http://news.nationalpost.com/2014/1...customs-officers-on-the-job-experience-court/
Airport search not racial profiling when based on customs officers’ on-the-job experience: court
Andrew Duffy, Postmedia News | October 14, 2014 | Last Updated: Oct 14 8:56 PM ET
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Gerry Kahrmann/Postmedia News/FileCanadian customs officers “cannot be expected to leave their experience ... at home” when it comes to deciding who to search, an appeals court judge ruled Tuesday.
OTTAWA — Customs officers are not guilty of racial profiling when they use on-the-job experience to decide who to stop and search at Canada’s airports, the Federal Court of Appeal has ruled.
“Officers on the front line, such as the officer herein, cannot be expected to leave their experience — acquired usually after many years of observing people from different countries entering Canada — at home,” Justice Marc Nadon said, writing on behalf of a three-person appeal panel.
Justice Nadon made the comment in overturning a tribunal decision that quashed an $800 fine imposed against an Ottawa woman, Ting Ting Tam, who failed to declare some pork rolls in her luggage.
The Canada Agricultural Review Tribunal ruled last year that Ms. Tam had been the victim of racial profiling by a Canada Border Services Agency customs officer at the Macdonald-Cartier International Airport.
Ms. Tam, 72, a retired hairdresser, returned to Ottawa after visiting family in China on Nov. 7, 2012. She presented a customs officer with a declaration card, stating that she was not bringing meat or meat products into the country.
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The customs officer twice asked her whether she had food, plants, candies or anything edible in her bags. Both times Ms. Tam said she did not having anything of the sort.
He asked those questions, the customs officer said in a report, “because it has been my experience working in the air mode stream that it is more than common that individuals of Chinese origin returning from China bring agricultural products with them.”
The customs officer said the woman appeared nervous when he asked her about importing food so he sent her for a secondary inspection.
That inspection found that Ms. Tam had “assorted pork products” from China in her luggage. She was fined $800 under a federal law that governs the health of animals.
Ms. Tam, a widow living on a small pension, speaks limited English so a friend, Tony Fan, took up her case and appealed the fine to the Canada Agricultural Review Tribunal.
In an interview, Mr. Fan said his friend had bought some pork rolls — about $5 worth of snack food — while in the Hong Kong airport, but failed to eat them before landing in Canada. She had been without her blood pressure medication and was feeling a bit confused and sick when she went through customs, he said.
“If she ate it, nothing would have happened,” he said. “She didn’t deserve a fine.”
The agricultural review tribunal concluded Ms. Tam was unfairly targeted because of the customs officer’s expressed belief that Chinese people were more likely to smuggle food into the country.
‘The officer’s hunch, based on his experience and his observance of the respondent’s demeanour, was confirmed by the secondary examination’
The presiding member, Ottawa lawyer Bruce La Rochelle, ruled that Ms. Tam’s secondary inspection came as the result of “an irrelevant consideration: Ms. Tam’s race.”
Mr. La Rochelle said the officer’s own statement provided direct evidence of racial profiling and quashed the $800 fine.
“There is no evidence that he conducted himself otherwise than in what he genuinely believed to be an appropriate manner,” Mr. La Rochelle wrote. “However, as superior courts have noted … racial profiling is not necessarily conscious behaviour.”
The federal government appealed that ruling, and in a decision released Tuesday, the Federal Court of Appeal rejected the tribunal’s reasoning.
The appeal court panel said the tribunal failed to consider the fact that the customs officer made his decision based both on Ms. Tam’s interview demeanour and on his own experience.
Writing for the panel, Justice Nadon said there was no evidence of racial profiling.
“The officer simply asserted in his statement that in his experience it was not uncommon for Chinese persons to bring agricultural products with them upon returning from China. The officer’s hunch, based on his experience and his observance of the respondent’s demeanour, was confirmed by the secondary examination.”
It was “totally devoid of merit,” he said, to find that the officer had engaged in racial profiling.
The decision represents an important development in the law that surrounds racial profiling because the Federal Court of Appeal is among the nation’s highest.
The Supreme Court of Canada has yet to hear a case that speaks directly to the issue.
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