Canada-U.S. Blog Trade Lawyers Cyndee Todgham Cherniak and Susan K. Ross

Artists entering Canada are targeted by Canada Border Services Agency

Posted in Border Security, Canada's Federal Government, cannabis, Currency Reporting, NEXUS, Proceeds of Crime/Money Laundering

Recently, there have been multiple incidents of Canada Border Services Agency (“CBSA”) officers stopping artists for secondary screening.  We are aware of a number of incidents. The incidents occurred at multiple border crossings.  In all cases, the CBSA equated being an artist with being a drug mule.

In one incident, Tim Hogan, a Canadian indigenous artist from New Brunswick was detained and escorted by CBSA officers to a local hospital for x-ray screening even after an invasive internal exam by the CBSA officers (no ingested narcotics were found). Tim Horgan was informed by the CBSA officers that the indicators for extreme screening were that (1) he was an artist; (2) artists could not afford vacations in the Dominican Republic and (3) artists could not afford to fly business class.  This incident was widely reported by Maria Jose Burgos of the CBC – See “An Indigenous artists takes a vacation alone – and CBSA holds him, X-rays him for drugs“.

A second incident has not  been reported in the media, but we are aware of the incident from the artist.  An US-based artist was detained by the CBSA when he returned from South America en route to his home in the United States.  He found a good deal on Air Canada and transited Toronto Pearson International Airport.  While he did not expect to have to go through CBSA screening, he ended up in the secondary inspection area.  He was told by the CBSA officers who conducted the secondary inspection that they believed he was carrying drugs because he was an artist (and he was traveling from South America).  The CBSA also seized all of his currency as proceeds of crime.

A third incident involved yet another artist who was sent for a routine secondary examination.  After he was asked by the CBSA officer what he did for a living and he answered “I am an artist”, the examination took a negative turn.  The next questions/statements from the CBSA officer was “are you concealing drugs in your luggage”, “did someone pay you to ingest drugs”, and “it will be easier for both of us if you tell me where you have hid your drugs – I will find them”.  The artist was taken aback by accusations of wrongdoing without any evidence to support the statements.  No drugs were found in the luggage or after a pat down.  No apology was given by the CBSA.

In a forth incident, the CBSA stopped an artist who was coming to Canada to visit a friend.  During an examination of his vehicle, which was not resultant, the CBSA took garbage from the back seat (he had gone to Wendys) and swabbed the straw from the milkshake looking for drugs – there were none).  The artist thought that this was a little over the top.

What these incidents have in common is that artists learned during their secondary examination that the CBSA treats “being an artist” as an indicator of illegal activity.  The CBSA was clear to each artist that the examination escalated due to their status as an artist.  Also, each artist was made to feel that the CBSA thought of them as a criminal because they were an artist. The CBSA Officer made demeaning statements to the artists that shows a negative cognitive bias against artists.  It was not just one CBSA officer with the attitude against artists, it was multiple officers at different border crossings.  What this means is that there is an internal and systemic bias against persons who earn a living creating art.

The CBSA has the authority to examine goods and persons entering Canada. The CBSA is permitted to ask questions and conduct drug screening.  The CBSA should not escalate an examination unless there are multiple indicators that a person may be importing prohibited goods (e.g., drugs/narcotics) and/or committing a criminal offence and/or a customs infraction.  What the CBSA cannot do is unfairly target a group of persons based upon their status as an artist.

What should artists do to ensure that they do not run into difficulties at the border?  Artists who have web-sites on which they sell their art could help the CBSA understand that they earn a successful living.  It is helpful to have art posted on the web-site and testimonials on the website.  Artists should keep detailed records for income tax and GST/HST purposes, but also to show the CBSA that the currency in their wallet is not proceeds of crime.  Importantly, artists should not take offense to the CBSA questioning their work – treat the questions as an opportunity to educate the officer about art.  Also, it should go without saying, be careful what you pack in your luggage and CBSA sniffer dogs can detect residue (including smoke) on your clothing.

If you are an artist and have run into difficulties with the CBSA, please contact Cyndee Todgham Cherniak at 416-307-4168.