Davis v. Canada Border Services Agency

Davis v. Canada Border Services Agency
Collection
Canadian Human Rights Tribunal
Date
2014-12-09
Neutral citation
2014 CHRT 34
File number(s)
T1342/7208
Decision-maker(s)
Malo, Robert
Decision type
Decision
Decision status
Final
Grounds
Age
Race
Sex
Decision Content
Between:
Fallan Davis
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Border Services Agency
Respondent
Decision
File No.: T1342/7208
Member: Robert Malo
Date: December 9, 2014
Citation: 2014 CHRT 34
Table of Contents
Page
I............. Background. 1
II........... Facts. 2
A........... Complainant’s Evidence. 2
B........... Respondent’s cross-examination. 7
C........... Other witnesses who have evidence on behalf of the Complainant 12
D........... The closing of the border crossing. 14
E........... Respondent’s evidence. 16
III......... Analysis. 27
A........... General principles of discrimination. 27
B........... Analysis of the facts. 34
IV......... Conclusion. 47
A........... Remedies with respect to the Complainant 47
B........... Remedies sought by the Commission. 48
I. Background [1] The Complainant, Ms. Fallan Davis, in a complaint dated November 24, 2006, to the Canadian Human Rights Commission (Commission), is asking that certain actions on the part of the representatives of the Respondent, namely, the Canada Border Services Agency (Respondent), be declared discriminatory on the basis of her race, age and sex, in violation of section 5 of the Canadian Human Rights Act (Act).
[2] In that regard, certain incidents are alleged to have occurred on November 18, 2005, at the time the Complainant was questioned by officers of the Respondent upon returning from the United States by way of the Respondent’s border crossing at Cornwall Island, Ontario.
[3] The Complainant indicates in her complaint that she was allegedly stopped without warning and forced to stand outside her vehicle, without a coat, in the cold for a period of forty-five minutes.
[4] She further mentions in her complaint that the officers on duty that day, who were part of the special unit known as Vehicule And Cargo Inspection System (VACIS), purportedly behaved in a racist and inappropriate manner with her.
[5] In particular, she states that her Onkwehonwe Aboriginal identity was violated by the actions of the Respondent’s officers.
[6] In its response, the Respondent claims that the entire operation was part of a special operation that was being carried out at that time at the Respondent’s border crossing on Cornwall Island, Ontario, in order to proceed with the verification of vehicles such as the one driven by the Complainant. The purpose of this operation was to check whether these vehicles contained secret compartments that could be used to move drugs, weapons or other contraband goods.
[7] The operation conducted by the Respondent’s officers on November 18, 2005, was apparently ordered by one of the Respondent’s “Intelligence” officers working on Cornwall Island and required the presence of the VACIS team in order to proceed with the inspection of vehicles by scanner. This operation included inspections of vehicles such as SUVs, mini-vans, truck-trailers and other non-commercial vehicles.
[8] According to the evidence heard before the Tribunal, it is therefore necessary to examine the behaviour of both the Complainant and the Respondent’s representatives and verify whether the actions of the Respondent’s representatives towards the Complainant provide a basis for the Complainant’s complaint, as described above.
[9] As this decision shall set out, it is my intention to uphold the Complainant’s complaint.
II. Facts A. Complainant’s Evidence [10] On November 18, 2005, at approximately 10:30 in the morning, when the Complainant was going through the border crossing at Cornwall Island, Ontario, upon returning from the United States, she was instructed to pull over by officers of the Respondent in order to carry out an examination of her vehicle by scanner.
[11] The Complainant told the Tribunal that, at the entrance to the border crossing, she normally uses the lane that is specifically reserved for Aboriginal residents of Cornwall Island. Before reaching her lane, she was summoned by the Respondent’s officers to pull over to the lane normally used by commercial transport vehicles.
[12] She further indicated to the Tribunal that she used the Cornwall Island border crossing daily, sometimes as often as ten times a day.
[13] In addition, she told the Tribunal that November 18, 2005 had been a sunny day, but that it had been cold, about minus 6 degrees Celsius.
