I am astounded, bewildered and my head is spinning.
I came across the story of Allan Kessing, a retired Australian Customs Officer who was convicted of whistle-blowing and ultimately sentenced to a 9 month suspended sentence. For those of you unfamiliar with him here is a brief account of his story.
Back in 2003, Officer Kessing, joined the Air Border Security Unit presented a report after he analyzed and compiled a mountain of data the unit had gathered over the years. In an article for the website Crikey he wrote,
“the picture that emerged was one of accumulated abuses of Customs regulations, theft, smuggling and systemic criminality. Long time failures had been set in concrete during the run-up to the Olympics and many new rorts and abuses had been accreted on since then.”
As a result he was asked to present a risk analysis report on the private contracted security at the airport. The Customs Manager at the airport’s response to the report was that it was “ rejected out of hand as impossible to implement for a number of commercial and operational reasons.”
Officer Kessing was then instructed to compile another report on the airport’s restricted areas which are limited to employees with a special Air Security Identification Card. This report too, was also rejected outright.
Soon after the Air Border Security Unit was disbanded in Sept 2004. In 2005, Allan Kessing retired to care for his ailing mother and in June of that year, a newspaper called The Australian published some of the detail from his reports; which Allan still upholds he was not responsible for the leak.
The reaction according to Kessing was that the “government at first denied that there were any such reports on the first day, on the second that they were a minority view, the third day DPM John Anderson had announced his resignation and on day four Chris Ellison assured the nation that “…there was no need for any concern as we have the safest airports in the world”. Within a week Howard (Australia’s Prime Minister) announced that Sir John Wheeler had been commissioned to conduct a review “due to community concern”. …Unbelievable.
The result of Sir Wheeler’s inquiry was that he not only endorsed the findings of Kessing’s analysis and backed up his recommendations, but added further criticisms of his own. In response PM Howard pledged $200 million to fund the required reforms. Great right? But wait…not a few months later on Sept 6th, Allan Kessing was charged with providing the information under the Crimes Act, s70 (ii).
The questions that comes to mind, is why would management reject the reports Kessing compiled? What were the commercial and operational reasons management cited for rejecting Kessing’s recommendations? Was it purely the cost? $200 million is a lot of money.
I also wonder how Mr. Kessing could be brought up on charges for providing information which Sir Wheeler’s inquiry supported. Perhaps there are two different issues here. Perhaps it is inconsequential whether Kessing’s report was truthful and in the interest of the public. Perhaps the charges hinge solely on whether a public servant has the right to leak information to the media notwithstanding public interest?
To bring this issue closer to home. A few customs officers here in Canada it appears have taken it upon themselves go to the media…Sun media to be specific and blow the proverbial whistle on what they consider wrongdoings by management; which they feel endanger the general public.
On Sept 19th 2011, an article by Tom Godfrey of the Toronto Sun was published titled Secondary checks being ignored, Pearson Officers say. In the articles Mr. Godfrey explains how 3 CBSA officers have come forward to explain how up to 500 passengers on a shift may be set free without the secondary examination they are coded for due to the need to speed up passenger processing times. This practice, the officers point out is a threat to national security. For example, Mr Godfrey writes “Officers said all travellers from Jordan, Syria, Iran, Iraq and Yemen are interviewed to stem terror concerns by the Canadian Security Intelligence Service.” Then he quotes one officer as saying “These people being released by customs should at least be given a quick check,” one officer said. “They can be bringing back extra alcohol or parts for bombs we don’t know.” Really? Extra Alcohol?
According to Mr. Godfrey, the CBSA’s response was a refusal to comment on the possible security breach and then he quotes CBSA spokesman Antonella DiGirolamo as stating in an email that officers “use a risk management approach when determining if travellers entering Canada require a secondary examination,”.
In truth, I have found this to be a bit of a difficult pill to swallow at times.
I understand how it can be necessary to employ risk management techniques but I also see how often times it ends up being the party line for why things are not done properly. I believe that risk management needs oversight with an iron fist to stem any possibility of this happening. Its just too easy to just chalk up inefficiencies, lack of motivation or cost of innovation as the reason we maintain the risk management process status quo. When attempts at change through innovations have been tabled I have frequently heard why this or that cannot be done. For some reason, in the government we seem to be always be playing catch up when it comes to technology. I think it is the old adage of people having the tendency to fear the unknown.
