too
expensive for the look of the occupants. As well, there were cell phones and a
pager in the car together with a map and fast food wrappers. Two duffle bags
were sitting in the back seat as opposed to being in the trunk. In
cross-examination the officers agreed that the indicators were neutral and
might be found in any car. The Court of Appeal applied the recent decision of
the Supreme Court of Canada in R. v. Mann
2004 SCC 52 (CanLII), (2004), 185 C.C.C. (3d)
308. That case holds that reasonable grounds to suspect an individual is
connected to a particular crime are required to justify an investigative
detention. In Calderon the Court of Appeal concluded that because the
indicators the police relied upon were not objectively verifiable, they could
not found a reasonable suspicion. There was an arbitrary detention and an
unreasonable search and the evidence should have been excluded.
[44] In my view, there are two reasons for rejecting the accused’s
argument that Calderon destroys the validity of the indicators relied
upon by Inspectors Soifer and Boon; one is legal and the other is based on
the evidence.
[45] The legal reason arises from the border crossing context that is
present in this case, and was not in Calderon or Mann. As
previously mentioned, the Supreme Court of Canada has limited the
constitutional considerations that arise in the course of routine customs and
immigration procedures upon entering Canada. Consequently, customs inspectors
are not engaged in “investigative detention”, as that concept has been
described in Mann, during a primary or secondary customs inspection.
[46] The evidential reason for rejecting the argument rests on my
conclusion that the evidence in this case is very different than the evidence
in Calderon. Even if the “reasonable suspicion” standard for
investigative detention were to be applied in the customs context, I would
conclude that Calderon is distinguishable on its facts. One of the
officers in Calderon testified that he had stopped between 50 to 100
cars on the basis of the indicators he was trained to use, but had not made any
arrests. The other officer had stopped between 10 and 20 cars on the same
basis and testified he had made no arrests. The Court of Appeal made specific
reference to this evidence (at para. 72) in concluding that the indicators used
by the police in Calderon were not objectively reliable.
[47] In this case there is affirmative evidence that the indicators the
customs inspectors relied upon have been associated with the seizure of
narcotics. In particular, that is so in relation to tickets purchased for cash
and/or shortly before travel. The evidence also indicates that both customs
inspectors, and Cst. Saleh of the R.C.M.P., were aware of drug seizures from
travellers who purchased their tickets at Mirabel Travel. I also note that the
accused has called no evidence that the indicators are unreliable. On the
evidence before me there is a basis to conclude that the indicators utilized in
this case do have some objective validity.
[48] The real question in this case is one of credibility. Did the
customs inspectors rely upon the indicators as they testified, or is the
testimony of reliance on indicators false testimony advanced to cover up racial
profiling?
[49] Counsel for the accused focuses his submissions on what I will refer
to as two points and one theme. The first point is that the significance of
Mirabel Travel as an indicator emerged late in the day. Counsel contends this
signifies fabrication after the racial profiling motion was served, in order to
shore up the case. The second point is that Inspector Boon did a Canadian
Police Information Computer (CPIC) check on the accused during the unfolding of
events, and that she denies it. It is argued that her denial of this proven
fact shows that she is lying and tends to show that she was engaged in racial
profiling. The theme I refer to is that there has been continuous very late
disclosure made only after the racial profiling motion was served. Counsel
argues this further demonstrates that there has been after the fact fabrication
of indicators which were not actually used by the inspectors to send the
accused to secondary.
[50] It is very difficult to sort these issues out one by one as they are
inter-related and emerged in an interconnected fashion during the evidence on
the voir dire. There has indeed been some late disclosure, and I
ensured that the defence had any time requested to digest the material. In
addition, witnesses were recalled to give further evidence. I propose to
discuss the issues in the context of the evolution of the case and the
unfolding of the evidence on the voir dire.
[51] Inspector Soifer testified before Inspector Boon did. In examination-in-chief
she was very clear that she was aware that persons who had purchased tickets at
Mirabel Travel had been found carrying drugs. In cross-examination Inspector
Soifer agreed she had not disclosed this in detail to the Crown. Counsel for the
accused suggested she made this up after the fact. Inspector Soifer denied
that.
[52] I note that in Inspector Soifer’s typed narrative report, which was
disclosed before the racial profiling motion was served, the following
statement appears: “The ticket had been purchased at Mirabel Travel in
Woodbridge and so I asked the passenger if this was near her home, she did not
answer”. This evidence is capable of supporting Inspector Soifer’s challenged
evidence to some extent. However, there is no indication in the report that
Mirabel was an “indicator” for the reasons stated on the voir dire. Nor
is the significance of Mirabel recorded in Inspector Soifer’s notes.
[53] In re-examination the Crown clarified that during a meeting with
Crown counsel on November 16, 2003, four days before Inspector Soifer gave
evidence, the Crown was advised of the significance of Mirabel Travel. On that
date the Crown met separately with Inspectors Soifer and Boon. Before this
re-examination took place the Crown requested that Inspector Soifer be excluded
from the courtroom so that I could be advised of certain information.
