Davis v Canada Border Services Agency

Background

The complainant, Ms. Teiohontathe Fallan Davis, is a young Mohawk woman who lives on the Akwesasne Reserve located on Cornwall Island, Ontario. The incident giving rise to the complaint occurred in November 2005 when the complainant was questioned by CBSA officers upon returning from the United States by way of the border crossing at Cornwall Island. The complainant alleged that she was stopped without warning and forced to stand outside her vehicle, without a coat, in -6 degree weather for a period of 45 minutes. She also alleged that CBSA officers behaved in a racist and inappropriate manner towards her and “her Onkwehonwe Aboriginal identity was violated”. The CBSA claimed that the complainant’s vehicle was selected and scanned as part of a special operation to check whether certain vehicles contained secret compartments that could be used to move drugs, weapons or other contraband goods. As a result of interactions between the complainant and CBSA officers and staff, the officers eventually left the border crossing facility and the border crossing was closed down.

Conflicting testimony

The complainant was 23 years old at the time of the incident. She said that she crossed the Cornwall Island border crossing as often as ten times a day using a lane dedicated to local Aboriginal residents, but on this particular day she was summoned by CBSA officers to pull over to a lane normally reserved for commercial transport vehicles so they could scan her vehicle. The complainant said she was fearful in this unusual situation and called her grandmother to inform her as to what was happening. There was also a warning sign that said “danger radiation” and the complainant indicated to the officers that she was worried about this. The complainant was pregnant at the time, although she admitted that she did not mention this to anyone at the border crossing at the time of the incident.

The complainant alleged that she was instructed by a CBSA officer to stand in a designated secure area and was denied permission to wait inside the border crossing facility so that she could warm up while her vehicle was being scanned. She told the CBSA officer that her grandmother had asked an Akwesasne elder to bring her a blanket so that she could warm up and began to cry at this point. When she asked the officers what they were looking for, they allegedly responded “everything and nothing” and told her that she definitely seemed to be guilty of something.

The complainant alleged that one of the officers asked her if she was moving contraband cigarettes and stated that in his opinion the inspection would probably result in the discovery of contraband cigarettes. An officer also allegedly laughed at her and mocked her when she advised them that she worked in a shop in the United States. The complainant allegedly told an officer that they were on her land and the officer responded “do you know what our society thinks of you?” in reference to the Aboriginal community on Cornwall Island and stated that he was on Canada Customs’ property. The complainant further alleged that when an Akwesasne elder arrived at the border crossing one of the officers was very rude to him, asking him to stand aside. Another officer asked the complainant to go inside the main building at the border crossing to pay taxes on items she had purchased in the United States and failed to declare. The complainant allegedly began to hyperventilate and cry when she got inside the building and met with the superintendent of the border crossing.

The CBSA officers who conducted the inspection, on the other hand, alleged that the complainant was rude and cursed at them during their interactions, using inappropriate and vulgar language. While one of the officers admitted to asking the complainant if she had a job without providing justification for this question, he denied asking her “do you know what our society thinks of you?” in response to her assertion that the border crossing was on her land. The officers also denied refusing to let the complainant go inside to warm up during the inspection.

The superintendent who spoke to the complainant about taxes when she entered the main building stated that the complainant claimed she did not have to pay taxes and advised him that she was going to call the Mohawk Warrior Society. He testified that he advised her of the specific requirements for importation of goods by Akwesasne residents but he contacted his direct supervisor in Ottawa who authorized him to let the complainant leave the premises without paying the applicable taxes.

Tribunal’s decision

The Tribunal did not find that the complainant had been personally targeted by CBSA officers for inspection and it questioned whether she had behaved appropriately when using foul language in addressing the officers. The Tribunal also found the conduct of some of the officers involved to be professional if not exemplary in the face of the complainant’s attitude, which it found to be “aggressive, disrespectful, defiant and finally, assertive of her rights as an Aboriginal person who resides on Cornwall Island”. There was testimony from CBSA staff that the complainant was known to border crossing staff as being “unpleasant” and “arrogant”, that she had been critical of the border crossing in the past, and that she had even threatened to “blow the border crossing up” on one previous occasion. The Tribunal also found several inaccuracies, “implausibilities” or even exaggerations in the complainant’s testimony and held that she “directly invoked her Aboriginal identity and used it to provoke [one of the CBSA officers]”.

At the same time, the Tribunal found one of the CBSA officers had in fact made comments directed towards the complainant that constituted discrimination based on her identity as an Aboriginal person. The officer was found to have overreacted to the complainant’s provocations by raising his voice and responding in a manner “that was marked by racist stereotyping toward [her]”, noting in particular his question with respect to what kind of job the complainant could hold down that had no apparent justification. The Tribunal found that the officer’s conduct had not met the Code of Ethics and Conduct he was bound by, although it acknowledged that its jurisdiction did not extend to analyzing a breach of this document.

The Human Rights Commission, acting on the complainant’s behalf, had also suggested that the Cornwall Island border crossing was closed following the incident as a result of the complainant saying that she would call on the Mohawk Warrior Society, and argued that this was another indication of racial stereotyping linking Aboriginal people to violence. However, the Tribunal found insufficient evidence to consider on this issue.