With the technological solutions available today, there are many programs that could be managed to achieve %100 compliance. But for some reason we don’t. We risk manage.
Social media has been proven to be a valuable resource and is here to stay, but the way the agency has reacted to it is through almost a psychology of fear. Because a few bad apples (officers) were irresponsible enough to post inappropriate pictures or comments on facebook, now all officers have been cautioned from posting anything job related and of course all social media sites are blocked for most government of Canada employees. Officers are trusted with millions of dollars in narcotics and systems which hold confidential information…but webmail of any kind, social media of any kind is off limits. How does this make sense?
It is only this year that the CBSA started tweeting border wait times or began a wiki for government employees (which is inaccessible from home, so I wonder how and when they expect employees to contribute).
Other law enforcement agencies have embraced social media and found much success building community outreach programs etc.
The latest archaic nonsensical policy to come to the forefront is the policy that forbids the use of personal electronic devices in the workplace. Sometimes it feels surreal to me. We are empowered to enforce over 90 pieces of legislation, decide on the admissibility of a person into our Country, our home….but we cannot be trusted to be have the good judgement to know when or when it is not appropriate to use our cellphones. Again a few bad apples…so lets just treat everyone like children seems to be the response. Like the movie in Full Metal Jacket, perhaps if we were to beat these bad apples with bars of soap wrapped up in towels they would fall into line. But we can’t do that so lets just punish everyone. I’m being facetious of course.
but I seriously digress.
On Oct 8th 2011, Tom Godfrey of the Toronto Sun had another article on the CBSA published titled, Child Porn, drugs coming into Canada through unchecked mail. In the article, Godfrey explains that “Some international mail and parcels suspected of containing drugs, child porn or even parts for weapons are being allowed into Canada without checks by border officers due to a lack of staff, customs workers say.” Once again, according to Godfrey, CBSA Spokesman Antonella Di Girolamo’s response was the “risk-management approach is required at our postal operations as well, due to the large volume of international parcels.”
Godfrey then explains how reportedly “Officers conducting checks on one skid slated for release recently found four packages containing cocaine and others with hate propaganda and parts of prohibited weapons….And on Tuesday there were three seizures of heroin found in parcels with no forwarding addresses….” “The mass release of all this mail makes me wonder who is supposed to be looking out for the best interest of the Canadian public,” one CBSA officer said. “We are tasked to protect the borders, yet we let everything in without checking.”
The officer said the release of suspected goods is “very close to being a criminal act.”
I don’t know about it being a criminal act but its definitely disturbing if true…but I’m sure what the one officer said how “we let everything in without checking” is categorically false.
After both these articles came out, I wondered what the response would be from the agency. I’m sure they were not happy to have these officers come forward and speak to the media. Especially the Sun Media, which seems to be the media outlet that is pushing most of the right wing agenda including the recent publication of information on war criminals wanted by the CBSA.
Then I started to wonder if what these officer were doing was right and what would I do if I found myself in a precarious position of feeling that what I was being instructed to do was against everything I believed in the best interest of Canada and most Canadians? I honestly don’t know. I would hope that I would have the courage to stand up for what I believed in.
So then I got curious as to what kind of legal protection there existed for whistle blowers in Canada. To my dismay, my research has found that out of all of the western democracies it appears Canada is the only country without any solid legislation to protect those who bring forward a wrongdoing.
It seems the province of New Brunswick is alone in Canada in providing any specific protection of Canadian whistle blowers. Section 28 of the Employment Standards Act states:
“28. Notwithstanding anything in this Act an employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee if the reason therefor is related in any way to
- (b) the making of a complaint or the giving of information or evidence by the employee against the employer with respect to any matter covered by this act; or
- (c) the giving of information or evidence by the employee against the employer with respect to the alleged violation of any Provincial or federal Act or regulation by the employer while carrying on the employer’s business; or if the dismissal, suspension, layoff, penalty, discipline or discrimination constitutes in any way an attempt by the employer to evade any responsibility imposed upon him under this Act or any other Provincial or federal Act or regulation or to prevent or inhibit an employee from taking advantage of any right or benefit granted to him under this Act.”