[54] In the absence of the witness Crown counsel advised me that when he
learned of the significance of Mirabel Travel on November 16, 2003, he
instructed Inspector Boon to prepare a set of notes that would be faxed to
counsel for the accused as disclosure. I was also advised that Inspector Boon
had completed a form on March 15, 2001 called a Significant Seizure Report.
That report was faxed to various locations at Canada Customs in March 2001. I
was told the report listed the indicators that were relied upon and included
reliance on the fact that Mirabel Travel was a “known travel agency”. I was
further advised the Crown was in the process of obtaining a copy of the report
so that it could be disclosed to the defence.
[55] Inspector Boon later testified and confirmed this information. She
confirmed that standard procedure in the case of a major drug seizure requires
that various forms be completed on a computer. The computer generates a
seizure number which is on the Significant Seizure Report and other forms.
Inspector Boon testified that the significant seizure report is “faxed to
Ottawa” and the original goes to the Seizure Unit in Toronto. The report also
goes to the Intelligence and Contraband Section.
[56] The Significant Seizure Report was eventually produced and marked as
an exhibit on the voir dire. It is of considerable significance as a
prior consistent statement. This is because Inspector Boon does not have the
significance of Mirabel Travel recorded in her notes either, and the
significance of Mirabel Travel was not made clear in her testimony at the
preliminary hearing.
[57] Inspector Boon was cross-examined about her notes and her
preliminary hearing testimony. She responded that when she did her notes, and
when she testified at the preliminary hearing, she thought there was an ongoing
investigation into Mirabel Travel. She testified that a couple of weeks before
the voir dire she called “Intelligence” and was told “nothing was going
on with respect to Mirabel” and that it was “okay to bring it up”. She
maintained that she did not try to hide anything. When she sent her
Significant Seizure Report to the Seizure Unit in March of 2001 she understood someone
there would send it to the Crown. She testified that she gave a copy of the
report to the Crown on November 16, 2003 when she found out the Crown did not
have it. An examination of the Significant Seizure Report reveals that it
indeed lists the various indicators Inspector Boon testified that she relied
upon.
[58] On November 21, 2003 the voir dire was adjourned to December
15, 2003 for further disclosure and to continue the evidence. When the voir
dire continued the Crown called Ms. Maria Ferreira, who works as an
administrative assistant to the Director of Customs Passenger Operations at
Pearson International Airport. Part of Ms. Ferreira’s daily routine is to
circulate and file Significant Seizure Reports. She has been employed by
Customs for 14 years, but has only held her current position since April 30,
2001, approximately one and a half months after the arrest in this case. She
testified that she went to the filing system and retrieved the Significant
Seizure Report in relation to this investigation. It was filed where it was
expected to be. She explained that fax scripts on the document showed that it
had been faxed to the “old office” location. It was faxed from the fax number
of the Pearson International Airport Flexible Response Team. She testified
that the office she was employed in had changed addresses in March of 2001, the
month in which this arrest occurred. There was also a fax script on the
document indicating that it had been re-faxed to the new office location.
These fax scripts show a date of March 15, 2001 at 23:47 hours for the first
transmission to the old office, and March 16, 2001 at 8:19 hours for
re-transmission to the new office.
[59] Ms. Ferreira also identified original handwriting on the back of one
page of the documents that she located, as that of her boss. This handwriting
was on the back of a separate report that is often received with the
Significant Seizure Report. It appears to be instructions that an e-mail be
sent to the Flexible Response Team Supervisor. The text of the proposed
message is scribbled, thanking the proposed recipient of the message for
forwarding the Significant Seizure Report for this seizure, but noting that it
was sent to the old office, and asking the proposed recipient to remind her
“crew” of the new fax number. In my view the fact that these instructions were
given is circumstantial evidence of the fact that the Significant Seizure
Report was not recently fabricated as alleged by the accused.
[60] Counsel for the accused pointed out that the copies of the documents
he received did not have all of the fax scripts on them and submitted this
suggested something sinister in nature. Crown counsel explained that due to
the late disclosure issues he invited counsel for the accused to the Crown’s office
to review all documents in the file. When he personally copied some documents
at the request of counsel, he believes he inadvertently placed the documents on
the photocopier in such a way that the fax scripts were not copied. These
scripts are located on the very edge at the top and bottom of the documents.
Counsel for the accused accepted this explanation, although he remained
understandably concerned about the late disclosure.
[61] I have scrutinized all of the evidence in relation to the
Significant Seizure Report, including the evidence of another customs
inspector, Grace Rappoli, who was involved in the retrieval of the report and
gave further explanations of various fax scripts that appear on the documents.
Based on all of this evidence I am satisfied that the evidence establishes that
the Significant Seizure Report is authentic and was prepared in March of 2001.
As a result of mishap and error it was not disclosed as it should have been,
and this has fuelled the concerns of the accused, and understandably so.
