Racial Profiling by Customs Agents May Constitute Charter Violation

Police Powers

Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton

Facts: The accused, a black woman, arrived at Pearson Airport on a flight to Toronto from Jamaica. At the primary customs inspection point, she was referred by a Canada Border Service Agency (”CBSA”) agent for secondary inspection. A search of her luggage resulted in the discovery of a quantity of cocaine. She was arrested.

At the preliminary hearing, the agent at primary inspection who decided to send the accused for secondary inspection testified that she did so based on the following indicators: the accused was arriving from a drug source country; she had a cash paid ticket; it was a third party ticket; the accused was unemployed; her voice was trembling; she made no eye contact; and she voluntarily wanted to show the agent a funeral memorial/invitation card. The agent who conducted a personal search of the accused after arrest testified that agents are given information about trends in regard to countries from where drugs are coming. She said that when she worked secondary inspection, she often searched white travellers coming from Jamaica. She said that agents are trained to treat everyone the same, and she had not observed any differences in the numbers of black and white passengers coming from Jamaica with respect to referral for secondary inspection. She said that when questioning a traveller, agents look for indicators suggesting things that are out of the norm.

At trial, the accused alleged that the decision to refer her to secondary inspection was a matter of racial profiling, and violated her Charter rights. She brought a third party records application, relying on the evidence at the preliminary inquiry as suggesting that her race and place of origin played a role in her being singled out for a secondary search. She sought CBSA training materials/documents/videos on racial profiling and/or anti-discrimination, with respect to how grounds are formulated to send individuals entering Canada for secondary inspection.

Held: Application dismissed. The materials sought were not “likely relevant” to an issue at trial.

The trial judge relied on the definition of racial profiling in R. v. Richards (1999), 26 C.R. (5th) 286, 1999 CarswellOnt 1196 (C.A.), at para. 24. There the court described racial profiling as “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.”

The trial judge noted that he was not aware of any appellate court decision on the issue of racial profiling and a traveller’s referral to secondary inspection. He accepted, for the purpose of the application, that if racial profiling can be established as the reason for sending a traveller to secondary inspection, that person’s Charter rights may have been violated.

He found, however, that there was no evidence, direct or indirect, to conclude or even suspect that racial profiling and/or discrimination were factors in directing the accused to secondary inspection. The fact that the accused was travelling from Jamaica and that it is considered a drug source country was only one of a number of indicators. On its own, it fell well short of evidence of racial profiling. The disclosure sought by the defence was not likely relevant. The trial judge concluded that the application was a fishing expedition.

Commentary: The trial judge adverted to several decisions of trial courts where it has been accepted that if racial profiling was a factor in a decision to refer an accused for secondary inspection, there is a breach of s. 7 of the Charter, because racial profiling contravenes the principles of fundamental justice. He noted, however, that the Supreme Court of Canada held in R. v. Simmons, [1988] 2 S.C.R. 495, 1988 CarswellOnt 91 that routine questioning or routine luggage searches conducted on a random basis by customs officials at the border do not constitute detention, and that there is a lower reasonable expectation of privacy at customs, such that ss. 9 and 8 of the Charter are not breached by such activity.

R. v. Simpson, 2017 ONSC 491, 2017 CarswellOnt 756 (Ont. S.C.J.)