CITATION: R. v. Simpson, 2017 ONSC 491
COURT FILE NO.: CRIMJ(F) CR-16-1852-00
DATE: 2017 01 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
KAREN SIMPSON
Applicant
COUNSEL: O. Melnik, for the Crown E. Guiste, for the Applicant I. Thompson, for the Third Party Respondent Canada Border Services Agency
HEARD: January 17, 2017
RULING ON A THIRD PARTY RECORDS APPLICATION
Justice Thomas A. Bielby
[1] The applicant/accused, Karen Simpson, has before the Court an application for third party records. She seeks an order that the Canada Border Services Agency (CBSA) produce their training materials/documents/videos on racial profiling and/or anti-discrimination in regards to how grounds are formulated to send individuals entering Canada for secondary inspection.
[2] The applicant filed both a written application record and a factum. Other than a book of authorities there were no filings on behalf of the Crown or the third party, CBSA.
[3] On Monday, November 18, 2014, the applicant arrived at the Pearson Airport, on a flight from Jamaica. At the primary custom’s inspection point, the applicant was referred by a CBSA agent for secondary inspection. A search of her luggage allegedly discovered a quantity of cocaine. The applicant was arrested.
[4] Counsel for the applicant submits that the decision to refer his client to secondary was a matter of racial profiling. The applicant is black and was travelling to Toronto from Jamaica. It is submitted therefore that the decision to send the applicant for a secondary inspection violated her Charter rights.
[5] The law in regards to the procedure to be followed for third party records disclosure is set out in R. v. O’Connor (1995) 1995 CanLII 51 (SCC), 44 C.R. (4th) 1 (SCC). The case attempts to strike a balance between an accused’s right to full answer and defence and a third party’s right to privacy.
[6] The Court in O’Connor set out a two-step procedure. In step one an accused must establish that the disclosure sought is “likely to be relevant”. As noted in the text, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc. 2015 ) by D.M. Paciocco and L. Struesser, at page 263, “This threshold of proof was termed ‘significant’ but not onerous. The relevance threshold at this stage was set simply to prevent the defence from engaging in speculative fishing expeditions.”
[7] If the disclosure sought is deemed “likely to be relevant”, as a second step, it is produced for the judge to review and determine what is to be disclosed, based on relevance.
[8] Counsel for the applicant submits that the third party material requested is likely to be relevant to the defence argument that the decision to send the applicant for secondary inspection was a matter of racial profiling.
[9] The applicant relies on three sources of evidence to establish that the disclosure sought is, “likely to be relevant”.
[10] Attached to the application record is the affidavit of Zelda Bernardo, sworn December 15, 2016. Ms. Bernardo deposes that she assists defence counsel, Mr. Guiste, with his clerical and trial preparation work.
[11] In that affidavit she reiterates what she was told by defence counsel. She deposes that she was told by Mr. Guiste that he believes, based on some of the evidence at the preliminary hearing, the applicant was subjected to an unreasonable search in breach of her Charter rights on account of her race and place of origin, Jamaica. Further, Ms. Bernardo deposes that she was told by Mr. Guiste, that CBSA staff employ irrelevant considerations such as race and place of origin as criteria to subject persons to secondary inspection.
[12] This affidavit cannot be given any weight in this application. It is hearsay without any evidentiary value. It contains nothing but allegations. It lacks any substantive facts.
[13] Counsel for the applicant also relies on the narrative report of CBSA Officer Tankus who was the CBSA agent at primary inspection who determined that the applicant was to be sent for secondary inspection. In that report Officer Tankus states that she asked the applicant where she was arriving from and the answer, Jamaica, was given. The officer decided to code the applicant’s Custom’s Declaration Form, to indicate a referral to secondary based on the following indicators:
- arriving from a drug source country
- cash paid ticket
- third party ticket
- unemployed
- voice trembling
- no eye contact, and
- voluntarily wanted to show me the funeral’s memorial/invitation card
[14] From that list of indicators or descriptors counsel for the applicant submits that the reference, “from a drug source country” is evidence of racial profiling given that Jamaica is the applicant’s country of origin and the country from which she was travelling.