The result of the above is as Ms. Rosella Melanson (columnist for the New Brunswick Telegraph Journal) correctly states
“Most Canadians are not protected from retaliation – except in New Brunswick. We are one of the few jurisdictions in North America to offer protection. Since 1989, New Brunswick’s Employment Standards Act has protected employees in the public or private sector who provide information about an employer’s violation of a provincial or federal law. This legal protection is as yet untested – no complaints have been filed with the government – and covers only the 75 per cent of workers who are under provincial jurisdiction, but it is still to New Brunswick’s credit. The very existence of such protection for whistle blowers should be an incentive for employers to comply with laws.”
Until 2007, for the rest of Canada, the only other legislation according to the website http://www.canadianlawsite.ca were as follows:
- Ontario’s two main environmental statutes, the Environmental Protection Act, R.S.O. 1990, c. E.19 and the Environmental Bill of Rights, S.O. 1993, c. 28, contain extensive protections for employees who have been discharged, disciplined or harassed for complying with Ontario’s environmental legislation.
Under both statutes, employees who have had reprisals taken against them are authorized to file a complaint with the Ontario Labour Relations Board, which will first try to effect a settlement or, if unsuccessful, hold an inquiry into the complaint. If the Board finds the employee’s complaint justified, it has broad powers to order rectification, reinstatement or compensation. Because Ontario’s Environmental Protection Act prohibits an employer from taking reprisals against an employee for complying with the Act, an employer who contravenes this section could be prosecuted under s. 186 of the Act, which states that every person who contravenes the Act is guilty of an offence.
- The Canadian Environmental Protection Act, R.S.C. 1985, c. C-15.3 (“CEPA”) also contains a whistle blowing provision. It declares that no federal government employee shall be disciplined, dismissed or harassed for reporting on the release of certain toxic substances to a CEPA inspector. These provisions have been criticized for applying to only a limited number of violations under CEPA, for protecting only reports to a CEPA inspector, rather than the media or other officials, and for extending only to federal public servants, rather than all employees in the federal sphere (Environment Canada, CEPA Issue Elaboration Paper #10 — Public Participation for Environmental Protection, 1994, pp. 119-20).
- Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 prohibits employers from taking reprisals against a worker because the worker has complied with the Act, sought its enforcement, or given evidence in a proceeding brought under the Act. Alleged contraventions are dealt with either by binding arbitration pursuant to a collective agreement, if one exists, or by filing a complaint with the Ontario Labour Relations Board. If a penalty for contravention is not established in the collective agreement, the Board can substitute such other penalty that to the Board seems “just and reasonable in all the circumstances”.
- The employment standards provisions in the Canada Labour Code, R.S.C. c. L-2, which apply to employers under federal jurisdiction, contain similar protections for employees who have testified, given information to an inspector, or sought enforcement of the Code. Employers who contravene these provisions are guilty of a summary conviction offence and liable to a fine of up to $15,000.
- The Canadian Human Rights Act, R.S.C. 1985, c. H-6, prohibits any person from threatening, intimidating, or discriminating against an individual because that individual has made a complaint, given evidence, or assisted in the initiation or prosecution of a complaint under the Act.
Then Bill S-6 for the Public Service Whistle Blowing Act, which was introduced in 2002, (which appears to have only made the first reading) states that “Governments in Canada, however, at both federal and provincial levels, have thus far generally declined to enact broader whistleblower protection legislation such as exists in certain other countries”…the result is that “In Canada, therefore, whistleblowers in both public and private sectors are forced to rely chiefly on the protection offered by common law.”
This common law unfortunately, sets the standard that “an employee owes his or her employer the general duties of loyalty, good faith and, in appropriate circumstances, confidentiality” as explained by the Ontario Law Reform Commission’s Report on Political Activity, Public Comment and Disclosure by Crown Employees (1986).
The result is that employees who breaches this standard, notwithstanding public interest, are subjected to reprisals from the employer ending in disciplinary action which can include being fired.
The reaction from the Courts has been to permit very little in the way of a “public interest” defence. The emphasis has been that the onus should fall on the employee to pursue “internal remedies first, to be sure of the facts, and to exercise good judgement in his or her actions.”
