Lawrence v. Department of National Revenue

T.D. 2/97
Decision rendered on February 17, 1997

THE CANADIAN HUMAN RIGHTS ACT
R.S.C., 1985, c. H-6 (as amended)

HUMAN RIGHTS TRIBUNAL

BETWEEN:

DANA LAWRENCE

COMPLAINANT

- and -

CANADIAN HUMAN RIGHTS COMMISSION

COMMISSION

                                    - and -

                         DEPARTMENT OF NATIONAL REVENUE
                              (CUSTOMS AND EXCISE)

RESPONDENT

DECISION OF THE TRIBUNAL

TRIBUNAL:           Norman Fetterly, Chairperson
                    Julie Pitzel, Member
                    Guy Chicoine, Member

APPEARANCES:        Dana Lawrence, Complainant
                    Eddie Taylor, Counsel for the Canadian
                    Human Rights Commission
                    Darlene Patrick, Counsel for the Respondent

DATES AND LOCATION
OF HEARING: June 24 to 27 and July 30 to August 1, 1996
Vancouver, British-Columbia

On September 27, 1994 Mr. Lawrence, the Complainant, a Canadian
citizen and Vancouver resident returned home from a short one week visit to
Amsterdam where he was joined by his daughter who was living in London,
England. She was one of his two children from a previous marriage.

Mr. Lawrence, now aged forty-nine years, a former teacher and
administrator suffers from AIDS. He had been diagnosed HIV positive in
1991 and developed AIDS after 1994.

He was then and continues to be under the care of Dr. Philip Sestak
who had prescribed some eleven medications for the treatment of his illness
when the incident in question occurred. Since then his medications have
increased to seventeen in number.

Arrangements had been made for Mr. Lawrence's friend a Mr. Geoff
Metcalf, to pick him up at the Vancouver International Airport upon his
arrival.

On disembarking in Vancouver from Canada Flight 3000 after a fourteen
hour flight from Amsterdam, Mr. Lawrence was checked through Customs
primary inspection point. This occurred in the old Customs facility at the
Airport which has since been replaced by the more spacious modernized version.

At the primary inspection point international travellers are required
to produce their Customs Declaration (since amended) and their passports.

Travellers are then routed by the Customs Inspector at the primary
inspection counter to either the green line on the concrete floor which
channels them past the baggage carousels to the exit, or the red line which
leads to the secondary inspection area. There, duty is paid for items
declared to be in excess of the allowable maximum and there also baggage is
inspected for suspected contraband.

Mr. Lawrence, the first passenger to recover his single checked bag
from the carousel proceeded with it, together with a paper shopping bag and
two bouquets of wrapped flowers towards the exit.

As he wheeled his baggage cart toward the exit and while still some
distance from the exit doors Mr. Lawrence was approached by a uniformed
customs inspector, Mr. Raj Pratap.

Inspector Pratap's duty on this particular day was, in the lingua of
the Custom's Branch, to function as a "rover". His function literally
called for him to rove among the travellers and to spot suspicious items
and to observe suspicious behaviour.

What caught Inspector Pratap's attention was the plant material
contained in the two wrapped bouquet of flowers in Mr. Lawrence's
possession.

After a brief discussion Mr. Lawrence was asked by Inspector Pratap to
follow him. He was led from the exit channel, that is the green line, to
the secondary inspection area where there were, at that time a bank of some
fifteen identical counters. Mr. Lawrence was led to either counter Three
or Four. Opposite this counter and some twelve to fifteen feet away were
located two offices. The office most directly opposite this counter was
the computer room which was equipped with two automated computer systems.

One system accessing the Police Information Retrieval System or PIRS,
is an information system which garners information from Police forces
throughout Canada and sorts or classifies that information on three levels.
Customs has access to the first level which contains short anecdotal
comments concerning the subject and may, in some cases, refer to an
individual's criminal record or in other cases refer to an individual who

witnessed a crime. The display may also contain a coded message but not
all Customs Inspectors are educated as to what the message means. The
remaining two levels contain classified and privileged information, which
is not accessible to customs officers.

The second computer system is the Primary Automated Lookout System or
PALS. It is a stand alone Customs information system which records and
reveals known Custom violators.

Adjoining the computer room is the office of the Supervisor. Between
the secondary inspection area and the exit channel, or green line, there
stood at that time a three to four foot high X-Ray machine which also
served to demark the secondary inspection area from the exit channel. It
stood to the left of the exiting travellers. To their right was the office
of the Agricultural Officer.

Inspector Pratap summoned the Agricultural Officer, Officer Ma, by
means of an electrical device. On being summoned Officer Ma left his
office and walked the short distance to the secondary inspection area where
Mr. Pratap and Mr. Lawrence were awaiting his arrival.

Up to this juncture there is no dispute as to what transpired. In
addition to the oral testimony of the parties, the Tribunal had the
advantage of viewing the former Custom's facilities which are much as they
were in September of 1994 when the incident upon which the Complaint is
based occurred.

After their arrival at the secondary inspection counter and the
appearance of Officer Ma, the Complainant and Inspector Pratap differ in
their views of what developed into the most extraordinary and bizarre
series of mishaps leading ultimately to a formal complaint by Mr. Lawrence.

THE COMPLAINT

In particularizing his complaint Mr. Lawrence alleges, inter alia,
that upon being forced to publicly state that he had AIDS, the Customs
Officer proceeded to obtain and put on rubber gloves..."opened my bag of
medication and made a disparaging comment about the number of medications I
had in my possession".

In his opening remarks Commission Counsel defined his position in the
following words, at Page 6 of the Transcript.

"It is our position that in donning latex gloves after learning of the
nature of the Complainant's illness that constitutes differential
treatment on the basis of disability which is prohibited under the
Canadian Human Rights Act... what I have just stated is the prima
facie case of discrimination".

"This type of discrimination has been noted in the Employment context
as 'adverse effect discrimination', and at the end of the day I will
argue that this construction will present the Tribunal with a novel
case of first impression. I will argue that the Respondent has a
facially neutral policy of searching travellers in order to prevent
prohibited substance from entering Canada".

"Being subjected, then, to the secondary search based on those
conditions is an adverse effect of being ill with chronic illness."