[14] At the time she was pulled over, the Complainant indicated to the Tribunal that she recognized the first officer, namely, Officer Derek O’Brien. He asked her whether she had any contraband cigarettes, alcohol, firearms or other goods, to which she responded in the negative to all of the questions. She then provided her driver’s licence to Officer O’Brien.
[15] Following the instructions of Officer O’Brien, she then drove her vehicle towards the lane normally reserved for commercial vehicles located behind the commercial building, where the VACIS unit was located, in order for her vehicle to be examined by scanner.
[16] As the Complainant had never been behind this commercial building before, she was fearful in this unusual situation that she had not experienced before. She pointed out to the Tribunal that she was only 23 years old at the time.
[17] Once she was at the back of the commercial building, she was then questioned by a second officer of the Respondent. She indicated to the Tribunal that she decided to call her grandmother in order to inform her of the situation, which was becoming worrisome to her.
[18] According to the instructions of this second officer, she was apparently told to drive towards a truck and exit her vehicle. It was at that moment that she noticed a large white truck, outside of which was an arm-like appendage. She also noticed stop signs with disproportionately large lettering, on one of which was written “danger radiation”.
[19] At the time of the facts in this case, the Complainant was driving a black DENALI GMC with Ontario licence plates.
[20] Following the instructions of this second officer, the Complainant moved her vehicle towards the white truck in question and exited her vehicle in order to stand in the area in which she had been instructed to remain.
[21] When she exited her vehicle, a third officer of the Respondent approached her and instructed her to remain in a specifically designated secure area.
[22] She indicated to the Tribunal that this was when she began to curse at this third officer while jumping up and down to try and warm herself up a bit. She then told the Tribunal that she asked this third officer to give her back her identification documents, to which he reportedly replied that he would return her identification documents to her once the scanning operations had been completed.
[23] The Complainant indicated that she asked for permission to wait inside the Respondent’s border crossing facility to warm herself up while her vehicle was being scanned.
[24] Such permission was denied to her by this third officer, who allegedly told her to remain where she was.
[25] Still in contact with her grandmother on her cell phone, the Complainant indicated that her grandmother called a man named John Boots, who was one of the elders of the Akwesasne Aboriginal community. Her grandmother told her that this John Boots would be bringing her a blanket so that she could warm up.
[26] During this sequence of events, the Complainant indicated that she began to cry and that she asked the officers who were present what was happening and what they were looking for in her vehicle. They allegedly responded “everything and nothing”, and told her that in their view she seemed definitely guilty of something.
[27] The third of the Respondent’s officers reportedly asked her if she was moving contraband cigarettes, while concluding that, in his opinion, the inspection of the Complainant’s vehicle, by the scanner, would probably detect the presence of contraband cigarettes.
[28] The Complainant told the Tribunal that at that point she repeated to this officer that she worked at a shop in the United States. The officer in question allegedly laughed at the Complainant and mocked her.
[29] Faced with the attitude of this third officer, she asked him to identify himself, at which point he allegedly pointed to his badge, telling her: “You see this badge, do you know what this badge represents?”
[30] The Complainant replied that she did not know and that, at any rate, she did not care. She then apparently told the officer that he was on her land, stating “this is my land,” to which the officer responded “do you know what our society thinks of you?” in reference to the Aboriginal community in which she lived.
[31] A few minutes later John Boots arrived on the scene. She told the Tribunal that this third officer was very rude to Mr. Boots and asked him to stand aside.
[32] In this sequence of events, a fourth officer appeared on the scene bearing receipts for various items found in the Complainant’s vehicle. This fourth officer reportedly asked her to go inside the main building of the border crossing in order to pay the taxes on the items she had purchased in the United States. The Complainant indicated to the Tribunal that she had never paid taxes on anything, given her Aboriginal status.
[33] The Complainant told the Tribunal that during the search, her entire vehicle was inspected, and indicated that the officers who conducted the search tried to rip the seats out of her vehicle.
