File No.: 71342-7208 CANADIAN HUMAN RIGHTS TRIBUNAL. BETWEEN: FALLAN DAVIS Complainant and CANADIAN HUMAN RIGHTS COMMISSION Commission and CANADA BORDER SERVICES AGENCY Respondent AFFIDAVIT OF SUSAN KEENAN |, SUSAN KEENAN, of the City of Toronto, in the Province of Ontario, SWEAR THAT: 1. | am counsel in the Ontario Regional Ottice of the Department of Justice assisting Mr. Sean Gaudet, lead counsel for the respondent, with this case. As such, | have personal knowledge of the matters to which I herein depose. Where my knowledge is based on information from others, | have stated the source of that knowledge and believe it to be true. 2. The hearing into Ms. Fallan Davis’ complaint took place during the weeks of November 30”, 2009 and December 14, 2009. The matter was then adjourned. | attended the hearing and was present during meetings that occurred off the record between the parties and the presiding Tribunal Member, Mr. Belanger.Meeting held on December 16, 2009 3. On December 16, 2009, during the second week of hearing, Mr, Gaudet was engaged in the cross-examination of Helene Oakes, a former Border Services Officer with the Canada Border Services Agency ("CBSA"). After he began questioning Ms, Oakes regarding the targeting of vehicles on the day in question, a topic which had not yet been covered in cross-examination to that point, the Tribunal Member objected to Mr. Gaudet’s questioning on this topic and directed the parties meet with him in the next room to discuss matters off the record. 4, At the meeting, which I attended, the Tribunal Member accused Mr. Gaudet of engaging in conduct that amounted to harassment in his cross-examination of the complainant's witnesses, including Ms. Oakes, Mr. John Boots and the complainant. He also accused Mr. Gaudet of asking the same questions of witnesses repeatedly five or six times. He told Mr. Gaudet to “look at it from the perspective of the people at the back of the room” and that he was “pouring oil on the fire” by the manner of his questioning of witnesses. He said specifically that Mr. Gaudet had already asked questions of Ms. Oakes about the targeting of vehicles on the day in question, a matter referred to colloquially as a “blitz” by the witness 5, Mr. Gaudet denied he was harassing witnesses through his cross-examinations or was asking the same questions repeatedly, as alleged by the Member. He denied having asked Ms. Oakes any questions regarding “the blitz’. At this point, counsel for the Commission, Mr. Smith, was asked by the member to check his notes and confirm whether Mr. Gaudet had asked questions about the “blitz” previously. Mr. Smith confirmed that Mr. Gaudet had not asked any questions of the witness on this subject, whereupon the Member indicated that he would allow Mr. Gaudet to ask these questions upon resumption of the hearing. 6. The Member also told Mr. Gaudet during this meeting that when Mr. Gaudet is cross-examining the complainant's witnesses, they feel “pressured” to say things they would not normally say. He said that this was not good because “we want to find out the truth.”7. During that meeting, | took notes regarding the Tribunal Member's comments, which confirm my recollection of events and are attached as Exhibit “A” to this my Affidavit. The notes Mr. Gaudet took at this meeting confirm my independent “BP, recollection of the events and are attached to this my Affidavit as Exhil Meeting held on December 17, 2009 8. On November 5, 2009, the parties participated in a case conference call with the Chair of the Tribunal, Ms. Shirish Chotalia. The complainant confirmed that she wished to call as witnesses Joyce King and Larry King. Neither of these individuals were witnesses to the events described in the complaint. The complainant indicated that she intended to call Ms. King to provide evidence of other complaints made against the CBSA. The Chair directed the complainant to provide affidavits in advance of the hearing setting out these witnesses’ proposed evidence such that its relevance could be assessed. 9. At the commencement of the second week of hearing on December 14, 2009, the complainant provided, for the first time, the affidavits of Larry King and Joyce King. After a review of these two affidavits, Mr. Gaudet objected to their introduction on the basis of relevance. Despite the fact that the affidavits contained no evidence regarding the matters set out in the complaint, the Tribunal Member found that the evidence set out in the affidavits of Joyce King and Larry King could be relevant. 10.0n December 17, 2009, the Member held a meeting with the parties to provide his views on the potential relevance of the evidence of Lary King and Joyce King, as set out in their affidavits, At that meeting the Member acknowledged that the evidence contained in the Affidavits of Joyce King and Larry King had no direct relation to the complaint before him. However, he sought the agreement of the patties to a proposal regarding this evidence. 