In the case Initial Services Ltd v. Putteril (1967), it is stated “loyalty would appear to demand that disclosure beyond internal channels should be the very last resort.” In another case, Ministry of Attorney-General, Corrections Branch and British Columbia Government Employees’ Union (1981), Arbitrator Weiler states that, “…the duty of fidelity does require the employee to exhaust internal ‘whistle-blowing’ mechanisms before ‘going public’. These internal mechanisms are designed to ensure that the employer’s reputation is not damaged by unwarranted attacks based on inaccurate information.”
This makes sense to me, but I’m not sure if many government employees are aware of these mechanisms or if they even exist aside from grievances. Also I believe this ‘inaccurate information’ is what management is often afraid of. That employees may not see the forest for the trees. Sometimes I believe this is true and sometimes I think it is false as this is a generalization and based on the assumption that all employees have the same levels of experience and background. Take for example, an officer who may have an issue with a specific aspect of the arming policy believing it unsafe. Management could argue that the employee is only seeing part of the picture and that there are liability concerns and public perception to take into account. This judgement on behalf of management may actually be a presumption as the officer may have been an ex-military or police swat member who then worked with his/her previous agency to develop arming policies before changing careers. There is in fact a distinct possibility that many not holding a specific position may have far more experience and knowledge of the surrounding issues then those calling the shots. Pay grade is not necessarily indicative of talent, knowledge or skill, of that I am sure.
Arbitrator Weiler then goes on to say that “Only when these mechanisms prove fruitless may an employee engage in public criticism of his employer without violating his duty of fidelity.”
Interesting don’t you think? Well so how about this ‘fidelity’ or ‘loyalty’?
The act of whistle-blowing seems inherently disloyal…at least to the employer. But what about the greater good? Public interest as it were.
Ralph Nader in Anatomy of Whistle Blowing, states that the crux of the issue in whistleblowing is figuring out “at what point should an employee resolve that allegiance to society…”after all, the “just following orders” defence does not cut it as he notes citing the example of the Nuremberg trials. I would tend to agree..and believe there must be the proverbial ‘line in the sand’ that the employee draws when making the decision about what is the greater good….fidelity/loyalty to the employer or public interest?
Even as far back as Gartside v.Outram (1856), the common law limitation on fidelity when a wrongdoing has occurred is evident. “…there is no confidence as to the disclosure of iniquity.” In this case particular case, the ‘iniquity’ was fraud…but what else is a sufficient to release one from their implied duty?
Lord Denning in Initial Services Ltd v. Putterill defines the standard as “any misconduct of such nature that it ought in the public interest to be disclosed to others.” But how is public interest defined?
So then I started thinking about what all of this means to Public servants like myself and others like the Customs officers who went to Tom Godfrey of the Sun. As public servants and representative of the Government of Canada, doesn’t the duty of loyalty carry more weight?
After all, did we not all take the oath of secrecy and swear allegiance to the Crown?
In Fraser v. The Treasury Board (1982), Chief Justice Dickson is of the position that whistleblowing can only be justified when a public servant spoke out in the circumstance where the Government was “engaged in illegal acts, or if it policies jeopardized the life, health or safety of the public servant or others, or if the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.”
I’m sure the 3 officers who spoke to Tom Godfrey of the Sun felt they were justified in their disclosure as they felt it did jeopardize the health and safety of Canadians…and I’m sure management would disagree. All I would say is that I would speculate that if Customs was releasing potential national security threats without examination CSIS would be all over that in a heart beat and the practice would end.
So then this brings us back to the point the courts make that these type of issues should be handled internally before going to the Press. But perhaps the 3 officers would argue that would amount to be of no use. Even if we had an internal process that would be a good fit, there is no obligation on the part of management to act…they didn’t in Australia with the Allan Kessing case…at least until official inquiry reported their findings.
But what about freedom of speech? Surely, the Charter guarantees the freedom to speak our minds? Specifically Part 1 Section 2(b) of the Charter of Rights and Freedoms (1982) states,
“Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;”
Well apparently, previous case law has shown the this right is not absolute. In the Fraser case, Chief Justice Dickson clearly was of the opinion that free speech rights were not absolute but contextual. I.e. libel or slander restrictions. Furthermore, by virtue of being employed by the public service, loyalty to the employer (the government) becomes an ongoing prerequisite of keeping the job. So to publicly criticize the employer would amount to disloyalty. However, Chief Justice Dickson was also of the opinion that loyalty to the Crown and the public interest was of a “higher obligation”.