The remarks of Commission Counsel in his opening statement are
significant because, as we understand the complaint, Mr. Lawrence alleges
direct discrimination arising from adverse differential treatment in the
provision of goods, services, facilities or accommodation pursuant to
Section 5(b) of the Canadian Human Rights Act. It should be noted, for the
sake of clarity, that adverse effect discrimination is a principle flowing
from judicial decisions, see Ontario Human Rights Commission and O'Malley
v. Simpsons-Sears [1985] 2 S.C.R., 536. Section 5 of the Canadian Human
Rights Act, on the other hand, when employing the term "adversely" does so
in an entirely different context.

The question which troubled the Tribunal on this issue is as follows:

When a specific discriminatory act is alleged, i.e. the donning of
latex gloves upon learning that an individual suffers from AIDS, can the
facially neutral policies of a Government Agency then form the basis for an
allegation of adverse effect discrimination?

The Supreme Court of Canada in Alberta Human Rights Commission v.
Central Alberta Dairy Pool [1990] 2 S.C.R., 489, held that "direct and
adverse effect discrimination ought to be distinguished for purposes of
determining the appropriate response to a prima facie case of
discrimination" (See head note at page 490).

In her reasons Mme. Justice Wilson states as follows at page 515:

"The duty in the case of adverse effect discrimination on the basis of
religion or creed is to take reasonable steps to accommodate the
Complainant, short of undue hardship: In other words, to take such
steps as may be reasonable to accommodate without undue interference
in the operation of the employer's business and without undue expense
to the employer. Cases such as this raise a very different issue from
those which rest on direct discrimination. Where direct
discrimination is shown the employer must justify the rule, if such a
step is possible under the enactment in question".

In that case and others where the concept of adverse effect
discrimination has been an issue, the relationship between the parties was
usually one of employer and employee. The factual basis for a claim of
adverse effect discrimination in those cases differs significantly from the
facts presented here. The Statutory defence of a bona fide justification
afforded by Section 15(g) of the Canadian Human Rights Act to a claim of
adverse differential treatment of an individual on a prohibited ground is
not available as a defence to an allegation of adverse effect
discrimination. In those cases where an employer raises the defence of
reasonable accommodation he is required to demonstrate that a facially
neutral rule is "a condition or rule rationally related to the performance
of the job". See Alberta Human Rights Commission, supra, quoting with
approval McIntyre J. in Ontario Human Rights Commission and O' Malley v.
Simpson-Sears Ltd. [1985] 2 S.C.R., 536 at 552.

As mentioned, the Tribunal experienced some difficulty in accepting

the appropriateness of the "adverse effect" concept in the circumstances
of this case. As mentioned, it is usually applied in employment situations
where facially neutral policies adopted and controlled by the employer have
an adverse effect on one or more employees.

With regard to the Statutory defence of bona fide justification
pursuant to Section 15(g) of the Canadian Human Rights Act if it was
available, Counsel for the Respondent appears not to have relied on that
defence in her final submissions.

THE ISSUES

The question of when the latex gloves were donned by Inspector Pratap
is a crucial factual issue to be determined by the Tribunal. Whether or
not the donning of the latex gloves by Inspector Pratap is, in and of
itself, discriminatory regardless of when it occurred, given the
circumstances, the condition of the Complainant and the rules and practices
of the Customs Branch is, perhaps a moot point.

The Customs Act and regulations are, it would seem, enacted for the
protection of the general public and in furtherance of the national
interest. In Simmons v. The Queen (1988) 45 C.C.C. 3rd, 296, appeal to the
Supreme Court of Canada, it was held:

"The individuals arriving at the border are subject to a form of
restraint from the outset, in that they will be denied entry to the
Country until the Immigration and Customs Officials are satisfied that
they have the right to enter and that the goods and substances which
they have in their possession are such as can be legally brought into
Canada...", per L'Heureux-Dubé J., McIntyre J. concurring.

It was further held per Dickson, C.J.C., Beetz, Lamar and La Forest
J.J. concurring as follows:

"The degree of personal privacy reasonably expected at Customs is
lower than in most other situations. People do not expect to be able
to cross international borders free from scrutiny. It is commonly
accepted that sovereign states have the right to control both who and
what enters their boundaries for the general welfare of the nation.
Travellers seeking to cross national boundaries fully expect to be
subject to a screening process. This process typically requires the
production of proper identification and travel documentation and
involves a search process beginning with the completion of a
declaration of all goods being brought into the country. Physical
searches of luggage and of the person are accepted aspects of the
search process where there are grounds for suspecting that a person
has made a false declaration and is transporting prohibited goods."

It is true that this case involves an appeal from a criminal
conviction and that the issue was whether the apprehension and body search
of the accused was an infringement of her right to privacy under the
Charter of Rights. Nevertheless, the comments of the Justices concerning
the arrival of travellers from abroad seeking admission to Canada are
apropos and instructive.

Finally if the Customs Act creates an adverse effect amounting to

discrimination, in the exercise of the powers conferred by it, then the
remedy lies in amending the legislation and is not, in our opinion, within
the remedial powers conferred on this Tribunal.

EVIDENCE

There is a conflict of evidence between the Complainant and Inspector
Pratap. The protagonists differ on when the white latex gloves were
donned.

Mr. Lawrence testified that this occurred after he was pressed by
Inspector Pratap concerning the medication in his baggage. According to
Mr. Lawrence, he questioned the right of Inspector Pratap to require this
information but eventually and reluctantly revealed the fact that he was a
victim of AIDS. Whereupon Inspector Pratap donned the white latex gloves
and removed the vials of medication from his baggage and examined their
contents.

Inspector Pratap, on the other hand, testified when he left the
inspection counter and proceeded to the computer room to conduct a name
check under the name of Dana F. Lawrence in the PIRS system that he donned
the latex gloves after viewing on the computer screen words to the effect
"Associate/Cocaine/Trafficking".

There is also differing versions as to an alleged criminal record of
the Complainant's and the manner in which this subject arose. Although the
existence or non-existence of an alleged criminal record does not form the
basis of the complaint it is necessary to describe in some detail the
position of the parties who maintain conflicting views as to what occurred
in that regard.

The Complainant testified as follows:

"The agricultural officer was still there when the Customs agent came
out from in front of me and indicated loudly that I had a criminal
record. At approximately that same time the agricultural officer was
walking away from the area that I was at with the material he had
confiscated".

