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Ottawa Law Portal On The 'Lookout' For Common Sense in the CBSA Where There Isn't Any

On The 'Lookout' For Common Sense in the CBSA Where There Isn't Any

On  The 'Lookout' For Common Sense in the CBSA Where There Isn't Any

By Professor Darryl T Davies

The 16th century Elizabethan poet and playwright William Shakespeare once wrote “There is a tide in the affairs of men which when taken at the flood leads on to fortune”.  Today when talking about the actions of the Canada Border Services Agency (CBSA) and how they treat some visitors coming to Canada the more apt quotation should go something like this:  “There is a tide in the affairs of the CBSA that taken at the border leads on to absurdity.”  Indeed this is the only way one can characterize the stultifying actions of the CBSA Agency and the manner in which they dealt with Dr. David Farrington who visited Canada in November 2015.  In that visit and two subsequent trips to Ottawa, Dr. Farrington has been targeted and treated as though he is an international lawbreaker.

Now let’s be clear. As Canadian citizens we all know the importance of safeguarding our borders from undesirable visitors who may pose a threat to the safety and well being of our country and that goes without saying.  However when the actions and conduct of some overzealous customs officials border on the insane one has to wonder whether we should fear them more than the people who have nefarious reasons for coming to Canada.  The case of Dr. David Farrington is a prime example of why there needs to be an independent and impartial complaints mechanism in place to investigate CBSA officers whenever their behaviour is either irrational or excessive.  In fact, in June  2015, the first recommendation in a report by the Standing Senate Committee on National Security and Defence stated: “The Government of Canada establish an oversight body for the CBSA to ensure appropriate compliance with legislation and policy, including adequate protection for Canadian’s privacy rights.”

To place things in perspective, Dr. David Farrington is a University of Cambridge Criminologist, who has a world class reputation in the field of criminology. In addition to publishing 100 books and over 700 articles in peer reviewed journals, he has also been the recipient of numerous academic prizes and awards in recognition of his outstanding work as a scholar and professor of criminology.  Dr. Farrington has been the past president of the American Society of Criminology (the first and only person from outside North America to be elected to this office), and three years ago he was awarded the Stockholm Prize in Criminology (criminology’s Nobel Prize) for his outstanding research contributions to the field of criminology.  However, despite having such stellar qualifications, Dr. Farrington has one fatal flaw. He has a tendency to accept invitations to be the keynote speaker at meetings sponsored by none other than the Department of Public Safety in Ottawa.

Dr. Farrington came to Canada in November 2015 to be the keynote speaker at an event sponsored by Public Safety Canada. That event, which was held at Ottawa City Hall, was entitled “The Lifecyle of Crime: Learning from the Experts” and was attended by hundreds of people including representatives from both Crime Prevention Ottawa and Public Safety Canada.  Now when it comes to dealing with the federal government one could be forgiven for thinking that the right arm knows what the left arm is doing but unfortunately past evidence indicates that nothing could be further from the truth. So while Dr. Farrington was coming to Canada to speak at an event sponsored by the federal government, an officer with the CBSA, which is a federal government agency, was singling him out for secondary inspection at the Ottawa International airport because for some reason he was suspicious of Dr. Farrington.

When a person visits Canada they are subject to the discretionary behaviour of a CBSA official.  All the officer needs to have is “suspicion”, which can be almost anything they can invent about a person from a nervous eye twitch to a compulsive stutter. In short, a customs officer has unfettered discretion to place a negative entry about that person on the CBSA system. This entry, known as a “Lookout”, can last up to five years, and what it means is that the person will be subject to a secondary inspection every time they visit Canada.  The CBSA starts an investigation and collects information on the person at every secondary inspection until they believe that they have enough evidence to justify charging that person under the Immigration Act.  So if the first officer bungles it from the outset the bungling doesn’t just run but gallops from one CBSA officer to another. The repeated harassment and victimization is intended and guaranteed to deter people from ever visiting Canada again.

What this amounts to is exactly the same problem some people in Ontario have experienced with carding from police agencies.  People are arbitrarily singled out by an officer and their name is entered into a data base so that every time that person is stopped in the future they are subject to further questions and documentation.  In fact, if an audit was ever conducted that focused on the decision-making practices of customs officers at the border, I have no doubt that it would show that some of them are just as biased and prejudiced when dealing with the public as some police officers are when it comes to carding and racial profiling.

Does it make any sense to give a customs officer, who may have less training than a police officer and less education than a high school student, unbridled powers with few checks and balances on how they exercise those powers at the border?  If the CBSA is doing this to distinguished academic visitors who are invited to speak at meetings by the federal government, such as Dr. David Farrington, how many more innocent people are caught up in this nonsense?  More importantly, what independent and impartial avenues of recourse are there for people like Dr. Farrington who have been placed on the CBSA’s “Lookout” List?  The current process whereby the CBSA investigates itself is unacceptable, as this process is neither transparent nor credible.

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Public Safety Minister Ralph Goodale

The Conservative government was in power for some ten years but did nothing to provide legislative oversight of the CBSA. Common sense dictates that an agency that affects and processes hundreds of thousands of people at our border crossings every day of the year should be subject to independent oversight and accountability.  Sadly, the Liberals have dragged their heels since they were elected and the Public Safety Minister Ralph Goodale has done virtually nothing to make this a reality.  Until he does the CBSA should be placed on a “Lookout List” because there is enough documented evidence of fiascos by this organization to justify a complete overhaul of their staffing, training and operational practices.

Professor Darryl T Davies completed his post-graduate degree in criminology at the Institute of Criminology, University of Cambridge England and has worked for both the Department of Public Safety and the Department of Justice.  He is an instructor in criminology and criminal justice in the Department of Sociology and Anthropology at Carleton University.  The views expressed are those of the author in his personal capacity.

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