[34] Inside the main building of the Respondent’s border crossing, the Complainant met with the superintendent of the border crossing and confirmed that she had not declared any of the items that had been found in her vehicle, namely, toys and jeans, indicating that she had not had a chance to do so.
[35] She further stated that once she was inside this building she began to hyperventilate, and started to cry again while feeling outraged at the situation she had just experienced.
[36] In the same part of her testimony, she indicated that she did not recall having mentioned that she was going to call the Mohawk Warriors Society, even though in her mind it did not strike her as a bad idea. She considered people from the Mohawk Warriors Society as peacekeepers.
[37] In short, the Complainant indicated that she had been the object of ridicule on the part of the Respondent’s officers who had conducted the inspection of her vehicle.
[38] She found the entire situation to have been confrontational and frightening for her. She was of the view that the third officer who had spoken to her when she was outside her vehicle failed to act appropriately or in a manner that was consistent with the code of conduct to which he was subject and that he did nothing to calm the situation.
[39] She reiterated that she felt isolated and alone, before all of these identically-dressed men, especially with the indication that there was a danger of radiation on the premises. She told the Tribunal that she was pregnant at the time and confirmed that none of the officers who were present had asked her if she was in fact pregnant before scanning her vehicle.
[40] In her testimony, the Complainant returned to the altercation with the third of the Respondent’s officers, who she claims was the most confrontational with her. She once again acknowledged having told the officer that he was on her land and that this land did not belong to the Respondent. She further indicated to him that she did not live far from the Respondent’s border crossing on Cornwall Island and once informed of this fact, this third officer allegedly asked her, in a defiant manner, whether she was going to run for it.
[41] Specifying what had occurred on November 18, 2005, the Complainant confirmed that the area where the scanning operation took place was marked off with orange pylons. It was within this area cordoned off by these pylons that the scanning operation was conducted.
[42] She further confirmed that during the time she was outside, she was exposed to the cold for a period of approximately forty minutes. She confirmed that the search of her vehicle had taken about ten to fifteen minutes.
[43] Faced with the entire operation that took place on November 18, 2005, the Complainant likened the situation to that of a rape. She described the Respondent’s officers as attackers who caused her much fear, and this fear would always remain with her still. Since then, she felt like a pariah when using the Respondent’s border crossing.
[44] In her testimony, the Complainant identified the third officer with whom she had a confrontation as being the one wearing badge number 11275, namely, Officer Denis Demers.
[45] Lastly, she informed the Tribunal that following these incidents, she decided to file a complaint against the officers in question, but that the complaint against them was not deemed to be valid. She further stated that she went to the band council of her Aboriginal community in order to speak to the community’s Chief and tell him what had happened. He purportedly recommended that she file a complaint with the Commission.
B. Respondent’s cross-examination [46] On cross-examination by the Commission’s counsel, the Complainant also reiterated the words allegedly used by Officer Demers, who had reportedly asked her, in the following terms: “Do you know what our society thinks of you?”
[47] She found the words used by Officer Demers as well as his conduct in general to be discriminatory, especially in light of the fact that she was pregnant. In her view, the Respondent’s officers on that day abused their authority.
[48] In addition, the Complainant indicated to the Tribunal that following the incidents that occurred on November 18, 2005, she searched the Internet in order to find out the potential effects of the radiation to which she may have been exposed and especially the potential effects on her unborn child. She told the Tribunal that it was after this research that she decided to have an abortion. In that regard, the Complainant decided to have the abortion on December 2, 2005, some 19 days after the incidents of November 18, 2005.
[49] Moreover, on cross-examination, she acknowledged that she had made no mention of the fact that she was pregnant, and that the first time this had been mentioned was in an initial document dated July 13, 2007, a document entitled ‘Rebuttal of Fallan Davis’ addressed to the Commission (see Exhibit R-5, pages 4, 26 and 27).
[50] Accordingly, she confirmed that there had been no mention of her being pregnant in her affidavit of November 21, 2005, the affidavit that recounted all of the facts in relation to the incidents of November 18, 2005.