The Complainant was then shown a sketch, not to scale, which he had
drawn the day following the incident and on which he had marked his
position at the inspection counter and the door to the computer room. He
testified as Inspector Pratap emerged from the door to the computer room
some twelve feet away was when he announced in a loud voice that he,
Lawrence, had a criminal record.

Inspector Pratap's version of how the subject of an alleged criminal
record arose differs significantly from the Complainant's version. He
testified the alleged criminal record became a subject of discussion only
after the Complainant pressed him for the results of the computer name
check he had conducted before returning to the inspection counter. He
denied having loudly shouted as he emerged from the computer room that the
Complainant had a criminal record.

However, for reasons which appear when reviewing the testimony of the
witnesses, the Tribunal has no doubt the alleged criminal record was in
fact mentioned by Inspector Pratap and that this most probably occurred

while he was standing opposite to and face to face with the Complainant at
which juncture Officer Ma was about to leave the area.

The Tribunal also finds, as a fact, that the information displayed on
the computer screen was misleading and the conclusion apparently drawn from
it by Inspector Pratap was erroneous.

The Tribunal understands the Complainant's outrage arising from an
accusation or suggestion, however conveyed, that he had a criminal record.
In his own words his reaction was "horror, shock and stunned". The
Complainant's reaction is even more readily understood when, as it turned
out, the implications from the computer read out were in fact unfounded.

However, we believe, it was out of character for Inspector Pratap to
loudly shout these remarks while some twelve feet away. We base this
finding on the Tribunal's impression of Inspector Pratap while testifying
and on the outstanding record for professionalism, fairness and courtesy
described by performance reviews written by his superiors up to this point
in time (see Tabs 1 and 2 of HR-1 and letters of commendation Exhibit R-9).
In addition we find the manner in which Inspector Pratap was alleged to
have made these remarks is not in keeping with the Complainant's own
testimony which is to the effect that Inspector Pratap was very polite and
formal in his conduct. There is also evidence of Officer Ma which will be
reviewed in some detail and which we believe refutes the Complainant's
contention Inspector Pratap declared in a loud voice that he, Lawrence, had
a criminal record.

It is clear the unfounded suggestion, of a criminal record was
uppermost in Mr. Lawrence's mind as witnessed by the several letters he
wrote to Officials in the Customs Branch and to the Minister of Justice
shortly after this incident occurred. In that regard, a reference may be
had to a letter dated September 30th, 1994 (Exhibit HR-1 Tab 5) to Mr.
Brian Flagel, Operations Manager, Canada Customs in Vancouver. The
following paragraph appears on the third page:

"Those are the two elements of the complaint that I formally make to
you. The larger issue, that of finding out the facts of my criminal
conviction and criminal record in the eyes of Canada Customs is, as I
say, much larger than your Office can reasonably be expected to
handle, and I am not complaining to you about this erroneous
information, nor does it bear on the conduct of your representative".

"The larger issue" was mentioned again in a letter to the Hon. Alan
Rock October 2nd, 1994 (Exhibit HR-1 Tab 6). In both cases the recipients
of these letters responded with unqualified apologies to Mr. Lawrence for
the suggestion that was made concerning a criminal record. See R-1, Tabs
12, 13 and 14.

As a result of his own efforts Mr. Lawrence, through interviews with
the R.C.M.P. and the Vancouver City Police ascertained the information on
the computer which was observed by Inspector Pratap was related to an
incident which had occurred some years previously.

He learned about an incident which occurred in the fall of 1989 during
an investigation by Vancouver City Police who had attempted the arrest of a

drug trafficker who happened to be occupying an Apartment next door to Mr.
Lawrence's in a condominium complex. At that time Mr. Lawrence was
interviewed by the Police as a potential witness. Nothing came of this
incident so far as Mr. Lawrence was concerned, but nevertheless the
information was fed into the PIRS System.

When Inspector Pratap entered the particulars obtained from Mr.
Lawrence's documentation into the computer's PIRS system, the message came
up "Associate/Cocaine/Trafficking" or words to that effect. There does not
appear to be any justification whatsoever for even those cryptic words and,
as mentioned, Mr. Lawrence's displeasure, anger and shock are readily
understandable and accepted.

There is one further matter which needs to be addressed before
examining and analysing the testimony of Mr. Lawrence and Inspector Pratap
about the donning of the gloves. It concerns the length of time which
passed from the moment Mr. Lawrence disembarked up to when he and Inspector
Pratap parted. There is conflicting evidence as to the duration of time
between those events.

Estimates of time, unless one is clock-watching, tend to be largely
subjective. The Complainant, Mr. Lawrence, wasn't sure if his flight from
Amsterdam, scheduled to arrive in Vancouver at 12:15 P.M., had in fact
arrived on time. He estimated the total time from when he picked up his
bag from the carousel after exiting the facility as being between an hour
and a half and an hour and forty minutes.

After being intercepted by Inspector Pratap and escorted to the
secondary examination area, a short walking distance from the green line
exit channel, Officer Ma, the Agricultural Officer was called and arrived
there quickly in about two minutes. Upon his arrival, Inspector Pratap
left for the computer room a short distance from the counter. A couple of
minutes later while Officer Ma was still standing at the counter, Inspector
Pratap returned. Officer Ma was on the point of returning to his office
when the discussion about the alleged criminal record occurred. It was
followed by questions, and discussion concerning the alleged criminal
record and finally by a search of Mr. Lawrence's bag and the contents of
his pockets.

Mr. Lawrence's friend Mr. Metcalf testified he arrived at Vancouver
International Airport at approximately twenty-five minutes after twelve
noon and that he waited until shortly before 2:00 P.M. when he was joined
by Mr. Lawrence.

The record of flights arriving at Vancouver International Airport are
recorded in some detail on a document entitled Primary Inspection Line
System or PILS. This document, is kept in the ordinary course of the
airline business by Canada Customs. It was admitted and marked Exhibit R-
2. The document is dated September 27th, 1994 and on it is listed
information concerning the origin, flight number, estimated arrival times,
and so on, for the various airlines on a specified date. The E.T.A. or
Estimated Time of Arrival is noted and the acronyms "FPAX" at "PIL" or
first passengers at Primary Inspection Line and "LPAX" at "PIL" or last
passenger at Primary Inspection Line are also noted. Mr. Lawrence's flight
which as designated as "CMM" arrived in Vancouver from Amsterdam at 12:47

P.M. or thirty-two minutes later than scheduled according to the
information shown on Exhibit R-2.

