Davis vs. CBSA

An Akwesasne woman who was allegedly harassed, kept in close proximity to radiation while pregnant, verbally assaulted and intimidated, and forced to stand outside in below freezing weather by Canada Border Service Agency agents at the Kawehno:ke (Cornwall Island) port of entry in 2005 will see her Human Rights Tribunal continue soon, after many delays spanning more than five years.

Fallan Teiohontathe Davis, now 28, has represented herself in nearly every court appearance that’s resulted from her complaint after the November 2005 incident. After filing grievances with CBSA, the Mohawk Council of Akwesasne and various Canadian authorities, Davis was contacted by the Canadian Human Rights Commission who said they were beginning an investigation into Davis’ claims. The commission later determined the case was worthy of going to the next step: a human rights tribunal. CBSA’s lawyer filed several appeals in federal court requesting that the tribunal be dismissed on various technical issues but Canadian judges have continued to rule in Davis’ favor, allowing the tribunal to continue.

In November 2009, Davis’ Canadian Human Rights Tribunal began in the city of Cornwall and was delayed and postponed numerous times. The most recent delay came from an appeal by CBSA accusing the tribunal judge of being bias in Davis’ favor. The judge, though defending his non-bias opinion, excused himself from the case last month. A new judge is currently being assigned and dates will be set for the tribunal to resume, but it will have to start over from the beginning. Davis, who has already testified for more than 15 hours, will also take the stand once again and as her own lawyer she will cross-examine all of CBSA’s witnesses as well.

If CBSA is found to have violated Davis’ human rights, the agency can be ordered to change policies and procedures, implement an external committee to oversee CBSA practices, and be forced to make many other far-reaching changes for CBSA workers and ports across Canada.

But most importantly, Davis said, is that it will be a “checkmark against CBSA for a human rights violation.”

Throughout the past few decades Akwesasne community members have lodged complaints against CBSA agents for racial profiling, harassment and other human rights violations. However, the complaints rarely made it past Akwesasne, and none have come close to the tribunal level.

“None of the people here have been successful in getting anything to show that their human rights over the years have been violated by CBSA,” said Kakwerais Dana Leigh Thompson, who has helped Davis throughout the case. “This is why CBSA has taken this on like no tomorrow. They don’t want that stain. Because there’s too much at stake for them.”

Davis believes CBSA is doing everything in their power to avoid that “stain” and she believes they have attempted to scare her away. After the Canadian Human Rights Commission began their investigation, Davis said she was further harassed at the border, and CBSA agents even detained Davis mother, Janet, when she was on her way to testify at the tribunal in December 2009.

Davis said other tactics by CBSA include their insistence that video footage of the night in question either didn’t exist or was missing for years until officials admitted at the tribunal that the videotape existed and was in an Ottawa office.

As her own legal representation, Davis filed for access to information with the Government and Canada and was able to obtain any CBSA document that had her name. The information she received was alarming as she saw Blackberry messages, emails, articles, and paperwork passed between CBSA officials. They shared information about the case and Davis.

Thompson said CBSA officials likely hadn’t ever had their emails seized for human rights violation concerns and therefore spoke candidly about Davis in their communications with one another.

“I really believe in this aspect that when they started doing all this…they thought no one is ever going to ask for this information,” Thompson said. “In that aspect they were caught with their pants down.”

Thompson said CBSA has been “their own worst enemy” at the tribunal.

The human rights incident occurred on Friday, November 18, 2005 when Davis, in her pajamas, left Kawehno:ke to go into the U.S. to bring her daughter to school.

On her way back to Kawehno:ke, when the CBSA port was still open at that location, Davis approached what was then the “Indian Lane” for Akwesasne residents.

“As I was veering my vehicle, a black SUV, towards the Akwesasne residents lane, I noticed a Customs officer standing in my path signaling me with physical gestures to pull towards the direction of the entrance to the commercial transport via bus lane,” Davis wrote in an affidavit after the incident. “The situation being unfamiliar and out of the normal routine I immediately felt threatened as to why I am directed to this area. I stopped, put my window down, and questioned the situation with the officer.”

Davis said the CBSA officer was someone she dealt with regularly and thought he had a friendly demeanor normally. On this day, she said he “appeared to be very nervous and was fumbling.” She asked for an explanation but was not given one.

Davis drove where she was told into the back of the CBSA compound where transports park and she saw a group of men waiting, wearing all black. She noticed a large sign warning of exposure to radiation.