[15] The third source of evidence referenced by counsel and provided to the court is the Discovery Transcript of CBSA Officer Jennifer-Lynn Cowell, who was examined on September 19, 2016. After the applicant was arrested this officer had her initial contact with the applicant and was tasked with conducting a section 98 examination, that is, a personal search.
[16] At page 16 of the transcript, counsel for the applicant commences his cross-examination and asks Officer Cowell questions in regards to her training on the subject of racial profiling.
[17] In the transcript counsel makes it clear that he believes his client was targeted because she was black and came from Jamaica.
[18] The officer responds that they (CBSA agents) are trained to treat everyone the same.
[19] The officer testified that certain countries are identified as countries, “where drugs come from”. She explained that they are given information on trends in regards to countries with ‘drugs coming out of them”. The officer provides examples of Columbia, Thailand, Jamaica, Mexico and states that Canada is also a source country, although she opines, cocaine is mostly from Jamaica and Columbia. She then states that anywhere in South American is known to be a high cocaine source.
[20] In response to further questioning the officer states that in her experience working secondary inspection she often searched white travellers coming from Jamaica. She denied observing any differences in the numbers of black and white passengers coming from Jamaica in regards to who is selected for a secondary inspection.
[21] Officer Cowell acknowledged that when questioning a traveller they are looking for indicators suggesting things that are, out of the norm.
[22] No further evidence was presented on this application.
[23] In his factum counsel for the applicant submits that evidence received at the preliminary inquiry from CBSA staff tends to suggest that the applicant’s race and place of origin played a role in her being singled out for a secondary search.
[24] However, having reviewed these three sources of evidence place before me by defence counsel, there is absolutely no evidence, whether direct or indirect, to conclude or even suspect that racial profiling and/or discrimination were factors in directing the applicant to secondary inspection. There is no reference to race. The fact that Jamaica is considered a drug source country is not, in and of itself, an indicator of profiling. On an application for third party records, the burden of proof to establish the evidence is “likely to be relevant” is that of the applicant. There is no evidence to contradict the testimony on discovery that Jamaica is a drug source country, a fact that, in the circumstances, falls well short of racial profiling.
[25] There is nothing of significance to establish, directly or indirectly, that racial profiling was a factor in sending the applicant for secondary inspection.
[26] The allegations of counsel for the applicant do not change this conclusion.
[27] A mere allegation by counsel of discrimination and/or racial profiling falls well short of establishing the disclosure sought is likely relevant.
[28] One of the decisions I have reviewed is R. v. Smith 2004 CanLII 46666, a decision of Dawson J. of this court. I discuss the case in more depth further on in my reasons but want to refer to his reference, in paragraph 14 to, R. v. Richards (1999) 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286 (Ont. C.A.). The Richards case, at paragraph 24 reads,
“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 of 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 proceeding of an entire racial group.”
[29] There is nothing before me to suggest directly or indirectly that the criminal activity of importing cocaine is attributable to an identifiable racial group.
[30] The application before me is a fishing expedition; an attempt to find some evidence of bias towards a particular racial group and their place of origin, without any foundation to persuade me that the material sought is likely to be relevant.
[31] I want to address another point of argument or consideration. R. v. Simmons 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, 45 C.C.C. (3d) 296, is a seminal case in regards to border searches. As the material before me was short on legal authority, I brought this case to the attention of the applicant’s counsel and questioned him on its applicability to the issue before me.
[32] The day after argument was heard, I received a letter from counsel for the applicant citing 4 cases which he felt were germane to a discussion of the Simmons case. I have read and considered these cases.
[33] In the Simmons case, the decision of the majority was written by Chief Justice Dickson. From paragraph 30 I quote,
“It is, I think, of importance that the cases and literature seem to recognize three distinct types of border search. First is the routine of questioning, which every traveller undergoes at a port of entry, accompanied by in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada, and no constitutional issues are raised. It would be absurd to suggest that a person, in such circumstances is “detained” in a constitutional sense, and therefore entitled to be advised of her right to counsel.”
[34] Officers of the CBSA are entitled as a matter of routine to question person arriving in Canada from other countries and search their luggage.
[35] As noted at paragraph 39 of Simmons, “I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis, do not constitute detention for the purposes of section 10.”