According to this document, the first passenger to arrive at the
Primary Inspection Line did so at 12:52 P.M. or approximately five minutes
after disembarking. Assuming Mr. Lawrence was first in line, there was
some thirty-seven minutes delay due to late arrival and disembarkation
before he picked up his luggage at the carousel and proceeded towards the
exit.

His interception by Inspector Pratap as he was exiting would have
occurred a few minutes later. The discussion with Officer Ma was of short
duration, probably about five minutes. When Inspector Pratap returned,
Officer Ma was about to leave. The discussion between Inspector Pratap and
Mr. Lawrence and the search of one item of baggage does not, in the opinion
of the Tribunal, justify an inference of some one hour and forty minutes
passing between the time Mr. Lawrence picked up his bag at the baggage
carousel and his departure from the Terminal.

It may very well have seemed like an hour and forty minutes or an
eternity given the stressful incidents which Mr. Lawrence encountered at
the end of a long tiresome journey. But in view of his flight's late
arrival and the other factors which we have described, the estimated time
spent clearing Customs is not realistic. The Tribunal finds, based on the
evidence, the elapsed time from disembarkation to exit from the Terminal
was probably close to, but no more than one hour.

We will now examine the evidence regarding the donning of the latex
gloves. In addition to the Complainant's testimony, there is the testimony
of Mr. Geoff Metcalf and of Dr. Sestak who were not witnesses to the event,
but who described the Complainant's appearance and behaviour as he emerged
from the Terminal, and in the case of Dr. Sestak, the medication prescribed
at the time of the incident, its effect and the condition of Mr. Lawrence
at various stages of his illness.

Mr. Metcalf who, it will be remembered, came to Vancouver
International Airport to pick up his friend, Mr. Lawrence, and drive him
home, agreed that the flight may have been delayed but could not remember
whether or not in fact it was.

Mr. Metcalf testified as to the Complainant's appearance, "he looked
tired. It's a long flight. Slightly rumpled... He also appeared visibly
upset."

In discussing what had happened Mr. Metcalf said that Mr. Lawrence
told him he had "one of the worst experiences of his life. He was
humiliated, he was upset, he was jumping all over... He was shaken".

Mr. Lawrence gave him a disjointed story "he was sort of jumping and
saying different things in different parts here" according to Mr. Metcalf.

Mr. Metcalf testified that Mr. Lawrence described to him how his
luggage had been opened and searched. The questioning about his medication
which led to his reluctant explanation of his illness adding "at which
point - and Dana was quite upset about this - the Custom's Agent put on

rubber gloves and went through his medications".

Mr. Metcalf testified that Mr. Lawrence "was upset, very upset. He
felt that they had discriminated against him. He was humiliated".

Finally, Mr. Metcalf testified "I actually suggested that Dana write
down everything that happened as soon as we got home".

Apparently during this discussion with his friend, Mr. Lawrence made
no mention of the flowers confiscated by Officer Ma.

In reviewing the Complainant's evidence, it will not be necessary to
re-visit those preliminary findings of fact concerning the manner in which
Inspector Pratap delivered his message vis a vis the alleged criminal
record or the time lapse between the Complainant's arrival at the airport
and his departure.

The sketch, Exhibit HR-4 purports to show the secondary inspection
area with its counters, the door to the computer room, there were in fact
two doors, and what is described as a "rope barrier". At that time there
was in place an X-Ray machine standing some three to four feet high at the
location shown as a "rope barrier". Some of the identification marks
showing the location of the computer room door and the Complainant's
position at the counter appear to have been done when the sketch was drawn
i.e. the day following the incident.

The sketch is of doubtful accuracy, incomplete and of necessity self-
serving. The Tribunal relies instead on its viewing of the premises and
its assessment of the sworn testimony not only of Mr. Lawrence but also all
those witnesses who were present at the relevant time.

Given the fact Inspector Pratap, upon returning to the counter, stated
or suggested that Mr. Lawrence had a criminal record - at about the same
time as Officer Ma was leaving - there then followed a discussion in which
Mr. Lawrence denied he had a criminal record and requested that Inspector
Pratap go back to recheck his computer. Inspector Pratap's response was
that he didn't need to because he had sufficient cause to check Mr.
Lawrence's baggage based on what he had seen.

At this point in his testimony, the Complainant referred to a dialogue
between he and Inspector Pratap regarding the prescription medications,
their purpose, where they had been purchased and whether the Complainant
had purchased any drugs in Amsterdam. He responded to Inspector Pratap's
questioning by stating the only drugs he had with him were prescription
drugs and when he was pressed explained he took the medication for a
chronic illness and when questioned further he replied for "AIDS".

Asked for his reaction when informed he had a criminal record, the
Complainant testified to being "stunned, horrified and shocked". He
further testified Inspector Pratap commented on the "very large number of
medications".

Following this exchange "the gentleman opened a number of the vials,
the regular pill bottles. He shook them, moved the cotton batten aside and
in at least one instance reached in and moved the pills around."

It is noteworthy, up to this point in his testimony, the Complainant
had not mentioned the white latex gloves, until counsel produced a memo
dated September 28, 1994, which it is claimed consisted of a printout from
entries made by the Complainant on his home computer. He testified that
this was done in accordance with his practice of documenting important
events as they happened.

After some discussion regarding the admissibility of what appeared on
its face to be a self-serving document, it was admitted as proof, not of
the contents, but solely as an indication the Complainant made notes
contemporaneously to the incident complained of. The Tribunal admitted the
memo with reservations as to its evidentiary weight. It was marked Exhibit
HR-1, Tab 3.

In any case it was referred to the witness who read over the first two
pages in order to refresh his memory. Counsel directed his attention to
certain passages on these pages. Then he was directed specifically to the
second page, third line down, in which he describes the circumstances
leading up to the disclosure of the nature of his illness to Inspector
Pratap. The next question put to the witness still with memo in his hands
was as follows:

Q. Okay. And then you say what?

A. What I say is that immediately upon my identifying, under
what I felt was pressure, my illness as AIDS, the Customs
Agent quickly returned to the same doorway from where he had
come announcing the criminal record check. He was gone some
seconds and came back, and as he was walking was in the
process of putting on rubber or latex gloves, as he
approached me".