11. The Member's proposal was that the affidavits be filed as exhibits, that the witnesses testify and repeat the evidence given in their affidavit without cross-examination, that the content of the affidavits be considered to contain unverified information and thatthe affidavits be handed to the group of persons he said might eventually make recommendations regarding “solutions” to the “problems” between the CBSA and the Akwesasne community 12.In making his proposal regarding these affidavits, the Tribunal Member referred specifically to the allegation in the Affidavit of Joyce King, who had not been called as a witness at that time and who had not been subject to cross-examination, that 66 cars owned by residents of the reserve had been seized the CBSA. The Member questioned why so many cars had been seized in such a small community. 13, He also referred to the allegations in the Affidavit of Joyce King that other complaints had been made against the CBSA by members of the Akwesasne reserve. He stated that these complaints might be helpful to those who might be called to “find solutions” to what has been described as a ‘lack of communication and understanding.” 14.Referring to Lay King and Joyce King, neither of whom had yet testified, he described them as intelligent, articulate and reasonable persons, and stated that their evidence went to the source and solution of "the problem”. He said that what he saw in Larry King was a man with a lot of information, who was knowledgeable about the “problem” between the community and the CBSA. He said these are the type of people who should sit around the table to find solutions to “their problem", were he to make a finding of discrimination. He then said that the group of people who may sit and make recommendations or propose solutions if he finds discrimination will address the number of cars seized in the community. 15. The Tribunal Member said this case goes much farther than the complainant's case. He said that her complaint will help solve lots of things, and that ‘if we are going to study the situation to solve it, the evidence of Joyce King and Larry King are the “lads” to help people think about solutions. He said “I see 66 cars seized — this is a problem — that's what I see — this problem should be addressed - why so many cars seized?"16.During that meeting, | took notes regarding the Tribunal Member's comments, which confirm my recollection of events and are attached as Exhibit “C” to this my Affidavit. Mr. Gaudet's notes, taken at the same meeting on December 17, 2009, are consistent with my notes and also confirm my independent recollection of the meeting. They are attached as Exhibit “D” to this my Affidavit. Meeting held on December 18, 2009 17.0n December 18, 2009, the complainant's representative Kakwerais requested a meeting with the Member and the parties. The meeting took place in the informal chambers next to the hearing room. During the meeting, the complainant asked if the Member could guarantee her safely when crossing the border, suggesting the CBSA would retaliate against her as a result of her complaint, which had been filed in November, 2006. 18. The Tribunal Member said that the complainant had a valid concern about retaliation from the CBSA. He said that he had heard Helene Oakes testify that the CBSA had retaliated against her in relation to her support of the complainant. Mr. Gaudet asked the member to confirm his belief that the CBSA had retaliated against Ms. Oakes before hearing any of the CBSA’s witnesses. He also asked the Member whether he believed that the complainant would suffer retaliation from the CBSA. The Member replied in the affirmative to both questions, and stated that there is “something going on here”, that there are “problems’, that “we know this” and that he believed there might well be retaliation against her. 19.1 took notes at this meeting which confirm my independent recollection of these events, and which are attached as Exhibit “E” to this my Affidavit. In my notes, the acronym FD refers to the complainant and HO refers to the witness Helene Oakes. ‘SG refers to Mr. Gaudet. Mr. Gaudet’s notes, taken at the same meeting on December 18, 2009, are consistent with my notes and confirm my independent recollection of the meeting, They are attached as Exhibit “F” to this my Affidavit.20.1 make this affidavit in support of the respondent's motion for recusal and for no other or improper purpose. ‘Sworn before me at the City of Toronto in the of Province of Ontario on March 19, 2010 a Vcd tip Yi Ly missioner for Taking AffidavitsSG; testified on Monday that you would let ppl go inside the customs building during secondary exam ~ area in the building where they could stand — could see ‘what was going on during the secondary exam HO: in the secondary area with the three bays, traffic HO: they can see the secondary or go in where the immigration benches are SG: did you ever conduct secondary exam in the commercial area ~ where VACCIS was set up that day HO: [have done secondary in the commercial area of commercial vehicles HO: one incident where pulled up with station wagon of children and did. secondary on