The result unfortunately in my mind is ambiguity…and unfortunately there seems to be no set legal standard as to when whistle blowing is acceptable. There is much discussion but no definitive case law or legislation in place.
Finally in in 2007, Parliament passed the Public Service Disclosure Protection Act. The Act created two distinct processes: a disclosure process; and a reprisal complaints process. It also created two new bodies: the Office of the Public Sector Integrity Commissioner (PSIC) and the Public Servants Disclosure Protection Tribunal.
So within the regulatory context, as of 2007, we do now have in Canada this Public Sector Integrity Commissioner. In particular, the role of this office is to promote whistleblowing and protect whistleblowers from negative repercussions in the workplace. The end goal being one of investigating cases of mismanagement in the public sector. According to an announcement by Prime Minister Harper on August 3rd 2007, “the Public Sector Integrity Commissioner is responsible for the administration of the new Act, which protects public servants and Canadians who report wrongdoing in the federal government. The Commissioner will conduct independent reviews of disclosures of wrongdoing in an equitable and timely manner, issue findings to enable organizations to take appropriate remedial action and submit annual and special reports to Parliament.”
Sounds great right? Well, not quite. Ms. Christiane Ouimet was named the first commissioner and for 3 years in a row the office did not have a single report of wrongdoing and she ended up retiring 4 years early after an investigation by the Auditor General Sheila Fraser was underway.
According to the Office of the Attorney General of Canada, “The PSDPA and PSIC exist to provide a means for federal public servants and members of the public to disclose potential wrongdoing in the federal public sector. The PSDPA also protects public servants who make a disclosure, or public servants who cooperate in an investigation, against reprisal.”
The Irony is that PSIC ended up being the subject of an investigation by the Office of the Auditor General. In December of 2010, the office of the Attorney General of Canada released a report to Parliament on an Audit that was conducted on the PSIC. The audit was a result of a number of complaints against the Commissioner herself Christiane Ouimet.
The findings of the audit were scathing and disturbing,
“….the Commissioner’s conduct and actions were inconsistent with the spirit of the Public Servants Disclosure Protection Act, the same Act from which she obtains her mandate. Further, the Values and Ethics Code for the Public Service states that “Public servants shall act at all times in a manner that will bear the closest public scrutiny; an obligation that is not fully discharged by simply acting within the law.” In our view, the Commissioner’s behaviour and actions do not pass the test of public scrutiny and are inappropriate and unacceptable for a public servant—most notably for the Agent of Parliament specifically charged with the responsibility of upholding integrity in the public sector and of protecting public servants from reprisal.”
As I mentioned before, the response to this report was that Ms. Ouimet denied all wrongdoing but ended up retiring and supposedly receiving over 500k in a severance package with a Gag Order. How is it that an agency that represents approximately 400,000 public servants could not find one single case of wrongdoing after reviewing over 200 cases? I smell b.s. and that seems to be what the Auditor General smelled too.
According to the Office of the Auditor General (OAG), operational guidance was not even finalized or implemented for PSIC after 3 years of existing. In September 2010 the OAG interviewed the commissioner who told them that many policies and procedures had been developed. However the OAG found that after reviewing documents provided by the Commissioner “….none of them set out procedures for handling disclosures of wrongdoing and complaints of reprisal received under the PSDPA.”
Furthermore, between 2007 and 2009, the OAG found that there were 114 disclosures of wrongdoing and 42 complaints of reprisal but only 3 formal investigations were conducted and “No disclosures of wrongdoing were determined to be founded and no reprisal complaints were referred to the Tribunal.”
The conclusion the OAG arrived at was this,
“During the period covered by our audit, procedures for conducting investigations were not finalized or implemented. We also found that, in many cases, decisions to refuse to investigate, or to dismiss disclosures of wrongdoing and complaints of reprisal were not supported by either the nature of work performed, the documentation on file, or both.”
