Open Letter to Irwin Cotler, Minister of Justice and Ann McLellean, Deputy Prime Minister
Ministerial Action Needed on Racial Profiling

March 20, 2005

by Selwyn Pieters
Barrister & Solicitor
Toronto, Canada

This is a request that the Ministers responsible move quickly to implement the timely recommendations made by Counsel in the Public Law Policy Section of the Department of Justice that has spend close to two years working on a multi-agency committee on the subject of racial profiling. It is also to have the Ministers ensure that the terms of the Minutes of Settlement in Selwyn Pieters v. Department of National Revenue now Canada Border Services Agency is fully implemented.

On January 30, 2002, post-9/11, the Canadian Human Rights Commission approved a settlement signed by Denis Lefebvre, Executive Vice-President, Canada Border Service Agency and I, Selwyn Pieters, signed that put an end to a racial profiling complaint that I filed, and following an investigation by the Canadian Human Rights Commission was referred to the Canadian Human Rights Tribunal. The Pieters v. Dept of National Revenue - Minutes of Settlement January 30, 2002, requires amongst other remedies that:

“5. The Respondent, in consultation with the Canadian Human Rights Commission (CHRC) and the ACLC, will request proposals and retain an external contractor to design and implement a pilot project intended to develop statistics on referrals to secondary examination, based on race, colour, national and ethnic origin and gender of referrals in the context of all passengers passing through ports of entry. The time frame and location(s) of the pilot project will be determined by the Respondent in consultation with the external contractor, the CHRC and the ACLC. The project will also analyze, on the basis of race, colour, national or ethnic origin and gender, the impact of the criteria applied by Customs officers at ports of entry and make appropriate recommendations. The result of the pilot project will be provided to the CHRC and the ACLC, and the Respondent will consult with the CHRC and the ACLC respecting the implementation of its recommendations.

6. The pilot project will consider the collection on a permanent basis of the data described in Article 5. The Respondent will consult with the CHRC on the general purposes of any measures that may be recommended from the pilot project prior to any decision on the further collection of such data. If these data are collected on a permanent basis, CCRA shall collect and analyze such data annually and prepare a report to the Minister of National Revenue and to the CHRC, which shall be made part of the public record.”

The Canadian Human Rights Commission, DPR 2001-2002, 3.1.2.3 Litigation observed that the Pieters case against Canada Customs presented an opportunity to deal constructively with systemic problems:

In the Pieters case, a settlement agreement was reached between the complainant and the respondent, Canada Customs and Revenue Agency (CCRA) which impacts on the treatment of visible minorities at Canadian ports of entry. Mr. Pieters alleged that CCRA discriminated against him when he was returning by train from a trip to New York City. Passengers on the train including Mr. Pieters were orally examined by Customs officers at Fort Erie, Ontario. Mr. Pieters alleged that unlike Caucasian passengers, he was asked questions about his citizenship status and his purchases and that his bags were searched. He alleged that when he objected to this behaviour believing it to be discriminatory, a Customs officers made a slur to him that he perceived to be racist. Through the years, the Commission has received a number of complaints by visible minorities alleging that they have been unfairly singled out for secondary searches at Canadian ports of entry. However, such allegations are very difficult to confirm in light of the fact that the CCRA has not collected information with respect to the race, colour or national or ethnic origin of individuals subject to such searches. In settling the Pieters case, CCRA has agreed, among other things, to work with the Commission to develop and implement a special pilot project which will generate statistical information (race, colour, national/ethnic origin, and gender) on individuals entering the country who are referred to secondary examination, analyse the data and make appropriate recommendations.

Canada Border Services Agency has been dragging its feet on implementing this settlement to the extent that Michel Pare, Director of the Canadian Human Rights Commission wrote in a letter dated December 21, 2004 to Stuart MacPherson, Director, Operations Branch, Canada Border Services Agency, that “the Commission is anxious to see the work on Articles 5 and 6 move forward with the letting of the request for proposals for the proposed study. The Commission considers the completion of the work on this settlement a priority and would be pleased to help, in any way in moving it forward.”