“I was afraid of the warning sign I could see on the machine in red print ‘DANGER RADIATION,” she wrote. “I was in an unfamiliar situation. It was my belief that this lane was for transport trucks, buses, and commercial traffic only. I felt threatened due to the fact that I was alone, no one would see me once I got back behind this building. I was never sent here before.”

Davis said one of the men told her to drive her truck under the VASCUS (x-ray) machine which she did and then got out and stood 20 feet away. When she asked what was going on, the man instructing her said “I don’t’ know”, Davis wrote in the affidavit.

“I dialed my Tota’s phone number…and explained to her that this situation did not feel right and that I was left to stand in the cold…I started to shiver knowing that my vehicle’s thermostat read -6 degrees Celsius about ten minutes prior…I looked around to see if anyone could see me or if anyone knew I was there. I made two complete 360 turns around, hoping there was someone to witness what was happening.”

Davis said she began to show how uncomfortable she was.

After Davis’ truck was x-rayed, she testified that the agents then entered her vehicle and began searching.

“I noticed they had my seats folded forward in an attempt to rip the back material off to see what was inside my seats,” she said. “At this time I was feeling quite disgusted because my truck was being unnecessarily vandalized. I have been cooperative to what they had asked to this point and did not feel they should continue without an explanation.”

When one man came over to Davis, she questioned again what they were doing.

“What’s it look like,” he said according to Davis’ affidavit. “We’re searching your truck for anything and everything. We will find you guilty of something.”

Davis said she was shaking and shivering from the cold and was afraid the situation was escalating.

“The officer stated ‘Shut up!” Davis wrote. “Again I felt threatened and violated. I was trying to hold back tears because this whole ordeal did not feel right. It was not safe and (I) felt it was going out of control.”

Davis said she continued to be harassed by the man who told her she was “definitely guilty of something” and that she questioned his behavior, fearing he was on the verge of physically assaulting her.

Davis said the man asked her if she was moving contraband cigarettes and that he laughed when she said she worked for a living, for New York State.

“I felt a lump in my throat, he just humiliated me,” she wrote.

A community member approached Davis and she stood near her truck, and asked if she was okay. The agent asked who he was and ordered him to leave the area. He obliged, but told Davis she could warm up in his car if she needed to.

“She’s not going anywhere,” the agent was quoted by Davis as saying.

“I started to cry and began to hyperventilate,” Davis said.

The ordeal continued until the agents asked Davis about $200 worth of toys and children’s clothes they’d found in the truck that she’d purchased prior to that day. The agents wanted to know why she hadn’t declared the purchases.

Although Akwesasne residents are not required to pay duty on goods as per the Remission Order, if they fail to declare the items when passing through, they can be fined.

“I hadn’t been given an opportunity to declare anything,” Davis responded to the agents.

“The officer directed me to go inside and declare my goods and that if I ran that the cops would follow me,” Davis wrote. “The thought of running never even entered my mind. It was an invitation to physically assault me with arrest. I was not going to give them the opportunity to touch me and violate me any more than they already had.”

In the end, Davis was allowed to leave without ever an explanation to why she’d been harassed and violated. As she drove away, she said the agents stood laughing until someone began taking their picture, at which time they dispersed.

The incident ultimately lead to Davis aborting her pregnancy a couple of weeks later, after researching the VASCUS machine and learning that they were not designed for passenger vehicles, and that she had likely exposed her unborn child to harmful radiation. The agents never asked her if she was pregnant.

Davis has received support from the community, especially elders, in her fight for human rights. Thompson said CBSA’s “delaying tactics” would have lead to anyone else giving up, or at the least racking up nearly a million dollars in legal fees and going bankrupt. Davis quit her job in order to focus on the case and to be committed to the many court appearances she’s had to make.

“I just feel like it’s taken a great deal of strength to keep standing up, to just stay strong through the whole thing,” she said. “There’s a lot of things I have to face like character assassination. They’ve definitely gone full force on me every which way they can to try and get me to give up so I have to try and stay focused and stay strong so that they can’t tear me down.”

Davis said she hopes her case will help others in the community and across Canada who are wrongfully harassed and violated.

“I really want to say niawen to my tota, and my ista, and Kakwerais, and Kanatakeron and all the elders that were at my tribunal,“ she said. “And to the people who’ve helped me get the story’s attention , to get the story heard.”