[51] Furthermore, the Complainant confirmed to the Tribunal that she had made no mention of having been pregnant during the investigation that had been launched by the Respondent, through its representative, Lucinda Reading, whom the Respondent had tasked with conducting an investigation of the incidents of November 18, 2005. In this regard, the Complainant stated that Ms. Reading had not asked her specific questions as to whether she was pregnant.
[52] Similarly, the Complainant also admitted to the Tribunal that she had made no mention of her pregnancy when she filed her complaint with the Commission on November 23, 2006 (Exhibit R-2, Tab 96).
[53] In response to another question from the Respondent’s counsel with regard to whether she was pregnant, the Complainant indicated that one of her other children, born in 2007, namely, Georgia Jacob, who was born on February 27, 2007, may also have been affected by the radiation following the scanning operations conducted on November 18, 2005. In that regard, counsel for the Respondent referred the Complainant to one of her affidavits, dated October 28, 2008, in which it is noted that her child Georgia had Bell’s palsy, which is a very rare medical condition. The Complainant submitted that Georgia may have been affected by the radiation from the VACIS.
[54] Once again, the Complainant acknowledged to the Tribunal having never undergone medical tests to assess the level of radiation she may have been exposed to during the scanning operations conducted on November 18, 2005.
[55] During her cross-examination, the Complainant told the Tribunal that she remains fearful when using the Respondent’s border crossing, now located near the city of Cornwall.
[56] Indeed, the Complainant indicated to the Tribunal that the border crossing located on Cornwall Island was closed on May 31, 2009, and relocated to the north shore, where the city of Cornwall is located.
[57] She stated that she was still fearful when using the said border crossing at Cornwall Island, as were other members of her Aboriginal community who had also reportedly had problems with the Respondent’s officers in the past.
[58] Responding to another question from the Respondent’s counsel, the Complainant acknowledged that another incident had occurred on August 6, 2005, when the vehicle in which the Complainant was travelling was searched by the Respondent’s officers. At the time, the Complainant was accompanied by her sister-in-law, Mélissa Papineau. During this secondary inspection of her vehicle, the Complainant apparently stated that she would like to blow up the Cornwall Island border crossing. However, the Complainant told the Tribunal that it was not a serious threat in her view and that she had not uttered the threat inside the Respondent’s border crossing.
[59] Questioned about her obligation to declare the items in her possession when crossing the border, the Complainant told the tribunal that under normal circumstances, and if she had used her usual lane to cross the border, she believed that she would have declared the items and that she would certainly have remembered to do so.
[60] In her testimony, the Complainant questioned why the border crossing was located on Cornwall Island, indicating that she failed to understand why the border crossing had been placed there. She further indicated to the Tribunal that she truly did not know what the territorial limits of Canada were with regard to the geographic location of the premises.
[61] Questioned about the conduct of the officers she encountered on November 18, 2005, she further confirmed that the first officer she had encountered had not yelled at her, but that he had raised his voice.
[62] In response to another question from the Respondent’s counsel regarding her declaration of the goods she had in her possession and had acquired in the United States, she confirmed to the Tribunal that she would not have made such a declaration despite having been asked to do so by the first officer who had dealt with her at the border crossing.
[63] With regard to her encounter with the second officer when she was transferred to the back of the commercial building in order for her vehicle to be scanned, the Complainant also acknowledged that this second officer was not aggressive towards her and had acted in a professional manner.
[64] However, this officer did not inform her of the potential effects of the radiation on her vehicle, and more specifically with regard to her unborn child.
[65] Questioned about her interaction with the third officer, namely, Officer Demers, she confirmed that the officer was dressed in the same manner as the other officers, that he was wearing a tuque and sunglasses and that he was easily recognizable due to “his teeth being in her face.”
[66] According to her, Officer Demers addressed her in a loud voice, and she acknowledged having yelled at Officer Demers to return her driver’s licence to her.
[67] Lastly, with respect to her demand that her driver’s licence be returned to her, and after Officer Demers’ response telling her that she would have her driver’s licence returned to her once the process was finished, she admitted having told the officer to “fuck off”.