No objection was voiced by Counsel for the Respondent to what can only
be described as leading questions. The Tribunal recognizes Mr. Lawrence's
debilitating illness and the stress of testifying, and that this may have
affected his memory of events some two years ago. This line of questioning
went beyond its stated purpose, however, and came perilously close to
actually prompting the witness in a vital and crucial area of the case.

The Complainant then went on to describe in some detail the search of
his possessions including the contents of his pockets which he emptied out
at the request of Inspector Pratap. He testified to the fact that after
the search was concluded Inspector Pratap removed the latex gloves from his
hands and accepted an offer to shake hands. The Complainant characterized
his inter action with Inspector Pratap as "polite to the point of
exaggeration. He was very very polite".

When the Complainant left the Custom's area, he described his
condition as "fairly frazzled". He then described in detail the course of
action he took in the days following the incident which included, as he was
advised to do by Inspector Pratap, visits to the R.C.M.P. and the Vancouver
City Police regarding the alleged criminal record. He further described in
some detail his own feelings of humiliation, embarrassment, anger and hurt
which was engendered by this treatment and he concluded that "it was a long
while, as I say, before I had found enough information on my own to be able

to put the criminal record part of that problem to rest".

An Affidavit of Dr. Sestak sworn on June 7th, 1996, is contained in
Exhibit HR-1 under Tab 1. Dr. Sestak also appeared in person at the
adjourned hearing to give evidence on behalf of his patient Mr. Lawrence.

Dr. Sestak has wide experience in the treatment of HIV and AIDS,
having thus far treated about 350 patients. He began treating Mr. Lawrence
on November 1st, 1991. According to Dr. Sestak's affidavit he diagnosed
Mr. Lawrence as suffering from Immuno Deficiency because of the HIV virus.
Other symptoms, as described by Dr. Sestak, caused Mr. Lawrence to be
weak, have a reduced tolerance for exercise and mild shortness of breath.
In addition he suffered from an unrelated condition known as spastic
dysphonia which preceded his HIV infection. This condition according to
Dr. Sestak "produces a spastic vocal presentation which results in a manner
of speaking which is tentative, lacks control and "breaks" easily. The
hesitant speech pattern can often be mistaken as evasion".

Dr. Sestak described, in some detail, the medication which Mr.
Lawrence is receiving for his illness. He testified that Dana, as he
referred to the Complainant, was given a "cocktail" of medications for a
period of some two and one-half years from 1992. Dr. Sestak described in
some length the medications he prescribed, their use and their effects.
Notwithstanding the potential for serious side effects of the "cocktail" of
medicines administered to his patient, Dr. Sestak maintained that Mr.
Lawrence's condition had stabilized in 1994 and he based this finding on
the fact that Mr. Lawrence had never made a complaint which he felt could
be related to his medications or to a combination of them. He stated that
in his experience a combination of drugs administered to Mr. Lawrence were
not likely to have a cognitive effect on him.

When questioned regarding his observations as to what psychological
impact, if any, the wearing of gloves might have on a person suffering from
AIDS, Dr. Sestak testified at some length concerning the treatment of AIDS,
the attitude of caregivers and others towards this disease going back to
1981. Apparently it is still "a huge problem" even at St. Paul's Hospital
when staff who bring food trays in and out of the rooms choose to wear
gloves. This is allowed even though according to Dr. Sestak there is
overwhelming evidence that there is no risk of getting the virus. He
stated that it would certainly make him feel very uncomfortable if he was
ill and persons who were treating him wore gowns and gloves where there was
an extremely low risk of being infected by the virus.

He did state that the wearing of gloves when handling needles might
afford some protection.

The Respondent called three witnesses, Mr. Crossley, Officer Ma and
Inspector Pratap. Mr. Crossley has been employed with Custom's Canada for
nineteen years. During that time he performed a variety of functions. He
is currently with the Director Customs Border Services, Pacific Region,
where he monitors programs implemented by the Department and the operations
at various Customs Offices throughout the region. His duty is to ensure
that the policies, procedures and programs of the Department are properly
carried out by the Line people.

It should be noted that the investigation of Mr. Lawrence's complaint
and interviews of the persons involved was the immediate responsibility of
Superintendent Pringle who, unfortunately, was unable to attend the hearing
due to illness.

Upon receiving a copy of Mr. Lawrence's written complaint, presumably
the letter of September 30th, 1994, to Mr. Flagel, Tab 5 of Exhibit HR-1,
Mr. Crossley instructed Superintendent Pringle to conduct an investigation
and to interview all of the witnesses and gather all of the documentation
and to forward the results to him.

Mr. Crossley reviewed all the investigative reports and recommended
the response to Mr. Lawrence's complaint. He authored the letter to Mr.
Lawrence from the Regional Collector containing an apology for the
reference to a criminal record.

He concluded from his investigation there was no evidence of
discrimination. "However, we did note that the Officer had made a
reference to Mr. Lawrence being in the PIRS Data Base and that was
inappropriate and ... I recommended to the Director that we caution the
Inspector against him saying such things in the future".

Mr. Crossley testified, after weighing the probabilities, he decided
that if Inspector Pratap had followed procedure and based upon his written
statement he most probably put the gloves on before Mr. Lawrence stated
that he had AIDS. This was his conclusion.

Mr. Crossley was referred to a page derived from the Customs
Enforcement Manual contained in the Respondent's book of documents, Exhibit
R-1 under Tab 9. The Manual quoting in part from Section 98(1) of the
Custom's Act, states:

"98(1) An Officer may search:

(a) Any person who has arrived in Canada, within a reasonable time
after his arrival in Canada";

and then quoting from Section 99 of the Act which states in part:

"99(1) An Officer may:

(a) At any time up to the time of release, examine anygoods
that have been imported...

(e) ...suspects on reasonable grounds that...any act has been
contravened...examine the goods..."

Mr. Crossley referred to Section 5 of the Manual which authorizes a
Customs Officer to "search any person entering Canada" whether a resident
or a visitor, pursuant to the provisions of the Act, if the Officer
suspects on reasonable grounds that any relevant Act of the Parliament of
Canada has been contravened. He may examine in those circumstances the
goods in the traveller's possession for contraband.

