Docket: A-69-14
Citation:
2014 FCA 220
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CORAM:
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NADON J.A.
WEBB J.A.
SCOTT J.A.
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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TING TING TAM
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on September
30, 2014).
NADON J.A.
[1]
On November 7, 2012, the respondent, coming from
China, entered Canada at the MacDonald-Cartier International Airport in Ottawa.
[2]
She was asked by an officer of the Canada Border
Services Agency (CBSA) whether she was bringing into Canada any food items,
plants/vegetation, candies or anything edible.
[3]
Her answer to the question was no.
[4]
Because of her demeanour and her answers to his
questions, the officer referred her to another officer for a secondary
examination.
[5]
The inspection conducted by this second officer
revealed that the respondent was importing into Canada assorted pork products
which she had purchased in China.
[6]
As a result, the respondent was issued a Notice
of Violation with a penalty of $800.00.
[7]
On December 4, 2012, the respondent filed a
request for review and on December 24, 2013 the Canada Agricultural Review
Tribunal (the Tribunal) determined that Notice of Violation YOW-12-071 of
November 7, 2012 was a nullity and that consequently the respondent was not
liable to pay the penalty imposed by the CBSA.
[8]
The Tribunal so held because of its view that
the first officer’s decision to refer the respondent to a secondary examination
constituted a discriminatory practice, i.e. racial profiling.
[9]
More particularly, the Tribunal relied on the
following words from the first officer’s statement to support its view of
racial profiling (para. 6 v)):
…
That I asked her this 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 to bring agricultural products
with them.
…
[10]
In our view, the Tribunal’s decision cannot
stand.
[11]
First, it is clear that the respondent did bring
into Canada pork products which she failed to declare upon entry.
[12]
Second, the Tribunal failed to examine the whole
of the evidence surrounding the first officer’s decision to refer the
respondent to secondary examination. More particularly, it failed to consider
that the officer not only considered his experience in making his decision but
that he made his decision based on the respondent’s demeanour and the manner in
which she answered its questions. The full text of the officer’s statement
reads as follows.
…
That I specifically asked her if she had any
food items, plants/vegetation, candies or anything edible.
That she told me that she did not have any food
or agricultural products in her bags.
That I asked her this 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 to bring agricultural
products with them.
That I noticed that the manner in which she
responded to the question regarding the importation of food products was more
sharp, and quick then the other questions I had previously asked her. She
appeared nervous. I even asked her again about food, at which point I was
convinced that she was importing food or agricultural items.
…
[13]
Third, 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.
[14]
Fourth, officers on the front line, such as the
first officer herein, cannot be expected to leave their experience, acquired
usually after many years of observing people from different countries entering Canada, at home or at a place far removed from their place of work.
[15]
To find, as the Tribunal did in this case, that
the first officer had exercised racial profiling and that to not declare the
Notice of Violation a nullity would tend to bring the system of justice into
disrepute is, in our respectful opinion, a view which is unsupportable in the
circumstances of this case and is therefore totally devoid of merit.
[16]
For these reasons, the judicial review
application will be allowed, the decision of the Tribunal will be set aside and
the matter will be returned to the Tribunal for reconsideration, in the light
of these reasons, of whether the respondent committed the violation and whether
the amount of the penalty is established.
“Marc Nadon”
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