Aside from the issues with the actual office responsible for administering the Act, there seems to be a number of shortcomings with the Act itself. According to the website belonging to FAIR (Federal Accountability Initiative for Reform) these short comings are as follows:
1) The scope of the law is very narrow
- For members of the Armed Forces, CSIS or the RCMP, the protection from reprisals is either limited or non-existent
- Government misconduct involving the private sector cannot be investigated properly
- The law does not address private sector misconduct at all
2) The range of avenues (for seeking investigation and redress) has been restricted rather than expanded
- All means of access to our normal courts are blocked
- There is little protection against bullying and harassment – for any employee
- Going public or disclosing to the media is strictly prohibited in most circumstances
3) The coverage of wrongdoing excludes most real-life situations
- Restrictive definition of wrongdoing
- Jurisdictional reasons for refusal to deal with disclosures
- Other vague and subjective reasons for refusal to deal with disclosures
4) The provisions for investigations and corrective action are weak
- The Commissioner is restricted to a reactive, fragmented approach
- There is no reliable mechanism to correct wrongdoing or discipline wrongdoers
5) Most complaints of reprisal are likely to be rejected
- Jurisdictional reasons to reject a complaint of reprisal
- Short time limit to file a complaint
- Definitional reasons for rejection of a complaint
- The Commissioner need not refer any case to the tribunal
- Non-government whistleblowers effectively have no protection
6) The tribunal is unlikely to protect anyone
- Near-impossible burden of proof
- Lack of legal assistance
- No access to courts
- Inadequate penalties and remedies
7) The entire process is shrouded in impenetrable secrecy
- Access to Information
- Misclassification of documents
- Secret hearings
- Decisions need not be filed with federal Court
- Gag orders
8 ) The legal strategy is perverse and ill-conceived
- The law is unwieldy, complex and costly
- OPSIC’s Track Record
- Disclosures of wrongdoing
- Complaints of reprisal
In an article by Julius Melnitzer of the Law Times News titled Canada Ramps up Whistleblower Enforcement on August 15th 2011, he explains that currently “Section 425.1 of the Criminal Code prohibits employers from retaliating or threatening to take action against employees who provide information to a federal or provincial law enforcement official.” in effect he argues that the result is that the broadest whistleblower protections are in the criminal rather than in the regulatory context.
This may be true, but good luck making that one stick…and talk about narrow scope of who you can disclose to. So basically in order to have Sec 425.1 protect you, you must disclose information to a law enforcement official at the provincial or federal level.
So as you can see, in the year 2011, it seems Canada still has a long way to go in putting into place legislation that works with an oversight office that actually does its job. I just don’t understand why it’s so difficult when so many other countries have managed to do this. It is my sincere hope that we will one day have these laws and protections in place.
As to my fellow officers that choose to go to the Press, I hope you know what you are doing. I hope you understand your duty of fidelity. I realize that there may not be an internal mechanism that specifically handles these types of issues and that there should be one. One without fear from reprisal. But for now…all I can say is “pick your battles wisely” and understand you took an oath.
I also hope that one day risk management is applied as a last resort measure; when 100% compliance is a true impossibility. Not because it saves us money, time, or any other resource or because we are too afraid to embrace technology, because we don’t fully understand it or to keep pace with the technology is too expensive.
As for Allan Kessing, currently from what I understand, he is in the process of possibly receiving a pardon as many in Australia view him as a National hero. Also there maybe new information that has come to light that was not shared with the defence that may prove Allan’s wrongful conviction. My heart goes out to Mr. Kessing and the ordeal he has gone through and hope that one day his name will be cleared and some clarity will be reached as to why this was done to him…and that the powers that be who decided to prosecute him will face justice one day.
Thanks for reading this exceptionally long post,
I don’t know about other officers…but I know why I did…if you don’t mind I would like to share with you my thoughts.
My journey to become a Customs Officer started with the realization that I felt most fulfilled when I helped other people. Perhaps it’s genetic…I don’t know…my parents also devoted their lives to help others to the chagrin of my grandparents. Both sides sacrificed a lot to give my mother and father the best education and life possible only to have them declare their path to be one not focused on material wealth but one of religion and helping mankind.
Now I love to help people, but don’t get me wrong…I hate to help people under the duress of obligation. I love to help people because…I want to…not because I have to. It is more kind in my opinion to do something nice for someone because you want to, with no benefit to yourself other than self satisfaction. I know, I know, not exactly altruistic. But it’s the truth.
I get such a sense of satisfaction and fulfillment by going above and beyond for people that can never repay me. It’s not the same when someone does you a favour hoping for some kind of reciprocal behaviour.
That’s why random acts of kindness blow people away. They don’t expect it.