Under the heading "Occupational Safety and Health", the Manual
contains a sub-heading entitled "Drugs" which is found at Page 26, Tab 9
Exhibit R-1 where the following paragraphs appear:

"50. Officers should not become careless or complacent when searching
for drugs or when handling them. Caution should be used to avoid
harmful traps that drug smugglers may have set; razor blades, broken
glass and hypodermic needless are the most common pitfalls.

51. To protect themselves, officers should always wear gloves and
should not freely run their hands into hidden areas without first
trying other inspection methods such as mirrors. When substances are
found which are suspected of being illicit drugs, latex gloves should
be put on immediately. Use of these gloves will serve the dual
function of protecting the officer from the possible harmful effects
of the drug, while at the same time protecting potential evidence from
fingerprint contamination."

The emphasis is ours and relates to Mr. Crossley's earlier testimony
regarding "following procedure".

When asked what tools Officers use in conducting a search, Mr.
Crossley mentioned a number of things including the use of rubber gloves
which are used quite frequently. He explained that gloves were worn, not
only for the protection of the Customs Officer, but also so as to prevent
inadvertently contaminating baggage of one passenger with baggage of
another passenger being searched by the same Officer.

The Tribunal when viewing the old facilities as well as the new
Terminal noted that the secondary inspection counters were and are equipped
with drawers in which there are found, amongst other items, white latex
gloves.

Mr. Crossley testified as to the procedures and how they differed as
between primary inspection and secondary inspection. At primary inspection
the Custom's Officer asks routine questions and requires the production of
the traveller's passport and Custom's Declaration form. The secondary
inspection, if it occurs, involves a more in-depth questioning of the
traveller.

As noted the Complainant passed through the primary inspection point
without being questioned regarding the bouquet of flowers in his
possession.

Mr. Crossley described the kind of things which might arouse the
suspicions of a Custom's Inspector. They would include, in the case of a
Canadian Resident, where their flight originated, their behaviour on being
questioned, goods they acquired while Overseas, and what they were carrying
with them. Both the passport and the declaration form contain information
as to Airline, the flight number and where the traveller is coming from.
The Custom's Declaration form currently in use is essentially the same as
the one completed by Mr. Lawrence. The form asks the traveller to state
whether any plant, cuttings, grape vines, vegetables, fruits in season,
nuts, buds, roots, soil is being brought into Canada.

When asked what kind of reasonable suspicions or what are the
indicators a Customs Officer might consider when asking further questions,

Mr. Crossley replied as follows:

"A Canadian Resident might be such things as nervousness, appearing
hesitant, carrying something that obviously looks like it needs
inspection, would be an obvious indicator. What else? Their
appearance, that sort of thing".

"The Passport gives an indication of where the person has been, what
Countries they have been in. Certain Countries, we, through
experience and intelligence information, know are higher risks
contraband, than, say, other Countries would be."

"We would take somewhat of a closer look, if, coming from, say,
Thailand, coming from Columbia, coming from anywhere in the Caribbean,
coming from Amsterdam. Those Countries are specifically ones that
we're concerned with narcotics, for example. (The emphasis is ours.)

Officer Ma, a Graduate of the University of Waterloo in Biology and a
certified medical lab technologist, was employed at the time of this
incident as an Inspector acting only on referrals from Canada Customs at
the old Vancouver International Airport facility.

He was located in a separate office at the old facility to the right
of passengers following the green channel to the exit doors.

He testified that he was familiar with the use of gloves by Customs
Officers and that they were used frequently by some Customs Officers and
infrequently by others. It was variable, but he says he would see gloves
being worn quite often and "its not unusual".

He testified he had worked in the same area as Inspector Pratap for
some eight years. On the 27th of September, 1994 he was summoned by
Inspector Pratap by an electronic buzzer to the secondary inspection area
to deal with some plant material in the possession of the Complainant, Mr.
Lawrence.

Officer Ma noted some cut chrysanthemums in Mr. Lawrence's possession,
presumably from the bouquet of flowers, and he explained why these were
restricted entry into Canada. He continued to ask further questions, as he
had been trained to do, whereupon Mr. Lawrence volunteered he also had some
bulbs in his possession which he had purchased in Amsterdam or Holland.

Officer Ma then asked Mr. Lawrence "Can you please get them out for
viewing?" When Mr. Lawrence removed the bulbs, Officer Ma noted "they were
in a box with some other toppings like clothing and socks over them". He
cannot recall whether the bulbs were removed from Mr. Lawrence's luggage,
i.e. the bag, or from the paper bag, but in any case they, together with
the chrysanthemums, were confiscated.

Officer Ma testified that normally he is next to the Customs Officer
when an inspection is done and in this incident he had "a feeling that
initially we were together". "I had a feeling that he left the situation,
he had left to go somewhere and somehow he came back".

When he was questioned concerning the wearing of gloves, Officer Ma
testified he did see an Officer opening a vial wearing gloves. He stated

as follows:

"I cannot tell you whether they were put on while I was there or not,
but he did have gloves on, yes....in all fairness I -I know that I
saw him with gloves when I was leaving the area. I do recall that. I
don't know whether he came on, into the area with gloves on or off, I
cannot say".

Officer Ma testified at no time during the course of the discussion
between Inspector Pratap and Mr. Lawrence did he hear Mr. Lawrence mention
that he had HIV or AIDS.

Officer Ma added that his job really isn't on "the interrogative
aspects...even though I could be present, doing my job, with a Customs
Officer close to me, I wouldn't actually be sensitive to the questions
being asked of the Officer".

He was referred to his reports of which there were two marked Exhibits
R-4 and R-5 apparently written at different times. In one of the reports,
Exhibit R-5, he referred to a statement made "face to face at the secondary
counter that he had some criminal record", referring to a conversation
between Inspector Pratap and Mr. Lawrence. In the other report, the word
"that" was struck out, initialled and the word "whether" substituted. The
effect of this change was to alter the meaning from a statement to an
inquiry.

Much was made of this alteration by Counsel for the Commission in his
cross-examination of Officer Ma. He agreed he made the change soon after
the report was written but did not agree that it changed the meaning in the
context. When asked as to the meaning of "whether" and "that" he stated he
was not aware they were two different things and testified "I did not have
any intent either way. I simply changed it and I can't say why I changed
it".