The issue of racial profiling of Blacks at ports of entry has been raised several times by the Canadian Human Rights Commission to the agency responsible for our border. Reference: letter from Charles Thiroux, A/Director, Complaints and Investigations, CHRC to Pierre Gravelle, Deputy Minister of National Revenue, dated August 29, 1996; letter from the Francoise Girard, Secretary-General, CHRC to Rob Wright, Deputy Minister, Department of National Revenue, dated February 13, 1998.

That “representatives of…. Canadian Border Services Agency objected to the assumptions on which the Justice Department report was based, and urged that it be rewritten or withdrawn” is unacceptable and shows a lack of will on the part of CBSA to respect the dignity of certain racialized groups in this society.

CBSA signed a binding agreement that has the force of an Order of the Federal Court, instead of shooting the messenger it ought to get with the program that would provide some basis upon which to make an assessment of the extent to which a traveller’s the criteria applied by Customs officers at ports of entry discriminate unlawfully on the basis of race, colour, national or ethnic origin or gender, or the intersection of these grounds.

Examples of Other Racial Profiling Cases that are Ongoing

Lawsuit Against Citizenship and Immigration Canada

There is a civil suit in the Federal Court that was commenced by Udenzil Reuben Smith, a Black, UK citizen, who was accused by a Canadian immigration official of carrying a false passport when he arrived in Canada for a visit in September 2002. Immigration officials did not believe that Mr. Smith was a UK citizen, largely on the grounds that he did not have an “English accent.” Mr. Smith was born England. The authenticity of Mr. Smith’s passport and his British nationality was confirmed by the British High Commission in Ottawa. By that time Mr. Smith was already criminally charged and detained. Upon Mr. Smith’s release from detention he was required to sign a voluntary departure order. This is another classic case of racial profiling. Reuben Smith had all of the proper documents to enter Canada. Unfortunately for him, and for others similarly treated, he did not sound (nor did he look) like a proper, white, English gentlemen. See statement of claim, T-437-03 filed on March 18, 2003. see also, British envoy to probe woman's airport ordeal` He said you don't sound British to me,' visitor says Toronto Star, June 04, 2001; Cultural sensitivity urged for immigration, Toronto Star, June 07, 2001.

I can relate to the two situations here. I was born in the UK also and do not have an "English Accent". A member of the Immigration and Refugee Board thus took the liberty of accusing me of being a "passport baby" a derogatory term that government officials use to express their resentment of foreigners that have children in a first world country.

Human Rights Complaint against Citizenship and Immigration Canada

On January 30, 2003, Mr. Almon was sent to secondary examination. Mr. Almon stops were over the "criminal arrest record" but after he submitted the documents proving his innocence the officers in Customs and Immigration got upset. Mr. Almon alleged that an immigration official stated "I wish I could keep all of them out." Another called him a "Black Son of a Bitch" after being stopped and later patted down. He alleged that he overheard a French Canadian immigration officer used the term "Sal Nigger" after a secondary inspection to a fellow officer referring the Mr. Almon.

Mr. Almon argues that because immigration official did not accept his explanation with respect to not having a criminal conviction and with respect to various police clearance that were provided previously to Canadian authorities, the officials were negatively disposed to him because of racial stereotypes that made them suspicious of him. The result being Mr. Almon being forced to leave Canada prematurely on a voluntary departure order. see, Injustice busters for more information on this case.

Human Rights Complaint Against CBSA

A Black female teacher, was the only minority in he first class section of a train from New York to Toronto. She was the only person whose luggage was searched in that section of the train. She was pulled off the train, had her luggage searched outside of her presence, assessed additional fees on her purchase and missed her train as a result. All as a result of what she described as racial profiling.

Visible Minority Police Officers are Racially Harassed and Racially Profiled

On the issue of racial profiling by the police, even police officers are now filing complaints of racial profiling. One recent complaint by a police constable states “On November 25, 2003, I wrote that the ongoing monitoring, differential treatment and intense special scrutiny to which I am subjected is as a result of being racially profiled by the police service. I believe that not only are racial minority citizens profiled but racial minority police officers are also subjected to this impermissible conduct.” Officer files discrimination complaint: new twists delay disciplinary hearing against regional constable to Jan. 10 Record, December 09, 2004; Regional Police Officer accuses force of racism December 08, 2004

Even Police Officers are Racially Harassed and Racially Profiled in the RCMP

The Royal Canadian Mounted Police history also involved intolerance against Black.

Some of the other examples of racism in the RCMP includes: