Racial Profiling or Experience?

"Officers on the front line, such as the officer herein, cannot be expected to leave their experience -- acquired usually after many years of observing people from different countries entering Canada -- at home."
"The officer simply asserted in his statement that in his experience it was not uncommon for Chinese persons to bring agricultural products with them upon returning from China. The officer's hunch, based on his experience and his observance of the respondent's demeanour, was confirmed by the secondary examination."
"[The tribunal's conclusion was] totally devoid of merit [in its finding of racial profiling]."
Justice Marc Nadon, Federal Court of Appeal, Canada

"Because it has been my experience working in the air mode stream that it is more than common that individuals of Chinese origin returning from China bring agricultural products with them [he asked leading questions]."
Canada Border Service Agency customs officer, Macdonald-Cartier International Airport

The Federal Court of Appeal has ruled that customs officers can use their on-the-job experience to inform decisions about whom to stop and search at Canada's airports.
Adrian Wyld / The Canadian Press

Justice Nadon saw fit to overturn a tribunal decision that decided for an Ottawa woman, Ting Ting Tam in quashing an $800 fine levied upon her when she returned from a trip to China back to Canada, failing to declare food products stored in her luggage. The Canada Agricultural Review Tribunal had ruled a year ago that Ms. Tam was the victim of racial profiling. A retired hairdresser, Ms. Tam, 72, had returned to Ottawa after a family visit in China.

She had stated on a declaration card that she had no meat or meat products with her which she was bringing into the country. Twice the customs officer repeated his query, whether she had food, plants, candies or anything remotely resembling food in her bags, and on both occasions the elderly woman responded she had nothing that could qualify as food or agricultural products in her possession. Because the woman standing before him appeared nervous, the customs officer sent her on to a secondary inspection.

Where it was discovered that Ms. Tam did indeed have "assorted pork products" from China packed in her luggage. She received an $800 fine under a federal law concerning the health of domestic animals. Ms. Tam has a limited English vocabulary and the widow, living on a small pension had a friend come to her aid. Tony Fan appealed the fine to the Canada Agricultural Review Tribunal. That she had a few snack items with her was attributable to her having failed, as intended, to eat them before landing in Canada, he said, and that she was undeserving of a fine.

The agricultural review tribunal came to the conclusion this Chinese woman represented an unfair target since the customs officer expressed his belief that Chinese people were likely on the basis of his past experience, to smuggle food into the country. Ottawa lawyer, Bruce La Rochelle, the presiding tribunal member ruled that the secondary inspection resulted from "an irrelevant consideration: Ms. Tam's race." Based on the customs officer's own statement, evidence of racial profiling existed, according to Mr. La Rochelle as he voided the $800 fine.

"There is no evidence that he conducted himself otherwise than in what he genuinely believed to be an appropriate manner. However, as superior courts have noted ... racial profiling is not necessarily conscious behaviour", wrote Mr. La Rochelle. And to that the federal government appealed. To see eventually the Federal Court of Appeal reject the reasoning of the three-person tribunal.

It was the appeal court's position that the tribunal gave no consideration to the customs officer having made his decision based on his own reasoning that was twofold in nature: on Ms. Tam's interview demeanour, and on his own professional experience as a customs officer. No evidence of racial profiling existed, wrote Justice Nadon.

There will be further repercussions as a result of this Federal Appeals Court ruling, few of them having anything to do with the unintended smuggling of forbidden food items into Canada. There are other issues where racial profiling is so often considered to be at play when criminal acts take place and those charged claim to have been targeted because of their race. The issue, for example, of police, based on their experience, having suspicions about the behaviours of young black men.

The issue of Muslims claiming they have been racially targeted for special attention and interrogation based on their appearance identifying them as originating from areas of the world where terrorism is a rampant danger and its importation a constant concern. The starkly obvious fact that terrorism is mostly Islamist in origin, and that people from Muslim-majority countries of Southeast Asia and the Middle East and North Africa are those most prone to engage in it, identifies the unfortunate potential by physical appearance leading to suspicion.

Based on a reasonable assumption, given realities.

And then there are charges of racial profiling quite trivialized, for example, when something as absurdly removed from terrorism as a similar instance of importing meat was tossed after a tribunal found that Youssef Bougachouch was fined in a politically incorrect manner when the tribunal heard that only passengers whose appearance was Arabic on a flight from Morocco were referred for secondary inspection.