Under questioning by Member Chicoine, Officer Ma testified he was with
Mr. Lawrence for about five minutes at the inspection counter. He was
unable to estimate the total time the Complainant remained at the
inspection counter. He testified in response to further questioning by the
Tribunal that he wrote his report rather quickly and the amendments he made
by striking out the word "that" and substituting the word "whether" was
made "about three-quarters into the time period of which this event
occurred to the day we are here, where I had some recollections, and
whether it was a statement or an interrogation. I wasn't sure which one it
was. Even though I wrote this report I have had to think it over and I
wasn't sure whether it was or not. Even though it sounds like this is a
statement, I don't know whether it was a question, put as a question or put
as a statement by Inspector Pratap."

Whether the allegation was put by Inspector Pratap as a statement or
as an inquiry to Mr. Lawrence is not as important as the fact that it was
made at all. Earlier the Tribunal held we did not accept the Complainant's
version as to the manner in which the statement or the inquiry was made,
namely, in a loud voice, while some twelve feet away from him.

Officer Ma testified Inspector Pratap came back as he was leaving the

inspection counter and something occurred while they, that is, Mr. Lawrence
and Inspector Pratap were face to face, when he heard a raising of the
voice slightly by Mr. Lawrence who sounded edgy and irritated causing
Officer Ma to look back. He says he heard Inspector Pratap responding in
an "impassioned" manner by which Officer Ma said he meant in a drone or
monotone saying something about a criminal record.

Officer Ma stated Inspector Pratap was very "impassioned" and that "he
just dealt with the features of the conversation" and was quite unlike
"some Officers who are not so good at being challenged, they break or they
quaver".

Officer Ma was not the most satisfactory witness. He had difficulty
recalling events sequentially and tended to form "pictures" or impressions
of what happened. He also lacked some appreciation for the meanings and
use of English words. It is our belief however that Officer Ma was
essentially truthful.

Inspector Pratap was employed with the Customs Branch for
approximately nine years prior to this incident. Shortly after commencing
his employment he was involved in the detection and interception of thirty
pounds of liquid hashish imported in a windsurfer in 1985. In recent years
he has done an outstanding job in intercepting contraband. See letters of
commendation, Tabs 2 and 8 of Exhibit R-1 and further letters of
commendation produced when he was challenged to do so by Counsel for the
Commission, see Exhibit R-9.

His performance record, as viewed by his Supervisors for several years
prior to the incident involving Mr. Lawrence, was fully satisfactory and in
comments under Section C of the Performance Appraisals found at Tab 1 of R-
1 there are, for example, statements as follows:

"Your decisions are consistently fair and reasonable. You are also
careful to explain your actions (and the reasons therefor) to the
Public".

"You have a good grasp of natural justice. See Pages 1-2. At Page
3(a) and at 3 the following appears:

"You are always careful to consider whether benefit of the doubt
should extended (sic) and do so when warranted. While effecting such
actions you conduct yourself in a very professional manner".

And at Page 5, Tab 1, Exhibit R-1, the following comments appear:

"Your interactions with the travelling public, your peers and
Supervisors in (sic) good. Keep up the good work in 1993".

Inspector Pratap testified after noticing the bouquet of flowers
carried by the Complainant he intercepted him and asked him to produce his
Passport and Customs Declaration Form. He noted that the Complainant had
failed to declare plant material and he then asked the Complainant to
follow him to the secondary inspection area which is quieter and away from
the flow of exiting passengers.

The Complainant followed Inspector Pratap to Counters Three or Four of
the existing fifteen counters in the Inspection area. Inspector Pratap
then buzzed for the Agricultural Officer, Officer Ma. While awaiting
Officer Ma he checked the Complainant's Passport and Declaration and
ascertained that he had just arrived from Amsterdam.

When Officer Ma arrived, Inspector Pratap told the Complainant "I will
do a quick name check and I will be right back". He then left the counter
for the computer room which was about twelve feet behind the counter and
disappeared from sight.

In the computer room Inspector Pratap fed into the PIRS System the
Complainant's name, then observed the monitor displaying the words
"Associate/Cocaine/Trafficking", or words to that effect. This was a 10 or
a "hit" on a scale of 1 to 10 according to the prevailing usage by the
Customs Branch.

Inspector Pratap testified that on the ledge behind the computer there
were a lot of tools, gloves and inspection material. After applying some
body powder to his hands, he put on gloves and walked back to the
Inspection area where Officer Ma was finishing off his examination.

According to Inspector Pratap, the Complainant said "Why the gloves?"
and he responded by saying "It's routine. Out of certain Countries we use
them".

Inspector Pratap testified that he knew ahead of time he was
specifically targeting certain materials. On cross-examination when asked
by Counsel whether he had made up his mind to search the Complainant's
luggage, when he saw the words displayed on the monitor, Inspector Pratap
testified that he didn't make up his mind to inspect the Complainant's bags
at that particular time. Counsel for the Commission chose to leave it at
that and Counsel for the Respondent did not on re-examination ask when in
fact Inspector Pratap made up his mind to do the search.

It was argued by Commission Counsel an inference ought to be drawn
from this exchange that Inspector Pratap decided to conduct a search of the
Complainant's bag later when he learned Mr. Lawrence suffered from AIDS.
He allegedly quickly returned to the Computer room to don gloves according
to the Complainant's testimony.

Inspector Pratap categorically denies he returned to the Computer room
a second time. There would in fact have been no point in doing so without
first checking to see if there were gloves at the counter in the drawers
provided for that purpose. We accept his evidence in that regard as
truthful, consistent and in accordance with the situation as it developed.

He said his practice was to request from the traveller the production
of the Passport and Customs Declaration Card. Depending on the nervousness
and demeanour of the person, he would follow up with questions as to where
the person was coming from, the nature of the person's business, the
purpose of the trip and how long away from Canada.

With respect to the Complainant, Inspector Pratap stated he was "a bit
nervous, would be a slight agitation" when he was first approached. He

learned from his Customs Declaration and Baggage tags that he had boarded
his flight in Amsterdam. He failed to declare, albeit unintentionally, he
had in his possession prohibited agricultural products.