[68] Still under cross-examination by the Respondent’s counsel, and with regard to her interaction with Officer Demers, she confirmed having called Officer Demers a “homo.” In addition, she allegedly called Officer Demers an “asshole.” She acknowledged to the Tribunal that the language she used with Officer Demers was disrespectful.
[69] In reference to a document shown to her by the Respondent’s counsel and that consisted of a summary of the response she had presented to the Commission, dated July 13, 2007, (Exhibit R-5, page 26), the Complainant, who had indicated in the document that she had not used the words “fuck off”, acknowledged at the hearing that she had in fact used those words. The Complainant thus admitted that the statement that had been made in the document in question was a lie.
[70] Similarly, the Respondent’s counsel succeeded in getting the Complainant to admit that other information contained in the documentation she had provided was untrue or, at the very least, that she could no longer remember having heard the words Officer Demers had addressed to her.
[71] In her cross-examination, the Complainant confirmed that during her conversation with the superintendent of the Cornwall Island Border Crossing, with regard to the goods she had purchased outside the country, that she was not required to pay taxes, on account of her Aboriginal status and also pursuant to the Akwesasne Residents Remission Order (SOR/91-412) (Order), this Order having been issued with regard to the customs tariff and the exemption applicable to the Akwesasne Aboriginal community.
[72] In that regard, once this formality was completed with the superintendent of the border crossing, the Complainant then left the premises and apparently took some photographs. She believed that she had been the subject of ridicule on the part of the VACIS officers who were present, as they had allegedly laughed at her.
[73] At this stage of the Complainant’s testimony, she left the court, on the ground that she was physically and mentally unable to continue the cross-examination conducted by the Respondent’s counsel. In that regard, the Complainant’s representative informed the Tribunal that the Complainant was under observation by a psychiatrist and was no longer able to continue the cross-examination.
C. Other witnesses who have evidence on behalf of the Complainant John Boots
[74] As regards for the conduct of the two officers present with the Complainant while she watched the search of her vehicle, witness John Boots, who was called by the Complainant’s representative to testify, indicated that the two officers who were present yelled at the Complainant. Mr. Boots told the Tribunal that he could not remember the exact words that were said at the time, on account of the weather conditions. However, he indicated that the body language of the parties who were present, and in particular that of the two officers, was indicative of the situation in which the Complainant found herself.
[75] Mr. Boots confirmed to the Tribunal that the Complainant was crying when he arrived and that she had her arms wrapped around herself in an attempt to keep warm, given the cold weather conditions on November 18, 2005.
[76] He confirmed before the Tribunal that the tone that had been used between Officer Demers and the Complainant was loud and aggressive. Shortly after he arrived at the border crossing facility, Officer Demers asked him to leave the premises, given that his presence was not required.
[77] In his view, the Complainant had been verbally assaulted by the officers present.
[78] However, he did not recall what words had been used or the nature of what was said during the exchanges between the Complainant and the officers who were present.
Sergeant William Lafrance
[79] In addition, the Complainant called as a witness Sergeant William Lafrance, who has been an officer with the Akwesasne Mohawk Police for 25 years.
[80] In his testimony, Officer Lafrance told the tribunal that he had not been present during the incidents that had taken place on November 18, 2005, between the Complainant and the other officers of the VACIS team.
[81] However, he had been informed that an altercation to that effect had occurred.
[82] More specifically, he had received a call from the Complainant during which she stated that she wanted to file a complaint against the officers of the VACIS team, which he refused to do, given that, in his view, there were no reasonable grounds to support a criminal complaint against the officers of the VACIS team.
[83] In his testimony, Officer Lafrance indicated that no one should be forced to stand outside in the kind of weather conditions to which the Complainant had been exposed on November 18, 2005.
[84] He further confirmed to the Tribunal that he was aware that many complaints had been made by residents of the Aboriginal community with regard to the attitudes and conduct of the Respondent’s officers at the Cornwall border crossing.
