Davis V CBSA

Fallon Teiohontathe Davis has been pursuing her claim against the Canada Border Service Agency through the mechanisms set in place by the Canadian Human Rights Commission. On Aug. 24, 2011 a hearing took place at the NavCan center to allow the CBSA to present a written and oral argument in support of its motion for an order dismissing Teiohontathe’s complaint against CBSA on the grounds that CBSA does not provide “services” under s. 5 of the CHRA when it enforces Canada’s customs and excise legislation, and is therefore not subject to s. 5 of the CHRA and the Tribunal’s jurisdiction.

The incident in question occurred Nov. 18, 2005 when Teiohontathe was allegedly harassed by CBSA agents, kept in close proximity to radiation while pregnant, verbally assaulted and intimidated, and forced to stand outside in below freezing weather. Davis’ case is only one that is currently navigating through the system from Akwesasne residents and the Mohawk Council of Akwesasne has also filed two complaints against the CBSA. MCA’s complaint lists first the issues surrounding the ‘duty to report’ for Akwesasne residents and the second deals with discrimination against the community when dealing with the various forms of identification in such a multi-jurisdictional area.

The CBSA have responded to other complaints and they have taken the position that the CHRC has no authority to hear these complaints.  Of course there has been precedent set as CBSA has made the same argument in past situations but they were not successful in having the complaints dismissed on those grounds.

Davis’ case falls within that spectrum as the Tribunal ordered that the motion seeking dismissal of Teiohontathe’s complaint was dismissed and the Tribunal inquiry into Teiohontathe’s complaint shall continue. Taiohontathe sincerely appreciates all of the support given by the community as she moves forward in this process. The Mohawk Council of Akwesasne was not available for comment as to any impact this decision might have on their complaint.

The following is the decision given by the Tribunal:

[38] The CBSA was created in 2003 to conduct integrated border services, ranging from facilitating the free flow of persons and goods to dealing with national security and public safety priorities. A core activity of the CBSA is administering and/or enforcing federal customs and excise law, largely a tax-collecting function. Enforcement is process-driven, such that when there is disagreement with a commercial enterprise or an individual traveler, the CBSA undertakes to engage in an impartial review of the enforcement action and to administer applicable laws in an objective and non-discriminatory manner.

[39] The CBSA has a direct public relationship with all Canadians returning to Canada. It is a public body providing border services for the public good. It declares, unequivocally, its commitment to “service excellence” in keeping Canada’s borders secure, and that “service excellence” is of vital importance in serving the trade community, Canadian citizens and visitors of Canada.

[40] By necessary implication and inference, the Customs and Excise Human Rights Investigation Regulations CEHRI Regulations establish that CBSA officers are providing a “service” within the meaning of s. 5 of the CHRA when they are carrying out the administration or enforcement of the CBSA Act. The CEHRI Regulations establish a public right to file CHRA complaints relating to the manner in which CBSA officers deal with travelers in administering or enforcing federal customs and excise laws.

[41] In accordance with the CEHRI Regulations, and enabled by the Memorandums of Understanding dated December 7, 2005, and March 31, 2006, the Commission and the CBSA have created a functional and synchronizes process to prevent discriminations “in the provision of services to the general public, as well as to take steps to deal efficiently with any complaints of discrimination that may arise either within the Agency or from the general public.”

[42] In processing Teiohontathe and her vehicle through primary and secondary examinations, CBSA officers were providing “services” within the meaning of s. 5 of the CHRA. Teiohontathe’s claim that she was singled out and discriminated against by reason of gender and race must be dealt with by a Tribunal inquiry.

ORDERS

[43] The motion of the Canada Border Services Agency seeking dismissal of Teiohontathe’s complaint is dismissed.

[44] The Tribunal inquiry into Teiohontathe’s complaint shall continue.