Unfortunately at Customs, this is precisely often the case….Nobody expects kindness.
The public says they expect professionalism and service. But what they really prepare themselves for is gruffness. They expect harshness. They expect rebuke. They expect disgruntled unionized public servants feeding off the trough of taxpayer dollars. Too often they return home as weary travellers only to be met by long line ups, grilling questions, and surly attitude.
I can sympathize with my colleagues though as sometimes dealing with person after person can be trying even on the most patient of us who wear the uniform. If Mother Teresa was poked in the forehead hundreds of times a day for 30+ years I’d suspect even she might not be remembered as the figurehead for peace, love and service to mankind….OK maybe Mother Teresa…but I think you get my drift.
It’s not an easy situation. People are cranky and tired after a long flight. People are annoyed and frustrated sitting in line on a bridge for hours with screaming kids in the back seat. Importers and brokers want their goods yesterday and everyone thinks that as a citizen or taxpayer they should not be subject to questioning, delay, scrutiny, entering or shipping their own personal effects into their own country.
Many people erroneously believe that their Charter rights are being violated. But in truth the Supreme Court of Canada has upheld the Customs process.
According to the decision in R v. Simmons, “The degree of personal privacy reasonably expected at customs is lower than in most other situations. Sovereign states have the right to control both who and what enters their boundaries. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. 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.”
Further more, the decision goes on to say…
“Persons entering Canada, whether or not they are citizens, are placed in a unique legal situation at the point at which they enter the country. They expect to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his activities within Canada.”
What about if you want to lawyer up?
“The purpose of the right to counsel is to ensure that the individual is treated fairly in the criminal process and, in particular, to prevent the individual from incriminating himself. In a border search the issue is not one of self‑incrimination. A search at the border is part of the process of entering the country and is not part of the criminal process. The right to counsel will arise only where a searched person is placed under custody as part of the criminal process. This does not mean, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply.”
So my point is yes you do have charter rights…but within the process of crossing a border, and those rights are not the same as they would be domestically once you have entered the country…citizen or not…unless you are being pursued criminally.
So yes it’s not easy having people become indignant at the first question.
Could things be done better, more efficiently? For sure they could. But front line officers don’t make those decisions. We don’t decide how many officers we should staff on a given day or how many new recruits we need to replace the ones that are retiring. We also don’t write policy. Currently there is a hiring freeze and cuts to our budget due to the current fiscal policy to save as much money during these difficult economic times.
I wish the public understood that like most law enforcement officers, as a Customs officer, a gatekeeper to the country and our home…in order to do my job well…I believe… that I must work on a balance of possibilities and not probabilities. You’re probably an upstanding resident of Canada but there’s a possibility that you are not and therefore I need to make that determination in order to safe guard this country and the people that call it home.
Customs officers on the other hand could turn it down a notch and realize that not everyone is a criminal or lying. I’m a proponent of Pareto’s law or the 80/20 principle. For the purposes of my rant, I believe that 80% of people are compliant to the rules and regulations. 80% are hard working honest people. But the other 20% will be in various levels of non compliance from the failure to mention a trinket purchased for a nominal sum, the drug mule, to the terrorist bent on the destruction of western societies.
So instead of viewing every person with suspicion…I urge my coworkers to hone their ability to detect this 20% and save the hard line for them and not for the family coming back from Disney.
I urge my fellow officers to let the “spirit of the law” dictate their discretion. This world is not black and white. It is filled with shades of grey. Policy is not legislation and you are not a robot. You are…I hope a sentient being, a human being and a Canadian.
As a Border Services Officer we are empowered by the law to make “unfettered” decisions and to exercise our discretion. So stop and consider what is behind the legislation. What was the intention? If you follow the spirit of the law then you will be aligned with the purpose behind the legislation; and you cannot go wrong.
One of our agency mandates right now is to focus on “Service excellence” or Client Service. I believe this means more than just meeting our service standards. I believe this to mean, in broader terms, to serve Canada by serving Canadians. How do we do that? By helping the public adhere to the policies and regulation, by educating and outreach, and by behaving and treating the public in a respectful, fair and professional manner.
Berating a member of the public achieves nothing but to anger them and nurture negative sentiment. Refusing to help and throwing the proverbial book at the smallest unintentional infraction is not what the spirit of the law intended. We were given powers of discretion for a reason. You are also a human being with a heart. Use it!