Lucinda Reading
[85] The Complainant also called as a witness Lucinda Reading, who has been an employee of the Respondent for 37 years. At the time she gave her evidence, Ms. Reading was a Senior Advisor for the Respondent. She had been tasked by her superiors to conduct a factual analysis of the events that occurred on November 18, 2005, involving the Complainant as well as the VACIS team.
William Philips
[86] Called upon by the Complainant to give evidence, William Philips was District Chief to the Mohawk Council of Akwesasne in November 2005.
[87] He was in charge of the Department of Justice portfolio with the Respondent at the time and also worked with the police department.
[88] With regard to the incidents involving the Complainant, Mr. Philips had been made aware of these incidents through the complaint filed by Ms. Davis; he also had conversations with Rod Hart, who was Chief of Operations at the Cornwall border crossing.
[89] In his testimony, Mr. Philips confirmed that he had also met with Ms. Reading, with the Complainant as well as with her mother, discussing the development of good relations between the Aboriginal community and the officers of the border crossing.
[90] However, he confirmed to the Tribunal that the Complainant was a “big mouth” indicating that the Complainant spoke from the heart.
[91] He further confirmed to the Tribunal that a number of incidents had occurred both prior to and after the incidents of November 18, 2005.
[92] In a similar vein, he told the Tribunal that the Complainant was not a calm person considering her mother’s own history.
D. The closing of the border crossing [93] In her evidence, the Complainant’s representative also called as a witness Officer Scott Anderson, who began his shift at the border crossing at noon on November 18, 2005.
[94] In his testimony, Officer Anderson stated that when he arrived the Complainant had already left the premises of the border crossing and had returned to her vehicle. However, he noted an atmosphere of panic at the border crossing.
[95] Informed of the altercation that had taken place between the Complainant and some of the officers deploying the VACIS equipment, Officer Anderson reportedly called the Chief of Operations of the Cornwall border crossing, Rod Hart, and provided him with a detailed account of what had happened.
[96] Officer Anderson made reference to a journalist and a number of area residents having approached the border crossing and having taken photographs of the officers in charge of the VACIS machine operation.
[97] Worried about this, he then contacted Mr. Hart, his superior officer. Mr. Hart ordered that the premises be secured and that the VACIS operation that was underway be stopped.
[98] In light of the gathering of persons who were taking photos in the vicinity of the border crossing, and in the face of mounting concern, Officer Anderson then proceeded to close the commercial area in which the VACIS team was located in addition to calling for the assistance of the Akwesasne police to bolster security.
[99] Officer Anderson further confirmed to the Tribunal that this decision was made after other officers at the port of entry had made it clear of their intention to initiate a work stoppage and refuse to work for the remainder of the day, as they feared their safety might be in jeopardy.
[100] Consequently, all of the officers and staff on duty headed to a secure location within the main building at the Cornwall Island border crossing.
[101] In that same time period, police officers from the Akwesasne police force arrived and escorted the VACIS team to Highway 401 so that they could return to their original posting at the Lansdowne border crossing.
[102] Given the concerns expressed by the other officers who were present, Officer Anderson told the Tribunal that he decided to close the entire border crossing.
[103] Towards the end of his cross-examination by the Respondent’s counsel, Officer Anderson confirmed that the Complainant had in the past been unpleasant to deal with because she expressed her displeasure at having to identify herself each time she used the border crossing.
[104] Lastly, he confirmed to the Tribunal that he had never feared for his safety during the incidents of November 18, 2005. He confirmed that he had agreed to work in the Aboriginal community on various jobs.
[105] The evidence showed that an investigation conducted under the Canada Labour Code, Part II, by a Health and Safety officer, confirmed the lack of danger (see Exhibit C-22).
E. Respondent’s evidence [106] In its evidence, the Respondent called 14 witnesses, all of them officers working for the Respondent. Without repeating the entire testimony of all of the witnesses called by the Respondent, the tribunal will limit itself to evidence given by officers who were in direct contact with the Complainant and about whom she made the complaint of discrimination.