the spot SG: not considered detained in secondary exam HO: no, until taken out of CBSA flow, not detained, not charged as per the William case SG: you were asked question re: what was done when someone detained — would they be detained by someone of same or different gender HO: you can be detained by either sex SG: here not being detained was she HO: would have to ask the VACCIS team, I do not know SG: R1, Tab 34, p.268 — this is the statement you prepared re: request by RH. ‘HO: as far as I can remember SG: dated Nov. 21, 2005 and that’s’ when you wrote this HO: yes SG: did you take any notes besides this report HO: yes sir, gave to CBSA HO: when you leave CBSA, you are well aware that you cant bring them with you — in archives for several years SG: this is your recollection of what happened HO: as far as T can remember SG: you testified on Monday that on Nov. 18, 05 there was a blitz ~ this consists Chair: we will not discuss about the blitz, it is done Chair: I would like to have a discussion with BS, [off record - think of the ppl in the back of the room — what would they think of this — it is bordering on harassment, FD: I was going to get restraining order on you after your cross - Chair nodding. You have already asked about blitz ~I know it BS checks notes ~ has not asked about blitz — ok you can ask] Chair: we had a chance to clarify a few things, the fact that the bli had not been discussed by SG during the cross ~ it was done during the exam of HO therefore SG is entitled to ask questions on the blitz but only b/c it was done during the exam SG: when you talked about what a blitz was, you gave some examples ie, What would be looked for during a blitz — certain types of contraband — currency HO: yes SG: when a blitz conducted — what woudlb ¢ looked for ~ decision was by port fo sieiseant” A" refered to ne Aa HO: no ne tis [4 “day of, wo "A Conmneioner or akingof Us. 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KK: no, the Mohawk security that works for CBSA SG: who said this KK: someone has gone to port with bolt cutters SG: who? When? BS: don’t cross examine $G: This is evidence — bringing it before the chair as evidence — you should have told me issue you want to bring to chair KK: not a lawyer SG: don’t know what she’s asking for FD: how can you guarantee my safety Chair: Valid point rc: retaliation at the border against FD ~ [heard HO say retaliation - SG: you think there was retaliation Chair: that is what she said Chair: there is something going on here — problems ~ we know this ‘Chair leaves KK: felt I should tell you, just learned it now — you may not know that LM has. requested to go to the building Nicole: want to continue the hearing On record Chair: before we left, asked if you had time to think about affidavits by J King and Larry King, since these witnesses don’t have anything to say regarding ‘matters on the video, could go on with these cases but yesterday had a discussion with you asked you to think about it and would like to know your reaction — Joyce King — affidavit submitted by 3 King — asked you to study it SG: my position is that I've objected to these affidavits for reasons I've articulated — they are irrelevant ~ Joyce King to the issues that are before you ~ specifically as to whether there was discrimination in this day in question perpetrated by CBSA against C and affidavit should not be admitted and if you determine liability and want to address remedy and this should not be admitted — that’s my position Chair: you object to filing of these doc as exhibit SG: Tobject to the affidavit Chair: would you object to the witness testifying SG: if its about matters in the affidavit or will object to that when she’s called BS: Thad thought that that was an issue already considered by tribunal and you made ruling that evidence would be admitted and it was just whether by filing of affidavit or having witness testify in person ~ you made proposal yesterday re: having the affidavit filed without having the witness testify and I would be agreeable to proposal KK: we believe that Joyce King wasn’t there on November 18, 2005 but as we have stated theres a lot of things in here that are reflective of what happened on November 18, 2005 and the ppl of ak. So J King should be able to come and testify and affidavit should be in there ~ we only have 6 witnesses and J King is ‘one ~ CBSA has 10 witnesses and also possibly to have more witnesses so to geta Coronas ores Cpr or cemta Ao okydinashle ALS oe ananner een agony Q ae ( Sa Sen Keenan Othe et gate “7+ SWORN belo me ti 4| savor (Midwod_,20 10 Le thefh li n" Eleva uate dhe Capt 7 Dee. 8 93 2d Lene Yfoctll wor do amb le CBSA Shee) tsar etd joist Afearbtch Ir peission pre MEK do oo bs Ws olde “” In on Yove. ot ea es OF wn doled ube totel abro <0 wep Vlariecd - Coen miss. XL dnl Vor Two © au gpg inbe wb DIB) wef Win « we Gaye wy eMac bun indore Sie andes off) oer eH sp he GIA 6 one O ohe x 7 Dannie a CESIA& Offre Los. bevedtih 2 FS mnda ap "Ale cbr Wher codietl Write aun daha aye. 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