Our responsibilities are paramount to the economic prosperity and safety of Canadians. We are mandated to facilitate the free flow of people and goods. This is vital to our economy in this day and age of globalization.
We also need to keep the wrong people out and let the right people in.
Without immigration this country cannot remain competitive or support its growing aging population. Canadian are not having enough children. Who will pay for all the services we need when we are old? Who’s going to pay the taxes? Who’s going to fund healthcare? CPP may not even be around in 20 years.
We need educated law abiding new immigrants who are willing to come to Canada and start a new life and be part of the economy. We need immigrants who will invest in this country by creating businesses and jobs. We need skilled workers to come to Canada and help fill the void in occupations where we have known shortages.
But I digress. My intention was to write this post to explain why I chose to become a Customs Officer and then I started ranting. Sorry. I guess I feel passionate about this stuff.
I became a Customs Officer to make a difference and serve my country.
It makes me happy when I know that I have helped someone, really helped someone, and not just given directions to the washrooms or to stand in this or that line. I enjoy many aspects of the job too, not all, but many. The rush of finding concealed narcotics fulfills my enforcement side and guiding and educating the public on how to import their goods equally satisfies my desire to help others.
This job is great if you like interacting with the public. This job is also rewarding if you excel in the area of critical analysis and have good work ethic….you will find the contraband.
If you don’t like people and you don’t like to dig…this job is not for you.
This job truly encompasses the old police motto of “serve an protect”. That is what we do. I feel the same joy whether I find GHB (narcotic known for being used as a date rape drug) knowing a little more is off the street, or I help teach some mom and pop small business importer how to clear their first shipment.
Our new motto by the way is “Protectio, Servitium, Integritas” or “Protection, Service and Integrity”.
Our values are “Respect, Integrity and Professionalism”.
As you may have noticed, Integrity is in both the motto and one of the values and I am not going to comment on whether we live up to this but it is definitely a goal worth striving for, and I hope, I implore, my fellow officers will join me in striving to uphold this.
And to the public, I say, try to understand what we have deal with everyday. Try to understand that some of us chose this profession because we care. Not because we didn’t have a choice or we wanted some cushy government job. Try to understand the scope of our responsibility and how we are mandated with encouraging Canada’s prosperity and ensuring its safety.
Recently I have seen quite a few colleagues retire and it saddens me. In some ways this is a thankless job. And after 35 years, a plaque and a handshake, you’re out the door and a few months later it’s like you never worked there. People forget you and the big wheel keeps on turning.
Many officers end up embittered about how this or that happened to them over the course of their career and never recover. Why does this happen? I think it’s because they are so over invested in their jobs that the smallest thing is blown out of proportion. So then they react negatively completely out of proportion to the issue. They lash back at coworkers, management, the agency or even the public; ending in discipline or being sidelined from career advancement. The result then is that sooner or later they feel stabbed in the back by the system, agency or management. After a while they stop caring. They come into work just to collect their pay cheque and they start counting the days to retirement.
Sometimes the complaints these types of officers have is legitimate. But if you let it get to you, it will do you no good. This job has to be done for its own sake and for Canadians. You have to find your own motivation to come in each day to do the best job that you can.
My martial arts master once said, “…most people are not good at everything. Some students will excel at punching, some at kicking, some at throwing and some at grappling etc…so take something you enjoy like punching and cultivate it and make it yours. The end result will be that it will transfer over to other skills because the principle behind them is all the same; Circle Flow Harmony.”
I try to carry this philosophy with me on the job. I don’t let things get to me. When I’m frustrated about something, I focus on what I enjoy and love and it miraculously expands. It carries over into everything else I do.
When I am finished my shift for the day, I go home. I spend time with family and friends, I blog and each day before I start my shift I pray to God and ask for help in being the best officer I can and for the ability to help someone.
One day, my day will come and it will be time for me to move on.
When that day comes I will leave knowing I did my part, and I did my best. I will not leave angry. I will leave with the satisfaction that I made a difference in my own way; which is why I became a Customs officer in the first place.
Thanks for reading.
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 R. v. Simmons,  2 SCR 495
 R. v. Simmons,  2 SCR 495
 R. v. Simmons,  2 SCR 495