Officer Derek O’Brien
[107] Thus, as the first witness to have become directly involved with the Complainant, the Respondent called Officer Derek O’Brien, who had been tasked with selecting which vehicles were to be subject to the VACIS operation on November 18, 2005.
[108] Therefore, Officer O’Brien was to proceed with what was commonly referred to as “primary inspections,” before vehicles arrived directly in front of the gates of the border crossing.
[109] According to Officer O’Brien, a specific operation involving the inspection of SUV-type vehicles and pick-up trucks was scheduled for that day.
[110] Thus, around 10:30 on the morning of November 18, 2005, he spotted the Complainant’s vehicle heading towards lane 4, the one that was reserved for vehicles driven by Aboriginal residents.
[111] At that time, he noticed that Ms. Davis was driving a large black SUV.
[112] Noting that the Complainant’s vehicle corresponded to type of vehicle that was to be inspected in the VACIS operation, he instructed the Complainant to stop in order for him to proceed with a cursory inspection of the Complainant’s vehicle.
[113] Given that the Complainant’s vehicle had tinted windows, Officer O’Brien told the Tribunal that he was unaware of who was driving the vehicle in question when he stopped it.
[114] Once the driver lowered the window, he recognized the Complainant as being a resident of the Akwesasne Aboriginal community, but could not remember her exact name.
[115] When questioned in regard to the primary inspection, he indicated to the Tribunal that he had never had any issues with the Complainant before and that she had always been polite and answered his questions every time.
[116] During the stop on November 18, 2005, he asked her whether she had anything to declare, to which she responded in the negative.
[117] Similarly, the Complainant also responded in the negative to the following questions: whether she had any alcohol or tobacco, firearms, or was carrying goods whose value was in excess of $10,000.
[118] Once the Complainant had answered all of these questions in the negative, he then filled out an E-67 form, which is a form used to authorize a secondary inspection of the Complainant’s vehicle.
[119] This was when he noticed that the Complainant was not happy about the situation.
[120] The E-67 form was blown away by the wind. Officer O’Brien then proceeded to fill out a second E-67 form, which he handed to the Complainant after indicating to her that she should move to the commercial buildings of the Cornwall border crossing. He took note that the Complainant was angered by this situation. He then immediately relayed this information to the rest of the VACIS team that was to conduct the secondary inspection of the Complainant’s vehicle.
[121] For his part, he had no further interaction with the Complainant and his dealings with her ended at that time.
Officer Todd Smart
[122] Once the Complainant was directed towards the VACIS team, at the time located in the commercial compound of the Cornwall border crossing, the Complainant then came into contact with a second officer, namely, Officer Todd Smart.
[123] In his testimony, Officer Smart told the Tribunal he was what was commonly referred to as a “point officer”, on November 18, 2005. He was the first officer to interact with drivers who had been referred after their primary inspection.
[124] Officer Smart told the Tribunal that at the time of his first contact with the Complainant, he was unaware that she was Aboriginal person. When the Complainant arrived before him, he noted that she was aggressive and upset. In addition, he noted that the Complainant was on her cell phone. He immediately asked her to stop using her cell phone, but she did not hang up right away. The Complainant then reportedly asked him why she had been directed to this part of the Cornwall Island border crossing and why she could not use “her lane.”
[125] Officer Smart subsequently informed her that he did not know why she had been sent to have her vehicle scanned, and indicated to her that everyone was subject to inspection when crossing the border and that, for his part, he was simply doing his job.
[126] A little later on, he was explaining the scanning procedure to her, but she cut him off and indicated to him that she was worried about radiation.
[127] Officer Smart replied that if she would let him finish explaining, he would explain the scanning procedure to her and that in the end she would have no reason to be worried. He then finished explaining the scanning procedure.
[128] Throughout his discussion with the Complainant, she never gave him any indication to the effect that she was pregnant and in that regard, Officer Smart indicated that the Complainant made no mention to him of her concerns about the impact of radiation on her unborn child.