His evidence was the Complainant was by himself carrying with him two
pieces of luggage consisting of a paper shopping bag and a black leather
knapsack which were "filthy".

Inspector Pratap testified "it's not only the answers that he gives to
your question, it is the body language, the eye movement, the type of
clothing, the shoes..." and other factors including, one assumes, the
manner of speech from which he would reach a decision as to whether or not
he would wear gloves in a particular case. He said that he wore gloves in
about half the cases where he conducted a baggage search.

It is therefore reasonable to infer from the circumstances as
described by Inspector Pratap, that they would lead him to make the
decision to search the Complainant's luggage before he entered the computer
room to conduct the name search. When the monitor displayed words to the
effect "Associate/Cocaine/Trafficking" his suspicions, although in part
misinformed, were apparently confirmed and provided him with reasonable
grounds to examine the Complainant's luggage.

Inspector Pratap was asked on cross-examination whether he had made a
statement face to face with the Complainant at the secondary inspection
counter to the effect he had a criminal record. His response was as
follows:

"When Mr. Lawrence during examination, asked again "What does the
computer record say about me?" and this is face to face and very
close, and this is during the examination or just the beginning of the
examination, I said to him, "Mr. Lawrence, why do you think you have a
criminal record?"

"And that question is a diversion basically used when I don't want to
relay what is on the Computer...".

Inspector Pratap testified that the Complainant repeatedly asked him
what was on the Computer and it was only then that he responded by saying
"Why, do you think you have a criminal record?"

The Tribunal accepts Inspector Pratap's version of the conversation
between he and the Complainant Mr. Lawrence regarding the criminal record
while recognizing there was some evident reluctance during his testimony to
concede to the subject being discussed at all. Those remarks should not
have been made and Inspector Pratap is aware of that as were his Superiors
who, as mentioned, wrote the Complainant with full apologies.

The Tribunal in Stadnyk v. Canada (Employment and Immigration
Commission) (1993), 22 C.H.R.R. D/173 was also faced with the task of
determining whether certain questionable conduct on the part of the
Respondent amounted to a violation of the Canadian Human Rights Code. The
Tribunal stated as follows:

The respondent presented to the Tribunal a number of cases where a
respondent had exercised bad judgment, poor taste, insensitivity,

etc., and where the complainant had a sincere genuine belief that such
actions were based or directed at them on a prohibited ground of
discrimination. However, the adjudicating bodies have ruled that such
conduct did not amount to violation of applicable human rights codes.
See Dhami v. Canada Employment and Immigration Commission (1989), 11
C.H.R.R. D/253 (Can.Trib.); Fu v. Ontario Solicitor General (1985), 6
C.H.R.R. D/2797 (Ont.Bd.Inq.); Makkar v. Scarborough (City) (1987), 8
C.H.R.R. D/4280 (Ont.Bd.Inq.); Syed v. Canada (Minister of National
Revenue) (1990), 12 C.H.R.R. D/1 (Can.Trib.); Aragona v. Elegant Lamp
Co. Ltd. (1982), 3 C.H.R.R. D/109 (Ont.Bd.Inq.); Nimako v. Canada
National Hotels (1987), 8 C.H.R.R. D/3985 (Ont.Bd.Inq.); and Watt v.
Niagara (Regional Municipality) (1984), 5 C.H.R.R. D/2453
(Ont.Bd.Inq.)

But the complaint is based on the donning of gloves after learning
that the Complainant suffered from AIDS and not on imprudent remarks or
suggestions by the Customs Officer pertaining to a non-existent criminal
record.

CONCLUSION

This has been a difficult case and the Tribunal has gone into some
detail in evaluating the evidence. There is no question the Complainant,
as a traveller, was faced with a series of unpleasant and frustrating
invasions of his privacy. Anyone who has occasion to travel abroad can
relate to and empathize with his situation.

In accepting Inspector Pratap's version of the circumstances involved
in the donning of the white latex gloves, the Tribunal does not think it
necessary to question the Complainant's veracity. There are, we believe,
any number of explanations as to why the Complainant's version may be
incorrect. These include weakness, tiredness, frustration and his extreme
sensitivity to the wearing of white latex gloves in that setting.

Inspector Pratap on the other hand appeared clear headed, civil and
courteous not only while testifying but also it seems throughout the
encounter with the Complainant. His main purpose in searching the
Complainant's luggage and asking the pertinent questions was based on
reasonable suspicions, given Amsterdam as the point of origin and the other
factors previously described, that the Complainant was in possession of
narcotics. Even after the vials of medication had been extracted and
placed on the counter Inspector Pratap's suspicions were not completely
allayed as he continued to probe with his gloved finger the medications.
It was only then, after further questioning, that the Complainant revealed
he had AIDS. Following that admission and before parting Inspector Pratap
accepted and shook the Complainant's proffered hand after first removing
his gloves.

This is a case where the principles enunciated by the Courts and other
Tribunals on the proper interpretation of the Canadian Human Rights Act are
of little assistance and the Tribunal must perforce rely on its own common
sense and experience in reaching its conclusion based on the facts as we
find them.

We find as a fact the donning of the white latex gloves occurred
before Inspector Pratap learned the Complainant suffered from AIDS while
performing his duties in accordance with the
procedure required of him in conducting a search of a traveller entering
Canada, in this case the Complainant Mr. Lawrence.

The burden of proof lies with the Complainant and the Commission to
establish a prima facie case. If the burden is discharged, the burden or
proving justification shifts to the Respondent.

"The complaint in proceedings before human rights tribunal must
show a prima facie case of discrimination. A prima facie case in
this context is one which covers the allegations made and which,
if they are believed, is complete and sufficient to justify a
verdict in the complaint's favour in the absence of an answer
from the respondent-employer". See Ontario Human Rights
Commission and O'Malley v. Simpson-Sears Ltd. [1985] 2 S.C.R.
p.558.

The Tribunal is not persuaded after a careful review of the evidence
that the Complainant and the Commission have, on a balance of
probabilities, established in this case a prima facie case of
discrimination.

It follows from this that a prima facie case of discrimination has not
been established and the complaint is therefore dismissed.

Dated this day of January, 1997.

NORMAN FETTERLY, CHAIRPERSON

JULIE PITZEL, MEMBER

GUY CHICOINE, MEMBER