[36] At paragraph 52, the Supreme Court acknowledges that the degree of personal privacy reasonably expected at customs is lower than in most other situations.
[37] This authority raises the following questions. Did the applicant have any Charter rights that could have been violated by her being directed to secondary inspection? If the answer is no, then how is the disclosure sought likely to be relevant?
[38] Two of the authorities provided by counsel for the applicant stand for the proposition that if the decision to send a traveller to secondary inspection is a result of racial profiling, then his or her Charter rights are violated, tainting any evidence collected as part of a secondary inspection search.
[39] The facts in the Smith case are similar to the facts before me. The accused had arrived on a flight from Jamaica and it was alleged that cocaine was found in her suitcase and her shoes. The accused was black, originated from Jamaica but was a Canadian citizen.
[40] The accused alleged that the decision to select her for secondary inspection was an exercise in racial profiling. The issue was the subject of a voir dire in which viva voce evidence was called and witnesses subjected to cross-examination. The CBSA officers who testified gave evidence as to indicators they look for in deciding whether a traveller, arriving from outside of Canada, should be directed to secondary inspection.
[41] Dawson J., in the Smith case, makes reference to the line of cases which include the Simmons case. From paragraph 28, I quote,
“…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.”
[42] It was noted by Dawson J. that while the Supreme Court of Canada had limited the constitutional considerations that arise as a result of routine custom inspections (para. 45), they did not deal with the issue of racial profiling (para. 34). He concluded that these authorities do not mean that a Charter remedy is not available when racial profiling occurs in a border crossing context (para. 29).
[43] It is to be noted that in the Smith case, the Crown conceded that s. 7 of the Charter was breached, if there was a finding that racial profiling was a factor in the decision to refer an accused for secondary inspection.
[44] Justice Dawson opined that racial profiling will always contravene the principle of fundamental justice (para. 35).
[45] Dawson J. went on to consider the credibility of the officer who testified before him. He opined that the indicators used to have the accused directed to secondary had some objective validity and concluded there was no direct evidence or circumstantial evidence of racial profiling.
[46] I am not aware of any appellant court decision on the issue of racial profiling and a person’s referral to secondary inspection. However, in my consideration of this third party record application I will accept the principle of law that, despite the line of authorities as represented by R. v. Simmons, if racial profiling can be established as the reason for sending someone to secondary inspection, that person’s Charter rights may have been violated.
[47] Accordingly, if there was any evidence, whether direct or indirect of racial profiling, the third party records sought may likely be relevant.
[48] However, as noted there is no such evidence direct or circumstantial. The fact that the applicant was travelling from Jamaica was only one of a number of indicators and on its own would, in these circumstances, fall well short of giving rise to evidence of racial profiling.
[49] R. v. Neyazi 2014 ONSC 6838 is another one of the cases sent to me by counsel for the applicant. In that case the accused was charged with possession for the purpose of trafficking. While travelling domestically, his luggage was searched and drugs were found. The accused was of Middle Eastern decent and alleged a breach of Charter rights and calling into question the admissibility of the evidence seized.
[50] The court did consider the Simmons decision and other authorities of the same vein. It went on to discuss racial profiling and considered the Smith decision. From paragraph 180 I quote,
“A distinction exists between racial profiling and the use of race as an accurate descriptor. The former will always be repugnant and contravene the principles of fundamental justice; however, the latter may, in certain contexts, be used legitimately to differentiate individuals or groups.”
[51] I have also reviewed the cases, R. v. Herman 2016 BCSC 1858, and my own decision in R. v. Obasi 2012 ONSC 6824. I find neither of assistance to me.
[52] In conclusion, while evidence of racial profiling may result in a Charter violation, the evidentiary record before me falls well short of establishing any kind of case for racial profiling and as a result the disclosure sought is not likely to be relevant.
[53] The third party records application is dismissed.
Bielby J.
Released: January 20, 2017
CITATION: R. v. Simpson, 2017 ONSC 491
COURT FILE NO.: CRIMJ(F) CR-16-1852-00
DATE: 2017 01 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KAREN SIMPSON
REASONS FOR JUDGMENT
Bielby J.
Released: January 20, 2017