[129] A short time later, the Complainant’s vehicle was then moved in the direction of the VACIS vehicle itself. It was at this point that he informed the other officers of the VACIS team of the Complainant’s state of mind by indicating to them that she was angry.
[130] Once her vehicle was in the immediate vicinity of the VACIS machine, the Complainant exited her vehicle and headed to a secure area so as to allow for her vehicle to be scanned.
Officer Denis Demers
[131] She subsequently came into contact with a third officer, namely, Officer Denis Demers, whose conduct was specifically identified in the Complainant’s complaint.
[132] On November 18, 2005, Officer Demers was part of the VACIS team as a base officer.
[133] Among his duties, Officer Demers indicated that he assisted in creating a secure zone using orange pylons, a sign warning of radiation as well as a stop sign. He indicated to the Tribunal that he conducted tests for radiation in four places near the VACIS machine itself, in order to ensure the area was safe.
[134] As was indicated by the procedure that existed at the time, once a vehicle approached the area of the VACIS machine, drivers must not remain in their vehicle during the scanning process.
[135] When the Complainant’s vehicle arrived on the premises, he was informed by Officer Todd Smart of the Complainant’s state of mind.
[136] Upon approaching the Complainant, she became rude, cursing at him and saying things such as “go fuck yourself.” In addition, the Complainant used inappropriate and vulgar language towards him, such as: “fag, asshole, a big man with a big penis”.
[137] Officer Demers told the tribunal that he had never been subjected to such behaviour before, throughout his entire employment.
[138] In addition, Officer Demers indicated that at no time did the Complainant mention anything about being pregnant. Moreover, the Complainant never expressed any of her concerns about the effects of radiation on her.
[139] In the course of the heated discussion that ensued, the Complainant indicated that she was an Aboriginal person, and that she had never been subject to a search because of her status as an Aboriginal woman.
[140] During the conversation, she allegedly asked him to return her driver’s licence to her twice, to which he replied that he would return her driver’s licence to her once the operation was finished. Faced with the Complainant’s attitude, Officer Demers reportedly told her to stop cursing at him, but he apparently noted that she told him that she was an Aboriginal person, and that the land she was on was “her land” and that he had no right to search either her or her vehicle.
[141] Prior to that, Officer Demers had not noticed that the Complainant was an Aboriginal person at all and only did so when the Complainant told him of this fact.
[142] Throughout the course of the heated discussion he had with the Complainant, she never mentioned anything to him about being pregnant or about being concerned about being exposed to radiation.
[143] During this sequence of events, Officer Demers indicated that he remembered having identified himself by pointing to his badge.
[144] In reference to the Complainant’s affidavit (Exhibit R-1, Tab 16), Officer Demers told the Tribunal that he had tried to calm the situation, while maintaining control.
[145] It was for that reason that he had pointed to his badge in order to reassert his authority. In response to a question from the Respondent’s counsel, Officer Demers had originally indicated that he had not uttered the following words “you’re definitely guilty of something” (see examination of January 29, 2014, Volume 46, page 164).
[146] Because of her aggressiveness, he reportedly told the Complainant that her behaviour was telling and that based on his experience, she was acting like someone who had done something wrong. He indicated to the Tribunal that he found the Complainant’s behaviour odd.
[147] Still in reference to the Complainant’s affidavit, counsel for the Respondent then drew the witness’s attention to the passage in which the Complainant allegedly told him that they were using her land without permission and that, in this regard, she also told the officers of the VACIS team that they should go back to where they came from. During the same sequence of events, she reportedly mentioned to him that he was on the land of the Akwesasnoron. He allegedly responded by stating “you know what we think of your society,” to which she reportedly replied that she didn’t need to know and that she didn’t care.
[148] Officer Demers told the Tribunal that he could not remember the exact words he used but that he remembered having said something to the effect that he was on Canada Customs’ property. However, he did not remember the Complainant having mentioned to him that it was the land of the Akwesasnoron. Similarly, Officer Demers denied having used the words “do you know what our society thinks of you?” in reference to the Mohawk people.
[149] Furthermore,