However, having reached this finding, I conclude that the report substantially
confirms the evidence that was given by Inspector Boon in relation to Mirabel
Travel. It also confirms that Inspector Boon relied on the other indicators
which she testified she relied upon, and upon which she was challenged by the
defence. The report rebuts the allegation of recent fabrication. I therefore
accept Inspector Boon’s evidence on these points.
[62] There is also a notation on the Significant Seizure Report that the
accused told Inspector Boon she was visiting family in Jamaica. This is
significant because Inspector Boon maintains that she thought it was odd that
the accused stayed in a guest house when she was visiting family. However, her
notes contain no reference to being told by the accused that she was visiting
family. This was raised in challenge to Inspector Boon’s evidence in
cross-examination. This notation is also significant because the accused
testified that she did not have family in Jamaica and that she told the
inspectors she had taken her son to Jamaica for March break.
[63] My conclusions undermine the accused’s arguments in relation to
Mirabel Travel and the other indicators. I turn now to the second point in
relation to the CPIC check.
[64] During argument I pressed counsel for the accused to make clear to
me the significance of this point. In response counsel submitted the following
chain of reasoning. Inspector Boon had decided to refer the accused to
secondary on the basis of racial profiling. She expected to find drugs. After
she had searched two of the accused’s bags she had found none. Therefore,
Inspector Boon did a CPIC check to look for a criminal history or find some
other validation for her original thought, based on race, that she would find
contraband. Her denial that she did a CPIC check, when a synopsis prepared by
Cst. Saleh shows she did, is evidence of this theory. When the CPIC check did
not bear fruit this led Inspector Boon to take the accused’s third suitcase
away and plant shoes containing drugs in the suitcase. Counsel argued this
occurred because it is human nature that Inspector Boon would not want to have
been proven wrong.
[65] I must say I have some difficulty with this as a persuasive chain of
reasoning. I also conclude that the argument is not borne out by the evidence.
[66] It is very clear from a review of the evidence that Inspector Boon
has never denied doing a CPIC check. When cross-examined repeatedly on this
point, she said over and over that she may have done a CPIC check, or she may
have gotten someone else to do it – she could not recall. This undermines the
argument advanced, which depends upon the notion that Inspector Boon denied
doing the CPIC check to support the inference of impropriety.
[67] Cst. Saleh of the R.C.M.P. arrived at the airport after being called
by Inspector Boon. He was briefed by Inspector Boon and made notes of the
briefing. He was cross-examined on a synopsis which he prepared in which he
recorded that a CPIC check had been done. This information was given to him by
Inspector Boon.
[68] The synopsis prepared by Cst Saleh is attached to the Notice of
Motion filed by counsel for the accused. That synopsis offers further support
for Inspector Boon’s evidence that there were a number of indicators that she
relied upon. The synopsis mentions that Inspector Boon reported that she found
it odd that the ticket was issued just days before departure “from Mirabel”.
Cst. Saleh confirmed in testimony that he was aware of drug seizures from
travellers with tickets purchased from Mirabel Travel. The synopsis also
confirms that Inspector Boon reported to Constable Saleh that she found it odd
that the accused stayed in a guest house.
[69] The accused also submits that I should disbelieve the evidence of
the inspectors because Inspector Soifer denied that the flight from Jamaica was
targeted, whereas Inspector Boon testified that it had been pre-selected to
receive “roving” attention from the Flexible Response Team. I simply note that
Inspector Soifer was not on the Flexible Response Team. She was working at a
primary inspection booth. There is no evidence that she would be aware of the
pre-selection of flights by the Flexible Response Team. Inspector Boon
testified that the flight the accused was on was well known to her team and
that they had a lot of drug seizures from passengers arriving from Jamaica.
There is also evidence that the primary inspector has no means of communicating
with the customs inspectors in the secondary inspection area.
[70] Looking at all of the evidence, I conclude that Inspector Soifer and
Inspector Boon made independent determinations to send the accused for
secondary customs inspection. They did so on the basis of the indicators to
which they testified. There is no direct evidence of racial profiling and no
circumstantial evidence of racial profiling. There is evidence, which I
accept, that the indicators which were utilized have been associated with drug
seizures in the past. Those indicators were listed on the Significant Seizure
Report which I am satisfied was prepared in March, 2001.
[71] The evidence of the accused is seriously at odds with the customs
inspectors. Some of those disputes are for the jury. However, I have taken
the evidence of the accused into account. I note that on some matters she was
very uncertain. Initially she suggested that she may have been in Jamaica for
two weeks rather than one week, and she initially testified that her son was
eight at the time and not six years of age, as he was. Not surprisingly, the
accused has no notes of her conversations. On the other hand, documents and
reports prepared independently at the time support the evidence of Inspectors
Soifer and Boon as to the contents of their independent conversations with the
accused, and the concerns that led them each to refer Ms. Smith for secondary
inspection.
Conclusion
[72] The accused has not met the burden of establishing racial profiling
as a basis for a finding that the Charter has been breached. For all of
the foregoing reasons the application is dismissed.
___________________________
Dawson J.
Released: December 7, 2004